Just as courts sometimes improperly certify class actions, sometimes they improperly fail to certify them. In the N.D.N.Y. case of Roach v. T.L. Cannon Corp., plaintiffs who worked at Applebee's restaurants alleged a uniform policy of docking employees for rest breaks they had not taken. The district court denied certification, arguing that, after Comcast v. Behrend, one could not certify a class for damages where individual plaintiffs have individualized damages. In the absence of classwide proof of damages, the district court ruled, Comcast prevents certification. Public Citizen is appealing to the Second Circuit.
I haven't seen the briefing below, so I don't take a position on whether class certification is appropriate; there might be legitimate grounds to deny certification not discussed in the court opinion. But it's clear to me that the district court's reasoning is incorrect.
Imagine a class action by waitresses against Chotchkie's Restaurants, alleging sex discrimination because the restaurant has a policy that it will deduct $10/week from women's paychecks, but not from men's paychecks. It's quite clear that this is an appropriate class certification. Even though the damages will vary from plaintiff to plaintiff—Jennifer might have been subject to the illegality for 50 weeks, while Joanne may have quit shortly after the policy was implemented and have only $20 of damages—the common elements of the case predominate over the individualized elements. (I made a similar point in discussing Wal-Mart v. Dukes: the question isn't whether a class is large, the question is whether there are common issues, and the Dukes certification precluded a consideration of individualized defenses to the sex discrimination allegations.)
The problem identified by the Supreme Court in Comcast, as I discussed, was that the plaintiffs attempted to justify class certification with a economically irrational theory that the antitrust violations affected class members equally when, in fact, there would be different market effects in different sub-markets (depending on the effect of the Comcast accretion of market share on deterring overbuilder competition) such that the theory of liability was not subject to classwide proof; subclassing would have or a different theory of certification might have fixed that.
In Roach, though, the allegation is that there is a single policy to fail to comply with New York state law. Perhaps that allegation is true (in which case class certification is appropriate); perhaps it isn't, and the problem varies from store to store or manager to manager or even from day to day, and Applebee's isn't liable on a classwide basis. That is the question the district court should have been investigating, and should be the basis on whether class certification is granted.