From a stunning, billion-dollar fall in settlement values to the Me Too movement to high-impact Supreme Court rulings, 2018 brought a flood of unprecedented change to the workplace class action landscape.
The uncertainty of a new administration that plagued 2017 failed to materialize in 2018, with EEOC filings and litigation unexpectedly increasing, even as overall settlements dropped. Fueled by key Supreme Court rulings and the Me Too movement, 2019 is likely to present employers with more complex challenges than ever before.
For the past 15 years, Seyfarth’s Workplace Class Action Litigation Report has helped corporate employers navigate this increasingly volatile landscape.
5 Key Trends in Class Action Litigation
As predicted in Seyfarth’s 2018 Report, the U.S. Supreme Court continued to play an unusually active role in reshaping employment law and class action dynamics. The Epic Systems ruling, which upheld the legality of class action waivers in mandatory arbitration agreements, marks the most important SCOTUS decision for employers in nearly two decades. Following the appointments of Justices Neil Gorsuch and Brett Kavanaugh, the class action playing field for employers may shift even further in 2019.
For the first time in the report’s 15-year history, the plaintiffs’ bar posted a record high certification success rate in 2018 of 79% in the largest category of workplace litigation of wage & hour litigation. Employer efforts to successfully decertify these cases also dropped by 11% as employers won only 52% of “second stage” decertification rulings, down from 63% in 2017.
enforcement up, values down
Despite the transition to a more business-friendly Trump Administration, government enforcement litigation rose again to a new three-year high in 2018. The EEOC filed 199 lawsuits last year, up from 184 in 2017, but the value of the top government settlements cratered, dropping from $485.25 million in 2017 to $126.7 million in 2018.
After reaching an all-time record high of $2.72 billion in 2017, the monetary value of the top workplace class action settlements decreased by more than 50% in 2018. Settlements sank to a five-year low of $1.32 billion in 2018, experiencing a record one-year drop of $1.4 billion. Even with a better success rate in 2018, settlements shrank across the board as plaintiffs failed to monetize class action victories at the same rate as 2017.
the me too effect
2018 offered the first annual look at the Me Too movement’s impact on workplace litigation; in particular, 74% of the EEOC’s Title VII filings targeted sex-based discrimination, up from 65% in 2017. Also rising were the EEOC’s 2018 sex discrimination lawsuits including claims of sexual harassment, which grew to 41 lawsuits, up from 33 in 2017.
A Look Ahead
Seyfarth partner Gerald Maatman reviews the key findings in workplace class action litigation for 2018, plus a look what employers can expect in 2019.
This report represents the collective contributions of a significant number of our colleagues at Seyfarth Shaw LLP. We wish to thank and acknowledge those contributions by:
About the Practice
Clients turn to Seyfarth Shaw to defend class cases in jurisdictions across the country under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, wage-and-hour statutes and ERISA, as well as in numerous pattern and practice suits brought by the Equal Employment Opportunity Commission.
Our extensive experience enables us to begin work on these cases at an advanced level. Having defended hundreds of such cases, we already know the substantive law and can therefore focus immediately on procedural issues and other strategies. We frequently prevail in blocking or containing class certification, and through offensive strategies such as counterclaims and early dispositive motions.