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In pursuit of this goal, we’ve prepared you a video titled “The 4 Necessary Elements To A Class Action Certification,” which is accessible through the link provided at the end of this blog. By way of backdrop, we found it essential to prepare this video and keep you enlightened because, while they are not very common today, Class Action litigations are real cash cows for attorneys and certainly, should be on every employer’s radar as they can cause some substantial havoc for employers.

In order to get a wind of what this is all about, let’s start with the example of a standard employee claim which you have certainly seen as a class action at some point in your life.

A Typical Class Action Claim.

So, an employee gives you a call and seeks to sue their employer for having been discriminated against or not paid overtime. In this case, it’s common sense for the attorney to inquire that there might be some other employees who might also be having similar issues with the employer. Thus, smelling fresh blood in the water, the attorney decides to be sneaky so as to make a killing. While they don’t work for free, attorneys love class actions because they involve increased load work (paperwork and filing) and, ultimately, higher statutory fees, damages, and penalties. This turns out to be a real cash cow for any attorney. Furthermore, there are firms out there that have standardized documents to file frivolous claims against employers, readily present in their system, then there’s no work to do because they’ve done this recurrently and, thus, all they need to do is to look for a quick and easy settlement. Nonetheless, there are going to be those clients who aggressively want to challenge Class Actions, and while it will be a little more expensive, there is certainly some value for employers to aggressively posture against this nonsense, and expose those trolls as being full of crap.

That being said, let’s dive right in and power through this stuff.

So, What’s a Class Action Litigation?

A Class Action lawsuit is a lawsuit in which an individual representative bring a suit on behalf of themselves, and also on behalf of the purported “class.” Legally, that class has to be defined, numerous, specified and should have common claims and defenses as much as possible. An example of such a class definition would be in excess of 40 employees, employed as waiters at XYZ restaurant and who are non-exempt. In New York, non-exempt pay, wage & hour matters are usually referenced to two statutes; the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL).

How Do You or Your Attorney Defend Against Class Actions?

Off the bat, if you are the attorney on the defense side, one of the things you want to do is to hit the nail on the head upfront. This means that if you want to defend your views, then you got to do it heads on and convince everyone what is and what is not a proper Class Action certification. This is because, once you take away the possibility of certification, the other attorney loses their possibility for making money and that’s nice because no attorney would want to work for free and, thus, they just give up on the litigation. Well, it might be a little more expensive on the defense side, but at the end of the day, but the knock out is tremendous!

What’s Classified and Certified as a Class Action?

In order for a litigation to be classified and certified (gets a court approval) it must have the following elements in pursuant to Rule 23(a):

Numerosity. The purported class must be numerous. While it should be something like 40-50 people, a “joinder” wouldn’t make sense. In New York, a class of 25 would sound fishy and insufficient, above 25 would be just okay, between 25 and 40 would be feasible for certification, and more than 40 would be certified for class certification;

Commonality. The questions of law and fact must be common to the entire class (i.e. Similarly Situated). This means that, for instance, all have to be non-exempt employees who claim to have been deprive of their overtime payment or have been discriminated against. This element enhances the collectivity of the class.

Typicality. The claims and defenses of the purported representative must be typical to the class. This is self-explanatory and means that the claims and defenses the person acting as representative of the class in the Class Action must be typical and precisely similar to those of the class they are representing. Thus, if this purported representative says that overtime was not paid, then the class has to go along with that lullaby.

Adequacy. The purported representative is expected and obligated to fairly and adequately represent the interests of the class. This implies that individual acting as the representative has to champion the interests and affairs of the class. They should not have a separate set of claims that they intend to use for gains, interests, and benefits other than those of the class. Theoretically, there should not be a conflict as well. For instance, a manager cannot be a representative of the subordinates they usually control.

What is important to realize is just how important it is to understand the circuit in which you are litigating. The circuit that you are in significantly influences situations where you get hung up in these cases. For starters, if it goes into the FLSA, then it’s a federal case, again, the federal courts would have to listen to state court claims. For instance, you could get caught up in the second circuit that has New York and Connecticut, but not in another.

We invite you to review our video at https://www.youtube.com/watch?v=M9kpwIpMLT4

In our second video in this series, we’ll look into the steps you can use to challenge a Class Action Litigation. Stay tuned, we now have a date!! In the interim, if there are any questions or comments, please reach out to our website and let us know at the Contact Us page!