ESPINAL v. BOB'S DISCOUNT FURNITURE, LLC et al

Filing 165

OPINION. Signed by Judge John Michael Vazquez on 1/26/2023. (jd, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

OMAR A. ESPINAL, FREDY O.
CARBAJAL, ARLEN Y. MARTINEZ,
OSCAR RENE CALDERON ROMERO and
WELLINGTON TORRES, on behalf of
themselves and all other similarly situated
persons,

Civil Action No. 17-02854
OPINION

Plaintiffs,
v.
BOB’S DISCOUNT FURNITURE, LLC and
XPO LAST MILE, INC.,
Defendants.
John Michael Vazquez, U.S.D.J.
This putative class action arises from allegations that Defendants failed to pay overtime to
Plaintiffs. Plaintiffs Omar A. Espinal, Fredy O. Carbajal, Arlen Y. Martinez, Oscar Rene Calderon
Romero, and Wellington Torres, on behalf of themselves and all others similarly situated, assert
claims against Defendants Bob’s Discount Furniture (“Bob’s”) and XPO Last Mile, Inc. (“XPO”)
for violations of the New Jersey Wage and Hour Law (“NJWHL”), N.J. Stat. Ann. § 34:11-56a, et
seq.; the New Jersey Wage Payment Law (“NJWPL”), N.J. Stat. Ann. § 34:11-4.1, et seq.; and
unjust enrichment.

D.E. 122.

Presently pending is Plaintiffs’ renewed motion for class

certification on their NJWHL claim. D.E. 155. Plaintiffs seek certification of the following class:
All individuals that were based out of Defendants’ Edison and
Carteret, New Jersey warehouses that performed truck driving
and/or helper functions for the Defendants from April 26, 2015
through to January 2017 out of the Edison Facility and from May 1,

2017 through to the present out of the Carteret Facility, who did not
have direct contracts with either Defendant, and who worked more
than forty hours per week performing deliveries for Defendants.
In addition to class certification, Plaintiffs also seek appointment of the named Plaintiffs as Class
Representatives and appointment of Ravi Sattiraju, Esq. of Sattiraju & Tharney, LLP as Class
Counsel pursuant to Fed. R. Civ. P. 23(g). D.E. 155-24. The Court considered the parties’
submissions 1 and decided the motion without oral argument pursuant to Federal Rule of Civil
Procedure 78(b) and Local Civil Rule 78.1(b). For the following reasons, Plaintiffs’ motion is
GRANTED.
I.

BACKGROUND 2
Defendant Bob’s is a limited liability company that sells furniture. TAC ¶¶ 19-20.

Defendant XPO is a “third-party provider of end-to-end goods management and logistics services
for companies such as Bob’s.” Id. ¶ 22. Named Plaintiffs are five individuals who allegedly
worked as drivers and helpers for Defendants for varying periods between May 2012 and June
2018. Id. ¶¶ 14-18, 28.
Plaintiffs allege that Bob’s and XPO used a distribution facility in Edison, New Jersey,
which moved to Carteret, New Jersey in or around January 2017 (collectively, the “Facilities”).
Id. ¶ 23. At the Facilities, XPO provided management and logistic services to Bob’s. Id. Drivers
delivered goods from the Facilities to Bob’s customers, and helpers traveled with drivers to assist
with deliveries. Id. ¶ 25.

1

The submissions consist of Plaintiffs’ motion, D.E. 155 (“Br.”); Defendants’ joint opposition,
D.E. 158 (“Opp.”); and Plaintiffs’ reply, D.E. 161 (“Reply”).
2

The facts are derived from Plaintiffs’ Third Amended Complaint, D.E. 122 (“TAC”); Defendant
XPO’s Answer to the TAC, D.E. 123 (“XPO Ans.”); and Defendant Bob’s Answer to the TAC,
D.E. 124 (“Bob’s Ans.”). The facts were previously set forth in the Court’s prior opinion
addressing Plaintiffs’ motions for class certification, D.E. 139, and are incorporated herein.
2

