*1
(1984) (“[W]hen,
here,
as
2511,
2501,
L.Ed.2d 377
S.Ct.
been discovered
inevitably have
would
question
evidence
misconduct,
is
there
error or
police
reference to the
without
is
and the evidence
a taint
provide
nexus sufficient
no
admissible.”).
Indeed,
at hand to
I find the circumstances
exception.
of such
for application
a
instance
paradigm
present
James Michael Dechert Ami- Philadelphia, for Council, cus Curiae Product Inc. Liability Advisory Haverstick, Rose, L.L.P., Dealy Amanda Proskauer New- ark, NJ, Center, for Amicus Retail Litigation Curiae Inc. Sneath, IL,
Henry Sorenson, M. Chicago, Quin Mikael Austin, LLP, DC, Sidley for Amicus DRI- Washington, Curiae The of the Defense Bar. Voice
A. Lauren Carpenter, Joseph Fay, Meyers, B.G. Howard L. Puma, Sonnenfeld, Michael J. Marc Lewis Morgan J. & Bocki- us, L.L.P., PA, for Amicus Philadelphia, Curiae Pa. Industry, Chamber of Business and et al. Feldman, Feldman,
Alan M. Shepherd, Wohlgelernter, Tan- ner, Barnett, Dodig, Philadelphia, Weinstock & Della Michael Caesar, Larkin, CA, Jocelyn Berkeley, for Amicus Curiae Fund, AARP, Caucus, Impact Asian Law et al. Richards, Richards, LLC, Trujillo,
Ira Neil Rodriguez & *4 Chaw, Francisco, CA, Sellers, Philadelphia, Terisa Joseph San Romer-Friedman, Toll, Peter Cohen Milstein Hausfeld & PLLC, Clark, Scott, Nicholas Lurye, Judy Washing- William ton, DC, Geman, York, NY, Rachel Jahan New Sagafi, Amicus Food Inter- Curiae United and Commercial Workers Union, national et al.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, JJ.
OPINION PER CURIAM. the class action whether concerns discretionary appeal
This
to a
subjected Appellants
improperly
in this case
proceedings
class,
jury
court certified
The trial
“trial
formula.”
verdict,
affirmed
Superior
and
rendered a divided
now affirm.
part.
reversed in
We
part and
their
against
class action claims
various
Appellees brought
Inc.,
Stores,
and
Club
Sam’s
Wal-Mart
employers,
former
conduct
(hereinafter “Wal-Mart”),
per-
on
and
policies
based
asserted
breaks. Appellees
and meal
to rest breaks
taining
breaks,
and meal
them
rest
paid
had promised
that Wal-Mart
breaks
them, in
or in
to miss
part,
whole
but then had forced
“off-the-clock,” i.e.,
breaks,
also to work
and
through
or work
concluded.1
shift had
after a scheduled
pay,
to work without
current and
of “all
consisting
certified a class
The trial court
in the
of
Commonwealth
hourly employees
former
December
present
1998 from March
Pennsylvania
19,
of
ultimately
The class
Order,
at 1.
2005.” See
12/27/05,
members.
consisted
187,979
wage and
alleging systemic
class action
jury
The
trial of this
weeks,
in a voluminous
resulting
six
spanned
hour violations
three
fact witnesses and
called eighteen
record. Appellees
ex-
parties’
their case-in-chief.
during
witnesses
expert
full
days
witnesses took six
expert
of Appellees’
aminations
Additionally,
21).
trial (September
12, 13, 19, 20,
trial but outside
during
were conducted
lengthy arguments
to strike portions
motions
jury
of the
on Wal-Mart’s
hearing
Ultimately,
jury
experts.
testimony Appellees’
of the
relating
on all claims
in favor of Wal-Mart
rendered a verdict
relating
on all claims
Appellees
in favor of
to meal breaks but
of the
work. The amount
and off-the-clock
to rest breaks
verdict was
entered on the
ultimately
$187,648,589.2
judgment
contract,
against
for breach of
alleged
Appellees
claims
enrichment,
Wage Payment
Pennsylvania
unjust
and violations
("WPCL”)
Wage
Pennsylvania Minimum
Act
Law
and Collection
(“PMWA”).
