564 F.3d 1256 (11th Cir. 2009), 07-13864, Vega v. T-Mobile USA, Inc.

Docket Nº:07-13864.
Citation:564 F.3d 1256
Party Name:Henry VEGA, individually and as representative of all others similarly situated, Plaintiff-Appellee, v. T-MOBILE USA, INC., a foreign corporation, Defendant-Appellant.
Case Date:April 07, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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564 F.3d 1256 (11th Cir. 2009)

Henry VEGA, individually and as representative of all others similarly situated, Plaintiff-Appellee,


T-MOBILE USA, INC., a foreign corporation, Defendant-Appellant.

No. 07-13864.

United States Court of Appeals, Eleventh Circuit.

April 7, 2009

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Kristine McAlister Brown, Peter Kontio, Charles H. Morgan, Gregory B. Mauldin, Alston & Bird, LLP, Atlanta, GA, for Defendant-Appellant.

Bard Daniel Rockenbach, Philip M. Burlington, Burlington & Rockenbach, P.A., West Palm Beach, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and MARCUS, Circuit Judges, and VINSON,[*] District Judge.

TJOFLAT, Circuit Judge:

T-Mobile USA, Inc. (" T-Mobile" ) appeals the district court's certification of a class action brought against it on behalf of its former sales employees regarding the company's policy for paying commissions on the sale of prepaid cellular telephone accounts. The class seeks damages to recover those commissions. After a thorough review, we find numerous flaws, both procedural and substantive, in the district court's class certification analysis under Rule 23 of the Federal Rules of Procedure and find, further, that the proposed class, as pled, is not amenable to Rule 23 certification. We therefore hold that the district court abused its discretion in certifying the class, vacate the certification order, and remand with the instruction that the plaintiff's claims proceed individually.



T-Mobile is a provider of cellular telephone services. Although it offers various service plans, those plans generally fall under one of two classifications: (1) term contract plans, in which a customer pays a monthly access fee for a specified period of time ( e.g., one or two years); and (2) prepaid or " pay as you go" plans, under which a customer purchases a set number of telephone minutes, and, when that " bucket" of minutes runs out, the customer chooses whether or not to buy more minutes. Under the prepaid plans, the customer makes a non-refundable, up-front payment for the minutes purchased and may use those minutes at any time prior to the minutes' expiration, which is specified in the customer agreement.

Plaintiff Henry Vega was employed by T-Mobile from April 2004 through July 2005, when he was discharged for poor attendance. He worked as a retail sales representative at a T-Mobile retail store in Miami, Florida. Throughout his tenure, Vega's compensation was subject to the

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guidelines set forth in the company's 2004 Sales Incentive Compensation Program (the " compensation program" ), which took effect on March 1, 2004.1 Upon commencing his employment, Vega received a copy of the written compensation program, including an attachment outlining the compensation plan for his specific position, and returned a signed acknowledgment form indicating that he read and understood the compensation program, both generally and with respect to his specific position.

As reflected in the compensation program, the compensation structure for T-Mobile's sales employees varied by business channel and job position within a given channel. Generally, T-Mobile paid its retail sales representatives (i.e., its employees, like Vega, who sold T-Mobile products and services through T-Mobile owned and operated retail stores) an hourly wage plus incentive-based commissions. Part of the monthly commission was derived from the employee's " net activations" for the month. The sales representative received credit (and payment) for a new activation whenever one of his customers commenced a new service plan. Should that customer later " deactivate" the service within 180 days of activation, however, T-Mobile would " charge back" the amount of the incentive compensation previously paid in order to reclaim that amount from the sales representative. As explained repeatedly in the compensation program, both generally and specifically with respect to retail sales representative compensation, " [c]ommissions are paid as an advance against commissions anticipated to be earned in the future. Commissions are not earned until the expiration of the 180-day commission charge back window." Accordingly, " if the customer deactivates their [sic] account with [sic] the 180-day period, T-Mobile will revoke the advanced commission it previously paid out."

