The Wage and Hour Litigation Blog

Co-authored by Laura Reasons, Giselle Donado, and Noah Finkel

In an opinion likely to make it more difficult for wage-hour plaintiffs to certify a class action and maintain certification of a collective action, the Seventh Circuit affirmed the Western District of Wisconsin’s decertification decision in Espenscheid v. DirectSat USA, LLC on the grounds that trial was not manageable under the plan submitted by plaintiffs, where determining damages would require 2,341 separate evidentiary hearings.  We previously discussed the District Court’s decision here (and thus will not rehash the background facts).  Espenschied is a very important decision that could shape the wage-hour certification landscape because of its holding that ultimate certification of a collective action is subject to the same standard as a Rule 23 class action, its requirement that damages in a wage-hour case be capable of being determined through common proof, and its emphasis on a workable, trial plan as a predicate for class and collective action certification.

In the Seventh Circuit’s opinion, Judge Posner started from the premise that, for certification purposes, there is no reason to treat a state-law wage-hour class action brought pursuant Federal Rule of Civil Procedure 23 differently from a collective action under Section 216(b) of the FLSA.  It explained that the district court correctly held that plaintiffs had not presented a feasible trial plan.  Determining damages would require 2,341 separate evidentiary hearings.  This was not a case where, for example, each technician worked from 8 a.m. to 5 p.m. and was forbidden to take a lunch break.  The court reasoned that, in such a case, damages could be calculated formulaically by a computer program.  But in this case, damages for each individual plaintiff would have to be determined separately by a trier of fact, as such determinations would turn on individual facts such as a workers’ effort and efficiency, different tasks performed, and the reasons the workers did not record certain tasks.  Those same factors are present in several off-the-clock collective or class actions

The Seventh Circuit also upheld the district court’s rejection of plaintiffs’ proposal to present trial testimony from 42 “representative” members of the 2,341-person class.  This proposal was problematic because it did not appear that the “representatives” were chosen in a statistically sound manner.  Moreover, extrapolating damages of the “representatives” to the whole could result in conferring a windfall on some, while shorting others.  Indeed, plaintiffs themselves acknowledged at argument that it would be “[d]ifficult for Plaintiffs to provide an objective framework for identifying each class member within the current class definitions without making individualized findings of liability.”

The court stated that class counsel “must think that like most class actions suits this one would not be tried -- that if we ordered a class or classes certified DirectSat would settle.  That may be a realistic conjecture, but class counsel cannot be permitted to force settlement by refusing to agree to a reasonable method of trial should settlement negotiations fail.”  The court wrote that class counsel essentially had “asked the district judge to embark on a shapeless, free-wheeling trial that would combine liability and damages and be would virtually evidence free as far as damages were concerned.”  This, the Seventh Circuit would not allow and thus upheld the district court’s decertification decision.

With this opinion, the Seventh Circuit has given employers some improved tools to defend against class and collective claims.  This decision demonstrates an emerging trend to treat Section16(b) collective actions and Rule 23 class actions as one for purposes of analyzing certification.  Judge Posner expressly stated that “there isn’t a good reason to have different standards for the certification of two different types of action, and the case law has largely merged the standards, though with some terminological differences.”  With that in mind, Judge Posner reviewed the district court’s decision to decertify the three subclasses, treating “the entire set of suits before [the court] as if it were a single class action.”  Few appellate courts, or district courts for that matter, have set forth the level of common proof that collective action plaintiffs must set forth at the ultimate certification stage.  The Sixth Circuit, for example, has suggested that it may be similar to the standard for joinder under Federal Rule 20.  O’Brien v. Ed Donnelley Enterprises, Inc. 575 F.3d 567, 584-86 (6th Cir. 2009).  The Seventh Circuit takes the different view that the standard is more in line with the rigorous standard under Rule 23.  In doing so, Espenschied  brings the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes into the fold for 216(b) collective actions by using Rule 23’s commonality standard to drive the certification decision. 

