Sam Hargrove v. Sleepys LLC

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________

No. 19-2809
________________

SAM HARGROVE; ANDRE HALL; MARCO EUSEBIO,
individually and on behalf of all others similarly situated,
Appellants

v.

SLEEPY'S LLC

v.

I STEALTH LLC; EUSEBIO'S TRUCKING CORP.;
CURVA TRUCKING LLC

________________

Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3-10-cv-01138)
District Judge: Honorable Peter G. Sheridan
________________

Argued May 27, 2020
 Before: AMBRO, HARDIMAN, and RESTREPO, Circuit
Judges

(Opinion filed September 9, 2020)

Harold L. Lichten (Argued)
Benjamin J. Weber
Lichten & Liss-Riordan
729 Boylston Street, Suite 2000
Boston, MA 02116

Anthony L. Marchetti, Jr.
317 Delsea Drive
Sewell, NJ 08080

Counsel for Appellants

Marc Esterow
Theo E.M. Gould
Matthew J. Hank (Argued)
Paul C. Lantis
Jonathan L. Shaw
Littler Mendelson
1601 Cherry Street
Three Parkway, Suite 1400
Philadelphia, PA 19102

Counsel for Appellee

Peter Winebrake
Winebrake & Santillo LLC
715 Twinning Road

2
Twinning Office Center, Suite 211
Dresher, PA 19025

Counsel for Amicus Appellants
The National Employment Law Project and
Towards Justice

Adam G. Unikowsky
Jenner & Block
1099 New York Avenue, N.W., Suite 900
Washington, DC 20001

Counsel for Amicus Appellees
Chamber of Commerce of the United States of
America and New Jersey Civil Justice Institute

________________

OPINION OF THE COURT
________________

AMBRO, Circuit Judge

We review the District Court’s denial of a renewed
motion for certification of a proposed class of drivers who
performed deliveries on a full-time basis using one truck for
mattress retailer Sleepy’s LLC. The Court held that the class
was not ascertainable. Hargrove v. Sleepy’s LLC, No. 10-cv-
01138, 2019 WL 8881823, at *5–7 (D.N.J. May 9, 2019)
(“Hargrove II”). In addition to all the other requirements for
class actions in Federal Rule of Civil Procedure 23, our Court

3
requires that a Rule 23(b)(3) class also be “currently and
readily ascertainable.” Marcus v. BMW of N. Am. LLC, 687
F.3d 583, 593 (3d Cir. 2012).1 Plaintiffs must show that “(1)
the class is defined with reference to objective criteria; and (2)
there is a reliable and administratively feasible mechanism for
determining whether putative class members fall within the
class definition.” Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d
Cir. 2015) (internal quotation marks omitted).

We reverse the District Court’s order. First, the Court
should not have treated the renewed motion for class

1
Every putative class action must satisfy the
requirements of Rule 23(a) and the requirements of Rule
23(b)(1), (2), or (3). See Fed. R. Civ. P. 23(a)–(b). To satisfy
Rule 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 of representation, or
simply adequacy).

In re Cmty. Bank of N. Va., 622 F.3d 275, 291 (3d Cir. 2010)
(quoting Fed. R. Civ. P. 23). Additionally, Rule 23(b)(3),
relevant here, “requires that (i) common questions of law or
fact predominate (predominance), and (ii) the class action is
the superior method for adjudication (superiority).” Id.

4
certification as a motion for reconsideration. “An order that
grants or denies class certification may be altered or amended
before final judgment.” Fed. R. Civ. P. 23(c)(l)(C). Courts
cannot graft onto that provision the heightened motion-for-
reconsideration standard requiring that, in addition to
satisfying the typical Rule 23 criteria, plaintiffs show there was
a change in controlling law, new evidence, or a clear error. See
Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176
F.3d 669, 677 (3d Cir. 1999). District courts should treat
renewed motions for class certification as they would initial
motions under Rule 23. Cf. In re Initial Pub. Offering Sec.
Litig., 483 F.3d 70, 73 (2d Cir. 2007).

