Jones v. Scribe Opco, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ERIC JONES,

individually and

on behalf of all others

similarly situated,

Plaintiff,

Case No. 8:20-cv-2945-VMC-SPF

v.

SCRIBE OPCO, INC.,

Defendant.

_____________________________/

ORDER

This matter comes before the Court pursuant to Plaintiff

Eric Jones’s Motion for Class Certification (Doc. # 76), filed

on April 18, 2022. Defendant Scribe Opco, Inc. filed its

response on May 23, 2022. (Doc. # 83). Jones replied on July

1, 2022. (Doc. # 89). The Motion is granted as set forth

herein.

I. Background

Jones initiated this putative class action against

Scribe — his former employer — on December 9, 2020. (Doc. #

1). Subsequently, after a stay of the case, Jones filed an

amended complaint on December 6, 2021, asserting a claim for

violation of the Worker Adjustment and Retraining Act of 1988

(“WARN Act”). (Doc. # 30). After his Motion for Class

Certification was fully briefed, Jones filed a second amended

complaint asserting the same WARN Act claim but amending the

class definition. (Doc. # 109).

Jones alleges he “was furloughed on March 26, 2020” after

Scribe sent him and many other employees a memo on March 25,

2020, stating that they were being “laid off.” (Id. at 6).

“The March memo explained that ‘[a]s a result of the

Coronavirus, also referred to [as] COVID-19 and its impact to

our business, it is imperative we make critical business

decisions to ensure the longevity and financial stability of

our organization so that we may weather this storm and come

back stronger.’” (Id.).

According to Jones, the “March memo fails [to] comply

with the WARN Act in its form and content.” (Id. at 7). “But

the bigger issue is that [Scribe] owed [Jones] and the

putative class members a follow-up notice once it became

reasonably foreseeable the March layoff would exceed six

months. Indeed, the March memo states [Scribe] hopes to call

employees back ‘soon,’ making it sound like a short layoff,

rather than a permanent layoff. There is simply nothing in

the March memo that states whether the layoff will be longer

(or shorter) than six months.” (Id.).

“In fact, following the initial layoff [Scribe]

continued to tell [Jones] and the putative class members they

would be brought back to work at [Scribe].” (Id.). “However,

instead of being brought back ‘soon,’ they were forced to

wait nearly eight months to finally hear about their

‘official’ terminations.” (Id. at 7-8). “[O]n November 20,

2020, [Jones] and the putative class members were told in

writing for the first time they would be terminated effective

November 20, 2020.” (Id. at 8).

Jones now seeks to certify a nationwide class. (Doc. #

76). Specifically, in his Motion, Jones sought to certify the

following nationwide class:

WARN Act Nationwide Class: All persons employed by

Defendant, who worked at [one] of Defendant’s

facilities in Florida or Minnesota, which employed

50 or more fulltime employees, excluding part-time

employees (as defined under the WARN Act) (the

“Facilities”), who were laid off or furloughed

without cause on their part, on or about March 25,

2020, or within thirty days of that date or

thereafter as part of, or as the reasonably

expected consequence of, a mass layoff (as defined

by the WARN Act) at the Facilities which lasted

longer than six months, who do not timely opt-out

of the class (the “Class”).

(Id. at 1).

Scribe has responded (Doc. # 83), challenging only the

predominance factor. Jones replied (Doc. # 89), proposing an

amended nationwide class definition to clarify his intention

to exclude employees who declined reinstatement in the class

and, thus, only include employees who suffered an employment

loss. With the Court’s leave, Jones then filed the operative

second amended complaint, which includes the amended class

definition. (Doc. # 109). The relevant class definition is as

follows, with the added language bolded:

WARN Act Nationwide Class:

All persons employed by Defendant, who worked at

one of Defendant’s facilities in Florida or

Minnesota, which employed 50 or more full-time

employees, excluding part-time employees (as

defined under the WARN Act) (the “Facilities”), who

were laid off or furloughed without cause on their

part, on or about March 25, 2020, or within thirty

days of that date or thereafter as part of, or as

the reasonably expected consequence of, a mass

layoff (as defined by the WARN Act) at the

Facilities which lasted longer than six months, who

do not timely opt-out of the class (the “Class”),

but excluding individuals who, according to

Defendant’s records, declined reinstatement.

