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2011 PA Super 121
MICHELLE BRAUN, ON BEHALF OF
HERSELF AND ALL OTHERS SIMILARY
WAL-MART STORES, INC., A
DELAWARE CORPORATION, AND SAM’S
CLUB, AN OPERATING SEGMENT OF
WAL-MART STORES, INC.,
IN THE SUPERIOR COURT OF
No. 3373 EDA 2007
Appeal from the Judgment entered November 14, 2007
In the Court of Common Pleas of Philadelphia County
Civil No.: 3127, March Term, 2002
------------------------------------------------------------------------------------DOLORES HUMMEL, ON BEHALF OF
IN THE SUPERIOR COURT OF
HERSELF AND ALL OTHERS SIMILARLY :
WAL-MART STORES, INC., A
DELAWARE CORPORATION AND SAM’S :
CLUB, AN OPERATING SEGMENT OF
WAL-MART STORES, INC.,
No. 3376 EDA 2007
Appeal from the Judgment entered November 14, 2007
In the Court of Common Pleas of Philadelphia County
Civil No. 3757, August Term, 2004
BEFORE: MUSMANNO, DONOHUE, and FITZGERALD,* JJ.
OPINION PER CURIAM.
Filed: June 10, 2011
Appellants, Wal-Mart Stores, Inc. and Sam’s Club (collectively, “WalMart”), appeal from a judgment in the amount of $187,648,589.11 entered
in the Philadelphia County Court of Common Pleas in favor of Appellees,
Michelle Braun (“Braun”), Dolores Hummel (“Hummel”) (we refer to Braun
and Hummel collectively as “Appellees”), and the certified class.1
appeal arises from claims against Wal-Mart by its hourly employees,
alleging, inter alia, claims for breach of contract, unjust enrichment, and
statutory violations. Under these unique facts and the liberal construction of
Pennsylvania’s class action rules, we hold the record substantiates the trial
court’s certification of the class and discern no denial of due process. We
conclude that monetary payments for contractual rest breaks qualify as
Further, we hold the trial court construed 43 P.S. § 260.10
correctly to permit recovery of statutory liquidated damages and Appellees
are entitled to recover under the WPCL. We also hold there was sufficient
evidence in the record for a fact finder to conclude there was a breach of
Former Justice specially assigned to the Superior Court.
As discussed infra, the court inadvertently miscalculated the amount of the total
43 P.S. §§ 260.1-260.12.
contract, unjust enrichment, violation of the Pennsylvania Minimum Wage
Act (“MWA”),3 and violation of the WPCL.
Finally, we hold the trial court
erred in calculating some of Appellees’ counsel’s fees by enhancing the
lodestar to reflect contingent risk when the lodestar already accounted for
Accordingly, we affirm the judgment in part as modified,
reverse in part, and remand for further proceedings.
Class representative Braun was an hourly employee of a Wal-Mart
store located at Franklin Mills, Pennsylvania, from November 1998 to
January 1999. R.R. at 1626a.4 Class representative Hummel was an hourly
employee of a Sam’s Club store located near Reading, Pennsylvania, from
1992 to 2002. R.R. at 1635a.
At the beginning of Appellees’ respective employment, Wal-Mart gave
them an employee handbook; both signed an acknowledgment page stating:
“[T]he policies and benefits presented in this handbook are for your
information only and do not constitute terms or conditions of employment. .
This handbook is not a contract.”
R.R. at 6734a-36a, 6785a-86a.
During the course of Appellees’ employment, Wal-Mart had several policies
in place regarding rest breaks and off-the-clock work. The rest break policy
43 P.S. §§ 333.101-333.115.
The certified record, particularly the notes of testimony, is voluminous, as is
reproduced record. We have attempted in most instances infra to cite to both
reproduced record and the notes of testimony. In some instances, however,
cite to only one or the other, either for ease of citation, lack of one in
reproduced record, or the reader’s benefit.
is known as PD-07 and the off-the-clock work policy is known as PD-43.
Pls.’ Ex. 4c; R.R. at 6987a-89a; Pls.’ Ex. 27a; R.R. at 7020a-26a.
states in pertinent part that hourly associates5 who work between three and
six hours will be given one, fifteen-minute, paid, rest break, and those who
work more than six hours will be given two, fifteen-minute, paid, rest
breaks. Pls.’ Ex. 4c; R.R. at 6987a-89a.
PD-07 was revised several times during the class period of March 19,
1998, through May 1, 2006.
Pls.’ Exs. 4a-4d; R.R. at 6974a-92a.
versions stated that “[h]ourly associates whose break or meal periods [are]
interrupted to perform work will receive compensation for the entire period
at their regular rate of pay and be allowed an additional break or meal
Pls.’ Ex. 4a; R.R. at 6975a-76a.
After February 10, 2001, that
statement was omitted. Pls.’ Ex. 4b; R.R. at 6984a-85a.
The version of PD-07 governing paid rest breaks became effective in
May of 2004. Pls.’ Ex. 4c; R.R. at 6987a-89a. It states:
Associates will be provided breaks. . . . Associates are to
take full, timely, uninterrupted breaks. . . . Associates will
also be subject to disciplinary action for missing breaks or
taking breaks that are too long, too short, or untimely. . . .
This policy applies to all hourly Associates. . . .
Break Periods (“Breaks”)
Wal-Mart employees are referred to as “associates.”
Break periods are 15 uninterrupted minutes in
length. . . .
Associates receive compensation for
break time at the applicable rate of
pay. Associates are not required to
clock out or clock in for breaks. . . .
The Associate’s immediate supervisor
is responsible for providing breaks.
Supervisors and salaried members of
management will be subject to
disciplinary action for failing to
provide breaks in accordance with this
policy and state laws.
Interruption of Breaks And Meal Periods
Supervisors and salaried members of management may
not require nor request Associates to perform work during
their breaks . . . .
Break Exception Definition: Each occasion an Associate
misses a break, takes a break that is too long or too short,
or takes a break that is untimely will be measured as a
Pls.’ Ex. 4c; R.R. at 6987a-88a.
In addition to paying for non-working time on rest breaks under PD07, Wal-Mart had a policy, PD-43, purporting to pay for all hours worked.
PD-43 stated in part:
“It is against Wal-Mart policy for any Associate to
perform work without being paid. We are committed to compensating every
Associate for the work they perform.”
Pls.’ Ex. 27a; R.R. at 7020a.
Wal-Mart 2006 Associate Benefits Book also described all available benefits
to employees under the heading “My Money”:
In addition to the pay you receive for a regular day’s work,
there are other programs and benefits that can
supplement your income.
Paid Break Periods
Take a break and get paid for it!
Defs.’ Ex. 146; R.R. at 6902a-03a; see also id.; R.R. at 6790a, 6901a.
Wal-Mart employees used a time clock.6 In order to keep track of their
hours, Appellees were required to “swipe” or “punch” their badges in and out
Pls.’ Ex. 4a; R.R. at 6975a.
Wal-Mart’s Time Clock Punch
Exception Report (“TPER”) generated a daily listing of every employee whose
punches or swipes established that they took too few breaks, short breaks,
or no breaks. Pls.’ Ex. 2b; R.R. at 6970a-73a; Pls.’ Ex. 54; R.R. at 7264a;
Pls.’ Ex. 90; 7443a-91a. Wal-Mart tracked employees’ breaks and recorded
their time from Wal-Mart’s Time Clock Archive Report (“TCAR”). Pls.’ Ex. 54;
R.R. at 7286a-87a. This report detailed total hours worked and “total break”
time. Pls.’ Ex. 45; R.R. at 7086a. On February 10, 2001, Wal-Mart officially
A time clock records “information as to the time of employees’ presence on the
employer’s premises.” Schooley v. Cmwlth., Unemployment Comp. Bd. of
Review, 402 A.2d 1109, 1110 (Pa. Cmwlth. 1979).
ended its policy of requiring hourly employees to swipe in and out for rest
breaks. N.T., 9/12/06 (afternoon), at 25; R.R. at 1529a; Pls.’ Ex. 142; R.R.
at 7612a-13a; see also Pls.’ Ex. 4c; R.R. at 6987a-89a.
TPER and TCAR
were used in the regular course of Wal-Mart’s business.
See, e.g., N.T.,
9/9/04, at 75-76; N.T., 9/10/04, at 82-85; R.R. at 342a-45a.
Meanwhile, Wal-Mart retained data reflecting which employees were
operating cash registers and, during their shifts, when they were logged
onto and actively operating the cash registers.
R.R. at 1758a-63a.
N.T., 9/21/06, at 30-36;
Wal-Mart’s internal audit department used TPER and
TCAR to conduct internal audits of employees’ compliance with the restbreak policies.
Pls.’ Ex. 97; R.R. at 7493a-7501a.
If the audits revealed
violations of the policies, then managers or employees could be subject to
discipline up to and including termination. Pls.’ Ex. 4c; R.R. at 6989a; Pls.’
Ex. 27a; R.R. at 7020a.
Appellees alleged that Wal-Mart failed to compensate them for rest
breaks and off-the-clock work as mandated in its policies. As a result, Ms.
Braun and Ms. Hummel filed separate complaints against Wal-Mart.
March 21, 2002, approximately two years after her employment ended with
Wal-Mart, Ms. Braun filed a complaint, on behalf of herself and all others
similarly situated, against the store manager and district manager of the
Franklin Mills, Pennsylvania, Wal-Mart store.
Ms. Braun filed an amended
complaint on March 26, 2002, and a second amended complaint on May 28,
Ms. Braun alleged a “systematic scheme of wage abuse against its
hourly employees in Pennsylvania.” Braun’s Second Am. Compl., at 2. More
specifically, Ms. Braun alleged causes of action for breach of contract,
restitution, and unjust enrichment for off-the-clock work and missed or
shortened rest breaks, along with violation of the MWA, violation of the
WPCL, and tortious interference with contractual relations. Id. at 4-5.
Ms. Hummel filed a petition to intervene in the Braun suit, which the
trial court denied on August 26, 2004. R.R. at 396a. On August 27, 2004,
the court granted summary judgment in favor of Wal-Mart and against Ms.
Braun on her claims for violation of the MWA and WPCL, and for tortious
interference with contractual relations. Order, 8/27/04; R.R. at 311a.
On August 30, 2004, Ms. Hummel filed a complaint on behalf of herself
and all others similarly situated. The Hummel complaint alleged that WalMart required its employees to miss or cut short rest breaks and work offthe-clock. Hummel Compl. at 1-2. The Hummel action contained causes of
action for breach of contract, restitution, and unjust enrichment for off-theclock work and missed or shortened break periods, along with violations of
the MWA and WPCL. Wal-Mart denied these allegations and asserted, inter
alia, that it did not intend to contract with its employees related to breaks.
Further, Wal-Mart claimed that missed swipes did not equate to missed or
skipped breaks, and sometimes employees voluntarily missed or skipped
breaks for reasons unrelated to workplace demands.
See, e.g., N.T.,
9/19/06 (afternoon), at 79-80, 96; R.R. at 1691a-92a, 1694a.
The trial court held two class-certification hearings, one in September
2004 for the Braun action, and the other in October 2005 for the Hummel
The court evaluated hundreds of exhibits regarding Wal-Mart’s
testimony, and Appellees’ expert reports by Drs. Scott Baggett and Martin
Shapiro analyzing Wal-Mart’s business records.
Relying primarily on the
experts’ analyses, the court concluded Appellees demonstrated the systemic
loss of contractual break time. The court held that Appellees established the
existence of common questions of law and fact, and that common issues
On December 27, 2005, the court granted class certification for both
actions. The certified class in each case consisted of “all current and former
hourly employees of Wal-Mart in the Commonwealth of Pennsylvania from
March 19, 1998 to the present.” Trial Ct. Order, 12/27/05, at 1. On March
20, 2006, Wal-Mart petitioned this Court for interlocutory review of the
class-certification decision and a stay of proceedings pending appellate
review. This Court denied Wal-Mart’s petition on April 26, 2006. The trial
court consolidated both cases for trial.
On July 17, 2006, prior to trial, Wal-Mart filed a motion for partial
summary judgment on the issue of whether meal periods and rest breaks
are wages, “fringe benefits,” or wage supplements under the WPCL.
court granted in part that motion on September 7, 2006.
The jury trial began on September 8, 2006, and lasted for thirty-two
days. Both sides introduced evidence of Wal-Mart’s business practices and
procedures, and fact and expert witnesses testified. The evidence focused
on Wal-Mart’s break and off-the-clock policies and practices.
called eighteen fact witnesses and three expert witnesses: Dr. Frank Landy,
Dr. Baggett, and Dr. Shapiro.
Dr. Landy, an industrial organizational psychologist, testified that WalMart, by means of its uniform, written, corporate policies, promised
employees paid rest breaks during which they were to perform no work, and
receive pay for all hours worked. See, e.g., N.T., 9/12/06 (afternoon), at
61-64; R.R. at 1540a-41a. He opined that paid rest breaks were a benefit.
N.T., 9/12/06 (afternoon), at 11-12; R.R. at 1525a; N.T., 9/13/06
(morning), at 45-46; R.R. at 1556a-57a.
Dr. Landy testified that a
reasonable employee would understand the uniform disclaimer in Wal-Mart’s
handbook as disclaiming only the intent to form anything other than an “at
will” employment. N.T., 9/13/06 (morning), at 49-51; R.R. at 1560a-61a.
The employees, he testified, would not understand the disclaimer as
disclaiming paid, rest-break benefits and receiving pay for all hours worked.
Id. at 51-52; R.R. at 1561a-62a. Dr. Landy asserted that, based on WalMart’s numerous, mandatory statements, notices, postings, and labor
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guidelines, a reasonable employee would have understood that Wal-Mart
offered and promised benefits, and that employees would receive those
benefits upon working the specified number of hours.
(afternoon), at 76-77; R.R. at 1545a-46a.
Dr. Landy also discussed understaffing in Wal-Mart stores. He opined
that Wal-Mart’s “preferred scheduling” program was the “root cause” of
understaffing in the stores.
N.T., 9/11/06 (afternoon), at 100-02; R.R. at
1496a-98a. There is a correlation, Dr. Landy stated, between understaffing
and employees’ ability to receive breaks: the more understaffed the stores,
the greater the pressure on managers not to provide breaks and on
employees not to take breaks. N.T., 9/12/06 (afternoon), at 52-53; R.R. at
He explained how the pressure to reduce payroll costs led to
See, e.g., N.T., 9/13/06 (morning), at 106-08; R.R. at
Dr. Landy noted that the Wal-Mart store-manager-bonus
system had a “negative effect” on compliance with Wal-Mart’s policies on
breaks and pay.
See, e.g., id. at 81-82; R.R. at 1589a-91a.
Landy testified that after Wal-Mart conducted its Shipley Audit,7 Wal-Mart
On July 14, 2000, several members of Wal-Mart’s upper-level management were
sent the results of the Shipley Audit. Pls.’ Ex. 429; R.R. at 7887a. The Shipley
Audit sought to determine Wal-Mart’s compliance with its policies and state laws
regarding the staffing and scheduling of its employees.
previously conducted approximately ten other internal audits since September 1999
that indicated widespread break violations. N.T., 9/12/06 (morning), at 62-64;
R.R. at 1502a-04a. The Shipley Audit occurred at a national level, unlike the earlier
audits. Id. at 66; R.R. at 1506a. For two weeks, auditors visited 128 stores across
the United States, including some in Pennsylvania. Pls.’ Ex. 429; R.R. at 7888a.
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eliminated the requirement that employees punch the time clock for rest
breaks; he opined that Wal-Mart eliminated “smoking gun” evidence of its
policy violations to limit its liability.
N.T., 9/12/06 (afternoon), at 57-58;
R.R. at 1539a.
In contrast, Wal-Mart’s retail expert, Wade Fenn, testified that he
analyzed Wal-Mart’s business practices and procedures.
(morning), at 90-91.
He claimed that Dr. Landy applied the wrong
mathematical calculation between man-hour and store profitability.
93-94. Mr. Fenn testified that he did not believe there was a link between
Wal-Mart’s compensation program and rest breaks.
Id. at 95.
that Wal-Mart’s practices were consistent with other “big box” retailers. Id.
Dr. Baggett, a statistical-analysis expert, also testified for Appellees
regarding rest breaks. N.T., 9/19/06 (morning), at 29; R.R. at 1656a. He
conducted a computerized, statistical analysis using Wal-Mart’s reports to
determine the number of missed rest breaks by Pennsylvania hourly
employees. Id. at 21; R.R. at 1653a; N.T., 9/19/06 (afternoon), at 11-15;
R.R. at 1671a-74a.
He analyzed swipes for rest breaks from 1998 to
February 2001. N.T., 9/19/06 (afternoon), at 11; R.R. at 1671a. For the
The Shipley Audit found 76,472 meal- and wage-break violations over a one-week
period. Id. The Shipley Audit reported that 21%, or 15,705, of these violations
involved “too few meals” while 79%, or 60,767, of these violations involved “too
few breaks.” Id.
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period after February 2001, Dr. Baggett statistically extrapolated the
number of missed or shortened rest breaks. Id. at 14-15; R.R. at 1673a74a.
Id. at 9.
Dr. Baggett calculated that damages from
shortened rest breaks totaled $7,561,968.
Id. at 26; R.R. at 1677a.
asserted that his calculations were based in part on a clause in PD-07 and
Wal-Mart’s rest-break policy providing for an additional break if a manager
or supervisor required or requested an employee to work during his or her
break. Id. at 46, 52-53; R.R. at 1684a, 1687a-88a.
Dr. Baggett, however, admitted he could not explain why a rest break
was missed or shortened, or ascertain whether a manager caused an
employee to shorten or miss a break. Id. at 47-48; R.R. at 1685a-86a. His
affidavit was based on an analysis of records produced by Wal-Mart. Trial
Ct. Order, 10/3/07, at 10. Dr. Baggett concluded that hourly employees of
the class each experienced an average of twenty-five break violations.
Further, he averred that 98.81% of those employees experienced at least
one rest-break violation. Decl. of L. Scott Baggett, at 3; R.R. at 2478a.8
N.T., 10/5/06, at 36.
Dr. Martin opined that because Dr.
Baggett extrapolated data that did not exist or was incorrect, his conclusion
The class damages were calculated only for actual missed or shortened rest
breaks and off-the-clock work reflected by Wal-Mart records. Pls.’ Exs. 512-15;
R.R. at 7947a-50a.
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Id. at 45-48, 59, 67.
First, she asserted Dr. Baggett
improperly assumed that a missed rest-break swipe always meant the
employee did not actually take a rest break. Id. at 47. Second, Dr. Martin
testified that Dr. Baggett incorrectly assumed an employee was denied a
rest break if the employee worked over six hours. Id. at 49. She claimed it
is statistically improper to make these assumptions and, therefore, Dr.
Baggett’s analysis was inaccurate and unreliable.
Id. at 64.
that it was not reasonable or professionally appropriate for Dr. Baggett, as a
statistician, to assume missed rest breaks when he admittedly did not know
whether an employee voluntarily or involuntarily missed a rest break. Id. at
Dr. Shapiro, a statistical expert, also testified for Appellees about offthe-clock work.
He analyzed records from a sample of sixteen Wal-Mart
stores in Pennsylvania to determine the amount of off-the-clock work and
N.T., 9/21/06 (afternoon), at 48, 54-56; R.R. at
1767a, 1769a-71a.9 Dr. Shapiro calculated the amount of off-the-clock work
by analyzing the amount of time cashiers were logged onto operatoraccountable cash registers but not logged into the time-keeping system. Id.
at 27; R.R. at 1754a-55a. He also analyzed records from 2001 through part
of 2006, and extrapolated data for 1998 through 2000.
Id. at 59-60.
The court ultimately struck Dr. Shapiro’s testimony relating to pre-off-the-clock
work. N.T., 9/22/06 (morning), at 43.
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Additionally, Dr. Shapiro statistically extrapolated data for the other
Pennsylvania Wal-Mart stores not included in the analysis. Id. at 65.
established the rate of rest-break violations. Id. at 61-62; R.R. at 1772a73a. He assumed employees worked off-the-clock whenever cashiers logged
onto their cash registers but were not logged into the time clock. Id. Dr.
Shapiro, after extrapolating his findings to include all Pennsylvania Wal-Mart
stores, calculated total, off-the-clock, work damages of $2,993,063.32. Id.
at 76; R.R. at 1775a.
Dr. Martin rebutted Dr. Shapiro’s statistical conclusions.
that his analysis was not an appropriate method to determine whether a
cashier actually worked off-the-clock.
N.T., 10/5/06, at 70.
noted that because other employees testified an employee sometimes
logged onto a cash register using another employee’s identification number,
she disagreed with Dr. Shapiro’s underlying assumption that no employee
Id. at 70-71.
Dr. Martin also claimed Dr. Shapiro’s analysis was
flawed because he merged the cash-register data with the time-clock data in
order to reach his conclusion regarding off-the-clock work.
Id. at 71-72.
She discounted his analysis by conducting her own test in one Pennsylvania
store, where she found that a cashier appeared to be logged onto a register
for at least twenty-one hours. Id. at 72. Thus, Dr. Martin opined that Dr.
Shaprio’s entire analysis was unreliable. Id. at 79-80.
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On October 12, 2006, the jury returned a verdict in favor of Wal-Mart
on all claims related to meal periods, and returned a verdict in favor of
Appellees on the claims related to rest breaks and off-the-clock work. Jury
Verdict Interrog.; R.R. at 2181a-85a.
Specifically, the jury found for
Appellees on their WPCL claims, finding that Wal-Mart failed to pay
employees for all the work they performed and failed to allow employees to
take their paid, mandatory, rest breaks. Trial Ct. Op., 11/14/07, at 2. WalMart, the jury found, required its employees to work without pay by
directing them not to record their hours on Wal-Mart’s computerized pay
system, resulting in a savings of $1,031,430 to Wal-Mart. Id. The jury also
found that Wal-Mart prohibited employees from taking their promised, paid,
rest breaks, which resulted in Wal-Mart’s saving $48,258,111. Id. Further,
the jury concluded that Wal-Mart did not have a good-faith reason for
refusing to pay its employees everything they had earned.
11/14/07, at 2.
Trial Ct. Op.,
The jury awarded damages of $2,494,340.35 for the off-
the-clock work claims and $75,974,075.00 for the rest-break claims.
Verdict Interrog.-Damages, at 1-2; R.R. at 2186a-87a.
Also on October 12, 2006, Appellees moved for statutory, mandatory,
Appellees sought only a single, WPCL, statutory
penalty per class member. Trial Ct. Op., 11/14/07, at 10. Appellees relied
on the affidavit of Dr. Baggett, which averred that 98.81% of the class
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experienced at least one rest-break violation and calculated the statutory,
liquidated damages in the amount of $62,253,000. Id.
Wal-Mart countered with an affidavit from Dr. Martin, who criticized
Dr. Baggett’s conclusion.
Dr. Martin opined:
“At best [Dr. Baggett’s
method] can only approximate the number of associates to include in a
calculation of liquidated damages using extrapolated data and a probabilistic
Id. at 11.
She stated that she did not believe Dr. Baggett’s
method, calculating liquidated damages using extrapolated data, was
appropriate. Id. Dr. Martin, however, opined in her report that if every one
of the 125,304 class members were entitled to liquidated damages, the
statutory award should be $62,652,000. Id. at 11.
On October 3, 2007,
In addition to statutory, liquidated damages, the court awarded
$45,694,576 in attorneys’ fees. The trial court allocated the total-fee award
based on recovery for the WPCL and non-WPCL claims.
11/14/07, at 21.
Trial Ct. Op.,
The court ordered Wal-Mart to pay attorneys’ fees of
$33,813,986.24, with the remaining amount of $11,880,589.76 paid from
the common fund. The total judgment follows:
Common Law verdict:
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WPCL attorney fees:
Attorney fees in the amount of $11,880,589.76 and
expenses of $938,222.48 shall be paid from the Common
Law [sic] fund created.
Id. at 22.10 Wal-Mart timely filed post-trial motions, which the court denied
on November 14, 2007. This timely appeal followed.
Wal-Mart raises the following issues:
Did the trial court disregard class action requirements by
certifying and refusing to decertify a class of approximately
187,000 current and former Wal-Mart employees for
claims of breach of contract, unjust enrichment, and
violations of the WPCL and MWA without a method of
class-wide proof that could show Wal-Mart’s liability to
each class member and with a vague and overbroad class
Did the trial court deprive Wal-Mart of due process by
eliminating its right to try inherently individual issues on
Did the trial court err by refusing to dismiss [Appellees’]
claim under the WPCL when, as a matter of law, rest
breaks are not “wages, wage supplements, or fringe
benefits” within the meaning of the statute, and further err
by awarding liquidated damages under the WPCL when
[Appellees] could not establish that they met the
requirement for liquidated damages under the WPCL, when
The trial court, however, erred in calculating damages by using the figure of
$1,310,430, instead of the correct figure of $1,031,430.
See Jury Verdict
Interrog.-Damages, at 2; R.R. at 2187a. Thus, contrary to the court’s judgment,
the jury rendered a WPCL verdict for $49,289,541, not $49,568,541.
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Wal-Mart established as a matter of law its good faith in
contesting or disputing [Appellees’] wage claim, and when
[Appellees] could not identify the specific individuals
entitled to liquidated damages?
Did the trial court err by entering a judgment of
$187,648,589.11 in favor of the class on its claims for
breach of contract, unjust enrichment, and violations of
the WPCL and MWA, where [Appellees] failed to establish
elements of their claims?
Did the court err in awarding $45.6 million in attorneys’
fees following its application of a 3.7 contingency multiplier
that improperly double-counted factors already included in
Wal-Mart’s Brief at 4-5 (re-ordered to facilitate disposition).
“An appellate court will reverse a trial court’s grant or denial of a JNOV
only when the appellate court finds an abuse of discretion or an error of
Dooner v. DiDonato, 601 Pa. 209, 218, 971 A.2d 1187, 1193
“Our scope of review with respect to whether judgment n.o.v. is
appropriate is plenary, as with any review of questions of law.” Shamnoski
v. PG Energy, Div. of S. Union Co., 579 Pa. 652, 659, 858 A.2d 589, 593
In reviewing a motion for judgment n.o.v., the evidence
must be considered in the light most favorable to the
verdict winner, and he must be given the benefit of every
reasonable inference of fact arising therefrom, and any
conflict in the evidence must be resolved in his favor.
Moreover, a judgment n.o.v. should only be entered in a
clear case and any doubts must be resolved in favor of the
Further, a judge’s appraisement of
evidence is not to be based on how he would have voted
had he been a member of the jury, but on the facts as
they come through the sieve of the jury’s deliberations.
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There are two bases upon which a judgment n.o.v. can be
entered: one, the movant is entitled to judgment as a
matter of law, . . . and/or two, the evidence was such that
no two reasonable minds could disagree that the outcome
should have been rendered in favor of the movant[.] With
the first a court reviews the record and concludes that
even with all factual inferences decided adverse to the
movant the law nonetheless requires a verdict in his favor,
whereas with the second the court reviews the evidentiary
record and concludes that the evidence was such that a
verdict for the movant was beyond peradventure.
Moure v. Raeuchle, 529 Pa. 394, 402-03, 604 A.2d 1003, 1007 (1992)
(citations and quotation marks omitted).
“Questions of credibility and
conflicts in the evidence are for the [fact-finder] to resolve and the reviewing
court should not reweigh the evidence.” Shamnoski, 579 Pa. at 659, 858
A.2d at 593 (citation omitted). “If there is any basis upon which the jury
could have properly made its award, the denial of the motion for judgment
n.o.v. must be affirmed.” Smith v. Renaut, 564 A.2d 188, 191 (Pa. Super.
1989); accord Simon v. Wyeth Pharms., Inc., 989 A.2d 356, 365 (Pa.
With respect to a request for a new trial, our standard and scope of
To review the two-step process of the trial court for
granting or denying a new trial, the appellate court must
also undertake a dual-pronged analysis. A review of a
denial of a new trial requires the same analysis as a review
of a grant. First, the appellate court must examine the
decision of the trial court that a mistake occurred.
At this first stage, the appellate court must apply the
correct scope of review, based on the rationale given by
the trial court. There are two possible scopes of review to
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apply when appellate courts are determining the propriety
of an order granting or denying a new trial. There is a
narrow scope of review: where the trial court articulates a
single mistake (or a finite set of mistakes), the appellate
court’s review is limited in scope to the stated reason, and
the appellate court must review that reason under the
Conversely, if the trial court leaves open the
possibility that reasons additional to those
specifically mentioned might warrant a new
trial, or orders a new trial in the interests of
justice, the appellate court applies a broad
scope of review, examining the entire record for
any reason sufficient to justify a new trial.
Even under a narrow scope of review, the appellate court
might still need to examine the entire record to determine
if there is support for any of the reasons provided by the
The appropriate standard of review also controls this initial
layer of analysis. If the mistake involved a discretionary
act, the appellate court will review for an abuse of
discretion. If the mistake concerned an error of law, the
court will scrutinize for legal error. If there were no
mistakes at trial, the appellate court must reverse a
decision by the trial court to grant a new trial because the
trial court cannot order a new trial where no error of law or
abuse of discretion occurred.
If the appellate court agrees with the determination of the
trial court that a mistake occurred, it proceeds to the
second level of analysis. The appellate court must then
determine whether the trial court abused its discretion in
ruling on the request for a new trial. Discretion must be
exercised on the foundation of reason.
An abuse of
discretion exists when the trial court has rendered a
judgment that is manifestly unreasonable, arbitrary, or
capricious, has failed to apply the law, or was motivated by
partiality, prejudice, bias, or ill will. A finding by an
appellate court that it would have reached a different
result than the trial court does not constitute a finding of
an abuse of discretion.
Where the record adequately
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supports the trial court’s reasons and factual basis, the
court did not abuse its discretion.
When determining whether the trial court abused its
discretion, the appellate court must confine itself to the
scope of review, as set forth in our preceding discussion.
If the trial court has provided specific reasons for its ruling
on a request for a new trial, and it is clear that the decision
of the trial court is based exclusively on those reasons,
applying a narrow scope of review, the appellate court may
reverse the trial court’s decision only if it finds no basis on
the record to support any of those reasons. As a practical
matter, a trial court’s reference to a finite set of reasons is
generally treated as conclusive proof that it would not
have ordered a new trial on any other basis. Alternatively,
where the trial court leaves open the possibility that there
were reasons to grant or deny a new trial other than those
it expressly offered, or the trial court justifies its decision
on the interests of justice, an appellate court must apply a
broad scope of review and affirm if it can glean any valid
reason from the record.
Harman ex rel. Harman v. Borah, 562 Pa. 455, 467-69, 756 A.2d 1116,
1122-24 (2000) (citations, quotation marks, and alterations omitted). This
Court may affirm on any basis. Donnelly v. Bauer, 553 Pa. 596, 611, 720
A.2d 447, 454 (1998).
We address the first two issues together. Wal-Mart raises a number of
claims regarding its challenge to the class certification. Wal-Mart contends
the trial court disregarded class action requirements by certifying and
refusing to decertify a class of approximately 187,000 current and former
Wal-Mart employees for claims of breach of contract, unjust enrichment, and
violations of the WPCL and MWA without a method of class-wide proof that
could show Wal-Mart’s liability to each class member and with a vague and
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overbroad class definition. Wal-Mart requests judgment notwithstanding the
verdict or, in the alternative, a new trial. Wal-Mart is not entitled to relief.
A trial court is vested with broad discretion in determining
whether the criteria for maintaining a class action have
been met, and its decision will not be disturbed on appeal
unless the court neglected to consider the requirements of
the rules governing class certification, or unless the court
abused its discretion in applying the class certification
rules. Moreover, it is the strong and oft-repeated policy of
this Commonwealth that, in applying the rules for class
certification, decisions should be made liberally and in
favor of maintaining a class action.
Liss & Marion, P.C., v. Recordex Acquisition Corp., 937 A.2d 503, 505
(Pa. Super. 2007) (emphasis added and citations and quotation marks
omitted);11 accord Debbs v. Chrysler Corp., 810 A.2d 137 (Pa. Super.
Compare Cutler v. Wal-Mart Stores, Inc., 927 A.2d 1 (Md. Ct. Spec. App.
2007), and cases cited therein, denying class certification where the courts do not
liberally construe the class action rule.
Maryland does not share the liberal construction of the class
action rule espoused by the Ninth Circuit in Dukes [v. WalMart Stores, Inc., 474 F.3d 1214 (9th Cir. 2007)] and by the
Supreme Court of New Jersey in Iliadis [v. Wal-Mart Stores,
Inc., 922 A.2d 710 (N.J. 2007)]. The more exacting analysis of
the class certification requirements in [Wal-Mart Stores, Inc.
v. Lopez, 93 S.W.3d 548, 557 (Tex. App. 2002)], Basco [v.
Wal-Mart Stores, Inc., 216 F. Supp. 2d 592 (E.D. La. 2002)],
Petty [v. Wal-Mart Stores, Inc., 773 N.E.2d 576 (Ohio Ct.
App. 2002)], Harrison [v. Wal-Mart Stores, Inc., 613 S.E.2d
322 (N.C. Ct. App. 2005)] is more closely aligned with the Court
of Appeals’s interpretation of Md. Rule 2-231 articulated in
[Philip Morris Inc. v. Angeletti, 752 A.2d 200 (Md. 2000)]
and Creveling [v. GEICO, 828 A.2d 229 (Md. 2003)].
Id. at 14. Courts liberally construing class action rules have certified similar
classes based upon similar issues as those in the case sub judice. See, e.g.,
Salvas v. Wal-Mart Stores, Inc., 893 N.E.2d 1187, 1207 (Mass. 2008) (the court
would abuse its discretion in denying certification “by imposing, at the certification
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2002); Weismer by Weismer v. Beech-Nut Nutrition Corp., 615 A.2d
428, 431 (Pa. Super. 1992); D’Amelio v. Blue Cross of Lehigh Valley,
500 A.2d 1137, 1141 (Pa. Super. 1985); Janicik v. Prudential Ins. Co. of
Am., 451 A.2d 451, 454 (Pa. Super. 1982); Bell v. Beneficial Consumer
Discount Co., 360 A.2d 681, 688 (Pa. Super. 1976). “This is because such
suits enable the assertion of claims that, in all likelihood, would not
otherwise be litigated. Bell, supra.” Debbs, 810 A.2d at 153.
This Court recently stated:
Pa.R.C.P. 1702 governs class actions in Pennsylvania and
states, in pertinent part:
One or more members of a class may sue or be sued
as representative parties on behalf of all members in
a class action only if
(1) the class is so numerous that joinder of all
members is impracticable;
(2) there are questions of law or fact common to
stage, the burden of proof that will be required of the plaintiffs at trial”). Class
certification would not be denied “simply because affirmative defenses may be
available against individual members.” Braun v. Wal-Mart, Inc., No. 19-CO-019790, 2003 WL 22990114, at *7 (D. Minn. Nov. 3, 2003) (holding, “Predominance
will be found where generalized evidence may prove or disprove elements of a
claim,” even if “there may be individual facts unique to particular class members”);
see also Hale v. Wal-Mart Stores, Inc., 231 S.W.3d 215, 221 (Mo. Ct. App.
2007) (“Likewise, ‘[b]ecause class certification is subject to later modification, a
court should err in favor of, and not against, allowing maintenance of the class
action.’ ”); Armijo v. Wal-Mart Stores, Inc., 168 P.3d 129, 142 (N.M. Ct. App.
2007) (affirming the principle “that it is proper to err in favor of approving the
class”); Barnett v. Wal-Mart Stores, Inc., No. 55491-3-I, 2006 WL 1846531, at
*2, 2006 Wash. App. LEXIS 1437, at *4-5 (Wash. Ct. App. July 3, 2006) (favoring
liberal interpretation of class action rules).
- 24 -
(3) the claims or defenses of the representative
parties are typical of the claims or defenses of the
(4) the representative parties will fairly and
adequately assert and protect the interests of the
class under the criteria set forth in Rule 1709
(5) a class action provides a fair and efficient
method for adjudication of the controversy under
the criteria set forth in Rule 1708.
Rule 1709 provides:
Rule 1709. Criteria for Certification. Determination of
Fair and Adequate Representation
In determining whether the representative parties will fairly
and adequately assert and protect the interests of the class,
the court shall consider among other matters
(1) whether the attorney for the representative parties will
adequately represent the interests of the class,
(2) whether the representative parties have a conflict of
interest in the maintenance of the class action, and
(3) whether the representative parties have or can acquire
adequate financial resources to assure that the interests of
the class will not be harmed.
Rule 1708 states in pertinent part:
Rule 1708. Criteria for Certification. Determination of
Class Action as Fair and Efficient Method of Adjudication
In determining whether a class action is a fair and efficient
method of adjudicating the controversy, the court shall consider
among other matters the criteria set forth in subdivisions (a) . .
