PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 18-3143

_____________

DANIEL FERRERAS; EDWIN GONZALEZ; DOUG 

BILLITZ; RUEBEN RAMIREZ; RAMON COCA; 

CHRISTOPHER FAUST; MASOUD ZABIHIALAM; 

SCOTT ELLENTUCK; DENIS LIPPENS, On Behalf of 

themselves and all others similarly situated

v.

AMERICAN AIRLINES, INC.,

 Appellant 

_______________ 

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-16-cv-02427)

District Judge: Hon. Jose L. Linares 

_______________

Argued

October 15, 2019

Before: CHAGARES, JORDAN, and RESTREPO, Circuit 

Judges.
2

(Filed: December 24, 2019)

_______________

Jeffrey I. Kohn

Anton Metlitsky [ARGUED]

Mark W. Robertson

O’Melveny & Myers

7 Times Square

Time Square Tower, 33rd Floor

New York, NY 10036

Jason Zarrow

O’Melveny & Myers

1625 I Street, N.W.

Washington, DC 20006

Counsel for Appellant

Brett R. Gallaway

Steven J. Hyman

Lee S. Shalov [ARGUED]

Wade C. Wilkinson

McLaughlin & Stern

260 Madison Avenue

New York, NY 10016

Counsel for Appellees

Adam G. Unikowsky

Jenner & Block

1099 New York Avenue – Suite 900

Washington, DC 20001

 Counsel for Amicus Appellant

_______________
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OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

This case involves claims for overtime wages brought 

by employees of American Airlines, Inc. (“American”). The 

employees allege that American violated the New Jersey Wage 

and Hour Law (“NJWHL”) because the airline’s timekeeping 

system defaults to paying employees based on their work 

schedules, even if they work additional hours outside of their 

shifts and in excess of 40 hours per week. 

The employees brought their claims as a putative class

action and moved for class certification. The District Court 

decided that all of the requirements for class certification, as 

set forth in Federal Rule of Civil Procedure 23, were met, and 

it thus certified the class. American appeals that order, arguing 

that the District Court did not conduct a rigorous analysis and 

that several of the requirements of Rule 23, including 

commonality and predominance, were not met. American

argues that this case cannot proceed as a class action because 

determining when each employee was actually working will 

necessarily require individualized inquiries. We agree and will 

therefore reverse the order of the District Court.

I. BACKGROUND

American’s timekeeping system is programmed to 

calculate pay for employees only for the duration of their shifts, 

excluding an automatic deduction for a 30-minute meal break. 

If an employee clocks in before the employee’s shift begins or 

clocks out after the shift ends, the timekeeping system defaults 
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to assuming that the employee only worked during the shift, 

rather than working any extra time. American calls those preand post-shift clock-in time durations “grace periods.” The 

grace periods allow employees to avoid having to clock in 

exactly when their shift begins or clock out exactly when their 

shift ends. Similarly, the timekeeping system’s assumption 

that an employee takes a 30-minute meal break during a shift 

means that employees do not have to return to the time clock 

before and after each meal break. 

If employees actually do perform work during grace 

periods or meal breaks, American’s policy requires them to 

identify for a supervisor the time they worked outside of their 

shift and ask for approval of that time as an “exception” to their

ordinary work hours. Otherwise, they are not paid for the time 

worked outside of their shift. 

The class as certified includes all non-exempt, hourly 

employees at American’s Newark Liberty International 

Airport (“Newark airport”) station, who were employed at any 

time from April 29, 2014 through the present. The named 

plaintiffs are two fleet service employees and seven mechanics 

at that airport. Fleet service employees handle cargo, assist 

with lavatory services, and help maneuver aircrafts in and 

around hangars. Mechanics perform repairs and updates on 

airplanes. A third category of non-exempt hourly-paid 

employees included in the class is passenger service agents,

who check passengers in and manage boarding at the gates. 

None of the named plaintiffs are passenger service agents. 

The plaintiffs complain that, in violation of the 

NJWHL, American did not pay its employees for all time 

worked because its timekeeping system defaults to paying 
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employees based on their work schedules rather than on the 

time they actually spent working. The plaintiffs also allege 

that, although American purports to have procedures to 

compensate employees for unpaid time, management regularly 

refuses to pay employees for pre- and post-shift work and work 

done during meal breaks. The claims in the complaint focus 

on three periods of the workday: (1) while the plaintiffs were 

clocked in but before or after their scheduled shift time; (2) 

during their scheduled meal breaks; and (3) while off-theclock. 

