Too Many Individual Factual Issues by Prospective Members of a Class Action Will Prevent Class Certification in Washington

Author: Ben Davis

Guest Editor: Brittany Torrence

February 4, 2019 11:00am

In a typical class action lawsuit, a plaintiff sues a defendant, or multiple defendants, on behalf of a group, or class, of similarly situated parties.  Class actions involve a large number of aggrieved parties who have sustained common injuries by the same defendant(s).  Class actions serve a dual purpose by providing a procedure for claims which may seem minimal when viewed individually but are more significant when viewed as a group.  On the other hand, class actions shelter defendants from multiple lawsuits on the same or similar issues.

Pursuant to Federal Rule of Civil Procedure 23(a), an action may be certified as a class action only if:

  1. the class is so numerous that joinder of all members is impracticable[1];
  2. there are questions of law or fact common to the class[2];
  3. the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
  4. the representative parties will fairly and adequately protect the interests of the class.

The four elements in deciding a class are imprecise, giving trial courts wide discretion to reach a decision on a case-by-case basis.[3] Courts do not consider the likelihood of prevailing in deciding whether to certify the class.[4]

In the recent decision of Howard Berry, et al. v. Transdev Services, et al., the United States District Court for the Western District of Washington declined to certify a proposed class action lawsuit amongst employees of jointly operated paratransit services.   Plaintiffs alleged that Defendants First Transit, Inc. (“First Transit”) and Transdev Services, Inc. (“Transdev”) failed to provide compensation for rest and meal breaks in violation of state law, whereby, Transdev was responsible for hiring the paratransit drivers for the county-wide service, and First Transit was responsible for scheduling and dispatching drivers.

In Berry, Defendants did not dispute that the proposed class of more than 600 current and former drivers met the numerosity requirement.[5]  Rather, this dispute focused on common questions of law and fact. Plaintiffs alleged that Defendants had a “uniform policy and practice” of denying the proposed class rest and meal breaks due to problematic scheduling – such as scheduling the first required break within ten minutes of a driver’s shift or at the same time as the driver’s lunch.[6]

An issue is common to all class members when “determination of its truth or falsity will resolve an issue central to the validity of each one of the claims in one stroke.”[7]  In Berry, the District Court was concerned that the class claims against First Transit necessitated “individualized inquiries,” including multiple variables such as the ability of the driver to take a break, whether the driver’s break was impeded by being unable to receive authorization, the number of available drivers at the time, traffic conditions, and other factors.[8]  The Court had similar concerns regarding the claims against Transdev. It was unclear whether the drivers’ work commences upon clocking-in, and it was also unclear as to their scope of compensable work.

Addressing this issue, the Berry Court found Plaintiffs’ explanation of a common issue to be “problematic” because Plaintiffs presented several arguments regarding the meal and rest breaks issue, including: (1) time period of the violation and different policies in effect; (2) type of break; and (3) reasons for lack of breaks.[9]  The Court also found that, despite Plaintiffs submitting several declarations from proposed class members, plaintiffs failed to “point to any common policy or practice implemented by Defendants that creates the situation.”[10]

Accordingly, the Court rejected the class certification.  The Court held that the proposed class would be “unmanageable” due to the overwhelming focus of “individual issues,” as opposed to classwide common issues.[11]  Furthermore, “[t]he resources that would be expended on litigating the separate issues underlying each class member’s right to recover would far exceed those saved by classwide determination of the common issues present in the case.”[12]


The Berry case makes clear that a potential class will be certified only if there are common questions of law or fact across all potential claims.  While this seems straight forward, specific consideration is required to determine whether certain facts only apply to certain prospective members.  If there are too many separate issues, and the resources that would be expended on litigating the separate issues exceeds those saved by classwide determination of the common issues, the class is unlikely to be certified.


[1] While there is no preset number for satisfying the numerosity requirement, some courts hold that 40 or more parties creates a class and anything under creates a presumption of a class.  However, a small class should be considered along with other factors such as judicial economy, size of the claims and multiplicity of actions. Miller v. Farmer Bros. Co., 115 Wn.App. 815, 64 P.3d 49 (Div. 1 2003).

[2] It is not necessary that the shared questions of law or fact be identical, but certification is not guaranteed merely because class members share a legal theory of recovery.  Commonality exists when the legal issues shared by the class are “substantially related to the resolution of the litigation even though the individuals are not identically situated.” Miller v. Farmer Bros. Co., 115 Wn.App. 815, 64 P.3d 49 (Div. 1 2003).

[3] 14 Washington Practice Series, Civil Procedure, Nov. 2018 Update § 11:67.

[4] Washington Educ. Ass’n v. Shelton School Dist. No. 309, 93 Wash. 2d 783, 613 P.2d 769 (1980).

[5] Berry, et al. v. Transdev Services, Inc., et al., No. C15-01299-RAJ, 2019 WL 117997, at *4 (W.D. Wash. Jan. 7, 2019).

[6] Id. at *2, *4.

[7] Id. at 4.

[8] Id. 

[9] Id. at *2, *4.

[10] Id.  at *6.

[11] Id. at *7.

[12] Id. 

Copyright © 2019 Tyson & Mendes LLP. All Rights Reserved. Website by Big Behavior.