- 25 -
Pa.R.C.P. 1702; see Pa.R.C.P. 1708 and 1709.
(a) Where monetary recovery alone is sought, the court shall
(1) whether common questions of law or fact predominate
over any question affecting only individual members;
(2) the size of the class and the difficulties likely to be
encountered in the management of the action as a class
(3) whether the prosecution of separate actions by or against
individual members of the class would create a risk of
(i) inconsistent or varying adjudications with respect to
individual members of the class which would confront the
party opposing the class with incompatible standards of
(ii) adjudications with respect to individual members of
the class which would as a practical matter be dispositive
of the interests of other members not parties to the
adjudications or substantially impair or impede their
ability to protect their interests;
(4) the extent and nature of any litigation already
commenced by or against members of the class involving
any of the same issues;
(5) whether the particular forum is appropriate for the
litigation of the claims of the entire class;
(6) whether in view of the complexities of the issues or the
expenses of litigation the separate claims of individual class
members are insufficient in amount to support separate
(7) whether it is likely that the amount which may be
recovered by individual class members will be so small in
relation to the expense and effort of administering the action
as not to justify a class action.
- 26 -
At a class certification hearing, the burden of proof lies
with the proponent; however, since the hearing is akin to a
preliminary hearing, it is not a heavy burden.
proponent need only present evidence sufficient to make
out a prima facie case from which the court can conclude
that the five class certification requirements are met. This
will suffice unless the class opponent comes forward with
contrary evidence; if there is an actual conflict on an
essential fact, the proponent bears the risk of nonpersuasion.
At issue in this case are the second and third prerequisites
for class certification—whether there are questions of law
and fact common to the class and whether the claims or
defenses of the parties are typical of the claims or
defenses of the class. Common questions of law and fact
will generally exist if the class members’ legal grievances
are directly traceable to the same practice or course of
conduct on the part of the class opponent. The common
question of fact requirement means precisely that the facts
must be substantially the same so that proof as to one
claimant would be proof as to all. This is what gives the
class action its legal viability. While the existence of
individual questions of fact is not necessarily fatal, it is
essential that there be a predominance of common issues,
shared by all the class members, which can be justly
resolved in a single proceeding.
The typicality requirement is similar to the requirements of
commonality and the adequacy of representation. The
purpose of the typicality inquiry is to determine whether
the class representative’s overall position on the common
issues is sufficiently aligned with that of the absent class
members to ensure that her pursuit of her own interests
will advance those of the proposed class members. Where
there exists various intervening and possibly superseding
causes of the damage, liability cannot be determined on a
class-wide basis because individual issues would
Accord Salvas, 893 N.E.2d at 1207; Iliadis v. Wal-Mart Stores, Inc., 922
A.2d 710, 721 (N.J. 2007); Barnett, 2006 WL 1846531, at *7, 2006 Wash. App.
LEXIS 1437, at *25-26; Braun, 2003 WL 22990114, at *7.
- 27 -
predominate issues of fact and law that are common to the
class and the representatives of the class.
Clark v. Pfizer Inc., 990 A.2d 17, 24–25 (Pa. Super.) (some citations,
quotations, and punctuation marks omitted), appeal denied, 13 A.3d 473
“Unlike its federal counterpart at Fed.R.Civ.P. 23(b),
Pennsylvania’s rule does not require that the class action method be
‘superior’ to alternative modes of suit.”
Weinberg v. Sun Co., 740 A.2d
1152, 1162-63 (Pa. Super. 1999) (citations omitted), rev’d in part on other
grounds, 565 Pa. 612, 777 A.2d 442 (2001).16 In Janicik, this Court held
that “[t]he existence of individual questions essential to a class member’s
Cf. Wal-Mart Stores, Inc. v. Bailey, 808 N.E.2d 1198, 1199 (Ind. Ct. App.
2004) (reversing trial court’s grant of certification, finding “the class definition
includes individuals who have no standing in the litigation”); Cutler, 927 A.2d at 14
(“[A]ppellants’ claims did not affect the entirety of the class”); Alix v. Wal-Mart
Stores, Inc., 838 N.Y.S.2d 885, 889 (N.Y. Sup. Ct. 2007) (all members of class
must be aggrieved); Harrison, 613 S.E.2d at 327 (stating trial court’s holding that
“the proposed class included individuals who were not subject to the wage and hour
violations that are the basis of Plaintiffs’ claims”); Petty, 773 N.E.2d at 580 (class
encompassed employees who were not subject to alleged violations). These
jurisdictions do not construe class action certification rules liberally, as Pennsylvania
Cf. Basco, 216 F. Supp. 2d at 600 (noting that federal rule requires class action
be the superior method to resolve dispute); In re Wal-Mart Wage & Hour
Employment Practices Litig., No. 2:06-CV-00225-PMP-PAL, 2008 WL 3179315,
at *21 (D. Nev. June 20, 2008) (denying class certification because class action was
not superior method for adjudication of controversy); Bailey, 808 N.E.2d at 1202
(addressing issue of superiority for purposes of remand, although that was not
dispositive finding); Cutler, 927 A.2d at 9 (rule requires class action be superior
method to resolve dispute); Alix, 838 N.Y.S.2d at 902 (denying class certification
in part because plaintiffs did not establish superiority of class action method);
Petty, 773 N.E.2d at 577 (concluding record demonstrates superiority); Lopez, 93
S.W.3d at 560 (denying class certification in part based upon the fact that the rule
“requires the class action to be superior to other available methods”).
- 28 -
recovery is not necessarily fatal to the class, and is contemplated by the
rules. See Pa.R.Civ.P. 1708(a)(1).” Janicik, 451 A.2d at 457.
In Pennsylvania all class members are plaintiffs in the
action upon the filing of the complaint. A trial court is
empowered to require parties wishing to be excluded from
a particular class to file of record, by a specific date, a
written election to be excluded from the class. The United
States Supreme Court has sanctioned the use of this optout procedure for all types of class action plaintiffs,
explaining: If the plaintiff’s claim is sufficiently large or
important that he wishes to litigate it on his own, he will
likely have retained an attorney or thought about filing
suit, and should be fully capable of exercising his right to
Prince George Ctr., Inc. v. U.S. Gypsum Co., 704 A.2d 141, 145 (Pa.
Super. 1997) (citations and punctuation marks omitted). “Moreover, class
members can assert a single common complaint even if they have not all
suffered actual injury; demonstrating that all class members are subject to
the same harm will suffice.” Baldassari v. Suburban Cable TV Co., 808
A.2d 184, 191 n.6 (Pa. Super. 2002).
Class certification is a mixed question of law and fact.
Courts should not dispose of class issues such as
numerosity and typicality based on the perceived adequacy
or inadequacy of the underlying merits of the claim. On
the other hand, courts may need to examine the elements
of the underlying cause of action in order to dispose of
class issues properly. [See Weinberg v. Sun Co., 565
Pa. 612, 618, 777 A.2d 442, 446 (2001)] (because false
advertising claims under the UTPCPL require individualized
proof of reliance, causation, and proof of loss, individual
claims predominated over common issues; therefore, “the
certification requirements of commonality and numerosity
were not met”).
Debbs, 810 A.2d at 154 (some citations omitted).
- 29 -
Wal-Mart contends that the trial court disregarded class action
predominance and was defined imprecisely.”
Wal-Mart’s Brief at 16.
Further, Wal-Mart challenges the class certification of each of Appellees’
claims, viz., breach of contract, unjust enrichment, violations of the WPCL
and the MWA. We thus state the required elements of each.
A breach of contract action involves: (1) the existence of a contract;
(2) a breach of a duty imposed by the contract; and (3) damages. Sullivan
v. Chartwell Inv. Partners, LP, 873 A.2d 710, 716 (Pa. Super. 2005).
While every element must be pleaded specifically, it is axiomatic that a
contract may be manifested orally, in writing, or as an inference from the
acts and conduct of the parties. Id. (citation omitted).
With respect to unjust enrichment, “[w]here one party has been
unjustly enriched at the expense of another, he is required to make
restitution to the other.
In order to recover, there must be both (1) an
enrichment, and (2) an injustice resulting if recovery for the enrichment is
denied.” Meehan v. Cheltenham Twp., 410 Pa. 446, 449, 189 A.2d 593,
595 (1963) (citing Bailis v. Reconstruction Fin. Corp., 128 F.2d 857 (3d
Cir. 1942); Restatement, Restitution § 1, comment a (1936)). As amplified
by this Court:
The elements of unjust enrichment are benefits
conferred on defendant by plaintiff, appreciation
of such benefits by defendant, and acceptance
and retention of such benefits under such
- 30 -
circumstances that it would be inequitable for
defendant to retain the benefit without payment
of value. Whether the doctrine applies depends
on the unique factual circumstances of each
case. In determining if the doctrine applies, we
focus not on the intention of the parties, but
rather on whether the defendant has been
Moreover, the most significant element of the
doctrine is whether the enrichment of the
defendant is unjust.
The doctrine does not
apply simply because the defendant may have
benefited as a result of the actions of the
Styer v. Hugo, 422 Pa. Super. 262, 619 A.2d 347, 350
(1993) (quotation marks omitted).
Stoeckinger v. Presidential Fin. Corp. of Del. Valley, 948 A.2d 828, 833
(Pa. Super. 2008). It is long-settled that “the quasi-contractual doctrine of
unjust enrichment is inapplicable when the relationship between parties is
founded on a written agreement or express contract.”
Westinghouse Elec. Corp., 436 Pa. 279, 290, 259 A.2d 443, 448 (1969);
accord Sevast v. Kakouras, 591 Pa. 44, 53 n.7, 915 A.2d 1147, 1153 n.7
(2007). “Quasi-contracts may be found in the absence of any expression of
assent by the party to be charged and may indeed be found in spite of the
party’s contrary intention.” Schott, 436 Pa. at 290–91, 259 A.2d at 449.
The WPCL is a statute permitting employees to recover unpaid wages.
Lugo v. Farmers Pride, Inc., 967 A.2d 963, 968 (Pa. Super.), appeal
denied, 602 Pa. 668, 980 A.2d 609 (2009).
- 31 -
43 P.S. § 260.9a states in
(a) Any employe or group of employes, . . . to whom any
type of wages is payable may institute actions provided
under this act.
(b) Actions by an employe, . . . to whom any type of
wages is payable to recover unpaid wages and liquidated
damages . . . .
(f) The court in any action brought under this section shall,
in addition to any judgment awarded to the plaintiff or
plaintiffs, allow costs for reasonable attorneys’ fees of any
nature to be paid by the defendant.
43 P.S. § 260.9a(a), (b), (f).
The WPCL defines “wages” as follows:
§ 260.2a. Definitions
Includes all earnings of an employe,
regardless of whether determined on time, task, piece,
commission or other method of calculation. The term
“wages” also includes fringe benefits or wage supplements
whether payable by the employer from his funds or from
amounts withheld from the employes’ pay by the
43 P.S. § 260.2a. “Fringe benefits” are defined:
“Fringe benefits or wage supplements.” Includes
all monetary employer payments to provide benefits under
any employe benefit plan, as defined in section 3(3) of the
Employee Retirement Income Security Act of 1974, 29
U.S.C. § 1001 et seq.; as well as separation, vacation,
holiday, or guaranteed pay; reimbursement for expenses;
union dues withheld from the employes’ pay by the
employer; and any other amount to be paid pursuant to an
agreement to the employe, a third party or fund for the
benefit of employes.
Id. (footnote omitted).
- 32 -
Section 260.3 of the WPCL requires that employers pay or provide the
fringe benefits or wage supplements:
§ 260.3. Regular payday
(b) Fringe benefits and wage supplements.
employer who by agreement deducts union dues from
employes’ pay or agrees to pay or provide fringe benefits
or wage supplements, must remit the deductions or pay or
provide the fringe benefits or wage supplements, as
required, within 10 days after such payments are required
to be made to the union in case of dues or to a trust or
pooled fund, or within 10 days after such payments are
required to be made directly to the employe, or within 60
days of the date when proper claim was filed by the
employe in situations where no required time for payment
43 P.S. § 260.3(b).
The Minimum Wage Act provides:
Employes are employed in some occupations in the
Commonwealth of Pennsylvania for wages unreasonably
low and not fairly commensurate with the value of the
services rendered. Such a condition is contrary to public
interest and public policy commands its regulation.
Employes employed in such occupations are not as a class
on a level of equality in bargaining with their employers in
regard to minimum fair wage standards, and “freedom of
contract” as applied to their relations with their employers
is illusory. Judged by any reasonable standard, wages in
such occupations are often found to bear no relation to the
fair value of the services rendered. In the absence of
effective minimum fair wage rates for employes, the
depression of wages by some employers constitutes a
serious form of unfair competition against other
employers, reduces the purchasing power of the workers
and threatens the stability of the economy. The evils of
unreasonable and unfair wages as they affect some
employes employed in the Commonwealth of Pennsylvania
- 33 -
are such as to render imperative the exercise of the police
power of the Commonwealth for the protection of industry
and of the employes employed therein and of the public
interest of the community at large.
43 P.S. § 333.101. The statute establishes the minimum wage as $7.15. 43
P.S. § 333.104. The MWA guarantees overtime pay equivalent to one-andone-half times the regular hourly pay. 43 P.S. § 333.104(c).
Appellees contend Wal-Mart’s business practices, policies, business
records, and their own policy of enforcing those policies by disciplining
managers and associates who violate them, were uniform among all
employees, and therefore common issues of fact predominate. Additionally,
common issues of law predominate, viz., whether the associates relied on
the employee handbook and Wal-Mart’s policies concerning off-the-clock
work and rest breaks resulting in a unilateral contract which Wal-Mart
breached. Instantly, a careful review of the voluminous record reveals the
common questions of law and fact are directly traceable to Wal-Mart’s
corporate policies and practices as well as Wal-Mart’s witnesses’ testimony
regarding the proliferation and strict enforcement of those corporate polices.
The common questions of fact rely on common questions of law. See Clark,
990 A.2d at 24-25.
- 34 -
Canetta Ivy Reid was director of corporate employment compliance for
Wal-Mart. N.T., 9/28/06 (morning), at 58.17 She testified about Wal-Mart’s
policy regarding rest breaks, denominated as PD-07:
Q: How are Wal-Mart associates informed about the rest
break and meal period policy?
A: Well, from day one, they hear about it in orientation
when they -- their first day at work. It’s also in the
handbook that they receive. There are posters. There is a
computer-based learning, CBL, module. Managers cover it
in talking points with associates.
throughout the business.
Q: You said CBL. What actually are those?
A: Well, it’s computer-based learning. And basically, it’s
where an associate will sit down at a computer terminal,
and there is what we call a module that will be loaded on
to that computer, and it will give them a video, and it will
also give them text.
Somebody will be talking and
explaining different policies and different concepts. And
throughout that video, they may be asked questions, or
they may be asked questions at the end to test their
knowledge in that particular area.
Id. at 70-71; R.R. 1963a-64a.
To facilitate compliance with Wal-Mart’s
policies, she testified that they conducted training for associates:
Q: What is this document, Mrs. Reid?
A: These are the talking points that I was referring to that
we rolled out along with the policy revisions.
Q: If you can go to the fourth page. What is this page?
Although we attempt to cite, as much as possible, to the notes of testimony and
the reproduced record, where there is only a citation to the original record, the
notes of testimony were not included in the reproduced record.
- 35 -
A: Well, our talking points, the way that they were
formatted was there was information for managers, and
then we said here are the things you specifically need to
cover, as it says here, with all associates on all shifts, go
through this specific information with them.
Q: And who was this document sent to?
A: This went to all managers. It went to, at that time,
district managers. And again, the facility managers were
the ones who instructed to cover it with associates in the
Q: By facility managers, you mean store managers and
Sam’s Club managers?
Q: So Wal-Mart stores and Sam’s, just to be clear?
A: Correct, correct.
Q: So it was across the company. Let’s go through these
talking points that the managers were instructed to go
If you’ll look down to the one that starts
managers and supervisors. This provision, Mrs. Reid, what
does it convey to the associates?
A: The last bullet?
Q: Yes, ma’am.
A: Well, I mean, it was always our policy that managers
should not interrupt associates on their breaks and their
meal periods for any work-related reason. And this was
just reemphasizing that and making sure that our hourly
coworkers also didn’t interrupt our associates while they
were on breaks and meals.
Q: Let’s go to the next bullet. This next provision says,
“Although it has been our practice to coach supervisors
and managers who repeatedly interrupt or fail to provide
associates with their breaks and/or meals periods, it will
- 36 -
now be an expressly stated part of the policy that
performance coaching will occur in these instances. . . .”
Q: Does Wal-Mart want its employees to take their meal
and rest breaks?
A: Absolutely. I mean, that’s why we have the policy.
Q. And why is that?
A: I mean, again, it’s something that we think is good for
our associates. It’s the right thing to do for our associates.
And for as long as I’ve been here, we’ve done it that way.
And if associates want that time to rejuvenate, we think
they should have it.
Q: Now, since 2003, you’ve had this provision in the policy
that says managers need to approve skipping these
breaks; is that right?
A: That’s correct. . . .
Q: Let’s talk a little bit about the revisions to PD-07 that
you’ve made. Let’s look at demonstrative 91. This is
going back to the March 2003 policy that we looked at a
little bit before, but can you generally explain the changes
that were made in 2003?
A. Yeah. One of the first things we did is, we added statespecific drop down boxes to the policy to cover what the
state’s specific requirements were for those states that had
state-specific requirements. We then, as we talked about
with the talking points, emphasized our expectations for
our associates in terms of compliance with our policy on
breaks and meal periods. We reemphasized managers’
responsibilities and our expectations for them. And we
also emphasized the potential disciplinary action for both
managers and associates. But then we also provided that
clarification about associate’s abilities to skip a meal period
or a break, provided they had approval from their
manager. . . .
- 37 -
Q: And off-the-clock is also important here, so let’s talk
about Wal-Mart’s policy against off-the-clock work. What
is Wal-Mart’s policy, just in simple terms?
A: Well, our policy is plain and simple. Off-the-clock work
is not allowed. Associates are to be paid for all time
worked, and so they should not be working off-the-clock.
They should not be directed to work off-the-clock. They
should not be allowed to work off-the-clock, and we’ve
written a policy on that.
Q: Has that policy been the same since you joined WalMart in 1996?
A: That part has always been very clear.
Q: Let’s look at the actual language of the policy.
Plaintiffs’ Exhibit 27A. Look at that first paragraph. It
says, “It is against Wal-Mart policy for any associate to
perform work without being paid.” Now, Mrs. Reid, does
that mean they also shouldn’t voluntarily also do off-theclock work?
A. That is correct.
Q: We are committed -- it continues. “We’re committed to
compensating every associate for the work they perform.
No Wal-Mart associate should perform work for the
company without compensation. . . .”
Q: It continues: “It’s a violation of the law and company
policy to work off-the-clock or for a supervisor or manager
to request that associates work off-the-clock. If a violation
is recorded, a proper and thorough investigation will be
implemented and corrective action taken when necessary.
Associates who work off-the-clock will be paid for such
The coaching policy will be used to correct
And the facility manager must ensure
associates are properly compensated. . . .”
Q: Now, it talks in here about reporting any violations of
the off-the-clock policy. How does an associate go about
reporting something like this happening?
- 38 -
A: Well, again, they can report it to any member of
management. They can report it using the ethics hotline,
which is a 1-800 number that they call, and it comes into
the home office. They can report it to -- again, they can
report it, use our open-door and report it to any member
of management, not just the ones in their facility. They
can call somebody in Bentonville as well.
Q: You mentioned the ethics hotline. For [sic] long has
that 1-800 been in existence for employees to call to
report anything going on in their stores?
A. Well, the concept of the 1-800 number for the
associates to call has been around again since before I
joined the company. It was renamed Ethics Hotline in
But it was available, and it was the same,
essentially the same number before then.
Q. How are employees made aware they have a phone
number to call?
A. Well, that policy you just reviewed, it’s in there. This
information is covered with associates again during
orientation. It’s in the computer-based learning, CBL,
module. It’s on posters throughout the facility. The ethics
office advertises that.
Id. at 73-75, 81-82, 92-93, 120-23. She testified that there were posters
over the time clocks which reiterated the policy of not working off-the-clock:
Q. We have an old version of that poster, and let’s take a
look at it. It’s Plaintiffs’ 37. It says: “Clock in. We
appreciate dedication, but do not volunteer off-duty time
to work. Under no circumstances should you perform work
without being compensated. “It is against Wal-Mart policy
for an hourly associate to work off-the-clock for a
supervisor or to request or require an associate to work
off-the-clock or for a supervisor to take insufficient action
when they know an associate is working off-the-clock.”
Id. at 126. She testified further:
- 39 -
Q: Do you understand that you are the designated
representative for Wal-Mart most knowledgeable about
A: I do, yes.
Q: One of those being PD-07, rest and meal break policy,
including but not limited to enforcement and revisions to
that policy. Do you understand that?
A: Yes, I do.
Q: Do you understand that you were designated as the
person most knowledgeable to speak on behalf of Wal-Mart
regarding PD-43, the off-the-clock policy including but not
limited to enforcement and any revisions to that policy?
A: I do.
Q: And do you understand that the third item for which
you were designated as the person most knowledgeable at
Wal-Mart to testify in regard to, is Wal-Mart’s
computerized reports and the use of those reports to
ensure compliance with company policy and applicable
A: Yes . . . .
N.T., 9/28/06 (afternoon), at 54-55. When she did not concede that paid
rest breaks were a benefit of employment, a video of her deposition
testimony in another case involving Wal-Mart was played for the jury:
(The following video clip is played for the jury:)
“Q: The paid rest breaks are a benefit of employment,
A: I think they could be viewed as a benefit, yeah. . . .”
Q: Does that refresh your recollection that you have
testified under oath that paid rest breaks and unpaid meal
periods are a benefit of employment at Wal-Mart?
- 40 -
A: Well, certainly that’s what I said, yeah. . . .
Q: You testified earlier that at orientation the hourly
associates are told they get paid rest breaks and unpaid
meal periods; correct?
A: They are told about our policy regarding breaks and
meal periods, yes.
Q: Have you ever looked at Wal-Mart’s benefits handbook?
A: The SPD? Yes.
Q: Does it not state under Benefits, you receive paid rest
A: I don’t know the answer to that question. . . .
Q: My Money and My Financial Future.
second item there?
Do you see the
A: Yes, My Money and Financial Future.
Q: What does it state as a benefit of employment at WalMart?
THE WITNESS: I don’t see where it says Benefits is what I
am missing. . . .
Q: Let me read it for you. “Many people think the word
“benefits” refers only to medical insurance. Not so at WalMart and Sam’s Club.
We are proud to offer you a
comprehensive benefits package ranging from profit
sharing to medical insurance to child care discounts.
Below you will find many benefits and opportunities for
which you may be eligible.” Did I read that correctly?
- 41 -
Q: What’s the second item under My Money and My
Financial Future that Wal-Mart says in its own handbook is
a benefit of employment?
A: The break periods?
Q: Yes. Do you now agree that break periods are a benefit
of employment at Wal-Mart?
A: Again, as I said before, I did not mean benefits in the
sense of a ERISA benefits. But yes.
Q: So rest breaks and meal breaks are a benefit of
employment promised to the hourly associates when they
come to work at Wal-Mart, right?
A: It is certainly beneficial to Associates, yes.
Id. at 60-63. Mrs. Reid was asked about the Shipley report:
Q: You agree that Wal-Mart’s internal, independent audit
staff stopped doing audits for rest and meal break
compliance after the Shipley report in July of 2000, right?
A: I agree the Internal Audit Department did not do more
Id. at 78. Mrs. Reid proceeded to testify about the timeclock lockout:
Q: The first one is Timeclock Lockout. There is two [sic]
Timeclock lockouts, right? One that keeps an employee off
the clock for a 30-minute meal. Correct?
A: Actually, one is clockout-lockout, and the other is a
meal period time lockout.
Q: Which one is this?
A: This is the meal period timeclock lockout.
Q: All right, so this is not where the employees are locked
off the computerized devices such as cash registers, CBL
terminals, TL and E kiosk machines while they are off the
- 42 -
A: That is accurate.
Q: You know the reason that that lockout was put into
place was litigation, correct?
Q: You don’t know that?
A: I don’t agree with that, no.
Q: This is an E-mail from Greg Campbell to Carol Mosely,
A: Yes, it looks like.
Q: A carbon copy to Tracey Engelbrecht, correct?
Q: The subject was log-in verification, correct?
Q: It’s talking about locking the employees off the CBLs,
the SMART telxons, the pharmacy log-ins, the Tire, Lube
and Express log-ins, the vision center log-ins, and the
POS, which is the cash register. Correct?
Q: All right.
Q: “Please help us as you are aware of this hot topic with
all the current litigation we are involved in.” Did I read
- 43 -
Q: It’s a true statement, is it not, that these log-ins to
prevent people from operating the electronic devices at
Wal-Mart was done for litigation purposes?
A: I disagree.
Q: This suggestion came out of a task force that was put
into place in late 2002, correct?
A: This suggestion? Yes.
Q: Yes. And it was put into place at the period of time
when you were the Director of Special Projects, correct?
A: This was actually rolled -- yes, by then I was in the new
Q: All right. You were involved with the role (sic) out of
this new project, were you not?
A: We were informed of the roll out, but we did not do the
roll out. My team did not do the roll out.
Q: The team that came up with this suggestion was
formed to help Wal-Mart’s lawyers respond to litigation
involving off-the-clock allegations, correct?
A: That was one of the purposes of this team, yes.
Q: The other purpose was to identify instances where WalMart employees were working off the clock, correct?
A: Certainly that would have been something they would
have wanted to work on, yes.
Id. at 82-85. Mrs. Reid testified that, pursuant to the policy known as PD43, managers were not required to report employee complaints:
Q: You do not know how many associates in the State of
Pennsylvania in the last eight years have reported to store
managers that they have been forced to work off the clock
in violation of PD-43; correct?
- 44 -
A: That’s correct.
Q: And the reason is, there is no requirement upon a
manager to forward that complaint made by an associate
to upper levels of management; true?
A: I disagree with that statement.
Q: Okay. Let’s talk about what happens if a store manager
reports that he has forced an employee to work off the
clock. That manager is subject to discipline, is he not, or
A: Yes, certainly.
Q: And if a member of salaried management reports that
one of their fellow managers is making employees work off
the clock, that manager who is making associates work off
the clock is subject to discipline, correct?
A: Of course.
Q: Wal-Mart requires its hourly associates to be team
players, does it not?
A: I don’t know where that’s written, but certainly, yeah,
teamwork is great.
Q: Wal-Mart requires its salaried management to be team
A: Again, I have not seen that written anywhere, but
teamwork is great.
Q: It’s true, is it not, that a member of salaried
management cannot apply for promotion if there is a
coaching within the last twelve months in their file?
A: Yeah, that’s our policy.
Q: Right, so a manager who self reports that, I am forcing
an associate to work off the clock or work through their
rest breaks or through their meal breaks, is subject to
- 45 -
being disciplined and therefore not eligible for promotion,
A: They probably would be fired, so yeah, they would not
get that promotion.
Q: Similarly, if Store Manager Bob reports that CoManager Steve is making employees work off the clock
through their rest breaks and meal periods, Co-Manager
Steve can’t apply for a promotion, correct?
A: If Co-Manager Steve is coached, that would be
Id. at 94-96.
Mrs. Reid testified further about Wal-Mart’s policy of not working off
Q: You also stick up all sorts of posters like we saw all over
the place, Do not work off the clock. Right?
A: We certainly do.
Q: You put it in policies?
Q: And the reason that you do all that, why Wal-Mart does
all that, is because you know you got a widespread
problem with employees working off the clock, correct?
A: That is absolutely not true.
Q: If you didn’t have a widespread problem why do you go
through all these measures?
A: Because we choose to educate our Associates about our
policies and our expectations, and we want to make sure
that they are aware of our off-the-clock policy and what
our expectations are for them in terms of paying them for
every minute that they work.
- 46 -
Id. at 97-98.
The jury also heard testimony from Mrs. Reid regarding understaffing
and missed breaks by cashiers:
Q: Okay. Well, let’s go to Plaintiff’s Exhibit 480. . . . This
is the Dallas meeting highlights, and I believe the date
would be in 1999. Were you at that meeting?
A: I do not remember.
Q: Tom Coughlin, again, that’s the CEO and Vice Chairman
of Wal-Mart, the last we heard from him, correct?
A: I am sorry, in ‘99?
Q: Well, the last we heard from Mr. Coughlin in sworn
testimony, that’s what his job titles were, correct?
Q: All right. “Top Five Reason Cashiers Quit”. Do you see
A: I do.
Q: What are the first two bullet points?
A: It says, Can’t get breaks, and Understaffed.
Q: Do you disagree with Mr. Coughlin that the top five
reasons Wal-Mart cashiers quit are they can’t get their
breaks and the stores are understaffed?
A: I don’t know.
N.T., 9/29/06 (morning), at 32.
Mrs. Reid was also questioned about an
internal memorandum from a holiday meeting which occurred in 2002. Id.
Q: What’s the document?
- 47 -
A: It appears to be notes from either a year beginning
meeting or a holiday meeting.
Q: And the holiday meetings or the year beginning
meetings are the top key executives get together and they
discuss what they want to do with Wal-Mart during the
A: No, actually, it’s when they bring in the managers and
they kind of set the direction for the year, and they show
them merchandise and talk about the plans for the year.
Q: First page, General Session One.
addresses the gathering. Correct?
A: These are notes from a speech -- it looks like its notes
from a speech he made.
Q: You would agree with me that what’s being reported in
this gathering is that Wal-Mart’s turnover rate is high.
A: High for Wal-Mart, yeah.
Q: Well, the statement is, “Why is Wal-Mart’s turnover
Q: And it says, “44 percent of turnover is because of
Management and its practices.” Correct?
A: I see that.
Id. at 68-69.
resources, known as People Division.
- 48 -
He was responsible for human
resources world-wide when he retired from Wal-Mart in 2004. N.T., 10/5/06
(afternoon), at 153.
He reported to the president and chief executive
officer. N.T., 10/6/06 (morning), at 15. He was questioned about a memo
dated August 3, 1998, from Kendall Schwindt that went to district managers,
regionals, and to Tom Coughlin, president of Wal-Mart at the time the memo
was sent. Id.
Q: In 1998 Mr. Schwindt was reporting to senior levels of
management that a major issue from the Grass Roots was
that the Associates were not receiving scheduled breaks
and lunches. Correct?
A: That’s what the memo reports, yes.
Id. at 16. Mr. Peterson testified that he did not agree with this assessment.
Id. at 15.
A: Twice a year Wal-Mart has what we call major
meetings. At the beginning of the year there is something
called the Year Beginning meeting, and in the fall there is
something called the Back-to-School meeting or the
Holiday meetings. And all store managers, in some cases
assistant store managers, but then all the district
managers, regional vice presidents and kind of top
management of Wal-Mart are present there.
Id. at 16.
He stated that he believed he was present when Mr. Coughlin
discussed with the group the five reasons cashiers quit. Id. at 17.
Q: You heard, did you not, that Mr. Coughlin stated the top
reason cashiers quit is they can’t get their breaks. Do you
A: No, sir, I don’t think that that’s accurate.
what he said.
- 49 -
Q: And the second bullet point under here for the top five
reasons cashiers quit is that the stores are understaffed.
Do you remember him saying that?
A: No, sir, I do not.
Q: This is an internal Wal-Mart document, is it not?
A: Yes, sir, that’s correct, it is.
Q: I mean it’s posted on your Workbench, correct?
A: Yes, sir, but what he said and what the memo says are
two different things.
THE COURT: What does posted on your Workbench mean?
MR. BRIDGERS: That’s what I was going to ask.
THE COURT: Okay, good.
Q: Tell the jury what the Workbench is?
A: There is an internet system within Wal-Mart where all
Wal-Mart associates can read. It doesn’t go to the outside
but it’s inside. And so after meetings, generally what is
done is just kind of a summary of what took place at
meetings and then it’s kind of put on the website so that
management people who were not able to make the
meeting can go to that website and kind of see what was
talked about and what the key points were.
Q: And when this was put on the Workbench, that was for
every Associate with access to a Wal-Mart computer to find
out what Mr. Coughlin said at that meeting, correct?
A: That would be correct, yes.
Id. at 17-19.
Mr. Peterson was then questioned about a memo dated
October 9, 2000, from Mr. Oneil Clark to Don Harris. Id. at 20.
Q: Sir, now that we are on the same page, do you now
remember when you originally saw this four months after
- 50 -
the Shipley Audit that you were advised that meal and
break exceptions was a chronic problem and the
exceptions were running between 300 and 600 daily?
A: No, sir, I was not particularly struck by that. I was not,
Q: And you understand that 300 to 600 daily means per
store. Do you not?
A: That’s what the memo reports, yes.
Q Rather than putting in the salaried personnel manager,
what Wal-Mart did instead was eliminate rest break
punching so there wouldn’t be so many exceptions to
A: I am not sure I understand the relationship between the
two so I would say no, sir.
Q Well, you know that -- let’s see, October, November,
December, January, three months later, Mr. Harris is
advising the Wal-Mart Management that we are going to
eliminate rest break punching. You know that, don’t you?
Id. at 27.
Dr. Baggett testified about Wal-Mart’s business records:
Q: The records show the swipes made by employees,
correct? . . . .
A: No, sir.
They’re a reflection of the activity of the
Q: That’s my point. And the activity of the associate is to
either go to the time clock and swipe to create a record of
a break, right?
A: Yes, sir.
Q: And whether the associate does that, you can see how
much time there is between they swipe out for a meal or a
break and when they swipe back in, correct?
- 51 -
A: Yes, sir, that’s correct.
Q: And that’s measurable by you and your computer
program as a statistician, correct?
A: Yes, sir, that’s correct.
Q: The other thing that the records show is in many
instances, that the employee did not swipe for a meal
break or arrest [sic] break at all on a given today [sic],
A: Yes, sir, that’s correct.
Q: And that’s identifiable objectively from those swiping
A: Yes, sir, along with other support information from WalMart that validates those records.
Q: And you are able to and have counted up all the times
that an associate either didn’t swipe at all or did swipe but
swiped back in sooner than 30 minutes for a meal break or
sooner than 15 minutes for a rest break, correct?
A: Yes, that’s correct.
N.T., 9/19/06 (morning), at 18-19; R.R. at 1650a-51a.
After being qualified as an expert, Dr. Baggett testified:
Q: And were you given an assignment by plaintiff’s counsel
in this litigation?
Q: Can you tell the jury [what] that assignment was?
A: The assignment was to take a large, and I emphasize
large, amount of data that was provided by Wal-Mart and
condense it down and present it in a form that is easy for
the jury to understand.
- 52 -
Q: And I note that your binding has just been put before
you. Glad to see it made it up there. Dr. Baggett, did you
in fact summarize and finalize hourly employee time
records for all 139 Wal-Mart stores in the State of
Pennsylvania from 1998 through the beginning of 2006?
A: Yes, I did.
Q: And were all those – did all that data – that’s data
provided by Wal-Mart?
A: Yes. . . .
Q: My question is, as a general matter so the jury can
understand what Wal-Mart does with this document, does
the Payroll Scheduling Guide set out how Wal-Mart’s timekeeping system works?
Q: And you see the six steps we have up in the
demonstrative on the screen?
Q: Can you just run through those steps? Are those all in
the Payroll Scheduling Guide in great detail?
A: Yes. Well, first, the employee will clock – will swipe a
time card whenever they go for a break or lunch or swipe
in at the first of the day or swipe out when they go home.
Q: And we saw that in the PD-07 just now when we looked
at it, the obligation to punch in and out for rest breaks and
A: Yes, that’s correct. And then there’s time, something
called a time clock punch exception report that’s
generated, and this report contains information like missed
meals, missed rest breaks, short meals, and short rest
breaks, among other things.
And then the Payroll Scheduling Guide specifies that the
store managers investigate the exceptions and reconcile
- 53 -
those. And after those are reconciled, the time clock
archive report is generated in its finalized version right
Q: What happens next?
A: What happens after that is, payroll is generated. And
again, this is in the Payroll Scheduling Guide. And once
the store managers receive the checks, they reconcile the
hours on the check with what’s on item four, the time clock
archive report, and –
Q: I’m sorry.
A: -- if those match, they then assign the – they give the
check to the employee.
Q: The ultimate activity, the employee gets paid?
Q: I’d like to take just a few minutes, hopefully only a few
minutes, and go through some of the specific sections in
the Payroll Scheduling Guide.
