On April 22, 2014, NELA joined the Impact Fund and 24 other nonprofit organizations that advocate for workers’ rights, including the Legal Aid Society, LatinoJustice PRLDEF, the Legal Aid Society-Employment Law Center, the National Employment Law Project and Public Justice, in submitting an amicus curiae brief in the U.S. Court of Appeals for the Second Circuit in support of plaintiffs Mani Jacob and Lesleena Mars and similarly situated assistant managers at Duane Reade drugstores. NELA members Adam T. Klein and Molly Brooks of Outten & Golden LLP represent the plaintiffs and putative class. The issues raised in this amicus brief fall within NELA's current amicus priority of class action preservation, i.e., "minimizing the impact of recent adverse decisions limiting the use of class and collective action mechanisms to vindicate workplace rights, especially in wage and hour cases."
Jacob and Mars alleged that they and 746 current and former assistant store managers were misclassified as exempt employees by Duane Reade and not paid overtime in violation of the Fair Labor Standards Act and New York Labor Law. The U.S. District Court for the Southern District of New York certified a state law class under Rule 23(b)(3), concluding that substantial evidence showed that the assistant store managers' primary duties were similar and that common issues regarding misclassification predominated.
After the Supreme Court's decision in Comcast v. Behrend, 133 S. Ct. 1426, 185 L. Ed. 2d 515 (2013), the district court reconsidered, holding that Rule 23(b)(3) certification was improper because of the existence of individualized damages. The court then certified a Rule 23(c)(4) liability class, since certification would "clearly advance the litigation in a meaningful way" by answering the common question whether assistant store managers were entitled to overtime, and leaving only for resolution the amount of back pay owed to each individual. Duane Reade appealed, arguing that Rule 23(c)(4) certification is not permitted unless Rule 23(b)(3) predominance is satisfied for all issues in the case. The Business Council of New York State filed an amicus brief in support of Duane Reade.
The amicus brief filed by NELA and the other organizations explored the history and purpose of issue certification under Rule 23(c)(4); explained why Comcast does not preclude certification when damages are individualized; and highlighted the fairness and judicial efficiency benefits of preserving access to class actions for employees with small individual claims. The excellent brief was drafted by NELA members Jocelyn D. Larkin and Robert L. Schug of the Impact Fund and Joseph M. Sellers, Abby E. Shafroth, and Shaylyn Cochran of Cohen Milstein.
The Jacob case has been calendared for oral argument with Roach v. T.L. Cannon Corp., also pending in the U.S. Court of Appeals for the Second Circuit. In Roach, the district court denied certification of a class of Applebee's workers seeking wrongfully denied wages under federal and New York state wage laws, holding that the damages were "highly individualized," and did not satisfy predominance under Rule 23(b)(3). NELA submitted an amicus brief in Roach on November 22, 2013.