Former Maryland Wal-mart workers lose class-action bid

Daily Record, The (Baltimore), Jul 2, 2007 by Brendan Kearney

A pair of former employees at Wal-Mart and Sam's Club stores in Maryland who claimed they were deprived of promised work breaks must pursue their claims individually, not in a class action, the Court of Special Appeals has affirmed.

The differences between their employment situations and those of the other 60,000 putative class members - hourly workers at the stores in Maryland between 1999 and 2003 - predominate over their commonalities, the court held. Maryland Rule 2-231(b)(3) states such a scenario precludes class action.

"The circuit court correctly concluded that, absent a contract applicable to the entire class of Wal-Mart employees, the existence, formation, and terms of any implied employment contract would vary among employees," Judge Timothy E. Meredith wrote for the three- judge panel.

Plaintiffs Garrett Cutler and Michael Pittman had pointed to guarantees of meal breaks outlined in the Wal-Mart Associate Handbook and other corporate documents as evidence that there was an implied contract between the company and all its non-salaried employees.

But the court sided with Wal-Mart Stores Inc, the parent company of two chains. Disclaimers in those documents asserting that they are only "guidelines," not contracts, are "quite clear," Meredith wrote.

"The relationship between Wal-Mart and its employees was clearly defined as not being a contract, and there's a handbook that everybody got that specifically says that," said Bruce L. Marcus, attorney for Wal-Mart. "So that was their first problem."

If allowed to proceed as a class action, plaintiffs planned to have their experts survey Wal-Mart's hourly employees in Maryland and to compare the stores' handwritten and electronic records to determine the extent of work off the clock.

But the court held that even if these expert reports indicated a pattern of off-the-clock work, proof in each individual case would be required. Marcus, of Marcus & Bonsib, called the experts' proposed techniques for analyzing the issue "wanting" and "almost fanciful."

Meredith cited attempted class actions against Wal-Mart in Ohio and North Carolina that failed and in California and New Jersey that succeeded.

"Maryland does not share the liberal construction of the class action rule espoused by the Ninth Circuit in Dukes and by the Supreme Court of New Jersey in Iliadis," Meredith wrote, referring to the two successful bids.

The plaintiffs had sued in Prince George's County Circuit Court in April 2003, but Judge William B. Spellbring Jr. refused to certify the class and dismissed the case because the amounts sought did not meet the court's $5,000 threshold.

Charles T. Thompkins, who represented the plaintiffs along with attorneys from the Public Justice Center and Joseph, Greenwald & Laake PA, had not yet read the opinion in the case but said an appeal was likely.

WHAT THE COURT HELD

Case:

Cutler et al. v. Wal-Mart Stores Inc. et al., CSA No. 1376, Sept. Term 2005. Reported. Opinion by Meredith, J. Filed Jun 29, 2007.

Issue:

Did the lower court err in denying class status to a pair of Wal- Mart employees who sought remuneration for work performed during previously promised breaks?

Holding:

No; affirmed. The employees failed to show that common issues between the putative class members predominate over individual issues.

Counsel:

Roscoe Jones Jr., Charles T. Thompkins, Steven M. Pavsner for appellant; Bruce L. Marcus for appellee.