If I could direct your
attention, Dr. Baggett, I want to go step by step through
these things we’ve identified in the demonstrative. If I can
direct your attention, sir, to Section 809 of the Payroll
Scheduling Guide. . . . Dr. Baggett, what about Payroll
Scheduling Guide section 809, the time clock punch
exception report, was important to you in formulating your
A: Well, there’s two parts of this that are important to me.
The first part is that this is Wal-Mart’s own guide in their
own language where it describes the things that you will
find in the time clock punch exceptions report. And among
those are about meal, short break, too few meals and too
Q: Now those are Wal-Mart’s own words about how it
reads the punches in the time-keeping system in its own
guide for the time-keeping systems; is that correct?
A: Yes, that’s correct.
- 54 -
Q: And Dr. Baggett, was there anything else in the Payroll
Scheduling Guide Section 809 that was important to you?
A: Yes, at the bottom of this same page.
Q: What about that section?
A: It states what’s supposed to be done with the report,
and it states specifically management should use this
report to monitor associates and the type of exceptions
that occur. . . .
Q: Dr. Baggett, I’d like to put up an actual sample of time
clock punch exception report so the jury can see closely
what we’re all talking about when we talk about time clock
punch exception report. . . . Dr. Baggett, can you tell me
what was important about Plaintiffs’ Exhibit 2-b?
A: Yes. Yes. At the top of the page, it states that the
following rules apply to all hourly associates.
Q: And do you understand that all the rules that are
referred to in this legend to the time clock punch exception
report are the same rules Mr. Campbell was speaking
about yesterday in his video deposition?
Q: And these are based upon Wal-Mart’s corporate
Q: Dr. Baggett, is there anything else that you found
important in Plaintiffs’ Exhibit 2-b?
A: Yes. The rules include, among other things – and these
are things that show up on the exception report - - short
break, short meal, too few breaks, and too few meals.
Q: Again, Wal-Mart’s own words in its time clock punch
- 55 -
Q: Dr. Baggett, if we can take a look now at the actual –
this is the legend to the report. Can you explain what a
A: Yes. It is a guide to help you interpret the report.
Q: And now can we take a look, still as part of Plaintiffs’
Exhibit 2-b. . . . Was there anything in particular that was
important to you in formulating your opinions in this case
on this page?
Q: What was it?
A: Well, this is important in that this is an example of the
exceptions report, and what it lists are the actual
exceptions that occurred for a day. And what’s interesting
about this one is, we have Dolores Hummel identified with
too few meals and too few breaks for one shift on May 30,
Q: Dr. Baggett, what about this excerpt from [Appellee]s’
Exhibit 83, Ms. Hummel’s time clock are [sic] archive
report for May 30th, 2000, is important to you?
A: Well, down below is, this number is the total hours
worked. There’s a legend over here to the side that
indicates what those two rows are. And these are in
hundredths of hours. So 6.5 would be six-and-a-half
hours, for example. So she’s worked for 6.82 hours and
had .2 hours of meal breaks. But within – so that shift
earned two breaks and one meal, but only one break is
recorded. So this is in military time. She clocked in the
morning at 8:01, went to her break at 10:06, came back
from her break at 10:18. It was a 12-minute rest break.
And then clocked out at the end of the today [sic] at 2:50.
Is that 2:50? 2:50.
- 56 -
Q: Now, Dr. Baggett, under Wal-Mart’s policy, corporate
policy, PD-07, based upon your review of that policy, did
Ms. Hummel earn – was she promised two rest breaks or
that shift and meal period?
A: Yes, based upon PD-07 and if she works over six hours
for that shift, then during that shift, she earned two rest
breaks and one meal.
Q: Dr. Baggett, up on the screen is Payroll Scheduling
guide 701. What about this document was important to
A: Well, this section all the way up through I believe the
Payroll Scheduling Guide, Section 705, describes how the
time-keeping record is maintained and edited.
Q: And does Payroll Scheduling Guide 701 explain how
adjustments and edits are made on the computer system
for individual punches?
Q: If you can turn, Dr. Baggett, to Section 702? That’s at
page WMB-204. What about Payroll Scheduling Guide 702
was important to you?
A: Well, this describes the punch error report.
basically a punch error is just an odd number of punches in
a day. For example, if you just clock in in the morning and
clock out, say, a couple of hours later, that would be two
punches. And if it’s just one punch then there’s a problem
Q: Now, we can turn, Dr. Baggett, to Section, Payroll
Scheduling Guide Section 703. That starts at page WMB211. What about this section of the Payroll Scheduling
Guide was important to you?
A: This describes how the time clock record can be edited
by Wal-Mart personnel in order to maintain its accuracy.
- 57 -
Q: We can go on to Section 704 of the Payroll Scheduling
Guide. That starts at page WMB-220. That’s titled, Editing
and Finalizing Payroll, Finalize Daily. [Sic] About this
section was important to you?
A: This section just describes a little bit more about editing
and also about finalizing the payroll or finalizing the time
clock archive record for the paychecks to be written off of
Q: This section’s called Finalize Daily?
Q: Is this for finalization of the specific days’ payroll hours
the following day?
Q: And if I could direct your attention, sir, to Section 705
which starts at WMB-222. What about this section was
important to you, Finalize Weekly?
A: This is the same thing as the daily, only it’s a weekly
finalization. So when – what the definition of finalized
weekly is, it means all of the errors are removed from the
time clock record via the reports that are printed out that
go with it.
Q: Now see the sentence that Ryan highlighted?
“Finalizing weekly payroll hours transmits the payroll hours
for your store associates to the home office.” Do you have
an understanding, sir, what the home office is as it’s used
in this Payroll Scheduling Guide?
Q: What’s that?
A: That would be Bentonville.
Q: Wal-Mart’s corporate headquarters?
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Q: Dr. Baggett, if we could look at Section 805 of the
Payroll Scheduling Guide that starts at WMB-232 and that
section entitled Time Clock Archive Report. Those are the
records you’ve worked with on behalf of Plaintiffs’ counsel,
is that correct?
A: Yes. The time clock archive report is generated from
the same records that I worked with.
Q: Now, what about Payroll Scheduling Guide, Section
805, was important to you in formulating your opinion?
A: Well, it defines what the time clock archive report is and
which very simply shows the total time worked by day
during the pay period, both actual and edited, for each
Q: And this is a definition in Wal-Mart’s own manual, WalMart’s Bible of the Payroll Scheduling Guide, of what the
time clock archive report is; is that correct?
A: That’s correct.
Q: Dr. Baggett, is there anything else in Section 805 that
was important to you?
A: Yes. There’s a retention time stated that the time clock
archive report – again, that’s the same data that I work
with and that the exceptions, Wal-Mart’s exceptions report,
is printed from, that those records are to be retained for
Q: So Wal-Mart keeps this data as a general matter for
Q: And do you have any understanding, sir, as to why they
A: Well, yes. I understand that these types of records
need to be maintained as part of law, because –
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A: And my understanding is that they’re kept because tax
information is provided, withholding tax, Social Security
information’s, [sic] provided to the federal government
from these records.
Q: And to the government of the state of Pennsylvania?
Q: The Commonwealth of Pennsylvania.
Q: Dr. Baggett, if I could direct your attention next to six
706 – I’m sorry. Well, let’s go to the 706 of the payroll
[scheduling] guide that begins at page 224 of Plaintiffs’
Exhibit 54. Now Doctor Baggett, can you tell me with [sic]
what was important, with [sic] what was important about
Payroll Scheduling Guide seven on ‘06 in your formulation
of your opinions?
A: Well, this is the section that deals with where a store
supervisor verifies the hours on the check that we talked
about a little while ago and confirms those hours with the
time clock record itself.
Q: Wal-Mart doesn’t pay its associates unless the numbers
on the time clock archive report and the numbers on the
paychecks match; is that correct?
A: That’s correct. There’s a direct link, of course, between
the hours and the paycheck. . . .
Q: How many shifts did you have in your data?
A: There were about 46 million shifts.
Q: And were those all the shifts that the employees in the
State of Pennsylvania worked during the period between
1998 and 2006?
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A: No. Those were all the shifts that I received from WalMart.
Q: Did Wal-Mart provide all of the shifts, the data on the
shifts worked by employees?
Q: Do you have any understanding as to why some of the
shifts were missing, some of the data on the shifts?
A: There’s some data that’s just completely missing, and I
don’t know why that’s missing. But there’s other data
that, as you saw in one of the slides before, that’s just too
hard to read to be able to key in. So that was – we - I
considered this as missing as well.
Q: Dr. Baggett, did Wal-Mart maintain this data, the time
clock archive data, and punches in two different formats
during the course of the period from 1998 to 2006?
A: Yes. . . .
Q: And prior to January 2001, was all this time clock
archive data, was that kept in paper?
A: Yes. . . .
Q: And starting in about January of 2001, did Wal-Mart
begin maintaining its time clock data in different format?
Q: Can you explain to the jury what that format was?
A: Well, after January of – after about January of 2001,
they started keeping data on computer, so it was in an
electronic form that was easier to interpret by a computer.
Q: And in connection with the work that you did on the
data, did you have to combine the information on the
paper data with the information in the electronic date
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Q: Can you
A: Yes. Since the paper data couldn’t be handled by
computer, we have to have the paper data, the time clock
record on paper, translated into an electronic format, to it
was hand-keyed in.
Q: And were there all sorts of – strike that. Ultimately was
all of the data provided by Wal-Mart keyed in?
Q: And were you able then to review that data in your
computer using statistical methods and computer
A: Yes. . . .
Q: And I’d like to just direct your attention to, I think the
next one in your book is Plaintiff’s Exhibit 142 for
identification. It’s a document dated January 4, 2001,
from Don Harris, changes in payroll processes. What
about that was important to you in formulating your
A: On the third paragraph down, this is a directive from
Don Harris from Wal-Mart. Says: [“]Secondly, effective
February 10th, we will no longer require hourly associates
to clock in or out for their break periods. . . .”
Q: Dr. Baggett, I’d like to direct your attention to Exhibit
437 . . . . Dr. Baggett, did you review this document, this
part of Plaintiff’s 437, which is a memo from Pat Harris to
Nancy Bass entitled Break Hours, and it’s dated December
Q: And can you tell the jury what you found important
about this document? And I don’t know if everyone –
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perhaps you could read the text in it because it’s still a
little hard to make out in that size.
A: It says these numbers are based on computing one
day’s worth of break time over 15 minutes by the number
of stores across the country, I think, times 365 and divided
by 60. . . .
Q: Dr. Baggett, why was this document important to you?
A: Because it’s a calculation by Wal-Mart across the
country, and that amount is the value that they dock
employees for rest breaks over 15 minutes.
Q: And do you know that because there’s an answer to one
of Plaintiffs’ Interrogatories in this Plaintiffs’ 437 [sic] that
A: Yes. . . .
Q: What about this explanation was important to you in
understanding the document?
A: Well, it described how that number was calculated. And
it begins –
Q: I’m sorry to interrupt. The numbers we’re talking about
was the 26 million dollar number that was handwritten on
A: Yes. . . .
Q: And can you explain to the jury what those 3,185,444
hours were that were being discussed in this document.
A: That’s number of hours across the United States or
3,000 stores at the time that Wal-Mart docks its
employees for rest breaks over 15 minutes.
Q: And I’d like to direct you still in your binder to Plaintiffs’
Exhibit 46, Plaintiffs’ Trial Exhibit 46. This is a document
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dated April 17, 2000, and it’s from Greg Campbell. We
saw Mr. Campbell testify yesterday as part of the
information systems division at Wal-Mart, the computer
people at Wal-Mart.
What about this document, Dr.
Baggett, is, was, of importance to you in formulating your
A: Well, this is one example of Wal-Mart’s reliance on the
time clock punch exception report. And that’s the same
report that lists the missed breaks and meals and short
breaks and meals. And in particular, item two down below
states the time clock punch exception report is a report
that reported any kind of labor violation that could have
some legal repercussions. . . .
Q: Dr. Baggett, what does the document state with regard
to why it was sent?
A: Up at the top, it says: “There has been a bit of
confusion in relation to the exception reporting. I am
hoping to clear it up with this e-mail.”
Q: Now, Dr. Baggett, the date of this document, April 17,
2000, was that significant to you for any reason?
A: Well, it’s close to the time of the Shipley [A]udit.
Q: And was the Shipley [A]udit, Plaintiffs’ Exhibit 88, was
that another document you relied on in forming your
opinions in this case?
A: Yes. . . .
Q: Dr. Baggett, can you tell me what about the Shipley
[A]udit was important to you in formulating your opinions?
A: Well, this audit was done using the same data that I
use to generate my numbers for the work that I do in this
case, and they came up with the same conclusion that I
Q: Do you understand what data was used in the Shipley
Audit, the time clock punch exception reports?
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Q: Are those the same time clock punch exception reports
referred to in Plaintiffs’ Exhibit 46 by Mr. Campbell?
Q: Those are the reports that reported any kind of labor
violation that could have some legal repercussion; is that
A: That’s correct.
Q: Going back to the Shipley Audit, Dr. Baggett, Plaintiffs’
Exhibit 88, can you tell me what in particular in the Shipley
[A]udit was important to you in forming your opinions in
A: Yes. On the second page of the audit, there’s a
particular section on breaks and meals which was part of
the Shipley [A]udit. And it specifically states: Stores were
not in compliance with company and state regulation
concerning the allotment of breaks and meals, as 76,472
exceptions were noted in 127 stores reviewed for a oneweek period. . . .
Q: Dr. Baggett, if I could direct your attention to Plaintiffs’
Exhibit 89. What about this document, Dr. Baggett, was
important to you in forming your conclusions in this
A: Well, this document has the individual stores, of which
there were five in the State of Pennsylvania. . . .
Q: Dr. Baggett, can you explain exactly what’s shown on
Plaintiffs’ Exhibit 89? . . .
A: These are numbers for two of the five stores. This is
store number 2252 in the first column and store number
1623 in the second column. And Wal-Mart has indicated
the number of missed meals and the number of missed
breaks that they recorded in the exception report for each
of those two stores.
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Q: And does the balance – Dr. Baggett, what about the
third page of Plaintiffs’ Exhibit 89 was important to you?
A: These are two additional stores, store number 2287 and
store number 2597, of which, all of these are in
Pennsylvania. And again, for those two stores, the same
numbers are indicated. In other words, Wal-Mart recorded
too few meals and two few breaks and wrote those
numbers down in these two columns for each of those two
Q: Do you understand that those are the actual
computations done as part of the Shipley Audit in these
Q: Now, Dr. Baggett, you mentioned a fifth store. We
don’t – are the numbers for the fifth store in this
document, Plaintiffs’ Exhibit 89?
Q: Did you receive any information about the fifth store?
A: I did, but you couldn’t read it. . . .
Q: I’d like to direct your attention, Dr. Baggett, to
Defendant’s Exhibit 78. Is this a document you reviewed
in connection with formulating your opinion?
Q: And what about this document was important to you?
A: Well, there’s a couple of parts of this. The top section
says: “Providing break and meal periods is part of our
culture. It is the right thing to do for our associates.
We’ve also updated our breaks and meals period policy.”
And then the section down or the bullet point down from
that right here states that: “Due to the importance of
associates taking their breaks and meal periods timely and
completely, associates are subject to performance
coaching for repeatedly failing to clock in or out for meal
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periods, missing breaks and/or meal periods or taking
breaks and/or meal periods that are too long, too short, or
Q: Now, why was this particular piece of information
important to you, Dr. Baggett?
A: Because that piece of information tells me that
voluntary waivers of breaks and meals were not allowed. .
Q: Is there anything else, Dr. Baggett, that was of
significance to you in this document?
A: Yes. Down below, in this real long paragraph here,
states that meal periods should be a minimum of 30
minutes in accordance with company policy and may be
provided for up to 60 minutes which I understand is the
standard in Pennsylvania depending upon business needs.
Q: Dr. Baggett, you have . . . Plaintiffs’ Exhibit 47. That’s
an April 20, 2000, memo from Bob Montfill to regional;
subject, Department of Labor Investigation. What about
this document, sir, was important to you in formulating
A: Well, this was a directive from Bob Montfill to the
regional directors, and it states – it describes that WalMart directs their regional directors to the time clock punch
exception report to determine violations in the time clock. .
Q: And if I could direct your attention, sir, to the next
exhibit in the book, Plaintiffs’ Exhibit 48? . . . This is a
memo dated April 21, 2000, to Don Harris. And what
about this document was of importance to you in
formulating your opinions?
A: It again describes Wal-Mart’s reliance on the time clock
punch exception report. . . .
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Q: And the additional lines that appear under the
highlighted section on Plaintiffs’ Exhibit 51, were those
important to you as well?
A: Yes. It just – it signifies additional importance to the
record that Wal-Mart places on the accuracy of the time
clock record. “Research all errors listed on the time clock
punch errors report. Research the time clock activity log
report and retain and then finalized [sic] daily payroll.”
N.T., 9/19/06 (morning), at 21, 27-32, 35-36, 38-44, 51-56, 58-68; R.R. at
1653a-59a, 1662a-63a, 1165a-68a.
At the start of the afternoon session, Dr. Baggett was asked about a
chart he prepared entitled, “Summary Analysis of Missed Rest Breaks.” He
was asked to explain the chart:
A: For each of the 52 million shifts – or actually, 46 million
that Wal-Mart provided, I compared the shift with what the
rule stated in PD-07 as far as how many rest breaks and
meals they got, and this chart is just – this is the total or
indicates the totals after I added all those shifts up of the
missed rest breaks. So this first column is just the rest
breaks promised by Wal-Mart in PD-07. Then the next
column is the number of rest breaks owed, which I tallied
up from all the 46 million shifts, plus the additional ones
that Wal-Mart didn’t provide. And then the third column is
just based upon each associates’ hourly rate at that time.
And so the totals of the three columns are indicated below,
and the total damages to the Wal-Mart Associates for
missed rest breaks is $68,412,107.
N.T., 9/19/06 (afternoon), at 9.
prohibiting rest breaks. Trial Ct. Op., 10/3/07, at 2. The jury was shown a
chart which showed Wal-Mart’s Timeclock Archive Report Data based upon
the forty-six million shifts and Statistically Determined Timeclock Archive
- 68 -
Report Data. N.T., 9/19/06 (afternoon), at 10; R.R. at 1670a. Dr. Baggett
explained the latter data:
Q: And when you use the term “statistically-determined
timeclock archive report data,” what does that refer to?
A: It means that all that I basically did was take the
average number of missed rest breaks and apply it over to
the data that was missing.
Dr. Baggett, in the column Statistically
[D]etermined [T]imeclock [A]rchive [D]ata have you also
included the shifts for which Wal-Mart did not provide you
And all those shifts include shifts that were
recorded after February 10 of 2001. . . .
Q: And how many shifts were missing from the data that
Wal-Mart provided to you?
A: There was about 10 percent of them missing.
Q: So how many was that total in absence [sic] number?
A: Well, it went – the number of shifts that Wal-Mart
provided me was about 46 million, and then it ended up
being 52 million with the shifts that Wal-Mart didn’t
provide. So a total of a little over 52 million shifts.
Q: And did you use statistically-accepted methods,
common statistical methods to derive the missing shifts
where Wal-Mart did not provide data as to the shifts?
A: Yes, I did.
Q: And do you hold your opinion about the missing shifts,
about your deduction as to the missing shifts to a
reasonable degree of statistical certainty?
A: Yes, I do.
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Q: Did you do any testing in your work to ensure that your
calculation of the missing shifts was correct?
Q: Can you describe that work generally?
A: Yes. I did have the payroll data, but the payroll data
just has information on pay period by pay period, which is
a two-week time span. I don’t have daily payroll data, it’s
just a total after two weeks. So I calculated the number of
shifts that should be in the payroll data and compared that
with the number of shifts that I estimated or that I
determined statistically and compared those. And actually,
the number that I determined statistically is about 5
percent less than what’s indicated in the payroll.
Q: So your number of statistically-determined shifts is a
conservative number based upon your testing of the data;
is that correct?
A: Yes. It’s conservative in Wal-Mart’s favor. . . .
Q: And for that period after Wal-Mart eliminated rest break
punching [February 10, 2001 to 2006], can you explain to
the jury how you statistically determined the number of
rest breaks promised by Wal-Mart pursuant to PD-07?
A: Yes. From all of the timeclock archive data that’s prior
to February 10, 2001 that I had, I used the average
information on missed rest breaks to then fill all of this
information where Wal-Mart had no longer recorded rest
breaks. . . .
Q: Dr. Baggett, the methodology that you used to
statistically determine the missing data, was that a
statistically-accepted method in the community of people
who study statistics?
A: It’s probably the most commonly used technique in
statistics. It’s just a simple average is all [sic] I used.
Q: Do you hold the opinions reflected on this chart to a
reasonable degree of statistical certainty?
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Q: If we could turn to the next chart that would be
Summary analysis of Short Rest Breaks. . . . And that’s
expressed again in hours rather than in number of breaks?
A: Yes, and then Rest Break Hours Owed to Class Members
due to Short Rest Breaks. So I tallied up for all of the 52
million shifts the number of hours that were owed to the
Class members. . . .
Q: Okay, and the Rest Break Hours Owed to Class
Members Due to Short Breaks, that was a total of 902,460
A: That’s correct. . . . For each shift I took that Associate’s
hourly pay and then determined what they were owed
based upon the amount of time out of the short rest
breaks. And that total comes out to $7,561,968. . . .
Q: And, Dr. Baggett, the explanation that you provided to
the jury in connection with the first chart that we looked
at, the Summary analysis of Missed Rest Breaks with
regard to how the statistically-determined timeclock
archive data was derived, is that the same for this chart?
N.T., 9/19/06 (afternoon), at 11-16, 18-19; R.R. at 1670a-76a.
Dr. Baggett was asked to explain the one-minute docking of
employees for long rest breaks:
Wal-Mart doesn’t care about this period or interval.
Actually they do. If that rest break is 1 minute too long, if
it’s 16 minutes long, they dock the associate for that 1
And we saw an example here yesterday of where Dolores
Hummel received a 16-minute rest break and an 11minute rest break. And even though she was promised 34
minutes for that rest break, she only received -- she was
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docked 1 minute. She was paid for 15 minutes of the 16minute rest break and 11th [sic] minutes of the other rest
So it’s like they disregard short rest breaks until they’re 11
minutes or shorter on the one side. But on the other side,
if it’s as much as 1 minute too long, the associate gets
N.T., 9/20/06 (morning), at 28.
Dr. Martin Shapiro, an expert in statistics, computer programming,
and psychology, testified. N.T., 9/21/06 (morning), at 13, 20; R.R. 1745a,
1748a. He compared the time-clock data to the cash-register data. Id. at
20; R.R. at 1749a. Each cashier had a unique cashier identification number.
Id. at 21; R.R. at 1750a.
Q: Is this a computer file that is linked to the cash register
A: Yes, the cash register database is in fact the daily
compilations of this file. Every day, there’s a file created
for every cash register transaction that happened in the
store that day.
Q: And did you then compare those records that the cash
registers generated electronically with the time-keeper
record that is generated when an employee swipes a
badge in and out for shifts or meals or rest bricks (sic)?
A: Exactly. That is, what I did was merge or, if you wish,
marry the two files, so that I could see, or the computer
would see. Obviously I didn’t look at each one of them
individually. But the computer could track whether the
individual had clocked in for the day or whether they had
clocked out for the day before they got on the cash
Q: And can you tell by looking at the data whether the
person clocked in at the beginning of the shift, clocked out
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at the end of the shift, clocked in for a rest break, clocked
out after a rest break, clocked in for a meal, clocked out
after a meal?
A: What happens in the Wal-Mart computer system, is
every time you punch the clock, well, you swipe your
badge, but, old fashioned, we call it punch the clock, every
time you punch the clock, it creates a record in the timekeeper database.
And the time-keeper database
categorizes, names, that record, either as a punch in for
the day or a punch out for a rest or a punch back in for a
rest or the same with a meal, a punch out or in, and then
finally they punch at the end of the day. And they literally
are what is called a punch code. And a one is that you just
clocked in for the day. A two is the end of your shift. A
three is the beginning of a rest. And a four is the end of a
rest, and a five is the beginning of a meal, and a six is the
end of a meal. And a nine is that you didn’t really clock
out, but the manager clocked you out.
Id. at 21-23; R.R. at 1750a-52a.
Q: Was that lock-out program put in by Wal-Mart before or
after you told them you could do this analysis?
A: It was done after I said that I was going to do the
analysis of comparing the two databases, and then they
initiated the lock-out.
Q: How long after you told Wal-Mart you could do this
analysis did they start implementing this time clock lockout program?
A: I think it would be about six months.
Q: Now, what is the significance to you that Wal-Mart
instituted a lock-out program to prevent cashiers from
operating cash registers when they weren’t on the time
A: Well, it signifies several things: One is, you know,
apparently there was something that had to be changed.
There was a problem that had to be cured, and so that’s
one clear thing. The third is that of course they in essence
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were agreeing with me that the analysis, the comparison,
could be done, because the lock-out system is really the
same thing; that is, every time somebody tries to get on
the register, you’re comparing -- you’re looking at the time
clock and asking whether they’re clocked this in or not, so
it essentially is the same analysis that I was doing. So
they’re verifying that the analysis can reliably be done,
because they’re doing it.
Q: Okay. And the problem that you mentioned, is this the
problem of associates operating cash registers while
they’re not on the time clock?
Q: Is this lock-out program something Wal-Mart could
have done prior to the beginning of this class period back
A: Yeah, of course. I mean, it was no different -- the
computer system is no different then than it is now.
Id. at 29-30; R.R. at 1756a-58a.
Q: You have the cash register activity logs that show who’s
operating that register and whether it’s actually being
Q: And on the other hand, you have the payroll data
automatically generated by Wal-Mart’s computers from the
employee swiping in and out?
A: That’s correct.
Q: Or the managers editing?
Q: Tell me what you do in one sentence, please, at that
point in time so I can have follow this (sic).
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A: One sentence. . . . Well, you add the two files together
so that they’re now in one file. But of course, they’re in
the wrong order because when you just put ‘em together,
all of one kind’s at the top, and all of the other kind’s at
the bottom. So you have to sort them. And, you know,
just like you would do on e-mail or Excel or, you know, any
other computer program, you tell the computer to sort, put
all the data from the first store together. Then with -- and
do the same for the second store and so forth. Then once
you have it sorted by store, sort it by person -- that is,
associate ID number -- so that all the data for a particular
person are together. Then finally sort it by date and time
so that now the records are in chronological sequence.
Q: Okay. What I kind of envision -- tell me if I’m wrong -is, I have a letter I’ve got over here and a letter I’m
writing to somebody else over there. And I want to put it
all into one letter and send it to both of them, so I drag
the information off this letter and pull it over. Is that what
you did with these two databases?
A: That’s the first step, yes.
Q: All right. And then you sort it?
A: Then you sort it by store, individual employee, and
chronological order. So what you end up with is in a sense
a time record of -- one record for all the time clock work
and all the cash register work inter-leafed together; that
is, in one long column for each person.
Q: And do you do that so that you can match up what the
person’s doing on the cash register to what their time clock
A: That’s right. For each cash register action. I want to
know were they on the clock or off-the-clock; that is,
what’s the last time record that, time clock record, that
you have. . . . And once you have these two databases
merged so that you can line these times and persons in
stores up, is that when you run your sort function and ask
for it to identify these type of shifts?
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A: Well, the sorting is done first so that they’re interleafed. And then you run a select; that is, let me see
those that are off the clock. Now, when I say let me see,
the computer isn’t really pulling them out.
flagging them; that is, it’s just, you know, putting a one
next to all -- each one that’s off the clock, so that now
when you go to count them or something like that, it
knows what to count versus what to ignore because it’s not
off the clock. . . .
Q: Now, you mentioned 16 stores that you looked at the
data; and as I understand it, that’s data from 2001 to
2006, because Wal-Mart had purged certain data before
2000; is that correct?
A: That’s correct.
Q. For those six -- you mentioned something earlier about
putting a one up there to identify off-the-clock work. Can
you explain that?
A: Well, what I mean is, the final analyses are done by
counting time only in the cash register actions that are off
the clock. So what you have to do first is identify those
cash register operations that are off the clock. And what
the computer does simply is, you tell it the rule to use, and
next to each off-the-clock record, it puts a one, and next
to all the other records, it puts a zero. So now when you
do your counting and so forth, you’re just counting off the
Q: And you’re counting the ones?
A: Well, you may be counting instances -- that’s counting
how many ones there are -- but more likely you’re
counting the time difference between successive ones,
because you want to know the total time off the clock, so
the time record is what you’re looking at usually.
Q: So you’re looking at the length of time between the
successive ones for that particular associate?
A: That’s right, and then you’re going to add them up, yes.
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Q: And the difference in the ones, the time interim of the
ones, is where the employee is actively operating the cash
register but not punched in on the time clock?
A: That’s correct. . . .
Q: For the period of 2001 through part of 2006 of this
class period, did you tabulate those instances of time
where the associate was operating a cash register but not
on the time clock?
A: Yes. . . .
Q. And this chart, can you explain what you did, why you
included this chart in your report?
A: Yes. For each year, I looked at two, two sets of times.
The first set of times are in the next two columns labeled
off clock. Those are the number of hours off the clock and
the number of actual cash register operations off the clock
and -- yes, those two columns.
Q: So the off-the-clock total time – strike that. The offthe-clock number, that’s the instances that you saw where
Q: And by this happening, you’re talking about the lengths
of time where the employee was operating the operator
accountable cash register but not on Wal-Mart’s time
A: That’s correct.
Q: And the second column, off-clock total time, is that the
hours that you get when you add up all these instances of
that period of time?
Q: That period of time again being the time where the
employee is operating a Wal-Mart operator-accountable
cash register but not on the time clock?
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A: Yes. We can be a little more specific: The time after
the cashier logs on to the register; that is, actually puts in
his password again, and then stays on the register.
Q: So the operator that is responsible for that cash
register would input his or her own unique PIN number and
start operating the cash register but not be on the time
A: That’s right. . . .
Q: So for the years 2001 through the number of months
we’ve included in 2006, you identified 22,875.6 hours of
associates in Wal-Mart and Sam’s Clubs operating
operator-accountable cash registers but not on the time
A: That’s correct. . . .
Q: Did you see an increased correlation in the amount of
time the cashiers were on the clock ringing up items during
their shift after Wal-Mart eliminated rest break punching?
A: Yes, that time increases.
Q: Have you seen that in Pennsylvania as well as the other
states that you have analyzed?
A: Yes, I believe that pattern holds.
Q: And you hold that opinion to a reasonable degree of
certainty in your areas of expertise?
Id. at 43-47, 49-50, 52-54, 57, 62-63; R.R. at 1766a-70a, 1773a.
Dr. Shapiro explained how he extrapolated data from the 16 stores:
Q: Now you talked about the 16 stores earlier. How did
you apply it to the 102 stores in Pennsylvania that existed
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A: Okay. What I did was, I divided that number by 16, so
I now had the number of hours per store.
multiplied the number of hours per store by 102 to
increase it to account for all 102 stores.
Q: Is that acceptable in your areas of expertise?
A: Yes. I mean, that’s how you would extrapolate 20 from
a sample to a population.
Q: And do you hold that opinion within a reasonable
degree of certainty in your areas of expertise?
Q: All right. When you calculated the 1,309.4 hours we
saw on the last chart for the 16 stores, what did you come
up with this number as 3 applied to the 102 stores?
A: It’s 8,347.4.
Q: And is that hours?
A: Yes, those are hours.
Q. So you were able to identify through this method
statistically that there were 8,347.4 hours between the
time a Wal-Mart associate had clocked out and the time
they began running the cash register off the clock?
Q: All right. And if you remember the chart a minute ago,
you had 7,520.3 hours for off the clock, and that is the
time that the associate was actually working on an
operator-accountable cash register, actively working up
items or ringing up items while they were off the clock?
Q: That sum was 7,520.3 hours. When you divide that by
16 and then multiply it by the 102 stores that exist, what
do you come up with?
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Q: And again is that hours, Dr. Shapiro, that Wal-Mart
associates are operating accountable cash registers but not
on the clock in Wal-Mart and Sam’s Club stores?
A: Yes. . . .
Q: Now, the next column is average hourly rate. What did
you use for the average hourly rate?
A. Actually I got the average hourly rate from Dr.
Baggett’s report because he had done it already. I mean,
it’s simple enough to do. You just take the payroll file and
calculate the average for each year. But he had calculated
already, and I simply used his numbers, and his number
Q: Do you dispute the figure that Dr. Baggett had gotten?
A: No, not at all. . . . I added -- and another extrapolation
for the missing operator ID; that is, because they were
purged, erased by Wal-Mart until 2003, there are people in
2001 and 2002 that can’t be identified either. In fact,
there are 9 percent of the people who can’t be identified. .
Q: All right. Let’s go to 2002.
methodology for 2002?
Did you do the same
A: Yes. . . .
Q: I noticed that between 2002 and 2003, the number
went from $738,472.30 to 242,765.47.
A: Yes, it’s a big drop.
Q: What do you account for that large drop?
A: In 2003, Wal-Mart changed their policy and introduced
the lock-out; that is, they literally were doing the analysis
we’re looking at now in the sense that if you were off the
clock, the system would not allow you to log on to a cash
register. . . .
- 80 -
Q: Is the manager override and the ability for a manager
to come in after the employee has left and clock ‘em out
earlier, is that what accounts for the fact that you
continued to see some off-the-clock work for cash register
operations after they instituted the lock-out program?
A: That’s right. You can’t tell in 2003, because the lockout was introduced partway through the year. But you can
see it in 2004 and –
Q: Why don’t we go to 2004. What did your analysis in
2004 show for off-the-clock work?
A: Well, there are 130 stores, and you see the amount of
off-the-clock work total drops to $93,000. . . .
Q: All right. Did you do the same for 2005?
Q: And did you do the same for 2006?
Q: All right.
Now, what we have blank on our
demonstrative is 1998, 1999 and 2000. Can you tell the
jury what you did to account for the off-the-clock work in
the stores for which you do not have the data because
Wal-Mart had purged it?
A: Yeah. I simply took the average of 2001, 2002, in
terms of per store, because you then have to account for
the fact that there are fewer stores in those years. I took
the average per store and simply applied it to the earlier
years, corrected by how many stores there were.
Q: So you took 2001 and 2002, because that was the
lowest number of stores; is that correct?
A: Well, I took it because those are the data from before
the lock-out. So if you want to look backwards, you really
have to look at 2000 and 2001 where the rules at WalMart were the same as they were in ‘98, ‘99, and 2000.
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You really can’t use the time after 2003, because they
changed the rules.
Q: So the change in the rule was the implementation of
the lock-out program?
Q: What did you come up with for 1998, Dr. Shapiro?
A: Well, in 1998 for the 68 stores, it’s $262,208. And
actually the date begins August 21st, 1998, so it’s just a
Q: All right. What did you do for ‘99?
A: For the 92 stores, it’s $467,086.92. Again, all of these
are corrected for the 9 percent because they’re using 2001
and 2002 data.
Q: And what did you find out for the year 2000?
A: And in 2000, 95 stores are $511,928.27.
Q: I noticed in 1998 through 2002, the numbers are
relatively increasing, with the exception of maybe $4,000
between 2000, 2001. Do you see that?
A: I’m sorry, say that again.
Q. Sure. You have $262,280 in off-the-clock work in 1998.
. . . What was the total of the amount of off-the-clock
work that you calculated during the class period for WalMart associates who were operating operator-accountable
cash registers while off Wal-Mart’s time clock?
Q: What is your opinion as to the value of the time of the
Wal-Mart associates who were working off the clock and
operating operator accountable cash registers in the State
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Q: And do you hold that opinion and all opinions that you
have given us here today within a reasonable certainty
within your areas of expertise?
Id. at 64-66, 68, 70, 72-76; R.R. at 1774a-75a.
In the afternoon session, Dr. Shapiro’s testimony continued and his
report of September 18, 2006, was discussed. The calculation of damages
in that report differed from numbers given earlier in his testimony:
Q: The new report changes virtually every single calculated
number, doesn’t it?
A: Yes, but the -- a large number of the changes are very,
very small. I think quite easily it’s described to you what
the change is. It’s a very specific point that I realized that
the data analysis did not exactly reflect what I intended
my analysis to be, and so I re-ran the analysis to reflect
the description of the analysis. . . .
Q: The new report that I got last night says that there
were 10,086.5 hours less pre-off-clock work than you had
calculated with scientific certainty on August 30th.
A: Correct. That is the one area that I changed. . . .
Q: Now let me ask you about edits to employee’s time
records. We heard a little bit about that from other
witnesses and you talked a little bit about edits to the
timeclock archive reports as well?
A: That’s not quite -- edits to the timekeeping data. The
Timeclock Archive Report would show the final set of
times. . . .
