Peterson v. Alaska Communications Systems Group, Inc.

          ORDER ON PLAINTIFFS' MOTION FOR CERTIFICATION OF A RULE 23 CLASS ACTION (DKT. 278)

          TIMOTHY M. BURGESS, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         The matter comes before the Court on the Motion for Certification of a Rule 23 Class Action (the “Motion”) by Plaintiff Laura Lee Peterson and opt-in Plaintiffs Sharon Hubbs and Carrie (McDermott) Shephard (all together, “Plaintiffs”, unless otherwise noted) based on violations of the Alaska Wage and Hour Act (“AWHA”).^[1] Defendants Alaska Communications System Group, Inc. and Alaska Communications Systems Holdings, Inc. (together, “ACS”), oppose the Motion.^[2] The Motion was fully briefed by the parties.^[3] The parties did not request oral argument, and the Court finds that it would not be helpful. For the reasons stated below, Plaintiffs' Motion for Certification of a Rule 23 Class Action is GRANTED.

         II. BACKGROUND^[4]

         Plaintiff Laura Peterson, a former sales employee at ACS, sued ACS on behalf of herself, additional named plaintiffs, and a class of potential plaintiffs for allegedly violating the overtime provisions of the Fair Labor Standards Act (“FLSA”) and the AWHA.^[5] The instant dispute centers on Plaintiffs' allegation that ACS improperly classified them and other Client Account Managers (“CAMs”) as exempt under the outside sales exemption, and that ACS failed to pay overtime in violation of state and federal law.^[6]

         Plaintiffs sought, ^[7] and the Court granted, ^[8] conditional certification of a collective action under the FLSA. Since conditional certification, 21 individuals have opted-in to the FLSA collective action.^[9] To the date of this Order, six of these opt-in Plaintiffs have either withdrawn or been dismissed, and are no longer part of the FLSA collective action.^[10] ACS also filed a motion in limine to exclude Plaintiff Peterson's deposition errata.^[11] After briefing by the parties, ^[12] the Court denied the motion without prejudice but noted that ACS “may also argue that those nine changes warrant little, if any, weight on any other motions (including certification and decertification motions).”^[13]

         Plaintiffs filed the instant Motion on September 29, 2017, seeking to certify a class based on violations of the AWHA.^[14] Plaintiffs state that they seek to appoint Plaintiff Laura Lee Peterson and opt-in Plaintiffs Carrie Shephard and Sharon Hubbs as class representatives of the proposed class.^[15] Plaintiffs propose the following class definition:

All full-time exempt employees who work or worked for ACS in the job position which is currently titled “Client Account Manager (I, II, or III), ” (formerly known as “Account Executive” or, in the case of the Carrier/Federal group, “Senior Manager” or “Sr. CAM”), in the ACS Anchorage office from April 30, 2010 through the date of judgment.^[16]

         Plaintiffs note that they have narrowed the class definition from the proposed definition in the First Amended Complaint.^[17] ACS did not raise any objection or concern with the narrowing of the proposed class definition from the First Amended Complaint.

         ACS filed its Response in Opposition on November 16, 2017, opposing certification of the proposed class.^[18] Plaintiffs filed their Reply to the Response in Opposition on January 24, 2018.^[19]

         III. JURISDICTION

         As a preliminary matter, ACS raises three jurisdictional arguments in its opposition to class certification: (1) the Court should decline jurisdiction over those class members that did not opt into the conditionally certified FLSA collective action;^[20] (2) the Court should decline to exercise supplemental jurisdiction because the state law claims would predominate over federal law claims because of the low proportion of opt-in plaintiffs under the FLSA (16 individuals) as compared to the total number of class members under the state law claims (67 individuals);^[21] and (3) the Court should decline to exercise supplemental jurisdiction because of the exceptional circumstances and compelling reasons that exist as evidenced by six putative class members withdrawing their prior FLSA consents.^[22] For the reasons stated below, the Court disagrees that it lacks jurisdiction over those class members that did not opt into the FLSA collective action, and further concludes that it must continue to exercise supplemental jurisdiction over the related state law claims.

