Because of the low standard employed by many courts, decisions denying conditional certification in FLSA cases are generally in the minority, but some careful courts will continue to make such decisions. A recent case is notable not only for the fact that the court denied conditional certification, but also that it actually examined the events in a related case to support its decision.
In Augustyniak v. Lowe's Home Center LLC, Case No. 14-CV-00488 (W.D.N.Y., Aug. 20, 2015), the plaintiffs sought to represent a class of human resource managers against the Lowe's do-it-yourself chain nationwide. Two years previously, the same attorneys had brought a similar case, captioned Lytle v. Lowe's Home Centers Inc., Case No. 8:12-cv-01848, involving a different time period for essentially the same class in a Florida district court. The district court in the Lytle case had conditionally certified the class and the matter ultimately settled, although not without controversy. The district court at least twice rejected the parties' proposed settlement agreement due to issues over the formulas used to determine how much class members would receive.
Following Lytle, the parties attempted to settle the Augustyniak case itself for $3 million without success. On May 1, 2015, the district court, in fact, refused to approve the settlement on multiple grounds. First the court found at that time that the plaintiffs had not made a sufficient showing that the proposed members were similarly situated. In particular, the court noted unsettled issues regarding the applicable statute of limitations and the timeliness of the named plaintiffs' claims. Further, the court noted differences among the class members' duties. In some instances, the class members did perform exempt tasks, rendering the settlement payments "a gift" in the court's analysis. The court was bothered by other settlement provisions, including one that would guarantee a 50 percent attorney fee even if only one putative class member opted into the case.
Unabashed, the plaintiffs sought conditional certification, relying largely on the record from the Florida Lytle litigation. After all, they must have reasoned, a different district court had conditionally certified similar claims against the employer. The court, however, was unimpressed by that showing. Indeed, it found that developments in the prior Lytle action reflected that the putative class members were not similarly situated. The filings in that case reflected differences among the class members and an intervening change in their job duties. When trying to settle the Lytle action, the plaintiffs' attorney had noted the difficulties they faced, including the likelihood that that case would have been certified. As the court concluded, the attorney "signed the documents" and "[n]ow he must stand by his words."
The Augustyniak case is interesting for several reasons. First, it reflects a somewhat cynical use of the FLSA collective action procedure by plaintiffs' counsel to take several bites of the apple and seek to increase their own fees. It is also unusual in that the putative class members were actually human resource employees. But most important, it is a refreshing approach by a court to delve into the background of a case to determine that conditional certification would not be appropriate. In this instance, the conduct of the Lytle action and changes in duties all suggested that the case should not have been certified.
The bottom line: Courts that look beyond the bare pleadings in conditionally certifying an action are more likely to find that certification is inappropriate.
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