Now Showing On A DVD Player Near You: The Lenient-Standard Monster

We often question the utility of the “lenient standard” for conditional certification under the FLSA.  All too often, courts grant conditional certification of a collective action based on nothing more than a recitation of the “lenient standard” involving a “modest factual showing,” followed by reference to scant evidence that provides no insight into whether the case ever could be tried as a collective action in a courtroom.  And indeed, when the Plaintiffs’ proof is subjected to a more searching review at the ultimate certification stage, those same courts often decertify the collective action.

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