How can an employer-defendant defeat a FLSA class action?

That is the timeless question a defendant’s counsel asks himself when faced with the specter of a FLSA collective action. To this end, I recently read a post in Employment Law360 where practitioners opined on these methods.

Dig Into the Merits Early 

In days gone by, a defendant would focus on staving off or defeating the motion for conditional certification and would perhaps relegate merits based analysis to the second tier of the case. Now, with the blurring lines between merit based and procedural discovery, if a prompt and accurate assessment of the facts shows that some/many/all of the claims rest on faulty theories, perhaps a motion on the pleadings or early summary judgment motion is doable.

Seek Out Individual Differences 

I always pray at the altar of “individualization” because such a defense dooms the class action. The employer must be arguing that individual differences between putative class members makes the entire premise of a “class” untenable. If the court concludes it has to conduct a mini-trial for each opt-in or putative plaintiff, that totally undermines the validity of the proposed class action.

Stay on Top of Evolving Case Law

The pendulum is swinging towards defendants on a number of crucial issues pertaining to certification. Lawyers should always be citing the most current developing law, especially cases clarifying or interpreting major Supreme Court cases. This includes staying abreast of pending cases if they could be useful, as well as scanning similar lawsuits in the particular industry that may also provide unique guidance (and tactics).

Don’t Underestimate Seemingly Minor Defenses

In the state law, Rule 23 action that invariably accompanies the FLSA collective suit, employers often don’t put a lot of effort into disputing, for example, the adequacy of the class representative or numerosity of the proposed class. Don’t take those factors for granted. You don’t know what when these “side issues” turn into winning arguments.

Make Use of Expert Witnesses

Think about using experts, even at this early stage of the litigation. One size does not fit all. Experts do not have to be used “just” for the merits, but may lend a hand in fighting the class certification bid.

The Lesson

Start perhaps by focusing on the individualization issue/defense, but all of these tactics can and should be used. They work!!!