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WAL-MART V. DUKES: WE KNOW WHAT IT SAYS, BUT WHAT DOES IT MEAN?

SUMMARY OF POST-DUKES FEDERAL COURT DECISIONS

COMPLEX LITIGATION SUBCOMMITTEE

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FIRST CIRCUIT............................................................................................................................ 1 Richard L. Alfred, Seyfarth Shaw LLP, Boston, MA SECOND CIRCUIT....................................................................................................................... 1 Anna Pohl, U.S. Equal Employment Opportunity Commission, New York, NY THIRD CIRCUIT ........................................................................................................................ 10 Jerome Hoffman, Dechert LLP, Philadelphia, PA FOURTH CIRCUIT..................................................................................................................... 11 Cara Greene, Outten & Golden LLP, New York, NY FIFTH CIRCUIT ......................................................................................................................... 14 Richard W. Warren, Miller, Canfield, Paddock & Stone P.L.C., Detroit, MI SIXTH CIRCUIT......................................................................................................................... 15 Alex Boals, Littler Mendelson, P.C., Memphis, TN SEVENTH CIRCUIT .................................................................................................................. 16 Thomas Hurka, Morgan Lewis & Bockius LLP, Chicago, IL EIGHT CIRCUIT......................................................................................................................... 20 Ronald Manthey, Morgan Lewis & Bockius LLP, Dallas, TX NINTH CIRCUIT ........................................................................................................................ 22 Andrew Livingston, Orrick, San Francisco, CA TENTH CIRCUIT ....................................................................................................................... 28 Daniel B. Boatright, Littler Mendelson, P.C., Kansas City, MO ELEVENTH CIRCUIT................................................................................................................ 28 Daniel Finerty, Lindner & Marsack, Milwaukee, WI DC CIRCUIT............................................................................................................................... 29 Jerome Hoffman, Dechert LLP, Philadelphia, PA

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FIRST CIRCUIT Abla v. Brinker Restaurant Corp., 2011 WL 6367736 (D. Mass. Dec. 19, 2011)

Background: Two banquet servers asserted claims under the Massachusetts Tip Statute and common law alleging that the defendant restaurant chain had misappropriated service charges that should have been distributed to servers as gratuities. The plaintiffs settled their claims under Massachusetts law on behalf of a Massachusetts subclass, but under the terms of the settlement agreement, one of the two plaintiffs retained his common law claims. The remaining plaintiff sought certification of a nationwide class with respect to the common law claims.

Analysis: Citing Dukes for the proposition that Rule 23 requires a rigorous analysis and that a class representative must “possess the same interest and suffer the same injury” as the class members, the district court denied class certification. The court held that the plaintiff’s settlement of his state law claims gave him a “lesser incentive to vigorously pursue his claims than another potential national class member who has received not such satisfaction.” The court also held that the common law claims would require individual inquiries such that the requirements of Rule 23(b)(3) were not satisfied.

Swanson v. Lord & Taylor LLC, 2011 WL 6793826 (D. Mass. Dec. 20, 2011)

Background: Sales associate asserted claims under federal and state law for allegedly unpaid work time arising from the defendant’s meal break and rounding policies.

Analysis: Citing Dukes and stating that the Supreme Court has emphasized that a class representative must “possess the same interest and suffer the same injury” as the class members, the court denied class certification. Because the plaintiff had failed to exhaust her administrative remedies with respect to her state law claims, the defendant had unique defenses as to her that precluded her from adequately representing the class.

SECOND CIRCUIT Employment Discrimination Cases Chen-Oster v. Goldman, Sachs & Co., 2012 U.S. Dist. LEXIS 12961 (S.D.N.Y. Jan. 19, 2012) Chen-Oster v. Goldman, Sachs & Co., 2011 U.S. Dist. LEXIS 73200 (S.D.N.Y. July 7, 2011)

Background: Plaintiffs alleged a pattern of gender discrimination against female professional employees. Defendants moved to stay the action as to one named plaintiff and to compel arbitration of her individual claims. The court previously denied defendants’ motion and defendants moved for reconsideration in light of the Supreme Court’s holding in AT&T Mobility LLC v. Concepcion and submitted supplemental briefing related to Wal-Mart. Defendants also moved to strike plaintiffs’ class allegations in light of Wal-Mart and its motion for partial summary judgment of plaintiffs’ disparate impact claim on the grounds that plaintiffs had failed to exhaust their administrative remedies. In the July 7th decision, the motion to compel arbitration was denied and in the January 19th decision, the Magistrate Judge recommended denying Defendants’ motion to strike plaintiffs’ class allegations from the complaint.

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Analysis: The court rejected defendants’ argument that Wal-Mart was directly relevant to whether the named plaintiff has a statutory right to bring claims on behalf of putative class members. The court stated that Wal-Mart “may be relevant to the substance of the plaintiff’s pattern or practice claim and her ability to obtain certification under Rule 23, but is not pertinent to her ability or right to bring a pattern or practice claim to the court.” The Magistrate Judge agreed with plaintiffs’ argument that the sufficiency of their class allegations should be determined in a motion for class certification and that the normal class certification process should not be circumvented by a motion to strike that would preemptively terminate class aspects of a case before plaintiffs are permitted to complete class-related discovery. The Magistrate Judge reviewed the requirements for class certification and determined that defendant’s motion to strike was premature and that plaintiffs were entitled to pursue discovery to obtain the facts that would support class certification. In addition, the Magistrate Judge determined that plaintiffs had standing to seek injunctive relief even though they are former employees, because in their complaint, plaintiffs have specifically requested reinstatement, which would subject them to the same allegedly discriminatory practices they are challenging. The Magistrate Judge pointed out that the Supreme Court in Wal-Mart did not address the issue of whether a former employee plaintiff who is seeking reinstatement has standing to seek injunctive relief. Finally, the Magistrate Judge rejected defendant’s argument that Wal-Mart abrogated Robinson v. Metro-North Commuter R.R. Co., the Second Circuit’s leading case on using Rule 23(c)(4) to certify separate issues under (b)(2) and (b)(3). Easterling v. State Dep't of Corr., 2011 U.S. Dist. LEXIS 134524 (D. Conn. Nov. 22, 2011)

Background: The district court had previously certified a class of female applicants for Corrections Officer positions and granted summary judgment to plaintiffs on liability of their claims that the physical fitness test had a disparate impact on female applicants. After Wal-Mart v. Dukes was decided, Defendant moved to decertify the class. In response, plaintiff requested the court convert the existing class to a hybrid class, maintaining the Rule 23(b)(2) certification with regard to liability and class-wide injunctive relief and certifying a separate class under Rule 23(b)(3) for determining damages and individualized injunctive relief. The court modified its earlier certification order as requested by plaintiff.

Analysis: The court acknowledged that Wal-Mart overturned Second Circuit precedent in Robinson v. Metro-North Commuter R.R., 267 F.3d 147 (2d Cir. 2001) that classes seeking both injunctive and monetary relief could be certified under Rule 23(b)(2). However, Rule 23(c)(4) allows certification of separate issues to reduce the range of disputed issues and achieve judicial efficiencies and Wal-Mart did not disturb the Second Circuit’s interpretation of Rule 23(c)(4) in Robinson. Quoting U.S. v. City of New York, 2011 U.S. Dist. LEXIS 73660 (E.D.N.Y. July 8, 2011), the court held that “even where class plaintiffs file a complaint seeking non-incidental individual monetary relief, the class-wide liability questions raised by their disparate impact and pattern-or-practice disparate treatment claims are properly certified under Rule 23(b)(2) and (c)(4).” The liability stage of the case was previously resolved on the basis of generalized proof: class-wide statistical evidence that the challenged physical fitness test caused a disparate impact on the basis of sex and the defendant failed to rebut the statistical evidence or demonstrate a business justification for the test’s use. The court modified the previous certification order to maintain certification under Rule 23(b)(2) the issues of liability and class-wide injunctive relief and amended the previous order to certify claims for monetary relief and individualized injunctive relief under Rule 23(b)(3), allowing for notice and an opt-out opportunity for class

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members. The court will calculate an aggregate sum of the back pay to which the class is entitled and the sum would then be distributed to eligible class members on a pro rata basis. The use of such a back pay formula is permitted under substantive Title VII law and is not merely a creative method of proof for class actions. The court will also determine on a class-wide basis the total number of priority hiring slots that should be awarded and the total amount of front pay that should be awarded to the class. Each individual claimant would still need to establish her status as a member of the class in order to receive a pro rata share of the back pay and would need to establish that she is currently qualified for a CO position in order to share in any priority hiring or front pay relief. But the resolution of these individual questions are of relatively minimal significance to the litigation as a whole and are therefore acceptable to certify the individual damages and individual injunctive relief class under Rule 23(b)(3). Cronas v. Willis Group Holdings, Ltd., 2011 U.S. Dist. LEXIS 147171 (S.D.N.Y. Dec. 19, 2011) Cronas v. Willis Group Holdings, Ltd., 2011 U.S. Dist. LEXIS 122736 (S.D.N.Y. Oct. 18, 2011)

Background: A class of female officers and officer-equivalents at Willis Group Holdings, Ltd. and certain other Willis affiliates reached a settlement agreement. Plaintiffs filed an unopposed motion for preliminary approval of the proposed consent decree, executed by the parties. The court held a hearing to discuss issues in the proposed consent decree and following the hearing, plaintiffs filed a motion for preliminary approval of a revised proposed consent decree, executed by plaintiffs. Defendants’ “response” to the preliminary approval motion was to argue that Wal-Mart presented obstacles to class certification and thus to approval of the revised proposed consent decree. At a hearing, defendants confirmed that the parties had reached an agreement to settle and that the terms were fair and reasonable. The court approved the revised proposed consent decree, certified the settlement class under Rule 23(b)(2), approved the amended proposed class notice, and ultimately gave final approval of the settlement.

Analysis: Unlike in Wal-Mart, the Cronas class consisted of 317 officer-level women all employed at a single location, where pay and promotion decisions were subject to a single ultimate decision maker. Plaintiffs’ statistical and anecdotal evidence suggested statistically significant disparities with respect to pay and job titles at a single Willis office. The parties agreed to an allocation of back pay to class members to be determined by a formula and defendants had no remaining right to raise individual defenses or seek individualized determinations. Even though the agreed-upon settlement fund was over $11.5 million, the court was satisfied that the class-wide injunctive relief in the settlement was central to the resolution of the case and that the plaintiffs’ backpay claims were incidental to the injunctive relief. United States v. City of New York, 2011 U.S. Dist. LEXIS 73663 (E.D.N.Y. July 8, 2011)

Background: The United States and Plaintiff-Interveners, who are black applicants for entry-level firefighter positions in the New York City Fire Department, filed disparate impact and disparate treatment claims of race discrimination in hiring. The court had previously certified a (b)(2) class seeking injunctive relief, backpay, and compensatory damages and had entered class-wide liability findings against the City on both disparate impact and disparate treatment claims. After Wal-Mart, the City moved to decertify the class and plaintiffs conceded that the remedial phase could not proceed as a (b)(2) class. The court denied the City’s motion to decertify the class but modified the certification ruling using its authority under Rule 23(c)(4).

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The court also denied the intervener plaintiffs’ motion for summary judgment as to compensatory damages for noneconomic losses.

