Judge Hornby issued a decision this week in the District of Maine, certifying additional state-law class claims and rejecting defendant's request to decertify an FLSA class in a misclassification case involving FedEx drivers. Scovil v. FedEx Ground Package System, Inc., 10-cv-515 (D. Me. Aug. 13, 2012). In the course of his decision, Judge Hornby engages in an in-depth construction of the relevant Maine labor statutes that may be of interest to the employment-law practitioner. Our focus here, however, is on a particularly interesting facet of his Rule 23 analysis: the predominance requirement under 23(b)(3).
The issue in Scovil was whether the plaintiff drivers were properly classified as independent contractors or whether they should have been classified as employees. The defendant made two principal predominance arguments. First, in proving that all its drivers were properly classified, the defendant intended to offer lots of evidence about the variation among individual drivers in permitted behavior, profits and losses generated, skills and initiative, and negotiations of their agreements. Second, in proving that some of its drivers were properly classified as independent contractors even though others might actually have been employees, defendant intended to offer individual evidence about each driver's circumstances. Because of the need for individualized proof on these issues, defendant argued that common issues did not predominate.
Judge Hornby rejected the first argument because he concluded that the evidence would be common even though it would be evidence about individuals. That is, the issue of the variation among individuals would be offered as common evidence that all of the drivers were properly classified as independent contractors.
to the degree that those are relevant issues . . . they are part of the common proof—that FXG accorded independence to its drivers and accorded them economic freedom. That evidence of variation among drivers is a hallmark of independent contractor status and would be admissible at FXG's request even in an individual lawsuit by one driver, to show that whatever the experience of that individual driver, he had the opportunity and freedom accorded to an independent contractor, as demonstrated by the experience of his fellows; the variety component is not a dimension added by class action certification. And while there may be a lot of evidence to present to show variety, that is not the same as showing that common evidence does not predominate.
(Slip. Op. at 14).
FedEx's second argument, that it should be permitted to introduce evidence that some of its drivers were properly classified as independent contractors even if others were not, and that such individualized proof would predominate over common issues, might have carried the day if that issue were properly in the case. So why did Judge Hornby certify? Because he found "the defense highly improbable, without Maine case support, and therefore not a factor in the certification decision." (Slip Op. at 17). In other words, in conducting the "rigorous analysis" Rule 23 requires, Judge Hornby looked at the merits and made a prediction whether an issue on which individualized proofs arguably would predominate would in fact be a proper merits issue under the governing law. Finding that it would not, the predominance of individual proofs on that issue did not factor into the Rule 23(b)(3) analysis.
Scovil serves as a useful reminder that the need for evidence about the circumstances and behaviors of individuals to prove a claim or defense at trial may not always equate with a finding that individualized issues predominate. If the individualized evidence will, in the aggregate, determine a common issue, it may not preclude certification -- nor will a predominance of proofs on issues that actually do not need to be determined to decide the merits at trial or on summary judgment. Where possible, defense counsel opposing motions for class certification on grounds of predominance should take care to tie the individual evidence back to varying outcomes to show that there is not simply a predominance of evidence about individuals, but a predominance of issues relevant to some element of the parties' claims or defenses that must be determined separately for individual members of the putative class. When that showing is made convincingly, and the Court applies the required "rigorous analysis," certification should be denied.
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