down as follows:
2. This amount breaks
*5
Wal-Mart
and the
appealed
judgment,
Superior Court
affirmed in
and reversed in
in a
part
part
published unani-
mous per
opinion,
curiam
which corrected a patent mathemat-
court,3
ical error
by
committed
the trial
reversed the award of
fees,
attorneys’
and remanded to the trial court to recalculate
the lodestar it had employed to determine the amount of
Stores, Inc.,
attorneys’ fees. Braun v. Wal-Mart
Whether, verdict, in a purported class action tried to it Pennsylvania violates law (including Pennsylvania Rules Procedure) subject Civil to a “Trial by Formula” that relieves Plaintiffs of their burden to produce class-wide “common” on key evidence elements of their claims. Stores, (2012).
Braun v. Wal-Mart
616 Pa.
WPCL verdict: 29,178,873 Common Law verdict: $ 10,163,863 Statutory $ Interest: 62,253,000 liquidated $ WPCL dam- ages: 33,813,986 attorney $ WPCL fees: 2,670,325 expenses: $ WPCL $11,880,589 attorney expenses Additional fees in the amount $938,222 paid arising were ordered to be from the fund from the common law verdict. Superior 3. The Court’s correction of the error reduced the WPCL $49,568,541 $49,289,541. verdict amount from sufficient, of con- class-wide “common” evidence present not Moreover, breach, formation, unjust enrichment. tract certification, the that the class asserts trial court’s *6 affirmance verdict, all jury Superior improperly and the statistics baseless upon extrapolations relied “sham and witnesses, and expert Baggett Shapiro[,]” Drs. [Appellees’] register time cash records.” clock and regarding “Wal-Mart’s short, that Brief at 30. In Wal-Mart asserts Appellants’ and evidence was flawed extrapolation statistical Appellees’ members, “that on that it to show class a class-wide failed breaks, basis, off-the- missed took shortened breaks worked clock.” at 18-19. Id. that the time clock and specifically,
More Wal-Mart claims register employees cash records did not show that had been off-the-clock, or work and that Appel- forced miss breaks lees’ the conclusion was expert analysis reaching opposite faulty assumptions based on that failed account for employees. actual of Wal-Mart and its practices Specifically, rest failed analysis regarding Wal-Mart claims that breaks breaks, and “voluntary” analy- to account for missed that off-the-clock failed to account for the regarding sis work not into alleged log fact that it was uncommon for cashiers to another name. operate registers employee’s and cash under overbroad, Thus, that that Wal-Mart asserts the class liability shown appellees proper proof had not member, as to each class and that Wal-Mart had “purported” subject by a “trial that denied its been formula” Wal-Mart right Pennsylvania Appel- to due violation of law.4 process at 18-19. claims it was Specifically, lants’ Brief inherently denied to defend individual issues of right liability. at 22-24. Id. case slip pages Court’s is 211 Superior opinion details at trial.