Analysis: The court described the four common questions that were relevant to the class’s disparate impact and pattern-or-practice disparate treatment claims as: (1) whether defendants’ use of the challenged firefighter exams had a disparate impact on black entry-level firefighter applicants; (2) whether defendants’ use of those exams was job-related and consistent with business necessity; (3) whether alternative practices that satisfy the asserted business necessity without disparate effect were available; and (4) whether defendants engaged in a pattern or practice amounting to intentional discrimination. The court concluded that the Second Circuit’s ruling in Robinson v. Metro-North that a court should use its authority under (c)(4) (allowing certification of particular issues) to certify the liability phase of a claim under (b)(2) even if the claim as a whole cannot be certified under (b)(2) was still good law after Wal-Mart. The court had previously ruled that these four liability questions were susceptible to class-wide proof and found for the plaintiffs on liability, and that ruling was undisturbed by the Wal-Mart decision. Issue certification of bifurcated liability-phase questions is fully consistent with Wal-Mart’s careful attention to the distinct procedural protections attending (b)(2) and (b)(3) classes. The court also certified under (b)(3) two subclasses: applicants who were not hired and applicants who were hired later than they would have been absent discrimination. Although some questions about the remedies for class members would be individualized, the court held that predominance and superiority were satisfied because each of the subclass members’ claims arose from the same core allegations, the class had common interests in organizing the individual relief process and the criteria used to determine who is eligible for individual monetary or injunctive relief. The resolution of individual questions about a particular claimant’s eligibility for relief, mitigation, or damages was of relatively minimal significance to the litigation as a whole. The court declared that it would assess aggregate backpay, retroactive seniority and available priority hiring relief on a class-wide basis and relief would be distributed to individual claimants pro rata. Oakley v. Verizon Comm. Inc., 2012 U.S. Dist. LEXIS 12975 (S.D.N.Y. Feb. 1, 2012)

Background: Plaintiffs, a group of current and former non-management employees of various Verizon entities employed at locations in the Mid-Atlantic, New York or New England regions, alleged that they were illegally denied benefits under the Family Medical Leave Act. They moved for class certification under Rule 23(b)(1) and (b)(3) of an overall class, as well as two subclasses. The court denied certification entirely.

Analysis: Verizon conceded that its FMLA policies are uniform and mandatory for all corporate entities. The court denied certification of the subclasses because the plaintiffs failed to set forth why the subclasses met any Rule 23 requirements. The plaintiffs identified nine distinct policies – all were uniform to some extent and all related to FMLA but not all of them impaired every class member. “That many different Verizon employees were denied FMLA leave, for a variety of reasons under a variety of policies in a variety of locations, does not make the questions in each class member’s case common to the others.” Determining whether one of the nine challenged policies is illegal would not advance the claims of class members who were denied FMLA leave under one of the other challenged policies. The court suggested that it would have to certify a separate class for each FMLA-inhibiting policy identified by plaintiffs, and perhaps subclasses certified by location and/or whether there were different collective bargaining units, and that such subclasses may not meet the numerosity requirement. Plaintiffs’ proposed class included former employees as well as current employees and did not specify how

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subclasses of current employees might be certifiable under 23(b)(1), so the court summarily denied certification under 23(b)(1). The court also rejected certification under 23(b)(3) because, while the FMLA policies themselves are uniform, the class member’s entitlement to relief hinges upon what discipline, if any, the FMLA policies caused them to suffer. Individual questions of causation in each case would be extensive and individualized damages issues would abound. The court acknowledged that the existence of individualized questions does not necessarily defeat predominance, but concluded that because of the number and relative complexity of individualized issues, any common questions that might exist did not predominate over individualized questions. Wage and Hour Cases Winfield v. Citibank, N.A., 2012 U.S. Dist. LEXIS 16449 (S.D.N.Y. Jan. 27, 2012)

Background: Plaintiffs were personal bankers employed at Citibank and brought FLSA overtime and ERISA claims, as well as claims under various state laws. Plaintiffs claimed that they were not always compensated for overtime they worked and that the failure to pay overtime was the result of Defendant’s conflicting policies of strictly limiting the number of overtime hours personal bankers could accrue while simultaneously encouraging them to work overtime by requiring them to meet strict sales quotas that could not reasonably be accomplished in a forty-hour work week. Plaintiffs moved for conditional certification of claims under FLSA and various states’ overtime laws. In the decision addressing the FLSA overtime claims, the court granted Plaintiffs’ motion for conditional certification and nationwide notice to individuals on an identified class list.

Analysis: Plaintiffs presented evidence that their sales quotas were set by uniform standards and that the quotas were enforced by a nationwide step-by-step disciplinary process. Citing to other courts that have found plaintiffs to be similarly-situated when they made common allegations that similar dual-edged policies effectively required them to work uncompensated overtime, the court determined that plaintiffs met their minimal burden of showing that they were similarly situated to one another and to potential opt-in plaintiffs. The relevant issue was not whether plaintiffs and potential opt-in plaintiffs were identical in all respects, but rather whether they were subjected to a common policy to deprive them of overtime pay. The court recognized that Defendant’s policy of limiting the amount of overtime accrued is facially lawful but pointed to several courts that have held that when a facially lawful policy is implemented in an unlawful manner, resulting in a pattern or practice of FLSA violations, such “de facto policies” can be actionable under the FLSA. The court also rejected Defendant’s Wal-Mart argument, citing to several decisions in which courts in the Second Circuit have repeatedly held that the more exacting Rule 23 requirements are not applicable to conditional certification motions. Lewis v. Alert Ambulette Serv. Corp., 2012 U.S. Dist. LEXIS 6269 (E.D.N.Y. Jan. 19, 2012)

Background: Plaintiffs, who worked as ambulette drivers in New York City, alleged that defendants’ violated the FLSA and New York Labor Law by refusing to pay overtime wages, improperly making deductions to their pay, and refusing to pay drivers who worked twelve-hour shifts the additional hour of pay required under New York’s spread of hours requirement. Plaintiffs moved for certification of an FLSA opt-in collective action and a class action under Rule 23 for their state claims. Defendants consented to certification of plaintiffs’ proposed

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collective and class action but the court held a hearing, reviewed the law and facts and issued a decision granting the certification motion.

Analysis: The court gave a mini-treatise on the standards for conditional certification, but ultimately held that because defendants did not dispute that plaintiffs are similarly situated to absent class members, plaintiffs met the “fairly lenient standard” for conditional FLSA certification. Likewise, defendants conceded that plaintiffs had similar job duties, have identified the same allegedly illegal wage practices, had timesheets that they all worked approximately twelve-hour days, and submitted payroll records reflecting deductions they were subjected to. The court ruled that while damages owed to each driver will require individual determinations, this computation is not enough to destroy the commonality, typicality or predominance requirements. The court noted that wage and hour cases are especially suited to class litigation and cases where the plaintiffs’ facts would be subject to individualized proof are the exception rather than the rule. Pippins v. KPMG LLP, 2012 U.S. Dist. LEXIS 949 (S.D.N.Y. Jan. 3, 2012)

Background: Plaintiffs, who were employed as Audit Associates in six different states, alleged that they were misclassified as exempt employees and denied overtime wages properly due them under the FLSA and the New York Labor Law. The court granted plaintiffs’ motion for conditional certification and ordered notice to potential opt-in plaintiffs.

Analysis: The court noted that Wal-Mart is not applicable in the FLSA context: nothing in Wal-Mart speaks to an FLSA case, it is well-established that Rule 23’s requirements do not apply and “conditional certification is predicated on the substantial similarity of class members’ job situations, rather than on showings of numerosity, commonality and typicality.” Nonetheless, the court went on to say that the FLSA claims in this case do not require an examination of the subjective intent behind millions of individual employment decisions but instead whether the company-wide policy violated plaintiffs’ statutory rights. “In other words, KPMG’s alleged policy of classifying all Audit Associates as exempt is the ‘glue’ that the Supreme Court found lacking in Dukes.” The court found that plaintiffs were similarly situated with respect to their job duties: the job description for the Audit Associate position was identical across offices, all Audit Associates underwent uniform training, were governed by the same regulatory and professional standards in the performance of their duties, were subjected to the same compensation policies and practices, and defendant’s alleged misclassification could be determined on a collective basis.

Gardner v. Western Beef Props., 2011 U.S. Dist. LEXIS 141696 (E.D.N.Y. Dec. 9, 2011) Gardner v. Western Beef Props., 2011 U.S. Dist. LEXIS 146467 (E.D.N.Y. Sept. 26, 2011)

Background: Plaintiffs, who worked as managers and assistant managers at 22 grocery stores across three states, brought overtime claims under the FLSA and New York Labor Law. The magistrate judge recommended that plaintiffs’ motion to certify the NYLL claims be denied and the district judge adopted his recommendations and denied the motion.

Analysis: The magistrate judge concluded that the liability question was not resolvable “in one stroke” because of the “tremendously disparate accounts” the department managers and assistant department managers gave in depositions of their work responsibilities. The district judge agreed: although management misclassification suits “are not categorically incapable of class treatment,” the plaintiffs in this case failed to show that plaintiffs’ jobs were similar in ways material to the exemption criteria. The district judge acknowledged that defendants treated all department managers and assistant department managers as qualified for the management

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exemption and yet asserted that the same group’s duties were too disparate for class treatment in litigation. But the plaintiffs had little else: some depositions comported with plaintiffs’ misclassification theory but others directly contradicted it. The district judge, in his de novo review of the evidence, could not find that plaintiffs’ job responsibilities were “largely consistent” or that their deposition testimony about their jobs was “generalizable” to others in the proposed class. Espinoza v. 953 Assocs. LLC, 2011 U.S. Dist. LEXIS 132098 (S.D.N.Y. Nov. 16, 2011)

Background: Plaintiffs alleged violations of FLSA, New York Labor Law and NY Code of Rules and Regulations for minimum wage, overtime and tip retention violations. Plaintiffs moved for certification of the minimum wage and overtime claims as both a collective action under the FLSA and a class action under the NYLL and moved for notice to the putative FLSA class to allow members to opt in to the FLSA collective action. The court certified a collective action under the FLSA and a class action for the NYLL claims under Rule 23(a) and (b)(3) for one of the restaurants where plaintiffs worked.

Analysis: As to FLSA certification, plaintiffs alleged that they and their coworkers performed the same type of restaurant-related tasks and their allegations of minimum wage and overtime violations were largely corroborated by a former manager. This was sufficient to establish that plaintiffs and the class are similarly situated and plaintiffs were entitled to proceed in a representative capacity and send opt-in notices to potential class members. As to Rule 23 certification, plaintiffs’ and putative class members’ claims arose from a common wrong: Defendants’ failure to pay proper minimum wage and overtime compensation for work performed in a given week. The court held that Rule 23’s commonality requirement may be met when individual circumstances of class members differ but their injuries derive from a unitary course of conduct. In Wal-Mart, “the crux of the inquiry would be the reasons for the particular employment decisions [which] would require analyzing millions of subjective employment decisions.” In Espinoza, plaintiffs alleged that defendants failed to pay minimum wages and overtime compensation as a result of certain policies and practices. The court noted that “[a]lthough plaintiffs’ claims may raise individualized questions regarding the number of hours worked and how much each employee was entitled to be paid, those difference go to the damages that each employee is owed, not to the common question of defendants’ liability. Plaintiffs have alleged a common inquiry that is capable of class-wide resolution without inquiry into multiple employment decisions applicable to individual class members.” Youngblood v. Family Dollar Stores, Inc., 2011 U.S. Dist. LEXIS 115389 (S.D.N.Y. Oct. 4, 2011)

Background: Plaintiffs are store managers at Family Dollar Stores in New York State alleging overtime compensation claims under the FLSA and NYLL. The court certified the class under Rule 23(b)(3). There was no discussion of certification as a collective action under the FLSA.

