*1
FIED JOHN DOES THROUGH DEFENDANTS. Argued April May 2007 Decided 2007. *6 Spanier, Judith L. bar, argued member York New (Hanlon Niemann, Spanier appellants for & Ms. attorneys; cause Hanlon, Christopher briefs). J. and of counsel and on the (Riker, argued respondents Furey, cause for Michael K. Perretti, Scherer, attorneys; Furey Hyland Mr. Danzig, & briefs). Dubin, F. on the Sandi Hanna, on behalf of amicus curiae submitted a brief
Mark District Council of Food and Commercial Union United Workers (Davis, Bowe, Jersey & York Northern Cowell New New attorneys). Kott, of amicus R. submitted a brief on behalf curiae
David (McCarter Jersey Industry En- & Association & New Business Kott, Saravay attorneys; Adam N. and Edward J. glish, Mr. brief). Fanning, Jr., of counsel on opinion of Court. ZAZZALI delivered the Chief Justice hourly plaintiffs, employees of defendant The named former Stores, Inc., complaint allege in their class-action *7 Wal-Mart, operations, through centralized control over business forced them to them rest and meal breaks and work denied earned represent of seeking to a state-wide class “off-the-clock.” hourly employees, plaintiffs claim similarly-situated Wal-Mart of engaged widespread conduct in contravention that defendant law, statutory regu- policy, and administrative published corporate litigation, manageability of the Citing concerns about the lations. proposed class to class of trial court denied certification the the 72,000 employees. and former approximately current Wal-Mart Appellate The Division affirmed. putative must the class of appeal,
In this we determine whether employees may pursuant to Rule and be certified current former predomi- of and fact questions that common law 4:32-1. We find questions that class-action and device nate over individualized adjudicating dispute. of this superior available methods to other entry of an order and remand for the therefore reverse We litigation By manageable to certifying allowing this class. hourly, employees to unite permit we a class of retail proceed, footing adversary seek relief for equal an with their and —on —to alleged of defendant’s violation “small claims” arise from their enactments, promises, statutory regulatory contractual and man- dates.
I.
A.
certify
Plaintiffs
of
ask us
a class
“all
and
current
former
hourly employees
Stores,
(including
of Wal-Mart
Su
Clubs)
percenters
Jersey
and
during
Sam’s
of
State
New
period May 30,
altered),
present,” (formatting
a
consisting
72,000
approximately
deciding
workers. When
class,
certify
plaintiffs every
“aecord[ ]
whether
we
favorable
complaint
Riley
Rapids
view” of the
v.
Carpet
record.
New
Ctr.,
(1972);
Delgozzo
61 N.J.
Plaintiffs in an effort to reduce labor profits, systematically costs and increase to honor declined its promises concerning contractual rest meal breaks. Plaintiffs compensate also maintain that employees Wal-Mart failed to its for by forcing employees all time worked through to work meal breaks, by locking employees they in retail stores after had out, by coercing clocked employees to work off-the-clock. allegations, on putative Premised those class advances nine (1) implied-in-fact causes of action: regarding breach contract (2) breaks; rest and implied-in-fact missed meal breach con- (3) work; regarding tract off-the-clock breach of unilateral con- *8 (4) regarding breaks; tract missed rest and meal breach of (5) regarding work; unilateral contract off-the-clock breach of the (6) good of dealing; covenant and faith fair of violation the New Jersey Wage Law, Hour State and N.J.S.A. to 34:ll-56a -56a30 (7) (man- (requiring pay); overtime violation N.J.AC. 12:56.5.2 (8) compensation worked); dating all for hours entitlement to (9) restitution; unjust and enrichment. stores, forty-four operates one
Defendant Wal-Mart Wal-Mart Wal-Mart, Jersey. in Supercenter, nine Sam’s Clubs New Report http://walmartstores.com/ Annual 63 available at Files/2007_annual_report.pdf Report]. Annual Man- [hereinafter agement multi-layered, is with man- within those stores numerous employees categorized ap- in agers supervising hourly are who job proximately eighty-five different Wal-Mart classifications job hundred Sam’s classifications. one Club corporate-wide policy governing and meal breaks —Wal- A rest applies uniformly to Corporate Policy all Wal-Mart Mart PD-07 — employees hourly employees. policy, to that are entitled Pursuant periods hours in to rest on the number of consecutive paid based assigned one shift. A shift three to six hours merits their break, paid exceeding a six uninterrupted, and shift fifteen-minute hourly employee’s Each immediate earns two such hours breaks. responsible scheduling is for rest breaks. supervisor Policy governs policy breaks. That Corporate PD-07 also meal supervisor-scheduled hourly employees unpaid meal to entitles every thirty of six hours. If a for shift excess break minutes by work, interrupted providing to or meal break addition rest is break, company to policy requires a substitute Wal-Mart Failure employee for the time worked. compensate affected Policy subjects PD-07 comply Corporate to with the directives fact, employees discipline. a former supervisors and both Executive Officer of the Wal-Mart Stores President Chief LAW,” Corporate Policy PD-07 as “the referred to Division optional.” “NOT stating that its mandates are policy requires payroll “No also accurate records. Company perform for the with- Wal-Mart Associate should work rule compensation,” to that warrant out and failure adhere Handbook, discipline. According Wal-Mart’s “ex- to its Associate very pectation is clear”: beginning ... in before work and at other times clock your day appropriate Always Remember, want for this hard work and we work. appreciated, you Your pay against against working law. is not WaL-Mart only policy off-the-clock —it’s working There are no exceptions. clock in when are you Always!
