Baouch v. Werner Enterprises, Inc. et al

Filing 112

SECOND MEMORANDUM AND ORDER NUNC PRO TUNC- Certification for class action on behalf of all drivers employed by the defendants and who were enrolled in the defendants' per diem program at any time since November 27, 2008, under Rule 23(b)(2) and (b)(3) is granted. Certification for class action on behalf of all drivers employed by the defendants and who were enrolled in the defendants' per diem program at any time since January 6, 2011, under the Fair Labor Standards Act is granted. The plaintiffs' motion for collective action certification under Rule 23(b)(2) and (b)(3) is granted. The Court appoints Justin Swidler and Richard Swartz, of Swartz Swidler L.L.C., as class counsel. Yassine Baouch, Scott Larrow, Steve Neel y, Jason Gunn, Jose Figueroa, Lance Edwards, Mark Sohmer, and Joseph Horton are appointed as representative plaintiffs. The Court's previous memorandum and order (FilingNo. 109 and memorandum and order nunc pro tunc (Filing No. 111 )shall be stricken as incomplete. Ordered by Senior Judge Lyle E. Strom. (MKR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
YASSINE BAOUCH, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
WERNER ENTERPRISES, INC.,
)
d/b/a WERNER TRUCKING, and
)
DRIVERS MANAGEMENT, LLC,
)
)
Defendants.
)
______________________________)

8:12CV408

SECOND
MEMORANDUM AND ORDER
NUNC PRO TUNC

This matter is before the Court on plaintiffs’ motion
for conditional collective action certification under the Fair
Labor Standards Act (“FLSA”) and certification of state law
claims under Rule 23 (Filing No. 70).

The plaintiffs filed a

brief (Filing No. 71) and index of evidence (Filing No. 72) in
support of their motion.

Defendants have filed a brief (Filing

No. 91) and indices of evidence (Filing Nos. 92 and 93) in
opposition of the motion.

Plaintiffs filed a reply brief (Filing

No. 99) and index of evidence (Filing No. 100).

The motion will

be granted.
Defendants are Werner Enterprises, Inc. and Drivers
Management, L.L.C. (collectively “Werner”).
company.

Werner is a trucking

Plaintiffs are current and former employees of Werner.

The plaintiffs allege Werner has violated the FLSA and various
state law including the Nebraska Wage and Hour Act (“NWHA”).

Essentially, the plaintiffs claim that Werner allowed its
employees to opt in to a “per diem” program which circumvented
minimum wage regulations.

The per diem program offers Werner’s

employees tax-free reimbursement for each day its drivers spend
away from home.

Importantly, Werner deducts this tax-free pay

from the drivers’ wages.
I.

The FLSA
The FLSA authorizes claims “by any one or more

employees for and in [sic] behalf of himself or themselves and
other employees similarly situated.”

29 U.S.C. § 216(b).

Neither the FLSA itself nor the Eighth Circuit have defined
“similarly situated.”

Petrone v. Werner Enters., Inc.,

8:12CV307, 2012 WL 4848900, at *2 (D. Neb. Oct. 11, 2012) (citing
Schleipfer v. Mitek Corp., 1:06CV109 CDP, 2007 WL 2485007, *3
(E.D. Mo. Aug. 29, 2007)).

However, the practice of district

courts in the circuit is to apply a two-step approach in making a
determination.

Id. (citing Littlefield v. Dealer Warranty

Servs., LLC, 679 F.Supp.2d 1014, 1016-17).
First, early in the litigation process, the class is
conditionally certified upon plaintiffs’ showing that the
proposed class is similarly situated.
burden at [this] stage is not onerous.”

Id.
Id.

“The plaintiff’s
Conditional

certification allows plaintiffs to move forward with
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identification of proposed class members and notification of the
opportunity to opt in.

Once, the proposed class members have

been identified and have voiced their consent to participation
and discovery has closed, defendants have the opportunity to move
for decertification of the class.

Id.

At that point, “the court

must determine whether the plaintiffs are, in fact, similarly
situated.”

Id.
The plaintiffs have provided evidence of Werner’s per

diem pay program and that this program provided less than the
minimum hourly wage for an employee.

This evidence illustrates

that the putative class members were victims of a single
decision, policy, or plan.

See Schleipfer, 1:06CV109 CDP, 2007

WL 2485007, *3 (citing Davis v. Novastar Mortg., Inc., 408 F.
Supp. 2d 811, 815 (W.D. Mo. 2005)).

Different members of the

class may receive different damage awards, but this fact is
insufficient to defeat the plaintiffs’ certification at this
stage.
II.

Rule 23(a)
For purposes of certifying the plaintiffs’ class for

its non-FLSA claims, the Court proceeds to Rule 23 analysis.
Plaintiffs have the burden to show that the class should be
certified and the requirements of Rule 23 are met.
Watt, 40 F.3d 255, 258 (8th Cir. 1994).
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Coleman v.

The plaintiffs must

prove each element of Rule 23.

Those elements are (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.
A.

Fed. R. Civ. P. 26(a)(1)-(4).

Numerosity
A class must be so numerous that joinder is

impracticable.
difficult.

Joinder need not be impossible; it need only be

See Evans v. Am. Credit Sys., Inc., 222 F.R.D. 388,

393 (D. Neb. 2004).

Though no specific number is required to

reach numerosity, as little as forty has qualified.

Harris v. D.

Scott Carruthers & Assoc., 270 F.R.D. 446, 450 (D. Neb. 2010).
Since November 27, 2007, 63,609 Werner employees have enrolled
into the per diem plan in question.

