On September 9, the Third Circuit reversed an order from the District of New Jersey denying a motion for class certification on lack of ascertainability grounds. The court held that the district court had erred in construing the plaintiffs’ renewed motion for class certification as a motion for reconsideration and had misapplied Third Circuit case law on ascertainability by finding that the defendant’s poor record keeping could defeat ascertainability.

• Plaintiffs I Stealth LLC, Eusebio’s Trucking Corp., and Curva Trucking LLC filed a putative class action against Sleepy’s LLC, alleging that Sleepy’s misclassified them as independent contractors instead of employees and violated the New Jersey Wage Payment Law and the New Jersey Wage and Hour Law by making certain deductions from their pay and failing to pay them overtime.
• Plaintiffs first moved for class certification of a class of 193 individuals who performed deliveries for Sleepy’s on a full-time basis. In doing so, they asserted that the class was ascertainable based on the putative class members’ contracts and pay statements and Sleepy’s driver rosters, daily delivery manifests, gate logs, and scanner data.
  • The district court denied certification, holding that the plaintiffs had failed to show that the class was ascertainable as defined, in large part because the “available documents did not show which multiple-truck drivers were working on a full-time basis.” The court also noted “gaps” in Sleepy’s records.
• The plaintiffs narrowed the putative class to 111 individuals who performed deliveries full time and drove only one truck for Sleepy’s (as opposed to the “multiple-truck drivers” who may or may not have worked full time for Sleepy’s) and filed a renewed motion for class certification.
  • The district court construed the plaintiffs’ renewed motion for class certification as a motion for reconsideration and found that they had not identified any intervening change in the law, new evidence, or the need to correct a clear error, as required to prevail on a motion for reconsideration.
  • Nonetheless, the district court performed a Rule 23 analysis and again denied certification on ascertainability grounds, holding that Sleepy’s records, which the plaintiffs relied on to identify class members, contained gaps that made it impossible to determine which putative class members drove for Sleepy’s full time and which putative class members had unlawful deductions from their pay.
• The plaintiffs sought leave to appeal the district court’s class certification ruling under Rule 23(f), and the Third Circuit granted their request. On appeal, the Third Circuit held, as a threshold matter, that the district court erred in treating the second motion for class certification as a motion for reconsideration that required the plaintiffs to show a change in law or new evidence. As the court explained, a “[c]oncern about parties getting a second opportunity … cannot override the language of Rule 23(c)(1)(C), which allows for multiple bites at the apple throughout the litigation.”
• Next, the court held that the district court had misapplied the Third Circuit’s case law on ascertainability by requiring the plaintiffs to actually identify the members of the class at the class certification stage: “Appellants do not have to prove at this stage that each proposed class member was indeed a full-time driver, but only that the members can be identified.” The evidence the plaintiffs had presented was sufficient to meet this burden, because the plaintiffs had identified a “reliable and administratively feasible mechanism” for determining class membership.
• Finally, the court was not receptive to the defendant’s argument that “gaps” in its records precluded an ascertainable class, stating that “where [a defendant’s] lack of records makes it more difficult to ascertain members of an otherwise objectively verifiable class, the [individuals] who make up that class will not be made to bear the cost of the [defendant’s] faulty record keeping.”
• Read the Third Circuit’s opinion here.