Always — *9 Nevertheless, employee off-the-clock, if an works Wal-Mart has protocol compensation, a to appropriate established ensure allow- employees ing discrepancies. to to submit documentation correct foregoing policies widely The are disseminated and communicat- employees through policies example, ed to varied media. For explained employees to their are new at orientations and rein- However, in an forced Associate Handbook. that handbook in- disclaimer, expressly stating a that it a cludes “is not contract.” ignores systematically Plaintiffs contend that Wal-Mart Wal-Mart, disregards policies. claimed, pro- those written it is managers vides financial to incentives store to increase store by profits lowering expenses. approach allegedly store This has produced a work regularly environment where Wal-Mart contra- uniformly-declared policy, regulato- venes as statutory as well ry According plaintiffs, law. that scheme and defendant’s “gross! understaffing” of ] its retail stores has made off-the-clock “essentially mandatory,” by corporate work as evidenced e-mail encouraging managers “get store “cut volunteers” to hours.” obtaining
In addition to certifications from current and former employees supporting respective contentions, their parties both experts positions. retained to substantiate their Plaintiffs first report Ph.D., Baggett, consulting offered of L. Scott a statisti- cian, analyzed 31,466 who shifts from Jersey seven New Baggett “statistically significant” deficiency stores. a found in the quantity and of pay period, duration earned Per Baggett breaks. ninety-three percent employees noted a suffered shortfall length eighty-five percent their earned breaks employees experienced deficiency a in the number of earned rest Baggett and meal breaks. supplemented then report, finding his nearly sixty-three percent employees sample experi- in the enced least missed or per pay period. five shortened breaks Additionally, Baggett proposed estimated that the members of the deficiency class suffered a of 1.3 million hours earned rest periods word, since 1996. In a did not receive the “Associates rest nor meal they break time time earned.” editing manage- practice Baggett also of shift discovered punch employee an out at the Specifically, when failed ment. *10 only shift, a employee was credited with one-minute- end of a shift, employee’s Bag- time long regardless of the actual worked. management-edited in his one-minute shifts gett recorded 250 large leading disproportionately sample, him to observe that “[a] management that such of shifts are edited Wal-Mart number minimized.” pay for hours worked is consistent, July report part, in with Baggett’s internal, audit. an nation-wide Conducted findings of Wal-Mart stores, week-long period, that of 127 Wal-Mart a audit over Jersey store, was distributed to senior including at least one New report presidents. The internal including regional vice officials compliance company in with and that not were “[s]tores concluded concerning meals as regulations the allotment of breaks and state after, February 76,472 exceptions noted.”1 were Soon requiring policy, longer employees no altered its Wal-Mart Although plaintiffs are out rest in or for their breaks. clock policy timing, asserts that suspicious shift’s Wal-Mart employees paid for change benignly were was instituted because thereby undermining any payroll justification periods, their rest documenting for such breaks. Ph.D., report Shapiro, M. also of Martin
Plaintiffs submitted University. of time and attend- Emory His review professor a “pervasive Jersey a and from revealed ance data New stores ... rest meal ... and missed pattern of missed breaks consistent logged employees found who were example, For he breaks.” simultaneously logged cash on to payroll purposes were out for devices, training indicating off-the-clock labor. registers and Ph.D., White, report F. a of Paul countered with practices, analysis employment who specialist statistical stating audit, the internal has since disclaimed 1A co-author that report a clock preparing she understood missed time that, in the report, erroneously equaling a rest or meal break. as missed punch findings assumptions Baggett Shapiro. criticized the and Shapiro’s report disregarded White contended that structural analyzed between differences databases and discounted alter- native, legitimate explanations example, for missed For breaks. voluntary White observed that missed are breaks often and the circumstances, personal result of such employee’s as an desire to early appointment responsibilities. leave work for an or familial addition, In Baggett Shapiro White asserted that both im- properly punch equaled assumed that a clock missed the time faults, methodological missed break. Because of those White Baggett’s approach reality” ignore[d] declared that “naive Shapiro’s “vague described as conclusions and unsubstantiated.”
B. plaintiffs, finding The Law Division denied class status to manageability impediment was “the *11 certification.” view of concern, plaintiffs that the satisfy trial court held that to failed the question” allegations “critical predominance whether their met the 1(b)(3). superiority requirements and of Rule The court 4:32— litigation’s questions predominate found that the common did not Wal-Mart, over the “host of individual issues” raised issues premised employee on “variations in population.” the The court rejected plaintiffs’ analysis, also statistical finding prof- that the reports “resolve, expert fered did not or obviate need for of, injury quantum resolution individual of issues and the Rather, damages.” plaintiffs’ the court found that statistical deny ability challenge evidence would Wal-Mart its the claims of individual class members and assert affirmative defenses: “The deprived issue is whether contesting Wal-Mart can be issues regarding employees. no, individual If the answer is which is [cjourt believes, what this predominate.” common issues do not alternative, The trial court also held that class an members had superior Wage avenue for redress-the Division of Collection Department Law, Wage Labor under the N.J.S.A. and Hour Division, According 34:ll-56a to -56a30. to the Law that “virtual- litigation. The court to class superior ly forum was cost free” managing difficulty of this overwhelming “the concluded that ... that must be addressed issues to the individual action due inexpensive and efficient employees have an fact that [and] [plaintiffs have failed that this to conclude remedy, causes [e]ourt superiority require- or the predominance satisfy either 1(b)(3). Rule ments” 4:32— concerns, af- Appellate Division
Echoing trial court’s panel stated: The firmed. of decision a out in its memorandum in this matter trial court pointed The regard, revolving around all in this that led to its determination
number of factors
would have to be made
factual determinations
view that individual
the court’s
off-
or worked
missed a break
which a
employee
under
particular
circumstances
regard.
was correct
in this
the trial court
are satisfied
the-dock. We
(2006).]
II. “fostered, encouraged, has plaintiffs, According to published policies corporate culture which and incentivized” through causing to work ignored, associates systematically are Al- obligatory. making work off-the-clock promised breaks among class acknowledge differences exist though plaintiffs issues, comparison they argue, pale in members, individual those denying employees their earned pervasive policy of to Wal-Mart’s that, according plaintiffs, is policy compensation breaks —a *12 and records. corporate documents from Wal-Mart’s evident superior to other litigation that class also contend Plaintiffs Wage they assert adjudication. Specifically, forms of to inadequate relief due and provides inferior Division Collection two-year of statute and its abbreviated procedural strictures its limitations.
