Garcia et al v. E.J. Amusements of New Hampshire, Inc. et al

Filing 244

Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered. Plaintiff's Motion for Class Certification 166 is ALLOWED. Defendants' Motion to Deny Class Certification 157 is DENIED. (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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)
)
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Plaintiffs,
)
) Civil Action No. 13-12536-PBS
v.
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E.J. AMUSEMENTS OF NEW HAMPSHIRE, )
INC. d/b/a FIESTA SHOWS; FIESTA
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SHOWS, INC. d/b/a FIESTA SHOWS;
)
ATSEIF FESTIVAL MOBILE, INC.
)
d/b/a FIESTA SHOWS; EUGENE DEAN
)
III; EUGENE DEAN; LINDA CHAGROS; )
NORMA DEAN; and MARY DEAN,
)
)
Defendants.
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JORGE GARCIA, ZACHARY DUCLOS,
GEORGE KENT, and JENNIFER MILLER,
on behalf of themselves and all
others similarly situated,

April 13, 2015
Saris, Chief Judge.
MEMORANDUM AND ORDER
Plaintiff Jorge Garcia1 brings this proposed class action
against Fiesta Shows,2 a company that provides rides and
attractions to fairs and carnivals throughout New England. Garcia
alleges that Fiesta Shows violated minimum wage and overtime laws
in Massachusetts and New Hampshire (Counts 1-2, 4-5); breached
contracts requiring the payment of prevailing wages set by the
1

Plaintiffs Zachary Duclos, George Kent, and Jennifer Miller
have been dismissed from the case. (Docket Nos. 68, 175).
2

Defendants are comprised of a number of corporate officers
and corporate entities collectively doing business as Fiesta
Shows.

U.S. Department of Labor (Count 8); and unlawfully forced foreign
guest workers to pay pre-employment expenses like travel and
costs for obtaining a visa (Counts 3, 6). Additionally, Garcia
has alleged a common law claim for unjust enrichment. (Count 7).
Garcia now seeks to certify a class of current and former
employees of Fiesta Shows for purposes of litigating his minimum
wage and overtime claims under Massachusetts and New Hampshire
law (Counts 1-2, 4-5).3 Fiesta Shows opposes the motion and has
filed a cross-motion to deny class certification. For the
following reasons, Plaintiff’s Motion for Class Certification
(Docket No. 166) is ALLOWED. Defendants’ Motion to Deny Class
Certification (Docket No. 157) is DENIED.4
I. LEGAL STANDARDS FOR CLASS CERTIFICATION
At the outset, the Court must determine the proper legal
standard to be applied to Garcia’s motion for class

3

Garcia mentions in a footnote his claim that foreign guest
workers were unlawfully forced to pay visa fees and travel
expenses (Counts 3, 6). His papers also refer throughout to his
claim that Fiesta Shows breached its contracts with the
Department of Labor (Count 8). But his papers do not offer any
argument for why these specific claims are appropriate for class
treatment. To the extent that he seeks to certify a class to
litigate his expense claims and breach of contract claim, his
motion is DENIED. Garcia may later move to amend the class to
include these claims.
4

Fiesta Shows has also moved to strike (1) affidavits by
Matthew Thomson and Phillip Acevedo, who work at the law firm
representing Garcia; and (2) declarations from certain members of
the putative class. (Docket No. 187). This motion is DENIED AS
MOOT because the Court does not rely on these statements.
2

certification. The First Circuit has stated that the Federal
Rules of Civil Procedure apply in federal court as long as they
(1) are valid under the Constitution and (2) do not “abridge,
enlarge or modify any substantive right.” Morel v. Daimler
Chrysler AG, 565 F.3d 20, 24 (1st Cir. 2009) (quoting the Rules
Enabling Act, 28 U.S.C. § 2072(b)); see also Hoyos v. Telcorp
Commc’ns, Inc., 488 F.3d 1, 5 (1st Cir. 2007) (“[A] federal court
sitting in diversity . . . must apply state substantive law, but
a federal court applies federal rules of procedure to its
proceedings.”). For this reason, federal courts ordinarily apply
Federal Rule of Civil Procedure 23 when adjudicating class
certification motions. See In re Nexium Antitrust Litig., 777
F.3d 9, 17-18 (1st Cir. 2015); Greif v. Wilson, Elser, Moskowitz,
Edelman & Dicker LLP, 258 F. Supp. 2d 157, 161 (E.D.N.Y. 2003)
(agreeing that “all class actions in federal courts are governed
by Rule 23” (emphasis added)). Rule 23 has also generally applied
when federal courts are sitting in diversity and applying state
substantive law. See Matamoros v. Starbucks Corp., 699 F.3d 129,
139 (1st Cir. 2012) (applying Rule 23 to class action alleging
violations of the Massachusetts Tips Act); Manning v. Boston Med.
Ctr. Corp., 725 F.3d 34, 58-59 (1st Cir. 2013) (applying Rule 23
to class action alleging Massachusetts common law claims).
Both parties, however, urge the Court to set aside Rule 23
for at least some of the claims. Garcia argues that a “more

