West Virginia District Court Refuses To Certify Fail Safe Class

It's not uncommon to see putative classes pleaded in terms of the violation of a specific statute, such as "all managers misclassified as exempt by defendant" or "all persons harmed by defendant's discriminatory policies."  In all likelihood, classes may be pleaded this way due to the attorney's bravado that, of course, all of the defendant's managers are misclassified, or that all of its employees within a protected group are harmed by the targeted policy.  But it is also the classic "heads I win, tails you lose ploy."  Such a class definition doesn't really tell us who is in or out of the class.  Class members are bound only if they win, and if the defendant wins on the merits the decision doesn't apply to anyone since technically no-one was in the class to begin with.