It is fairly easy for a plaintiff to get conditional certification in a FLSA class action case, but that is not the end of the story. The next step, much harder, is fending off the defendant’s anticipated motion to stop the class from receiving final certification. It is even more difficult to withstand that defendant’s challenge when the Judge that approved conditional certification indicates getting final certification will be a lot harder. A recent example of this is an exemption misclassification case that just settled. The case is entitled Porter v. Merrill Lynch Pierce Fenner & Smith Inc., and was filed in federal court in the District of New Jersey.

The employees are supervision analysts employed on an electronic communication review team in Pennington, New Jersey, there were more than fifty (50) class members. These workers were classified as exempt. The plaintiff’s lawyers (including Mitchell Schley, Esq., a law school classmate) calculated the possible damages as exceeding one million dollars (including liquidated damages) and noted that the plaintiffs could have recovered a maximum wage award of $533,000.

The motion to the Court advised that “by reaching a mutually acceptable settlement prior to class and collective action certification briefing, depositions, dispositive motions, possibly a trial, and possibly appeals, the parties have reduced their risks and avoided significant expense and delay.” The papers continued by asserting that “the maximum settlement amount also represents a fair value in light of the attendant risks of litigation, even though a greater recovery may be possible if Porter were 100% successful in every phase of the litigation, including possible appeals,” according to the brief.

The plaintiff alleged that she and the others were non-exempt and then reclassified as exempt in 2011. The employees reviewed all emails sent/received by financial advisers, especially those kicked out by the computers that utilized certain criteria to determine emails warranting closer inspection. Early in the case, the Judge found that they had presented a “requisite factual nexus between her situation and the situation of other employees sufficient to determine that they are similarly situated.” The Company had, however, presented evidence that the email reviewers had more significant responsibilities than the plaintiff and that they were exempt. Thus, the Judge warned that obtaining final certification would be tougher, a clear sign that the case was going south.

The Takeaway

The plaintiff was well advised to settle here, as it was evident that final certification might not be granted. This is an interesting twist on the usual course of these cases, meaning that once conditional certification is granted the case usually (and quickly) settles. Here, a deep-pocket defendant which had the funds to fight to final certification coupled with perhaps a pretty good case on the merits turned the tables on the plaintiffs.

But, with that said, plaintiffs still got a pretty good deal…