Petition for Writ of Certiorari — Medical Transportation Management, Inc., Petitioner v. Isaac Harris, et al.

No. ______

In the Supreme Court of the United States

MEDICAL TRANSPORTATION MANAGEMENT, INC.,

Petitioner,

v.

ISAAC HARRIS, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the D.C. Circuit

PETITION FOR WRIT OF CERTIORARI

Logan M. Rutherford

BRYAN CAVE LEIGHTON

PAISNER LLP

1200 Main St., Suite 3800

Kansas City, MO 64105

Darci F. Madden

Emma G. McEnery

BRYAN CAVE LEIGHTON

PAISNER LLP

211 North Broadway

Suite 3600

St. Louis, MO 63102

William F. Ryan

WHITEFORD TAYLOR &

PRESTON LLP

7 Saint Paul St.

Baltimore, MD 21202

Jean-Claude André

Counsel of Record

BRYAN CAVE LEIGHTON

PAISNER LLP

120 Broadway #300

Santa Monica, CA 90401

(310) 576-2100

jc.andre@bclplaw.com

Benjamin J. Hogan

BRYAN CAVE LEIGHTON

PAISNER LLP

1700 Lincoln St., Suite 4100

Denver, CO 80203-4541

John J. Hathway

WHITEFORD TAYLOR &

PRESTON LLP

1800 M St., NW, Suite 450N

Washington, DC 20036

Counsel for Petitioner

i

QUESTION PRESENTED

Federal Rule of Civil Procedure 23 provides

that a district court may certify a class action “only if,”

among other requirements, “there are questions of law

or fact common to the class.” Fed. R. Civ. P. 23(a)(2).

In the decision below, the District of Columbia Circuit

deepened a circuit split that has emerged post-WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 348, 350-51

(2011), as to what constitutes the “significant proof”

necessary to establish the uniformity of an alleged

policy or practice under Rule 23(a)(2).

The question presented is:

Where class certification is based on allegations

that a defendant’s policy or practice has injured class

members, what constitutes “significant proof” that

such policy or practice applies uniformly to all

members of the class as required to establish

commonality under Federal Rule of Civil Procedure

23(a)(2)?

ii

PARTIES TO THE PROCEEDING

Petitioner

Medical

Transportation

Management, Inc., was the sole defendant in the

district court and appellant in the court of appeals.

Respondents Isaac Harris, Darnell Frye, and

Leo Franklin were plaintiffs in the district court and

appellees in the court of appeals.

CORPORATE DISCLOSURE STATEMENT

Petitioner

Medical

Transportation

Management, Inc., has no parent companies, and no

publicly held company has a 10% or greater ownership

interest in it.

STATEMENT OF RELATED PROCEEDINGS

United States District Court (D.D.C.)

Harris v. Med. Transp. Mgmt., Inc., No. 17-cv01371 (APM) (August 6, 2021)

United States Court of Appeals (D.C. Cir.)

In re Med. Transp. Mgmt., Inc., No. 21-8006

(Mar. 17, 2022)

Harris v. Med. Transp. Mgmt., Inc., No. 22-7033

(July 18, 2023)

iii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING ........................... ii

CORPORATE DISCLOSURE STATEMENT ............ ii

STATEMENT OF RELATED PROCEEDINGS ........ ii

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

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

STATUTORY PROVISIONS INVOLVED..................1

INTRODUCTION ........................................................2

STATEMENT OF THE CASE ....................................3

I.

Factual Background .........................................3

II.

Procedural Background ....................................5

REASONS FOR GRANTING THE PETITION..........9

I.

The Decision Below Entrenches A Circuit

Split By Finding Commonality Based On

Insufficient Evidence ........................................9

II.

The Decision Below Is Wrong Because It

Ignores This Court’s Clear Directive That

Significant Proof Of A Uniform Policy Or

Practice Is Required To Establish

Commonality ...................................................17

iv

III.

The Case Involves An Issue Of Exceptional

Importance Because The Court Of Appeals’

Decision Dilutes The Requirements Of Rule

23(a)(2) And Would Result In The

Certification Of Numerous Class Actions

With Individualized Merits Inquiries ............20

IV.