Conversely, seeks an affirmance of the lower Wal-Mart courts’ rulings. argues “smorgasbord” that the of individual Wal-Mart by employee in presented dispute issues this as variations —such attended, disparate experiences, employees’ legitimate orientations breaks, foregoing reasons for and the individualized nature of incurred, any questions damages if the common ad- —overwhelm by plaintiff. challenges plaintiffs’ expert vanced also Wal-Mart “flawed,” reports, by labeling “vague” contending and them as extrapolation on prevent fully that reliance statistical will it from challenging exploring its defenses class individual members’ respect superiority, claims. In Wal-Mart maintains that the properly Wage Law Division concluded that the Collection Divi- provides superior, sion litigation. alternative forum to class forum, according defendant, permits ag- That administrative to grieved employees to in a seek redress cost-efficient manner. amicus, plaintiffs NJBIA prece-
As contends misconstrue “unfairly prejudice” rights dent and that certification would doing Jersey. Specifically, others business New adversely NJBIA asserts that will court certification affect dock- encourage industry perceived ets and to flee the State “a due anti-business certification standard.” ease, perhaps any
UFCW declares that than “[t]his more other facts, imaginable requires set of class Accordingly certification.” UFCW, “particularly the need for certification is acute for low- workers[,] paid many immigrants, retail ... of whom are recent single disabled, parents, senior citizens or under-educated.” argues Wage further proce- UFCW that the Collection Division’s dural rules will make taxing” administrative relief “difficult and plaintiffs. Finally, obtain for UFCW contends that trial courts capable overseeing proposed are litigation, class as demon- management litigation strated the successful of similar Pennsylvania. California and addressing question presented, we first discuss our rule,
State’s historical purposes construction of class-action litigation, requirements and the for class certification. We
103 predominance superiority attention on the focus our then trial court its whether the abused requirements and determine Finally, significance its in because of in this matter. discretion separately complex disputes, we consider this and other manageability proposed class action.
III. A. rule that exception “an to the usual The class action is by of the individual named litigation is conducted and on behalf 682, 700-01, Yamasaki, 442 99 only.” v. U.S. parties Califano (1979). 176, 2545, 2558, in New L.Ed.2d 193 Governed 61 S.Ct. 4:32-1, joinder in action is a device which Jersey Rule the class typical on representative with claims sue a authorizes “a court for,” similarly-situated of, group of judgment in and stand behalf Newberg, Newberg on Class B. litigants. 1 Alba Conte & Herbert 2002). (4th § 2 device “was an invention 1.1 at ed. The Actions litigation proceed “in suits where equity” that enabled litigation subject of is so in the of those interested number conformity to the usual rules joinder parties as great that their Lee, 32, 41, Hansberry 311 U.S. impracticable.” v. procedure is (1940). 115, 118, 22, 27 85 L.Ed. 61 S.Ct. courts, construing courts Jersey as well as federal
“New [sic], rule is modelled after which our federal class action rule liberally consistently action rule should be held the class have N.J.Super. A.2d Delgozzo, supra, 266 at 628 construed.” eases); Ins. (collecting also v. Mass. Mut. 1080 see Varacallo Life (holding, Co., (App.Div.2000) A.2d 807 N.J.Super. 752 332 context, liberally allowed that “class actions should be in consumer actions unec make individual ... circumstances that would under “should lie Accordingly, a class action pursue”). onomical clearly Riley, supra, 61 N.J. it infeasible.” unless (10th Cir.1968) Hirschi, 7; Esplin F.2d also v. A.2d see (“[I]f made, and not it be favor to be an error let there is action.”), denied,
against the maintenance of the class cert. (1969). 1194,22 U.S. 89 S.Ct. L.Ed.2d 459 determinations, making poli When certification “the best *14 cy” interpret is to promote the class-action rule “so as to purposes al., underlying the rule.” 5 James W. Moore et Moore’s (3d 1997). Unitary § Federal adjudica Practice —Civil 23.03 ed. through litigation tion practical purposes, furthers numerous including judicial economy, cost-effectiveness, convenience, consis members, tent treatment of class protection of defendants from obligations, inconsistent litigation among allocation of costs numerous, similarly-situated See, Crown, litigants. e.g., Cork & Parker, 345, 349, 2392, 2395, Seal Co. v. 462 U.S. 103 S.Ct. 76 628, (1983); L.Ed.2d 633 United States Parole Comm’n v. Ger 388, 403, 100 aghty, 1202, 1212, 479, 445 U.S. S.Ct. 63 L.Ed.2d (1980); Action, 494-95 412, 430, In re Cadillac Class 93 N.J. V8-6-4 (1983). 461A.2d 736 Jersey
The
helps
equalize
class action
New
also
to
adversaries,
purpose
compelling
is even more
when the
proposed
people
class consists of
with small claims.
In such
disputes,
are,
isolation,
where the claims
“too small
...
to
warrant
litigation,”
recourse to
equalizes
the class-action device
ability
zealously
the claimants’
to
positions.
advocate their
In re
Cadillac, supra,
435,
93 N.J. at
equalization
The taking class action’s “historic mission of care of the smaller guy” widely recognized. Frankel, has been See Marvin E. View, Amended Judge’s Rule 23 From a Point 32 Antitrust (1966) omitted). L.J. (quotation example, For the United Supreme States Court observed that the drafters of the federal sought class-action rule rights groups to vindicate “the people strength bring individually effective to their who would be without Prods., Windsor, Inc. v. opponents into court at all.” Amchem 2231, 2246, 591, 617, 117 138 L.Ed.2d 708-09 S.Ct. U.S. omitted). (1997) (quotation The Court continued: core of the class action mechanism is overcome the The the very policy not the incentive for individual any that small recoveries do provide problem rights. bring prosecuting his or A class action solves this a solo action her problem something aggregating into worth recoveries relatively potential paltry (usually attorney’s) an labor. someone’s omitted).] (quotation [Ibid, Jackson, Roper, v. Deposit Nat'l Bank Miss.
See also
Guar.
(1980)
326, 339, 100
63 L.Ed.2d
U.S.
S.Ct.
(‘Where
economically
relief within the
it is not
feasible
obtain
multiplicity
individual
for
of a
of small
suits
traditional framework
any
damages, aggrieved persons
be without
effective redress
device.”).
they may employ
unless
the class-action
*15
dispersed population,
a
one inflicts minor harm across
When
is,
matter,
liability
practical
immune from
“the defendant
as a
Yeazell,
Stephen C.
