The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Patrick Mendez, commenced this action against his former employer, Radec Corporation ("Radec"), and two of its officers, alleging that Radec has violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and the New York Labor Law ("Labor Law"), by failing to pay wages to which Mendez was legally entitled. Mendez also alleges that Radec terminated his employment in retaliation for his complaints about Radec's wage violations.
The Court has issued several decisions and orders in this case, familiarity with all of which is assumed, that are relevant to an understanding of the issues now before me. On February 26, 2004, in open court, I directed that potential class members be given notice of the existence of this action and of their rights to opt in to the action under the FLSA's "collective action" provision, 29 U.S.C. § 216(b). Dkt. #45.
On November 22, 2005, the Court issued a Decision and Order, which: granted in part and denied in part plaintiff's motion for summary judgment; granted plaintiff's motion for class certification of his Labor Law claims under Rule 23(b)(3) of the Federal Rules of Civil Procedure; and denied defendants' motion to "decertify" plaintiff's collective action under the FLSA. 232 F.R.D. 78.
Following the issuance of that Decision and Order, defendants moved pursuant to Rules 54(b) and 59(e), and 28 U.S.C. § 1292(b), for an order reconsidering, altering, or amending the Court's November 2005 Decision and Order, or alternatively, certifying the matter for interlocutory appeal. On January 30, 2006, the Court issued a Decision and Order denying defendants' motion. 411 F.Supp.2d 347.
Defendants have now filed a motion (Dkt. #216) to decertify the Rule 23 class, pursuant to Rule 23(c)(1)(C), which provides that "[a]n order that grants or denies class certification may be altered or amended before final judgment." Plaintiffs oppose the motion.
"Even after a [class] certification order is entered, the [district] judge remains free to modify it in the light of subsequent developments in the litigation." General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 160 (1982). Thus, a district court that has certified a class under Rule 23 "can always alter, or indeed revoke, class certification at any time before final judgment is entered should a change in circumstances" render a class action no longer appropriate. Cordes & Co. Financial Services, Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 104 n. 9 (2d Cir. 2007); see also Daffin v. Ford Motor Co., 458 F.3d 549, 554 (6th Cir. 2006) ("If at a subsequent point in the litigation the district court determines that [circumstances have materially changed], the district court may consider at that point whether to modify or decertify the class"); In re Integra Realty Resources, Inc., 354 F.3d 1246, 1261 (10th Cir. 2004) ("a trial court overseeing a class action retains the ability to monitor the appropriateness of class certification throughout the proceedings and to modify or decertify a class at any time before final judgment"); accord Lee v. City of Columbus, Ohio, No. 2:07-CV-1230, 2008 WL 3981459, at *3 (S.D.Ohio Aug. 22, 2008), modified on other grounds, 2008 WL 5146504 (S.D.Ohio Dec. 5, 2008).
"In fact, a federal district court judge has an affirmative obligation to ensure" that class certification remains appropriate throughout the litigation. Wu v. MAMSI Life & Health Ins. Co., 256 F.R.D. 158, 162-63 (D.Md. 2008). See Boucher v. Syracuse Univ., 164 F.3d 113, 118 (2d Cir. 1999) ("under Rule 23(c)(1), courts are required to reassess their class rulings as the case develops"); Richardson v. Byrd, 709 F.2d 1016, 1019 (5th Cir. 1983) ("Under Rule 23... the district judge must define, redefine, subclass, and decertify as appropriate in response to the progression of the case from assertion to facts"); Chisolm v. TranSouth Financial Corp., 194 F.R.D. 538, 544 (E.D.Va. 2000) ("the Court is duty bound to monitor its class decision and, where certification proves improvident, to decertify, subclassify, alter, or otherwise amend its class certification").
Like the initial decision whether to certify a class, the question of whether to decertify a class lies is committed to the discretion of the district court. See Wu, 256 F.R.D. at 162 ("A federal district court possesses the same broad discretion in determining whether to modify or even decertify a class" as it does in deciding whether to grant class certification). "In considering the appropriateness of decertification, the standard of review is the same as a motion for class certification: whether the Rule 23 requirements are met." Marlo v. United Parcel Service, Inc., 251 F.R.D. 476, 479 (C.D.Cal. 2008); see also East Maine Baptist Church v. Union Planters Bank, N.A., 244 F.R.D. 538, 541 (E.D.Mo. 2007) ("In considering a defendant's motion for decertification, the Court follows the legal standard required for class certification... and focuses its inquiry as to whether or not the requirements of Rule 23 have been met").
"[T]he four prerequisites of Rule 23(a) [are]: numerosity, commonality, typicality, and adequacy of representation." Marisol A. v. Giuliani, 126 F.3d 372, 375 (2d Cir. 1997). In addition, "the party seeking certification must qualify under one of three criteria set forth in Rule 23(b)." Id. at 376; Comer v. Cisneros, 37 F.3d 775, 796 (2d Cir. 1994).
In the case at bar, the Court found in its November 22, 2005 Decision and Order that plaintiffs had met the certification requirements of Rule 23(b)(3), which provides for certification when (1) questions of law or fact common to the class members predominate over any questions affecting only individual members, and (2) a class action would be superior to other available methods for the fair and efficient adjudication of the controversy. See 232 F.R.D. at 93-94.
