Huber v. Bioscrip Infusion Services LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

AARON HUBER et al. CIVIL ACTION

VERSUS NO. 20-2197

BIOSCRIP INFUSION SERVICES et al. SECTION: “G”(5)

ORDER AND REASONS

In this litigation, Plaintiffs Aaron Huber (“Huber”) and Justin Theriot’s (“Theriot”)

(collectively, “Plaintiffs”) allege that BioScrip Infusion Services LLC and Option Health Care,

Inc. (collectively, “Defendants”) are liable to Plaintiffs for unpaid sales commissions.1 Before the

Court is Plaintiffs’ “Motion for Class Certification.”2 Having considered the motion, the

memoranda in support and opposition, the record, and the applicable law, the Court denies the

motion.

I. Background

On May 22, 2020, Plaintiffs filed a petition in the Civil District Court for the Parish of

Orleans, State of Louisiana, against Defendants.3 In the Petition, Plaintiffs allege that they were

commissioned salespersons for Defendants during the third quarter of 2019.4 Plaintiffs further

allege that Defendants represented that they would pay Plaintiffs quarterly commissions calculated

1 Rec. Doc. 1-1 at 10.

2 Rec. Doc. 13

3 Rec. Doc. 1-1.

4 Id. at 10–11.

based on “hitting specific sales goals as outlined in the 2019 Sale Compensation Plan.”5 According

to Plaintiffs, Defendants “failed to remit [Plaintiffs’] commissions that were earned as agreed in

the third quarter of 2019 in the amounts outlined in the Sales Compensation Plan which covered

that quarter.”6

Plaintiffs allege claims for breach of contract, failure to pay employees after discharge,

unlawful non-payment of commissions, unjust enrichment, unfair trade practices, and detrimental

reliance against Defendants under Louisiana law.7 Additionally, in the Petition, Plaintiffs state that

they “seek to have this matter proceed as a Class Action . . . [of] all those similarly situated who

did not receive commissions in the amount due under the commission structure they reasonably

relied upon when they completed their sales.”8

In the prayer for relief, Plaintiffs request a declaration “that the Defendants are liable for

all unpaid commissions, unpaid wages, unfair trade practices, and unjust enrichment arising from

the allegations outlined herein.”9 Plaintiffs also pray that “upon certification of the class action,

this Court call for the formulation of a suitable management plan pursuant to Louisiana law.”10 In

addition, Plaintiffs request “[t]hat the rights of the members of the class to establish their

entitlement to compensatory damages, and the amount thereof, be reserved for determination in

their individual actions when appropriate.”11

5 Id. at 11.

6 Id.

7 Id. at 14–15.

8 Id. at 11–12.

9 Id. at 15.

10 Id.

11 Id.

Defendants removed the instant action to this Court on August 5, 2020, asserting diversity

jurisdiction pursuant to 28 U.S.C. § 1332.12

On November 5, 2020, Plaintiffs filed the instant motion for class certification.13

Defendants filed an opposition to the motion for class certification on November 24, 2020.14

II. Parties’ Arguments

A. Plaintiffs’ Arguments in Support of the Motion for Class Certification

In the instant motion, Plaintiffs seek certification of a class of “Commissioned salespersons

employed by BioScrip Infusion Services, LLC and/or Option Care Health, Inc. during the third

quarter of 2019 who did not receive all due commission, wherever located.”15 The proposed class

representatives are Huber and Theriot.16 Plaintiffs allege that Huber and Theriot are owed

commissions from their work as salespersons for Defendants during the third quarter of 2019 and

are “personally familiar” with Defendants’ alleged failure to remit commissions to other

salespersons during that period.17

1. Plaintiffs contend that the class certification requirements under Rule 23(a)

are satisfied

Plaintiffs argue that class certification is proper in this case pursuant to Federal Rule of

Civil Procedure 23.18 Plaintiffs aver that the Rule 23(a) requirements—numerosity, commonality,

12 Rec. Doc. 1.

13 Rec. Doc. 13.

14 Rec. Doc. 14.

15 Rec. Doc. 1-1 at 12.

16 Rec. Doc. 13-1 at 2.

17 Id. Plaintiffs also assert that Huber and Theriot “have been involved in fact development in this class action

and assume their fiduciary duty to the class.” Id.

