What a difference a year or two can make in class action litigation. On March 10, 2010, the Superior Court for Los Angeles County, California certified a class of 13,000 employees in a series of consolidated cases asserting California rest and meal period claims against global security giant Wackenhut. Wackenhut Wage and Hour Cases, Judicial Council Coordination Proceeding No. 4545 (Los Angeles Superior Court). The plaintiffs and their attorneys had to be elated over this decision, but the victory would prove short lived.
One year later, the United States Supreme Court issued its decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), raising the bar to pursue class action claims and placing limits on efforts to try large cases “by formula.” Another year later, the California Supreme Court issued its long-awaited decision in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), which settled numerous issues relating to California’s rest and meal period requirements and rejected some pro-plaintiff interpretations that had been adopted in other cases. We wrote on the Brinker case when it was issued, on April 12, 2012. The court held, among other things, that the employer was not required to police employees to ensure that they were actually taking their rest breaks.
In the wake of these two decisions, Wackenhut moved to decertify the class. On August 1, 2012, the court granted that motion, and also issued an opinion that systematically rejected arguments against the application of Dukes to California rest and meal period cases.
The court began by noting the array of Wackenhut work sites, from banks, to prisons, to oil refineries, to retail industries. The size of the facilities ranged as well, from single employees at one site, to large groups at others.
Most of the plaintiffs’ arguments against decertification rested on the premise that Dukes was decided under Federal Rule 23, while the court’s prior certification decision rested on California Civil Procedure Section 382. The court, however, found that the two were analogous and that several California courts had looked to Rule 23 for guidance on state law class action issues. It therefore concluded without difficulty that the Dukes decision applied and found numerous problems with the class. These included the fact that treatment of the claims as a whole would deprive the defendant of its individual defenses and that the plaintiffs’ proposed statistical methods of proof boiled down to impermissible “Trial by Formula.”
As is common in class action cases of this type, the plaintiffs touted various methods that allegedly would permit efficient management of the class. These included claims of “innovative procedural tools” that that court, after several pages of analysis, found constituted nothing more than impermissible statistical sampling. The court also rejected the notion that the claims could be proven by representative management testimony, because such testimony would not be sufficient to show which employees were improperly denied rest or meal periods on which day.
Ultimately, while the court acknowledged it only obliquely, one problem with the case was that it probably never should have been certified to begin with. The claims of 13,000 security workers in businesses of varying types and sizes working at different work sites under different conditions is not one amenable to class action treatment. The court’s experience was not unlike that of other courts that have certified classes earlier in the treatment of a case, only to realize, closer to trial, that the claims cannot be tried together either as a practical matter or without prejudicing the rights of one or more parties. The court found, however, that as a result of changed circumstances since its initial order a class was no longer appropriate, and it decertified the actions.
The Bottom Line: Dukes and Brinker have made it more difficult to pursue class action claims, and that even courts that will certify cases initially may decertify them when the difficulties of trying them become apparent.