Analysis: Defendants contended that plaintiffs’ jobs duties varied from store to store and would require a fact-intensive, individualized inquiry to determine whether the store managers were exempt from NYLL overtime requirements, but the court was not persuaded. Defendants had centralized corporate policies that set out in minute detail “consistent,” “standardized,” and “uniform” day-to-day job responsibilities for all Family Dollar store managers. In addition, defendants decided to make exempt all store managers after visiting six stores and interviewing

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thirteen managers out of approximately 6,800 store managers. Even assuming that there were some variations among daily tasks, these detailed corporate policies created common questions as to whether the store managers were properly classified as exempt. Alli v. Boston Mkt. Co., 2011 U.S. Dist. LEXIS 101530 (D. Conn. Sept. 8, 2011)

Background: Plaintiffs, who were Assistant General Managers, Culinary Managers, or Hospitality Mangers, at restaurants in New York and Connecticut, brought overtime claims under the FLSA and related state law claims, and moved to conditionally certify the collective action. The court conditionally certified the collective action and ordered notice sent to potential opt-in plaintiffs.

Analysis: The court stated that the issue raised by a motion for conditional certification is “quite distinct” from the much higher threshold of commonality and predominance in Rule 23 class actions. “Assuming for the sake of argument that these Rule 23 cases might provide some guidance in FLSA collective action cases, they do not alter the standard applicable at the initial, conditional certification stage. Until the potential plaintiffs receive notice and decide whether to opt-in, the court should not and will not decide whether the case actually ought to be resolved as a collective action.” Odom v. Hazen Transp., Inc., 2011 U.S. Dist. LEXIS 86760 (W.D.N.Y. Aug. 5, 2011)

Background: Plaintiffs, delivery drivers classified by defendant as “independent contractors” sued under FLSA and NYLL, alleging that they were employees by virtue of the degree of control defendant exerted over their hours, ability to work for other companies, delivery routes, and attire, and that defendant failed to pay them overtime and improperly deducted the cost of leasing trucks and other fees from their pay. The parties reached a settlement agreement, issued notice to class members, and moved the court to certify the settlement class, approve the settlement and award attorneys’ fees.

Analysis: The court certified the settlement class, finding that, under Wal-Mart, the question of whether Defendant was an employer was an issue common to all plaintiffs and central to resolution of the claims. Likewise, all plaintiffs raised the identical claim that they were incorrectly classified as independent contractors and denied overtime compensation by defendant. The court ruled that the settlement amount, although approximately one-third of the total damages recoverable if plaintiffs were to prevail on all claims, was a reasonable compromise that accounted for the genuine risks of continued litigation. Morangelli v. Chemed Corp., 2011 U.S. Dist. LEXIS 73807 (E.D.N.Y. July 8, 2011)

Background: In a pre-Wal-Mart order, the court had certified a nationwide class of service technicians for claims of: (1) imposing business expenses on the technicians; (2) failing to compensate them for time shaved from actual hours of work, time spent at meetings, and time spent maintaining their vans and equipment; and (3) taking deductions from the technicians’ wages. Defendant filed a motion to reconsider only the certification of the claims about the time technicians spent on maintaining their vans and equipment because liability on these claims is impossible to determine without individual testimony. The court amended the class certification order.

Analysis: The court determined that, because there was no policy about compensating technicians for van and equipment maintenance tasks, the question of liability on this claim would be about the employer’s practice. The question of “how the policy of not providing an

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easy way to receive compensation for time spent on maintaining technicians’ vans and tools leads to the practice of not compensating for this work” could only be resolved through a highly individualized inquiry. The court amended the class definition to exclude claims for uncompensated hours for maintaining the class members’ vans and equipments. Ramos v. SimplexGrinnell LP, 2011 U.S. Dist. LEXIS 65593 (E.D.N.Y. June 21, 2011)

Background: Plaintiffs, a group of employees in offices throughout New York, alleged that they were not paid prevailing wages for their work on public works projects, in violation of New York Labor Law. Defendant argued that its lack of uniform procedures for paying prevailing wages defeated commonality. The court certified a (b)(3) class for monetary relief.

Analysis: The court held that, although there were some individualized issues, “defendants’ various New York regional offices apparently did have one policy in common, at least according to plaintiffs’ allegations: a failure to adopt a regularly employed and reliable method of distinguishing covered work and ensuring that prevailing wages were paid to employees for covered work they performed.” The individual questions related primarily to the level of damages, if any, owed to each individual, and not to the question of liability. The court distinguished the case from Wal-Mart by finding that the plaintiffs came forward with significant proof that defendant routinely failed to account for labor performed on public works projects and pay prevailing wages for covered work. In addition, the court concluded that plaintiffs could calculate class damages by applying a common formula to data culled from defendant’s electronic records.

Wal-Mart v. Dukes Cited But No Significant Discussion Jock v. Sterling Jewelers, Inc., 646 F.3d 113 (2d Cir. 2011)

Background: Plaintiffs, a group of female retail sales employees of defendant’s national jewelry chain stores, filed suit in the S.D.N.Y. asserting claims under Title VII, EPA, and ADA alleging that Sterling’s discriminatory promotion and compensation policies denied promotional opportunities to female employees and paid female employees less than male employees. Plaintiffs also filed a class arbitration complaint with the AAA, challenging the same practices and alleging the same claims. Plaintiffs moved to stay the litigation in favor of the arbitration. The parties asked the arbitrator to determine whether Sterling’s arbitration agreement permitted class arbitration and the arbitrator determined that it did. Sterling moved in the district court case to vacate the arbitration award, which was first denied but reconsidered and then granted after the Supreme Court’s ruling in Stolt-Nielsen v. Animalfeeds Int’l Corp., 130 S. Ct. 1758 (2010). Plaintiffs appealed to the Second Circuit.

Analysis: The dissent describes the case as “the arbitration counterpart to Wal-Mart Stores, Inc. v. Dukes.” The court ruled that the district judge improperly substituted its legal reasoning for the arbitrator’s when the question of whether the parties intended to permit class arbitration was properly submitted to the arbitrator and neither the law nor the agreement barred her from deciding the issue. There is no significant discussion of Dukes in this decision, but the majority noted in a footnote that Dukes may give the arbitrator principles to consider when she is presented with the employees’ motion to certify the class but Dukes in no way informs or detracts from the question presented by the parties – “to wit, whether the agreement permits class arbitration at all.”

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Teoba v. Trugreen Landcare, L.L.C., 2011 U.S. Dist. LEXIS 89446 (W.D.N.Y. Aug. 11, 2011) Background: Plaintiffs moved to file a Second Amended Complaint and to approve

notice to the class of this FLSA and breach of contract action. The motion was granted subject to court review of the notice and method of distribution.

Analysis: The court rejected defendant’s argument that Wal-Mart precluded plaintiffs from adding a breach of contract claim to their second amended complaint. Although the court stated that whether class certification is ultimately appropriate was a question for another day, it did note that the case appeared to involve a uniform policy and practice of not reimbursing plaintiffs for recruitment, visa or transportation expenses that had issues of fact common to all putative plaintiffs. Chen-Oster v. Goldman, Sachs & Co., 2011 U.S. Dist. LEXIS 73200 (S.D.N.Y. July 7, 2011)

Background: Plaintiffs alleged a pattern of gender discrimination against female professional employees. Defendants moved to stay the action as to one named plaintiff and to compel arbitration of her individual claims. The court previously denied defendants’ motion and defendants moved for reconsideration in light of the Supreme Court’s holding in AT&T Mobility LLC v. Concepcion and submitted supplemental briefing related to Wal-Mart. The motion was denied.

Analysis: The court rejected defendants’ argument that Wal-Mart was directly relevant to whether the named plaintiff has a statutory right to bring claims on behalf of putative class members. The court stated that Wal-Mart “may be relevant to the substance of the plaintiff’s pattern or practice claim and her ability to obtain certification under Rule 23, but is not pertinent to her ability or right to bring a pattern or practice claim to the court.” Wenzel v. Partsearch Techs., Inc,. 453 B.R. 84 (Bankr. S.D.N.Y. 2011)

Background: The debtor, an electronic and appliance store, filed for Chapter 11 bankruptcy. Plaintiffs filed a class action complaint, alleging violations of the WARN Act and the New York WARN Act and seeking priority wage claims against the debtor. The parties filed a motion seeking final approval of their settlement. The court held that certification of the settlement class was appropriate and approved the settlement and attorneys’ fee award.

Analysis: The commonality requirement was clearly met because the court would need to adjudicate whether the class members were all subject to the same plant closing or mass layoff and whether a sufficient number of employees suffered an employment loss as to trigger the notice requirements under the WARN Act. The only distinct issue among class members was each individual’s rate of pay and benefits, but the fact that the class members suffered different damages was no bar to class certification.

THIRD CIRCUIT Spellman et al v. American Eagle Express, 2011 WL 4014351 (EDPa 2011)

Background: FLSA collective action brought by all former and current delivery drivers who may be owed overtime under FLSA. On May 18, 2011 Court granted Plaintiff’s motion for conditional class certification, concluding that under Third Circuit law, plaintiff need only make a “modest factual showing” that the similarly situated requirement is required. Defendant filed motion for reconsideration arguing that post-certification decision by Supreme Court in Wal-Mart v. Dukes, 131 S.Ct.2541 (2011) renders conditional certification inappropriate. Motion was

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denied holding that the Third Circuit’s modest factual showing for conditional certification is not affected by Dukes.

Analysis: Without analysis, the Court concluded that Dukes may have an impact on what constitutes a “common question” is persuasive to this collection action, but not at the conditional certification stage. Bell et al v. Lockheed Martin Corporation, 2011 WL 6246978 (D.N.J.2011)

Background: Nationwide gender and retaliation employment class action suit under Title VII and state wide under NJLAD, the core of which was alleged company-wide policies having a disparate impact on female employees in compensation and advancement. Relief sought included back pay, front pay, reinstatement, promotion, compensatory and punitive damages. Court denied motion for class certification based on Wal-Mart v. Dukes.

Analysis: Parties agreed that Wal-Mart controlled case. Plaintiff stated that they would not be seeking certification of retaliation claims or compensatory or punitive damages on behalf of proposed class. Court concludes that seeking individual monetary back pay precludes 23(b)(2) class under Wal-Mart. Court agrees with Plaintiffs that Wal-Mart did not address Rule 23 (b)(3) but concludes that it did address 23(a)(2) and the need for common questions. Here, like Wal-Mart, the allegedly discriminatory policies essentially allowed for individual managerial discretion in wages and promotions, which did not satisfy Rule 23(a)(2). Court also considered statistical and anecdotal evidence of disparate impact and concluded it was substantially the same type of statistical and anecdotal evidence found inadequate in Wal-Mart.

