District Court Distinguishes Wal-Mart v. Dukes in Applebee’s Suit
Another case in the Seventh Circuit is helping define the limits of Wal-Mart v. Dukes. On March 2, 2012, the District Court for the Northern District of Illinois, Eastern Division, declined to decertify a class in an employment suit brought under the Illinois Minimum Wage Law (“the IMWL”). Driver v. AppleIllinois, LLC, Case No. 06 C 6149, 2012 WL 689169 (N.D. Ill. Mar. 2, 2012).
In doing so, the Court distinguished the legal standard used in Dukes from the standard applied to cases under the IMWL in order to find a common question applicable to the class.
The class at issue was one of three classes certified in the case in 2010, before the Supreme Court issued its Dukes decision. The class included Applebee’s employees who received tips in addition to less-than-minimum wages as defined under Illinois state law (“the class”). Members of the class alleged that the restaurant chain did not compensate them for performing additional duties that ordinarily were compensated at minimum wage, in violation of the IMWL.
Following the Supreme Court’s decision in Dukes, AppleIllinois moved to vacate the class’ certification, arguing that the class failed to demonstrate a common issue of law as required under Rule 23(b)(3) of the Federal Rules of Civil Procedure.
In denying the motion, the Court noted that Dukes dealt only with Rule 23(b)(2) and that “[t]he Supreme Court specifically noted that it did not consider whether the class could properly be certified under Rule 23(b)(3).” Id. at 4. In this case, the class’ claims under the IMWL were different from those in Wal-Mart because the Driver plaintiffs were not required to show “proof of discriminatory motive or intent.” Id. (citing Ross v. RBS Citizens, N.A., Case No. 10-3848, 2012 WL 251927 (7th Cir. Jan. 27, 2012)).
The Court explained that under the IMWL the plaintiffs needed only to show that there was an “official or unofficial” practice of requiring employees to perform duties that were not properly recorded and compensated. Driver, 2012 Wl 689169, at 6. Unlike in Dukes, which focused on the discretion given to individual managers, the class in Driver did present “a common question: whether AppleIllinois required its tipped employees to engage in duties unrelated to their tipped occupation without paying them at the minimum wage rate.” Id. at 5.
Moreover, the Court rejected AppleIllinois’ argument that assessing damages for the class would require the “trial by formula” discouraged in Dukes. Id. at 7. Rather, the Court noted that the plaintiffs should be able to rely on the employer’s records to arrive at a precise measure of individual damages.
Driver is the latest in a series of cases from the Seventh Circuit to explore the application of Dukes to employment disputes. For litigants in the Seventh Circuit, the lesson is that Dukes may only apply to cases where discriminatory intent is an aspect of the underlying claim. See Ross, 2012 WL 251927. That is good news for class-action plaintiffs whose claims may arise udner a variety of statutes.
Nicholas Turner is a third year law student at New York Law School. He is a Notes & Comments editor of Law Review and a John Marshall Harlan Scholar. Mr. Turner came in second in the 2011 ABA Torts, Insurance, and Compensation Law Section Writing contest. He was a 2011 Review Editor of the school’s Global Human Rights Bulletin. Mr. Turner is proficient in French.
Abbey Spanier, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm