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EMPLOYMENT PRACTICES LIABILITY CONSULTANT
Seyfarth Shaw Workplace Class Action Litigation Report
for 2018
By Bob Bregman, CPCU, MLIS, RPLU, and Sean Jordan, CPCU, MLIS
For the eighth consecutive year, we are Gerald L. Maatman Jr., a partner with
pleased to offer a short summary of (now in Seyfarth Shaw LLP, compiles and edits the
its 14th edition) Seyfarth Shaw’s Workplace Report. Mr. Maatman’s practice focuses on
Class Action Litigation Report 2018. (Read defending employers involved in employment-
the 2017, 2016, 2015, 2014, 2013, 2012, and related class actions and in Equal Employ-
2011 overviews.) ment Opportunity Commission (EEOC) pat-
The Report is a must-have resource for legal tern or practice cases. He is co-chair of the
research and in-depth analysis of employment- firm’s Class Action Defense Group and
related class action litigation. Anyone who authors the firm’s class action blog. Mr.
practices in this area, whether as a corporate Maatman pioneered the process of conducting
counsel, a private attorney, a business execu- employment practices audits to assist em-
tive, a risk manager, an underwriter, a consul- ployers in structuring effective and practical
tant, or a broker, cannot afford to be without personnel policies and protocols. His work in
it. Importantly, the Report is the only publica- this area has been profiled in the Wall Street
tion of its kind in the United States. It is the Journal, the Economist, and Time magazine.
sole compendium that analyzes workplace He was selected for 2 years running by
class actions from “A to Z.” Adding to its utility Law360 as one of the top 4 employment law-
is the fact that the 2018 edition of the Report is yers in the United States.
also available as an e-book. (Previously, it was
published solely as a hard-bound volume or in A Brief Overview of What’s Inside
CD format.) In short, it is “the bible” for class
action legal practitioners, corporate counsel, The encyclopedic, 861-page 2018 annual
employment practices liability insurers, and Workplace Class Action Litigation Report in-
anyone who works in related areas. sightfully examines and analyzes a total of
This article appeared in the Spring 2018 issue of EPLiC. Copyright 2018 by International Risk Management Institute, Inc.,
12222 Merit Dr., Suite 1600, Dallas, Texas 75251–2266, 972–960–7693, http://www.IRMI.com. All rights reserved. ISSN:
1529–840X. This material may be quoted or reproduced only with written permission from the publisher. The opinions ex-
pressed in EPLiC are those of the individual authors. Nothing published in EPLiC is to be construed as legal, accounting, or
professional advice. If such advice is required, the services of a competent professional should be sought.
11,408 class action case decisions. In addition, all ♣ Significant State Law Class Action
of the federal cases examined in the Report are Rulings. These rulings are significant
indexed by federal circuit—an invaluable fea- because, during the past several years,
ture that further enhances the report’s utility. plaintiffs’ attorneys have been increas-
The following is a synopsis of the 14th annu- ingly resorting to state courts as a forum
al Workplace Class Action Litigation Report. for pursuing employment-related class
action litigation.
♣ Overview of the Year in Workplace
Class Action Litigation. This section ♣ Rulings on the Class Action Fairness
summarizes the key legal and procedural Act (CAFA). This law facilitates removal
trends that emerged in 2017, addresses of class actions from state court to federal
key developments in workplace class ac- court. In addition, the CAFA regulates the
tion litigation in 2017, and assesses the selection of class counsel, tightens control
implications these developments will of attorneys’ fees awarded to class counsel,
have on litigation in 2018. toughens pleading standards, reduces the
ability of class counsel to dictate the choice
♣ Significant Class Action Settlements
of forum, facilitates interlocutory appeals
in 2017. This section lists the top 10 settle-
of class certification rulings, and regulates
ments in (a) private plaintiff employment
settlements of class actions. Given these
discrimination lawsuits, (b) private plain-
profound effects on underlying case strate-
tiff wage and hour class actions, (c) private
gy and the structuring of class actions, the
plaintiff Employee Retirement Income
annual Workplace Class Action Litigation
Security Act (ERISA) of 1974 actions, (d)
Report analyzes CAFA-related cases.