Q: Let me rephrase it again. You are here to testify on
behalf of the Class in support of its claim for damages for
off-the-clock work, correct?
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A: A specific kind of off-the-clock work, yes.
Q: And the specific kind of off-the-clock work that you
have studied is limited to operator-accountable registers,
A: And operators, which represent about 30 percent of the
Q: Yes, right. And to your knowledge, there is no other
study or analysis of any kind in this case of any kind of
other off-the-clock work, is there?
A: There are no data for the ones you specify because they
are not tracked through a data base. . . .
Q: Does the work that the Wal-Mart cashiers on a WalMart-accountable cash register in Wal-Mart stores who
were not punched in on time clocks appear on the
Timeclock Archive Report used to pay the Wal-Mart
A: No, those times are not in the data, the timekeeping
data used to derive payroll.
Q: So do you just have to look at the Timeclock Archive
Reports to pay the employees for every minute they work
as required by Wal-Mart’s own written policy PD-43?
Q: What else do you have to look at, Dr. Shapiro?
A: Well, you’ve got to look at the other evidence for work
that is not on the Timeclock Archive Report.
Q: Do you have to look at the analysis that you have done
and to find out that the Class has been underpaid by
$2,993,063 and 32 cents?
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Q: Has Wal-Mart always, since 1998, been able to look at
its own records and do this analysis?
A: Yes. . . .
Q: Has Wal-Mart locked the employees off that unless they
are on the timeclock since you told Wal-Mart you could do
A: Yes. . . .
THE COURT: All right. What is your opinion as to whether
the final Archive Time Report accurately reflects all the
work that Wal-Mart workers did in Pennsylvania?
THE WITNESS: The Timeclock Archive Reports reflect the
paid time and the recorded breaks. They do not reflect
off-the-clock work of the other varieties that I have been
N.T., 9/21/06 (afternoon), at 9-11, 21, 48-49, 60-62, 69-70; R.R. at 1780a82a, 1792a, 1801a-02a.
Wal-Mart’s expert testified and attempted to discredit Drs. Baggett and
Q: I understand what you are hired to do, but your team
came up with the same number of shifts, correct?
A: Yes. We were able to understand what Dr. Baggett did
and to replicate his counting of the time swipes in the data
Q: So Dr. Baggett correctly counted the time swipes and
the shifts, correct?
We were able to replicate his analysis fairly
Q: I think last year when you testified, that you came up
within .003 percent of the same number that Dr. Shapiro
came up with?
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A: Yes, that’s right. Again, we were able to replicate his
counts, not at all that we agree with his conclusions.
N.T., 10/5/06, at 33. She testified further:
Q: Is your criticism of Dr. Baggett based on some inability
of his to simply count?
A: No. No. Again, and we talked about this a little bit
earlier, but we can replicate what he did.
understand what he did. And he has counted properly.
Our criticism goes to the conclusions that he draws from
Id. at 37. The following occurred at side bar outside of the jury’s presence.
The Court: What do you assume is wrong?
The Witness: The two major things are that a missed
swipe is not equal to a missed break.
The Court: What else?
The Witness: He is assuming – he is doing the big
extrapolation for missing data. And so he is taking data
that we know is bad and he is using it to fill in data that’s
missing. So he is filling in – necessarily, by definition, he
is filling in data that’s bad. And that’s a statistically
improper thing to do.
The Court: Okay.
Is there anything improper if the data
The Witness: No.
Extrapolation is a technique that
statisticians can use.
Id. at 46-48.
When asked if she was “critical of Wal-Mart for eliminating
rest break swiping,” she replied, “No. That’s not part of my opinion here at
- 86 -
all.” Id. at 90. Dr. Martin’s criticism was based on her opinion that the data
was “bad,” rather than that the methodology of extrapolation was flawed.
Q: Now, are you as confident in your testimony that a
punch exception report in the year 2000 would not identify
a 12-minute rest break as you are of any other opinion you
have offered in this case?
A: Yes. My understanding is that rest breaks between 12
and 14 minutes did not show up on the exception reports.
Q: So, if I show you an exception report that this jury has
seen from May 30, 2000 that identify [sic] 12-minute rest
breaks, 13-minute rest breaks, and 14-minute rest breaks,
will you agree your opinions in this case are wrong?
A: No. I would have to look at that data.
Q: Well, let’s look at it then. Let’s look at Plaintiff’s Exhibit
2b. You have seen Plaintiff’s Exhibit 2b, haven’t you?
A: I don’t know that I have seen exactly this exhibit. I
have certainly seen a lot of timeclock punch exception
reports. . . .
Q: Isn’t it true, Dr. Martin, that the only request you made
was for Mr. Manne to give you what he thought was
important for you to look at?
A: No. That’s absolutely not true.
Q: Did he show you this document, Exhibit 2b?
A: I don’t know if I have seen this. They all look very
familiar. I am not sure I have seen this exact document. I
have certainly seen many documents that are timeclock
punch exception reports.
Q: Do you understand that this document identifies 12minute rest breaks?
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THE COURT: Do you want to read the whole document, or
do you want to read a portion of it, or just wait until she
reads it off the screen?
Q: Let’s look at the fourth shift down. I believe it’s of a
Christopher Boas. Do you see the last break there? On
A: Okay. I see that that says Too Few Meals and Too
Q: It says he got a 13-minute rest break, doesn’t it? Right
there on the right. It says “:13”?
A: Yes. But that’s not the reason that the entry is showing
up on this report.
Q: It’s on the report, is it not, for any manager in that
store to look at, right?
A: Sure, it’s on the report.
Q: So you are wrong that 13-minute rest breaks did not
show up on this report, correct?
A: No, that’s incorrect.
Q: All right. Let’s look at the shift for Mary Brossman.
She has a 14-minute rest break there. Do you see that?
A: Yes, I see that.
Q: You also know, because you have read the
Payroll/Scheduling Guide, that she was docked a minute
for her 16-minute rest break that’s shown there, but she
didn’t get it back although she got a shortened rest break
at 14 minutes, right?
Id. at 91-94.
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Q: Now, in reaching your conclusions, you didn’t rely on
any of the testimony of Wal-Mart’s key executives, did
A: No, that’s not right.
Q: Did you rely on Cannetta Ivy Reid’s testimony?
Q: You know that she is the voice of Wal-Mart with regard
A: I know that she is head of compliance, yes.
Q And you know that she was put on this witness stand by
Wal-Mart, the same witness seat that you are sitting in, as
the designated representative for compliance?
A: Yes, I understand that.
Q: If you read her deposition you would agree with me,
would you not, that she says the exception reporting is
A: Exception reporting is done?
Q: Yes, where they go in and -- the manager goes in and
looks at the punch exception report and investigates and
resolves what’s on that report before the timeclock records
are finalized. Do you not know that?
A: No. That’s not what she testified to.
Q: All right. Let’s play her testimony so we can all see it.
(At this time the following video clip of Cannetta Ivy Reid
is played for the jury:)
“Q: Okay, fair enough. There can be a limited number of
exceptions to that general statement that the timeclock
punch exception report investigation needs to be done
before the timeclock archive report is finalized?
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“Q: But those should be limited exceptions?
“A: That is our goal.
“Q: It should not be the preponderance of the time?
“A: Our goal would be that all exceptions to the best of
that manager’s ability need to be investigated and, you
know, if in fact the person did get a meal period, that that
be reflected accurately in the records. That is our goal.
“Q: Similarly, it is your goal to make sure that if the
employee did not get a meal period that is also reflected in
the timeclock archive report?
“A: Yes, that would be.
“Q: And the timeclock archive report is the finalized payroll
document that’s used to pay Wal-Mart hourly Associates?
“A: Again, I am not going to say it’s used to pay them, but
it does show the Associate, Here are the hours that we’ve
recorded for you for this week for this pay period.
“Q Fair enough. And if an employee’s timeclock archive
report shows 39.85 hours, they’re going to be paid for
39.85 hours in that payroll period?
“A: They should be, yes.”
[Appellees’ Counsel:] Do you remember that testimony?
A: I didn’t see it live before, but yes, I remember that.
Q: Ms. Reid, the designated spokesman for Wal-Mart,
confirms that the punch clock exception reporting is
investigated and resolved before the payroll records are
A: No. She didn’t say that. She said it was the goal, the
- 90 -
Q: Is it your testimony that when Mr. Holley signs the WalMart tax returns under oath, under the penalty of perjury,
that those tax returns are inaccurate?
Q: You know who Mr. Holley is, don’t you?
A: No, actually, I don’t recognize his name.
Q: Mr. Manne
A: I don’t believe I read Mr. Holley’s sworn testimony, no.
Q: Would you agree with me that the top executives in this
company like Mr. Tom Coughlin, Mr. Don Swann, Mr. Mike
Huffaker, know more about what goes on at Wal-Mart than
Q: You would defer to their testimony under oath what
really happens at Wal-Mart rather than the opinions you
have been hired to give this jury, correct?
A: No, I wouldn’t agree with that.
Q: Did you read Mr. Coughlin’s deposition?
A: No, I did not.
Q: Did you read Mr. Harris’ deposition?
Q: Did you read Mr. Swann’s deposition?
Q: Did you read Mr. Castural Thompson’s deposition?
- 91 -
Q: Do you know who Mr. Castural Thompson is?
Q: Did you view the video clip of Tom Coughlin saying,
They are to get their breaks. This just drives me crazy.
They are to get their breaks. It’s not an optional issue.
Did Mr. Manne show you that video clip?
A: I have seen a video clip, I believe in trial, of Tom
Coughlin. I wouldn’t agree with your representation of it.
Q: Did you see the video clip of Don Swann addressing the
personnel -- strike that -- yeah, the personnel managers at
the shareholders meeting, where he says the allegations
are true, and it’s because of payroll pressure?
A: Again, I have seen that video clip in trial. I wouldn’t -I am not sure if those exact words were used.
Id. at 100-05 (colons added). Dr. Martin was questioned regarding the use
of extrapolation in the field of statistics:
Q: All right. Now, extrapolation. You criticize both Dr.
Baggett and Dr. Shapiro for extrapolation, correct?
A: Yes, for the -- for their extrapolation in these situations,
Q: And both Dr. Baggett and Dr. Shapiro extrapolated to
fill in gaps for data Wal-Mart had destroyed, correct?
A: I don’t know whether Wal-Mart -- no, no, I wouldn’t
agree with that.
Q: Dr. Baggett extrapolated to fill in the gaps in the data
he was given, correct?
A: Yes, it’s correct that one reason he extrapolated was to
fill in data that was illegible. He couldn’t read it on the
printed TCAR reports.
- 92 -
Q: It was illegible, and in fact, some were missing,
A: Yes, I believe some of the reports were not available,
Q: And Dr. Shapiro had to extrapolate for information that
Wal-Mart had erased. Correct?
A: No, I don’t recall that.
Q: You don’t recall from reading his report and reading his
testimony that Wal-Mart had destroyed 9 percent of the
operator I.D. information?
A: Now that you say that, I do remember that he had -that for 9 percent of the data in that particular instance he
extrapolated. So you are right, I am sorry.
Q: And another extrapolation Dr. Baggett did was to fill in
the gap because Wal-Mart was no longer allowing its
employees to clock in and out for rest breaks after
February 9, 2001, correct?
A: I disagree with your characterization of not allowing
their employees. They made a decision in February of
2001 not to have employees swipe for rest breaks
anymore. So there is no sort of, by definition, there is no
rest break data after that point.
Q: You know why they did it, don’t you?
A: No, I don’t -- I wasn’t part of that decision.
Q: You know why they did the timeclock lockout to prevent
Dr. Shapiro from doing this analysis was because of
litigation, don’t you?
A: No, I don’t know that.
Q: Put up Exhibit 522 please.
A: Yes, I have seen this E-mail.
- 93 -
Did Mr. Manne show you
Q: And you read it carefully, didn’t you?
A: Yes, I read this E-mail.
Q: You know that Greg Campbell in the ISD Department
was asking for these lockout programs, and he said,
“Please help us, as you are aware of this hot topic with all
the current litigation we are involved in.” Did you not
notice that when you read it?
A Yes, I noticed that.
Q: So it’s a true statement, is it not, that the timeclock
lockout program was done because of litigation?
A: This document -- yes, I believe this document says that
one of the reasons for the timeclock lockout decision is
litigation. I am sure there are other reasons.
Q: You are reading that into this on behalf of Wal-Mart,
THE COURT: Reading what into what?
Q: That there are other reasons. It says the current
litigation. It doesn’t say anything else, does it?
A: This document doesn’t say anything else, no.
Q: Thank you. And you know that Wal-Mart eliminated the
rest break punching because of litigation, don’t you?
A: No, I don’t know that.
Q: All right. Dr. Baggett had to extrapolate the rest break
punching after Wal-Mart -- strike that. Dr. Baggett had to
extrapolate the missed rest breaks after Wal-Mart
eliminated the rest break punching because Wal-Mart did
away with the proof of that; correct?
A: Yeah, I wouldn’t agree with the way you are
characterizing it. He had to extrapolate because there was
- 94 -
no rest break swiping after February of 2001.
was, by definition, no rest break swiping data.
Q: Let’s see if we can agree on this. You would agree if
Wal-Mart was still punching out for rest breaks, Dr.
Baggett wouldn’t have to extrapolate to find out when the
timeclock archive reports showed a missed break, right?
A: Yes, that’s right. If there was still swiping, he would
have data rather than extrapolation.
Id. at 107-11; R.R. at 2079a-83a.
Dr. Martin testified that she used
extrapolation when she testified in a case against Wal-Mart in California.
Q: Wal-Mart hired you last year in the matter in which you
testified in November to extrapolate for them, didn’t they?
A: No, they didn’t hire me to extrapolate for them. . . .
Q: Did you extrapolate last November on your own?
A: Yes. That was one of the pieces of analysis that I did.
You extrapolated for meal break waivers,
correct, prior to March of 2003, right?
A: Yes, that’s right.
Id. at 111; R.R. at 2083a.
Q: Now, I believe when we broke you were talking about
the opinions that you had given on behalf of Wal-Mart a
year ago when you extrapolated that. Do you remember
Q: In fact, what you did is, Wal-Mart began taking written
waivers from its employees regarding meal breaks in
A: Yes, that’s right.
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Q: You took the evidence of written waivers beginning in
March 2003 and applied them to the period before March
2003. You remember that?
A: Yes. I used extrapolation to draw a conclusion about
waivers orally that had occurred before 2003, that’s right. .
Q: Do you remember admitting on cross-examination that
there were 207 written waivers in Wal-Mart’s system prior
to March 2003?
A: Oh, I am sorry, 207. I thought you said 207,000.
didn’t know what you were talking about.
Q: I misspoke. Let me make sure we understand each
You extrapolated that there should be
600,000 waivers prior to March 2003, correct?
That was approximately the number of oral
waivers that I estimated occurred during that time period.
Q: Right. And you extrapolated that estimate of oral
waivers based upon the number of written waivers WalMart got from their Associates after March 2003, right?
A: Yes, that’s right. . . .
Q: Dr. Baggett, where there was missing data prior to
2001, filled in the gaps by extrapolating, correct?
Q: You understand, do you not, that Dr. Baggett verified
those extrapolations by comparing the shifts that he
estimated by the total hours on the TCARs. Did you know
A: I read his report, yes.
Q: He did not disregard any data to do that, did he?
A: No, I am not aware that he disregarded any data. . . .
- 96 -
Q: You know for a matter of fact, do you not, from reading
[Dr. Shapiro’s] testimony that Wal-Mart had purged 9
percent of the operator information, correct?
A: Yes. I understand that 9 percent of the operator
information was missing, according to Dr. Shapiro’s report.
Q: And Dr. Shapiro then extrapolated from the data he did
have to fill in for that 9 percent, correct?
Q: In addition to that, Dr. Shapiro extrapolated from his
example of 16 stores to the 139 stores in general, correct?
A: Yes, that’s right.
Q: You have access to the same data, don’t you?
Q: And you have never done the analysis for those other
hundred-some-odd stores either, have you?
A: No, I have not. . . .
Q: Now let’s talk about your criticism of Dr. Baggett for the
six-hour shifts. You have read PD-07, correct?
Q: If an employee goes over six hours working for WalMart, even if it’s six hours and one minute, they are
entitled under PD-07 to a meal break, right?
Q: And they are entitled to a rest break, right?
Q: A second rest break, correct?
A: Yes. . . .
- 97 -
Q: They are entitled to it because Wal-Mart has promised
them as a benefit of their employment, correct?
N.T., 10/5/06 (afternoon), at 122-28; R.R. at 2085a-86a.
organizational psychology, and statistics, testified for Appellees that a
reasonable employee would understand Wal-Mart to have offered and
promised the benefits.
Q: Dr. Landy, could you tell the jury what Defendant’s
Exhibit 146 is?
A: This is a description of various benefits that associates
get when they come to work for Wal-Mart.
Q: It’s called the associate benefits book?
A: The Associate Benefits Guide, The Associate Benefits
Q: And what about this document did you consider
A: Well, what I particularly found important were pages
110 and 111 of this document.
A: . . . Section is called My Money, right. And if you
highlight Paid Programs, just the first two lines, right.
That’s good. In addition to the pay you receive for regular
day’s work, there are other programs and benefits that can
supplement your income. And then they’re going to list a
number of these benefits.
So if you go to the next page, the very first item on the
top says one of those benefits they were just talking
- 98 -
about, paid break periods: Take a break and get paid for
it. Paid breaks differ by facility. See your personnel
representative for details about paid break time in your
division and your facility. Yesterday we saw a comparison
of Sam’s Club and Wal-Mart. And what it showed was that
in all facilities, the break policy is the same. If you work
three hours, you get one break. If you work six hours, you
get two breaks.
So in this benefit guide they hand to associates, this says
this is a benefit; this is what you get, this is part of your
money. . . . Because they’re all communications to the
associates. They all represent the same promise, the
same agreement. They say it on posters. They say it on
the website. They say it on benefit guides. They say it
every place they can, that this is a benefit.
So the associates say, they’ve said it often enough and in
as many different places and in as many different ways, so
this is their promise. And Tom Coughlin said this is a nonnegotiable.
Q: Dr. Landy, I’m going to ask you to refer to Plaintiffs’
Exhibit 460, which I think was right around, yeah. I think
you have it there, 460. It’s the associate handbook?
Q: Can you tell the jury what this is and when associates
A: My understanding is that when the associate is -- it’s
one of the early steps in them becoming a 1 worker for
Wal-Mart. They’re given an associate handbook. They’re
asked to read it and to sign it and acknowledge that they
have seen what’s included in it.
Q: And can you refer us to the page where they have to
A: I see, right. This is in the left-hand section, give the
signed -- read and sign the acknowledgment, separate the
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acknowledgment to your manager.
Q: Is there anything that you reviewed in the text below
that you considered in developing your opinions in this
A: There is a sentence about halfway down that paragraph
that begins, from time to time, if you can highlight that
right. From time to time, Wal-Mart may determine that it
needs to change some of the policies or programs in this
handbook in order to better meet the requirements of our
associates and the company.
Then the next sentence: If any policies or programs are
changed, modified, deleted, or supplemented, Wal-Mart
will notify associates as soon as possible. . . . [T]hey have
told them in every way they can that paid breaks are a
benefit. They’ve told them on the website. They’ve told
them on the paper guideline, the booklet. They’ve told
them on posters. Tom Coughlin has said it in messages. I
mean, they’ve said it every way they can that this is our
promise to you.
N.T., 9/13/06 (morning), at 42-44, 46-47, 52; R.R. at 1553a-55a, 1557a58a, 1562a.
Dr. Landy testified that the manager bonus program impacted
negatively on the rest breaks and off-the-clock benefits:
And as we had seen a number of times yesterday and the
day before, the single biggest expense for a manager was
payroll. It was payroll. So if a manager could reduce
payroll and stay within the hours they gave him or her, in
all likelihood, as long as the sales stayed where they were
supposed to be, the manager would make a bonus. And
the lower the expenses, the bigger the bonus. So I was
already concerned about preferred hours. Everybody was
concerned about that. There were managers concerned
about it. There were associates concerned about it. We
don’t have enough people. That translated directly into
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bonuses for managers; that is, running a store with fewer
people meant lower expenses and a bigger bonus. . . .
Q: Did you make any association between a store
manager’s ability to capture missed breaks, missed meals,
off-the-clock work, and his bonus?
A: I did.
Q: Can you tell the jury what your association was?
A: I did some calculations, and there’s really big numbers.
But I can give you the bottom line to this: If we have a
manager who takes -- who’s able to capture one minute a
week, just one minute a week, so if I have two minutes in
a year, is able to or her store, so let’s just assume that
there were 300 associates in the store, which is not an
outrageous number. That’s kind of average, maybe a little
low. All he had to do is get one minute of their time every
week for 52 weeks and he would add to his bonus
something around $1300 for one minute. So if he could
capture one minute a week from 300 people, that would
increase his bonus by $1300. Now, if –
Q: $1300 a week?
A. No. $1300 at the end of the year, but that’s for one
Q: Oh, I see.
A: If he was able to capture one hour, this is over just one
hour, a week, his bonus would be enhanced by $82,000.
Q: So if an associate missed two breaks and one lunch?
A: $82,000. If 300 associates missed two breaks and one
lunch a week, or you could have two hours of off-theclock, it really doesn’t matter how you put it together, it’s
rest break, meal break -- he would see $82,000 more in
his bonus at the end of the year.
- 101 -
Id. at 77-79; R.R. at 1585a-88a.
Dr. Landy testified that Wal-Mart was
aware of the violations of company policy:
A: Exhibit 98 is a memo from Kendall Schwindt. We’ve
talked about him before. He was one of the generals. And
he says that in this memo, which goes to store managers,
so this is one of the generals talking to the troops. A
major issue from grass roots was that our associates are
not receiving scheduled breaks and lunches. Now grass
roots was an employee survey they do every year to find
out whether the employees are happy. And the employees
were saying they’re not getting their scheduled breaks and
lunches. He says not only is this against company policy,
it is also a violation of federal law. Violation of this policy
will result in disciplinary action. He’s saying it is our
responsibility to keep track of records and to give people
their appropriate breaks.
It’s not only law, it’s also
Q: All right. Now, who was this memo sent to?
A: Well, the memo was sent to all store managers. But on
the right-hand side, you can see it went to all the Division
1-A district managers and all the regionals and then to
Tom Coughlin. And Tom Coughlin is the CEO. So the date
of this memo was also kind of important. It’s 1998.
N.T., 9/12/06 (morning), at 51-52. Dr. Landy was asked whether there was
a problem with cashiers:
Q: Had there been any indications other than the grass
roots survey, had there been other surveys that top
management had seen at Wal-Mart indicating they may
have a problem with staffing or cashiers or something like
A: Well, yeah. I mean, there are cashiers, what’s called a
cashiers’ survey, where they were concerned about the
turnover with cashiers. The turnover for cashiers might
run 120 percent, 140 percent, which means the average
cashier stays with Wal-Mart in a store that has 140 percent
turnover six months, seven months, then we’re go. We’re
- 102 -
spending time to train them. We’re getting them into the
schedule, and then they’re leaving. What’s going on? So
they would survey cashiers to see how come they’re
And one of the things that cashiers would
frequently say is, we’re not getting our breaks. We’re on
our feet too long. We’re not getting relieved. It’s just a
grueling kind of job. . . .
Q: Exhibit 48 what you’re referring to?
Q: Was there something significant about where this went
to, and can you tell the jury about this?
A: Well, the issue is that this was something that Tom
Coughlin said at a Dallas meeting, and that is that the top
five reasons cashiers quit are, they can’t get breaks and
Understaffed means not enough
people. Same thing as [sic] since there’s not enough
people, they can’t get breaks.
Q: Is there a correlation between understaffing and the
ability to get breaks and meals?
A: Yeah. I mean, it’s logical. If you don’t have enough
people to relieve somebody, they can’t get a break. So if I
have staffed a store of some kind with just enough people
to run every part of the store but I don’t have one extra
person who can wander around and give people relief,
what are you going to do? I mean, you can’t just say
sporting goods is closed for an hour or, you know, we’re
not going to unload a truck.
Id. at 55-57.
Dr. Landy described the purpose of the internal audits that
Q: Now I think you indicated that there were a number of
audits then done?
- 103 -
Q: Tell the jury approximately how many? I think we have
a stack of them?
There are about ten.
And they begin in
September of ‘99, which is about the same time as that
memo we saw about Tom Coughlin and the Dallas
meeting. It was in ‘99, around that time period. They
start doing individual audits, sometimes just a single store
like a store in Alabama or Iowa.
Q: Like 104?
A: Correct, that’s a good example.
Q: And these run through -- and rather than throwing
them all up, just so we can save the jury some time, how
many are we talking about, what?
A: I think there are ten.
Q: So like 104 through 113?
Q: But this is an example, a good example, of all the rest
we would look at?
A: Yeah, the only difference being if you want to highlight
audit scope, yeah. This one was conducted in 12 stores
across the United States. Some of them were done with
just one store. Some of them were done with collections
of stores, so some of them are big, and some of them are
small. But yeah, they’re all -- the structure of them is
pretty much the same.
Q: And what did you find significant about using this as an
example of the 12 others -- 10 others?
A: Well, a couple things. First, if you go to the upper
right-hand CC, yeah, just highlight the whole thing, we say
first this is going to Tom Coughlin. I’ll just pick out some
of the names of the four-star generals. It was going to
Rob Hay, who was Tom Coughlin’s deputy assistant. It’s
going to go Mike Huffaker. It’s going to Dale Jackson,
- 104 -
going to Coleman Peterson who is here in the courtroom.
It’s going to Kendall Schwindt.
It’s going to Larry
Williams. It’s going to regional VPS. So it’s going to a
(sic) lots of folks, generals. So that was the first important
thing. The second important thing is if you go down to
breaks and lunches because that’s obviously what one of
the things that interested me was breaks and lunches,
there were in these 12 stores during this week, there were
738, 15-minute breaks scheduled, and there were 208
exceptions. An exception could be a break that wasn’t
taken or a break that was too short.
So that’s an
exception. So 28 percent of the scheduled breaks were
not taken or at least were too short. And then if you look
at the lunch breaks, 344 were scheduled in these 12 stores
during this week, and 28 of them were exceptions,
meaning that either they got too short a break or the
break came too -- or the lunch or break or the lunch came
too late or they didn’t get a lunch at all. So that’s 8
percent of ‘em. So what they’re saying essentially is, the
relative thing, is that the violation of the company policy
about the 15-minutes breaks proportionately is much,
much greater than the violation of lunches, but missing
eight percent lunches and missing 28 percent breaks?
That’s a big deal.
Q: And now there are audits that were done for at least
nine other places or groups of places, correct?
A: Yeah. Just let me make one more point about that, the
first line of that. Says a review of the time clock archive
report was conducted so the time clock archive report -that’s the gold standard. That’s what you look at. That’s
what with (sic) the auditors looked at. Anyway, there
were nine more of these that were done either for an
individual store, for a group of stores, during a period
roughly from September of ‘99 through March, April, May,
of 2000. So a period of about a six, seven months, there’s
ten of these audits that concentrate on meal and rest
Q: And you relied on all of those exhibits 104 through 113
in developing your opinions in this case, correct?
A: I did.
- 105 -
Id. at 62-65.
Dr. Landy testified about the Shipley Audit, a nationwide audit of 128
stores, 5 of which were in Pennsylvania. Id. at 65-67. The audit indicated
that 76,472 exceptions were noted in 127 stores for a one-week period. Id.
at 67. The audit indicated that the number of too-few breaks was 60,767,
the balance missed meals.
Id. at 68.
“There aren’t enough
people in the store because of preferred scheduling, which is leading to
missed breaks and missed meals. So now this is all starting to make some
sense. And the audit says, we’ve got a problem.” Id. at 74. There was a
policy for correcting mistakes:
The average store runs between 30 and 50 time
adjustment slips daily. This is 300 to 600 exceptions, but
only 30 to 50 adjustments. Adjustment means that the
associate actually comes and says, no, no, I actually did
get my break; I just forgot to swipe in or out for. So it
says the magnitude of this problem even after they correct
it for honest mistakes is big.
Id. at 81-82. The parties stipulated that the jury would be told how many
lawsuits against Wal-Mart had been filed.
Id. at 86.
As a result of the
Shipley Audit, the following actions were taken:
They -- well, two things: First is that they didn’t do any
more audits. We saw those admissions for rest breaks or
And the second was that they
eliminated the process whereby associates would punch in
or swipe in and out for rest breaks, so they just eliminated
punching in and out for rest breaks.
Id. at 88.
- 106 -
The commonality of proof of the loss of rest breaks and work off the
clock was demonstrated by Appellees relying upon Wal-Mart’s own business
records.18 Dr. Landy testified:
Q: [W]hy did you consider the time clock archive reports
important in performing your analysis?
A: Well, there’s the -- the important part of the time clock
archive reports is that this is the official record of -- of
how, for example, when we talked yesterday about you’d
lose a minute if you’re a minute too long on break, you
don’t get it back, and you said that it’s the time clock
archive report that shows. And we looked at it yesterday,
a version of it. It shows you how the computer adds and
subtracts time, which means adds and subtracts money.
So the time archive report is the official record. That’s
how Wal-Mart pays its people and presumably pays taxes
on them and does other kinds of things. So that’s -- that’s
-- that’s the official record. . . .
Q: Other than getting the little documents again, we
created a sheet. What did you consider important about
this, and can you tell the jury what it is?
A: Well, this is -- this is a report that comes off of the
report we just saw. So the time clock archive report says
you should have had a 15-minute break, you had a 14minute break. It would appear here on the next report –
this is a more refined report -- as a long break, for
example. . . . So a long shift means, watch out, this
person could be headed for overtime, and you may want to
take some hours back later in the week so you don’t get
into overtime, because overtime is not good. So we have
all sorts of these things that are indicated here: Short
break, short shift, meal too early, too many meals, long
Cf. In re Wal Mart Employee Litig., 711 N.W.2d 694, 695 (Wis. Ct. App. 2006)
(denying class certification based upon unmanageability of class; because “much of
the pertinent Wal-Mart payroll records were generated in the first instance by
members of the proposed class,” Wal-Mart would have right to examine those
- 107 -
break. So this is the report, which comes off of the time
archive report, now identifies for the store manager all
sorts of key little things. Now, it does a couple of things.
It tells the manager what’s going on here so a long shift,
the manager says, “Ooh, you know, Mike Donovan worked
ten hours. I got to keep an eye on his hours for the rest of
the week because we can’t get into overtime. The second
thing that’s -- that it indicates what that computer down in
Bentonville is going to do. A short break is going to take
some time off -- I mean a long break will take your time
away. If you’re on a break two minutes too long, that’s
coming out of your paycheck. . . . But what it does say,
when you have too few breaks, you now -- you’re now
notified in an official sense this could be a problem. There
could be a violation of some kind, company policy, the
promise, a wage and hour law if it’s a lunch or meal. So,
this report tells you a lot of things.
Id. at 30-34.
Ms. Hummel was a named class representative. She testified that she
started to work at a Sam’s Club store in 1992. N.T., 9/18/06 (afternoon), at
11, 24; R.R. at 1632a, 1635a.
Q: Do you remember that there was an orientation at the
start of your working at Sam’s Club in 1992?
Q: And during
A: Yes, I did.
Q: Did you also sign an Acknowledgment form?
Q: And did you understand when you did that that you
could quit Sam’s Club at any time?
- 108 -
Q: Did you also understand that Sam’s Club could
terminate you at any time?
Q: Did you understand, in other words, that you were an
employee at will?
Q: Now during this orientation at Sam’s Club, did you learn
that you were entitled to get paid rest breaks?
A: Yes, that’s what I was told.
Q: And did you understand you were entitled to paid rest
breaks depending upon the length of the shift that you
worked, the number of hours?
A: Correct. . . .
Q: Did you ever miss meal or rest breaks during the time
you worked at Sam’s Club?
Q: And did you -- were you told by any manager at Sam’s
to work through your rest breaks or meal breaks to get
your productivity up? . . .
THE WITNESS: Yes.
Q: Ms. Hummel, did you work off the clock while you were
an employee at Sam’s Club?
A: Yes, I did, many times.
Q: And why did you do that?
A: Because my managers told me to.
- 109 -
Id. at 13-14, 20-21; R.R. at 1634a. She was terminated after ten years and
told that there was not enough work for her in the bakery. Id. at 23.
Ms. Braun was an employee at Wal-Mart from November 17, 1998,
until she was fired in late January of 1999. N.T., 9/15/06 (afternoon), at 9;
R.R. at 1626a.
Q: Do you remember that first day you went to Wal-Mart?
A: Orientation, going through the Handbook, them
explaining what was to be done and how it’s to be done.
Q: About how long did that last?
A: About four -- four hours everything lasted.
Q: Did you read the Handbook?
A: Did I read it in its entirety? No, but I did skim through
it, and I can remember a lot of things.
Q: What do you remember about the Handbook or your
first day there at orientation about the rest and meal
A: Fifteen minute meal -- I am sorry, one-hour meal
breaks, fifteen-minute breaks, regular breaks, to clock in
and out, to -- well, it was basically what we were entitled
Q: And as a result of that -- well, let me back up first. Did
they show you where the timeclock was?
Q: Was there any posters around the timeclock?
A: Yes. There was posters all over the place.
Q: What did the posters say?
- 110 -
A: Punch in and out, make sure you get your meal breaks,
make sure you get your breaks, be accordingly(sic) when
you are on your breaks.
Q: You were hired as a cashier, correct?
Id. at 7-8; R.R. at 1624a-25a. Ms. Braun was asked to describe the time
between the day after Thanksgiving, which was referred to as Blitz, and
Q: Was that a busy day?
A: Busiest. It was as if they were standing there pounding
on the door to walk in that morning. I am looking at them
before they walked in the door.
Q: Now between Blitz, the day after Thanksgiving, and
right before Christmas when you stopped being a cashier,
can you tell the jury what it was like there as a cashier?
A: It was horrible. Some days you got your breaks, all of
them. But there was a lot more times where, especially
being a cashier, you would be on your lunch for 23
minutes, you would get called right back in. They would
come outside and get you.
If you were sitting outside enjoying your meal break, they
are out the door getting you. They would bring you back
in, but I got to clock back in. You can’t, you don’t got time
for that, you got to get back on the register, look at the all
lines we got there (sic). . . .
Q: Now you mentioned having to zone. Did you ever have
to zone off the clock?
A: All the time.
Q: How would that come about?
- 111 -
A: When I was on the cash register we would go up count
out our money, throw our bags in the cash room, come
down, do our registers, go to the door, getting ready to
leave, ready to leave. No, you got to go help soft lines, or,
you got to go help the electronics department, or, you got
to go help the hunting department. I thought my job was
done, and I was told -- I had said my schedule is until 11
o’clock. I am to leave at 11.
Q: Did you work at the Franklin Mills store?
Q: Did that store close at 11 p.m.?
Q: Were you told to go zone after the store was closed?
Q: When you went and tried the front doors, what did you
A: It was locked.
Q: Who told you to go back and zone?
A: A lot of occasions it would be a customer service
manager. On two occasions it was Travis Bailey, the Store
Manager. . . .
A: I was told if I had a complaint, problem, personal
problem, door is always open.
Q: And what happened when you used it to complain about
being locked in the store?
A: I got fired.
Q: When you were the cashier, how would you signal the
Cashier Service Manager that you desperately needed a
- 112 -
A: You flick your light up and it blinks.
Q: Were there store meetings concerning that?
Q: What were you told in the store meetings by Wal-Mart
A: Exactly the way they said it?
A: “Starting to look like Christmas out there, stop blinking
Q: Was that out on the floor?
A: That meeting was on the floor. . . .
Q: Did you miss rest breaks at Wal-Mart?
Q: Did you receive short breaks at Wal-Mart?
A Yes. . . .
Q: Were you forced to work off the clock?
Id. at 10-11, 18-19, 26-28.
Patricia Holley testified that she worked at the Franklin Mills Wal-Mart:
Q: You were told by a member of salaried management at
the Franklin Mills store that despite the policy that said you
got two rest breaks, your second one was a privilege?
Q: Were you working more than six hours so that you
earned it under PD-07?
- 113 -
A: I was actually in the Wal-Mart store for nine hours. My
schedule scheduled me for nine hours.
Q: How did it come up that you were asking about the
second break that you weren’t receiving?
A: Because I never got them and I wanted to know, I
asked, well, I thought I was supposed to get two breaks.
And he said that’s it, the second one was the privilege.
Q: How did you know you were supposed to get two 15minute rest breaks?
A: I did read it.
Q: Did read what?
A: I read it in the Handbook.
Q: You were fired from Wal-Mart, correct?
N.T., 9/22/06 (afternoon), at 6-7.