The parties contest the nature of their relationship—specifically, they disagree as to
whether Bob’s and XPO were employers of Plaintiffs and the putative class members. According
to Plaintiffs, Bob’s and XPO were their employers, as defined by the NJWHL and NJWPL. Id.
¶¶ 26-27. Plaintiffs allege that Bob’s entered into business relationships with XPO “to conceal the
fact that it had an employer-employee relationship with the Plaintiffs,” which was evidenced by
the control Bob’s exerted over “the manner and means in which the Plaintiffs and all Class
Members performed their duties.” Id. ¶¶ 29-30. Plaintiffs also allege that XPO employed them as
evidenced by XPO’s control over their work. Id. ¶ 31. Specifically, Plaintiffs indicate that they
“reported to work at the [] Facilities for Bob’s and/or XPO [], took instruction from Bob’s and
XPO [] employees, communicated with Bob’s and XPO [] employees while delivering their routes
during the workday and handled paperwork related to or pertaining to Bob’s and/or XPO,” and
that both Bob’s and XPO had the authority to reprimand and terminate Plaintiffs. Id. ¶¶ 30-31.
Defendants deny that they were Plaintiffs’ employers. Bob’s Ans. ¶ 26; XPO Ans. ¶ 27.
According to Bob’s, it contracted with XPO to arrange for delivery services, XPO tendered the
freight to motor carriers (the “Carriers”), and the Carriers employed or otherwise contracted with
drivers and helpers to perform the deliveries. Bob’s Ans. ¶ 25. XPO similarly claims that it
contracted with the Carriers to perform delivery services for Bob’s and that the Carriers employed
or otherwise contracted with drivers and helpers to perform these deliveries. XPO Ans. ¶¶ 23, 25,
32. Defendants note that Plaintiffs’ previous pleadings identified the Carriers with whom XPO
contracted—ABC Corps. and Jane and John Does—as Plaintiffs’ employers or joint employers.
D.E. 1 ¶¶ 15, 21; D.E. 64 ¶¶ 20, 26; D.E. 74 ¶¶ 18, 24. The Third Amended Complaint does not
name ABC Corps. or Jane and John Does as Defendants. D.E. 122.

3

Plaintiffs assert that they are not independent contractors and are not exempt under the
NJWHL. Id. ¶¶ 33-34. Plaintiffs further allege that they “routinely worked far in excess of forty
(40) hours per week for Defendants and were not paid 1.5 times their hourly rate or 1.5 times the
minimum wage rate” for the excess hours. Id. ¶ 35. As a result, Plaintiffs argue, they were denied
legally required compensation and/or overtime pay, and the wages they were paid included
“various deductions, charges and/or expenses” that did not benefit them, such as “the cost of
liability and workers’ compensation insurance [and] various performance-based penalties and
lease payments.” Id. ¶¶ 36-37. Defendants deny these allegations. XPO Ans. ¶¶ 33-37; Bob’s
Ans. ¶¶ 33-37. Defendants further note that because Plaintiffs’ compensation was handled by the
Carriers, Defendants lack sufficient knowledge as to whether Plaintiffs were paid overtime pay
and Plaintiffs’ payment deductions. XPO Ans. ¶¶ 35, 37; Bob’s Ans. ¶¶ 35, 37.
On April 26, 2017, Plaintiff Espinal filed a class action Complaint, alleging three counts:
(1) violations of the NJWPL; (2) violations of the NJWHL; and (3) unjust enrichment. D.E. 1. On
December 10, 2018, Plaintiff filed a First Amended Complaint that added five named Plaintiffs.
D.E. 64. XPO and Bob’s filed Answers on December 21, 2018. D.E. 65, 66. Plaintiffs filed a
Second Amended Complaint on June 3, 2019 which removed one named Plaintiff and adjusted the
class definition. D.E. 74. Defendants XPO and Bob’s filed their Answers on June 17, 2019. D.E.
75, 76. The parties then commenced class-related discovery, which closed on January 31, 2020.
D.E. 50, 83. Plaintiffs filed the Third Amended Complaint on January 21, 2021, which is the
operative pleading. D.E. 122. XPO and Bob’s filed their Answers on February 4, 2021. D.E. 123,
124.
On October 14, 2020, the Court issued an opinion and order denying Plaintiffs’ first motion
for class certification without prejudice. D.E. 100, 101. The Court found that Plaintiffs had

4

adequately established the four requirements of Rule 23(a)—numerosity, commonality, typicality,
and adequacy. D.E. 100. The Court also found that Plaintiffs had satisfied the predominance and
superiority requirements of Rule 23(b). Id. The Court concluded, however, that Plaintiffs had not
met the ascertainability requirement because despite “demonstrat[ing] methods to satisfy the
ascertainability requirement,” Plaintiffs failed to “provide[] any evidence of the actual records or
data so that their stated methods can actually be employed.” Id. at 22. Specifically, the Court
noted that delivery manifests and/or customer feedback data could be used “to prove which drivers
and helpers worked on any given day,” but this data was absent from the record. Id. The Court
also observed that “Plaintiffs may have ways to obtain the necessary data to show that the class
can be ascertained in an administratively feasible way,” including potentially subpoenaing the
Carriers for records showing employee names as well as days and hours worked. Id. The Court
found that, “if neither Defendants nor the Carriers have such records, Plaintiffs can meet their
burdens of proof by ‘produc[ing] sufficient evidence to show the amount and extent of that work
as a matter of just and reasonable inference.’” Id. (quoting Hargrove v. Sleepy’s LLC, 974 F.3d
467, 470 (3d Cir. 2020) (alteration in original)).