In support of their motion to decertify, defendants focus on two of the requirements of Rule 23: adequacy of class counsel, and the predominance of classwide over individual issues. Defendants contend that the record now shows that neither condition has been satisfied.
II. Alleged Inadequacy of Class Counsel
Defendants contend that class counsel have proved themselves to be inadequate in a number of respects. In particular, defendants assert that class counsel have made several glaring errors that have disadvantaged and prejudiced class members.
As other courts have observed, objections by defendants to the adequacy of class counsel sometimes need to be taken "with a grain of salt." Williams v. Balcor Pension Investors, 150 F.R.D. 109, 119 n. 10 (N.D.Ill. 1993); accord Sipper v. Capital One Bank, No. CV 01-9547, 2002 WL 398769, at *4 n.7 (C.D.Cal. Feb. 28, 2002); Ballan v. Upjohn Co., 159 F.R.D. 473, 487 (W.D.Mich. 1994). If defendants carp about the alleged shortcomings of plaintiffs' counsel, then, it is probably not out of any particular solicitude for the class members themselves. At any rate, the underlying reasons for defendants' complaints about class counsel's performance have no bearing upon the Court's independent, continuing obligation to determine if Rule 23's adequate-representation requirement has been met. See In re Integra Realty Resources, Inc., 262 F.3d 1089, 1112 (10th Cir. 2001) ("Once the decision to certify a class has been made, the court remains under a continuing duty to monitor the adequacy of representation to ensure that class counsel provides zealous, competent representation through the proceedings"); accord Z-Seven Fund, Inc. v. Motorcar Parts & Accessories, 231 F.3d 1215, 1219 (9th Cir. 2000); Foe v. Cuomo, 892 F.2d 196, 198 (2d Cir. 1989). With these considerations in mind, the Court turns to the particular bases for defendants' assertion that class counsel in this case have proven themselves inadequate.
A. Simultaneous Class Certification and Summary Judgment Motions
Plaintiff Mendez moved for summary judgment (Dkt. #131) at the same time that he moved for class certification (Dkt. #134). In its November 22, 2005 Decision and Order (Dkt. #195), the Court granted the motion to certify, and granted in part and denied in part the motion for summary judgment.
Specifically, the Court granted summary judgment for plaintiff on the issue of defendants' liability as to claims arising out of travel to job sites where an overnight stay was expected, and for overtime pay for compensable travel time when an employee's total hours exceeded forty hours in a given week. The Court also certified a Rule 23 class with respect to claims under the New York Labor Law asserted by the members of Subclass 2 of the amended complaint.*fn1
Defendants contend that the summary judgment ruling in favor of Mendez cannot be applied to the class as a whole, because of the rule against "one-way intervention," which "bars potential class members from waiting on the sidelines to see how the lawsuit turns out and, if a judgment for the class is entered, intervening to take advantage of the judgment," while only the named plaintiff would be bound by a judgment in favor of the defendant. Amati v. City of Woodstock, 176 F.3d 952, 957 (7th Cir.), cert. denied, 528 U.S. 985 (1999). To foreclose that possibility, Congress in 1966 amended Rule 23 in a number of respects, including the addition of "opt out" procedures, with the aim of ensuring that "a person's decision whether to be bound by the judgment[ in a class action]--like the court's decision whether to certify the class--would come well in advance of the decision on the merits." Premier Elec. Const. Co. v. National Elec. Contractors Ass'n, Inc., 814 F.2d 358, 362 (7th Cir. 1987). See also Becherer v. Merrill Lynch, Pierce, Fenner, and Smith, Inc., 193 F.3d 415, 429 (6th Cir. 1999) (Congress's 1966 revisions to Rule 23 were designed to end one-way intervention) (Moore, C.J., concurring); Advisory Committee Notes to 1966 Amendments to Rule 23 ("Under... subdivision (c)(3), one-way intervention is excluded; the action will have been early determined to be a class or nonclass action, and in the former case the judgment, whether or not favorable, will include the class"). Defendants contend that by seeking a judgment on the merits simultaneously with class certification, and prior to notice being sent to class members, class counsel effectively prevented the Court's summary judgment ruling from inuring to the benefit of the class as a whole.
In response, plaintiffs contend that defendants' delay in raising this issue is itself grounds for denying defendants' motion. Plaintiffs also contend that there was nothing improper or erroneous about counsel's simultaneously filing, or the Court deciding, their motions for summary judgment and for class certification.
Strictly speaking, whether the summary judgment ruling in favor of Mendez can be applied to other class members is not directly before me. Defendants are not now objecting to the Court's simultaneously ruling on that motion and the class certification motion (and indeed it would seem to be far too late to raise such an objection now), but instead are arguing, based on their position concerning the effect of such simultaneous rulings, that plaintiff's counsel have proven themselves inadequate to represent the interests of the class, and that the class should therefore be decertified.
Whether that argument is well-taken, then, depends to a considerable extent on whether the simultaneity of the summary judgment and class ...