In re Staples Inc. Wage and Hour Employment Practices Litigation, 2011 WL 5413221 (D.N.J. 2011)

Background: Court approval of global class action settlement and attorney’s fees. Analysis: As one of the bases for approval of the settlement and attorneys’ fees, the

Court cites Wal-Mart v. Dukes for the propositions that class certification law is constantly in flux and recent developments in the law may have inhibited plaintiffs’ ability to proceed as a class.

FOURTH CIRCUIT Scott v. Family Dollars Stores, Inc., 2012 WL 113657 (W.D.N.C. Jan. 13, 2012)

Background: Plaintiffs filed suit alleging, among other things, gender discrimination based on disparate impact and disparate treatment under Title VII and in violation of the Equal Pay Act for paying female store managers less than male store managers. The defendant moved to dismiss the plaintiffs’ original complaint based on the Supreme Court’s reasoning in Dukes. The plaintiffs then moved to amend the complaint, alleging instead that “the defendant engaged in a more centralized and non-subjective control of compensation for store managers.”

Analysis: In granting the defendant’s motion to dismiss the plaintiffs’ class action claims, the district court found that the plaintiffs could not satisfy Rule 23’s commonality requirement because the plaintiffs’ class action claims were identical to those alleged in Dukes. The court also found that because plaintiffs’ complaint alleged that they “were discriminated against based on their gender as a result of subjective decisions made at the local store levels…plaintiffs also cannot satisfy the nearly identical commonality that is required to certify a collective action under the EPA.” Although the court dismissed the plaintiffs’ class action

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claims, its decision did not bar individually named plaintiffs from pursuing those same claims. In denying the plaintiffs’ motion to amend the complaint, the court viewed the amended complaint as the plaintiffs’ attempt to avoid dismissal based on the reasoning found in Dukes because the factual allegations in the amended complaint pointed to “subjective, individualized decisions rather than pointing to any uniform company-wide policy that discriminates against store managers.”

MacGregor, v. Farmers Ins. Exchange, 2011 WL 2981466 (D.S.C. July 22, 2011)

Background: The plaintiffs sued the defendant for quantum meruit and violations of the FLSA alleging that defendant’s policies required plaintiffs and putative class members to regularly work over 40 hours without compensation. Plaintiffs sought, among other things, permission to send notice to putative class members of the collective action.

Analysis: In denying plaintiffs’ motion, the district court found that collective action treatment of the case was inappropriate because the plaintiffs failed to demonstrate even ‘a modest factual showing of a common policy or plan.” Although the court found the Dukes decision illuminating, it did not rely on Dukes for its decision because other district courts have similarly reached the same decision without relying on Dukes. Nevertheless the court reasoned “if there is not a uniform practice but rather decentralized and independent action by supervisors that is contrary to the company’s established policies, individual factual inquiries are likely to predominate and judicial economy will be hindered rather than promoted by certification of a collective action.” Moreover, the court explained “plaintiffs ask to conditionally certify a nationwide class of PCRs who worked for numerous different supervisors throughout the country. The facts presented do not suggest that a suit would involve anything other than inquiries into independent supervisor decisions regarding each individual PRC’s requested, approved, and refused hours.” Accordingly, the court ruled that a collective action was not appropriate.

Blaney v. Charlotte-Mecklenburg Hosp. Auth., 2011 WL 4351631 (W.D.N.C. Sep. 16, 2011)

Background: Plaintiffs, non-exempt nurses and nurse assistants, brought a collective action alleging that defendant violated the FLSA by failing to pay plaintiffs and putative class members overtime compensation for time worked during meal breaks and for failing to maintain and preserve accurate personnel records and time sheets.

Analysis: In denying plaintiffs’ motion for conditional certification, the district court held that plaintiffs failed to show that defendant was operating under an unlawful common policy or plan to deny wage compensation to plaintiffs and putative collective action members. The court reasoned that defendant had presented sufficient evidence that showed that it had an established policy requiring full compensation for all hours worked and that plaintiffs and the putative collective were not similarly situated. Citing Dukes, the court noted that, like the employment practice in Dukes, “Defendant’s policy requiring compensation for interrupted meal breaks was entirely dependent on decentralized management practices to ensure its enforcement; in essence, a policy against having a formal policy.” The court also rejected plaintiffs’ argument that defendant operated under “an ‘unwritten’ policy of only compensating plaintiffs for a missed ‘meal break’ as opposed to any interruption in the meal break, which superseded Defendant’s written policy of full compensation.” The court acknowledged that although such an unwritten policy, if proven, could be unlawful, “plaintiffs have presented no evidence of any unwritten

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policy which discouraged full compensation for even interrupted breaks, nor have Plaintiffs presented evidence of any requests for reversals of the auto-deductions that were denied.”

Horne v. Smithfield Packing Co., 2011 WL 4443034 (E.D.N.C. Sept. 23, 2011) Mitchell v. Smithfield Packing Co., 2011 WL 4442973 (E.D.N.C. Sept. 23, 2011) Harris v. Smithfield Packing Co., 2011 WL 4443024 (E.D. N.C. Sep. 23, 2011)

Background: In related cases, Plaintiffs filed a class action alleging violations of the FLSA and North Carolina Wage and Hour Act (“NCWHA”). The Magistrate Judge recommended that plaintiffs’ motion for conditional certification be granted and recommended a class definition. Both parties objected to the Magistrate Judge’s recommendation. Plaintiffs objected particularly to the recommended class definition and the Magistrate Judge’s suggestion that the parties discuss the proper class notice. The district court accepted the Magistrate Judge’s recommendations and granted plaintiffs’ motions for class certification of the NCWHA claims and conditional certification of the FLSA claims.

Analysis: The court reasoned that the Magistrate Judge had properly found that plaintiffs and the putative class were similarly situated because all were former employees at one of the defendant’s facilities in North Carolina and were paid on a “scheduled basis.” The court further noted that plaintiffs’ and the class claims arose from the same course of conduct because plaintiffs and the class were subjected to defendant’s use of a schedule-time compensation system and their claims addressed the same FLSA and NCWHA violations. The court distinguished this case from Dukes, explaining that unlike in Dukes, “this case involves a uniform policy or practice of compensating employees based on their scheduled shifts. While differences may exist among the putative class members with regard to the type of protective equipment worn, the method in which they donned and doffed the equipment, and whether they were compensated for any donning and doffing time, these differences relate primarily to the issue of damages, which ordinarily are insufficient to preclude class certification.”

Faust v. Comcast Cable Comm. Mgmt., LLC, 2011 WL 5244421 (D. Md. Nov. 1, 2011)

Plaintiffs sought conditional certification of an FLSA collective action. The court granted plaintiffs’ motion, finding that they had made a modest showing that all members of the collective were similarly situated. Defendant then filed a motion for leave to file a Sur-Reply, seeking permission to file additional briefing regarding the relevance of the Dukes case to the instant case. The Court denied the defendant’s motion, noting in footnote 1 that Dukes was inapplicable to the case.

Martinez-Hernandez v. Butterball, LLC, 2011 WL 4549606 (E.D.N.C. Sep. 29, 2011)

Background: Plaintiffs filed suit asserting that defendant violated the FLSA and NCWHA by failing to compensate them for time spent donning and doffing. The class was certified, but defendant moved for decertification.

Analysis: The district court denied defendant’s motion for class decertification, finding that the proposed class satisfied Rule 23 requirements. The court distinguished the case from Dukes, explaining that, “In Dukes, there was no single decision, policy or plan at issue, and the defendant’s liability to the individual class members depended on unique and subjective circumstances. In contrast, this case involves a uniform policy or practice of compensating employees based on their scheduled shifts. The primary issue with regard to all of the plaintiffs’ payday claims is whether their donning and doffing of protective equipment and related activities

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constitutes ‘work’ within the meaning of the NCWHA. While plaintiffs’ claims may involve some individualized assessment of damages, this is not a situation where “the functional equivalent of a full-blown trial on ... causation” would be required for each putative class member.”

FIFTH CIRCUIT Iberia Credit Bureau, Inc. v. Cingular Wireless, 2011 WL 5553892 (W.D. La. Nov. 11, 2011)

Background: Plaintiffs moved to certify several Rule 23 classes – including governmental entities, non-governmental entities and individuals – who contended they were overcharged by Cingular’s practice of rounding-up customers’ cell phone usage to the nearest minute. The proposed classes were nationwide in scope, and dated from 1991 to the present. Plaintiffs argued they met commonality and typicality because the action arose mostly out of standard form contracts and that breach of contract claims were common by their very nature. They also contended they established adequacy of representation because there were no conflicts between putative class members.

Analysis: The District Court granted Plaintiffs’ Motion to Certify as to the governmental entities, but denied it as to all other proposed classes. The District Court based its denial, in large part, on the Wal-Mart v. Dukes decision. It noted that, prior to Dukes, certification of the case “would have been less problematic.” The court held “[f]ollowing the Dukes’ reasoning, the fact that breaches of contractual terms may have occurred does not mean that every plaintiff suffering a breach has a common claim.” This was because there were “differing and disputed facts as to how non-governmental representative plaintiffs either became aware of ‘round-up minutes’, disputed such awareness or even agreed to same at the time of cell phone purchase or subsequently.” These differences, according to the court, are “akin to what Justice Scalia says ‘have the potential to impede the generation of common answers.’” Going further, the court noted that Dukes “throws serious doubt upon the future sustainability of Rule 23(a) class certifications . . . especially . . . where in a contractual setting, as here, there are several potential and varying answers to the question ‘how was the contract formed’ or ‘how, what and when were material terms and conditions delivered’, and ultimately several ways that a potential breach of contract occurred or did not – depending on individual analysis of claims and defenses.” The Iberia decision is also significant because footnote 4 invites national policymakers to “consider revisiting FRCP 23 and its sub-parts in light of…[Wal-Mart v. Dukes]” because “[t]he viability of class actions…is ripe for review by those who set national policy.” The Iberia court concluded that, because of Dukes, “the future of one of the best methods of processing large multiple party claims is in a state of uncertain transition.” Altier v. Worley Catastrophe Response, LLC, 2011 WL 3205229 (E.D. La. July 26, 2011)

Background: Plaintiffs sought Rule 23 class certification for unpaid wages claims in a case arising out of the Deepwater Horizon oil rig explosion in 2011. Worley Catastrophe hired plaintiffs, and the class they purported to represent, as claims adjusters to evaluate claims brought against BP regarding the Gulf oil spill. BP reimbursed Worley for the adjusters’ services. The adjusters claimed that written employment agreements obligated Worley to pay each of them, and all class members, 65% of whatever Worley received from BP for each adjuster’s services. The District Court denied Plaintiffs’ Motion for Class Certification.

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Analysis: Citing extensively to Dukes, the Court concluded that Plaintiffs met the first three requirements of Rule 23(a), but failed to show adequacy of representation. Plaintiffs established commonality and typicality as a result of Defendants’ apparent stipulation in a state court action that “all putative class members signed the same contract and suffered the same alleged injury.” As to numerosity, Worley argued that plaintiffs failed to establish that a sufficient number of named plaintiffs possessed standing. The Court brushed this argument aside, noting that even if accurate it did not defeat class certification. Regarding adequacy of representation, the Court reasoned that “the representative plaintiffs have presented no evidence to demonstrate that they are directing the litigation, are sufficiently informed to manage the litigation effort or have the willingness and ability to take an active role and protect the interests of the absentee class members.”