This figure is clearly too

large for joinder to be practicable.

The class is sufficiently

numerous.
B.

Commonality
The questions of law or fact common to class members

must predominate over questions affecting individual members so
that the Court concludes “that a class action is superior to

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other available methods for fairly and efficiently adjudicating
the controversy."

Avritt v. Reliastar Life Ins. Co., 615 F.3d

1023, 1029 (8th Cir. 2010).

“[A] proponent of certification must

satisfy the commonality requirement by showing that a class-wide
proceeding will ‘generate common answers apt to drive the
resolution of the litigation.’”

Bennet v. Nucor Corp., 656 F.3d

802, 814 (8th Cir. 2011).
Several questions of fact and law present themselves in
this class.

Werner reduced the pay of those who participated in

the per diem program by its per diem reimbursement.

Whether this

method of payment is contrary to law is a common question to all
those who participated in the per diem program and the common
answer will be dispositive to the participants’ issues.
C.

Typicality
Typicality requires the named plaintiffs to share

similar grievances with the putative class members.

“Factual

variations in the individual claims will not normally preclude
class certification if the claim arises from the same event or
course of conduct as the class claims, and gives rise to the same
legal or remedial theory.”

Alpern v. UtiliCorp United, 84 F.3d

1525, 1540 (8th Cir. 1996).
Here, the named plaintiffs offer certifications which
state their interests are similar to other members of the
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putative class.

Werner has engaged in a uniform policy of

reducing wages.

The named plaintiffs share the grievances of the

putative class.
D.

Adequacy
The Court must also determine whether the named

plaintiffs “will fairly and adequately protect the interests of
the class.”

Fed. R. Civ. P. 23(a)(4).

“The district court must

decide whether Rule 23(a)(4) is satisfied through balancing the
convenience of maintaining a class action and the need to
guarantee adequate representation to the class members."

Rattray

v. Woodbury County, 614 F.3d 831, 835 (8th Cir. 2010).
Ultimately, “the point of the adequacy inquiry is ‘to uncover
conflicts of interest between named parties and the class they
seek to represent.’”

Smith v. Bayer Corp., 593 F.3d 716 (8th

Cir. 2010), quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
625-26 (1997).
The adequacy of the named plaintiffs’ representation is
clear.

Their interests in this case are indistinguishable from

the putative class.

There are no conflicts of interest.

Therefore, the named plaintiffs will adequately represent the
class.
III. Rule 23(b)(3)

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Next, the plaintiffs move for certification under
Federal Rule of Civil Procedure 23(b)(3).

Under this rule, the

Court determines whether 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.”

Fed. R. Civ. P. 23(b)(3).

The Court considers the

“class members' interests in individually controlling the
prosecution” of separate actions; the “litigation concerning the
controversy already begun by or against class members;” the
desirability of concentrating the litigation in Nebraska; and
likely difficulties.

Id.

Here, as stated previously, the predominate issue of
this action is whether Werner’s per diem program violated various
Nebraska minimum pay laws by offsetting reimbursements from
employees’ pay.

The program was sufficiently uniform in

application and predominates over the individual types of
employees that participated in the program or their individual
calculation of damages.
In addition, the Court finds the plaintiffs have
satisfied the requirements of this rule.

The individual

interests vary by estimated damages, but nothing illustrates a
divergence of interest.

No individual actions are pending.
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Judicial efficiency necessitates class action over individual
actions.

Finally, the uniformity of Werner’s policies heavily

outweighs the potential difficulties of class litigation.
IV.

Rule 23(b)(2)
The plaintiffs seek declaratory relief and injunction

against Werner to prohibit its program of reducing pay.

As

stated above and throughout, the putative class was subject to a
uniform policy that is being challenged as unlawful.
v. St. Jude Med. Inc., 425 F.3d 1116 (8th Cir. 2005).
finds that the class is sufficiently cohesive.

See Grovatt
The Court

Werner raises the

issue of whether the plaintiffs’ “primary goal” is injunctive
relief.

The monetary and injunctive prayers for relief are

susceptible to common resolution and, therefore, the Court will
grant plaintiffs’ motion for certification under Rule 23(b)(2).
See Avritt, 615 F.3d at 1036-37.
V.

Counsel
In the light of the work it has done, experience in

class actions, knowledge of the law, and committed resources, the
Court finds that Swartz Swidler L.L.C., Justin Swidler, and
Richard Swartz should be appointed to represent the class
pursuant to Rule 23(g).

Accordingly,

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IT IS ORDERED:
1) Certification for class action on behalf of all
drivers employed by the defendants and who were enrolled in the
defendants’ per diem program at any time since November 27, 2008,
under Rule 23(b)(2) and (b)(3) is granted.
2) Certification for class action on behalf of all
drivers employed by the defendants and who were enrolled in the
defendants’ per diem program at any time since January 6, 2011,
under the Fair Labor Standards Act is granted.
3) The plaintiffs’ motion for collective action
certification under Rule 23(b)(2) and (b)(3) is granted.
4) The Court appoints Justin Swidler and Richard
Swartz, of Swartz Swidler L.L.C., as class counsel.
5) Yassine Baouch, Scott Larrow, Steve Neely, Jason
Gunn, Jose Figueroa, Lance Edwards, Mark Sohmer, and Joseph
Horton are appointed as representative plaintiffs.
6) The Court’s previous memorandum and order (Filing
No. 109 and memorandum and order nunc pro tunc (Filing No. 111)
shall be stricken as incomplete.
DATED this 12th day of May, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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