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The Most Feared Battle Waged in Litigation

By Scott Edward Cole and Matthew R. Bainer

Part One of a Two-Part Article

The following is a primer on the “leniency” standard for FLSA actions, and its interplay with Rule 23 guidelines. Why do we need a primer? Well, if one were so disposed as to survey a sufficient number of well-regarded class action practitioners, the result of that inquiry would most assuredly be a virtual consensus that the quest for class certification is, to a targeted defendant, the most feared battle waged in litigation. This is particularly true in actions alleging overtime exemption misclassifications where, post-certification, the primary remaining issue of liability teeters on the defendant's ability to prove the exemption as an affirmative defense.

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