On Wednesday, March 12, 2014, Pogust Millrood secured an important victory for plaintiff’s’ attorneys handling wage and hour cases or any kind of class action cases. In Clark v. Bally’s Park Place, U.S. District Judge Joseph Rodriguez of the District of New Jersey certified, under Fed. R. Civ. P. 23, a class of employees who worked at Bally’s Casino in Atlantic City as dealers in the Table Games Department.
The plaintiffs allege that “Bally’s engaged in a systematic and widespread practice of disregarding its contractual, statutory, and regulatory obligations to hourly employees in the Table Games Department  by encouraging off-the-clock work.” The crux of the plaintiffs’ claim is that dealers in this department were required to attend unpaid pre-shift meetings (“Buzz Sessions”) at least twice a week, each spanning five to ten minutes, in order to discuss current promotions, events, and ways to deliver excellent customer service and satisfaction. Accordingly, the plaintiffs sought to represent a class of all dealers within the Table Games Department so that their claims could be collectively litigated.
In spite of the significant obstacles to class certification that have been spawned by the Supreme Court’s opinion in Comcast v. Behrend, 133 S. Ct. 1426 (2013), Plaintiffs’ counsel, led by partner Andrew J. Sciolla, convinced Judge Rodriguez that the common legal and factual questions that exist between the claims of all 668 dealers predominate over any potential individualized inquiries, including what the individual damages and wage loss of each dealer may be. Specifically, the Court found the present case distinguishable from Comcast, an antitrust case, “because the damages calculations are more straightforward than those considered in Comcast.” Judge Rodriguez held that “[a]lthough the nature of the pay rate for each particular class member may differ and the duration of each Buzz Session may slightly differ, this is not the type of individual consideration that overwhelms a class under Comcast.”
The Court was also unpersuaded by Defendants’ argument that determining which dealers actually attended the Buzz Sessions, as well as the frequency and duration of such attendance, was not ascertainable because of an absence of attendance records. Defendants argued that to permit class membership based solely on an employee’s recollection and testimony would effectively deny Bally’s their due process right to challenge class membership. Judge Rodriguez disagreed, finding that “Defendants frustrated its due process rights when it chose to forgo roll call for the Buzz Sessions it required its dealers to attend.” Pointing out that it was Bally’s decision not to keep records of attendance at these mandatory meetings, Judge Rodriguez concluded that “Defendants cannot hide behind its failure to abide by the regulations to insulate itself from a class action on the very issue.”
The case will now proceed as a class action on behalf of all 668 dealers within the Table Games Department at Bally’s Atlantic City, Bally’s Park Place, and the Showboat Atlantic City Hotel and Casino.