         It is undisputed that the FLSA, as a federally enacted statute, confers federal question subject-matter jurisdiction to the Court.^[23] Moreover, this Court has recognized-in a prior analogous case regarding an FLSA collective action-that the statute conferring supplemental jurisdiction, 28 U.S.C. § 1367(a), only permits a court to decline supplemental jurisdiction under one of the four specifically enumerated categories in subsection (c).^[24] The language conferring supplemental jurisdiction is clear: “…in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.”^[25] Courts that have considered the word “shall” have indicated that the court must exercise this jurisdiction absent exceptions enumerated in subsection (c).^[26] Under this rationale, the Court exercised supplemental jurisdiction here over Plaintiffs' AWHA claim.

         ACS' first argument-that the Court should decline jurisdiction over those class members that did not opt into the FLSA collective action-is without merit. ACS' solely cited case, Bartleson v. Winnebago, addressed whether it was appropriate to grant leave to amend to include class allegations and corresponding state law claims that related to the FLSA claim already asserted.^[27] Bound by Eighth Circuit precedent, ^[28] the Bartleson court held that only employee “class members who have asserted a FLSA claim in this action are properly in federal court; supplemental jurisdiction cannot extend to [employee] class members who have no FLSA claim.”^[29] The Bartleson court concluded that amendment to include state law claims of employees who were not already opt-in plaintiffs in the FLSA certified action would be “futile” or “frivolous.”^[30] The court further denied the motion for certification of a class pursuing relief under the related state law, because the only class members consisted solely of the opt-in plaintiffs, totaling twenty-one members, which was far below the numerosity threshold required under Fed.R.Civ.P. 23(a).^[31]

         ACS argues that the Court should follow the Bartleson court's lead by concluding that the Court lacks jurisdiction over the class members that did not opt in to the FLSA collective action.^[32]But this Court is neither bound nor persuaded by Bartleson.^[33] ACS' argument is contrary to the overwhelming authority in the Ninth Circuit, which routinely exercises supplemental jurisdiction over state law claims brought in a Rule 23 class action in conjunction with claims under the FLSA, including state law claims of class members who did not opt in to the FLSA collective action.^[34]Plaintiffs' FLSA claim and the putative class members' AWHA state law claim derive from a common nucleus of operative fact-ACS' allegedly improper classification of them as exempt employees^[35]-and therefore satisfy the plain language of section 1367 extending supplemental jurisdiction to “all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy.”^[36] Accordingly, the Court rejects ACS' assertion that it lacks jurisdiction over the class members that did not opt in to the FLSA collective action.

         ACS' second and third arguments are based on exceptions enumerated in subsections (c)(2) and (c)(4) of section 1367. The two categories relevantly state that a district court “may decline to exercise supplemental jurisdiction over a claim . . . if-- . . . (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, . . . or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.”^[37] The Court accordingly addresses each exception in turn.

         ACS' argument based on subsection (c)(2) of section 1367-that the low proportion of opt-in plaintiffs to the total class members would lead to state law claims predominating in the litigation^[38]-does not persuade the Court that it can decline supplemental jurisdiction of the AWHA claim. It is well-settled that where state law claims essentially replicate the FLSA claims, they do not predominate such that courts must decline to exercise supplemental jurisdiction under subsection (c)(2), and courts have rejected arguments that numerical disparity between the opt-in class and the proposed Rule 23 class alone is a reason for declining supplemental jurisdiction.^[39]Declining supplemental jurisdiction would be appropriate where “it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought.”^[40] As discussed, the AWHA and the FLSA claims are both based on the purported misclassification of employees as exempt, and the AWHA claim essentially replicates the FLSA claim.^[41] The Court cannot thus hold that the AWHA claim would “substantially predominate” over the FLSA claim, and therefore cannot decline supplemental jurisdiction under subsection (c)(2).