In seeking class certification, the plaintiffs argued that, 

according to the record, once an American employee clocks in, 

the employee begins working until he or she clocks out, and

the “[e]mployees do not delay or engage in non-job-related 

personal activities while on the clock.” (D.I. 104-1 at 5.) 

American responded that class certification was inappropriate 

because the record evidence shows that employees arrived 

early and left late for a variety of reasons and engaged in 

personal activities before and after their shifts. For example, 

American cited one employee as saying that he sometimes 

watched TV before his shift, and another as saying he chatted

with other mechanics in the break room before his shift began. 

Thus, American argued, the District Court would have to 

engage in individualized inquiries to determine if and when 

there were occasions when a particular employee was not 

compensated for time periods during which he or she was

actually working while clocked in, and the Court would

likewise have to engage in individualized inquiries to 

determine when employees were actually working while off 

the clock.
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The District Court granted the plaintiffs’ motion for 

class certification and created three subclasses. The first 

subclass was defined as employees who “have been denied 

compensation for work performed before and after their shifts 

while on the clock” (the “Grace Period Subclass”). (App. at 

3.) The second subclass was defined as employees “who have 

been denied compensation for work performed during meal 

periods” (the “Meal Break Subclass”). (App. at 4.) The third 

subclass was defined as employees “who have been denied 

compensation for work performed before their shifts before 

clocking in, and for work performed after their shifts after 

clocking out” (the “Off-the-Clock Subclass”). (Id.)

In its order granting class certification, the District 

Court identified two questions it said are common to the class: 

first, whether “hourly-paid American employees at Newark 

Liberty International Airport are not being compensated for all 

hours worked due to the manner in which American operates 

its timekeeping system[,]” and second, “whether American is 

violating the NJWHL by imposing a schedule-based 

compensation system that in theory permits a supervisor to 

authorize compensation for work performed outside of a 

scheduled shift, but in practice discourages employees from 

seeking such authorization[.]” (App. at 13.) 

In determining that the commonality and predominance 

requirements had been met, the District Court cited favorably 

to caselaw regarding conditional certification under the Fair 

Labor Standards Act (“FLSA”) and said that plaintiffs had 

presented sufficient “allegations and initial evidence” to certify 

the subclasses “at this juncture.” (App. at 13, 14.) The Court 

also said American’s argument that whether the plaintiffs were 

actually working – rather than engaging in personal activities 
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– when clocked in pre- and post-shift was “to be addressed 

during discovery, and does not merit a denial of class 

certification at this juncture[.]” (App. at 15.) 

American petitioned us under Federal Rule of Civil 

Procedure 23(f) for review of the class certification decision, 

and we granted that petition. This appeal followed. 

II. DISCUSSION1

A party seeking class certification must satisfy the four 

requirements of Rule 23(a), as well as the requirements of 

either Rule 23(b)(1), (b)(2), or (b)(3). In re Hydrogen Peroxide 

Antitrust Litig., 552 F.3d 305, 309 n.6 (3d Cir. 2008). Under 

Rule 23(a),

 1 The District Court had jurisdiction under 28 U.S.C. 

§ 1332(d). Although we conclude that a class cannot be 

certified, that does not mean that the District Court lacked 

jurisdiction. See Coba v. Ford Motor Co., 932 F.3d 114, 118-

19 (3d Cir. 2019) (holding that a subsequent denial of class 

certification does not divest the district court of subject-matter 

jurisdiction when the court properly exercised jurisdiction 

pursuant to § 1332(d) at the time a claim was filed). We have 

jurisdiction under 28 U.S.C. § 1292(e). “We review a class 

certification order for abuse of discretion, which occurs if the 

district court’s decision rests upon a clearly erroneous finding 

of fact, an errant conclusion of law or an improper application 

of law to fact. [W]hether an incorrect legal standard has been 

used is an issue of law to be reviewed de novo.” In re 

Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 312 (3d Cir. 

2008) (alteration in original) (internal quotation marks and 

citation omitted).
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(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 of representation, or simply 

adequacy).

Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 590-91 (3d Cir. 

