One of the hottest areas for wage-and-hour class and collective actions of late is claims based on the alleged failure to properly incorporate all “earned wages” into the regular rate of pay for the purpose of overtime calculations and other categories of pay, such as sick time or break penalties. These claims can be more susceptible to class treatment than other kinds of wage-and-hour matters because the method of calculating regular rate is typically prescribed at a companywide level, such that counsel will argue the violation (or lack thereof) can readily be adjudicated on a classwide or collective basis. Given the nature of the argument, the underlying legal issue also might be subject to summary adjudication—a strategy that is not often available in wage-and-hour cases where individualized experiences often subsume the allegations of commonality and typicality.
Companies that offer incentive pay or other bonuses to nonexempt (e.g., hourly) employees are most susceptible to these types of lawsuits. The determination on the regular rate issue is dependent upon several factors, including but not limited to whether the payment is discretionary and, if not, whether the calculation of the amount due is performed based on all categories of compensation paid to the employee during the subject time frame. Employers also vary in their treatment of how the incentive or bonus payment should be incorporated into earnings, or what time period it should apply to retroactively for purposes of determining how and if supplemental payments are due to a given employee to account for shortfalls in the regular rate originally calculated. Finally, permissible methods for such calculations can vary between state and federal laws, and employers generally are obligated to choose the method that ensures the greatest employee benefit.
Our U.S. labor and employment lawyers have counseled clients proactively to ensure their wage calculation methodology is compliant with applicable law and are adept at handling these suits when filed.
By: David Biderman, Charles Sipos, Jasmine Wetherell, and Kristine Kruger
Labeling and marketing claims remain a central focus of food, beverage, and consumer packaged goods class actions in 2026. Plaintiffs continue to challenge representations that allegedly create a disconnect between consumer expectations and product composition, including product names that highlight premium ingredients, “all natural” and “no artificial ingredients” claims, and front-of-package protein statements. These cases increasingly reach beyond expressly false statements to target implied messages about ingredient predominance, nutritional value, and product quality. Outcomes often turn on whether a reasonable consumer would interpret the challenged representation as plaintiffs allege and whether the complaint supplies concrete, product-specific facts supporting that interpretation.
Environmental marketing presents another active area of litigation, particularly for companies promoting products as “compostable,” “biodegradable,” or “recyclable.” Plaintiffs are challenging whether disposable products, wipes, and packaging can break down under the conditions consumers reasonably expect, as well as whether synthetic ingredients or persistent plastics undermine broader sustainability claims. Environmental certifications are also drawing scrutiny. Companies making these representations should assess both their substantiation and any qualifications needed to explain disposal conditions, infrastructure requirements, or other limitations. A certification alone may not resolve allegations that the overall marketing message is misleading.
Similar theories are driving cosmetic and personal care class actions involving “hypoallergenic,” “sensitive skin,” “clean,” and “unscented” claims, along with alleged contamination and unsupported performance promises. At the same time, courts continue to scrutinize whether plaintiffs adequately connect the challenged representation or alleged defect to their purchases, reliance, and economic injury. These decisions highlight potential defenses where allegations rest on generalized ingredient concerns rather than facts tied to the products purchased. Across categories, companies should review the full consumer-facing message—not just individual statements—and confirm that ingredient, safety, environmental, and efficacy claims have support appropriate to their scope.
By Ian Bolster, Sally-Anne Stewart, and Andrea Sneddon
Australia is a well-developed and sophisticated jurisdiction for class actions. Companies operating in all sectors are exposed to class-action risk, with claims brought by shareholders, investors, employees, and consumers in diversified industries (e.g., finance, superannuation, pharmaceuticals, real estate, technology, and infrastructure). Recent trends indicate further reach into emerging areas such as privacy, data breaches, employment, and climate change.
The risks facing companies in Australia are constantly evolving. That is a result of legislative reforms, regulatory activity, and developments in the law. Moreover, there is a strong litigation funding market (including internationally based funders) supporting the majority of claims. Australia is an attractive jurisdiction, as litigation funders can obtain "common fund orders" to recover a percentage of any settlement or judgment proceeds (usually in the order of 25%).
The combination of Ashurst Perkins Coie, particularly in the context of an increasingly integrated global economy, invites reflection on class-action risk across Australia and the United States.
Class-action developments in the United States, and in other foreign jurisdictions, can be an indicator that a similar or related claim might be filed in Australia. There are many examples, particularly in product liability claims (e.g., medical devices and motor vehicles) where class-action firms and funders have drawn on proceedings in the United States to bring similar claims in Australia. That trend will likely continue and expand into new areas.
Australian courts will consider issues afresh, but the way proceedings are conducted overseas and a company's defense strategy may influence claims in Australia:
That makes it important for companies facing litigation to adopt a global approach.
Claims commenced in Australia can also have international reach because nonresidents can participate in Australian class actions. That can affect dual- and cross-listed companies and those with American Depository Receipts on issue, as exposure is not necessarily limited to trades on Australian trading platforms. It can also affect companies that do business with consumers globally, such as online platforms.
Some of the key differences of the Australian class-action regime:
For more information about class actions in Australia, we invite you to read our Quick Guide. Please reach out if you would like to discuss Australian class-action risk facing your company.
The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
Readers should take legal advice before applying it to specific issues or transactions.