3

lenient” standard applies to his claims under Massachusetts law.
Meanwhile, Fiesta Shows argues that New Hampshire law does not
allow class certification for wage and hour claims at all. Both
of these arguments fail.
A. Massachusetts Wage and Overtime Claims
The Massachusetts wage and hour statute states that a
plaintiff may bring a lawsuit on behalf of “himself and for
others similarly situated.” Mass. Gen. Laws c. 149, § 150, c.
151, §§ 1B, 20. Garcia’s request for a “more lenient” standard is
based on the Supreme Judicial Court’s recent statement that the
Massachusetts wage statute “specifically provides for a
substantive right to bring a class proceeding.” Machado v.
System4 LLC, 989 N.E.2d 464, 470 (Mass. 2013). As a result,
Garcia argues that the “traditional technicalities” of Rule 23
should not apply here because they might interfere with his
substantive right to bring a class action in Massachusetts.
Garcia’s argument stumbles at the starting gate because he
does not explain how Rule 23 conflicts with the “more lenient”
standard he proposes under Massachusetts law. Garcia suggests
that Rule 23 might interfere with his substantive right to
proceed as a class. But he does not explain how a class
certification analysis under Massachusetts law would proceed any
differently from a Rule 23 analysis. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“It is not enough merely

4

to mention a possible argument in the most skeletal way, leaving
the court to do counsel’s work, create the ossature for the
argument, and put flesh on its bones.”).
Nor do the cases cited by Garcia shed any light on what a
“more lenient” standard would look like here. See Machado, 989
N.E.2d at 470 (holding that the Federal Arbitration Act requires
enforcement of class action waivers in arbitration clauses even
when Massachusetts law provides for a “substantive right” to
bring a class proceeding); Sebago v. Tutunjian, 7 N.E.3d 1122, at
*2 n.6 (Mass. App. Ct. May 12, 2014) (unpublished) (citing to
Mass. R. Civ. P. 23, which is similar in all relevant aspects to
its federal counterpart); see also Salvas v. Wal-Mart Stores,
Inc., 893 N.E.2d 1187, 1207-10 (Mass. 2008) (applying Mass. R.
Civ. P. 23 to a class based on wage and hours claims). If
anything, Sebago and Salvas suggest that the Court should apply
Fed. R. Civ. P. 23 in the same way that Massachusetts courts
apply Mass. R. Civ. P. 23 to classes based on wage claims.
Garcia also cites to cases where Massachusetts courts have
recognized a lower threshold for class certification under the
Massachusetts Consumer Protection Act, Mass. Gen. Laws c. 93A
(Chapter 93A), instead of Mass. R. Civ. P. 23. See Aspinall v.
Philip Morris Cos., 813 N.E.2d 476, 485 (Mass. 2004); Fletcher v.
Cape Cod Gas Co., 477 N.E.2d 116, 122-23 (Mass. 1985). But
Garcia’s attempt at analogizing Chapter 93A claims to wage and

5

overtime claims is like comparing cotton candy to corn dogs.
Chapter 93A class actions are subject to a less stringent
standard because the “statutory language in c. 93A § 9(2) differs
in significant respects from Mass. R. Civ. P. 23.” Aspinall, 813
N.E.2d at 484. A plaintiff may bring a Chapter 93A class action
on behalf of “other similarly injured and situated persons”:
if the use or employment of the unfair or deceptive act or
practice has caused similar injury to numerous other persons
similarly situated and if the court finds in a preliminary
hearing that he adequately and fairly represents such other
persons
Mass. Gen. Laws c. 93A § 9(2). In Aspinall, the Court observed
that these requirements are significantly less demanding than
Mass. R. Civ. P. 23, which also requires a finding that: (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) common questions predominate over individual
questions; and (4) a class action is superior to other available
methods for the fair and efficient adjudication of the
controversy. 813 N.E.2d at 484. As a result, the Court found that
the more lenient requirements for class certification under
Chapter 93A superseded Mass. R. Civ. P. 23. Meanwhile, the
Massachusetts Wage Statute merely states that a plaintiff may
bring a lawsuit on behalf of those who are “similarly situated.”
Mass. Gen. Laws c. 151 §§ 1B, 20. It says nothing more about the
legal standards for class certification of wage claims. As a
result, there is no reason to think that Massachusetts law would
6