This decision also puts the onus on plaintiffs seeking certification of large classes based on a “representative” sample to provide evidence that the claims and damages of all class members can be readily ascertained from the sampling in order to satisfy Rule 23’s commonality standard.  Indeed, plaintiffs’ inability to articulate how their “representative” sample was truly representative was fatal to certification.  Importantly, Judge Posner suggests that even differences in damages among the class members might be reason enough not to allow certification.  Offering a purportedly “representative” sample of class members, without more, likely will no longer be sufficient.  Here, Dukes’ guidance on statistical evidence will prove useful to employers by providing a high threshold for what statistical evidence plaintiffs may use as the glue that binds the claims and damages of class members.  With that in mind, employers would be wise to prepare a discovery plan that demands that plaintiffs establish the validity of the “representative” nature of their class sample with respect to their claims and damages.  This strategy may prove useful in limiting the class to the individual representatives, and foster an early settlement given the heavy burden plaintiffs will face to validate their “representative” sample. 

Finally, Espenschied makes clear that practical considerations are not to be ignored at the ultimate certification stage.  The Seventh Circuit gave much weight to the fact that the plaintiffs did not offer a feasible way for determining liability and damages based upon their representative sample, and noted that while, as a practical reality, most certified classes do go on to settle, that does not obviate the need to provide evidence that plaintiffs are able to calculate damages in a meaningful way for all class members.  Employers would be wise to demand a trial plan from plaintiffs explaining how they will attempt to ask the court to determine liability and damages for the class, particularly in those cases where plaintiffs rely on a representative sample.  Any failure by plaintiffs to provide a feasible plan to ascertain the claims and damages should prove useful in opposing certification.  Indeed, these practical considerations also may be worth raising at the conditional certification stage.  While the standard is a lenient one, alerting the court that plaintiffs’ claims present significant practical hurdles that cannot be cured may sway the court.  The court’s message in Espenscheid  was clear--judicial resources should not be wasted simply to facilitate a settlement of a class whose claims are not ascertainable and damages are not readily calculable without individualized findings.

Co-authored by Brett Bartlett and Kevin Young

Last month, we reported on a ruling handed down by Judge Scott Coogler, a U.S. District Court Judge in Alabama, decertifying a nationwide FLSA collective action of store managers who claimed that they were misclassified as overtime-exempt.  As is common in store manager cases under the FLSA, the plaintiffs in that case, Knott v. Dollar Tree Stores, essentially argued that they should be thought of as managed rather than managing—this, despite the fact that each  was the highest-ranking employee in his or her store.  Who ran the stores, one might ask?  The district managers…the regional managers…the corporate manual…anyone but the store managers, the plaintiff-store managers argued.  In decertifying the collective, Judge Coogler made clear not only that the FLSA’s executive exemption was in play, but also that its duty-specific nature left no room to force Dollar Tree to argue the defense on a one size fits all basis.

One month later, we can report a nearly identical result in a remarkably similar case: on Monday, Judge Coogler decertified another nationwide collective action of store managers for a large retail chain, Dollar General Stores, who alleged that they were misclassified due to the prevalence of their non-management duties.  The named plaintiff, Cynthia Richter, won conditional certification in March 2007, and thousands of current and former store managers joined the litigation thereafter.  Over five years later, Judge Coogler’s decertification order means that those who joined the case will likely be dismissed. 

Richter is an important decision, in part because of the district  court’s handling of Morgan v. Family Dollar, a store manager misclassification case in which the Eleventh Circuit upheld a $35 million verdict and refused to reverse a pretrial decision denying the employer’s decertification motion.  Since it came down in 2008, plaintiffs have cited Morgan routinely and indiscriminately in their efforts to resist decertification, often drawing upon facts from that case that could be established against any large employer—a uniform classification decision was made, a single job description existed, a handbook was in place.

Morgan was the strategy in Richter, where the plaintiffs argued, among other things, that: (i) the employer made a single decision to classify the manager position as exempt, rather than on an employee-by-employee basis—just like in Morgan; (ii) the managers were expected to adhere to a company handbook and operating manual—just like in Morgan; (iii) the employer had one job description for the manager position—just like in Morgan; and (iv) the managers spent much of their time on non-management work—just like in Morgan.  These facts were “virtually identical” to Morgan, the plaintiffs argued, and therefore necessitated the same result.

Judge Coogler offer a multifold rejection of the plaintiffs’ Morgan offensive.  First, the district judge explained, Morgan merely upheld the trial court’s decision permitting the store managers in that case to proceed to trial collectively as something less than an “abuse of discretion.”  “It does not necessarily follow,” Judge Coogler explained, “that a contrary ruling would have been an abuse of the district court’s discretion.”  In other words, just because denying decertification was not utterly wrong does not necessitate that it was right. 

