Case 1:12-cv-04656-GBD-FM Document 61 Filed 09/27/13 …getmansweeney.com/wp-content/uploads/61-REPLY-MEMORANDUM-… · Lin v. Benihana New York Corp., No. 10 Civ. 1335, 2012 BL 343600

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------------ x

PETER ENEA, VICTOR MCLEAN,

CHANTAY DINGLE-EL, KENNY ALTIDOR,

individually and on behalf of others similarly

situated,

Plaintiffs,

-against-

BLOOMBERG L.P.,

Defendant.

:

:

:

:

:

:

:

Case No. 12-cv-4656 (GBD)

------------------------------------------------------------ x

DEFENDANT BLOOMBERG L.P.’S MEMORANDUM OF LAW

IN OPPOSITION TO PLAINTIFFS’ RENEWED MOTION TO CERTIFY

A CLASS AND APPROVE CLASS ACTION NOTICE

Case 1:12-cv-04656-GBD-FM Document 61 Filed 09/27/13 Page 1 of 32

i

TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1

PROCEDURAL HISTORY .............................................................................................................1

DEVELOPMENTS IN PLAINTIFFS’ DAMAGES THEORY, AND IN THE

CASELAW, SUBSEQUENT TO THE INITIAL MOTION ..........................................................2

STATEMENT OF FACTS ..............................................................................................................3

A. Schedules And Hours ...............................................................................................3

B. Certifications And Quizzes ......................................................................................4

C. Plaintiffs’ Inconsistent And Incredible Damages Claims ........................................5

D. The Plaintiffs Have Flouted Their Discovery Obligations ......................................6

ARGUMENT ...................................................................................................................................6

I. PLAINTIFFS STILL HAVE NOT SATISFIED RULE 23(a). ...........................................6

A. Plaintiffs Do Not Meet Rule 23(a)(2)’s Commonality Requirement.......................7

1. The Quantity And Compensability Of Alleged Overtime Cannot

Be Resolved With Common Proof. .............................................................7

2. Determining Whether GTEC Reps Are Exempt Is Not Capable Of

Classwide Resolution. ................................................................................11

B. Plaintiffs Cannot Meet Rule 23(a)(3)’s Typicality Requirement. .........................12

C. Plaintiffs Cannot Meet Rule 23(a)(4)’s Adequacy Requirement. ..........................13

1. The Named Plaintiffs Have Significant Credibility Issues. .......................14

2. The Named Plaintiffs Have Disregarded Their Discovery

Obligations. ................................................................................................15

II. PLAINTFFS DO NOT SATISFY THE HEIGHTENED PREDOMINANCE

REQUIREMENT OF RULE 23(b)(3). ..............................................................................15

A. Individualized Exemption Determinations Would Predominate. ..........................16

B. The Individualized Damages Calculations Required In This Case

Predominate Over Any Common Questions..........................................................16


ii

III. GIVEN THE DEMONSTRATED LACK OF INTEREST IN THIS CASE

AMONG PUTATIVE CLASS MEMBERS, JOINDER OF INTERESTED

PARTIES IS NOT IMPRACTICABLE, AND CLASS CERTIFICATION IS

NOT THE SUPERIOR METHOD FOR ADJUDICATING THESE CLAIMS. ..............20

IV. CERTIFICATION OF A LIABILITY-ONLY CLASS AND BIFURCATION

ARE NOT APPROPRIATE. .............................................................................................21

CONCLUSION ..............................................................................................................................25


iii

TABLE OF AUTHORITIES

Cases Page(s)

Am. Surety Co. v. Baldwin,

287 U.S. 156 (1932) ............................................................................................................12

Anderson v. Mt. Clemens Pottery Co.,

328 U.S. 680 (1946) ............................................................................................................18

Briggins v. Elwood Tri, Inc.,

882 F. Supp. 2d 1256 (N.D. Ala. 2012) ..............................................................................19

Califano v. Yamasaki,

442 U.S. 682 (1979) ............................................................................................................20

Calvert v. Red Robin Int’l,

No. C 11-03026, 2012 WL 1668980 (N.D. Cal. May 11, 2012) ................................. 14, 15

Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541, 549 (1949) ....................................................................................................14

Comcast Corp. v. Behrend,

133 S. Ct. 1426 (2013) ............................................................................................ in passim

Corder v. Ford Motor Co.,

283 F.R.D. 337 (W.D. Ky. 2012) ........................................................................................12

Darvin v. Int’l Harvester Co.,

610 F. Supp. 255 (S.D.N.Y. 1985) ......................................................................................14

Elster v Alexander,

76 F.R.D. 440 (N.D. Ga. 1977) ...........................................................................................21

Espenscheid v. DirectSat USA, LLC,

705 F.3d 770 (7th Cir. 2013) .........................................................................................20, 22

Fernandez v. Wells Fargo Bank, N.A.,

No. 12 CIV. 7193, 2013 WL 4540521, at *14 (S.D.N.Y. Aug. 28, 2013) ..........................17

Forrand v. Fed. Express Corp.,

No. CV 08-1360, 2013 BL 147574 (C.D. Cal. Apr. 25, 2013) .....................................23, 24

Gen. Tel. Co. of Sw. v. Falcon,

457 U.S. 147 (1982) ............................................................................................................13


iv

Ginsburg v. Comcast Cable Commc’ns Mgmt. LLC,

No. C11-1959, 2013 BL 103630 (W.D. Wash. Apr. 17, 2013) ................................9, 17, 18

Goodman v. Port Authority of N.Y. & N.J.,

No. 10 Civ. 8352, 2013 BL 253259 (S.D.N.Y. Sept. 20, 2013) ............................................7

Gortat v. Capala Bros.,

No. 07-CV-3629, 2011 BL 150196 (E.D.N.Y. June 7, 2011) ............................................21

Hall v. Guardsmark, LLC,

No. 11-213, 2013 BL 242259, at *17 (W.D. Pa. Sept. 11, 2013) .........................................7

Jacob v. Duane Reade, Inc.,

No. 11 Civ. 160, 2013 BL 210222 (S.D.N.Y. Aug. 8, 2013) .......................................22, 25

Joza v. WW JFK LLC,

No. 07-CV-4153, 2010 BL 211129 (E.D.N.Y. Sept. 10, 2010) ............................................8

Kennedy v. Va. Polytechnic Inst. & State Univ,

No. 7-08-CV-00579, 2010 BL 221721 (W.D. Va. Sept. 23, 2010) ....................................21

Levias v. Pac. Mar. Ass’n,

760 F. Supp. 2d 1036 (W.D. Wash. 2011) ............................................................................8

Leyva v. Medline Indus. Inc.,

716 F.3d 510 (9th Cir. 2013) ...............................................................................................24

Lin v. Benihana New York Corp.,

No. 10 Civ. 1335, 2012 BL 343600 (S.D.N.Y. Oct. 23, 2012) ...........................................21

Lindsey v. Normet,

405 U.S. 56 (1972) ..............................................................................................................12

Martins v. 3PD, Inc.,

No. 11-11313, 2013 BL 83001 (D. Mass. Mar. 28, 2013) ..................................................25

Merlo v. FedEx,

No. 07-4311, 2010 BL 127751 (D.N.J. June 7, 2010) ..................................................10, 24

Mike v. Safeco Ins. Co. of Am.,

274 F. Supp. 2d 216, 220 (D. Conn. 2003) .........................................................................11

Miri v. Dillon,

No. 11-15248, 2013 BL 127386 (E.D. Mich. May 14, 2013) .............................................25

Mory v. City of Chula Vista,

No. 07-CV-462, 2010 BL 225091 (S.D. Cal. Sept. 24, 2010) .............................................8


v

Muecke v. A-Reliable Auto Parts & Wreckers, Inc.,

No. 01 C 2361, 2002 BL 2192 (N.D. Ill. June 21, 2002) ....................................................21

Myers v. Hertz Corp.,

624 F.3d 537 (2d Cir. 2010) .........................................................................................11, 16

Noble v. 93 Univ. Place Corp.,

224 F.R.D. 330 (S.D.N.Y. 2004) .........................................................................................21

