Plaintiffs in employment cases scored wins on class certification motions at record rates last year, according to a new report from Seyfarth Shaw.

The firm's 16th annual report on workplace class action litigation, which analyzed 1,467 decisions in cases brought against employers in federal and state courts across the country, found that in 2019 plaintiffs secured conditional class certification rulings in 81% of wage and  hour cases, 65% of ERISA cases, and 64% of employment discrimination cases.

The Seyfarth report, edited by Gerald "Jerry" Maatman Jr., the co-chair of the firm's class action litigation practice group, found that though plaintiffs won these "first-stage" certification motions at a record clip, employers had increasing success in winning "second-stage" decertification motions—12 of 25 rulings, or about 48%, a 6 percentage point increase over 2018.

Source: Seyfarth Shaw 2020 Annual Workplace Class Action Report

The report says that the trend reflects "an on-going migration of skilled plaintiffs' class action lawyers in the wage & hour litigation space" that's been going on for almost a decade. Securing conditional certification, the report concludes, can be done quickly, soon after a case is filed with minimal investment in things such as experts and extensive discovery.

"As a result, to the extent of class actions and collective actions and collective actions by plaintiffs' lawyers is viewed as an investment of time and money, prosecution of wage & hour lawsuits is a relatively low cost investment, without significant barrier to entry, and with the prospect of immediate returns as compared to other types of workplace class action litigation," the report says.

Other key takeaways from the report include:

• Epic Systems v. Lewis, a case decided by the U.S. Supreme Court in 2018 holding that class action waivers in mandatory arbitration agreements are legal, proved to be "a transformative decision that is one of the most important workplace class action rulings in the last two decades." The report said the decision could continue to shift the prosecution and defense of workplace class actions going forward.

• As measured by the top 10 largest settlements in various workplace categories, the overall amount of workplace settlements increased slightly to $1.34 billion, compared to $1.32 billion in 2018. Both those numbers fall well short of the $2.72 billion posted in 2017. The Seyfarth report concludes that the Epic Systems decision is causing a similar trend as to what was seen after the Supreme Court's 2011 decision in Wal-Mart v. Dukes tightened the standard for class certification.

• A high proportion of federal wage and hour cases are being brought against employers in jurisdictions regarded as plaintiff-friendly including the Second and Ninth Circuits. For the first time in a decade, however, the report found that there were an equal number of rulings out of the Fifth and Sixth Circuits, where conditional class certification rulings also tended to favor workers over employers. The Sixth Circuit—which encompasses Kentucky, Michigan, Ohio and Tennessee—had as many class certifications (36) as the Second Circuit and five more than the Ninth and Fifth Circuits (31).

The entire 750-plus page report can be requested at workplaceclassactionreport.com.