18 Id. at 1.

typicality, and adequacy of representation—are met.19

a. Numerosity

First, with respect to the numerosity requirement, Plaintiffs assert that although the “exact

number and identities of the class plaintiffs are unknown at this time,” Plaintiffs “are of the

information and belief that the class of plaintiffs consists of, at a minimum, several hundred

salespersons working for Defendants in Quarter 3 of 2019.”20

b. Commonality

Plaintiffs next argue that the commonality requirement for class certification is satisfied

because “[t]here are common questions of law and fact applicable to all class members which

predominate over individual questions.”21 Specifically, Plaintiffs argue that there are three

common questions among the proposed class members: (1) whether Defendants breached a

contract with the proposed class members by failing to remit commissions as calculated using the

Sales Compensation Plan; (2) whether the proposed class members reasonably and detrimentally

relied on the Sales Compensation Plan when they completed their sales; and (3) whether

Defendants engaged in unfair trade practices by failing to remit commissions in the amount the

proposed class members relied on.22

c. Typicality

Third, Plaintiffs contend that the claims brought by Plaintiffs are typical of all proposed

class members because “[t]he claims of both arise from the same set of facts and they both seek

19 Id. at 1, 3.

20 Id. at 4.

21 Id.

22 Id. at 4–5.

the same relief, specifically 2019 [Quarter 3] commissions calculated using the Sales

Compensation Plan.”23

d. Adequacy

Fourth, Plaintiffs argue that the representative parties fairly and adequately protect the

interests of the proposed class because “the claims of the named plaintiffs are interrelated with the

claims of the absent class members to such a degree that it is certain that the interests of the absent

class members will be adequately and fairly protected.”24

2. Plaintiffs assert that the class certification requirements under Rule 23(b) are

satisfied

Next, Plaintiffs argue that the requirements of Rules 23(b)(1)(A) and 23(b)(3) are also

satisfied in this case. Specifically, Plaintiffs contend that Rule 23(b)(1)(A) is satisfied “because all

salespersons working for Defendants in Quarter 3 of 2019 were operating under the belief they

would be compensated according to the same Sales Compensation Plan.”25 Plaintiffs assert that

“[p]rosecuting separate actions by individual class members would create risk of inconsistent or

varying adjudication with respect to individual salespersons’ entitlement to unpaid

commissions.”26

Additionally, Plaintiffs argue that Rule 23(b)(3) is satisfied because: (i) there are no

individual questions which predominate over the common questions of law and fact in this matter;

and (ii) a class action is superior to other available methods for the fair and efficient adjudication

of this case in light of the following factors:

23 Id. at 5.

24 Id. at 6.

25 Id. at 7.

26 Id.

a) the low interest of the members of the class individually controlling the

prosecution of separate actions;

b) the lack of significant prior individual litigation by class members;

c) the desirability of concentrating this litigation in this forum;

d) the benefits and lack of difficulty in management of this matter as a class action;

e) the lack of practical ability of individual class members to purse their claims

without the class action vehicle; and

f) the cost, efficiency and other benefits which would justify this matter proceeding

as a class action.27

B. Defendants’ Arguments in Opposition to the Motion for Class Certification

In opposition, Defendants initially point out the Plaintiffs have brought six separate claims

under Louisiana law against Defendants.28 Defendants note that if this case is certified, “it would

implicate the laws of numerous other states in the United States.”29 Defendants then offer three

principal arguments in opposition to Plaintiffs’ motion for class certification:30

1. Defendants argue that Plaintiffs’ proposed class is deficient

First, Defendants argue that Plaintiffs’ proposed class definition is deficient because the

proposed class is not limited to any particular state law and is “inadequate, insufficiently defined,

[and] overbroad.”31 Specifically, Defendants assert that Plaintiffs’ proposed class of those “who

did not receive all due commission” requires an individualized factual assessment which renders

the proposed class improperly defined.32

27 Id. at 8.

28 Rec. Doc. 14 at 2.

29 Id.

30 Id.

31 Id. at 4–5.

32 Id. at 5.

2. Defendants assert that Plaintiffs have failed to establish the Rule 23(a)

requirements for class certification

Second, Defendants argue that Plaintiffs have failed to establish the Rule 23(a)

prerequisites necessary to certify a class.33

a. Numerosity

Defendants contend that Plaintiffs present no evidence in support of their conclusion that

the numerosity requirement is satisfied in this case.34 Defendants further contend that Plaintiffs

have presented no evidence to show that joinder of all members is impracticable.35

b. Commonality

Defendants argue that Plaintiffs set forth only conclusory statements regarding

commonality and ignore certain “critical issues.”36 Specifically, Defendants aver that “whether

Defendants breached a contract is going to be subject to analysis under numerous state laws.”37

