ORDER GRANTING MOTION FOR CLASS CERTIFICATION (Re: Docket No. 143)
PAUL S. GREWAL, Magistrate Judge.
Each weekday, 139,582 people ride the Santa Clara Valley Transportation Authority's bus and light rail train system.1 Richard Rosa and Walter Silveira are system operators who allege that from August 17, 2009 onward VTA subjected them to a common and unlawful compensation scheme.2 Plaintiffs say that VTA required them to "work off-the-clock without compensation" because VTA did not compensate them for "all hours worked" performing compensable work activities such as traveling to their routes and meeting with their supervisors.3 Plaintiffs move for certification of a class of operators under-compensated during the relevant time period.4
Whatever their ultimate success on the merits, the substantial record compiled by the parties shows that Plaintiffs meet the requirements for class certification.5 The court GRANTS Plaintiffs' motion.
"The class action is `an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.'"6 To satisfy class certification requirements, class members' claims must be capable of satisfaction in "one stroke."7 To satisfy the four threshold requirements of Fed. R. Civ. P. 23(a), (1) the class must be "so numerous that joinder of all members is impracticable" (numerosity); (2) there must be "questions of law or fact common to the class" (commonality); (3) "the claims or defenses of the representative parties" must be "typical of the claims or defenses of the class" (typicality); and (4) the named plaintiffs must "fairly and adequately protect the interests of the class" (adequacy).8 Plaintiffs seeking class certification must also satisfy the requirements of Rule 23(b), subdivisions 1, 2 or 3, which define three different types of classes.9
Here, Plaintiffs seek certification pursuant to Rule 23(b)(3), the predominance standard.10 To certify a class under Rule 23(b)(3), the party seeking class certification must establish that both that (1) "questions of law or fact common to class members predominate over any questions affecting only individual members" and that (2) a class action would be "superior to other available methods for fairly and efficiently adjudicating the controversy."11 "The shared legal or factual issues must be of sufficient importance to the case that the Court is convinced that the most efficient, fair, and sensible method of adjudication is through a class action."12 As a result, the predominance inquiry examines "whether proposed classes are sufficiently cohesive to warrant adjudication by representation."13
In evaluating whether a party has met the requirements of Rule 23, "Rule 23 does not set forth a mere pleading standard."14 "A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc."15 This is a "rigorous analysis"16 that must "`entail some overlap with the merits of the plaintiff's underlying claim.'"17
Over three hundred and eighty bus and train operators perform public transit services for VTA each day.18 Each of these operators is assigned to one of four divisions.19 VTA oversees and operates all divisions.20 Since 2008, VTA and Amalgamated Transit Union, Local 265, which represents all bus and train operators at VTA, have been parties to collective bargaining agreements that set forth operators' wages, hours of work and working conditions.21
Throughout the proposed class period, VTA has used Trapeze, a computer software suite, to design schedules for its bus and light rail operators.22 VTA uses Trapeze to create a "Synopsis of Runs" that identifies each operator's daily assignment.23 The Synopsis of Runs enables VTA to calculate a predetermined daily pay amount for each operator. To determine this amount, VTA calculates the operator's total "straight time," which is a predetermined amount of compensable time for various categories of time associated with the operator's run.24 In some situations, straight time includes additional time that operators are paid in order to meet full time operators' guarantee of eight hours of daily pay and "elapsed time," which is a premium for work time that exceeds ten hours and thirty minutes.25 VTA adds straight time hours to overtime hours and then multiplies this figure by the applicable hourly rates to calculate the operator's total daily pay.26
Plaintiffs allege that VTA's compensation system does not pay operators for "all (1) split-shift travel time, (2) turn-in time, (3) bulletin time, (4) meeting time, (5) pre-departure time and (6) all time actually spent driving."27 In the Second and Third Causes of their Fourth Amended Complaint, Plaintiffs allege that by not "compensat[ing] operators for all hours worked," VTA has violated California Industrial Wage Order No. 9, California Labor Code § 1194 and San Jose Municipal Code Chapter 4.100.28
Plaintiffs now request that the court certify a class with request to these causes of action of "[a]ll individuals who are currently employed, or formerly have been employed, by the Santa Clara Valley Transportation Authority as a bus or train operator at any time on or after August 17, 2009."29 Plaintiffs also seek authorization to send to all class members the class notice attached to the Declaration of Steven G. Tidrick, appointment of Plaintiffs Richard Rosa and Walter Silveira as representatives of the class and appointment of the Tidrick Law Firm as class counsel.30
This court has jurisdiction under 28 U.S.C. §§ 1331 and 1338. The parties further consented to the jurisdiction of the undersigned magistrate judge under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 72(a).
