Seyfarth Synopsis: Although federal courts are certifying class actions at a record rate, a recent opinion by the U.S. District Court for the Southern District of Ohio demonstrates that the requirements of Rule 23 are not mere formalities. In Littler v. Ohio Association of Public School Employees, No. 2:18-CV-1745, 2020 WL 1861646 (S.D. Ohio April 14, 2020), the Court denied a plaintiff's attempt to certify a class action because it found that conflicts of interest among putative class members based on the alleged harm stemming from putative class members' "feelings" and the lack of any viable way to ascertain class membership. The case is a must-read for employers and is a helpful tool in the arsenal of companies battling against the certification of class claims.
In Littler, Plaintiff worked for Upper Arlington City Schools as a bus driver. During her employment, Plaintiff joined the Defendant Ohio Association of Public School Employees ("OAPSE" or "the Union") and agreed to pay the applicable union dues. Several years later, Plaintiff attempted to withdraw from the Union but was unsuccessful. Her dues stopped sometime later. Plaintiff then filed suit against the Union, alleging that the Union required public school employees either to join the Union or to pay agency fees, that the Union continued to deduct dues following the U.S. Supreme Court's ruling in Janus v. American Federation, 138 S.Ct. 2448 (2018), that allowed public employees to opt out of paying union fees, and that the Union deducted fees without "freely given consent." Id. at *2.
Plaintiff then filed a motion to certify a class consisting of "[e]very public employee who was offered membership in OAPSE or its affiliates while working in an agency shop," or the "OAPSE class." Id. To be "flexible" in her class definition, Plaintiff also alternatively proposed three sub-classes, which consisted of: (i) OAPSE agency fee payers (the "agency fee class"); (ii) members of the bargaining unit who opposed payments to the union but who reluctantly joined because they decided that the difference between the cost of full membership dues and the agency fees would not have been worth the loss of a voice in collective-bargaining matters (the "reluctant voting member class"); and (iii) members of the bargaining unit who opposed payments to the union but who joined because they were never informed of their right to decline union membership and pay reduced agency fees (the "reluctant uninformed member class"). Id.
The Court's Decision
The Court analyzed the Rule 23(a) commonality, typicality, and adequacy requirements relative to Plaintiff's proposed classes. The Court examined all three requirements under the standard outlined by the U.S. Supreme Court in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), and examined whether the "maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Id. at *8.
In analyzing whether the initial, broad OAPSE class proposed by Plaintiff satisfied the commonality, typicality, and adequacy standards, the Court found that a conflict of interest prevented the class from meeting such requirements. Because the class contained pro-union and anti-union members who might have potentially conflicting interests, the Court determined that Plaintiff could not advance both interests at the same time, and therefore could not represent both groups. The Court also found that the same intra-class conflict existed in the agency fee class because not every putative member of the sub-class declined to join the union out of opposition to the union. The Court declined to certify either class on the grounds that the conflicting interests of the putative members prevented the class from meeting the applicable Rule 23 requirements.
For the remaining putative classes, the Court examined whether common questions of law and fact predominated for the class and whether a class action was the superior method to litigate the claims under Rule 23(b)(3). For the putative class of reluctant voting members, the Court found that the method of determining the potential members of the class necessitated excessive individual inquiries because each putative class member would have to testify as to how he or she felt about the decision whether to join the Union and what he or she was told when presented with the option. Although Plaintiff argued that individual inquiries did not prevent the Court from certifying the class because other case law authority had certified classes necessitating a single individual inquiry, the Court rejected the argument. It opined that the cases cited by Plaintiff involved inquiries of objectively-verifiable information and did not "rely solely on putative class members' self-serving statements." Id. at *13. The Court also rejected Plaintiff's argument that it could certify a class based on the putative class members' individual subjective desires and beliefs, holding that defining a common harm using subjective feelings undermined the entire purpose of a Rule 23(b)(3) class action.
Finally, the Court examined the ascertainability of the members of the putative classes. Because Plaintiff's proposed classes relied on determining the putative class members' states of mind, Plaintiff argued that a survey of all putative class members would satisfy the ascertainability requirement for the class. The Court rejected Plaintiff's suggestion. It concluded that the survey would lead to issues related to the class members' memories regarding their feelings at the time they were asked to join the union, the accuracy of their reporting of their feelings, the threshold of feelings that would satisfy the requirements of being a member of the class, and the candor with which the putative class members reported their feelings. Because it would be "forced to undertake a burdensome analysis in order to ascertain the composition of the class," the Court denied certification to the remaining putative classes proposed by Plaintiff.
Implications For Employers
The ruling in Littler is a departure from the growing trend of decisions granting class certification motions (a trend that we addressed in our 16th Annual Workplace Class Action Litigation Report, a summary of which is here). The Court's ruling is a welcome addition to the tool kits of employers seeking to avoid class certification because class members have varying interests or cannot be identified based on objective criteria. The opinion provides a nice reminder that plaintiffs must demonstrate that common questions of law and fact predominate over individualized issues and that issues such as conflicts of interest or harm based on subjective opinions can prevent certification.
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