Amicus Curiae Brief — Chipotle Mexican Grill, Inc., et al., Petitioners v. Maxcimo Scott, et al.

No. 20-257

IN THE

Supreme Court of the United States

————

CHIPOTLE MEXICAN GRILL, INC., et al.,

Petitioners,

v.

MAXCIMO SCOTT, et al.,

Respondents.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

————

BRIEF OF RETAIL LITIGATION CENTER, INC.,

AND RESTAURANT LAW CENTER AS

AMICI CURIAE SUPPORTING PETITIONERS

————

DEBORAH R. WHITE

RETAIL LITIGATION

CENTER, INC.

99 M Street, S.E.

Suite 700

Washington, D.C. 20003

ANGELO I. AMADOR

RESTAURANT LAW CENTER

2055 L Street, N.W.

Suite 700

Washington, D.C. 20036

PAUL DECAMP

Counsel of Record

GAREN E. DODGE

EPSTEIN, BECKER &

GREEN, P.C.

1227 25th Street, N.W.

Suite 700

Washington, D.C. 20037

(202) 861-0900

PDeCamp@ebglaw.com

Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

ii

INTEREST OF THE AMICI CURIAE................

1

SUMMARY OF ARGUMENT .............................

3

ARGUMENT ........................................................

4

I. APPLYING

THE

SECOND

CIRCUIT’S

STANDARD TO CASES IN WHICH COURTS

HAVE GRANTED DECERTIFICATION SHOWS

HOW HARMFUL THAT STANDARD CAN BE ..

4

A. Espenscheid v. DirectSat USA, LLC ...

4

B. Zavala v. Wal Mart Stores Inc. ...........

7

C. Anderson v. Cagle’s, Inc. .....................

9

II. THE SECOND CIRCUIT’S DECERTIFICATION

STANDARD IS INCONSISTENT WITH THE

PURPOSE OF AN FLSA COLLECTIVE

ACTION. ......................................................

11

CONCLUSION ....................................................

13

(i)

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Anderson v. Cagle’s, Inc.,

488 F.3d 945 (11th Cir. 2007) ........... 3, 9, 10, 12

Espenscheid v. DirectSat USA, LLC,

705 F.3d 770 (7th Cir. 2013) ..... 3, 4, 5, 6, 10, 12

Hoffmann-LaRoche Inc. v. Sperling,

493 U.S. 165 (1989) ............................... 3, 11, 12

In re School Asbestos Litig.,

789 F.2d 996 (3d Cir. 1986) ......................

9

Kirtsaeng v. John Wiley & Sons, Inc.,

568 U.S. 519 (2013) ...................................

1

Lewis v. Governor of Ala.,

944 F.3d 1287 (11th Cir. 2019) .................

2

South Dakota v. Wayfair, Inc.,

138 S. Ct. 2080 (2018) ...............................

1

Zavala v. Wal Mart Stores Inc.,

691 F.3d 527 (3d Cir. 2012) ................ 3, 7, 8, 10

RULES

Fed. R. Civ. P. 23 ..........................................

3

OTHER AUTHORITIES

Am. Bar Ass’n Section of Labor &

Employment Law, The Fair Labor

Standards Act (3d ed. 2015) .....................

11

BRIEF OF RETAIL LITIGATION CENTER, INC.,

AND RESTAURANT LAW CENTER AS

AMICI CURIAE SUPPORTING PETITIONERS

The Retail Litigation Center, Inc., and the Restaurant

Law Center respectfully submit this brief as amici

curiae in support of petitioners.

INTEREST OF THE AMICI CURIAE

The Retail Litigation Center, Inc. is the only trade

organization solely dedicated to representing the retail

industry in the judiciary. The Retail Litigation Center

’s members include many of the country’s largest and

most innovative retailers. Collectively, they employ

millions of workers throughout the United States,

provide goods and services to tens of millions of consumers, and account for tens of billions of dollars in

annual sales. The Retail Litigation Center seeks to

provide courts with retail-industry perspectives on

important legal issues affecting its members, and to

highlight the potential industry-wide consequences

of significant pending cases. Since its founding in

2010, the Retail Litigation Center has participated as

an amicus in more than 150 judicial proceedings

of importance to retailers. Multiple courts, including

this Court, have cited the RLC’s briefs favorably. See,

e.g., South Dakota v. Wayfair, Inc., 138 S. Ct. 2080,

2097 (2018); Kirtsaeng v. John Wiley & Sons, Inc., 568

U.S. 519, 542 (2013).



