Bass, Berry & Sims attorney Chris Lazarini provided insight on the case of Marcus vs. AXA Advisors, LLC in which the court denied plaintiffs' motion for class certification on the grounds that they failed to demonstrate that the putative sub-classes met the commonality and typicality requirements for class certification under Fed. R. Civ. P. 23. Chris provided the analysis for Securities Litigation Commentator (SLC). The full text of the analysis is below and used with permission from the publication. If you would like to receive additional content from the SLC, please visit the SLC website to sign up for the newsletter.
Marcus vs. AXA Advisors, LLC, No. 11-CV-2339 (S.D. N.Y., 3/31/15)
Plaintiffs seeking class certification must demonstrate compliance with Fed. R. Civ. P. 23 by a preponderance of the evidence.
Plaintiffs initiated this putative class action in May 2011, alleging that AXA Advisors and other related AXA companies ("AXA") violated the Fair Labor Standards Act and the New York Labor Law by mis-classifying persons as independent contractors and outside sales agents exempt from the statutory minimum wage and overtime requirements. Plaintiffs proposed two sub-classes. The first sub-class included persons who had signed pre-employment "independent contractor" agreements with AXA. Those agreements covered the time during which the persons obtained their securities and insurance licenses and met an initial production credit requirement after being licensed. This group was not paid by AXA during the study phase of their relationship and received commissions on production credits once they obtained the required licenses. The second sub-class included persons who had become full-time "outside" sales agents. This group entered into an at-will employment agreement with AXA and could elect to be paid solely on commissions or on a base salary with reduced commissions.
The Court denies Plaintiffs' motion for class certification, finding that Plaintiffs failed to demonstrate that the putative sub-classes met the commonality and typicality requirements for class certification under Fed. R. Civ. P. 23. On the question of commonality, the Court finds that, although the sub-classes presented common questions and common wrongs, there was no likelihood of finding common answers as to whether the members of the sub-classes were independent contractors or outside sales agents. In the case of pre-employment associates who were not yet licensed, the Court finds that Plaintiffs failed to show commonality among the various AXA branches on issues such as when and where they were expected to study for the licensing exams and whether they were expected to solicit business prior to being licensed. In the case of at-will associates, Plaintiffs failed to demonstrate commonality because there were substantial variations in how the members of this group conducted the business of selling AXA products. The Court finds that the differing practices required individualized proof on the merits of each person's classification, leaving the commonality requirement unsatisfied.
In contrast, the Court finds that Plaintiffs satisfied the commonality standard for persons who had obtained their licenses and were working toward getting the required initial production credits, because those persons were supervised and controlled similarly among the AXA branches. For this group, the Court then examines whether the sole proposed class representatives satisfied Rule 23's typicality standard. Labeling it a close call, the Court determines that the proposed class representative was not typical of this sub-class, because his affiliation with AXA lasted only three months, he did not get his licenses, and he was not familiar with the practices in AXA branches other than the one in which he worked. In dicta, the Court notes that, while these factors defeated typicality, they were not sufficient, standing alone, to defeat the adequacy standard.