Minor league baseball players took a swing at class certification, and they missed—badly.
In Senne v. Kansas City Royals Baseball Corp., et al., minor league baseball players across the country asserted wage and hour claims under the Fair Labor Standards Act ("FLSA") and various state laws against Major League Baseball ("MLB"), the Commissioner of MLB, and a number of MLB franchises. The players sought allegedly unpaid minimum wages and overtime for "work" performed during the baseball season (such as travel to and from games and pre-game activities) and during the offseason (such as participating in spring training and offseason conditioning). The U.S. District Court for the Northern District of California conditionally certified the Plaintiffs' proposed collective under the FLSA in October 2015.
Plaintiffs moved to certify their state law wage and hour claims in April 2016. In support of their class certification motion, Plaintiffs submitted declarations and testimony from two experts. Plaintiffs proposed that one of their experts would offer a damages model at trial based on estimates of the number of hours worked by each player during each work week in the class period. They further posited that these estimates would be based upon players' responses to a survey devised by another expert, which asked players to provide information concerning the amounts of time they spent performing purportedly work-related activities. The Defendants asked the court to exclude the experts' declarations and testimony on the ground that the proposed survey was flawed and would collect unreliable data.
The court denied Plaintiffs' motion to certify their state law claims, and, decertified the FLSA collective. While this was obviously a welcome development for class action-weary employers, Chief Magistrate Judge Joseph C. Spero's opinion stands out from other recent certification decisions given its extensive discussion regarding the use of representative evidence in class actions.
Judge Spero granted the Defendants' motion to exclude Plaintiffs' experts' declarations and testimony, finding the proffered survey evidence to be "fundamentally flawed." The court was troubled that the players' survey responses would be unreliable insofar as the survey asked players to provide information concerning "mundane events" that may have happened years in the past, such as when they arrived and departed from a baseball stadium on a given day, whether their baseball-related activities were "rained out," or whether they missed a practice due to injury or illness. The fact that no time records which could verify the players' responses existed cemented the court's conclusion that the survey data would be unsound. In addition, the court expressed concern that the survey responses would be tainted by self-interest bias given that "virtually all minor league players have a vested interest in the outcome of this litigation."
The court also rejected the Plaintiffs' argument that the U.S. Supreme Court's recent decision in Tyson Foods, Inc. v. Bouaphakeo permitted the use of survey evidence given the absence of time records for the players. As Judge Spero noted, the players who comprised the putative class were not at all similarly situated—for instance, they played for different organizations, with different work requirements, in different states, with different laws—making it inappropriate to "paper over significant material variations [among the plaintiffs] that make application of the survey results to the class as a whole improper." In other words, Tyson Foods was inapplicable because the players' working conditions were simply too different to draw any reliable conclusions about class members' claims based on purportedly representative survey evidence.
Senne is the latest case showing that courts are reviewing trial plans based on representative evidence with increased scrutiny, as discussed previously here. Judge Spero's thorough 104 page opinion exposes a number holes in the use of survey evidence to support a trial plan—for instance, that it may be unverifiable and contaminated by the respondents' self-interest—and it therefore provides employers with strong arguments to present in opposition to class certification.
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