Ortiz v. Fibreboard Corp.,

527 U.S. 815 (1999) ...........................................................................................................12,

Parra v. Bashas’, Inc.,

No. CIV-02-0591, 2013 BL 143431 (D. Ariz. May 31, 2013) ...........................................24

Proctor v. Allsups Convenience Stores, Inc.,

250 F.R.D. 278, 283-84 (N.D. Tex. 2008) .........................................................................19

RBS Citizens, N.A. v. Ross,

133 S. Ct. 1722 (2013) ..................................................................................................17, 23

Reich v. S. New England Telecomms. Corp.,

121 F.3d 58 (2d Cir. 1997) ..................................................................................................19

Rindfleisch v. Gentiva Health Servs., Inc.,

No. 1:10-CV-3288, 2012 BL 299967 (N.D. Ga. Aug. 29, 2012) ........................................18

Roach v. T.L. Cannon Corp.,

No. 3:10-CV-0591, 2013 BL 83767 (N.D.N.Y. Mar. 29, 2013) ...................................22, 23

Rodriguez v. SGLC, Inc.,

No. 2:08-CV-01971, 2012 BL 298612 (E.D. Cal. Nov. 15, 2012) .....................................19

Romero v. H.B. Auto. Group, Inc.,

No. 11 Civ. 386, 2012 WL 1514810 (S.D.N.Y. May 1, 2012) .......................................7, 11

Rosario v. Valentine Ave. Disc. Store, Co.,

No. 10 CV 5255, 2013 BL 143703 (E.D.N.Y. May 31, 2013) ...........................................24

Rosenberg v. Renal Advantage, Inc.,

No. 11-CV-2152, 2013 BL 166510 (S.D. Cal. June 24, 2013) .............................................9

Ross v. RBS Citizens, N.A.,

667 F.3d 900 (7th Cir. 2012) ...............................................................................................17

Smith v. Family Video Movie Club, Inc.,

No. 11-CV-1773, 2013 BL 99577 (N.D. Ill. Apr. 15, 2013) ..............................................17


vi

Tracy v. NVR, Inc.,

No. 04-CV-6541L, 2013 BL 114475 (W.D.N.Y. Apr. 29, 2013) .................................10, 17

Verkuilen v. Mediabank, LLC,

646 F.3d 979 (7th Cir. 2011) ...............................................................................................12

Wal-Mart Stores, Inc. v. Dukes,

131 S. Ct. 2541 (2011) ............................................................................................ in passim

Wang v. Hearst Corp.,

No. 12-CV-793, 2013 BL 122761 (S.D.N.Y. May 8, 2013) ..............................................23

Weinstein v. Am. Biomaterials Corp.,

123 F.R.D. 442 (S.D.N.Y. 1988) .........................................................................................14

In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig.,

722 F.3d 838 (6th Cir. 2013) ...............................................................................................24

Zivali v. AT&T Mobility, LLC,

784 F. Supp. 2d 456, 464-65 (S.D.N.Y. 2011) ....................................................................10

Statutes

28 U.S.C. § 2072 .........................................................................................................................12

Fed. R. Civ. P. 23 ............................................................................................................ in passim


- 1 -

Bloomberg L.P. (“Bloomberg” or “the Company”) respectfully submits this

memorandum of law in opposition to Plaintiffs’ Renewed Motion To Certify A Class And

Approve Class Action Notice (the “Renewed Motion”).

INTRODUCTION

The four named plaintiffs (“Plaintiffs”) once again ask the Court to certify a class

of all current and former Bloomberg employees who served as “Global Technical Support

Representatives” (“GTEC Reps”) over the past six years. They fare no better this time around.

Their central theory is that GTEC Reps worked overtime hours outside of the office for which

they have not been compensated, but they admit that Bloomberg had no policy requiring such

work and that they have no idea of the work habits and particular job duties of the other

purported class members. Compounding these infirmities, Plaintiffs put forth an arbitrary

damages methodology that depends on their own “representative,” but highly incredible,

testimony regarding hours worked. In doing so, Plaintiffs ignore the highly fact-specific,

individualized inquiries that are required not only to quantify the hours in question but also to

determine whether they are compensable, which turns on the nature of the “work” performed and

Bloomberg’s subjective knowledge that it was being done. What is more, following

dissemination of the FLSA collective action notice not a single GTEC Rep chose to join the case

in a timely fashion (and just one did so out of time), showing that a class action is not superior to

joinder of the few individuals who actually wish to litigate the matter. For these reasons,

Plaintiffs have again failed to show that class certification is appropriate.

PROCEDURAL HISTORY

In June 2012, Plaintiffs commenced this action under the Fair Labor Standards

Act, 29 U.S.C. § 201 et seq. (“FLSA”), and the New York Labor Law (the “NYLL”) alleging

that Bloomberg failed to pay them overtime. On July 30, 2012, before any discovery, the


- 2 -

Plaintiffs filed a motion (the “Initial Motion”) seeking Rule 23 class certification with respect to

their NYLL claim, and conditional certification of the action as a collective action under the

FLSA. Bloomberg opposed the Initial Motion largely on the grounds that the individualized

assessment required to determine the exemption status of each putative class member precluded

class certification. On November 20, 2012, after oral argument, the Court denied the motion for

class certification, without prejudice to its being renewed after discovery. At the same time, the

Court granted the Plaintiffs’ motion for conditional certification of a FLSA collective action.

Consequently, a Collective Action Notice was sent to 66 potential FLSA class members by U.S.

mail and, in many instances, email. (Hykal Decl. ¶ 14.)1 Not a single recipient filed a timely

opt-in request; one person purported to join the case after the deadline had passed. (Dkt. No.

36.) On August 9, 2013, after having received substantial discovery from Bloomberg and

submitted to deposition questioning, Plaintiffs filed their Renewed Motion.

DEVELOPMENTS IN PLAINTIFFS’ DAMAGES THEORY, AND IN THE

CASELAW, SUBSEQUENT TO THE INITIAL MOTION

It is now clear that Plaintiffs’ damages theory hinges on an assertion for which no

common proof exists: that GTEC Reps regularly worked a significant (but varying) amount of

hours outside the office, for varying reasons. In particular, in support of their Renewed Motion,

Plaintiffs submitted damages calculations in which they considered any week in which they were

physically present in Bloomberg’s office for approximately 35 hours to be a “full time work

week,” and then added however many hours of supposed out-of-office work were necessary to

bring the total hours worked up to 50 (without any explanation as to what the Named Plaintiffs

were doing during those alleged extra hours, why they were doing it, or on which days the extra

work was done). (Russo Decl. ¶ 24.) The “out-of-office” time accounts for anywhere from

1 References to “Hykal Decl.” refer to the Declaration of Deirdre N. Hykal, dated September 27, 2013.


- 3 -

thirty-five to seventy-nine percent of each Plaintiff’s alleged compensable overtime. (Hykal

Decl., ¶ 11(h), Ex.7-8.)

Plaintiffs’ emphasis on the alleged compensability of time outside the office is

fatal to their motion, particularly in light of the Supreme Court’s recent decision in Comcast

Corp. v. Behrend, 133 S. Ct. 1426 (2013). There, the Supreme Court held that Plaintiffs seeking

class certification bear the burden of demonstrating that their damages theory will accurately

measure damages for each and every member of the putative class. Id. at 1433. They may not

merely suggest “any method of measurement . . . no matter how arbitrary the measurements may

be.” Id. As discussed below, in addition to the reasons for denying Plaintiffs’ Initial Motion, the

inherently fact-specific, individualized assessment necessary to determining whether, and, if so,

to what extent, employees suffered damages flowing from pre- and post-shift work (whether in

or out of the office) likewise precludes certification.

STATEMENT OF FACTS2

A. Schedules And Hours

GTEC Reps are generally assigned to shifts covering 40 hours per week.