According to Defendants, Plaintiffs have presented “no evidence to demonstrate that the 2019

Sales Incentive Plan is a contract at all or that it applies to all putative class members.”38

Defendants assert that “whether the class members reasonably and detrimentally relied on the Sales

Compensation Plan” will likewise require an individualized analysis under each applicable state

law.39

33 Id. at 5–12.

34 Id. at 6.

35 Id. at 7.

36 Id. at 8.

37 Id. at 8–9 (internal quotation marks omitted).

38 Id. at 9.

39 Id. (internal quotation marks omitted).

In addition, Defendants contend that unfair trade practice claims cannot be brought in

Louisiana in a representative capacity, and any alleged commonality premised on this claim is

invalid.40 Defendants note that Huber does not assert a wage payment claim while Theriot does.41

Finally, Defendants submit that pursuant to Louisiana Code of Civil Procedure article 2298, unjust

enrichment claims are not cognizable where there are alternate remedies available, and that

because Plaintiffs allege five other causes of action, the unjust enrichment claim cannot form the

basis for commonality.42

c. Typicality

Similarly, Defendants argue that Plaintiffs’ allegations of typicality are too conclusory and

unsupported to show that the Rule 23(a) typicality requirement is satisfied.43 Defendants note that

the claims of all putative class members who reside outside of Louisiana would be governed by

different states’ laws, and “any claims Plaintiffs may have cannot be typical of the purported class

of individuals whose claims are subject to other state laws.”44

d. Adequacy

Defendants contend that Plaintiffs cannot adequately represent a class of employees who

worked outside of Louisiana.45 Defendants assert that Plaintiffs have submitted “no evidence or

support for their adequacy as class representatives” and “do not submit any declaration or other

40 Id.

41 Id. at 10.

42 Id.

43 Id. at 10–11.

44 Id. at 11.

45 Id. at 11–12.

evidence reflecting that they are willing and able to take an active role in the litigation.”46

3. Defendants argue that Plaintiffs have failed to establish the Rule 23(b)

requirements for class certification

Third, Defendants argue that Plaintiffs have failed to establish the Rule 23(b) requirements

necessary to certify a class.47 Defendants contend that separate actions would not result in

incompatible standard of conduct for Defendants.48 Specifically, Defendants assert that it “would

not be incompatible for Defendants to pay commissions to one plaintiff while not paying another

because each individual plaintiff will have to demonstrate that they . . . were entitled to some

payment that they did not receive.”49 Additionally, Defendants point out that since various state

laws apply to different proposed class members, varying judgments with respect to Plaintiffs’

claims would not be incompatible.50

Additionally, Defendants argue that individualized issues necessary to adjudicate

Plaintiffs’ claims predominate over the common issues arising in this lawsuit.51 Defendants

reiterate that in this case, variations in state law bear on the issues on this case.52 Defendants also

argue that class treatment may not be suitable because the calculation of damages is not susceptible

to mathematical or formulaic calculation.53 Furthermore, Defendants argue that Plaintiffs have not

46 Id. at 12.

47 Id. at 13–19.

48 Id. at 14.

49 Id.

50 Id.

51 Id. at 15.

52 Id. at 16.

53 Id. at 17.

demonstrated how the “inherent factual and legal differences among the putative plaintiffs’ claims

are somehow immaterial.”54

In conclusion, Defendants argue that a class action is not the superior method to adjudicate

the proposed class and that Plaintiffs make “no argument in support of superiority.”55

III. Legal Standard

Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure.56 Plaintiffs

need not first establish the merits of their case in order to gain certification.57 Instead, in order to

be certified, a proposed class must first meet the initial requirements established by Federal Rule

of Civil Procedure 23(a): (1) numerosity of parties; (2) commonality of legal and factual issues;

(3) typicality of the claims and defenses of the class representatives; and (4) adequacy of the

representation by the class representatives.58

However, satisfaction of these four requirements, alone, is not enough to merit class

certification. Additionally, “the proposed class must satisfy at least one of the three requirements

listed in Rule 23(b),”59 which sets forth the types of actions that may be maintained as a class

action. Here, Plaintiffs seek certification under Rule 23(b)(1)(A) or Rule 23(b)(3).

Rule 23(b)(1)(A) provides for class certification where “prosecuting separate actions by or

against individual class members would create a risk of inconsistent or varying adjudications with

54 Id. at 18.

55 Id.

56 Fed. R. Civ. P. 23.

57 Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (citing Miller v. Mackey Int’l, 452 F.2d 424, 427

(5th Cir. 1971)).