This Case Is An Ideal Vehicle To Address

The Now-Entrenched Circuit Split Over

This Issue ........................................................22

CONCLUSION ..........................................................24

APPENDIX

Appendix A

Opinion in the United States

Court of Appeals for the District

of Columbia Circuit

(July 18, 2023).......................... App. 1

Appendix B

Order in the United States Court

of Appeals for the District of

Columbia Circuit

(March 17, 2022) .................... App. 38

Appendix C

Memorandum Opinion and Order

in the United States District

Court for the District of Columbia

(August 6, 2021) ..................... App. 40

Appendix D

Memorandum Opinion and Order

in the United States District

Court for the District of Columbia

(September 24, 2020) ............. App. 70

Appendix E

Fed. R. Civ. P. 23 ................. App. 107

v

TABLE OF AUTHORITIES

Cases

Allen v. Ollie’s Bargain Outlet, Inc.,

37 F.4th 890 (3d Cir. 2022) ................................... 12

Blair v. Equifax Check Servs., Inc.,

181 F.3d 832 (7th Cir. 1999) ................................. 20

Califano v. Yamasaki,

442 U.S. 682 (1979) ............................................... 21

Comcast Corp. v. Behrand,

569 U.S. 27 (2013) .................................................20

CoreCivic, Inc. v. Owino,

143 S. Ct. 2612 (2023) (No. 22-1019) ..............14, 23

Gen. Tel. Co. of Sw. v. Falcon,

457 U.S. 147 (1982) ...........................................9, 10

In re Ford Motor Co.,

86 F.4th 723 (6th Cir. 2023)............................12, 13

Jimenez v. Allstate Ins. Co.,

765 F.3d 1161 (9th Cir. 2014) ............................... 15

Owino v. CoreCivic, Inc.,

60 F.4th 437 (9th Cir. 2022), cert. denied,

143 S. Ct. 2612 (2023) ..................................... 13, 14

Parent/Pro. Advoc. League v. City of Springfield,

934 F.3d 13 (1st Cir. 2019).................................... 11

Parsons v. Ryan,

784 F.3d 571 (9th Cir. 2015) ..................... 15, 16, 21

R.A.G. ex rel. R.B. v. Buffalo City Sch. Dist. Bd. of

Educ., 569 F. App’x 41 (2d Cir. 2014) ................... 12

vi

Ross v. Gossett,

33 F.4th 433 (7th Cir. 2022).................................. 12

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) ................ 3, 9, 10, 11, 14-20, 23

Statutes

28 U.S.C. § 1254(1) ...................................................... 1

29 U.S.C. § 201 et seq. ............................................. 2, 5

D.C. Code § 2-220.01 et seq. ........................................ 5

D.C. Code § 32-1001 et seq. ......................................... 5

D.C. Code § 32-1301 et seq. ......................................... 5

Rules

Fed. R. Civ. P. 23 ................. 1, 2, 3, 6-12, 16, 17, 19-24

Regulations

42 C.F.R. § 440.170(a)(4)(i)(D) .................................... 4

42 C.F.R. § 440.170(a)(4)(ii)(A) ................................... 4

Other Authorities

Samuel L. Bray, Multiple Chancellors: Reforming

the National Injunction, 131 Harv. L. Rev. 417

(2017) ..................................................................... 21

Richard A. Nagareda, Class Certification in the

Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97

(2009) ..................................................................... 17

Performance-Based

National

Detention

Standards 2011 § 5.8(II), (V)(C)............................ 14

1

PETITION FOR A WRIT OF CERTIORARI

Medical Transportation Management, Inc.,

respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for

the District of Columbia Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

1-37) is reported at 77 F.4th 746. The court of appeals’

order permitting petitioner to pursue an interlocutory

appeal pursuant to Federal Rule of Civil Procedure

23(f) (App., infra, 38-39) is not published in the

Federal Reporter but is available at 2022 WL 829169.

The district court’s opinion and order (App., infra, 4069) is not published in the Federal Supplement but is

available at 2021 WL 3472381.

JURISDICTION

The judgment of the court of appeals was

entered on July 18, 2023. On October 12, 2023, the

Chief Justice extended the time within which to file a

petition for a writ of certiorari to and including

December 15, 2023. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Federal Rule of Civil Procedure 23 is

reproduced in the appendix to this petition. App.,

infra, 107-17.

2

INTRODUCTION

MTM contracts directly with the District of

Columbia to provide non-emergency transportation

services to individuals receiving Medicaid in need of

transportation to medical appointments. MTM is

contractually

prohibited

from

providing

transportation services itself, and instead engages

approximately eighty transportation service providers

(“TSPs”) to provide these services. Each of the

individual TSPs—and not MTM—establishes the

substantive terms of each driver’s employment,

including rate of pay, method of payment, amount of

payment, and workday structure.

Respondents are drivers employed by the

various TSPs and subject to their various policies.

They filed suit against MTM, rather than their own

employers, on July 13, 2017, for violations of the Fair

Labor Standards Act, 29 U.S.C. § 201 et seq., and

District

of

Columbia

wage-and-hour

laws.

Respondents allege they were paid in violation of

federal and District wage-and-hour laws, and that

MTM is liable for damages as either a joint employer

or a general contractor with the TSPs.

While finding that respondents did not satisfy

the predominance requirement of Rule 23(b)(3), the

district court nonetheless certified an issue class

under Rule 23(c)(4) on the questions whether MTM (1)

is a joint employer with, and (2) is a general contractor

to the various TSPs under D.C. law.

After confirming that interlocutory review of

the class certification decision was appropriate, the

court of appeals found that the proposed class meets

3

Rule 23(a)(2)’s commonality requirement on the same

“common questions” that the district court had

certified under subsection (c)(4)—whether MTM is a

joint employer and/or a general contractor. In so doing,

the court of appeals applied an approach to

commonality that is directly contrary to the purpose of

Rule 23(a)(2) and this Court’s instructions in WalMart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), which

require “significant proof” of a policy or practice that

applied uniformly to the entire class and caused “the

same injury” to all class members. Id. at 348-54.

