Litigating Wage and Hour Class Actions: Defeating Certification and Winning Decertification

Leveraging Lessons From Dukes, Comcast, and Duran to Challenge Evidence on Liability and Damages

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

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Conducted on Wednesday, April 21, 2021

Recorded event now available

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Course Materials

This CLE course will help counsel for employers to continue the processes and procedures established by Dukes, Comcast, and their progeny to successfully challenge the certification of wage and hour class actions, including strategies for demonstrating a lack of commonality and predominance among the putative class.


Wage and hour class actions are one of the most significant workplace liability risks for employers. Settling or losing a wage and hour action can be expensive. And wage and hour class and collective actions have been on the rise in federal and state courts for years.

Dukes, Comcast, and other employer-friendly decisions require plaintiffs to meet more stringent standards to obtain certification. Still, courts continue to grapple with the issues presented at this early and critical stage of litigation.

Evolving issues that may affect class certification and that will be addressed include Section 216(b) collection action issues, PAGA and its effect on wage and hour actions and strategy in California, Daubert, and related expert issues, and the Supreme Court’s pro-arbitration stance juxtaposed against the antagonism of some leading state jurisdictions.

The California Supreme Court provided employers additional ammunition in Duran v. U.S. Bank Nat'l Ass’n by suggesting that misclassification actions may be particularly challenging to litigate on a class-wide basis. The decision criticized many elements of the trial court's certification of the misclassification action at issue. The U.S. Supreme Court in Tyson v. Bouaphakeo explained that representative evidence may be permissible in class litigation, adding support to plaintiffs who rely on statistical sampling to establish class-wide liability. Courts following Tyson have held both ways--for and against representative sampling in class actions.

Counsel for employers must do more than cite these cases to defeat certification. They must parse the strategies and arguments from the rulings and shape them into a coherent and multi-pronged plan for defeating certification.

Listen as our authoritative panel of employment law attorneys discusses the critical lessons of Dukes, Comcast, Duran, Tyson, and other cases to help defense counsel defeat motions for certification or win decertification. The panel will discuss novel theories for challenging certification, tips for refuting statistical sampling evidence, and strategies for winning decertification.



  1. Review and synthesis of Dukes, Comcast, Duran, Tyson, and their progeny
  2. Challenging plaintiffs' liability and damages evidence supporting certification
  3. Refuting statistical sampling evidence offered to support liability
  4. Exploiting distinctions among class members that impact both liability and damages
  5. Monitoring case manageability for opportunities to seek decertification


The panel will review these and other noteworthy issues:

  • What are the highest priority merits issues for defendants at the certification stage?
  • What evidence will refute an allegation of a standard policy or practice that violates wage and hour laws?
  • How can defense counsel make the most of expert witness testimony at certification?


Chang, Andrew
Andrew L. Chang

Shook Hardy & Bacon

Mr. Chang focuses on individual, mass tort and class actions involving automotive, pharmaceutical, medical device and...  |  Read More

Harrison, Ashley
Ashley N. Harrison

Shook Hardy & Bacon

Ms. Harrison’s practice focuses on representing businesses nationally in commercial disputes and employment...  |  Read More

Martucci, William
William C. Martucci

Shook Hardy & Bacon

Mr. Martucci practices exclusively on behalf of management in connection with national employment litigation and policy...  |  Read More

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