Civil Procedure
unless a class is certified.”
2000).
(5th
Court, therefore,
This
has been hesitant to
ed.
procedural
through a
provide defendants
shelter
restrictive read-
Riley, supra,
In
observed:
ing of the class-action rule.
we
for
If
remitted to an individual
the
could be
suit,
remedy
illusory,
each victim were
a
or the victim too disadvan-
the individual loss
be too small to warrant
suit
may
taged
wrongs
go
would
relief. Thus the
would
without redress and there
seek
aggressions.
no
to further
be
deterrence
7.]
at
294 A.2d
[61
N.J.
Cadillac,
(finding,
supra,
Accord In re 93 N.J. damages, that individual claimants suffered modest case where redress”); certification, “wrongs go see also would without without Osefchen, Leveling Playing Philip Stephen Joseph Fuoco A. the & Jersey A Class Action Field in State: Guide to New Garden the (2006) Law, Rutgers (arguing 423-24 that New L.J. Case any for defen Jersey’s rule eliminates “safe harbor” class-action population). damages inflict small on diffuse dants who B. status, party seeking To obtain class certification 4:32-l(a) of Rule prerequisites must establish that the four are only appropriate satisfied.2 Class certification is if: (1) (2) joinder impracticable, the class is so numerous that of all members is there (3) questions class, are of law or fact commonto the the claims or defenses (4) class, representative parties typical are of the claimsor defenses and representative parties fairly adequately protect will the interests of the class. 4:32-l(a).] [If. Here, requirements the Law Division concluded that those were satisfied, parties challenge finding. and the do not general
In prerequisites, applicant addition to those the class satisfy requirements must also of one of the three alternative 4:32-l(b). Rule types of present class actions described The 4:32-l(b)(3), Rule appeal implicates requires “ques- which that: predomi- tions of law or fact to the common members of the class nate over any members, questions affecting only individual superior that a class action is to other available methods for the adjudication controversy.” fair and (Emphasis efficient added). making predominance superiority assess
ments,
certifying
“rigorous analysis”
court must undertake a
presupposes
properly
Class certification
the existence of a
defined class.
Thus,
action,
prerequisites
''[e]ven before one reaches the four
for a class
there
adequately
must be an
defined class." Richard L. Marcus & Edward F.
Sherman, ComplexLitigation: Cases and Materials on Advanced Civil Procedure
(4th
2004).
proposed
sufficiently
"[T]he
ed.
class must be
identifiable
being overly
proposed
amorphous, vague,
without
broad. The
not be
administratively
or indeterminate and it must be
feasible to determine whether a
Williams,
given
individual
ais member of the class.” White v.
208 F.R.D.
(D.NJ.2002)
omitted).
*16
(quotations
129
and internal citation
argues
proposed
overly
that the
class is
broad because it includes
employees who never missed breaks and who never worked off-the-clock. How-
ever,
that,
agree
preliminary stage,
we
with the trial court’s determination
at this
observed,
inappropriate
it is
to narrow the class definition. As the trial court
the
any
prob-
class
later be altered or amended to accommodate
definitional
4:32-2(a).
lems. SeeR.
if
requirements
determine
the Rule’s
have been satisfied. Carroll
P’ship,
488, 495,
v.
N.J.Super.
Cellco
(App.Div.
Accordingly, an predominance examination of the superiori- ty requirements disputed appeal issues in this include —the —must following consideration of the factors: (A) controlling interest members of the class in individually prosecution or defense of separate actions; (B) litigation concerning the extent and nature of any the controversy already against commenced or members of the [and] class; (D) action, management the difficulties to be encountered in the likely a class l(b)(3).3] [i?. 4:32— (A) (B) The trial court weighed found that factors plaintiffs’ However, favor. certify the trial court declined to disputed based on the final and manageability. most factor: Therefore, predominance we now consider superiority then, requirements, and importance pres- because of their in the factor, A fourth concentrating "the or desirability undesirability litigation of the claims in the forum," was added to our court rules on particular filing 1, 2006, two weeks after the September Division's Appellate opinion 4:32-l(b)(3)(C). See R. light timing, in this matter. of that we do not consider that factor in our analysis.
108 manageability raised litigation, we the concerns the
ent address trial court.
TV.
A.
predominance,
representative
a class
must demon
To establish
questions
the
of law or fact
to the members
strate “that
common
any questions affecting only
predominate
individ
of the class
over
1(b)(3).
inquiry
That
tests whether
ual members.” R.
4:32—
adjudication by
“sufficiently
is
cohesive
proposed class
to warrant
Prods., Inc.,
623,
supra, 521 U.S. at
representation.” Amchem
2249,
Some in this us and, Moore, First, § supra, 23.45. the number more assessment.” significance important, questions of common must be consid Carroll, 499, supra, Super. 713 A .2d ered. See 313 N.J. at 509 (“Predominance not, however, by adding up determined determining number common and individual issues and which is Second, greater.”). a court must decide whether the “benefit from questions] action [of the determination in a class common out Cadillac, weighs problems supra, of individual actions.” In re 430, Third, predominance requires, at 736. at 93 N.J. 461 A.2d minimum, 431, operative Id. at “common nucleus facts.” 461 omitted). (quotation A.2d 736
Notably, predominance
require
does
not
absence of
dispose
individual issues or that the common issues
of the entire
Canuso,
dispute.
140
657 A.2d
See Strawn v.
N.J.
(codified
(1995),
superseded
grounds by,
on other
L.
c. 253
at
46:30-10),
recognized
Nobrega
v.
N.J.S.A
as
Edison Glen
Assoc.,
(2001).
questions
167 N.J.
A.2d 368
Individual
following
questions.
or fact
remain
resolution of common
law
Varacallo,
supra,
N.J.Super,
B.
