UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) ISAAC HARRIS, et al., ) ) Plaintiffs, ) ) v. ) Case No. 17-cv-01371 (APM) ) MEDICAL TRANSPORTATION ) MANAGEMENT, INC., ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION AND ORDER

Defendant Medical Transportation Management, Inc. (“MTM”) is a private company that

contracts with the District of Columbia to “manage and administer” non-emergency medical

transportation (“NEMT”) services for the District’s Medicaid recipients. MTM does not employ

drivers directly to deliver NEMT services; rather, it contracts with dozens of transportation service

providers (“TSPs”) that employ the drivers. Plaintiffs Isaac Harris, Darnell Frye, and Leo Franklin

are three such drivers. They bring this action individually and on behalf of all others similarly

situated (collectively, “Plaintiffs”) against MTM to recover unpaid wages under (1) the Fair Labor

Standards Act (“FLSA”), 29 U.S.C § 201 et seq.; (2) the D.C. Minimum Wage Act,

et seq.; (3) the D.C. Living Wage Act,

et seq.; and (4) the D.C.

Wage Payment and Collection Law,

. Plaintiffs allege that because MTM is

both their joint employer and the general contractor of the TSPs, MTM is liable for their unpaid

wages under federal and District of Columbia wage laws.

On July 17, 2018, this court ordered that Plaintiffs’ FLSA minimum wage and overtime

claims be conditionally certified as a collective action and that notice be sent to potential opt-in plaintiffs. See Harris v. Med. Transp. Mgmt., Inc. (Harris II),

(D.D.C.

2018). Since then, 155 current and former NEMT drivers have filed consent forms to join the

collective action, each alleging wage and overtime claims against MTM under the FLSA.

Thereafter, Plaintiffs sought certification of a class of approximately 800 drivers under Federal

Rule of Civil Procedure 23 for their District of Columbia wage claims. The court denied class

certification on the ground that Plaintiffs had failed to meet the predominance requirements of

Rule 23(b)(3). See Harris v. Med. Transp. Mgmt., Inc. (Harris III), No. 17-cv-1371 (APM),

, at *1 (D.D.C. Sept. 24, 2020). The court left open the possibility, however, of

certifying an issue class under Rule 23(c)(4) and invited supplemental briefing on the issue. See

.

Now before the court are two motions: (1) MTM’s Motion to Decertify the FLSA

Collective Action; and (2) Plaintiffs’ supplemental motion to certify claims pursuant to

Rule 23(c)(4) and for clarification that the limitations period remains tolled. For the reasons that

follow, the Court (1) will not decertify the FLSA collective action and (2) will certify an issue

class under Rule 23(c)(4) on the questions of whether MTM is a joint employer or a general

contractor. The court also confirms that the statute of limitations for the putative class members’

claims remained tolled during the pendency of these motions.

2 I. DISCUSSION 1

A. Decertification of the FLSA Collective Action

1. Legal Standard

a. Statutory background

The FLSA requires that employers pay covered employees both a statutory minimum wage

and overtime for hours worked in excess of forty hours per week. 29 U.S.C. §§ 206–207.

“‘Congress passed the FLSA with broad remedial intent’ to address ‘unfair method[s] of

competition in commerce’ that cause ‘labor conditions detrimental to the maintenance of the

minimum standard of living necessary for health, efficiency, and general well-being of workers.’”

Monroe v. FTS USA, LLC,

(6th Cir. 2017) (alteration in original) (first quoting

Keller v. Miri Microsystems LLC,

(6th Cir. 2015), and then quoting

(a)). In keeping with this remedial intent, when an employer fails to comply with the statute’s

requirements, under section 216(b) of the FLSA, employees can pursue an action against an

employer in a representative capacity on behalf of “other employees similarly situated.”

(b). This type of action, known as a “collective action,” allows employees who are similarly

situated to the named plaintiffs to file a written consent to opt into the case. See

The purpose of collective action under the FLSA is to give “plaintiffs the advantage of

lower individual costs to vindicate rights by the pooling of resources,” and to benefit the judicial

system “by efficient resolution in one proceeding of common issues of law and fact arising from

the same alleged . . . activity.” Hoffmann–La Roche Inc. v. Sperling,

(1989).

“The Supreme Court has characterized § 216(b) as a ‘joinder process.’” Scott v. Chipotle Mexican

1 The court assumes familiarity with the facts and procedural history detailed in its prior opinions in this action and therefore does not formally recite them here. See Harris v. Med. Transp. Mgmt., Inc. (Harris I),

, 237–39 (D.D.C. 2018); Harris III,

, at *1–3. To the extent that certain facts are particularly relevant to the issues raised in the instant motions, the court includes them in the discussion below.

3 Grill, Inc.,

(2d Cir. 2020) (quoting Genesis Healthcare Corp. v. Symczyk,

, 75 n.1 (2013)). Importantly, “[r]ather than providing for a mere procedural mechanism,

as is the case with [class actions under] Rule 23, section 216(b) establishes a ‘right . . . to bring an

action by or on behalf of any employee, and [a] right of any employee to become a party plaintiff

to any such action,’ so long as certain preconditions are met.”

(quoting

(b));

see also Hoffmann-La Roche Inc.,

(noting that Congress gave employees the

“right” to proceed collectively); Campbell v. City of Los Angeles,

(9th Cir.

2018) (“The FLSA leaves no doubt that ‘every plaintiff who opts in to a collective action has party

status.’” (quoting Halle v. W. Penn Allegheny Health Sys. Inc.,

(3d Cir. 2016))).

