IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EDGAR MITCHELL, et al. : CIVIL ACTION

: 

v. : 

:

MG INDUSTRIES, INC., et al. : NO. 05-4073

MEMORANDUM

Fullam, Sr. J. June 9, 2009

The plaintiffs in this age discrimination case seek to

have the action certified as a class action. In an earlier

order, I tentatively concluded that the action was appropriate

for class certification and requested that counsel attempt to

agree upon a proposed form of notice. No final decision was

reached at that time. Now, after protracted consideration of the

plaintiffs’ renewed motion for class certification and the

defendants’ motion for decertification, and the additional

information provided by the parties, I have determined that the

action cannot proceed as a class action.

In actions brought under the Age Discrimination in

Employment Act (“ADEA”), class actions are authorized by 29

U.S.C. § 626(b), which provides for a class action where

complaining employees are “similarly situated.” Under the ADEA,

class members must “opt in” to the class by giving consent in

writing, which must be filed in the court. Approval of an ADEA

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class action is often completed in two steps: first, the court

makes an initial “notice stage” determination, and then, at the

conclusion of discovery, a determination that incorporates the

elements of Federal Rule of Civil Procedure 23. To certify a

class, the plaintiffs must meet the numerosity, commonality,

typicality, and adequacy of representation requirements of Rule

23(a), and also demonstrate, under Rule 23(b), that the class

action is a superior method of fairly and efficiently

adjudicating the controversy. 

The plaintiffs have alleged that, in 2001, the

defendants instituted a one-time employee incentive program

known as the “Management Investment Program” (“MIP”). Those

employees invited to participate in the MIP were required to make

a minimum cash investment equal to at least one-third of their

annual salary. For their investment, the employees became

direct shareholders in the company. If financial goals were

reached, the employees could then sell their shares at a time

when market conditions were favorable. The plaintiffs allege that

within two years the participants realized approximately seven

times the value of their initial investment.

According to the plaintiffs, the MIP was offered to

“key employees” but the company excluded those who were perceived

to be within five years of retirement or perceived to be

interested in retirement. As those so perceived were over the

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age of 50, the program discriminated on the basis of age,

according to the plaintiffs. The named plaintiffs also assert

individual claims for retaliation and discrimination. 

After several modifications, the proposed class that

the plaintiffs seek to represent comprises managerial employees

over the age of 50 who earned more than $ 60,000 per year and

were not offered the opportunity to participate in the MIP. I

have determined that the Plaintiffs cannot meet their burden of

establishing either commonality or typicality under Federal Rule

of Civil Procedure 23(a). The question of why employees were or

were not selected for inclusion in the MIP is too individualized

to lend itself to class-action resolution. The proposed class

cuts across many different departments and positions. For

example, Mr. Mitchell, who is in sales, alleges that the sales

employees who were selected had inferior sales and performance

records to his and were less experienced. The fact finder will

have to determine the specific reason that any individual was not

selected to participate in the MIP in order to establish

liability; establishing damages would require a separate

determination of whether the individual, if selected, would have

participated and what the financial ramifications would have

been. “Resolution of the merits of the claims would degenerate

into an unmanageable plethora of multiple individual

determinations for each individual proposed class member.” Webb

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v. Merck & Co., Inc., 206 F.R.D. 399, 406 (E.D. Pa. 2002)

(Weiner, J.).

I am unconvinced that the named plaintiffs, who assert

claims of retaliation and discrimination, are adequate

representatives of a class; in addition, there is a serious

question as to whether the statute of limitations would bar the

claims of some or all plaintiffs; this is not an issue

appropriate for class resolution. Upon consideration of all the

required factors, I cannot find that a class action is a superior

method of adjudicating this case. 

An order follows. 

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