Ross v. Charter One: Distinguishing Dukes

The Seventh Circuit recently affirmed class certification of wage and hour claims in a decision that provides considerable guidance on the commonality requirements of Dukes v. Wal-Mart.  See Ross v. Charter One, No. 10-3848 (7th Cir. Jan. 27, 2012) (order affirming class certification) (available here).  In Ross, the district court granted certification of the plaintiffs’ unpaid overtime claims.  The defendant appealed to the Seventh Circuit, arguing that the commonality requirements could not be met because the plaintiffs’ claims required individualized proof.  When the Dukes decision was issued, the appellate panel ordered supplemental briefing “addressing whether the class certification order satisfied Dukes.”  Slip op. at 2

The Seventh Circuit ultimately found that Dukes did not require reversal of class certification, because the plaintiffs had shown sufficient evidence of classwide employment policies relating to unpaid overtime.  Slip op. at 15.  For example, the plaintiffs presented 89 putative class member declarations attesting to defendant’s companywide policy of instructing employees not to record overtime.  Slip op. at 18.  This evidence was sufficient to overcome defendant’s contention that putative class members worked unpaid overtime for at least four different reasons, necessitating individualized inquiries.  Slip op. at 16-17. 

The Ross decision is significant because it suggests that the Dukes commonality requirement can be met by clearly articulating a companywide policy and establishing it by means of putative class member declarations.