For an action to proceed collectively, section 216(b) sets two basic requirements:

(1) members must be “similarly situated” and (2) members must affirmatively consent to join the

action.

(b). Although the statute does not prescribe a process for certifying a

collective proceeding, the “near-universal practice” among courts involves a two-step process.

Campbell,

(citing 1 McLaughlin on Class Actions § 2:16 (14th ed. 2017));

see also Ayala v. Tito Contractors,

(D.D.C. 2014) (applying two-step

certification process). At the first stage—what is often called “preliminary” or “conditional”

certification—“the court mak[es] an initial determination to send notice to potential opt-in

plaintiffs who may be ‘similarly situated’ to the named plaintiffs with respect to whether a FLSA

violation has occurred.” Myers v. Hertz Corp.,

(2d Cir. 2010) (emphasis added);

see also Dinkel v. MedStar Health, Inc.,

, 52–53 (D.D.C. 2012) (collecting

cases). This stage requires only “a ‘modest factual showing sufficient to demonstrate that [named]

and potential plaintiffs together were victims of a common policy or plan that violated the

law.’” Castillo v. P & R Enters.,

(D.D.C. 2007) (quoting Chase v.

4 AIMCO Props., L.P.,

(D.D.C. 2005)). “[T]he district court’s analysis is

typically focused on a review of the pleadings but may sometimes be supplemented by declarations

or limited other evidence.” Campbell,

. “The level of consideration is

‘lenient’ . . . [and] loosely akin to a plausibility standard.”

(quoting Camesi v. Univ. of

Pittsburgh Med. Ctr.,

(3d Cir. 2013)).

The second step of the process is triggered when defendants move to decertify the

conditional collective action following the conclusion of discovery. See

During this stage of

the analysis, the court employs a stricter standard for determining whether plaintiffs are “similarly

situated,” as there is more information on which to base its decision.

Plaintiffs bear the burden

of showing, by a preponderance of the evidence, that they are similarly situated to the remainder

of the proposed collective action members. See Zavala v. Wal Mart Stores Inc.,

(3d Cir. 2012); see also O’Brien v. Ed Donnelly Enters.,

(6th Cir. 2009) (“The

lead plaintiffs bear the burden of showing that the opt-in plaintiffs are similarly situated to the lead

plaintiffs.”); cf. Campbell,

(applying summary judgment standard to

decertification). If the court concludes that plaintiffs are similarly situated, the case proceeds to

trial as a collective action; if plaintiffs fail to meet their burden, the court decertifies the conditional

collective action.

This case is at the second stage, and therefore the question for the court is whether Plaintiffs

have satisfied their burden of showing that the named and opt-in plaintiffs are “similarly situated.”

b. Similarly situated

The term “similarly situated” is not defined under the FLSA, and the D.C. Circuit has not

yet spoken on this issue. See Ayala,

. The Circuits that have weighed in have

not settled on a single approach, and there have been recent developments on the topic. For years,

5 the majority approach—and the only approach adopted at the Circuit level—was the so-called

“ad hoc” approach. Under this flexible approach, courts employ a three-prong test to determine

whether party plaintiffs 2 are similarly situated, considering the “(1) disparate factual and

employment settings of the individual plaintiffs; (2) defenses available to defendants which appear

to be individual to each plaintiff; and (3) fairness and procedural considerations counseling for or

against collective action treatment.” Scott,

(internal quotation marks omitted); see

also Zavala,

(adopting ad hoc approach); Morgan v. Family Dollar Stores, Inc.,

, 1262–64 (11th Cir. 2008) (same); Thiessen v. Gen. Elec. Cap. Corp.,

, 1105 (10th Cir. 2001) (upholding the district court’s application of the ad hoc approach as

“[a]rguably . . . the best . . . approach[]”).

“The minority approach,” on the other hand, has been to “treat a collective as an opt-in

analogue to a Rule 23(b)(3) class.” Campbell,

. “District courts following the

minority approach tend to expect a collective to satisfy the requirements of numerosity,

commonality, typicality, adequacy, predominance, and superiority.”

(citing Fed. R. Civ.

P. 23(b)(3)); see, e.g., Shushan v. Univ. of Colo.,

(D. Colo. 1990). “No circuit

court has adopted the minority approach in toto.” Campbell,

. “The Seventh

Circuit has imported the ‘predominance’ requirement of Rule 23(b)(3)” only,

(citing Alvarez v.

City of Chicago,

(7th Cir. 2010)), whereas “[a]ll other circuits to have

considered the issue . . . have rejected the analogy to Rule 23,” id.; see, e.g., Monroe, 860 F.3d

at 405–06; Grayson v. K Mart Corp.,

(11th Cir. 1996).

2 “The FLSA does not use the terms ‘original’ or ‘opt-in’ plaintiff at all; the FLSA instead refers to all plaintiffs in a collective action as ‘party plaintiff[s].’” Campbell,

(alteration in original) (quoting

(a)).

6 More recently, the Ninth Circuit has taken a different tack, with the Second Circuit

following suit. In Campbell v. City of Los Angeles, the Ninth Circuit considered whether

approximately 2,500 police officers who had moved for certification of a collective action on the

basis of a “pervasive, unwritten policy discouraging the reporting of overtime” were similarly

situated.