require class certification for wage and hour claims to be
treated similarly to certification under Chapter 93A. Instead,
the Court will proceed with a conventional class certification
analysis under Fed. R. Civ. P. 23.
B. New Hampshire Wage and Overtime Claims
Fiesta Shows’s attempts to displace Rule 23 based on an
alleged conflict with New Hampshire law “fair” no better. N.H.
Rev. Stat. § 275:53(I) states:
Action by an employee to recover unpaid wages and/or
liquidated damages may be maintained in any court of competent
jurisdiction by any one or more employees for and in behalf of
himself or themselves, or such employee or employees may
designate an agent or representative to maintain such action.
Fiesta Shows emphasizes that this language only explicitly
authorizes actions by employees who (1) sue on their own behalf;
or (2) designate an agent or representative to sue. The language
does not mention class actions or employees who sue on behalf of
others “similarly situated.” Compare Mass. Gen. Laws c. 151 §§
1B, 20. Fiesta Shows interprets this silence on class actions as
a bar on class certification of wage claims. But this argument
has now been rejected at least twice by courts interpreting §
275:53(I) in multi-district litigation. See In re FedEx Ground
Package Sys., Inc., Emp. Practices Litig., 283 F.R.D. 427, 470
(N.D. Ind. 2012); Teoba v. Trugreen Landcare LLC, 769 F. Supp. 2d
175, 187-88 (W.D.N.Y. 2011). But see Trezvant v. Fid. Emp’r
Servs. Corp., 434 F. Supp. 2d 40, 57 (D. Mass. 2006) (Young, J.)

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(stating in dicta that the “wording of the statute and the lack
of class action employee wage lawsuits in New Hampshire leaves a
significant degree of doubt as to whether class actions are
allowed”). Both of these courts have observed that § 275:53
contains no express prohibition on class actions. FedEx, 273
F.R.D. at 470; Teoba, 769 F. Supp. 2d. 188. Instead, the statute
merely “broadens the class of persons who may bring specified
suits to include designated agents or representatives.” FedEx,
273 F.R.D. at 470. The statute does not supersede the general
rule in New Hampshire that class actions are “permitted on the
basis of necessity and convenience.” See Royer v. State Dep’t. of
Emp’t Sec., 394 A.2d 828, 832-33 (N.H. 1978) (Douglas, J.,
concurring) (“Class actions, or representative suits, have been
recognized by this court for over one hundred years.”). This
interpretation is also consistent with the well-established
principle in federal law that class relief is appropriate “in the
absence of a direct expression by Congress of its intent to
depart from the [Federal Rules of Civil Procedure].” Califano v.
Yamasaki, 442 U.S. 682, 700 (1979); see also Cantwell v. J & R
Props. Unlimited, Inc., 924 A.2d 355, 358 (N.H. 2007) (explaining
that New Hampshire courts rely on federal cases interpreting Rule
23 to interpret New Hampshire rules for class certification). For
these reasons, the Court rejects Fiesta Shows’s argument that New

8

Hampshire law bars class treatment for wage and overtime claims.5
Even if there is a conflict between New Hampshire law and
Rule 23, the Court finds that Rule 23 does not “abridge, enlarge
or modify” any substantive right in New Hampshire law. 28 U.S.C.
§ 2072(b) (Rules Enabling Act); see also Shady Grove Orthopedic
Assocs, P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010). In Shady
Grove, the Supreme Court held that Rule 23 did not violate the
Rules Enabling Act despite a direct conflict with New York’s
rules prohibiting class treatment of claims involving penalties
or statutory minimum damages. 559 U.S. at 408 (plurality)
(holding that rules allowing multiple claims to be litigated
together–including Rule 23-are categorically valid under the
Rules Enabling Act); id. at 436 (Stevens, J., concurring)
(finding that New York’s prohibition on class actions was not an
attempt to define rights or remedies). The plurality in Shady
Grove also observed that the Supreme Court has rejected every
challenge to the Federal Rules of Civil Procedure under the Rules
Enabling Act. Id. at 407-08. For these reasons, the Court finds
that Rule 23 does not “abridge, enlarge or modify any substantive
right” simply because it allows for class adjudication of wage
and overtime claims in circumstances where New Hampshire law
5

Fiesta Shows also cites to Labor Ready Ne., Inc. v. N.H.
Dep’t of Labor, 798 A.2d 48 (N.H. 2002), which is factually and
legally unrelated to this case. Labor Ready holds that a
Department of Labor commissioner may not pursue a wage adjustment
claim under N.H. Rev. Stat. § 275:53 without express assignment
from an employee. Id. at 50.
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would not. 28 U.S.C. § 2072(b).
II. RULE 23(a) REQUIREMENTS
The show must go on. Under Rule 23, a proposed class must
initially satisfy four requirements: (1) the class is so numerous
that joinder of all members is impracticable (numerosity); (2)
there are questions of law or fact common to the class
(commonality); (3) the claims or defenses of the representative
parties are typical of the claims or defenses of the class
(typicality); and (4) the representative parties will fairly and
adequately protect the interests of the class (adequacy). Fed. R.
Civ. P. 23(a). The plaintiffs have the burden of showing that all
the prerequisites for a class action have been met. Makuc v. Am.
Honda Motor Co., 835 F.2d 389, 394 (1st Cir. 1987). The Court
“must conduct a rigorous analysis of the prerequisites
established by Rule 23 before certifying a class.” Smilow v. Sw.
Bell Mobile Sys., Inc., 323 F.3d 32, 38 (1st Cir. 2003). The
Court finds that each of these requirements has been satisfied
here.
A. Numerosity
The first requirement of Rule 23(a) is that “the class is so
numerous that joinder of all members is impracticable.” Fed. R.
Civ. P. 23(a)(1). The First Circuit has characterized the
numerosity requirement as a “low threshold.” Garcia-Rubiera v.
Calderon, 570 F.3d 443, 460 (1st Cir. 2009). “No minimum number