government-initiated enforcement actions
and pattern or practice suits, and (e) the ♣ Other Federal Rulings Affecting the
top 10 injunctive relief rulings issued by Defense of Workplace Class Action Lit-
various courts that were a part of certain igation. Throughout 2017, federal courts
class action settlements. Items (a), (b), (c), issued key rulings in class action lawsuits
and (d) are reproduced later in this article. on Rule 23 issues, which significantly im-
pact the defense of workplace actions. As
♣ Significant Federal Employment
the plaintiffs’ class action bar has pressed
Discrimination Class Action and
new theories, and the nature of claim alle-
EEOC Pattern or Practice Rulings.
gations continues to morph, these rulings
This section of the Report analyzes dis-
are important in formulating effective de-
crimination class action cases brought
fense strategies for workplace class actions.
under (a) Title VII of the Civil Rights Act
of 1964 and (b) “pattern or practice” en-
forcement actions brought by the EEOC.
To obtain a free copy of
♣ Significant Collective Action Rulings
under the Age Discrimination in THE SEYFARTH SHAW
Employment Act (ADEA), the Fair ANNUAL WORKPLACE CLASS ACTION
Labor Standards Act (FLSA), and LITIGATION REPORT
ERISA. Cases brought under these feder- 2018 Edition
al statutes constitute a substantial por- Send an email to:
tion of all employment-related class action gmaatman@seyfarth.com
litigation. Therefore, court interpreta-
tions of these statutes are important for Check out Seyfarth Shaw’s
future cases and understanding corporate Class Action Blog
risks on the workplace front.
2AGGREGATE SETTLEMENT AMOUNTS
$3B
$2B
2.48 2.72
$1B 1.85 1.75 Billion
Billion
Billion Billion
$0B
2014 2015 2016 2017
SETTLEMENT AMOUNTS BY CLASS ACTION TYPE
Employment
Discrimination 293.5M
Wage & Hour 525M
ERISA 927.8M
Statutory 487.28M
Government
Enforcement 485.25M
$0 $250 $500 $750 $1,000
Dollars in Millions (M)
2017 CERTIFICATION MOTIONS FOR EMPLOYMENT
DISCRIMINATION, FLSA, AND ERISA
100%
75%
50%
73% 77%
64% Granted
Granted
25% Granted 36% 27% 23%
Denied Denied Denied
0%
Employment Discrimination FLSA ERISA
3The following sections highlight some of the in opposing class action certifica-
Report’s most noteworthy contents. tion requests. Plaintiffs’ lawyers con-
tinue to craft refined class certification
Four Key Trends in Workplace Class theories to counter the stringent Rule 23
Actions during 2017 certification requirements established in
Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
The Report notes four important develop- 338 (2011). As a result, in the areas of
ments in class actions during 2017. They are employment discrimination and ERISA
as follows. class actions, the plaintiffs’ bar scored
well in securing class certification rul-
1. The monetary value of the top work- ings in federal courts in 2017 (over com-
place class action settlements rose parative figures for 2016). Class actions
dramatically in 2017. These numbers were certified in significant numbers in
increased over past years, even after they “magnet” jurisdictions that continued to
had reached all-time highs in 2014 to issue decisions that encourage—or in
2016. The plaintiffs’ employment class ac- effect force—the resolution of large num-
tion bar and governmental enforcement bers of claims through class-wide mecha-
litigators were exceedingly successful in nisms. Yet, while a significant volume of
monetizing their case filings into large wage and hour certification decisions in
class action settlements, and they did so 2017 increased as compared to last year,
at decidedly higher values than in previ- employers actually fared better in liti-
ous years, as the graphics show. The top gating those class certification motions
10 settlements in various employment- in federal court than last year. Of the
related class action categories totaled 257 wage and hour certification deci-
$2.72 billion in 2017, an increase of over sions in 2017, plaintiffs won 170 of 233
$970 million from $1.75 billion in 2016. conditional certification rulings (approx-