*18
general
Mindful
principles,
of those
we
prior
heed our
observa
predominance
tion that “the
answer
the
of
found ...
in
issue
is
Cadillac,
analysis
close
the
supra,
a
of
facts and law.” In re
93
434,
N.J. at
analysis,
First, plaintiffs allege implied-in-fact of breach contracts concerning meal rest and breaks and off-the-clock work. Such promises by implied contracts arise from in words and conduct light surrounding Wanaque Borough circumstances. Sew erage 564, 574, Turp. Milford, Auth. v. 144 677 A N.J. .2d747 of W. (1996). Implied-in-fact by contracts are formed conditions mani circumstances, entailing and inferred fested words from thus representations, employee consideration of factors such as oral manuals, 354, party Troy v. Rutgers, conduct. See 168 N.J. 365, (2001). 774A.2d 476
Second,
proposed
recovery
the
class seeks
for breach of
contracts, allegedly
unilateral
in
embodied
the Associate Hand
contract,
party’s
promise
book.
a unilateral
one
becomes
only
performance
party’s
of
enforceable
on the
the other
obli
Roche, Inc.,
284, 302,
gation. Woolley v.
99 N.J.
Hoffmann-La
(1985).
recover, plaintiffs
Third, plaintiffs allege good breach of of the covenant contract, see, dealing, every component e.g., faith and fair a of Inc., Thunder, Borden, 420, 396, Inc. v. 148 690 Sons N.J. A.2d (1997). “community 575 “Good faith” entails stan adherence reasonableness,” decency, v. dards fairness or Amerada Wilson (2001) Corp., (quotation Hess N.J. A .2d 1121 no
omitted), “destroying or requires party from refrain party injuring right of other to receive” its contractual Club, Shop benefits, Racquet Inc. v. Route 18 Brunswick Hills (2005) 210, Assocs., 224-25, 864 ping 182 N.J. A.2d 387 Ctr. omitted). prove (quotation plaintiff A must also the defendant’s Id. at 864A.2d 387. “bad motive or intention.” Fourth, Wage proposed class asserts violations of the -56a30, Law, which em N.J.S.A. 34:11-56a to directs Hour forty compensate employees ployers to who work excess employees’ an rate times” hours a week with overtime “Vh hourly wage. Uncertainty regard regular 34:11-56a4. N.J.S.A. not ing damages “[D]amages does not such claims. need foreclose proved precision impractical impossi be with where that or ble____ uncertainty preclude as to amount will not [M]ere Inc., Fashions, Mosley recovery.” N.J.Super. v. Femina omitted), (App.Div.2002) (quotations 811 A .2d certif. (2003). denied, 176N.J. 822A.2d *19 12:56-5.2, Fifth, plaintiffs allege violation of N.J.AC. which provides employee required his or that “all the time the is to be at place duty or as her of work on shall be counted hours worked.” restitution,
Finally,
seeking
putative
in addition to
any
unjustly ob
disgorge
to
Wal-Mart of
benefits
seeks
enrichment,
unjust
plaintiff
To establish a claim for
“a
tained.
that
reten
must
both
defendant received a benefit and that
show
payment
unjust.”
tion
benefit
would be
VRG
of that
without
(1994).
Realty
Corp.
Corp., 135 N.J.
fenses. Those which are of both a and nature, gamut plaintiffs’ run the from failure to state substantive
Ill upon granted claims which can inability relief be and their to comply applicable with of statutes limitation defenses focused members, waiver, estoppel, on individual class such as and unclean hands.
C. present The dispute core of whether Wal-Mart systematic engaged widespread practice and disregarding of contractual, statutory, regulatory obligations its hourly employees refusing in this provide State earned rest and by encouraging meal breaks and work. off-the-clock Essential to questions, notably that issue are other salient and common most meaning significance corporate policies of Wal-Mart’s concerning impact breaks The and off-the-clock work. uniformity Associate Handbook’s disclaimer of and the new em prominent questions. ployee orientation also are common may appropriately A trier of fact whether consider Wal-Mart promoted uncompensated work and work created a environment uniformly applicable policies ignored part where were as of a corporate-wide expenses. effort to reduce labor Related common questions corporate of include: the extent Wal-Mart’s control over aspects stores, Jersey scheduling, such various its New retail as payroll, staffing, training, compensation; the structure of the provided to managers; bonus incentives store whether there was a records; practice altering employee time Wal-Mart’s construc- breaks; or knowledge tive actual off-the-clock work and missed in expectation and whether Wal-Mart understaffed its stores Additionally, off-the-clock work. whether was enriched and, so, alleged its if from conduct such benefit whether was unjust, questions. are common evidentiary expert *20 questions reports
Common also surround the White; Baggett, July Shapiro, of and Wal-Mart’s 2000 internal audit, co-author; by recanted and other business Wal-Mart’s Significant points reliability, of relate to records. contention admissibility, credibility. apply questions uniformly and Those
112 Although weight and proposed all members of the class. here, beyond reports of and are our review merits those records 658, Olive, 189, evidentiary at A supra, 61 N.J. 293 .2d those see uniformly proposed claims. questions apply members’ sure, argument, of plaintiffs To as at oral resolution be conceded litiga questions may dispose not those and common of other remain, questions may yet as: whether tion. Individual such breaks; employees voluntarily rest meal particular missed why employees did who worked off-the-clock not avail themselves procedures; much was worked of the curative time-clock how time off-the-clock; employees whether worked off-the-clock with compensation; damages employ much in expectation of and how suffered, However, any. remainder ees if the mere existence of Jersey, issues is insufficient defeat class certification New Strawn, 67-69, see, 420; e.g., supra, 140 at 657 A.2d Varacal N.J. lo, 807; Fiore, 45, supra, N.J.Super. supra, at A.2d 702, elsewhere, see, N.J.Super. e.g., Sterling 377 A.2d Cir.1988) (6th Corp., 855 v. Velsicol Chem. F.2d 1196-97 (holding remaining questions peculiar to individual members class do action is of “not dictate conclusion a class Co., Wesleyan impermissible”); Cent. v. W.R. Grace & 6 F.3d Coll. (4th Cir.1993) certifying (finding predominance 189-90 action). asbestos class too, do
So
the individualized defenses advanced Wal-Mart
predominance. Although
necessarily
finding
not
foreclose a
of
respect
“different factual situations
arise with
to the defenses
derogate
plaintiffs[,
as to
not
from the fact
such]
different
does
community
has
that the affirmative cause
action itself
questions
justify
or fact which
the class
interests and of
law
White,
v.
concept.”
