Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 145 holding, employers now have a strong due process argument in wage-hour cases that even if a statutory violation is found, they are entitled to present individual defenses to each class or collective action member’s entitlement to the back wages sought in the litigation. The argument is even stronger in FLSA collective actions because an individual must affirmatively consent to be a member of the case, at which point he becomes a party plaintiff for purposes of adjudicating his individual claims. Dukes has created a somewhat friendlier environment for employers defending against wage-hour claims. As always, the strongest defense to potential wage-hour claims is vigilant attention to compliance efforts before litigation arises, including the adoption, distribution, and effective enforcement of internal policies mandating compliance with federal and state labor laws. Such policies remain the most important weapon in the employer’s defense arsenal, and their importance has been magnified after Dukes, since their existence and enforcement on a company-wide basis underscores the atypical, “one off” nature of any alleged violations that may have occurred. F. In Comcast v. Behrend, The Supreme Court Emphasizes That It Meant What It Said in Dukes In 2013 the United States Supreme Court, in Comcast Corp. v. Behrend,731 reaffirmed Dukes’ direction that district courts must conduct a “rigorous analysis” to ensure that Rule 23 requirements have been satisfied, even if doing so would require consideration of the merits of the plaintiffs’ claims.732 The Court held that the trial court had improperly certified a class in this antitrust action, as the plaintiffs failed to establish a sufficient connection between their alleged theory of liability and their claimed damages. 1. The Supreme Court Holding The Supreme Court held that the class action was improperly certified under Rule 23(b)(3). The Rule “does not set forth a mere pleading standard.”733 Rather, a party must not only “be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact,” typicality of claims or defenses, and adequacy of representation, as required by Rule 23(a). The party must also satisfy, through evidentiary proof, at least one provision of Rule 23(b). The provision at issue here was Rule 23(b)(3), which requires a court to find that “the questions of law or fact common to class members predominate over any questions affecting only individual members.”734 A court considering that issue may need to “probe behind the pleadings before coming to rest on the certification question,” an analysis that “will frequently overlap with the merits of the plaintiff's underlying claim.”735 2. The Antitrust Claim According to the plaintiffs, Comcast had engaged in “clustering” cable television operations in the Philadelphia region. Comcast acquired competitor providers and swapped their own systems outside a particular region for competitor systems in the region. By 2007, Comcast's dominance of the Philadelphia Designated Market Area 731 133 S. Ct. 1426 (2013). 732 Id. at 1433. 733 Id. at 1432. 734 Id. 735 Id.
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