Morse v. Fifty West Brewing Company LLC
1:21-cv-00377
| S.D. Ohio | Mar 18, 2024Background
- Kevin Morse, a former bartender, sued Fifty West Brewing Company LLC and its owners, alleging they withheld tips from employees during the COVID-19 pandemic.
- The business shifted operations in response to COVID-19, moving from layoffs, to minimal staffing, to re-hiring hourly workers with a new tip pooling/tip credit system.
- Morse claims that under the new structure, hourly employees were forced to share tips with non-tipped staff and did not receive all tips owed, violating state and federal wage laws.
- The district court previously conditionally certified an FLSA collective action based on a joint stipulation between parties.
- Morse then moved for Rule 23 class certification on state-law claims, but relied primarily on his own affidavit and thin evidence.
- Discovery was still early; the court noted that Morse could renew his motion with a more developed record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of Evidence for Rule 23 | Class certification proper based on Morse’s affidavit, stipulation, and complaint; others similarly harmed | No substantive evidence of class-wide harm or similarity; unsupported by reliable proof | DENIED: Plaintiff failed to provide adequate, admissible evidence for rigorous class certification analysis |
| Ascertainability of Class/Subclasses | Proposed class and subclasses are identifiable by employment role/dates | Subclass membership turns on proving the merits (fail-safe class); subclasses improperly defined | DENIED: Proposed subclasses are not ascertainable, as membership requires merits determination |
| Numerosity (esp. Subclass 1) | All classes/subclasses sufficiently numerous, even if small | Some subclasses (e.g., 12 people in Subclass 1) are too small for class treatment | DENIED: Numerosity not met for very small subclasses; joinder is practicable for 12 people |
| Commonality/Predominance | Tip pooling, pay structure, and tip withholding are common issues | Individualized inquiries on hours, consent, and pay calculation will predominate | DENIED: Insufficient evidence of predominant common issues; risk of individualized inquiries too high |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (sets standard for class certification, requiring common questions)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (explains predominance and superiority in class actions)
- Comcast Corp. v. Behrend, 569 U.S. 27 (2013) (evidentiary proof required for Rule 23 certification)
- Young v. Nationwide Mut. Ins. Co., 693 F.3d 532 (6th Cir. 2012) (class must be ascertainable independent of merits)
- Randleman v. Fid. Nat’l Title Ins. Co., 646 F.3d 347 (6th Cir. 2011) (“fail-safe” classes not permitted)
- In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838 (6th Cir. 2013) (district courts have broad discretion, requiring rigorous analysis for certification)