(Id. at 15-16).

After the second amended complaint was filed, Scribe

filed a supplemental memorandum in light of the amended class

definition (Doc. # 110), to which Jones responded. (Doc. #

111). The Motion is ripe for review.

II. Legal Standard

To certify a class action, the moving party must satisfy

a number of prerequisites. First, the named plaintiff must

demonstrate standing, Vega v. T-Mobile USA, Inc., 564 F.3d

1256, 1265 (11th Cir. 2009), which Jones has done and Scribe

has not challenged as to Jones. Second, the putative class

must meet all four requirements enumerated in Federal Rule of

Civil Procedure 23(a):

(1) the class is so numerous that joinder of

all members is impracticable;

(2) there are questions of law or fact common

to the class;

(3) the claims or defenses of the

representative parties are typical of the

claims or defenses of the class; and

(4) the representative parties will fairly

and adequately protect the interests of

the class.

Fed. R. Civ. P. 23(a).

Third, the putative class must fit into at least one of

the three class types defined by Rule 23(b). Vega, 564 F.3d

at 1265. Relevant to this case, Rule 23(b)(3) permits

certification of a class where (1) common questions of law or

fact predominate over questions affecting class members

individually, and (2) a class action is the superior method

for resolving these common questions. Id. A party moving for

certification of a Rule 23(b)(3) class in this Court also

faces the added hurdle of proposing a cost-effective means of

providing notice to putative class members. M.D. Fla. R.

4.04(b).

The party moving to certify any class or subclass

ultimately bears the burden of proving that all prerequisites

are met. See Brown v. Electrolux Home Prods., Inc., 817 F.3d

1225, 1233–34 (11th Cir. 2016).

III. Analysis

A. Ascertainability of Class

“Ascertainability is an implied prerequisite of Rule

23.” Cherry v. Dometic Corp., 986 F.3d 1296, 1302 (11th Cir.

2021). “Class representatives bear the burden to establish

that their proposed class is ‘adequately defined and clearly

ascertainable,’ and they must satisfy this requirement before

the district court can consider whether the class satisfies

the enumerated prerequisites of Rule 23(a).” Id. (citation

omitted).

The Eleventh Circuit has “collapsed class definition and

ascertainability into one inquiry. A class is inadequately

defined if it is defined through vague or subjective criteria.

And without an adequate definition for a proposed class, a

district court will be unable to ascertain who belongs in

it.” Id. (citations omitted). However, “[b]ecause

administrative feasibility has no connection to Rule 23(a),

it is not part of the ascertainability inquiry.” Id. at 1303.

Again, Scribe failed to challenge ascertainability in

its response to the Motion. (Doc. # 83). Rather, it chose to

challenge only the predominance factor. (Id.). After the

Court permitted Jones to amend the class definition to address

predominance issues, the Court “allow[ed] [Scribe] the

opportunity to brief the predominance issue it raised in its

response to the motion to certify class [] in light of the

amended class definition’s narrowing of the class.” (Doc. #

107). Thus, the Court only permitted Scribe to further

challenge the predominance factor — the only Rule 23 factor

it took issue with in the first place — considering the

amendment.

Yet, despite the limitation placed on the supplemental

briefing, Scribe now argues for the first time in its

supplemental brief that Jones’s proposed class suffers from

ascertainability problems. (Doc. # 110 at 2-3, 5). It now

argues that Jones, “by asserting without citing any evidence

that all the necessary identifying information is in the Smart

Sheet, has utterly failed to meet his burden of showing

ascertainability.” (Id. at 6).

Notably, despite Scribe’s assertion otherwise, this

ascertainability argument applied equally to the class as

previously defined in the Motion. That is, Scribe’s argument

that the Smartsheet, which records the employment status and

other details of relevant employees, is insufficient to

identify class members could have been raised regarding the

class definition in Jones’s Motion. Indeed, Jones relied on

the same Smartsheet to establish ascertainability in its

Motion. (Doc. # 76 at 4, 12-13).

