NELSON v. FORMED FIBER TECHNOLOGIES INC
Filing
99
ORDER ON MOTION TO CERTIFY CLASS AND FOR CLASS NOTICE granting 85 Motion to Certify Class By JUDGE GEORGE Z. SINGAL. (lrc)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
PAUL APPLEGATE, on behalf of himself
and all others similarly situated,
Plaintiff,
v.
FORMED FIBER TECHNOLOGIES,
LLC,
)
)
)
)
) Docket No. 2:10-cv-00473-GZS
)
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)
)
)
Defendant.
ORDER ON MOTION TO CERTIFY CLASS AND FOR CLASS NOTICE
Plaintiff Paul Applegate (“Plaintiff” or “Applegate”) brings this action on behalf of
himself and other former employees of Formed Fiber Technologies, LLC (“Defendant” or
“Formed Fiber) who allegedly were subjected to a “mass layoff,” as that term is defined by the
Worker Adjustment and Retraining Notification (“WARN”) Act, 29 U.S.C. § 2101(a)(3).
Applegate asserts that Formed Fiber violated the WARN Act by failing to provide sixty days’
advance written notice of a mass layoff and therefore that he and others similarly situated are
entitled to relief under the WARN Act.
Before the Court is Plaintiff’s Motion to Certify Class and for Class Notice (ECF No.
85). As explained herein, the Court GRANTS the Motion.
I.
LEGAL STANDARD
Federal Rule of Civil Procedure 23 sets forth the prerequisites for certifying any class.
Generally, Rule 23(a) requires any class to have (1) numerosity, (2) commonality, (3) typicality,
and (4) an adequate class representative. See Campbell v. First American Title Ins. Co., 269
F.R.D. 68, 70-71 (D. Me. 2010) (citing Smilow v. Southwestern Bell Mobile Sys., 323 F.3d 32,
38 (1st Cir. 2003)). In addition to these four requirements, the proposed class must satisfy at
least one of the subdivisions of Rule 23(b), which determines what type of class can be
maintained. To certify a class under Rule 23(b)(3), as Plaintiff attempts here, the Court must
also find “that the questions of law or fact common to class members predominate over any
questions affecting only individual members” (“predominance”), and that “a class action is
superior to other available methods for fairly and efficiently adjudicating the controversy”
(“superiority”). In re New Motor Vehicles Canadian Export Antitrust Litig., 522 F.3d 6, 18 (1st
Cir. 2008) (quoting Fed. R. Civ. P. 23(b)(3)). For classes certified under Rule 23(b)(3), the
Rules “invite[ ] a close look at the case before it is accepted as a class action.” Id. at 18-19
(quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997) (internal citation omitted)).
It is Plaintiff’s burden to establish a basis for certification. As the Supreme Court has
instructed, “[a] party seeking class certification must affirmatively demonstrate his compliance
with the Rule – that is, he must be prepared to prove that there are in fact sufficiently numerous
parties, common questions of law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, --- U.S. ---, 131
S.Ct. 2541, 2551 (2011) (emphasis in original). Moreover, the Court must undertake “a rigorous
analysis” of the prerequisites established by Rule 23. Id. See also Campbell, 269 F.R.D. at 71
(quoting Smilow, 323 F.3d at 38). Nonetheless, at the class certification stage any inquiry into
the merits is limited “to the extent that the merits overlap the Rule 23 criteria.” Campbell, 269
F.R.D. at 71 (quoting In re New Motor Vehicles Canadian Export Antitrust Litig., 522 F.3d at
24). However, “when a Rule 23 requirement relies on a novel or complex theory as to injury, ...
the district court must engage in a searching inquiry into the viability of that theory and the
2
existence of the facts necessary for that theory to succeed.” Id. (quoting In re New Motor
Vehicles Canadian Export Antitrust Litig., 522 F.3d at 26).
