Another Federal Court Discredits the Use of Representative Evidence in Class Actions

A federal court in Illinois decertified a class action of cable installation and service technicians, finding their claims for unpaid work were too varied and individual to permit class treatment. The district court had certified the Illinois state court claims as a class action under Rule 23, but following the Seventh Circuit’s decision earlier this year in Espenscheid v. DirectSat USA, LLC – a nearly identical case – the defendants moved for decertification. Noting that this case, Farmer v. DirectSat USA, LLC, “falls squarely within the Seventh Circuit Espenscheid decision,” the court granted the defendant’s motion and decertified the class.

In Farmer, as in Espenscheid, the plaintiffs worked out of a company vehicle they parked at their residences at night and typically began and ended their day at home. The plaintiffs claimed the company prohibited them from “recording time worked before they arrived at their first job of the day and after they left their last job of the day.” They alleged that they were not paid for time receiving daily assignments (usually in the morning, at home), calling the first customer, loading the van, and driving to the first job.

Notably, this case contributes to the growing body of case law following Dukes v. Walmart finding representative testimony inadequate to support class certification. The court found that the plaintiffs failed to demonstrate that 16 “representative” witnesses (3% of the 512-member class) were representative of the class as a whole. Among other things, there was no evidence that appropriate statistical sampling methods were used to create a random sample of class members as witnesses. Also, representative proof would not demonstrate the reasons some technicians may have underreported their time. For example, were they trying to impress the employer with their efficiency or avoid being laid off, or did they underreport their time as a result of unlawful conduct by the employer?

In addition, the court stated, to extrapolate from the experiences of the “representative” witnesses would require that all class members did the same amount of work, working the same amount of overtime, and were paid the same wage. Because of variations in the time worked, “even if Plaintiffs could establish an ‘average’ number of overtime hours through representative proof, some technicians would receive a windfall while others would be undercompensated.”

Significantly, although the court did not cite Comcast Corp. v. Behrend, another reason it found class certification inappropriate was that damages could not be measured on a classwide basis. Even if the plaintiffs had demonstrated that the individuals proposed to testify at trial were representative of the class, the court held, “this would not enable the damages of any members of the class other than [those individuals] to be calculated.” Consequently, individual hearings would be required to establish damages, thus precluding class treatment.

Farmer is the most recent case to find that class actions are an inadequate method for resolving allegations that require individual hearings to determine damages as well as liability.

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