Because Plaintiffs had not satisfied the

ascertainability requirement, the Court denied the motion for class certification without prejudice.
Plaintiffs renewed their motion for class certification, which the Court again denied without
prejudice. D.E. 139, 140. The Court, pursuant to its “inherent authority to redefine a proposed
class,” Portillo v. National Freight, Inc., 336 F.R.D. 85, 92 (D.N.J. 2020), modified the class
definition “to limit the putative class to individuals who worked more than 40 hours per week
during the class period[.]” D.E. 139 at 13. The proposed class definition above reflects the
definition set forth by the Court. Id. The Court then noted that “[t]he ascertainability inquiry is
two-fold, requiring a plaintiff to show that: (1) the class is ‘defined with reference to objective

5

criteria’; and (2) there is ‘a reliable and administratively feasible mechanism for determining
whether putative class members fall within the class definition.’” Id. (citing Byrd v. Aaron’s Inc.,
784 F.3d 154, 163 (3d Cir. 2015), as amended (Apr. 28, 2015)). While the new proposed class
met the “objective criteria” requirement, Plaintiff had not “met their burden of proving, by a
preponderance of the evidence, that there is a reliable and administratively feasible mechanism for
determining class membership.” Id. at 21 (citing City Select Auto Sales Inc. v. BMW Bank of N.
Am. Inc., 867 F.3d 434, 441 (3d Cir. 2017)).
Before the present motion was filed, Magistrate Judge James B. Clark, III ordered certain
class-based discovery. D.E. 144, 153. The parties were informed that there would be “no further
class-based discovery.” Id. Plaintiffs then filed the present motion for class certification, which
is limited to the only remaining issue: ascertainability. D.E. 155. In support of the present motion,
Plaintiffs submit the following documents to demonstrate that the proposed class is ascertainable:
(1)

Excerpts from the depositions of Carmen Diaz (D.E. 155-3), Roy Low
(XPO’s corporate representative) (D.E. 155-4, 155-12, 161-6), Garrett
Bonsaint (Bob’s corporate representative) (D.E. 155-5, 155-6, 155-9, 1617), Andrew Solano (D.E. 155-10), Issani Ballard (D.E. 155-14), Gerard
Condon (XPO’s corporate representative) (D.E. 155-15), Wellington Torres
(D.E. 155-16, 161-12), Arlen Y. Martinez (D.E. 155-17, 161-10), Fredy O.
Carbajal Flores (D.E. 155-18, 161-9), Oscar R. Calderon Romero (D.E.
155-19, 161-11), Omar. A. Espinal (D.E. 155-20, 161-8), and James Boles
(D.E. 155-21);

(2)

An email from Bob’s counsel to Plaintiffs’ counsel (D.E. 155-7);

(3)

Representative sample spreadsheets containing DispatchTrack data (D.E.
155-8) and SAP data (D.E. 155-11) produced by Bob’s;

(4)

Documents produced by XPO reflecting Contract Logix data (D.E. 155-13);

(5)

Subpoenas issued by XPO to the Carriers (D.E. 161-3, 161-4);

(6)

A “Report of Governor Murphy’s
Misclassification” (D.E. 161-5).

6

Task

Force

on

Employee

II.

