Plaintiffs’ Arguments Miss the [fill in the blank]

One of the justifications and requirements for class treatment is that the plaintiffs’ claims all can be resolved in one stroke. This concept, which is embodied in the related elements of commonality and typicality and central to the Supreme Court’s Dukes decision, is frequently glossed over by parties or courts eager to confer class action status on a given dispute. In many cases, this is done not by looking at the evidence or the facts the plaintiffs must prove in order to establish their claims but largely by simply restating the claims themselves. But not all courts will sidestep such strategies.

In Faraji v. Target Corporation, Case No. 5:17-CV-00155-ODW-SP (C.D. Cal. Apr. 30, 2018), the plaintiff had the awkward job title of “executive team leader in asset protection,” which went by the equally awkward abbreviation ETL-AP. Even if you try to pronounce it (etlap?), it’s still awkward. The duties, however, were important for the operation of a large retail store.

In Target stores, the ETL-APs were the highest-ranking managers charged with loss prevention. In addition to supervising the store’s loss prevention function and loss prevention employees, the ETL-APs worked several shifts as the store’s lead manager (called an LOD in store parlance) and reported to the highest-ranking manager of the store (the store team leader, or STL). Target classified the ETL-APs as both executive and administrative exempt.

The plaintiff, who worked in a store in California, challenged that classification primarily based on the argument that the exempt functions of the position did not make up more than 50 percent of the time worked and thus failed California’s quantitative exemption tests. The plaintiff sought to represent a class of approximately 800 ETL-APs working at more than 250 California Target stores and asserted the usual litany of California wage and hour claims.

The district court, however, denied certification, finding no commonality. To establish commonality, the plaintiff pointed to issues such as whether the company’s directive to “[m]odel and drive a sales and service culture to deliver an exceptional guest experience” was truly an exempt function, or, more generally, “[w]hether the LOD duties are exempt duties.” These issues, the court found, largely missed the point​.

The real issue in the case was whether the ETL-APs performed work. And the issue under California law was whether they spent more than 50 percent of their time on exempt duties. Such an inquiry would necessarily force the court to “look at how much time a specific employee is spending on exempt tasks” (emphasis in original). No company policy or job description could fulfill that task on a classwide basis. Finding no basis for commonality due to the inherently individual nature of the inquiry, the court denied certification.

The court in Faraji rightly rejected the phantom commonality conjured up by the plaintiff. The issue in class litigation is not whether a party can come up with common elements, but whether the court can resolve the claims of all of the members based on the same common evidence. The truth in most misclassification cases is that this isn’t true and the inquiry will devolve into a series of individual inquiries.

The bottom line: A list of common “issues” is no substitute for common proof in Rule 23 litigation.