Brett Bartlett and Regina Musolino Published in Thompson's Fair Labor Standards Handbook "Striking First: Preemptive Motions to Deny Class Certification"

Brett Bartlett and Regina Musolino’s article, “Striking First: Preemptive Motions to Deny Class Certification,” published in the June 2008 issue of  Thompson’s Fair Labor Standards Handbook, discussed recent court rulings where the preemptive-motion strategy has proven effective.

Brett and Regina noted that, in certain circumstances, an employer’s preemptive motion to deny certification “may provide employers with the opportunity to take control of the litigation and force plaintiffs to play defense.” They explain, “To certify a case under Rule 23 of the Federal Rules of Civil Procedure, a court must find that several essential elements have been satisfied. Rule 23 allows any party to bring a motion to determine whether an action can properly proceed as a class action.”

The authors identify two recent Rule 23 cases where the circumstances were different, but the court denied class certification prior to plaintiffs filing their certification motions. Although these cases did not involve FLSA claims, the circumstances surrounding each case provide some guidance for employers facing class certification pursuant to Section 216 (b) of the FLSA.

Brett and Regina conclude, “While not every case warrants filing a preemptive motion to deny class certification, such a motion can be another tool at the employer’s disposal for staving off an FLSA action. A preemptive motion to deny class certification essentially puts the employer in the ‘driver’s seat’ of the litigation. But because this course of action will not work in every case, a careful analysis of the totality of the circumstances surrounding the case is crucial.”