Plaintiffs essentially abandoned attempts to certify their class under Rule 23(b)(1) and (b)(2), leaving only (b)(3) for significant treatment by the Court. However, the court noted that Dukes “clarified” that Rule 23(b)(2) “applies only when a single injunction…would provide relief to each member of the class. It does not authorize…certification when each individual…would be entitled to a different injunction…against the defendant.” As to Rule 23(b)(3), Plaintiffs argued that common questions of fact and law predominated because “they all seek the same relief, i.e., the difference between the pay they received and the pay they allegedly were owed under their written employment contracts. Plaintiffs further alleged that their damages were readily ascertainable by formulaic treatment. The Court rejected these arguments, finding that such “mere assertions” failed to establish predominance. The court held that plaintiffs’ claims would “involve significant individualized damages issues” since Plaintiffs’ damages claim would require an extensive review of files and payments made per plaintiff. The court also emphasized Plaintiffs’ failure to provide it with a trial plan – a fatal error – given that Rule 23 requires district courts to “consider how a trial on the merits would be conducted if a class were certified.”

SIXTH CIRCUIT Ware v. T-Mobile USA, 2011 U.S. Dist. LEXIS 127091 (M.D. Tenn. Nov. 2, 2011)

Background: Customer Service Representatives and Technical Support Representatives brought an FLSA collective action alleging T-Mobile failed to pay for work performed before their shifts and during their meal breaks and miscalculated employees’ regular rate of pay. The District Court conditionally certified a class comprised of current and former employees at T-Mobile’s Nashville and Colorado Springs call centers, which were the only call centers for which the plaintiffs adduced evidence. In opposing conditional certification, Defendant argued that the Supreme Court’s decision in Dukes trumped the Sixth Circuit’s holding in O’Brien v. Ed Donnelly Enterprises, 575 F.3d 567 (6th Cir. 2009) that employees may be similarly situated if their claims are “unified by common theories of defendants’ statutory violations, even if the proofs of these theories are inevitably individualized and distinct.” Thus, Defendant maintained that Dukes compelled the District Court to recognize the individualized nature of the plaintiffs’ FLSA claims and deny conditional certification. The District Court rejected this argument.

Analysis: The District Court noted that, in O’Brien, the Sixth Circuit distinguished Rule 23’s stringent criteria for class certification from the more lenient “similarly situated” requirement under Section 216(b). Thus, the District Court found that the Dukes holding, which arose in the context of a Rule 23 class action, was not applicable to an FLSA collective action.

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Accordingly, the Court ruled that the standard enunciated in O’Brien – that employees may be similarly situated if their claims are “unified by common theories of defendants’ statutory violations, even if the proofs of these theories are inevitably individualized and distinct” – remained controlling authority in the Sixth Circuit. Jones-Turner v. Yellow Enterprise Systems, LLC, 2011 U.S. Dist. LEXIS 118564 (W.D. Ky. Oct. 13, 2011)

Background: Emergency Medical Technicians sought certification of a Rule 23 class action seeking unpaid overtime compensation and injunctive relief under state law. The District Court denied certification.

Analysis: Relying on the Supreme Court’s holding in Dukes, the District Court found, in relevant part, that the class action could not be certified under Rule 23(b)(2) because the money damages sought were not incidental to the injunctive relief demanded in the case. Creely v. HCR ManorCare, Inc., 2011 U.S. Dist. LEXIS 77170 (N.D. Ohio July 1, 2011)

Background: Defendant moved the District Court to reconsider its earlier grant of conditional certification in an FLSA collective action (see Creely v. HCR ManorCare, Inc., 789 F. Supp. 2d 819 (N.D. Ohio 2011)) in light of the Supreme Court’s holding in Dukes. The District Court found Dukes had no effect on its conditional certification analysis and declined to disturb its earlier ruling.

Analysis: The District Court found the Dukes holding to be inapposite for three reasons. First, citing O’Brien v. Ed Donnelly Enterprises, 575 F.3d 567 (6th Cir. 2009), the Court noted that the Sixth Circuit has drawn a distinction between Rule 23(a)(2)’s commonality requirement and the FLSA’s similarly situated requirement, expressly declining to apply the Rule 23 standard in the context of FLSA claims. Second, the Court found the claims in Creely to be fundamentally different from those in Dukes. The issue in Creely was whether Defendant’s company-wide meal break policy violated the plaintiffs’ rights, whereas Dukes involved millions of allegedly discriminatory employment decisions that would have to be analyzed individually. Thus, the claims in Creely did not present the same manageability concerns as those in Dukes. Finally, the District Court found that the opt-in procedure for FLSA collective actions alleviated the due-process concerns under Rule 23(b)(2) – i.e., the absence of notice and opt-out procedures – that led the Supreme Court to hold that a class action cannot proceed under that section where the plaintiffs’ individualized money-damages claims predominate over the common injunctive relief sought.

SEVENTH CIRCUIT Ross v. RBS Citizens, N.A., No. 10-3848 (7th Cir. Jan. 27, 2012)

Background: Plaintiffs filed suit seeking a class action on behalf of two groups of Illinois employees: (1) employees classified as assistant branch managers and (2) employees who were subject to unlawful compensation policies resulting in the failure to pay overtime for all hours worked in excess of 40 per work week. The district court granted plaintiffs’ motion to certify two classes of employees pursuant to FRCP Rule 23. The bank appealed the certification order, asserting that the district court’s order did not comply with Rule 23(c)(1)(B) and the two certified classes did not satisfy the commonality prerequisite post-Dukes.

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Analysis: The Seventh Circuit affirmed the district court’s decision, concluding that the district court’s order was sufficiently comprehensive and specific to meet the requirements of Rule 23(c)(1)(B). The court also rejected the bank’s argument that the class certification order creates a conditional class that hinges on whether the bank’s overtime policy was unlawful, concluding that such a policy could be inferred based on the number of people who submitted declarations across branches, managers, positions and time frames. Finally, the court rejected the bank’s argument that the two classes’ claims require the same significant and time consuming individualized inquiries that the U.S. Supreme Court found problematic in Dukes. Unlike Dukes, the Illinois wage claims pursued by the plaintiffs did not require proof of individual discriminatory intent; rather, they uniformly assert that the bank enforced an unofficial policy denying employees overtime pay. The court concluded that the existence or non-existence of the unofficial policy is the common answer that drives the litigation and, therefore, the case is distinguishable from Dukes. Curry v. Kraft Foods Global, Inc., 2011 WL 4036129 (N.D. Ill. Sept. 12, 2011).

Background: Plaintiffs, hourly employees at defendant’s Naperville, IL facility, brought state claims against defendant for unpaid overtime. Plaintiffs, who were required to wear certain personal protective equipment (e.g., earplugs, hard hats, etc.), claimed that defendant had not counted the donning and doffing as part of their “work time,” so they were never compensated appropriately. Defendant argued that plaintiffs could not satisfy the typically and adequacy representation requirements. Specifically, defendant attempted to factually distinguish the characteristics of the individual class members (e.g., differences in each employee’s hours and pay, varied protective gear “donned and doffed” by each employee).

Analysis: The court concluded that because the named plaintiffs challenged the legality of defendant’s prohibition on compensation for donning and doffing, and this would be the exact same claim of any potential class members, the typicality requirement was met. Also, defendant challenged the adequacy of the named plaintiffs to represent the class based on the plaintiffs’’ credibility and their involvement in the litigation process. The court rejected these arguments, and proceeded to its analysis under Rule 23(b). Ultimately, the court concluded that the plaintiffs met the requirements of predominance and superiority. The court relied on Dukes to emphasize the plaintiffs’ burden in Rule 23 cases. Groussman v. Motorola, Inc., 2011 WL 5554030 (N.D. Ill. Nov. 15, 2011).

Background: Plaintiffs were participants in the defendant’s 401(k) Plan for employees of defendant. Plaintiffs brought several claims under ERISA seeking to certify a proposed class comprising “all persons who were participants in, or beneficiaries of, the plan at any time between July 1, 2007 and December 31, 2008, and whose accounts included investments in defendant’s stock.” Plaintiffs asserted that they satisfied the requirements under Rule 23(a), Rule 23(b)(1) and (3) while defendants argued that plaintiffs failed to satisfy the commonality or typicality requirements of Rule 23(a) or show that plaintiffs were adequate class representatives. Defendants also argued that plaintiffs had not satisfied the requirements outlined in Rule 23(b)(1) or (3).

Analysis: The court agreed with defendants, citing Dukes to explain that plaintiffs failed to meet the commonality requirement under Rule 23, which requires more than “merely some common aspects among class members.” The district court highlighted that plaintiffs failed to show that the proposed class members suffered the same injury or that key common issues of

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fact or law are capable of resolution in a class action. The court concluded that plaintiffs’ argument that the commonality requirement is met simply because all proposed class members were participants in the plan and had invested in defendant’s stock is “the type of loose factual connection[] among class members that does not suffice under Dukes. Nor can Plaintiffs satisfy the commonality requirement by general allegations that all proposed class members [would] argue that Defendants violated ERISA and that Defendants breached their fiduciary duties.” The court finally noted that the dates of plaintiffs’ proposed class period were also arbitrary.

Hawkins v. Securitas Srvs USA, Inc., 2011 WL 5598365 (N.D. Ill. Nov. 16, 2011). Background: Plaintiffs’ complaint alleged plaintiffs performed three categories of off-

the-clock work for Securitas: (1) mandatory training and orientation; (2) work performed before and after their shifts; and (3) cleaning and maintaining their uniforms, and that defendant failed to pay them for such work in violation of the Fair Labor Standards Act (“FLSA”) and the Illinois Minimum Wage Law (“IMWL”). The court denied the plaintiffs’ request for class certification for the second and third categories, but granted certification for the first category.

Analysis: The court first cited Dukes to reiterate that class certification analysis “frequently . . . [would] entail some overlap with merits of the plaintiff’s underlying claim,” and then to explain the commonality requirement under Rule 23(a)(2). The court concluded that the commonality requirement was satisfied for the “training claim, which present[ed] the common factual question of whether Securitas required its employees to undergo training and orientation and the common legal question of whether the time spent on training and orientation [was] compensable under the IMWL.” After concluding that plaintiffs met all of requirements under Rule 23, the court certified a more narrow class than plaintiffs had proposed: “[a]ll individuals who were employed or [were] currently employed by Defendant, its subsidiaries or affiliated companies, in the State of Illinois as hourly paid, non-exempt, uniformed security officers or other similarly titled positions who attended mandatory training or orientation programs at Defendant’s direction for any period of time during the relevant statute of limitations period.” McReynolds v. Merrill Lynch, Pierce, Fenner & Smith , Inc., 2011 WL 4471028 (N.D. Ill. Sept. 19, 2011).

Background: Despite the court’s orders denying plaintiff’s motion to certify a class on August 9, 2010 and again on February 14, 2011, the court agreed to hear plaintiff’s “amended post-Wal-Mart motion for class certification,” in which plaintiff argued that the Wal-Mart decision actually supported the certification of a class alleging strictly a disparate impact claim.