LEGAL STANDARDS
A. New Jersey Wage and Hour Law
Plaintiffs seek class certification only on their NJWHL claim. The NJWHL “establishes

not only a minimum wage but also an overtime rate for each hour of work in excess of forty hours
in any week for certain employees. It does not prescribe the minimum wage or overtime rate
payable to independent contractors.” Hargrove v. Sleepy’s, LLC, 106 A.3d 449, 458 (N.J. 2015)
(internal citation omitted). Under the NJWHL, an “employee” is defined as “any individual
employed by an employer.” N.J.S.A. § 34:11-56a1(h). The law defines an “employer” as “any
individual, partnership, association, corporation, and the State and any county, municipality, or
school district in the State, or any agency, authority, department, bureau, or instrumentality thereof,
or any person or group of persons acting directly or indirectly in the interest of an employer in
relation to an employee.” N.J.S.A. § 34:11-56a1(g).
B. Federal Rule of Civil Procedure 23
Federal Rule of Civil Procedure 23 governs class actions. Marcus v. BMW of N. Am., LLC,
687 F.3d 583, 590 (3d Cir. 2012). A renewed motion for class certification should be treated “like
any other for class certification” under “the usual Rule 23 standard.” Hargrove, 974 F.3d at 476
(internal quotation omitted). “[E]very putative class action must satisfy the four requirements of
Rule 23(a) and the requirements of either Rule 23(b)(1), (2), or (3).” Marcus, 687 F.3d at 590
(citing Fed. R. Civ. P. 23(a)-(b)). As noted, in its previous opinions, D.E. 100, 139, the Court
ruled on the four requirements of Rule 23(a) as well as predominance and superiority under Rule
23(b)(3).
In addition to the Rule 23(a) and Rule 23(b)(3) analysis, courts must “clearly define[] the
parameters of the class and the claims to be given class treatment,” and find that the class is

7

“objectively ascertainable.” Marcus, 687 F.3d at 591. “A plaintiff seeking certification of a Rule
23(b)(3) class must prove by a preponderance of the evidence that the class is ascertainable.” Byrd,
784 F.3d at 163.
Pursuant to Rule 23(c)(1)(A), a court “must determine by order whether to certify the action
as a class action.” Fed. R. Civ. P. 23(c)(1)(A). The decision to certify a class or classes is left to
the discretion of the court. In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 310 (3d Cir.
2008), as amended (Jan. 16, 2009). “[T]he requirements set out in Rule 23 are not mere pleading
rules.” Marcus, 687 F.3d at 591 (quoting Hydrogen Peroxide, 552 F.3d at 316). “The party
seeking certification bears the burden of establishing each element of Rule 23 by a preponderance
of the evidence.” Id. “A party’s assurance to the court that it intends or plans to meet the
requirements is insufficient.” Hydrogen Peroxide, 552 F.3d at 318.
The Third Circuit emphasizes that “‘[a]ctual, not presumed[,] conformance’ with Rule 23
requirements is essential.” Marcus, 687 F.3d at 591 (alterations in original) (quoting Hydrogen
Peroxide, 552 F.3d at 326). “To determine whether there is actual conformance with Rule 23, a
district court must conduct a ‘rigorous analysis’ of the evidence and arguments put forth.” Id.
(citation omitted). This “rigorous analysis” requires a district court to “‘resolve all factual or legal
disputes relevant to class certification, even if they overlap with the merits—including disputes
touching on elements of the cause of action.’” Id. (quoting Hydrogen Peroxide, 552 F.3d at 307).
Therefore, a district court “may ‘delve beyond the pleadings to determine whether the
requirements for class certification are satisfied.’” Hydrogen Peroxide, 552 F.3d at 320 (quoting
Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 167 (3d Cir. 2001)).
III.

ANALYSIS
As noted above, “[t]he ascertainability inquiry is two-fold, requiring a plaintiff to show

that: (1) the class is ‘defined with reference to objective criteria’; and (2) there is ‘a reliable and
8

administratively feasible mechanism for determining whether putative class members fall within
the class definition.’” Byrd, 784 F.3d at 163 (quoting Hayes v. Wal-Mart Stores, Inc., 725 F.3d
349, 355 (3d Cir. 2013)). A plaintiff need not be able to identify all class members at class
certification; rather, “a plaintiff need only show that class members can be identified.” Id.
(emphasis in original) (internal quotation omitted). Moreover, the “[p]laintiff need not, at the class
certification stage, demonstrate that a single record, or set of records, conclusively establishes class
membership.” City Select, 867 F.3d at 441 (emphasis added) (citing Byrd, 784 F.3d at 163). If,
however, “class members are impossible to identify without extensive and individualized factfinding or ‘mini-trials,’ then a class action is inappropriate.” Marcus, 687 F.3d at 593. “As with
all of the Rule 23 requirements, a court must rigorously analyze the proposed class to determine
how the class is to be ascertained.” Afzal v. BMW of N. Am., LLC, No. 15-8009, 2020 WL 2786926,
at *8 (D.N.J. May 29, 2020) (quoting Carrera v. Bayer Corp., 727 F.3d 300, 307 (3d Cir. 2013)).
Ascertainability fulfills three objectives.