At issue is whether Plaintiffs' proposed class should be certified. Because Plaintiffs have met the requirements of both Rule 23(a) and Rule 23(b)(3), the court certifies the proposed class.
First, Plaintiffs have standing to pursue their claims. "[I]f none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class."31 Put another way, if "the individual plaintiff lacks standing, the court need never reach the class action issue."32
VTA suggests that Plaintiffs lack standing to seek compensation for time allegedly worked in excess of eight hours because they are guaranteed eight hours per day under their collective bargaining agreements.33 While Section 510 of the California Labor Code and Wage Order No. 9 provide that employers must pay overtime to employees who work in excess of certain time periods,34 neither Section 510 nor Wage Order No. 9 applies to employees like Plaintiffs covered by a "valid collective bargaining agreement" that expressly provides for "premium wage rates for all overtime hours worked" and a "regular hourly rate of pay ... of not less than 30 percent more than the state minimum wage."35 But, as Plaintiffs point out, no state court has ruled that the time the operators receive under a guarantee of eight hours of paid work per shift may "offset any time spent performing tasks that are not built into the schedules."36
VTA's assertion that Plaintiffs' failure to use the procedures provided in the CBAs to grieve their claims is "a jurisdictional bar to pursuing those claims" in this court similarly lacks merit.37 As with VTA's claim that Plaintiffs' overtime claims are barred, no court has ruled that a lack of exhaustion bars Plaintiffs' claims, especially where, as here, Plaintiffs assert that they "can prove that their claims are not subject to mandatory arbitration."38 VTA's challenges to Plaintiffs' claims thus do not rise to the level necessary to "establish" that Plaintiffs have no viable claims.39
Second, Plaintiffs meet the numerosity requirement. Rule 23(a)(1) requires that a class be "so numerous that joinder of all members is impracticable." The Rule creates greater access to judicial relief, particularly for those persons with claims that would be "uneconomical to litigate individually."40 A class of forty or more members "raises a presumption of impracticability of joinder based on numbers alone."41
Plaintiffs have shown, and VTA concedes, that Plaintiffs meet the numerosity requirement.42 Plaintiffs have presented evidence that VTA employed at least 1,083 people as operators during the proposed class period.43 Given the number of class members, joinder would be impracticable.44
Third, Plaintiffs have met the commonality requirement. Commonality is met when there are "questions of law or fact common to the class."45 "Commonality requires the plaintiff to demonstrate that the class members "have suffered the same injury," and not merely violations of "the same provision of law."46 The class members' claims must "depend upon a common contention" such "that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke."47 "Put another way, the key inquiry is not whether the plaintiffs have raised common questions, `even in droves,' but rather, whether class treatment will `generate common answers apt to drive the resolution of the litigation.'"48
Dissimilarities between class members must be considered in determining whether a common question will generate a common answer because dissimilarities within the proposed class can "impede the generation of common answers."49 Thus, commonality must be determined based on an understanding of the nature and merit of the underlying claims to the extent such analysis is "relevant to determining whether the Rule 23 prerequisites for class certification are satisfied."50 Plaintiffs need not show, however, that "every question in the case, or even a preponderance of questions, is capable of class-wide resolution. So long as there is `even a single common question,' a would-be class can satisfy the commonality requirement of Rule 23(a)(2)."51 Thus, "[w]here the circumstances of each particular class member vary but retain a common core of factual or legal issues with the rest of the class, commonality exists."52
In Wal-Mart, the Supreme Court held the plaintiffs had not established commonality when plaintiffs had not alleged an "express corporate policy" of discrimination and the challenged employment decisions were "generally committed to local managers' broad discretion."53 The Supreme Court noted that there is a "conceptual gap" between an individual's claim of injury and "the existence of a class of persons who have suffered the same injury."54 The plaintiffs could have bridged this gap by offering "significant proof that [their] employer operated under a general policy of discrimination."55 However, because the plaintiffs provided "no convincing proof of a companywide" policy of discrimination, the Supreme Court concluded that they had "not established the existence of any common question."56
Plaintiffs allege that VTA maintains common policies, procedures and practices relating to the compensation of all operators with respect to each of the six categories of time for which they seek compensation. The court considers each in turn.