Although the rule contemplates that the district court must decide whether to certify any
case as a class action “[a]t an early practicable time,” Fed. R. Civ. P. 23(c)(1)(A), “[c]ourts may
alter certification orders prior to final judgment.” See Brown v. Colegio de Abogados, 613 F.3d
44, 46 (1st Cir. 2010) (citing Fed. R. Civ. P. 23(c)(1)(C)).
II.
FACTUAL BACKGROUND
The Court’s earlier Orders set forth the factual and procedural background of this case in
detail; therefore, the Court need not recount the entire background of the case here. (See Nelson
v. Formed Fiber Techs., LLC, --- F. Supp. 2d ---, 2012 WL 1247236 (D. Me. Apr. 13, 2012)
(Order on Motion for Leave to File Amended Class Action Complaint, ECF No. 79); Nelson v.
Formed Fiber Techs., LLC, --- F. Supp. 2d ----, 2012 WL 1247260 (D. Me. Apr. 13, 2012)
(Order on Motion for Summary Judgment, ECF No. 80)). Rather, the Court recounts only the
facts relevant to the instant Motion.1
In December 2008, Formed Fiber laid off a number of employees at its manufacturing
facility for automobile parts in Auburn, Maine. Based on its expectations at that time, Formed
Fiber announced that the layoffs would be temporary. (See Letter to Associates, First Amended
Class Action Complaint, Exhibit 1 (ECF No. 84).) In January 2009, Formed Fiber recalled a
subset of those laid off employees; however, many of the recalled employees were laid off
shortly thereafter. Then, in a letter dated February 11, 2009, Formed Fiber announced that
because of “changed business forecasts and unforeseen circumstances” Formed Fibers’
1
As the Court has noted previously, it “is not required to make ‘findings’ in connection with class certification and,
in light of the limited class discovery, any facts laid out in this Order are necessarily preliminary and subject to
‘revisiting.’” Campbell, 269 F.R.D. at 71 n.1.
3
expectations had changed and “many of the December 2008 and January 2009 temporary layoffs
may, in fact, exceed six months.”
Accordingly, Formed Fiber’s February 11th
(Id.)
announcement notified potentially affected employees that the company “is hereby giving notice
under the Worker Adjustment and Retraining Notification (“WARN”) Act of the possibility that
the December and January layoffs will exceed six months in duration, resulting in a mass
layoff.” (Id.) The announcement further informed each recipient that as “a potential affected
employee, you are provided this notice pursuant to the WARN Act, 29 U.S.C. § 2102(c).” (Id.)
One Formed Fiber employee who received the February 11th announcement was Plaintiff
Paul Applegate. Applegate was laid off on December 18, 2008 after approximately twenty-five
years at Formed Fiber. (See Applegate Decl. (ECF No. 86) at 1.) He was not one of the laid off
employees temporarily recalled in January 2009. At the time Applegate was laid off, he was
working as a development technician and earned approximately $16.20 per hour. (See id.) On
April 18, 2012, Applegate filed an Amended Class Action Complaint against Formed Fiber,
asserting that Formed Fiber violated the WARN Act and asking that the Court certify a class of
plaintiffs.2 Applegate’s Complaint asserts that Formed Fiber’s February 11th announcement
provided potentially affected employees the first written notice that the December and January
layoffs might be considered a “mass layoff,” as defined by the WARN Act, 29 U.S.C. §
2101(a)(3), and that Formed Fiber failed to provide sixty days’ advance written notice of its
“mass layoff,” in violation of the WARN Act, § 2102(a).
2
Applegate first sought to define the plaintiff class as:
employees employed by Formed Fiber at its Auburn, Maine facility who were laid off beginning
on or about December 15, 2008 and continuing thereafter who were not provided written notice of
a mass layoff until on or about February 11, 2009. The class would include all “affected
employees” as that term is defined in … the WARN Act, 29 U.S.C. § 2102(a)(5).
(See First Amended Complaint (ECF No. 84) ¶ 6.)
4
III.