2012) (internal quotation marks omitted). Assuming a plaintiff 

can show that all of those conditions exist, the requirements of 

Rule 23(b) come into play. Here, the plaintiffs are proceeding 

under Rule 23(b)(3), which requires proving, first, that 

questions of law or fact common to class members 

predominate over individualized questions, which is 

commonly called the “predominance” requirement, and, 

second, that the class action device is superior to other methods 

for resolving the claims, which is often referred to as the 

“superiority” requirement. Fed. R. Civ. P. 23(b)(3). 

Class “certification is proper only if the trial court is 

satisfied, after a rigorous analysis” that all of the necessary

Rule 23 requirements have been fulfilled. Wal-Mart Stores, 

Inc. v. Dukes, 564 U.S. 338, 350-51 (2011). The Rule “does 

not set forth a mere pleading standard.” Id. at 350. As we 

explained in In re Hydrogen Peroxide, “the decision to certify 

a class calls for findings by the court, not merely a ‘threshold 

showing’ by a party, that each of the requirements of Rule 23 

is met.” In re Hydrogen Peroxide, 552 F.3d at 307. A rigorous 

analysis requires that factual determinations be made by a 
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preponderance of the evidence. Mielo v. Steak ‘n Shake 

Operations, Inc., 897 F.3d 467, 483-84 (3d Cir. 2018). Thus, 

although a trial court has “broad discretion to control 

proceedings and frame issues for consideration under Rule 

23[,]” “a class may not be certified without a finding that each 

Rule 23 requirement is met.” In re Hydrogen Peroxide, 552 

F.3d at 310. Prior to certifying a class, a district court must 

resolve every dispute that is relevant to class certification. Id.

at 320.

American argues that the District Court did not apply 

the proper class certification standard and that commonality, 

under Rule 23(a), and predominance, under Rule 23(b)(3),

were not met. We address those arguments in turn.2

A. The District Court Did Not Apply the Proper 

Standard for Class Certification.

The District Court’s analysis departed from the 

standards we have articulated for evaluating a motion for class 

 2 American also says that the District Court erred in 

finding that the superiority requirement was met and that the 

class was ascertainable, as required by our precedent. See 

Marcus, 687 F.3d at 592-93 (“[A]n essential prerequisite of a 

class action, at least with respect to actions under Rule 

23(b)(3), is that the class must be currently and readily 

ascertainable based on objective criteria.”). Because we find 

that commonality and predominance were not met and, in this 

case, cannot be met, we do not reach those arguments. Nor do 

we address the question of adequacy of representation raised 

by the absence of any named plaintiff from among the 

passenger service agents.
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certification. Specifically, there are three problems with the 

Court’s decision: first, it in effect certified the class 

conditionally; second, it applied a “pleading” and “initial 

evidence” standard; and third, it failed to resolve conflicts in 

the evidence.

The first problem may spring from confusion about 

class certification under Rule 23 and collective actions under 

the FLSA. Rule 23, unlike the FLSA, does not allow for 

conditional certification. See Genesis Healthcare Corp. v. 

Symczyk, 569 U.S. 66, 74 (2013) (“Rule 23 actions are 

fundamentally different from collective actions under the 

FLSA[.]”). As we have cautioned before, “[c]ertification may 

not be granted because the plaintiff promises the class will be 

able to fulfill Rule 23’s requirements, with the caveat that the 

class can always be decertified if it later proves wanting. To 

certify a class in this manner is effectively to certify the class 

conditionally, which Rule 23 does not permit.” Hayes v. WalMart Stores, Inc., 725 F.3d 349, 358 (3d Cir. 2013). Instead, 

class certification under Rule 23 requires a district court to be 

satisfied by a preponderance of the evidence that the plaintiff 

has proven each of the Rule’s requirements is met. See Fed. R. 

