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FLSA Collective Action: Erosion of Lusardi Two-Step Certification, Appellate Courts’ New Standards, Circuit Split

Impact on Plaintiff and Defense Litigation Strategies, Discovery Process, and Motion Practice

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Wednesday, June 26, 2024

Recorded event now available

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This CLE webinar will examine the status of FLSA collective action certification following the recent Swales and Clark appellate decisions, including a close look at the new standards established under each. The panel will address what effect these decisions are having on other circuits and the impact on litigation strategy for plaintiff and defense counsel.


Recent Fifth and Sixth Circuit court decisions have broken away from the Lusardi two-step certification method for FLSA collective actions and created new standards that have also begun to be adopted by district courts in other circuits.

Under the more lenient Lusardi approach, courts conditionally certify a collective action with a minimal showing by plaintiffs that potential collective members are similarly situated. However, in Swales v. KLLM Transport Services L.L.C. (2021), the Fifth Circuit rejected Lusardi and established a new standard whereby district courts should identify at the outset of the litigation the facts and legal considerations to determine whether potential collective members are similarly situated; authorize preliminary discovery necessary to make the similarly situated determination; and rigorously scrutinize the available evidence to determine whether and to whom notice should issue.

More recently in Clark v. A&L Home Care and Training Center L.L.C. (2023), the Sixth Circuit also rejected Lusardi but declined to accept the Swales standard. The court found that deciding whether to issue notice was analogous to the decision of whether to grant a preliminary injunction, and it adopted a standard wherein plaintiffs must show a "strong likelihood" that other employees are similarly situated to the plaintiffs before the court issues notice.

The Swales and Clark decisions have created a circuit split. These decisions have also begun to influence jurisprudence in other circuits. For example, district courts in the Fourth and Eleventh Circuits have adopted the Swales standard, creating a split within those circuits.

Listen as our expert panel examines the state of FLSA collective action certification after Swales and Clark. The panel will discuss the impact those decisions may have on FLSA collective action litigation strategy moving forward for plaintiff and defense counsel and describe best practices for practitioners.



  1. Introduction: widely used Lusardi two-step certification method
  2. Swales v. KLLM Transport Services L.L.C. (5th Cir. 2021)
  3. Clark v. A&L Home Care and Training Center L.L.C. (6th Cir. 2023)
  4. Adoption by other circuits
    1. Fourth Circuit district court split
    2. Eleventh Circuit district court split
    3. Others
  5. Impact on plaintiff and defense litigation strategies
    1. Burdens of proof
    2. Discovery
    3. Motion practice
    4. Other considerations
  6. Takeaways for practitioners


The panel will review these and other important considerations:

  • How do the standards established in Swales and Clark impact litigation strategy for plaintiff and defense counsel, including burdens of proof that must be met, timing and extent of discovery, and motion practice?
  • What effect have those decisions had on jurisprudence in other circuits?
  • What impact might these decisions have on where and how to bring FLSA collective actions?
  • What are best practices for plaintiff and defense counsel when litigating FLSA collective actions in the affected jurisdictions?


Maatman, Gerald
Gerald L. Maatman, Jr.

Partner, Chair Workplace Class Action Group
Duane Morris

Mr. Maatman has nearly four decades of experience practicing law and has defended some of the most...  |  Read More

Srinivasan, Harini
Harini Srinivasan

Cohen Milstein Sellers & Toll

Ms. Srinivasan practices in the firm’s Civil Rights & Employment Litigation Group. She represents...  |  Read More

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