Second, Judge Coogler rejected the plaintiffs’ assertions that evidence that they spent over half their time on non-management duties was similar to Morgan and sufficient to bind them together for trial.  Judge Coogler correctly noted that, under the FLSA, even employees who spend over half their time on non-exempt work may be exempt.  Moreover, even if the plaintiffs spent similar amounts of time on management duties, the relative importance of each type of work could lead to differing determinations on their “primary duty,” the touchstone of exempt status.  For example, the plaintiffs managed entirely different stores, which impacted the nature and extent of their exempt work (e.g., larger stores have more associates to manage, stores in high-crime areas require a greater focus on asset protection, etc.).

Third, and perhaps most importantly, in considering the fairness of forcing Dollar General to a collective action trial, Judge Coogler rejected the argument that because the company made a universal classification decision, like the defendant in Morgan, the court could and should try its exemption defense on a universal basis.  The exemption turns on an assessment of an employee’s actual management duties—it could work for one store manager and not another.  Recognizing this, Judge Coogler explained that while a single, massive trial might be most efficient, such efficiency “cannot be obtained at the expense of Dollar General’s due process rights.”  This reasoning is especially important because it is remarkably similar to the Supreme Court’s due process holding in Wal-Mart v. Dukes, which, as we have discussed before, is a game-changing case whose application in the FLSA arena is still being decided.

Judge Coogler’s decision is an important one.  At a time when plaintiffs have come to reflexively cite Morgan to raise and preserve massive collectives, his ruling recognizes that Morgan did not hold that the trial court got it right in permitting an FLSA collective action trial, but rather that it had not gotten it completely wrong.  And a time when Dukes’ applicability in collective actions is still being charted, his ruling draws upon the very due process concerns annunciated in that case, which dictate that it is not okay to trade the right of a litigant—even a corporate litigant—to defend itself for some measure of efficiency or cost savings.

Co-authored by Brett Bartlett and Kevin Young

Any employer that has faced a putative FLSA collective action in Florida, Georgia, or Alabama since 2008 should be aware of Morgan v. Family Dollar Stores, Inc., a case in which the Eleventh Circuit upheld a $35 million trial verdict against the Family Dollar chain and refused to reverse a pretrial decision to allow the store manager misclassification case to proceed collectively in the first place.  Plaintiffs have since rung the Morgan bell often and indiscriminately, likening their cases to Morgan because of perceived similarities among the employees in their cases and those who sued Family Dollar.  An employer decided to classify all individuals in a position as exempt?  “That happened in Morgan, too!”  The employer had a manual describing its expectations of the employees in its stores?  “So did Family Dollar!”  Morgan, these plaintiffs have exclaimed, has required that employees like these must be “similarly situated,” the key requirement to proceed collectively.  After all, the Eleventh Circuit upheld the multi-million dollar verdict against Family Dollar.

But could they be wrong?  Would a district court in the Eleventh Circuit ever again decertify a store manager misclassification case?  The answer is yes.  The latest example surfaced early last week, arising from the very district court from which Morgan arose.  In a 21-page ruling, The Honorable Scott Coogler, of the Northern District of Alabama, decertified the conditionally-certified class in Knott et al. v. Dollar Tree Stores, Inc., which included 260+ Store Managers of various Dollar Tree stores who urged the court to deny decertification in their case because it was “nearly identical” to Morgan. 

It all began six years ago, when Susie Knott, a former Store Manager of a Dollar Tree in Tuscaloosa, Alabama, filed an FLSA collective action alleging that Dollar Tree misclassified her and all of its other Store Managers as overtime-exempt.  She alleged that the Store Managers—who, as the highest-ranking employees at their respective stores, were classified as exempt managers—were misclassified because their managerial duties were in fact “non-existent or extremely minimal.”  Each store’s management, she alleged, “was left to the District Manager[s],” not to the Store Managers themselves.  In 2007, she convinced the court to conditionally certify her alleged class and to authorize her attorneys to distribute notice of the lawsuit to Dollar Tree’s Store Managers across the country.