Thus, Scribe should not have raised this previously

available ascertainability argument in its supplemental

brief. The Court is disappointed by Scribe’s attempt to

circumvent the Court’s order on the scope of briefing. Scribe

waived the ascertainability argument it now seeks to present

by utterly failing to address ascertainability in its

response to the Motion.

Even considered on the merits, Scribe’s argument fails.

The Court agrees with Jones that the class is ascertainable,

both as stated in the Motion and revised in the second amended

complaint. As Jones notes, the Smartsheet has all “the

information necessary to identify those who fit the Class

definition, including as to which facility they worked at.”

(Doc. # 76 at 4). And Jones backs this up with evidence. In

her deposition, Scribe’s corporate representative, Francine

Dupuis, testified that “[e]veryone that was laid off,

furloughed, or given salary reduction is on that Smartsheet.”

(Doc. # 78 at 82:1-2). She also testified that the identities

of employees who were laid off and who “were not brought back”

to work were “ascertainable” “in a Smartsheet.” (Id. at 110:4-

17); see also (Id. at 112:14-18; 120:17-121:23). She further

indicated that the Smartsheet would reveal which laid off

employees were returned to work. (Id. at 82:22-83:3).

Likewise, in its supplemental brief, Jones points to the

deposition of Scribe’s CEO, David Klatt. Klatt testified that

data about which laid off or furloughed employees were

returned to work or declined reinstatement would be on the

Smartsheet. See (Doc. # 111-1 at 63:23-64:5) (“I would guess.

Yeah. I mean, if somebody were to be on the Smartsheet and

they were laid off or furloughed, yes, you would -- laid off,

you would then make a note in there. I’m going to guess that,

yes, they would be noted on there that they don’t want to

come back, they took a job with the Pharmacy company as noted

here, or they went back to Pensacola to be with their family,

so that we don’t call them again.”).

Whether the class meets the requirements of Rule 23 is

a separate question, to which the Court now turns.

B. Rule 23(a) Requirements

The putative class must meet all four requirements

outlined in Rule 23(a): “numerosity, commonality, typicality,

and adequacy of representation.” Vega, 564 F.3d at 1265

(quoting Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d

1181, 1188 (11th Cir. 2003)). Although Scribe does not

challenge any of these requirements (instead challenging only

the Rule 23(b) predominance requirement), the Court will

address each in turn. See Piron v. Gen. Dynamics Info. Tech.,

Inc., No. 3:19CV709, 2022 WL 363958, at *5 (E.D. Va. Feb. 7,

2022) (“A review of the record discloses that the proposed

class meets each of these [Rule 23(a)] elements. Defendants

do not appear to suggest otherwise. Nonetheless, it is

appropriate to confirm that to be the case.”).

1. Numerosity

Federal Rule of Civil Procedure 23(a)(1) requires that

the class be “so numerous that joinder of all members is

impracticable.” Fed. R. Civ. P. 23(a)(1). While “mere

allegations of numerosity are insufficient,” Rule 23(a)(1)

imposes a “generally low hurdle,” and “a plaintiff need not

show the precise number of members in the class.” Manno v.

Healthcare Revenue Recovery Grp., LLC, 289 F.R.D. 674, 684

(S.D. Fla. 2013); see Vega v. T–Mobile USA, Inc., 564 F.3d

1256, 1267 (11th Cir. 2009); Evans v. U.S. Pipe & Foundry

Co., 696 F.2d 925, 930 (11th Cir. 1983)(explaining that the

class representative is not required to establish the exact

number in the proposed class). “Nevertheless, a plaintiff

still bears the burden of making some showing, affording the

district court the means to make a supported factual finding

that the class actually certified meets the numerosity

requirement.” Manno, 289 F.R.D. at 684 (quoting Vega, 564

F.3d at 1267).

Jones argues that the numerosity requirement is met

because “the nationwide putative class [he] seeks to have

certified is likely comprised of more than 300 persons.” (Doc.