Furthermore, settlements of employment imately 73 percent) but lost 15 of 24 de-
discrimination class actions experienced certification rulings (approximately 63
more than a three-fold increase in value; percent). By way of comparison, there
statutory workplace class actions saw were 224 wage and hour certification de-
nearly a five-fold increase; and govern- cisions in 2016 where plaintiffs won 147
ment enforcement litigation registered of 195 conditional certification rulings
nearly a ten-fold increase. (approximately 76 percent) and lost 13 of
29 decertification rulings (approximately
Whether this is the beginning of a long- 45 percent). In sum, employers beat
range trend or a short-term aberration re- slightly more first-stage conditional cer-
mains to be seen as 2018 unfolds. But the tification motions in 2017 and dramati-
determinative markers suggest that this cally increased their odds—a jump of 18
upward trend will rise further in 2018, at percent—of fracturing cases with suc-
least insofar as private plaintiff class ac- cessful decertification motions.
tions are concerned.
Note: Rule 23 governs class actions in
2. While federal and state courts is- federal courts, typically involving law-
sued many favorable class certifica- suits affecting potential class members in
tion rulings for the plaintiffs’ bar in different states or that have a connection
2017, evolving case law precedents with federal law. A detailed explanation
and new defense approaches result- appears on page iii of the annual Work-
ed in better outcomes for employers place Class Action Litigation Report.
43. Filings and settlements of govern- policy-makers remained in their positions
ment enforcement litigation in 2017 long enough to continue their enforce-
did not reflect what some expected ment efforts before being replaced in the
to be a head-snapping pivot from the last half of 2017. This trend is critical to
pro-worker outlook of the Obama ad- employers, as both the Department of
ministration to a pro-business view- Labor (DOL) and the EEOC have had a
point of the Trump administration. focus on the “big impact” lawsuits against
Instead, as compared to 2016, govern- companies and “lead by example” in
ment enforcement litigation actually in- terms of areas that the private plaintiffs’
creased in 2017. As an example, the bar aims to pursue.
EEOC alone brought 194 lawsuits in
2017 as compared to 86 lawsuits in 2016. As 2018 opens, it appears that the content
Further, the settlement value of the top and scope of enforcement litigation under-
10 settlements in government enforce- taken by the DOL and the EEOC in the
ment cases jumped dramatically—from Trump administration will tilt away from
$52.3 million in 2016 to $485.25 million the pro-employee/anti-big business mind-
in 2017. The explanations for this phe- set of the previous administration. Trump
nomenon are wide and varied and include appointees at the DOL and the EEOC are
the time lag between Obama-appointed slowly but surely “peeling back” on posi-
enforcement personnel vacating their of- tions previously advocated under the
fices and Trump-appointed personnel Obama administration. As a result, it ap-
taking charge of agency decision-making pears inevitable that the volume of gov-
power; the number of lawsuits “in the ernment enforcement litigation and value
pipeline” that were filed during the of settlement numbers from those cases
Obama administration that came to con- will decrease in 2018. The ultimate effect,
clusion in the past year; and the “hold- however, may well prompt the private
over” effect, whereby Obama-appointed plaintiffs’ class action bar to “fill the void”
VALUE OF TOP 10 GOVERNMENT ENFORCEMENT
LITIGATION SETTLEMENTS
$500M
$485.25M
$400M
$300M
$262.78M
$200M $171.6M
$100M $61.31M $82.8M
$65.08M $39.45M $52.3M
$0M
2010 2011 2012 2013 2014 2015 2016 2017
5and expand the volume of workplace litiga- the legality of workplace arbitration
tion pursued against employers over the agreements with class action waivers.