To begin, Plaintiffs have presented substantial evidence that VTA maintains a policy not to pay operators for "split-shift travel time."57 VTA requires operators to sometimes work "split runs" which consist of two parts which are separated by some amount of time.58 The first part of these "split runs" ends at a location that is geographically distant from the beginning of the other part of the split run.59 As a result, an operator incurs split-shift travel time when he or she travels from the end of the first part of the split run to the beginning of the second split run.60 Even though VTA's route and scheduling decisions cause operators to engage in this travel,61 VTA pays operators for the travel time based on "scheduled running time of the service available at that time of day," a computation that, except for light rail operators, as a "general rule" does not include "time for waiting or walking."62
Plaintiffs also have presented substantial evidence that VTA has policies not to compensate operators for "pre-departure time" and "turn-in time."63 Operators incur pre-departure time because VTA has developed policies that result in operators sometimes arriving early to locations at which they relieve other operators from their routes.64 Operators incur turn-in time because VTA requires operators to incur turn-in time performing various tasks after they pull into the divisions at which some shifts end.65
VTA employee Eric Rosenberg asserts that turn-in time is "obsolete" and that the time that operators spend pulling into the division, parking the buses and walking into the division to turn in their pouches is "built into the run pay" and was "measured at each Division."66 However, Plaintiffs have presented evidence that VTA does not include both pre-departure time and turn-in time in its "Synopsis of Runs" which it uses to calculate its predetermined payment amounts for operators.67 Multiple operators also state that VTA has not paid them for all turn-in time.68 Accordingly, while the evidence Rosenberg presents suggests that operators sometimes are paid for turn-in time, it is not sufficient to rebut Plaintiffs' substantial evidence that VTA has policies and practices that result in operators not being compensated for all pre-departure and turn-in time.
Similarly, Plaintiffs have presented substantial evidence that VTA has common policies and practices not to compensate operators for bulletin time and meeting time. VTA requires operators to spend "bulletin time" checking bulletin boards at their divisions for bulletins and notifications, reviewing any items posted and meeting with superiors if the operator needs clarification or instructions regarding the posted materials.69 VTA also requires operators to spend "meeting time" with their supervisors to talk about "items related to [operators'] job duties and other business" of VTA.70 Despite these requirements, Plaintiffs have presented evidence that VTA does not pay operators for all time spent on bulletin time and all time spent in meetings regarding payroll correction forms.71
With respect to Plaintiffs' claims for additional driving time, Plaintiffs also have provided substantial evidence showing that VTA has a common policy of compensating operators for driving time based on a predetermined schedule rather than the actual time the operators spend driving.72 Operators incur "routinely late time" not included in this schedule because they arrive at the end points of their runs after the scheduled arrival times.73
VTA broadly asserts that "[t]he alleged common policies on which Plaintiffs rely do not actually exist."74 However, given the substantial evidence Plaintiffs have presented, VTA's attempt to negate the existence of these policies is unpersuasive. Accordingly, Plaintiffs have presented "significant proof" that VTA has established and maintained "uniform policies and practices relating to compensation of class members that admitted of no appreciable discretion and that allegedly resulted in systematic, illegal under-compensation."75 With respect to these policies and practices, Plaintiffs have raised the common questions of whether the categories of time for which Plaintiffs seek payment are compensable work time and whether VTA's compensation scheme violates the SJMWO, Wage Order No. 9 or California Labor Code § 1194 by failing to separately allocate pay for time spent on various non-driving work tasks.76 With respect to routinely late time, Plaintiffs also present the common question of whether VTA has "actual and constructive knowledge of the regularity and extent of [uncompensated work time] such that its failure to compensate [o]perators for such time is knowing and willful."77 Resolution of these questions will resolve "in one stroke" whether the class members have a legal right to be compensated for these categories of time.78 Plaintiffs thus present common questions that "will connect" the compensation scheme to "their claim for class relief."79
