Overview

• In Richards v. Eli Lilly & Co., the Seventh Circuit abandoned the Lusardi “modest showing” approach in favor of a material factual dispute standard for issuing FLSA and ADEA collective notices.
• Plaintiffs must now present some evidence of a common unlawful employment practice and courts are required to weigh competing evidence before approving opt-in notices.
• The material factual dispute test sits between the lenient Lusardi framework and the Fifth Circuit’s preponderance-of-the-evidence and Sixth Circuit’s strong-likelihood thresholds.
• By becoming the third circuit to move away from Lusardi, the decision deepens a split among the Fifth, Sixth, Seventh and Ninth Circuits and heightens prospects for en banc or Supreme Court review.
• Employers in Illinois, Indiana and Wisconsin circuits gain an early opportunity to rebut similarity claims and should prepare timely counter-evidence to oppose notice requests.