Johnson v. Diakon Logistics
Filing
185
MEMORANDUM Opinion and Order signed by the Honorable Andrea R. Wood on 1/23/2020: For the reasons stated in the accompanying Memorandum Opinion and Order, Plaintiff's motion for class certification 133 is granted. Mailed notice(ef, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIMOTHY JOHNSON and DARRYL
MOORE, individually and on behalf of all
others similarly situated,
Plaintiff,
v.
DIAKON LOGISTICS, et al.,
Defendants.
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No. 16-cv-06776
Judge Andrea R. Wood
MEMORANDUM OPINION AND ORDER
In this putative class action, Plaintiffs Timothy Johnson and Darryl Moore have sued
Defendants Diakon Logistics (“Diakon”), as well as Innovel Solutions, Inc. and Sears Roebuck
and Co. (collectively, “Sears”), for alleged violations of the Illinois Wage Payment and
Collection Act (“IWPCA”), 820 ILCS 115/9. Specifically, Plaintiffs claim that Defendants
incorrectly classified delivery drivers as independent contractors instead of employees, resulting
in unlawful deductions being taken out of their paychecks. Now before the Court is Plaintiffs’
motion to certify a plaintiff class under Federal Rule of Civil Procedure 23(b)(3). For the reasons
explained below, the Court grants the motion.
BACKGROUND
In their Third Amended Complaint (“TAC”), Plaintiffs claim that Defendants required
them and other drivers to sign agreements falsely stating that they were independent contractors.
(TAC ¶ 18, Dkt. No. 102.) Defendants then deducted certain expenses from those drivers’ pay,
including amounts for insurance coverage, truck rentals, and uniforms. (Id. ¶ 23.) Plaintiffs
contend that because Defendants exercised control and direction over their work, they instead
should have been classified as employees under the IWPCA, which prohibits employers from
taking deductions from employees’ wages. (Id. ¶¶ 19, 61–63, 67–69.)
Specifically, as detailed in the TAC, Diakon provides supply-chain management services
for businesses hoping to reduce transportation costs; it delivers appliances, furniture, and other
items to locations across the United States. (Id. ¶ 16; Defs.’ Opp’n to Mot. for Class Certification
at 2, Dkt. No. 143.) Innovel Solutions, a subsidiary of Sears, Roebuck and Co. that delivers
furniture and appliances for Sears, is one of Diakon’s customers in Illinois. (TAC ¶ 8; Pls.’
Mem. in Supp. of Mot. for Class Certification at 1, Dkt. No. 135.) Innovel Solutions focuses on
consolidating and grouping orders for delivery to Sears’s customers. (Defs.’ Opp’n to Mot. for
Class Certification at 2.) Diakon contracts with transportation companies, such as those run by
Plaintiffs Johnson and Moore, to drive delivery trucks and deliver Sears merchandise to
customers’ homes.1 (TAC ¶ 16; Defs.’ Opp’n to Mot. for Class Certification at 2.)
Johnson and Moore are Illinois residents who performed delivery services for Diakon—
in Johnson’s case, from 2011 to 2013, and in Moore’s case, from 2014 to 2015. (TAC ¶¶ 3–4.)
They allege that they were required to sign service agreements with Diakon that classified them
as independent contractors. (Id. ¶ 18; Service Agreement, Ex. 4 to Defs.’ Opp’n to Mot. for Class
Certification, Dkt. No. 146-4.) Diakon further required drivers to observe a strict set of rules with
respect to the delivery of Sears merchandise. When making Sears deliveries, drivers were
required to wear Sears uniforms, drive trucks with a Sears logo, and carry Sears business cards.
(TAC ¶ 37(g).) They were also required to report to a Sears warehouse for meetings and
1
In their opposition to class certification, Defendants note that Diakon contracted with company
contractors rather than with the individual Plaintiffs. Indeed, for the example agreement provided to the
Court, Johnson signed on behalf of his company, EZ Techniques, Inc. (Service Agreement, Ex. 4 to
Defs.’ Opp’n to Mot. for Class Certification, Dkt. No. 146-4.) But whether the individual Plaintiffs or
their companies were actually parties to the service agreements does not impact the question of whether
the Court should certify the class of individual drivers proposed by Plaintiffs.