. In tackling that question, the court first expressed its disapproval of

the two prevailing approaches.

at 1110–16. With regard to the minority approach, the court

“agree[d] with the consensus view that . . . [it] rests improperly on an analogy to Rule 23 lacking

in support in either the FLSA or the Federal Rules of Civil Procedure.”

. And as for

the ad hoc approach, the court opined that it too “import[s], through a back door, . . . the Rule

23(b)(3) requirements of adequacy of representation, superiority of the group litigation

mechanism, or predominance of common questions.”

. More pointedly, the court found

the ad hoc approach “inadequately accounts for the meaning of ‘similarly situated’” in the context

of the FLSA.

. It focuses “on points of potential factual or legal dissimilarity between

party plaintiffs” when the focus should be, “in light of the collective action’s reason for being

within the FLSA,” whether the “party plaintiffs [are] alike with regard to some material aspect of

their litigation.”

at 1113–14.

The only Circuit to address the issue since Campbell has adopted its approach. In Scott v.

Chipotle Mexican Grill, Inc.—a case about Chipotle’s alleged misclassification of certain

employees as exempt from overtime in violation of federal and state labor laws—the Second

Circuit echoed the Ninth Circuit’s concerns with the “ad hoc” approach.

. Primary

among those concerns was that “district courts employing the ad hoc factors consider the ways in

which the plaintiffs are factually disparate and the defenses are individualized” instead

of “considering the ways in which the opt-in plaintiffs are similar in ways material to the

7 disposition of their FLSA claims.”

This misplaced focus, the court opined, conflicts with the

FLSA and unduly limits plaintiffs’ “right” to proceed collectively. See

at 515–17.

This court agrees that the Campbell approach is the superior of the three, as it is the most

in tune with the text and purpose of section 216(b). In so finding, the court agrees with Scott,

Campbell, and countless other courts that have found that the FLSA, by design, imposes a lower

bar to collective action than Rule 23.

(finding that the FLSA not only “‘imposes a bar

lower [than Rule 23, but also] in some sense [lower than] even [] Rules 20 and 42, which set forth

the relatively loose requirements for permissive joinder and consolidation at trial’” (quoting

Campbell,

)). 3 Recall that the purpose of collective action under the FLSA is to

give “plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of

resources,” and to benefit the judicial system “by efficient resolution in one proceeding of common

issues of law and fact arising from the same alleged . . . activity.” Hoffmann–La Roche Inc.,

. As noted in Scott, “[t]his result . . . can only be achieved to the extent that [the party

plaintiffs] . . . share one or more issues of law or fact that are material to the disposition of their

FLSA claims.”

. Focusing on differences, rather than similarities, is contrary to

the terms of section 216(b) and risks “import[ing], through a back door, requirements with no

application to the FLSA.” Campbell,

.

The court therefore will apply the Campbell test to determine whether the party plaintiffs

in this case are similarly situated. Thus, in deciding whether to decertify, the court primarily asks

3 Cf. also Calderone v. Scott,

(11th Cir. 2016) (describing Rule 23 as “more demanding” than § 216(b)); O’Brien, 575 F.3d at 584–85 (describing Rule 23 as “a more stringent standard” than § 216(b)); Thiessen, 267 F.3d at 1105 (“Congress clearly chose not to have the Rule 23 standards apply to [collective actions], and instead adopted the ‘similarly situated’ standard.”); LaChapelle v. Owens-Illinois, Inc.,

(5th Cir. 1975) (describing actions under § 216(b) and Rule 23 as “mutually exclusive and irreconcilable”).

8 whether plaintiffs are “alike with regard to some material aspect of their litigation.” Scott,

(citing Campbell,

). The court turns now to that inquiry.

2. Analysis

Plaintiffs argue that because there are common issues of law or fact “material to the

disposition” of their FLSA claims, any dissimilarities among the 155 party plaintiffs do not defeat

collective treatment. See Pls.’ Mem. in Opp’n to Def.’s Mot. to Decertify FLSA Collective Action,

ECF No. 181 [hereinafter Pls.’ Opp’n], at 7. Plaintiffs acknowledge that certain questions

regarding MTM’s liability, as well as the matter of damages, will require “trial individually or in

small groups of plaintiffs.” Id. at 1. Nevertheless, Plaintiffs contend, there are three common

issues that warrant collective treatment, as they will “require the court to decide legal questions

that apply to all Plaintiffs and will be resolved through common evidence.” Id. at 10. Those issues

are: (1) “whether MTM qualifies as Plaintiffs’ joint employer”; (2) “whether MTM suffered or

permitted Plaintiffs to work”; 4 and (3) “whether the time expended by Plaintiffs traveling between

trips provided to MTM clients and waiting for MTM clients qualifies as compensable work under

the FLSA.” Id.

MTM makes several arguments as to why the court should decertify the collective action.

First, MTM rejects as improper Plaintiffs’ request to certify “issues” under the FLSA, see Reply

in Supp. of Def.’s Mot. to Decertify FLSA Collective Action, ECF No. 183 [hereinafter Def.’s

Reply], at 1, arguing that the language of section 216(b) allows for a collective action only “‘to

recover the liability’ for a violation of the statute,” and therefore cannot be read to permit the

bifurcation of issues as Plaintiffs seek, id. at 6 (quoting

(b)). Second, even if the

4 The minimum wage and overtime requirements of the FLSA apply to work “suffer[ed] or permit[ed]” by an employer.

. An employer suffers or permits work when it knows or reasonably should know that work is being performed. See Akinsinde v. Not-For-Profit Hosp. Corp., No. 16-cv-437 (APM),

, at *7 (D.D.C. Nov. 29, 2018).

