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The report makes clear that 2011 workplace collective filings rose on nearly every front, from Fair Labor Standards Act and Employee Retirement Income Security Act (ERISA) claims to government enforcement actions, even as other prime litigation theaters such as shareholder and securities actions were largely static. The Equal Employment Opportunity Commission (EEOC) set a new record with nearly 100,000 new discrimination filings against private-sector employers—an expression, the report notes, of challenging economic conditions as well as the Obama Administration's emphasis on aggressive enforcement. The uncertain economic climate continues to spur ERISA class actions seeking recovery of 401(k) losses. As ERISA cases grow in size and complexity, they are driving a trend toward substantially higher settlement figures. At the same time, the plaintiffs' bar in ERISA cases is also bumping up against questions over whether and how they can meet class certification requirements, which could make certification of ERISA claims more difficult in the year ahead. Seyfarth notes the Supreme Court's decision in Wal-Mart Stores v. Dukes, handed down last June (see Dukes v. Wal-Mart Plaintiffs Refile Bias Case), has already been cited more than 260 times in federal and state court opinions, and AT&T Mobility v. Concepcion 215 times. Dukes, which established a new standard for certifying class actions, and Concepcion, which held that federal arbitration law supersedes limitations imposed by individual states, opened the floodgates to a wave a new case law in class actions, which will continue to evolve in the coming year and impact litigants for years to come, Seyfarth said. As a result of Dukes and Concepcion in particular, a skilled and tight-knit plaintiffs' class action bar is retooling litigation strategies, while equally innovative defense litigators have broken new ground with novel tactics to thwart or dismantle class actions and block class certification. Concurrently, federal and state courts are revisiting class certification rulings in pending cases, based on the new parameters Dukes and Concepcion created for Rule 23 cases and workplace class arbitration.
The report makes clear that 2011 workplace collective filings rose on nearly every front, from Fair Labor Standards Act and Employee Retirement Income Security Act (ERISA) claims to government enforcement actions, even as other prime litigation theaters such as shareholder and securities actions were largely static. The Equal Employment Opportunity Commission (EEOC) set a new record with nearly 100,000 new discrimination filings against private-sector employers—an expression, the report notes, of challenging economic conditions as well as the Obama Administration's emphasis on aggressive enforcement.
The uncertain economic climate continues to spur ERISA class actions seeking recovery of 401(k) losses. As ERISA cases grow in size and complexity, they are driving a trend toward substantially higher settlement figures. At the same time, the plaintiffs' bar in ERISA cases is also bumping up against questions over whether and how they can meet class certification requirements, which could make certification of ERISA claims more difficult in the year ahead.
Seyfarth notes the Supreme Court's decision in Wal-Mart Stores v. Dukes, handed down last June (see Dukes v. Wal-Mart Plaintiffs Refile Bias Case), has already been cited more than 260 times in federal and state court opinions, and AT&T Mobility v. Concepcion 215 times. Dukes, which established a new standard for certifying class actions, and Concepcion, which held that federal arbitration law supersedes limitations imposed by individual states, opened the floodgates to a wave a new case law in class actions, which will continue to evolve in the coming year and impact litigants for years to come, Seyfarth said.
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