The court of appeals’ decision allows courts to

select any common question as a basis for

commonality, even where there is no common reason

for each class member’s alleged injury. Such a result

subverts the entire purpose of Rule 23(a). This Court

should accordingly grant this petition for a writ of

certiorari and reverse the judgment of the court of

appeals.

STATEMENT OF THE CASE

I.

Factual Background

As part of the administration of its Medicaid

program, the District of Columbia provides nonemergency medical transportation for eligible

Medicaid recipients. App., infra, 6. To ensure quality

of service and to reduce fraud, the District engaged

MTM as its outside broker to coordinate the

administration of its non-emergency transportation

program. Id.

The District and MTM entered into a series of

successive contracts governing MTM’s work as the

District’s transportation broker. C.A. App. 89-263,

4

265-461. MTM’s contract with the District requires

that MTM contract with a network of private

transportation providers to provide these private

transportation services. See, e.g., C.A. App. 92, 108,

269, 286.

Both federal regulations and MTM’s contract

forbid MTM itself from providing non-emergency

medical transportation services in the District, and

MTM is prohibited from operating or even owning any

vehicle used for transport within the District’s

Medicaid

program.

See

42

C.F.R.

§§ 440.170(a)(4)(i)(D) & (ii)(A); C.A. App. 106, 284.

Consequently, MTM contracts with approximately

eighty different transportation service providers

(“TSPs”). App., infra, 72.

MTM’s contracts with the District require that

MTM verify that the TSPs who participate in the

program are using only drivers who meet certain

eligibility requirements. See, e.g., C.A. App. 120-21,

299-300. MTM has no role in establishing these

eligibility requirements and no discretion to waive

them. Id. (each driver shall have, inter alia, criminal

background checks, training in first aid, a current

CPR certification, and good driving habits). The TSPs

that employ the drivers, and not MTM, establish the

substantive terms of each driver’s employment,

including the rate of pay, the way drivers are paid

(with some paid salaries, some paid hourly plus

overtime, and others paid hourly without overtime),

the amount of pay, and the structure of their

workdays. See, e.g., C.A. App. 609, 1302; App., infra,

94-95.

5

When connected with eligible Medicaid

participants, the TSPs exercise discretion regarding

whether to accept each trip. C.A. App. 1291-92, 2754.

Further, each TSP decides which of its eligible drivers

will perform any accepted trip. C.A. App. 1301. Some

TSPs choose to work only on MTM-brokered trips, but

many simultaneously perform other unrelated

transportation work. See, e.g., C.A. App. 1302, 148485.

II.

Procedural Background

Respondents are three drivers who work for

different TSPs, two of whom worked for more than one

TSP during the relevant time period. C.A. App. 41, 43,

45. They allege that they were paid improperly under

federal and District wage-and-hour rules. App., infra,

6. However, instead of suing the TSPs that employed

them, respondents filed a class action against MTM as

the sole defendant on July 13, 2017, alleging that

MTM should be liable for the TSPs’ failure to pay the

drivers their legally mandated wages as required

under the FLSA, 29 U.S.C. § 201 et seq., the District of

Columbia’s Minimum Wage Act, D.C. Code § 32-1001

et seq., the Living Wage Act, D.C. Code § 2-220.01 et

seq., the Wage Payment and Collection Law, D.C.

Code § 32-1301 et seq., and contracts between the

District of Columbia and MTM. App., infra, 6; C.A.

App. 32-33, 53-59. Respondents alleged that MTM

should be liable for any damages as their joint

employer or the TSPs’ general contractor. App., infra,

6-7. MTM denied that it is either. C.A. App. 515-16.

Based on the allegation in respondents’

complaint that there was a “systemic, company-wide

failure to pay [respondents] and hundreds of similarly

6

situated drivers the minimum wages, living wages,

and overtime wages to which they are or were

entitled” (C.A. App. 33), respondents asserted that

their D.C.-based claims should be certified for classaction treatment under Federal Rule of Civil

Procedure 23(b)(3) (C.A. App. 50-53). Though

respondents initially sought certification under Rule

23(b)(3), they also included a one-paragraph argument

suggesting that the court could “alternative[ly]”

certify “the liability issue under Rule 23(c)(4).” C.A.

App. 1179-80. MTM opposed certification of any class.

C.A. App. 1181-1244.

The district court denied respondents’ motion to

certify a liability-and-damages class under Rule

23(b)(3). App., infra, 8, 70-106. It found that

individualized inquiries into “key aspects of

establishing liability,” such as “(1) the different rate

MTM negotiated with each TSP; (2) the compensation

structure for each class member . . . ; [and] (3) how

much each class member was compensated,” among

others, would “overwhelm the litigation.” App., infra,

93; see also App., infra, 8. The court found “wide

variation among putative class members across

numerous metrics that would be relevant to assessing

MTM’s liability,” and noted that putative class

members were employed by approximately eighty

different TSPs, “each of whom negotiated an

individualized rate structure with MTM.” App., infra,

94.