coming year as the DOL and the EEOC ad- The ruling expected in the Epic System,
just their litigation enforcement activities. Murphy Oil, and E&Y cases in 2018 may
well change the class action field in
4. Class action litigation increasingly profound ways. Coupled with the ap-
has been shaped and influenced by pointment of Justice Neil Gorsuch in
recent rulings of the US Supreme 2017 and potential additional appoint-
Court. Over the past several years, the ment to the Supreme Court by President
US Supreme Court has accepted more Trump in 2018 and beyond, litigation
cases for review—and issued more rul- dynamics may well be reshaped in ways
ings—that have impacted the prosecu- that further change the playbook for
tion and defense of class actions and gov- prosecuting and defending class actions.
ernment enforcement litigation. The past A thorough, in-depth analysis of these
year continued that trend, with several trends appears within the Report.
key decisions on complex employment lit-
igation and class action issues that were
arguably more pro-business than deci- Top 10 Settlements in Private Plaintiff
sions in past years. More cases also were Employment Discrimination
accepted for review in 2017 that are posi- Class Action Lawsuits
tioned for rulings in 2018, including
what may be the most high-stakes issue The monetary value of the top 10 private
impacting employers since the Wal-Mart plaintiff lawsuits entered into or paid in 2017
ruling in 2011—the Epic System, totaled $293.5 million, which represents a
Murphy Oil, and E&Y trilogy of cases on nearly four-fold increase from 2016, during
VALUE OF TOP 10 EMPLOYMENT DISCRIMINATION
CLASS ACTION SETTLEMENTS
$400M
$346.4M
$295.57M $293.5M
$300M
$234.1M
$200M
$227.93M
$123.2M
$100M
$48.65M $79.81M
$0M
2010 2011 2012 2013 2014 2015 2016 2017
6which the total was $79.81 million. The totals the 2 preceding years, which totaled $463.6
for the 3 years prior to 2016 were $295.57 million in 2015 and $215 million in 2014.
million (2015), $227.93 million (2014), and
$234.1 million (2013).
# Amount Defendant
# Amount Defendant 1. $227 million FedEx Ground Package
System, Inc.
1. $90 million Twenty-First Century
Fox, Inc. 2. $110 million American Commercial
Security
2. $45 million Family Dollar Stores,
Inc. 3. $61.69 million The City of Dallas
Texas
3. $35.5 million Wells Fargo Advisors,
LLC 4. $27 million Lyft, Inc.
4. $32.5 million Metropolitan Life 5. $21 million U.S. Security Associates
Insurance Co.
6. $19.1 million Carlson Restaurants,
5. $24 million US Department of Inc.
Homeland Security
7. $16.7 million JP Morgan Chase & Co.
6. $20 million US Department of
8. $16 million PNC Bank, N.A.
Justice
9. $13.5 million Duane Reade, Inc.
7. $19.5 million Qualcomm Inc.
10. $13 million Wells Fargo
8. $13 million State of Washington
9. $7.5 million Wal-Mart Stores, Inc.
Top 10 Settlements in Private Plaintiff
10. $6.5 million Washington ERISA Class Actions
Metropolitan Area
Transit Authority
For ERISA class actions, the monetary
value of the top 10 private settlements en-
tered into or paid in 2017 totaled $927.8 mil-
Top 10 Settlements in Private Plaintiff lion. This amount represents a noteworthy
Wage and Hour Class Action Lawsuits increase from 2016, when the total monetary
value of the top 10 private settlements was
The monetary value of the top 10 private $807.4 million.
plaintiff wage and hour class action settle- The largest ERISA class action settle-
ments entered into or paid in 2017 was ments involved disputes over treating pen-
$574.49 million. This represents a decrease sion plans as “church plans” (i.e., ERISA-
from the value of the top settlements in 2016, exempt plans), breaches of fiduciary duty,
which totaled $695.5 million. At the same failures to make required contributions into
time, the overall value of the top 10 wage and retirement funds, and various theories of
hour settlements had higher values than in mismanagement.