(Mignone Tr. 113:25-114:4.) 3 While GTEC Reps are expected to be at their desks and logged

on to Bloomberg’s computer systems at the start of their shift, it takes less than two minutes to

do so, and there is no requirement that they arrive at a particular time before the start of their

shift. (Enea Tr. 195:2-9; McLean Tr. 173:5-10; 213:12-16.) Consequently, if a GTEC Rep were

badged into the building for any substantial period of time before her shift started, that would not

necessarily mean she was working; it could just as easily mean that she wanted to get in early for

2 Bloomberg incorporates by reference its submission in opposition to the Initial Motion (Dkt. Nos. 20, 21, 22,

23, 24), and supplements that discussion here.

3 The only exception is with respect to weekend work that is occasionally assigned to GTEC Reps, for which they

are awarded a corresponding weekday off. (Mignone Tr. 115:7-25.)


- 4 -

a free Bloomberg-provided breakfast, to surf the internet, or to socialize with co-workers.

(Sawyers Tr. 39:2-21.)

Plaintiffs testified that Bloomberg does not generally require GTEC Reps to read

or send emails, study, or update tickets while they are out of the office. (Dingle-El Tr. 49:21-

50:16; 52:11-15; McLean Tr. 210:24-211:4) And Plaintiffs admit that they do not know

whether, and, if so, to what extent, other GTEC Reps did so. (Altidor Tr. 224:4-12; Enea Tr.

139:9-17.)

B. Certifications And Quizzes

GTEC Reps participate in ongoing training during their time at Bloomberg,

including specialized “Certification” exams. (Enea Tr. 121:14-17.) These exams, which are

offered on a number of topics, are designed to provide GTEC Reps with a “better understanding

of [a particular] subject matter.” (Sawyers Tr. 105:25-106:5.) GTEC Reps, however, do not all

take the same Certifications, or even the same number of Certifications. (Dingle-El Tr. 110:14-

16; Enea Tr. 117:7-10.) Rather, GTEC Reps study for Certifications at their own pace, if at all,

and sign up to take them when they feel they are ready. (Enea Tr. 117:7-10.) Some GTEC Reps

study for Certifications in the office during their shift between assignments, while others prefer

to study for them at home. (Enea 145:5-17; McLean 217:16-20; Sawyers 108:18-109:4.)4

As with their other “off-shift work” allegations, Plaintiffs admit that they have no

personal knowledge regarding the extent to which putative class members spent time studying

4 GTEC Reps also complete monthly open-book, multiple choice quizzes, designed to keep them “up to date on

any new procedures in the department.” (Enea Tr. 118:9-120:22.) GTEC Reps have a month to complete each

quiz, with the amount of time spent on each quiz varying by GTEC Rep and subject matter. (Enea Tr. 122:3-

126:2.) The quizzes are completed at work and studying for them is usually not necessary because they are

intended to ensure that GTEC Reps have “read and understood recent updates or recent procedural changes” in

the department, as opposed to testing a Rep’s advanced knowledge of a particular subject matter. (Sawyers Tr.

103:21-104:7.)


- 5 -

outside their shifts. (Enea Tr. 123:17-124:5; 139:9-17; 153:23-154:18; 157:11-24; Altidor Tr.

161:5-15; 224:4-12.)

C. Plaintiffs’ Inconsistent And Incredible Damages Claims

Plaintiffs say they “generally worked approximately ten or more hours of extra

work each week without receiving overtime compensation.” (Compl. [Dkt. No. 1] ¶ 34; Enea

Decl. [Dkt. No. 12] ¶ 21; McLean Decl. [Dkt. No. 13] ¶ 22; Altidor Decl. [Dkt. No. 10] ¶ 22;

Dingle-El Decl. [Dkt. No. 11] ¶ 22.) But when questioned about the amount of time they spent

working pre- and post-shift and out of the office, their answers varied widely, and none of them

was able to substantiate his or her damages claims.

For example, Enea testified that he worked from home “once in awhile in the

morning” but “would mostly” log into the Bloomberg system to work from home at night. (Enea

Tr. 282:6-19.) However, Enea could not provide a method for counting his hours supposedly

spent working from home. When asked if he recorded his work from home in any way, Enea

responded that he kept “an estimate” in his mind but did not tally the hours up. (Enea Tr.

281:17-25.) Enea also testified that he typically arrived to work 30 minutes before his shift start

time to update customer tickets and return calls from clients. (Enea Tr. 95:9-25; 207:15-21.)

The data show that, in fact, Enea typically logged onto the Bloomberg system only 5 minutes

before his shift start time, logged onto the ticket system 6 minutes after his shift started, and

logged onto the phone system 8 minutes after his shift started. (Hykal Decl., Ex. 9, Row 447.)

McLean was similarly unable to provide any basis for calculating the hours he

claims to have worked outside of his shift, and instead offered only sweeping statements that

roughly coincided with the same 10-hour estimate proffered by each Plaintiff. In fact, he spent

only 26 hours per week at Bloomberg on average, casting serious doubt on his claims. (Hykal

Decl., Ex. 8, Row 175).


- 6 -

Altidor swore that he had to come into work early to read emails for “an hour or

two” before his shift each day. (Altidor Tr. 63:16-23.) Later, Altidor contradicted this statement

and testified that he typically arrived to the office 15 to 30 minutes before his shift. (Altidor Tr.

95:2-14.) Bloomberg’s log-in data proves that both statements are false; Altidor arrived to the

office, on average, just 7 minutes before his shift started, and logged onto the ticket system 8

minutes after his shift started. (Hykal Decl., Ex. 9 (Altidor, final row).)

D. The Plaintiffs Have Flouted Their Discovery Obligations

Plaintiffs have proven themselves unwilling to comply with even the most routine

discovery obligations typically borne by representative litigants. First, they failed to conduct

basic searches of their own files for relevant documents even though instructed by their counsel

to do so. (Hykal Decl. ¶ 18.) Moreover, they have refused to produce their communications

with other putative class members – despite acknowledging that an order of Magistrate Judge

Maas required them to do so and that Bloomberg is entitled to such communications under the

Federal Rules of Civil Procedure. (McLean Tr. at 80-81; Hykal Decl. ¶¶ 24-26; Dkt. No. 43.)

Instead, Plaintiffs have threatened to file a specious (but nonetheless distracting) unfair labor

practices claim against Bloomberg and its counsel if Bloomberg pursues its discovery rights in

this regard. (Hykal Decl. ¶¶ 25-26.)

ARGUMENT5

I. PLAINTIFFS STILL HAVE NOT SATISFIED RULE 23(a).

“In order to obtain class certification under [Rule] 23, the class proponent bears

the burden of showing that each of the requirements of subsection 23(a) – numerosity,

commonality, typicality, and adequacy of representation – is, in fact, satisfied.” Romero v. H.B.

5 Bloomberg incorporates by reference its legal arguments set forth in its opposition to the Initial Motion. (Dkt.

No. 20).


- 7 -

Auto. Group, Inc., No. 11 Civ. 386, 2012 WL 1514810, at *16 (S.D.N.Y. May 1, 2012). The

Court is obligated to conduct a “rigorous analysis” to ensure that the proponent of certification

has met his burden. Comcast, 133 S. Ct. at 1432.

A. Plaintiffs Do Not Meet Rule 23(a)(2)’s Commonality Requirement

Plaintiffs cannot satisfy Rule 23(a)’s threshold commonality requirement because

neither of the two core issues in this case (the extent to which each GTEC Rep worked

compensable overtime, and whether each GTEC Rep is exempt from overtime pay under the

NYLL) can be resolved “in one stroke.” Wal-Mart, 131 S. Ct. at 2551.

1. The Quantity And Compensability Of Alleged Overtime Cannot Be

Resolved With Common Proof.

The crux of the Plaintiffs’ overtime claim is that they and other GTEC Reps

worked “off the clock” (a) outside the office (from home or in transit), and (b) at the office,

either before and/or after their shift and/or during their lunch breaks. Such “work” is not

compensable unless Plaintiffs can “prove the amount of uncompensated work actually performed

and that the employer had actual or constructive knowledge of that work.” Goodman v. Port

Authority of N.Y. & N.J., No. 10 Civ. 8352, 2013 BL 253259, at *7 (S.D.N.Y. Sept. 20, 2013).

