Today, Public Citizen, working with co-counsel at Thomas & Solomon LLP of Rochester, N.Y., and O’Hara, O’Connell & Ciotoli of Fayetteville, N.Y., filed a petition to appeal the class certification denial in Roach v. T.L. Cannon Corp., a wage-and-hour class action. The appeal will be among the first to test the scope of the Supreme Court's recent decision in Comcast v. Behrend, which we've discussed previously on the blog here and here.
Plaintiffs are employees at Applebee’s restaurants who were not paid wages to which they were entitled under state and federal law. In 2010, Plaintiffs sued the company that owned and operated the restaurants and sought to proceed in a class action. Even though the plaintiffs presented evidence that defendants’ uniform policies and practices – such as a policy of docking employees for rest breaks they had not taken – led to the wage law violations, the district court denied class certification two weeks ago, ruling that after Comcast, a class action cannot be maintained whenever monetary relief must be calculated on an individual basis for each member of the class.
On behalf of the plaintiffs, Public Citizen filed a petition today for permission to appeal to the Second Circuit under Rule 23(f). Our petition argues that the district court’s rule, if accepted, would dramatically reduce the availability of class actions, because there are many types of cases in which each member of the plaintiff class is entitled to a different amount of damages. Examples are easy to think of: for instance, in many employment cases, the employer is alleged to have withheld overtime but the amount of overtime that each employee worked (and therefore the amount owed to each) differs. Damages could also vary among consumers injured to different degrees by the same product defect, or employees who suffered different types of harm as a result of a single discriminatory employment practice. The district court’s decision reads the Comcast decision too broadly, the petition argues, and conflicts with the widespread and long-standing view of the courts of appeals that a class action for damages may sometimes be maintained based on a common theory of liability notwithstanding the need for individualized damages calculations. Not surprisingly, pleas to read Comcast broadly are already cropping up in defendants' briefs around the country. Let's hope we can stem the tide.
Our press release is here.