9 statute could be read to permit issue certification, MTM argues, evidence of a “collective-wide

policy or practice that violated the FLSA” is paramount and the absence of one in this case means

Plaintiffs are not similarly situated under any standard. See Def.’s Mot. to Decertify FLSA

Collective Action, ECF No. 180, Mem. in Supp. of Def.’s Mot. to Decertify FLSA Collective

Action, ECF No. 180-1 [hereinafter Def.’s Mem.], at 14; see also Def.’s Reply at 10–14. Finally,

MTM argues, even if a common policy or practice were not a requirement under the Campbell

test, Plaintiffs’ proposed issues would not materially advance the disposition of the party Plaintiffs’

FLSA claims since the issues would have to be resolved on an individualized, driver-by-driver

basis. See Def.’s Reply at 15–20. For that same reason, MTM adds, manageability and fairness

considerations weigh against the maintenance of a collective action because, among other things,

there is “no ‘fairness’ in permitting Plaintiffs to create a collective action out of non-dispositive

issues requiring plaintiff-specific analysis.”

; see

at 20–24.

The fundamental flaw with MTM’s latter argument is that one of the issues proposed by

Plaintiffs is potentially dispositive: the antecedent question of whether MTM qualifies as

Plaintiffs’ joint employer. Only an “employer” may be held liable under the FLSA. See

(b). The definition of “employer” has been recognized as broad enough to encompass a

“joint employer.” See Harris I,

(citing

(a)). Thus, if

MTM is found not to be a joint employer, the case goes away.

The D.C. Circuit applies an “economic reality” test to determine whether an employer-

employee relationship exists. See Morrison v. Int’l Programs Consortium, Inc.,

(D.C. Cir. 2001); see also Harris I, 300 F. Supp. 3d at 240–41 (observing that Morrison did not

involve a “joint employer” inquiry but finding the factors relevant). The factors to be considered

under that test are whether MTM “(1) had the power to hire and fire the employees, (2) supervised

10 and controlled employee work schedules or conditions of employment, (3) determined the rate and

method of payment, and (4) maintained employment records.’” Morrison,

(quoting

Henthorn v. Dep’t of Navy,

(D.C. Cir. 1994)). MTM contends that the very

application of a four-factor test shows this issue is “inherently fact intensive” and unsuitable for

collective resolution. Def.’s Mem. at 22. It explains, “[t]he joint employer analysis involves an

assessment of the relationship between the individual transportation providers and the drivers in

their respective employ as to the factors the D.C. Circuit has instructed courts to examine.”

Moreover, MTM contends, “the evidentiary record shows that drivers’ individual work schedules

and assignments are not directed by MTM and that the transportation providers alone controlled

the means and manner of the drivers’ work.”

“The transportation providers decide how each

of their driver’s workday is structured”; “the manner by which each work day begins and ends”;

and “the manner, as well as the amount, of their drivers’ respective pay, with such manners ranging

variously from hourly, bi-weekly, per trip or per mileage.” Id. at 23 (footnotes omitted). The court

disagrees that these differences defeat a collective proceeding.

Although evidence regarding each driver’s schedule, assignments, and pay may be

individualized, MTM’s role in devising those terms of employment is not. Its role is likely to be

defined by policies and practices that are broadly applicable to all TSPs, and thus subject to a

common defense. MTM does not, for example, argue that it might be a joint employer as to some

TSPs and not others. MTM is likely to be a joint employer for all drivers or for none at all. The

court therefore stands by its assessment, as articulated in its Memorandum Opinion on class

certification, that “[c]ommon evidence is likely to resolve the joint employer question” under both

the FLSA and the state law claims. Harris III,

, at *9. “For example, [the

parties] no doubt will look to MTM’s policy documents and service agreements with

11 subcontractors, as well as testimony by MTM employees regarding its hiring and training practices

and the rules and standards MTM requires drivers to follow.”

To the extent MTM maintains

that “the evidentiary record shows that the various [TSPs], not MTM, set the drivers’ individual

work schedules and that the drivers had vastly different individual experiences with respect to”

compensation, MTM will rely on that evidence, collectively, to show that it is not a joint employer.

Def.’s Reply at 17–18. In that sense, even the uncommon evidence is common.

MTM’s other arguments fare no better. The court sees no reason why it cannot certify a

collective on one or more issues so long as those common issues are “material to the resolution of

the party plaintiffs’ claims.” Campbell,

. Indeed, the Campbell court seemed to

contemplate such a result, explaining that “[u]nder section 216(b), if the party plaintiffs are similar

in some respects material to the disposition of their claims, collective treatment may be to that

extent appropriate, as it may to that extent facilitate the collective litigation of the party plaintiffs’

claims.”

“District courts have ample experience managing cases in this way. For example,

Rule 42, which offers a closer analogy to the collective mechanism than Rule 23, already provides

for the possibility of partial consolidation for trial, to the extent separate actions involve common

questions of law or fact.”