# 76 at 12). In its answers to Jones’ interrogatories, Scribe

acknowledges that the nationwide putative class, as it was

similarly defined in the amended complaint, consisted of 344

individuals. (Doc. # 76-7 at 10-11). Additionally, in her

deposition, Scribe’s corporate representative, Francine

Dupuis, testified that somewhere between “90 and 500” of the

furloughed or laid off employees never returned to work for

Scribe. (Doc. # 78 at 83:16-22, 108:2-4).

Jones has satisfied the numerosity requirement. The

Eleventh Circuit has indicated that having more than forty

class members is generally enough to satisfy the numerosity

requirement. See Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546,

1553 (11th Cir. 1986) (“[T]he trial court’s decertification

of the 47-member class for lack of numerosity was by no means

compelled by Rule 23 or the case law. As the trial judge who

originally certified the class pointed out, citing 3B Moore’s

Federal Practice ¶ 23.05[1] at n. 7 (1978), while there is no

fixed numerosity rule, ‘generally less than twenty-one is

inadequate, more than forty adequate, with numbers between

varying according to other factors.’”). And, again, the Court

notes that Scribe does not argue that the numerosity

requirement is unmet.

2. Commonality

Federal Rule of Civil Procedure 23(a)(2) requires that

there be “questions of law or fact common to the class.” Fed.

R. Civ. P. 23(a)(2). Commonality pertains to the

characteristics of the group or class as a whole, unlike

typicality which refers to the individual characteristics of

the class representative as compared to those of the class

members. Piazza v. Ebsco Indus. Inc., 273 F.3d 1341, 1346

(11th Cir. 2001) (citing Prado–Steiman v. Bush, 221 F.3d 1266,

1279 (11th Cir. 2000)).

Commonality “does not require complete identity of legal

claims.” Johnson v. Am. Credit Co. of Ga., 581 F.2d 526, 532

(5th Cir. 1978).1 In fact, commonality can be satisfied even

with some factual variations among class members. Armstead v.

Pingree, 629 F. Supp. 273, 280 (M.D. Fla. 1986).

In Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011),

the Supreme Court clarified the commonality requirement for

class certification by specifically rejecting the use of

generalized questions to establish commonality. Noting that

“any competently crafted class complaint literally raises

common questions,” the Court focused the required discussion

as follows:

What matters to class certification . . . is

not the raising of common ‘questions’ — even

in droves — but, rather the capacity of a

class-wide proceeding to generate common

answers apt to drive the resolution of the

litigation. Dissimilarities within the

proposed class are what have the potential to

impede the generation of common answers.

Id. at 350 (internal citation omitted)(emphasis in original).

The Court explained that the “common contention” underpinning

a finding of Rule 23(a)(2) “must be of such a nature that it

is capable of class wide resolution — which means that

determination of its truth or falsity will resolve an issue

1 The Eleventh Circuit, in an en banc decision, Bonner v. City

of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as

precedent decisions of the former Fifth Circuit rendered

prior to October 1, 1981.

that is central to the validity of each one of the claims in

one stroke.” Id.

Jones contends that the commonality requirement is met

because “[t]he WARN Act issues central to this case — the

timing of the layoffs, the required length of the notice

period, and how much notice was practicable — all have common

answers.” (Doc. # 76 at 13). “Scribe engaged in a mass layoff

as defined by the WARN Act, during the same time period and

in the same manner, at each of the Covered Facilities.” (Id.

at 14). Scribe sent layoff letters to many class members or

made phone calls regarding the layoff to other class members,

particularly those in Minnesota. (Id.). Eight months later,

the Florida class members received a termination letter from

Scribe. (Id.). Likewise, some potential class members in

Minnesota also received termination letters. (Id.).

Additionally, Scribe’s primary affirmative defenses —

the “natural disaster” and “unforeseeable business

circumstances” defenses under the WARN Act — will have a

common answer for all putative class members. See

Etzelsberger v. Fisker Auto., Inc., 300 F.R.D. 378, 383 (C.D.

Cal. 2013) (finding commonality requirement met in WARN Act

case where defendant “asserted a number of affirmative

defenses that present questions of fact and law common to all

class members,” including the unforeseeable business

circumstances defense).