58 Fed. R. Civ. P. 23(a); see also Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011).

59 Id. at 2548.

respect to individual class members that would establish incompatible standards of conduct for the

party opposing the class.” As the Supreme Court has recognized, Rule 23(b)(1)(A) “takes in cases

where the party is obliged by law to treat the members of the class alike (a utility acting toward

customers; a government imposing a tax), or where the party must treat all alike as a matter of

practical necessity (a riparian owner using water as against downriver owners).”60

When plaintiffs seek certification pursuant to Rule 23(b)(3), “the court [must] find[ ] that

the questions of law or fact common to class members predominate over any questions affecting

only individual members, and that a class action is superior to other available methods for fairly

and efficiently adjudicating the controversy.”61

Rule 23(b)(3) contains a list of “matters pertinent” to the findings of predominance and

superiority:

(A) the class members’ interests in individually controlling the prosecution or

defense of separate actions; (B) the extent and nature of any litigation concerning

the controversy already begun by or against class members; (C) the desirability or

undesirability of concentrating the litigation of the claims in the particular forum;

and (D) the likely difficulties in managing a class action.62

60 Products Inc. v. Windsor, 521 U.S. 591, 614 (1997) (internal citations omitted).

61 Fed. R. Civ. P. 23(b)(3) (emphasis added).

62 Id.

“In order to ‘predominate,’ common issues must constitute a significant part of the

individual cases.”63 Additionally, the Fifth Circuit has explained that courts must determine the

manner in which the class action would be tried in order to determine whether common legal

issues predominate over individual issues and whether manageability problems preclude class

litigation from being superior to other available methods of adjudicating the controversy.64 “The

predominance and superiority requirements are ‘far more demanding’ than is [R]ule 23(a)(2)’s

commonality requirement,”65 and a court must “identify[ ] the substantive issues that will control

the outcome, assess[ ] which issues will predominate, and then determin[e] whether the issues are

common to the class.”66 Predominance requires that central questions be “capable of class-

wide determination,” utilizing class-wide rather than individualized evidence.67 Such an inquiry

is necessary to prevent the class from “degenerating into a series of individual trials.”68

As the parties seeking certification, the burden to show that all of the requirements for

class certification have been met rests on the plaintiffs.69 Then, the decision of whether to certify

a class lies soundly within the district court’s discretion; however, the Court “must conduct a

63 Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 472 (5th Cir. 1986).

64 Castano v. Am. Tobacco Co., 84 F.3d 734, 740, 743-45 (5th Cir. 1996).

65 O’Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732, 738 (5th Cir. 2003) (quoting Amchem Prods.

v. Windsor, 521 U.S. 591, 624 (1997)).

66 Id.

67 Benavides v. Chicago Title Ins. Co., 636 F.3d 699, 702 (5th Cir. 2011).

68 O’Sullivan, 319 F.3d at 738; see also State of Ala. v. Blue Bird Body Co., 573 F.2d 309, 328 (5th Cir.

1978) (“[I]f the effect of class certification . . . will in actuality require a multitude of mini-trials . . . , then

the justification for class certification is absent.”).

69 See Unger v. Amedisys, Inc., 401 F.3d 316, 320 (5th Cir. 2005).

rigorous analysis of the [R]ule 23 prerequisites before certifying a class.”70 Further, “Rule 23

requires the Court to find, not merely assume, the facts favoring class certification.”71

IV. Analysis

Plaintiffs seek to certify a class of: “Commissioned salespersons employed by BioScrip

Infusion Services, LLC and/or Option Care Health, Inc. during the third quarter of 2019 who did

not receive all due commission, wherever located.”72 Plaintiffs request certification under Federal

Rules of Civil Procedure 23(b)(1)(A) and 23(b)(3).73 Defendants counter that certification should

be denied because the proposed class is deficient and Plaintiffs have not met their burden of

showing that the Rule 23(a) or Rule 23(b) requirements are satisfied.74

A. Whether Plaintiffs have met their burden of showing that the Rule 23(a) prerequisites

are satisfied

In order to be certified, a proposed class must first meet the requirements of Federal Rule

of Civil Procedure 23(a): (1) numerosity of parties; (2) commonality of legal and factual issues;