N.J.Super.
action
Branch
(1968).
denied,
(App.Div.),
A.2d 665
51 N.J.
242 A.2d13
certif.
Appellate
possibly
has
“[i]t
Our
Division
stated:
true that
play
questions may
different factual
into
when the defense
come
against
waiver or
are
as
individual members
other defenses
raised
*21
of the class. This is not a bar maintainability
of the action as a
Fiore,
class action.”
supra,
N.J.Super.
at
We General Motors’ and affirmed the by certification entered explained the trial court. We that General Motors pro “misconstruefd] nature class action ceedings. Certification as a class action does not limit a defen rights pursue any any dant’s plaintiffs defense on of a claims ... merely permits litigation [Certification of common issues on a litigation class basis before of individual issues.” Id. at A.2d 736. light Cadillac,
In of the record and consistent with In re we find 4:32-l(b)(3)’s plaintiffs that here satisfied Rule predominance requirement. finding questions predominate, that common however, we do not limit Wal-Mart’s defenses nor diminish its procedural Rather, safeguards rights. itself, defending and may argue employees voluntarily through worked myriad reasons, rest or meal personal may breaks for contend flawed, may Baggett Shapiro are the conclusions of audit, credibility July question the 2000 internal that, any other are confident on advance relevant contentions. We remand, parties’ the trial counsel can resolve the court challenges presented litigation’s this individualized practical *22 questions of law or fact.
D. Finally, respect reject in predominance, of we reli Wal-Mart’s denying on other courts’ decisions certification to ance state twenty years similarly-pled, class-action state-wide lawsuits. Over courts, pre ago, this Court that “different even when observed similar, identical, substantially with if not claims sented have certify divergent deciding in reached conclusions whether a Cadillac, 431, action.” In 93 N.J. at A.2d 736. class re 461 That today, jurisdictions is no as other are observation less true divided question similarly-pled by on the whether claims state-wide employees of former are classes and current Wal-Mart certifiable. event, any by In “Rather we are not bound either view. than Varacallo, certification,” against supra, for or count[ ] eases 807, N.J.Super. guided we our 752 A.2d are own facts, claims, independent examination of the and defenses. Our rigorous analysis present appeal’s satisfies us that the common or questions predominate questions. of law fact over individualized
V.
4:32-l(b)(3)
predominance,
In addition to
Rule
re
quires
party seeking
certification
demonstrate that class
litigation
“superior
is
to other available methods for the fair and
adjudication
controversy.”
requirement
efficient
of the
That
nec
essarily “implies
comparison
procedures,”
a
with
alternative
re
Cadillac,
supra,
93 N.J. at
A.2d
mandates
using
advantages
disadvantages
assessment of
of
“the
litigation.”
device in
class-action
relation
other methods of
Moore, supra,
specifically,
analysis
§ 23.44. More
our
demands
“(1) an informed consideration of alternative available methods of
(2)
issue,
adjudication
comparison
of each
a
of the fairness to all
whose interests
be involved between such alternative meth
(3)
action,
comparison
efficiency
ods and a class
of
Cadillac,
adjudication
supra,
of each method.” In re
93 N.J. at
omitted).
436, 461 A.
(quotation
2d 736
The class members’ “lack of financial wherewithal” is
“important
superiority analysis.
City
an
factor”
Saldana v.
Camden,
N.J.Super.
(App.Div.1991).
We class members Wage Depart- submit their claims to the Division of the Collection Law, pursuant Wage ment of Labor to the and Hour N.J.S.A However, 34:ll-56a to -56a30. we find that administrative struc- adjudication an inferior forum for of this ture be the controver- sy-
First, again, the nominal of each class members’ claim value adjudication litigation against in favor counsels of class before Varacallo, agency. N.J.Super. 752 A.2d the See (rejecting disposition by Department Banking superior as meth sums). hourly disputes involving od in small Plaintiffs are em they ployees Independently, of a store. lack the financial retail adversary. corporate equalizing of their The mecha resources representative litigation adequately nism of allows them to seek Supreme Phillips redress. As the United States Court stated Shutts, by Petroleum Co. v. a lawsuit filed a class of individuals $100, averaging plaintiffs claims with small claims “would with day in court if a class action were not available.” have no realistic (1985). 2965, 2973, 86 L.Ed.2d 472 U.S. 105 S.Ct. Second, may prove arduous for the administrative framework aggrieved employees Wage The Collection Divi- retail here. Court, Superior permits sion automatic removal to the N.J.S.A 34:11-63, 34:11-66, Court, Superior de novo review the N.J.S.A. appeal and introduction of additional evidence on without advance notice, parties procedures that favor with N.J.S.A. 34:11-65 — greater litigation experience. resources and
Third, unitary adjudication is fair to defendant. Because Wal- may allegations, against plaintiffs’ Mart itself its due defend Moreover, process rights compromised. through are not device, class-action resolve claims of its current Wal-Mart employees and former across the State in an efficient manner that similarly-situated consistently. treats claimants Finally, although dispositive superiority question, not Wage subject claims filed in the Collection Division are to a two- limitations, 34:11-56a25.1, year opposed statute of N.J.S.A as claims, six-year applicable statute of limitations to contract may proeedurally 2A:14-1. That distinction N.J.S.A. bar numer aggrieved employees seeking ous from former Wal-Mart relief. argument, At oral indicated that no claims similar to pled in those this matter have been filed either in our courts or Department suggests ag- before the of Labor. That fact grieved employees may sought not have individual relief for a reasons, variety including a lack of motivation to redress their claims, retaliation, legitimate concerning employer small fears lack resources, powerlessness confronting or a sense of when their corporate adversary. would-be ignore reality proposed cannot that if
We class is not *24 certified, aggrieved employees not thousands will seek redress alleged wrongdoing. Carnegie for defendant’s See v. Household (7th (“The Int’l, Inc., 656, Cir.2004) 376 F.3d 661 realistic alterna- suits, tive to a class not ... million[s of] action is individual but
117 suits.”), denied, 1051, 877, cert. 543 125 S.Ct. zero individual U.S. (2005). proclaimed, negative “a L.Ed.2d 772 As one court 160 may death knell of the action as one for a determination sound the Litig., persons Sugar In re Indus. Antitrust class of or entities.” (E.D.Pa.1976). Therefore, hold that class- 73 F.R.D. we present controversy superior to other wide resolution of the adjudication. available methods for its fair and efficient VI. Manageability, encompasses whole [that] a “consideration problems range practical render the class action suit,” inappropriate particular for a Eisen v. Carlisle & format 2140, 2146, 40 L.Ed.2d Jacquelin, 417 U.S. 94 S.Ct. (1974), analyzing hotly factor in is the “most contested” § Newberg, supra, predominance superiority. Conte & 4.32 general particular significance at of its and its 269. Because separate present appeal, this concern relevance to the we address ly. manageability concerns is
Denial of class status due to
and,
public
“in
involved in class
disfavored
view of the
interest
actions,
exception
than the rule.” In re
should be the
rather
Alaska,
Fishery
Litig.,
F.R.D.
