"On May 24, 2012, the plaintiffs filed a putative class action against the defendant for failure to pay overtime wages, among other causes of action. The complaint alleged that the putative class members were non-exempt employees who chauffeured vehicles for the defendant, and that the defendant failed to compensate them for periods when they were required to remain on-call in between trips transporting clients. . . .
On June 28, 2012, the plaintiffs propounded requests for production, requests for admissions and a form interrogatory on the defendant. On July 27, 2012, the defendant asked for a one-month extension to respond to the discovery. The plaintiffs conditioned such an extension on the defendant’s agreement that it would provide (1) “good faith, substantive responses, and not simply objections” as well as (2) “the contact information for all putative class members.” The defendant’s counsel “agree[d] to the proposal” and said it would employ a “[Belaire] notice procedure” [i.e., opt-out notices] to provide the plaintiffs’ counsel with contact information for the class. The defendant’s counsel committed to providing the plaintiffs’ counsel with a draft of a Belaire notice within a week.
The defendant thereafter obtained new counsel. On September 7, 2012, the defendant’s new counsel acknowledged the parties’ agreement regarding the discovery extension but asked for additional time to “review the [Belaire] Notice [and] communicate with my client about the details.” The plaintiffs’ counsel agreed to the extended timeframe, and the defendant’s counsel agreed to finalize the Belaire notice by September 26, 2012.
However, the defendant’s counsel did not send the plaintiffs’ counsel a draft Belaire notice. On September 18, 21 and 25, 2012, the plaintiffs’ counsel contacted the defendant’s counsel by phone and email seeking to determine if the defendant had any revisions to the draft Belaire notice. The defendant’s counsel did not respond. During this time, the defendant’s chief executive officer, Gale Ricketts, met individually with 29 putative class members and obtained their signatures on agreements releasing any and all claims they might have against the defendant. [Several of the "settlements" were for $5.00.]
The defendant served its discovery responses on the plaintiffs in September. On October 29, 2012, the plaintiffs moved to compel further responses to their discovery requests, including the request seeking all documents pertaining to defenses the defendant intended to assert in this action. The plaintiffs argued that, in spite of the defendant’s prior agreement to provide substantive responses to the discovery in exchange for an extension, the defendant had refused to respond to over half of the requests for admissions and the related Form Interrogatory 217.1, had asserted boilerplate objections to certain requests for production, and had only produced a portion of responsive documents. On December 11, 2012, the court granted the motions. The defendant was ordered “to file supplemental responses as prayed for” by December 21, 2012, and to pay the plaintiffs $10,000 in attorney’s fees. . . .
The parties’ counsel agreed to set Ricketts’ deposition for January 31, 2013, and, accordingly, the plaintiffs’ counsel noticed the deposition for that date. However, on January 30, 2013, the defendant’s counsel informed the plaintiffs’ counsel that Ricketts would not appear for her deposition because she had, for some unexplained reason, traveled out of state. The plaintiffs’ counsel objected on the grounds that the parties’ counsel had previously agreed to this date and the deposition had been properly noticed. However, Ricketts did not appear for the deposition."
Defendants ultimately persuade the trial court to deny class certification because even though the plaintiffs thought there were 53 class members, since defendants had now settled and/or agreed to arbitrate with almost all of them, there were only nine left -- the three named plaintiffs and six others. Hence the trial court held that the proposed class did not satisfy the numerosity requirement.
You can imagine how the Court of Appeal -- properly, in my view -- reacted to the discovery and other shenanigans of the defendant below. Suffice it to say that the Court of Appeal reverses and remands.
Notwithstanding the fact that, yes, there might indeed be only nine members of the class.