And for each separate instance of pre- or post-shift work, Plaintiffs must prove not only that

Bloomberg “suffered or permitted” it, but also that it was “an integral and indispensable part of

the principal activity of the employment.” Hall v. Guardsmark, LLC, No. 11-213, 2013 BL

242259, at *17 (W.D. Pa. Sept. 11, 2013) (quoting Steiner v. Mitchell, 350 U.S. 247, 256

(1956)). Plaintiffs cannot show commonality on either point. They concede that there was no

policy requiring GTEC Reps to work outside the office.6 And to the extent putative class

6 (Enea Tr. 284:20-285:10 (“Q: Has anyone at Bloomberg ever expressed a policy to you about working on the

weekends at home? A: No. No policy about that.”); McLean Tr. 210:24-211:4 (admitting no one told him to


- 8 -

members were involved in work-related activities beyond the 40-hour workweek, Plaintiffs

cannot offer a “common answer” as to whether such time reflects compensable work. Wal-Mart,

131 S. Ct. at 2551.

With respect to time in the building (as reflected in badge reports), the mere fact

that employees were sometimes physically present in the office more than 40 hours a week does

not, but itself, show that they were working overtime. See Levias v. Pac. Mar. Ass’n, 760 F.

Supp. 2d 1036, 1056 (W.D. Wash. 2011) (time spent to “read the paper, get something to eat,

drink coffee, and/or talk with co-workers in the lunchroom” is not compensable); Joza v. WW

JFK LLC, No. 07-CV-4153, 2010 BL 211129, at *6 (E.D.N.Y. Sept. 10, 2010) (“An employee

eating at the employee’s work space would not put a supervisor on notice that the employee was

working through lunch.”)

Plaintiffs’ inability to offer a “common answer” is even more pronounced with

respect to their claim for compensation for work supposedly performed outside the office

(including studying for certifications, updating tickets and BWIKI, and checking emails). (Enea

Tr. 279:17-22; McLean Tr. 212:8-15; Altidor Tr. 65:3-6.) First, GTEC Reps cannot provide any

common answers to whether Bloomberg knew, or should have known, that GTEC Reps were

engaging in these at-home activities. Without such knowledge, Bloomberg would have no

obligation to pay for such “work.” See Mory v. City of Chula Vista, No. 07-CV-462, 2010 BL

225091, at *10-11 (S.D. Cal. Sept. 24, 2010) (time spent studying from home would not be

compensable unless the employer required it; the fact that it was “highly encouraged” and that

the employee thought it “prudent” to do so was not enough).

work from home outside of his regularly scheduled shift); Dingle-El Tr. 49:21-50:16 (admitting she was never

told to work on tickets or read email out of the office)).


- 9 -

Indeed, Plaintiffs admit they cannot even quantify the extent to which (if at all)

other GTEC Reps engaged in such activities. (Altidor Tr. 161:5-15; Enea Tr. 281:11-14.)

“Plaintiff’s inability to show common proof of hours worked on a classwide basis prevents

Plaintiff from establishing liability for claims of unpaid overtime wages and denial of meal

breaks.” Rosenberg v. Renal Advantage, Inc., No. 11-cv-2152, 2013 BL 166510, at *13 (S.D.

Cal. June 24, 2013). Indeed, contrary to the supposed experiences of the Plaintiffs, former

GTEC Rep Kristian Sawyers testified that he never worked from home when he was a GTEC

Rep, and he is not aware of any other GTEC Reps ever doing so, either. (Sawyers Tr. at 148-49;

161.) With respect to Plaintiffs’ claim that they spent a significant amount of time (and should

be compensated for) studying from home, Mr. Sawyers testified, “some people may only need to

study for a day while other people need to study for a week or two” for each exam. (Sawyers

112:24-113:2.) Corroborating these individualized practices, Mr. McLean testified that he

studied for approximately twenty hours for each exam outside of the office, whereas Mr. Altidor

said he studied five to ten hours. (McLean Tr. 171:8-172:8, Altidor Tr. 219:19-223:4.) Common

proof is absent where, as here, the experiences of different class members vary “based on the

anecdotal evidence.” Ginsburg v. Comcast Cable Commc’ns Mgmt. LLC, No. C11-1959, 2013

BL 103630, at *7 (W.D. Wash. Apr. 17, 2013).7

Thus, to the extent that any GTEC Reps actually worked beyond their scheduled

shifts (whether in the office or from home), individualized questions concerning what they were

doing, for how long they were doing it, and why they were doing it, preclude a finding of

7 Data will not provide a common answer to the question. While the data capture when a GTEC Rep enters or

leaves the building or logs onto a Bloomberg system, these are not a proxy for hours worked. Moreover, some

activities that Plaintiffs claim to have routinely engaged in outside of their shift hours cannot be tracked by data,

such as reviewing study materials from home or passively reading emails on a mobile devices. Nor can data

show why these individuals may have performed these tasks or whether their team leaders were aware of the

activity, both necessary elements of their overtime claim.


- 10 -

commonality. See Tracy v. NVR, Inc., No. 04-CV-6541L, 2013 BL 114475, at *4 (W.D.N.Y.

Apr. 29, 2013) (denying class certification and decertifying FLSA collective action concerning

off-the-clock work where “there were no timekeeping requirements” for the employees, “such

that any and all evidence concerning how SMRs days were spent, and the amount of time

devoted to outside sales activities, must of necessity derive from testimony by individual SMRs

themselves . . . ”); Zivali v. AT&T Mobility, LLC, 784 F. Supp. 2d 456, 464-65, 468 (S.D.N.Y.

2011) (decertifying FLSA collective action where “off-duty email use varied in frequency” and

some “managers never expected [employees] to review company emails off-hours,” and where

defendant could demonstrate “that certain off-duty work was de minimis”); Merlo v. FedEx, No.

07-4311, 2010 BL 127751, at *9 (D.N.J. June 7, 2010) (denying Rule 23 class certification due

to “the need for individualized inquiries regarding which couriers actually worked, and how

much work they engaged in, during unpaid gap times”).

In short, there is no common methodology by which Plaintiffs can establish

putative class members’ entitlement to overtime compensation. Rather, any employee seeking to

recover for such “work” would have to establish, based on her particular facts and circumstances,

that she worked compensable overtime with her supervisor’s actual or constructive knowledge.

Certification is therefore not warranted, because it would preclude Bloomberg from interposing

individualized defenses to these employee-specific issues. See Wal-Mart, 131 S. Ct. at 2561 (“a

class cannot be certified on the premise that Wal–Mart will not be entitled to litigate its statutory

defenses to individual claims”).8

8 To be clear, it is Bloomberg’s position that none of Plaintiffs’ purported out-of-office activities is compensable,

particularly because – as Plaintiffs admit – Bloomberg typically did not require them to work or study from

home, see supra at 4, 9. Nonetheless, Plaintiffs have made clear that they intend to argue that particular

instances of out-of-office activity occurred and were compensable. But to do so, Plaintiffs must prove more

than what mere data can show: that they were required to work and study at home, that it was an integral and

indispensable part of their principal activities, that Bloomberg knew or should have known that Plaintiffs did


- 11 -

2. Determining Whether GTEC Reps Are Exempt Is Not Capable Of

Classwide Resolution.

As shown in Bloomberg’s opposition to the Initial Motion, determining the

exemption status of GTEC Reps “is not capable of classwide resolution ‘because it will require

individualized examinations of each plaintiff’s daily responsibilities and duties while on the

job.’” Romero, 2012 WL 1514810, at *18 (internal citations omitted).

Plaintiffs now argue that an individualized inquiry is not necessary because there

is allegedly no dispute that GTEC Reps’ “primary job duty is to troubleshoot and fix” customers’

problems using the Bloomberg service. (Pls.’ Br. at 7.) But Plaintiffs concede that, in fact,

GTEC Reps handle a range of duties beyond troubleshooting (such as handling major accounts

and business planning). They argue that such duties are “utterly irrelevant” because they, on

their own, do not constitute a primary duty. (Id. at 7.) Plaintiffs are again off the mark, because

the full range of each GTEC Rep’s actual day-to-day duties is relevant to, and must be analyzed

in connection with, the exemption analysis. Myers v. Hertz Corp., 624 F.3d 537, 549 (2d Cir.

