Cite as 2020 Ark. 354 SUPREME COURT OF ARKANSAS No. CV-19-907
Opinion Delivered: October 29, 2020
KOPPERS, INC. APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT V. [NO. 60CV-16-3025]
KELVIN TROTTER, NATHANE DAVIS, HONORABLE CHRISTOPHER LONZO ALLEN, AND KEN PIGGEE, CHARLES PIAZZA, JUDGE INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED AFFIRMED. APPELLEES
RHONDA K. WOOD, Associate Justice
Koppers, Inc., appeals the circuit court’s order granting class certification of appellees’
complaint. Appellees—class plaintiffs below—were Koppers employees and alleged Koppers
failed to pay them for time spent changing into and out of protective equipment. Koppers
claims its liability cannot be established on a classwide basis because whether a plaintiff can
recover depends on individualized facts. We find no abuse of discretion and affirm.
I. Facts and Procedural Background
In June 2016, Koppers hourly employees Kelvin Trotter, Nathane Davis, Lonzo Allen,
and Ken Piggee filed this action against Koppers. Koppers operates a crosstie treatment
facility in North Little Rock, Arkansas. According to a Koppers-supplied affidavit, Koppers
employs approximately sixty-five hourly employees at the facility. These employees fill thirty different positions that fall within four various departments: unloading, treating, shipping,
and maintenance. Regardless of position or department, Koppers requires all hourly
employees to wear a similar uniform. All hourly employees must “don” (put on) a uniform
consisting of either coveralls or a long-sleeved shirt and pants, a hard hat, boots, and safety
glasses. The employees don at a bathhouse before they walk to their respective workstations.
Toward the end of the shift, all hourly employees must return to the bathhouse to “doff”
(take off) the uniform before leaving the facility.
Plaintiffs alleged Koppers did not pay them for the time they spent donning and
doffing their uniforms and protective equipment, or for the time spent walking to and from
their workstations. As a result, plaintiffs allege Koppers did not pay them for working
overtime in violation of the Arkansas Minimum Wage Act (“AMWA”). Ark. Code Ann. §
11-4-211(a) (Supp. 2019). Plaintiffs moved to certify a class, and the circuit court granted the
motion. Koppers appealed and argued the order did not comply with the mandatory
requirements of Arkansas Rule of Civil Procedure 23. This court agreed and remanded for
entry of a compliant order. Koppers, Inc. v. Trotter, 2019 Ark. 134, 572 S.W.3d 372.
On remand, the circuit court held another hearing. The parties submitted
supplemental pleadings, attaching deposition testimony. The circuit court again certified the
class. The court defined the class as follows:
All individuals who were, are, or will be employed by Defendant Koppers, Inc. as hourly paid employees at the Koppers plant in North Little Rock, Arkansas, at any time between June 3, 2013, through the date of the final disposition of this action, and who were, are, or will be required to perform donning and doffing activities.
2 The circuit court also identified questions of law or fact common to the class. The court
further concluded Koppers’ donning and doffing policy applied to all class members and
whether this policy unlawfully deprived plaintiffs of compensation under the AMWA was
“the overarching, predominating issue in this case.” The court also concluded Koppers’
recording-keeping policy regarding the time its employees spent donning and doffing
predominated: if Koppers kept records as required, then class members could easily compute
how much time they spent donning and doffing; if Koppers did not keep records, then class
members could use an expert’s study to approximate this time by a “just and reasonable
inference.” And last, the court found a class action was a superior way to adjudicate the
claim, noting it would be more efficient to establish Koppers’ liability in a single forum,
rather than sixty-five individual lawsuits.
II. Standard of Review
Arkansas Rule of Civil Procedure 23 sets the parameters for certification of a class
action. Rule 23 imposes six prerequisites for certification of a class-action complaint: (1)
numerosity; (2) commonality; (3) typicality; (4) adequacy; (5) predominance; and (6)
superiority. Ark. R. Civ. P. 23(a), (b); Philip Morris Cos., Inc. v. Miner, 2015 Ark. 73, 462
S.W.3d 313. Circuit courts have broad discretion over class certification, and we will not
reverse a circuit court’s decision to grant or deny class certification absent an abuse of
discretion. SEECO, Inc. v. Snow, 2016 Ark. 444, 506 S.W.3d 206. When reviewing a class-
certification order, we focus on the evidence in the record to determine whether it supports
the circuit court’s conclusion. Asbury Auto. Grp., Inc. v. Palasack, 366 Ark. 601, 237 S.W.3d
3 462 (2006). We consider only whether Rule 23’s requirements have been satisfied. Cach,
LLC v. Echols, 2016 Ark. 446, 506 S.W.3d 217. We “will not delve into the merits of the
underlying claims when deciding whether the Rule 23 requirements have been met.” Nat’l
Cash, Inc. v. Loveless, 361 Ark. 112, 116, 205 S.W.3d 127, 130 (2005). Koppers challenges
the circuit court’s finding on commonality, predominance, and superiority.
