E.D. Pa. Notes Intra-Circuit Split Concerning Correct Standard to Apply When Determining if Class Members are Similarly Situated

Per Duffy v. Sodexho, Inc., 2006 WL 3025958 (E.D. Pa. Oct. 20, 2006):

In considering whether potential class members are "similarly situated," the district courts within the Third Circuit are divided as to the appropriate standard to be applied. [FN5] Some courts require merely allegations of class-based discrimination, while others require a basic factual showing of similarly situated class members. This Court feels it most appropriate to adhere to the latter, requiring plaintiffs to make a basic factual showing that they are similarly situated to the proposed class before granting certification. While this standard necessitates only modest evidence to support Plaintiffs' claim of a broad discriminatory policy on the part of the Defendant, it nonetheless allows the court to manage the potential for abuse often inherent to class action suits. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (U.S.N.J.1989). The Court believes this approach "provides a more efficient and effective means of managing FLSA litigation and comports with the Supreme Court's case-management recommendation and the Congressional intent behind FLSA." See Smith v. Sovereign Bancorp, Inc., No. Civ.A. 03-2420, 2003 WL 22701017, *3 (E.D.Pa. Nov. 12, 2003). Recognizing that there has already been discovery to determine the scope of the class in this case, the need for requiring some basic factual support is further justified.

FN5. See Smith v. Sovereign Bancorp, Inc., No. Civ. A. 03-2420, 2003 WL 22701017, *2 (E.D.Pa. Nov. 12, 2003), where the Court discussed the varying standards applied in other districts and circuits. Some courts have granted motions for preliminary certification and notice based solely on plaintiff's allegations of class-based discrimination, while other courts "apply a more stringent-although nonetheless lenient-test that requires the plaintiff to make a 'modest factual showing' that the similarly situated requirement is satisfied." Id.