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of plaintiffs is required to maintain a suit as a class action,
but generally if the named plaintiff demonstrates that the
potential number of plaintiffs exceeds 40, the first prong of
Rule 23(a) has been met.” Id. (quoting Stewart v. Abraham, 275
F.3d 220, 226-27 (3d Cir. 2001)); see also George v. Nat’l Water
Main Cleaning Co., 286 F.R.D. 168, 173 (D. Mass. 2012) (“[C]ourts
have generally found that a class size of forty or more
individuals will satisfy the numerosity requirement.”).
The numerosity requirement is easily satisfied here. Garcia
has identified more than 160 Fiesta Shows workers who allegedly
suffered wage and overtime violations under Massachusetts and New
Hampshire law. For reasons explained in Section III.A., the Court
will exclude from the class approximately 60 workers who signed
agreements releasing their claims against Fiesta Shows. But even
after subtracting these 60 workers, the proposed class still
meets the numerosity requirement. The Court finds that joinder of
all these people would be impracticable.
B. Commonality
The second requirement of Rule 23(a) is that there must be
“questions of law or fact common to the class.” Fed. R. Civ. P.
23(a)(2). The Supreme Court has recently warned that this
language is “easy to misread” because any competently crafted
class complaint literally raises common questions. Wal-Mart
Stores, Inc. v. Dukes, ___ U.S. ___, 131 S. Ct. 2541, 2551

11

(2011). To satisfy this requirement, the class claims must depend
upon a “common contention” that is “capable of classwide
resolution–which means that determination of its truth or falsity
will resolve an issue that is central to the validity of each one
of the claims in one stroke.” Id. In other words, the commonality
requirement is met where the “questions that go to the heart of
the elements of the cause of action” will “each be answered
either ‘yes’ or ‘no’ for the entire class” and “the answers will
not vary by individual class member.” Donovan v. Philip Morris
USA, Inc., 2012 WL 957633, at *21 (D. Mass. Mar. 21, 2012).
In wage and overtime cases, for example, courts have
rejected class certification where a determination of liability
would require a burdensome inquiry into each employee’s
individual circumstances. See Myers v. Hertz Corp., 624 F.3d 537,
548 (2d Cir. 2010) (key question was whether each employee was an
“executive,” which would require individualized inquiry into each
class member’s unique job duties); Enriquez v. Cherry Hill Market
Corp., 993 F. Supp. 2d 229, 234 (E.D.N.Y. 2014) (denying class
certification for minimum wage violations); Raposo v. Garelick
Farms, LLC, 293 F.R.D. 52, 56 (D. Mass. 2013) (commonality absent
where not every class member worked through meals for the same
reasons or without compensation). In Enriquez, for example, the
Court found that every employee worked a different schedule and
was paid a different weekly salary. 993 F. Supp. 2d at 233. As a
result, resolving one class member’s minimum wage claim would not
assist in resolving the claims of any other class member, even if
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the defendant was “systematically” underpaying its employees. Id.
On the other hand, courts have found the commonality
requirement met where employees alleged per se illegal wage
policies that violated the rights of all class members. See
George, 286 F.R.D. at 175 (“[H]ere the allegations against the
Corporate Defendants are that their wage policies facially
violated state law, which requires little individual inquiry.”);
Overka v. Am. Airlines, Inc., 265 F.R.D. 14, 18 (D. Mass. 2010)
(“Commonality is satisfied where the lawsuit challenges a systemwide practice or policy that affects all of the putative class
members.” (quotation marks omitted)); Ramirez v. Riverbay Corp.,
39 F. Supp. 3d 354, 364 (S.D.N.Y. 2014) (“[C]ourts addressing the
commonality requirement after Dukes have typically held that the
requirement is satisfied where employees claim that they were
denied minimum wage or overtime compensation as a result of a
corporate employment policy.” (collecting cases)). Wage claims
involving system-wide practices or policies are appropriate for
class treatment because establishing liability for one employee
necessarily establishes liability for the entire class.
With these principles in mind, the Court finds that this
case potentially involves a number of important factual and legal
questions that can be resolved for the entire class
simultaneously:
First, the parties can use common sources of proof to
establish the number of hours worked by Fiesta Shows employees,
which is a key disputed issue for every class member’s minimum
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wage and overtime claims. Fiesta Shows admits that it did not
keep individualized records for the number of hours worked by
each employee. Instead, it kept a so-called “gang time” payroll
that solely tracked the maximum number of hours that any employee
could have worked each week. This “gang time” payroll can serve
as presumptive proof for the number of weeks and hours for which
the class is entitled to backpay. Garcia can argue that all of
the class members presumptively worked overtime in the weeks
where the “gang time” payroll exceeded 40, 50, or even 60 hours.
Meanwhile, Fiesta Shows can argue that none of the class members
are entitled to overtime compensation in weeks where the “gang
time” payroll falls below 40 hours. Similarly, the “gang time”
payroll records can serve as common proof for how much Fiesta
Shows was required to pay each week in order to comply with
minimum wage laws. If the “gang time” payroll indicates that
employees worked for a maximum of 30 hours in a week, and the
applicable minimum wage was $8.00 an hour, Fiesta Shows can argue
that every class member paid at least $240 that week (30 hours x
$8/hour) received a minimum wage. Also, Garcia can argue that all
class members who made less than $240 that week represents a
presumptive minimum wage violation.
Beyond the “gang time” payroll, Garcia can also use
representative testimony from Fiesta Shows employees as common
proof of the hours worked by the class. As mentioned above,
Fiesta Shows failed to keep records of the specific number of
hours worked by each employee, which was a violation of
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Massachusetts and New Hampshire law. See Mass. Gen. Laws c. 151 §
15; N.H. Code Admin. Rules, Lab 803.03(f). Fiesta Shows cannot
now benefit from its malfeasance by avoiding class certification
on this basis. Instead, it is well-established that where as here
an employer failed to keep adequate records, a class can “rely on
testimony from representative employees” to establish a wage or
overtime violation. Sec’y of Labor v. DeSisto, 929 F.2d 789, 792
(1st Cir. 1991) (citing Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680, 687 (1946)); see also Reich v. Gateway Press, Inc., 13
F.3d 685, 701 (3d Cir. 1994) (“Courts commonly allow
representative employees to prove violations with respect to all
employees.” (collecting cases)); Morgan v. Family Dollar Stores,
Inc., 551 F.3d 1233, 1279 (11th Cir. 2008) (“If anything, the Mt.
Clemens line of cases affirms the general rule that not all
employees have to testify to prove overtime violations.”). The
Court recognizes that Fiesta Shows will be able to respond with
“evidence of the precise amount of work performed or with
evidence to negative the reasonableness of the inference to be
drawn from the employee’s evidence.” DeSisto, 929 F.2d at 792
(quotation marks omitted). But if Fiesta Shows cannot present
this evidence, the Court will be able to award damages to each
employee, “even though the result may be only approximate.” Id.
(quotation marks omitted).
Next, Fiesta Shows has also raised a number of potential
defenses that are appropriate for class treatment. For example,
Fiesta Shows alleges that it used a pre-payment plan in which
15

