District Court Certifies Class under Rule 23; Dukes cited; Behrend not mentioned

Following the granting of conditional certification under FLSA 216(b) in July 2012, the U.S. District Court for the Southern District of New York (Judge Andrew L. Carter, Jr.) granted the plaintiffs’ motion to certifya class of umpires whoalleged that theUnited States Tennis Association’s (USTA)improperly classified them as “independent contractors”since 2005in order to avoid paying overtime as required by the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL). Meyer et. al. v. USTA, 1:11-cv-06268-ALC-MHD (S.D.N.Y. 4.25.13).

The district court determined that Rule 23(a)(2) commonality was established “[g]iven the uniform classification of Umpires, the uniform description of Umpires’ duties, the finite three-week period during which the U.S. Open event takes place once a year, and the discrete, geographical location of the Open.”

The district court, in response to defendant’s argument that Wal-Mart Stores, Inc. v. Dukes required a more rigorous analysis, found that the issues in the instant action were distinguishable from the seminal case. The court stated “[n]othing in Dukes is inconsistent with this Court’s conclusion with respect to commonality. That case involved a nationwide class of women alleging disparate impact discrimination on the part of a corporate entity allowing massive discretion among its local managers; this case involves hundreds of U.S. Open Umpires who do not receive overtime under the FLSA and NYLL.”

In response to defendant’s argument that plaintiffs’ claims were atypicality because of the various duties performed by the umpires and the variety of certifications obtained by the umpires, the court found the duties of the umpires were largely consistent with one another, and consistent with the majority of the other deposed Umpires’ testimony and consequently plaintiffs’ claims were sufficiently “typical” of those asserted by other class members. Any dissimilarities or particularities regarding the circumstance of the lead plaintiffs “do not ‘threaten’ to become the ‘focus of the litigation’ any more so than those of of other members of the putative class.”

Lastly, with respect to defendant’s argument that individualized issues would overwhelm common questions, the court found that the similarity of job duties and responsibilities and the uniformity of treatment by the defendant allowed for generalized proof and predominated over those issues subject to individualized proof. The court stated that the dissimilarities only “varie[d] at the margins,” but “most, if not all, Umpires perform[ed] a similar swath of duties.” The “minor deviations” between chair and line umpires did not “eliminate the overriding consistencies.”

Interestingly, the district court did not refer to the U.S. Supreme Court’s less-than-a-month-old ruling in Comcast Corp. v. Behrendwhen conducting its Rule 23(b)(3) analysis. Employers, at least as far asthe District Court of the Southern District of New York are concerned, should take a modicum of comfort in the fact that class certification in this caseis limited to a discreet class of tennis umpiresover an eight-year period andinvolving only a finite three-week period of employment per year. We’ll have to wait to hear what the Second Circuit says on appeal.