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Men with briefcases. REUTERS Mike Segar

Despite Wal-Mart, work class actions to rise in 2013 - report

1/14/2013 COMMENTS (0)

By Brendan O'Brien

Jan 14 (Reuters) - While the U.S. Supreme Court's landmark Wal-Mart ruling caused a contraction in private workplace class action litigation last year, employers should expect a resurgence in 2013, as plaintiffs' lawyers "reboot" their legal theories.

That was one of the conclusions of an annual report on workplace class action litigation released on Monday by the law firm Seyfarth Shaw, which represents employers in labor cases.

Plaintiffs' lawyers will focus on smaller cases as opposed to nationwide mega-class cases, the report said. In terms of certification, they will pursue hybrid class theories seeking both injunctive relief and monetary relief, as well as a range of other theories, it said.

In June 2011, the Supreme Court threw out a class action case against Wal-Mart Inc involving more than 1 million female employees nationwide. The ruling made it more difficult for plaintiffs to meet a requirement that members of a class have circumstances in common.

As a result, the number and value of private workplace class action settlements have fallen significantly. Last year, the top 10 settlements had a combined value of just $45 million, down from $346 million in 2011, the report said.

"If a case was worth a dollar before the Wal-Mart decision, it's probably worth a quarter today," said Gerald Maatman, the report's general editor.

While private class actions declined, government enforcement litigation by the Equal Employment Opportunities Commission reached "white hot" levels in 2012, an inevitable byproduct of high unemployment rates, the report said.

Employers can expect a "significant jump" in the coming year as EEOC charges brought in 2011 and 2012, which hit record levels, become ripe for initiation of lawsuits in 2013.

"In 2013, you are going to see blockbuster settlements and you are going to see blockbuster lawsuits being brought by the EEOC," Maatman said.

The report also predicted that there was no end in sight for a "deluge" of wage-and-hour filings under the Fair Labor Standards Act.

The 870-page report summarizes 1,059 workplace class action rulings in 2012. The report found differences among judges around the country in their willingness to create exemptions to the Wal-Mart ruling. It said courts in San Francisco and the Southern District of New York, for example, have become "litigation magnets," with judges more willing to create exemptions than in other parts of the country, where there is a broader interpretation of the Wal-Mart ruling.

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