Delores Killingsworth Barber was a Wal-Mart employee from 20032005. N.T. 9/25/06 (afternoon), at 16; R.R. at 1897a.
Q: Do you recall anything from your orientation at WalMart?
A: We just -- different people were there for different
positions, they had addressed us by positions, what our
responsibilities would be according to our positions. They
let us know about their policies, that we get breaks -- we
get two breaks and we get a lunch. So I thought that was
a great benefit. They let us know about their insurance,
the 401(k), their stock plan, different things like that. . . .
THE WITNESS: We didn’t get our breaks because there
wasn’t enough people to cover us, to relieve us to get our
breaks, to take our first fifteen minutes. Sometimes our
- 114 -
lunch we wasn’t able to take until the end of the shift, or
we would have to take a half a lunch, things of that
Q: Was anything said to you by anyone about your second
break that stands out in your mind?
A: They -- we would request our breaks and they would
just let us know that we couldn’t take it, they didn’t have
anyone to relieve us, as soon as they could that they
would. And this was said to us by the Customer Service
Managers, the CSMs and sometimes the assistant
managers, the salaried managers.
Q: How frequently would this happen?
A: That we didn’t get our breaks? Probably about three
times a week we didn’t get our breaks.
Id. at 16-17, 20; R.R. at 1897a-98a, 1901a.
Instantly, the trial court opined:
In support of their claim, [Appellees] present expert
analysis of [Wal-Mart’s] own computer records of
employee time and activity. [Appellee] relies upon the
expert opinion of Dr. L. Scott Baggett[,] a highly qualified
consulting statistician, the opinion of Martin M. Shapiro[,]
a highly qualified psychologist and researcher at Emory
University with significant experience in the application of
the statistical quantification of measurement operations,
each of whose reports are of record and the “Shipley
Audit[,]” an analysis performed for management purposes
All expert analyses relied upon [WalMart’s] own computer records maintained in the regular
course of their business for business purposes, namely to
determine the pay earned by hourly employees. These
computer records are mandated by law including the
Pennsylvania Minimum Wage Act of 1968 which states:
“Every employer of employees shall keep a true and
accurate record of the hours worked by each employee and
the wages paid to each . . . .”
- 115 -
[Wal-Mart’s] business record, the “Time Clock Archive
Report” records the “total hour’s (sic) worked” and “total
breaks” for every employee for every shift worked. [WalMart’s] own records, the Time Clock Punch Exception
Report lists missed or inadequate breaks. These reports
have been utilized and relied upon by [Wal-Mart’s]
management for payroll and evaluation purposes. The
same reports were relied upon and analyzed by
[Wal-Mart] claims to have an unalterable written policy of
providing all employees and there all putative class
members with all mandated rest and meal breaks. This
policy, applicable to all employees, incorporated in “PD-07”
requires that all “work associates” receive one paid rest
break of 15 minutes during any three hour work period
and two paid 15 minute rest breaks and one unpaid meal
break of 30 minutes over a six hour work period. [WalMart] further claims to have an unalterable written policy
incorporated into “PD-43” that no associate “should
perform work for the company without compensation” and
that no supervisor may request or require any associate to
work without compensation. [Wal-Mart] is mandated by
law in Pennsylvania to advise every employee of the wage
payments and “fringe benefits” to which they are
Dr. Baggett examined management reports from March
1998 to December 2000 for twelve stores in Pennsylvania.
Based upon an analysis of 23,919 individual shifts covering
2,250 individual associates Dr. Baggett concluded that
17,556 or 64.4% of the shifts contained deficiencies in
duration of rest and meal breaks and 10,889 or 40% of
workers did not receive the appropriate number of breaks.
As to [Appellee] Hummel herself, Dr. Baggett found 35.8%
of her breaks were deficient in duration and 28.3%
deficient in number.
These findings for Pennsylvania stores by [Appellee’s]
retained expert are consistent with [Wal-Mart’s] internal
audit performed in June 2000.
After studying the
computer “exception reports” in 127 stores nationally
including five stores in Pennsylvania, [Wal-Mart’s] Internal
Audit division found “Stores were not in compliance with
- 116 -
company and state regulations concerning the allotment of
breaks and meals as 76,472 exceptions were notes in 127
stores reviewed for a one week period.” 75% of these
missed breaks concerned rest breaks 25% concerned
missed meal breaks.
[Wal-Mart’s] own internal
management analysis revealed that an average of 2 breaks
per associate per week were either missed or shorted at
every store. The internal audits findings concerning the
Pennsylvania stores actually revealed greater deficiencies
than Dr. Baggett’s conclusions.
Other computer records were also analyzed by [Appellees’]
experts. [Wal-Mart’s] database records time associates
spent on other electronic devices such as cash register and
computer based learning terminals. [Appellees’] expert
Dr. Shapiro compared this database with time records and
determined that while associates were recorded as taking
breaks they were also recorded as being engaged in
employment related activities.
Even though [Wal-Mart] relied upon these records which
are mandated by law, to determine associate’s pay, [WalMart] claims that their employment records are inaccurate
and may not be relied upon. While this defense may be
persuasive at trial, for purposes of this preliminary
procedural certification decision the [c]ourt accepts these
business records as prima facie accurate.
43 P.S. 260.4, actual notification is not required since
posting is sufficient for compliance.
Trial Ct. 1925(a) Op., 9/3/08, at 5-6 (quoting Trial Ct. Cert. Op., 12/27/05,
Wal-Mart avers that Dr. Baggett’s testimony could not demonstrate on
a class-wide basis whether employee swipe records adequately reflected
Individual employees would have to be questioned, Wal-
Mart claims, to determine whether Wal-Mart managers forced class members
to work through or cut short their breaks.
- 117 -
Similarly, Dr. Shapiro’s
methodology could not show off-the-clock work. His analysis of data from
cash registers at sixteen Wal-Mart stores could not show whether or why
employees worked off the clock.
Simply because an employee was not
logged onto Wal-Mart’s timekeeping system, Wal-Mart argues, did not prove
that the employee was forced to work off the clock.
In support of its
contentions regarding Appellees’ experts, Wal-Mart cites Basco v. Wal-Mart
Stores, Inc., 216 F. Supp. 2d 592 (E.D. La. 2002), Cutler v. Wal-Mart
Stores, Inc., 927 A.2d 1 (Md. Ct. Spec. App. 2007), Petty v. Wal-Mart
Stores, Inc., 773 N.E.2d 576 (Ohio Ct. App. 2002), Harrison v. Wal-Mart
Stores, Inc., 613 S.E.2d 322 (N.C. Ct. App. 2005), and Wal-Mart Stores,
Inc. v. Lopez, 93 S.W.3d 548, 557 (Tex. App. 2002).19
These cases are
distinguishable from the instant case because those courts do not liberally
construe class action rules. See Cutler, 927 A.2d at 14. Furthermore, the
Petty Court did not discuss the Baggett-Shapiro testimony. In Basco and
Lopez, the courts do not discuss the Baggett-Shapiro testimony, and they
are further distinguishable from the instant case since they involve claims for
breach of oral contracts. See Basco, 216 F. Supp. 2d at 602-03; Lopez, 93
S.W.3d at 556-57.
Wal-Mart acknowledges that other jurisdictions certified class actions, viz.,
Salvas v. Wal-Mart Stores, Inc., 893 N.E.2d 1187 (Mass. 2008), Hale v. WalMart Stores, Inc., 231 S.W.3d 215 (Mo. Ct. App. 2007), Iliadis v. Wal-Mart
Stores, Inc., 922 A.2d 710 (N.J. 2007), and Armijo v. Wal-Mart Stores, Inc.,
168 P.3d 129, 142 (N.M. Ct. App. 2007). Wal-Mart’s Brief at 35. Wal-Mart also
notes that it has reached settlement agreements in Hale, Iliadis, and Armijo. Id.
at 35 n.22.
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It is undisputed that corporate, written directives existed governing
rest breaks and off-the-clock work, viz., corporate policies PD-07 and PD-43.
Prior to February, 2001, all hourly employees were required to clock out for
The parties stipulated that after January 4, 2001, this policy
changed and that there was pending litigation:
Stipulation on litigation pending as of January 4, 2001:
Wal-Mart stipulates and agrees that by January 4, 2001, at
the latest, it had decided that it would no longer require
employees to swipe in and out for rest breaks. “That
policy change became effective on February 9, 2001. As of
January 4, 2001, 2 lawsuits alleging violations of WalMart’s rest break policy had been filed against Wal-Mart on
behalf of employees in seven states: Colorado, Indiana,
Louisiana, New Mexico, North Carolina, Ohio, and Texas.
N.T., 9/26/06 (morning), at 5; R.R. at 1905a.
Furthermore, in response to a request for admissions, Wal-Mart
[Appellees’ counsel]: For the record, Your Honor, the
Request For Admission Number 47 asked:
“During the relevant period, Wal-Mart Corporate Policy PD07 was dictated to associates at Wal-Mart stores and
Sam’s clubs by corporate headquarters in Bentonville.”
“Response: Defendants admit only that PD-07 was
communicated to hourly associates in Pennsylvania stores
during the relevant period in a variety of ways, including,
among other things, during the training of new hourly
associates, signs posted in stores, computer-based
learning, the pipeline/wire, and Wal-Mart’s closed-circuit
television system, and that many of communications
concerning PD-07 originated from defendant’s corporate
headquarters in Bentonville, Arkansas.
In all other
respects, this request is denied.” And in addition, Your
Honor, plaintiffs will publish to the jury the request for
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admission relating to the grass roots survey and rest
breaks. This was similar to the ones that were already
published on meal breaks and off-the-clock work. It’s
Request for Admission 324. For the record, this reads:
“In the year ended January 31, 1999, the grass roots
survey inquired about whether associates received their
“Response: Defendants admit that the grass roots survey
for the year ended January 31, 1999, did not include any
direct question concerning whether or not hourly
associates who worked in Pennsylvania stores received
“However, the grass roots survey did
measure overall hourly associates’ job satisfaction
concerning, among other subjects, associate treatment
and the application of defendant’s policies. In all other
respects, this request is denied.”
Your Honor, this same request, this identical request,
without me reading it into the record, was also admitted in
the same language for each of the years 2000 through
N.T., 9/26/06 (morning), at 6-8, R.R. at 1906a-08a.
Wal-Mart’s own policies and its directives for enforcement of the
policies are undisputed. The individual most qualified to speak of Wal-Mart’s
policies, Mrs. Reid, testified that managers and associates would be
disciplined if they violated the rest break policy. The policies were strictly
enforced by Wal-Mart. If a manager reported that a fellow manager forced
an employee to work off the clock, then that manager would be subject to
discipline. In fact, that manager would not be promoted and may be fired.
Undisputed testimony from Wal-Mart’s own personnel verified that the
associates were not receiving rest breaks. The executive vice president of
human resources worldwide, Mr. Peterson, who reported to the president
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and chief executive officer, Mr. Coughlin, acknowledged a memo sent as
early as 1998 that associates were not receiving rest breaks.
associate had access to the twice-yearly meetings attended by all store
managers and Wal-Mart’s top management via an internal internet system.
It is undisputed that Wal-Mart’s policies were disseminated to associates.
Mrs. Reid testified that associates received employee handbooks at
orientation which contained the promise of certain benefits.20
contracts . . . involve only one promise and are formed when one party
makes a promise in exchange for the other party’s act or performance.”
First Home Sav. Bank, FSB v. Nernberg, 648 A.2d 9, 14 (Pa. Super.
1994). In Bauer v. Pottsville Area Emergency Med. Servs., Inc., 758
A.2d 1265 (Pa. Super. 2000), this Court stated:
Provisions in a handbook or manual can constitute a
unilateral offer of employment which the employee
accepts by the continuing performance of his or her
duties. A unilateral contract is a contract wherein
one party makes a promissory offer which calls for
the other party to accept by rendering a
In the employment context, the
communication to employees of certain rights,
policies and procedures may constitute an offer of an
employment contract with those terms.
employee signifies acceptance of the terms and
conditions by continuing to perform the duties of his
Wal-Mart noted: “Wal-Mart’s rest break policy was not mentioned at all in some
versions of the employee handbook.” Wal-Mart’s Brief at 24 n.14. Both of those
employee handbooks contain the following statement: “Note: All associates please
refer to your Benefits Summary Plan Description (SPD) Booklet for eligibility
requirements and details of your benefits.” R.R. at 6719a, 6779a. The SPD
references rest breaks. R.R. at 6789a.
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or her job; no additional or special consideration is
Darlington v. General Electric, 350 Pa. Super. 183,
210-12, 504 A.2d 306, 320 (1986) (Beck, J., concurring).
Id. at 1269.
Instantly, Appellees do not argue that the handbook supplanted their
employee at-will status.
On the contrary, they contend that at-will
employees may be parties to a unilateral contract. In Bauer, as in the case
sub judice, the employee handbook provided a disclaimer that the employer
was an employer-at-will.
The Bauer Court found that an employee
handbook could create a contractual relationship while not supplanting the
at-will employer-employee relationship:
[T]he employee handbook stated, in relevant part:
Pottsville Area E.M.S., (herein referred to as PAEMS), is an
“at will” employer. This means that employment may be
offered or denied at any time for any reason. Both PAEMS
management and the employee reserve the right to
terminate employment at any time for any reason.
Full Time-Any employee scheduled for at least 36 hours
per week for a period of 90 consecutive days will be
treated as a full time employee.
(Employee Handbook, effective May 1, 1998, at 1.) In
addition, the handbook set forth appellee’s policy
regarding attendance, vacation, paid sick time and other
benefits. Specifically, full-time employees are given forty
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(40) hours of sick time per year, eight (8) hours of
compensated time off for holidays, up to twenty-four (24)
hours of bereavement leave, health coverage, and
compensation for military service and jury duty.
handbook does not provide for part time and per diem
In its Opinion, the trial court found there was no contract
upon which to base a cause of action because appellee
evidenced its intent to maintain the at-will employment
relationship. We [i.e., the Bauer Court] disagree. In this
case, a reasonable person in appellant’s position would
understand that his continued performance would bear the
fruits of his employer’s policies. Appellant worked the
requisite 36 hours per week for in excess of 90 days and
received none of the benefits provided for in the handbook.
Id. “A handbook distributed to employees as inducement for employment
may be an offer and its acceptance a contract.”
Morosetti v. Louisiana
Land & Exploration Co., 522 Pa. 492, 495, 564 A.2d 151, 152 (1989). In
Morosetti, however, “[t]he employees in their evidence were able only to
show that they believed there was a policy of severance pay.” Id. at 495,
564 A.2d at 153.
We are persuaded by the reasoning in a decision by the United States
District Court for the Eastern District of Pennsylvania, Caucci v. Prison
Health Servs., Inc., 153 F. Supp. 2d 605 (E.D. Pa. 2001), where the court
An employment handbook is enforceable against an
employer if a reasonable person in the employee’s position
would interpret its provisions as evidencing the employer’s
intent to supplant the at-will rule and be bound legally by
its representations in the handbook. The handbook must
contain a clear indication that the employer intended to
overcome the at-will presumption. The court may not
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presume that the employer intended to be bound legally
by distributing the handbook nor that the employee
believed that the handbook was a legally binding
Generally, explicit disclaimers of contract
formation in an employee handbook preclude a breach of
Notwithstanding this, provisions in a handbook or manual
can constitute a unilateral offer of employment which the
employee accepts by the continuing performance of his or
her duties. A unilateral contract is a contract wherein one
party makes a promissory offer which calls for the other
party to accept by rendering a performance.
employment context, the communication to employees of
certain rights, policies and procedures may constitute an
offer of an employment contract with those terms. The
employee signifies acceptance of the terms and conditions
by continuing to perform the duties of his or her job; no
additional or special consideration is required. Thus, the
provisions comprising the unilateral contract may be
viewed as a contract incidental or collateral to at-will
employment. An employer who offers various rewards to
employees who achieve a particular result or work a
certain amount of overtime, for example, may be obligated
to provide those awards to qualifying employees, although
retaining the right to terminate them for any or no reason.
Id. at 611 (citations and quotation marks omitted); see also Golkow v.
Esquire Deposition Servs., LLC, No. 07-3355, 2009 WL 3030218, at *3,
2009 U.S. Dist. LEXIS 87226, at *7 (E.D. Pa. Sept. 23, 2009) (stating, “A
unilateral contract is proven if the plaintiff can show that ‘one party made a
promissory offer, which calls for the other party to accept by rendering
performance.’” (quoting Bauer, 758 A.2d at 1269)); Pilkington v. CGU
Ins. Co., No. 00-2495, 2000 WL 33159253, at *6-7, 2001 U.S. Dist. LEXIS
3668, at *22-*23 (E.D. Pa. Feb. 9, 2001) (employer can create a unilateral
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contract with employee-at-will by offering additional terms of employment
conditioned upon the employee’s continued performance of his job).
In McGough v. Broadwing Commc’ns, Inc., 177 F. Supp. 2d 289
(D.N.J. 2001), applying Pennsylvania law, the court stated:
Defendants are correct in maintaining that this
Compensation Plan, which is attached to the Complaint as
an exhibit, does not in and of itself alter the Plaintiffs’
status as at-will employees. See Herbst v. General
Accident Insurance Company, 1999 WL 820194 (E.D.
Pa. 1999); Anderson v. Haverford College, 851 F.
Supp. 179, 181 (E.D. Pa. 1994); Raines v. Haverford
College, 849 F. Supp. 1009 (E.D. Pa. 1994).5 Plaintiffs’
status as at-will employees, which appears to be
undisputed, does not, however, excuse Defendant
Broadwing from providing compensation for services
rendered prior to their termination. The presumption of
at-will employment confers a legal status upon employees
hired for an undefined term of employment which
addresses a particular aspect of the employment
relationship-the ability of both employer and employee to
terminate their employment relationship at any time
without explanation or cause. See Herbst, 1999 WL
820194 at *8; Ruzicki v. Catholic Cemeteries, 416 Pa.
Super. 37, 610 A.2d 495, 497 (1992). The doctrine does
not, however, address other aspects of the employment
arrangement, such as issues regarding the promised form
and amount of compensation for work completed prior to
an employee’s termination. See Kotlinski v. Mortgage
America, Inc.[,] 40 F. Supp. 2d 298, 307 (W.D. Pa.
1998); see also Martin v. Safeguard Scientifics, Inc.,
17 F. Supp. 2d 357, 368 (E.D. Pa. 1998). While an
employer may permissibly discharge an at-will employee
at any time with or without cause, the doctrine does not
relieve an employer of its contractual obligation to provide
the compensation promised in return for an employee’s
Moreover, while the language of the Plan’s
disclaimer may reserve Broadwing’s right to alter the
nature and extent of Plaintiffs’ compensation for future
services, it cannot and does not permit Broadwing to
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retroactively modify the terms of Plaintiffs’ compensation
for work performed prior to such modifications.
An express contract is formed when the terms of an
agreement are declared by the parties either verbally or in
writing. However, even where no such clear declaration
exists, a contract may nevertheless be implied-in-fact. A
contract implied-in-fact is an actual contract which arises
when parties agree on the obligation to be incurred, but
their intention, instead of being expressed in words, is
inferred from the relationship between the parties and
their conduct in light of the surrounding circumstances.
See Halstead v. Motorcycle Safety Foundation, Inc.,
71 F. Supp. 2d 455 (E.D. Pa. 1999).6
An offer and
acceptance need not be identifiable and the moment of
formation need not be precisely pinpointed.
Ingrassia Construction Co., Inc. v. Walsh, 337 Pa.
Super. 58, 67, 486 A.2d 478 (1984). In general, there is
“an implication of a promise to pay for valuable services
rendered with the knowledge and approval of the recipient,
in the absence of a showing to the contrary.” Martin v.
Little, Brown and Company, 304 Pa. Super. 424, 429,
450 A.2d 984 (1981). As one Pennsylvania court has
explained, “a promise to pay the reasonable value of the
service is implied where one performs for another, with the
other’s knowledge, a useful service of a character that is
usually charged for, and the latter expresses no dissent or
avails himself of the service.” Id. at 430, 450 A.2d 984
(citing Home Protection Building & Loan Association,
143 Pa. Super. 96, 98, 17 A.2d 755 (1941) and 12 Amer.
Jur. Contracts, § 5). However, a promise to pay for
services can only be implied, however, in circumstances
under which the party rendering the services would be
justified in entertaining a reasonable expectation of being
compensated by the party receiving the benefit of those
Under Pennsylvania law, in order to rebut the
presumption of at-will employment, a plaintiff must
establish the existence of additional consideration other
than the services he was engaged to perform, an
agreement for a definite duration, or an agreement
specifying he will be discharged only for just cause. See
Herbst v. General Accident Insurance Company, 1999
- 126 -
WL 820194 at *8 (E.D. Pa. 1999). A document such as
the Compensation Plan promulgated by Broadwing is only
enforceable as a contract modifying an employee’s “at-will”
status “if a reasonable person in the same position as the
employee would interpret its provisions as evidencing an
intent by the employer to overcome the at-will
presumption.” Anderson, 851 F. Supp. at 181. Courts
have consistently held that, under Pennsylvania law, the
existence of a disclaimer expressly disavowing any intent
to contract are sufficient to retain the at-will presumption.
See id. at 182.
Defendants do not suggest that averment of an express
contract is necessary to state a valid cause of action under
the WPCL. As case law suggests, the statute merely
requires the existence of a binding legal duty upon the
employer to provide the compensation sought by the
complainant. Under Pennsylvania law, a contract impliedin-fact “has the same legal effect as any other contract”
and “differs from an express contract only in the manner of
Ingrassia Construction Co., Inc. v.
Walsh, 337 Pa. Super. 58, 67 n. 7, 486 A.2d 478 (1984).
Id. at 295-97.
“[I]t is the intention of the parties which is the ultimate
guide, and, in order to ascertain the intention, the court may take into
consideration the surrounding circumstances . . . .”
Martin v. Capital
Cities Media, Inc., 511 A.2d 830, 839 (Pa. Super. 1986) (citation omitted).
Appellees claimed that Wal-Mart deprived the class of unpaid, thirtyminute meal-periods and paid, fifteen-minute rest-breaks pursuant to WalMart’s PD-07 policy and required its employees to work off the clock without
compensation, in violation of PD-43. Appellees claim they continued to work
in reliance on the promise that these corporate policies would be enforced.
In Iliadis v. Wal-Mart Stores, Inc., 922 A.2d 710 (N.J. 2007), the
Supreme Court of New Jersey reversed the trial court’s refusal to certify a
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class of “all current and former hourly employees of Wal-Mart (including
Wal-Mart Stores, Supercenters and Sam’s Clubs) in the State of New Jersey
during the period May 30, 1996 to the present.” Id. at 714.21 The Court
held “that common questions of law and fact predominate over individualized
questions and that the class-action device is superior to other available
methods of adjudicating this dispute.” Id. On virtually identical facts, the
First, plaintiffs allege breach of implied-in-fact contracts
concerning rest and meal breaks and off-the-clock work.
Such contracts arise from promises implied by words and
conduct in light of the surrounding circumstances.
Wanaque Borough Sewerage Auth. v. Twp. of W.
Milford, 144 N.J. 564, 574, 677 A.2d 747 (1996).
Implied-in-fact contracts are formed by conditions
manifested by words and inferred from circumstances,
thus entailing consideration of factors such as oral
representations, employee manuals, and party conduct.
See Troy v. Rutgers, 168 N.J. 354, 365, 774 A.2d 476
Second, the proposed class seeks recovery for breach of
unilateral contracts, allegedly embodied in the Associate
Handbook. In a unilateral contract, one party’s promise
becomes enforceable only on the performance of the other
Woolley v. Hoffmann-La Roche,
Inc., 99 N.J. 284, 302, 491 A.2d 1257 (1985).
recover, plaintiffs must establish that they acted in
accordance with the Associate Handbook—if a trier of fact
The Iliadis Court observed, “New Jersey courts, as well as federal courts
construing the federal class action rule after which our rule is modelled [sic], have
consistently held that the class action rule should be liberally construed.” Id. at
718. Further, New Jersey requires, unlike Pennsylvania, “that a class action is
superior to other available methods for the fair and efficient adjudication of the
controversy.” Id. at 720.
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deems it contractual—and that Wal-Mart did not honor its
Id. at 722. In Iliadis, as with the instant case,
The core of the present dispute is whether Wal-Mart
engaged in a systematic and widespread practice of
disregarding its contractual, statutory, and regulatory
obligations to hourly employees in this State by refusing to
provide earned rest and meal breaks and by encouraging
off-the-clock work. Essential to that issue are other salient
and common questions, most notably the meaning and
significance of Wal-Mart’s corporate policies concerning
breaks and off-the-clock work.
The impact of the
Associate Handbook’s disclaimer and the uniformity of new
employee orientation also are prominent common
Id. at 723.
Canetta Ivy Reid, the designated representative of Wal-Mart who was
most knowledgeable about the policies known as PD-07 and PD-43, testified
that Wal-Mart associates were told from day one in orientation that they
were supposed to get rest breaks. Associates received employee handbooks
and were told of Wal-Mart policies.
She stated that it was against Wal-
Mart’s policy to work without getting paid.22
She also conceded that the
In a Nevada case, one court found:
The Court finds Plaintiffs have established commonality.
Plaintiffs allege common policies emanating from the Home
Office caused payroll manipulation over a widespread period of
time over many stores in each state. Plaintiffs have presented
evidence in the form of Wal-Mart’s own internal memos, audits,
reports, and communications regarding a company-wide policy
of centralized wage cost control enforced through detailed
computer records and daily and weekly communications from
the Home Office.
Plaintiffs also have presented statistical
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employee handbook promised these benefits to employees.
and Baggett reviewed Wal-Mart’s own records, which were used to generate
Payroll hours were transmitted to corporate headquarters in
Bentonville. Wal-Mart’s own internal audits revealed violations of company
policies regarding missed breaks and work off-the-clock.
In Salvas v. Wal-Mart Stores, Inc., 893 N.E.2d 1187 (Mass. 2008),
again on virtually identical facts, the court held that the trial court erred in
granting Wal-Mart’s motion to decertify the class:
The plaintiffs present the additional materials, including
policy directives, employee handbooks, and the like, as
evidence of an implied-in-fact contract or enforceable
promise concerning work breaks and off-the-clock work.
See LiDonni, Inc. v. Hart, 355 Mass. 580, 583, 246
N.E.2d 446 (1969) (“In the absence of an express
agreement, a contract implied in fact may be found to
exist from the conduct and relations of the parties”). The
judge found these general corporate materials (among
other things) sufficiently specific to the contract issue to
survive a challenge on summary judgment. They are no
less persuasive on the issue of class certification, where all
evidence of missed rest breaks, unauthorized management edits
to employee time, and a uniform timekeeping system that did
not credit employees for missed break time. Plaintiffs also have
presented anecdotal evidence of missed breaks, one minute
edits, and off the clock work. Wal-Mart’s efforts at showing lack
of commonality generally go to the weight of Plaintiffs’ evidence,
such as challenges to Shapiro’s statistical analysis, rather than
its admissibility. Further, Wal-Mart's arguments on the topic are
stronger with respect to whether common issues will
predominate rather than whether there are any common issues
In re Wal-Mart Wage & Hour Employment Practices Litig., No. 2:06-CV00225-PMP-PAL, 2008 WL 3179315, at *13 (D. Nev. June 20, 2008).
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members of the class were unarguably the beneficiaries of
identical terms of employment.
Id. at 1211; see also Armijo v. Wal-Mart Stores, Inc., 168 P.3d 129,
140 (N.M. Ct. App. 2007) (holding “that the question of whether a missed
break constitutes a breach of contract is also an issue common to the
Instantly, the employee handbook contained Wal-Mart’s policies
regarding rest breaks, off-the-clock work and meal breaks, policies which
were reinforced by Wal-Mart’s corporate-wide policies and orientation
sessions in which the handbook was disseminated and signed for by the
hourly associates, resulting in a unilateral contract between Wal-Mart and
the members of the class. See Bauer, 758 A.2d at 1269.
The video of the Cheryl Lippert deposition was read to the jury at the
time of trial:
Q: Was it fair to say that the time clock adjustment forms,
white slips, were one of the primary means that Wal-Mart
used to ensure that the archive report was accurate at the
end of the payroll period?
A: It was the primary tool but not only. Even with the
direction given, which was, we want to see a white slip for
every change in the payroll, do I know that, you know,
there are changes made to payroll when a PTC called the
employee at home because it’s a payroll clause, they can
call them at home and say I am missing a punch; what
time did you leave. Do I know that happened? Yes. . . .
Cf. Basco, 216 F. Supp. 2d at 602 (denying class certification because
individualized issues predominated in claim of breach of oral contract); Harrison,
613 S.E.2d at 328 (same); Lopez, 93 S.W.3d at 557 (same).
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Q: They would get a time clock exception report on a daily
basis and look to see whether in fact there were punch
exceptions that day, correct?
A: The direction was given that they review it on a daily
Q: That was the expectation, correct?
A: The expectation was, yes.
Q: Okay. Then under Wal-Mart’s expectation, they would
investigate the exceptions and attempt to obtain a white
slip to correct the exceptions that were reflected on that
report; am I right?
A: That is correct, that is correct. . . .
Q: And then assuming that they were able to get
satisfactory explanations for exceptions or -- and
documented with the time clock adjustment forms, they
would then finalize the time clock archive report for payroll
A: Yes, generally that was the standard process.
Q: Okay. So then at that point, the time clock archive
report with, you know, maybe a few last minute changes
every now and then would become the final data upon
which the company would rely in generating bi-weekly
The archive report contained the data that
contained a payroll report and generated a payroll run,
that is correct.
N.T., 9/15/06, at 36-39; Supp. R.R. at 8125a-28a.
The trial court opined:
It is unusual in the extreme for [Wal-Mart], who relies on
their records for business purposes to contend that
although required by law to be created and maintained,
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their records are so unreliable that they cannot constitute
prima facie proof of their contents.
Since 1939 the
Business Records Act, 42 Pa.C.S. [§] 6108, allowed
business records into evidence without any actual proof of
their accuracy because the law presumed the regularity
and accuracy of records maintained in the regular course
The purpose of the legislatively enacted
statute is the same as that of the Supreme Court [when it]
adopted Rule 803(6) of the Pennsylvania Rules of
Records created and maintained for
independent business purposes are not self-serving or
created for litigation. As stated by the Supreme Court in
Williams v. McClain, 513 Pa. 300, 520 A.2d 1374
(1987): “. . . the basic justification for the business
records exception to the hearsay rule is that the purpose
of keeping business records builds in a reliability which
obviates the need for cross-examination.”
important business decisions routinely depend upon the
accuracy of regularly kept records, they are admissible and
constitute prima facie proof of their contents whether
offered by their creator or an antagonist.
question, a party opponent’s business records may be
offered against their creator, are prima facie proof of their
contents, and may even constitute opposing party
admissions against pecuniary interest. The presumption of
reliability of business records which are created and
maintained by affirmative requirement of law are utilized
for payroll purposes is beyond question.
The computer records demonstrate the existence of
common questions of law and fact, and that common issue
Trial Ct. Op., 12/27/05, at 11-12. We agree.
Instantly, “there are questions of law or fact common to the class.”
Pa.R.C.P. 1702(2). The evidence presented at the time of trial by Wal-Mart
and Appellees shows that Wal-Mart violated its own corporate policies
promising benefits to associates.
After considering all of the factors
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enunciated in Rule 1702, the court found that common questions of fact
predominated based upon, inter alia, Wal-Mart’s own internal memos,
audits, payroll records, and policies. See Clark, 990 A.2d at 24–25; Bauer,
758 A.2d at 1269; Janicik, 451 A.2d at 457.
Wal-Mart claims the trial court’s definition of the class was vague and
overbroad. The trial court certified the class as follows: “[A]ll current and
former hourly employees of Wal-Mart in the Commonwealth of Pennsylvania
from March 19, 1998, to the present.” The class was certified from March
19, 1998, to May 1, 2006, the opt out date. The class period was set using
the notice opt-out deadline of May 1, 2006, as the end date. Wal-Mart cites
Bailey and Harrison for the proposition that the definition of the class was
overly broad because it included employees who never missed breaks or
distinguishable. Further, to reiterate: “[C]lass members can assert a single
common complaint even if they have not all suffered actual injury;
demonstrating that all class members are subject to the same harm will
suffice.” Baldassari, 808 A.2d at 191 n.6 (emphasis added).
Next, Wal-Mart avers the court prevented it from raising the
affirmative defense of voluntary waiver of rest breaks. However, a review of
the record reveals Wal-Mart withdrew this defense at the close of Appellees’
[Appellees’ counsel]: Your Honor, plaintiff has 2 motions.
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THE COURT: That’s it. Okay.
[Appellees’ counsel]: Plaintiff moves for a directed verdict
on defendant’s affirmative defense of waiver. There has
been no evidence whatever that, one, waiver is a defense
in this case, since it’s precluded by statute. And two –
THE COURT: Wait a minute. Is there a defense of waiver,
[Wal-Mart’s counsel]: There is no defense of waiver per se.
We don’t seek a jury question on the waiver issue. So it’s
clear and notwithstanding the Court’s ruling, we certainly
believe that the issue of employee voluntariness is relevant
to the jury’s consideration of other issues in the case, but
we are not asking for and we are not submitting a waiver
question or making a waiver defense.
THE COURT: Did you raise any waiver defense as an
N.T., 10/6/06, at 87-88; R.R. at 2100a-01a.
Wal-Mart also contends the trial court deprived it of due process by
eliminating its right to try inherently individualized issues on liability.
court did not preclude Wal-Mart from presenting employees to testify as to
their individual experiences. The trial court stated:
Although [Wal-Mart] also claims to argue that they should
have been permitted to call each of the 126,005 employee
class members to explain why their time records showed
miss[ed] breaks or off-the-clock work, no prohibition on
calling 16,000 witnesses was ever imposed beyond the
[c]ourt commenting on the absurdity of the “threat.”
[Wal-Mart] did however, identify hundreds of new
witnesses never listed on their pre-trial memorandum the
weekend before trial. However, even the request to call
these witnesses was withdrawn.
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Trial Ct. Op., 9/3/08, at 4 n.4.
Wal-Mart, in fact, called several witnesses. Denise Pettigrew, a cake
decorator at a Sam’s Club store in Reading, Pennsylvania, testified that
during her seven years of employment, she never had a manager ask her to
miss a rest break or interrupt her during a break or ask her to work off-theclock. N.T., 9/26/06 (afternoon), at 11-12, 15. She opted out of the class.
Id. at 26.
Tyrone Johnson, an employee of a Wal-Mart in Bechtelsville,
Pennsylvania, also testified.
Id. at 33.
He testified that in six years of
working for Wal-Mart, he was never asked by a manager to take a short rest
break, skip a rest break, or interrupt a rest break. Id. at 36; R.R. at 1912a.
He stated that since the termination of the swipe cards, he observed
employees taking more and longer breaks. Id. at 38. He noted that when
he works off the clock, he fills out a time-adjustment sheet. Id. He also
opted out of the class. Id. at 47. Janet Ulmer, who worked for a Wal-Mart
in Harleysville, Pennsylvania, and opted out of the class, testified:
Q: Were you paid for the time when you came in the
morning and there were too many folks there?
A: Absolutely. I was always paid for my time.
Q: When you started working at Wal-Mart, were you told
anything about Wal-Mart’s policy on working off-the-clock?
A: I was told it was expressly forbidden. You did not work
Q: And when and how did you learn about this policy?
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A: I learned about that policy at orientation, my initial
interviews. It was constantly reminded to me by different
managers. Even the associates I worked with. It was just
a constant rule.
Q: Now, were there ever occasions when you were working
and doing something related to your Wal-Mart work, but
you were not literally swiped out of the clock?
A: There were three specific occasions.
Q: Okay. Could you describe those for the jury?
A: The first occasion, I was new at Wal-Mart and we had a
customer call in and she was looking for a specific item
and I could not locate it. I had to contact my department
manager who worked a different shift than I did. So when
I was on break for my job during the day, I called the
department manager to find out about the merchandise,
and I had left a note with the customer’s name and
telephone number at the desk. And I had contacted her
also to let her know whether the product was available or
was not available. And when I came in that evening, I got
kind of dressed down for it, said we’re filling out a time
adjustment record. You absolutely have to get paid for
your time; you’re not allowed to do that. That was the
first time. The second time, I had come in, and I meant to
talk with a manager. The store was between my home
and my day job. So I stopped in on my way home to talk
with a manager. And we have to punch in; you have to be
paid for your time to work. And I wasn’t working; I was
talking with her, but I had to get paid for the time, so I
was. And the third time was when I stopped in to let them
know that I would not be able to continue working with
them, and I was told again I had to be paid for my time.
