The opinion of the court was delivered by: Magistrate Judge Geraldine Soat Brown
MEMORANDUM OPINION AND ORDER
Plaintiffs in this case allege that AppleIllinois, LLC and some of its members and managers (collectively "AppleIllinois") paid them and other tipped employees sub-minimum "tip credit" wages while failing to comply with the requirements for taking such a credit under the Illinois Minimum Wage Law (IMWL), 820 Ill. Comp. Stat. 105/1, et seq., and the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. (Third Am. Compl. ¶¶ 1, 19-38, 44-55.) [Dkt 141.] Classes were certified for three of Plaintiffs' IMWL claims. (Mem. Op. & Order, Mar. 2, 2010 ("Certification Order") at 2, 10, 46-47.) [Dkt 231.]*fn1
Now, in the wake of the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S. Ct. 2541 (2011),AppleIllinois moves for decertification of one of the certified classes: the "dual jobs" class consisting of "persons employed by Defendant AppleIllinois, LLC, from October 6, 2003, to the conclusion of this action, who worked as tipped employees earning a sub-minimum, tip credit wage rate, and who performed duties unrelated to their tipped occupation for which they were not paid at the minimum wage rate." (Defs.' Mot. Decertify ¶¶ 2-4 [dkt 290]; Defs.' Mem. in Supp. of Mot. Decertify ("Defs.' Mem.") at 1 [dkt 291].) Plaintiffs oppose the motion. (Pls.' Resp. Mot. Decertify.) [Dkt 311.]
The procedural history, factual background and legal framework of this case up to the Certification Order were described in that order, and will only be discussed here as necessary. AppleIllinois sought leave to appeal the Certification Order pursuant to Federal Rule of Civil Procedure 23(f), but the Seventh Circuit declined to accept the appeal. (Order, Case No. 10-8012, Apr. 16, 2010.) [Dkt 234.] In the summer of 2010, this court approved the form of notice and directed that it be sent to the class members. [Dkt 242.] Discovery on the merits has been completed, and Plaintiffs' motions for summary judgment are pending. [Dkt 297, 303.]
During the time AppleIllinois' motion to decertify has been under advisement, the Seventh Circuit has issued a number of opinions elucidating the application of Wal-Mart. The parties were permitted to supplement their briefing on the motion with submissions discussing Messner v. Northshore U. HealthSystem, _____ F.3d ____, No. 10-2514, 2012 WL 129991 (7th Cir. Jan. 13, 2012), and Ross v. RBS Citizens, N.A., ____ F.3d _____, No. 10-3848, 2012 WL 251927 (7th Cir. Jan. 27, 2012).
The Certification Order was entered after extensive briefing and oral argument by counsel for the parties. The only issue on the present motion is whether the Wal-Mart decision requires that the order certifying a dual jobs claim class be vacated. For the reasons set out below, the court concludes that it does not.
The court has an ongoing obligation to "make whatever factual and legal inquiries are necessary" to ensure that all Rule 23 requirements are met. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001). Rule 23 permits the court to modify a ruling concerning a previously certified class: "An order that grants or denies class certification may be altered or amended before final judgment." Fed. R. Civ. P. 23(c)(1)(C). After a certification order is entered, "the judge remains free to modify it in the light of subsequent developments in the litigation." Gen. Tel. Co. of SW v. Falcon, 457 U.S. 147, 160 (1982). That includes the ability to decertify a class should circumstances so dictate. Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 896 (7th Cir. 1981). Modifications of an original class ruling, including decertifications, typically occur in response to a significant change in circumstances, and "[i]n the absence of materially changed or clarified circumstances . . . courts should not condone a series of rearguments on the class issues[.]" William B. Rubenstein, Alba Conte & Herbert B. Newberg, Newberg on Class Actions, vol. 3, § 7:47 (4th ed. 2011).
AppleIllinois contends that the Supreme Court's Wal-Mart decision clarified the "commonality" requirement for class certification contained in Federal Rule of Civil Procedure 23(a), and the dual jobs class does not meet that requirement. (Defs.' Mot. Decertify ¶ 3.) The Wal-Mart case concerned whether Title VII claims of employment discrimination by a putative class of 1.5 million current and former female employees of Wal-Mart Stores, Inc., were properly certified for class treatment under Rule 23(b)(2). The Court concluded that class certification was inappropriate because the plaintiffs had failed to show that there was a common question of law or fact as Rule 23(a) requires, and the plaintiffs' claims for backpay could not be properly certified under Rule 23(b)(2). Wal-Mart, 131 S.Ct. at 2556-57, 2561. The Supreme Court specifically noted that it did not consider whether the class could properly be certified under Rule 23(b)(3) as opposed to 23(b)(2). Id. at 2548-49 n. 2.
This case, involving an IMWL claim certified under Rule 23(b)(3), is significantly different from Wal-Mart. As the Seventh Circuit explained in Ross, the Title VII claims in Wal-Mart required that the plaintiffs show proof of discriminatory motive or intent. Ross, 2012 WL 251927 at * 6. The plaintiffs in Wal-Mart did not assert that Wal-Mart had an express corporate policy of discriminating against women but rather that Wal-Mart's policy of granting discretion to local managers over pay and promotion decisions created an unlawful disparate impact on female employees. Wal-Mart, 131 S.Ct. at 2548. The plaintiffs could not show commonality because "in resolving an individual's Title VII claim, the crux of the inquiry is the reason for a particular employment decision." Id. at 2252 (quotation omitted). The plaintiffs failed to demonstrate that there was "a common answer to the crucial question why I was disfavored." Id.
Here, there is a common question: whether AppleIllinois required its tipped employees to engage in duties unrelated to their tipped occupation without paying them at the minimum wage rate. Unlike a Title VII claim, the answer to that question does not involve probing into the motive or intent on the part of any defendant. "The plaintiffs' IMWL claim requires no proof of individual discriminatory intent." Ross, 2012 WL 251927 at * 7. The answer to "why," which is critical to a Title VII case, is irrelevant here. The analysis is strictly objective.
In order to certify the dual jobs claim for class treatment under Rule 23(b)(3), this court was required to analyze not only whether there are questions of law or fact common to the class under Rule 23(a)(1), but also whether those questions of law or fact predominate over any questions affecting only individual members. As the Certification Order reflects, before reaching that conclusion, this court required Plaintiffs to "demonstrate that there is a common method of proof for determining whether there is liability as to the defined class." (Certification Order at 37.) This court examined more than 100 declarations submitted by both sides and concluded that Plaintiffs had submitted evidence to show a practice of using tipped employees in duties arguably unrelated to their tipped occupations. "In fact, virtually all of the tipped employees who submitted declarations, even those whose declarations were submitted by AppleIllinois, stated that they performed duties that it might be argued are unrelated to their tipped occupation." (Id.) It appeared from ...