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  • Presentingalive90minutewebinarwithinteractiveQ&A

    FLSACollectiveActionDiscoveryStrategiesDiscoveryTacticsBeforeandAfterConditionalCertificationoftheOptInClass

    T d f l f

    1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

    WEDNESDAY, JANUARY 19, 2011

    Todays faculty features:

    William C. Martucci, Partner, Shook Hardy & Bacon, Washington, D.C.

    Kristen A. Page, Partner, Shook, Hardy & Bacon, Kansas City, Missouri

    The audio portion of the conference may be accessed via the

    Jenny R. Yang, Partner, Cohen Milstein Sellers & Toll, Washington, D.C.

    p ytelephone or by using your computer's speakers.

    Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

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  • FLSA Collective Action Di St t iDiscovery Strategies

    Discovery Tactics Before and After Conditional Certification of the Opt-In Class

    Wednesday, January 19, 2011

    William C. Martucci, Partner, Shook, Hardy & Bacon, Washington, D.C.Kristen A. Page, Partner, Shook, Hardy & Bacon, Kansas City, Missouri

    Jenny R. Yang, Partner, Cohen Milstein Sellers & Toll, Washington, D.C.

    4 Shook, Hardy & Bacon

  • Contact Information

    Willi C M t iWilliam C. MartucciShook, Hardy & Bacon

    816-474-6550, 202-783-8400wmartucci@shb comwmartucci@shb.com

    Kristen A. PageShook, Hardy & Bacon, y

    816-559-2511kpage@shb.com

    Jenny R. Yang Cohen Milstein Sellers & Toll

    202-408-4600

    5 Shook, Hardy & Bacon

    jyang@cohenmilstein.com

  • Program Overview

    OutlineOutline

    Introduction The FLSA Wage War Litigation Environment and Procedural Issues

    The FLSA Collective Action Discovery Foundation The FLSA Collective Action Discovery Foundation

    Focused Considerations in FLSA Collective Action Discovery

    Discovery Challenges and Resolving Disputes

    Special Discovery Issues for Consideration

    Selected Trial Issues in FLSA Actions

    Wrap Up and Questions

    6 Shook, Hardy & Bacon

  • The FLSA Litigation Environment

    OutlineOutline

    Introduction The FLSA Wage War Litigation Environment and Procedural Issues

    The Wage War Litigation Setting

    Procedural Issues That May Impact Discovery Scope Procedural Issues That May Impact Discovery Scope

    Jurisdiction, Removal and Statutes of Limitation

    Foundation for the Discovery DiscussionFoundation for the Discovery Discussion

    Basic FLSA Case Sequence and Two-Tier Framework

    Overview of Notice, Opt-In and Decertification Steps

    7 Shook, Hardy & Bacon

    , p p

  • The Age of Wage Wars

    Workers from truck drivers to stockbrokers are Workers from truck drivers to stockbrokers are winning huge overtime lawsuits.

    These are the days of the wage wars, according to Business Week.

    8 Shook, Hardy & Bacon

  • Significant Issues High Stakes

    No one tracks precise figures, but lawyers on both sides estimate that over theNo one tracks precise figures, but lawyers on both sides estimate that over the last few years companies have collectively paid out more than $1 billion annually to resolve these claims, which are usually brought on behalf of large groups of employees. Whats more, companies can get hit again with suits on behalf of different groups of workers or for alleged violations of different

    i i f l t t f l F d th ll f Attprovisions of a complex tapestry of laws. Framed on the wall of Attorney Thiermans office, for example, is a copy of a check from a case he settled for $18 million in 2003 on behalf of Starbucks store managers in California. (Thierman is a former corporate defense counsel.) But the coffee chain is currently defending overtime lawsuits filed by other attorneys in Florida andcurrently defending overtime lawsuits, filed by other attorneys, in Florida and Texas. Wal-Mart Stores is swamped with about 80 wage and hour suits, and in the past two years has seen juries award $172 million to workers in California and $78.5 million in Pennsylvania.