THE WARN ACT AND THE ALLEGED VIOLATION BY DEFENDANT
The WARN Act prohibits employers of 100 or more employees from ordering a “a plant
closing or mass layoff until the end of a 60-day period after the employer serves written notice of
such an order.” 29 U.S.C. § 2102(a). See also Order on Motion for Summary Judgment, 2012
WL 1247260, at *5. Failure to provide a WARN Act notice subjects an employer to potential
civil liability and civil penalties by providing a cause of action for any employee who suffers a
covered employment loss without having received the statutorily-required notice. See 29 U.S.C.
§ 2104. The Act itself expressly emphasizes the appropriateness of class-based proceedings to
enforce the law and to obtain statutory relief: “A person seeking to enforce such liability … may
sue either for such person or for other persons similarly situated, or both, in any district court of
the United States….” See 29 U.S.C. § 2104(a)(5). Accordingly, courts have regularly held that
the WARN Act is “particularly amenable” to class-based litigation.3 In re Protected Vehicles
Inc., 397 B.R. 339, 344 (D.S.C. 2008) (citing In re Spring Ford Indus., Inc., No. 02–15015DWS, 2004 WL 231010, at *6 (Bkrtcy. E.D. Pa. Jan. 20, 2004); Finnan v. L.F. Rothschild &
Co., Inc., 726 F. Supp. 460, 465 (S.D.N.Y. 1989)); Cashman v. Dolce Intern./Hartford, Inc., 225
F.R.D. 73, 90 (D. Conn. 2004) (“Because WARN Act lawsuits are permitted only against
employers with more than 100 employees, WARN actions are particularly amenable to classbased litigation.”). See also Day v. Celadon Trucking Services, Inc., No. 4:09-CV-00031-SWW,
2010 WL 3270760, at *5 (E.D. Ark. Aug. 16, 2010) (stating that an employer’s failure “to give
notice as required under the WARN Act depends on the resolution of issues that are common to
all class members, and the question is particularly well-suited for class action procedure”).
3
In fact, Formed Fiber “does not dispute that WARN Act claims are in principle amenable to class-based litigation.”
(See Opposition to Motion to Certify Class (ECF No. 91) at 3.)
5
Applegate alleges that he and other similarly situated former employees who worked at
Formed Fiber’s Auburn, Maine facility were terminated in a “mass layoff,” as defined by the
WARN Act, § 2101(a)(3), in December 2008 and January 2009; that these former employees are
“affected employees,” as defined by 29 U.S.C. § 2104(a)(5); that these former employees did not
receive 60 days’ advance written notice of the mass layoff from Formed Fiber, as required by the
WARN Act; and that Formed Fiber failed to pay them 60 days’ wages and fringe benefits, as
required by the WARN Act. (See First Am. Compl. (ECF No. 84).)
IV.
CLASS CERTIFICATION
Applegate seeks class certification, asserting that the requirements of Rule 23 are met
here. He asks that the Court certify a class of plaintiffs that includes the following individuals:
(1) all employees employed by Formed Fiber at its Auburn, Maine facility who
were laid off on or about December 15, 2008; and (2) who were not provided
written notice of a mass layoff until on or about February 11, 2009; and (3) who
were not recalled after the December 15, 2008 layoff or who were recalled in
January 2009 and laid off again prior to receiving the February 11, 2009 notice.
(See Pl.’s Reply Br. at 3-4 (ECF No. 92).)4 Applegate concedes that the class should not include
employees who resigned from Formed Fiber after being laid off and states that he mistakenly
failed to include in the class definition cited above a requirement that the class definition also
include employees laid off by Formed Fiber in December 2008 “who did not resign within six
months of the layoff.” (See Pl.’s Response to Def.’s Mot. to File Sur-Reply (ECF No. 96) at 2.)
Accordingly, Applegate asks that the Court include this additional provision in the class
definition under consideration.
For the purpose of deciding the instant Motion, the Court
4
This definition is the result of the back-and-forth revisions by the parties during briefing. The Court ultimately
considers this latest proposed definition and the additional qualifier proposed by Defendant in its reply brief and
accepted by Plaintiff: that the class definition exclude employees laid off by Formed Fiber in December 2008 “who
did not resign within six months of the layoff.”
