NOLL v. FLOWERS FOODS INC et al
Filing
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ORDER denying 190 Motion for Decertification of the Conditionally Certified Collection Action; granting 191 Motion to Certify Class Certification. By JUDGE LANCE E. WALKER. (CJD)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
TIMOTHY NOLL, et al.,
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PLAINTIFFS
V.
FLOWERS FOODS, INC., et al.,
DEFENDANTS
1:15-CV-00493-LEW
DECISION AND ORDER
In this action, Plaintiff Timothy Noll alleges that Defendants Flowers Foods,
LePage Bakeries, and CK Sales Company misclassify Maine-based product distributors as
independent contractors, and that Maine and federal law require that he and other
distributors be compensated as employees. Now pending are Plaintiff’s Motion for Class
Certification (ECF No. 191) and Defendants’ Motion for Decertification of the
Conditionally Certified Collective Action (ECF No. 190).
The parties’ briefs set forth the salient factual background and I discern no material
factual dispute that requires resolution in order to rule on the pending motions. For reasons
outlined below, Plaintiff’s motion is granted and Defendants’ motion is denied.
I.
CLASS CERTIFICATION
Plaintiff requests certification of a class of plaintiffs to pursue claims for employee
misclassification (Count II – declaratory judgment of misclassification); violation of
Maine’s independent contractor law, 26 M.R.S. §§ 1043(11)(E) and 591-A (Count III);
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violation of Maine’s employment practices laws, 26 M.R.S. §§ 621 and 661 (Count IV);
and contract recission and quantum meruit (Count V). Through these claims Plaintiffs seek
injunctive relief as well as damages for unpaid overtime and unlawful paycheck
deductions. Plaintiff proposes the following class:
All persons who, at any time from December 2, 2012 continuing through
entry of judgment in this case, worked as distributors for Flowers Foods, Inc.,
Lepage Bakeries, Inc., and/or CK Sales Co., LLC, in the State of Maine and
were classified as independent contractors under their distribution
agreements.
(Plaintiff’s Motion for Class Certification at 8, ECF No. 192-1.)
Plaintiff must demonstrate that the class and claims satisfy the four prerequisites of
Fed. R. Civ. P. 23(a), and that the proposed class action would be a type of class action
condoned under Fed. R. Civ. P. 23(b). For reasons set forth below, I find that Plaintiff has
satisfied the requirements and, therefore, I will certify the class.
A. Rule 23(a) Prerequisites
Pursuant to Rule 23(a):
One or more members of a class may sue ... as representative parties on
behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests
of the class.
1. Numerosity.
The proposed class consists of approximately 102 individuals. Although Defendant
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argues that Plaintiff has not demonstrated that joinder would be impracticable, I conclude
that the size of the class meets the numerosity requirement. Scovil v. FedEx Package Sys.,
Inc., 886 F. Supp. 2d 45, 48 (D. Me. 2012).
2. Commonality
There are questions of law and fact common to the class. These include whether
Defendants’ Maine distributors are common law employees or independent contractors.
However, “[w]hat matters to class certification … is not the raising of common
‘questions’—even in droves—but, rather, the capacity of a classwide proceeding to
generate common answers apt to drive the resolution of the litigation.” Wal–Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 350 (2011).
Determination of the core common law
misclassification issue in this case requires the Court to assess, among other things, the
nature of the work, including whether it is integral to Defendants’ business model; the
method of payment; and what tools, supplies, and materials the worker must supply.
Murray’s Case, 154 A. 352, 354 (Me. 1931). A classwide proceeding can generate
common answers on each of these factors, which factors have weight in the multi-factorial
common law assessment of employee status. While there are some differences among the
class members with respect to certain factors – for example, the employment of assistants
– there nevertheless is commonality among them with respect to most factors.
3. Typicality
Plaintiff’s claims must be typical of the claims held by the putative class members.
The typicality prerequisite “ensure[s] that class representatives, in pursuing their own
interests, concurrently will advance those of the class.” In re Hannaford Bros. Co.
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Customer Data Sec. Breach Litig., 293 F.R.D. 21, 27 (D. Me. 2013). “Class
representatives’ claims are ‘typical’ 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 ...
are based on the same legal theory.’” Id. (quoting García–Rubiera v. Calderón, 570 F.3d
443, 460 (1st Cir. 2009)). “[T]ypicality ‘should be determined with reference to the
[defendant’s] actions, not with respect to particularized defenses it might have against
certain class members.” In re Neurontin Mktg. & Sale Practices Litig., 244 F.R.D. 89, 106
(D. Mass. 2007) (quoting Wagner v. NutraSweet Co., 95 F.3d 527, 534 (7th Cir. 1996)).
