Deciding yet another discovery battle in Wellens v. Daiichi Sankyo Inc., Case No. 3:13-CV-00581 (N.D. Cal. April 11, 2014), the U.S. District Court in the Northern District of California has shut down defendant’s request to secure discovery regarding the 17 opt-in putative class members. (We first blogged on the last discovery battle here.) The decision emphasizes the lenient standard for conditional certification of classes under the Equal Pay Act (“EPA”) and is a stark reminder that courts routinely certify a proposed class without affording defendants a meaningful opportunity to explore facts that might weigh against class treatment.
The putative class in Wellens v. Daiichi Sankyo Inc. consists of female pharmaceutical sales employees. The complaint accuses the company of undercompensating women sales employees as compared to men and imposing a glass ceiling on female advancement. The complaint brings claims under Title VII and the EPA as well as California state law claims.
The company sought discovery regarding the 17 putative class members who have opted-in to the class, specifically seeking written discovery responses regarding all of the women and the depositions of ten of them. Plaintiffs opposed the discovery requests and, last month, filed a motion for conditional collective action certification of the EPA class. That motion is pending.
The Court’s Decision
Emphasizing the “lenient” standard for conditional certification under the FLSA, the Court refused to allow Daiichi the requested discovery. The Court recited the familiar two-step process for maintaining a collective action under the FLSA consisting of: (i) a first stage during which the Court applies a “fairly lenient standard” to determine whether putative class members are similarly situated, and (ii) after discovery is complete, the defendant moves to decertify, thus inviting the court to make a factual determination as to whether the putative class members are similarly situated. The Court quoted approvingly decisions holding that at the first stage the plaintiff has only a “very light burden.”
Since plaintiffs have only a “very light burden,” the Court held that Daiichi’s attempt to discover facts showing that the individuals are not similarly situated was unnecessary at this stage of the litigation. The Court explained that the requested evidence would be relevant to the second stage of the class certification analysis, when Daiichi inevitably moves to decertify the class, but would be “premature” at this stage. While the decision acknowledged that some other courts have allowed discovery regarding opt-in plaintiffs prior to conditional certification, the Court did not engage in any meaningful analysis of those decisions, instead simply stating that, “[i]n this case, the requested discovery … is premature.”
The Court also seemed moved by plaintiffs’ argument that allowing the depositions of opt-in class members prior to conditional certification might cause some individuals to be deposed on multiple occasions — at this stage regarding the EPA claims, and at a later date regarding the Title VII claims — and the Court was disinclined to require plaintiffs to defend out-of-state depositions more than once.
Implications For Employers
No matter how strong an employer’s arguments opposing class certification may be, courts routinely apply the “lenient standard” to conditionally certify classes that have little chance of surviving a decertification motion. (See here for our prior reporting on one such case.) The effect of this “lenience” is to force defendants to undergo costly discovery or pay a premium to settle a case that ultimately does not deserve to be tried on a class basis. The decision of the Northern District of California, while not a class certification decision, follows suit and reflects an unwillingness by many courts to allow defendants to effectively present their case against class treatment at the initial stages of litigation.