(3) typicality of the claims and defenses of the class representatives; and (4) adequacy of the

representation by the class representatives.75 “[T]he party seeking certification bears the burden

of establishing that all requirements of rule 23(a) have been satisfied.”76

70 Castano, 84 F.3d at 740.

71 Unger, 401 F.3d at 321 (citing Fed. R. Civ. P. 23(b)(3)).

72 Rec. Doc. 1-1 at 12.

73 Rec. Doc. 13.

74 Rec. Doc. 14.

75 Fed. R. Civ. P. 23(a); see also Dukes, 131 S. Ct. at 2550.

76 Berger v. Compaq Computer Corp., 257 F.3d 475, 481 (5th Cir. 2001).

1. Numerosity

Plaintiffs assert that although the “exact number and identities of the class plaintiffs are

unknown at this time,” Plaintiffs “are of the information and belief that the class of plaintiffs

consists of, at a minimum, several hundred salespersons working for Defendants in Quarter 3 of

2019.”77 In opposition, Defendants contend that Plaintiffs present no evidence in support of their

conclusion that the numerosity requirement is satisfied in this case.78

Plaintiffs offer nothing more than a perfunctory nod to the numerosity requirement. In

addition, Fifth Circuit precedent dictates that the “proper focus” under Rule 23(a)(1) is “not on

numbers alone, but on whether joinder of all members is practicable in view of the numerosity of

the class and all other relevant factors.”79 Here, Plaintiffs have set forth no evidence or specific

allegations that joinder would be impracticable.80

2. Commonality

Plaintiffs argue that the commonality requirement is satisfied because “[t]here are

common questions of law and fact applicable to all class members which predominate over

individual questions.”81 In opposition, Defendants argue that Plaintiffs set forth only conclusory

statements regarding commonality and ignore certain “critical issues.”82

Although Plaintiffs set forth conclusory allegations with respect to commonality, “[t]he

77 Rec. Doc. 13-1 at 4.

78 Rec. Doc. 14 at 6.

79 Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir. 1981) (internal citation omitted).

80 See Rec. Doc. 13-1 at 3–4.

81 Id. at 4.

82 Rec. Doc. 14 at 8.

test for commonality is not demanding and is met where there is at least one issue, the resolution

of which will affect all or a significant number of the putative class members.”83 Plaintiffs argue

that there are three common questions among the proposed class members: (1) whether

Defendants breached a contract with the proposed class members by failing to remit commissions

as calculated using the Sales Compensation Plan; (2) whether the proposed class members

reasonably and detrimentally relied on the Sales Compensation Plan when they completed their

sales; and (3) whether Defendants engaged in unfair trade practices by failing to remit

commissions in the amount the proposed class members relied on.84

Plaintiff asserts an unfair trade practices claim under the Louisiana Unfair Trade Practices

and Consumer Protection Law (“LUPTA”), Louisiana Revised Statute 51:1401 et seq.85 Under

Louisiana law, unfair trade practices claims under LUPTA cannot be brought in a representative

capacity.86 However, the Court finds that the remaining two common questions asserted by

Plaintiffs satisfy the “not demanding” standard for commonality.

3. Typicality

Plaintiffs contend that the claims brought by Huber and Theriot are typical of all proposed

class members because “[t]he claims of both arise from the same set of facts and they both seek

the same relief, specifically 2019 [Quarter 3] commissions calculated using the Sales

83 Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 625 (5th Cir. 1999) (internal citation omitted).

84 Rec. Doc. 13-1 at 4–5.

85 Rec. Doc. 1-1 at 15.

86 See Indest-Guidry, Ltd. v. Key Off. Equip., Inc., 2008-599 (La. App. 3 Cir. 11/5/08), 997 So. 2d 796,

810, writ denied, 2008-2851 (La. 2/6/09), 999 So. 2d 782 (“Th[e] language in La.R.S. 51:1409(A) refers to

‘the clear ban against class actions by private persons’ under the Act.”) (citing State ex rel. Guste v. General

Motors Corp., 370 So.2d 477, 483 (La. 1978) (Dennis, J. concurring)).

Compensation Plan.”87 In opposition, Defendants note that the claims of all putative class

members who reside outside of Louisiana would be governed by different states’ laws, and “any

claims Plaintiffs may have cannot be typical of the purported class of individuals whose claims

are subject to other state laws.”88

“The test for typicality, like the test for commonality, is not demanding.”89 Typicality

“focuses on the similarity between the named plaintiffs’ legal and remedial theories and the

theories of those whom they purport to represent.”90 Although Plaintiffs’ argument with respect

to typicality is lamentably conclusory and speculative, the Court finds that Plaintiffs satisfy the

low standard for typicality by alleging generally that the claims brought by Huber and Theriot

arise from the same factual circumstances and advance the same theories of relief as the proposed

class members.