(citing Fed. R. Civ. P. 42(a)(1)). 5

Nor is the court persuaded by MTM’s insistence that there must be evidence of a common

FLSA-violating policy or practice to satisfy the similarly situated standard. See Def.’s Reply

5 MTM also argues that Plaintiffs cannot now “pivot” and seek issue certification when it was not requested in the Complaint or in Plaintiffs’ Motion for Conditional FLSA Certification. See Def.’s Reply at 5. But the court sees no reason why, following discovery, Plaintiffs cannot defend against decertification by seeking a narrower collective proceeding that is consistent with the evidence, even if the Complaint articulated a broader theory of collective action. Certainly, proceeding on a narrower theory presents no problem of notice, and MTM has not articulated how it is prejudiced by a narrower theory of collective action. For example, MTM has not said that it would have demanded additional evidence from drivers or sought more evidence from TSPs had it understood that Plaintiffs would seek to proceed collectively only on the question of joint employer status. MTM’s attempt to equate this shift in theory to an improper amendment of the Complaint, see

(citing Arbitraje Casa De Cambio v. U.S. Postal Serv.,

(D.D.C. 2003)), is therefore misplaced, and MTM has offered no case law to support its position.

12 at 10–15. To be sure, the vast majority of cases involving the question of whether party plaintiffs

are similarly situated have turned on the existence of a common violative policy or practice. See,

e.g., Campbell,

; Monroe,

; Morgan,

. In

Campbell, for instance, the lack of a common FLSA-violating policy was dispositive because it

was the only justification for collective action offered by the plaintiffs. See Campbell,

(finding plaintiffs were not similarly situated where there was no evidence of a department-

wide policy of discouraging overtime, which was “the sole justification advanced” for collective

treatment (emphasis added)). Although a common policy or practice might be sufficient to show

party plaintiffs are similarly situated, this case illustrates why a common policy or practice is not

necessary. Cf. O’Brien,

(“We do not mean to require that all collective actions

under § 216(b) be unified by common theories of defendants’ statutory violations . . . .”).

Moving this matter forward collectively is potentially dispositive of the case: if Plaintiffs

cannot carry their burden to show that MTM is a joint employer, they are out of luck. If they can

make such a showing, the case moves forward. That is the definition of material, and it is precisely

the type of issue Congress anticipated employees could pursue collectively. See Hoffman-La

Roche,

. While a defendant in a putative collective action under the FLSA has a

right to defend against individualized claims on an individual basis, courts have held that “this

right must be balanced [against] the rights of the plaintiffs—many of whom would likely be unable

to bear the costs of an individual trial—to have their day in court.” Nerland v. Caribou Coffee

Co.,

(D. Minn. 2007); see Hoffman-La Roche,

. And

there can be no doubt that permitting this case to proceed as a collective action on the issue of

whether MTM is a joint employer will benefit individual plaintiffs and the judicial system by the

efficient resolution in one proceeding of a common issue of law and fact. See Hoffman-La Roche,

13

. When that is the case, and the party plaintiffs are similarly situated,

“decertification of a collective action . . . cannot be permitted unless the collective mechanism is

truly infeasible.” Campbell,

. It is not truly infeasible here.

The court recognizes that at least two district courts, in cases factually similar to this one,

have come out the other way—rejecting certification of a collective action on the issue of whether

defendant is a joint employer and holding that evidence of a common FLSA-violating policy or

practice is required for plaintiffs to be similarly situated. See, e.g., Edmonds v. Amazon.com, Inc.,

No. C19-1613,

, at *5 (W.D. Wash. Oct. 9, 2020); Gibbs v. MLK Express Servs.,

LLC, No. 18-cv-434,

, at *9 (M.D. Fla. June 27, 2019). But those decisions are

in no way binding on this court, and to the extent that Edmonds, in particular, found that the

“absence of a plausibly alleged common plan or policy is dispositive,”

, at *6,

this court respectfully disagrees for the reasons articulated above.

In sum, because the court finds that Plaintiffs have demonstrated that they are similarly

situated as to one of the three issues they have identified—whether MTM is a joint employer—the

court denies MTM’s motion to decertify the collective action.

B. Certification of an Issue Class Under Rule 23(c)(4)

In its Memorandum Opinion denying Plaintiffs’ motion for class certification, the court

denied without prejudice Plaintiffs’ motion to certify an issue class under Rule 23(c)(4), as the

issue had not been fully briefed by the parties. See Harris III,

, at *13. The

court observed that Rule 23(c)(4) is not without controversy, as courts and commentators have

split on its proper interaction with Rule 23(b)(3)’s requirement that common issues predominate.

at *12 (citing 2 Newberg on Class Actions § 4:91 (5th ed. 2020)). The court now discusses the

state of the law on this issue before addressing the parties’ arguments.

14 1. Legal Standard

Rule 23(c)(4) provides, “[w]hen appropriate[,] an action may be brought or maintained as

a class action with respect to particular issues.” Fed. R. Civ. P. 23(c)(4) (emphasis added).

Historically, there had been a “sharp split in early academic commentary and a minor split in early

cases” regarding Rule 23(c)(4)’s proper interaction with Rule 23(b)(3)’s requirement that for a

class to be certified, “‘the questions of law or fact common to class members [must] predominate

over any questions affecting only individual members.’” 2 Newberg on Class Actions § 4:91

(alteration in original) (quoting Fed. R. Civ. P. 23(b)(3)). The two primary schools of thought on

this interplay have been characterized as the “broad” and “narrow” views. Id. Proponents of the

broad view believe that courts should apply Rule 23(b)(3)’s predominance and superiority prongs

after common issues have been identified for class treatment under Rule 23(c)(4). The broad view

thus permits certification under Rule 23(c)(4) even when, as the court has already ruled in this

case, predominance has not been satisfied for the cause of action as a whole. See, e.g., In re Nassau

