Employer obtains rare rehearing of order denying interlocutory appeal

Client(s) Eli Lilly and Company

In a rare move, a Seventh Circuit panel granted Jones Day's petition for rehearing of an earlier order that declined to take up an interlocutory appeal by Eli Lilly & Company. In the district court, the plaintiff filed a putative "collective action" alleging discrimination in violation of the Age Discrimination in Employment Act (ADEA). Applying the first step of a two-step procedure first developed decades ago by a district court in New Jersey, the court granted "conditional certification" of the putative collective and ordered that notice be sent to thousands of Lilly employees across the country. But, recognizing that the Fifth and Sixth Circuit had recently rejected this two-step approach and instead demanded a more rigorous showing up front, the district court certified its order for interlocutory appeal. A motions panel of the Seventh Circuit initially denied Lilly's petition for review, reasoning that the matter could be reviewed later, after development of a full record. Jones Day then filed a petition for panel or en banc rehearing, explaining why that would not be possible as a practical matter, and why denying review here and now would amount to denying review forever and always. The panel called for a response to the petition, and then reversed itself, allowing Lilly's appeal to proceed on the merits.

Richards v. Eli Lilly & Co., No. 24-8017 (7th Cir.)