Plaintiff’s claims are typical of the class and will tend to advance the interest of the putative
class members. Plaintiff commits himself, personally, to the day-to-day delivery and
related demands of his distributorship, as is typical of the class.
4. Adequacy of Representation
To be an adequate representative of the class, Plaintiff must be in a position to “fairly
and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “There are two
elements to the adequacy inquiry. First, there must be an absence of potential conflict
between the named plaintiff[] and the potential class members, and, second, the lawyers
chosen by the class representative must be ‘qualified, experienced, and able to vigorously
conduct the proposed litigation.’” In re Hannaford Bros. Co. Customer Data Sec. Breach
Litig., 293 F.R.D. 21, 29 (D. Me. 2013) (quoting Andrews v. Bechtel Corp., 780 F.2d 124,
130 (1st Cir. 1985)). It is not apparent to me that the various differences among the class
members and Plaintiff Noll, in terms of their day-to-day interactions with Defendants and
customers, give rise to a conflict that makes Noll an inadequate representative. Moreover,
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class counsel are qualified, experienced, and able to pursue the interest of the class in this
litigation.
B. Rule 23(b) Types of Class Actions
In addition to satisfying the four prerequisites of Rule 23(a), Plaintiff must
demonstrate that the proposed class action would fit within one of the “types” of class
actions described in Rule 23(b). Plaintiff asserts that the applicable type is the type
described in Rule 23(b)(3). Under that provision, a class action may be maintained,
provided that:
the court finds that the questions of law or fact common to class members
predominate over any questions affecting only individual members, and that
a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy. The matters pertinent to these findings 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.
Whether common questions predominate is the most closely contested issue. In
opposition to Plaintiff’s motion, Defendants have identified several ways in which the
members of the putative class are different, including, in particular, the fact that some
maintain more than one territory and/or employ assistants to help them in their work and,
in a few instances, to perform the work. In addition, various members of the class describe
their day-to-day subjective experience differently, and in potentially significant ways. For
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example, some members describe a greater degree of leeway in relation to which products
they order from Defendants and how they go about the tasks of filling customers’ shelves,
and a greater degree of perceived opportunity to expand sales within their districts, than do
other distributors. For these differences to predominate over the common questions, I
would have to conclude that they are the real drivers of the employee-status analysis that
must be applied under Maine common law.
In Scovil, Judge Hornby addressed a somewhat similar request by Fed Ex delivery
drivers for certification of a class comprised of full-time delivery drivers classified by Fed
Ex as independent contractors under uniform operating agreements. 886 F.Supp.2d 45
(2012). For the reasons stated in his decision and order, which I find persuasive, the
analysis that will govern in this case is the eight-factor common law right-to-control test.
See id. at 50-52 & n.8 (citing Taylor v. Kennedy, 719 A.2d 525, 527-28 (Me. 1998),
Marston v. Newavom, 629 A.2d 587, 590-91 (Me. 1993), and Murray’s Case, 130 Me. 181,
154 A. 352 (1931)). The eight factors are as follows:
(1) the existence of a contract for the performance by a person of a certain
piece or kind of work at a fixed price;
(2) independent or distinct nature of the business or calling;
(3) the need or freedom to employ assistants with the right to supervise their
activities;
(4) the obligation to furnish the tools, supplies, and materials needed to
perform the work;
(5) the right to control the progress of the work except as to final results:
(6) the time for which the worker is employed;
(7) the method of payment, whether by time or by job; and
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(8) whether the work is part of the regular business of the employer.
Murray’s Case, 154 A. at 354. These factors must be applied with a particular emphasis
on their tendency to reflect whether or not the employer has the “right to control” or the
“right to interfere” in the performance of the work, not whether the employer has elected
to exercise the right in particular instances. Scovil, 886 F.Supp.2d at 52 (quoting Murray’s
Case, 154 A. at 354, and collecting cases). Ultimately, it is the right to control that is
demonstrative of an employer-employee relationship, and none of the eight separate factors
controls the analysis. Id. However, deserving of somewhat greater weight in the context
of this litigation, i.e., in the context of a claim asserting that worker-protective statutes have
been violated, are the two factors that involve the nature of the work and its importance to
the employer’s business operations. Id. at 53 (citing Legassie v. Bangor Pub. Co., 741
A.2d 442, 445 & n.4 (Me. 1999)).1
When I consider the overarching concern for the right to control the progress of the
work, as distinct from particular instances of actual control exerted by Defendants over
individual distributors, it is my assessment that proof of the right to control rests upon
predominantly common evidence. Additionally, to the extent that various factors may
allow for some debate over the significance of individualized proof, the two factors
deserving of somewhat greater weight similarly turn on predominantly common evidence.