         ACS' argument based on (c)(4) of section 1367-that the number of withdrawn prior FLSA consents evidences exceptional circumstances and compelling reasons-is also unavailing. As Plaintiffs have correctly noted, other courts do not generally find withdrawn FLSA consents, without more, to constitute evidence of exceptional circumstances.^[42] Moreover, the Ninth Circuit has defined “compelling reasons” as used in subsection (c)(4) to mean instances where declining jurisdiction would “‘best accommodate the values of economy, convenience, fairness, and comity.'”^[43] The Court does not find that there are compelling reasons to decline supplemental jurisdiction, nor does the Court find that the six withdrawn FLSA consent forms are an exceptional circumstance where application of subsection (c)(4) is warranted. Six withdrawn FLSA consents, without additional information or factors present, is not sufficient for this Court to conclude that subsection (c)(4) applies.^[44] The Court therefore cannot decline supplemental jurisdiction under (c)(4).

         For these reasons, the Court finds that it continues to have both federal question jurisdiction over the FLSA claim, and supplemental jurisdiction over the AWHA claim.

         IV. LEGAL STANDARD

         Fed. R. Civ. P. 23 governs the appropriateness of certifying a class action in federal court. The decision whether to certify the class “involve[s] a significant element of discretion” by the district court.^[45] “The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties.'”^[46] Rule 23's requirements are not merely a pleading standard to be met.^[47] “[A] district court facing a class certification motion is required to conduct ‘a rigorous analysis' to ensure that the Rule 23 requirements are satisfied.”^[48] This analysis “will entail some overlap with the merits of [Plaintiffs'] underlying claims.”^[49] However, the Court “is required to examine the merits of the underlying claim[s] . . . only inasmuch as it must determine whether common questions exist; not to determine whether class members could actually prevail on the merits of their claims.”^[50] “Sometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiff's claim, and sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.”^[51]

         The first step in the analysis of a motion for class certification is to determine whether the proposed class meets the requirements of Rule 23(a).^[52] These four requirements are: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy.^[53]

         If these four Rule 23(a) requirements are met, the analysis proceeds to a determination of whether the proposed class meets the applicable requirements of Rule 23(b).^[54] Here, Plaintiffs seek certification under subsection (b)(3).^[55] Rule 23(b)(3) provides that certification is appropriate where “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”^[56] In other words, parties seeking certification must meet these two predominance and superiority tests before a class action can be certified under Rule 23.^[57] Only if all of the above Rule 23 requirements are satisfied is class certification appropriate.

         Although ACS will bear the burden on the merits of any AWHA claim, Rule 23 “governs the class certification issue even if the underlying claim arises under state law.”^[58] Under Rule 23, “[t]he party seeking class certification bears the burden of demonstrating that the requirements of Rules 23(a) and (b) are met.”^[59] Accordingly, Plaintiffs bear the burden of demonstrating that class certification is appropriate.

         Here, as explained below, the Court holds that Plaintiffs have satisfied the requirements of Rule 23, and GRANTS the Motion for Certification of a Rule 23 Class.

         V. ANALYSIS

         A. Opt-In Plaintiffs Sharon Hubbs and Carrie Shephard May Be Appointed Class Representatives Without Formal Amendment

         Prior to undertaking the Rule 23 analysis, the Court must first address a disagreement between Plaintiffs and ACS that impacts the Rule 23 analysis. Plaintiffs seek in the Motion to appoint opt-in Plaintiffs Sharon Hubbs and Carrie Shephard as class representatives. In the alternative, Plaintiffs state that opt-in Plaintiffs Hubbs and Shephard are willing to serve as named plaintiffs in this action if the Court requires formal amendment in order to serve as additional class representatives.

         In its opposition, ACS urges the Court to neither permit Hubbs and Shephard to serve as class representatives of the proposed Rule 23 class or to allow Plaintiffs to amend the First Amended Complaint to include Hubbs and Shephard as additional named plaintiffs. ACS states that Plaintiffs' request is not diligent and is prejudicial to ACS, as ACS' defense was based on Plaintiff Peterson's status as the sole class representative, and ACS has not had the opportunity to vet either Hubbs or Shephard as class representatives.^[60] ACS argues that Fed.R.Civ.P. 15 and 16 provide the framework with which to analyze Plaintiffs' request to appoint Hubbs and Shephard as a class representatives or, alternatively, whether amendment to add Hubbs and Shephard as additional plaintiffs is appropriate, and that the Court should decline both of Plaintiffs' requests under this framework.