2010) (exemption analysis requires a fact-specific evaluation of “the ‘dut[ies] that the employee’

actually ‘performs’”) (quoting 29 C.F.R. § 541.700(a)); Mike v. Safeco Ins. Co. of Am., 274 F.

Supp. 2d 216, 220 (D. Conn. 2003) (“Determining whether an employee is exempt is extremely

individual and fact-intensive, requiring ‘a detailed analysis of the time spent performing

administrative duties’ and ‘a careful factual analysis of the full range of the employee’s job

duties and responsibilities.’”) (emphasis added).

To be sure, Bloomberg believes that the customer service duties that are common

to all GTEC Reps, without more, render them exempt. See, e.g., Verkuilen v. Mediabank, LLC,

646 F.3d 979, 982 (7th Cir. 2011) (affirming lower court finding that employee whose primary

such work in each alleged instance, and that time reflected in the data was not spent on personal pursuits. The

individualized nature of this proof precludes class certification.


- 12 -

duty was to explain complicated software to customers and act as the primary point of contact for

software issues is exempt under administrative exemption).9 But Plaintiffs contend otherwise,

and due process commands that Bloomberg be allowed to defend itself by presenting the full

range of duties performed by each employee seeking overtime pay, and not just the “core duties”

that are common to the group as a whole. See Lindsey v. Normet, 405 U.S. 56, 66 (1972)

(quoting Am. Surety Co. v. Baldwin, 287 U.S. 156, 168 (1932) (due process requires that

defendants be afforded “an opportunity to present every available defense”)); Corder v. Ford

Motor Co., 283 F.R.D. 337, 343 (W.D. Ky. 2012) (due process commands that a defendant “has

every right to demand a full litigation of [an] element of the cause of action, and for each

putative class member no less”).10

B. Plaintiffs Cannot Meet Rule 23(a)(3)’s Typicality Requirement.

Rule 23(a) also requires that “the claims or defenses of the representative parties

[be] typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Because the

typicality and commonality requirements under Rule 23(a) often merge, the factors that defeat

commonality here also belie Plaintiffs’ typicality argument. See, e.g., Gen. Tel. Co. of Sw. v.

Falcon, 457 U.S. 147, 157 n.13 (1982).

9 Plaintiffs contend that Verkuilen supports them. They are wrong, because a GTEC Rep is more than “a

technician sitting at a phone bank.” Id. at 982. Instead, GTEC Reps, especially major account representatives,

are responsible for “[i]dentifying customers’ needs,” “answering questions when [they] can and when [they]

can’t taking them back to [Bloomberg’s] software developers, and then explaining their answers to the customer

and showing the customer how to implement the answers in its [Bloomberg] software.” Id.; see also Sawyers

Tr. 61:25-62:18; 75:3-9. 10 Similarly, the Rules Enabling Act forbids the use of Rule 23 to “‘abridge, enlarge or modify any substantive

right.’” Wal-Mart, 131 S. Ct. at 2561 (quoting 28 U.S.C. § 2072(b)). Consequently, class certification is

unwarranted if its effect would be to weaken the requirement that plaintiffs prove every element of their claim

or deprive the defendant of defenses that would otherwise be available to it. See Ortiz v. Fibreboard Corp., 527

U.S. 815, 845 (1999) (“no reading of the Rule can ignore the Act’s mandate that rules of procedure shall not

abridge, enlarge, or modify any substantive right”) (quotation omitted). Here, certification of a class would

permit a finding of liability against Bloomberg without its being able to present critical (and in many instances,

dispositive) individualized defenses, including with respect to putative class members who did not engage in

any compensable work beyond their regularly-scheduled shifts.


- 13 -

Plaintiffs’ claims are not typical of the putative class. If credited, Plaintiffs’

allegations that they worked exactly 50 hours per week, with most of the alleged overtime spent

outside of the office, are inconsistent with the experiences of other potential class members.11

On weeks in which Plaintiffs credit themselves with 50 hours of work, they were physically

present in the office, on average, just 36 hours per week. (Hykal Ex. 8 (Summary).) Therefore,

to reach their magic number of 50 hours per week, Plaintiffs are claiming that they worked from

home an average of 14 hours per week. But Mr. Sawyers, a former GTEC Rep, testified that he

never worked outside the office, and he is not aware of other putative class members who did.12

(Sawyers Tr. at 148-49; 161:11-15.) And, as explained above, there is no policy requiring GTEC

Reps to work outside the office. (See Section I.A.1, supra.) In any event, Plaintiffs admit that

they do not know the out-of-office work habits of other GTEC Reps. (Altidor Tr. 161:5-15;

Enea Tr. 281:11-14.) Thus, Plaintiffs have failed to meet their burden to show that their claims

of extensive work outside the office are typical of any, let alone all, putative class members.

C. Plaintiffs Cannot Meet Rule 23(a)(4)’s Adequacy Requirement.

The final prerequisite for class certification under Rule 23(a) is that “the

representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P.

23(a)(4). An adequate class representative must possess the “diligence, wisdom and integrity”

necessary to pursue not just his or her own claims, but also the claims of other class members.

Calvert v. Red Robin Int’l, No. C 11-03026, 2012 WL 1668980, at *4 (N.D. Cal. May 11, 2012)

(quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 549 (1949)). In assessing the

adequacy of class representatives, courts may also consider their credibility. See, e.g., Darvin v.

11 Enea’s claims are also not typical of the class because, as he acknowledged, his disability may have caused him

to take longer than most other GTEC Reps to fulfill certain responsibilities. (Enea Tr. at 153:23-154:18;

157:11-24.)

12 Although Mr. Sawyers testified that he studied outside the office, he also testified that he went months without

taking a certification. (Sawyers Tr. at 115:4-11.)


- 14 -

Int’l Harvester Co., 610 F. Supp. 255, 257 (S.D.N.Y. 1985). As discussed below, the Named

Plaintiffs’ testimony does not accurately represent the experience of other purported class

members and is inconsistent with the Company records on which they rely. The Named

Plaintiffs are also unable or unwilling to participate in normal pre-trial discovery. For these

reasons, they are inadequate class representatives.

1. The Named Plaintiffs Have Significant Credibility Issues.

In testifying about their work schedules and alleged hours of overtime worked,

Plaintiffs not only provided sweeping (and incredible) generalizations of overtime hours worked,

but they also provided demonstrably inaccurate testimony about when they arrived to the office,

when they left the office, and when they logged into Bloomberg’s computer and phone systems

to begin working on customer inquiries. See supra pp. 5-6. This contradictory testimony,

concerning the core allegations in this case, “create[s] serious problems with respect to [the

Named Plaintiffs’] credibility.” Darvin, 610 F. Supp. at 257. Where a plaintiff’s credibility on a

central issue is “vulnerable to attack,” that individual cannot be considered to be an adequate

class representative. See Weinstein v. Am. Biomaterials Corp., 123 F.R.D. 442, 465 (S.D.N.Y.

1988).

Such inconsistencies between the testimony of the Named Plaintiffs and

Bloomberg’s data also threaten to “become the focus of cross examination and unique defenses

at trial, to the detriment of the class.” Id. As class representatives, the Named Plaintiffs are

supposed to assist the Court in assessing the claims of the class through honest and diligent

representation. “[I]ncomplete and inaccurate testimony” falls short of the “diligence, wisdom

and integrity” expected of class representatives. Calvert, 2012 WL 1668980, at *3. The

Plaintiffs’ failure to provide accurate testimony regarding one of the most important facts in this

case – overtime hours worked – renders them inadequate class representatives.


- 15 -

2. The Named Plaintiffs Have Disregarded Their Discovery Obligations.

Additionally, the Named Plaintiffs have refused to meet their discovery

obligations under the Federal Rules of Civil Procedure, and have explicitly threatened to retaliate

against Bloomberg for availing itself of its discovery rights by filing an unfair labor practices

claim with the NLRB. (Hykal Decl. ¶¶ 18-26.) This unwillingness to engage in basic discovery

further demonstrates the Plaintiffs’ unfitness to serve as class representatives. Calvert, 2012 WL

1668980 (disqualifying class representative based on failure to produce communications between

named plaintiff and several putative class members).

