481 F.Supp.3d 1332
J.P.M.L.
2020

IN RE: LOWE‘S COMPANIES, INC., FAIR LABOR STANDARDS ACT (FLSA) AND WAGE AND HOUR LITIGATION

MDL No. 2947

UNITED STATES JUDICIAL PANEL on MULTIDISTRICT LITIGATION

August 5, 2020

TRANSFER ORDER

Before the Panel: Common defendants Lowe‘s Companies, Inc. and Lowe‘s Home Centers, LLC (together, Lowe‘s), move under 28 U.S.C. § 1407 to centralize this litigation in the Western District of North Carolina. This litigation currently consists of 19 actions pending in 19 districts, as listed on Schedule A.

Plaintiffs in all actions oppose centralization. In the event that the actions are centralized over their objection, they agree that the Western District of North Carolina is the appropriate district.

On the basis of the papers filed and the hearing session held,1 we find that these actions involve common questions of fact, and that centralization in the Western District of North Carolina will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. All actions share factual questions arising from nearly identical allegations that Lowe‘s fails to compensate Hourly Managers at its retail stores for work performed off-the-clock – principally, time spent opening and closing the stores when they cannot be logged on to Lowe‘s timekeeping system and time spent reading and responding to work-related smartphone communications while off duty. Additionally, the actions involve putative statewide classes that overlap with the conditionally certified nationwide FLSA collective in Danford.2 Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings (on FLSA certification, class certification, and other matters); and conserve the resources of the parties, their counsel, and the judiciary.

In opposing centralization, plaintiffs principally argue that (1) informal coordination is a practicable and preferable alternative to centralization, noting that plaintiffs in all actions are represented by the same counsel, and defendant Lowe‘s also has a single counsel acting as lead counsel in all actions; (2) Danford is more advanced than the other actions; and (3) localized issues are likely to arise in the 18 state law actions as Lowe‘s is expected to oppose class certification based on localized differences between stores. In response, defendants argue that the large number of districts makes informal coordination difficult and inefficient, and will not avoid the risk of inconsistent rulings. Defendants further assert that the inadequacy of informal coordination is clear from plaintiff‘s representation in related state court actions that formal coordination in a single forum is needed to efficiently manage discovery and avoid inconsistent rulings. They also argue that site-specific issues should not preclude centralization, considering plaintiffs’ allegation of “common and systemic payroll policies and practices” as to the conduct at issue. And they represent that Danford remains at an early stage of discovery – in particular, no depositions of Lowe‘s have been taken and there have been no significant document productions on the common issues.

On balance, we find that centralization is preferable to informal coordination in this litigation. While we strongly encourage informal coordination, the record before us indicates that it is impracticable in this litigation. There are 19 actions pending in 19 different districts and related litigation in state courts. Additionally, we believe that the overlapping issues presented by the nationwide FLSA action and the putative Rule 23 classes are best managed in a single venue, considering in particular that plaintiffs in nearly all of the state-specific actions are opt-in plaintiffs in the Danford action.3 All actions remain at a relatively early stage of pretrial proceedings, including Danford, and will benefit from common discovery as to the company-wide conduct alleged by plaintiffs.

We conclude that the Western District of North Carolina is an appropriate transferee forum. Lowe‘s, the sole defendant in all actions, has its headquarters there, and thus relevant documents and witnesses likely will be located in this district. Plaintiffs agree that this district is appropriate if the actions are centralized. The Honorable Kenneth D. Bell, Sr., who presides over the Danford action, is familiar with the issues in this litigation. We are confident he will steer this matter on a prudent course.

IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside the Western District of North Carolina are transferred to the Western District of North Carolina and, with the consent of that court, assigned to the Honorable Kenneth D. Bell, Sr., for coordinated or consolidated pretrial proceedings.