4. Adequacy

Plaintiffs argue that Huber and Theriot fairly and adequately protect the interests of the

proposed class because “the claims of the named plaintiffs are interrelated with the claims of the

absent class members to such a degree that it is certain that the interests of the absent class

members will be adequately and fairly protected.”91 In opposition, Defendants assert that

Plaintiffs have submitted “no evidence or support for their adequacy as class representatives,”

and “do not submit any declaration or other evidence reflecting that they are willing and able to

87 Rec. Doc. 13-1 at 5.

88 Rec. Doc. 14 at 11.

89 Lightbourn v. Cty. of El Paso, Tex., 118 F.3d 421, 426 (5th Cir. 1997).

90 Mullens, 186 F.3d at 625.

91 Rec. Doc. 13-1 at 6.

take an active role in the litigation.”92

Plaintiffs fail to show how Huber and Theriot are adequate representatives of the proposed

class. Plaintiffs submit that “the claims of the named plaintiffs are interrelated with the claims of

the absent class members to such a degree that it is certain that the interests of the absent class

members will be adequately and fairly protected.”93 “Rule 23(a)’s adequacy requirement

encompasses class representatives, their counsel, and the relationship between the two.”94 Here,

Plaintiffs’ sweeping statement that Huber and Theriot’s claims are “interrelated” with the claims

of the proposed class members does not suffice to meet Plaintiffs’ burden of establishing that the

adequacy of representation requirement is satisfied.

Accordingly, the Court finds that Plaintiffs have not established that all four Rule 23(a)

prerequisites for class certification ae met. Nevertheless, in the interest of completeness, the Court

also evaluates whether Plaintiffs have shown that class certification is warranted under either

Rule 23(b)(1)(A) or Rule 23(b)(3).

B. Whether Plaintiffs have met their burden of showing that the Rule 23(b)(1)(A)

requirements are satisfied

Plaintiffs seek certification under Rule 23(b)(1)(A).95 Rule 23(b)(1)(A) provides for class

certification where “prosecuting separate actions by or against individual class members would

create a risk of inconsistent or varying adjudications with respect to individual class members

that would establish incompatible standards of conduct for the party opposing the class.” Rule

92 Rec. Doc. 14 at 12.

93 Rec. Doc. 13-1 at 6.

94 Id. at 479.

95 Rec. Doc. 13-1 at 3.

23(b)(1)(A) “takes in cases where the party is obliged by law to treat the members of the class

alike (a utility acting toward customers; a government imposing a tax), or where the party must

treat all alike as a matter of practical necessity (a riparian owner using water as against downriver

owners).”96

Here, Plaintiffs contend that the requirements of Rule 23(b)(1)(A) are satisfied “because

all salespersons working for Defendants in Quarter 3 of 2019 were operating under the belief they

would be compensated according to the same Sales Compensation Plan.”97 Plaintiffs argue that

prosecuting each proposed class member’s case separately would create a risk of inconsistent

adjudication with respect to individual salespersons’ entitlement to unpaid commissions, which

would establish incompatible standards of conduct for Defendants.98 In opposition, Defendants

argue that separate actions would not result in incompatible standards of conduct for Defendants

because “it would not be incompatible for Defendants to pay commissions to one plaintiff while

not paying another because each individual plaintiff will have to demonstrate that they qualified

for a commission . . . .99

The Court finds that Plaintiffs have not met their burden of showing that the Rule

23(b)(1)(A) requirements are satisfied in this case. “Rule 23(b)(1)(A) focuses on class action

suitability from the defendant’s perspective.”100 Additionally, the Fifth Circuit has held that

certification under Rule 23(b)(1)(A) is “seldom appropriate when dealing with monetary

96 Products Inc. v. Windsor, 521 U.S. 591, 614 (1997) (internal citations omitted).

97 Rec. Doc. 13-1 at 7.

98 Id.

99 Rec. Doc. 14 at 14.

100 Casa Orlando Apartments, Ltd. v. Fed. Nat. Mortg. Ass'n, 624 F.3d 185, 196 (5th Cir. 2010).

compensation because no inconsistency is created when courts award varying levels of money

damages to different plaintiffs.”101 Here, Plaintiffs ultimately seek monetary compensation under

the sales plan, and the amount of damages awarded to each individual salesperson would vary

depending on the commissions each individual is owed and ultimately received.102

Moreover, the Fifth Circuit has found that “[u]nder Rule 23(b)(1)(A), dissimilar outcomes

that result from differing state laws are insufficient to justify class certification.”103 Plaintiffs seek

a proposed class of commissioned salespersons “wherever located” and assert—albeit without

offering any evidence in support—that “Defendants employed at least hundreds of salespersons

nationally.”104 Multistate class actions involving state-law claims may require multiple state laws

to be applied, meaning that questions of law may not be common to the entire class.105

Accordingly, dissimilar outcomes resulting from differing state laws are likely to result and

certification is inappropriate under Rule 23(b)(1)(A).