6
GRANTS this request and excludes from the class definition employees who left their
employment with Formed Fiber less than six months after being laid off. Formed Fiber opposes
class certification, arguing that Applegate seeks certification of an impermissibly overbroad class
that cannot satisfy the numerosity, commonality, typicality, and adequacy requirements of Rule
23(a). Additionally, Formed Fiber asserts that Applegate fails to satisfy the predominance and
superiority requirements of Rule 23(b)(3).
A. The Rule 23(a) Requirements
1. Numerosity
Applegate contends that he has met his burden of establishing that “the class is so
numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). While “[t]here
is no threshold number of class members that automatically satisfies this requirement,” Van
Meter v. Harvey, 272 F.R.D. 274, 281 (D. Me. 2011), the First Circuit suggests that numerosity
is generally satisfied if “the potential number of plaintiffs exceeds 40.” Garcia-Rubiera v.
Calderon, 570 F.3d 443, 460 (1st Cir. 2009) (quoting Stewart v. Abraham, 275 F.3d 220, 226-27
(3d Cir. 2001)). See also Carrier v. JPB Enters., Inc., 206 F.R.D. 332, 334 (D. Me. 2002) (“while
the absolute size of the class is not dispositive, … a class of more than 40 individuals raises a
presumption that joinder is impracticable”) (citing Herbert Newberg, Newberg on Class Actions
§ 3.05 at 3-25 (3rd ed. 1992)); Campbell, 269 F.R.D. at 74 (citing Mitchell-Tracey v. United
Gen. Title Ins., 237 F.R.D. 551, 556-57 (D. Md. 2006) (certifying class based on finding that
there were more than 40 class members)).
The actual number of class members is not
necessarily determinative, however; the Court may also consider a variety of other factors –
including, “the geographical dispersion of the class, the ease with which class members may be
identified, the nature of the action, and the size of each plaintiff's claim.” Zeidman v. J. Ray
7
McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981). See also 7A Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1762, at 206-08 (3d ed.
2005).
Applegate asserts that there are between 120 and 162 putative class members, based on
stipulations filed by the parties exclusively for the purpose of summary judgment. Applegate
also asserts that because the WARN Act requires that employers provide written notice to
affected employees only in advance of a “mass layoff,” which by definition involves at least 50
employees, Formed Fiber would not have sent laid off employees advance written notice of a
likely mass layoff unless at least 50 employees would be affected. 5
Therefore, Applegate
contends that the putative class must contain at least 50 potential plaintiffs, if not 120 to 162
plaintiffs.
Formed Fiber responds that Applegate fails to provide adequate evidentiary support for
his estimate of a class size consisting of between 120 and 162 plaintiffs. Moreover, Formed
Fiber contends that approximately 40 of the workers it laid off in December 2008 were recalled
to work in January 2009 and that those recalled employees cannot be counted as part of a
potential class of between 120 and 162 plaintiffs because the recalled employees did not
experience an “employment loss” as the term is defined by 29 U.S.C. § 2101. Formed Fiber also
attacks Applegate’s contention that the putative class contains at least 50 members because the
February 11th announcement was sent to employees who did not experience an employment loss
and therefore have no WARN Act claim against Formed Fiber. Specifically, Formed Fiber
contends that at least one laid off employee who received the February 11th announcement,
5
Applegate’s reasoning stems from the language of the WARN Act, which defines “mass layoff” as a reduction in
force which: (1) “is not the result of a plant closing;” (2) “results in an employment loss at a single site during any
30-day period for … at least 33 percent of the employees (excluding part-time employees);” and (3) involves “at
least 50 employees (excluding part-time employees).”
8
Steven Nelson, left his employment with Formed Fiber less than six months after the alleged
mass layoff and therefore did not experience an employment loss that would entitle him to relief
under the WARN Act. (See Nelson, 2012 WL 1247260, at *5-7 (granting summary judgment
based on finding that employee who left his employment less than six months after being laid off
did not experience an “employment loss” and therefore was not entitled to relief under the
WARN Act).)