         The Court agrees that Rule 16 would provide the governing framework in reviewing a request to amend a complaint to add additional named plaintiffs beyond the deadline imposed by the scheduling and planning order.^[61] The Court disagrees, however, that such framework is applicable in determining whether Hubbs and Shephard may be appointed class representatives in addition to named Plaintiff Peterson. As Plaintiffs correctly point out, “Rule 23(a) does not explicitly require that a class representative must be a named plaintiff in the action.”^[62] Courts that have considered the rare circumstance of whether to appoint a non-named plaintiff as an additional class representative have not undertaken a Rule 15 or Rule 16 analysis, nor have they required the pleadings be amended to include class representatives as a named plaintiff in the action.^[63] The Court thus declines both to undertake an analysis under Rule 16 that it is not required to do or to require Plaintiffs to amend the First Amended Complaint to add Hubbs and Shephard as named plaintiffs.^[64]

         The Court is sensitive to ACS' concerns that the appointment of Hubbs and Shephard is prejudicial. However, the Court finds that there is not any prejudice to ACS here from considering and appointing Hubbs and Shephard as class representatives of the proposed class. Plaintiffs relevantly point out that both Hubbs and Shephard have-as opt-in Plaintiffs in the FLSA collective action-extensively participated in discovery by responding to interrogatories, complying with document requests, and individually being deposed for a significant time.^[65] As the Court stated earlier, the FLSA and AWHA claims are essentially replicated claims based on the same facts and circumstances; any unique defense against Hubbs or Shephard regarding their FLSA claim would also be generally applicable to their AWHA claim, and related and necessary documents would already be disclosed through discovery by Hubbs and Shephard. Thus, the Court fails to see any need for additional discovery as to Hubbs and Shephard.^[66] The Court finds no prejudice to ACS and can see no other reason to deny Plaintiffs' request to consider and potentially appoint Hubbs and Shephard as class representatives.

         For the following reasons, the Court holds that opt-in Plaintiffs Hubbs and Shephard may be appointed class representatives - pending satisfaction of the Rule 23 requirements - without formal amendment of the First Amended Complaint.

         B. Whether the Requirements of Fed.R.Civ.P. 23(a) Have Been Met

         1. Numerosity

         The numerosity requirement in Rule 23 is satisfied when “the class is so numerous that joinder of all members is impracticable.”^[67] Although the Supreme Court has instructed that the “numerosity requirement . . . imposes no absolute limitations, ”^[68] in application, a proposed class consisting of less than 16 individuals fails to meet the numerosity requirement.^[69] On the other hand, courts have held that classes of at least 40 individuals easily satisfy the numerosity requirement under Rule 23.^[70] A class size between 16 and 39 individuals presents a closer question of whether numerosity can be satisfied, although courts have found the numerosity requirement satisfied where a class has consisted of 18 or 20 individuals.^[71]

         Here, the parties do not dispute that there are 67 potential class members in the proposed class. Under prior precedent, the proposed class would satisfy the numerosity requirement under Rule 23(a)(1) because joinder of this many individuals would be impracticable.

         ACS, however, argues that the correct number to use for the numerosity analysis is not the 67 potential class members, but rather the 16 individuals who have opted-in to the FLSA collective action as plaintiffs. For this proposition, ACS cites Thiebes v. Wal Mart Stores, Inc. as its sole authority.^[72] However, as Plaintiffs correctly identify, Thiebes is the minority holding amongst district courts in the Ninth Circuit, and the prevailing trend is to consider the overall proposed putative class size for the numerosity requirement, not just the number of opt-in plaintiffs to a related FLSA collective action.^[73] The Court agrees with the prevailing trend that a Rule 23 class numerosity determination is a separate inquiry that is not bound by the number of opt-in plaintiffs in a related FLSA collective action.^[74] Thus, the Court bases its numerosity analysis on the 67 individuals identified by the parties.

         Accordingly, the Court holds that the numerosity requirement is satisfied.

