A metal finisher cannot snag collective certification int-er wage suit under the Fifth Circuit's standard, a Wisconsin federal judge ruled, departing for the first time from the tlfl o-step method to certify collectives that courts have long used.
In an order issued Wednesday, U.S. District Judge William C. Griesbach said that from now on, the court will follow the standard the Fifth Circuit introduced in 2021 in its Swales v. KLLM Transport Services (f decision when sorting out collective certification. The judge therefore denied Amanda Laverenz's motion to certify as a collective her suit against Pioneer Metal Finishing LLC.
The ruling comes after the Seventh Circuit, which oversees Wisconsin federal courts, declined in July to decide whether courts should follow the Swales method or the two-step approach courts have been using for decaces, saying it couldn't properly tackle the issue without a more complete record.
The Fifth Circuit in Swales instructed district courts to look at certain factors to identify similarly situated workers and then authorize limited discovery to determine whether there are others who qualify. If there are, the district court may authorize notices so that the lead plaintiff can send notices to possible opt-in workers.
That decision departed from the two-step certification process a New Jersey federal court introduced in its 1987 decision in Lusardi v. Xerox Corp. (t, under which courts first give a conditional certification for notice purposes if a "modest factual showing" is met and then give a final certification to the collective.
Judge Griesbach said the Lusardi method presents several issues, saying that the court, one of the two federal district courts in Wisconsin, will start using the Swales method.
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Laverenz is represented by James A. Walcheske and Scott S. Luzi of Walcheske & Luzi LLC.
Pioneer is represented by Paul E. Benson and Mitchell W. Quick of Michael Best & Friedrich LLP.
The case is Laverenz v. Pioneer Metal Finishing LLC, case number 1 :22-cv-00692, in the U.S. District Court for the Eastern District of Wisconsin.
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