III. Discussion
A. Commonality
Under the commonality requirement, there must be “questions of law or fact
common to the class.” Ark. R. Civ. P. 23(a)(2). Only a single common issue is required. Philip
Morris, 2015 Ark. 73, at 4, 462 S.W.3d at 316. There are two preliminary elements necessary
to establish a violation of the overtime provisions of the AMWA. Ark. Code Ann. § 11-4-
211(a). First, plaintiffs must show that an employee worked over forty hours a week. Id.
Second, plaintiffs must establish that Koppers did not pay the employee one and one-half
times the regular rate for the work performed in excess of forty hours. Id.
Here, the circuit court identified several common issues. One salient common issue
is Koppers’ policy or practice for donning and doffing. Plaintiffs alleged Koppers required
them to report to their workstations at their scheduled start time fully dressed; they then
stayed at their stations until the shift ended, changing into street clothes only after the whistle
blew. As put in their complaint: “Although the employees clock-in before they put on the
required uniform and equipment and clock out after they remove the uniform and
4 equipment, they are not paid for this time. Rather, employees are only paid for their
scheduled time.”
Notably, Koppers does not dispute that donning, doffing, and walking in this context
constitute “work” under the AMWA. Nor does Koppers dispute that employees who work
more than forty hours a week are entitled to overtime pay under the AMWA. Further, while
Koppers denied in its answer that this was its policy, it tacitly acknowledged such a practice
in its brief: “The record suggests that, at some time four to five years ago, Koppers did not
allocate much, if any, shift time to donning, doffing, and [walking].” Appellant’s Br. at 14.
Koppers points out that its practice changed sometime around 2015 or 2016. Citing
deposition testimony from the plaintiffs, Koppers notes that it began allocating five minutes
at the beginning of the shift and ten minutes at the end of the shift for donning and doffing.
We cannot find the circuit court abused its discretion. A fact-based, merits question
exists whether Koppers required its employees to don and doff without compensation. Per a
previous decision of this court, donning and doffing constitutes work under the AMWA,
and plaintiffs, under this theory, should have been compensated.1 Plaintiffs alleged they were
not. Whether Koppers indeed had this practice and when it ended is a question common to
all class members. See City of Conway v. Shumate, 2017 Ark. 36, at 6, 511 S.W.3d 319, 325
(holding that uniform practice by class defendant established a common question). The
parties can litigate the factual parameters of the policy on summary judgment or at trial. But
1 Gerber Prod. Co. v. Hewitt, 2016 Ark. 222, 492 S.W.3d 856, superseded by statute, Act of Apr. 5, 2017, No. 914, 2017 Ark. Acts 4924.
5 at this early procedural stage, we hold the circuit court did not abuse its discretion when it
concluded this issue was common to all class plaintiffs. Cf. Van Buren Sch. Dist. v. Jones, 365
Ark. 610, 613, 232 S.W.3d 444, 448 (2006).
B. Predominance
The next issue involves predominance, which “is a more stringent requirement than
commonality.” United Am. Ins. Co. v. Smith, 2010 Ark. 468, at 10, 371 S.W.3d 685, 692.
Predominance exists if “the court finds that the questions of law or fact common to the
members of the class predominate over any questions affecting only individual members.”
Ark. R. Civ. P. 23(b). The starting point in examining the predominance requirement is
whether plaintiffs allege a common wrong against the defendant. Kersten v. State Farm Mut.
Auto. Ins. Co., 2013 Ark. 124, 426 S.W.3d 455. This element can be satisfied if the court can
resolve preliminary, common issues before any individual issues. Asbury Auto., 366 Ark. at
610, 237 S.W.3d at 469.
This determination is not simply a comparison of the number of individual versus
common claims. Philip Morris, 2015 Ark. 73, at 6, 462 S.W.3d at 318. Instead, it is whether
the issues common to all plaintiffs “predominate over” the individual issues, which can be
resolved during the decertified stage of bifurcated proceedings if necessary. Id. Conducting
a trial on the common issue in a representative fashion may achieve judicial efficiency. Id.
Thus, individual issues and defenses of individual members will not defeat class certification
where there are common questions concerning the defendant’s alleged wrongdoing that
predominate. Id.