Analysis: Plaintiff argued that the court should certify a hybrid class employing both Rule 23(b)(2) (injunctive and declaratory relief only) and Rule 23(b)(3) (to allow subsequent recovery of back wages) in a bench trial on the issue of liability, followed (if successful) by the appointment of a special master to conduct individual damages proceedings. Plaintiff identified two specific employment policies and offered statistical evidence to demonstrate that their purported class earned far less than their white counterparts, thus demonstrating a disparate impact. Plaintiff argued that this was enough to meet the requisite showing to certify a disparate impact class. However, the court declined to certify a class again. The court cited Dukes first to explain that plaintiffs could not establish that “that there [were] questions of law or fact common to the class”—a threshold requirement of Rule 23(a)(2). Moreover, the court criticized plaintiff’s analysis of the Dukes decision for its “failure to account for the requirement that the identified policy must have caused the disparate impact.” Ultimately, the court pointedly

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concluded, “the dissimilarities within the proposed class . . . impede the generation of common answers, and preclude class certification” [internal quotations omitted]. Mezyk v. U.S. Bank Pension Plan, 2011 WL 6729570 (S.D.Ill. Dec. 21, 2011).

Background: Plaintiff pled six causes of action under the Employee Retirement Income Security Act (“ERISA”). Defendants asked the court to reconsider parts of its original decision to certify Class 1 for several claims in light of Wal-Mart v. Dukes. By definition, Class 1 comprised “[a]ll current and vested former U.S. Bank Pension Plan participants, and their beneficiaries, who accrued benefits prior to January 1, 1999, and had active cash balance accounts on and after January 1, 1999.” Defendant argued that Dukes foreclosed certification under FRCP 23(b)(2) for certain claims, such as Count 1, that required individualized determinations of relief.

Analysis: The court explained that Dukes did not render certification under Rule 23(b)(2) improper because the relief sought by plaintiffs was for declaratory or injunctive relief that would apply to the class as a whole. Unlike Dukes, resolving plaintiffs’ claims in this case would not require individualized declarations or injunctions; therefore, the court declined to decertify Class 1 or Class 2, and reserved ruling on the Plaintiffs’ motion for additional class certification. Williams-Green v. J. Alexander’s Rest., Inc., 2011 WL 3882797 (N.D. Ill. Sept. 1, 2011).

Background: Plaintiff alleged that defendant violated state wage laws by operating an improper tip pool and by failing to pay the proper amount of overtime pay. Both parties filed motions for summary judgment, and the plaintiff filed a motion for class certification. The motion for class certification was granted. Defendant argued that class certification should be denied because the proposed class could not satisfy the commonality requirement under Rule 23(a)(2), and because the proposed class could not satisfy the predominance and superiority requirement under Rule 23(b)(3). Defendant compared plaintiff’s allegations to those in Dukes, which the court found, “involved isolated incidences of improper conduct by individual managers rather than uniform conduct undertaken in furtherance of company-wide policy.”

Analysis: The court disagreed with the defendant’s argument, and concluded that plaintiff identified evidence to support her allegations of a widespread practice (e.g., managers purportedly told plaintiff that defendant retains a portion of the tip pool). Furthermore, although the defendant argued that plaintiff could not establish predominance because she “failed to show any standardized conduct or policy that applied to all tipped employees and thus individualized inquiry into the merits of each employee’s claims would be necessary,” the court concluded that defendant’s own summaries showed that tip shares were not always fully redistributed. Nehmelman v. Penn Nat’l Gaming, Inc., 2011 WL 4538698 (N.D. Ill. Sept. 29, 2011).

Background: Plaintiff filed suit on behalf of herself and others similarly situated to recover unpaid wages under the FLSA and IMWL. In support of her motion for conditional certification, plaintiff submitted her own declaration, and the declarations of former employees and opt-in plaintiffs. Plaintiff identified seven policies (but focused only on four in this motion) that deprived employees in the Games Department of overtime compensation. Defendant, in turn, submitted twelve declarations from current employees to oppose class certification, and plaintiff’s deposition transcript, which highlighted several contradictions between her deposition testimony and declaration. Defendant first argued that many of the policies plaintiff complained

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of were either inaccurately represented by plaintiff or did not exist at all, and second, that a class-wide determination regarding the impact of the casino’s policies was “not possible due to the individualized inquiry that would be required.”

Analysis: The court refused to consider the merits of the case or assess witness credibility, and also concluded that it was “not convinced” that plaintiff needed to make significant individualized inquiries in this case. The court found Dukes “distinguishable” from this situation in several respects. Not only did it involve a Rule 23(b)(2) class action, but the Dukes plaintiffs sought injunctive relief for intentional discrimination under Title VII. In addition, the policy at issue in Dukes was notable for “allowing discretion by local supervisors over employment matters” (emphasis in original). The court stated that the Supreme Court explained that such a policy is “just the opposite of a uniform employment practice that would provide the commonality need for class action; it is a policy against having uniform employment practice.” Ultimately, the court concluded that plaintiff and the putative class met their modest factual showing under Section 216(b).

EIGHT CIRCUIT Bennett v. Nucor Corp., 656 F.3d 802 (8th Cir. Sept. 22, 2011)

Background: Six current and former African-American employees sued employer for disparate treatment (including failure to train and failure to promote), disparate impact, and harassment. District Court denied the motion for class certification, granted the employer’s motion for summary judgment, and following a jury trial, awarded each plaintiff $200,000. Both parties appealed.

Analysis: The Eighth Circuit held that the class of all African-American individuals employed at employer’s plant lacked commonality necessary for class certification and that the employees’ statistical evidence was inadequate to demonstrate that the promotion practices had a disparate impact. Plaintiffs could not establish Rule 23(a) commonality, because promotion, discipline, and training policies varied substantially across the plant’s various production departments, the employer applied objective criteria for promotions, and evidence of harassment related to only one plant department. Plaintiffs argued that the plant used a subjective decision making process, but the Court found that the Employer had objective factors involved in the process so it was not entirely subjective and there was no evidence that the supervisors used the process in a similar fashion. In short, there was no fact determination that would resolve the contested issues. Plaintiffs’ expert also failed to identify any specific employment practices responsible for the alleged disparate impact. Peterson v. Seagate U.S. LLC, 2011 WL 3609351 (D. Minn. Aug. 15, 2011).

Background: Former employees brought discrimination claim under the ADEA after termination either by participating in early retirement program or through a RIF. Employer filed motions to decertify, to strike employees’ expert and for summary judgment on disparate impact claim.

Analysis: The Court held that: (1) class members terminated through early retirement were not similarly situated with class members terminated through RIF, and decertified class as to early retirement program employees; (2) relying on Dukes, expert statistical analysis which combined RIF and early retirement employees was irrelevant/unreliable and the expert did not do an analysis of whether age stereotyping existed in the facility and actually affected decisions so it was excluded as to that issue, but had expert been able to determine that age stereotyping existed,

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such testimony would have been admitted; and (3) granted summary judgment on disparate impact claim because 1.41% difference in over 40 employment rate before RIF/Early termination and after was not sufficiently substantial to create inference.  

Nobles v. State Farm Auto. Mut. Ins. Co., 2011 U.S. Dist. LEXIS 95379 (W.D. Mo. Aug. 25, 2011)

Background: The plaintiffs were attacking a pay policy as illegal under state law. Analysis: The Court focused on whether there was a common issue that was not decision

maker specific and did not rely upon proof of intent. The Court stated: “Because Plaintiffs' claim is based on the written policy itself, not any deviant actions by State Farm Mutual's managers, this case does not give rise to the concerns expressed by the Supreme Court in Dukes. There, the plaintiffs failed to ‘identif[y] a common mode of exercising discretion that pervades the entire company’ in their Title VII discrimination class action claim. Dukes, 131 S. Ct. 2541, 2011 WL 2437013, at *9. In contrast, Plaintiffs have at least alleged a plausible claim that satisfies the Dukes' standard.”

The defendants also claimed that the proof would be individualized since the time logs did not prove actual time worked in that the logs did not account for personal use of time after they logged in. The court recognized that such a fact may cause the analysis to be too highly individualized but let the class certification stand because the defendant had not shown as part of its record that such an issue actually existed among the putative class members. Bouaphakeo v. Tyson Foods, Inc., 2011 U.S. Dist. LEXIS 95814 (N.D. Iowa Aug. 25, 2011)

Background: The plaintiffs argued under Rule 23 that the unpaid time spent prior to and after “gang time”, i.e., donning and doffing policy, was illegal in that it excluded work time.

Analysis: The Court found that the pay policy was a common and typical policy that applied equally to all workers in the class across the facility and did not involve the individual motivation of supervisors. Moreover, since it was a (b)(3) class the issue of back wages under (b)(2) as addressed in Dukes did not apply or prevent class treatment. Luiken v. Domino’s Pizza, LLC, 2011 U.S. Dist. LEXIS 135780 (D. Minn. Nov. 14, 2011)

Background: Plaintiffs alleged that the defendant’s collection of a gratuity from customers violated the state law. The Court found that the policy itself was at issue and was thus subject to resolution for the whole class.

Analysis: The Court held: “The Court finds that this claim--including the underlying contention that customers might reasonably have construed the delivery charge as payment to Domino's delivery drivers for personal services rendered--is capable of class-wide resolution. The Court further notes that whether the fact-specific circumstances articulated by Domino's resulted in a customer's actual belief that the delivery charge was not a tip for the delivery driver is not an issue the Court will be tasked with deciding. See, e.g., In re Alleged Labor Law Violation of Chafoulias Mgmt. Co., 572 N.W.2d 326, 329-31 (Minn. Ct. App. 1997).” “Thus, the legal issue of “might reasonably have mislead” was resolvable on a class basis and the individualized actual belief or motivation that could have barred the class certification was not at issue. The existence of a single applied system also resolved the predominance and superiority issues.

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NINTH CIRCUIT Hughes v. WinCo Foods, 2012 U.S. Dist. LEXIS 2469 (C.D. Cal. Jan. 4, 2012)

Background: Plaintiffs, former employees of defendant grocery store chain, brought this putative class action alleging defendant failed to provide required meal and rest breaks. Plaintiffs moved for class certification.

Analysis: In denying plaintiffs’ motion for class certification, the court held plaintiffs failed to demonstrate compliance with Rule 23. In doing so, the court cited Dukes for support in its commonality discussion. Specifically, the court explained Dukes found the commonality requirement satisfied only by a common question of such a nature that it is capable of class-wide resolution. The court reasoned no common question existed because “the decision-making with respect to when employees may take meal and rest breaks is diverse. It varies from store to store, and from department-to-department within the same store.” The court found there was “simply no manner in which the timing of such breaks can be proven reliably with evidence of a single stroke.” Accordingly, the court denied class treatment.

Aburto v. Verizon California, Inc., 2012 U.S. Dist. LEXIS 329 (C.D. Cal. Jan. 3, 2012) Background: Plaintiff filed suit alleging defendant 1) classified plaintiff and all first level

managers (FLM) as exempt from California overtime laws and 2) failed to provide accurate itemized statements in violation of the California Labor Code. Plaintiff moved for class certification on these claims.

Analysis: The court found the case similar to Dukes and noted that “[s]imilar to Wal-Mart v. Dukes, the crux of this case is commonality.” The court denied plaintiff’s motion for class certification because it found “no evidence that the entire proposed class was misclassified as exempt. Rather, the evidence shows that, at best, some prospective class members may have been misclassified and others may have been properly classified.”

