Florida Business Litigation Lawyer Blog
This article is part three of a three-part series concerning employer defense against class action certification of employment law claims. Peter Mavrick is a Fort Lauderdale employment attorney, who also represents businesses in Miami and Palm Beach. The Mavrick Law Firm defends the interests of businesses and business owners in employment law disputes, including lawsuits demanding wages and damages from alleged employment discrimination and retaliation.
Certain employment law claim may seek class action certification under Rule 23 of the Federal Rules of Civil Procedure. The federal Fair Labor Standards Act (FLSA) does not allow such class action claims for overtime or minimum wages, but instead has its own procedure called “collective actions.” “The certification requirements for a Rule 23 class action are more demanding” than the collective action process under the FLSA. Calderone v. Scott, 838 F.3d 1101 (11th Cir. 2016). A plaintiff seeking to certify a class must first show that the case meets the prerequisites of Rule 23(a), namely:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
As explained by the Eleventh Circuit Court of Appeals (the federal appellate court in charge of the federal courts in the State of Florida) in Piazza v. Ebsco Inds., Inc., 273 F.3d 1341 (11th Cir.2001), these four legal requirements “are designed to limit class claims to those ‘fairly encompassed’ by the named plaintiffs’ individual claims.” An employer may successfully stop the certification of a class action by showing that any one of these requisites are not met. Furthermore, a plaintiff must usually show that issues common to the class predominate over issues that are dependent on each individual class-member’s personal circumstance. See Rule 23(b)(3).
For a plaintiff to prevail over the first requirement under Rule 23(a), i.e., “numerosity,” a plaintiff is required to “show some evidence of or reasonably estimate the number of class members” beyond “[m]ere speculation, bare allegations, and unsupported conclusions.” Barlow v. Marion County Hosp. Dist., 88 F.R.D. 619 (M.D.Fla.1980). “[A] numerical yardstick is not the determinant for class certification; rather a court should examine the numbers involved to see if joinder of all is impossible or impracticable.” Hastings–Murtagh v. Texas Air Corp. 119 F.R.D. 450 (S.D.Fla.1988). In general terms, “‘less than twenty-one [prospective class members] is inadequate [while] more than forty [is] adequate.’” Kubiak v. S.W. Cowboy, Inc., 312-CV-1306-J-34JRK, 2014 WL 2625181 (M.D. Fla. June 12, 2014), citing Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir.1986).
A Florida employer that can show that there are significant distinctions in the claims between each potential plaintiff may successfully persuade the trial court to deny class “certification.” See e.g. Bennett v. Hayes Robertson Group, Inc., 880 F. Supp. 2d 1270 (S.D. Fla. 2012) (denying a request for class certification for a restaurant in part because the question of whether a tip pool applied was not truly shared between each of the waiters). Furthermore, if a Florida employer can show that it has defenses that apply to some plaintiffs but not others, that may convince a trial court to deny class certification. White v. Deltona Corp., 66 F.R.D. 560, 564 (S.D. Fla. 1975). A plaintiff must show that a proposed class has sufficient “commonality” and “typicality” to justify certifying it. “Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury,” and the plaintiff’s common contention “must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Bennett v. Hayes Robertson Group, Inc., 880 F. Supp. 2d 1270 (S.D. Fla. 2012), quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). “What matters to class certification … is not the raising of common ‘questions’—even in droves—but rather, the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).
A Florida employer seeking to defeat class certification will want to show that the named plaintiffs’ claims are not truly representative of the class and therefore class certification should be denied.
A plaintiff must also show that the named members of the class have issues which are typical for the whole class. See Fed.R.Civ.P. 23(a)(3). “[T]ypicality measures whether a sufficient nexus exists between the claims of the named representatives and those of the class at large.” Cooper v. Southern Co., 390 F.3d 695 (11th Cir.2004). “A class representative must … possess […] the same injury as the class members” in order to be typical under Rule 23(a)(3). Prado–Steiman ex rel. Prado v. Bush, 221 F.3d 1266 (11th Cir.2000). “Typicality” can be proven when the claims of the named plaintiffs and those of the class “arise from the same event or pattern or practice and are based on the same legal theory.” Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332 (11th Cir.1984). The focus of the typicality requirement is whether the plaintiffs’ efforts to advance their own interests will simultaneously advance the interests of the other putative class members. Agan v. Katzman & Koor, P.A., 222 F.R.D. 692 (S.D.Fla.2004).
In defending against class certification, an employer will want to show likelihood of conflicts among class members and that, due to such conflicts, a class action would not be warranted. In this regard, the legal element of “adequacy” requires that a plaintiff show that there is no “substantial conflicts of interest exist between the representatives and the class” and that the representative parties “will adequately prosecute the action.” Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181(11th Cir.2003). In other words, the named plaintiffs must share common interests with the class members and seek the same type of relief for themselves as they seek for the class. Pottinger v. City of Miami, 720 F. Supp. 955 (S.D. Fla. 1989).
In addition, a Florida employer may prevail on the issue of adequacy by showing that plaintiff’s counsel is ill equipped to handle such litigation. E.g. Bennett v. Hayes Robertson Group, Inc., 880 F. Supp. 2d 1270 (S.D. Fla. 2012). The requirement of adequacy applies to both the named plaintiffs and to their counsel. London v. Wal–Mart Stores, Inc., 340 F.3d 1246 (11th Cir.2003).
Finally, a Florida business may prevail in contesting class certification by showing there are individual issues in the case which outweigh the issues shared by the class. A plaintiff seeking to certify class also must that the plaintiffs’ collective issues predominate over each class member’s individual concerns. “Common issues of fact and law predominate if they have a direct impact on every class member’s effort to establish liability and on every class member’s entitlement to injunctive and monetary relief.” Williams v. Mohawk Indus., Inc., 568 F.3d 1350 (11th Cir.2009). By contrast, “‘common issues will not predominate over individual questions if, ‘as a practical matter, the resolution of [an] overarching common issue breaks down into an unmanageable variety of legal and factual issues.’” Kubiak v. S.W. Cowboy, Inc., 312-CV-1306-J-34JRK, 2014 WL 2625181 (M.D. Fla. June 12, 2014). Therefore,
Peter Mavrick is Fort Lauderdale, employment lawyer who also represents the interests of businesses and their owners in Miami and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.