Recent State Supreme Court Decision On Class Certification Raises A Question:

What Do Washington Courts Think About Wal-Mart Stores, Inc. v. Dukes?

 

Jeff Bone | May 2, 2018

Washington state trial and appellate courts, particularly King County Superior Court and Division I of the Court of Appeals, have a reputation for being plaintiff-friendly when it comes to class certification. A recent decision from the Washington Supreme Court, Chavez v. Our Lady of Lourdes Hospital at Pasco, will do nothing to change that reputation, and it raises questions about the extent to which Washington state class certification law remains in line with federal law, particularly the U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).[1]

In Chavez, the Court unanimously reversed a decision by the trial court and Court of Appeals (Division III), both of whom denied class certification to a putative class of hospital nurses, who were suing their employer for allegedly failing to ensure they could take breaks and failing to compensate them for missed breaks.[2] The Court’s decision focused on two key issues in the certification analysis: (1) whether common issues predominated over individual ones, and (2) whether a class action was superior to other methods of adjudication.[3]

Regarding the predominance element, the Court found that there was one common issue that predominated over all individual issues: “whether [the hospital] failed to ensure nurses could take breaks and record missed breaks.”[4] However, in finding that this was a common issue, the Court relied solely on declarations from Plaintiff witnesses who stated that there was no system in place to ensure that they received breaks and that any missed breaks were recorded.[5] In doing so, the Court ignored contrary testimony from nurse declarations submitted by the hospital stating that, in at least some departments (there were nine separate departments at issue), or some shifts within a department, nurses were given the opportunity to take breaks and any missed breaks were recorded and compensated. This evidence was before the trial court, and was detailed extensively by the Court of Appeals in its opinion.[6]

The Court’s decision also did not discuss whether the common question that it had identified would “generate common answers apt to drive the resolution of the litigation,” [7] as the U.S. Supreme Court required in Dukes.[8] Indeed, it did not mention Dukes at all. This, despite the fact that Washington state courts have traditionally looked to federal Rule 23 case law when considering class certification requests, and the Washington Supreme Court has stated that federal cases interpreting Federal Rule of Civil Procedure 23 are “highly persuasive.”[9] Indeed, the Chavez Court relied on other U.S. Supreme Court decisions in its opinion.[10]

This omission of Dukes from its discussion is notable. Dukes was issued on June 20, 2011 – almost seven years ago. Since then, it has been cited by exactly one Washington appellate court in 2014, and then only for the proposition that Rule 23 is more than a mere pleading standard.[11] In the Chavez case, its applicability could have had a significant impact on the class certification decision.[12]

The lack of analysis within Washington state court of Dukes is problematic, particularly given the willingness of state courts to grant certification. And it has real-world implications on litigation. I had a joint employment class action a few years ago where the trial court – without addressing Dukes – granted a motion to certify a class on the theory that whether my client was a joint employer was an issue that could be decided on a class-wide basis, even though the Court expressly noted that resolution of that issue would not resolve the central issue of liability, and that addressing the issue of liability would in all likelihood require decertifying, or narrowing, the class.

This lack of discussion in Washington decisions about Dukes and its effect on the class certification analysis raises the issue of whether Washington State might split from federal authorities on its applicability. At the very least, it would be helpful for counsel (for both plaintiffs and defendants) in class action litigation if the Court of Appeals or, preferably, the Supreme Court, provided some discussion on Dukes and how it fits into class certification analysis in Washington state court.

 


 

[1] 2018 WL 1866918 (Apr. 19, 2018).

[2] Id. at *1.

[3] Civil Rule 23(a) provides that a plaintiff seeking class certification must show that “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the presentative parties will fairly and adequately protect the interests of the class.” In most cases where the predominant form of relief sought is monetary damages, the plaintiff must also meet the requirements of Civil Rule 23(b)(3), which requires a finding that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.”

[4] 2018 WL 1866918, *4.

[5] Id. (“Plaintiff-witnesses affirmed under oath that there was no system in place to ensure they received breaks . . . . Plaintiff-witnesses affirmed under oath that they were never paid for missed breaks . . . . Thus, the dominant and overriding issue common to all putative class members is whether [the hospital] failed to ensure nurses could take breaks and record missed breaks.”).

[6] See Chavez v. Our Lady of Lourdes Hosp. at Pasco, 197 Wash. App. 1067, *5-*10 (2017).

[7] See Dukes, 564 U.S. at 350.

[8] While Dukes involved an analysis of Rule 23(a)(2)’s commonality requirement, it logically follows that, if a plaintiff cannot demonstrate a common question, he or she cannot show that common questions predominate over individual ones.

[9] See Schnall v. AT & T Wireless Servs., Inc., 171 Wash. 2d 260, 271 (2011).

[10] See, e.g., Chavez, 2018 WL 1866918, at *2 (citing Comcast Corp. v Behrand, 569 U.S. 27 (2013)) and *6 (discussing in some detail Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036 (2016).

[11] See Admasu v. Port of Seattle, 185 Wash. App. 23, 33 n. 18 (2014).

[12] As noted above, the Court of Appeals extensively detailed evidence offered by the hospital that at least raises the issue as to whether the common question identified by the Supreme Court could generate a common answer. Based on that evidence, it appears at least possible that, in some departments, or for some shifts within some departments, nurses were not afforded breaks or compensated for missing them, while in other departments or shifts, nurses were both afforded the opportunity to take breaks and received compensation for any they chose to miss.

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