It found “particularly striking” variations with

respect to how putative class members were paid (with

some paid salaries, some paid hourly plus overtime,

and others paid hourly without overtime), how much

7

they were paid, whether they were paid for break

periods, that many “were employed by several

different TSPs at different points in time,” that even

individuals working for a single TSP were “paid at

different rates at different times,” and that the

minimum wage has “changed several times” during

the limitations period. App., infra, 94-95. The court

concluded that these “differences will ‘give rise to a

plethora of individualized inquiries relating to the

determination of the amount of compensable work

[respondents] performed,’” causing individualized

issues to predominate and precluding class-wide

liability based on common evidence. App., infra, 96-97.

The court rejected respondents’ “attempt to

gloss over these differences” by pointing to what they

called a “common MTM policy—paying [to the TSPs] a

flat rate for trips that does not account for all working

time”—holding that the record did not allow the

“logical leap to conclude that MTM’s flat-rate

compensation policy is responsible for the

underpayment for any specific driver,” let alone each

driver in the putative class. App., infra, 95, 101.

Although the court found that MTM had no

common policy or practice that might violate the wage

laws, it acknowledged respondents’ request, made

“almost in passing,” for issue-class certification under

Rule 23(c)(4), and invited respondents to renew that

request with additional briefing. App., infra, 102, 105.

Respondents then moved to certify multiple

issues for class-wide resolution under Rule 23(c)(4).

C.A. App. 1907-30. The court ultimately certified one

issue class encompassing two questions: “(1) whether

MTM is a joint employer [with the TSPs] of the

8

putative class members; and (2) whether MTM is a

general contractor [with respect to the TSPs] under

D.C. law, and thereby strictly liable for any wage law

violations committed by its subcontractors.” App.,

infra, 9.

While recognizing that the “evidence regarding

each driver’s schedule, assignments, and pay may be

individualized,” the court opined that MTM had some

“role in devising those terms of employment” that was

“likely to be defined by policies and practices that are

broadly applicable to all TSPs,” though the court cited

no policy or practice, nor any other evidence at all, for

its suggestion that MTM had such a “role.” C.A. App.

2387.

MTM moved for interlocutory review under

Rule 23(f) in the court of appeals, which the court of

appeals granted. App., infra, 38-39. On the merits, the

principal issue before the court was whether a Rule

23(c)(4) “issues class” must, like any other class action,

also satisfy the requirements of subsections (a) and (b)

of Rule 23. App., infra, 11-14. After determining that

interlocutory review of the class certification decision

was appropriate under Rule 23(f), App., infra, 11, the

court of appeals acknowledged that all classes

certified under Rule 23 must satisfy subsections (a)

and (b), App., infra, 15-18 (“We hold that the district

court abused its discretion by certifying the issue class

under Rule 23(c)(4) without first determining that

Rule 23’s requirements for class certification were met

as to the issue class. Rule 23(c)(4) does not create a

fourth category of class action beyond those specified

in Rule 23(b).”).

9

Nonetheless, despite subsection (a)(2)’s demand

for “significant proof” of a policy or practice that

applied uniformly to the entire class and caused “the

same injury” to all class members, Dukes, 564 U.S. at

348-54, the court of appeals held that the same

threshold questions that the district court had certified

under subsection (c)(4)—whether MTM is a joint

employer and/or a general contractor—also satisfied

subsection (a)(2). The court reasoned this was so

because those questions “cut across all putative class

members and depend on common evidence.” App.,

infra, 18-19.

Ultimately, though, the court of appeals

remanded the case because it concluded that the

district court misapplied subsection (c)(4) in certifying

an “issue class” and needed to consider whether the

requirements of Rule 23(b)(3) had been satisfied with

respect to the issues class. App., infra, 20-22.

REASONS FOR GRANTING THE PETITION

I.

The Decision Below Entrenches A Circuit

Split By Finding Commonality Based On

Insufficient Evidence.

Rule 23(a) provides four prerequisites that all

proposed class actions must meet to be certified:

(1) numerosity, (2) commonality, (3) typicality, and

(4) adequate representation. Relevant here, commonality

requires that “the plaintiff . . . demonstrate that the class

members ‘have suffered the same injury.’” Wal-Mart

Stores, Inc. v. Dukes, 564 U.S. 338, 349-50 (2011)

(quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147,

157 (1982)). It is not enough that the class members

10

“all suffered a violation of the same provision of law.”

Id. at 350.

Where, as here, class certification is tied to the

contention that a defendant engaged in an unlawful

“pattern or practice,” this Court held in Dukes that

there must be “some glue” uniting each class member’s

claims for relief—namely, “[s]ignificant proof that an

employer operated under a general policy” resulting in

harm to class members “in the same general fashion.”

Id. at 352-53 (quoting Falcon, 457 U.S. at 159 n.15).

By finding commonality satisfied despite no

evidence, much less “significant proof,” that MTM

promulgated a general policy or practice that resulted

in uniform wage-and-hour violations across the class,

the court of appeals’ decision, directly contrary to

Dukes, deepens a growing circuit split as to a

plaintiff’s burden for demonstrating the existence of a

uniform policy or practice for purposes of meeting the

commonality requirement.