C. Whether Plaintiffs have met their burden of showing that the Rule 23(b)(3)

requirements are satisfied

Plaintiffs also seek certification under Rule 23(b)(3).106 When plaintiffs seek certification

pursuant to Rule 23(b)(3), “the court [must] find[ ] that the questions of law or fact common to

class members predominate over any questions affecting only individual members, and that a

101 Id. at 197.

102 Rec. Doc. 1-1 at 15.

103 Casa Orlando, 624 F.3d at 198.

104 Rec. Doc. 1-1 at 12; Rec. Doc. 13-1 at 4.

105 Casa Orlando, 624 F.3d at 194 (“In a multi-state class action, variations in state law may swamp any

common issues and defeat predominance.”); see also 7AA Fed. Prac. & Proc. Civ. § 1780.1 (3d ed.).

106 Rec. Doc. 13-1 at 3.

class action is superior to other available methods for fairly and efficiently adjudicating the

controversy.”107

Here, the Court finds that Plaintiffs fail to show that the predominance and superiority

factors of Rule 23(b) are satisfied. “The predominance and superiority requirements are ‘far more

demanding’ than is [R]ule 23(a)(2)’s commonality requirement.”108

1. Predominance

With respect to predominance, Plaintiffs argue that no individual questions predominate

over the common questions of law and fact in this matter.109 According to Plaintiffs, “[w]hether

the Sales Compensation Plan created an obligation for Defendants to pay commissions to

salespersons in Quarter 3 of 2019 and whether Defendants paid those commissions are questions

that predominate over any alleged individual duty or damages questions.”110 In opposition,

Defendants argue that Plaintiffs’ assertion ignores variations in state law and that common issues

do not predominate over individualized issues.111 Defendants also argue that “class treatment may

not be suitable where, as here, the calculation of damages is not susceptible to a mathematical or

formulaic calculation.”112

Here, the Court finds that Plaintiffs’ class allegations fail to meet Rule 23(b)(3)’s

predominance requirement. As an initial matter, the Court notes that, in large part, Plaintiffs

107 Fed. R. Civ. P. 23(b)(3) (emphasis added).

108 O'Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732, 738 (5th Cir. 2003) (quoting Amchem Prods.

v. Windsor, 521 U.S. 591, 624 (1997)).

109 Rec. Doc. 13-1 at 8.

110 Id. at 7–8.

111 Rec. Doc. 14 at 16–18.

112 Id. at 17.

merely recite the requirements for class certification without providing any evidence or reasoning

to support their assertion that the requirements are met. Determining whether or not legal issues

common to the class predominate over individual issues requires this Court to identify the

substantive issues that will control the outcome, assess which issues will predominate, and

determine whether the issues are common to the class.113 “Such an understanding prevents the

class from degenerating into a series of individual trials.”114 This task becomes challenging when,

as here, the party seeking certification provides minimal information and evidence to the Court.

Plaintiffs’ asserted “common question” of “whether the Sales Compensation Plan created

an obligation for Defendants to pay commissions to salespersons in Quarter 3 of 2019” hinges on

the existence of an agreement between proposed class members and Defendants.115 To determine

whether such an agreement exists, the Court will need to examine the contractual relationship

between Defendants and each individual proposed class member. In addition, Defendants may be

able to raise individualized defenses regarding the existence and extent of any contractual

obligation that may differ with respect to each proposed class member.116 This is precisely the

type of individualized adjudication that frustrates the economy and efficiency of class action

treatment.117

113 O’Sullivan, 319 F.3d at 738 (citing Castano, 84 F.3d at 744).

114 Id.

115 See id.

116 See, e.g. Basco v. Wal-Mart Stores, Inc., 216 F. Supp. 2d 592, 602 (E.D. La. 2002) (Duval, J.) (finding

that individual issues would predominate the plaintiffs’ breach of contract claims because “the damages

suffered by each defendant will vary . . . [and] defendants will be entitled to raise defenses to each alleged

‘contract’ that may differ with each plaintiff.”).

117 7AA Fed. Prac. & Proc. Civ. § 1778 (3d ed.) (“[W]hen individual rather than common issues

predominate, the economy and efficiency of class-action treatment are lost and the need for judicial

supervision and the risk of confusion are magnified.”).