Bay,
Salmon
Antitrust
Bristol
(W.D.Wa.1978)
omitted);
Klay
(quotation
see also
v.
(11th Cir.2004)
Humana,
Inc.,
(finding
F.
3d
1272-73
ever,
manageability
rarely,
prevent
if
“will
be
itself sufficient
class”); Carnegie, supra,
with small claims and deterrence § 4:45 at 336. the class device.” Id.
Although
acknowledge
in
we
the difficulties inherent man
action,
aging
finding
unmanageability
a
of
this state-wide class
difficulty
requires
trying
more than
in
case or
mere
See,
Block,
challenges.
e.g.,
of
v. H R
existence
novel
&
Buford
(11th
Inc.,
340,
(S.D.Ga.1996), aff'd,
168 F.R.D.
363
Here, likely manageability we are satisfied that the obsta present litigation cles of the develop can be overcome. Recent resourcefulness, creativity, ments our in buttress confidence Specifically, as noted trial courts. administrative abilities and Penn Report, courts California 2007 Annual in Wal-Mart’s jury resulted trials —both of which conducted sylvania have against Wal class actions similarly-pled, state-wide verdicts —of equally are supra, trial courts Report, at 54. Our Annual Mart. *26 alternative— litigation. The managing complex such capable of manage vaguely-perceived “because of declining class certification originally led policy which “counter to the problems” ment —runs rule, ... too much diseount[s] ... and also to the [class-action] flexibly, response to suit to with a class power of the court deal 1362, Powers, 1365 454 F.2d they v. as arise.” difficulties Yaffe Westing (1st v. Cir.1972), grounds, on other Gardner disapproved 2, 57 Co., n. 98 S.Ct. Broad. U.S. house Inc., (1978); Group, v. Cont'l accord McClendon L.Ed.2d flexibility (D.N.J.1986). acknowledging By 113 F.R.D. objectives of the class-action courts, to the we adhere of our trial manageable. action to be proposed class rule and find the ability court’s class, the trial do not restrict certifying this we necessary. aAs litigation it deems proposed as to conduct significant discre- imbued with principle, trial courts are general posed problems administrative solve the novel which “to tion with § 1.43 at 37 Complex Litigation action.” Manual in a class for management (1982). developed innovative several have “Courts arising from burdens minimize court or techniques to eliminate & New- actions.” Conte posed management difficulties collecting strategies (discussing and § berg, supra, 4:32 at 288-89 cases). proce- and craft remedies empowered to are also
Our courts
litigation. For
of class
peculiar problems
address the
dures to
of a
the certification
may alter or amend
example, trial courts
Cadillac,
at
4:32-2(a);
supra, 93 N.J.
class,
In re
see also
R.
class), may
decertify
authority to
(noting
court’s
trial
We are confident that the Law
properly employ
Division will
its
broad, equitable authority and sound
manage
discretion to
litigation
appropriately
instant
and
important
address the
con-
parties
respect
cerns of both
permissible
uses of statisti-
extrapolation, evidentiary
cal
redundancy,
any
procedur-
other
al, administrative,
evidentiary
issues that
arise.
areWe
guided by the
“[ejxperience
observation that
...
shows that
unmanageability
visions of
disappear,
courts,
soon
togeth-
because
counsel,
er with
manage
have been
litigation
constantly
able to
increasing complexity
magnitude.”
Sugar
In re
Indus. Anti-
Litig., supra,
trust
VII. organization “When the society, ours, a modern such as possibility affords illegal behavior accompanied by wide- spread, consequences, procedural diffuse some means must exist remedy Eisen, least to deter —that conduct.” supra, 417 —or *27 U.S. at 186 n. 94 S.Ct. at J., (Douglas, L.Ed.2d at 753 concurring). Here, just the class procedural action is such a By adversaries, equalizing device. provide we to access the courts By for small denying claimants. alleged wrongdoing shelter an defendant, transgressions we deter similar against an otherwise 72,000 vulnerable hourly-paid purportedly retail workers class— by harmed corporate employer’s their uniform misconduct. Indi- vidually, aggrieved the employees Wal-Mart strength lack the in terms of resources and motivation to grievances assert their Collectively, class, court. they as a pursue are able to their claims. If our fairly courts can manage complex litigation brought by owners, Cadillac vigorously defended on individualized grounds by a corporate adversary, then it follows that our courts fairly manage also can present the class action.