Cty. Strip Search Cases,

(2d Cir. 2006) (permitting issue certification

“regardless of whether the claim as a whole satisfies Rule 23(b)(3)’s predominance requirement”);

Valentino v. Carter-Wallace, Inc.,

(9th Cir. 1996) (“Even if the common

questions do not predominate over the individual questions so that class certification of the entire

action is warranted, Rule 23 authorizes the district court in appropriate cases to isolate the common

issues under Rule 23(c)(4)[ ] and proceed with class treatment of these particular issues.”). The

majority of Circuits has expressed at least some support for this approach. In addition to the

Second and Ninth Circuits, the Sixth Circuit has expressly endorsed it, see Martin v. Behr Dayton

Thermal Prods. LLC,

(6th Cir. 2018), and the Third, Fourth, Seventh, and Eighth

Circuits “have indicated support for it,” 2 Newberg on Class Actions § 4:91 (citing cases).

15 The only Circuit to subscribe to “the narrow view” has been the Fifth Circuit, which in a

footnote to a 1996 opinion “appear[ed] to reject issue class certification unless the case itself meets

the predominance requirements.” Id. (citing Castano v. Am. Tobacco Co.,

, 745 n.21

(5th Cir. 1996) (“The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4)

is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that

(c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.”)).

Subsequent caselaw from within the Fifth Circuit, however, “indicates that any potency the narrow

view once held there has dwindled.” Martin,

(citing Steering Comm. v. Exxon

Mobil Corp.,

(5th Cir. 2006) (noting that bifurcation might serve “as a remedy

for the obstacles preventing a finding of predominance” but that the plaintiffs had not made such

a proposal to the district court)); see also 2 Newberg on Class Actions § 4:91 (explaining that “[a]

more recent Fifth Circuit decision casts some doubt on the continuing validity of” the footnote in

Castano and citing In re Deepwater Horizon,

, 807 n.65 (5th Cir. 2014)).

Neither the Supreme Court nor the D.C. Circuit has weighed in on the scope of

Rule 23(c)(4). 6 Although one court in this District has adopted the narrow view, see Little v. Wash.

Metro. Area Transit Auth.,

(D.D.C. 2017), this court agrees with the vast

majority of appellate courts that have found the broad view to be the better approach.

First, the broad approach is consistent with the structure of Rule 23. It “respects each

provision’s contribution to class determinations by maintaining Rule 23(b)(3)’s rigor without

rendering Rule 23(c)(4) superfluous.” Martin,

. The predominance inquiry is not

6 Plaintiffs place much stock In re Johnson, where the D.C. Circuit held that the district court had not manifestly erred “by in effect certifying an issue class action” because “a district court has a good deal of discretion in the management of the litigation before it.”

(D.C. Cir. 2014). But this reliance is misplaced. Johnson was on review for manifest error, and the court expressly declined to weigh in on the “appropriate use of an issue class,” as it had not been “raised or briefed.”

16 discarded entirely but applied after identifying issues suitable for class treatment. By contrast,

“the narrow view would virtually nullify Rule 23(c)(4).” Id.; see also In re Nassau Cnty. Strip

Search Cases, 461 F.3d at 226 (observing that the narrow view contravenes the “well-settled

principle that courts should avoid statutory interpretations that render provisions superfluous”

(cleaned up)); Gunnells v. Healthplan Servs., Inc.,

, 439–40 (4th Cir. 2003) (same).

Second, the broad view comports with the plain language of Rule 23, which provides for

certification of an issue class “[w]hen appropriate.” Fed. R. Civ. P. 23(c)(4). “A prior version of

Rule 23 even instructed that, after selecting issues for class treatment, the remainder of Rule 23’s

provisions ‘shall then be construed and applied accordingly.’” Martin,

; In re

Nassau Cnty. Strip Search Cases, 461 F.3d at 226. Although that language changed with the 2007

amendment of the Rule, “the Advisory Committee made clear that the changes to the Rule’s

language were ‘stylistic only.’” Martin,

(quoting Fed. R. Civ. P. 23(c)(4) adv.

comm. n. to 2007 amend.). 7 The Advisory Committee Notes lend further support for the broad

view, citing as an example the fact that “in a fraud or similar case[,] the action may retain its ‘class’

character only through the adjudication of liability to the class[,]” and “the members of the class

may thereafter be required to come in individually and prove the amounts of their respective

claims.’” In re Nassau Cnty. Strip Search Cases, 461 F.3d at 226 (emphasis added) (quoting Fed.

R. Civ. P. 23(c)(4) adv. comm. n. to 1966 amend.). That language suggests that “a court may

employ Rule 23(c)(4) when it is the ‘only’ way that a litigation retains its class character, i.e., when

7 The Sixth Circuit in Martin also observed that the “Advisory Committee has [] declined to alter the language of Rule 23(c)(4) to reflect the narrow view or otherwise limit the use of issues classes.” Id. (citing Advisory Committee on Civil Rules, Rule 23 Subcommittee Report 90–91 (2015), http://www.uscourts.gov/sites/default/files/2015-11- civil-agenda_book.pdf (indicating that the broad approach’s dominance reflects the proper understanding of the Rule—“[t]he various circuits seem to be in accord about the propriety of such [issue] treatment ‘when appropriate,’ as Rule 23(c)(4) now says”)).

17 common questions predominate only as to the ‘particular issues’ of which the provision speaks.”

Id.