long, thoroughly presented the evidence only necessary set forth here those facts resolution of We on chal- single issue raised which Wal-Mart appeal, which lenges method the trial was conducted. process 4. There federal due asserted. are no claims (characterized as “associates” in Wal- employees Mart’s handbooks and other written are employee policies) time clocks. orientation for new required “punch” During that, are distributed employees, employee among handbooks other are entitled to things, employees they paid inform for all paid rest breaks and that will be hours worked. informed, Additionally, through variety all are employees means, PD-07, policy, about Wal-Mart’s rest break known as and its off-the-clock work known as PD-43. The rest policy, break states that a 15-minute break will be policy paid, given hours, to an who works between three and six employee that an additional 15-minute break will be to an paid, given who works more than six hours. The rest break employee full, breaks, policy take requires employees uninterrupted disciplinary may employee and warns that action result if an *7 misses breaks or takes breaks that are either too or too long short. Wal-Mart’s off-the-clock work that it is policy provides for to against company policy any employee perform work without and that will be being paid, employees compensated for all work performed. 10, 2001, February
Prior to Wal-Mart were employees break, to clock out clock in for required and back each rest ie., employees were to or a time required “punch” “swipe” clock at the end of beginning every Begin and rest break. 1999, in ning approximately Wal-Mart conducted ten regional violations, widespread internal audits that indicated rest break breaks, such as long, missed breaks that were too or breaks 2000, that were too short. In Wal-Mart conducted the “Ship Audit,” ley scope which was national and included an log-in examination of time clock and cashier records. The week, Shipley Audit revealed that in one across 127 Wal-Mart stores, 60,000 including Pennsylvania, five in more than rest Shipley break violations had occurred. The Audit showed that an of two rest breaks week average per per employee were either or every missed shortened at store. The results were executives, and on reported top-level February Wal-Mart 10, 2001, policy requiring employees Wal-Mart eliminated its Addition each rest break.5 clock back for
to clock out and 2003, it was that, possible prior evidence ally, there was even registers cash operate in to and log cashiers to Wal-Mart instituted a Wal-Mart if were “off-the-clock.” who was off-the-clock employee no system whereby “lock-out” However, system permit cash register. could in to a log i.e., lock-outs, enable an off-the- to override managers ted register. a cash operate in to and log employee clock their litigating of the class and certification seeking In both trial, expert opinions presented Appellees case at Ph.D., Shapiro, Martin M. and Baggett, L. statisticians Scott records own business Ph.D., analyzed had who taken, to each worked, wages paid and breaks regarding hours At Audit.6 Shipley the results of the as well as employee, been trial, provided that he had Baggett Dr. testified break, clock, records payroll rest time hourly employee for the Pennsylvania period stores for all to 46 million which amounted through early from 1998 that the data Dr. further testified Baggett individual shifts. change prior to the stipulated at trial that as of one month policy rest break alleging violations of Wal-Mart’s policy, lawsuits Indiana, Louisiana, Colorado, New filed in seven states: had been Mexico, Carolina, Ohio, and Texas. North Reports” Archive that showed maintained "Time Clock 6. Wal-Mart every by every employee for breaks taken worked and total total hours Exception Reports” Punch Wal-Mart's "Time Clock shift worked. missed, employees. inadequate, overly-long for all breaks showed purposes primarily for were used Wal-Mart These business records analyzed by Appellees' experts. At the calculating payroll, were analyzed some stage, Baggett that he had Dr. testified class-certification 24,000 Pennsylvania Wal- employee in twelve individual work shifts *8 had con- December March 1998 and Mart stores between hourly not received the number workers had cluded that some 40% Baggett Dr. they which had been entitled. of rest breaks to or duration Shipley Audit. analysis squared with results of the stated that his certification, deposition presented the challenging In class upon explain the evidence relied testimony expert to of its own not reliable because an experts missed breaks was Appellees' to show any given in from break and clock back employee’s failure to clock out employee had failed to take necessarily that the indicate did not class, discrepan- that "the certifying trial court ruled break. accuracy/reliability the business [regarding testimony cies in jury at trial.” undoubtedly an for determination will be issue records] 12/27/05, Opinion, at 11. Trial Court provided had been incomplete, and that statistical extrapola- that, fact, tion from the data revealed 52 million individual shifts had occurred during period; that time he testified that his of that total computation had been formulated within a reasonable degree of statistical certainty. Dr. also Baggett explained his for methodology determining many how rest breaks should have been earned over the course of those shifts, million individual and how many rest breaks had been missed. Among things, other this undertaking required calcu- lating numbers for the from period February 2001 during which time actual rest break data was no longer available, due to the change Wal-Mart’s policy eliminated the requirement for employees clock out and clock back in at the beginning and end of rest breaks. Dr. Baggett explained that his method for extrapolating the total amount of breaks that had been missed but unrecorded includ- ed known, baseline calculations of the number of recorded missed breaks that had prior occurred to the 2001 change rest break time clock policy. Based on these extrapolations, coupled with the average rate of pay hourly Wal-Mart all employees, of which had been calculated within a reason- able degree statistical Dr. certainty, Baggett testified that the total damages to Wal-Mart hourly employees for missed rest breaks during the relevant time period had been that, Baggett Dr. also although $68,412,107. testified he could not tell from why any the data individual rest break had been missed, he presumed rest breaks had been not missed volun- tarily because policy prohibited employees from missing or working through scheduled rest breaks.
