On Monday, February 4, the Seventh Circuit decided Espenscheid v. DirectSat, Inc.  The decision is notable for two holdings.  First, Judge Posner held, rather summarily, that there is no good reason to distinguish certification of opt-in FLSA collectives from opt-out Rule 23 classes, and that the same standards should apply.  That is welcome news for defense practitioners, as some courts have suggested, without much justification, that certification under the FLSA may not require as rigorous an analysis.

More striking, however, is the decision’s main holding that where damages cannot be proved without consulting each class member, the class should not be certified (or should be decertified).  Plaintiffs in Espenscheid proposed to present testimony from 42 of the 2,341 class members, though they were coy about how those 42 were chosen.  There was no suggestion, in any event, that the 42 were chosen randomly or that any test of statistical significance was applied to that figure.

The court held that the proposed approach was inadequate, because the actual damages incurred by class members likely varied from person to person, so that an accurate award would require evidence from all 2,341 class members.  That need for individualized evidence of damages precluded class certification.

It is not hard to find cases rejecting this argument, and holding instead that variation in damages does not preclude class certification.  Espenscheid does not acknowledge any of these decisions.

Because the plaintiffs here alleged that they had been denied overtime pay, and there apparently was no dispute about their nonexempt status or entitlement to overtime for hours worked in excess of 40, liability and damages questions were closely related.  In such cases, at least, Espenscheid offers an interesting new argument in opposing class certification, or seeking decertification of a conditionally certified FLSA collective.

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Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.