Sepulveda v. Wal-Mart Stores, Inc., 2011 U.S. App. LEXIS 26063 (9th Cir. Dec. 30, 2011) Background: Plaintiffs, current and former assistant managers of defendant, appealed the

district court’s order denying their motion for class certification. Previously, the Ninth Circuit reversed in part and affirmed in part the denial of class certification. Defendant filed a petition for rehearing which was stayed pending the Supreme Court’s resolution of Dukes. After Dukes, the Ninth Circuit affirmed denial of class certification under Rule 23(b)(2) and under Rule 23(c)(4).

Analysis: The Ninth Circuit found the district court’s reliance on the non-incidental test was explicitly adopted by the Dukes court. Accordingly, because plaintiffs’ damages would require highly individualized proof, denial of class certification was appropriate.

Fetrow-Fix v. Harrah’s Enter., Inc., 2011 U.S. Dist. LEXIS 150116 (D. Nev. Dec. 30, 2011) Background: Plaintiff, a former dealer in defendant’s property, filed suit seeking

conditional class certification under Section 216(b) of the FLSA on behalf of two separate nationwide classes of employees with whom plaintiff alleged were “similarly situated” for purposes of the FLSA. Plaintiff alleged defendants failed to pay non-exempt hourly employees straight time and overtime compensation for mandatory attendance at pre-shift meetings.

Analysis: The court denied conditional certification of the collective action. In doing so, the court briefly considered Dukes but ultimately did not rely upon it when it denied certification.

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As the court explained, Dukes was “illuminating” but did not actually control the outcome of the motion.

Covillo v. Specialtys Café, 2011 U.S. Dist. LEXIS 147489 (N.D. Cal. Dec. 22, 2011) Background: Plaintiffs, former employees of defendant, alleged: 1) failure to pay

minimum wage and overtime in violation of the California Labor Code; 2) failure to pay wages due upon termination; 3) failure to provide accurate pay stubs; 4) failure to maintain accurate payroll time records; 5) failure to provide adequate rest and meal periods; 6) improper deductions from wages; 7) failure to reimburse business expenses and 8) failure to pay minimum wage and overtime in violation of the FLSA.

Analysis: The court denied Defendants’ motion to dismiss or strike plaintiffs’ class allegations finding that Dukes was inapplicable because Defendants had yet to answer plaintiffs’ first amended complaint, discovery had not yet commenced and no motion for class certification had been filed. Specifically, the court stated that defendants’ reliance on Dukes to support their arguments regarding Rule 23 requirements for class actions was unpersuasive. Dukes considered Rule 23 requirements in the context of motions for class certification and no such motion had been filed in the current case. Accordingly, the court found defendants’ motions premature.

Novak v. Boeing Co., 2011 U.S. Dist. LEXIS 146676 (C.D. Cal. Dec. 19, 2011) Background: Plaintiffs filed suit asserting claims that defendant misclassified them as

“exempt” employees and that, as a result of this misclassification, defendant failed to pay overtime to them and failed to provide complete and accurate wage statements to them. Plaintiffs sought class certification of these claims.

Analysis: In denying class certification, the court found it was inappropriate “because Plaintiffs have not satisfied the commonality requirement as set forth in Wal-Mart Stores, Inc.” Specifically, the court found that the workers performed different amounts of exempt and non-exempt duties, had different levels of supervision, employed different amounts of independent judgment and discretion, worked in different teams and environments and had vastly different educational backgrounds. Because of this, the court found it would have to “engage in individualized rather than common inquiry,” and denied class treatment to plaintiffs’ claims.

Mitchell v. Acosta Sales, LLC, 2011 U.S. Dist. LEXIS 152235 (C.D. Cal. Dec. 16, 2011) Background: Plaintiffs, merchandisers, alleged a violation of the FLSA, and sought

conditional certification of a collective action. Defendant argued that, in light of the Supreme Court’s decision in Dukes where the Court denied plaintiffs’ motion for class certification under Rule 23 for failure to satisfy the commonality requirement; this court should apply a heightened standard of proof in analyzing whether plaintiffs proved similarity.

Analysis: The court was “not persuaded that Wal-Mart alter[ed] the first-tier inquiry for FLSA certification decisions” because neither Wal-Mart itself, nor the three district court cases cited by Defendants held as much.” Accordingly, the court granted conditional certification to proceed as a collective action.

Pryor v. Aerotek Scientific LLC, 2011 U.S. Dist. LEXIS 150276 (C.D. Cal. Nov. 15, 2011) Background: Plaintiff filed suit alleging that defendant failed to 1) pay wages due for

pre-shift work; 2) pay overtime; 3) provide accurate itemized wage statements and 4) pay wages upon termination. Specifically, plaintiff alleged defendant imposed a number of requirements

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compelling plaintiff and other potential class members to perform pre-shift work without compensation which resulted in under-compensation and denial of overtime wages.

Analysis: In finding the commonality requirement of Rule 23(a)(2) met, the court cited to Dukes stating that “Dukes made clear that a single common question suffices to establish commonality” and that Aerotek’s witness testified that there were class-wide policies and directives in effect.

Gilmer v. Alameda-Contra Costa Transit District, 2011 U.S. Dist. LEXIS 126845 (N.D. Cal. Nov. 2, 2011)

Background: Plaintiffs brought an FLSA collective action, arguing they were entitled to overtime pay based on the “scheduled running time” of start-end travel time and actual split-shift travel time that resulted in work time in excess of forty hours per week.

Analysis: In denying defendant’s challenge to class certification, the court found Dukes inapplicable to the case at hand. Specifically, the court noted “Dukes does not stand for the proposition that an employer is entitled to an individualized determination of an employee’s claim for back pay in all instances in which a claim is brought as a collective or class action.” The court found the plaintiffs were not situated dissimilarly to one another, as the plaintiffs were found to be in Dukes. Moreover, the court found that the “variations in the modes of travel of plaintiffs here, which affect the extent of AC Transit’s liability for unpaid travel time, are more limited than the discretionary decision-making that led to failures to promote employees in Dukes.”

Wong v. AT&T Mobility Serv. LLC, 2011 U.S. Dist. LEXIS 125988 (C.D. Cal. Oct. 20, 2011) Background: Plaintiffs sought class certification of the following claims: 1) failure to

pay overtime compensation; 2) failure to pay meal and rest period compensation; 3) waiting time penalties; 4) violation of California Labor Code Section 204; and 5) failure to provide accurate itemized statements.

Analysis: In denying class certification, the court found plaintiffs’ claims failed the Supreme Court’s approach in Dukes with regards to the commonality prong of Rule 23(a) analysis. The court reasoned that “[u]p until the Supreme Court’s recent decision in Wal-Mart Stores, the Ninth Circuit analyzed the commonality requirement very permissively.” It also found the instant plaintiffs’ claims suffered the same deficiency of the plaintiffs in Dukes. Specifically, the court stated “[w]hereas the ‘crucial question’ in Wal-Mart Stores was ‘Why was I disfavored?’ here the crucial questions are ‘Am I (or was I) exempt or non-exempt?’ and (under the majority view) ‘Were meal and rest breaks made available to me?’” The court found that while common issues regarding whether the putative class members performed their jobs in line with those polices, defendant’s evidence revealed that “what plaintiffs present as a uniform, consistent performance practice…simply does not exist….” The court determined class certification was not appropriate because the commonality and predominance requirements were not met in that the claims for relief would devolve into individual mini-trials regarding whether each particular class member actually met exempt status requirements.

Troy v. Kehe Food Distribs., 2011 U.S. Dist. LEXIS 110012 (W.D. Wash. Sept. 26, 2011) Background: Plaintiffs, food distributor’s merchandisers and sales representatives, filed

suit seeking certification of a collective action because their specific employment conditions and duties were the same or similar as all proposed class members. Additionally, the named

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merchandisers and sales representatives were similarly situated to the proposed class regarding the applicability of the FLSA’s outside sales and Motor Carrier Act exemptions.

Analysis: The court found that the Dukes case did not affect the outcome in the present case because the issue in this case was not the discretionary decisions by individual supervisors but whether the employees working as merchandisers or as sales representatives were properly classified as exempt. In contrast, the Dukes plaintiffs did not meet the commonality requirement because the resolution of the employment discrimination claims depended on millions of employment decisions at once. For these reasons, the court concluded that, here, the plaintiffs had met their burden to demonstrate there are questions of law or fact common to the class which is required by Rule 23(a)(2). Accordingly, the class was certified.

In re Taco Bell Wage and Hour Actions, No. 1:07-cv-01314 (E.D. Cal. Sept. 26, 2011) Background: Six consolidated putative wage and hour class actions alleged: 1) unpaid

overtime; 2) unpaid minimum wages; 3) unpaid wages; 4) missed meal periods; 5) missed rest periods; 6) non-compliant wage statements; 7) unreimbursed business expenses; 8) vested accrued vacation wages; 9) non-payment of wages upon termination and 10) non-payment of wages during employment. Plaintiffs moved for certification of a vacation pay subclass.

Analysis: The court cited to Dukes regarding Daubert applicability to expert testimony at the class certification stage. In particular, the court noted that the Supreme Court in Dukes “recently suggested in dicta that Daubert should be applied to expert testimony at the class certification stage” but also noted that Supreme Court dicta “ought not to control the judgment in a subsequent suit.” The court ultimately found plaintiffs’ expert’s report was not admissible for purposes of plaintiffs’ motion for class certification because it was not helpful to a trier of fact.

Ho v. Ernst & Young, LLP, 2011 U.S. Dist. LEXIS 106658 (N.D. Cal. Sept. 20, 2011)

Background: Plaintiffs alleged state law claims for unpaid overtime and statutory damages for defendant’s failure to provide meal and rest breaks in violation of the California Labor Code and moved for class certification of the claims.

Analysis: The court granted in part and denied in part plaintiffs’ motion for class certification. Citing to Dukes, the court found that the present action raised several questions of fact or law that were common to the proposed class, including whether the professional exemption under California law required a license for accountants, whether accounting is a ‘learned profession’ under California law, and whether defendant’s standardized policies prevented class members from customarily and regularly exercising discretion and independent judgment with respect to matters of significance.

Delagarza v. Tesoro Ref. & Mktg. Co., 2011 U.S. Dist. LEXIS 101127 (N.D. Cal. Sept. 8, 2011)

Background: Plaintiffs filed suit alleging Defendant 1) failed to provide meal periods in violation of California Labor Code and 2) with respect to a purported subclass of workers whose employment had been terminated by discharge or resignation, failed to pay wages due at the time of discharge or resignation in violation of California Labor Code.

Analysis: The court found defendant’s reliance on Dukes to be inapposite. It reasoned that the instant case stood in contrast to the putative class in Dukes because “here, the purported class members all work at the same facility. This is not a case with nationwide class members spread over thousands of stores. Moreover, Dukes involved the allegation that the company’s lack of centralized pay policy was unlawful.” Moreover, the court determined that plaintiffs, in

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contrast to the Dukes plaintiffs, alleged a specific set of practices—the failure to relieve employees of all duty for meal periods—that deprives plaintiffs of off-duty meals without compensating them for on-duty meal periods. Accordingly, the court granted class certification.

Brown v. Am. Airlines, Inc., 2011 U.S. Dist. LEXIS 99495 (C.D. Cal. Aug. 29, 2011) Background: Plaintiff filed a putative class action primarily alleging California Labor

Code violations: 1) failure to pay overtime wages and 2) failure to provide accurate itemized wage statements.

