{"id":9461,"date":"2026-01-10T02:54:18","date_gmt":"2026-01-10T02:54:18","guid":{"rendered":"https:\/\/usatrustedlawyers.com\/blog\/7th-circuit-changes-standard-for-notice-of-proposed-collective-actions\/"},"modified":"2026-01-10T02:54:18","modified_gmt":"2026-01-10T02:54:18","slug":"7th-circuit-changes-standard-for-notice-of-proposed-collective-actions","status":"publish","type":"post","link":"https:\/\/usatrustedlawyers.com\/blog\/7th-circuit-changes-standard-for-notice-of-proposed-collective-actions\/","title":{"rendered":"7th Circuit Changes Standard for Notice of Proposed Collective Actions"},"content":{"rendered":"\n
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On August 5, 2025, in Richards<\/em> v. Eli Lilly & Co.<\/em>, No. 24-2574, 2025 WL 2218500 (7th Cir. Aug. 5, 2025), the United States Court of Appeals for the Seventh Circuit abandoned the \u201cmodest showing\u201d approach to notice for proposed collective actions under the Fair Labor Standards Act. The Court embraced a more flexible and fact-specific framework that enables defendant-employers facing proposed collective actions the chance to litigate whether the collective is \u201csimilarly situated\u201d prior to notice being issued.\u00a0<\/p>\n

Here, Monica Richards applied for a promotion to become a district sales manager with Eli Lilly & Co.\u00a0 Richards was given the role on an interim basis for six months, before she allegedly was passed over for a \u201cmuch younger employee with less sales experience.\u201d Richards sued Eli Lilly and Lilly USA, LLC, and brought claims under the Age Discrimination in Employment Act and the Massachusetts Anti-Discrimination Law. Richards alleged that her experience was part of a pattern of age discrimination against older employees at Eli Lilly and moved to propose a collective action.<\/p>\n

The district court applied the traditional test established in Lusardi <\/em>v. Xerox Corp.<\/em>, 118 F.R.D. 351, 361 (D.N.J. 1987), which provides that a plaintiff seeking notice to a proposed collective must \u201cmake a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.\u201d Under that standard, a plaintiff\u2019s burden is minimal, and historically, courts have declined to \u201cweigh evidence\u201d or \u201cconsider opposing evidence presented by a defendant.\u201d Once a plaintiff makes this showing, then, under Lusardi\u00b8 <\/em>\u201cthe court issues notice to prospective plaintiffs, who may then opt in to the collective action.\u201d Only after the opt-in is complete do defendants have the opportunity to challenge whether the collective is similarly situated. The Richards <\/em>district court therefore declined to consider defendants\u2019 evidence regarding the dissimilarity of the proposed collective.<\/p>\n

Over the past few years, however, federal courts across the country have rejected the Lusardi <\/em>test. In 2021, the United States Court of Appeals for the Fifth Circuit held that notice may be issued only if, at the outset, plaintiffs can demonstrate that the notice recipients are similarly situated. See Swales <\/em>v. KLLM Transp. Servs., LLC<\/em>, 985 F.3d 430, 434 (5th Cir. 2021).\u00a0 In 2023, the Sixth Circuit held that notice may be issued only where plaintiffs can demonstrate a \u201cstrong likelihood\u201d that the proposed collective is similarly situated.\u00a0See Clark <\/em>v. A&L Homecare & Training Ctr., LLC<\/em>, 68 F.4th 1003, 1011 (6th Cir. 2023).<\/p>\n

The district court certified an interlocutory appeal after Eli Lilly issued the notice. The Seventh Circuit held that \u201cto secure notice, a plaintiff must first make a threshold showing that there is a material factual dispute as to whether the proposed collective is similarly situated.\u201d \u201c[A] plaintiff must produce some evidence suggesting that they and the members of the proposed collective are victims of a common unlawful employment practice or policy. A plaintiff\u2019s evidence of similarity need not be definitive, but defendants must be permitted to submit rebuttal evidence and, in assessing whether a material dispute exists, courts must consider the extent to which plaintiffs engage with opposing evidence.\u201d If a plaintiff establishes the existence of a material dispute as to similarity, then \u201cthe decision to issue [opt-in] notice will depend on [the district court\u2019s] assessment of the factual dispute before it.\u201d<\/p>\n

The Court reasoned that \u201ca lower standard would permit notice based on little more than allegations,\u201d while a higher standard would leave plaintiffs \u201cunable to make the required showing without access to evidence held by individuals who are not yet parties to the case.\u201d The Court also reasoned that this is more flexible than the Lusardi<\/em> test and empowers district courts to tailor their approach to notice issuance based on the facts before it.<\/p>\n

The Court concluded by cautioning district courts to ensure that pre-notice discovery remains narrowly tailored to the question of whether the prospective collective of employees is similarly situated and to avoid an early adjudication of the merits. That said, the 7th Circuit made clear that courts are not prohibited from considering merits issues altogether, as they may often overlap with factual issues about similarity.<\/p>\n

This ruling will be helpful for employers facing proposed collective actions, as it raises the evidentiary threshold for plaintiffs seeking to certify a proposed collective. Additionally, under the old \u201cmodest showing\u201d test, defendant-employers would not have had the opportunity to submit rebuttal evidence on whether the proposed collective is truly \u201csimilarly situated.\u201d The embrace of a flexible test allows courts and parties to tailor the issuance of notice for a proposed collective to the individual facts and circumstances of the case.<\/p>\n<\/p><\/div>\n<\/p><\/div>\n","protected":false},"excerpt":{"rendered":"

On August 5, 2025, in Richards v. Eli Lilly & Co., No. 24-2574, 2025 WL 2218500 (7th Cir. Aug. 5, 2025), the United States Court of Appeals for […]<\/p>\n","protected":false},"author":1,"featured_media":9462,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[5534,651,610,3088,877,2100,3655],"class_list":["post-9461","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-lawyers","tag-7th","tag-actions","tag-circuit","tag-collective","tag-notice","tag-proposed","tag-standard"],"_links":{"self":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/9461","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/comments?post=9461"}],"version-history":[{"count":0,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/9461\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media\/9462"}],"wp:attachment":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media?parent=9461"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/categories?post=9461"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/tags?post=9461"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}