First, ascertainability “eliminates serious

administrative burdens that are incongruous with the efficiencies expected in a class action by
insisting on the easy identification of class members.” Marcus, 687 F.3d at 593 (citation omitted).
Second, “it protects absent class members by facilitating the ‘best notice practicable’” in a Rule
23(b)(3) action. Id. (citation omitted). Finally, “it protects defendants by ensuring that those
persons who will be bound by the final judgment are clearly identifiable.” Id. (citation omitted).
In its previous Opinion, the Court found that the first prong of ascertainability was met.3
D.E. 139 at 15. Thus, the only remaining hurdle to class certification is the second prong, which

3

Defendants now argue that “the class is not defined with reference to objective criteria.” Opp. at
16-18. For the reasons set forth in the Court’s prior Opinion, this argument is rejected. D.E. 139
at 14-15.
9

requires Plaintiffs to prove by a preponderance of the evidence that “there is ‘a reliable and
administratively feasible mechanism for determining whether putative class members fall within
the class definition.’” Byrd, 784 F.3d at 163 (quoting Hayes, 725 F.3d at 355). The parties’ dispute
hinges on the class definition’s forty-hour requirement—i.e., whether Plaintiffs have demonstrated
that there is an objective and administratively feasible method of determining which employees
worked more than forty hours in a workweek during the class period.
Plaintiffs note, and Bob’s corporate representative agrees, that data maintained by
Defendants in two programs 4—Road Net and DispatchTrack—shows the time that drivers
recorded leaving the Facility to begin their route, and the time at which they recorded returning to
the Facility. Br. at 12; D.E. 155-6 176:16-25, 181:6-16. Plaintiffs also claim that SAP data can
be used to identify the helper who accompanied the driver for each delivery route. Br. at 13-14.
The final data source, Contract Logix, can be used to determine the names and other identifying
information of each driver and helper identified preliminarily through Road Net, DispatchTrack,
and SAP. Br. 15-16; D.E. 155-13.
Plaintiffs point out that the data mentioned above does not encompass all work performed
by drivers and helpers. Br. at 16. Plaintiffs claim that drivers and helpers “arrived at Defendants’
facilities and performed a substantial amount of work prior to leaving for their deliveries,” and
“performed work after returning from their deliveries but before leaving Defendants’ facilities for
the night.” Id. at 17-18. Defendants’ corporate representatives and employees agree that drivers
and helpers worked both before leaving for their route and after returning from their route. See,
e.g., D.E. 155-14 at 27:7-9; 155-10 at 41:1-5; 155-15 at 65:2-23, 66:22-24; 155-21 at 21:19-24;

4

The Court notes that the need to “cross-reference . . . voluminous data from multiple sources”
does not prevent a finding of ascertainability. Kelly v. RealPage Inc., 47 F.4th 202, 224 (3d Cir.
2022).
10

155-14 at 81:21-82:2. Because the time before leaving the facility for a route and after returning
to the facility from a route are not captured by the data sources noted above, Plaintiffs rely solely
on record testimony from Defendants’ employees and corporate representatives, and the named
Plaintiffs to estimate these additional hours.
Defendants argue that the class is not ascertainable because “the records consulted are
unreliable, uncorroborated, and their proposed method does not avoid the need to conduct minitrials and individual fact-finding to determine who worked when and for how long.” Opp. at 18.
More specifically, Defendants first argue that Plaintiffs’ evidence does not demonstrate what
constituted the Plaintiffs’ “workweek.” Opp. at 19. New Jersey law states that “[o]vertime . . .
pay shall be computed on the basis of each workweek standing alone.” N.J.A.C. § 12:56-6.2(a).
An employee is entitled to overtime pay “for each hour of working time in excess of 40 hours in
any workweek.” N.J.A.C. § 12:56-6.4(a). New Jersey law further states that “[a] workweek shall
be a regularly recurring period of 168 hours in the form of seven consecutive 24-hour periods,”
that “[the] workweek need not be the same as the calendar week and may begin any day of the
week and any hour of the day,” and that “[t]he workweek shall be designated to the employee in
advance.” N.J.A.C. § 12:56-5.4(a)-(c). Because “there is no evidence in the record concerning
what the 59 Carriers considered to be the applicable workweek for their delivery teams,”
Defendants argue that “Plaintiffs have not and cannot establish a proper method for determining
which of the Carrier’s delivery teams worked more than 40 hours in a workweek[.]” Opp. at 20.
Defendants place blame for the failure to define the workweek on the Carriers, who they
claim are Plaintiffs’ true employers. Bob’s Ans. ¶ 25; XPO Ans. ¶¶ 25, 32. Plaintiffs, however,
argue that subpoenas to the Carriers “did not produce any documents in which a workweek was