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receiving products. (Id. ¶ 37(a)–(b).) These requirements, Plaintiffs contend, illustrate that Sears
and Diakon exercised such extensive control over the drivers’ work performance that the drivers
should have been classified as employees under Illinois law. Yet, Plaintiffs allege, Defendants
required drivers to sign service agreements classifying them as independent contractors and
allowing Defendants to make deductions from their paychecks. For instance, Diakon and Sears
required that deductions be taken from drivers’ paychecks for expenses such as truck rental and
vehicle maintenance costs, insurance, and faulty installations. (Id. ¶¶ 29, 37(d), 37(g).)
Based on their allegations that drivers were uniformly treated as employees by Diakon
and Sears, Plaintiffs seek to certify a class consisting of delivery drivers who made deliveries
from June 28, 2006 to the present and signed service agreements classifying them as independent
contractors. On behalf of the proposed class, Plaintiffs seek compensatory and punitive damages.
Diakon, on behalf of all Defendants, opposes Plaintiffs’ request for class certification.
DISCUSSION
The IWPCA applies to all employees and employers in Illinois. 820 ILCS 115/1. Its
purpose is “to protect employees in Illinois from being stiffed by their employers.” Glass v.
Kemper Corp., 133 F.3d 999, 1000 (7th Cir. 1998) (internal citations and emphasis omitted).
Toward that end, the IWPCA imposes wage-related obligations on employers and provides a
means for employees to collect wages due them. 815 ILCS 115/4–115/6. Plaintiffs in this case
claim that Defendants violated the provision of the IWPCA that forbids employers from taking
deductions from wages unless those deductions are “made with the express written consent of the
employee, given freely at the time the deduction is made.” 820 ILCS 115/9. Plaintiffs contend
that Defendants required their drivers to sign contracts classifying them as independent
contractors despite being subject to a strict set of rules and requirements set out by Diakon and
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Sears. Defendants counter that Plaintiffs have failed to demonstrate that the IWPCA should
apply on a class-wide basis, and further argue that even if the IWPCA does apply to the drivers,
the question of whether each driver authorized deductions from their wages is an individualized
inquiry unsuited to a class action.
I.
Requirements for Class Certification
Federal Rule of Civil Procedure 23 permits individual plaintiffs to sue as representatives
of an aggrieved class while imposing upon the Court a gatekeeping function. See Fed. R. Civ. P.
23. A district court has broad discretion to determine whether to certify a class action. See Mira
v. Nuclear Measurements Corp., 107 F.3d 466, 471 (7th Cir. 1997). To be certified, a proposed
class must first satisfy all four requirements of Rule 23(a): (1) the class must be so numerous that
joinder of all members is impracticable (“numerosity”); (2) there must be questions of law or fact
common to the class (“commonality”); (3) the claims or defenses of the representative parties
must be typical of the claims or defenses of the class (“typicality”); and (4) the representative
parties must fairly and adequately protect the interests of the class (“adequacy”). Fed. R. Civ. P.
23(a).
If Rule 23(a) is satisfied, the proposed class must fall within one of the three categories in
Rule 23(b):
“(1) a mandatory class action (either because of the risk of incompatible standards
for the party opposing the class or because of the risk that the class adjudication
would, as a practical matter, either dispose of the claims of non-parties or
substantially impair their interests), (2) an action seeking final injunctive or
declaratory relief, or (3) a case in which the common questions predominate and
class treatment is superior.”
Spano v. Boeing Co., 633 F.3d 574, 583 (7th Cir. 2011). Lastly, the class itself must be
“identifiable,” meaning that the “class definitions must be definite enough that the class can be
ascertained.” Oshana v. Coca–Cola Co., 472 F.3d 506, 513 (7th Cir. 2006).
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The would-be class representative bears the burden of showing that the proposed class
satisfies the Rule 23 requirements. Bell v. PNC Bank, Nat’l Ass’n, 800 F.3d 360, 377 (7th Cir.
2015). If the class fails to meet any one of the requirements, it cannot be certified. Harriston v.
Chi. Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993). Moreover, “[o]n issues affecting class
certification . . . a court may not simply assume the truth of the matters as asserted by the
plaintiff.” Id. “Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 350 (2011). Rather, plaintiffs seeking class certification must affirmatively
demonstrate their compliance with the rule—for example, they must be prepared to prove that
there are in fact sufficiently numerous plaintiffs and common questions of law or fact. See id.
Class certification is proper only if a court, after a “rigorous analysis,” determines that the Rule
23 requirements have been satisfied. Id. at 350–51 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457
U.S. 147, 161 (1982)).
II.
