In our last post, Katy Rand explored both the substantive Massachusetts employment law issues and the Rule 23(a)(4) analysis in the First Circuit’s recent Starbucks tips case. This post will now focus on the rest of the First Circuit’s Rule 23 analysis.
In addition to arguing (unsuccessfully) that an intra-class conflict precluded a finding of Rule 23(a)(4) adequacy, Starbucks made several arguments with respect to both Rule 23’s implied requirement of ascertain ability and Rule 23(b)(3)’s express requirements of predominance and superiority. First, Starbucks argued that the class was “unascertainable and overbroad because certain experienced baristas provide coaching and direction to less experienced co-workers.” Starbucks argued that this assistance rendered those baristas ineligible to receive tips under the Massachusetts Tips Act. Judge Selya, writing for the court, found that this argument “trenches on the frivolous.”
The district court defined the class as “[a]ll individuals who were employed as baristas at any Starbucks store located in the Commonwealth of Massachusetts at any time between March 25, 2005 and [March 18 2011], inclusive.” Citing Moore’s Federal Practice section 23.21[a] (3rd ed. 2012), the court of appeals held that the class definition’s reliance on a specified job title provided “an objective criterion” that “overcomes the claim that the class is unascertainable.” Moreover, the court held, “even if some baristas occasionally render the same sort of assistance to co-workers as shift supervisors are required to do,” they are not responsible for doing so, and their job description does not include managerial responsibilities. The job category itself, incorporated in the class definition, was sufficient both to make the class ascertainable and to avoid the problem of overbreadth.
Finally, Starbucks argued “that a class action will not resolve the rights of all interested parties in the absence of shift supervisors.” The concern raised by this argument is that shift supervisors, who stood to lose if the baristas won their argument that only baristas, and not shift supervisors, should be allowed to share in the stores’ tips pools, might file their own lawsuit to protect their interests. The court acknowledged this possibility, but rejected it as a basis for denying class certification: “[T]he mere fact that a class action will not resolve every conceivable issue touching upon a challenged policy or practice does not require a court to throw out the baby with the bath water.” The court held that “consideration of fairness and judicial economy are well-served by resolving the baristas’ claims in a class action,” and concluded that the requirements of predominance and superiority were met.
For purposes of Rule 23 certification, the First Circuit’s decision in Matamoros is not a game-changer. Ascertain ability challenges usually involve class definitions that lack the type of objective criterion that the Matamoros class definition contained, or that combine an objective criterion with others that cloud the determination of who is in the class. Similarly, the overbreadth challenge was specific to both the job descriptions and employee practices of Starbucks shift supervisors and pertained only to the wooden provisions of the Massachusetts Tips Act. The court’s decision on overbreadth may have little effect in other employment settings, and should have no effect on cases brought under other statutes, such as misclassification cases under the Fair Labor Standards Act, which often depend on highly individualized inquiries concerning non-exempt workers’ performance of their job functions. Finally, the argument that the class should not be certified because it will not resolve the rights of persons who may be members of a different class and who have an interest in the outcome is, at least in this author’s experience, novel, and the court’s rejection of it does not represent a significant change in the law.
Starbucks’ strongest argument against certification was the argument, described in our last post, that the barista class representatives could not adequately represent the interests of baristas who, during the class period, became shift supervisors. Here, the court may have dismissed the intra-class conflict too readily. Even this part of the holding, however, was case-specific. Defense counsel in future litigation involving potential conflicts among class members should carefully consider the viability of their 23(a)(4) arguments and not assume that Matamoros stands in their way.
Written by former litigation partner, Donald R. Frederico.