One tactic to defeat a class action is to assert that the named plaintiff is not an appropriate or proper representative for the class. These initiatives are not often successful, but defense counsel should always be looking for them. A defendant employer is doing just that by asserting that a lead plaintiff does not share a sufficiently commonality with the rest of the class to allow the case to proceed. The cases are entitled Washington v. GEO Group Inc. and Nwauzor et al. v. GEO Group Inc. and were filed in federal court in the Western District of Washington..
The defendant filed the motion to decertify the class one day before the trial was scheduled to begin, an interesting tactic in its own right. The lead plaintiff had been diagnosed with a mental illness, but he had previously been found by the court to be competent to be the class representative. Now, the defense lawyers are asserting that the man’s condition had “deteriorated significantly” and a referral for him for inpatient treatment indicated he was possibly looking at a “possible long-term civil commitment.”
The defendants claimed that Mr. Nwauzor was not a proper class representative because “his claims are not typical of the class as a whole.” The Company argued that this person only worked in a single job, i.e. a shower cleaner in the time he was confined. Thus, the defendants assert that “his experience is too narrow — both in time and in the scope of his VWP experience. As the sole class representative, Nwauzor represents participants in only one out of more than a dozen VWP positions and only about seven percent of the class period.” Alternatively, the defendant contended that even if the class is not de-certified, it should be limited to only those workers who occupied the same position as the lead plaintiff.
The timing of the motion to de-certify is interesting, as stated above, as jury selection was supposed to start a day later. The employer had fought long and hard for a totally in-person hearing. The employer offered the example of the Derek Chauvin as proof that such an in-person trial could be accomplished safely.
This is an interesting tactic and it is one that does not often fall into the hands of a defendant employer. If the motion is successful, the class is eliminated, and the individual is left to vindicate only his own claim. The lesson is if there exists an opportunity to find a magic bullet to get rid of the entire class action, the employer should avail itself of it.
Keep looking for that magic bullet…