Dr. Shapiro testified for Appellees regarding off-the-clock work. Dr. Shapiro stated that he had compared the Wal- clock, Mart time databases, and rest break payroll, computer and found numerous recorded employees instances of actively logged to cash registers computer-based termi- learning nals during times when had simultaneously been clocked out for a break or had been altogether. clocked out of a shift He added that the total amount of such off-the-clock work hours decreased after significantly instituted its *9 Dr. been with provided in 2003. had policy Shapiro
“lock-out” Pennsylva- data for sixteen register log-in time clock and cash In his period for the from 2001 2006. nia Wal-Mart stores he had testimony, Shapiro explained extrapolated Dr. how hours that the total number of average from data to determine hourly all at all performed by employees of off-the-clock work period the from 1998 Pennsylvania during Wal-Mart stores earnings He that the for all Wal- unpaid 2005. calculated during the relevant employees working Mart off-the-clock $2,993,063.32, and that his computation testified period degree within a of statistical had been formulated reasonable certainty. presented expert testimony organiza- also of
Appellees
Ph.D.,
statistician,
Landy,
and
Frank
who
psychologist
tional
all
employees,
testified
had
its
promised
that Wal-Mart
means,
a
through
variety
paid
that
breaks were a benefit
Wal-Mart,
that its
under-
employment
employees
with
and
all
be
paid
stood and
that
breaks were to
breaks.
expected
Audit,
discussing
Landy
Dr.
testified that Wal-
Shipley
daily
adjustment
stores
used
to correct
slips”
Mart
had
“time
“Adjust-
explained:
known rest break violation errors. He
no,
says,
ment means
the associate
comes
actually
that
no,
break;
my
I
I
actually
get
just forgot
swipe
[and]
did
Landy
only approximately
out for
Dr.
testified that
10%
[it].”
rest
had
of the total number of
break violations
been corrected
slips,
led him to
conclusion
through
adjustment
time
which
“the
after
it
problem
even
correct
magnitude
Braun, 24
big.”
for honest mistakes is
A.3d at
See
(quoting
Landy’s
testimony).7
Dr.
trial
testified,
alia,
Landy
managers
Dr.
inter
that Wal-Mart
also
store
significant year-end
maximizing profits,
key
earned
bonuses
understaffing
payroll
by intentionally
keeping
which was
costs down
forcing employees
breaks
work off-the-
their stores and
to miss
opined
manager
$1300
He
that a store
could earn
annual
clock.
a
shaving
per
per employee
week
from a
simply
bonus
one minute
manager
if
payroll obligation.
explained
He
could
store's
further
per
payroll
per
employee
shave one
week
from a store’s
obli-
hour
$82,000.
gation,
Superior
bonus would be
annual
Landy’s testimony
summarized Dr.
as follows:
of a number of
Appellees
presented
testimony
also
current
who testified that
employees,
former and
*10
had
been forced to work without
breaks
they
regularly
taking
(or
breaks)
take shortened
because the stores in
they
to
which
chronically
worked were
understaffed.
In
Wal-
response,
presented
testimony
Mart
of a number of current and
(all
class),
former
had
employees
opted
whom
out of the
who testified that
had never been
a
they
forced miss
rest
always
break and had
been
for the breaks
did take.
paid
case,
Martin,
the defense
Dr.
During
expert
Denise
an
statistician,
testified that she had identified a number of
errors in the
alleged
by Appellees’ experts
methods used
damages
arrive at their estimated
computations. Principally,
Baggett’s premise
Dr. Martin took issue with Dr.
that an
failure to clock out and clock back in
employee’s
from a rest
break,
break indicated a missed rest
as well as his conclusion
that no
In
voluntary.
missed breaks were
Dr. Martin’s opin-
ion,
Baggett
Dr.
had used “bad” data to account for missing
data,
“statistically
which is
With
to Dr.
improper.”