Moreover, as discussed above, Plaintiffs seek a proposed class of commissioned

salespersons “wherever located,” resulting in a possible multistate class action necessitating the

application of multiple state laws.118 “In order to make the findings required to certify a class

action under Rule 23(b)(3) (that common issues predominate, etc.), one must initially identify the

substantive law issues which will control the outcome of the litigation.”119 Here, Plaintiffs bring

six separate state law claims, including claims for breach of contract, unjust enrichment, and

unfair trade practices.120 Without additional information, the Court is unable to determine whether

variations in state law would render class treatment improper because Plaintiffs do not allege

which states’ laws would be implicated in this action.

Furthermore, assuming the existence of a contract between each proposed class member

and Defendants, the damages suffered by each class member will vary.121 To state a

plausible breach of contract claim under Louisiana law, a plaintiff must allege that (1) a contract

existed between the parties; (2) defendant breached that contract; and (3) plaintiff suffered

damages as a result.122 Confusingly, in the Petition, Plaintiffs pray “[t]hat the rights of the

members of the class to establish their entitlement to compensatory damages, and the amount

thereof, be reserved for determination in their individual actions when appropriate.”123 However,

118 Rec. Doc. 1-1 at 12; Rec. Doc. 13-1 at 4; see also Casa Orlando, 624 F.3d at 194 (“In a multi-state class

action, variations in state law may swamp any common issues and defeat predominance.”); 7AA Fed. Prac.

& Proc. Civ. § 1780.1 (3d ed.).

119 State of Ala. v. Blue Bird Body Co., 573 F.2d 309, 316 (5th Cir. 1978).

120 Rec. Doc. 1-1 at 14–15.

121 Id.

122 Denham Homes, L.L.C. v. Teche Fed. Bank, 2014-1576 (La. App. 1 Cir. 9/18/15), 182 So. 3d 108, 119.

123 Rec. Doc. 1-1 at 15.

Plaintiffs also seek certification for the purpose of determining the ”common issues of liability

for compensatory damages.”124 The Court will, at a minimum, need to determine whether each

proposed class member suffered damages as a result of a breach of contract—a task that will

require examining the amount of commissions earned by each salesperson and the amount of

commissions received by each salesperson.

In Castano, the Fifth Circuit observed that in cases involving several individualized

issues, an action conducted nominally as a “class action” would “degenerate in practice to

multiple lawsuits separately tried.”125 In this case, the Court finds that Plaintiff has failed to meet

its burden of showing that common questions of law or fact predominate over any questions

affecting only individual members as required by Rule 23(b)(3).

2. Superiority

Turning to the superiority requirement of Rule 23(b)(3), Plaintiffs argue that “[a] class

action is ‘superior’ to other available methods for the fair and efficient adjudication of this case

in light of: a) the low interest of the members of the class individually controlling the prosecution

of separate actions, b) the lack of significant prior individual litigation by class members, c) the

desirability of concentrating this litigation in this forum; d) the benefits and lack of difficulty in

management of this matter as a class action; e) the lack of practical ability of individual class

members to purse their claims without the class action vehicle, and f) the cost, efficiency and

other benefits which would justify this matter proceeding as a class action.”126 In opposition,

124 Id.

125 84 F.3d at 745 n. 19 (internal citations omitted) (discussing the relationship between predominance and

superiority in mass torts).

126 Rec. Doc. 13-1 at 8.

Defendants state that a class action is not the superior method to adjudicate the individual claims

of the proposed class members. !27

Class certification is permitted only if “the court finds . . . that a class action is superior to

other available methods for fairly and efficiently adjudicating the controversy.” !*8 Here, Plaintiff

offers nothing more than a threadbare recitation of the factors set forth in Rule 23(b)(3) to show

that a class action is a superior method to adjudicate this controversy. Therefore, the Court finds

that Plaintiffs have not met their burden with respect to either of the requirements set forth in

Rule 23(b)(3).

V. Conclusion

Considering the foregoing reasons,

IT IS HEREBY ORDERED that Plaintiffs Aaron Huber and Justin Theriot’s “Motion

for Class Certification” !?° is DENIED.

NEW ORLEANS, LOUISIANA, this 8th day of April, 2021.

NANNETTE JOLWETTE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

7 Rec. Doc. 14 at 18.

28 Ibe v. Jones, 836 F.3d516,529 (Sth Cir. 2016).

” Rec. Doc. 13

24