Corporate defense lawyers, all caught up in their Dukes v. Wal-Mart hysteria, continue to attempt to use the Supreme Court decision as a basis to ask district courts to reconsider FLSA conditional certification decision. Our firm recently defeated such a motion in an Eastern District of Pennsylvania lawsuit brought on behalf of Pennsylvania delivery drivers who allege that they are entitled to overtime apy because they have been misclassified as independent contractors instead of employees. In another case, entitled Butcher v. United Airlines, Inc., 1:09-cv-11681-NG (D. Mass), Massessusetts District Court Judge Nancy Gertner similarly rejected a reconsideration motion. Here is the text of Judge Gertner’s electronic order: Judge Nancy Gertner: ELECTRONIC ORDER entered denying 42 Motion for Reconsideration. The Defendant moves the court to reconsider its order granting conditional certification of the class. United principally argues that the plaintiffs have failed to show that the alleged violation of the Fair Labor Standards Act was the result of a policy or practice that affected employees nationwide. First, United asserts that according to Trezvant v. Fidelity Employer Servs. Corp, in order to receive conditional certification for a national class, the plaintiffs must produce evidence from each work site nation-wide. 434 F. Supp. 2d 40 (D. Mass. 2006). Trezvant, however, explicitly rejected such a high burden: the court would not adopt such a hard-and-fast rule as to how plaintiffs seeking conditional certification must meet this lenient similarly situated standard at this initial stage. Id. at 44-45 (finding that plaintiffs had failed to show that the policy was common nation-wide where plaintiffs produced affidavits from only one site and did not have personal knowledge of other sites). Here, the plaintiffs have presented evidence from three cities, including Dallas/Fortworth, Boston, and Chicago. They have more than met their burden — at this stage — to show that United’s decision to require that skycaps pay $2 per bag out of their tips even when the customer did not pay the required fee was executed nation-wide. The purpose of conditional certification is precisely to identify potential plaintiffs and gather evidence from other sites. To require that evidence at the outset would be to undo conditional certification altogether. Of course plaintiffs will have a higher burden at the next stage of litigation upon a motion to de-certify the class. The motion to reconsider is DENIED. I pause to note that the defendant’s citation to Dukes v. Wal-Mart Stores, Inc., 2011 WL 2437013, *1 (Jun. 20, 2011), is misplaced. Dukes does not involve the FLSA, and its holding does not apply to conditional certification. It is well settled that Rule 23 is more stringent than § 216(b) generally, see Lewis v. Wells Fargo Co., 669 F. Supp. 2d, 1124, 1127 (N.D. Cal. 2009) (The requisite showing of similarity of claims under the FLSA is considerably less stringent than the requisite showing under Rule 23 of the Federal Rules of Civil Procedure, quoting Wertheim v. Arizona, 1993 WL 603552, at *1 (D. Ariz. 1993)), and especially so at the conditional certification stage. (Gertner, Nancy) (Entered: 07/22/2011)