The D.C. and Ninth Circuits stand alone in

their deeply flawed and diluted approach to

commonality, which pays mere lip service to this

Court’s decision in Dukes while rebuking its

requirement that the representative plaintiff adduce

significant proof of a uniform policy or practice in

order to establish commonality. By joining the Ninth

Circuit’s lenient approach to Rule 23(a)(2)

commonality, the court of appeals’ decision solidifies

the circuit split with respect to a named plaintiff’s

burden to proffer “significant proof” that an alleged

policy or practice applies uniformly to the entire

putative class. This Court should grant certiorari to

resolve that split, reaffirm that Rule 23 is not a mere

11

pleading standard, and provide clear guidance to the

lower courts on what is required to establish

commonality under Rule 23(a)(2).

Rule 23(a)(2) requires that a plaintiff show that

“there are questions of law or fact common to the

class.” Fed. R. Civ. P. 23(a)(2). That “language is easy

to misread, since any competently crafted class action

complaint literally raises common questions.” Dukes,

564 U.S. at 349 (cleaned up). But Rule 23(a)(2)

commonality “requires the plaintiff to demonstrate

that the class members ‘have suffered the same

injury’” and “[t]heir claims must depend upon a

common

contention . . . capable

of

classwide

resolution.” Id. at 349-50.

For inherently individualized questions—such

as whether a particular employee was lawfully paid—

to be appropriate for classwide resolution, the

“‘plaintiff must begin by identifying the specific

employment practice that is challenged.’” Id. at 357.

Then, a plaintiff must provide “‘[s]ignificant proof that

an employer operated under a general policy’” that

was the reason for the particular employment decision

or alleged injury. Id. at 353. Put another way, a

plaintiff must establish with evidence—not mere

allegations—an injury-causing general policy or

practice that is uniformly applied across the putative

class to establish commonality.

Most courts to consider this question after

Dukes have faithfully applied this standard. See, e.g.,

Parent/Pro. Advoc. League v. City of Springfield, 934

F.3d 13, 29 (1st Cir. 2019) (affirming denial of class

certification where the plaintiffs failed to “identify[] a

uniformly applied, official policy of the school district,

12

or an unofficial yet well-defined practice, that drives

the alleged violation”); R.A.G. ex rel. R.B. v. Buffalo

City Sch. Dist. Bd. Of Educ., 569 F. App’x 41, 42 (2d

Cir. 2014) (affirming certification because the

“[p]laintiffs’ entire case is predicated on a policy that

is applied uniformly to all students that qualify for

supplemental services under the IDEA”); Allen v.

Ollie’s Bargain Outlet, Inc., 37 F.4th 890, 901-02 (3d

Cir. 2022) (explaining that class treatment was

improper due to lack of “significant proof that Ollie’s

corporate policies, procedures, or practices in fact

cause discrimination by stores nationwide”); Ross v.

Gossett, 33 F.4th 433, 437-38 (7th Cir. 2022) (“In

contrast, the evidence that was lacking in Wal-Mart—

that the alleged discriminatory actions were

undertaken pursuant to a uniform policy—is not only

present in this case, it is undisputed.”).

A recent Sixth Circuit decision shows how the

commonality analysis should work. Putative class

representatives sued Ford Motor Company over an

alleged design defect in their F-150 pickup trucks,

model years 2013 through 2018. In re Ford Motor Co.,

86 F.4th 723, 726 (6th Cir. 2023). According to the

plaintiffs, Ford installed defective step-bore brake

master cylinders manufactured by another company—

Hitachi—and, due to the alleged defect, the trucks’

brake performance suffered. Id.

Like the district court here, the district court in

In re Ford Motor Co. found that the plaintiffs’

proposed classes failed Rule 23(b)(3)’s predominance

requirement, but it still certified “issue classes” under

Rule 23(c)(4), which were “(1) whether the trucks’

brake systems were defective; (2) whether Ford

13

possessed pre-sale knowledge of the defect; and (3)

whether concealed information about the defect would

be material to a reasonable buyer.” Id. at 727.

The Sixth Circuit reversed because neither the

named plaintiffs nor the district court explained how

these issues classes satisfied the commonality

requirement. With respect to the first issue, Hitachi

had made “many design and manufacturing changes”

to the units over the years, and the Sixth Circuit held

the district court failed to explain how these design

alterations, made at different times and places, and

over the course of many years, would not defeat

commonality across the class. Id. at 727-28.

The Sixth Circuit held similar commonality

problems were present in the other issue classes. Id.

at 728. In particular, the court explained that

Hitachi’s changes to the brakes over time created

commonality problems with respect to both Ford’s

knowledge and the materiality of any alleged defects

across the timespan—2013 through 2018—of the

would-be issue classes. Id.; accord id. at 727 (“[T]he

underlying analysis does not make clear that the three

certified issues can each be answered ‘in one stroke.’”

(quoting Dukes, 564 U.S. at 350)). In short, the district

court “neglect[ed] to perform the rigorous analysis

Rule 23(a) requires of all classes.” Id. at 727 (emphasis

added).

The court of appeals’ decision below charts a

different course that puts it in the minority camp with

the Ninth Circuit, with both courts failing to follow

Dukes’ demand for “significant proof” of a common

policy or practice that applies uniformly across a

putative class. Owino v. CoreCivic, Inc., 60 F.4th 437

14

(9th Cir. 2022), cert. denied, 143 S. Ct. 2612 (2023),

decided last year, is illustrative of the Ninth Circuit’s

lax approach to commonality.