That is, evidence regarding the nature of the work and its importance to Defendants’
Since Judge Hornby’s decision and order in Scovil, the Maine Supreme Judicial Court has similarly turned
to Murray’s Case and Legassie to resolve a dispute over employee status. Day’s Auto Body, Inc. v. Town
of Medway, 2016 ME 121, ¶ 17, 145 A.3d 1030, 1038.
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business is common to the group and is as much a part of Plaintiff’s Noll’s experience as
it would be part of the experience of the putative class members. Moreover, as Judge
Hornby observed in Scovil, the individualized evidence that Defendants point to in support
of a finding of independent contractor status would be material, and therefore admissible,
even if I denied the motion to certify the class and this case proceeded exclusively on the
basis of Plaintiff’s Noll’s claims. See id. at 54. It is therefore not persuasive to argue that
this evidence militates in favor of the maintenance of multiple individual actions.2 That
consideration takes me to the matter of whether class proceedings would be superior to
other methods of adjudication.
I conclude that a class action is superior to other methods, because class members
would have little incentive to maintain separate actions, there is no indication of any
competing cases pending in another Maine forum, this particular Maine forum is a good
forum in which to concentrate the claims in issue, and management of the class action does
not at this juncture appear to present difficulties that would not exist in a class action
generally.
However, I am concerned that difficulties may arise when it comes to
determining whether a small subset of members of the class presently defined in Plaintiff’s
motion may require closer scrutiny on the merits for being passive territory owners.
Plaintiff have defined the class to encompass those who “worked as distributors … under
Judge Hornby also noted, again persuasively, that evidence related to distributors’ varying individual
experience of entrepreneurship and greater or lesser supervision by Defendants’ managers could, in the
specific context of distribution services, exist equally among employees as among independent contractors.
Scovil, 886 F.Supp.2d at 54 n.12. Similarly, Defendants’ concern over defenses they may be able to raise
against individual class members does not persuade me that the questions pertaining to those defenses
would predominate or make a class action proceedings inferior to alternative methods of litigating the
claims presented.
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their distribution agreements.”
Plaintiff will refine the class definition to exclude
distributors who have not personally serviced a territory within the limitation period. With
that revision, I conclude that common questions will predominate, that class action
proceedings are superior to other methods, and that Plaintiff has met the requirements of
Rule 23(b)(3).3
II.
FLSA COLLECTIVE ACTION
Defendants request that I decertify the Fair Labor Standards Act (“FLSA”)
collective action Judge Woodcock conditionally certified in his Order of January 20, 2017.
Doc. No. 81. The FLSA permits labor litigation in the form of a collective action,
effectively providing its own mechanism for classwide resolution of labor disputes
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The parties have presented four other cases in which courts have considered class certification for claims
brought by Flowers Foods distributors in other states. In two cases, the courts concluded it was appropriate
to certify a class. See Rehberg v. Flowers Baking Co. of Jamestown, No. 3:12-cv-596, 2015 WL 1346125
(W.D.N.C. Mar. 24, 2015); Richard v. Flowers Foods, Inc., No. 6:15-cv-2557 (W.D. La. Aug. 13, 2018).
In two others, the courts concluded class proceedings were not appropriate. In Martinez v. Flower Foods,
Inc., No. 2:15-cv-5112, 2016 WL 10746664 (C.D. Cal. Feb. 1, 2016), the court found the proposed class
was not ascertainable because there was no “administratively feasible method to determine when a driver
‘personally serviced’ his territory and when he employed helpers.” Id. at *5-8. I am not persuaded that
instances involving the use of “helpers” renders the class non-ascertainable. A distributor could hire
“helpers” and still be an employee. The Martinez Court also concluded that individual issues predominate
when it comes to the defendant’s right to control based on evidence of the different extent to which
individual distributors experience supervision by the defendant’s agents, id. at *10-11, a position that I
think is incorrect. Similarly, in Soares v. Flowers Foods, Inc., 320 F.R.D. 464 (N.D. Cal. 2017), the court
concluded that individual issues predominated. While the Soares Court did not agree that the workers’
varying experiences of control would undermine class proceedings, id. at 481-82, the court denied the
motion to certify because the class included distributors who were “absentee territory owners,” distributors
who occasionally hired substitute drivers, and distributors who also distributed goods for other
manufacturers. Id. at 483. My impression is that the territories in California may well provide a different
economic return that is more likely to result in passive investment in territories or greater reliance on others
to perform distribution services. If I am wrong, it may be appropriate to reevaluate certification or modify
the class, but at present I am satisfied that certification is appropriate. General Tel. Co. of SW v. Falcon,
457 U.S. 147, 160 (1982) (“Even after a [class] certification order is entered, the judge remains free to
modify it in light of subsequent developments in the litigation.”).
