Plaintiffs seeking to certify a California class of current and former assistant stores managers and other differently titled managers and associates were denied class certification of their state law claims under Rule 23.  Saks, Inc., the operator of high-end retail department stores across the United States, also convinced the district court to grant its preemptive cross-motion seeking to preclude a nationwide collective action under the Fair Labor Standards Act (“FLSA”).  Till et al. v. Saks Inc. et al., 2013 U.S. Dist. LEXIS 145842 (N.D. Cal. Sept. 30, 2013).

In a hybrid wage and hour state law class action under Rule 23 and a collective action under FLSA § 216(b), the named plaintiffs alleged that they and the putative class members had been improperly classified as exempt employees and, thus, were denied overtime wages in violation of state and federal laws.  The plaintiffs moved for class certification under Rule 23(a) and (b)(3) seeking to certify a statewide class of present and former assistant store managers, women’s department managers, team merchandise managers, selling and service managers, salaried associates, and/or exempt associates.  The defendants opposed the motion for class certification under Rule 23 and, in a separate motion, preemptively cross-moved the court to deny FLSA collective certification of the nationwide class comprised of the foregoing positions.

The district court concluded that the plaintiffs had failed to establish all four requirements under Rule 23(a) (numerosity, commonality, typicality, and adequacy) as well as Rule 23(b)(3)’s predominance requirement.  The lionshare of the court’s decision focused on the plaintiffs inability to satisfy the commonality requirement under Rule 23(a)(2).  The plaintiffs argued that a single common question – namely, whether the job duties of the various class members qualified for the executive exemption under California law.  The plaintiffs contended that the vast majority of their work consisted of non-managerial responsibilities, e.g, merchandising and customer service duties, which constituted significant proof that they had been misclassified as exempt under the executive exemption under California law.  The court determined that the plaintiffs’ evidence, a lot of it conflicting, was largely anecdotal and non-specific with too much inter-store and intra-store variation among the proposed class members.  The plaintiffs’ evidence of corporate directives – the specific content of which was not disclosed – did not show that the putative class members were divested of discretion and independent judgment or that these duties resulted in class members performing predominantly non-exempt tasks.  The plaintiffs’ evidence that class members were expected to commit themselves to exemplary customer service did not demonstrate that the putative class members performed primarily non-exempt functions.  The court concluded that “there are significant dissimilarities in terms of the experiences of proposed class members that impede the generation of common answers.  The disparities in the alleged practices attributed to Defendants militates against finding that there is a question common to the class.”

The district court also addressed the defendants’ preemptive cross-motion to deny collective certification under the FLSA.  In light of the substantial discovery in the case, the court chose to analyze whether FLSA certification was appropriate using the second stage’s more stringent standard.  The court concluded that the “factual record confirms the disparate experiences of putative class members, which vary by store and individuals within the same store.  In addition, some of the putative FLSA plaintiffs may be subject to releases, which plaintiffs acknowledge is an individualized defense.  Lastly, plaintiffs have not identified any particular fairness and procedural considerations that justify permitting plaintiffs to proceed on their FLSA claims on a collective action basis.”  Accordingly, the court granted defendants’ motion to deny FLSA certification.


In Till, defendants, responding to the plaintiffs’ Rule 23 motion for class certification of the state wage and hour claims, opposed that motion and cross-moved to deny collective certification of the FLSA claims.  This case illustrates that, when the opportunity presents itself, rather than waiting for the plaintiffs’ motion to certify the class or collective action, employers should preemptively move to defeat class or collective certification.