Finally, as noted by the Sixth Circuit in Martin, “the concomitant application of Rule

23(b)(3)’s superiority requirement ensures that courts will not rely on issue certification where

there exist only minor or insignificant common questions, but instead where the common questions

render issue certification the superior method of resolution.”

.

For these reasons, the court is persuaded that the broad view is the better interpretation of

Rule 23(c)(4), and turns now to assessing whether, under that approach, issue certification is

warranted in this case.

2. Analysis

In arguing for certification of an issue class under Rule 23(c)(4), Plaintiffs identify four

issues that “are common to all class members and as to which the proof and defense can be resolved

for the class as whole.” Pls.’ Suppl. Mem. in Supp. of Certification of Claims Pursuant to Rule

23(c)(4) & Clarification that the Limitations Period Remains Tolled, ECF No. 179 [hereinafter

Pls.’ Mem.], at 8. Those issues are:

1. Whether MTM qualifies as a joint employer of the putative class members; 2. Whether MTM is a general contractor that is strictly liable for any violations of the wage laws committed by its subcontractors; 3. Whether the time expended by putative class members traveling between trips provided to MTM clients and waiting for MTM clients qualifies as compensable work under the laws invoked by this action; and 4. Whether the wage rates set by the Living Wage Act and the Service Contract Act apply to time worked on MTM’s managed- care contracts.

Plaintiffs contend that “[b]ecause resolution of these issues on a class-wide basis will advance

the resolution of this action, these issues can and should be certified pursuant to Rule 23(c)(4).”

18

(citing Martin, 896 F.3d at 415–16). The court agrees as to the first and second issues—

whether MTM is a joint employer or general contractor—but not as to the latter two.

Ultimately, the question here is the same as it was in determining whether to decertify the

collective action under the FLSA: Would certifying an issue class “materially advance the

litigation”? McLaughlin v. Am. Tobacco Co.,

(2d Cir. 2008), abrogated on

other grounds by Bridge v. Phx. Bond & Indem. Co.,

(2008); see also Gonzalez v.

Owens Corning,

(3d Cir. 2018) (amended Apr. 4, 2018) (“The District Court

therefore correctly determined that a Rule 23(c)(4) class would not ‘materially advance resolution

of the underlying claims . . . .’”); Valentino,

(holding that the district court did not

properly consider Rule 23(c)(4) when it “did not discuss whether the adjudication of the certified

issues would significantly advance the resolution of the underlying case”). The answer to that

question under Rule 23(c)(4) is the same as in the collective action context of the FLSA: Yes.

As the court observed in its Memorandum Opinion denying class certification, “[i]f MTM

is neither a joint employer nor a general contractor, that would bring an end to the case—it cannot

be held liable under District of Columbia law for underpayment of wages.” Harris III,

, at *6. “On the other hand, if MTM does qualify as a joint employer or a general

contractor, that legal conclusion would answer a threshold question in Plaintiffs’ favor that is

necessary to make out their claims.”

Moreover, Plaintiffs have shown that they intend to rely

on evidence common to the class, including MTM’s service agreements, training policies and

manuals, and corporate testimony, to show that MTM is a joint employer or general contractor for

the purposes of their District of Columbia wage claims. See

.

MTM asserts two overarching arguments in opposition to certification of an issue class.

First, it argues that “certification pursuant to Rule 23(c)(4) is appropriate only where the

19 requirements of both Rule 23(a) and one of the subsections of Rule 23(b) are satisfied with respect

to the entire action or a specific cause of action.” Def.’s Opp’n to Pls.’ Mot., ECF No. 182

[hereinafter Def.’s Opp’n], at 1. The court already has rejected this argument, finding that the

broad view is the superior of the two prevailing approaches. See supra at p. 18.

Next, MTM argues that certification of an issue class is proper only if the issue “at least

substantially resolve[s] the merits of liability on a class-wide basis.” Def.’s Opp’n at 17; see id. at

17–25. This argument is similar in kind to the one MTM asserted in the context of the FLSA

collective—that proof of a common FLSA-violating policy is necessary to satisfy the similarly

situated standard. But, as Plaintiffs point out, courts within this Circuit and others have rejected a

requirement that an issue class fully resolve liability in the context of 23(b)(3) and 23(c)(4) alike.

See Pls.’ Reply Mem. in Supp. of Mot. for Cert. of Claims Pursuant to Rule 23(c)(4), ECF No. 184

[hereinafter Pls.’ Reply], at 4; see also In re Prograf Antitrust Litig., No. 11-MD-02242,

, at *1 (D. Mass. June 10, 2014) (collecting cases and noting “[c]ertification can also be

of more limited scope, covering specific common issues short of completely resolving liability”);

Alvarez v. Keystone Plus Constr. Corp.,

(D.D.C. 2014) (“‘[T]he common

issues need only be predominant, not dispositive of the litigation.’” (quoting Cohen v. Chilcott,

(D.D.C. 2007))); see also Meijer, Inc. v. Warner Chilcott Holdings Co.