6 As discussed above, the circuit court found that Koppers’ policy on donning and
doffing—whatever it may be—constituted an “overarching, predominating issue.” Koppers
disputes this because it has “long abandoned” its practice of not compensating its employees
for donning and doffing. Because the class includes plaintiffs subject to both the old practice
and the new practice, Koppers argues, its policy cannot predominate over individualized
issues.
But again, the record is not clear what Koppers’ policy was. Koppers does not pin
down when the policy changed, but asserts it was sometime in 2015 or 2016. Yet the class
includes claims arising from as far back as 2013. Once the parties establish factual specifics
during discovery or trial, then the issue will be ripe for possible bifurcation. Indeed, should
the policy change lead to two identifiable classes, the circuit court can bifurcate the
proceedings between pre- and post-policy-change claimants. See Philip Morris, 2015 Ark. 73,
at 12, 462 S.W.3d at 320.
Koppers also disputes the circuit court’s ruling that Koppers’ record-keeping policy
predominates. For support, it cites another minimum-wage-act class-action appeal. Ark. Dep’t
of Veterans Affairs v. Mallett, 2015 Ark. 428, 474 S.W.3d 861. There, employees alleged their
employer automatically deducted thirty minutes for lunch, even though the employees
worked through the break. The employees represented twenty different positions. We
concluded no predominating question existed because the employees did “not share the
same or similar job duties that would require them to work through their meal breaks.” Id.
at 7, 474 S.W.3d at 866. We noted liability would be highly individualized because “if the
7 employee did not work through lunch, and if the employee failed to work more than forty
hours in a given work week, there could be no liability.” Id. at 8, 474 S.W.3d at 866.
Koppers argues this case presents the same challenges: the employees purport to
represent thirty different jobs, and each employee spends a different amount of time
donning, doffing, and walking. Liability to any one employee, it argues, would depend on
how much time he or she spent doing this compensable work outside shift time. However,
this is not a Mallett question of liability, but a question of damages. Here, unlike the class
plaintiffs in Mallett, the policy required every employee to wear protective equipment. And
per the allegations, for some time, Koppers required each employee to arrive at the
workstation fully dressed and leave fully dressed. The circuit court did not abuse its
discretion when it determined that liability issues predominated over individual questions
about damages. Philip Morris, 2015 Ark. 73, at 13, 462 S.W.3d at 321 (noting that
“individualized inquiry regarding damages will not destroy predominance”). Mallett does not
compel reversal.
C. Superiority
Last, Koppers argues that a class action is not a superior method to adjudicate the
plaintiffs’ claims because its liability can be established only by individual inquiry. It also
argues that the fee-shifting mechanism in the AMWA gives plaintiffs adequate incentive to
bring their own individual claims such that a class action does not offer a superior method
of adjudication. Again, the circuit court did not abuse its discretion.
8 Rule 23(b) provides that a class action must be “superior to other available methods
for the fair and efficient adjudication of the controversy.” The superiority requirement is
satisfied if class certification is the more efficient way to handle the case and it is fair to both
sides. Infinity Healthcare Mgmt. of Ark., LLC v. Boyd, 2019 Ark. 346, 588 S.W.3d 22. The
superiority requirement is closely related to predominance. Philip Morris, 2015 Ark. 73, at
14, 462 S.W.3d at 321.
First, as already discussed above, Koppers’ liability—specifically, its policy on donning
and doffing—could be established on a classwide basis. For this reason, we cannot find the
circuit court abused its discretion in finding the class-action mechanism offers a superior way
to adjudicate the claims. All parties can settle in a single forum Koppers’ liability. And
Koppers will only have to defend one suit, instead of sixty-five. “The avoidance of a multitude
of suits lies at the heart of any class action certification.” BNL Equity Corp. v. Pearson, 340
Ark. 351, 361, 10 S.W.3d 838, 844 (2000).
Second, Koppers argues superiority fails because the AMWA allows an injured
plaintiff to recover attorney’s fees and liquidated damages. Ark. Code Ann. § 11-4-218(a).
This regime, Koppers argues, incentivizes individual claims and weighs against class
certification. In support, Koppers directs us to several unpublished federal district court
cases. This court, however, follows a different standard from the federal courts. See Infinity
Healthcare, 2019 Ark. 346, at 14, 588 S.W.3d 22, 31. These cases do not persuade us that an
incentive to bring small-dollar, individual claims destroys the efficacy of the class-action
mechanism when the remaining elements of Rule 23 have been satisfied.
9 On the whole, we find the circuit court did not abuse its discretion in certifying the
class.
Affirmed.
HART, J., dissents.