         2. Commonality

         The commonality requirement is satisfied where “there are questions of law or fact common to the class.”^[75] Commonality requires a showing that “the class members have suffered the same injury” and “does not mean merely that they have all suffered a violation of the same provision of law.”^[76] The class claims “must be of such a nature that it is capable of classwide resolution-which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”^[77] For the purposes of commonality, “even a single common question will do.”^[78] The commonality requirement is “less rigorous than the companion requirements of Rule 23(b)(3), ” and is “construed permissively.”^[79] Finally, “[c]ourts ordinarily find that the commonality requirement is satisfied where a putative class of employees challenges their classification as exempt from overtime requirements under state law.”^[80]

         Here, Plaintiffs Peterson, Hubbs, Shephard, and potential class members all work or worked for ACS during the proposed class period as CAMs and challenge their classification as exempt from overtime requirements under the AWHA. Plaintiffs have pointed to evidence in the record that: (1) the primary job duties of CAMs are similar;^[81] (2) their job duties and practices are performed pursuant to common job descriptions, job postings, and performance appraisals;^[82] (3) CAMs are trained on and expected to follow an ACS sales process;^[83] (4) CAMs' job duties and the ACS sales policies require that CAMs work from Defendants' place of business to perform their job;^[84] (5) CAMs regularly have to work over 40 hours per work in order to perform their job;^[85] (6) CAMs are paid pursuant to the similar compensation policies and are not compensated for overtime work;^[86] and (7) ACS classifies CAMs as exempt under the outside sales exemption.^[87]Based on this evidence, Plaintiffs identify several factual and legal questions that are common to the class, including:

         1. What are the principal job duties and tasks performed by CAMs?

         2. What are the indispensable components of the sales efforts performed by CAMs?

         3. Were most or virtually all of the indispensable components of CAMs' sales efforts performed outside the office?

         4. Did ACS classify all CAMs as exempt from overtime based upon the outside sales exemption?

         5. Can ACS prove beyond a reasonable doubt that CAM's “primary duty” was “making sales or contracts for sales, consignments, or shipments, or obtaining orders for services” under the AWHA?

         6. Can ACS prove beyond a reasonable doubt that CAMs were “customarily and regularly engaged away from the employer's place of business” under the AWHA?^[88]

         These identified legal and factual questions get at the heart of the litigation: whether employees working as CAMs were properly classified as exempt under the AWHA. Thus, Plaintiffs have demonstrated there are questions of law or fact common to the class.

         ACS argues that commonality cannot be satisfied where there is no uniform policy dictating how, when, and where CAMs performed duties and spent work hours. ACS cites to evidence in the record that the percentage of time spent on certain tasks varied between individual CAMs.^[89] ACS does not otherwise argue that the CAMs employees are situated differently in their tasks or duties.^[90] But under Ninth Circuit authority, “[t]he existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.”^[91] In other words, class members do not have to be identical - they only have to be similar enough to satisfy the commonality requirement.^[92] Here, the Court concludes that the class members are similarly situated enough that there are common questions of law and fact that can be resolved through classwide resolution.

         ACS' argument is essentially that individual issues predominate among the class; this an argument more appropriate for the predominance inquiry under Rule 23(b)(3) than for the commonality analysis under Rule 23(a).^[93] Rule 23(a)'s “less rigorous” commonality analysis only requires identifying a single common legal or factual question, which Plaintiffs have satisfied. Arguments advanced by ACS, including that there is a lack of common proof such as the absence of company-wide policies governing how employees spend their time or the absence of uniformity in work experiences, are more appropriately discussed under the more rigorous predominance analysis in subsection (b)(3).^[94] The Court therefore addresses these arguments under the predominance inquiry.

         Thus, the Court holds that the commonality requirement is satisfied.