Class Definition
The Court turns first to the final requirement listed above: the sufficiency of the class
definition. A class definition “must be definite enough that the class can be ascertained.”
Oshana, 472 F.3d at 513. Plaintiffs’ proposed class consists of:
All delivery drivers who (1) signed a Service Agreement with Diakon, (2) were
classified as independent contractors, and (3) who performed deliveries for
Diakon and Sears in Illinois between June 28, 2006 and the present.
(Pls.’ Mem. in Supp. of Mot. for Class Certification at 1, Dkt. No. 135.) The class list produced
by Defendants contains the names of every individual driver who falls into the proposed class.
(Class List, Ex. 6, Dkt. No. 149.) Defendants do not appear to challenge the definiteness or
ascertainability of the class. The Court therefore finds that the class is sufficiently definite to
enable one to determine whether a particular individual is a member.
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III.
Analysis under Rule 23(a)
A.
Numerosity
The Court next considers the requirements of Rule 23(a), beginning with numerosity.
Rule 23(a)(1) requires a showing that the class is “so numerous that joinder of all
members is impractical.” Fed. R. Civ. P. 23(a)(1). While the rule does not require any specific
minimum number of plaintiffs, the Seventh Circuit has recognized that a class of 40 members is
generally considered sufficient. See Mulvania v. Sheriff of Rock Island Cty., 850 F.3d 849, 859
(7th Cir. 2017). Plaintiffs need not prove an exact number of class members to satisfy the
numerosity standard, but they must provide more than “mere speculation or conclusory
allegations as to the size of the putative class.” Arreola v. Godinez, 546 F.3d 788, 797 (7th Cir.
2008).
Diakon disclosed in discovery a class list containing the names of 275 potential class
members. (Proposed Class List, Ex. 6 to Defs.’ Opp’n to Mot. for Class Certification, Dkt. No.
149.) Diakon contends that 85 of the proposed class members live in Missouri and should be
considered ineligible (and therefore not counted) for the class. But the IWCPA “protects an
employee who performs work in Illinois for an Illinois employer, even if he resides in another
state.” Adams v. Catrambone, 359 F.3d 858, 863 (7th Cir. 2004). If Defendants eventually
produce evidence showing that particular non-resident drivers performed only a few days of
work in Illinois a year, that might be enough to defeat the IWPCA claims of those drivers. See
Cohan v. Medline Indus., 170 F. Supp. 3d 1162, 1175 (N.D. Ill. 2016) (finding that plaintiffs
present in Illinois for only a few days a year and primarily for training purposes did not qualify
as Illinois employees); see also Baxi v. Ennis Knupp & Assoc., Inc., No. 10-cv-06346, 2011 WL
389034, at *14–15 (N.D. Ill. Sept. 2, 2011) (finding that the IWPCA applied to a resident of
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India alleging he performed most of his work in Illinois). But it is mere speculation at this stage
to suggest that individual drivers with a business or personal address outside Illinois must not
have viable IWPCA claims. Courts routinely certify classes that include some members who
might ultimately not be entitled to recovery. Moreover, even if all 85 of the supposed Missouri
residents were excluded, the proposed class would still have approximately 190 members—well
above the numerosity threshold. Therefore, the Court finds that Plaintiffs’ proposed class meets
Rule 23(a)’s numerosity requirement.
B.
Commonality
Rule 23(a)(2) requires that there be questions of law and fact common to the class. To
satisfy the commonality requirement, the claims of proposed class members “must depend upon
a common contention that is capable of class-wide resolution.” Chi. Teachers Union, Local No. 1
v. Bd. of Educ. of City of Chi., 797 F.3d 426, 434 (7th Cir. 2015). The determination of the truth
or falsity of the common contention must “resolve an issue that is central to the validity of each
one of the claims in one stroke.” Wal-Mart, 564 U.S. at 350. “[A] single common question” is
enough to satisfy the commonality standard. Id. at 349.
According to Plaintiffs, all delivery drivers who were classified as independent
contractors and performed deliveries from June 28, 2006 to the present suffered the same
injury—i.e., misclassification by Defendants, which, in turn, resulted in unlawful deductions
from Plaintiffs’ paychecks. The putative class members’ claims thus pose a common question:
whether Defendants violated the IWPCA by requiring delivery drivers to sign service agreements
labelling them as independent contractors. The answer to that question will be the same for all
putative class members. See Berger v. Xerox Corp. Ret. Inc. Guarantee Plan, 338 F.3d 755, 763
(7th Cir. 2003) (“What is sought is a declaration that Xerox’s method of computing the lump
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sums to which withdrawing employees are entitled is unlawful. That is a ground common to all
members of the class.”).
