On February 17, Judge Nancy Wieben Stock of the Orange County Superior Court denied Plaintiffs’ motion for class certification in the 40,000+ member proposed class in McSwain v. Rite Aid.

Our office has been counsel for Rite Aid in this case since 2008, and for the company since 1998.   The case involved allegations that plaintiffs were denied meal and rest breaks as hourly employees at Rite Aid from 2004.  Contact Jonathan Allan Klein, Michael Early or Rachel Hulst with questions.

Judge Stock’s Order is below:

Plaintiff’s Motion to Certify Class

The Motion is Denied.

Typical Claim(s). Plaintiff’s Motion wholly fails for lack of sufficient supporting evidence to establish the critical elements of why a Class Action is a Superior vehicle.  While purporting to represent over 40,000 non-exempt employees, Plaintiff’s motion is essentially based upon  a single incomplete declaration, combined with an unhelpful Supplemental declaration in Reply.  The Declarations, taken together, even if not impeached, do not establish Labor Code violations.  Indeed, they do not establish that lack of compensation for any missed or shortened meal or rest breaks, not the circumstances of same, over a 13 year period.  The Declarations are rife with conclusions and opinions about what the Employer was thinking, or not doing, all without evidentiary support.  It gets worse, when one considers the impeaching evidence of Plaintiffs prior sworn statements, offered by Defendant.

Adequacy of Class Representative. A plaintiff who seeks to represent a class must have a credible claim so that the typicality and commonality elements can be adjudged against that claim.   Here, Plaintiff is not a credible witness or representative, making her inadequate as a representative.  She has no claim based on the mere fact that there is allegedly no written policy for meal and rest breaks.   Further, if the existence of a Written Policy is the linchpin of Plaintiff’s case, she has not established any claim after the 2010 policy was put in place.

The Declaration of Plaintiff filed in support of the Motion is directly contradicted by her deposition testimony and she has made no showing that the lack of a written policy caused her to miss meal or rest breaks.  In fact,   there is very little evidence of why she missed meal and rest breaks;  a very important consideration.    Plaintiff’s own testimony shows that there was a policy in place, she was informed of the policy, and she was responsible for and did enforce it.    She received meal and rest breaks,  and meal and rest break premiums, so whether there was a written policy or not as to her is irrelevant.

Plaintiff claims there is no written policy.   What about the notices on the Boards?  Aren’t the collective bargaining agreements written policies?  And why is it that Plaintiff and, for that matter, Plaintiff’s counsel,  neglected to inform this Court that collective bargaining agreements existed which concerned meal and rest periods.  The  Motion and Reply completely ignore the issue.

Counsel relied on a legal proposition, that meal and rest break policies must be in writing,  which is not sound,  and on a factual proposition,  that there was no written policy,  which is belied by written collective bargaining agreements.  They failed to show typicality by failing to provide even one declaration out of the 42,000 employees who have a claim based on the same circumstances as Plaintiff.

Typicality. Even if Plaintiff acted ignorantly for years, not knowing she had a right to compensation for missed meal and rest breaks, and this has not been shown to be plausible, there is no evidence that her  situation was typical among the other 42,000 employees.  Plaintiffs failed to submit a  Declaration from even one other person who was in her situation;  who thought they knew the policy and didn’t, who acted on the policy but wasn’t sure of it,  who received premiums and didn’t know it, and  who had a collective bargaining agreement and didn’t know what was in it. In contrast, we have several  Declarations on the other side, showing that a policy was in place and was carried out.

Commonality. Common issues do not predominate.  The issue of whether there was a written policy is not necessarily the only issue, or even the most important.  What is relevant is why,  how, when and under what circumstances meal and rest breaks were missed;  all individual inquiries as to each putative class member.   The evidence presented by Defendant,  and by Plaintiff for that matter, indicates there is a policy to pay premiums for meal and rest breaks and that the policy is carried out in numerous ways,   under all sorts of different scenarios and circumstances that arise because of the nature of the business,  all of which make any notion of the predominance of common facts and law without merit.  The consideration of numerous collective bargaining agreements which govern meal and rest breaks,  under different terms,  precludes a finding of commonality also.   Even if it were possible to establish sub-classes or nuances in the policies and practices at the various job sites, these moving papers do not  support such an approach either.  The evidence presented by Defendant, none of which is refuted,  is that the meal and rest break policy is enforced is all sorts of different ways, in all sorts of circumstances,  none of which can be proven commonly.  And, almost all of the 42,000 employees are governed by collective bargaining agreements adding a totally different dimension to the issue which has been ignored by Plaintiff.

Trial Plan.  Plaintiff has not established any trial plan that would demonstrate that trial of these 42,000 claims could be had on common proof.  The Statistical evidence presented is incomplete and unpersuasive.

Defendant to give Notice.