employees worked fewer hours earlier in the season but were paid
the same flat weekly salary. These weekly payments in the early
part of the season were intended, Fiesta Shows says, to be an
advance payment of wages for future weeks when employees might
have to work overtime. Also, Fiesta Shows alleges that it
analyzed the “gang time” payroll at the end of each season to
determine whether any employees were underpaid. Every employee
received an extra lump sum payment, the company says, to
compensate for unpaid overtime or minimum wages. Finally, Fiesta
Shows alleges that it was exempt from paying overtime
requirements as a seasonal amusement park under Mass. Gen. Laws
c. 151, § 1A(20); NH. Rev. Stat. § 279:21(VIII). If these
defenses are meritorious, every class member’s claim would be
adversely affected.
Garcia has facially challenged the factual and legal basis
of these wage policies on behalf of the entire class. He argues
that Fiesta Shows never informed its employees that they were
receiving pre-payments earlier in the season as a credit for
future overtime. Nor did Fiesta Shows keep any running track
record of the advances or try to recoup them when employees left
in the middle of a season. In any event, Garcia argues that prepayment systems categorically fall short of Massachusetts
overtime requirements. Similarly, Garcia intends to prove that
Fiesta Shows’s alleged end-of-year payments were not overtime
compensation but rather discretionary bonuses. And even if they
were intended to serve as overtime compensation, he argues that
16

these overtime payments were not timely. Finally, Garcia argues
that the seasonal amusement park exemption does not apply to
Fiesta Shows because it operated more than 7 months, see N.H.
Rev. Stat. 279:21(VIII), and 150 days each year, see Mass. Gen.
Laws c. 151, § 1A(20).
Again, these factual and legal questions are present in the
claims of all class members. For all these reasons, the
commonality requirement is met here.
C. Typicality
Rule 23(a)(3) requires that “the claims or defenses of the
representative parties are typical of the claims or defenses of
the class.” “The commonality and typicality requirements of Rule
23(a) tend to merge. Both serve as guideposts for determining
whether under the particular circumstances maintenance of a class
action is economical and whether the named plaintiff’s claim and
the class claims are so interrelated that the interests of the
class members will be fairly and adequately protected in their
absence.” Dukes, 131 S. Ct. at 2251 n.5 (quotation marks
omitted). “Commonality looks at the relationship among the class
members generally, while typicality focuses on the relationship
between the proposed class representative and the rest of the
class.” George, 286 F.R.D. at 176. “The central inquiry in
determining whether a proposed class has ‘typicality’ is whether
the class representatives’ claims have the same essential
characteristics as the claims of the other members of the class.”