II. PLAINTFFS DO NOT SATISFY THE HEIGHTENED PREDOMINANCE

REQUIREMENT OF RULE 23(b)(3).

Plaintiffs must satisfy not only the prerequisites of Rule 23(a), but also at least

one of the prongs of Rule 23(b). They appear to rely on Rule 23(b)(3), which requires that

“questions of law or fact common to class members predominate over any questions affecting

only individual members, and . . . a class action is superior to other available methods for fairly

and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).

The predominance requirement is intended to ensure that “the class will be

certified only when it would ‘achieve economies of time, effort, and expense, and promote

uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or

bringing about other undesirable results.’” Myers, 624 F.3d at 547 (citation omitted) (affirming

district court’s denial of class certification in wage and overtime case). “Therefore, the

requirement is satisfied ‘if resolution of some of the legal or factual questions that qualify each

class member’s case as a genuine controversy can be achieved through generalized proof, and if

these particular issues are more substantial than the issues subject only to individualized proof.”’


- 16 -

Id. (citations omitted). “Rule 23(b)(3)’s predominance criterion is even more demanding than

Rule 23(a).” Comcast, 133 S. Ct. at 1432.

Comcast also teaches that Rule 23(b)(3) is an “adventuresome innovation” that

requires the Court to take a “‘close look’ at whether common questions predominate over

individual ones.” Id. (citation omitted.) A “close look” here reveals that Plaintiffs once again

have failed to meet their burden.

A. Individualized Exemption Determinations Would Predominate.

For the reasons stated in Section I.A.2, individualized questions with respect to

the exemption analysis would predominate over common questions. Therefore, Plaintiffs cannot

satisfy their burden under Rule 23(b)(3) with respect to the exemption issue.

B. The Individualized Damages Calculations Required In This Case Predominate

Over Any Common Questions.

Plaintiffs do not offer a coherent method of calculating damages – even on an

individual level, let alone on a classwide basis – that is consistent with their theory of liability.

Without such a model, “[q]uestions of individual damage calculations will inevitably overwhelm

questions common to the class,” precluding certification. Comcast, 133 S. Ct. at 1433. The

Supreme Court has already remanded a wage and hour class certification in light of Comcast,13

and a number of district courts have relied on it in denying class certification of wage and hour

cases due to plaintiffs’ failure to offer a coherent method for a class-wide damages calculation.

See, e.g., Fernandez v. Wells Fargo Bank, N.A., No. 12 CIV. 7193, 2013 WL 4540521, at *14

(S.D.N.Y. Aug. 28, 2013); Tracy v. NVR, Inc., No. 04-CV-6541L, 2013 BL 114475, at *6

13 RBS Citizens, N.A. v. Ross, 133 S. Ct. 1722 (2013). The Seventh Circuit had affirmed class certification based

on an “unofficial policy,” brushing aside defendant’s concerns that individualized issues of how employees

were denied overtime or the duties they performed destroyed commonality. Ross v. RBS Citizens, N.A., 667

F.3d 900 (7th Cir. 2012). The Supreme Court granted defendant’s petition for certiorari, vacated the judgment,

and remanded the case for further consideration in light of Comcast.


- 17 -

(W.D.N.Y. Apr. 29, 2013); Ginsburg v. Comcast Cable Commc’ns Mgmt. LLC., No. C11-1959,

2013 BL 103630, at * 9-10 (W.D. Wash. Apr. 17, 2013); Smith v. Family Video Movie Club,

Inc., No. 11-CV-1773, 2013 BL 99577, at *11-12 (N.D. Ill. Apr. 15, 2013).

Plaintiffs say they will show the number of hours worked by all putative class

members in three ways: badge time, representative testimony, and “various time stamps” in

Bloomberg’s databases. (Pls.’ Br. at 16-18.) But this amorphous methodology is deeply flawed,

and Plaintiffs’ actual damages calculations do not even apply it.

Although Plaintiffs allege that “Bloomberg’s badge data and payroll will provide

the lion’s share of the proof in this case,” their damages calculations tell another story. (Pls.’ Br.

at 18.) For each week in which their badge data reflects approximately 35 hours spent inside a

Bloomberg building, Plaintiffs treat every minute of their time in the office as compensable

time,14

and then arbitrarily credit themselves with exactly 50 hours worked that week. (Russo

Decl. ¶ 24; Russo Decl. Ex. 1-4.) This approach raises individualized inquiries that cannot be

answered by reference to the data above, on two levels. First, it assumes that every minute from

arriving to the office to leaving for the day is compensable, even though individualized inquiries

of employee habits would reveal that much of it is not. See Section I.A.1, supra.

Second, Plaintiffs credit themselves with up to 15 hours of work outside the office

per week based solely on their own testimony. This alleged work performed outside of the office

– which is not captured by badge data – actually provides the “lion’s share” of Plaintiffs’

damages allegations. Indeed, the out-of-office hours claimed average more than half of the

damages calculations for the Named Plaintiffs and nearly seventy-nine percent in the case of Mr.

McLean. (Hykal Decl., Ex.8 (Summary).) There is no basis on which the Court can make any

14 Plaintiffs also count every minute of time spent outside the office as compensable (including lunch) as long as

the breaks were taken between employee’s first badge in and last badge out of the building. (Russo Decl. ¶ 24.)


- 18 -

sort of class-wide assessment regarding such alleged work, particularly given Plaintiffs’

admission that they do not know whether or how much other GTEC Reps worked outside of their

shifts and that there was no policy requiring such “work.”

The Plaintiffs argue, incorrectly, that the Court ought to accept their

“representative testimony” to assess the out-of-office damages amounts, which they suggest –

contrary to their own calculations – represent only “gaps” in Bloomberg’s badge data. (Pls.’ Br.

at 18.) But the line of authority on which Plaintiffs rely, derived from Anderson v. Mt. Clemens

Pottery Co., 328 U.S. 680 (1946), is limited to FLSA collective actions and has no resonance in

the Rule 23 context. See Rindfleisch v. Gentiva Health Servs., Inc., No. 1:10-CV-3288, 2012 BL

299967, at *6 n.4 (N.D. Ga. Aug. 29, 2012) (“the use of representative testimony as a means of

establishing the hours worked by non-testifying opt-in Plaintiffs . . . is a compromise born of the

FLSA’s remedial nature”). In contrast, Plaintiffs in a Rule 23 class action must prove how many

hours were worked by class members “through generalized proof that satisfies the predominance

requirement, rather than through mere representative testimony . . . .” Id. at *4; see also

Ginsburg, 2013 BL 103630, at *7 (even with the assistance of the parties’ statisticians, the court

cannot “resolve the class certification motion . . . on the basis of the parties’ anecdotal

evidence”); Rodriguez v. SGLC, Inc., No. 2:08-cv-01971, 2012 BL 298612, at *3-5 (E.D. Cal.

Nov. 15, 2012) (denying plaintiffs’ “Motion for Leave to Submit Evidence through

Representative Testimony” in absence of final certification of § 216(b) FLSA collective action).

Plaintiffs’ cases, which are not Rule 23 class actions, are irrelevant to the instant motion for class

certification. See Reich v. S. New England Telecomms. Corp., 121 F.3d 58 (2d Cir. 1997)

(affirming judgment after bench trial in FLSA action by Secretary of Labor).


- 19 -

Plaintiffs’ purported “representative testimony” is especially inappropriate here,

because the available evidence contradicts it. See, e.g., Briggins v. Elwood Tri, Inc., 882 F.

Supp. 2d 1256, 1275 (N.D. Ala. 2012) (decertifying FLSA collective action where, out of 50

depositions, at least two witnesses’ “scan in times contradict their deposition testimony”). Even

in FLSA collective actions, where “representative testimony can sometimes suffice so that not

every plaintiff must testify,” that is only true where there is “no contradictory testimony.”