VTA cites to its purported policy "to pay for all work performed" to support its contention that commonality is not established because Plaintiffs have not shown that common policies or practices will drive resolution of the lawsuit.80 In particular, VTA points to its procedure by which employees can submit extra time reports when they work longer than the hours that are usually allocated to their shifts.81 The regular submission of these records and routine payment for the additional time claimed, VTA contends, shows VTA is not aware that operators work additional time without submitting extra time records.82 VTA also asserts that its receipt of less than one extra pay request per operator per week shows that there is "no evidence" that unpaid routinely late time occurs regularly.83 Further, VTA claims that operators have not been undercompensated because VTA pays all operators for at least eight hours of work on all shifts regardless of the actual length of the shift.84
The court finds these claims unavailing. Nothing about the policies VTA identifies negate the classwide nature of the questions of whether the categories of time Plaintiffs identify are compensable work time and whether the failure of VTA's compensation scheme to separately allocate pay for these categories of time is improper. To the contrary, as Plaintiffs note, VTA's assertions regarding these policies actually raise additional common questions. For instance, Plaintiffs contend that VTA has constructive and actual knowledge that routinely late time occurs for which operators do not submit extra time requests.85 Plaintiffs further assert even though VTA is unaware that this under-compensation occurs, VTA adheres to burdensome policies regarding the extra pay request process which systematically result in operators not submitting such requests.86 These practices, Plaintiffs assert, constitute a "policy-to-violate-the-policy" against VTA's stated prohibition against off-the-clock work.87 As stated above, Plaintiffs also contend that VTA's policy of a guarantee of eight paid hours per shift should not "offset any time" operators spend performing tasks that are not included in their schedules.88 Because the disputed policies apply to all class members, Plaintiffs' allegations about these polices raise the common questions of whether VTA's extra time report practices and guarantee of eight hours per shift actually prevent off-the-clock work.
VTA may ultimately be able to show that Plaintiffs' positions lack merit and that its policies properly compensate the class members. But the court "is required to examine the merits of the underlying claim in this context, only inasmuch as it must determine whether common questions exist" and must not "turn class certification into a mini-trial" by "determin[ing] whether class members could actually prevail on the merits of their claims."89 Rather, the court's conclusion that resolution of the questions Plaintiffs raise will "generate common answers apt to drive the resolution of the litigation" is sufficient to meet the commonality requirement.90
Plaintiffs have shown that VTA has uniform policies and procedures relating to compensation that "did not leave the relevant compensation decisions to the discretion of local supervisors."91 Given this uniformity, divergences in the behavior of individual operators or their responses to these policies not establish a lack of commonality. In particular, the ability of operators to decide not to submit extra time reports for individualized reasons or arrive at the end points of their runs late for reasons that are "unrelated to compensable work time" does not negate the "class-wide nature of the primary question" of whether VTA's policies systematically result in under-compensation.92 Likewise, VTA's defense that Plaintiffs engaged only in de minimis activities for which they are not entitled to compensation does not preclude class treatment because analysis of this defense requires resolution of a "common issue of law," not an "individualized inquiry" into each operator's activities.93 As a result, Plaintiffs have met the commonality requirement with respect to all categories of compensable time at issue.
