Driver v. Appleillinois, LLC
739 F.3d 1073
7th Cir.2014Background
- Class action by tipped restaurant employees (waiters, bartenders, etc.) against Smith alleging unpaid minimum wages under Illinois law (guided by FLSA interpretation).
- District judge initially certified a class defined by tipped employees who performed unrelated non-tipped work without being paid full minimum wage; later orders simplified the class to all tipped employees earning the tip-credit wage.
- Defendant Smith sought interlocutory review under Fed. R. Civ. P. 23(f); this is his second petition after an earlier petition was denied.
- Defendant also challenged post-certification district-court rulings (e.g., use of representative evidence, denial of motion to decertify) and sought to renew his Rule 23(f) appeal based on those developments.
- Magistrate judge denied Smith’s motion to decertify; Smith sought permission to appeal that denial under Rule 23(f).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a second Rule 23(f) petition is permissible after the district court alters the class definition | Class (plaintiffs) implicitly argue the modified definition is proper and certifiable | Smith contends the subsequent orders and class-definition changes permit renewed interlocutory appeal | Denied: second petition not allowed absent a material alteration in certification relevant to the appeal sought |
| Whether the simplified class definition (all tipped employees earning tip-credit wage) is proper | Plaintiffs rely on district findings of a policy requiring non-tipped work without full wage | Smith argues the definition is overinclusive because it does not identify who suffered actionable harm | Court: The simplified definition is overinclusive and may fail to define a harmed class; but this challenge was not the subject of the Rule 23(f) petition before the court |
| Whether interim orders (e.g., representative evidence, extrapolation) support interlocutory review under Rule 23(f) | Plaintiffs argue such orders relate to managing class-wide proof and damages | Smith argues those interim rulings undermined certification and justify immediate appellate review | Court: Those interim orders are not equivalent to an order granting or denying certification; they are not independently appealable under Rule 23(f) |
| Standard for allowing repeat Rule 23(f) petitions | Plaintiffs: routine case management changes do not reopen interlocutory review | Smith: later developments allow renewed Rule 23(f) review of initial certification | Court: Repeat petitions require that the later order "materially alter" a prior certification order to justify a new Rule 23(f) appeal; mere changes or denial of reconsideration do not suffice |
Key Cases Cited
- Bolden v. Walsh Construction Co., 688 F.3d 893 (7th Cir. 2012) (rejects class definitions that require merits findings to identify class members)
- Matz v. Household Int'l Tax Reduction Inv. Plan, 687 F.3d 824 (7th Cir. 2012) (permits second Rule 23(f) appeal where order materially altered class size)
- Carpenter v. Boeing Co., 456 F.3d 1183 (10th Cir. 2006) (requires material alteration to justify repeated Rule 23(f) petitions)
- In re DC Water & Sewer Auth., 561 F.3d 494 (D.C. Cir. 2009) (limits scope of Rule 23(f) review to orders that effectively grant or deny certification)
- Blair v. Equifax Check Servs., Inc., 181 F.3d 832 (7th Cir. 1999) (interlocutory appeal appropriate to clarify class-action law)
- Gary v. Sheahan, 188 F.3d 891 (7th Cir. 1999) (denial of decertification motion is not an appealable grant or denial under Rule 23(f))
- Fast v. Applebee's Int'l, Inc., 638 F.3d 872 (8th Cir. 2011) (discusses DOL interpretation of related non-tipped work and 20% rule)
- Umikis-Negro v. American Family Prop. Servs., 616 F.3d 665 (7th Cir. 2010) (Illinois courts follow FLSA interpretations when state law and regulations are silent)