Q: Just to be clear, because I don’t think we covered this,
were you a full-time employee, a part-time employee?
How many hours did you work roughly?
A: No, sir, I was a part-time employee. I worked about 20
or so hours a week.
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Q: And during the day, what was the day job that you had
during that time?
A: I worked as a secretary.
Q. Now, did you ever work off-the-clock at Wal-Mart and
you didn’t get paid for it?
A: No, absolutely not.
Q: Let’s switch gears now and talk about meal breaks and
rest breaks. Did you ever come to learn about Wal-Mart’s
policies on meal breaks and rest breaks?
A: Yes, sir. That was also discussed with me at the initial
Q: And was there any discussion of it after the initial
A: Sure. I mean, everybody would ask you, it’s like did
you get a break, do you need a break, do you want a
break, do you want to stop, do you need a rest? It was
Q: Let’s talk first specifically about the paid rest breaks
that you got. Were you able to take a paid rest break
whenever you wanted to?
A: Any time I needed one, you can take a break.
were very good.
Q: Now, I believe you said you worked as a cashier from
time to time; is that right?
A: Yes, I did.
Q: When you worked as a cashier, were you still able to
take your paid rest breaks when you wanted?
A: Sure. . . .
Q. Now, were there times when you took paid rest breaks
that were longer than 15 minutes?
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Q: Did you take 20-minute paid rest breaks?
A: I’d take 20-minute rest breaks. Sometimes they were
30 minutes, 35 minutes.
Q: When you took a 20-minute paid rest break, were you
paid for that entire 20 minutes of time?
A: Absolutely. It was a paid rest break.
Q: How about for 30 and 35 minutes, were you paid not
just for the 15 minutes, but for the whole 30 or 35
A: I was paid for the full time.
Q: Were there any times that you didn’t take all 15
minutes of your paid rest breaks?
Q: Why wouldn’t you do that?
A: Well, it’s similar to like when I was on the register. You
get going; you’re having a good time; you’re working with
some terrific people. The customers are nice. And I don’t
smoke; I don’t need a smoke break. I wasn’t hungry
necessarily and I didn’t need to use the bathroom, so I
can’t imagine just sitting around doing nothing for 15
minutes or whatever.
Q: Do you believe Wal-Mart owes you money for the times
when you didn’t take your full 15-minute paid rest breaks?
A: No, sir. They paid me for all the time I worked.
Q: Did anyone at Wal-Mart ever force you to skip or cut
short your paid rest breaks?
A: No, absolutely not.
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N.T., 9/27/06 (morning), at 32, 33-39; R.R. at 1917a-18a.24 Bill Clinton, a
full-time, hourly employee at the Wal-Mart in Quakertown, Pennsylvania,
and who opted out of the class, also testified for Wal-Mart:
Q: Has any manager at Wal-Mart since you started
working there in July 1998 ever kept you from taking a
A: No, they never have.
Q: Has any manager at Wal-Mart ever interrupted a rest
break that you were on or forced you to come back from
that break sooner than you would have?
A: No, that has never happened. . . .
Q: What sorts of things would cause you to swipe out a
little late and go slightly over your scheduled six hours?
A: Well, finishing up putting a bicycle together or anything
of that nature or -- and I just wasn’t being watchful going
out for that six-hour time. . . .
Q: Well, let me ask you about off-the-clock work, Mr.
Clinton. Do you know what Wal-Mart’s off-the-clock policy
A. Yes, I do.
You just don’t work off the clock for any
Q: What is your understanding of that policy based on?
How do you know that?
A: It’s brought to our attention regularly. Any meetings
we have, this issue comes up at all these. They tell us
there’s no excuses for it in any way. Do not work off the
The reproduced record at 1917a only partially reproduces page 38 from the
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N.T., 10/3/06 (morning), at 11, 13-14, 19; R.R. at 2057a-59a. Rosemary
Aquilino worked at a Wal-Mart store in Franklin Mills, Pennsylvania, for nine
years. N.T., 10/4/06 (afternoon), at 38. She was an hourly employee in the
accounting office. Id. She testified:
Q: And let me ask you this about rest breaks, how do you
in the cash office take rest breaks?
A: Okay, there is usually a few of us that work in the cash
office, so we just take turns taking, you know, our breaks.
If one person wants a break before the other, it’s usually
not a problem. It’s never been a problem. We always had
Q: Do you always take two exact 15-minute breaks?
A: No. . . .
Q: Do you feel like at any time you have been deprived of
rest breaks at Wal-Mart?
A: No. . . .
Q: What has been your experience with whether the
people at the Franklin Mills store, Associates, are getting
their rest breaks since rest break swiping ended?
A: They are probably taking longer breaks, a lot of them
sometimes, because there is no way to calculate. People
do get their breaks as far as what I can see.
Q: Has any manager ever suggested or asked you to work
off the clock at the Franklin Mills store?
A: Absolutely not. Absolutely not.
Id. at 39-41. She also opted out of the class. Id. at 47. Susan Detwiler
testified for Wal-Mart. She was a cashier at the Wal-Mart in Harleysville:
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Q: Have you ever not been able to take a rest break when
you wanted to?
Q: Has anyone ever asked you, any manager at Wal-Mart,
any co-worker, asked you to shorten a rest break?
A: No. . . .
Q: What -- do you have an understanding of what I mean
by working off the clock?
A: Yes, sir.
Q: How do you understand that term?
A: Working off the clock is working before I punch in or
working after I punch out for lunch or working after I
punch out for the day.
Q: Have you ever in the entire time you have been at WalMart ever worked off the clock, Ms. Detwiler?
Q: Has anyone ever asked or suggested that you do so?
Q: Do you know whether or not Wal-Mart has a policy on
working off the clock and taking your rest breaks and your
Q: Tell me what that policy is, as you understand it?
A: It was explained to me when I was hired that, you are
required to take your 15-minute breaks and your lunch
break and under no circumstances would they take them
away from you.
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Q: Now that was when you were first hired you were told
A: Well, they told us, too, at the meetings.
Q: What meetings are you talking about?
A: We will have meetings with the certified nurse’s
assistant and the managers.
Id. at 49, 51-53.
Wal-Mart argues that it was denied its due process rights to have a
jury determine liability as to each individual class member, rather than
relying upon the analysis of Drs. Shapiro and Baggett, citing Alix, Lopez,
and Basco. As discussed above, those cases are distinguishable from the
Wal-Mart avers that it was denied its due process rights in
defending against Drs. Baggett and Shapiro.
Wal-Mart’s argument is in
derogation of class certification. Wal-Mart contends:
To defend itself adequately against [Appellee]s’ experts’
testimony, [Wal-Mart] would need to call each class
member whose time records show missed or short swipes
or database overlap, as well as other witnesses with
pertinent knowledge. . . . [Appellee]s tried this case not
with testimony of what happened to individual Wal-Mart
employees . . . , but with the flawed notion Dr Baggett’s
and Dr. Shapiro’s analysis could create a composite picture
of the experiences of the class as a whole.
Wal-Mart’s Brief at 39-41. Appellees counter that Wal-Mart’s “own policies
and promises, its own business records, its own uniform scheduling plans, its
own centralized staffing dictates, its own bonus practices and its own
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corporate admissions” applied to the members of the class. Appellees’ Brief
at 35. As the trial court opined:
It is unusual in the extreme for [Wal-Mart], who relies on
their records for business purposes[,] to contend that
although required by law to be created and maintained,
their records are so unreliable that they cannot constitute
prima facie proof of their contents.
Trial Ct. Op., 10/27/05, at 11.
The contention that Wal-Mart was denied due process in not being able
to question each individual employee is in derogation of class certification,
since common questions of law and fact predominate.
See Debbs, 810
A.2d at 153; see also Iliadis, 922 A.2d at 726.
The primary and
predominant issue was whether Wal-Mart promised its employees breaks,
and whether it encouraged, at times, a culture of denying those promised
We discern no abuse of discretion by the trial court.
considered all of the factors enumerated in Pa.R.C.P. 1702 and certified the
class. See Liss & Marion, P.C., 937 A.2d at 505.
With respect to Wal-Mart’s third issue, we briefly restate the
background. Appellees brought a WPCL claim against Wal-Mart for breach of
an agreement to pay wages for rest breaks and off-the-clock work. As part
of Wal-Mart’s benefits for all employees, Wal-Mart had instituted a
guaranteed, paid, single, fifteen-minute rest break if an employee worked
more than three hours in a shift, or two such breaks if an employee worked
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more than six hours in a shift. Wal-Mart’s employee handbook and PD-07
policy referenced these rest breaks as a benefit to Wal-Mart employees.
Wal-Mart counters that the employees were not denied any payment
for missed rest breaks because they were paid regardless of whether they
took a break or not. First, Wal-Mart argues that the WPCL’s definitions of
“fringe benefits” and “wage supplements” exclude rest breaks.
insists that the WPCL encompasses only payments to employees, such as
cash, stock, or stock options.
Conversely, Wal-Mart suggests, the WPCL
does not cover rest breaks because rest breaks are not “payments.” WalMart’s Brief at 50.
Wal-Mart asserts that rest breaks are distinguishable
from payments recognized under the WPCL because “the opportunity to rest
cannot be exchanged for money.” Wal-Mart’s Reply Brief at 27-28.
Second, Wal-Mart contends that rest breaks do not constitute “fringe
benefits” or “wage supplements” because the deprivation of the rest breaks
does not give rise to a contractual right to payment.
Wal-Mart reasons it
pays employees regardless of whether they took rest breaks, missed rest
breaks, or had shortened rest breaks.
Thus, because employees are paid
regardless, Wal-Mart concludes employees have no statutory right under the
WPCL to payments for missed or shortened rest breaks.
In other words,
Wal-Mart insists its own corporate policies do not grant employees “extra”
pay if they missed a rest break. Because employees do not receive “extra”
pay if they missed a rest break, Wal-Mart suggests employees are not
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entitled to payments under the WPCL.
Wal-Mart’s Brief at 49-50 (citing
Harding v. Duquesne Light Co., 882 F. Supp. 422 (W.D. Pa. 1995)).
Should this Court conclude, however, that Appellees are entitled to
payments for missed rest breaks under the WPCL, Wal-Mart advances four
First, Appellees failed to present evidence that
“shortages in the wage payments made exceed five percent (5%) of the
gross wages payable on any two regularly scheduled paydays in the same
calendar quarter . . . .” 43 P.S. § 260.10. If an employer underpays by less
than 5%, Wal-Mart suggests that Appellees have alternative methods of
Absent record evidence of such shortages, Wal-Mart
claims the court erred in calculating damages. Second, Wal-Mart introduced
evidence of its good faith in disputing Appellees’ claims for payments under
Third, the court erred in charging the jury regarding the
requirements for liquidated damages under the WPCL.
failed to identify the specific plaintiffs entitled to liquidated damages.
Simply, Wal-Mart’s arguments pertain to reducing or eliminating the amount
of $62,253,000 in statutory liquidated damages.
In sum, Wal-Mart’s argument is three-fold. First, the WPCL excludes
Even if the WPCL encompasses rest breaks, Wal-Mart’s own
employment agreement does not grant employees a right to “extra” pay for
missed rest breaks.
Finally, even if this Court finds otherwise, Appellees
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failed to meet their burden of proof, the court erred in calculating damages
and charging the jury, and Wal-Mart acted in good faith.
Appellees counter that they established Wal-Mart’s agreement to pay
for rest breaks and all time worked. They dispute Wal-Mart’s interpretation
of the liquidated damages provision. Specifically, Appellees argue the court
awarded liquidated damages based on wages unpaid “for thirty days beyond
the regularly scheduled payday . . . .” 43 P.S. § 260.10. Appellees contend
Wal-Mart waived its 5%-shortage argument and, regardless, they introduced
evidence supporting the court’s calculation of damages. Further, Appellees
suggest Wal-Mart failed to establish good faith by clear and convincing
evidence by, e.g., offering evidence that it was unaware of the alleged
failures to pay for rest breaks, investigated the alleged failures, or undertook
remedial measures upon learning of the alleged failures. Appellees contend
the jury evaluated conflicting testimony regarding Wal-Mart’s good-faith
efforts and the jury’s determination should not be disturbed.
In addition to disagreeing with Wal-Mart’s interpretation of the WPCL,
Appellees claim Wal-Mart waived the issue.
Appellees note that the court
granted Appellees’ motion in limine to preclude Wal-Mart from introducing
evidence regarding statutory liquidated damages.
reason that Wal-Mart cannot challenge the court’s alleged error of failing to
charge the jury on shortages.
Appellees also contend they were not
required to identify the specific class members entitled to statutory
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liquidated damages because Wal-Mart waived the issue. Appellees suggest
that because they were precluded from making any jury arguments
regarding liquidated damages, Wal-Mart cannot now contend Appellees were
Regardless, Appellees conclude, the WPCL does not require identification of
In reply, Wal-Mart disputes Appellees’ statutory construction of the
Wal-Mart also relies on Hartman v. Baker, 766 A.2d 347 (Pa.
Super.), appeal denied, 564 Pa. 712, 764 A.2d 1070 (2000), in insisting it
acted in good faith in disputing Appellees’ wage claim. Specifically, Wal-Mart
contends that because it has consistently argued it had no contract with
Appellees for paid rest breaks, it has demonstrated good faith. Finally, WalMart reiterates its challenge to the court’s allegedly improper jury charge on
The trial court reasoned that Appellees’ claim is for payment of wages
that were earned but unpaid because they were required to miss rest breaks
and to work without time-clock records, which constituted “wages,” “fringe
benefits,” and “wage supplements” as defined by the Act.
11/14/07, at 3.
Trial Ct. Op.,
Because equity interests that highly-paid executives may
have qualify as “protected fringe benefits and wage supplements,” the court
similarly concluded that “the monetary equivalents of ‘paid [rest] break[s]’ .
. . are protected fringe benefits and wage supplements.”
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Id. at 6.
court found that mandatory liquidated damages apply to wages withheld
from employees who worked off-the-clock. Trial Ct. Op., 11/14/07, at 6.
We initially examine whether the WPCL’s definition of “fringe benefits”
encompasses paid rest breaks.
“Because statutory interpretation is a
question of law, our standard of review is de novo, and our scope of review
Snead v. Soc’y for Prevention of Cruelty to Animals of
Pennsylvania, 604 Pa. 166, 171, 985 A.2d 909, 912 (2009).
The object of interpretation and construction of all
statutes is to ascertain and effectuate the intention
of the General Assembly. See 1 Pa.C.S. § 1921(a).
When the words of a statute are clear and free from
all ambiguity, their plain language is generally the
best indication of legislative intent.
court should resort to other considerations to
determine legislative intent only when the words of
the statute are not explicit. 1 Pa.C.S. § 1921(b). In
ascertaining legislative intent, this Court is guided
by, among other things, the primary purpose of the
statute, see 1 Pa.C.S. § 1921(c)(4), and the
consequences of a particular interpretation. Id. §
In re Carroll, 586 Pa. 624, 636, 896 A.2d 566, 573
(2006) (case citations omitted).
Moreover, “[i]t is
axiomatic that in determining legislative intent, all sections
of a statute must be read together and in conjunction with
each other, and construed with reference to the entire
Penn Jersey Advance, Inc. v. Grim, 599 Pa. 534, 540, 962 A.2d 632, 634
(2009). “[T]he Pennsylvania rules of statutory construction require the civil
provisions of the WPCL to be liberally construed.”
353 (citing 1 Pa.C.S. § 1928(c)).
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Hartman, 766 A.2d at
By way of background, the WPCL “provides employees a statutory
remedy to recover wages and other benefits that are contractually due to
them.” Oberneder v. Link Computer Corp., 548 Pa. 201, 204, 696 A.2d
148, 150 (1997) (“Oberneder II”); Lugo, 967 A.2d at 968.25 The WPCL
defines “wages” as including “any other amount” pursuant to an employment
contract. See 43 P.S. § 260.2a. For example, bonuses, commissions, and
stock options are “wages.” See id. Thus, if an employee demonstrates that
any “amount to be paid pursuant to an agreement” “remain[s] unpaid,” then
that employee may be entitled to liquidated damages.
See 43 P.S. §§
“To present a wage-payment claim,” the employee must aver a
contractual entitlement “to compensation from wages” and a failure to pay
Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d
710, 716 (Pa. Super. 2005); Hartman, 766 A.2d at 352 (stating WPCL
“establishes an employee’s right to enforce payment of wages and
compensation to which an employee is otherwise entitled by the terms of an
agreement.”); see also Weldon v. Kraft, Inc., 896 F.2d 793, 801 (3d Cir.
1990) (stating, “The contract between the parties governs in determining
We agree with the following observation: “This court has also attempted to
review the legislative history of the Wage Payment Collection Law to further
determine the purposes underlying the law.
Unfortunately, there are no
substantive remarks included in the history of this law which would instruct this
court.” Barnhart v. Compugraphic Corp., 936 F.2d 131, 134 n.5 (3d Cir. 1991);
see McGoldrick v. TruePosition, Inc., 623 F. Supp. 2d 619, 630 (E.D. Pa. 2009).
- 150 -
whether specific wages are earned.”).
We agree with the United States
Court of Appeals for the Third Circuit’s observation that, absent a formal
employment contract or collective bargaining agreement, an employee
raising a WPCL claim would have to establish, at a minimum, an implied oral
contract between the employee and employer. See De Asencio v. Tyson
Foods, Inc., 342 F.3d 301, 309 (3d Cir. 2003).
As the Hartman Court noted, “the courts of Pennsylvania have had
little opportunity” to interpret the WPCL.
Hartman, 766 A.2d at 353.
Hartman, an employee, in exchange for a reduction in pay, agreed to an
equity stake in the company. Id. at 350. That employee wanted to exercise
his equity stake, but the employer refused.
Id. at 350-51.
constituted “wages” under the WPCL. Id. at 353.
In resolving this issue, the Hartman Court relied on Bowers v. NETI
Techs., Inc., 690 F. Supp. 349 (E.D. Pa. 1988).26
In Bowers, the
employees had an agreement providing for severance pay and an option by
the employees to sell their equity interest—the employer’s stock—back to
the employer. Bowers, 690 F. Supp. at 352. The employer was required to
“While we recognize federal district court cases are not binding on this court,
Pennsylvania appellate courts may utilize the analysis in those cases to the extent
we find them persuasive.” Stephens v. Paris Cleaners, Inc., 885 A.2d 59, 68
(Pa. Super. 2005) (citations omitted).
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repurchase any such stock. Id. The employees sued the employer under
the WPCL. Id.
The employer filed a motion for judgment on the pleadings, arguing
that severance pay and the employer’s payment to repurchase the
employees’ stock did not qualify as “wages” under the WPCL. Id. at 353.
The Bowers court denied the employer’s motion, reasoning that severance
pay was both “guaranteed pay” and an amount to be paid pursuant to an
agreement under the statute. Id. (citing 43 P.S. § 260.2a). Similarly, the
court concluded that the stock-repurchase payment was also a “wage”
because it was a payment pursuant to an agreement, and “offered to
plaintiffs as employees, and not for some reason entirely unrelated to their
Because the stock repurchase payment in Bowers qualified as
“wages,” the Hartman Court similarly concluded that the equity interest at
issue also qualified as “wages.” Hartman, 766 A.2d at 353. The Hartman
Court reasoned that the equity interest was a payment offered to the
employee in exchange for a reduction in pay. Id. Further, the employer did
not offer the equity interest for reasons unrelated to the employee’s
In Kafando v. Erie Ceramic Arts Co., 764 A.2d 59 (Pa. Super.
2000), this Court examined whether a gainsharing plan constituted earnings
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of an employee or a fringe benefit.27 Initially, the Kafando Court declined
to define a gainsharing plan as earnings of an employee “because the funds
in the plan” were “not determined based upon an employee’s time or task,
piece or commission. Rather, the program is entirely dependent upon the
ratio of the total cost of goods manufactured by” the employer. Id. at 62.
The Court then considered whether the gainsharing plan was a “fringe
benefit” or “wage supplement”:
[W]e first note that the gainsharing plan does not involve
any employee benefit plan as defined by ERISA, nor is the
gainsharing plan a reimbursement for expenses or related
to the payment of union dues. The money paid through
the gainsharing plan likewise cannot be considered
separation, vacation, or holiday pay for the same reason
that the money in the plan is not earnings-because the
fund is calculated in a manner that is entirely unrelated to
any employment activities of the individual employees but
rather is solely dependent upon [the employer’s] earnings
during the time period.
There are, therefore, two
possibilities left which would include the gainsharing plan
in the WPCL definition of fringe benefits or wage
supplements, “guaranteed” pay and “any other amount to
be paid pursuant to an agreement.”
By the terms of the gainsharing plan set forth in the
employee handbook, the plan can only be considered
“guaranteed pay” if the conditions set forth in the
The Kafando Court defined “gainsharing plan” as follows:
Through this plan, employees could receive bonuses in addition
to their regular wages. The gainsharing program is based upon
the profitability of the company and generates a pool of funds,
which are then periodically distributed to eligible employees, in
Id. at 61.
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handbook are met. The plan sets forth responsibilities of
[the employer’s] employees and management; these can
be described as goals designed to enhance the profitability
and productivity of the company. Further conditions are
set forth in paragraph ten of the program as quoted
above; specifically, the employee must be on the payroll
both on the last day of the calculation period and on the
date that the gainsharing checks are distributed. It is only
if these conditions are met that the gainsharing payments
are guaranteed. The conditions were not met in this case.
Id. at 62-63 (footnote omitted).
Because the employee was not on the
payroll as of the last day of the calculation period and the date of
distribution, the employee did not comply with the terms of the agreement.
Id. at 63. Thus, the Kafando Court concluded that because the employee
did not comply with the agreement, the gainsharing plan could not be
considered “guaranteed pay” or a payment “pursuant to an agreement.” Id.
The Kafando Court also distinguished the cases relied upon by the
Moreover, the cases Kafando cites in support of his claim
do not require a different result. In Hartman v. Baker,
2000 PA Super 140, this Court determined that an
employment contract entered into between the employer
and employee had created an equity interest in the
business which constituted wages under the WPCL. The
equity interest was offered to the appellee as an employee,
and for no other reason unrelated to his status as an
employee. Importantly, the equity interest in Hartman
was offered pursuant to a binding contractual agreement
between the parties. The employee had taken a reduction
to his salary in consideration for obtaining an equity
interest in the company. The terms of the contract in
Hartman clearly distinguish that case from the instant
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Kafando also cites Bowers v. NETI Technologies, Inc.,
690 F. Supp. 349 (E.D. Pa. 1988). This reliance is likewise
misplaced. In Bowers, the District Court found that a
stock repurchase agreement constituted a wage or other
fringe benefit in accordance with the provisions of the
WPCL. The court stated that the repurchase payments
“were certainly ‘wages’ within the broad definition of the
WPCL in that they were payments pursuant to agreement,
and they were offered to plaintiffs as employees, and not
for some reason entirely unrelated to their employment by
690 F. Supp. at 353.
Like in Hartman,
however, the payments arose out of an employment
contract and the parties agreed that the contractual terms
had been complied with by the employees. In the present
case, Kafando does not dispute that he has not fulfilled the
clear contractual terms of the gainsharing agreement
because he did not remain in [the employer’s] employ at
the time of distribution. This fact is dispositive of the
Id. at 63.
An employer that has contractually agreed to “pay or provide” fringe
benefits and wage supplements must “pay or provide” them within a certain
timeframe. 43 P.S. § 260.3; Regier v. Rhone-Poulenc Rorer, Inc., No.
93-4821, 1995 WL 395948, at *6, 1995 U.S. Dist. LEXIS 9384, at *16 (E.D.
Pa. June 30, 1995) (stating “pay or provide” phrase “suggests that fringe
benefits and wage supplements are not limited to cash compensation and
that the phrase ‘amount to be paid’ contained in § 260.2a should be
construed to include the value of non-monetary obligations owed to an
employee.” (footnote omitted)). “It is the contract between the parties that
governs the determination of whether specific ‘wages’ or benefits were
‘earned.’ See, e.g., DeAsencio v. Tyson Foods, Inc., 342 F.3d 301, 309
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(3d Cir. 2003); Oberneder v. Link Computer Corp., 548 Pa. 201, 696
A.2d 148, 150 ([ ] 1997); Kafando v. Erie Ceramic Arts Co., 764 A.2d 59,
61 (Pa. Super. [ ] 2000).” Integrated Serv. Solutions, Inc. v. Rodman,
No. 07-3591, 2009 WL 1152162, at *7 (E.D. Pa. Apr. 29, 2009).
Employing a broad interpretation of the WPCL, courts have defined
various monetary forms of compensation as “wages” under the WPCL. The
statute specifically covers monetary compensation such as separation,
vacation and holiday pay, and bonuses.
See 43 P.S. § 260.2a; Bowers,
690 F. Supp. at 353; Dep’t of Transp. v. Pennsylvania Indus. for the
Blind & Handicapped, 886 A.2d 706, 714 (Pa. Cmwlth. 2005).
forms of compensation defined as “wages” include equity interests, put
options, and call options.
See Bowers, 690 F. Supp. at 353; Hartman,
766 A.2d at 353; Regier, 1995 WL 395948, at *6.
This Court has
recognized those forms of compensation as “wages” under the WPCL when
“they were offered to plaintiffs as employees, and not for some reason
entirely unrelated to their employment.”
Hartman, 766 A.2d at 353
(quoting Bowers, 690 F. Supp. at 353).
Consistent with the foregoing, we hold that monetary payments for
rest breaks pursuant to an agreement between an employer and employee
are “fringe benefits,” and thus “wages” under the WPCL.
Similar to the
severance pay in Bowers, the payment associated with a paid, agreed-upon
rest break is both “guaranteed” and pursuant to an agreement.
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690 F. Supp. at 353.
Analogous to the equity interest in Hartman and
Bowers, the payment associated with a paid rest break is offered pursuant
to an agreement with an employee.
Id.; Hartman, 766 A.2d at 353.
Unlike the gainsharing plan in Kafando, the payment is not dependent upon
an employer’s earnings and is dependent on an employee’s compliance with
an agreement. Kafando, 764 A.2d at 62-63. Thus, an employer’s failure to
timely pay the amount associated with a paid, agreed-upon rest break could
constitute a violation of the WPCL. 43 P.S. § 260.3; Sullivan, 873 A.2d at
716; Hartman, 766 A.2d at 352; see Doe v. Kohn, Nast & Graf, P.C.,
862 F. Supp. 1310, 1325 (E.D. Pa. 1994) (stating WPCL provides remedy
when employer breaches contractual right to wages).
Conversely, if an
agreement provides for unpaid rest breaks, we suggest a violation of the
WPCL could not occur because no monetary payments are involved. 43 P.S.
§ 260.2a; see Doe, 862 F. Supp. at 1325.
We reiterate that a violation of the WPCL occurs when an employer
fails to timely pay the monetary amount associated with a paid, agreed-upon
rest break. 43 P.S. § 260.3. An employer’s failure to provide the rest break
itself does not establish a violation of the WPCL. An employee retains the
burden of, inter alia, establishing that the wages associated with a paid rest
break were guaranteed or pursuant to an agreement. 43 P.S. § 260.2a. An
employee, of course, still has the burden of establishing an employer’s
untimely payment of or failure to pay those wages.
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Thus, the evidence
establishing a breach of an agreement to provide a paid rest break and a
violation of the WPCL overlap, but are not identical.
Having established that monetary payments associated with paid rest
breaks could be “wages” under the WPCL, we examine Wal-Mart’s second
Briefly, as summarized above, Wal-Mart argues that Appellees
cannot recover under the WPCL because there is no contractual right to
payment for missed or shortened rest breaks. We disagree.
“[T]he interpretation of the terms of a contract is a question of law for
which our standard of review is de novo, and our scope of review is plenary.”
McMullen v. Kutz, 603 Pa. 602, 609, 985 A.2d 769, 773 (2009) (citation
Contract interpretation . . . requires the court to ascertain
and give effect to the intent of the contracting parties as
embodied in the written agreement. Courts assume that a
contract’s language is chosen carefully and that the parties
are mindful of the meaning of the language used. When a
writing is clear and unequivocal, its meaning must be
determined by its contents alone.
Pennsylvania Indus. for the Blind & Handicapped, 886 A.2d at 711
(citations and quotation marks omitted).
“The WPCL does not create a statutory right to compensation. Rather,
it provides a statutory remedy when the employer breaches a contractual
right to earned wages. Whether specific wages are due is determined by the
terms of the contract.”
Doe, 862 F. Supp. at 1325 (citations omitted);
accord Sullivan, 873 A.2d at 716; Hartman, 766 A.2d at 352.
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have refused to find a contractual right to payment when an employee offers
no evidence in support of that right. See Weldon, 896 F.2d at 801 (holding
that, under WPCL, a suspended employee who was then terminated had no
right to wages during suspension because there was no contractual or
implied contractual obligation to pay wages during suspension unless
employee was reinstated); Doe, 862 F. Supp. at 1325-26 (holding that
because discharged employee had no contractual right to payment for
accrued but unused vacation days, summary judgment in favor of employer
was proper for WPCL claim).
For example, in Harding, Duquesne Light
Company fired the employee for failing a drug test. Harding, 882 F. Supp.
The employee sued under the WPCL to recover a claimed
contractual right to payment for unused vacation time and for a stockappreciation right.
Id. at 425.28
The court explained that the employer’s
appreciation rights expressly identified certain situations where an employee
could receive payment for accrued-but-unused vacation time and could
continue to exercise a stock-appreciation right. Id. at 428. Those policies
did not provide such a right to fired employees.
Thus, because the
employee failed to identify material issues of fact with respect to his
contractual right, the court granted summary judgment in favor of the
“A stock appreciation right (“SAR”) is the right to receive any increase in market
value of Duquesne Light Company common stock between the date the SAR was
granted and the date the SAR is exercised.” Id. at 425 n.2.
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Similarly, if an employee does not comply with the
agreement, that employee usually does not have a right to payment under
the WPCL. See Kafando, 764 A.2d at 63 (holding that because employee
did not comply with terms of agreement, employee was not entitled to
payment under WPCL).
In this case, Wal-Mart’s policy states that employees “are to take full,
timely, uninterrupted breaks” and shall “receive compensation for break time
at the applicable rate of pay.”
PD-07, Revised May 2004; R.R. at 6987a-
interpretations. Pennsylvania Indus. for the Blind & Handicapped, 886
A.2d at 711. Indeed, Wal-Mart reinforced the mandatory nature of the paid
rest breaks by warning employees they could be disciplined for missing or
taking shortened rest breaks.
PD-07, Revised May 2004; R.R. at 6987a-
88a. Management would also be disciplined for failing to provide paid rest
breaks pursuant to PD-07.
In conjunction with PD-07, Wal-Mart also
guaranteed payment for all hours worked.
PD-43; R.R. at 7020a.
Essentially, Wal-Mart promised to pay a full-time hourly employee for a
forty-hour workweek in exchange for thirty-seven-and-a-half hours of labor
(including meal periods) and two-and-a-half hours of rest.
unequivocal language, we disagree with Wal-Mart’s argument that its refusal
to provide or curtailing of a contractual, paid rest break negates its WPCL
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liability because “[e]mployees are paid regardless of whether or not they
take their rest breaks.” Wal-Mart’s Brief at 50.
The WPCL requires Wal-Mart to make any payments pursuant to an
agreement. 43 P.S. § 260.2a. Appellees introduced evidence that Wal-Mart
had the contractual obligation to provide paid rest breaks. PD-07, Revised
May 2004; R.R. at 6987a-88a; Weldon, 896 F.2d at 801; Harding, 882 F.
Supp. at 428; Doe, 862 F. Supp. at 1325-26.
Appellees also introduced
evidence that they could not take rest breaks.
See, e.g., N.T., 9/15/06
(afternoon), at 16; Kafando, 764 A.2d at 63. Wal-Mart’s failure to provide
those paid rest breaks triggered both a breach of contract claim and a WPCL
claim. See Sullivan, 873 A.2d at 716; Hartman, 766 A.2d at 352; accord
Doe, 862 F. Supp. at 1325.
After viewing the evidence in the light most favorable to Appellees, the
instant case is distinguishable from Weldon and Doe.
In Weldon, the
Court affirmed summary judgment against the employee on the WPCL claim
because the evidence failed to establish material issues of fact regarding the
employer’s express or implied contractual obligation to pay the wages at
Weldon, 896 F.2d at 801.
The Doe court similarly affirmed
summary judgment in favor of the employer on the employee’s WPCL claim
because the employee could not establish a contractual right to payment for
accrued-but-unused vacation time. Doe, 862 F. Supp. at 1325-26.
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contractual right to payment for taking a mandatory rest break. See PD-07,
Revised May 2004; R.R. at 6987a-88a.
Indeed, if Appellees did not take
their rest breaks, then Wal-Mart could discipline them. Id. Thus, unlike in
Kafando, where the employee did not satisfy the agreement’s terms for
payment, Appellees complied with the terms of the instant contract by
working shifts of the requisite length necessary for a rest break. See, e.g.,
N.T., 9/15/06 (afternoon), at 16; cf. Kafando, 764 A.2d at 63.
Similarly, Wal-Mart’s reliance on Harding is inapt.
Harding for the proposition that an employee, to recover under the WPCL,
must establish “a contractual right to payment if the benefit is not provided.”
Wal-Mart’s Brief at 49. In Harding, the contract specified the circumstances
under which an employee could receive payment for unused vacation and for
a stock-appreciation right. Harding, 882 F. Supp. at 428. For example, a
retired or disabled employee was entitled to payment.
fired for failing a drug test, however, was not identified as one of those
circumstances warranting payment.
Id. at 428-29.
Appellees established a contractual right to paid rest breaks after working a
qualifying number of hours. PD-07, Revised May 2004; R.R. at 6987a-88a.
The policy did not specify any additional conditions that would, like the
employer in Harding, absolve Wal-Mart of any contractual obligation to pay
Appellees. Once Appellees worked a shift of a qualifying length, they had a
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right to be paid for temporarily not working, pursuant to their agreement.
See PD-07, Revised May 2004; R.R. at 6987a-89a.
Nothing in the
agreement indicates that Appellees forfeited their right to paid rest breaks
when they failed to receive or had to work during those breaks.
established Wal-Mart’s breach of that agreement, Appellees demonstrated
entitlement to the wages they should have received.
Barring or cutting short a paid, agreed-upon rest break provides a
basis for a WPCL claim because the employer is no longer paying the
employee to rest, but to work. Thus, refusing to provide or curtailing a paid,
agreed-upon rest break results both in a violation of the agreement to
provide a paid rest break and a violation of the WPCL when the employer
fails to make the payment associated with taking, e.g., a fifteen-minute rest
That the employee is not entitled to extra pay for a missed or
shortened rest break does not negate the employer’s contractual obligation
to provide a paid rest break and WPCL obligation to pay the employee for
taking that agreed-upon rest break.
Under these specific facts, the WPCL
does not permit an employer to escape liability when it receives the benefit
of, for example, an employee’s eight hours of labor when that employee
agreed to be paid to work seven-and-a-half hours and to rest for one-half
hour. Having discerned no error in concluding Appellees have established a
contractual right to payment for missed or shortened rest breaks, we
examine whether the court erred in awarding liquidated damages.
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To reiterate briefly, Wal-Mart argues that the court misinterpreted 43
P.S. § 260.10, the liquidated damages provision of the WPCL.
interprets the first two sections of that provision as addressing a scenario of
when the employer completely fails to pay wages, while the third section
addresses when the employer fails to pay a portion of wages only. Because
Appellees alleged underpayment of wages, as opposed to a complete
nonpayment of wages, Wal-Mart argues that Appellees’ WPCL claim falls
under the third section only.
Wal-Mart thus suggests Appellees had, but
failed, to demonstrate a wage shortage exceeding five percent in order to
obtain liquidated damages. Specifically, Wal-Mart claims Appellees did not
establish they had wage shortages of over five percent of their gross wages
on any two paydays within three months.
If Appellees’ WPCL claim is
considered an allegation for partial unpaid wages, Wal-Mart suggests that
the third section is mere surplusage.
Absent Appellees’ shortages
calculation, Wal-Mart claims the court had no basis to award liquidated
damages. In sum, Wal-Mart argues that because the first two sections do
not apply, the only applicable section is the third, and Appellees failed to
establish liability under the third section. Because Wal-Mart’s liability is not
limited to the third section only, we disagree.
Wal-Mart’s “claim requires us to consider the proper interpretation of §
260.10, making the issue a question of law for which our standard of review
is de novo and our scope of review is plenary.” Thomas Jefferson Univ. v.
