Lusardi v. Xerox Corp.
| Decision Date | 16 September 1992 |
| Docket Number | 91-5890,No. 91-5890,No. 91-5846,Nos. 91-5846,91-5846,s. 91-5846 |
| Citation | 975 F.2d 964 |
| Parties | 59 Fair Empl.Prac.Cas. (BNA) 1384, 59 Empl. Prac. Dec. P 41,753, 23 Fed.R.Serv.3d 905 Jules LUSARDI; Walter N. Hill; James Marr, Jr.; and John F. Weiss, individually, and on behalf of all other persons similarly situated; Arthur Brickman; Martin J. Cocca; Carl B. Heisler; Raymond C. Loyer; Donald P. Miller; Robert C. Patterson; Anthony T. Salvatore; Eldon Sheldon; Michael Sylvestri, individually, and on behalf of all other persons similarly situated v. XEROX CORPORATION, A New York Corporation, Jules Lusardi, Walter N. Hill, James Marr, Jr., John F. Weiss, Arthur Brickman, Martin J. Cocca, Carl B. Heisler, Raymond C. Loyer, Donald P. Miller, Robert C. Patterson, Anthony T. Salvatore, Eldon Sheldon, Michael Sylvestri, Bruce A. Blackie, Richard Vinson, Edward Brough, and Charles L. Meador, AppellantsJules LUSARDI; Walter N. Hill; James Marr, Jr.; and John F. Weiss, individually, and on behalf of all other persons similarly situated; Arthur Brickman; Martin J. Cocca; Carl B. Heisler; Raymond C. Loyer; Donald P. Miller; Robert C. Patterson; Anthony T. Salvatore; Eldon Sheldon; Michael Sylvestri, individually, and on behalf of all other persons similarly situated v. XEROX CORPORATION, A New York Corporation, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
Robert L. Deitz (argued), Perkins Coie, Washington, D.C., Robert H. Jaffe, Jaffe & Schlesinger, Springfield, N.J., Alan S. Weitz, Ginsburg, Feldman & Bress, Washington, D.C., for appellants cross appellees.
Carmine A. Iannaccone (argued), Hannoch Weisman, Roseland, N.J., for appellee cross appellant.
Before: GREENBERG and NYGAARD, Circuit Judges and POLLAK, District Judge. *
This appeal presents the question whether a trial court has jurisdiction to entertain a motion for class certification brought by putative class representatives who have previously settled their individual claims. The district court decided that there was no longer a live "case or controversy" and dismissed the class certification motion as moot. Because we conclude that the district court correctly determined that it lacked jurisdiction to address the merits of the class certification issue once there was neither a plaintiff nor a class, we affirm.
This age discrimination case, filed in the District Court for the District of New Jersey more than nine years ago, is, from a procedural perspective, a cautionary tale. It has been assigned to three different district court judges and has twice been addressed here. As this case comes to this court for the third time, some irony attaches to efforts to breathe new life into age discrimination claims that are so old.
On March 8, 1983, Jules Lusardi and three other former employees filed a class action against the Xerox Corporation ("Xerox"), alleging violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1985). An amended complaint, filed March 24, 1983, claimed that between 1980 and 1983 Xerox engaged in a nationwide policy and practice of targeting older salaried workers for workforce reductions to create openings for younger employees. 1 Plaintiffs sought certification of a class consisting of various former, present and future salaried employees of Xerox. On August 31, 1983, Judge Stern refused to allow a Rule 23(b)(2), Fed.R.Civ.P., class action, but ordered that he would conditionally certify an opt-in class under § 7(b) of the ADEA upon the filing of a second amended complaint. 2 The second amended class action complaint, filed October 6, 1983, added nine additional named plaintiffs, making a total of thirteen.
On January 31, 1984, Judge Stern conditionally certified an ADEA class including Xerox salaried employees in the 40-70 age group "who in the period May 1, 1980 through March 31, 1983 have been terminated or required to retire from employment at an age less than seventy...." App. at 94. . The conditional certification was entered without prejudice to the respective parties' rights to move for decertification of the class. On February 1, 1984, Xerox appealed Judge Stern's order and petitioned for a writ of mandamus. This court denied Xerox's petition for mandamus and, thereafter, dismissed the appeal for lack of jurisdiction, concluding that a conditional certification order was not a properly appealable final judgment or "collateral order". See Lusardi v. Xerox Corp., 747 F.2d 174 (3d Cir.1984).
Following the dismissal of the appeal, the named plaintiffs sent notices of the litigation to more than 23,500 past and present Xerox employees, 1,312 of whom elected to join the conditionally certified class. From those 1,312, the parties agreed to choose a random fifty-one conditional class members to determine whether the opt-ins were "similarly situated" to the thirteen named plaintiffs within the meaning of 29 U.S.C. § 216(b), as incorporated by 29 U.S.C. § 626(b). Upon completion of discovery on class action issues, Xerox moved to decertify the class; at about the same time, the case was reassigned to Judge Lechner. Judge Lechner granted Xerox's motion to decertify the class on the ground that the members of the proposed class were not similarly situated. 3 See Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.1987).