Accordingly, questions we hold that common of law and fact predominate any over questions, individualized that the class- adjudication of for the superior methods action vehicle to other manageability alleged, the trial court’s claims and that modest the Law be therefore conclude that misgivings can overcome. We declining certify putative its the Division abused discretion certifiable, express finding proposed In class we action. the class plaintiffs’ or opinion no on the merits of claims Wal-Mart’s defenses. judgment Appellate and remand the Division
We reverse entry certifying of the class. the matter for an order RIVERA-SOTO, dissenting. Justice deci thoughtful, and well-reasoned memorandum In a detañed sion, plaintiffs’ motion for class Judge Ann McCormick denied satisfy predomi they “faüed to either the certification because 4:32-l(b)(3). superiority requirements” Rule nance or the judge predominance requirement, the trial reasoned respect of the of a presents impediment which the to certification that “the factor manageability predominance case is in terms class in this Class Citing to In re Cadillac proposed class.” V8-6-4. (1983), Action, judge noted A.2d 736 the trial 93 N.J. ‘common may found when there exists a “[predominance be ” explained operative facts.’ further nucleus She including generally absent class, can found when the [s]uch potential a nucleus be legal grievance. In a seeks to a common members, predominance remedy classes are cohesive sufficiently focus is whether proposed inquiry, greater adjudication class, The more cohesive the warrant by representation. on the be bound the decisions that absent members can fairly the likelihood Although be claims. commonality requirement class representatives’ single is far more shared the predominance inquiry satisfied aby experience, demanding. omitted).] [(citations and internal marks quotation “[tjhere are 40 stores judge found that The trial that, Jersey” the Wal- “[i]n stores in New nine Sam’s Club hourly stores, employee classifications there are 90 different Mart *28 hourly stores, whüe, there are 100 different in the Sam’s Club obviously Taking with errone- classifications.” issue the employee by plaintiffs, she proofs advanced anecdotal ous statistical however, explained proofs resolve, that those do “not whether policy employee Wal-Mart violated its break as to each individual or the was whether missed break due to some other reason.” plaintiffs Concluding that failed to had demonstrate that “the questions of law or fact to of common the members the class predominate any questions affecting only over individual class members,” 4:32-l(b)(3), judge highlighted Rule the trial class action is not “[t]he mechanism meant eliminate the requirement injury of to the individual class members” and that “[ejven [p]laintiffs’ legal if of arguments all factual and were be accepted, analyses own statistical a their show that not insubstan- injured.” tial class not number of members have been respect superiority requirement, In judge the trial the ex- 4:32-l(b)(3) plained requires proponents that Rule also that the a class action must also “a demonstrate that class action is superior to other available methods for fair and the efficient adjudication controversy.” of the She reasoned that [t]he on determination turns an informed consideration the court superiority by (1) adjudication of three factors: the methods of alternative available for each (2) issue; a of fairness each comparison member whose interests be may adjudicative involved with to each of respect methods that bemay applied; (3) adjudicative to be made efficiencies one comparison by application
method over another. [(citing 736).] In re at Action, Cadillac Class supra, N.J. A.2d V.8-6-4 explained She that “when trial of a claim would involve proofs regarding conduct, identical defendant’s and the claim prohibitively expensive be pursue, for an individual to class action emerges superior adjudieation[,]” adding as the method “[ujnder circumstances, such individual or actions test cases be- come an inferior alternative to the class action because ... economics of the situation ... it impossible aggrieved make for persons (citation rights separate to vindicate their actions.” omitted). end, judge pursuing trial concluded that this case as a superior resolving action was not a form for disputes
issue, case, however, noting that “[i]n this is an there alternative pursued.” mechanism that each class member could have She
123
right
a claim with
explained
“[e]mployees
that
have the
to submit
Department of Labor under
Wage
Division of the
the
Collection
is a
Jersey Wage and Hour Law” and that “[t]his
the New
remedy
any employee
virtually cost
for
who
free
efficient
omitted).
(citations
aggrieved.”
is
that he or she
believes
plain-
Appellate Division
It too concluded that
The
affirmed.
satisfy
requirement
predominance
of Rule
tiffs’ claims failed to
the
4:32-l(b)(3).
Stores, Inc.,
N.J.Super.
v.
387
Iliadis Wal-Mart
405,
(App.Div.2006). Repeating the
ex-
There in the denying judge trial discretion in conclusion that the abused her its majority does plaintiffs. action status to these What why, if a court of first movingly so—is emote it were do—and instance, certification under a could be made for class action case However, disagreement with presented. majority’s facts Appellate judge’s determination —as affirmed the trial rise the level an abuse simply does not and cannot Division — of discretion. discretion of the decisions rest the sound
“Class certification GPU, Inc., A.2d N.J.Super. 851 trial court.” Muise v. reason, it is clear that (App.Div.2004). For that fundamental ordinary standard defies “[although ‘abuse of discretion’ definition, a a is ‘made without precise it arises when decision inexplicably departed poli explanation, from established rational Flagg Essex cies, impermissible v. or rested on an basis.’” Prosecutor, (2002) County (quoting N.J. 796 A.2d Service, Immigration Achacoso-Sanchez v. and Naturalization (7th Cir.1985)). 1260, 1265 779 F.2d Nothing majority’s analysis in the can to the lead conclusion judge’s trial decision ‘“made was without rational explanation, inexplicably departed policies, from established or ” Ibid.; *30 impermissible an rested on basis.’ see In re also Senior Examiners, (1972) (ex Appeals N.J. A.2d 129 plaining that determination “an would be abuse of discretion if it explanation, inexplicably were made without a rational departed policies, impermissible from established or on an rested basis” (citation omitted)). quotation contrary, and internal marks On the any reading judge’s denying fair trial class the decision certifi only rationally cation explained; can conclude that it was that the judge explored arguments trial by parties, all the advanced applied precedent, rationally all relevant that concluded inappropriate circumstances; action certification was under the judge “inexplicably depart[ trial did not ] from established policies;” explained reasoning decision; that she behind her noted that least she seven other courts have “[a]t also denied against class action certification in similar lawsuits (footnote satisfy predominance based on the failure to criteria” omitted) analysis and that simply her did not on “rest[] an impermissible analysis necessary basis.” That is absent from the majority’s opinion. analysis, entirely agree the final I reasoning with the by expressed judge
conclusions the trial and affirmed Appellate conclude, Division. if I Even did not so I nevertheless any cannot find in support this record basis —to basis — majority’s judge conclusion that the trial abused her discretion plaintiffs’ when she denied application. class certification For reasons, those I respectfully dissent.
For reversal remandment —Chief Justice ZAZZALI and LaVECCHIA, ALBIN, Justices WALLACE and HOENS —5. For RIVERA-SOTO —1. affirmance —Justice