As the authoritative force in Employment and Labor Law today, we have, here at Miletti Law®, committed to creating enlightening and educative content, which aims to keep you, our unusually motivated® readers, #InTheKnow about issues that affect you and/or your businesses. Usually, the content features as videos that are posted on our YouTube Channel https://www.youtube.com/channel/UCtvUryqkkMAJLwrLu2BBt6w and blogs that are published on our website WWW.MILETTILAW.COM.

As you are aware, some of our blogs are usually adapted from the videos created by our one and only Vinny Miletti, the lead partner/founder/owner of Miletti Law® and the most #UnusuallyMotivated Attorney in NYC. Last week, we created a video titled “The 4 Necessary Elements To A Class Action Certification,” and which has already been adapted to a blog. Following some emerging issues, we’ve created another related video titled “The Top 4 Ways To Strike Down Class Certification (Wage & Hour).” In the previous video, we mentioned that 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 wreck substantial havoc for employers. Key to that video, we discussed the 4 elements, pursuant of Rule 23(a), which are required for a Class Action certification. These elements include Numerosity, Commonality, Typicality, and Adequacy.

In the current video, which is accessible through the link provided at the end of this blog, we aim to provide you, as an employer, with a hands-on guide on how to challenge, successfully and with minimal risk, a group’s attempt to have a Class Action certification. As we highlighted in the previous video, it is important to understand the circuit in which you are litigating. As a preliminary matter, each Federal Circuit is different. For instance, the 2nd Circuit, which encompasses New York and Connecticut, treats class action litigation matters very differently as compared to the 3rd Circuit, which encompasses Illinois. In short, each Judicial Circuit has its own rules and regulations, which significantly influence situations where you get hung up in such litigations.

Because of such technicalities, it’s crucial that you seek the guidance and counsel of your attorney (we encourage you to trust our own Vinny Miletti with this), who’d help you circumvent and navigate through nuances that come about with these litigations. With that in mind, you can attack a class action certification on the front end through a strategy known as “a motion to strike.” In this case, you file for “a motion to strike” at any point, let’s say either with the answer or subsequent to the answer (our most #UnusuallyMotivatedAttorneyNYC, Vinny Miletti, would prefer the answer and have everything as a package).

Back to the day’s business, we the 4 ways through which you can strike down class action certification. It’s critical to understand that basically, you challenge them in a similar fashion as you introduce them. You should bear in mind the manner in which the four elements of a class action certification we discussed in the previous video are introduced. The four elements are the challenges while the 4 ways/techniques are the solution. They give you the “headache,” but you’ve got the “painkiller.” That being said, while heavily influenced by the Judicial Circuit (2nd Circuit is very difficult), the top 4 Ways To Strike Down Class Certification Are:

Challenge the “Numerosity” Requirement

In order for a class action certification to be issued, the “Numerosity” requirement should be met. However, each jurisdiction is different. For instance, if you’re litigating on the 2nd Circuit, a class of 25 plaintiffs 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. In this case, your defense attorney should challenge these numbers and, just maybe, you can be lucky. However, if the number of plaintiffs is more than 40, there’s nothing more you can do but to save your energy and challenge the second element.

Challenge the Commonality Requirement

As we mentioned in the previous video, the element of “Commonality” implies that the questions of law and fact must be common to the entire class (i.e. Similarly Situated). Here, the focus should be on “similarly situated class members.” For example, let’s say that the alleged accusation facing you in this class action is discrimination against African Americans in your workplace. For the commonality rule to hold, all the members of the class, including their representative, should be African Americans purporting to have been discriminated against on the same issue, let’s say their color. If a member in the class says that they were discriminated against based on their age, them the commonality rule does not hold.

Challenge the “Typicality” of the Plaintiff’s Claims

In order for the “Typicality” rule to hold, the claims and defenses of the purported representative must be typical to the class and, therefore, the focus of your defense attorney. Using the same example of discrimination, this rule would hold only if the representative is an African American who claims to have been discriminated against on the basis of color. These claims should be typical of the entire class. For a defense attorney, your task should include establishing that not all members are African Americans or some of them claim to have not been discriminated against color. However, the court reserves the discretion to dismantle the class or modify it to qualify for the typicality rule.

Challenge the “Adequacy” of the Representative Plaintiff’s Representation of the Class

Finally, you need to challenge the “Adequacy” requirement. In the previous video, we mentioned that for this rule to hold, 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. Let’s use a wage and hour claim as an example. Bob is a non-exempt employee at his company. At some point, Bob is promoted a managerial rank and, thus, become an exempt employee. After 3 years working as a manager, employs other non-exempt people. Before Bob, these individuals end up becoming exempt at some point in their career. However, after problems with wage and hour arise, Bob want to represent all employees from six years prior in a class action litigation. The problem here is that Bob is representing employees who do not meet the “Adequacy” requirement for that class because they aren’t non-exempt for the past six years. It would be simple for the defense attorney to determine that Bob is no longer adequate and, therefore, challenge the adequacy of the representative plaintiff’s representation of the class.

At the end of the day, class actions are not for the plaintiffs and the courts don’t want to be bothered. To a larger extent, courts dictate the flow and management of litigations involving class actions because they need what’s known as judicial efficacy. Frankly speaking, courts don’t want frivolous lawsuits that tend to waste judges’ time and state resources.

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

Stay tuned for the next installment and always be #UnusuallyMotivated. In the interim, if there are any questions or comments, please let us know at the Contact Us page!