Pursuant to Rule 37.2(a), counsel of record for all parties

received timely notice of intent to file this brief, and all parties

have consented to its filing. In accordance with Rule 37.6, no

counsel for a party authored this brief in whole or in part, and no

person or entity other than amici curiae or their counsel made a

monetary contribution intended to fund the brief’s preparation

or submission.

2

The Restaurant Law Center is a public policy

organization affiliated with the National Restaurant

Association, the largest foodservice trade association

in the world. The industry comprises more than one

million restaurants and other foodservice outlets

employing more than 15 million people. Restaurants

and other foodservice providers are the nation’s secondlargest private-sector employers. The Restaurant Law

Center provides courts with the industry’s perspective

on legal issues significantly affecting the industry.

Specifically, the Restaurant Law Center highlights

the potential industry-wide consequences of pending

cases such as this one, through amicus briefs on behalf

of the industry. See, e.g., Lewis v. Governor of Ala.,

944 F.3d 1287, 1302 n.15 (11th Cir. 2019) (en banc)

(citing Restaurant Law Center amicus brief).

The Retail Litigation Center and the Restaurant

Law Center (together, “the Amici”), as well as their

members, have a significant interest in the outcome

of this case. Employers in the retail and foodservice

sectors often find themselves defending collective actions

under the Fair Labor Standards Act (the “FLSA”).

A key consideration in these cases is the standard the

court will apply in deciding whether, as trial approaches,

the opt-in plaintiffs are sufficiently similarly situated

to warrant collective adjudication. That single issue

has an outsized effect on the litigation. An overly

expansive view of similarity all but forces most defendants to settle regardless of the merits of the plaintiffs’

claims, while an unduly narrow notion of similarity

may be insufficient to safeguard worker protections

embodied in the FLSA.

3

SUMMARY OF ARGUMENT

The Second Circuit appears to have found itself

trapped in a false dichotomy, believing that it had

only two choices available in selecting the appropriate

standard for addressing FLSA decertification. The

court rejected the approach of adopting the Rule 23

framework wholesale as inconsistent with the text of

the FLSA. But the court then seemed to view its only

other option to be a “minimal commonality” standard

devoid of any consideration of litigation reality, docket

management, fairness, efficiency, or the policies behind

FLSA collective actions.

Three cases—Espenscheid v. DirectSat USA, LLC,

705 F.3d 770 (7th Cir. 2013); Zavala v. Wal Mart Stores

Inc., 691 F.3d 527 (3d Cir. 2012); and Anderson v.

Cagle’s, Inc., 488 F.3d 945 (11th Cir. 2007)—especially

illustrate why the minimal commonality approach

adopted by the Second Circuit is so pernicious in practice and they highlight the practical considerations

that properly lead courts to decertify collective actions.

Indeed, those cases provide a telling glimpse into

what litigation would have looked like if the courts

had followed the Second Circuit’s rule and the cases

proceeded to trial.

Moreover, the Second Circuit’s standard is starkly

at odds with the collective action’s raison d’être. This

Court has emphasized that the main purpose of a

collective action is to facilitate the fair and efficient

resolution of FLSA claims. See Hoffmann-LaRoche

Inc. v. Sperling, 493 U.S. 165 (1989). Where, however,

adjudicating claims requires either highly individualized inquiries or evidentiary and other procedural

shortcuts that would undermine litigants’ substantive

rights, proceeding collectively is contrary to the purpose of the FLSA.

4

ARGUMENT

I. APPLYING THE SECOND CIRCUIT’S STANDARD

TO CASES IN WHICH COURTS HAVE GRANTED

DECERTIFICATION SHOWS HOW HARMFUL THAT

STANDARD CAN BE.

Courts have decertified collective actions, or affirmed

decertification, in numerous published and unpublished

decisions across the country. What nearly all of those

cases have in common is that they probably would have

come out the other way under the Second Circuit’s

standard. Where any single common issue of law or

fact suffices to prevent decertification, courts would

have to deny decertification in almost every case.

It is not unusual for at least one common issue to

exist in an FLSA collective action, such as whether the

alleged violation was willful, whether the employer

acted in good faith reliance on advice of counsel, or

whether a particular task or group of tasks constitutes

compensable work. Nevertheless, individualized issues

can and do overtake the common questions in many

cases, leaving a trial court with the choice of decertifying the collective or allowing an utterly unmanageable

and unfair train wreck of a case to proceed to trial.

Several examples of cases in which courts have decertified collectives—and that would likely have come

out differently under the Second Circuit’s minimal

commonality standard—illustrate the point.