Fourth, Plaintiffs have met the typicality requirement. Typicality94 "refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought."95 While typicality and commonality occasionally merge, typicality derives its independent legal significance from its ability to "screen out class actions in which the legal or factual position of the representatives is markedly different from that of other members of the class even though common issues of law or fact are present."96 The test of typicality is "whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs and whether other class members have been injured by the same course of conduct."97 However, "[u]nder the rule's permissive standards, representative claims are `typical' if they are reasonably co-extensive with those of absent class members; they need not be substantially identical."98
The named plaintiffs and all members of the proposed class are similar because they all are or were employed as bus or train operators during the proposed class period.99 VTA asserts that the typicality requirement is not met in part because the named plaintiffs' claims are so individualized that they even diverge from each other with respect to the categories of time for which they seek compensation.100 The court agrees with VTA the named plaintiffs' claims are not "substantially identical" to the other class members' claims.101 But these differences do not negate the fact that all proposed class members' claims are grounded on the same VTA policies, practices and procedures.102 Further, VTA's contention that it can assert "unique" de minimis defenses against some of the representative's claims is unpersuasive because as previously noted, the de minimis defense can be resolved on a class-wide basis even if the amounts of time for which each representatives and class member seek compensation differ.103 Accordingly, the named plaintiffs meet the typicality requirement because their claims are "reasonably coextensive" with the claims of the other class members.104
Fifth, Plaintiffs have met the adequacy requirement. "To satisfy constitutional due process concerns, absent class members must be afforded adequate representation before entry of a judgment which binds them."105 Class representatives and counsel are adequate if they do not have "any conflicts of interest with other class members" and if they will "prosecute the action vigorously on behalf of the class."106 The adequacy of class counsel concerns whether proposed counsel is (1) "qualified, experienced and generally able to conduct the litigation" and (2) will "vigorously prosecute the interests of the class."107 "These standards are generally met with members of the bar in good standing typically deemed qualified and competent to represent a class absent evidence to the contrary."108
VTA contends that the Plaintiffs have not zealously pursued the class members' interests because they choose to seek unpaid straight time and minimum wage claims when they could have sought claims for unpaid overtime.109 VTA claims that this decision is contrary to the class members' best interest because the Fair Labor Standards Act does not provide compensation for hours worked beyond eight hours in a day and because class members will lose their rights to seek overtime compensation for claims that are adjudicated in this action.110 However, the existence of alternative strategies does not show that the strategy Plaintiffs selected is inadequate. Plaintiffs contend they have made "reasonable decisions to pursue statutory minimum wage claims under Wage Order No. 9 ... and to pursue overtime claims under the FLSA."111 Although Plaintiffs may not ultimately prevail on these claims, they have presented sufficient justification for their chosen strategy to establish that it is a method by which they can "prosecute the action vigorously on behalf of the class."112 Further, given proposed class counsel's extensive experience with class action litigation and wage and hour actions,113 VTA's suggestion that its status as "such a small law firm" would prevent it from being able to adequately represent the class lacks merit.114
Likewise, proposed class counsel's engagement in alleged misconduct in relation to the Alameda-Contra Costa Transit District in another lawsuit, while more disconcerting than proposed class counsel's size, also does not establish that proposed class counsel is inadequate. AC Transit concluded that one attorney for proposed class counsel used his position as a board member at AC Transit to gain access to privileged and confidential information regarding FLSA litigation against AC Transit in order to advance litigation against VTA and Tri-County Metropolitan Transportation District of Oregon.115 AC Transit also concluded that this attorney took part in confidential legal briefings about the FLSA litigation against AC Transit without informing its board that he was involved in similar cases against VTA and Tri-Met.116 Complaints were made to the state bars of California and Oregon and the AC Transit Board of directors "publicly censured" this attorney.117
Ultimately, the State Bar of California determined that the allegations of misconduct did not "warrant further action" and the Oregon State Bar concluded that there was not probable cause of an ethics violation.118 The court does not condone "reward[ing]" misconduct with an appointment as class counsel.119 But given the dismissal of both of these actions and proposed class counsels' status as "members of the bar in good standing," the court does not find that this attorney's actions rise to the level sufficient to establish that proposed class counsel are not "qualified and competent to represent a class."120
Sixth, Plaintiffs have shown that common questions of law and fact predominate. Under Rule 23(b)(3), Plaintiffs must establish that "questions of law or fact common to class members predominate over any questions affecting only individual members." Rule 23(b)(3)'s predominance requirement "tests whether the proposed classes are sufficiently cohesive to warrant adjudication by representation."121 "Where common questions present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication, there is clear justification for handling the dispute on a representative rather than on an individual basis."122
