United States District Court, W.D. Arkansas, Fayetteville Division
MARK FOCHTMAN, et al., Individually, and on Behalf of All Others Similarly Situated PLAINTIFFS
v.
DARP, INC.; HENDREN PLASTICS, INC.; and JOHN DOES 1-29 DEFENDANTS
OPINION AND ORDER
Timothy L. Brooks, Judge
Now
pending before the Court are Defendant DARP, Inc.'s
("DARP") Motion to Stay Order Granting
Plaintiffs' Proposed Plan of Notice (Doc. 69) and
Defendant Hendren Plastics, Inc.'s ("Hendren
Plastics") Motion for Reconsideration (Doc. 72) of the
Court's Order granting class certification. Both Motions
bring to the Court's attention that after the
Court certified a class action under Rule 23 of the Federal
Rules of Civil Procedure, and after the Eighth
Circuit denied Defendants' separate petitions for
permission to appeal the class certification decision on an
interlocutory basis, see Doc. 64-1, the Arkansas
General Assembly passed Act 853 (Doc. 74-8), which purports
to amend the Arkansas Minimum Wage Act ("AMWA") in
a number of material ways. The parties advise that the Act
will become law in July of 2019; however, Defendants both
contend that at least two of the new provisions of the Act
should be retroactively applied, and that retroactive
application warrants either staying the issuance of class
notice or reconsidering and reversing the Court's
decision on class certification altogether. Plaintiffs filed
a single Response (Doc. 74) in opposition to both of
Defendants' motions, which the Court has also considered.
After
reviewing the briefing on the motions, as well as the text of
Act 853, it appears that DARP's motion focuses on only
one amendment to the Act, while Hendren Plastics' motion
focuses on that amendment, plus one more. Of course, Act 853
contains multiple amendments to the AMWA, but since
Defendants base their requests for relief on only two of
those amendments, the Court will confine its discussion to
the two amendments discussed in the motions. They are:
(1) a new requirement that employees who wish to become
"party plaintiffs" to an AMWA class action first
give consent in writing, or "opt in" to such
actions (Act 853, Section 4); and
(2) the elimination of the $0.30 per-hour cap on the value of
employer-provided, in-kind services to employees, such as
board, lodging, apparel, and facilities (Act 853, Section 2).
(Doc. 74-8).[1]
The
Court begins its analysis with DARP's and Hendren
Plastics' argument that the new "opt in" class
action requirement of Act 853 should be given retroactive
application to the instant case. According to the Arkansas
Supreme Court, an amendment to an existing law is generally
presumed to apply prospectively, rather than
retrospectively, unless otherwise stated in the text of the
amendment itself. Bean v. Office of Child Support
Enf't, 340 Ark. 286, 296 (2000). Here, the text of
Act 853 does not indicate that its provisions are to be given
retroactive effect.
There
is an exception to this rule of retroactivity, and it applies
when an amendment is considered procedural or remedial in
nature, rather than substantive. A procedural or remedial
amendment should be considered retroactive even if the
Arkansas legislature does not specify that intent in the text
of the amendment itself. Bean, 340 Ark. at 297. In
general, when an amendment to a particular law provides a new
or more appropriate remedy to enforce an already existing
right or obligation, the change is considered procedural; but
when an amendment "disturb[s] vested rights, orcreate[s]
new legal obligations," the change is considered
substantive. Id. To determine whether an amendment
is remedial, a court must consider "the spirit which
promoted its enactment, the mischief sought to be abolished,
and the remedy proposed." Id.
In
analyzing the new "opt in" requirement for AMWA
class actions, as contained in Act 853, the Court finds that
it is procedural in nature, rather than substantive. Even so,
that amendment will not be given retroactive application here
due to the Supreme Court's holding in Shady Grove
Orthopedic Associates, P.A. v. Allstate Insurance Co.,
559 U.S. 393, 409 (2010). In Shady Grove, the Court
determined that Rule 23, which is, of course, a federal rule
of procedure, trumps any state law that is also procedural in
nature and that conflicts with it. As Justice Scalia, writing
for the Court, explained, a plaintiff litigating in federal
court "may bring his claim in a class action if he
wishes," as "Rule 23 automatically applies
'in all civil actions and proceedings in the United
States district courts.'" Id. at 400
(quoting Fed.R.Civ.P. 1) (emphasis in
original).[1]
We are
in federal court, not state court, and the class in the case
at bar was certified under Federal Rule of Civil Procedure
23. As such, it remains an "opt out" class, and Act
853's purported amendment does not apply. Since Defendant
DARP, Inc.'s Motion to Stay (Doc. 69) is premised
entirely on the retroactive application of the "opt
in" requirement of Act 853, IT IS
ORDERED that the Motion is DENIED
for the reasons stated above.
Hendren
Plastics' Motion to Reconsider argues that the
Court's decision to grant class certification should be
reconsidered for two reasons. First, Hendren Plastics
maintains that Act 853's new opt-in requirement
necessitates reconsideration of class certification. As
explained above, that argument is rejected because the
Act's opt-in provision is trumped by Rule 23. Second,
Hendren Plastics contends that the Court should reconsider
its Order because of the Act's elimination of the $0.30
per-hour cap on the value of employer-provided, in-kind
services. This second argument merits a bit more discussion.
The
Court disagrees with Hendren Plastics that any aspect of the
class certification Order turned on the existence of the
$0.30 cap. The Order emphasized that all class members
received the same types of in-kind compensation from DARP
(meals, lodging, and other amenities) when they resided
there. The Order also observed that the Court was "not
persuaded" that any variations in the particular in-kind
benefits that the residents received "were so
significant that they cannot be easily accounted for in the
calculation of damages, if such becomes necessary."
(Doc. 53 at 9). Finally, though the Court did note that the
$0.30 statutory cap on in-kind credits "would make the
damages calculation a bit more straightforward than
Defendants would have the Court believe" (if it came to
calculating damages at all), the bottom line was that
"[a]ny variations in the in-kind benefits DARP provided
to its residents [were] not significant enough to defeat
class certification, in the Court's view."
Id. at 10.
For a
court order to merit reconsideration under Rule 60(b), the
movant must identify some mistake in the order, or else
identify newly discovered evidence that the court did not
previously consider before issuing the order. Fed.R.Civ.P.
60(b). Alternatively, reconsideration could be warranted if
the movant pointed the court to another party's
commission of fraud, misrepresentation, or other misconduct
that would justify reconsideration of the court's earlier
decision. Id. Taken together, what all of this means
is that a request for reconsideration of a court order is
"extraordinary relief that should only be granted
"upon an adequate showing of exceptional
circumstances." Williams v. York, 891 F.3d 701, 706 (8th
Cir. 2018) (quotation and citation omitted). Here, Hendren
Plastics has not identified any reason under Rule 60(b) to
reconsider the Court's class certification Order. Even if
Section 2 of Act 853 were given retroactive effect- which is
a big "if," in the Court's view-the deletion of
the statutory cap on the valuation of in-kind services would
not cause the Court to find that class ...