Proctor v. Allsups Convenience Stores, Inc., 250 F.R.D. 278, 283-84 (N.D. Tex. 2008)

(emphases added) (decertifying FLSA collective action where “there is no consistency among

the testimony, there is no consistently applied policy resulting in working off the clock, and the

time spent working off the clock is not alleged to be uniform or of a predetermined duration”).

For all of the reasons why the question of whether GTEC Reps worked outside of the office

cannot be answered by common proof (see Section I.A.1, supra) Plaintiffs’ “representative”

testimony cannot be relied upon as a method of calculating damages on a classwide basis,

particularly when Plaintiffs would be using it to make up the majority of the alleged damages.15

See Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 775 (7th Cir. 2013) (Posner, J.) (finding

representative testimony was inappropriate to establish class-wide damages because “what can’t

support an inference about the work time [of many employees] is evidence of the experience of a

small, unrepresentative sample of them”).

In short, because “[q]uestions of individual damage calculations will inevitably

overwhelm questions common to the class” – and Plaintiffs offered no facts or coherent formulas

15 As for the third way Plaintiffs claim they will calculate damages (data other than badge hours), they make no

attempt to explain how they propose to use any such data in order to calculate damages consistent with their

theory of damages. In fact, Plaintiffs’ own damages calculations make no reference to any of the Bloomberg

data other than badge data, despite extensive productions of data during discovery. Moreover, as discussed

above, the data alone is insufficient to show whether someone was actually working, for how long, for what

purpose, and whether Bloomberg knew or should have known about such work. See Section I.A.1, supra.


- 20 -

to prove otherwise – Plaintiffs have failed to satisfy the predominance requirement of Rule

23(b)(3). Comcast, 133 S. Ct. at 1433.

III. GIVEN THE DEMONSTRATED LACK OF INTEREST IN THIS CASE AMONG

PUTATIVE CLASS MEMBERS, JOINDER OF INTERESTED PARTIES IS NOT

IMPRACTICABLE, AND CLASS CERTIFICATION IS NOT THE SUPERIOR

METHOD FOR ADJUDICATING THESE CLAIMS.

As the Supreme Court recently emphasized in Comcast, “[t]he class action is ‘an

exception to the usual rule that litigation is conducted by and on behalf of the individual named

parties only.’” 133 S. Ct. at 1432 (quoting Califano v. Yamasaki, 442 U.S. 682 (1979)).

Consistent with this admonition, Rule 23 allows certification only where “joinder of all [class

members] is impracticable,” and, separately, upon a finding that a class action would be

“superior to other available methods for fairly and efficiently adjudicating the controversy.”

Fed. R. Civ. P. 23(a), (b)(3). Here, Plaintiffs cannot show that joinder of any allegedly aggrieved

parties who want to participate in the litigation would be impractical, given that just one person

out of 66 potential class members has sought to join the case in response to Plaintiffs’ FLSA

notice.16

This remarkable lack of interest prevent(s) Plaintiffs from establishing Rule 23’s

numerosity and superiority requirements.17

16 That purported opt-in, Collette Graves, is not a legitimate FLSA class member because she filed her consent to

sue form almost two months after the deadline passed. See, e.g., Gortat v. Capala Bros., No. 07-CV-3629,

2011 BL 150196, at *3 (E.D.N.Y. June 7, 2011) (“Here, the seven individuals failed to opt-in to the collective

action by the Court appointed deadline and the three-year window provided by the FLSA and are therefore

excluded from the FLSA claim.”).

17 Plaintiffs offer no evidence whatsoever for their guess that that the “low opt-in rate can be better understood in

terms of the fear involved in suing Bloomberg, the company which gets its name from the most powerful man

in New York City.” (Pls.’ Br. at 19.) Unlike Plaintiffs’ rhetoric here, the cases they cite revealed actual

“mitigating factors” explaining the low opt-in rate. Lin v. Benihana New York Corp., No. 10 Civ. 1335, 2012

BL 343600, at *3 (S.D.N.Y. Oct. 23, 2012) (“the absent members here speak poor English, are unfamiliar with

the American legal system, and may be undocumented immigrants afraid of exposing their status and afraid of

losing their jobs”) (internal quotes omitted); Noble v. 93 Univ. Place Corp., 224 F.R.D. 330, 342 (S.D.N.Y.

2004) (plaintiffs presented “evidence tending to suggest that potential class members may have failed to join the

FLSA collective action because they feared reprisal, particularly given their citizenship status . . . ”).


- 21 -

Muecke v. A-Reliable Auto Parts & Wreckers, Inc., No. 01 C 2361, 2002 BL 2192

(N.D. Ill. June 21, 2002), is instructive. There, the court granted plaintiffs’ motion for FLSA

collective action but denied the motion for Rule 23 class certification of the parallel state law

claims. In doing so, the Court observed that the FLSA opt-in process would bring before it all

employees interested in litigating claims for unpaid wages, which could be a tiny number given

the “significant dispute over whether the alleged practices were illegal.” Id. at 2. Thus, the

Court concluded, approving a broad Rule 23 class, where the opt-in rate might demonstrate a

lack of interest among the putative members, would not be a superior means of adjudicating the

state law claims. Id.; see also Kennedy v. Va. Polytechnic Inst. & State Univ, No. 7-08-CV-

00579, 2010 BL 221721 at *3 (W.D. Va. Sept. 23, 2010) (the fact that only two people opted in

to an FLSA collective action “indicates joinder, and not class certification, is the best way to

ensure that those plaintiffs wishing to sue [defendant] can assert their claims”); Elster v

Alexander, 76 F.R.D. 440, 443 (N.D. Ga. 1977) (certification was inappropriate in light of

demonstrated lack of interest among putative class members, and stating that “this Court is

unwilling to breathe the spirit of judicial combat into 8,500 persons who, so far, have shown no

desire to litigate [the] matter”). Here, the demonstrated lack of interest in this case by GTEC

Reps shows that a class action is not the superior method of adjudication.

IV. CERTIFICATION OF A LIABILITY-ONLY CLASS AND BIFURCATION ARE

NOT APPROPRIATE.

In a significant understatement, Plaintiffs concede the possibility that “the

calculation of damages will involve some individual questions.” (Pls.’ Br. at 22.) Rather than

meet their burden to prove that individual questions as to hours worked will not predominate

over common issues, however, Plaintiffs instead ask the Court to take a leap of faith and certify a

class anyway. If their assertions later turn out to be unfounded, Plaintiffs argue, and “class


- 22 -

issues do not predominate, then the class may be decertified at that point.” (Id. at 24.)

Alternatively, Plaintiffs contend that “[c]lass certification for liability remains appropriate,” and

that the Court can bifurcate liability and damages trials. (Id. at 22, 24.) This improper attempt to

turn Rule 23 on its head fails for two reasons. First, the Supreme Court has made clear that Rule

23(b)(3) precludes certification of a class where the Plaintiffs fail to “establish that damages are

susceptible of measurement across the entire class . . . .” Comcast, 133 S. Ct. at 1433. Second,

unlike Plaintiffs’ inapt examples from other cases, in this case both liability and damages will

require individualized inquiries, rendering certification inappropriate as to any class.18

Plaintiffs’ extensive citation to the dissenting opinion in Comcast

notwithstanding, there the Supreme Court reversed the lower court’s certification of a class not

only because plaintiffs’ damages model did not accurately follow their liability theory, but also

because “under the proper standard for evaluating certification, [Plaintiffs’ damages] model falls

far short of establishing that damages are capable of measurement on a classwide basis.”19

Id.;

see also Forrand v. Fed. Express Corp., No. CV 08-1360, 2013 BL 147574, at *3 (C.D. Cal.