Plaintiffs appealed Judge Lechner's decertification order and petitioned for a writ of mandamus. This court dismissed plaintiffs' appeal as interlocutory, but granted plaintiffs' petition for a writ of mandamus, directing the district court to vacate its holding insofar as it purported to require an individual to file timely age discrimination charges with the EEOC before joining the class action. See Lusardi v. Lechner, 855 F.2d 1062 (3d Cir.1988). On remand, Judge Lechner noted that the portion of his prior opinion dealing with administrative filing requirements was "not a key element in [his] reasoning", and concluded once again that the opt-ins were not similarly situated and the class should be decertified. See Lusardi v. Xerox Corp., 122 F.R.D. 463, 464 (D.N.J.1988). A notice of decertification was sent out to the former members of the conditional class informing them that their consents to join the action had been revoked and that they were no longer members of the class and could pursue their claims as individuals.
Following Judge Lechner's second order decertifying the class, Xerox requested that Judge Politan--to whom the case had meanwhile been reassigned 4--sever the individual claims of the named plaintiffs and order separate trials or, alternatively, consolidate the claims for the limited purpose of trying the common allegation of a corporate practice of age discrimination. On April 24, 1989, Magistrate Judge Hedges, to whom Judge Politan had referred the case, ordered a consolidated trial on the issue of corporate policy and separate trials on the thirteen individual claims. 5
After lengthy settlement negotiations, the parties entered into a Memorandum of Understanding (MOU) in December 1990, in which the named plaintiffs agreed to a "full and unconditional General release of all claims in the Action, Covenant not to Sue, and Stipulation of Confidentiality.... relating to settlement of all individual claims in the Action, including any such individual claims based upon an allegation of a pattern or practice of age discrimination." App. at 1932. With regard to the certification issue, the MOU stated:
[T]he parties acknowledge that it is the plaintiffs' intention to make application to the Court as putative class representatives, for a hearing seeking recertification of a class. Xerox, however, makes no representations or warranties and takes no position as to the merits of plaintiffs' standing or legal entitlement to continue to act as putative class representatives. Plaintiffs expressly assume all risks and responsibilities associated with their intention to continue to act as putative class representatives and any failure of plaintiffs to perfect their standing to assert class claims shall not vitiate this agreement.
App. at 1931. The MOU further provided on this issue:
7. Xerox agrees that it will not assert that the within settlement is a bar to plaintiffs' attempt to move for recertification or to seek an intervenor for class certification.
8. Xerox agrees that it will not invoke the law of the case doctrine or otherwise argue that the findings and decisions of the Honorable Alfred E. Lechner ... bar or otherwise preclude the Court from considering, and ruling upon an application by plaintiffs to recertify a class.
9. Nothing in this Memorandum, however, shall be deemed to constitute a waiver of any objection or defense by Xerox Corporation as to the propriety or sufficiency of any proposed class or any other representative action or of plaintiffs' right or ability to maintain a class or any other representative action.
Pursuant to the terms of the MOU, the parties then executed the "General Release, Covenant Not to Sue, and Stipulation of Confidentiality" ("the Agreement"). In the Agreement, the named plaintiffs released Xerox of liability for any individual claims in that case, and each plaintiff reserve[d] [his or her] right to act as a class representative upon the express understanding that any relief secured by any such class shall not obligate Xerox to pay me or my attorneys any additional sums relating to claims under this Release beyond those paid to me and my attorneys pursuant to this settlement.
App. at 1941. The Agreement continued "I fully understand that Xerox takes no position as to my ability to continue to act as a class representative after the execution of this Release, but Xerox will not oppose my...
To continue reading
Request your trial
-
German By German v. Federal Home Loan Mortg. Corp.
...and for this reason as well as those described above, the motion will be denied. While the Third Circuit held in Lusardi v. Xerox Corp., 975 F.2d 964 (3rd Cir.1992)2 that the class representative's claim must be live at the time that the motion to certify is filed, the Second Circuit has re......
-
Thornton v. Mercantile Stores Co., Inc.
...1498 (6th Cir.1994)(table, text in Westlaw); Thompson v. County of Medina, Ohio, 29 F.3d 238, 241 (6th Cir.1994); Lusardi v. Xerox Corp., 975 F.2d 964, 983 n. 33 (3d Cir.1992); Player v. Maher Terminals, Inc., 841 F.2d 1123 (4th Cir.1988) (table, text in Westlaw); Christensen v. Kiewit-Murd......
-
MCI Telecommunications Corp. v. Teleconcepts, Inc.
...order is apparent and the opposing party is not prejudiced and has a full opportunity to brief the issues.' " Lusardi v. Xerox Corp., 975 F.2d 964, 972 (3d Cir.1992) (quoting Williams v. Guzzardi, 875 F.2d 46, 49 (3d Cir.1989)). These factors are present We have repeatedly held that " 'sinc......
-
Carlough v. Amchem Products, Inc.
...that these side agreements require dismissal of this class action as moot under the recent Third Circuit case of Lusardi v. Xerox Corp., 975 F.2d 964, 983 (3d Cir.1992). In Lusardi, former employees brought an age discrimination class action case against their employer. After the case was f......
-
Sixth Circuit Announces Stricter Standard For Sending Notice In FLSA Collective Actions
...whether individuals were "similarly situated" was lenient. First articulated by the District of New Jersey in Lusardi v. Xerox Corp, 975 F. 2d 964 (3d Cir. 1992), courts adopted a two-step approach to this question: first, at a stage called "conditional certification," a federal district co......