Counter-Intuitive Considerations for Plaintiffs, Defendants Considering FLSA Class Discovery

TDR attorney Jordan Wilkow authored an article in the February 10 edition of the Chicago Daily Law Bulletin (subscription may be required).  The article, “Defendants, Plaintiffs Should Tread Lightly During Class Discovery in FLSA Actions,” examined a development in the law underlying conditional class certification under the Fair Labor Standards Act.

A recent N.D.Ill. decision applied an “intermediate” standard of review to deny conditional class certification, a question generally subject to only a “lenient” standard.  The Court predicated its heightened review on the fact that the parties had bifurcated discovery, and class discovery had already been completed.

The article posits that, if this approach gains traction in the District, Defendants could find that enduring some discovery upfront in return for a less forgiving standard of review on the plaintiff’s motion for conditional certification makes good strategic sense.  On the other hand, plaintiffs seeking at least the leverage that comes with conditional certification will want to be cautious about how much pre-certification discovery they request, lest they subject their motion for conditional certification to more scrutiny than it can withstand.