         3. Typicality

         The typicality requirement is satisfied where “the claims or defenses of the representative parties are typical of the claims or defenses of the class.”^[95] “The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.”^[96] This requirement is “permissive, such that representative claims are ‘typical' if they are reasonably coextensive with those of absent class members; they need not be substantially identical.”^[97] “A court should not certify a class if ‘there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.'”^[98]

         Plaintiffs contend that they allege similar injuries and pursue the same claims as the proposed class members based on the same course of conduct and the same legal theory: that ACS improperly classified CAMs as exempt outside salespeople and that this misclassification violates the AWHA. Plaintiffs argue that their claims are therefore “reasonably coextensive” with those of absent class members. ACS, on the other hand, argues that typicality fails due to three reasons: (1) Plaintiffs failed to produce evidence that the job duties were similar across the class; (2) Plaintiff Peterson will be subject and preoccupied with responding to alternative exemption defenses that are not otherwise common, typical or predominant; and (3) Plaintiff Peterson will be subject and preoccupied with responding to attacks to her credibility on material issues related to her work.

         The Court agrees that Plaintiffs have demonstrated that their claims are “reasonably coextensive” with those of the absent class members. First, despite ACS' contentions, Plaintiffs have demonstrated significant similarities between CAMs, including: performance of the same job duties and tasks; performance of these duties and tasks under similar job descriptions, postings, and performance appraisals; training on and expectations of adhering to a specific sales process; performance of these duties and tasks primarily from the ACS office in Anchorage; expectation of working more than 40 hours a week; payment under the same compensation policies, which did compensate for overtime; and their classification as exempt under the outside sales exemption.^[99]Plaintiffs have provided evidence that they have been injured by ACS' failure to provide overtime compensation, that they share this injury with members of the proposed class, and that this injury stems from the same conduct, including classification as exempt, similar policies and practices, and similar duties and tasks.^[100] Plaintiffs have therefore demonstrated that their claims are reasonably co-extensive with those of the proposed class members.

         ACS' contention that Plaintiff Peterson is subjected to unique defenses is also without merit. ACS raises the specter of a defense unique to Plaintiff Peterson - that there is an alternate basis for her exemption - without adequately establishing or explaining how such defense would be unique or applicable as to her. The record demonstrates that ACS classified all CAMs, including Plaintiff Peterson, as subject only to the outside sales exemption.^[101] Moreover, as Plaintiffs relevantly point out, ACS later contends that numerous other class members, including Plaintiff Peterson, are subject to these same defenses, suggesting that any such defense would not be unique to Plaintiff Peterson and could potentially be resolved through classwide resolution.^[102] Because ACS does not demonstrate how Plaintiff Peterson is subject to a unique defense-and the Court cannot determine how these defenses are unique to or applicable to Plaintiff Peterson-the Court rejects ACS' argument that Plaintiff Peterson's AWHA claim is not typical.^[103]

         Finally, the Court rejects ACS' contention that Plaintiff Peterson is atypical because of credibility concerns. Some courts do not consider credibility part of the typicality analysis, ^[104] while other courts consider that credibility for both the adequacy and typicality analyses.^[105] Where courts have considered credibility in assessing the appropriateness of a class representative, they have held that “credibility issues will defeat typicality only where those credibility problems are directly relevant to the issues in the case, and are ‘so sharp as to jeopardize the interests of absent class members.”^[106] Courts that have considered credibility explain that “th[is] standard is extremely difficult to satisfy, ” and is limited to “flagrant cases where putative class representatives display an alarming unfamiliarity with the suit, display an unwillingness to learn about the facts underlying their claims, or are so lacking in credibility that they are likely to harm their case.”^[107]

         ACS' argument is an extension of a dispute between the parties involving Plaintiff Peterson's deposition testimony, and her subsequent errata sheet which altered responses Plaintiff Peterson gave during her deposition.^[108] ACS at the time categorized the nine challenged and inconsistent statements into three categories: (1) statements regarding Plaintiff Peterson's resume; (2) statements regarding her responsibilities at ACS; and (3) familiarity with duties performed by other sales employees.^[109]

         While some of these statements may have relevance to the issues in the litigation, the Court cannot conclude, on the basis of the evidence in the record, that such credibility issues are so sharp as to jeopardize absent class members, nor is this a flagrant case where credibility concerns are likely to predominate or preoccupy the litigation. Plaintiff Peterson previously explained that many of her clarifications to her deposition transcript in the errata were consistent with statements made throughout the deposition.^[110] Based on the record before it, including the deposition transcript^[111]and the explanations offered by Plaintiff Peterson, the Court determines that Plaintiff Peterson's corrections to her testimony do not rise to the level that would implicate the typicality requirement.^[112]As ACS does not otherwise make any other credibility challenges under typicality, the Court rejects ACS' argument that Plaintiff Peterson is atypical based on credibility concerns.