The Court agrees with Jones regarding the class defined

in the second amended complaint. “In this case, the putative

class satisfies the commonality requirement, which is related

to, but far less demanding than, the predominance requirement

of Fed. R. Civ. P. 23(b).” Piron, 2022 WL 363958, at *6.

Scribe engaged “in a standardized course of conduct that

affect[ed] all class members.” In re Terazoin Hydrochloride,

220 F.R.D. 672, 686-87 (S. D. Fla. 2004). Although the

determination of each class member’s damages will be

individualized based on each’s rate of pay, all class members’

claims involve many of the same legal questions and answers.

3. Typicality

The focus of Rule 23(a)(3) typicality is whether the

class representative’s interests are so aligned with the

proposed class that he may stand in their shoes for the

purposes of the litigation and bind them in a judgment on the

merits. See Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1322–

23 (11th Cir. 2008) (“[T]ypicality measures whether a

sufficient nexus exists between the claims of the named

representatives and those of the class at large.”).

To establish typicality, “there must be a nexus between

the class representative’s claims or defenses and the common

questions of fact or law which unite the class.” Kornberg v.

Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir.

1984). When the class representative’s injury is different

from that of the rest of the class, his claim is not typical

and he cannot serve as the class representative. Murray v.

Auslander, 244 F.3d 807, 811 (11th Cir. 2001). Moreover, when

proof of the class representative’s claim would not

necessarily prove the claims of the proposed class members,

the class representative does not satisfy the typicality

requirement. Brooks v. S. Bell Tel. & Tel. Co., 133 F.R.D.

54, 58 (S.D. Fla. 1990). “Typicality, however, does not

require identical claims or defenses.” Kornberg, 741 F.2d at

1337. “A factual variation will not render a class

representative’s claim atypical unless the factual position

of the representative markedly differs from that of other

members of the class.” Id.

Here, Jones is a typical representative of the proposed

class. There is nothing in the record to suggest that his

claim is different in any way from the proposed class members’

claims. As Jones explains, “the legal theory underlying the

claims of the putative class members is identical to [his]

claim.” (Doc. # 76 at 18); see also Benson v. Enter. Leasing

Co. of Orlando, LLC, No. 6:20-cv-891-RBD-LRH, 2021 WL

2138781, at *6 (M.D. Fla. May 11, 2021) (holding that

plaintiff in a WARN Act case had “shown her claims are typical

of the other class members”).

4. Adequacy

The adequacy of representation analysis involves two

inquiries: “(1) whether any substantial conflicts of interest

exist between the representative[] and the class, and (2)

whether the representative[] will adequately prosecute the

action.” Valley Drug Co., 350 F.3d at 1189 (quoting In re

HealthSouth Corp. Sec. Litig., 213 F.R.D. 447, 460–61 (N.D.

Ala. 2003)). “The existence of minor conflicts alone will not

defeat a party’s claim to class certification.” Id. Rather,

“the conflict must be a fundamental one going to the specific

issues in controversy.” Id.

The Court agrees with Jones that he would provide

adequate representation for the class. First, Jones “has no

conflicts with or antagonistic to the” class. (Doc. # 76 at

19). Second, as he suffered from the same alleged violation

of the WARN Act, Jones’s “interests are directly aligned with

the” class members and he has hired experienced counsel to

represent his — and the class’s — interests. (Id. at 20).

C. Rule 23(b)

In addition to the requirements of Rule 23(a), the class

must satisfy at least one of the three requirements of Rule

23(b). Jones relies on Rule 23(b)(3), which requires a finding

that (1) common questions of law or fact predominate over

questions affecting class members individually, and (2) a

class action is the superior method for resolving these common

questions. Vega, 564 F.3d at 1265. Again, Scribe only

challenges the predominance factor. (Doc. # 83 at 2; Doc. #

110).

1. Predominance

“Rule 23(b)(3)’s predominance requirement is far more

demanding than Rule 23(a)’s commonality requirement.” Sellers

v. Rushmore Loan Mgmt. Servs., LLC, 941 F.3d 1031, 1039 (11th

Cir. 2019). “Rule 23(b)(3) requires us to consider whether

‘the issues in the class action that are subject to

generalized proof and thus applicable to the class as a whole,

. . . predominate over those issues that are subject only to

individualized proof.’” Id. at 1040 (quoting Kerr v. City of

West Palm Beach, 875 F.2d 1546, 1557-58 (11th Cir. 1989)).