Based on the current record, the Court concludes that the proposed class is sufficiently
numerous such that “joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). See also
McCuin v. Secretary of Health and Human Services, 817 F.2d 161, 167 (1st Cir. 1987) (stating
that “district courts may draw reasonable inferences from the facts presented to find the requisite
numerosity”). The February 11th notification letter establishes that there are potentially at least
fifty plaintiffs who were subjected to a mass layoff without adequate WARN notice. Formed
Fiber has shown that one recipient of the February 11th notification is not an affected employee
and therefore not a potential plaintiff. This leaves at least forty-nine potential plaintiffs, a
number the Court considers sufficiently numerous for the purpose of Rule 23(a)(1) under the
circumstances of this case.
Moreover, the additional factors relevant to the numerosity
determination – the ease in identifying other class members, the nature of the action, the size of
each plaintiff’s claim, judicial economy, and the ability of the members to institute individual
suits – weigh in favor of finding that “joinder of all members is impracticable.”6 Fed. R. Civ. P.
23(a)(1).
6
In particular, the Court finds that the relatively small size of each plaintiff’s claim would discourage many former
Formed Fiber employees with potential WARN Act claims from pursuing their claims individually.
9
2. Commonality
Rule 23(a)(2) requires the Court to find that “there are questions of law or fact common
to the class.” The First Circuit has noted that the commonality requirement presents a “low bar.”
Campbell, 269 F.R.D. at 75 (citing In re New Motor Vehicles Canadian Export Antitrust Litig.,
522 F.3d 6, 19 (1st Cir. 2008)). Here, common questions include whether a mass layoff occurred
at Formed Fiber’s facility in Auburn, Maine, and, if so, when the mass layoff occurred, whether
Formed Fiber provided sixty days’ advance notice of a mass layoff, whether Formed Fiber
violated the WARN Act by executing a mass layoff without providing sixty days’ advance
written notice, and whether, and in what amount, laid off employees are entitled to damages in
the form of wages and fringe benefits for any period of WARN Act violation.
Formed Fiber contends that the proposed class violates the commonality requirement of
Rule 23(a) because it includes approximately forty employees who were recalled to work after
experiencing a layoff of less than six months – specifically, those employees who were laid off
in December 2008 but who were recalled to work in January 2009.7 However, the employees
who were laid off and then temporarily recalled in January 2009 properly fall within the class
definition because their claims and Applegate’s claims involve the same legal and factual
questions. The only difference between Applegate and the temporarily re-hired workers involves
the amount of recovery – those employees who were temporarily recalled may receive less in
damages than plaintiffs such as Applegate who were not recalled.
7
Formed Fiber also argues that the proposed class definition provided in Applegate’s Amended Complaint is
overbroad because it purports to include all “affected employees” as the term is defined in the WARN Act.
Specifically, Formed Fiber contends that the proposed class of plaintiffs cannot include those employees who were
laid off but who left employment at Formed Fiber less than six months after the alleged “mass layoff” because such
employees did not experience an “employment loss” under the WARN Act. In light of this argument, Plaintiff has
agreed to revise its class definition to exclude employees who left employment at Formed Fiber less than six months
after any mass layoff.
10
In short, virtually all of the major issues are common to the proposed class and the only
differences are minor. As other courts have noted, the fact that class members suffered different
damages does not bar class certification. See Guippone v. BH S&B Holdings LLC, et al., No.
09-Civ.-1029(CM), 2011 WL 1345041, at *5 (S.D.N.Y. Mar. 30, 2011). Where class members
have different degrees of injury or even where defenses might exist only as to particular
individuals, commonality has been found for class certification. See id. (citing Newberg on
Class Actions § 3.04 (4th ed. 2002). Indeed, class action suits under the WARN Act almost
always involve a class comprised of persons with different positions, different pay, and who may
have been terminated on different dates. See id. (collecting cases).