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Barry v. Moran, 2008 WL 7526753, at *11 (D. Mass. Apr. 7, 2008)
(quotation marks omitted). Typicality may be defeated “where the
class representatives are subject to unique defenses which
threaten to become the focus of the litigation.” In re Credit
Suisse AOL Sec. Litig., 253 F.R.D. 17, 23 (D. Mass. 2008). It may
also be defeated where class members have additional claims or
remedies that are unavailable to the class representative. See
Swanson v. Lord & Taylor LLC, 278 F.R.D. 36, 41 (D. Mass. 2011).
Garcia’s minimum wage and overtime claims are typical of the
claims he intends to bring on behalf of the class. As mentioned
above, both parties will be able to use the “gang time” payroll
system to establish the number of hours worked each week by the
class, Garcia included. Fiesta Shows will argue that the entire
class-including Garcia-is not entitled to overtime in the weeks
where the “gang time” payroll recorded fewer than 40 hours
worked. Meanwhile, Garcia will argue that the entire class
deserves overtime in the weeks where the “gang time” payroll
exceeded 40 hours. Garcia will also use representative testimony
to establish the number of hours he worked, and this number will
apply to the rest of the class. Additionally, Fiesta Shows has
several defenses that potentially defeat Garcia’s claims in the
same way that they defeat the class’s claims. Like the other
class members, Garcia received a flat weekly salary each week
that could be interpreted as a pre-payment of wages, and he
received end-of-season payments as well. In short, the contours
of Garcia’s claims are typical of the claims of other class
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members.
The Court recognizes that Garcia’s claims may not be
identical with those held by other class members. For example,
Fiesta Shows points out that Garcia–unlike others in the classwas injured for several weeks during the 2011 season and
continued to be paid despite doing no work. The company also
argues that Garcia’s motives and credibility are uniquely open to
attack. They intend to show that Garcia brought this lawsuit in
part because he wanted to work for Fiesta Shows in 2012 but was
not rehired, and he was also encouraged to file the lawsuit by a
non-profit organization.
But these minor differences are not sufficient to defeat
typicality. See In re Nuerontin Marketing and Sale Practices
Litig., 244 F.R.D. 89, 106 (D. Mass. 2007) (“Typicality, as with
commonality, does not require that all putative class members
share identical claims.”). More to the point, the Court does not
find that these factual differences will become a side show, or a
side fiesta. For starters, Garcia worked for Fiesta Shows during
both the 2010 and 2011 seasons, and so his wage and overtime
claims from 2010 are unaffected by his injury in 2011 and remain
typical of the claims held by other class members. Also, the
Court does not find that these particular challenges to Garcia’s
credibility other class members or make him atypical. Rather, the
focus of the case will remain on whether Fiesta Shows maintained
an adequate system of paying minimum wage and overtime
compensation during weeks when the class worked long hours. For
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these reasons, the Court is confident that Garcia’s claims are
sufficiently similar to the rest of the class to satisfy the
typicality requirement.
D. Adequacy
“The adequacy inquiry under Rule 23(a)(4) serves to uncover
conflicts of interest between named parties and the class they
seek to represent.” Amchem Products, Inc. v. Windsor, 521 U.S.
591, 623 (1997). The First Circuit has said that the adequacy
requirement has two parts. Andrews v. Bechtel Power Corp., 780
F.2d 124, 130 (1st Cir. 1985). “The moving party must show 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.” Id. Applying this standard, the Court finds that
both of these requirements are met.
First, the Court finds no conflicts of interest between
Garcia and his proposed class. Fiesta Shows suggests that there
is a conflict of interest because many putative class members
have expressed satisfaction with Fiesta Shows’s wage and hour
practices. But the First Circuit has stated that “an interest by
certain putative class members in maintaining the allegedly
unlawful policy is not a reason to deny class certification.”
Matamoros, 699 F.3d at 138. “Only conflicts that are fundamental
to the suit and that go to the heart of the litigation prevent a

