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.
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.