respect
Dr. Martin criticized his
Shapiro’s methodology,
assumption
that cashiers did not
in to cash
routinely log
registers under
basis,
another employee’s name. On this
Dr. Martin testified
Landy
understaffing
Dr.
also
discussed
Wal-Mart stores. He
opined
"preferred scheduling” program
that Wal-Mart’s
correlation,
understaffing
"root cause” of
in the stores. There is a
stated,
Landy
understaffing
employees’ ability
Dr.
between
stores,
greater
receive breaks:
the more understaffed the
pressure managers
provide
employees
on
not to
breaks and on
not to
explained
pressure
payroll
take breaks. He
how the
to reduce
costs
understaffing.
Landy
led to
Dr.
noted that the Wal-Mart store-
manager-bonus system
“negative
compliance
had a
effect” on
with
policies
pay. Lastly,
Landy
on breaks and
Dr.
testified
Audit,
Shipley
that after Wal-Mart conducted its
Wal-Mart eliminat-
requirement
employees punch
ed the
breaks;
that
the time clock for rest
opined
"smoking gun"
he
that Wal-Mart eliminated
evidence
policy
liability.
of its
violations to limit its
Braun,
(citations
omitted).
A.3d at 887
record
footnotes
contrast,
Fenn,
expert,
Wal-Mart’s retail
Wade
testified that there
managers'
compensation pro-
was no link between Wal-Mart’s
bonus
breaks,
gram
practices
and rest
that Wal-Mart's
were consistent with
retailers,
big-box
Landy’s testimony regarding hypo-
other
and that Dr.
year-end
comparison
thetical
bonuses had been based on an erroneous
employee
profitability.
hours to store
to cash
time clock data
comparisons
Dr. Shapiro’s
in an errone-
and resulted
improper
data were
register
log-in
work
of off-the-clock
number of hours
ous calculation
period.
time
the relevant
during
occurred
that had
subject
that it was
asserts
In this
appeal,
by the United
formula,”
disapproved
practice
ed to “trial
Stores,
Dukes, 564
Inc. v.
Court Wal-Mart
Supreme
States
(2011), and Comcast
2541,
305 effect, in arguments of its support assertion that the class should not have been certified mirror its arguments support of the assertion that it subjected Nevertheless, by to a trial formula. the focus in this appeal should be primarily on the offered at proofs trial and whether conducted proceeding by trial court amounted to a trial formula that by relieved Appellees their burden to produce common evidence key on elements of their claims.9 review question Our of this of law plenary is and de novo. Lower v. Twp. 312, Lands Dalgewicz, 620 Pa. 67 Makefield (2013). 772, A.3d
In response,
merits,
Appellees argue that on the
class
here,
certification was warranted
and that Wal-Mart was not
subjected
formula,
by
to a trial
but rather was
with a
faced
recognized
acceptable
style of class action known as
“replicated proof,”
evidence,
which the same
if
underlying
credible,
relevant and
proves each class member’s claim as if
each class member
proceeded
had
alone. Appellees’ Brief at
18 (citing Liss & Marion v. Recordex Acquisition Corp., 603
198,
(2009)).
Pa.
brief,
Due
process
legal proceedings requires
oppor
an
tunity to confront and cross-examine adverse witnesses.
Goldberg
269-70,
v.
Kelly,
U.S.
90 S.Ct.
(1970).