III,

(D.D.C. 2007) (same); In re Lorazepam & Clorazepate Antitrust Litig.,

(D.D.C. 2001) (same). At bottom, MTM’s argument that an issue class is

appropriate only where the issue would “substantially resolve” the case is not supported by either

the text of Rule 23(c)(4) or the case law. 8 In any event, the antecedent question of whether MTM

8 MTM also argues that several cases Plaintiffs rely on involved a discrete common policy, and because Plaintiffs have not alleged such a policy here, certification of an issue class is not warranted. Def.’s Opp’n at 18, 23. Just as the court noted in the context of an FLSA collective, however, although a common policy might in some cases be

20 is a joint employer or general contractor does “go[] directly to the heart of . . . liability.” Def.’s

Opp’n at 1. MTM cannot be held liable for Plaintiffs’ District of Columbia statutory wage claims

if it is not a joint employer or a general contractor. Resolving such a dispositive issue would

“materially advance the litigation.” McLaughlin,

. Accordingly, the court will

grant Plaintiffs’ request to certify a class on the issue of whether MTM is a joint employer or

general contractor.

The court agrees with MTM, however, that the other two issues Plaintiffs seek to certify

are not suitable for class-wide resolution. The issue of whether the time expended by putative

class members traveling between trips provided to MTM clients and waiting for MTM clients

qualifies as compensable work under District of Columbia wage laws is fact intensive and highly

individualized. Indeed, as noted above, the record shows that at least some TSPs compensated

their drivers for such time. See Def.’s Opp’n to Pl.’s Mot. for Class Cert., ECF No. 142-2

[hereinafter Def.’s Opp’n to Class Cert.], Decl. of Omar Amit of AB&B Transportation, ECF No.

142-18, ¶ 7; Def.’s Opp’n for Class Cert., Decl. of Merlin Fossi of MBI, ECF No. 142-8, ¶ 7;

Def.’s Opp’n to Class Cert., Decl. of Saidou Ouedraogo of Mariet & B, ECF No. 142-22, ¶ 7. As

“questions of law or fact common to class members [do not] predominate over any questions

affecting only individual members,” Fed. R. Civ. P. 23(b)(3), it is an issue that will need to be

decided on a driver-by-driver basis, and it is therefore not suitable for issue certification, see

Martin,

(“Under . . . the broad view, courts apply the Rule 23(b)(3) predominance

and superiority prongs after common issues have been identified for class treatment under Rule

23(c)(4).”).

sufficient to warrant issue certification, MTM cites no case suggesting that a common policy is required. See supra p. 13.

21 And as for the issue of whether the wage rates set by the Living Wage Act and the Service

Contract Act apply to time worked on MTM’s managed-care contracts, that is an ancillary legal

question better left for the damages phase of the litigation. Its resolution will not “materially

advance the litigation.” McLaughlin,

. The parties agree that individual trials to

determine damages will be necessary, see, e.g., Pls.’ Mem. at 16, and certifying an issue class on

a damages-related legal question is premature before MTM’s liability has been established. The

court thus denies Plaintiffs’ request to certify a class as to the proper wage rate. See Martin,

(“[T]he concomitant application of Rule 23(b)(3)’s superiority requirement ensures

that courts will not rely on issue certification where there exist only minor or insignificant common

questions, but instead where the common questions render issue certification the superior method

of resolution.”).

C. Tolling of Statute of Limitations

Finally, Plaintiffs seek clarification that the statute of limitations for the putative class

members’ claims remains tolled notwithstanding the court’s denial without prejudice of Plaintiffs’

request to certify a class under Rule 23(c)(4). See Pls.’ Mem. at 17–20. The court concurs with

Plaintiffs that the statute of limitations remains tolled because the court’s Memorandum Opinion

denying class certification under Rule 23(b)(3) left open the possibility of certification of an issue

class under Rule 23(c)(4), Harris III,

, at *13. See Am. Pipe & Constr. Co. v.

Utah,

(1974) (“[C]ommencement of a class action suspends the applicable

statute of limitations as to all asserted members of the class who would have been parties had the

suit been permitted to continue as a class action.”).

MTM’s argument that tolling is not warranted because it “would not promote efficiency

and economy of litigation,” Def.’s Opp’n at 33, is not well taken. The concerns articulated by the

22 Supreme Court in American Pipe & Construction Company v. Utah are equally valid here.

(“A contrary rule . . . would deprive Rule 23 class actions of the efficiency and

economy of litigation which is a principle purpose of the procedure.”). “If the statute of limitations

were not tolled . . . then each class member would have to file individual actions to preserve their

right to relief—which is precisely what class actions suits are designed to avoid.” Barryman-

Turner v. District of Columbia,

(D.D.C. 2015) (citing Am. Pipe,

); see also Crown, Cork & Seal Co. v. Parker,

, 350–51 (1983) (“[Without

tolling,] putative class member[s] who fear[] that class certification may be denied would have

every incentive to file a separate action prior to the expiration of [their] own period of

limitations.”).

If tolling had ceased with the court’s denial of class certification under Rule 23(b)(3), then

the putative class members would have to move to intervene or file their own complaints in order

to protect their rights. But it would not make sense for them to do so prior to the court deciding

whether certification of an issue class under Rule 23(c)(4) is proper—a possibility left plainly open

by the court’s prior opinion. See Harris III,

, at *13. As the Seventh Circuit

held in Sawyer v. Atlas Heating & Sheet Metal Works, Inc., “[t]olling lasts from the day a class

claim is asserted until the day the suit is conclusively not a class action.”

(7th

Cir. 2011). That day has not yet come in this case.

II. CONCLUSION AND ORDER

For the reasons set forth above, the court denies MTM’s motion to decertify the FLSA

collective, ECF No. 180, and grants Plaintiffs’ motion for certification of an issue class under

23 Rule 23(c)(4), ECF No. 179, on the issues of whether MTM is a joint employer or a general

contractor.

Dated: August 6, 2021 Amit P. Mehta United States District Judge

24