Ah, class decertification in district court…the rarely glimpsed, late-harvest victory that comparatively few class action defense counsel can claim to have tasted. U.S. District Judge Charles Breyer of the Northern District of California recently delivered one such victory for the 2016 vintage, decertifying a plaintiff class he originally certified in 2012 in a wage-and-hour litigation against auto parts retailer AutoZone, Inc. In the course of reaching that decision, Judge Breyer’s 49-page order also offers further insights into how the Supreme Court’s decisions in Tyson Foods v. Bouaphakeo, Comcast Corp. v. Behrend, and Wal-Mart Stores, Inc. v. Dukes are shaping class action litigation in the district courts.
“Gimme a Break”
The erstwhile class—current and former employees at AutoZone’s California retail stores during a seven-year period—claimed that AutoZone’s written rest break policy did not comply with California law, and that rest breaks were not authorized, permitted, and/or compensated appropriately. At class certification, Judge Breyer expressed doubts about the plaintiffs’ ability to prove their case, and the case’s manageability, in the absence of written records of when individual employees took (or, more to the point, did not take) breaks. The plaintiffs overcame such doubts, and secured class certification, by representing that the defendant had a uniform rest break policy in effect throughout the class period, and had conducted audits of employee rest breaks. The plaintiffs speculated that there could be records of breaks that they had not yet obtained in discovery.
Fast forward through three and a half more years of litigation, including extensive discovery. What did the plaintiffs have to show for it? First, the court found that, contrary to the plaintiffs’ representations about a uniform policy, the defendant actually had a lawful written rest break policy for three years of the class period. Second, in the words of the court: the plaintiffs found “no audit records or any other time records of when class members took rest breaks” (emphasis in original). Plaintiffs’ solution? A survey of class members’ recollections of whether they had been authorized and permitted to take rest breaks during work shifts of various durations.
It’s All in the Numbers
Sound familiar? For readers of this blog, it should: the Supreme Court’s Tyson decision turned on whether a plaintiff class, in the absence of company records of time spent “donning and doffing” protective equipment, could instead rely on “representative” statistical evidence to establish class-wide liability and damages. In the context of that case, Justice Kennedy’s opinion for a six-Justice majority concluded that they could.
Judge Breyer, however, reached a different conclusion, criticizing the survey’s “woefully low response rate,” potential sample biases, imprecision, and ultimate reliance on recollections of “very specific”—and mundane—“events that occurred between three and a half and eleven years ago.” Excluding the survey under Daubert, and noting that there was, in fact, no uniform policy throughout the class period, the court concluded that individual questions would overwhelm any common questions, and the case would devolve into an unmanageable “nightmare” of 20,000 mini-trials. Class decertified.
Is Justice Delayed Justice Denied?
As sweet as a decertification victory might taste to a defendant, one cannot help but also taste the bitterness that comes with the hours, months, years—and dollars—spent establishing that a plaintiff class simply doesn’t have an evidentiary leg to stand on. This case seems to underline the need for early and comprehensive class discovery, and for careful, good-faith evaluation of that discovery by both plaintiffs and defendants, so that courts can reach the right result the first time around.