“To determine whether common issues predominate, a

district court first must ‘identify the parties’ claims and

defenses and their elements’ and ‘then classify these issues

as common questions or individual questions by predicting how

the parties will prove them at trial.’” Id. (quoting Brown,

817 F.3d at 1234). “Common questions are ones where the same

evidence will suffice for each member, and individual

questions are ones where the evidence will vary from member

to member.” Brown, 817 F.3d at 1234 (internal quotation marks

omitted). The Court then must “determine whether the common

questions predominate over the individual ones.” Id. at 1234-

35.

The Eleventh Circuit has “explained that certification

is inappropriate when after adjudication of the classwide

issues, plaintiffs must still introduce a great deal of

individualized proof or argue a number of individualized

legal points to establish most or all of the elements of their

individualized claims.” Sellers, 941 F.3d at 1040 (citation

and internal quotation marks omitted). “But this exercise is

not ‘bean counting’ — the relative importance of the questions

matters too.” Benson, 2021 WL 2138781, at *8 (citing Brown,

817 F.3d at 1235). Importantly, Rule 23(b)(3)

“does not require a plaintiff seeking class certification to

prove that each ‘elemen[t] of [her] claim [is] susceptible to

classwide proof.’” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds,

568 U.S. 455, 469 (2013) (citation omitted).

Jones asserts a single WARN Act claim on behalf of

himself and others similarly situated. (Doc. # 109). “A valid

WARN Act claim requires the presence of the following three

elements: ‘(1) a mass layoff [or plant closing as defined by

the statute] conducted by (2) an employer who fired employees

(3) who, pursuant to WARN, are entitled [to] notice.’” Sides

v. Macon Cnty. Greyhound Park, Inc., 725 F.3d 1276, 1281 (11th

Cir. 2013) (citation omitted); see also Benson, 2021 WL

2138781, at *8 (“A WARN Act plaintiff must show: (1) an

employer ordered; (2) a mass layoff or plant closing; (3)

with less than sixty days’ notice.” (citations omitted)).

Jones is correct that common issues prevail over the

individual issues in this case. As Jones notes, “[l]itigation

of this case will focus primarily on whether Scribe provided

sufficient notice to terminated employees, and whether

Scribe’s unforeseeable business circumstances and natural

disaster defenses excuse Scribe from liability” — common

questions for the class. (Doc. # 76 at 23). Notably, Scribe

does not dispute that its status as the employer of the class

members, the mass layoffs or plant closings, or the timeliness

of notice are common questions under the WARN Act. (Doc. # 83

at 8); see also Cashman v. Dolce Int’l/Hartford, Inc., 225

F.R.D. 73, 95 (D. Conn. 2004) (“Establishing WARN Act

liability turns on fairly straightforward issues common to

the entire class, including: whether Defendants are

‘employer[s]’ under the Act; whether a ‘mass layoff’ or ‘plant

closing’ took place on or about December 30, 2003; and, if

so, whether Defendants gave the proper notice required by the

Act.”). Scribe’s primary defenses in this action — the natural

disaster and unforeseeable business circumstances exceptions

— are also common issues for all class members. See Id.

(finding that predominance factor was satisfied in part

because “Defendants may also seek to establish defenses

common to the entire class,” including the “good faith” and

“reasonable grounds” defenses).

Indeed, the Court is mindful that “[t]he WARN Act

contemplates enforcement by class action.” Butler-Jones v.

Sterling Casino Lines, L.P., No. 6:08-cv-1186-MSS-DAB, 2008

WL 5274384, at *3 (M.D. Fla. Dec. 18, 2008); see also Finnan

v. L.F. Rothschild & Co., 726 F. Supp. 460, 465 (S.D.N.Y.

1989) (“The WARN Act seems particularly amenable to class

litigation. By its terms, WARN is applicable only in the

context of employer action which affects a large number of

employees.”).

