Courts Deny Certification for Adequacy of Representation in Second Class Action

by BakerHostetler
Contact

One of the tactics in the current plaintiffs’ wage and hour playbook is to bring a second claim after settlement of an initial class or collective action lawsuit. In these cases, the second set of claims is purportedly brought on behalf of those who did not opt in or participate, or it is for alleged violations occurring after the settlement of the initial case. The strategy in some respects is that this is relatively easy money, as much of the discovery has already been done and the employer has already settled the claims once and presumably may do so again to save litigation cost. As two recent cases demonstrate, these tagalong cases may present problems of their own when there are problems with the class representatives.

It’s not clear what the attorneys were thinking in the first case, Robinson v. The Chef’s Warehouse, Case No. 15-cv-05421-RS (N.D. Cal., Feb. 8, 2018). The Robinson case concerned a putative class of delivery drivers in California who asserted that the employer had not properly publicized its meal and rest period policies and had denied them the meal and rest time provided under California law. This case followed a 2012 action brought against the employer involving the very same class and claims in California state court. That first action was settled in 2014.

The employer’s response in the second case, the court acknowledged, was atypical in that it challenged the adequacy of representation based both on the past conduct of plaintiffs’ counsel and the claims of the class representatives themselves. The court disposed of the challenge to the attorneys largely by sidestepping it, as the attorneys being accused of inappropriate conduct allegedly were not the ones being proposed as class counsel. Having said that, one might question why that was an issue and whether an attorney deemed unfit to act as class counsel based on conduct should be permitted near a putative class action at all.

The court’s concern, rather, was with the two plaintiffs. In the prior litigation, they had submitted declarations in 2013 that they understood the company’s meal and rest break policies, had always been provided with them, and had been paid properly for all hours worked. While they attempted in this later case to claim that they were complaining of conduct after that time, the court was skeptical. It found that for whatever reason, any claim they might bring on behalf of the class would be undercut by their prior testimony, rendering them inappropriate class representatives.

The opinion does not state why these employees sought to bring a second class action when they had admitted that the employer had followed California law. Nor does it state what motivated the attorneys to file a second action on the same subject matter when the first case was settled. Whether it was buyer’s remorse or some unexplained change in course by the employer, the court found that their prior position was fatal to their claims.

The second case is Butler v. Harvest Management Sub LLC, Case No. 2:17-cv-00685 (W.D. Wa., Feb. 15, 2018). The Butler case involved claims of misclassification of what was claimed to be thousands of property managers. The defendant had settled a similar case brought in the Central District of California in 2013. In 2017, two of the original class members (who appear to be spouses – the record is less than clear) filed a second class action in federal court in the state of Washington to bring the same claims for the period after the settlement. Along the way, however, these two individuals had declared bankruptcy without listing potential wage and hour claims as an asset. The defendant did not simply oppose certification but also sought to dismiss their claims outright under Rule 12(b)(6) due to the failure to disclose the claims during the bankruptcy proceeding. Two weeks later, the plaintiffs moved to reopen their bankruptcy to disclose the claims.

The district court found the timing of the plaintiffs’ actions “disingenuous” and concluded that they were estopped from asserting their claims. It rejected outright their contention that they were unaware of their claims at the time, a remarkable contention given that they had received settlement funds from the first action and, they claimed, the employer had not changed its policies after the first case. As a result, the claims were dismissed entirely.

The two cases highlight employers’ risk of facing a second round of litigation following the resolution of an initial matter, but they also show that while a second case may be easier in some respects, the plaintiffs may face additional hurdles when the named representatives are less than ideal.

The bottom line: Disappointed claimants from a prior case may not make good class representatives in a later action.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:

BakerHostetler
Contact
more
less

BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.