Significantly, although it set forth general guidelines describing T-Mobile's compensation structure and procedures, the written document outlining the compensation program carried a number of disclaimers. For instance, the front cover of the document prominently included the following boxed statement:

Notice: This document contains guidelines relating to the compensation of certain T-Mobile Sales Professionals. This document and any oral, written or electronic communication related to the subject matter contained in this document are not intended and shall not be read to create any express or implied contract or promise of specific treatment or benefits in specific situations. Your employment relationship with T-Mobile is at-will and either you or T-Mobile can terminate your employment at any time without cause or advance notice. In T-Mobile's sole discretion, this document and the guidelines stated herein may be changed or discontinued at any time without prior notice.

Moreover, with respect to the incentive-based portion of its employees' compensation, " T-Mobile retains sole discretion to determine what transactions qualify for commission payout."

In January 2004, T-Mobile instituted a new " business rule" with respect to its

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accounting for prepaid service plans. Specifically, T-Mobile began to consider a prepaid account to be " deactivated" when the customer did not use his prepaid service for ninety consecutive days. The impetus for this change was to ensure an accurate tally of the number of active subscribers in the company's financial reports. Even though, under the new annual prepaid plan T-Mobile introduced that year, the customer could use his prepaid minutes for up to a year following the date of purchase, the company decided to consider customers with accounts that have been inactive for ninety days no longer to be active subscribers, and their accounts were deemed " deactivated." By July 2004, this new business rule had been implemented throughout T-Mobile's operations, including its incentive commission structure. This meant that sales representatives who received advanced commissions for sales of prepaid accounts, which subsequently were " deactivated" due to ninety days of inactivity during the 180-day commission charge back period, would be charged back for those commissions. According to testimony from William Steele, T-Mobile's Manager of Sales Compensation Design, while the company did not formally amend the compensation program document to include this supplementation to the definition of " deactivation," T-Mobile informed its sales force of this new business rule and its potential impact on sales commissions, as it regularly did when it instituted similar procedural modifications, through the transmission of " sales commission pieces," including conference calls, the company's website, newsletters, bulletins, and formal and informal in-person training.


Vega filed this putative class action in Florida state court on December 29, 2005. The gravamen of his complaint is that, by charging back commissions advanced on sales of " deactivated" prepaid service plans, T-Mobile violated the terms of the compensation program, failed to pay commissions earned by the sales representatives, and was unjustly enriched by retaining the benefit of its employees' services without fully compensating them for such services. Vega's complaint, however, does not expressly connect T-Mobile's alleged payment obligations to any particular contract, including the written compensation program. Indeed, the complaint does not even mention the 2004 Sales Incentive Compensation Program. Instead, with respect to its prepaid-related claims, the complaint simply alleges: (1) that, because prepaid customers paid up-front for their service, T-Mobile " bore no risk of non-payment" ; (2) that when T-Mobile charged its employees back for commissions on prepaid plans, " even though T-MOBILE received the full benefit of its agreement with the prepaid plan customers, T-MOBILE's commission based employees lost the benefits of those sales and the resulting commissions" ; and (3) that " T-MOBILE has unfair [sic] and unjustly profited from its internal systems error by unduly charging back its employees on the prepaid plans and retaining its employee's [sic] wages for its own use and benefit."

The complaint contains two counts: Count I, " unpaid wages," and Count II, unjust enrichment. Both counts seek damages for sales commissions that Vega claims T-Mobile improperly withheld or charged back from its employees.2 Furthermore, assuming or implying (though never expressly alleging in the complaint) that all T-Mobile sales employees were subject to the same compensation program,

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Vega brought his action on behalf of, and sought certification of, a putative nationwide class defined as follows:

All employees of T-Mobile who received, or were entitled to receive, commissions for the sale of T-Mobile prepaid cellular telephone plans who did not receive their commissions or were charged back by T-Mobile for their commissions between the commencement of the statute of limitations through the date that the Court certifies this suit as a class action.


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