Underlying that decision was the federal

government’s contract with CoreCivic, Inc., to hold

immigration detainees in 24 facilities across 11 states.

Id. at 441. Regulations prohibited CoreCivic from

requiring detainees to clean areas beyond “their

immediate living areas.” Performance-Based National

Detention Standards 2011 § 5.8(II), (V)(C). But two

former detainees filed a putative class action claiming

that they and other detainees across all 24 facilities

were forced to perform cleaning tasks beyond the

personal housekeeping tasks allowed by those

standards. 60 F.4th at 442-43.

A Ninth Circuit panel held that commonality

was present even though (1) the plaintiffs’ principal

evidence of the nationwide, common policy and

practice were the declarations of four detainees, all

from the same facility, together with written corporate

policies that were ambiguous as to the conduct that

the plaintiffs complained of; and (2) there was no

finding of uniform application of such a policy or

practice across the 24 facilities. Id. at 444-46.

Judge VanDyke, joined by five others, dissented

from the denial of rehearing en banc, arguing in

particular that the panel decision contravened Dukes:

The panel thus created a new rule of

commonality that authorizes class

certification so long as a movant can offer

anecdotal evidence of misconduct limited

to a small fraction of a class, coupled with

15

written policies that at most are unclear

about the complained-of conduct. That

rule is inconsistent with Rule 23 and

Dukes, and charts an attractive and sureto-be-followed path for those seeking an

easy class action certification.

Id. at 456-59 (VanDyke, J., dissenting from denial of

rehearing en banc).

Similarly, in Parsons v. Ryan, the Ninth Circuit

affirmed the certification of a class of inmates

challenging isolation unit policies and practices of the

Arizona Department of Corrections (“ADC”) under the

Eighth Amendment because all class members shared

an “alleged exposure, as a result of specified statewide

ADC policies and practices that govern the overall

conditions of health care services and confinement, to

a substantial risk of serious future harm to which the

defendants are allegedly deliberately indifferent.” 754

F.3d 657, 678 (9th Cir. 2014). This was so

notwithstanding that any Eighth Amendment “injury”

would “result in different future harm for different

inmates—ranging from no harm at all to death.” Id.;

see also Jimenez v. Allstate Ins. Co., 765 F.3d 1161,

1162-66 (9th Cir. 2014) (finding commonality satisfied

based on an “unofficial policy of discouraging

reporting of such overtime” while deferring

consideration of whether this informal policy actually

existed until trial).

This time Judge Ikuta, joined by five others,

dissented from the denial of rehearing en banc, again

pointing out that that panel’s decision contravened

Dukes. Parsons v. Ryan, 784 F.3d 571 (9th Cir. 2015)

(order) (Ikuta, J., dissenting from denial of rehearing

16

en banc). This was true not only because the class

included members with no health problems at all, id.

at 577, but also because the evidence

show[ed] only that a range of inmates

with different medical needs may be able

to demonstrate deliberate indifference to

a substantial risk of serious harm based

on a range of different policies.

Id. at 579. And this meant that “even those prisoners

who are not healthy do not have the sufficiently

similar serious medical needs necessary to raise a

common Eighth Amendment issue under Dukes.” Id.

The court of appeals’ decision below effectively

joins the Ninth Circuit without saying so, because the

court of appeals did not require that respondents

demonstrate that a common wage-and-hour policy or

practice applied uniformly to all class members.

Indeed, far from the required “rigorous analysis,”

Dukes, 564 U.S. at 350-51, the court of appeals’

perfunctory consideration of commonality did not

address this point at all. App., infra, 18-19. This

decision thus further solidifies a circuit split and will

create confusion among lower courts as to a plaintiff’s

burden when attempting to establish commonality.

This Court should grant certiorari to clarify the

requirements of Rule 23(a)(2) and of Dukes and resolve

the conflict as to whether, and under what standard,

named plaintiffs must prove that an alleged policy or

practice applies uniformly across the entirety of a

putative class.

17

II.

The Decision Below Is Wrong Because It

Ignores This Court’s Clear Directive That

Significant Proof Of A Uniform Policy Or

Practice Is Required To Establish

Commonality.

This Court should grant certiorari to reaffirm

its directives in Dukes and prevent lower courts from

circumventing its requirement of significant proof of a

common policy or practice that applies uniformly

across the putative class. Dukes, 564 U.S. at 353. The

court of appeals’ finding on commonality based on

threshold questions—i.e., whether MTM is a general

contractor or joint employer—ignores the unequivocal

fact that is dispositive of the commonality question:

the class members’ claims for relief are based on

different wage-and-hour policies from a variety of

TSPs requiring individualized inquiries.

The court also completely ignored Dukes, in

which this Court made clear that cherry-picking some

common facts or legal issues among putative class

members does not satisfy Rule 23. Dukes, 564 U.S. at

349. The Court explained that the following questions,

although common threshold questions required to

establish liability, are insufficient to establish Rule 23

commonality: “Do all of us plaintiffs indeed work for

Wal-Mart? Do our managers have discretion over pay?