Diakon nonetheless argues that Plaintiffs are trying to shoehorn individualized
determinations into a class action dispute. Since drivers performed different deliveries, some
drivers performed significant work outside Illinois, and each driver’s particular set of deductions
would be unique to him or her, Diakon contends that there is no common answer to the question
of whether each individual driver has a claim under the IWPCA. Diakon further argues that
claims related to the service contracts necessarily involve individualized inquiries into (1) each
class member’s particular decision to sign a contract and (2) the unique set of deductions
applicable to each contract.
The Court finds Defendants’ arguments unpersuasive. It is true that work performed
outside Illinois might not be covered by the IWPCA. See Glass v. Kemper Corp., 133 F.3d 999,
1000 (N.D. Ill. 1998) (suggesting that the IWPCA would not cover Illinois residents working in
another state). But Plaintiffs’ class definition is limited to delivery drivers who performed
deliveries in Illinois. And even non-residents of Illinois may be protected under the IWPCA so
long as they perform sufficient work in Illinois. That certain class members performed a
substantial amount of work outside Illinois, as Diakon contends, does not matter so long as those
drivers also performed sufficient work in Illinois. See Spaulding v. Abbott Labs, No. 10-cv-199,
2010 WL 4822894, at *6 (N.D. Ill. Nov. 22, 2010) (noting that the IWPCA could cover Florida
resident who performed sufficient work in Illinois).
Moreover, the commonality requirement does not require that class members present
identical factual situations—what matters is whether there is a common contention whose truth
or falsity “will resolve an issue that is central to the validity of each claim.” Chi. Teachers
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Union, 797 F.3d at 434. Undoubtedly, the putative class members drove different routes and
worked different hours from one another. But Plaintiffs allege that all potential class members
were required to sign the same type of service agreement and were subject to the same set of
restrictive operating rules while they worked as drivers. And, most crucially, Plaintiffs seek a
determination that Defendants’ practice of declaring drivers to be independent contractors
instead of employees is unlawful. That is a ground for relief common to all members of the
proposed class.
Nor does it matter that the allegedly unlawful deductions are different for each individual
driver. Since their work product differed, the extent of the deductions taken from their paychecks
also varied. The common question is whether it was appropriate for Defendants to classify these
drivers as independent contractors and withhold money from their paychecks. Whether a
particular class member authorized a given deduction and the amount of any particular deduction
is a question regarding the potential damages for that plaintiff class member that need not be
determined at the class certification stage. Commonality does not require that each individual
class member be eligible for precisely the same damages. Butler v. Sears, Roebuck, & Co., 727
F.3d 796, 801 (7th Cir. 2013) (explaining that the need for individualized damages inquiries does
not preclude class certification if there are common questions of liability). As the propriety of
Defendants’ classification of drivers as independent contractors presents an issue most efficiently
determined on a class-wide basis, the Court concludes that the commonality requirement has
been satisfied.
C.
Typicality
Rule 23(a)(3)’s typicality requirement “directs the district court to focus on whether the
named representatives’ claims have the same essential characteristics as the claims of the class at
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large.” Retired Chi. Police Ass’n v. City of Chicago, 7 F.3d 584, 597 (7th Cir. 1993). Plaintiffs
satisfy the typicality requirement when their claims arise “from the same event or practice or
course of conduct that gives rise to the claims of other class members and is based on the same
legal theory.” Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009). “The typicality
requirement may be satisfied even if there are factual distinctions between the claims of the
named plaintiffs and those of other class members.” De La Fuente v. Stokely-Van Camp, Inc.,
713 F.2d 225, 232 (7th Cir. 1983).
Here, Plaintiffs claim that all proposed class members signed the same contracts and
suffered the same type of harm in the form of deductions withheld from their paychecks.
Crucially, Plaintiffs’ own claims arise from the same course of conduct that gives rise to the
claims of the rest of the class members: Defendants’ alleged misclassification of drivers as
independent contractors instead of employees and related requirement that the drivers sign
similar service agreements that classified them as independent contractors.
Diakon argues that evidence in the record suggests certain drivers, including the named
Plaintiffs, provided written authorizations for the deductions taken from their wages. Deductions
do not violate the IWPCA if they are authorized by the employee and exist for the employee’s
benefit. 820 ILCS § 115/9 (employers may make deductions from employees’ wages when an
employee freely gives express consent “at the time the deduction is made.”); see also Bell v.