    9 Shook, Hardy & Bacon

  • A Dramatic Rise in Complaints

    10 Shook, Hardy & Bacon

  • The Wage Wars and the New Deal FoundationFoundation

    The core wage and hour law the federal Fair Labor The core wage and hour law, the federal Fair Labor Standards Act (FLSA), has been on the books since 1938. Th N D l t t t hi h d t d th t b d The New Deal statute, which mandated that a broad swath of the workforce receive 90 minutes pay for every hour worked beyond 40 in a week, had two goals.

    One was to reward laborers who put in long hours. Another was to expand employment by making it

    cheaper for companies to hire additional workers thancheaper for companies to hire additional workers than pay existing ones time and a half.

    This New Deal law is the foundation for the wage and hour explosion

    11 Shook, Hardy & Bacon

    hour explosion.

  • Foundational Procedural Issues FLSA JurisdictionFLSA Jurisdiction

    The FLSA authorizes court actions by employers and the Secretary The FLSA authorizes court actions by employers and the Secretary of the Department of Labor to recover damages for violation of the Acts Minimum Wage and Overtime provisions and to enforce the prohibition against retaliation. 29 U.S.C. 216(b) and (c).prohibition against retaliation. 29 U.S.C. 216(b) and (c).

    Federal and state courts thus have concurrent jurisdiction over FLSA claims. See generally Forsyth v. Central Foundry Co., 240 Ala 277 1 WH Cases 1039 (Ala 1940) Federal courts haveAla. 277, 1 WH Cases 1039 (Ala. 1940). Federal courts have federal question jurisdiction over suits brought under the FLSA. 28 U.S.C. 1331.

    A federal court that hears an FLSA claim may exercise supplemental jurisdiction over a related state claim. See 28 U.S.C. 1367.

    12 Shook, Hardy & Bacon

  • Foundational Procedural Issues Removal of FLSA ClaimsRemoval of FLSA Claims

    Defendants may remove cases alleging FLSA claims to Defendants may remove cases alleging FLSA claims to federal court as a matter of right. 28 U.S.C. 1441(a); Breuer v. Jims Concrete of Brevard, Inc., 538 U.S. 691 (2003).

    13 Shook, Hardy & Bacon

  • Foundational Procedural Issues Statutes of Limitation as They May

    I t Di S Impact Discovery Scope

    The FLSA provides a period of two years after the cause of action accrued The FLSA provides a period of two years after the cause of action accruedin which to file a complaint for unpaid wages, overtime, or liquidateddamages in federal or state court, 29 U.S.C. 255(a). The FLSA limitationsperiod is extended to three years after such causes of action accrue forperiod is extended to three years after such causes of action accrue forviolations that are willful. 29 U.S.C. 255(a). The plaintiff carries theburden of pleading and proving that a violation is willful.

    The FLSAs statute of limitations does not preempt state limitations periodsfor state wage and hour violations (in some instances, they may be longer).

    Failure to plead the FLSAs statute of limitations as a defense will result inwaiver of the defense. Hodgson v. Humphries, 454 F.2d 1279, 1283-84, 20WH Cases 444 (10th Cir. 1972) (holding statute of limitations waived if not

    14 Shook, Hardy & Bacon

    ( ) ( gasserted in pleading).

  • Statutes of Limitation and the Willfulness Issue Willfulness Issue

    In McLaughlin v Richland Shoe Co 486 U S 128 28 WH Cases In McLaughlin v. Richland Shoe Co., 486 U.S. 128, 28 WH Cases1017 (1988), the Supreme Court held that the standard of willfulnessused in awarding liquidated damages under the Age Discriminationin Employment Act (ADEA) also applies in determining whetherin Employment Act (ADEA) also applies in determining whetherviolations of the FLSA are willful, so as to extend the statute oflimitations period to three years.

    Under Richland Shoe, a violation is willful if the defendant eitherknew his or her conduct violated the FLSA or showed recklessdisregard for whether his or her actions complied with the Act.g p

    15 Shook, Hardy & Bacon

  • Commencement of the Action and Timing Considerations Timing Considerations

    Section 7 of the Portal to Portal Act distinguishes between Section 7 of the Portal-to-Portal Act distinguishes betweenindividual actions and collective (i.e., representative) or classa