Duane Morris Class Action Review - 2023 - Report - Page 23
These numbers no doubt flow from the different standards by which courts in different
circuits evaluate motions for conditional certification and decertification and, in turn, the
likelihood of plaintiffs’ success on such motions in these areas. Various factors
discussed in this Review could impact these trends in 2023. If, for instance, the Sixth
Circuit joins the Fifth Circuit in abandoning the two-step certification process, and
thereby increases the time and expense of gaining a conditional certification order, it
may lead to a reshuffling of the deck in terms of where plaintiffs seek to pursue cases.
Trend # 5 – Government Enforcement In 2022 Took A Back Seat
Over the past year, the Biden Administration continued to roll out changes on several
fronts as it aimed to expand the rights, remedies, and procedural avenues available to
workers. During 2022, such efforts fueled litigation. With its decision in West Virginia v.
Environmental Protection Agency, 142 S.Ct. 2587 (2022), the U.S. Supreme Court
imposed another hurdle to agency rule-making. Meanwhile, government enforcement
litigation activity took a back seat.
Over the past two years, the U.S. Department of Labor, in particular, has continued to
roll out worker-friendly rules that could have a cascading impact on workplace class
actions, including rules designed to wipe out the pro-business policies of the Trump
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© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023