Careful what you wish for…the risk of decertification

Employment cases routinely proceed as class actions. Plaintiffs and their attorneys seek to represent large numbers of employees to correct common legal wrongs and to obtain common fund damages. Employers and their counsel reflexively contest class certification or seek to decertify class action cases after certification is granted.

But decertification has its risks. If a large number of plaintiffs are willing to proceed as individual claims, decertification can deny the employer of the benefits of a class action resolution. Individual claims on a per plaintiff basis can be much more expensive and time consuming to litigate. And employers may be responsible to pay the entire fees and costs of arbitration proceedings. A vigorous fight can turn into the classic “careful what you wish for” scenario where the employer successfully decertifies a class action and then is faced with hundreds of individual cases, each demanding significant damages, and each necessitating significant attorney time and expense. A recent article in the Los Angeles Daily Journal underscores this point.

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