3. Typicality
Applegate must also prove that “the claims or defenses of the representative parties are
typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The representative
plaintiff satisfies the typicality requirement when its injuries arise from the same events or course
of conduct as do the injuries of the class and when plaintiff’s claims and those of the class are
based on the same legal theory.” Campbell, 269 F.R.D. at 75 (citing In re Credit Suisse-AOL
Securities Litig., 253 F.R.D. 17, 23 (D. Mass. 2008)). “Typicality under Rule 23(a)(3) should be
determined with reference to the company's actions, not with respect to particularized defenses it
might have against certain class members.” Trinidad v. Breakaway Courier Systems, Inc., No.
05-Civ-4116-RWS, 2007 WL 103073, at *6 (S.D.N.Y. Jan. 12, 2007) (quoting Wagner v.
NutraSweet Co., 95 F.3d 527, 534 (7th Cir.1996)). Furthermore, as in the commonality inquiry,
“a difference in damages arising from a disparity in injuries among the plaintiff class does not
preclude typicality.” Id. (quoting Duprey v. Conn. Dep't of Motor Vehicles, 191 F.R.D. 329, 337
(D. Conn. 2000) (citing Trautz v. Weisman, 846 F. Supp. 1160, 1167 (S.D.N.Y. 1994))).
11
While Formed Fiber contends that Applegate’s claim is not typical or representative of
the members of his proposed class, the Court disagrees. The claims of the proposed class are
based on the same legal theory – that Formed Fiber violated their rights under the WARN Act by
failing to provide notice of mass layoff sixty days before the mass layoff commenced.
Moreover, plaintiffs’ alleged injuries arise from the same events – namely, the alleged mass
layoffs at Formed Fiber’s Auburn plant in December 2008 and January 2009 that were not
preceded by sixty days’ advance notice. The fact that some employees were briefly recalled to
work in January 2009 does not defeat typicality. The difference between Applegate and the
briefly recalled workers affects only the amount of damages; it does not change the fact that
underlying legal claim and the course of conduct giving rise to that claim are the same.
4. Adequacy
Finally, the Court must find that the representative party, in this case, Applegate, “will
fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). 8 This element
requires a two-step showing: “first, ‘that the interests of the representative party will not conflict
with the interests of any of the class members, and second, that counsel chosen by the
representative party is qualified, experienced and able to vigorously conduct the proposed
litigation.’” Van Meter, 272 F.R.D. at 283 (quoting Andrews v. Bechtel Power Corp., 780 F.2d
124, 130 (1st Cir. 1985)). See also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997).
The first element of Rule 23(a)(4) is met in this case because no divergence exists
between the interests of Applegate and the interests of the class as a whole. As discussed above,
the fact that other class members held different positions, were terminated at different times, and
may have been recalled to work for a brief stint in January 2009 does not change the basic fact
8
To the extent that Rule 23(a)(4) also requires the Court to consider whether counsel is qualified to represent the
class, Formed Fiber does not contest the issue, and the Court finds based on counsel’s extensive experience that
counsel is qualified to represent the class.
12
that the interests of Applegate are directly in line with the interests of other class members.
Contrary to Formed Fiber’s assertion that Applegate has no reason to pursue the potential claims
of employees recalled to work after December 2008, Applegate has every reason to press the
issue of whether temporarily recalled employees were subjected to a “mass layoff” without
receiving proper WARN notice.9
The second element of Rule 23(a)(4) is met because Plaintiff’s counsel is “qualified,
experienced and generally able to conduct the proposed litigation.”
The background of
Plaintiff’s counsel has been set forth in detail. The Court is familiar with counsel’s extensive
experience and readily finds they have the experience necessary to prosecute the proposed
WARN Act case on behalf of the proposed class.
B. The Rule 23(b)(3) Requirements
If a proposed class can meet its burden on the four Rule 23(a) prerequisites, the Court
must then determine what type of class action can be maintained. Rule 23(b) lists three different
types. In his Motion, Applegate seeks to have that the proposed class certified under Rule
23(b)(3), which essentially is “a joinder device for consolidating separate but similar claims.”
Campbell, 269 F.R.D. at 77 (quoting Tardiff v. Knox County, 365 F.3d 1, 4 (1st Cir. 2004)).
