The Fourth Circuit Uncovers A Lack Of Certification Analysis In Recent Pinkerton Class Action

by BakerHostetler

On November 6, 1860, Abraham Lincoln was elected the 16th President of the United States. Shortly after his election, rumors of a possible plot to assassinate the decidedly pro-Union President-elect began to circulate. With several Southern states threatening secession from the Union, the tension in the D.C. area was palpable. On February 23, 1861, Lincoln disguised himself and snuck through Baltimore at night, so that he could arrive at his inauguration safely. (It should be noted that this sequence did not appear in the Spielberg film Lincoln. In this blogger’s opinion, the absence of such a scene contributed to the film’s loss of Best Picture to Argo – a film, which, coincidentally, involved several Americans sneaking through hostile territory in disguise…)

Although the conspiracy surrounding the Baltimore Plot has never been proven, one man emerged a hero from the affair. Allan Pinkerton, founder of the Pinkerton National Detective Agency, managed Lincoln’s security throughout the journey. Pinkerton founded the famous (and infamous) detective agency eleven years earlier, in 1850, and it survives to this day in various forms, including Pinkerton Government Services, which was the subject of a recent Fourth Circuit decision in Ealy v. Pinkerton Gov't Servs. Inc., 4th Cir., No. 12-1252, unpublished opinion 3/14/13.

To anyone but a wage and hour attorney, the facts are not as interesting as sneaking President-elect Lincoln into Washington at night. The plaintiffs at issue in Ealy were security guards working for a federal subcontractor at Andrews Air Force Base in the Maryland suburbs of Washington, D.C. The plaintiffs sued under the FLSA, as well as Maryland law, alleging Pinkerton violated state and federal law by not compensating them for “disarming” time—that is, the time it took for them to report to the armory at the beginning and end of their shifts to collect and return weapons used during patrol. The plaintiffs claimed that disarming took approximately fifteen minutes to complete. In addition, the plaintiffs alleged that Pinkerton’s 45-minute uncompensated meal breaks were a violation of state and federal law, as the plaintiffs were required to remain on-call.

In January 2012, the district court approved an FLSA collective action and later granted certification of the guards’ Maryland claims, as well. Pinkerton appealed the order shortly after the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), and demanded that the class be vacated because the district court failed to sufficiently analyze whether the plaintiffs satisfied the requisite commonality and typicality required under Rule 23(a), and show common issues predominate under Rule 23(b)(2). (Much like the potential assassins in Maryland failed to “rigorously” investigate whether that man dressed like a woman was future President Lincoln.)

The Fourth Circuit agreed, and held that “consistent with Wal-Mart Stores Inc. v. Dukes, a more rigorous analysis into the Rule 23 requirements is necessary in this case to ensure meaningful appellate review,” and specifically, there must be a more thorough investigation into whether there are “common questions of law or fact,” along with typicality and predominance among the class members. As a result, the class certification was vacated, and returned to the district court for review.

The Bottom Line: Nearly a year and a half later, the Wal-Mart decision continues to fulfill its intended purpose: to provide employers with teeth to bite back at plaintiffs who try and slide through the certification process.

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.

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