A. Espenscheid v. DirectSat USA, LLC

In Espenscheid v. DirectSat USA, LLC, 705 F.3d

770 (7th Cir. 2013), technicians who install and repair

residential satellite equipment sued their employer

alleging, inter alia, that the company required them

not to report time spent on certain job activities as

hours worked, thereby leading to uncompensated work,

5

and failed to provide premium overtime pay under the

FLSA. Id. at 772-73. The district court conditionally

certified an FLSA collective, resulting in 2,341 plaintiffs.

Id. at 772. “[W]hen it became apparent that the trial

plan submitted by the plaintiffs was infeasible[,]” the

district court decertified the collective.

On appeal, the Seventh Circuit noted the plaintiffs’

allegation that the employer “forb[ade] the technicians

to record time spent on certain tasks, such as calling

customers, filling out paperwork, and picking up tools

from one of the company’s warehouses.” Espenscheid,

705 F.3d at 773. The workers received piece-rate compensation, or a set amount of money per job. Id. at

772-73. Given the piece-rate system and the reality

that “workers differ in their effort and efficiency[,]” the

court observed that “some, maybe many, of the technicians may not work more than 40 hours a week and

may even work fewer hours; others may work more

than 40 hours a week.” Id. at 773. Indeed, “[v]ariance

would also result from different technicians’ doing

different tasks, since it’s contended that the employer

told them not to report time spent on some of those

tasks, though—further complicating the problem of

proof—some of them reported that time anyway.” Id.

at 773-74.

The plaintiffs proposed a trial based on “representative” testimony from 42 members of the collective.

Espenscheid, 705 F.3d at 774. The court observed that

“even if the 42 . . . turned out by pure happenstance

to be representative in the sense that the number of

hours they worked per week on average . . . was equal

to the average number of hours of the entire class, this

would not enable the damages of any members of the

class other than the 42 to be calculated.” Id. The

court noted “the complication created by the piece-rate

6

system[,]” under which “the hourly wage varies from

job to job and worker to worker.” Id. A “further

complication” involved “a worker who underreported

his time, but did so, DirectSat offers to prove, not

under pressure by DirectSat but because he wanted to

impress the company with his efficiency in the hope

of obtaining a promotion or maybe a better job

elsewhere[.]” Id. In addition, “the technicians have no

records of the amount of time they worked but didn’t

report on their time sheets.” Id. at 774-75.

The court observed that on this record, “to determine damages would, it turns out, require 2341

separate evidentiary hearings, which might swamp

the Western District of Wisconsin with its two district

judges.” Espenscheid, 705 F.3d at 773. The court

remarked that “it’s not as if each technician worked

from 8 a.m. to 5 p.m. and was forbidden to take a lunch

break and so worked a 45-hour week . . . but was paid

no overtime.” Id. In that scenario, “each technician’s

damages could be computed effortlessly, mechanically,

from the number of days he worked each week and

his hourly wage. . . . Nothing like that is possible

here.” Id. The court criticized the unworkability of

the plaintiffs’ proposed trial plan: “Essentially they

asked the district judge to embark on a shapeless,

freewheeling trial that would combine liability and

damages and would be virtually evidence-free so far

as damages were concerned.” Id. at 776. The court

warned that “if class counsel is incapable of proposing

a feasible litigation plan . . . , the judge’s duty is at an

end.” Id. The court affirmed the order decertifying the

collective. Id. at 777.

Espenscheid would likely have come out differently

in the Second Circuit. Applying the Second Circuit’s

minimal commonality framework, the single issue of

7

whether the company directed the workers not to record

time spent on certain tasks might suffice to preclude

decertification. In that case, the district court and the

parties would then have had to face the stunningly

burdensome prospect of more than 2,300 mini-trials to

sort out the many issues related to each employee,

such as hours worked and efficiency, thereby resulting

in a “shapeless, freewheeling trial” that could have

“swamp[ed]” the two district court judges, hardly a

model of judicial economy.

B. Zavala v. Wal Mart Stores Inc.

In Zavala v. Wal Mart Stores Inc., 691 F.3d 527 (3d

Cir. 2012), employees of various cleaning companies

that provide cleaning services in Wal-Mart stores sued

Wal-Mart alleging, inter alia, that the company was

their employer and owed them overtime under the

FLSA. Id. at 530-31. Following conditional certification of the case as a collective action, more than 100

individuals opted into the case. Id. at 531, 534. After

discovery, the district court granted Wal-Mart’s

motion to decertify the collective. Id. at 534.

