In Romulus v. CVS Pharmacy, Inc., five former Shift Supervisors brought a putative class action against CVS under the Massachusetts Wage Act, contending they were required to work through their unpaid breaks. Specifically, the plaintiffs alleged that they were required to remain in the store during their breaks when they were the only managerial employees on duty, were interrupted to handle transactions when necessary, and were nonetheless not paid for their time. In a 12-page opinion issued last week, United States District Judge Rya Zobel denied the plaintiffs’ request for class certification, finding they failed to satisfy the requirements of commonality and predominance under Rule 23.

Although CVS policy required a member of management to be present in the store at all times during operating hours, the policy also provided employees with one unpaid 30-minute meal break for each six or eight-hour shift, and instructed employees that, in the event their meal period was interrupted, they should notify their manager to ensure they were paid for their time. The court noted that the policies, on their faces, neither required Shift Supervisors to remain on-site during their breaks, nor required them to take their breaks when they were the only members of management present. There was evidence that at least one of the named plaintiffs took his meal break at noon each day, when he was the only member of management present, even though the store manager typically arrived at the store shortly thereafter. Another plaintiff, in contrast, was allegedly the only managerial employee present during her shifts and therefore could not choose to take her break at another time.

The court further noted that the plaintiffs’ testimony regarding whether they were required to clock out for meal breaks that were interrupted or spent in the store varied. For example, one plaintiff testified that she did not always clock out for her breaks, but that her manager would manually adjust her time card to include the break. Another testified that she was directed to clock-out for meal breaks she was required to spend in the store and understood that was the policy.

Because the plaintiffs were not contending that any individual policy was illegal on its face, but rather that the policies had been implemented in an unlawful manner, and in light of the plaintiff’s various circumstances, the court held that the plaintiff’s evidence was insufficient to establish commonality under Federal Rule of Civil Procedure 23(a)(2), citing the seminal Supreme Court decision of Wal-Mart Stores, Inc. v. Dukes. Similarly, because the factual issues required individualized inquiries, the court found that the plaintiffs failed to satisfy the Rule 23(b)(3) predominance requirement.

Like the Supreme Court’s decision in Wal-Mart, the district court’s decision demonstrates the hurdles plaintiffs face when seeking to certify a wage and hour class based not on the defendant’s uniform corporate policies, but on allegations that the defendant’s practices deviated from the written policies, especially when there is evidence that the experiences of the employees subject to the complained-of practices varied. Two other aspects of the court’s decision and the case’s history are worth noting.

First, the court began its analysis by addressing the parties’ positions about whether the plaintiffs had met Rule 23’s implied requirement of showing that the proposed classes are ascertainable. Plaintiffs argued that the ascertainability requirement was met because whether a Shift Supervisor was in the store during an unpaid break when no other managerial employee was present could be decided based on objective criteria. CVS apparently argued, as defendants often do, that ascertaining who is in the class not only must be based on objective criteria, but also must be administratively feasible. The court quoted language from the First Circuit’s decision in In re Nexium Antitrust Litigation in support of the question whether “prior to judgment, it will be possible to establish a mechanism for distinguishing the injured from the uninjured class members,” but said it did not need to decide the question because the lack of commonality and predominance disposed of the class certification motion. Thus, although the court clearly suggested that something more than the presence of objective criteria is needed to satisfy ascertainability, its decision provides little guidance concerning how to apply the administrative feasibility standard.

Second, the case demonstrates the importance of CAFA removal, a procedure so important to the parties that they fought an appeal over it before the case was remanded for the proceedings that led to last week’s order denying class certification. In Salvas v. Wal-Mart Stores, Inc., the Massachusetts Supreme Judicial Court reversed a lower court’s ruling decertifying a meal period and rest break case. No doubt, the plaintiffs in the CVS case hoped to stay in state court so they could attempt to capitalize on the SJC’s 2008 decision. The defendant’s removal of the decision to federal court may have been critical in defeating class certification.