Detroit District Court Certifies Antitrust Class of Registered Nurse

by BakerHostetler

What is the right compensation for a particular job? That’s the question virtually every employer must face. Pay too little, and the employer may not be able to fill a position or must settle for less than the best candidates. Pay too much, and the employer loses money and may create other problems, including the morale of other employees, additional hurdles in managing substandard performers, and other aberrations in its compensation system.

For that reason, many employers investigate what wages are being paid in the market place, often subscribing to third party services to provide competitive wage data. The use of these services is driven in part by Department of Justice and Federal Trade Commission guidelines that create a safe harbor of sorts to permit employers to use data that is sufficiently non-specific to assist in making compensation decisions. The purpose for these guidelines is to avoid potential antitrust violations where it can be claimed that employers have conspired to fix wages. If that system fails, the employer can be faced with potentially staggering liability, as a recent case demonstrates.

In Cason-Merenda v. VHS of Michigan, Inc., Case No. 2:06-15601-GER-DAS (E.D. Mich., Sept. 13, 2013), the plaintiffs claimed that a group of hospitals in the Detroit area improperly shared wage information and colluded to fix the wages paid to tens of thousands of registered nurses. Perhaps significantly, all but one of the hospitals settled their claims on a class-wide basis. The court denied, in part, the remaining defendant’s motion for summary judgment, and also denied its motion to reject the plaintiffs’ expert’s testimony on Daubert grounds. Following those rulings, the plaintiffs sought certification of a class of approximately 20,000 registered nurses for wage decisions going as far back as 2002. Given the magnitude of the claims, and the difficulty of reconstructing compensation decisions in the fast-paced world of health care from over a decade before, it isn’t hard to see why the other hospitals had chosen to settle.

The last defendant, however, did make cogent arguments in opposition to certification. As the court itself noted, different hospitals used different surveys at different times and they used them differently, if at all. A significant part of the nurses’ compensation consisted of things other than wages, and those components varied by employer and location (although the parties disagreed over the degree). It pointed to disparities based on union versus non-union hospitals and the fact that wages did, in fact, vary among different institutions. As the court acknowledged later in its opinion, the employer identified several factors that influenced a particular nurse’s wages, including “merit, education, expertise, negotiating power, willingness to take on more demanding duties or a less desirable shift, or myriad other factors.” The employer also pointed to several other cases refusing to certify such cases because of these and similar differences. See, e.g., Reed v. Advocate Health Care, 268 F.R.D. 573 (N.D. Ill. 2009).

Although the court started its analysis with the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), much of the decision rests more on pre-Dukes antitrust law, in particular the case of In re Scrap Metal Antitrust Litigation, 527 F.3d 517, 535 (6th Cir. 2008), in which the Sixth Circuit, the court explained, expressed a preference for certification in antitrust cases. The court similarly rejected the cases cited by the defendant by distinguishing them factually and, in places, questioning whether they would be followed in the Sixth Circuit. The court similarly rejected the defendant’s many challenges to the plaintiffs’ expert, finding them more suitable for cross-examination than for a basis to exclude the testimony entirely.

In reading the decision, one can’t help but wonder if the court wasn’t influenced by the fact that all of the other hospitals had settled on a class-wide basis and that it had already found a question of fact (and possibly believed the claims to be more than colorable) as to the merits. Tellingly, nowhere does the opinion cite the Supreme Court’s decision in Comcast Corp. v. Behrend, 569 U.S. ___ (Mar. 27, 2013) (which we blogged here on March 28, 2013), or explain how, given its acknowledgement of so many individual factors bearing on the level of wages, damages could ever be determined on a class-wide basis. After admonishing the defendant about holes that might exist in its trial strategy, the court certified the class.

Cason-Merenda is a rare example of an antitrust case being certified in the employment context.  While the defendant may seek Rule 26(f) review before the Sixth Circuit, and while there are troubling gaps in an otherwise well-written and thorough opinion, the matter has undoubtedly consumed extensive time, money, and attention for the employer. The case is now in its eighth year of litigation and the potential liability is undoubtedly a cause for concern.

The Bottom Line: When antitrust cases go wrong in the employment arena, they go very wrong.

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 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):

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.


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 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:

- 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.