On appeal, the Third Circuit noted several points

of similarity in the record. For example, “Wal-Mart

distributed a maintenance manual that went into exacting detail about how to clean floors, shelves, bathrooms,

and other parts of the store” and “mandated procedures that all employees and contractors were to use.”

Zavala, 691 F.3d at 538. The company’s store managers “had final authority to approve or disapprove

members of cleaning crews[,]” and the evidence suggested that they “fired members of cleaning crews and

that Wal-Mart employees regularly directed cleaning

crews in conducting their work in the store.” Id.

Moreover, the plaintiffs alleged “a common scheme to

hire and underpay illegal immigrant workers[.]” Id.

8

The record, however, also reflected significant dissimilarities. For example, “the putative class worked

in 180 different stores in 33 states throughout the

country and for 70 different contractors and subcontractors. The individuals worked varying hours and

for different wages depending on the contractor.”

Zavala, 691 F.3d at 538 (quotation omitted). In addition,

“different defenses might be available to Wal-Mart

with respect to each proposed plaintiff, including that

individual cleaners were not Wal-Mart employees, as

that term is defined by the FLSA, and that it paid

some of its contractors an adequate amount to support

an appropriate wage for the cleaners.” Id.

The court observed that the “common links” in the

case “are of minimal utility in streamlining resolution

of these cases. Liability and damages still need to be

individually proven.” Zavala, 691 F.3d at 538. Thus,

“[c]onsidering the numerous differences among members

of the proposed class . . . , we conclude that the Plaintiffs have not met their burden of demonstrating that

they are similarly situated.” Id. The court affirmed

the order decertifying the collective. Id.

Under the Second Circuit’s standard, however, the

collective would likely have remained certified. For

example, the alleged scheme to use illegal immigrant

labor “potentially demonstrates . . . willfulness in violating the FLSA[,]” Zavala, 691 F.3d at 538, thereby

apparently precluding decertification under the Second

Circuit’s approach. Trial would have required evidence regarding each of the 100-plus opt-in plaintiffs

in the collective as to both liability and damages.

The trial would have been a collective adjudication in

name only, with the reality consisting of several dozen

largely, if not entirely, separate trials.

9

C. Anderson v. Cagle’s, Inc.

Anderson v. Cagle’s, Inc., 488 F.3d 945 (11th Cir.

2007), involved production workers of a chicken processing company alleging that they had not been

compensated for donning and doffing of protective

clothing, or for certain production work, under the

FLSA. Id. at 949. The district court conditionally

certified the collective, eventually leading to more than

1,800 plaintiffs joining the case. Id. at 950. After

discovery, the defendants moved to decertify the collective, and the district court granted their motions. Id.

On appeal, the Eleventh Circuit affirmed. The court

noted that the case presented a “wide variety of work

assignments and varied compensation structures affecting the purported class.” Anderson, 488 F.3d at 952

(quotation omitted). The defendants included various

separate entities, with separate “locations” and “work

forces[.]” Id. “Among the numerous distinctions, we

find particularly important evidence that, unlike all of

the named plaintiffs, many of the opt-in plaintiffs are

not unionized. A key defense in this case . . . requires

the existence of a collective bargaining unit.” Id. at

954 n.8. The court cautioned that “the availability

of a defense to some but not all of the putative class

members ‘clearly poses significant case management

concerns.’” Id. (quoting In re School Asbestos Litig.,

789 F.2d 996, 1011 (3d Cir. 1986)).

The court commented that “logically the more material

distinctions revealed by the evidence, the more likely

the district court is to decertify the collective action.”

Anderson, 488 F.3d at 953. And “although the FLSA

does not require potential class members to hold identical positions, the similarities necessary to maintain

a collective action . . . must extend beyond the mere

facts of job duties and pay provisions.” Id. (quotations

10

omitted). Were it otherwise, the court noted, “it is

doubtful that” the collective action device “would

further the interests of judicial economy, and it would

undoubtedly present a ready opportunity for abuse.”

Id. (quotation omitted).

As with Espenscheid and Zavala, it seems very

likely that under the Second Circuit’s standard, the

collective in Anderson would have remained certified.

Issues such as the appropriateness of the defendants’

practices for measuring compensable production time

would probably suffice to preclude decertification.

Yet at trial, the case would have splintered into

numerous separate mini-trials as more than 1,800

plaintiffs presented evidence regarding their various

work circumstances, addressing varying practices at

different locations, working for different employers,

subject to different defenses.