PANEL ON MULTIDISTRICT LITIGATION

Karen K. Caldwell

Chair

Ellen Segal Huvelle

Catherine D. Perry

Matthew F. Kennelly

R. David Proctor

Nathaniel M. Gorton

David C. Norton

IN RE: LOWE‘S COMPANIES, INC., FAIR LABOR STANDARDS ACT (FLSA) AND WAGE AND HOUR LITIGATION

MDL No. 2947

SCHEDULE A

District of Arizona

GROVE, ET AL. v. LOWE‘S COMPANIES, INC., ET AL., C.A. No. 2:20-00586

Eastern District of Arkansas

ESTES, ET AL. v. LOWE‘S COMPANIES, INC., ET AL., C.A. No. 4:20-00289

District of Colorado

BOGAERT, ET AL. v. LOWE‘S COMPANIES, INC., ET AL., C.A. No. 1:20-00695

District of Connecticut

BELASKI v. LOWE‘S COMPANIES, INC., ET AL., C.A. No. 3:20-00343

Central District of Illinois

FITZSIMMONS, ET AL. v. LOWE‘S COMPANIES, INC., ET AL., C.A. No. 1:20-01109

Western District of Kentucky

ANDERSON, ET AL. v. LOWE‘S COMPANIES, INC., ET AL., C.A. No. 3:20-00189

District of Maryland

HYDE, ET AL. v. LOWE‘S COMPANIES, INC., ET AL., C.A. No. 1:20-00678

District of Massachusetts

ROY, ET AL. v. LOWE‘S COMPANIES, INC., ET AL., C.A. No. 4:20-40029

District of Minnesota

NEAL v. LOWE‘S COMPANIES, INC., ET AL., C.A. No. 0:20-01003

Western District of Missouri

NELSON, ET AL. v. LOWE‘S COMPANIES, INC., ET AL., C.A. No. 4:20-00190

District of Nevada

RICKS, ET AL. v. LOWE‘S COMPANIES, INC., ET AL., C.A. No. 2:20-00515

District of New Jersey

GERBER, ET AL. v. LOWE‘S COMPANIES, INC., ET AL., C.A. No. 2:20-02773

District of New Mexico

MARTINEZ, ET AL. v. LOWE‘S COMPANIES, INC., ET AL., C.A. No. 2:20-00234

Eastern District of New York

TIRADO v. LOWE‘S COMPANIES, INC., ET AL., C.A. No. 1:20-01472

Western District of North Carolina

DANFORD, ET AL. v. LOWE‘S COMPANIES, INC., ET AL., C.A. No. 5:19-00041

Southern District of Ohio

RUMPKE, ET AL. v. LOWE‘S COMPANIES, INC., ET AL., C.A. No. 2:20-01411

District of South Carolina

FORTE, ET AL. v. LOWE‘S COMPANY, INC., ET AL., C.A. No. 2:20-01108

Eastern District of Washington

CLEAVENGER, ET AL. v. LOWE‘S COMPANIES, INC., ET AL., C.A. No. 4:20-05049

Southern District of West Virginia

BOYCE, ET AL. v. LOWE‘S COMPANIES, INC., ET AL., C.A. No. 2:20-00228

Notes

1
In light of the concerns about the spread of COVID-19 virus (coronavirus), the Panel heard oral argument by videoconference at its hearing session of July 30, 2020. See Suppl. Notice of Hearing Session, MDL No. 2947 (J.P.M.L. July 14, 2020), ECF No. 22.
2
The 18 putative statewide class actions filed outside of North Carolina also overlap with the putative nationwide class in Danford. At oral argument, plaintiffs’ counsel stated that plaintiffs in Danford will not move for certification of the proposed nationwide class. The potential abandonment of the nationwide class allegations in Danford does not alter our analysis.
3
See, e.g., In re Amazon.com, Inc. Fulfillment Ctr. Fair Labor Standards Act (FLSA) & Wage & Hour Litig., 999 F. Supp. 2d 1375, 1376 (J.P.M.L. 2014) (“Given the overlap in the FLSA collective action certification issues and the Rule 23 proposed classes, the litigation will benefit from management in a single venue.“).