The U.S. District Court for the Western District of Washington (Judge Richard A. Jones) denied a motion to certify a class of more than 2,000 call-center customer account executives (“CAEs”) under Rule 23(b)(3) holding that individualized issues predominated over common questions. Ginsburg et. al. v. Comcast Communications Mgmt. LLC, 2013 U.S. Dist. LEXIS 55149 (W.D. Wash. 4.17.13).
The two named-plaintiffs alleged that as a result of “systemic pressure to maximize their time on the telephone and minimize their time devoted to other tasks,” the CAEs regularly arrived at work early in order to perform unpaid, off-the-clock, pre-shift tasks before answering customer service calls resulting in violations of Washington wage and hour laws. The district court found that the plaintiffs had satisfied Rule 23(a)(2)’s commonality requirement. The anecdotal evidence and statistical data “reveal[ed] common questions whose answers are apt to drive a classwide resolution of Plaintiffs’ claims, . . . [and] could be derived from classwide proof,” e.g., were the CAEs subject to a classwide practice perpetrated by management that resulted in “a work environment in which it [was] difficult or impossible to complete preliminary work without working off the clock?”
However, the district court had concluded that the plaintiffs had failed to satisfy the predominance requirement under Rule 23(b)(3); the differences among class members would overwhelm common issues. Despite evidence of common management pressure, the court determined that the evidence was too varied as to the “means by which supervisors imposed that pressure” and the “ways in which CAEs responded to that pressure.” Because of that variation, the court concluded that the common questions did “not predominate over questions about what policies Comcast’s many supervisors imposed on CAEs, and the many ways in which CAEs responded to those policies.”
Additionally, the court found that “individualized questions [were] abound.” The plaintiffs could “not demonstrate how much uncompensated work the class collectively performed” and they offered no classwide means of determining when each class member’s daily work began or how each of the 77 supervisors required, encouraged, or knowingly permitted off-the-clock work.
The district court also found that the class members’ damages would also require individualized proof; plaintiffs proposed no manageable way to calculate damages and their data did not translate into a viable damages calculation. Quoting language from the U.S. Supreme Court’s March 27, 2013 decision in Comcast Corp. v. Behrend, the court concluded that the plaintiffs could not establish predominance under Rule 23(b)(3) because “individual damage calculations will . . . overwhelm questions common to the class.”
The District Court discouraged the plaintiffs from filing future class certification motions in the case in light of the inherent unmanageability of the individualized issues. The court explained that no “massag[ing]” of the data or any other creative attempt to ameliorate the impact of individualized proof issues could overcome the fact that the class members’ claims ultimately would “devolv[e] into individualized inquiries into when class members began ‘work,’ inquiries whose answers will vary not only among different class members, but among different days on which any individual class member worked.”
This case signifies that the U.S. Supreme Court’s recent pronouncement in Comcast Corp. v. Behrend regarding Rule 23(b)(3) analysis extends beyond the antitrust context. Employers should continue to challenge class-wide claims of off-the-clock violations and emphasize the unmanageability, let alone, near impossibility of calculating alleged damages of an off-the-clock group on a class-wide basis.