JOHNSON & JOHNSON DEFEATS CLASS CERTIFICATION --- A SECOND TIME

by Art Gutman Ph.D., Professor, Florida Institute of Technology

In Gutierrez v. Johnson & Johnson (2006) [467 F.supp 2d 403], four named plaintiffs sought class certification for approximately 8,600 black or Hispanic employees. The suit originated in 2001, and the class included all permanent salaried exempt and nonexempt positions from 35 operating companies across the country dating back to November 1997. The allegations were discrimination in pay and promotion.

In accordance with Federal Rule 23(a), the requirements for class certification are:

(1) Numerosity: the class is so numerous that joinder of all members is impracticable

(2) Commonality: there are questions of law or fact common to the class

(3) Typicality: the claims or defenses of the representative parties are typical of the claims or defenses of the class

(4) Adequacy: the representative parties will fairly and adequately protect the interests of the class

Judge William H. Walls of the District of New Jersey ruled that the plaintiffs failed to meet the burdens for commonality, typicality, and adequacy and denied certification.

The 2006 ruling hinged mainly on commonality, which dictated the rulings on typicality and adequacy. Failure to prove commonality was based on three factors: (1) excessive geographical and occupational diversity; (2) failure to identify any specific policies or practices used for pay and promotion decisions; and (3) failure to produce any expert opinion that the policies developed and implemented by the human resources department were excessively subjective. In contrast, defense expert Dr. James L. Outtz examined J&J policies relating to compensation, performance appraisal, and promotion and concluded that they were “not excessively subjective and are consistent with best practices.”

The plaintiffs then revised their class certification claim, and it was rejected by Judge Walls on July 30,2010 [2010 U.S. Dist. Lexis 77123]. In the second motion, the class size was cut in half, but in the words in Judge Walls:

[T]he revised class definition hardly narrows the original class's excessive occupational and geographical diversity. The class would still include "employees from entry-level positions to upper management, working in different capacities for companies operating in different markets," which this Court has already found overly broad. Indeed, the only types of employees excluded from the revised class are employees in non-exempt positions, technicians, sales employees, and high-level managers. (Pls.' Mem. in Supp. of Renewed Mot. for Class Certif. ("Pls.' Br.") 2.) This Court continues to find that plaintiffs have not identified any common policy that could affect a class as sweeping as this proposed one.



Based on Dr. Outtz’s report, the class continued to include biochemists, engineers, research scientists, physicians, lawyers, and computer specialists, among many others" in thirty-five autonomous companies, prompting Judge walls to rule “courts have denied class certification for putative classes far narrower than that proposed by plaintiffs.” Additionally, the practices used for compensation, performance appraisal, and promotion were deemed to contain objective elements, thus negating any claim of excessive subjectivity.

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