Representing multiple plaintiffs
Author | Cathy Ventrell-Monsees |
Pages | 479-514 |
REPRESENTING
MULTIPLE PLAINTIFFS
9-1
CHAPTER 9
REPRESENTING MULTIPLE PLAINTIFFS
I. GOVERNING PRINCIPLES
§9:10 Introduction to ADEA Collective Actions
§9:10.10 Governing Statutory Provision — FLSA 216(b)
§9:10.20 Most Courts Reject Applying Wal-Mart v. Dukes to Collective Actions
§9:20 Advantages and Disadvantages of Multiple Representation
§9:20.10 Advantages
§9:20.20 Disadvantages
§9:20.30 Limiting Representation to Administrative Stage
§9:20.40 Associating With Co-Counsel
§9:30 Identifying Potential Plaintiffs
§9:30.10 Consider the Impact of Releases
§9:30.20 OWBPA Eligible and Ineligible Employee List
§9:30.30 OWBPA as Tool to Challenge Releases
§9:40 Cases Combining ADEA and Other Claims
§9:50 Statute of Limitations Issues
II. ADMINISTRATIVE PROCESS
§9:60 Introduction
§9:70 Contents of Charge
§9:70.10 Class-Wide Claims
§9:80 Who Should File EEOC Charge?
§9:80.10 Named Plaintiffs
§9:80.20 Opt-In Plaintiffs: Single Filing Rule
§9:80.20.10 Piggybacking Allowed
§9:80.20.20 Piggybacking Not Allowed
§9:80.20.30 Opt-In’s Claim Must Fall Within Time Period
§9:80.20.40 Charge Must Give Notice of Potential Class Claims
§9:90 Effect of EEOC Treatment of Charge
III. COMPLAINT
§9:100 Designating Named Plaintiffs
§9:100.10 Named Plaintiffs Need Not File Separate or Additional Consent Forms
§9:110 Defining the Class
§9:110.10 Opt-In Plaintiffs
REPRESENTING
MULTIPLE PLAINTIFFS
AGE DISCRIMINATION LITIGATION 92
IV. CERTIFICATION, NOTICE AND OPTIN PROCEDURE
§9:120 Two-Stage Procedure
§9:130 Stage 1: Lenient Standard of “Similarly Situated” for Notice and Conditional Certification
§9:140 Stage 2: More Demanding Standard to Establish “Similarly Situated” After Discovery on Defendant’s
Motion to Decertify the Class
§9:140.10 Centralization of the Defendant’s Activities
§9:140.20 Similarities of the Potential Plaintiffs
§9:140.30 Common Claims and Defenses
§9:150 Court-Approved Notice
§9:150.10 Contents of Notice
§9:150.20 Contents of Consent Form
V. DISCOVERY IN ADEA REPRESENTATIVE OR COLLECTIVE ACTIONS
§9:160 Discovery of Plaintiffs
§9:160.10 Named Plaintiffs
§9:160.20 Opt-In Plaintiffs
§9:160.30 Individual Damages
§9:170 Discovery of Defendants
§9:180 Electronic Information
§9:190 Consultants Used to Design a Reduction-in-Force or Work Force Restructuring
VI. DEALING WITH COMPANION LITIGATION BY EEOC
§9:200 Introduction
§9:210 Working With EEOC to Avoid Cutting Off Opt-Ins’ Rights
§9:220 Discovery Expenses
§9:230 Attorney’s Fees
VII. PROVING DISCRIMINATION IN AN ADEA CLASS ACTION
§9:240 Theories of Proof
§9:240.10 Disparate Treatment — Pattern and Practice Claims
§9:240.20 Disparate Impact
§9:250 Statistical Evidence
§9:250.10 Controlling for the Employment Practice
§9:250.20 Representative Sample
§9:250.30 Adequate Sample Size
§9:250.40 Sufficient Disparity
§9:250.50 Bolster Statistics With Other Evidence
VIII. FORMS
Motion Forms
Form 503 Plaintiff-Appellant’s Brief filed with 2d Circuit (re OWBPA waiver requirements, collective action) [Estle v. IBM]
Multiple Plaintiffs Forms
Form 600 Memorandum to Certify a Collective Action
Form 601 Order Granting Notice, Notice & Consent Form
REPRESENTING
MULTIPLE PLAINTIFFS
93 REPRESENTING MULTIPLE PLAINTIFFS §9:10
I. GOVERNING PRINCIPLES
§9:10 Introduction to ADEA Collective Actions
Because the ADEA follows the procedures of Section 16(b) of the Fair Labor Standards Act of 1938, as
Genesis Healthcare
Corp. v. SymczykCampbell v. City of Los Angeles,
Campbell
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See Lewis v. Wells Fargo & Co.,
PRACTICE POINT:
Enlist experienced co-counsel
Litigating a collective action is complicated. We highly recommend joining forces with experienced col-
lective or class action counsel. This chapter is intended to provide an overview of some of the common issues
counsel face in litigating an ADEA collective action.
§9:10.10 Governing Statutory Provision – FLSA 216(b)
See Sperling v. Homan-La
Roche, Inc.,
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public agency) in a Federal or State court of competent jurisdiction by any one or more employees for
party to any such action unless he gives his consent in writing to become such a party and such consent
Comer v. Wal-Mart Stores, Inc.
O’Brien v. Ed Donnelly Ent., Inc.abrogated on other
grounds by Campbell-Ewald Co. v. Gomez Thiessen v. General Elec. CapitalCorp.,
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