Civ. P. 23 advisory committee’s note to 2003 amendments (“A 

court that is not satisfied that the requirements of Rule 23 have 

been met should refuse certification until they have been 

met.”). The District Court here cited approvingly to a case 

dealing with conditional certifications under the FLSA, and 

twice explained that the plaintiffs had met their burden “at this 

juncture.” (App. at 14, 15 (emphasis added).) That reliance 

on, and application of, principles of conditional certification in 

the Rule 23 context cannot be permitted.
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Similarly, the Court deviated from our precedent by 

employing a pleading and initial evidence standard, rather than 

requiring proof by a preponderance of the evidence. The 

District Court referred to Rule 23(b)’s requirements as 

“pleading requirements” and said that the plaintiffs had met 

those requirements by setting forth “allegations and initial 

evidence.” (App. at 8, 12-13.) But Rule 23 does not set forth 

a mere pleading obligation. Wal-Mart, 564 U.S. at 350. The 

District Court’s acceptance of pleading and initial evidence as 

an acceptable standard is similar to the “threshold showing” 

standard we rejected in In re Hydrogen Peroxide, 552 F.3d at 

321. There we explained that “[a] ‘threshold showing’ could 

signify, incorrectly, that the burden on the party seeking 

certification is a lenient one (such as a prima face showing or 

a burden of production) or that the party seeking certification 

receives deference or a presumption in its favor.” Id. So too 

with a pleading or initial evidence standard. Rule 23 requires 

more than allegations, initial evidence, or a threshold showing. 

It requires a showing that each of the Rule 23 requirements has

been met by a preponderance of the evidence at the time of 

class certification. The District Court thus should not have

determined that the Rule 23 requirements had been met based 

on “allegations and initial evidence.”

Finally, it was error for the District Court to leave 

unresolved conflicts in the evidence before it. For example, 

the Court did not engage with American’s argument that 

predominance was not met because individualized proof would 

be required to prove that employees were actually working 

during the various time periods for which they claim they were 

not paid. Instead, the Court noted that the issue would be 

“addressed during discovery and that it does not merit a denial 

of class certification at this juncture[.]” (App. at 15.) The
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rigorous analysis demanded by Rule 23 requires a court to 

resolve such disputes relevant to class certification, before 

being satisfied that each of the Rule’s requirements has been 

met. Marcus, 687 F.3d at 591. 

Because the District Court did not engage in that type 

of analysis, we could vacate and remand for further application 

of the Rule 23 standards. But because discovery was 

essentially complete when the District Court ruled on the 

motion for class certification, and the plaintiffs have stated that 

no additional discovery is needed to decide the certification 

issue, we will reverse rather than remand, as, based on our 

review of the record, it is clear that commonality and 

predominance cannot be met.

B. Commonality and Predominance Cannot Be 

Met.

Rule 23 requires a showing that “there are questions of 

law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). 

“What matters to class certification ... is not the raising of 

common ‘questions’—even in droves—but rather, the capacity 

of a class-wide proceeding to generate common answers apt to 

drive the resolution of the litigation. Dissimilarities within the 

proposed class are what have the potential to impede the 

generation of common answers.” Wal-Mart, 564 U.S. at 350 

(emphasis in original). 

The predominance requirement “asks whether the 

common, aggregation-enabling, issues in the case are more 

prevalent or important than the non-common, aggregationdefeating, individual issues.” Tyson Foods, Inc. v. 

Bouaphakeo, 136 S. Ct. 1036, 1045 (2016). Courts must “give 
13

careful scrutiny to the relation between common and individual 

questions in a case. An individual question is one where 

members of a proposed class will need to present evidence that 

varies from member to member, while a common question is 

one where the same evidence will suffice for each member[.]” 

Id. (internal quotation marks omitted). 

The commonality and predominance requirements are 

closely linked. But the Rule 23(b)(3) predominance 

requirement is “far more demanding than the commonality 

requirement” found in Rule 23(a). In re Hydrogen Peroxide, 

552 F.3d at 311 (internal quotation marks omitted). In fact, 

“where an action is to proceed under Rule 23(b)(3), the 

commonality requirement is subsumed by the predominance 

requirement.” Danvers Motor Co., Inc. v. Ford Motor Co., 543 

F.3d 141, 148 (3d Cir. 2008) (internal quotation marks 

omitted). If the commonality requirement cannot be met, then

the more stringent predominance requirement obviously 

cannot be met either. Cf. Amchem Prods., Inc. v. Windsor, 521 

U.S. 591, 623-24 (1997) (“Even if Rule 23(a)’s commonality 

requirement may be satisfied ..., the predominance criterion is 

far more demanding.”).