This subsection requires the Court to find: (1) “that the questions of law or fact common to class
members predominate over any questions affecting only individual members,” and (2) “that a
class action is superior to other available methods of fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3). The Rule explicitly lists the following factors for the
Court to consider in making this determination:
9
Formed Fiber also contends that Applegate fails the adequacy prong because he seeks to represent potential
plaintiffs, such as Steven Nelson, who left Formed Fiber less than six months after being laid off. This contention is
now moot, as Applegate’s proposed class, as revised, does not include potential plaintiffs who left Formed Fiber less
than six months after being laid off.
13
(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.
Fed. R. Civ. P. 23(b)(3). See also Amchem Prods., Inc., 521 U.S. at 616.
Having considered all of these factors, the Court finds on the current record that the
proposed class meets the requisites of predominance and superiority and can be maintained as a
Rule 23(b)(3) class.
1. Predominance
The predominance inquiry essentially asks the same question posed as commonality
under Rule 23(a)(2), however, the bar is set significantly higher. See Campbell, 269 F.R.D. at 78
(citing In re PolyMedica Corp., 432 F.3d 1, 4 n.5 (1st Cir. 2005) (“This [predominance]
requirement, although reminiscent of the commonality requirement of Rule 23(a), is far more
demanding because it tests whether proposed classes are sufficiently cohesive to warrant
adjudication by representation.”) (internal quotations and citations omitted)). The heart of the
predominance inquiry is whether the “uncommon questions” outweigh the commonalities. In re
Light Cigarettes Marketing Sales Practices Litigation, 271 F.R.D. 402, 416 (D. Me. 2010)
(quoting Amchem, 521 U.S. at 624).
“Rule 23(b)(3) requires merely that common issues
predominate, not that all issues be common to the class.” Id. (quoting Smilow, 323 F.3d at 39).
Put another way, there must be a “sufficient constellation of common issues bind[ing] class
members together.” Id. (quoting Waste Management Holdings, Inc. v. Mowbray, 208 F.3d 288,
296 (1st Cir. 2000)). In order to make this determination, “a district court must formulate some
14
prediction as to how specific issues will play out.” Id. at 298 (quoting Mowbray, 208 F.3d at
296).
Formed Fiber’s first predominance objection – that the class includes individuals who
lack standing because they left Formed Fiber less than six months after being laid off – has
already been addressed. Applegate’s proposed class will not include such individuals. Formed
Fiber’s second objection relates to its affirmative defenses – namely, that common questions are
lacking because Formed Fiber’s affirmative defenses would have to be addressed on an
individualized basis if a class were certified including recalled employees. Defendant cites no
case involving the WARN Act in support of this argument; rather, Defendant cites In re Light
Cigarettes Marketing Sales Practices Litigation, which said that:
“[c]ourts traditionally have been reluctant to deny class action status under Rule
23(b)(3) simply because affirmative defenses may be available against individual
members.” Smilow, 323 F.3d at 39. However, the First Circuit also recognizes
that “affirmative defenses should be considered in making class certification
decisions,” although not as a per se bar. Mowbray, 208 F.3d at 295–96. As the
Plaintiffs bear the burden to show compliance with Rule 23, they also bear the
burden to demonstrate “that resolution of the statute of limitations defense on its
merits may be accomplished on a class-wide basis.” Thorn v. Jefferson–Pilot Life
Ins. Co., 445 F.3d 311, 321–22 (4th Cir. 2006).
271 F.R.D. at 419.
Defendant’s argument is misplaced. The proposed class consists of employees who
allegedly are all part of a single “mass layoff,” and at this time the Court sees no reason to
believe that Formed Fiber’s affirmative defenses would be different with respect to different
individual plaintiffs.10 Contrary to Defendant’s contention, there is no reason to believe that
these defenses might apply differently to different individual plaintiffs. Despite the fact that
potential plaintiffs may have been laid off at different times and some may have been recalled
10
In its briefing, Formed Fiber highlighted the following affirmative defenses: reasonable foreseeability concerning
the duration of the layoff (Second Affirmative Defense); good faith (Third Affirmative Defense); and compliance
with the WARN Act (Fifth Affirmative Defense).