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Wapner, 903 A.2d 565, 574 (Pa. Super. 2006) (citing Krebs v. United
Refining Co. of Pa., 893 A.2d 776, 787 (Pa. Super. 2006)); see generally
Snead, 604 Pa. at 171, 985 A.2d at 912 (discussing standard of review for
statutory interpretation); Penn Jersey Advance, Inc., 599 Pa. at 540, 962
A.2d at 634 (same). Punctuation may be used to construe the statute, but
cannot override or otherwise affect the legislative intent.
1 Pa.C.S. §
1923(b). The word “or” is disjunctive and the word “and” is conjunctive. In
re Paulmier, 594 Pa. 433, 448, 937 A.2d 364, 373 (2007); Rivera v.
Philadelphia Theological Seminary of St. Charles Borromeo, Inc., 510
Pa. 1, 15, 507 A.2d 1, 8 (1986). We acknowledge our mandate to construe
the WPCL liberally. Hartman, 766 A.2d at 353 (citing 1 Pa.C.S. § 1928(c)).
The liquidated-damages provision states:
§ 260.10. Liquidated damages
Where wages remain unpaid for thirty days beyond the
regularly scheduled payday, or, in the case where no
regularly scheduled payday is applicable, for sixty days
beyond the filing by the employe of a proper claim or for
sixty days beyond the date of the agreement, award or
other act making wages payable, or where shortages in
the wage payments made exceed five percent (5%) of the
gross wages payable on any two regularly scheduled
paydays in the same calendar quarter, and no good faith
contest or dispute of any wage claim including the good
faith assertion of a right of set-off or counter-claim exists
accounting for such non-payment, the employe shall be
entitled to claim, in addition, as liquidated damages an
amount equal to twenty-five percent (25%) of the total
amount of wages due, or five hundred dollars ($500),
whichever is greater.
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43 P.S. § 260.10 (emphases added).29
The legislative history for this
provision is sparse.
Because the WPCL is analogous to the federal Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201-219, this Court has examined federal cases
interpreting the FLSA. Signora v. Liberty Travel, Inc., 886 A.2d 284, 296
(Pa. Super. 2005) (relying on Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697,
65 S. Ct. 895, 89 L. Ed. 1296 (1945), and Friedrich v. U.S. Computer
Sys., Inc., No. 90-1615, 1995 WL 412385, 1995 U.S. Dist. LEXIS 9791
(E.D. Pa. July 10, 1995), in interpreting the WPCL).30
In Brooklyn Sav.
Bank, the United States Supreme Court interpreted the then-existing
version of the FLSA and observed “the liquidated damage provision is not
penal in its nature but constitutes compensation for the retention of a
As originally enacted, the statute stated:
Where wages remained unpaid for thirty days beyond the
regularly scheduled payday and no good faith contest or dispute
of any wage claim including the good faith assertion of a right of
set-off or counter-claim exists accounting for such nonpayment, the employe shall be entitled to claim, in addition, as
liquidated damages an amount equal to the amount of the claim
still unpaid and not in contest or disputed: Provided, however,
that the amount of such liquidated damages shall not exceed
two hundred dollars ($200) or six percent (6%) of the claim,
whichever is greater.
43 P.S. § 260.10 (1961) (current version at 43 P.S. § 260.10 (2009)).
Briefly, under the FLSA, “[a]n employee who brings suit . . . for unpaid minimum
wages or unpaid overtime compensation, together with liquidated damages, has the
burden of proving that he performed work for which he was not properly
compensated.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87, 66
S. Ct. 1187, 1192, 90 L. Ed. 1515, 1522 (1946).
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workman’s pay which might result in damages too obscure and difficult of
proof for estimate other than by liquidated damages.”
Bank, 324 U.S. at 707, 65 S. Ct. at 902, 89 L. Ed. at 1309. Compensating
the aggrieved employee with both lost wages and liquidated damages
acknowledges the employee’s injury from the delayed payment. Id.
Pennsylvania courts have similarly acknowledged the compensatory
purpose of the WPCL’s liquidated damages provision.
The Signora Court,
for example, adopted the rationale of Friedrich, which relied on Brooklyn
Sav. Bank, and concluded that “both the liquidated damages and prejudgment interest are intended to compensate for the loss of use of the
proper amount of wages payable” and such damages are not “punitive in
Signora, 886 A.2d at 296;31 see also Oberneder v. Link
Computer Corp., 674 A.2d 720, 722 (Pa. Super. 1996) (“Oberneder I”)
(noting “the primary goal of the WPCL is to make whole again employees
whose wages were wrongfully withheld by their employers”); accord
Ambrose v. Citizens Nat’l Bank of Evans City, 5 A.3d 413, 420 (Pa.
Super. 2010), appeal denied, ___ A.3d ___, 2011 WL 1134712 (Pa. 2011).
As the Superior Court observed, “[t]he WPCL is not only a vehicle for
recovery of unpaid wages; it also provides for damages in the event an
In this case, Appellees did not request pre-judgment interest for any WPCL
award. Order, 11/14/07. The Signora Court cautioned against awarding both
prejudgment interest and liquidated damages under the WPCL. See Signora, 886
A.2d at 296.
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employer withholds compensation in the absence of good faith.” Wapner,
903 A.2d at 574.
The WPCL defines “wages” as including “fringe benefits,” which
encompasses “any other amount to be paid pursuant to an agreement”.
See 43 P.S. § 260.2a.
For example, bonuses, commissions, and stock
options are “wages”. Thus, if an employee demonstrates that any “amount
to be paid pursuant to an agreement” “remain[s] unpaid,” then that
employee may be entitled to liquidated damages. See 43 P.S. §§ 260.2a,
The liquidated damages statute identifies three conditions separated
by two disjunctive “or” clauses, followed by a comma and then a conjunctive
“and” clause requiring “no good faith.”
See 43 P.S. § 260.10; In re
Paulmier, 594 Pa. at 448, 937 A.2d at 373; Rivera, 510 Pa. at 15, 507
A.2d at 8. To succeed on a claim for liquidated damages, a claimant must
establish one of the three conditions separated by the disjunctive “or”. Cf.
In re Paulmier, 594 Pa. at 448, 937 A.2d at 373; Rivera, 510 Pa. at 15,
507 A.2d at 8. Our conclusion is bolstered by the original language of the
statute, which required only “no good faith” and a single condition that a
claimant had to fulfill: unpaid wages beyond thirty days.
Cf. 43 P.S. §
260.10 (1961) (current version at 43 P.S. § 260.10 (2009)). If a claimant
establishes one of those three conditions, then the burden of proof shifts to
the employer to establish good faith.
Wapner, 903 A.2d at 575 (holding
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employer has burden of proof); Hartman, 766 A.2d at 353 (assuming,
without deciding, employer bore burden of proof).
We discern no statutory language in the first condition limiting
recovery of liquidated damages to factual scenarios where, as Wal-Mart
suggests, there is a complete nonpayment of wages.
See Penn Jersey
Advance, Inc., 599 Pa. at 540, 962 A.2d at 634 (noting, absent ambiguity,
“plain language is generally the best indication of legislative intent”).
WPCL defines “fringe benefits” as including “any other amount to be paid
pursuant to an agreement”.
Thus, the liquidated damages statute
provides: “Where ‘any other amount to be paid pursuant to an agreement’
remains unpaid for thirty days”, the employee may be entitled to liquidated
43 P.S. § 260.10.
condition mere surplusage.
This construction does not render the third
The third condition addresses the factual
scenario of when an employer consistently pays an employee late, i.e., not
on the regularly scheduled payday, but within thirty days of the regularly
scheduled payday. See id. The third condition closes a loophole in the first
condition, under which a dilatory employer might avoid liquidated damages
by paying the amount owed within thirty days. See id. The amount owed,
however, must exceed 5%. See id.
Instantly, to establish a claim for liquidated damages, an employee
must demonstrate that any monetary amount associated with a paid rest
break remained unpaid for at least thirty days beyond a regularly scheduled
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See 43 P.S. § 260.10.
The monetary amount does not have to
exceed 5% of gross wages payable.
Alternatively, an employee
must prove that the employer underpaid the monetary amounts associated
with paid rest breaks and the amount of underpayment exceeds “five
percent (5%) of the gross wages payable on any two regularly scheduled
paydays in the same calendar quarter”.
Under this proviso, the
employee does not have to establish a thirty-day window of time and only
has to establish, inter alia, the amount of underpayment. See id.
Under Wal-Mart’s proposed interpretation, an employer, in bad faith,
could underpay an employee by 4%. If the first condition was limited to a
complete nonpayment of wages, then the employee would have no claim for
The employee, similarly, would have no claim for
liquidated damages under the third condition because the shortage is less
than 5%. Accordingly, because of the compensatory purpose of this section,
we are reluctant to construe the first condition as limited to a complete
nonpayment of wages, as that interpretation could potentially bar liquidated
damages should an employer, for example shortchange an employee 4% in
bad faith. See Signora, 886 A.2d at 296; see also Oberneder I, 674 A.2d
at 722; cf. Brooklyn Sav. Bank, 324 U.S. at 707, 65 S. Ct. at 902, 89 L.
Ed. at 1309; Friedrich, 1995 WL 412385, at *3, 1995 U.S. Dist. LEXIS
The parties agree the remaining condition set forth in section 260.10 does not
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9791, at *10 (commenting, in reference to Pennsylvania’s Minimum Wage
Act, “violators would in effect enjoy an interest-free loan for as long as they
could delay paying out the wages.”).
In that circumstance, an employee
should have the ability to recover compensatory damages, i.e., liquidated
damages, under the WPCL, and not under some alternative legal theory.
See Oberneder I, 674 A.2d at 722; see also Oberneder II, 548 Pa. at
204, 696 A.2d at 150; Lugo, 967 A.2d at 968. Otherwise, an employee is
not necessarily guaranteed damages for the injury caused by the delay. See
Brooklyn Sav. Bank, 324 U.S. at 707, 65 S. Ct. at 902, 89 L. Ed. at 1309.
Contrary to Wal-Mart’s contention, Appellees did not have to introduce
evidence establishing shortages of at least 5% because Appellees’ WPCL
claim was cognizable under the first condition. Thus, we discern no error of
law. See Wapner, 903 A.2d at 574.
Wal-Mart next claims it met its burden of establishing, via clear and
convincing evidence, a “good faith contest or dispute” of Appellees’ wage
43 P.S. § 260.10.
Wal-Mart, although conceding the statute
identifies “non-exhaustive examples of ‘good faith,’” contends that the court
should focus on the employer’s litigation conduct because section 260.10
identifies the “right of set-off or counter-claim” and “litigation is the only
possible forum for assertion of set-off or counterclaim rights.”
Brief at 53. Given this focus, Wal-Mart suggests it had a reasonable legal
basis for withholding Appellees’ wages even if a court concludes that basis
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was incorrect. Id. (citing Hartman, 766 A.2d at 354-55). Wal-Mart notes
that no Pennsylvania court has resolved these WPCL issues. Further, WalMart argues, Appellees abandoned, or the jury rejected, a number of claims,
giving further credence to Wal-Mart’s position that its litigation conduct was
in good faith. Wal-Mart is not entitled to relief.
In reference to the phrase, “[N]o good faith contest or dispute of any
wage claim including the good faith assertion of a right of set-off or counterclaim exists accounting for such non-payment,” the WPCL does not define
“good faith.” 43 P.S. § 260.10. With respect to the term “include,” “[t]he
term ‘include’ is to be dealt with as a word of ‘enlargement and not
Cemetery Ass’n, 453 Pa. 124, 130-31, 306 A.2d 881, 885 (1973)
(alterations omitted); accord Samantar v. Yousuf, ___ U.S. ___, ___
n.10, 130 S. Ct. 2278, 2287 n.10, 176 L. Ed. 2d 1047, 1062 n.10 (2010).
As one treatise notes:
A term whose statutory definition declares what it
“includes” is more susceptible to extension of meaning by
construction than where the definition declares what a
term “means.” It has been said “the word ‘includes’ is
usually a term of enlargement, and not of limitation. . . .
It, therefore, conveys the conclusion that there are other
items includable, though not specifically enumerated. . . .”
2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes &
Statutory Construction § 47:7 (7th ed. 2007) (“Sutherland”) (footnote
- 172 -
The Hartman Court analogized lack of good faith with bad faith in
insurance caselaw in holding that an employer must establish good faith by
clear and convincing evidence:
“Good faith” is defined as “[a] state of mind consisting in
(1) honesty in belief or purpose, (2) faithfulness to one’s
duty or obligation, (3) observance of reasonable
commercial standards of fair dealing in a given trade or
business, or (4) absence of intent to defraud or to seek
unconscionable advantage. Black’s Law Dictionary (7th ed.
1999), at 701.
“Bad faith” in the insurance context is defined as “[a]n
insurance company’s unreasonable and unfounded (though
not necessarily fraudulent) refusal to provide coverage in
violation of the duties of good faith and fair dealing
owed to an insured.” Black’s Law Dictionary (7th ed.
1999), at 134 (emphasis added).
Hartman, 766 A.2d at 354 n.3; see also Oberneder II, 548 Pa. at 206
n.3, 696 A.2d at 151 n.3 (noting, in dicta, “that employers that act in bad
faith in contesting an employee’s claim for wages must pay liquidated
In Hartman, the employer misunderstood the binding nature of the
agreement at issue and interpreted the WPCL as excluding payment for
Hartman, 766 A.2d at 354-55.
The Hartman Court
reversed an award of liquidated damages, reasoning:
We find that the record provided appellants with sufficient
reason to dispute [the employee’s] claim that the parties
were bound by the terms of the revised memorandum and
that [the employee] was entitled to payment of the equity
interest in the form of wages under the WPCL.
following facts and averments demonstrate that [the
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employer’s] misunderstanding was reasonable and not
indicative of bad faith:
1. The parties never signed a document reflecting [the
employee’s] revised pay structure.
2. The accounting system to determine the percentage of
the equity interest was not defined by the revised February
3. Due to the absence of a defined accounting system, [the
employer] believed that no value could be placed on [the
employee’s] equity interest and that, accordingly, this
interest did not qualify as “wages” under the WPCL.
4. [The employee’s] testimony that, prior to his decision to
exercise his equity interest and resign, both parties had
set forth opposing points of view regarding the binding
nature of the revised February memorandum.
5. [The employer’s] belief that the resignation of Sam
Colletts may have cancelled any agreement reached by the
parties concerning [the employee’s] revised pay structure.
Similar to the insurers in [Collins v. Allstate Indem. Co.,
626 A.2d 1162 (Pa. Super. 1993), the instant employer]
made an incorrect legal conclusion in good faith that was
based upon supportive authority and a thorough
examination of the parties’ course of conduct. As we
found in the insurance context that mere bad judgment is
not bad faith, so to do we find that mere bad judgment
does not prevent an employer from acting in good faith
under the WPCL. Cf. [MGA Ins. Co. v. Bakos, 699 A.2d
751 (Pa. Super. 1997)]. Thus, we find that the Chancellor
erred by finding that [the employer] failed to prove that
they acted in good faith by disputing [the employee’s]
claim for payment.6
Although the Chancellor stated that [the employer was]
denied the benefit of a good faith defense due to the fact
that [the employer] failed to pay [the employee] $222.86
for work done on a particular project, we find this
conclusion far overreaching.
Even assuming [the
employer] did not act in good faith when [it] refused to
pay the $222.86, we fail to see any connection to the
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present dispute in which the parties possessed varying
interpretations of a memorandum. Simply because an
employer failed to prove that it acted in good faith in one
particular episode of disputed wages, does not deny the
employer the benefit of a good faith defense under the
WPCL in a subsequent wage dispute involving a different
set of circumstances with the same employee.
Id. at 355 (some citations omitted). Accordingly, the Hartman Court held
that the employer established it acted in good faith because it had a
reasonable, although incorrect, legal conclusion. Id.
In the case of O’Donnell ex rel. Mitro v. Allstate Ins. Co., 734 A.2d
901 (Pa. Super. 1999), this Court interpreted a statute providing for
damages if an insurer acted in bad faith. Id. at 906 (interpreting 42 Pa.C.S.
The O’Donnell Court held that “section 8371 was designed to
remedy all instances of bad faith conduct by an insurer, whether occurring
before, during or after litigation.” Id. at 906; accord Bombar v. West Am.
Ins. Co., 932 A.2d 78, 92 (Pa. Super. 2007); Hollock v. Erie Ins. Exch.,
842 A.2d 409, 415 (Pa. Super. 2004) (en banc).
The O’Donnell Court,
however, refused to permit recovery under the statute for alleged discovery
violations because “the Pennsylvania Rules of Civil Procedure provide an
exclusive remedy[.]” Id. at 909.
More recently, in Wapner, a hospital defended a WPCL claim by
arguing it withheld the physician’s wages on the basis that it exercised its
right of set-off in good faith.
Wapner, 903 A.2d at 574.
Court disagreed, holding that the record suggested the hospital failed to pay
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the wages owed to the physician for several months before learning the
physician was not complying with his employment agreement, which could
have justified the nonpayment.
Id. at 575.
Thus, the Wapner Court
affirmed the trial court’s denial of the hospital’s motion for judgment
notwithstanding the verdict, reasoning, “[T]he issue of good faith was
properly a question for the jury because it was neither established as a
matter of law, nor a matter about which two reasonable minds could not
disagree.” Id. at 575.
We disagree with Wal-Mart’s suggestion that courts should examine
“good faith” in the context of claims and arguments raised in litigation only.
As Wal-Mart acknowledges, the term “include” is non-exhaustive and it is
long-settled that “include” is not a term of limitation, but a term of
enlargement. Alto-Reste Park Cemetery Ass’n, 453 Pa. at 130-131, 306
A.2d at 885; 2A Sutherland, supra, § 47:7. The statute’s use of the word
“including” and listing, as examples, the “right of set-off or counter-claim,”
does not limit the examination of good faith to solely the claims raised in
We observe that in Wapner, the employer’s defense of set-off
was based on facts predating the litigation itself. Wapner, 903 A.2d at 574.
The jury in Wapner did not examine whether the employer raised the
defense in good faith during the litigation, but whether the employer acted
in good faith by raising a right to set-off at the time it refused to pay the
employee’s wages. Id. at 575. Similarly, the Hartman Court examined the
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events and the employer’s conduct prior to the lawsuit in determining
whether a fact-finder could conclude the employer acted in good faith.
Hartman, 766 A.2d at 355 & n.6 (assuming the employer “did not act in
good faith when [it] refused to pay”).
Further, the liquidated damages
statute compensates the employee for lost wages and not, for example, only
an employer’s lack of good faith with respect to claims raised during
litigation. Signora, 886 A.2d at 296; see also Brooklyn Sav. Bank, 324
U.S. at 707, 65 S. Ct. at 902, 89 L. Ed. at 1309. Interpreting that statute as
focusing exclusively on the employer’s litigation conduct—occurring after the
withholding of wages—undermines the compensatory purpose of the statute.
Cf. O’Donnell, 734 A.2d at 906 (concluding the insurance bad-faith statute
encompasses bad faith conduct “before, during or after litigation”).
To the extent Wal-Mart relies on Hartman, that case is distinguishable
because the jury could, and did, find instantly that Wal-Mart did not meet its
burden of clear and convincing evidence.
In Hartman, the employer
satisfied the evidentiary standard because there was little indication from
the parties’ conduct that anything more than “mere bad judgment”
regarding the employer’s legal obligations caused the employer’s failure to
Hartman, 766 A.2d at 355.
The employer, the Hartman Court
concluded, “made an incorrect legal conclusion in good faith that was based
upon supportive authority and a thorough examination of the parties’
course of conduct.” Id. (emphasis added).
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In contrast to Hartman, the instant record provides ample evidence
from which a juror could conclude Wal-Mart’s failure to pay was not a result
of a good-faith, but incorrect, legal conclusion.
The record reflects
testimony and documentary evidence suggesting that because of pressure
from the home office to reduce labor costs and the availability of significant
bonuses for managers based on store profitability, Wal-Mart’s scheduling
program created chronic understaffing, leading to widespread rest-break
See, e.g., Pls.’ Ex. 429; R.R. at 7787a-88a; N.T., 9/13/06
(morning), at 106-08; R.R. at 1596a-98a.
Wal-Mart’s own audit reports
identified many such violations. See, e.g., N.T., 9/12/06 (morning), at 6165; R.R. at 1501a-05a.
This case is more akin to Wapner, in which the
record established that the facts purportedly justifying the hospital’s right of
set-off occurred months after the hospital’s refusal to pay.
A.2d at 575. Appellees introduced evidence that Wal-Mart did not permit its
employees to take breaks and that it recognized off-the-clock work violated
the law. See, e.g., N.T., 9/15/06 (morning), at 19; R.R. at 1617a; Pls.’ Ex.
The fact-finder, of course, does not determine the validity of the legal conclusion.
Rather, the fact-finder examines whether the employer had a good-faith basis for
contesting or disputing the wage claim at the time the employer challenged the
wage claim. This approach, we conclude, naturally prevents an employer from
invoking a justification, legal or otherwise, after the fact. That a court may later
hold an after-the-fact legal justification legally sound does not, we suggest, negate
the employer’s burden to establish its good faith at the time it challenged the wage
claim. Cf. Hartman, 766 A.2d at 354. We are, for example, unaware of evidence
of record that Wal-Mart’s proffered legal justification for nonpayment was the actual
basis for nonpayment, i.e., Wal-Mart “governed its behavior in accordance with an
incorrect interpretation of state and federal statutes and regulations.” Id.
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27a; R.R. at 7020a.
After viewing the entire record in the light most
favorable to Appellees, the record does not compel the conclusion that WalMart established good faith. Moure, 529 Pa. at 402-03, 604 A.2d at 1007.
Similarly, we cannot conclude the record does not support the court’s
reasoning for denying a new trial on this particular basis. Harman, 562 Pa.
at 467-69, 756 A.2d at 1122-24.
Analogously, post-hoc events such as
abandoned or dismissed claims and an award of damages in an amount less
than that sought by Appellees do not, under these facts, tend to establish
Wal-Mart’s good faith under this provision.
Accordingly, we cannot agree
that, in examining whether an employee may receive liquidated damages,
the statute limits examination to whether the employer acted in good faith
“in the context of the claims made in the litigation.” Wal-Mart’s Brief at 53.
Wal-Mart’s third argument challenging the liquidated damages award
is that the trial court’s jury instruction misstated the law regarding liquidated
damages under the WPCL. The court instructed the jury as follows:
The Wage Payment and Collection Law was enacted by our
legislature to provide a vehicle for employees to enforce
payment of their wages and compensation which the
employers have not paid them. The underlying purpose is
to remove some of the obstacles employees face in
litigation by providing them with a statutory remedy when
an employer breaches its contractual obligation to pay
wages. The Act does not establish a new right to wages, it
simply establishes an employee’s right to enforce payment
If the defendant had a good faith contest or dispute of any
wage claim, then those provisions of the Act do not apply.
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That was all the argument about good faith and bad faith.
You will have to judge whether Wal-Mart acted in good
faith when they failed to pay and contested the claims
made by the plaintiffs.
Good faith is a state of mind which consists of honesty in
belief or purpose. It can be a state of mind which consists
of faithfulness to one’s duty or obligation. It can be a
state of mind which consists of the absence of intent to
defraud or to seek unconscionable advantage.
That’s what good faith constitutes.
bad judgment is not bad faith.
Simple negligence or
N.T., 10/11/06, at 48-49; R.R at 2145a-46a.
After the jury began deliberating at 11:40 a.m., the jury returned with
a question at 1:50 p.m.:
Id. at 75.
“We need more clarification about good faith
Wal-Mart’s counsel opined that the court should not
respond to the question, but if it opted to respond, to reread only the section
defining good faith. Id. at 80. Wal-Mart’s counsel reiterated, “I do not think
that the Court should provide them elaboration about what good faith is
beyond the charge that has already been given.”
Id. at 81.
agreed and briefly repeated the relevant sections of the charge to the jury,
including the section defining good faith.
Id. at 83-85.
discussion with counsel, the court clarified the scope of good faith to the
jury. Id. at 95.
Wal-Mart contends that the court erred in rejecting its request that the
jury make a finding that the wage shortages exceeded five percent of the
gross wages payable on any two regularly scheduled paydays in the same
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calendar quarter. Wal-Mart also claims that the court erroneously charged
the jury on good faith. In support of that assertion, Wal-Mart refers to an
alleged misstatement of law in the verdict form, which asked if Wal-Mart
“[had] a good faith contest or dispute when [it] failed to pay class members
for every hour worked,” and if Wal-Mart “[had] a good-faith contest or
dispute when [it] failed to provide rest breaks to class members.”
Verdict Interrog., at 2-3; R.R. at 2182a-83a.
Wal-Mart suggests that the
court should have asked whether Wal-Mart acted in good faith in disputing
the wage claims raised by Appellees in this lawsuit. Wal-Mart is not entitled
As a prefatory matter, we address Appellees’ claim that because WalMart filed a successful motion precluding Appellees from referring to or
introducing evidence regarding liquidated damages, Wal-Mart waived its
argument that the jury is required to find shortages.
waiver lacks merit.
Appellees’ claim of
We fail to discern how, under these facts, winning a
pretrial motion precluding evidence is the equivalent to waiving a challenge
that the court instruct the jury properly.
Having resolved Appellees’ allegation of waiver, the standard of review
for this issue is one of abuse of discretion. Rettger v. UPMC Shadyside,
991 A.2d 915, 931 (Pa. Super. 2010). “[O]ur courts have made clear that
an appellant must make a timely and specific objection to a jury instruction
to preserve for review a claim that the jury charge was legally or factually
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flawed.” Stumpf v. Nye, 950 A.2d 1032, 1041 (Pa. Super. 2008) (citations
and quotation marks omitted).
In reviewing a claim regarding error with respect to a
specific jury charge, we must view the charge in its
entirety, taking into consideration all the evidence of
record to determine whether or not error was committed.
If we find that error was committed, we must then
determine whether that error was prejudicial to the
complaining party. Error will be found where the jury was
probably misled by what the trial judge charged or where
there was an omission in the charge which amounts to
Price v. Guy, 558 Pa. 42, 46, 735 A.2d 668, 670–71 (1999) (citations and
footnote omitted). Similarly:
Error in a charge is sufficient ground for a new trial, if the
charge as a whole is inadequate or not clear or has a
tendency to mislead or confuse rather than clarify a
material issue. A charge will be found adequate unless the
issues are not made clear to the jury or the jury was
palpably misled by what the trial judge said or unless there
is an omission in the charge which amounts to
fundamental error. A reviewing court will not grant a new
trial on the ground of inadequacy of the charge unless
there is a prejudicial omission of something basic or
Stewart v. Motts, 539 Pa. 596, 606, 654 A.2d 535, 540 (1995) (citations
and quotation marks omitted). Finally,
The court is vested with substantial discretion in fashioning
the charge and may select its own language cognizant of
the need to adequately apprise the jury of the law as it
applies to the evidence adduced at trial.
language the court chose incorrectly states the law or
mischaracterizes the evidence in a way that prejudiced the
jury’s consideration and thereby undermined the accuracy
of the verdict, we will not interfere with the court’s
exercise of discretion.
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Rettger, 991 A.2d at 931 (citations, alterations, and punctuation marks
omitted); Ettinger v. Triangle-Pacific Corp., 799 A.2d 95, 106 (Pa. Super.
Initially, Wal-Mart preserved its objection:
[Wal-Mart’s counsel]: The language we want, Your Honor,
is, Did defendants act in good faith in disputing the rest
break fringe benefit claims.
The Court: In the lawsuit?
[Wal-Mart’s counsel]: Yes, Your Honor.
The Court: Any other objection? That request is overruled.
Any other objection?
[Wal-Mart’s counsel]: No, Your Honor . . . .
N.T., 10/10/06, at 30. Wal-Mart again preserved its challenge the next day:
The Court: What’s the problem with, Did defendant have a
good faith contest or dispute when they failed to provide
rest breaks to class members?
[Wal-Mart’s counsel]: We don’t believe that’s law under
the Wage Payment and Collection Act or good faith in what
the determination should be focused on.
The Court: Right.
[Wal-Mart’s counsel]: We believe good faith in the statute
is directed to whether we disputed the claims asserted in
this case in good faith.
The Court: Right, in the case, right. You are saying that
the Act doesn’t kick in until such time as plaintiffs bring a
lawsuit. I disagree. You put that on the record, you
preserved that. . . .
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N.T., 10/11/06, at 5-6; R.R. at 2135a-36a.
Wal-Mart preserved its
challenge to the scope of good faith in the liquidated-damages statute. See
Stumpf, 950 A.2d at 1041.
For the reasons discussed above, however, we discern no merit to
Wal-Mart’s claim that the court should have instructed the jury to find wage
shortages in excess of five percent in order to impose liquidated damages.
To recover liquidated damages, Appellees did not have to establish wage
shortages under that section. Cf. In re Paulmier, 594 Pa. at 448, 937 A.2d
at 373; Rivera, 510 Pa. at 15, 507 A.2d at 8.
argument that an examination of good faith was limited to its actions in this
lawsuit lacks merit.
The liquidated damages statute does not limit
examination of the employer’s good faith to the employer’s litigation
conduct. Alto-Reste Park Cemetery Ass’n, 453 Pa. at 130-31, 306 A.2d
at 885; Wapner, 903 A.2d at 574-75; Hartman, 766 A.2d at 355 & n.6.
The court could not accept Wal-Mart’s proposed instructions, as they did not
reflect the law accurately.
After considering only Wal-Mart’s specific,
preserved challenges, the court did not err by limiting the jury’s examination
of good faith to only Wal-Mart’s conduct after litigation commenced.
Price, 558 Pa. at 46, 735 A.2d at 670–71; Stewart, 539 Pa. at 606, 654
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A.2d at 540.34 We perceive no abuse of discretion. See Rettger, 991 A.2d
Wal-Mart also argues that Appellees are not entitled to a liquidated
damages award because Appellees did not identify specific individuals who
are owed liquidated damages. Wal-Mart asserts that Appellees are required
to identify those individuals because the WPCL’s liquidated damages
provision provides that liquidated damages are awarded to an “employee.”
Therefore, Wal-Mart reasons that the provision does not contemplate an
award to unidentified employees that comprise a class.
contends that the compensatory purpose behind the liquidated-damages
provision confirms its view that Appellees need to identify specific class
Wal-Mart notes that its elimination of its policy requiring
employees to swipe for rest breaks after February 9, 2001, means there are
no time records identifying which particular employees were denied rest
breaks in whole or in part.
To the extent liquidated damages are proper,
Wal-Mart suggests that any award be calculated via a claims-administration
Wal-Mart theorizes that a claims-administration process would
create a wage claim under 43 P.S. § 260.10 that obviates an award of
liquidated damages as long as it was paid within sixty days.
We decline to find error on an argument not raised or preserved by Wal-Mart at
trial. Stumpf, 950 A.2d at 1041.
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process ensures that liquidated damages are awarded only to aggrieved
individuals, as opposed to the class. Wal-Mart is not entitled to relief.35
Liquidated damages under the WPCL are compensatory, and not
punitive, in nature. Signora, 886 A.2d at 296. The WPCL also states:
§ 260.9a. Civil remedies and penalties
(b) Actions by an employe, labor organization, or party to
whom any type of wages is payable to recover unpaid
wages and liquidated damages may be maintained in any
court of competent jurisdiction, by such labor organization,
party to whom any type of wages is payable or any one or
more employes for and in behalf of himself or themselves
and other employes similarly situated, or such employe or
employes may designate an agent or representative to
maintain such action or on behalf of all employes similarly
situated. Any such employe, labor organization, party, or
his representative shall have the power to settle or adjust
his claim for unpaid wages.
43 P.S. § 260.9a(b). The statute does not specify that individual members
of a class action must be identified in order to receive liquidated damages.
Instantly, Wal-Mart correctly notes the liquidated-damages statute is
compensatory in nature. Signora, 886 A.2d at 296. We discern nothing in
the WPCL, however, that requires Appellees to identify individual employees
entitled to liquidated damages.
Additionally, narrowly construing section
260.10 in that fashion would result in a seeming conflict with section 260.9a,
Appellees again counter that Wal-Mart waived this argument because it filed a
successful motion to preclude evidence and references to liquidated damages. As
previously noted, under these circumstances, Wal-Mart’s successful pretrial motion
did not result in Wal-Mart’s waiving this argument.
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which permits a representative to maintain an action to recover liquidated
damages on behalf of all similarly situated employees—not just an individual
43 P.S. § 260.9a.
We decline to read these two sections
together in a manner that could potentially render them at odds, particularly
given our mandate to construe the WPCL liberally. Penn Jersey Advance,
Inc., 599 Pa. at 540, 962 A.2d at 634; Hartman, 766 A.2d at 353. Thus,
absent explicit legislative language to the contrary, we decline to impute into
section 260.10 a requirement that, in order to recover liquidated damages,
the plaintiff must identify every individual employee entitled to such
On that basis, we also reject Wal-Mart’s arguments regarding
usage of a claims-administration process.
Adopting Wal-Mart’s reasoning
would permit Wal-Mart to evade an award of liquidated damages by
requiring individual employees to come forward or pay wages long-since
overdue. As Wal-Mart acknowledged, liquidated damages is compensatory
in nature and designed to compensate the employee for the loss of spending
power of wages that an employee should have had. See Signora, 886 A.2d
at 296; see also Oberneder I, 674 A.2d at 722; Friedrich, 1995 WL
412385, at *2, 1995 U.S. Dist. LEXIS 9791, at *5.
With respect to Wal-Mart’s fourth issue, we affirm based on reasons
similar to those set forth in our resolution of Wal-Mart’s first issue. As with
Wal-Mart’s challenge to class certification, Wal-Mart suggests that because
the policies and handbook did not establish a contract, the evidence was
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insufficient to establish a breach of contract.
Wal-Mart contends that the
testimony of Drs. Baggett and Shapiro was the only testimony establishing
Wal-Mart suggests that because their testimony was
erroneous, it was insufficient to establish breach of contract, unjust
enrichment, and violation of the WPCL and MWA. Notably, Wal-Mart rests its
challenge to the sufficiency only on the policies, handbook, and testimony of
Drs. Baggett and Shapiro.
Because of the limited nature of Wal-Mart’s
challenge to the sufficiency of evidence, and because of our resolution of
Wal-Mart’s challenge to class certification, we similarly conclude that this
evidence, viewed in the light most favorable to Appellees, tends to support
Conversely, we cannot conclude, after giving every
reasonable inference of fact in favor to Appellees, that “the evidence was
such that no two reasonable minds could disagree that the verdict should
have been rendered for the movant.” Moure, 529 Pa. at 402, 604 A.2d at
We also observe that Wal-Mart agreed to pay Appellees for taking rest
breaks, and therefore had to comply with the WPCL statute providing for
timely payments of fringe benefits. See 43 P.S. § 260.3. Because Wal-Mart
failed to provide rest breaks and the associated payments for those rest
breaks, Wal-Mart violated that section. See id. Appellees are thus entitled
to compensation under the WPCL. See id.
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We next examine Wal-Mart’s fifth issue.
We briefly restate the
pertinent facts. On October 30, 2006, Appellees filed a petition for attorney
fees and moved for prejudgment interest. Trial Ct. Op., 9/03/08, at 2. That
same day, Wal-Mart filed a post-trial relief motion asking the Court either to
enter judgment in Wal-Mart’s favor notwithstanding the jury’s verdict, or to
grant a new trial. Id. at 2-3.
In support of their petition for attorney fees and expenses, Appellees
provided detailed fee and expense reports identifying the hours spent over
five years by each of the five firms involved, categorizing each firm’s hourly
rate, and summarizing the expenses incurred. Trial Ct. Op., 11/14/07, at 3.
Appellees’ petition also included affidavits from counsel averring their hourly
rates for, among other personnel, twenty-six lawyers and seventeen
For example, for one firm, the partners’ hourly rates ranged between $550 to
$600, the associates’ hourly rates at $175, and the paralegals’ hourly rate at $145.
Ex. A. to Aff. of Michael D. Donovan in Supp. of Pls.’ Pet. for Att’ys’ Fees and
Reimbursement of Costs; R.R. at 2275a. Paragraph four of the affidavit states:
The hourly rates for the attorneys in my firm included in Exhibit
A are the same as the regular current rates charged for their
services in other contingent matters and in class action
¶ 4 of Aff. of Michael D. Donovan in Supp. of Pls.’ Pet. for Att’ys’ Fees and
Reimbursement of Costs; R.R. at 2271a. Of the 5,900.40 hours billed, 3,764.40
hours were billed by the partner with the $600 hourly rate. Ex. A. to Aff. of Michael
D. Donovan in Supp. of Pls.’ Pet. for Att’ys’ Fees and Reimbursement of Costs; R.R.
at 2275a. The exhibit reflects counsel fees of $2,701,093.50 and expenses of
$1,214,326.80. Id.; Ex. B. to Aff. of Michael D. Donovan in Supp. of Pls.’ Pet. for
Att’ys’ Fees and Reimbursement of Costs; R.R. at 2277a.