L.Ed.2d 287
As observed
United States Court
*12
Samuel-Bassett,
("Once
jury
See
of for the Appeals has manner in a trial been conducted challenging the which so so as to amount alleging prejudicial that it was highly the against denial due must be measured process to a of whole; trial as the of the background complexity a trial; the evidence litigation; length quantity the the of received; and, that the difficulty the of the task confronted (3d F.2d Citron v. Aro 377 752 Cir. Corp., factfinder. 1967). a designed The action mechanism is to permit class class, trial on behalf of the proceed named individual to to herself, him- all of the class members’ including try or to Samuel-Bassett, A.3d at 34 together judgment. claims to 1715(c)). (citing Pa.R.C.P. Supreme disapproval by of “trial United States Court’s try a a set of plan sample
formula” Dukes was directed at and, claims of sex discrimination if discrimina- class members’ meritorious, the to then tion was found and claims were the class- average back-pay award determine multiply without individualized recovery proceedings. wide further Dukes, 366-67, High at at 2561. To the U.S. S.Ct. (in Court, this have process “novel” would robbed Wal-Mart case) of its its defenses to individual right litigate claims, never liability sample because all but the set would tried. Id. The United for the Appeals be States Court method by Circuit has described the “trial formula” Sixth as disapproved in Dukes follows: by Dukes a “Trial proposed process. Formula” Under a district court would master to deter- system, appoint sample mine whether and how much was due to a backpay class multiply set of members. The court would then by total number of class members of claims percentage Next, valid. special master determined were it would number award for multiply average backpay class’s sample claimants with valid claim determine the clear Dukes recovery. The Court did not make whether class’s would be recovery pro that the distributed proposed rata, there would sort of claims procedure, whether be some applicant’s non-promotion, based on the date particular
307 dispose money through whether class counsel would of the a distribution. the the cy pres Regardless, Court held by approach Trial Formula would violate the Rules En- Act it abling abridge modify because would affirmative defenses to right present backpay individual Dukes, determinations. 131 at S.Ct. (6th Cir.2013).
Davis v. Cintas 717 F.3d 486 n. 2 Corp., Similarly, Magistrate Judge United States District Court for the Southern District of New York described the by “trial formula” method disapproved Dukes the follow- ing terms:
Specifically, rejected a “Trial Supreme by Court Formu- la,” in plaintiffs which the would hold a trial for a set sample of class members’ claims of sex discrimination and then multiple average backpay award to determine the class- recovery wide without further individualized proceedings. Under this Wal-Mart would have been proposal, denied its right to its defenses to individual litigate claims of discrimi- nation, liability sample as for all but set would have never been tried. Chipotle requires contends that Dukes individualized discovery opt-in plaintiffs so that it can defenses, its litigate individualized and that the denial of fact, this information render might, inappro- certification priate. Dukes, Supreme focused on the need for a
common contention that capable is of class-wide resolution: glue holding alleged “Without some reasons all [behind of Wal-Mart’s individual it employment] together, decisions will be impossible say examination of all the class members’ claims for relief will a common answer to produce Dukes, question the crucial was I why disfavored.” at 2552 (emphasis original). S.Ct. Grill, Inc., v. Chipotle
Scott Mexican 300 F.R.D. (S.D.N.Y.2014) (citations omitted). quotation marks case, assertions,
In this contrary Wal-Mart’s now-disapproved “trial formula” at issue in Dukes process here, because there was no initial or prior
was not at work *14 to a of adjudication liability employees of subset Wal-Mart’s that would then be to the rest of the class. extrapolated Instead, extrapolation challenges evidence Wal-Mart damages the amount of to the class as a appeal this involves contrast, the evidence of By liability whole. Wal-Mart’s the entire class for breach of contract and violations WPCL was established at trial of own by presentation Wal-Mart’s as well employment wage policies, universal and as its own business records and internal audits. These records were support sufficient to the factfinder’s determination that there discrepancies was an extensive of between the number pattern and duration of breaks earned and the number and duration of breaks taken. Both had parties ample opportunity present i.e., evidence to these to show that the explain discrepancies, were were evidence of discrepancies wage- not class-wide Thus, and-hour violations. claim that it was de- process nied due fails.
Also, Dukes, brought the class-action was for alleged violations of Title of the Act of and Rights VII Civil specifically alleged hiring sexual discrimination in the of female workers. The evidence in showed promotion Dukes had an sex express policy prohibiting discrimi- Importantly, nation. some Wal-Mart although managers ap- plied subjective gender making their own biases in hiring decisions, Thus, promotion High some did not. ruled that commonality lacking the element of class was because required showing “significant proof’ that Wal- Mart under a operated “general policy discrimination” Dukes, 353-54, absent.” at at “entirely U.S. S.Ct. expert opinion Court noted that the evidence of a “general policy by plaintiffs of discrimination” offered percent percent could not assess “whether 0.5 or 95 employment might by decisions at Wal-Mart be determined stereotyped thinking.” Id. case, were systemic wage-and-hour where violations
asserted, that, evidence was if be- presented appellees lieved, managers an inference that Wal-Mart com- supported pany-wide were pressured profits increase and decrease payroll by stores understaffing through preferred schedul- factors, ing system, and that these including the managers’ annual bonus compensation program, impeded ability board, scheduled, employees, across the to take promised, paid rest breaks. The lack of of class proof commonality present Dukes present is not here. Behrend,
Turning to Comcast v.