7VALUE OF TOP 10 ERISA CLASS ACTION SETTLEMENTS
$1.4B $1.31B
$1.2B
$1B $927.8M
$898.95M
$800M $926.5M
$807.4M
$600M
$400M $424.4M
$237M
$200M
$155.6M
$0M
2010 2011 2012 2013 2014 2015 2016 2017
Top 10 Settlements of Government-
# Amount Defendant Initiated Enforcement Actions and
Pattern or Practice Lawsuits
1. $352 million Providence Health &
Services
In 2017, the EEOC and the US DOL contin-
2. $125 million Franciscan Missionaries ued their previous pattern of aggressively liti-
of Our Lady Health gating government enforcement actions, albeit
Systems with mixed results.
Based on figures for the US government’s
3. $98.3 million Bon Secours Health 2017 fiscal year, the EEOC filed 184 new merits
System, Inc. lawsuits, including 30 nonsystemic multi-party
suits (i.e., those involving fewer than 20
4. $75 million Trinity Health Corp. employee-plaintiffs) and 30 systemic lawsuits
(i.e., those involving 20 or more employee-
5. $75 million Peabody Energy Corp.
plaintiffs). The 30 systemic lawsuits represent-
6. $75 million J.P. Morgan Chase & ed a sizable jump over prior years, as the EEOC
Co. filed 18 such cases in 2016 and 16 such cases in
2015. In 2017, the EEOC increased the number
7. $42 million St. Joseph’s Hospital & of charges resolved to 99,109 charges, up slight-
Medical Center ly from the 97,443 in 2016. Furthermore, the
EEOC reported that it recovered approximately
8. $31 million Holy Cross Hospital $38.4 million in relief for victims of systemic
discrimination, up from $20.5 million in 2016.
9. $29.5 million Wheaton Franciscan
In addition, the EEOC obtained $484 million in
10. $25 million Merrill Lynch, Pierce, total recoveries through mediation, conciliation,
Fenner & Smith, Inc. and settlements, a slight increase from the
$482 million it collected in 2016.
8VALUE OF TOP 10 GOVERNMENT ENFORCEMENT
LITIGATION SETTLEMENTS
$500M
$485.25M
$400M
$300M $262.78M
$200M $171.6M
$100M $61.31M $82.8M
$65.08M $52.3M
$0M $39.45M
2010 2011 2012 2013 2014 2015 2016 2017
For all types of government-initiated en- And this Is Just the Tip of the Iceberg
forcement actions, the monetary value of the
top 10 settlements entered into or paid in This article has provided only a brief sample
2017 totaled $485.25 million. This represents of the depth and breadth of the information
a major increase from 2016, when the total this authoritative, comprehensive report con-
was $52.3 million. tains. No practitioner who deals with employ-
ment claims, whether as an underwriter, bro-
# Amount Defendant ker, risk manager, consultant, or attorney,
should be without it. Even better, the Seyfarth
1. $300 million Avaya, Inc. Shaw annual Workplace Class Action Litiga-
tion Report, 2018 edition, is free!
2. $95 million Asplundh Tree Expert Co.
3. $21.6 million VIUSA, Inc.
To obtain a free copy of
4. $15.75 First Bankers Trust
THE SEYFARTH SHAW
million Services, Inc.
ANNUAL WORKPLACE CLASS ACTION
5. $12 million Texas Roadhouse, Inc. LITIGATION REPORT
2018 Edition
6. $10.5 million Bass Pro Outdoor World,
LLC Send an email to:
gmaatman@seyfarth.com
7. $10.1 million Ford Motor Company
Check out Seyfarth Shaw’s
8. $9.8 million American Airlines, Inc. Class Action Blog
9. $5.5 million Ginsberg
10. $5 million State Street Corp.
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