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$12,336,547.15 and $3,583,782.62 in expenses. Ex. A and B to Pls.’ Pet.
for Award of Att’ys’ Fees and Reimbursement of Expenses; R.R. at 2245a48a. Wal-Mart filed an answer to Appellees’ fee petition and Appellees filed
a reply. Trial Ct. Op., 11/14/07, at 3. The trial court ordered Wal-Mart to
The hourly rates for the attorneys in my firm included in Exhibit
A are the same as the regular current rates charged for their
services in other contingent matters in class action litigation.
¶ 4 of Aff. of Judith L. Spanier in Supp. of Pls.’ Pet. for Award of Att’ys’ Fees and
Reimbursement of Expenses; R.R. at 2287a. Exhibit A defines the partners’ hourly
rates as ranging between $650 to $850, the associates’ hourly rates as ranging
between $250 to $550, the paralegals’ hourly rates at $235, and the interns’ hourly
rates as ranging between $185 to $200. Ex. A. to Aff. of Judith L. Spanier in Supp.
of Pls.’ Pet. for Award of Att’ys’ Fees and Reimbursement of Expenses; R.R. at
2291a. Of the 12,806.90 hours billed, 3,729.80 hours were billed by the partner
with the $650 hourly rate.
The exhibit states counsel fees totaling
$5,393,255.00 and expenses of $1,709,858.12. Id.; Ex. B. to Aff. of Judith L.
Spanier in Supp. of Pls.’ Pet. for Award of Att’ys’ Fees and Reimbursement of
Expenses; R.R. at 2293a. Total claimed counsel fees for the firms of Mr. Donovan
and Ms. Spanier, were $8,094,348.50 and total expenses were $2,924,184.92, for
a combined total of $11,018,533.42.
By way of comparison, the firm of Azar & Associates, P.C., stated its counsel
fees “include the total lodestar amount for attorney, law clerk and paralegal time,
calculated at the firm’s current complex litigation hourly rates on this litigation.” ¶
9 of Aff. of Franklin D. Azar in Supp. of Pls.’ Pet. for Award of Att’ys’ Fees and
Reimbursement of Expenses; R.R. at 2306a. The firm of Bader & Associates, LLC,
used identical language. ¶ 24 of Aff. of Gerald L. Bader, Jr. in Supp. of Pls.’ Pet. for
Award of Att’ys’ Fees and Reimbursement of Expenses; R.R. at 2331a. Dyer,
Garofalo, Mann & Shultz, L.P., calculated its counsel fees based on the “firm’s
current complex litigation hourly rate”. ¶ 18 of Aff. of John A. Smalley in Supp. of
Pls.’ Pet. for Award of Att’ys’ Fees and Reimbursement of Expenses; R.R. at 2343a.
Thus, these firms calculated their lodestar based on their hourly rates for complex
litigation in contrast to the first two firms, which calculated their lodestar based on
their hourly rates for contingent matters. In an apparent oversight, only Mr.
Donovan did not aver that receipt of fees was contingent upon success.
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reveal the aggregate fees expended in its defense, which amounted to
$10,048,944 in fees and $7,006,982 in expenses. Id. at 4, 19.
On February 27, 2007, the trial court heard oral arguments on WalMart’s post-trial motions and Appellees’ petition for attorney fees and costs.
There was a two-day fee-petition hearing in February and April of 2007.
Appellees’ fee request. John Marquess, a fee auditor, testified as an expert
in fee cutting, although he had no academic training in fee auditing or
For multiple reasons, the court rejected his expert opinion.
Although Mr. Marquess criticized Appellees’ counsel fees, the court noted a
lack of a factual basis for his methodology. He concluded, for example, that
Appellees’ counsel who appeared at trial, but did not actually participate at
trial, should not bill their time at trial because, inter alia, he could not
ascertain whether they participated at each stage of the litigation.
2/27/07, at 45-48. The trial court stated:
Mr. Marquess declined to offer an opinion about what fees
had been earned.
However, when provided with a
calculator in the courtroom he could easily calculate [a fee
of $10,359,200 and] offered no criticism of [that figure].
His criticism such as it is, is limited to $277,200.00
claimed by the Dyer firm, $550,505.00 in what he calls
“duplicate attorneys” at trial and $202,991.00 for intern
and law clerk work.
We do not opine on whether certification exists.
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Mr. Marquess’s opinion is totally and entirely rejected on
the basis that he had no pretense to knowledge of what a
plaintiff’s firm needs to do to prepare and try a case action
jury trial to verdict and has no factual basis to evaluate the
work performed in this case. His testimony is rejected as
grossly lacking in necessary and readily obtainable facts.
demonstrating an unwillingness to have his statements
cross-examined, by providing misleading and transparently
disingenuous answers in a conscious effort to obfuscate.
Trial Ct. Op., 11/14/07, at 13.
Wal-Mart’s second expert, Ralph Wellington, Esq., testified about
reasonable attorney fees. He opined that he had no criticism of the number
of attorneys involved, work performed, and hours spent by Appellees’
litigation team. He disputed, however, some of the hourly rates identified by
some of Appellees’ counsel.
Id. at 14.
After considering the affidavit,
evidence, and conflicting testimony of the parties’ experts regarding the
reasonableness and necessity of the legal services provided, the court held
that the rates requested by Appellees’ counsel and the work performed by all
attorneys, associates, paralegals, and interns were reasonable. Id. at 14.
The trial court then examined the reasonableness of Appellees’
$151,164,277.35, against the $12,336,547.15 in fees, or a contingency
equivalent of 8%. Id. at 20. The court categorically opined:
No [p]laintiff’s firm would have accepted this case on such
a contingency. No plaintiff’s firm would have accepted any
contested liability claim on such a low contingency fee. No
competent firm would have accepted this case on less than
a one-third contingency had they recognized that over
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$3,000,000.00 [in expenses] would have to be advanced
and litigation prior to appeal would extend over 5 years.
Id. at 20.38
Appellees’ counsel requested a contingency multiplier39 of 3.7, or
370% of their fees and expenses, for a total of $45,600,000, or
approximately 31% of the value of the total monetary recovery. Id. at 21.
The court summarily held:
Their request for total fee [of] $45.6 million in fees is
reasonable taking into serious consideration all appropriate
factors, including those specifically detailed in [Pa.R.C.P.]
This award is reasonable.
The fees awarded herein
represent 31% of the total value of recovery exclusive of
fees. The contingency multiplier requested is appropriate
because of the exceptionally high degree of difficulty in the
case and the remarkable success achieved.
Id. at 21. The trial court did not discuss any other factors, including those
set forth by Pa.R.C.P. 1716.
On appeal, Wal-Mart argues that the court erred in approving a
contingency multiplier when the contingency risk was already factored into
the hourly rate. Wal-Mart thus contends that the trial court contravened the
We observe the trial court cited no authorities for these propositions. We
acknowledge one treatise’s observation that in so-called “mega-fund” cases, fee
recovery can range from 1.73% to 28% of the total recovery. 4 Alba Conte &
Herbert Newberg, Newberg on Class Actions, § 14:6 (4th ed. 2002) (“Newberg”).
“The multiplier is a device that attempts to account for the contingent nature or
risk involved in a particular case and the quality of the attorneys’ work.” In re AT
& T Corp., 455 F.3d 160, 164 n.4 (3d Cir. 2006) (citation omitted).
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holding of Birth Ctr. v. St. Paul Cos., 727 A.2d 1144 (Pa. Super. 1999).
Wal-Mart alleges that no Pennsylvania court ever approved a 3.7 multiplier,
particularly considering the prediction by the United States Court of Appeals
for the Third Circuit that the Pennsylvania Supreme Court would accept a 1.5
multiplier as the outer limit.
Wal-Mart’s Brief at 61 (citing Polselli v.
Nationwide Mut. Fire Ins. Co., 126 F.3d 524, 536 (3d Cir. 1997)). WalMart asserts that where damages exceed $100 million, using a multiplier
that results in counsels’ recovering 33% of that figure in fees contradicts the
maxim that “percentage awards generally decrease as the amount of the
recovery increases” because “in many instances the increase in recovery is
merely a factor of the size of the class and has no direct relationship to the
efforts of counsel.” Wal-Mart’s Brief at 61 (quoting Krell v. Prudential Ins.
Co. of Am., 148 F.3d 283, 339 (3d Cir. 1998)).
For these reasons, Wal-
Mart suggests the trial court abused its discretion.
Appellees counter that Wal-Mart waived the issue for three reasons.
First, Wal-Mart conceded that Appellees’ counsels’ hourly rates were
Second, Wal-Mart’s experts did not opine that those hourly
rates accounted for the contingency risk. Third, the multiplier ensures that
litigants with small claims have access to class action counsel.
merits, Appellees insist that this Court cannot make a factual determination
as to the reasonableness of counsels’ fees.
Further, because the federal
courts have found no difference between non-contingent and contingent
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hourly rates, Wal-Mart has no basis to assert that Appellees’ counsels’ hourly
rate mitigated the contingency risk. Appellees suggest Pennsylvania’s public
policy justifies the 3.7 multiplier.40 Wal-Mart is entitled to limited relief, at
“[A]ppellate review of an order of a tribunal awarding counsel fees to a
litigant is limited solely to determining whether the tribunal palpably abused
its discretion in making the fee award.” Lucchino v. Commonwealth, 570
Pa. 277, 284, 809 A.2d 264, 268–69 (2002) (citation omitted); First Pa.
Bank, N.A. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 580 A.2d
799, 803 (Pa. Super. 1990). “An abuse of discretion is not simply an error
of judgment. It requires much more. If in reaching a conclusion the law is
unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown
by the evidence or the record, discretion is abused.”
We acknowledge the parties’ citations of common-fund cases. See, e.g.,
Appellees’ Brief at 69 n.37. Appellees opted for a lodestar. Pls.’ Pet. for Award of
Att’ys’ Fees and Reimbursement of Expenses, at ¶ 45; R.R. at 2238a; see
generally 4 Newberg at §§ 14:5-14:6 (“The lodestar method better accounts for
the amount of work done, while the percentage of the fund method more accurately
reflects the results achieved. For these reasons, it is necessary that district courts
be permitted to select the more appropriate method for calculating attorney’s fees
in light of the unique characteristics of class actions in general, and of the unique
circumstances of the actual cases before them.” (citation omitted)). “Although it is
sensible for a court to use a second method of fee approval to cross check its
conclusion under the first method, we believe that each method has distinct
advantages for certain kinds of actions, which will make one of the methods more
appropriate as a primary basis for determining the fee.” In re Gen. Motors Corp.
Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 820 (3d Cir. 1995)
(“In re GM Truck”).
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Mgmt. Corp. v. State Harness Racing Comm’n, 592 Pa. 475, 487, 926
A.2d 908, 916 (2007) (quotation marks, alterations, and citations omitted).
In Pennsylvania v. Del. Valley Citizens’ Council for Clean Air,
483 U.S. 711, 107 S. Ct. 3078, 97 L. Ed. 2d 585 (1987) (plurality), the
dissent set forth the background of contingency fees:
In the private market, lawyers charge a premium when
their entire fee is contingent on winning. . . .
The premium added for contingency compensates for the
risk of nonpayment if the suit does not succeed and for the
delay in payment until the end of the litigation-factors not
faced by a lawyer paid promptly as litigation progresses.
In the private market, the premium for contingency
usually is recouped by basing the fee on a percentage of
the damages recovered.
The premium also could be
computed as part of an hourly rate that the lawyer bills
after the litigation succeeds. Under either approach,
the market-based fee or hourly rate that is
contingent on success is necessarily higher than the
hourly rate charged when payment is current and
certain. This fee enhancement ensures that accepting
cases on a contingent basis remains an economically
attractive and feasible enterprise for lawyers.
Id. at 735-37, 107 S. Ct. at 3092-93, 97 L. Ed. 2d at 604-05 (Blackmun, J.,
dissenting) (citations omitted and emphasis added).
A “lodestar” is “the product of reasonable hours times a reasonable
rate.” City of Burlington v. Dague, 505 U.S. 557, 559, 112 S. Ct. 2638,
2640, 120 L. Ed. 2d 449, 454-55 (1992) (citation omitted);41 Krebs v.
In Blum v. Stenson, 465 U.S. 886, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984),
the high Court opined that a reasonable rate is the fee charged to a client who pays
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United Ref. Co. of Pa., 893 A.2d 776, 790 (Pa. Super. 2006). The court
must consider the factors set forth in Pa.R.C.P. 1716 in calculating the
lodestar. Birth Ctr., 727 A.2d at 1160. The lodestar “should be reduced in
proportion to time spent on distinct claims which do not produce finding of
liability.” Logan v. Marks, 704 A.2d 671, 674 (Pa. Super. 1997); accord
Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S. Ct. 1933, 1943, 76 L. Ed.
2d 40, 55 (1984). After finalizing the lodestar, the court may then apply a
multiplier, i.e., enhancement. Logan, 704 A.2d at 674.42
The Dague Court examined whether a court “may enhance the fee
award above the ‘lodestar’ amount in order to reflect the fact that the
party’s attorneys were retained on a contingent-fee basis and thus assumed
the risk of receiving no payment at all for their services.” Dague, 505 U.S.
regardless of winning or losing. Id. at 895 n.11, 104 S. Ct. at 1547 n.11, 79 L. Ed.
2d at 905 n.11 (stating calculation of reasonable fee based on prevailing market
rate that client pays “whether he wins or loses”); accord Perdue v. Kenny A. ex
rel. Winn, ___ U.S. ___, ___, 130 S. Ct. 1662, 1672, 176 L. Ed. 2d 494, 505
(2010) (stating, “[T]he lodestar method produces an award that roughly
approximates the fee that the prevailing attorney would have received if he or she
had been representing a paying client who was billed by the hour in a comparable
case”); see also Report of Third Circuit Task Force on Court Awarded
Attorney Fees, 108 F.R.D. 237, 243 (3d Cir. 1986) (noting lodestar “could be
increased or decreased based upon the contingent nature or risk in the particular
A contingent enhancement is “entirely unrelated to the ‘contingent fee’
arrangements that are typical in plaintiffs’ tort representation.” Copeland v.
Marshall, 641 F.2d 880, 893 (D.C. Cir. 1980) (en banc); accord Blum, 465 U.S.
at 903 n.*, 104 S. Ct. at 1551 n.*, 79 L. Ed. 2d at 905 n.* (Brennan, J.,
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at 559, 112 S. Ct. at 2639, 120 L. Ed. 2d at 454.
In reversing a 1.25
multiplier of the lodestar, the high Court noted:
The “lodestar” figure has, as its name suggests, become
the guiding light of our fee-shifting jurisprudence. We
have established a strong presumption that the lodestar
represents the “reasonable” fee, and have placed upon the
fee applicant who seeks more than that the burden of
showing that such an adjustment is necessary to the
determination of a reasonable fee. The Court of Appeals
held, and [the respondent] argues here, that a
“reasonable” fee for attorneys who have been retained on
a contingency-fee basis must go beyond the lodestar, to
compensate for risk of loss and of consequent
nonpayment. Fee-shifting statutes should be construed,
he contends, to replicate the economic incentives that
operate in the private legal market, where attorneys
working on a contingency-fee basis can be expected
to charge some premium over their ordinary hourly
Petitioner . . . argues, by contrast, that the
lodestar fee may not be enhanced for contingency.
We note at the outset that an enhancement for
contingency would likely duplicate in substantial part
factors already subsumed in the lodestar. The risk of loss
in a particular case (and, therefore, the attorney’s
contingent risk) is the product of two factors: (1) the legal
and factual merits of the claim, and (2) the difficulty of
establishing those merits. The second factor, however, is
ordinarily reflected in the lodestar—either in the higher
number of hours expended to overcome the difficulty, or in
the higher hourly rate of the attorney skilled and
experienced enough to do so. Taking account of it
again through lodestar enhancement amounts to
Id. at 562-63, 112 S. Ct. at 2641, 120 L. Ed. 2d at 456-57 (citations and
quotation marks omitted; second and third emphases added);43 accord
The Dague Court also observed:
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Perdue, ___ U.S. at ___, 130 S. Ct. at 1673, 176 L. Ed. 2d at 505
(reiterating holding “that an enhancement may not be awarded based on a
factor that is subsumed in the lodestar calculation”).
[W]e see a number of reasons for concluding that no
contingency enhancement whatever is compatible with the feeshifting statutes at issue. First, just as the statutory language
limiting fees to prevailing (or substantially prevailing) parties
bars a prevailing plaintiff from recovering fees relating to claims
on which he lost, so should it bar a prevailing plaintiff from
recovering for the risk of loss. An attorney operating on a
contingency-fee basis pools the risks presented by his various
cases: cases that turn out to be successful pay for the time he
gambled on those that did not.
To award a contingency
enhancement under a fee-shifting statute would in effect pay for
the attorney’s time (or anticipated time) in cases where his
client does not prevail.
Second, . . . we have generally turned away from the
contingent-fee model-which would make the fee award a
percentage of the value of the relief awarded in the primary
action-to the lodestar model. We have done so, it must be
noted, even though the lodestar model often (perhaps,
generally) results in a larger fee award than the contingent-fee
See, e.g., Report of the Federal Courts Study
Committee 104 (Apr. 2, 1990) (lodestar method may “give
lawyers incentives to run up hours unnecessarily, which can lead
to overcompensation”). . . . Contingency enhancement is a
feature inherent in the contingent-fee model (since attorneys
factor in the particular risks of a case in negotiating their fee
and in deciding whether to accept the case). To engraft this
feature onto the lodestar model would be to concoct a hybrid
scheme that resorts to the contingent-fee model to increase a
fee award but not to reduce it. Contingency enhancement is
therefore not consistent with our general rejection of the
contingent-fee model for fee awards, nor is it necessary to the
determination of a reasonable fee.
Id. at 565, 122 S. Ct. at 2643, 120 L. Ed. 2d at 458 (quotation marks and some
citations omitted). This Commonwealth, however, has not adopted the high Court’s
rejection of a contingency enhancement.
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In Polselli v. Nationwide Mut. Fire Ins. Co., 126 F.3d 524 (3d Cir.
1997), the United States Court of Appeals for the Third Circuit addressed
whether this Commonwealth would permit courts to evaluate contingent risk
in awarding attorneys’ fees.
Initially, the district court addressed whether
counsel was entitled to a contingency enhancement for a contract and a
bad-faith claim. With respect to the contract claim, the district court “first
calculated the lodestar amount based on the stipulated hourly rate for
[counsel’s] work in non-contingency matters and stipulated number of
hours allocated to the contract claim.” Id. at 533 (emphasis added). The
district court rejected any enhancement for the contract claim, concluding
“the contract claim was not unique or complex, and that it did not entail a
substantial risk of failure.”
The Polselli Court agreed, finding the
district court did not abuse its discretion. Id.
With respect to the bad-faith claim, the district court enhanced the
lodestar by 60%, a 1.6 multiplier, but then eliminated the enhancement,
finding that the law barred any such award.
Id. at 533-34.
Circuit thus had to “predict whether the Pennsylvania Supreme Court would
permit consideration of the contingent risk of a particular case in calculating
a reasonable fee for that case.” Id. at 535. In concluding the Pennsylvania
Supreme Court would permit consideration of contingent risk in calculating
attorneys’ fees, the Polselli Court reasoned:
The federal fee-shifting statutes considered in Dague did
not provide for consideration of contingent risk. . . . The
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Dague majority found no justification for recognizing a
common law enhancement for contingent risk; a statutory
provision requiring consideration of enhancement would
have been quite another matter.
Unlike courts assessing fees under the federal fee-shifting
statutes like those considered in Dague, courts assessing
fees under section 8371 are guided by Pennsylvania Rule
of Civil Procedure 1716. . . .
Thus, even if the
Pennsylvania Supreme Court was persuaded by Dague, it
would be bound by Rule 1716.
[W]e predict that the Pennsylvania Supreme Court would
permit courts to consider a case’s contingent risk when
calculating a reasonable fee [and] also predict that the
court would conclude that a contingency enhancement
would not apply in every case. As the Supreme Court
reasoned in Dague, a contingency enhancement often will
duplicate factors already subsumed in the lodestar
amount. For example, a difficult case may require a high
number of hours dedicated to research or discovery. Or, it
might require the skills of someone who ordinarily bills at a
high hourly rate. Both of these factors are considered in
calculating the lodestar amount, and they should not be
reconsidered in enhancing the lodestar.
We predict that the Pennsylvania Supreme Court would
permit a trial court to enhance the lodestar amount to
account for a particular case’s contingent risk only to the
extent that those factors creating the risk are not already
taken into account when calculating the lodestar amount.
Thus, when a trial court is faced with a request to enhance
a fee based on contingent risk arising from the magnitude,
complexity and uniqueness of the litigation, the court
should exercise caution so as not to skew the calculation
of a reasonable rate by double counting. For example, if
the complexity of a case is reflected in the high number of
hours researching the complex issues or in the relatively
high regular hourly rate of the attorney, complexity does
not justify a contingency enhancement.
The court should also consider whether the attorney was
able to mitigate the risk of nonpayment. For example, an
attorney who has entered into a contingency-fee contract
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in a suit seeking substantial damages has significantly
mitigated the contingent risk; in exchange for accepting
the risk of nonpayment, the attorney obtains the prospect
of compensation under the agreement substantially in
excess of the lodestar amount. Likewise, “attorneys who
are paid a portion of their reasonable hourly fee
irrespective of result have partially mitigated the risk of
nonpayment.” Rendine v. Pantzer, 141 N.J. 292, 661
A.2d 1202, 1229 (1995).
We emphasize that the determination of a reasonable fee
is an inherently case-specific endeavor. Just as every case
is unique, so too are the particularized risks faced by
attorneys accepting contingency-fee cases.
therefore reluctant to provide courts with a specific list of
factors to consider in determining whether and to what
extent a contingency enhancement is appropriate in any
When applying Rule 1716, courts must
consider whether the receipt of a fee was contingent on
success. Courts must not, however, deviate from their
ultimate responsibility--the calculation of a “reasonable”
fee. To the extent that the factors creating a contingent
risk in a particular case are mitigated or are already taken
into account when calculating the lodestar amount, a
contingency enhancement is not “reasonable” and should
not be applied.
In Rendine, the New Jersey Supreme Court departed from
Dague and established a rule favoring the award of
contingency enhancements to prevailing parties under the
New Jersey Law Against Discrimination. The court held
that “a counsel fee awarded under a fee-shifting statute
cannot be ‘reasonable’ unless the lodestar, calculated as if
the attorney’s compensation were guaranteed irrespective
of result, is adjusted to reflect the actual risk that the
attorney will not receive payment if the suit does not
succeed.” Rendine, 661 A.2d at 1228. The court focused
on risk of attorney non-payment, and it recognized that
such risk will vary with the circumstances of each unique
enhancements in fee-shifting cases ordinarily should range
between five and fifty-percent of the lodestar fee, with the
enhancement in typical contingency cases ranging between
twenty and thirty-five percent of the lodestar.” Id. 661
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A.2d at 1231.
We believe that our prediction of
Pennsylvania law is not significantly different from the
statement of New Jersey law in Rendine. See, e.g., id.
661 A.2d at 1228 (acknowledging concern about
overpayment and double counting).
Id. at 535-36 (emphases added).
As both parties acknowledge, Birth Ctr.44 is one of the seminal
Pennsylvania cases addressing a contingency enhancement. In Birth Ctr.,
the Court remanded the issue of attorneys’ fees to the trial court.
1160. Because the applicable statute did not identify the factors the court
should consider in awarding attorneys’ fees, the Birth Ctr. Court instructed
the court to consider the factors in Pa.R.C.P. 1716.
Polselli, 126 F.3d at 532-39).
Id. at 1160 (citing
The Birth Ctr. Court embraced the
reasoning of the Polselli Court and reinforced:
The court may also consider the discretionary application
of a fee enhancement to reflect the contingent risk of the
particular . . . claim at issue.
A contingent risk
enhancement, however, shall be inappropriate where
the factors creating the risk have been mitigated12 or
already taken into account in the calculation of number of
hours times fee per hour [i.e., the lodestar]. Additionally,
fee recovery may include the reasonable fees incurred in
the preparation and litigation of the fee petition if the
client retains a material interest13 in the fee litigation.
See Polselli, supra at 535 (suggesting that the
existence of a fee contract or an agreement for payment of
In Mishoe v. Erie Ins. Co., 573 Pa. 267, 824 A.2d 1153 (2003), the
Pennsylvania Supreme Court disapproved of Birth Ctr. to the extent that case
stood for the proposition that 42 Pa.C.S. § 8371 permitted a jury trial. Id. at 274
n.3, 824 A.2d at 1157 n.3. That proposition is not at issue in this case.
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a portion of the reasonable hourly rate regardless of result
may significantly mitigate contingent risk).
Whether a client maintains a “material interest” means
whether a client has anything to lose if the counsel fees
are denied. If counsel must prevail on the fee petition to
get paid at all, then the client has nothing to lose if counsel
fees are denied because the client is not liable for the fees.
Under this scenario, the client does not maintain a material
interest in the fee petition and attorneys’ fees associated
with the petition itself would be inappropriate.
Id. at 1161 (emphasis added).
In considering whether to apply an enhancement to the lodestar, the
court shall evaluate the degree of success, the deterrent effect of the verdict
or decision, the potential public benefit, and the potential inadequacy of a
private fee agreement. Logan, 704 A.2d at 674; accord Krebs, 893 A.2d
at 790. “[T]he degree of success is the critical consideration . . . .” Logan,
704 A.2d at 674. The court shall consider “whether an award of fees and
costs would promote the purposes of the” statute(s) in question.
893 A.2d at 789-90; Logan, 704 A.2d at 674. “The court may consider the
relationship between the damages sought and those recovered.”
704 A.2d at 674; accord Krebs, 893 A.2d at 789.
If a contingency-fee
determining the enhanced amount, but the agreement cannot create an
“artificial ceiling based on the percentage agreed upon between attorney and
client.” Krebs, 893 A.2d at 791. The court, however, “may not lower the
fee to achieve proportionality with the size of the verdict.” Logan, 704 A.2d
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at 674; accord Krebs, 893 A.2d at 789. If an enhancement is applied, then
the resulting sum should be “sufficient to attract competent counsel who
might otherwise” refuse to represent the class.
Logan, 704 A.2d at 674;
accord Krebs, 893 A.2d at 790. The court should refrain from enhancing
the lodestar based on factors incorporated into the reasonable fee.
Birth Ctr., 727 A.2d at 1161; see, e.g., Pennsylvania v. Delaware
Valley Citizens’ Council for Clean Air Act, 478 U.S. 546, 566, 106 S. Ct.
3088, 3099, 92 L. Ed. 2d 439, 457 (1986) (“Delaware Valley”) (stating,
“Because considerations concerning the quality of a prevailing party’s
counsel’s representation normally are reflected in the reasonable hourly rate,
the overall quality of performance ordinarily should not be used to adjust the
lodestar, thus removing any danger of ‘double counting’”).45
court is not limited to discussing only these factors in determining whether
to apply an enhancement. Krebs, 893 A.2d at 791; see Polselli, 126 F.3d
at 536 (noting, “We are therefore reluctant to provide courts with a specific
list of factors to consider in determining whether and to what extent a
contingency enhancement is appropriate in any given case”).
In sum, courts are permitted to award a reasonable fee pursuant to a
lodestar, a percentage of the common fund, or, if necessary, a hybrid
The Delaware Valley Court agreed with this Commonwealth’s argument that the
lower court erred by increasing the fee amount to account for counsel’s superior
performance. Delaware Valley, 478 U.S. at 566, 106 S. Ct. at 3099, 92 L. Ed. 2d.
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approach. With respect to a lodestar, the court analyzes multiple factors in
considering whether to apply a contingency enhancement, i.e., multiplier.
See, e.g., Krebs, 893 A.2d at 790-91; Birth Ctr., 727 A.2d at 1161;
Logan, 704 A.2d at 674. A contingency enhancement on top of the lodestar
is appropriate only if the lodestar does not reflect counsel’s contingent risk.
See Birth Ctr., 727 A.2d at 1161; see also Perdue, ___ U.S. at ___, 130
S. Ct. at 1673, 176 L. Ed. 2d at 505; Dague, 505 U.S. at 562-63, 122 S. Ct.
at 2641, 120 L. Ed. 2d at 456-57; Polselli, 126 F.3d at 536.
As a prefatory matter, we address Appellees’ claim that Wal-Mart
waived its argument.
The record reflects that Wal-Mart challenged the
imposition of a contingency multiplier when Appellees’ counsel’s hourly rates
incorporated a contingency risk factor.
Wal-Mart’s Supplemental Mem. of
Law in Opp’n to Pls.’ Pet. for Award of Att’ys’ Fees and Expenses, at 14; R.R.
at 2651a (citing ¶ 4 of Aff. of Michael D. Donovan in Supp. of Pls.’ Pet. for
Att’ys’ Fees and Reimbursement of Costs; R.R. at 2271a; and ¶ 4 of Aff. of
Judith L. Spanier in Supp. of Pls.’ Pet. for Award of Att’ys’ Fees and
Reimbursement of Expenses; R.R. at 2287a). Wal-Mart’s concession to the
appropriateness of counsel’s hourly rates is not equivalent to waiving its
Further, Appellees refer us to no caselaw
suggesting Wal-Mart’s experts had to opine on Appellees’ counsel’s hourly
Regardless, Appellees submitted sworn declarations identifying the
hourly rates for contingent matters. See ¶ 4 of Aff. of Michael D. Donovan
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in Supp. of Pls.’ Pet. for Att’ys’ Fees and Reimbursement of Costs; R.R. at
2271a; ¶ 4 of Aff. of Judith L. Spanier in Supp. of Pls.’ Pet. for Award of
Att’ys’ Fees and Reimbursement of Expenses; R.R. at 2287a. To the extent
Appellees contend that the multiplier ensures access to class action counsel,
that contention has no bearing on whether Wal-Mart waived the argument
With respect to the merits, in applying an enhancement, the court
inadvertently double-counted contingency factors incorporated into the
counsel fees for the firms of Donovan Searles, LLC, and Abbey, Spanier,
Rodd, Abrams & Paradis, LLP.
The affidavits for those firms state, “The
hourly rates for the attorneys in my firm included in Exhibit A are the same
as the regular current rates charged for their services in other contingent
matters in class action litigation.”
¶ 4 of Aff. of Michael D. Donovan in
Supp. of Pls.’ Pet. for Att’ys’ Fees and Reimbursement of Costs; R.R. at
2271a (emphases added); ¶ 4 of Aff. of Judith L. Spanier in Supp. of Pls.’
Pet. for an Award of Att’ys’ Fees and Reimbursement of Expenses; R.R. at
2287a (emphases added). In contrast, the affidavits for the other firms aver
they used their firms’ “complex litigation hourly rates” to calculate their
lodestars. ¶ 9 of Aff. of Franklin D. Azar in Supp. of Pls.’ Pet. for Award of
Att’ys’ Fees and Reimbursement of Expenses; R.R. at 2306a; ¶ 24 of Aff. of
Gerald L. Bader, Jr. in Supp. of Pls.’ Pet. for Award of Att’ys’ Fees and
Reimbursement of Expenses; R.R. at 2331a; ¶ 18 of Aff. of John A. Smalley
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in Supp. of Pls.’ Pet. for an Award of Att’ys’ Fees and Reimbursement of
Expenses; R.R. at 2343a. Because the instant lodestar was based in part on
contingency rates, and not the rates paid by a client regardless of winning or
losing, the court should not have enhanced the lodestar to the extent the
enhancement double-counted counsel’s contingent risk. See Birth Ctr., 727
A.2d at 1161; see also Perdue, ___ U.S. at ___, 130 S. Ct. at 1672, 176 L.
Ed. 2d at 505; Dague, 505 U.S. at 559, 112 S. Ct. at 2640, 120 L. Ed. 2d at
454-55; Blum, 465 U.S. at 895 n.11, 104 S. Ct. at 1547 n.11, 79 L. Ed. 2d
at 905 n.11. Indeed, in Polselli, the United States Court of Appeals for the
Third Circuit accepted without question the calculation of a lodestar based on
counsel’s hourly rate in “non-contingency matters”.
Polselli, 126 F.3d at
The instant trial court erred in applying an enhancement which
partially double counts because, according to the affidavits, Donovan
Searles, LLC, and Abbey, Spanier, Rodd, Abrams & Paradis, LLP, charged a
“premium over their hourly rates” to reflect their contingent risk. See Birth
Ctr., 727 A.2d at 1161 (instructing that a fee enhancement, or multiplier,
“shall be inappropriate where the factors creating the risk have been . . .
already taken into account in the calculation” of the lodestar); see also
Dague, 505 U.S. at 562-63, 112 S. Ct. at 2641, 120 L. Ed. 2d at 456-57;
Polselli, 126 F.3d at 535-36.
Accordingly, because the trial court
misapplied the law, we reverse the fee award and remand for proceedings in
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accordance with this decision. See Bedford Downs Mgmt. Corp., 592 Pa.
at 487, 926 A.2d at 916; Lucchino, 570 Pa. at 284, 809 A.2d at 268-69.46
Upon remand, the court should explain thoroughly its rationale in
approving the lodestar, including the factors set forth by Pa.R.C.P. 1716 and
the Logan Court. See Pa.R.C.P. 1716; Logan, 704 A.2d at 674. We note,
however, that in reviewing the court’s opinion, we also find its justifications
for applying a multiplier insufficient, particularly in light of its application of a
3.7 multiplier, compared to the Third Circuit’s prediction that 1.5 would be
the outer limit of acceptable multipliers in this Commonwealth.
Polselli, 126 F.3d at 536.
Accordingly, if the court concludes an
enhancement is warranted, then the court shall discuss comprehensively the
factors it finds would justify an enhancement. See, e.g., Krebs, 893 A.2d
at 790; Birth Ctr., 727 A.2d at 1161; Logan, 704 A.2d at 674; see also
Delaware Valley, 478 U.S. at 568, 106 S. Ct. at 3099, 92 L. Ed. 2d at 458
(noting, inter alia, that “absence of detailed findings” warranted reversal of
fee enhancement for superior performance).47
In considering whether to
Although we do not believe another hearing is required, we defer to the trial
court. We agree wholeheartedly with the Polselli Court’s admonishment that
litigation over attorneys’ fees should not result in a second major round of
litigation. We trust the parties will “resolve amicably the amount of [the] fee.”
Polselli, 126 F.3d at 539 (citation omitted).
Should the court, on remand, again justify an enhancement, the court has the
option of using a different enhancement for each counsel to avoid double-counting
any contingent risk. As noted supra, in approving the lodestar and 3.7 multiplier,
the trial court failed to discuss comprehensively the factors set forth above,
including those in Pa.R.C.P. 1716. Should the court, upon remand, impose a
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apply an enhancement, the court should not reconsider factors “subsumed in
the lodestar amount[, e.g.,]” “a difficult case [requiring] a high number of
hours dedicated to research or discovery [or] the skills of someone who
ordinarily bills at a high hourly rate.” Polselli, 126 F.3d at 535; Birth Ctr.,
727 A.2d at 1161.
The court may wish to apply a second method of
calculation as a cross-check.
See In re GM Truck, 55 F.3d at 820.48
Because the trial court made a patent mathematical error while calculating
damages, we also modify the judgment to reflect a WPCL verdict for
$49,289,541, instead of $49,568,541. In re Paxson Trust I, 893 A.2d 99,
mathematical error); see supra n.11.
Accordingly, the judgment is
affirmed in part as modified, reversed in part, and remanded for further
proceedings in accordance with this decision.
multiplier exceeding the outer limits of what it believes this Commonwealth would
accept—which the Third Circuit predicted would be 1.5, although we decline to
make any affirmative holding as to the outer limits at this time—then the court shall
thoroughly explain its reasoning, including a discussion of all pertinent factors. See
Polselli, 126 F.3d at 536.
Because the trial court inadvertently double-counted factors in granting an
enhancement, the court, on remand, may not necessarily impose the same 3.7
multiplier. It is well-settled that Pennsylvania “courts should not give answers to
academic questions or render advisory opinions or make decisions based on
assertions as to hypothetical events that might occur in the future.” Phila. Entm’t
& Dev. Partners, L.P. v. City of Phila., 594 Pa. 468, 480, 937 A.2d 385, 392
(2007). Accordingly, we decline to render an advisory decision on the merits of a
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Wal-Mart’s application to strike Appellees’ August 13, 2009 letter brief
Judgment affirmed in part as modified, and reversed in part.
Case remanded for further proceedings. Jurisdiction relinquished.
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