* * *

As these three cases show, the net result of the

Second Circuit’s minimal commonality rule is to tie

the district courts’ hands, forcing trial judges to allow

unmanageable, docket-clogging litigation to proceed to

trial. Some federal districts would be overwhelmed,

as noted in Espenscheid. The much better approach

is, as these other courts have done, to apply common

sense and sound docket management principles to the

question of interpreting the similarly situated standard in the decertification context. In short, if a case

is collective in theory, but in practice will require

plaintiff-by-plaintiff trials, then the workers are not

similarly situated for purposes of the FLSA. Federal

trial judges should have the discretion to make that

determination and without being bound by the Second

Circuit’s myopic standard.

11

II. THE SECOND CIRCUIT’S DECERTIFICATION

STANDARD IS INCONSISTENT WITH THE PURPOSE

OF AN FLSA COLLECTIVE ACTION.

This Court discussed the purposes behind the FLSA’s

collective action device in Hoffmann-LaRoche Inc. v.

Sperling, 493 U.S. 165 (1989). Speaking in the context

of an action under the Age Discrimination in Employment

Act, which incorporates the FLSA’s collective action

procedure, the Court stated that “[a] collective action

allows . . . plaintiffs the advantage of lower individual

costs to vindicate rights by the pooling of resources.

The judicial system benefits by efficient resolution in

one proceeding of common issues of law and fact

arising from the same alleged . . . activity.” Id. at 170.

Most courts tailor their decertification analysis to

serve the twin purposes of the collective action identified in Hoffmann-LaRoche. Thus, “courts generally

consider three factors: (1) the disparity or similarity of

the factual and employment settings of the individual

plaintiffs, (2) the various defenses available to the

defendant and whether those may be asserted collectively

or individually as to each plaintiff, and (3) fairness and

procedural considerations.” Am. Bar Ass’n Section of

Labor & Employment Law, The Fair Labor Standards

Act at 17-178 (3d ed. 2015) (collecting cases).

The standard embraced by the Second Circuit, however, conflicts with the compelling rationale behind

Hoffmann-LaRoche. If a collective action contains at

least one issue of law or fact common to all plaintiffs,

then the approach followed by the Second Circuit

would lead the case to trial on a collective basis. Such

a rule claims to apply no matter how minor or tangential the point of similarity may be to the case as a

practical matter, so long as the issue is technically

material to at least one asserted claim or defense. Nor

12

does the rule apparently yield when significant factual

disparities among the collective demonstrate that

plaintiff-specific inquiries will overwhelm the trial and

in effect require mini-trials for each plaintiff.

The Second Circuit’s approach therefore undermines,

rather than furthers, this Court’s sound teachings.

A case that would require dozens, hundreds, or

thousands of individual hearings, where in effect each

plaintiff has a separate trial, simply does not result in

“lower individual costs” for plaintiffs. HoffmannLaRoche, 493 U.S. at 170. Nor does such an unwieldy

trial deliver benefits to the judicial system through

“efficient resolution in one proceeding” of the claims

and defenses pertinent to the collective. Id. See also

Anderson, 488 F.3d at 953 (cautioning that too lax a

standard for evaluating “similarly situated” would not

“further the interests of judicial economy” and “would

undoubtedly present a ready opportunity for abuse”)

(quotations omitted); Espenscheid, 705 F.3d at 773

(warning that trial involving 2,341 evidentiary hearings would “swamp the Western District of Wisconsin

with its two district judges”).

In short, the Second Circuit’s approach is neither

good law nor sound policy. Nothing in the text or

legislative history of the FLSA’s collective action provision suggests that Congress intended to require

courts to take on unmanageable proceedings, flood

their dockets, and increase cost and unfairness for all

participants, upon a rudimentary showing that the

members of a collective have at least a little bit in

common with each other. In the absence of a clear

expression of legislative intent to the contrary, there

is no good reason to construe the FLSA in a manner

that requires casting aside sound case management

concepts and basic notions of fairness to litigants.

13

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

DEBORAH R. WHITE

RETAIL LITIGATION

CENTER, INC.

99 M Street, S.E.

Suite 700

Washington, D.C. 20003

ANGELO I. AMADOR

RESTAURANT LAW CENTER

2055 L Street, N.W.

Suite 700

Washington, D.C. 20036

PAUL DECAMP

Counsel of Record

GAREN E. DODGE

EPSTEIN, BECKER &

GREEN, P.C.

1227 25th Street, N.W.

Suite 700

Washington, D.C. 20037

(202) 861-0900

PDeCamp@ebglaw.com

Counsel for Amici Curiae

October 1, 2020