Federal courts across the country are increasingly recognizing the impracticalities and fairness/due process concerns that preclude managing wage and hour class trials, especially where plaintiffs’ trial plan proposes “representative evidence” to prove class claims. The key take-away for employers is to require plaintiffs to produce a trial plan early. The sooner the court reviews plaintiffs’ proposal for proving the claims of absent class members, the sooner the court may conclude that the case cannot proceed on a class basis.

Espenscheid v. DirectSat USA, LLC, 09-cv-625-bbc, 2011 WL 2009967 (W.D. Wis. May 23, 2011) (Espenscheid.pdf), is representative of the recent trend among courts. Despite initially certifying the federal and state law overtime claims of the non-exempt plaintiffs under both FLSA § 216 and FRCP 23, the court did a 360 on the eve of trial and decertified the plaintiff classes after examining their trial plan.

Originally, the court had granted certification on the grounds that the employers’ uniform policies and practices on timekeeping and overtime were a common cause of the plaintiffs’ alleged class-wide overtime violations. The court bifurcated the case and created subclasses, based on the plaintiffs’ three different theories of liability, in order to try to account for the diverse experiences of class members. After reviewing plaintiffs’ trial plan, however (which the court did not require until the month before trial), the court determined that a class trial would not be manageable and risked impinging on the due process rights of both the employer and absent class members.

Plaintiff’s trial plan proposed that:

  • 42 class members would provide “representative testimony” for the 2,300-member state law classes (of which 1,000 had opted in for the FLSA claims); and
  • the jury could determine damages by calculating the “average” number of uncompensated overtime hours for the 42 testifying plaintiffs and apply that average to the determine damages for the remaining class members.

The court found this trial plan unworkable and held that despite initially finding that plaintiffs’ claims were all grounded in the employers’ uniform policies, in reality, proof of plaintiffs’ claims was dependent on how individual employees responded to those policies – which was neither consistent nor uniform. The court explained:

The idea of representative proof is that plaintiffs could provide testimony from a sample of [employees] . . . which can then be extrapolated to the remainder of the group without significant error. Without an expert, it is not clear who would testify as to whether [such extrapolation] is scientifically or statistically appropriate.

2011 WL 2009967, at *5. The court also reasoned, among other things, that it would be extremely difficult for the defendant-employers to assert their various defenses in a class trial. The court held that “collective treatment is not appropriate where a defendant would be required to ‘pick the class apart, plaintiff by plaintiff, going into the day-to-day job duties of each of the plaintiffs to prove their defenses.’” Id., at *7 (emphasis added) (quoting Johnson v. Big Lots Stores, Inc., 561 F. Supp. 2d 567 (E.D. La. 2008) (decertifying class after merits trial)) (Johnson v. Big Lots Stores.pdf).

Espenscheid provides helpful guidance for employers. In addition to being favorable precedent for motion practice, more important are its practical and tactical teachings. Although the employer ultimately prevailed on the class certification issue, it was not until rounds of motion practice, full class discovery on the merits, and preparation for a full-blown class trial.

Based on the experiences of the Espenscheid defendants, employers would be well advised to demand that plaintiffs produce a trial plan early – in response to interrogatories and/or with their class certification motion – and to take plaintiffs to task if they fail to do so.  The earlier the trial plan is shown to the court, the earlier it may conclude that plaintiffs’ claims should not be certified in the first instance or that a previously certified class should be decertified.