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Romulus v. CVS Pharmacy, Inc.

United States District Court, D. Massachusetts

July 12, 2017

DAVID ROMULUS, CASSANDRA BEALE, NICHOLAS HARRIS, ASHLEY HILARIO, ROBERT BOURASSA, and ERICA MELLO, on behalf of themselves and all other persons similarly situated
v.
CVS PHARMACY, INC.

          MEMORANDUM OF DECISION

          RYA W. ZOBEL SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiffs Cassandra Beale, Nicholas Harris, Ashley Hilario, Robert Bourassa, and Erica Mello, former Shift Supervisors at CVS Pharmacy, Inc. (“CVS”), allege that they were required to remain in the store during their meal breaks when no other managerial employees were present and that they were not paid for this time. Based on these allegations, they claim CVS violated the Massachusetts Wage Act, Mass. Gen. Laws, ch. 149, § 148, and the Massachusetts overtime statute, Mass. Gen. Laws, ch.151, §§ 1A & 1B. In the instant motion, plaintiffs seek certification under Federal Rule of Civil Procedure 23(b)(3) of the following two classes:

(1) All CVS Shift Supervisors who worked for an hourly wage in Massachusetts between July 25, 2008 and May 14, 2013 and were not paid for meal breaks during which CVS required them to remain in the store, for recovery of wages for unpaid meal breaks during that period (the “First Class”); and
(2) All CVS Shift Supervisors who worked for an hourly wage in Massachusetts between May 15, 2013 and the date of final judgment and who were not paid for meal breaks during which CVS required them to remain in the store, for recovery of wages for unpaid meal breaks during that period (the “Second Class, ” or together with the First Class, the “Classes”)

Docket # 115, at 1.

         I. Background

         The procedural history of this case is detailed in the First Circuit's decision, Romulus v. CVS Pharmacy, Inc., 770 F.3d 67, 70-72 (1st Cir. 2014). As relevant here, named plaintiffs Beale, Harris, Hilario, Bourassa, and Mello each worked as Shift Supervisors for defendant CVS Pharmacy, Inc. (“CVS”), in Massachusetts. Beale, Harris, Hilario, and Bourassa were employed by CVS at various times prior to 2013; Mello was employed between approximately September 2013 and November 2014.

         In their complaint, plaintiffs allege that CVS required Shift Supervisors and Assistant Managers to remain in the store during their rest or meal breaks “when there were no other managerial employees on duty and/or when there was only one other employee on duty.” Docket # 75, at ¶ 2. They allege that during this time, they were not only required to stay in the store but were also interrupted to handle transactions when necessary. Nonetheless, plaintiffs allege, they were required to punch out during these breaks and were not paid for their time.

         Plaintiffs maintain that the combination of two CVS policies led to their unpaid work during breaks: first, in that until at least May 2013, [1] CVS's “management coverage policy” prohibited Shift Supervisors from leaving store premises when no other “managerial employees” - Shift Supervisors, Managers, and Assistant Managers - were present; and second, in that under the “unpaid meal break” policy meal breaks must be unpaid. See Docket # 16, at 7.

         II. Standard

         To obtain class certification, plaintiffs must first meet Rule 23(a)'s prerequisites: (1) that the class be so numerous such that “joinder of all members is impracticable”; (2) that common questions of law or fact exist; (3) that the representative parties' claims or defenses are typical of those of the class; and (4) that “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). For class certification under Rule 23(b)(3), the court must find (1) “that the questions of law or fact common to class members predominate over any questions affecting only individual members”; and (2) “that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Id. 23(b)(3). Plaintiffs must make an initial showing, by a preponderance of evidence, “that a proposed class satisfies the Rule 23 requirements.” In re Nexium Antitrust Litig., 777 F.3d 9, 27 (1st Cir. 2015). “Once plaintiffs have made their initial showing, defendants have the burden of producing sufficient evidence to rebut the plaintiff's showing.” Id.

         III. Discussion

         “A district court must conduct a rigorous analysis of the prerequisites established by Rule 23 before certifying a class.” Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 38 (1st Cir. 2003). “Such an analysis will frequently entail ‘overlap with the merits of the plaintiff's underlying claim.' . . . That is so because the ‘class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action.'” Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011)).

         A. Ascertainability

         The parties' first point of contention is whether the proposed classes are ascertainable. Although not found explicitly in Rule 23, ascertainability is an “implied requirement” and “essentially require[s] a putative class to be ascertainable with reference to objective criteria.” William B. Rubenstein, Newberg on Class Actions §§ 3:1 (5th ed. 2017); see also Nexium, 777 F.3d at 19 (citing and quoting Rubenstein); Matamoros v. Starbucks Corp., 699 F.3d ...


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