After what Judge Coogler described as “a war” between the parties over discovery, Dollar Tree moved to decertify Knott’s conditionally certified collective action.  The company argued that the evidence developed during discovery proved that Store Managers were not similarly situated because their duties varied significantly across the class, and that the duties that varied were the very ones that would ultimately dictate whether Dollar Tree properly classified each as overtime-exempt.  For example, Store Managers’ involvement in adjusting employees’ pay rates, evaluating them, training them, disciplining them, and securing the store would eventually be the duties examined to determine whether each was exempt, and the evidence showed—according to Dollar Tree—clear variation from manager to manager. 

Knott simply could not sustain her burden to establish that she and those managers who opted into her case were similarly situated despite all of the evident variations among them.  She argued that every Dollar Tree store was controlled tightly and identically, and that Store Managers like her spent over half of their time on non-management tasks (e.g., sweeping the parking lot, running the cash register, stocking shelves).  She also argued that the company could not possibly prevail at decertification because they had in fact classified everyone the same, as if everyone performed the same duties.  Judge Coogler didn’t buy it.

In granting Dollar Tree’s decertification motion, the court found that Knott and the other Store Managers failed to establish that they were similarly situated.  The evidence revealed too many differences in their management duties.  While some “may have performed uniform tasks mandated by a corporate manual, others routinely exercised their independent judgment and the amount of time they spent performing managerial duties is a matter of individual inquiry.”  “While the differences in the amount of time spent on any individual act of ‘management,’ such as training associates, might not seem material,” the judge explained, “as a whole [they] could … lead to differing conclusions as to each employee’s ‘primary duty.’”  Morgan could not save the class, even though Knott argued that her case was “nearly identical” to the one that sparked that lightning-rod ruling.

On that point, Judge Coogler’s sage ruling speaks volumes.  He recognized that the Eleventh Circuit in Morgan did not hold that the district court in that case got it right.  Rather, the appellate court “simply decid[ed] that the district court had not abused its discretion by finding the multiple plaintiffs similarly situated.”  In other words, the Eleventh Circuit held only that the district court had not gotten it completely wrong—it had not committed clear error when it denied Family Dollar’s motion to decertify.  The point?  Even in a case “nearly identical” to Morgan, provable differences in management duties across a class will justify decertification.

Given the landscape of FLSA litigation in the Eleventh Circuit and across the country, it would not be shocking to see Knott appeal this ruling, be it in the weeks to come or after her claims are resolved.  As many courts considering the case have noted, however, Morgan does not require a collective action trial of every misclassification case with arguably similar facts.  And if the Eleventh Circuit were to apply the same abuse-of-discretion in Knott’s case as it did in Morgan, Dollar Tree—and employers that take heart in its decertification victory—almost certainly will not be disappointed.

Co-authored by Jon Meer and Brandon McKelvey

On Tuesday, a California trial court judge in Los Angeles issued a tentative ruling denying class certification in a proposed meal and rest period class action relying on the Supreme Court's recent decision in Brinker. This appears to be the first court in California to deny class certification in a proposed wage-hour class action following Brinker. If the tentative ruling is upheld, this may be a good signal for employers as to how courts will analyze class certification in meal and rest period cases following Brinker.

The lawsuit alleged that a proposed class of engineers working on cellular telephone cites throughout California were allegedly misclassified as independent contractors and not provided with meal and rest periods. Plaintiffs sued Telecom Network Specialists ("TNS"), and a variety of staffing agencies who provided engineers to TNS were also named in the suit. Seyfarth Shaw represents one of the staffing agencies named in the suit and opposed class certification along with attorneys for TNS.

At the hearing on plaintiffs' class certification motion, the Honorable John Shepard Wiley, a Los Angeles County Superior Court complex litigation judge, issued his tentative ruling denying the class certification motion and appeared inclined to adopt the tentative ruling as the final ruling. Relying heavily on Brinker, the court found that class treatment for meal and rest breaks is inappropriate based on evidence in the record showing no uniformity of policy or circumstance. The court explained that, "There is no single way to determine whether TNS is liable to the class for failure to provide breaks.  Some workers did not get breaks.  Other workers were on their own and at complete liberty to take breaks as they pleased, with no time or management pressure."  The court indicated that it would take "hundreds of witnesses" to sort this out and determine whether there was or was not liability for improper breaks.  The court went on to say, "This is not a practical trial. It is unworkable. The proposal to analyze these disputes as a class matter does not make common sense."