11

formally defined under the NJWHL” and that Defendants should not be allowed to benefit from
their own failure to define the workweek as required by law. Reply at 14 n.5 & 14-15.
The Third Circuit has held that “where an employer’s lack of records makes it more
difficult to ascertain members of an otherwise objectively verifiable class, the employees who
make up that class should not bear the cost of the employer’s faulty record keeping.” Hargrove,
974 F.3d at 470. In such instances, a plaintiff may “prove ascertainability by producing ‘sufficient
evidence’ to define their proposed class ‘as a matter of just and reasonable inference.’” Id. (citing
Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 456 (2016)). Thus, Defendants cannot avoid
class certification by failing to define the workweek. See Lewis v. Gov’t Emps. Ins. Co., No. 185111, 2022 WL 819611, at *11 (D.N.J. Mar. 18, 2022) (“Information gaps here are of [defendant]’s
own making, so we are not inclined to deny class certification on this basis.”). Allowing an
employer 5 to defeat class certification on overtime wage claims simply by failing to establish and
document their “workweek,” as required by New Jersey law, “would be creating an incentive for
employers not to keep records and thus avoid potential lawsuits,” which Third Circuit precedent
seeks to avoid. Hargrove, 974 F.3d at 483. Like the Third Circuit, this Court endeavors not to
“craft[] a vast loophole to class certification,” id., and thus will construe Plaintiffs’ workweek, as
a matter of just and reasonable inference, to be Monday to Sunday.
Defendants next argue that Plaintiffs’ data does not reliably establish who actually
performed recorded work on any given day. Opp. at 20-23. Defendants claim that “there is no
evidence demonstrating that the delivery team that ultimately performed the day-of-delivery was

5

To be clear, the Court is well aware that Defendants vigorously contest that they were, in fact,
employers. The Court is not finding for purposes of adjudication that Defendants were employers.
That issue is to be resolved at trial. If the factfinder does not determine that Defendants were
employers, then all other class issues will be moot.
12

the team that was recorded in SAP, Road Net or DispatchTrack; indeed, the evidence demonstrates
that Carriers regularly made changes to the offered or accepted rosters of delivery personnel, which
may or may not have been communicated to XPO [] or ultimately recorded with Bob’s in their
software[.]” Opp. at 21.
The Third Circuit in Hargrove indicated that a defendant claiming their own records
“should be disregarded because it is unclear that they are accurate” employs an “audacious[]”
method of attempting to avoid class certification. Hargrove, 974 F.3d at 481. This is the argument
that Defendants are using. Moreover, their argument contradicts the deposition testimony of their
corporate representatives. Bob’s corporate representative, Garrett Bonsaint, agreed that “Bob’s
has no basis to say that what the records reflect who was driving and helping on a particular day
would be inaccurate.” D.E. 161-7 at 135:2-6. XPO’s corporate representative, Roy Low, testified
similarly, as follows:
Q: And to your knowledge XPO kept accurate records?
A: To my knowledge XPO kept accurate records.
Q: Including of who the drivers and helpers were performing the
actual route on a given day, correct?
A: In general on any given day XPO would 100 percent have no
reason not to believe that the carrier sent the drivers and helpers that
were listed on the offer sheet and if we did know of a discrepancy
we would notify Bob’s or update the record, yes.
Q: That was the practice during the entire class period at the Edison
and Carteret facility, correct?
A: It was a practice to take -- that there was no reason not to believe
that the carriers were sending who they said they were sending. If
we found somebody different that we knew of, it was our practice to
update the record.
Q: And that was true during the entire class period, April 2015 to
the present, correct?
13