which Wal-Mart also cites
here, the question for review before the
High Court
case was “[w]hether a district court may certify a class action
without resolving whether the plaintiff class had introduced
evidence,
admissible
including expert
testimony,
show that
the case is susceptible to awarding damages on a class-wide
—
at —,
*15
basis.”
U.S.
133
at 1431
S.Ct.
n. 4.
In that
matter,
two million Comcast customers
the
comprised
class
alleging various antitrust violations. The Court noted that
both the U.S. District
for
Court
the Eastern District of
Pennsylvania and the U.S.
of Appeals
for the Third
Circuit had perceived no need for the plaintiffs to “tie each
of
theory
antitrust impact” to a calculation of damages.
Id. at
—,
133
at
S.Ct.
1433. The Court determined that
the
District Court and the Court of
had
Appeals
entirely ignored
the “first step” of a “damages study,” which
“the
requires
translation of the legal theory
the
event into an
of
harmful
analysis of the
at —,
economic
impact
event.” Id.
of
(italics
The Behrend
recognize that where a
theory of liability
capable
is
of class-wide proof, calculations of
at —,
damages need not be exact. Id.
involve Tyson Gomez v. proving damages.” the relaxed burden of Inc., 397, (D.Neb.2013) Foods, Behrend (citing F.R.D. 400 295 Dukes). employer also that when an It is well-settled hours, employees may prove records of keep complete fails v. testimony. hours Anderson through representative their Co., 688, 1187, 680, 90 328 66 S.Ct. Pottery Mt. Clemens U.S. (1946), 1515 on other superseded by grounds. L.Ed. statute of a lack of accurate records out grows where the “[E]ven non- fide as to certain activities or bona mistake whether work, received employer, having activities constitute work, to the for the object payment benefits such cannot on the the circum- possible work most accurate basis under federal observed that stances.” Id. One Circuit Court has uncompen- rule for preventing employees recovering from “[a] work are unable to determine precisely sated because violating due rewarding employers amount would result England law.” v. New [and federal Reich Southern state] (2d Cir.1997) (citing 121 F.3d Mt. Corp., Telecomms. Clemens, 1187). at U.S. S.Ct. Behrend, failed who to translate plaintiffs
Unlike harm its economic legal theory analysis of their into an from Appellees analysis here offered data and Wal- impact, records, own time and cashier including Mart’s business clock data, their related to log-in support damages claim now, wage responds and hour violations. systemic *16 and it did at and on direct that the time clock appeal, as trial do that breaks register necessarily cash data not reflect log-in Nevertheless, this by advancing were missed or shortened. acknowledges its record- argument, impliedly that has and it cannot now avoid the keeping incomplete, been through extrapolation. relaxed of proving damages burden Mt. Clemens. its that the
The essence of Wal-Mart’s is assertion appeal device, instance, amok,” “run resulting class-action in this had by during “trial Appellees’ requirement in a formula” which elements claims to each class essential of their as prove Indeed, was Brief Appellants’ member eliminated. at
311 that the class claims of breach of suggest Wal-Mart seems could be unjust only properly proven contract and enrichment 187,979 an individual examination of the class members by that promised determine whether each had been breaks paid miss, partially through, were then forced to work had, not, or had been forced to off-the- whether each work determination Relatedly, suggests any clock. basis, damages only proper is on an individual class member and that tabulation of across-the-board would any damages violate due process. disagrees.11 central, liability
There was a common issue of here: single, compensate employees whether Wal-Mart failed its written policies. question, accordance with its own On was parties presented liability both evidence. Wal-Mart’s on a class-wide basis. were assessed based proven Damages on a of the rate of an computation average employee’s pay (about hour) dollars the number of eight per multiplied by not. pay hours for which should have been received but was view, In not of “trial or of a our a case formula” class action “run amok.” Accordingly, judgment Superior Court is affirmed. relinquished.