The court also rejected plaintiffs' reliance on the concurrence in Brinker. The court said, "[plaintiff] repeatedly cites the Brinker concurrence. The concurrence commanded only two votes. It is not the law."  This may be a good initial sign for employers who wondered how trial courts would interpret the Brinker concurrence, which seemed to suggest a lower bar for class certification in meal period cases than was provided by the actual unanimous decision.

Seyfarth Shaw will provide an update on this blog once the decision is final.

Authored by:  Noah Finkel, Brett Bartlett, Andrew Paley and Richard Alfred

Members of Seyfarth Shaw's Wage and Hour Litigation Practice Group have authored Wage & Hour Collective and Class Litigation, the first-of-its kind treatise on wage and hour litigation. Published by American Lawyer Media's Law Journal Press, the 912-page volume is the most comprehensive guide published to date that focuses on litigation strategy through all phases of wage and hour lawsuits, the area of high-stakes litigation that, as readers of this blog well know, has plagued employers in recent years.  Indeed, wage and hour lawsuits have outpaced all other types of workplace class actions in recent years, and have surged by more than 325% since the early 2000s.

The book blueprints the mechanics of wage and hour cases, examines how employers in multiple industries are targeted for wage and hour lawsuits, and provides substantive procedural and practical considerations that determine the outcome of such actions in today’s courts.  Principally designed to assist employment litigators and in-house counsel, Seyfarth’s book should also prove useful to senior management seeking to fend off wage-hour actions before they strike.

The guide has already received praise from the Honorable Elaine L. Chao, the 24th U.S. Secretary of Labor, who stated: “Given the recent explosion of wage and hour litigation, both management- and plaintiff-side attorneys will find this publication to be an invaluable reference. With its painstaking attention to the law and procedure, this treatise will certainly be the go-to resource when practitioners ponder questions of strategy and substance in the context of wage and hour cases.”

The book was authored by Noah Finkel, Brett Bartlett and Andrew Paley, who practice in the firm’s Chicago, Atlanta and Los Angeles offices respectively. Richard Alfred, Boston-based chair of  Seyfarth’s national Wage & Hour Litigation Practice, served as senior editor.  More than 70 other Seyfarth attorneys, many of them regular contributors to this blog, contributed to the book, which will be updated regularly.

Wage & Hour Collective and Class Litigation takes up 27 chapters and covers the complex rules surrounding all types of wage and hour lawsuits. These include claims under the Fair Labor Standards Act, claims under state wage and hour laws, or hybrid cases involving both, as well as special issues involving government contractors. It advises employers on:  how to respond to a wage and hour complaint; what to consider when deciding whether to remove a case to federal court; how to assess the particular merits of a claim; whether to settle; how to oppose plaintiffs' motion to facilitate notice for conditional certification; what kinds of affirmative defenses are best; and how to tilt the odds in favor of the defense.

Among topics covered by the book:

• The certification process and the impact of conditional certification
• Decertification and its sometimes unexpected consequences
• Defending against state law wage and hour class actions brought under Federal Rule of Civil Procedure 23
• Discovery issues and strategies in class and collective actions
• Special considerations under California law, one of the country’s leading venues for wage-hour cases
• Issues raised by ERISA claims in wage and hour cases
• Coordinating or consolidating multiple simultaneous class actions
• Meeting the duty to preserve information, including electronically stored information
• The pros and cons of arbitration
• Motions for summary judgment and the optimal time to file
• Civil remedies, including calculation of unpaid overtime and liquidated damages
• Actions by the Secretary of Labor to recover unpaid wages and overtime
• Defending  "independent contractor"  cases
• Calculating the  "regular rate"  for purposes of the FLSA

Wage & Hour Collective and Class Litigation can be purchased from Law Journal Press by clicking here.  Readers of Seyfarth's Wage & Hour Litigation blog can use discount code 2128982 at checkout to obtain a special discounted introductory price of $195 for the print & online access bundle or $163 for online access only. The purchase price includes a one-year long subscription to all updates.

Authored by Brandon McKelvey

Relying on the Supreme Court's recent decision in Dukes v. Wal-Mart, a federal judge in California decertified a class of Dollar Tree store managers claiming they were misclassified as managers under California law.  The Supreme Court's decision in Dukes, as well as recent Ninth Circuit decisions in employment class action cases, persuaded the court that the class he had previously certified could not proceed to trial as a class action because of "unmanageable difficulties." 