In its response to the Motion, Scribe pointed out that

some “individuals [] responded to offers from Scribe to resume

work by telling Scribe that they had instead decided to

retire” or “declined reinstatement because, per these

individuals, they preferred other employment.” (Doc. # 83 at

11; Doc. # 83-2 DuPuis Decl. ¶ 6). Scribe argued that

“[i]ndividuals put on a temporary layoff or furlough who

decide to cut ties with their employer before the expiration

of six months [did] not suffer an employment loss within the

meaning of the WARN Act” but were still included in the class

definition from the Motion. (Doc. # 83 at 10); see also 29

U.S.C. § 2101(a)(6) (defining employment loss as “(A) an

employment termination, other than a discharge for cause,

voluntary departure, or retirement, (B) a layoff exceeding 6

months, or (C) a reduction in hours of work of more than 50

percent during each month of any 6-month period”).

True, the WARN Act does provide that an employer “who

orders a plant closing or mass layoff in violation of section

2102 of this title shall be liable to each aggrieved employee

who suffers an employment loss.” 29 U.S.C. § 2104(a)(1)

(emphasis added). Now, in its supplemental brief filed after

the class definition was amended in the second amended

complaint, Scribe maintains that the “putative class still

includes people who suffered no employment loss and therefore

have no WARN Act claim” because it “still includes individuals

who resigned or retired before they were offered re-

instatement” or who “did not respond to Scribe’s requests to

return to work.” (Doc. # 110 at 2). According to Scribe, these

individuals have suffered no employment loss.

This argument does not preclude class certification. The

important date for determining whether an employee suffered

an employment loss is the six-month mark of the layoff. See

Nelson v. Formed Fiber Techs., Inc., 856 F. Supp. 2d 235, 241

(D. Me. 2012) (“Under the plain language of the WARN Act, a

layoff exceeding six months constitutes an employment

loss.”). Thus, for the class definition to cover only

employees with standing (those who suffered an employment

loss), the definition must be limited to only those who were

laid off for longer than six months and must exclude those

who “cut ties with Scribe before the expiration of six

months.” (Doc. # 110 at 2).

Such is the case with the amended class definition in

the second amended complaint. The class definition includes

employees who suffered “a mass layoff . . . which lasted

longer than six months.” (Doc. # 109 at 16). The Court

interprets this language as applying a minimum requirement on

the length of layoff each potential class member individually

suffered. That is, for an individual to fit within the class

definition, he must have personally been laid off from Scribe

for longer than six months. An individual whose layoff lasted

less than six months would not fall within the class

definition, even though the Scribe mass layoff lasted longer

than six months for other employees. This reading is bolstered

by other language in the second amended complaint: Jones

alleges that he seeks to represent a putative class of Scribe

employees who “suffer[ed] an employment loss” and explains

that the employment loss “occurred as a result of a layoff

that exceeded six months.” (Doc. # 109 at 1, 3).

As such, the class definition does not include

individuals who resigned or retired before the sixth month of

the layoff, as they would not have been laid off for over six

months. Nor does it include individuals “who did not respond

to Scribe’s requests to return to work” — thereby declining

to return to work — before the sixth-month mark. Because the

class definition only includes employees who were laid off

for longer than six months, it inherently does not include

employees who chose to resign or retire before the layoff

exceeded six months and became an employment loss.

In short, the amended class definition only includes

individuals who suffered an employment loss under the WARN

Act and presents no issues regarding standing. See Applegate

v. Formed Fiber Techs., LLC, No. 2:10-CV-00473-GZS, 2012 WL

3065542, at *8 (D. Me. July 27, 2012) (“Formed Fiber’s first

predominance objection — that the class includes individuals

who lack standing because they left Formed Fiber less than

six months after being laid off — has already been addressed.

Applegate’s proposed class will not include such

individuals.”). Also, determination of whether each employee

suffered an employment loss such that they are a member of

the class, while individualized, is a relatively

straightforward inquiry. See Geelan v. Mark Travel, Inc., No.