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governed by the FLSA. 4 In this case, following conditional certification and the issuance
of notice to potential class members, the number of participants in the collective action has
grown to 54.
To overcome Defendants’ motion to decertify, Plaintiff must establish, with the
benefit of discovery, that he and the opt-in plaintiffs are in fact similarly situated with
respect to the FLSA claim. Prescott v. Prudential Ins. Co., 729 F.Supp.2d 357, 364 (D.
Me. 2010). Whether the individuals who intend to participate in the collective action are
similarly situated calls for consideration of, inter alia, whether they have similar job duties
with similar provisions for compensation, and whether they are or were similarly subjected
to the policy or plan that is challenged in the action. Id. at 364. In addition, a court should
consider whether the defendant may have defenses against individual plaintiffs that would
make it unfair to consider the claim(s) collectively. Scovil, 886 F.Supp.2d at 57. The
standard is sometimes described as less demanding than Rule 23. Id. (citing O’Brien v. Ed
Donnelly Enters., Inc., 575 F.3d 567, 580 (6th Cir. 2009)).
For the reasons set out in my discussion of Plaintiff’s motion to certify a class under
Rule 23, I find that the plaintiffs are similarly situated, that it is possible to preserve and
address individual defenses, and that maintenance of a collective action is preferable to
potentially conducting many separate trials, even if those trials are joined for purposes of
“Like a class action under Federal Rule of Civil Procedure 23, a collective action under 29 U.S.C. § 216(b)
gives ‘plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources’ and
allows for ‘efficient resolution in one proceeding of common issues of law and fact arising from the same
alleged ... activity.’” Prescott v. Prudential Ins. Co., 729 F. Supp. 2d 357, 359 (D. Me. 2010) (quoting
Hoffmann–La Roche v. Sperling, 493 U.S. 165, 170 (1989)). “Unlike a class action, potential plaintiffs must
‘opt in’ to be included in the action and certification of a collective action proceeds in two-stages.”
Saunders v. Getchell Agency Inc., No. 1:13-CV-00244-JDL, 2014 WL 12539643, at *2 (Dec. 12, 2014),
report and recommendation adopted, 2015 WL 1292594 (D. Me. Mar. 23, 2015).
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pretrial proceedings. Moreover, given my certification of a class action on the state law
claims, it would be a waste of the party’s resources and judicial resources not to consider
the FLSA claims in the same proceeding. I will, therefore, deny the motion to decertify.
III.
CONCLUSION
Plaintiff’s Motion for Class Certification, Doc. No. 191, is GRANTED and
Defendants’ Motion for Decertification of the Conditionally Certified Collection Action,
Doc. No. 190, is DENIED. In addition, and again borrowing from the work of Judge
Hornby, I ORDER as follows:
1. Without prejudice to their objections to this decision, the parties shall meet and
confer on the form and content of an order certifying and defining the class to satisfy Rule
23(c)(1)(B)’s requirement that the order “must define the class and the class claims, issues,
or defenses.”
If the parties cannot agree on the order, they shall present jointly the portions on
which they do agree and separately—with support for their competing positions—the
portions on which they cannot agree. They shall do so by February 8, 2019.
2. The parties shall meet and confer on the form and content of a class notice that
satisfies Rule 23(c)(2)(B). The same procedures and deadlines shall be followed as in the
preceding paragraph.
3. The order certifying the class must also appoint class counsel. In that connection,
I exercise my authority to order that class counsel propose terms for attorney fees and
nontaxable costs, as well as record-keeping and documentation requirements, and provide
me with any fee agreement(s) that they have entered. See Rule 23(g)(1)(C). They shall do
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so by the same deadline.
SO ORDERED.
Dated this 15th day of January, 2019
/S/ LANCE E. WALKER
LANCE E. WALKER
UNITED STATES DISTRICT JUDGE
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