With respect to Plaintiffs' claims for unpaid wages for time spent on non-driving activities, common questions predominate. Because Plaintiffs have presented substantial evidence that VTA has common policies not to separately allocate pay for these time spent on these activities, Plaintiffs' claims for these categories of time raise questions regarding "the legality of [VTA's] payment practices [which] apply to all [o]perators."123 Accordingly, although the extent to which these policies affect each operator differs, for all Plaintiffs' claims for the time spent on these activities, "the predominant question is whether [VTA's] policies and practices not to compensate [the class members] for such time" is illegal.124
Likewise, although each operator's behavior varies, the class is "sufficiently cohesive to warrant adjudication by representation" with respect to Plaintiffs' claims for routinely late time.125 VTA contends its policies against off-the-clock work insure that unpaid time occurs only as a result of individual operators' decisions not to submit extra time reports and other "individualized factors."126 However, as stated above, the policies VTA identifies create common questions regarding the degree to which these policies actually prevent off-the-clock work. These issues, in addition to questions regarding whether VTA has knowledge that operators work routinely late time without compensation and whether its scheduling policy systematically requires operators to incur routinely late time, are central to the determination of whether the class members are entitled to compensation for routinely late time.127 It is true that individual operators may decide not to submit extra time reports for unique reasons. However, in light of the prevailing nature of the common questions identified above, VTA's assertion that "individual issues essential to liability" predominate is unpersuasive.128
Likewise, VTA's claim that, like in cases in which courts "repeatedly" held that "off-the-clock claims for unpaid wages present individualized issues that preclude certifications as a class," VTA's "policy pays for overtime work and requires that such work be reported" is misguided.129 The cases to which VTA cites establish the principle that when "the evidence establishes a formal policy prohibiting off-the-clock work, plaintiffs must present substantial evidence of a systematic company policy to pressure or require employees to work off the clock."130 But even if the court found that VTA's extra pay report procedure was sufficient to establish a "formal policy" against off-the-clock work, this would not show that individual questions predominate because, as stated above, Plaintiffs have presented "substantial evidence" that VTA follows a "policy-to-violate-the-policy" against off-the-clock work.131
Plaintiffs have also sufficiently explained how they intend to prove damages for their unpaid wage claims on a class-wide basis. In Behrend, the Supreme Court held that in order to satisfy the predominance inquiry, a plaintiff must present a damage model that (1) identifies damages that stem from the defendant's alleged wrongdoing and (2) establishes that "damages are susceptible of measurement across the entire class."132 Damage calculations at the class certification stage are not required to be "exact," but the court's analysis of the proposed damage calculation model must be "rigorous."133 However, the Ninth Circuit recognizes "the presence of individualized damages cannot, by itself, defeat class certification" and holds that Behrend requires plaintiffs "to show that their damages stemmed from the defendant's actions that created the legal liability."134
To prove that damages could be calculated on a class-wide basis, Plaintiffs offered the opinion of Richard Drogin, who asserted he could determine damages amounts for the unpaid wages that the class members are allegedly owed based on the data Plaintiffs provided to him.135 Drogin states that to calculate damages for unpaid time (1) "[a]n exact calculation for everyone in the class can be made based on available data" or (2) "a random sample can be drawn, and damages calculations for the sample can be projected to the class as whole, using appropriate statistical formulas."136
VTA claims that Plaintiff cannot meet the predominance requirement because Plaintiffs have not shown that "damages are capable of measurement on a classwide basis."137 In particular, VTA asserts that Drogin's first proposed method does not show damages are susceptible to common proof because he identifies sources of data without showing how he proposes to use those sources to perform an "exact calculation."138 But while Drogin could have provided more insight into his proposed application of his first method to the available data, this lack of detail does not show that Plaintiffs have fallen short of Behrend because at this stage of the litigation damage calculations need not be "exact."139
Likewise, VTA's allegation that Drogin's first method does not "measure up to the Daubert standard of reliability" is unavailing.140 In Wal-Mart, the Supreme Court stated that it "doubt[ed]" the "proposition that Daubert simply did not apply" at the class certification stage but did not provide guidance about the "extent and rigor of the appropriate Daubert analysis."141 However, when considering expert testimony in relation to the predominance requirement, the central question is whether Plaintiffs have met their burden to show that damages can be calculated on a classwide basis. Accordingly, the relevant inquiry is a "tailored Daubert analysis which `scrutinize[s] the reliability of the expert testimony in light of the criteria for class certification and the current state of the evidence.'"142