Is that an unlawful employment practice? What

remedies should we get? Reciting these questions is

not sufficient to obtain class certification.” Id. (quoting

Richard A. Nagareda, Class Certification in the Age of

Aggregate Proof, 84 N.Y.U. L. Rev. 97, 131-32 (2009)).

The parallels between the facts of this case and

those of Dukes emphasize the court of appeals’ error.

18

In Dukes, female Wal-Mart employees sued under

Title VII, alleging that Wal-Mart discriminated

against them on the basis of sex with respect to pay

and promotions. 564 U.S. at 343. Though the class

members worked at different store locations and

under different local managers who had “broad

discretion” to make pay and promotion decisions, the

plaintiffs sought class certification based on an alleged

uniform corporate culture that resulted in

discrimination against all female employees

nationwide. Id. at 343, 344-45.

Just as the Dukes plaintiffs attempted to certify

their class based on a uniform corporate culture of

discrimination, respondents here allege a “systemic,

company-wide failure” by MTM to comply with wageand-hour laws. C.A. App. 33. Yet, contrary to Dukes’

direction, and as discussed more below, respondents

failed to provide any proof that this alleged companywide failure was the result of a common policy or

practice enforced by MTM, much less one that applied

uniformly to all members of the putative class.

The TSPs in the present case are akin to the

local Wal-Mart managers in Dukes. Just as the WalMart managers were given discretion to make their

own pay and promotion decisions, each TSP has

discretion to—and did—establish the substantive

terms of the employment of each driver working for

them, including rate of pay, method of payment,

amount of payment, and workday structure. The

record and the district court’s findings of fact make

this clear: Some TSP employees were paid salaries,

and others were paid hourly; some were paid overtime,

and others were not. These facts alone demonstrate a

19

total absence of a uniform policy or practice. Indeed,

whereas the local Wal-Mart managers might be

loosely connected through Wal-Mart’s general policy of

discretion in pay and promotion, MTM does not

determine the terms of driver employment or pay, and

thus each TSP is free to form its own policies and

practices

pertaining

to

wages

and

hours

independently of both each other and of MTM.

In practice, this means that, even assuming

each class member suffered a violation of the same

wage-and-hour law, each harm is individualized,

resulting from a different policy and based upon

different facts and reasoning. But as this Court has

found “obvious[], the mere claim by employees of the

same company that they have suffered [an injury

based on the same law], gives no cause to believe that

all their claims can productively be litigated at once.”

Dukes, 564 U.S. at 350. Here, just as Title VII can be

“violated in many ways,” so too can wage-and-hour

laws. Id. Additional glue—in the form of a general

policy or practice that applies uniformly to all putative

class members—is thus required to bind class

members together. Id. at 353. And because Rule 23 is

no mere pleading standard, allegations of such a

uniform policy or practice are not enough: Significant

proof is required. Id. at 350, 353.

Not only did respondents fail to meet their

burden to demonstrate a uniform policy or practice

with significant proof, they provided no such proof at

all. In fact, the record below affirmatively shows the

opposite: A uniform policy or practice pertaining to

wages and hours did not and could not have existed,

given the fact—which respondents have never

20

refuted—that it is the TSPs, and not MTM, that

determine the terms of each class members’

employment. C.A. App. 609, 1302.

III.

The Case Involves An Issue Of Exceptional

Importance Because The Court Of Appeals’

Decision Dilutes The Requirements Of Rule

23(a)(2) And Would Result In The

Certification Of Numerous Class Actions

With Individualized Merits Inquiries.

The “grant of class status can propel the stakes

of a case into the stratosphere.” Blair v. Equifax Check

Servs., Inc., 181 F.3d 832, 834 (7th Cir. 1999). To

ensure the appropriate use of the potent litigation

device, Rule 23 serves as a gatekeeper with threshold

safeguards, one of which is commonality. Because the

question of commonality thus arises in every class

action filed across the country, guidance from this

Court is critical where different circuits inconsistently

apply the same aspect of Rule 23 at class certification.

That is why this Court regularly grants certiorari to

resolve inconsistent applications of Rule 23’s

requirements across the circuits. See, e.g., Dukes, 564

U.S. at 349-55 (clarifying the Rule 23(a) commonality

standard); Comcast Corp. v. Behrand, 569 U.S. 27

(2013) (clarifying the Rule 23(b)(3) predominance

requirement). It should do so again here.

If plaintiffs can establish commonality by

pointing to any question relevant to all putative class

members with no need to prove that they were

uniformly impacted by the same allegedly unlawful

policy or practice, Rule 23 will be reduced to the mere

pleading standard that this Court explicitly foreswore

in Dukes. 564 U.S. at 350. At least one common

21

question—no matter how tangential—will exist in

every case.

Moreover, in the Ninth and D.C. Circuits,

commonality can be met even where the merits of each

plaintiff’s claims would need to be tried separately.

This is precisely the situation that Rule 23(a) intends

to exclude from class treatment: If the existence of any

common question satisfies the commonality

requirement, most proposed classes would satisfy

commonality, eviscerating one of the threshold

safeguards erected by Rule 23. See, e.g., id. at 349

(merely “[r]eciting [common] questions is not sufficient

to obtain class certification” (emphasis added)).