15
temporarily, the case involves a common, overarching question – were the plaintiffs subjected to
a mass layoff without adequate notice? – and the affirmative defenses cited by Formed Fiber
apply equally to each potential plaintiff. Even if Formed Fiber’s affirmative defenses do not
apply equally to each plaintiff, affirmative defenses are not a per se bar to class certification. See
id. (citing Mowbray, 208 F.3d at 295-96). Were the Court to adopt Defendant’s argument,
certifying a class of plaintiffs in a WARN Act case would be particularly difficult because each
potential plaintiff would be forced to try his or her case individually. Such a result would
undermine the statutory language of the Act, which specifically provides that “a representative of
employees or a unit of local government … may sue either for such person or for other persons
similarly situated, or both….” 29 U.S.C. § 2104(a)(5).
As already set forth above, it is clear that common questions predominate in this case.
Those questions include: (1) whether a mass layoff occurred at Formed Fiber’s facility in
Auburn, Maine, and, if so, (2) when the mass layoff occurred, (3) whether Formed Fiber
provided sixty days’ advance notice of a mass layoff, (3) whether Formed Fiber violated the
WARN Act by executing a mass layoff without providing sixty days’ advance written notice,
and (4) whether, and in what amount, laid off employees are entitled to damages in the form of
wages and fringe benefits for any period of WARN Act violation. The fact that some employees
were recalled temporarily in January 2009 affects only the amount of damages; it does not
change the fact that common questions are central to resolution of this case.
2. Superiority
The First Circuit has said that, in evaluating whether superiority is satisfied, the district
court should consider, “whether the putative class members could sensibly litigate on their own
for these amounts of damages.” Campbell, 269 F.R.D. at 79 (quoting Gintis v. Bouchard Transp.
16
Co., Inc., 596 F.3d 64, 68 (1st Cir. 2010)). In this case, it is clear that damages per putative class
member are small and are unlikely to be litigated on an individual basis. The Court therefore
finds that the class members’ interests in individually controlling the prosecution of separate
actions is minimal. Concentrating any WARN litigation in a single class action will avoid
multiple suits and will maximize judicial economy, efficiency, and uniformity of outcomes for
similarly situated individuals. See Carrier, 206 F.R.D. at 334-35. Finally, the Court is unaware
of particular difficulties associated with the management of this class action. Whether Formed
Fiber failed in a duty to give notice as required under the WARN Act is particularly well-suited
for class action procedure: the class members can be easily identified through discovery, the
potential liability of Formed Fiber can be readily calculated, and there is but one combined
course of conduct – that of Formed Fiber – to examine and adjudicate. See Guippone, 2011 WL
1345041, at 8.
V.
CONCLUSION
As explained herein, the Court finds that the current record supports certification of the
following class under Rule 23(b)(3):
(1) all employees employed by Formed Fiber at its Auburn, Maine facility who
were laid off on or about December 15, 2008; and
(2) who were not provided written notice of a mass layoff until on or about
February 11, 2009; and
(3) who were not recalled after the December 15, 2008 layoff or who were
recalled in January 2009 and laid off again prior to receiving the February 11,
2009 notice; and
(4) who did not resign within six months of the layoff.
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In light of the Court’s decision to certify the above class, the Court hereby ORDERS that
the parties shall meet and confer on the form and content of a proposed class notice that satisfies
Rule 23(c)(1)(B). The parties shall present any jointly proposed class notice proposal by August
24, 2012. If the parties are unable to reach an agreement on a joint proposal, Plaintiff shall file a
motion for approval of his proposed class notice plan. Defendant shall respond to any such
motion in accordance with the local rules and specifically noting any aspects of the plan to which
it does not object.
For the foregoing reasons, the Court ORDERS that Plaintiff’s Motion to Certify Class
(Docket # 85) is hereby GRANTED.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 27th day of July, 2012.
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