Amanda Haverstick just penned something in a recent edition of Employment Law 360 concerning the use by employers in FLSA collective actions of demanding an early trial plan from plaintiffs’ counsel. She writes that by requiring counsel to submit a plan at an early stage in the proceedings, the court can review it and (hopefully) conclude that the proposal for proceeding on a class basis is insufficient, which would then impel the court to decertify the class or deny class certification.
The recent case of Espenscheid v. DirectSat USA LLC, 2011 WL 2009967 (W.D. Wis. May 23, 2011), is illustrative of this newly emerging phenomenon. Although the trial court initially certified the classes, just before the trial was to begin, the court changed its position and de-certified the classes. This followed the court’s examination of the plaintiffs’ trial plan.
Scrutiny of the trial plan convinced the court that the case would not be manageable. The court believed that the rights of absent class members and, importantly, the employer, would not be protected. This is because the plan outlined that approximately forty plaintiffs would give so-called “representative testimony” which would, in theory, be representative for 2300 class members. The plan then outlined that damages could be determined by calculating another representative (i.e. average) number of overtime hours for the forty representative plaintiffs and then extrapolating that average to the balance of the class members.
The court deemed this to be unacceptable and held that, notwithstanding the commonality and uniformity evidenced in the complained-of practices, which warranted an initial class certification, the case could not proceed as a class action. In other words, the court determined that proving the claims of the plaintiffs would be contingent upon individual scrutiny of how they conducted themselves under the uniform policies.
I have written many times that the best defense of the employer in collective and class actions is to argue that individual issues dominate and that individual scrutiny is needed. This presents a variation on that theme. By requiring the plaintiffs to present a trial plan, the details of that plan may evidence or be argued to evidence a need for individual scrutiny and then the class will fall. This should be done, as Amanda writes, as early in the case as possible to cut the case (and the attorneys fees) off at the pass.