Here, Drogin proposes to calculate damages using standard methodology premised on data common to all class members.143 Further, given that the data Drogin proposes to use is from VTA's own records,144 VTA's assertion that Drogin's opinion falls short of Daubert because "there is no evidence" that data upon which the calculation would rely "is itself reliable" lacks merit.145 As a result, Plaintiffs have met their burden under Behrend because Drogin's proposed method is sufficiently reliable to establish that damages are "susceptible of measurement across the entire class."146
VTA's attempt to invalidate Drogin's second proposed method of using random sampling to extrapolate damages is also unavailing. VTA complains that Drogin's opinion does not apply the facts of the case to the "theoretical possibility" of extrapolating damages based on sampling.147 However, Drogin, while not providing exacting detail, shows that he could calculate class-wide damages by creating a "random sample of class members" and requiring people in the sample to be deposed or questioned at trial so that that trier of fact could make "findings that would be the `data' used by the statistician to calculate unpaid time."148 In a similar vein, VTA complains that Drogin does not explain how sampling will take the variations in individual operators' claims into account.149 However, the existence of such variations is not a sufficient reason to defeat class certification analysis when "damages will be calculated," as Drogin proposes to do here, "based on the wages each employee lost due to [the VTA's allegedly] unlawful practices."150
Seventh, a class action is superior to other methods for adjudication. When seeking to certify a class under Rule 23(b)(3), plaintiffs must show that a class action is "superior to other available methods for fairly and efficiently adjudicating the controversy." To determine if a class action is superior, courts consider the following non-exhaustive factors: (1) "class members' interest in individually controlling the prosecution or defense of separate actions"; (2) the extent and nature of any litigation concerning the controversy already begun by or against the class members"; (3) "the desirability or undesirability of concentrating the litigation of the claims in the particular forum"; and (4) "the likely difficulties likely in managing a class action."151
The first factor weighs in favor of certification. A class action is a superior method of adjudication when few class members would have "any meaningful redress against [the defendant]" because "few potential class members could afford to undertake individual litigation against [VTA] to recover the relatively modest damages at issue."152 The damages at issue here are too modest for individual lawsuits to be practical because each operator would recover a small amount of money and pursuit of the individual operators' claims would require extensive examination of VTA's policies, practices and procedures.
The second factor also weighs in favor of certification. Plaintiffs' counsel asserts that it is unaware of any individually filed actions alleging the same claims that Plaintiffs assert here, and VTA makes no representation that such actions exist.153 The absence of such individual suits is another indication that "each class member's potential damages recovery does not `provide the incentive for any individual to bring a solo action prosecuting his or her rights.'"154
As to the third factor, the court finds that concentration the litigation in this court is desirable. The class members' claims all stem from VTA's allegedly improper policies, practices, and procedures. It would be both "redundant" and a "wildly inefficient use of limited judicial resources" for each operator to file an individual lawsuit alleging claims for their unpaid wages.155 As Plaintiffs note, such individual lawsuits would result in "several hundred trials re-litigating ... the same legal questions" about VTA's conduct.156 Further, the modest amounts at stake in each of these lawsuits makes it unlikely that the individual operators could afford to pursue their claims. And even if such individual lawsuits were economically feasible, the chance these individual suits would convince VTA to reform its conduct is "infinitesimal."157 Accordingly, the third factor weighs in favor of certification.
The fourth factor weighs in favor of certification because adjudication of this case as a class action will not present unmanageable difficulties. VTA's contention that class treatment of Plaintiffs' claims is "impossible" because "separate and controlling inquiries" regarding each operator's claims predominate fails.158 In support of this claim, VTA essentially repeats its prior assertion that the common questions of law and fact do not predominate because "there is no employer wide policy covering the purported claims" and each operators' claim for "each day must be individually tested for factual support and legal significance."159 The court has already concluded that individualized inquiries about each operator's conduct do not predominate over common questions. Given that common questions predominate and the class is easily ascertainable, "certification will not generate any complexities from a case management perspective."160 Because all the factors weigh in favor of certification, a class action is superior to other methods for adjudicating this lawsuit.
The court GRANTS Plaintiffs' motion for class certification under Rule 23(b)(3) and appoints names Plaintiffs as class representatives. The court also designates as class counsel under Rule 23(g) The Tidrick Law Firm and grants class counsel authorization to send to all calss members the notice attached to the Declaration of Steven G. Tidrick.161 The class is defined as follows: "All individuals who are currently employed, or formerly have been employed, by the Santa Clara Valley Transportation Authority as a bus or train operator at any time on or after August 17, 2009, excluding anyone employed by counsel for Plaintiffs in this action, and any judge to whom this action is assigned and his or her immediate family members."