Within a few days, Comcast puts its stamp on labor cases

thomsonreuters.com Carlyn Kolker
April 3, 2013

Just one week after the U.S. Supreme Court issued a decision limiting the criteria by which classes can be certified, repercussions are already percolating through labor and employment cases.

In Comcast v. Behrend, the court ruled 5-4 on March 27 that 2 million Comcast subscribers could not bring antitrust claims as a class, saying the plaintiffs failed to show that damages could be accurately measured for the group.

On Monday, the Supreme Court cited that decision as it vacated a ruling by the 7th Circuit Court of Appeals, which had allowed a class action to proceed against RBS Citizens alleging violations of the federal wage-and-hour law. The Supreme Court remanded the case, Ross v. RBS Citizens, to the Chicago-based appeals court for further consideration. While the remand does not necessarily mean the 7th Circuit will reverse its previous ruling, it gives the defense an opportunity to revisit the case, armed with new law from the high court.

No sooner had the Supreme Court issued its order in Ross than lawyers representing RBS Citizens in a related case seized on it. On Monday, on the eve of a trial in federal court in Pittsburgh, RBS Citizens’ counsel at Proskauer Rose asked U.S. District Judge Gary Lancaster to consider decertifying a class of assistant branch managers suing the bank over violations of wage-and-hour laws. The Supreme Court’s order in the Ross v. RBS Citizens and its decision in the Comcast case make the certification issue “ripe for re-examination,” Proskauer lawyers argued. Lancaster did not rule on RBS Citizens’ motion, and a jury was selected in the case on Tuesday.

Even before the Ross order, at least one other judge had cited Comcast in an employment case. On March 29, just two days after the Comcast decision, U.S. District Judge Thomas McAvoy ruled that, based on the Comcast decision, a group of workers at Applebee’s restaurants in New York and Connecticut could not pursue some of their wage-and-hour claims against the restaurant operator as a class action. McAvoy found that, as in the Comcast case, plaintiffs did not have a consistent theory of damages that cut across all class members. “In the instant case, plaintiffs have not offered a damages model susceptible of measurement across the entire class, arguing instead that this issue is separate from the question of liability,” McAvoy wrote.

                  *                   *                   *

Justin Swartz, an attorney at Outten & Golden who represents employees in employment litigation, predicted that Comcast’s effect on wage-and-hour cases will be muted because the ruling focused narrowly on how damages are construed, typically not a controversial issue in wage-and-hour cases.

“I expect the management bar will take a shot at knocking out unpaid wage cases based on Comcast, just like they did in Wal-Mart v. Dukes and every other inapplicable Supreme Court decision they think might give them some traction,” Swartz said. “But in the end, wage-and-hour cases are simple challenges to illegal pay policies and are almost always perfect for class certification.”

                    *                   *                   *