No, that isn’t a typo – it was the Ninth Circuit.

Those familiar with collective action litigation are already familiar with the two-step paradigm most courts use to evaluate collective action claims. In the first stage, commonly misnamed “conditional certification,” the court determines whether to authorize notice to the putative class. In doing so, most courts apply a modest burden of proof to show that the proposed class members are “similarly situated” under Section 16(b) of the act. Most motions are granted at this stage. Following a period of opt-in and additional discovery, the defendant may file a motion (also commonly misnamed) for decertification. Most such motions are granted either then or on the eve of trial.

In a case decided last week, the Ninth Circuit affirmed the decertification of a pair of FLSA suits that had been litigated for 14 years and, along the way, made several pronouncements regarding the nuances of this process. The decision in Campbell v. City of Los Angeles, Case No. 15-56990 (9th Cir. Sept. 13, 2018), addressed two putative collective actions alleging off-the-clock time in the Los Angeles police department. The primary focus of the case was on short blocks of alleged time worked. The district court granted conditional certification (in one case by stipulation), but after further discovery decertified both cases. Afterwards, the named plaintiffs settled their individual claims. Numerous officers who had opted into the litigation appealed to the Ninth Circuit.

The Ninth Circuit first had to address the issue of whether the appellants had standing to appeal from the decertification order. In the past, the Third Circuit had held in a case with a slightly different procedural history that only the original named plaintiff could appeal. See Halle v. West Penn Allegheny Health System, 842 F.3d 215 (3d Cir. 2016). We blogged that decision here. This was arguably contrary to a later decision of the Eleventh Circuit, Mickles v. Country Club, Inc., 887 F.3d 1270 (11th Cir. 2018), which dealt with appeals from the denial of conditional certification by opt-in plaintiffs. The Ninth Circuit, in line with the Eleventh, found that the voluntary dismissal of the initial plaintiff’s claims triggered a right of the opt-ins to challenge the prior ruling affecting them.

Turning to the issue of decertification, the court noted, as it did throughout the opinion, that the FLSA itself says very little about how collective action litigation is to be conducted, and most of the procedural rules have been fashioned by courts along the way. It rejected the importation of Rule 23 concepts into collective action litigation, a view that is consistent with that taken by the majority of courts. After analyzing the views of several other courts, the Ninth Circuit rested largely on a summary judgment standard for decertification. In its view, the case could be decertified if “the record does not reveal a genuine issue of material fact as to a Department-wide policy discouraging the reporting of overtime.”

Turning to the facts before it, the court found that the plaintiffs’ claims turned on the allegation that “there exists a kind of tacit policy that operates top-down, such that an inference can be drawn that the policy applies Department-wide.” The court rejected the notion that such a claim was sufficient. Critically, the court found that there was no evidence of communications of department leadership promoting a uniform policy against the reporting of time. Although the plaintiffs presented more than 100 declarations, the court found that given the large class size, they did not provide evidence of a uniform policy. Further, the police department did pay significant overtime, including on short overtime intervals. Finding no suitable basis to conclude that there was a uniform policy not to pay for overtime worked, the court concluded that decertification was proper.

The Campbell decision is interesting for its scholarly review of the two-step procedure now in common use. But it’s also particularly interesting for what we have noted before, which is that while many cases are conditionally certified, those that continue to be litigated are often decertified. This is particularly true of off-the-clock cases, which almost always devolve into a set of individual issues arising from decisions by purely local management.

The bottom line:

Even if an off-the-clock case is conditionally certified, it will be decertified unless the plaintiffs can tie the claimed violations to some uniform, top-down policy.