Whether a class of employees can satisfy Rule 23(a)(2)'s commonality requirement by alleging violations of the same wage-and-hour laws against a contractor that does not directly employ them and does not establish uniform employment terms, absent evidence of a common policy or practice affecting all class members

No question identified. : 2. MTM contracts directly with the District of Columbia to provide nonemergency transportation services to individuals receiving Medicaid in need of transportation to medical appointments. Ex. 1 at 5. MTM is prohibited from providing transportation services itself, and instead engages approximately eighty subcontractors, or “transportation service providers,” to provide these services. Each of the individual transportation service providers, and not MTM, establishes the substantive terms of each driver’s employment, including rate of pay, method of payment, amount of payment, and workday structure. 3. Respondents are drivers employed by the various transportation service providers, and they filed suit against MTM, rather than their employers, for violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and District of Columbia wage-and-hour laws. Respondents allege in particular that they were paid in violation of federal and District wage-and-hour laws, and that MTM is liable for damages as either a joint employer or a general contractor. Ex. 1 at 5-6. The district court certified an issue class under Rule 23(c)(4), encompassing the questions whether MTM (1) is a joint employer with, and/or (2) is a general contractor to the various transportation service providers under D.C. law. Id. at 7. 4. MTM appealed. After confirming that interlocutory review of the class certification decision was appropriate, id. at 9-12, the D.C. Circuit found that the proposed class meets Rule 23(a)(2)’s commonality requirement on the same “common questions” that the district court had certified under Subsection (c)(4)—whether MTM is a joint employer and/or a general contractor.! Id. at 16-17. 5. The D.C. Circuit applied an approach to commonality that is directly contrary to this Court’s precedent. Rule 23(a) provides four prerequisites that all proposed class actions must meet to obtain certification: (1) numerosity, (2) commonality, (8) typicality, and (4) adequate representation. Commonality requires that “the plaintiff [] demonstrate that the class members ‘have suffered the same injury,” Wal-Mart Stores, Inc., v. Dukes, 564 U.S. 338, 349-50 (2011) (quoting Gen. Telephone Co. of the Sw. v. Falcon, 457 U.S. 147, 157 (1982)), and it is not enough that the class members “all suffered a violation of the same provision of law,” id. at 350. 6. Respondents here allege that they suffered violations of wage-and-hour laws and had the same employer, which Dukes makes clear is insufficient to establish commonality. Again, each transportation service provider establishes the substantive terms of each driver’s employment, including rate of pay, method of payment, amount of payment, and workday structure. Cf. Dukes, 564 U.S. at 350 (“Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once.”). 1 The D.C. Circuit ultimately remanded because it concluded that the district court misapplied Subsection (c)(4) in certifying an “issue class,” even if these questions did meet Subsection (a)(2)’s “commonality” requirement. 3 7. The various transportation service providers employing Respondents are thus akin to the various managers of Walmart in Dukes, each independently of both each other and of MTM. Cf. Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 652 (9th Cir. 2010) (en banc) (Kozinski, J., dissenting) (“[T]he half-million members of the majority's approved class held a multitude of jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed depending on each class member’s job, location and period of employment. Some thrived while others did poorly. They have little i