A mere five days after issuing Comcast v. Behrend, wherein it held that the Wal-Mart Stores v. Dukes standard applies to certification determinations under Rule 23(b), the Supreme Court vacated and remanded the Seventh Circuit’s pro-certification ruling in RBS Citizens, N.A. v. Ross, sending a clear message that Behrend applies to wage-and-hour class actions. In Ross, the Seventh Circuit had upheld the certification of two classes of bank employees who brought claims for overtime pay under the Illinois Minimum Wage Law. The Seventh Circuit rejected the bank’s contentions that certification did not comply with Rule 23 and was inconsistent with Dukes, and instead found that Dukes was distinguishable on the facts. However, the Supreme Court order vacating and remanding Ross calls that decision into question and will force the Seventh Circuit to consider whether damages are subject to class-wide measurement.
As the Court’s handling of Ross demonstrates, the lower courts must carefully consider both Dukes and Behrend when asked whether to certify wage-and-hour claims. Last week, two federal district courts addressed this issue but reached opposite conclusions. In Roach, et al. v. T.L. Cannon Corp., d/b/a Applebee’s, et al., a New York federal court relied on Behrend and refused to certify a class of Applebee’s employees under Rule 23, reasoning that employees failed to offer a damages model capable of measurement across the entire class.
On the other hand, in Martins, et al. v. 3PD, Inc., a Massachusetts federal court granted a class of delivery drivers’ motion for Rule 23 class certification. The court recognized that Behrend called into question the proposition that class certification is proper even if individual damages issues remain, but ultimately interpreted Behrend more narrowly, finding that it did not foreclose the possibility of certification in cases like Martins, where individual damages issues were not particularly complicated or numerous.
How the Seventh Circuit comes out on the issue in Ross remains to be seen, but the import of Behrend in the wage-and-hour arena cannot be overlooked. Indeed, Behrend provides another arrow in defense counsels’ quiver when opposing class certification of state law claims under Rule 23, and plaintiffs’ counsel will be forced to adapt to the additional hurdle of demonstrating that not only liability, but potentially damages, must be subject to proof on common evidence.
Joseph E. Tilson and Jeremy J. Glenn, Meckler Bulger Tilson Marick & Pearson