Bimbo Foods Bakeries’ Distribution, Inc., No. 11-cv-3343, 2013 WL 6253450, at *5 (N.D. Ill.
Dec. 3, 2013) (signed agreement authorizing weekly deductions for supplies vitiated IWPCA
claim). Diakon does not claim to have evidence that every putative class member provided such
authorization, but they do contend that Johnson and Moore testified that they freely signed
promissory notes authorizing deductions from their paychecks. (Defs.’ Opp’n to Mot. for Class
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Certification at 16.) If that was the case, Johnson and Moore arguably would be inappropriate
class representatives, since they would not have viable IWPCA claims.
At this stage of the proceedings, however, the Court cannot determine whether Johnson
and Moore have valid claims based on the evidence presented. While Diakon cites deposition
testimony in support of their assertion that Plaintiffs freely consented to deductions, Diakon does
not include as evidence the particular documents that supposedly authorized deductions. And the
testimony in question is not clear as to what particular payments are being discussed or the terms
under which any deductions are being authorized. Moore, for instance, only responds that he
“signed them all freely” when asked whether there were any documents he was forced to sign
while contracted with Diakon. (Ex. G, Moore Dep., 147:13–17, Pls.’ Mem. in Supp. of Mot. for
Class Certification, Dkt. No. 135-1.) While Johnson testified that he freely signed a particular
document authorizing Diakon to deduct a certain amount out of his pay, it is not clear what
deduction was authorized and, again, the document itself is not in the record. (Ex. F, Johnson
Dep., 219:10–221:8, Pls.’ Mem. in Supp. of Mot. for Class Certification, Dkt. No. 135-1.)
The sparse information presented is not enough for the Court to determine whether either
Moore or Johnson authorized any of the deductions identified in their TAC. If, down the line,
Defendants produce evidence establishing that Johnson or Moore authorized the deductions at
issue, Defendants may seek appropriate relief. For now, however, Diakon’s argument is entirely
speculative. The Court cannot conclude that the claims asserted by Johnson or Moore are in any
way atypical as compared to those of other class members. The Court therefore finds that the
putative class has satisfied the typicality requirement.
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D.
Adequacy of Representative and Counsel
Finally, a proposed class must satisfy Rule 23(a)(4)’s adequacy requirement, which
involves two inquiries: “(1) the adequacy of the named plaintiffs as representatives of the
proposed class’s myriad members, with their differing and separate interests, and (2) the
adequacy of the proposed class counsel.” Gomez v. St. Vincent Health, Inc., 649 F.3d 583, 592
(7th Cir. 2011).
A proposed class representative is inadequate if his interests conflict with those of the
absent class members or if he is subject to a defense not applicable to the class as a whole. CE
Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 726 (7th Cir. 2011) (noting a
named plaintiff who might devote a great deal of attention to rebutting individual defenses may
not be an adequate representative); Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992).
Neither Johnson nor Moore’s claim is idiosyncratic or unique. Nor do their interests conflict with
those of absent class members. They suffered precisely the same injury as that alleged to have
befallen the other class members: the misclassification and the resulting unlawful deductions
from wages. With respect to adequacy of counsel, Plaintiffs’ attorneys are both experienced class
action litigators, and Defendants make no attempt to challenge their ability to represent the class.
The Court thus concludes that Plaintiffs and their counsel are adequate representatives of the
class.
IV.
Analysis under Rule 23(b)
Plaintiffs claim that the putative class satisfies Rule 23(b)(3). A proposed class satisfies
Rule 23(b)(3) if “the 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
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methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Factors
relevant to the superiority inquiry include:
“(A) the class members’ interests in individually controlling the prosecution or
defense of separate actions; (B) the extent and nature of any litigation concerning
the controversy already begun by or against class members; (C) the desirability or
undesirability of concentrating the litigation of the claims in the particular forum;
and (D) the likely difficulties in managing a class action.”
Id.
A.
Predominance of Common Questions
“The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently
cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 623 (1997). While similar to Rule 23(a)(2)’s commonality requirement, the predominance
requirement “is far more demanding.” Id. at 624. Predominance does not exist where liability
determinations require individualized and fact intensive inquiries. Kartman v. State Farm Mut.
