Class Certification And The Underpants Gnomes

Sheppard Mullin Richter & Hampton LLP

Law360, New York (December 3, 2010) -- In an early episode of the cartoon series "South Park," a boy living in South Park, Colo., discovered that gnomes were coming into his bedroom each night and stealing the underwear out of his dresser. When the main characters of the show finally caught up with these gnomes and asked them why they were taking the underpants, the gnomes explained that it was all part of their three-step business plan. Step one was to gather large quantities of underpants, and step three was to make big profits. Unfortunately, none of the gnomes had any idea what step two was; each assumed that somebody else in their organization knew the answer.

Many a plaintiffs attorney’s approach to wage-and-hour class actions has become surprisingly similar to the gnomes’ business plan, with plaintiffs lawyers playing the role of the gnomes (and courts sometimes enabling them in their thinking). Step one is to have the case certified. Step three is to win a big judgment at trial. Very little attention has been paid, however, to the crucial step two — how to try the case in a way that a court can reasonably manage it while still protecting the defendant’s due process rights.

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