CV 03-6322(DSD/JSM), 2005 WL 8164834, at *7 (D. Minn. May 16,

2005) (rejecting a similar predominance argument regarding

employment loss under the WARN Act because “the

individualized issue of whether each employee was rehired

within six months is a relatively easy fact question, applied

equally to all putative class members, and does not

predominate over common issues”).

Furthermore, if it believes that any former employee

sent class notice fails to meet the class definition regarding

employment loss, Scribe may later contest that employee’s

class-membership status. See also Day v. Celadon Trucking

Servs., Inc., 827 F.3d 817, 834 (8th Cir. 2016) (“Celadon

further argues that certification is inappropriate based on

evidence that it presented that certain members of the class

did not meet the class definition. The failure of some

plaintiffs to meet the class definition does not, by itself,

require decertification of an entire class. Instead,

Celadon’s recourse was to contest individuals’ class-

membership status, just as it did before the district court.

To the extent Celadon argues that its liability varies from

member to member, we disagree. Once again, Celadon is liable

to all employees that suffered an ‘employment loss.’ We do

not dispute that each member must make some threshold showing

of employment, but the showing is straightforward and minimal

given § 2101(b)(1)’s presumption of employment.”).

Despite the existence of certain individualized

questions for class members, such as the amount of damages,

the common questions underlying the elements of the WARN Act

claim and Scribe’s affirmative defenses still predominate.

See Applegate, 2012 WL 3065542, at *9 (“Despite the fact that

potential plaintiffs may have been laid off at different times

and some may have been recalled temporarily, the case involves

a common, overarching question — were the plaintiffs

subjected to a mass layoff without adequate notice? — and the

affirmative defenses cited by Formed Fiber apply equally to

each potential plaintiff.”).

Thus, Jones has satisfied the predominance requirement.

2. Superiority

Additionally, a class action is a superior method of

resolving the common issues. “The focus of [the superiority]

analysis is on ‘the relative advantages of a class action

suit over whatever other forms of litigation might be

realistically available to the plaintiffs.’” Sacred Heart

Health Sys., Inc. v. Humana Military Healthcare Servs., Inc.,

601 F.3d 1159, 1183–84 (11th Cir. 2010).

The Court agrees with Jones that numerous factors weigh

in favor of a superiority finding: (1) “[e]ach individual

claim is not large in terms of dollars”; (2) to the best of

Jones’s and the Court’s knowledge, “no individual WARN Act

lawsuits have been filed against Scribe”; (3) “maintaining

this action in this Court is appropriate” because Scribe’s

headquarters is in this district, the Florida mass layoff

occurred here, and Jones worked for Scribe and lives in this

district. (Doc. # 76 at 24).

Resolving the common liability question in a class

action is superior to having the dozens of potential class

members file separate WARN Act lawsuits against Scribe. See

Benson, 2021 WL 2138781, at *10 (“As the potential individual

economic payout is small (less than $6,000, on average) and

there is no indication any other plaintiff has begun an

individual action against any Enterprise organization on

these WARN Act claims, Benson has shown a class action is the

superior method of adjudicating these claims.”).

IV. Conclusion

In short, Jones has satisfied all of Rule 23’s

requirements and the Court will certify the nationwide class

as defined in the reply to the Motion. (Doc. # 89 at 2).

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Plaintiff Eric Jones’s Motion for Class Certification

(Doc. # 76) is GRANTED as to the nationwide class

definition included in Jones’s second amended complaint.

(Doc. # 109).

(2) Plaintiff Eric Jones is appointed as lead plaintiff and

class representative.

(3) Brandon J. Hill, Esq. and Luis A. Cabassa, Esq. of Wenzel

Fenton Cabassa, P.A. are appointed as co-lead class

counsel.

(4) Within 14 days from the date of this Order, the parties

shall file a joint notice that (1) describes the

identification of class members and their contact

information; (2) describes the method of disseminating

class notice; and (3) proposes a notice to be

disseminated to the class.

(5) Prior to filing the joint notice, the parties are

directed to meet and confer and agree to the extent

possible on these issues. To the extent the parties

cannot agree, their disagreement should be described,

along with short legal briefing, in the joint notice.

DONE and ORDERED in Chambers in Tampa, Florida, this

13th day of October, 2022.

VIR TA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

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