The U.S. Supreme Court's decision not to review a standard the Seventh Circuit recently established for issuing notice in collective actions left intact a landscape in which there are now four different approaches.
[...]
The test all circuits had used until a few years ago comes from a New Jersey federal court's 1987 decision in Lusardi v. Xerox Corp.
"It's the long-standing and still predominant standard," said Allison Powers of management-side firm Blank Rome LLP.
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However, management-side attorneys say discovery can be expensive and the court might ultimately decertify the collective.
"It's fast-track certification," Powers said. "It prolongs cases that oftentimes won't be able to withstand a decertification challenge."
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"Justices Leave in Place 4 Collective Certification Approaches," by Max Kutner was published in Law360 Employment Authority on January 14, 2026.