A: That is, that is true.
D.E. 155-4 at 49:16-50:10. Given the testimony from Bob’s and XPO’s corporate representatives,
who were in agreement that there is no reason to believe that the records are inaccurate as to who
performed certain deliveries, Defendants’ assertion that the data is not reliable on this point falls
short.
Defendants next argue that the data does not “reliably establish the number of hours
worked” by a given driver or helper. Opp. at 23-28 (emphasis added). Defendants point to several
examples of “obvious inaccuracies” in the data, such as where the data reflects that “[a] delivery
team traveled 190.2 miles in 1.5 hours,” that “[a] delivery team completed 15 deliveries in 19
seconds,” or that the total recorded duration of a route was zero minutes. See Opp. at 24-25, D.E.
158-3 ¶ 13. But the Court is not aware of, and Defendants have not pointed to, any authority
demanding perfection before data may be relied upon for class certification. Moreover, locating a
handful of errors in a data set containing thousands of entries does not demonstrate that the data is
wholly unreliable for purposes of class certification. And to the extent the records contain
“obvious inaccuracies,” the Court will not allow Defendant to benefit from their own claimed
failure to keep accurate records. D.E. 100 at 22 (citing Hargrove, 974 F.3d at 483) (“[I]f neither
Defendants nor the Carriers have [accurate employment] records, Plaintiffs can meet their burdens
of proof by ‘produc[ing] sufficient evidence to show the amount and extent of that work as a matter
of just and reasonable inference.’”).
Defendants also take issue with Plaintiffs’ method of determining the time worked before
and after a route through testimony and estimation, claiming that such testimony is “self-serving”
and inconsistent. Opp. at 28-33. Plaintiffs acknowledge that there are no “records relating to the
class members’ work time before leaving the [F]acilities and after returning from their deliveries,”
14

Br. at 17 n.6, and argue that such time “can be determined as a matter of inference based on
Defendants’ own employees’ estimations of such time as well as Plaintiffs’ own testimony,” id. at
20.
All parties appear to agree that some unrecorded work was performed both prior to the
driver and helper leaving for the route and after their return. Plaintiffs rely jointly on the named
Plaintiffs’ testimony and testimony from Defendants’ corporate representatives and employees,
which appear to universally agree that drivers and helpers performed unrecorded work both before
and after their routes. See Br. at 17-18. Given the corroboration by Defendants’ corporate
representatives and employees, Plaintiffs have not proposed a “method that would amount to no
more than ascertaining by potential class members’ say so,” which the Third Circuit has cautioned
against. Marcus, 687 F.3d at 594 (“[S]imply having potential class members submit affidavits that
their [roll flat tires] have gone flat and been replaced may not be ‘proper or just.’”). 6
What is uncertain is exactly how much uncompensated work was performed. But the exact
amount of time worked by a putative class member is largely a question for the merits stage, not
class certification. Cf. Tyson Foods, 577 U.S. at 454 (holding in an FLSA case that a class was
properly certified on the basis of representative, statistical evidence of the average time spent
donning and doffing protective gear while noting that “[t]o be entitled to recovery, however, each
employee must prove that the amount of time spent donning and doffing, when added to his or her
regular hours, amounted to more than 40 hours in a given week” (emphasis added)).

6

The Court also notes that the current case is materially different from the circumstances in
Marcus. Marcus concerned flat tires, which the defendants had no opportunity to corroborate.
687 F.3d at 593-94. Here, Defendants were aware that drivers and helpers worked before and after
actual deliveries. Thus, Defendants could have implemented a system to account for this time but
did not do so.
15

At this stage, it is sufficient if Plaintiffs have a reasonable estimate of the additional time
spent before and after deliveries, which will allow an objective review of an employees’ hours to
determine eligibility for class membership. 7 Cf. id. (“Reasonable minds may differ as to whether
the average time [plaintiff’s expert] calculated is probative as to the time actually worked by each
employee. Resolving that question, however, is the near-exclusive province of the jury. The
District Court could have denied class certification on this ground only if it concluded that no
reasonable juror could have believed that the employees spent roughly equal time donning and
doffing.”). XPO’s employee and corporate representative testified that drivers would generally
arrive at the Facility between 5:30 and 6:00 a.m. 8 D.E. 155-10 at 41:1-5; D.E. 155-15 at 65:6-8.
XPO’s employee and corporate representative also estimated that drivers and helpers typically
worked between thirty and sixty minutes after returning from their route. D.E. 155-21 at 21:1924; D.E. 155-14 at 81:21-25. XPO’s agreement on these points presents an administratively
feasible means of determining class membership.
Defendants also argue that the Contract Logix data is “irrelevant” because it “contains no
information about when or for how long any individual performed delivery services.” Opp. at 33

7

The Court recognizes the possibility that an employee will be admitted to the class based on the
addition of the estimated time, but otherwise would not have met the forty-hour requirement. It is
further possible that this hypothetical employee, in fact, did not work enough hours before and
after the routes to meet the forty-hour requirement, and thus will not be entitled to recover.
However, “a class can still be ascertainable even if it may be slightly overbroad.” Hargrove, 974
F.3d at 481 (citing Byrd, 784 F.3d at 168-69); see also City Select, 867 F.3d at 441 (“Plaintiff need
not, at the class certification stage, demonstrate that a single record, or set of records, conclusively
establishes class membership.” (emphasis added) (citation omitted)).
8