Auto. Ins. Co., 634 F.3d 883, 891 (7th Cir. 2011). But “common issues need only predominate,
not outnumber individual issues.” Butler, 727 F.3d at 801 (internal quotation omitted). Merely
asserting that common issues predominate is not enough to meet the predominance requirement.
Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014).
Plaintiffs satisfy the predominance requirement here. As noted above, the key issues in
the case—whether Defendants violated the IWPCA by classifying drivers as independent
contractors and withheld unlawful deductions from drivers’ paychecks—can be resolved on a
class-wide basis and do not present any issues of individual variation. Defendants contend that
the Court needs to make an individualized, fact-specific inquiry for each putative class member
because each driver worked for different lengths of time and had different deductions taken from
their paychecks. But as the Court noted above, while determining the particular amount of
deductions that each driver received is a fact intensive inquiry, it is a damages question, not a
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liability determination. The need to calculate the particular deductions taken from each putative
class member for damages purposes does not defeat predominance. See Messner v. Northshore
Univ. Health Sys., 669 F.3d 802, 819 (7th Cir. 2012) (requiring common results for class
members “would come very close to requiring common proof of damages for class members,
which is not required”). All drivers suffered the same alleged misclassification by Defendants
and were subjected to the same policies and practices in executing their duties as drivers.
Defendants do not dispute that these policies existed. The Court therefore finds that the central
question presented by Plaintiffs—whether the drivers should have been classified as employees
under the IWPCA—predominates over the individual issues.
B.
Superiority of Class Action
Rule 23(b)(3) is satisfied when “a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy.” The four Rule 23(b)(3) factors all support a
finding of superiority in this instance.
First, the putative class members’ interests in individually controlling the prosecution of
separate actions is minimal; indeed, none appear to have brought individual suits. Fed. R. Civ. P.
23(b)(3)(A). Moreover, Plaintiffs claim that the potential individual recoveries in this case are
small enough to warrant class action treatment and Defendants have offered nothing to dispute
this assertion. Second, since no other case involving a putative class member’s claims has been
brought to the Court’s attention, there is no concern of duplicating litigation already begun by
class members. Fed. R. Civ. P. 23(b)(3)(B). Third, “the desirability or undesirability of
concentrating the litigation of the claims in the particular forum” weighs in favor litigating the
claims in the Northern District of Illinois: the class is limited to Plaintiffs who have worked in
Illinois, both named Plaintiffs reside in this District, and the unlawful practices alleged by
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Plaintiffs occurred within Illinois. Fed. R. Civ. P. 23(b)(3)(C). Finally, with respect to the likely
difficulties in managing a class action, the Court finds that the predominance of common issues
and the readily available identification of putative class members weigh in favor of the class
action format.
In sum, the Court finds the class action to be a superior form of resolving the controversy
in question. The proposed class therefore satisfies the requirements of Rule 23(b)(3).
V.
The Virginia Choice-of-Law Contract Provision is Irrelevant
In addition to the arguments in opposition to class certification detailed above, Diakon
also contends that Plaintiffs have failed to show that the IWPCA even applies to the putative
class members’ claims. Since the service agreements governing Johnson’s and Moore’s work for
Defendants contain a choice-of-law provision stating that the agreements shall be governed by
and construed in accordance with the laws of the Commonwealth of Virginia, Diakon argues that
the IWPCA should not apply at all to this dispute.2
The Court finds this argument unpersuasive, at least with respect to the propriety of class
certification. The Virginia choice-of-law provision cited by Diakon arguably applies only to
disputes pertaining to performance under the service agreements. This Court has not yet decided
whether those contracts limit actions by the drivers with respect to rights granted them under
Illinois law. That is not a question that must be decided prior to class certification. Rather,
whether this class of drivers may assert a claim under Illinois law is simply another common
question appropriate for determination on a class-wide basis. No party has argued that only
Johnson and Moore had the choice-of-law provision in their agreements; to the contrary,
Plaintiffs allege that the agreements for all drivers were based on the same model, and Diakon
2
Plaintiffs allege that all drivers signed the same model service agreement that was provided to the Court.
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has not taken issue with that assertion. To the extent there is a legal question regarding whether
the choice-of-law provision vitiates the class members’ rights to relief under the IWPCA,
Defendants may raise that question in a summary judgment motion.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for Rule 23(b)(3) class certification (Dkt.
No. 133) is granted.
ENTERED:
Dated: January 23, 2020
__________________________
Andrea R. Wood
United States District Judge
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