18 The extent to which bifurcation may be used to manage unwieldy classes post-Comcast remains unsettled

among courts within the Second Circuit. Compare Roach v. T.L. Cannon Corp., No. 3:10-CV-0591, 2013 BL

83767 (N.D.N.Y. Mar. 29, 2013) (denying class certification for lack of classwide measure of damages), appeal

docketed, No. 13-1383 (2d Cir. Apr. 12, 2013), with Jacob v. Duane Reade, Inc., No. 11 Civ. 160, 2013 BL

210222 (S.D.N.Y. Aug. 8, 2013) (decertifying class for damages purposes while retaining class certification as

to liability). But even if it were theoretically possible to separate questions of liability from damages via

bifurcation, doing so pursuant to Rule 23(c)(4) would still not be appropriate here. “Rule 23(c)(4) certification

must ‘materially advance a disposition of the litigation as a whole’ in order to be warranted.” Jacob, 2013 BL

210222, at *19. Bifurcation in this case would not materially advance the litigation, since 129 separate hearings

would still be necessary to determine what, if any, damages each individual class member would be entitled to

receive. See Espenscheid v. DirectSat USA, LLC, 705 F.3d at 775 (affirming denial of class certification

because, “[w]ith no genuinely representative evidence having been suggested by class counsel, 2341 separate

hearings loomed even if the district judge bifurcated proceedings”).

19 To the extent any of Plaintiffs’ cases similarly rely on the dissent in Comcast to marginalize “any problems

related to damages calculation,” their holdings are of questionable validity. Wang v. Hearst Corp., No. 12-cv-

793, 2013 BL 122761, at *10 (S.D.N.Y. May 8, 2013) (“Indeed, although one could certainly quibble with the

significance of a grant, vacate, and remand (“GVR”) order from the Supreme Court, one must pause at least for

a moment when one sees that the Supreme Court, ‘in light of Comcast,’ has issued an order vacating and

remanding a Seventh Circuit’s decision affirming the district court’s certification in an overtime

misclassification case.”) (citing RBS Citizens, N.A. v. Ross, 133 S. Ct. 1722 (2013)).


- 23 -

Apr. 25, 2013) (“As the Supreme Court reemphasized in Comcast, in order for Rule 23(b)(3)’s

predominance requirement to be satisfied, a plaintiff must bring forth a measurement method that

can be applied classwide and that ties the plaintiff’s legal theory to the impact of the defendant’s

allegedly illegal conduct.”); Roach, 2013 BL 83767, at *4 (denying class certification of NYLL

wage and hour claims because “a demanding and rigorous analysis of the evidentiary proof on

this claim does not yield a finding that damages are capable of measurement on a classwide

basis”).

Roach is particularly instructive, as plaintiffs there made exactly the same

argument that Plaintiffs make here. See id. at *3-4 (“Plaintiffs contend that damages need not be

considered for Rule 23 certification even if such damages might be highly individualized. This

position is in contravention of the holding of Behrend.”). As here, time records in Roach were

inconclusive as to whether and how much Plaintiffs worked without compensation, such that

proof of damages was “dependant [sic] on the circumstances of each individual employee . . . .”

Id. at *5. As a result, the court concluded that “[q]uestions of individual damage calculations

will inevitably overwhelm questions common to this class,” thus failing the Rule 23(b)(3)

predominance requirement. Id. at *5; see also Forrand, 2013 BL 147574, at *4 (denying

certification of a proposed class of employees who were paid from their scheduled start time to

their scheduled finish time, instead of from clock-in to clock-out time, and holding, under

Comcast, that the proposed class raised “factual questions” as to “whether each individual

‘employee was in fact working,’” which “underscore[d] the inappropriateness of Rule 23(b)(3)

certification”).

Here, to recover any damages at all, putative class members must have actually

worked compensable overtime. See supra at I.A.1. Plaintiffs offer no classwide proof of


- 24 -

damages attributable to their theory of overtime liability, which relies predominantly on “out-of-

office” hours not captured by Bloomberg’s badge data. Moreover, as Plaintiffs recognize in their

brief, hours over 40 are compensable only if Bloomberg knew, or should have known, that

Plaintiffs were working such additional hours. (See Pls.’ Br. at 20-21.) Yet Plaintiffs’ damages

model does not account for Bloomberg’s actual or constructive knowledge of alleged overtime

hours. (See Russo Decl. ¶ 24.) Such a failure to link their damages model to their theory of

liability is clearly impermissible under Comcast. See Comcast, 133 S. Ct. at 1433; Merlo v.

FedEx, 2010 BL 127751, at *9 (predominance not satisfied where “the resolution of Plaintiffs’

unpaid work claims will require individualized inquiries regarding the extent to which specific

[employees] were required to work and did work during [unpaid] periods”).20

Despite Plaintiffs’ contentions, bifurcation is not a solution, because “Rule

23(c)(4) cannot work an end-run around the requirement that there be a linkage between a class’s

theory of liability and its theory of damages.” Jacob, 2013 BL 210222, at *18. Instead,

Plaintiffs offer an arbitrary calculation of exactly 50 hours worked each and every week, which,

as explained above, is inconsistent with Plaintiffs’ own testimony and not supported by the data

produced in this case or Bloomberg’s policies. Indeed, whether each individual putative class

20 Plaintiffs’ post-Comcast cases are thus inapposite, as they involve circumstances where the liability

determination was clearly common to the class, and damages, even if different for each individual, could be

readily measured. See Leyva v. Medline Indus. Inc., 716 F.3d 510, 514 (9th Cir. 2013) (claims involving

improper rounding of time worked and inaccurate calculation of overtime rate, and “Medline’s computerized

payroll and time-keeping database would enable the court to accurately calculate damages and related penalties

for each claim”); In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838 (6th Cir. 2013)

(all machines allegedly “share a common design defect”); Rosario v. Valentine Ave. Disc. Store, Co., No. 10

CV 5255, 2013 BL 143703, at *2-3 (E.D.N.Y. May 31, 2013) (alleged common practice where employees were

only allowed to punch time cards for 40 hours per week); Parra v. Bashas’, Inc., No. CIV-02-0591, 2013 BL

143431, at *32 (D. Ariz. May 31, 2013) (under alleged pattern or practice of discrimination, damages were

“capable of measurement on a classwide basis” where methodology involved “a computer program” that relied

on “objective factors” already part of the record); Miri v. Dillon, No. 11-15248, 2013 BL 127386, at *12 (E.D.

Mich. May 14, 2013) (given Plaintiffs’ “identical Fourth Amendment claim, if Plaintiffs’ [sic] establish liability

as to one class member, it will succeed in establishing liability as to all other class members”).


- 25 -

member actually worked compensable overtime at all is an issue of liability, not just damages,

rendering class treatment inappropriate in any event.21

CONCLUSION

For the reasons set forth above, Bloomberg requests that the Court deny the

Motion in its entirety.

Dated: September 27, 2013

New York, New York

JONES DAY

Matthew W. Lampe

222 East 41st Street

New York, New York 10017

(212) 326-3939

[email protected]

Attorneys for Defendant Bloomberg L.P.

WILLKIE FARR & GALLAGHER LLP

By: /s/ Deirdre N. Hykal

(A Member of the Firm)

Thomas H. Golden

Andrew Spital

Colleen M. O’Brien

787 Seventh Avenue

New York, New York 10019

(212) 728-8000

[email protected]

10296408

21 One of Plaintiffs’ own cases illustrates the distinction. In Martins v. 3PD, Inc., No. 11-11313, 2013 BL 83001

(D. Mass. Mar. 28, 2013), the court certified a class for only one of three claims, where that one claim alleged

that employees were improperly classified as independent contractors, a question with a common classwide

answer. Id. at *6-7. In contrast, the court denied certification as to claims under the Massachusetts wage law

and for unjust enrichment because “individual issues regarding deductions and cost shifting predominate over

this single threshold question” of whether the Plaintiffs were employees. Id. at *8. For the latter two claims,

individual issues including “the extent of uncompensated performance” were “not limited to individual

assessment of the measure of damages,” but “go directly to questions of liability,” precluding a finding of

predominance. Id. at *8-9. The same is true here, where the same deficiencies that plague Plaintiffs’ damages

methodology also undermine their theory of liability.


Documents

Case 1:12-cv-04656-GBD-FM Document 61 Filed 09/27/13 …getmansweeney.com/wp-content/uploads/61-REPLY-MEMORANDUM-… · Lin v. Benihana New York Corp., No. 10 Civ. 1335, 2012 BL 343600