A recent case demonstrates that it is often easier in theory than in practice to contend that a large group of employees are "similarly situated" for purposes of certifying a collective action.  These differences can prove fatal to the class even though the plaintiffs may win impressive early procedural victories.   In Espenscheid v. Directsat USA, LLC.pdf, Case No. 09-cv-625-bbc (W.D. Wis. May 23, 2011), the plaintiffs, a grop of satellite installation technicians, brought suit under the FLSA and various state laws, contending that they were improperly denied overtime.  The court initially granted conditional certification, and approximately 1,000 potential class members opted in.  Later, the court also certified the case as a Rule 23 class action under the laws of the states of Wisconsin, Pennsylvania, and Minnesota, and denied the defendant's motion to decertify the conditionally certified FLSA class.  The defendant twice unsuccessfully sought Rule 23(f) review from the Seventh Circuit.  

Thus, until weeks before trial, the plaintiffs had one several key procedural victories.  In each of its rulings district court concluded that, while there were differences among the class members, the defendant had uniform policies and practices that it believed rendered class treatment appropriate.  It also expressed the belief that subclasses could resolve some of the issues the defendant had raised.

Things started to fall apart for the plaintiffs after the court denied cross motions for summary judgment.  While ordinarily the denial of such motions would be more of a benefit for the plaintiffs than the defendant, in this case the court combined its ruling with a request for a plan for trying the case.  At this point, nothing went well for the plaintiffs.  As part of their plan, they retained an expert and submitted a damages report that largely cut across the subclasses created by the court.  After striking the report, the court ordered the plaintiffs "to articulate how they were planning to address the distinct issues represented by each subclass."   

Ultimately, the court rejected the plan submitted by the plaintiffs in that, among other problems,  it:  (a) failed to address the issues specific to each subclass; (b) failed to distinguish among the various types of violations the plaintiffs claimed; (c) failed to explain how the proposed "representative plaintiffs'" claims were representative of the whole class; and (d) failed to account for variation in the type of work among different offices.  Further, the court found that even where the plaintiffs did submit generalized proof, the defendant's arguments would invariably require the same type of individualized inquiry a class was intended to avoid.  Thus, with trial only two weeks away, the court decertified the class and converted the trial to one only on the individual plaintiffs' claims.

Incidentally, this case is not unlike that of Marlo v. UPS, which we wrote about in a post on May 6, in which the district court decertified a case it had certified due to problems that arose with the class while determining how to best try the case, and the Ninth Circuit affirmed.  

The Bottom Line:  It is better that wisdom comes late rather than never.  The practical issues in trying a class action oftentimes become apparent only once the court and parties actually consider the logistics of trial.