Inconsistent evidence presented by a named plaintiff can effectively preclude Rule 23 certification as well. In Cipolla, et al. v. Team Enterprises, LLC, 2023 U.S. Dist. LEXIS 51088 (N.D. Cal. Mar. 26, 2023), the plaintiffs, a group of part-time promotional specialists, filed a class and collective action alleging that the defendant misclassified them as independent contractors and thereby failed to pay overtime compensation, for meal and rest breaks, and to reimburse business expenses in violation of the FLSA and the California Labor Code. Previously, the Ninth Circuit vacated the district court ’ s ruling denying the defendant ’ s motion to compel arbitration. On remand, the district court determined that arbitration was enforceable for some of the putative class members, and not for others. The plaintiffs thereafter filed a motion for class certification for two classes, including one for specialists who signed binding arbitration agreements and one with class members with unenforceable arbitration agreements. The district court denied the motion. It found that as to the class members without enforceable arbitration agreements, the class representative failed to meet the typicality requirement because one of the named plaintiff ’ s two depositions provided conflicting testimony regarding his claimed experiences. As a result, the district court denied the plaintiffs’ motion as to this class, with the opportunity to amend to add a new class representative. As for the arbitration class, the district court determined that the binding arbitration agreements precluded class certification. Specifically, it noted that because of the binding delegation clause as to the question of arbitrability, and pertinent California Supreme Court precedent, potential class members would first have to attempt to arbitrate their claims and receive a ruling on enforceability of the arbitration agreements before being free to pursue a lawsuit in court. Id. at *18. For these reasons, the district court denied the motion for class certification. Demonstrating the geographic concentration and/or high-value claims held by individual class members is another method to achieve denial of Rule 23 class certification, as demonstrated by Garza, et al. v. Fusion Industries, LLC , 2023 U.S. Dist. LEXIS 171416 (W.D. Okla. Sept. 26, 2023). The plaintiffs, a group of welding employees, filed a class action alleging that the defendant failed to pay all wages due in violation of the New Mexico Minimum Wage Act. The plaintiffs filed a motion to certify a class action seeking to represent a class of welders who were contracted by the defendant. In considering the motion, the court first examined the numerosity requirement, and found that while the maximum number of class members was 43, numerosity is not automatically satisfied based on the number of class members. The court went on to analyze the additional Rule 23 requirements. The court considered the geographic dispersion of the class members, most of which were primarily located in Texas, and thus joinder would not be impracticable. The court also noted that individual claims could exceed $10,000, thus weighing against a finding for class certification. The court rejected the plaintiffs’ contention that the putative class members had limited English proficiency and may be unfamiliar with the American legal system, which could make it difficult for them to bring individual suits (as the court found no evidence to support that position). Accordingly, the court stated that although there were several putative class members, given the geographic location of the class members and the large possible dollar value of individual claims, it could not find that class treatment would be the superior method of adjudication. Accordingly, the court denied the motion for class certification. 5. Rulings Denying Decertification Or Granting Rule 23 Class Certification Employers that failed to decertify collective or class actions, or failed to prevent certification of a class action, in 2023 were unable to do so largely because of an overreliance on individualized damages or the failure to rebut the applicability of a common policy, even where the policy ’ s application may have varied. The mere potential for individualized damages inquiries is unlikely to warrant decertification, as demonstrated by Portillo, et al. v. National Freight, Inc., 2023 U.S. Dist. LEXIS 20731 (D.N.J. Feb. 7, 2023). The plaintiffs, a group of truck drivers, filed a class action alleging that the defendant misclassified drivers as independent contractors and made unlawful deductions from their pay in violation of the New Jersey Wage Payment Law (NJWPL). The court previously had granted the plaintiffs’ motion for class certification of class claims under the NJWPL for all drivers who had entered into independent contractor agreements in New Jersey and who drove on a full-time basis for the defendant. Following discovery, the
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Wage & Hour Class And Collective Action Review – 2024
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