Analysis: In citing to Dukes, the court found plaintiff’s argument that system-wide policies and practice of not paying Agents for any overtime for shift changes, defendant’s policy of not including monetary bonuses earned by Agents in the overtime-rate calculation, and defendant’s policy and practice of not providing actual pay stubs to Agents were sufficient to show common questions under Rule 23(a)(2). The court found, however, that the monetary relief claims could not be certified under Rule 23(b)(2) because they were key to the lawsuit and could not be called incidental. Therefore, the court denied plaintiff’s motion for class certification.

Gales v. WinCo Foods, 2011 U.S. Dist. LEXIS 96125 (N.D. Cal. Aug. 26, 2011) Background: Plaintiff, a former assistant manager at WinCo, filed suit and sought to

certify a class of assistant grocery store managers in this misclassification case. Specifically, Plaintiff argued that despite being called “managers,” that “[assistant managers] must perform manual labor the bulk of their day and therefore are entitled to overtime under California law.”

Analysis: The court found plaintiff’s case to be in contrast to Dukes with regards to the commonality showing. In particular, the court found plaintiff identified a single policy that affected all would-be class members whereas the plaintiffs in Dukes failed to show convincing proof of a companywide discriminatory pay and promotion policy. Ultimately, however, the court declined to certify the class on alternative grounds.

Sliger v. Prospect Mortg., LLC, 2011 U.S. Dist. LEXIS 94648 (E.D. Cal. Aug. 24, 2011)

Background: Plaintiffs filed a wage and hour action under the FLSA and under California labor laws. Plaintiffs’ motion to conditionally certify a collective action was granted in part and denied in part.

Analysis: The court declined to use the Rule 23 analysis set forth in Wal-Mart Stores, Inc. v. Dukes as a guide to determine the “similarly situated” standard of Section 16(b), finding the Ninth Circuit’s apparent view to be that the Rule 23 standards should not be used in an FLSA collective action. Alonzo v. Maximus, Inc., 2011 U.S. Dist. LEXIS 102023 (C.D. Cal. Aug. 23, 2011)

Background: Plaintiffs filed suit alleging California Labor Code violations. The court initially determined that various corporate policies created common questions of fact and law such that class certification was appropriate.

Analysis: In light of the Supreme Court’s decision in Dukes, defendants filed a motion for reconsideration regarding the class certification. The district court declined to decertify the original class, finding that Dukes “has no bearing on the Court’s analysis.” Specifically, the court stated that “[d]efendant misunderstands the ‘significant proof’ language from Wal-Mart, and attempts to transform the Court’s examination of commonality into a review of the merits of Plaintiffs’ claims.” The court continued that “[a]lthough the trial court’s ‘rigorous analysis’ to

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determine whether the prerequisites of Rule 23(a) may ‘entail some overlap with the merits of the plaintiff’s underlying claim,’ this does not mean that such overlap will occur in every case, or that when it does take place the entirety of the merits must be examined. The court concluded that a “rigorous analysis” had occurred and denied defendant’s motion.

Ugas v. H&R Block Enters., LLC, 2011 U.S. Dist. LEXIS 86769 (C.D. Cal. Aug. 4, 2011) Background: Plaintiff filed this class action alleging 1) failure to pay overtime

compensation, 2) failure to provide itemized statements, 3) failure to provide meal and rest breaks and 4) unfair competition.

Analysis: The court rejected the defendants’ argument that the Dukes decision precluded certification in the instant case. The court found Dukes inapposite because the plaintiffs here had shown that there was a “common mode of exercising discretion that pervades the entire company….” The court reasoned that although the defendants may be able to prove at trial that their policies, written and unwritten, do not violate any labor laws, plaintiffs’ claims, as alleged, supported certification of the subclasses as defined by the Court.

Eddings v. Health Net, Inc., 2011 U.S. Dist. LEXIS 115989 (C.D. Cal. July 27, 2011) Background: The court found Dukes clarified that a plaintiff must demonstrate the class

members have suffered the same injury and their claims depend upon a common contention of such a nature that is capable of class wide resolution.

Analysis: The court determined that because the defendant subjected each of the purported class members to the same timekeeping and rounding policies, the rounding claim satisfied Dukes and was proper for class-wide resolution. The court additionally found that, because Dukes did not address the FLSA, defendant failed to show that a “change of law” occurred after the court’s decision to certify conditionally the FLSA class. Accordingly, the court denied defendant’s motion for reconsideration.

Cruz et. al. v. Dollar Tree Stores, Inc., 2011 U.S. Dist. LEXIS 73938 (N.D. Cal. July 8, 2011) Background: Plaintiffs, current and former store managers at Dollar Tree Stores, alleged

they were misclassified as executive-exempt employees and thereby denied overtime pay, meal and rest breaks in violation of California and federal labor laws. A class was initially certified by the court but was later decertified, in part, due to two Ninth Circuit decisions regarding employment class actions. The partial decertification order resulted in a class consisting of 273 members.

Analysis: In light of the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, the court’s concern regarding the predominance of individualized issues over class-wide issues was heightened and additional briefing was ordered. In holding decertification of the remaining class was warranted, the court stated “individual issues predominate in this case and trial as a class action would present unmanageable difficulties.” In particular, the court reasoned that its prior determination that the payroll certification forms could serve as reliable common proof of how store managers were spending their time was no longer tenable. The court cited Dukes for the proposition that the commonality threshold and the predominance inquiry of Rule 23(b)(3) were not met because plaintiffs failed to provide common proof to serve as the “glue” that would allow a class-wide determination of how class members spent their time on a weekly basis. The court held that, in the absence of such proof, both commonality and predominance were lacking.

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TENTH CIRCUIT McDonald v. Kellogg Co., 2011 U.S. Dist. LEXIS 146116 (D. Kan. Dec. 20, 2011)

Background: Parties stipulated to conditional certification of FLSA collective action alleging failure to pay minimum wage and overtime for time spent at bakery donning and doffing required uniforms and gear, and time spent post-donning and pre-doffing. Approximately 385 plaintiffs opted in. At the conclusion of discovery, defendant moved to decertify alleging that resolution of the claims would require highly individualized inquiry that was not subject to common proof.

Analysis: In denying decertification, the court repeatedly stated that the case would be tried only on common proof. In particular, according to the court, the principal question to be determined by the jury was whether the defendant provided employees the option of changing clothes at home rather than at work. If the employees were not given the option of changing clothes at home, then donning of work clothes would constitute a principal activity triggering the continuous workday rule, meaning that time spent post-donning and pre-doffing would be compensable. The court held that any individual’s personal changing practice was relevant only to the extent it assisted the jury in arriving at an answer to the common question, stating “it is defendant’s overall changing policy that is significant to the principal activity analysis and relevant testimony at trial will be limited to the nature of defendant’s policy.” The court further held that any determination of compensable hours worked would be made based on proof of the reasonable amount of time required for employees to complete any walking and other activities post-donning and pre-doffing. “None of the issues in this case will be resolved based on actual walking or waiting time.”

The parties disputed whether the court should be guided by Dukes. The court refused to decide the issue, but held that “[e]ven under the higher standard articulated in Dukes, the court would decline to decertify this case. To be sure, there are common answers to common questions here such that a jury can determine principal liability questions ‘in one stroke.’”

ELEVENTH CIRCUIT Khan v. H&R Block Enters., 2011 U.S. Dist. LEXIS 83404 (S.D. Fla. 2011).

Background: The district court granted Defendant’s motion to dismiss the plaintiffs’ claims for violations of Florida’s Minimum Wage Act and state constitution. After dismissing 51 of the 65 class members due to impermissible claim splitting, the court considered the request to certify the remaining 14 class members.

Analysis: In order to certify a class action, the court, citing Dukes, reviewed the requirements for certification of a class action: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. As a parenthetical, the court noted that Dukes held a court may perform a rigorous analysis beyond the face of the pleadings to determine if the foregoing prerequisite showings are met. The court held that the 14 remaining members of the class did not meet the numerosity requirement, as the Eleventh Circuit has in the past deemed less than 26 members to be insufficient. As the court found the plaintiffs did not meet the numerosity element, it declined to review the remaining

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elements under Rule 23. Finally, the court found the plaintiffs could not proceed individually in federal court, as each independent claim did not meet the $75,000 amount in controversy requirement to establish the amount in controversy requirement. Pamalon Rollins v. Alabama Comm. Col. Sys., 2011 U.S. Dist. LEXIS 96628 (M.D. Ala. 2011)

In dismissing the plaintiffs’ claim for disparate impact discrimination, the court cited Dukes for the proposition that discretion by local supervisors is a presumptively reasonable way of doing business. Further, the court dismissed the plaintiffs’ disparate impact claim because there was no statistically significant disparity in compensation between men and women. Robinson v. Ryla Teleservices, Inc., 2011 U.S. Dist. LEXIS 147027 (S.D. Ala. 2011).

Background: The plaintiffs, customer service representatives who worked for the defendant, alleged violations of the Fair Labor Standards Act.

Analysis: In deciding the motion for class certification, the court held that Dukes was not applicable at the conditional certification step of the two-step certification process under the FLSA. While noting that other courts have found that Dukes was applicable, the court held that the initial class certification did not require the more strenuous factual analysis required at the second stage of the analysis. The court granted certification of plaintiffs’ claims of a practice by defendant of requiring off-the-clock work.

DC CIRCUIT Bush et al v. Ruth’s Steak House, Inc., 2011 WL 4825889 (D.D.C.2011)

Background: Motion for leave to file amended complaint by plaintiffs to add parties and class action claims in sex discrimination lawsuit by individuals with pattern and practice allegations. Defendant had filed partial Summary Judgment motion to dismiss any pattern and practice allegations because complaint was not a class action. Defendant opposed motion for amended complaint on grounds of futility, relying on Wal-Mart v. Dukes. Motion granted.

Analysis: Wal-Mart inapplicable to case at this stage because it was decided after discovery had occurred and the issue of class certification had been fully vetted. At pleading stage, court must only “cursorily” consider whether plaintiffs allegations speak to the necessary elements of Rule 23, with any ambiguity resolved in favor of plaintiffs, citing Scheuer v. Rhondes, 416 U.S. 232,236 (1974).

Burton et al v. District of Columbia, 2011 WL 6450603 (D.D.C. 2011)

Background: Group of 44 African-American current and former employees of DC’s Fire and Emergency Services Department sought to initiate class action on behalf of themselves and all African-American firefighters and EMS employees who were disciplined or denied promotions in violation of 42 U.S.C. §§ 1981 and 1983. Plaintiffs moved for class certification or in the alternative precertification discovery.

Analysis: Held: Plaintiffs failed to show sufficient commonality for certification, but allowed plaintiffs precertification discovery. Applying Wal-Mart, Court recognized that plaintiffs clearly have the burden of satisfying all of the prerequisites of Rule 23. Plaintiffs’ allegations of use of a biased testing procedure in connection with certain promotion examinations might be enough for commonality but allegations were too vague and conclusory so additional discovery necessary. With regard discipline, Court also concluded allegations were

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too vague and conclusory and therefore additional discovery warranted. Court references Wal-Mart language requiring Court to do a “rigorous analysis” to ensure actual, not presumed conformance with Rule 23. Firmwide:109126717.1 999999.3233