Jurisdiction Former did not in the participate Justice McCAFFERY this case. decision of CASTILLE, EAKIN, BAER and
Chief Justice Justices join opinion. TODD dissenting opinion.
Justice SAYLOR files a persuaded by 11. We are the observation of the federal district court in 152, (S.D.N.Y.2014), Bloomberg, v. 298 which Jackson F.R.D. 168 fundamentally principle declined to read into “a that would Behrend wage-and-hour undermine the use of the class action vehicle addition, appears prevail- context.” we subscribe to what to be ing wage hour cases. view that Dukes does not bar class actions Grill, Inc., (S.D.N.Y. Chipotle See Ensorv. Mexican 300 F.R.D. 2014) ("The authority rejects weight argument that Dukes bars Plan, cases.”); Affinity wage Health certification and hour Morris v. cases). Inc., (S.D.N.Y.2012) (collecting F.Supp.2d *17 312 SAYLOR, dissenting.
Justice implemented, that the trial court agree Appellants I with lax severely approach approved, court and the intermediate law in the issuance substantive governing to the application ver- two-hundred-million-dollar an almost and sustainment of liability to establish which was insufficient proof dict based on I 187,000-member Although take class. across a damages and that the burden of observation majority’s no with the issue cases, wage-and-hour degree relaxed to some may be proof 666-67, 309-10, 106 A.3d at at Majority Opinion, see magnitude. this case is of an untenable extended in latitude effectively Here, project permitted class Appellee class mem- testifying of each of six the anecdotal experience large, of the class at other members thirty-thousand bers upon missed and mistimed concerning data abstract extrapolate others, overlay stores to 139 Pennsylvania from 16 “swipes” across a years’ experience data taken from several discrete cause to single attribute a and to four-year period, distinct indisputable varia- despite all swipes, missed and mistimed time, locations, and management personnel, across tions store gross generalizations The sorts of other circumstances.1 ex- averaging simple which assumptions permitted witnesses to stand by Appellees’ expert trapolations up offered of millions of that some tens of the conclusion support on foregone reflected rest breaks swipes or mistimed missed board- exerted from the Wal-Mart account of payroll pressure review as a matter of up peer room would never hold Therefore, the same to be troublesome for very it is science. large for a support of law as the essential relied in courts upon scale class-action verdict. compliance initia- example, presumably as a result of
1. For tives, dropped swipes dramati- for meal breaks the numbers of missed N.T., (afternoon), Sept. at 61-62. years. cally Nevertheless, See over through from 1998 extrapolating data taken rest-break timeframe, expert Appellees’ witness through 2006 into the 2002 compliance assuming liberty that none of took to the rest breaks. See any effect whatsoever relative measures were of id. at 67. *18 I am Certainly, sympathetic to efforts to vindicate the interests of workers with modest claims who lack may ability and incentive to pursue remedies on an individualized Nevertheless, basis. I remain of the view that the kinds of alterations to substantive law reflected in the majority’s re laxed approach class-action litigation should be the subject of overt consideration in the political branch and should not occur as a byproduct of the application of a mere procedural device the judiciary. Accord Samuel-Bassett v. Kia Mo Am., Inc., 371, 466-77, tors (2011) Pa. 34 A.3d 58-65 J., (Saylor, I dissenting).2 maintain this position, in particular, of the light broad-scale social effects likely to attend these
sorts of modifications. regard, and more generally, I also incorporate by reference the remarks set my forth in dissent in the Kia case. See id.
HILL, Respondent v. THOMAS,
Rev. Dr. Sandra M. Petitioner. Supreme Pennsylvania. Court of
Dec. ability Assembly 2. The landscape General to alter the class action is, course, legislation subject via to constitutional limitations such as process by Appellants. due constraints raised notes con procedural focuses on for review accepted the issue Nevertheless, argues of the trial. duct failed to Appellees because certified improperly class was