Sixth Circuit Adopts New Certification Process in FLSA Collective Actions

On May 19, 2023, in Clark v. A&L Home Care and Training Center, LLC., the U.S. Court of Appeals for the Sixth Circuit rejected the familiar two-step certification procedure in collective actions under the Fair Labor Standards Act (FLSA), instead requiring lead plaintiffs to demonstrate a “strong likelihood” that other employees they seek to represent are “similarly situated” to the original plaintiffs. In so ruling, the Sixth Circuit became just the second circuit court to expressly reject the familiar two-step certification procedure in FLSA collective actions.

E-Discovery Preservation Obligations in Class and Collective Actions

The first (and most important) rule of e-discovery in nearly all cases is to preserve electronically-stored information (ESI) correctly. If a party preserves ESI properly, most other missteps can be corrected. To comply with the duty to preserve, a party must issue and enforce proper litigation holds (and do so in a timely fashion) and