The plaintiffs here cannot satisfy even the commonality 

standard. In its opinion, the District Court identified two 

common questions: first, whether hourly-paid American 

employees at Newark airport are not being compensated for all 

hours worked, and second, whether American has a policy that 

discourages employees from seeking exceptions for work done 

outside of their shifts. It is not clear, however, how those 

questions can “generate common answers apt to drive the 

resolution of the litigation.” Wal-Mart, 564 U.S. at 350

(emphasis in original). The first question cannot be answered 
14

by common evidence about the timekeeping system because a 

yes or no answer tells us nothing about actual common work 

habits, if there are any. The plaintiffs will still need to go 

through the process of proving that each individual employee 

worked overtime and is thus entitled to additional 

compensation, regardless of any common evidence about 

American’s timekeeping system. 

Similarly, the second question cannot drive resolution 

of the plaintiffs’ case because, again, their claims are, at 

bottom, that they were not paid overtime compensation for 

hours worked, not that American’s overarching policy

regarding exceptions has deprived anyone in particular of 

compensation to which he or she was entitled. Moreover, the 

record evidence only demonstrated that a policy of not paying 

employees who submitted requests for overtime may have 

existed for one group of employees – the mechanics. But the 

District Court certified subclasses consisting of all nonexempt, hourly employees at American’s Newark airport

station, not just mechanics. The passenger service agents and 

fleet service employees have different responsibilities and 

supervisors than the mechanics. Even if one of the groups was 

affected by such a policy, that would not drive the resolution 

of the litigation on a classwide basis, see Reinig v. RBS 

Citizens, N.A., 912 F.3d 115, 129 (3d Cir. 2018) (expressing 

doubt that the conflicting testimony about a company-wide 

policy from plaintiffs with different managers could establish 

commonality and predominance), and thus the second common 

question the District Court identified did not establish 

commonality. 

Having failed to show commonality, the plaintiffs 

necessarily failed too in their effort to show predominance, and 
15

it was error for the District Court to conclude otherwise. 

Plaintiffs will have to offer individualized proof to show that 

they were actually working during the various time periods at 

issue, the main point of dispute in this case. For the Grace 

Period Subclass, the employees cannot rely on the time clock 

to prove when they were actually working because there is 

conflicting evidence about whether they were working the 

entire time they were clocked in. For example, some 

employees testified that they began working immediately after 

clocking in. Others testified that they chatted with co-workers 

or watched TV after clocking in but before their shifts began.

Thus, whether they were actually working pre- and post-shift 

is an open and inherently individualized question.

The District Court also certified the Meal Break and 

Off-the-Clock Subclasses. The record shows, however, that 

employees were not all working during meal breaks. Any 

members of the Meal Break Subclass would have to offer 

individualized evidence regarding which meal breaks they 

spent working and for how long. And, of course, any claim 

that an employee was working off-the-clock would require an 

individualized inquiry as to when and to what extent that 

happened. There is no easy measure, like the time clock, to 

which the parties can turn to determine the amount of time an 

employee may have been working. Accordingly, plaintiffs 

would again need to provide particularized evidence to show 

when employees were working, so common issues do not 

predominate over individual ones. 

The District Court cited Tyson Foods, Inc. v. 

Bouaphakeo, 136 S. Ct. 1036 (2016), to support its conclusion 

that individualized variations should not defeat class 

certification. But that case is clearly distinguishable. In Tyson 
16

Foods, the class consisted of employees at a pork processing 

plant who were not compensated for the time spent donning 

and doffing the protective equipment they had to wear at work. 

136 S. Ct. at 1041-42. The issue before the Supreme Court was 

whether representative evidence could be used to prove the 

amount of time spent donning and doffing, even though 

individual employees took different amounts of time to 

perform those tasks. Id. at 1041. There was, however, no 

dispute about what the activity was that Tyson and the 

employees were arguing over. It was the same for everyone –

donning and doffing protective gear. The record evidence

here, on the other hand, demonstrates that employees were not 

always working while clocked in and there was substantial 

variability in what they were doing, even if some of it could be 

called work. Accordingly, this case is unlike Tysons Foods, 

and the employees would need individualized, not 

representative, evidence to prove their case. Thus, 

predominance cannot be established.

III. CONCLUSION

Because the District Court did not perform a rigorous 

analysis, and because commonality and predominance cannot 

be met under a rigorous analysis, we will reverse the class 

certification order.