 Over the course of two years plaintiffs saw what was once a certified class slowly whittle away in the wake of Ninth Circuit and Supreme Court decisions denying class action treatment in employment cases.  In May 2009, the court initially certified a class of 718 store managers based on Dollar Tree's practice of having the store managers answer "yes" or "no" on a weekly payroll certification form that asked whether they spent the majority of their time performing management duties.  In September 2010, however, the court partially decertified and narrowed the class to the 273 managers who answered "no" on the weekly payroll certification in response to the Ninth Circuit's decisions in Vinole v. Countrywide Home Loans, Inc. and In re Wells Fargo Home Mortgage Overtime Pay Litigation. 

 After the court's partial decertification order, both parties presented evidence that the payroll certification forms were not reliable, including testimony from class members under oath that the certifications were not truthful.  Based on this testimony plaintiffs revealed that at trial they would rely on individual testimony as opposed to the payroll certification forms.  The court found that plaintiffs' proposed plan to try the case based on representative testimony from a handful of class members, while questionable under prior law, was untenable in light of the Ninth Circuit's decision in Marlo v. UPS and the Supreme Court's decision in Dukes.  The court pointed out that both Marlo and Dukes required class action plaintiffs to produce common proof of class-wide liability and that the plaintiffs had failed to produce such proof by relying solely on the testimony of individual class members.  The court concluded that without the common element of the certification form responses, there was no "glue" holding all of the individualized experiences of the class members together and thus continued class treatment was inappropriate.   

 The court's decertification of the class is consistent with rulings from the Supreme Court and Circuit Courts denying class action treatment in employment class action cases, particularly those involving misclassification claims.

Authored by Dana Fleming

The Ninth Circuit recently affirmed a district court decision to decertify a class of full-time supervisors employed by United Parcel Service, Inc. (“UPS”) where the only basis for class-wide treatment was UPS’s uniform policy treating all of its supervisors as exempt from overtime pay and meal- and rest-break requirements.  A common strategy of plaintiffs’ counsel is to base their class certification argument on the argument that the mere existence of a uniform policy or practice treating a challenged job in a misclassification case as exempt suffices to obtain class certification for Rule 23 purposes.  In Marlo v. UPS, a case decided recently by the Ninth Circuit, the court rejected that argument.

Marlo sued UPS in 2003 on a class basis, claiming that UPS misclassified its full-time supervisors as exempt under California law.  The district court initially certified a class of approximately 1,200 full-time supervisors.  The following year, the district court granted summary judgment for UPS, but Marlo appealed, and the Ninth Circuit reversed and remanded. 

On remand, the district court decertified the class, concluding that the existence of a uniform policy classifying all supervisors as exempt was insufficient to proceed on a class-wide basis.  The court also concluded that California law requires a week-by-week showing that the work actually performed by employees will qualify them for exemption. 

Marlo proceeded to trial on an individual basis, and the jury returned a partial verdict in his favor. UPS and Marlo both appealed.

The Ninth Circuit affirmed both the district court’s decision to decertify the class and (unfortunately for UPS) the $1.4 million jury verdict for Marlo.  After reviewing the district court’s reasoning in the case, the Ninth Circuit found no abuse of discretion and concurred that Marlo had failed to satisfy his burden to establish predominance because he had only submitted evidence of UPS’s centralized control and its uniform policies and practices.  In the Ninth Circuit’s own words:  “The fact that UPS expects supervisors to follow certain procedures or perform certain tasks does not establish whether they actually are ‘primarily engaged’ in exempt activities during the course of the workweek.”

To maintain class certification, the court ruled, Marlo had to do more than point to a few general corporate policies about the exempt status or general duties of UPS supervisors.  He had to provide some “common proof” that all full-time supervisors at the company were actually engaged in nonexempt work.  This, the Ninth Circuit concluded, Marlo had failed to do. 

The Ninth’s Circuit decision in Marlo is consistent with recent rulings from the U.S. Supreme Court and Circuit Courts, which suggest closer scrutiny of certification decisions and a possible trend away from large-scale class action treatment.  Of course, the much anticipated Supreme Court decision in Dukes v. Wal-Mart will provide further guidance on this issue. (See Seyfarth Shaw's March 29, 2011 Management Alert for additional information in Dukes v. Wal-Mart.)