Presenting a live 90-minute webinar with interactive Q&A Defending Wage and Hour Class Actions: Defeating Certification and Winning Decertification Leveraging Lessons From Dukes, Comcast and Duran to Challenge Evidence on Liability and Damages WEDNESDAY, APRIL 22, 2015 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: A. Craig Cleland, Shareholder, Ogletree Deakins Nash Smoak & Stewart , Atlanta William C. Martucci, Partner, Shook Hardy & Bacon , Washington, D.C. Alexander Cox, Esq., Gibson Dunn & Crutcher , Washington, D.C. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Defending Wage & Hour Class Actions: Defeating Certification and Winning Decertification A. Craig Cleland, Craig.Cleland@ogletreedeakins.com Alexander K. Cox, ACox@gibsondunn.com William C. Martucci, WMartucci@shb.com
<Presentation Title/Client Name> Overview • Wal-mart v. Dukes Overview • Comcast Corp. v. Behrend Overview • Recent Developments and Trends After Dukes and Comcast – Do individualized damages defeat predominance? – Is Daubert applicable at the class certification state? – Fewer classes being certified, and those that are certified are smaller and narrower – Fights over the proper forum — state or federal court? 5
<Presentation Title/Client Name> Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) • Ninth Circuit affirmed certification of largest employment class action ever certified: 1.6 million Wal-Mart employees, nationwide • Supreme Court reversed, holding that class could not satisfy Rule 23: – Commonality: Common question “must be of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke .” – A corporate policy “ allowing discretion by local supervisors” is “just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices.” 6
<Presentation Title/Client Name> Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) ( cont.) • Plaintiffs must “affirmatively demonstrate” compliance with Rule 23, which requires a “rigorous analysis” that “will entail some overlap with the merits of the plaintiff’s underlying claim” • Rejected Plaintiffs proposed “Trial by Formula,” as contrary to the Rules Enabling Act, because Wal- Mart would “not be entitled to litigate its statutory defenses to individual claims” • Claims for backpay cannot be certified under Rule 23(b)(2) because not “incidental” to injunctive relief 7
<Presentation Title/Client Name> Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) • Third Circuit affirmed certification of a class of more than two million current and former cable subscribers in antitrust suit • Supreme Court reversed, holding that class could not satisfy Rule 23(b)(3)’s predominance requirement: – Reiterated its statement in Dukes that a Court must probe behind the pleading and examine the merits, and thus the district court erred in declining to review plaintiffs’ damages model – Damages model must “tie each theory of antitrust impact to a calculation of damages” – Without a satisfactory class-wide damages methodology, individualized damages questions “will inevitably overwhelm questions common to the class,” eliminating any possibility of certification under Rule 23(b)(3) 8
<Presentation Title/Client Name> Recent Developments After Dukes and Comcast : • Do individualized damages defeat predominance? • Is Daubert applicable at the class certification state? • Fewer classes being certified, and those that are certified are smaller and narrower • Fights over the proper forum for class actions — state or federal court? 9
<Presentation Title/Client Name> Recent Developments After Dukes and Comcast : Do Individualized Damages Defeat Predominance? • Yes : D.C. Circuit and Tenth Circuit – “No damages model, no predominance, no class certification.” In re Rail Freight Fuel Surcharge Antitrust Litig. , 725 F.3d 244 (D.C. Cir. 2013) – Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc. , 725 F.3d 1213 (10th Cir. 2013) • No: Ninth, Sixth, Seventh, Fifth, and now Second Circuit – Levya v. Medline Indus. Inc. , 716 F.3d 510 (9th Cir. 2013) • In CA wage and hour case, Court held that certification still appropriate where “the amount of pay owed” is the only individualized issue. • Computerized payroll and timekeeping records could easily determine damages – Butler v. Sears Roebuck and Co , 727 F. 3d 796 (7th Cir. 2013) – In re Whirlpool Corp. Front-Loading Washer Products Liability Litig. , 722 F.3d 838 (6th Cir. 2013) – In re Deepwater Horizon , 739 F.3d 790 (5th Cir. 2014) – Roach v. T.L. Cannon Corp. , No. 13-3070-cv, 2015 WL 528125 (2d Cir. Feb. 10, 2015). • District courts had been split on the issue. Court vacated denial of class cert. Individualization of damages is just one factor to be considered and Comcast did not disturb this precedent. 10
<Presentation Title/Client Name> Recent Developments After Dukes and Comcast : Daubert at Class Certification? Agreement that at least some sort of Daubert analysis is required of expert evidence • Seventh Circuit : “full Daubert ” – Am. Honda Motor Co. v. Allen , 600 F.3d 813 (7th Cir. 2010) • Third Circuit: expert testimony “critical to class certification” under Rule 23 must satisfy Daubert – In re Blood Reagents Antitrust Litig. , No. 12 – 4067 (3d Cir. May 8, 2015) • Eighth Circuit : only a “limited” Daubert – In re Zurn Pex Plumbing Prods. Liab. Litig. , 644 F.3d 604 (8th Cir. 2011) • Ninth Circui t: “rigorous analysis” of not just admissibility, but also “persuasiveness” – Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) 11
<Presentation Title/Client Name> Recent Developments After Dukes and Comcast : Trend towards fewer class certifications • For example, FLSA executive exemption cases: – Rea v. Michaels Stores, Inc. , 2014 WL 1921754 (C.D. Cal. May 8, 2014) • District court refused to certify class of store managers. Because “[a] uniform, consistent performance practice for store managers simply does not exist,” “any class proceeding . . . would almost necessarily devolve into individual mini-trials regarding whether each particular class member actually met the requirements for exempt status.” – Pedroza v. PetSmart , Inc. , 2013 WL 1490667 (C.D. Cal. January 28, 2013) • District court refused to certify class of store managers because determining whether over 50% of time was spent on non-exempt tasks must be done on individual basis; uniform scheduling system, staffing reports, and other business records did not provide sufficient information as to how much time managers spent on non-exempt tasks 12
<Presentation Title/Client Name> Recent Developments After Dukes and Comcast : Trend towards fewer class certifications, cont. • Fewer class certifications in other wage and hour areas: – Meal and rest breaks – Off-the-clock – Misclassification • When certified, classes are typically smaller – Instead of nationwide, classes are regional, statewide, or even one specific location – Classes limited to specific job positions – Narrower time periods, based on specific policies, practices, or supervisors 13
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