         Thus, the typicality requirement is satisfied.

         4. Adequacy

         The adequacy requirement is satisfied where “the representative parties will fairly and adequately protect the interests of the class.”^[113] A determination of adequacy involves a two-part inquiry: “(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?”^[114] In this determination, courts have reviewed numerous factors, including “the qualifications of counsel for the representatives, an absence of antagonism, a sharing of interests between representatives and absentees, and the unlikelihood that the suit is collusive.”^[115]

         Here, Plaintiffs assert that they harbor no known conflicts of interest with the potential class members, that they are fully prepared to prosecute this action, and that their counsel is well qualified and experienced in labor class actions.^[116] The Court agrees that there is no indication of conflicts of interest between Plaintiffs and other class members, and that Plaintiffs and their counsel appear ready to prosecute the action vigorously on behalf of the class. On this basis, Plaintiffs appear to have met the adequacy requirement under subsection (a)(4).

         ACS does not dispute these points. Instead, ACS argues that Plaintiffs Peterson and Hubbs are not adequate class representatives due to credibility issues.^[117] The Court has already determined Plaintiff Peterson's credibility issues do not rise to the level where they would implicate her typicality; the Court extends its reasoning to hold that it does not implicate her adequacy to serve as a class representative.^[118] Plaintiff Hubb's potential credibility issues- namely, ACS' assertion that her deposition testimony is inconsistent with a resume or application she drafted after she left ACS-are similarly not significant enough to implicate the adequacy analysis.^[119]

         Accordingly, the adequacy requirement is satisfied.^[120] Thus, Plaintiffs have demonstrated that the proposed class has satisfied the requirements of Rule 23(a).

         C. Whether the Requirements of Fed. R. Civ. P 23(b) Have Been Met

         1. Predominance of Common Questions

         Rule 23(b)(3) first requires that “the questions of law or fact common to class members predominate over any questions affecting only individual members.”^[121] “The predominance inquiry focuses on ‘the relationship between the common and individual issues' and ‘tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.'”^[122] “While Rule 23(a)(2) asks whether there are issues common to the class, Rule 23(b)(3) asks whether these common questions predominate.”^[123] Although courts have noted there is overlap between the commonality requirement under (a)(2) and the predominance inquiry under (b)(3), the predominance inquiry “is far more demanding.”^[124]

         The Ninth Circuit has provided additional guidance and considerations in determining whether to certify a class action challenging employees' exemption classification. First, the Ninth Circuit has made it clear that a uniform exemption policy, while “a permissible factor for consideration under Rule 23(b)(3), ”^[125] cannot by itself be used to establish that common issues predominate, and cannot be used “to the near exclusion of other factors relevant to the predominance inquiry.”^[126] Second, the outside salesperson exemption “will militate against certification because . . . it requires a fact-intensive inquiry into each potential plaintiff's employment situation.”^[127] Third, certification of a class challenging the outside salesperson exemption is appropriate where there are “centralized rules . . . suggest[ing] a uniformity among employees that is susceptible to common proof, ”^[128] and where “the employer exercised some level of centralized control in the form of standardized hierarchy, standardized corporate policies and procedures governing employees, uniform training programs, and other factors susceptible to common proof.”^[129]

         The Court begins by noting that determining whether common questions will predominate over individual questions here is a close question. Evidence pointed to by both ACS and Plaintiffs have made this an especially tough determination. Having considered the record before it, the Court determines that Plaintiffs have demonstrated that common questions will predominate over individual questions.