The class-action mechanism is intended to be

the exception, not the rule. Califano v. Yamasaki, 442

U.S. 682, 700-01 (1979). But the court of appeals’ and

the Ninth Circuit’s lenient approach to commonality

threatens this longstanding reality by diluting the

class certification standard. And the principles at

stake in this case matter not only in large damages

actions like this one, but also in actions for injunctive

relief. As the Ninth Circuit’s decision in Parsons

makes clear, a lax commonality standard is a windfall

for plaintiffs engaged in litigation aimed at changing

public policy through judicial decree. Rule 23 provides

the appropriate vehicle for “achieving broad injunctive

relief” for plaintiffs, but only where its requirements

are actually met. See Samuel L. Bray, Multiple

Chancellors: Reforming the National Injunction, 131

Harv. L. Rev. 417, 475-76 (2017). Diluting Rule 23’s

requirements encourages ever more creative class

definitions geared at securing overbroad injunctive

relief against public officials and agencies. This case

22

offers the Court an opportunity to stem the tide and

reiterate and clarify the important limits of Rule 23(a).

By joining the Ninth Circuit and its recurring

error as to Rule 23(a), the D.C. Circuit further

incentivizes forum shopping among representative

plaintiffs and plaintiff’s counsel. If plaintiffs can

obtain class certification of nationwide classes

through scattered anecdotal evidence, the Ninth and

D.C. Circuits will see an ever-increasing flow of classaction litigation challenging all manner of alleged

corporate and governmental policies on a nationwide

basis. Without this Court’s intervention to correct the

course, Rule 23(a) commonality will become

meaningless in most circuits in cases where plaintiffs

can target a defendant’s alleged policies as the

common straw. Those cases will simply be brought in

the Ninth and D.C. Circuits.

This Court should grant review to reaffirm

what is required to establish commonality and

preserve the class-action mechanism only for those

instances in which plaintiffs’ claims are truly united.

IV.

This Case Is An Ideal Vehicle To Address

The Now-Entrenched Circuit Split Over

This Issue.

The court of appeals squarely ruled on the

question presented by rejecting petitioner’s assertion

that the class lacked commonality because there was

no common policy that applied uniformly to all class

members. App., infra, 18-19. Although the court of

appeals remanded, it instructed the district court to

consider only the requirements of subsection (b)(3) as

they related to the subsection (c)(4) issue class. App.,

23

infra, 20-21. Absent this Court’s intervention, the

court of appeals’ decision as to commonality is law of

the case.

Additionally, the facts of this case allow this

Court to pinpoint what evidence is needed to establish

commonality where class treatment is based on an

allegedly unlawful policy or practice applying

uniformly across a class. Respondents presented no

evidence of a uniform common policy or practice

causing class-wide harm and MTM has a complete lack

of control over the varied payment and workday

policies put forth by over eighty TSPs. These facts

provide this Court with an ideal opportunity to resolve

the growing circuit split on a crucial aspect of class

certification clearly and definitively.

This Court recently denied a petition for a writ

of certiorari in CoreCivic, Inc. v. Owino, 143 S. Ct.

2612 (2023) (No. 22-1019). But that petition argued

that the CoreCivic decision “cleaves the Ninth Circuit

from other courts of appeals that faithfully apply WalMart’s significant-proof requirement to ensure that a

policy is uniformly applied and causes ‘the same

injury’ to class members.” Pet. at 19 (emphasis added).

Now, the District of Columbia Circuit, subsequent to

this Court’s denial of CoreCivic’s petition, has joined

the Ninth Circuit in its lax application of Rule 23(a)(2),

thus creating a genuine, entrenched circuit split that

only this Court can resolve.

Accordingly, this petition presents not only an

appropriate, but an ideal, vehicle for this Court to

resolve the important issues in this case. Review

should be granted.

24

CONCLUSION

The Court should grant the petition for

certiorari and reverse the court of appeals’ holding

that the commonality requirement of Rule 23(a)(2) is

satisfied.

Respectfully submitted,

Logan M. Rutherford

BRYAN CAVE LEIGHTON

PAISNER LLP

1200 Main St., Suite 3800

Kansas City, MO 64105

Darci F. Madden

Emma G. McEnery

BRYAN CAVE LEIGHTON

PAISNER LLP

211 North Broadway

Suite 3600

St. Louis, MO 63102

William F. Ryan

WHITEFORD TAYLOR &

PRESTON LLP

7 Saint Paul St.

Baltimore, MD 21202

Jean-Claude André

Counsel of Record

BRYAN CAVE LEIGHTON

PAISNER LLP

120 Broadway #300

Santa Monica, CA 90401

(310) 576-2100

jc.andre@bclplaw.com

Benjamin J. Hogan

BRYAN CAVE LEIGHTON

PAISNER LLP

1700 Lincoln St., Suite 4100

Denver, CO 80203-4541

John J. Hathway

WHITEFORD TAYLOR &

PRESTON LLP

1800 M St., NW, Suite 450N

Washington, DC 20036

Counsel for Petitioner