Issani Ballard, a former XPO employee, testified that XPO “asked that the delivery teams be [at
the Facility] at 5 a.m.” D.E. 155-14 at 27:7-9 (emphasis added). But XPO’s corporate
representative, Gerard Condon, testified, more pertinently, that “drivers would arrive at a time . .
. between 5:30 and 6 o’clock.” D.E. 155-15 at 65:6-8. The 5:30 to 6:00 a.m. time frame for arrival
was corroborated by another XPO employee, Andrew Solano, who testified that drivers “would
generally come in . . . [a]round 5:30 . . . 5:30, 6 o’clock.” D.E. 155-10 at 41:1-5 (emphasis added).
16

(emphasis in original). Plaintiffs do not seek to use this data to establish time worked. Instead,
Plaintiffs rely on this data, which contains mailing and email addresses, birth dates, and social
security numbers to “identify” and “permit reliable notice to potential class members.” Br. at 20.
In sum, the Court finds that Plaintiffs have “met their burden of proving, by a
preponderance of the evidence, that there is a reliable and administratively feasible mechanism for
determining class membership.” D.E. 139 at 21 (citing City Select, 867 F.3d at 441); Byrd, 784
F.3d at 163 (quoting Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 355 (3d Cir. 2013)). Review
of the DispatchTrack and Road Net data will identify the time at which a driver recorded leaving
the Facility and returning to the Facility. The SAP data will identify which helper worked with
that driver, and the amount of time worked by the driver and helper will be coextensive. The
difference in time between 5:30 a.m. (or 6:00 a.m.) and the time at which the driver recorded as
leaving the Facility can be added to the route time to account for time worked before leaving the
Facility. Finally, thirty to sixty minutes can be added to the total to account for the time worked
upon returning to the Facility to arrive at the total number of hours worked in a day. The
employee’s daily hours for one workweek, Monday to Sunday, can be added together to determine
whether that individual worked more than forty hours. The Contract Logix data can be used to
obtain contact information for every driver and helper to help facilitate notice. While greater
precision would have been preferable, “the employees who make up [the] class will not be made
to bear the cost of the employer’s faulty record keeping.” Hargrove, 974 F.3d at 482.
IV.

APPOINTMENT OF CLASS REPRESENTATIVES AND CLASS COUNSEL
Plaintiffs also seek to have themselves appointed as Class Representatives, and to have

Ravi Sattiraju, Esq. of Sattiraju & Tharney, LLP appointed as Class Counsel pursuant to Fed. R.
Civ. P. 23(g). D.E. 155-24. The Court previously held, without objection from Defendants, that

17

Plaintiffs met the adequacy requirement of Fed. R. Civ. P. 23(a)(4). D.E. 100 at 13. Thus, the
Court will appoint Plaintiffs Espinal, Carbajal, Martinez, Calderon Romero, and Torres as Class
Representatives.
“[A] court that certifies a class must appoint class counsel.” Fed. R. Civ. P. 23(g)(1).
Doing so requires the court to consider the following:
(i) the work counsel has done in identifying or investigating
potential claims in the action; (ii) counsel’s experience in handling
class actions, other complex litigation, and the types of claims
asserted in the action; (iii) counsel’s knowledge of the applicable
law; and (iv) the resources that counsel will commit to representing
the class[.]
Fed. R. Civ. P. 23(g)(1)(A). In addition, the court “may consider any other matter pertinent to
counsel’s ability to fairly and adequately represent the interests of the class.” Fed. R. Civ. P.
23(g)(1)(B). Defendants have not raised any objection to this appointment. Having reviewed
Plaintiffs’ representations as to Mr. Sattiraju and his firm’s qualifications, see, e.g., D.E. 87-2 at
39-40, and taking note of their work in developing and litigating this matter thus far, the Court will
appoint them as Class Counsel.
V.

CONCLUSION
For the foregoing reasons, and for good cause shown, Plaintiffs’ motion for class

certification, D.E. 155, is GRANTED. An appropriate Order accompanies this Opinion.
Dated: January 26, 2023
___
______
__
___________________
______
__
__________________________
John
hn Michael Vazquez, U.S.
hn
S.D.
S.
D J.
U.S.D.J.

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