When James Bond brandishes his Walther PPK and walks into a printing plant, you know one thing is certain – you will be “treated” to at least a half-dozen newspaper puns. And, since this article is about a recent California case involving newspaper carriers, it will, of course, be no different.
Ever since Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), stopped the presses last summer, courts have been struggling with how to interpret the decision, and more importantly, how to define its holding with pending class actions. The judge in Dalton v. Lee Publications, Inc., Case No. 3:08-cv-01072 (S.D. Cal. April 24, 2012), faced just such a dilemma. The plaintiffs, employed as newspaper home delivery carriers, initially sued in 2008 on the premise that the employer, Lee, had misclassified them as independent contractors. In July 2010, the court certified the class as Lee newspaper home delivery carriers who had signed written agreements designating them as independent contractors.
Lee was black, white, and red all over its face when it saw that a class of 800 employees had been certified, so it quickly appealed. In November 2010, however, the Ninth Circuit denied its appeal. Still determined that the certification was not fit to print, Lee moved for decertification following the Dukes decision in 2011. Primarily, Lee argued that individualized issues predominated over common issues, and that the class of 800 would be unmanageable.
The court disagreed. Using Dukes as front page, above the fold material, it wasted no time distinguishing the 1.5 million individuals involved there with the “scant” 800 employees of Lee. Lee argued that the court could not merely look to the similar contracts signed by the plaintiff class members as a “common answer” to the question. Plaintiffs, on the other hand, convinced the court that Lee kept “extensive records” that purportedly demonstrated mileage, hours, and other information with respect to each class member. Any individual damages could be determined through those records, and without any kind of “representative sampling.”
It wasn’t all bad news for Lee, however. Before putting the paper to bed, the court conceded that if the workers could not present such proof of individualized damages at trial, and they were forced to resort to individual testimony, Lee could renew its motion for decertification at that time.
The Bottom Line: Even after Dukes, it is difficult to allege individualized damages for decertification purposes when the defendant keeps meticulous records from which it can easily calculate the amounts.