Measuring the Value of Class and Collective Action Employment Settlements: A Preliminary Assessment

Abstract

This article represents an initial effort to test, quantitatively, whether the class or collective action is a necessary vehicle for resolving employment disputes because typical claims are not valuable enough for individuals to pursue on their own. Because most class actions ultimately settle, this study begins the process of evaluating the hypothesis by calculating the potential recoveries individual members of class actions are likely to receive in class action settlements as a comparison point for awards obtained in individual employment arbitration. Examining public data on employment class or collective action settlements, we find that with the exception perhaps of certain “off the clock” wage‐hour and ERISA claims, the average individual potential recovery found was not an insignificant amount, and though still generally smaller than the average employment arbitration awards, calls into question the “negative value” justification for the claimed superiority of class action litigation. Much work needs to be done to determine if these potential recoveries would be obtainable in individual litigation or arbitration, or whether there is something special about the class or collective action vehicle that makes possible such potential recoveries. We would also need to account for a selection bias in class action cases—that plaintiffs’ lawyers may underreport less favorable settlements and are highly selective in picking cases for class action treatment. If so, the characteristics of individual and class claims may differ in systematic ways. In the interim, our data show that potential individual recoveries for many types of employment disputes are valuable enough to place in question the arguments that these are “negative value” cases that will be brought forward, if at all, only through the class or collective action vehicle.