20

plaintiff from meeting the Rule 23(a)(4) adequacy requirement.”
Id. (quoting 1 William B. Rubenstein, Newberg on Class Actions §
3:58 (5th ed. 2012)). Fiesta Shows has not identified any
conflicts of interest that will prevent Garcia from fully
pursuing the interests of the class.
Second, the Court also finds that Garcia’s counsel is
experienced and more than capable of proceeding with the
litigation. Fiesta Shows again points out that a number of class
members have refused to participate in this litigation, and one
former class representative asked Garcia’s counsel to dismiss her
from the case after reaching a settlement. Fiesta Shows also
cites to a number of cases denying conditional certification
under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201,
because of a lack of interest among the proposed class. See
Andrews, 780 F.2d at 131; O’Donnell v. Robert Half Int’l, Inc.,
429 F. Supp. 2d 246, 250-51 (D. Mass. 2006). This argument fails
to recognize, however, that Rule 23 class actions and FLSA class
actions are materially different. FLSA class actions require
potential plaintiffs to opt-in. See 29 U.S.C. § 216(b) (“No
employee shall be a party plaintiff to any such action unless he
gives his consent in writing to become such a party and such
consent is filed in the court in which such action is brought.”);
Yayo v. Museum of Fine Arts, 2014 WL 2895447, at *3 (D. Mass.
June 26, 2014). As a result, courts have recognized that it makes
no sense to grant conditional certification under the FLSA if no
putative class members are interested in joining the suit. See
21

Johnson v. VCG Holding Corp., 802 F. Supp. 2d 227, 237 (D. Me.
2011) (“[I]f those other, similarly situated persons were to
decline to opt in to the case, no purpose would have been served
by ‘certifying’ a collective-action ‘class’–the case ultimately
would involve no one other than the plaintiff.” (quotation marks
omitted)). Meanwhile, Rule 23 class actions are opt-out. See Fed.
R. Civ. P. 23(c)(2)(B)(v). Because of this key difference, the
Court is not aware of any cases placing an additional burden on
Rule 23 plaintiffs to demonstrate interest by putative class
members. That others have been hesitant to “step on up” to join
Garcia as a class representative is not a barrier to Rule 23
class certification.
III. RULE 23(b)(3) REQUIREMENTS
Because Garcia seeks to certify a class under Rule 23(b)(3),
he must also show that: (1) questions of law or fact common to
class members predominate over any questions affecting only
individual members (predominance); and (2) a class action is
superior to other available methods for fairly and efficiently
adjudicating the controversy (superiority). Fed. R. Civ. P.
23(b)(3). The Court finds that Garcia has satisfied these
requirements as well.
A. Predominance
The predominance inquiry is “far more demanding” than the
commonality requirement. In re New Motor Vehicles Canadian Export
Antitrust Litig., 522 F.3d 6, 20 (1st Cir. 2008) (quoting Amchem

22

Products, Inc. v. Windsor, 521 U.S. 591, 624 (1997)). “[A]
district court must formulate some prediction as to how specific
issues will play out in order to determine whether common or
individual issues predominate in a given case.” Waste Mgmt.
Holdings, Inc. v. Mowbray, 208 F.3d 288, 298 (1st Cir. 2000). A
need for individualized determination of affirmative defenses
should be considered in making the predominance inquiry. Id. at
295. Nevertheless, “[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.
The Court finds that the predominance requirement is
satisfied here. As mentioned above, Garcia has identified a
number of factual and legal issues that can be addressed on a
class-wide basis including: (1) whether the class worked over 40
hours during any given week; (2) the amount Fiesta Shows was
required to pay each week to satisfy the minimum wage; (3) the
factual and legal significance of Fiesta Shows’s alleged prepayment of wages; (4) the factual and legal significance of
Fiesta Shows’s end-of-year lump sum payments; and (5) whether
Fiesta Shows was a seasonal amusement park. These are important
and hotly contested issues in this case. The Court expects that
they will predominate over any individualized questions.
Granted, Fiesta Shows points out a number of individualized
determinations that will still need to be addressed. Most
relevant, the company points out that each individual employee
23

earned a different weekly salary. As a result, the Court
understands that establishing liability for minimum wage claims
will require a brief examination of each class member’s pay
stubs. But the Court does not find that determining each class
member’s weekly salary will be an arduous task, especially when
there is no dispute regarding how much each employee was paid on
a weekly basis and there is a presumptive number of hours worked
based on the “gang time” payroll.
Calculating the precise amount of damages owed to each class
member may also require some individualized inquiry. But this
task also does not stand in the way of class certification.
Courts have repeatedly held that “[w]here as here, common
questions predominate regarding liability, then courts generally
find the predominance requirement to be satisfied even if
individual damages issues remain.” Smilow, 323 F.3d at 40
(collecting cases). This is especially true because the Court has
other management tools at its disposal to conduct individual
damage proceedings. For example, the Court could decertify
Garcia’s class after liability issues have been resolved. See
Tardiff v. Knox Cnty., 365 F.3d 1, 7 (1st Cir. 2004) (“The Court
could enter a judgment of liability, leaving class members to
pursue damage claims in separate law suits.”). Alternatively, the
Court could appoint a magistrate judge or special master to
preside over individual damages proceedings. See Martins v. 3PD
Inc., 2014 WL 1271761, at *12 (D. Mass. Mar. 27, 2014) (“The
appointment of a special master is often a preferred method for
24