         First, Plaintiffs pointed to evidence in the record that CAMs in the Anchorage office all performed the same job duties and tasks, and that these duties and tasks were reflected in job descriptions, job postings, and performance appraisal materials.^[130] Second, ACS exercised close control over the sales process, by both training CAMs on their specific sales process, and expecting CAMs to follow this sales process when interacting with clients.^[131] For instance, the “Alaska Communications Sales Process” is defined by a seven step process, including: (1) “Call Preparation/Pre-Work;” (2) “Customer Appointment;” (3) “Vision Confirmation;” (4) “Solution Development;” (5) “Proposal Preparation;” (6) “Working the Power map;” and (7) “Client Decision/Closing.”^[132] Testimony from current and former CAMs, as well as ACS management, reflect that this sales process is closely followed by CAMs, and that ACS exercised control over this process through controlling the pricing of products, establishment of sales revenue quotas, and routine check-in meetings of CAMs work.^[133] Third, evidence shows that CAMs - following the ACS sales process - conducted these duties and tasks primarily from the ACS office in Anchorage, and this process regularly required CAMs to work in an excess of 40 hours per week.^[134] Finally, CAMs' work schedules were subject to control by ACS, CAMs were paid under the same compensation policies, and all CAMs were classified as exempt under the outside sales exemption.^[135]

         The collective evidence demonstrates that there is uniformity that is susceptible to common proof. The proposed class is unlike the proposed classes in Vinole^[136]or In re Wells Fargo;^[137] here, Plaintiffs have pointed to several uniform policies and practices beyond just the uniform outside sales exemption. For instance, Plaintiffs have pointed to the uniform job descriptions and job appraisal forms of CAMs, the uniform ACS sales process for which CAMs receive training, and are expected to adhere to in their employment, ACS' close management and supervision of CAMs, and the uniform policy of requiring CAMs to work more than 40 hours per week. Plaintiffs have also highlighted deposition testimony that demonstrates that, while the percentage of time spent on certain tasks and duties varies by each CAM, the jobs and duties of CAMs closely follow the ACS sales process. Although the percentages of the tasks and duties performed by CAMs varied by individual, CAMs only varied in their time spent out of the office between 10% and 30%, and otherwise performed the same tasks and duties and were subject to the same supervision, training, and guidance. District courts have found the predominance inquiry satisfied under similar factual and evidentiary circumstances.^[138] Moreover, to the extent that ACS argues that the proposed class members lack common proof as to each member's damages due to a lack of time keeping records, individualized damages alone cannot defeat a finding that the predominance inquiry is satisfied.^[139] Accordingly, as Plaintiffs have provided evidence that common questions predominate over the individual questions, the predominance inquiry is satisfied.

         ACS additionally argues that individual issues will predominate because some class members may have to defend against the invocation of two additional exemptions: (1) the administrative exemption; and (2) the highly compensated exemption. But neither of these affirmative defenses will lead to individual issues predominating over the common questions of law and fact, as-based on the evidence in the record demonstrating similarly situated CAMs- both the administrative exemption and the highly-compensated exemption are amenable to classwide resolution.

         Alaska law provides that individuals employed “in a bona fide executive, administrative, or professional capacity” are exempt under the AWHA.^[140] The AWHA states that the meaning of “bona fide executive, administrative, or professional capacity” has the meaning as interpreted under the FLSA.^[141] In interpreting the FLSA, the Ninth Circuit has noted that the administrative exemption covers work which “contributes to running the business itself” or “determin[es the business'] overall course or policies.”^[142] FLSA guidelines further highlight that the selling of products or services generally does not qualify for the administrative exemption.^[143] Additionally, under the FLSA, “[a]n employee with annual compensation of at least $100, 000 is deemed exempt . . . if the employee customarily and regularly performs any one of more of the exempt duties or responsibilities of an executive, administrative or professional employee.”^[144] The highly compensated exemption is not satisfied where the primary role of an employee is sales.^[145]

         To the extent these exemptions are applicable in the present case, they would not raise the type of individualized inquiries which defeat predominance. In contrast to cases in which putative class members had different job titles and performed a wide range of tasks, ^[146] CAMs at ACS all held the same job and performed substantively the same duties and tasks under a uniform sales process.^[147] Whether the common duties and tasks of CAMs contributed to the running of ACS, or of determining ACS' overall course or policies is a question ...