JOSEPHINE LINKER HART, Justice, dissenting. This case should be reversed and
remanded because class action is not the superior way to address whatever claims may
legitimately be raised by, at the most, sixty-five employees. Contained within the overly
inclusive class definition are individuals who have never been and will never be aggrieved by
Koppers’s pay policies. Moreover, the Arkansas Minimum Wage Act contains a fee-shifting
provision so that the remaining potential plaintiffs with legitimate causes could be made
whole without out-of-pocket expenditures for legal fees.
Somehow, the majority seems to have lost sight of the fact that this is a wage-and-
hour case. That means this controversy concerns, at worst, a few minutes each shift that
Koppers’s employees spend donning and doffing protective gear and proceeding to and from
their workstations. It is not disputed that prior to 2015 or 2016, workers were not
compensated for this time. It is likewise not disputed that subsequently, Koppers revised its
policies to allocate paid time for this activity, although whether the allotted time was
sufficient for each individual worker on a particular day is still an issue. Slow dressers and
slow walkers get the same time as fast dressers and fast walkers. If an employee’s workstation
is next to the bathhouse, compensation may be adequate, perhaps not for workers who need
to travel further. Accordingly, the amount of uncompensated time, if any, varies from none
10 to some for each perspective class member. Thus, while Koppers’s pay policies regarding
donning and doffing are admittedly an overarching issue, the damages, if any, are highly
individualized. Herein lies the problem.
As I alluded to earlier, the class defined by the circuit court is clearly overinclusive.
The definition is as follows:
All individuals who were, are, or will be employed by Defendant Koppers, Inc. as hourly paid employees at the Koppers plant in North Little Rock, Arkansas, at any time between June 3, 2013, through the date of the final disposition of this action, and who were, are, or will be required to perform donning and doffing activities.
The class likely contains individuals who may not have been paid for donning and doffing
prior to the policy change, newer hires who were always properly compensated, and perhaps
old and new employees who at times were undercompensated for donning or doffing if they
changed their clothes or walked to their workstations more slowly than other workers or
even themselves on one day or another. In short, an individual worker’s potential claim is
affected by his or her own performance of this part of the job, not just the employer’s policies.
I am mindful that the concept of “predominance” essentially ceased to exist as
meaningful inquiry after this court’s decision in Philip Morris Cos., Inc. v. Miner, 2015 Ark.
73, 462 S.W.3d 313. The Miner court considered “commonality” and “predominance” under
the same rubric, in practice, though perhaps not in rhetoric, irredeemably blurring the
distinctions between the two concepts. However, it is undeniable that accounting for the
uncompensated time is of paramount concern in a wage case, since this is the measure of
damages. By comparison, in Miner, the deceptive advertising supposedly attached to every
11 package of cigarettes sold, whether or not the individual smoker’s technique actually
damaged his or her health. Yet despite the holding in Miner, distinct differences in class-
member behavior still could––and should––be addressed in our class-action jurisprudence.
In the case at bar, “superiority” dictates that this class certification be reversed.
Koppers’s donning and doffing policy is easily ascertainable for the time frame embraced by
the lawsuit. Unlike Miner, where damages were bifurcated, in the instant case each
individual’s unique claim must be addressed as the lawsuit goes forward. Very quickly, the
individual issues will become the biggest problem, not some thorny legal question as was the
case in Miner.
The class size in the case before us is also a consideration. In Miner, this court recoiled
from the possibility of “hundreds of thousands or perhaps millions of individual cases,”
which it feared the circuit courts in Arkansas would be unable to handle. The Miner court
concluded that class action was superior because it would be “more efficient” and “both
parties benefitted.” Id. As noted previously, there will almost certainly be fewer than sixty-
five class members, and the major issue will be how many minutes each aggrieved worker
would be compensated for. Given this court’s liberal attitude toward offensive collateral
estoppel, see Mann v. Pierce, 2016 Ark. 418, 505 S.W.3d 150, very little will be gained in
terms of judicial efficiency after the first case is litigated. At any rate, it is unlikely that fewer
than sixty-five cases would overwhelm the circuit courts in Pulaski County.
Finally, and perhaps most importantly, the AMWA has a fee-shifting provision. Ark.
Code Ann. § 11-4-218(a). Accordingly, it will cost the workers nothing to vindicate their
12 rights to lawful compensation if Koppers has denied them the same. Spurious claims will at
the same time be discouraged, and like any lawsuit, the economic realities of pursuing
litigation will chasten Koppers from unreasonably refusing to pay its workers. In my view,
justice would be more perfectly realized with individual claims proceeding, if necessary, to
individual lawsuits.
I dissent.
Quattlebaum, Grooms & Tull PLLC, by: E. B. Chiles IV, Joseph R. Falasco, and S. Katie
Calvert, for appellant.
Holleman & Associates, P.A., by: John Holleman and Timothy A. Steadman, for appellees.