placing a dollar figure on individual damages where liability has
already been determined on a class-wide basis.”). In any event,
the Court may also be able to establish a presumptive level of
damages for each class member based on the “gang time” payroll
and the representative testimony of class members regarding the
number of hours worked by the class.
This course of action is consistent with the Supreme Court’s
recent decision in Comcast Corp. v. Behrend, ___ U.S. ___, 133 S.
Ct. 1426 (2013). There, the Court stated that the predominance
requirement might not be met where “questions of individual
damage calculations will inevitably overwhelm questions common to
the class.” Id. at 1433. Here, the method for calculating each
plaintiff’s damages will likely be mechanical, based on
plaintiff’s salary and common evidence about the typical number
of hours worked. The Court also finds that questions of
individual damage calculations will not inevitably overwhelm the
common questions here, for all the reasons mentioned above. See
Martins, 2014 WL 1271761, at 13 n.7 (“Following Comcast, courts
have continued to find class treatment appropriate even where
individual damages issues exist.” (collecting cases)); George v.
Nat’l Water Main Cleaning Co., 2014 WL 1004109, at *4 (D. Mass.
Mar. 17, 2014) (“Even in the wake of Comcast, the focus remains
on the predominance of common issues and answers upon the class
members and not the absence of any individualized damages
analysis.”).
Finally, Fiesta Shows points out that a substantial number
25

of class members signed agreements retroactively releasing their
wage and overtime claims for $100 in connection with signing
employment agreements for the 2014 season. These agreements also
include arbitration provisions that require adjudication of any
employment-related disputes on an individual, non-class basis.
The Court has too limited a record to determine whether the
factual and legal significance of these agreements are common
questions that can be resolved for the class all at once. It may
also create a conflict of interest within the class. Class
members like Garcia who did not sign the agreement, for example,
may view the enforceability of the agreement somewhat differently
than those who settled with Fiesta Shows and received
consideration for releasing their claims. As a result, at this
stage of the litigation, the Court will not include in the class
those who signed a release of their claims.
B. Superiority
Finally, a Rule 23(b)(3) class should only be certified
where “a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy.” A Rule
23(b)(3) class action is particularly superior where class
treatment can vindicate the claims of “groups of people whose
individual claims would be too small to warrant litigation.”
Smilow, 323 F.3d at 41; see also Deposit Guar. Nat’l Bank v.
Roper, 445 U.S. 326, 338 n.9 (“A significant benefit to claimants
who choose to litigate their individual claims in a class-action

26

context is the prospect of reducing their costs of litigation,
particularly attorney’s fees, by allocating such costs among all
members of the class who benefit from any recovery.”). “[A] class
action has to be unwieldy indeed before it can be pronounced an
inferior alternative–no matter how massive the fraud or other
wrongdoing that will go unpunished if class treatment is
denied–to not litigation at all.” In re McKesson Gov’t Entities
Average Wholesale Price Litig., 767 F. Supp. 2d 263, 271 (D. Mass
2011) (quoting Carnegie v. Household Int’l, Inc., 376 F.3d 656,
661 (7th Cir. 2004)).
For all of the reasons previously mentioned, the Court also
finds that a class action here is the superior method for
adjudicating this controversy. The Court does not find any
significant management issues in proceeding as a class action,
and the Court is also not aware of any other pending related
litigation. Beyond that, the Court finds that a class action
lawsuit would be a better option than multiple individual
actions, coordinated individual actions, consolidated individual
actions, test cases, or any of the other known options. In
particular, the class is composed of many individual claims that
would likely be too small to warrant litigation. Many of the
class members are low-income, uneducated, and lack the resources
to litigate their own claims. Other class members also live
outside the United States and come each year only during the
carnival season, which would make litigation difficult for them.
The superiority requirement is easily established here.
27

IV. CERTIFYING THE CLASS
Federal Rule of Civil Procedure 23(c)(1)(B) requires the
class certification order to “define the class and the class
claims, issues or defenses” and must appoint class counsel under
Fed. R. Civ. P. 23(g). The Court defines the class as follows:
All minimum wage and overtime-eligible workers employed by
Fiesta Shows beginning in 2010. The class does not include any
workers who signed the “2014 Employment Job Offer & Contract”
or any similar document releasing their claims specifically
related to this lawsuit.
The Court appoints Shannon Liss-Riordan and Matthew Thomson of
Lichten & Liss-Riordan, P.C. as class counsel.6
V. ORDER
Plaintiff’s Motion for Class Certification (Docket No. 166)
is ALLOWED. Defendants’ Motion to Deny Class Certification
(Docket No. 157) is DENIED.

/s/ PATTI B. SARIS
PATTI B. SARIS
United States District Judge

6

At the hearing, Fiesta Shows mentioned in passing that the
company changed some of its wage and record-keeping policies
beginning in 2014. Fiesta Shows has not yet produced enough
evidence to establish that all claims from the 2014 season should
be excluded.
28