Second, the District Court misapplied our
ascertainability case law. It was too exacting and essentially
demanded that Appellants identify the class members at the
certification stage. We have held that a plaintiff need not “be
able to identify all class members at class certification—
instead, a plaintiff need only show that ‘class members can be
identified.’” Byrd, 784 F.3d at 163 (emphasis omitted)
(quoting Carrera v. Bayer Corp., 727 F.3d 300, 308 n.2 (3d
Cir. 2013)). Appellants have met that requirement. They
submitted thousands of pages of contracts, driver rosters,
security gate logs, and pay statements, as well as testimony
from a dozen class members stating they were required to work
exclusively for Sleepy’s full-time. “Affidavits, in combination
with records or other reliable and administratively feasible
means, can meet the ascertainability standard.” City Select
Auto Sales Inc. v. BMW of N. Am. Inc., 867 F.3d 434, 441 (3d
Cir. 2017).

The Court focused on gaps in the records kept and
produced by Sleepy’s. But where an employer’s lack of

5
records makes it more difficult to ascertain members of an
otherwise objectively verifiable class, the employees who
make up that class should not bear the cost of the employer’s
faulty record keeping. To hold otherwise is in tension with the
Supreme Court’s decisions in Anderson v. Mt. Clemens Pottery
Co., and Tyson Foods, Inc. v. Bouaphakeo, which held that
employees bringing wage claims can meet their burdens of
proof by “produc[ing] sufficient evidence to show the amount
and extent of that work as a matter of just and reasonable
inference.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036,
1040 (2016) (quoting Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680, 687 (1946)). Such inferences are necessary “to
fill an evidentiary gap created by the employer’s failure to keep
adequate records.” Id. at 1047. We extend Tyson Foods and
Mt. Clemens to the ascertainability determination at the class-
certification stage and hold that where an employer has failed
to keep records it was required to keep by law, employees can
prove ascertainability by producing “sufficient evidence” to
define their proposed class as “a matter of just and reasonable
inference.” Tyson Foods, 136 S. Ct. at 1046–47 (quoting Mt.
Clemens, 328 U.S. at 687).

I. BACKGROUND

A. Factual Background

1. Sleepy’s Delivery Services and the
Proposed Class

Sleepy’s was a New York-based mattress retailer.2
Deliveries were “an integral part of its business,” J.A. 78, and

2
Mattress Firm acquired Sleepy’s in December 2015.

6
so it created a comprehensive delivery process to meet its
customer needs. Sleepy’s operated a large warehouse in
Robbinsville, New Jersey, that it used to deliver mattresses. It
ran 50 to 60 trucks daily, and as many as 85 to 90 each day
during peak season.

Appellants (the three named plaintiffs in this proposed
class action) are individuals who performed mattress deliveries
for Sleepy’s. To work for Sleepy’s, they had to sign a
standardized Independent Driver Agreement (“IDA”). Each
IDA “required that the deliverers could not perform any other
business while on duty with Sleepy’s.” J.A. 76. It states that
drivers are required to “agree that while performing deliveries
for Sleepy’s [they] will not carry merchandise for any other
business until [they] have finished the delivery manifest given
to [them] by Sleepy’s.” J.A. 1030. However, the IDAs also
state that the relationship was entered on a “non-exclusive
basis” and that on any day Sleepy’s did not have to request,
and no carrier had to provide, delivery services for it. Id.
Sleepy’s enforced these provisions; in at least one instance, it
penalized a driver because he made a delivery for another
business while he was delivering Sleepy’s product.

Some drivers in the proposed class signed IDAs on their
own behalf and others signed on behalf of their corporate entity
or “carrier.” Appellants testified that individual drivers were
required to form business entities as a condition of their
employment with Sleepy’s. This was true even if the business
entity consisted of one driver and one truck. Appellants
testified that, although there were some drivers who owned or
operated two or three trucks at a time, most proposed class
members operated one truck for significant stretches of time.
Several drivers who operated more than one truck testified that

7
they drove one of their trucks full time, and a relative or an
associate drove the other.

Sleepy’s emphasizes that the IDA did not obligate it to
pay wages to a carrier’s individual owners or workers. It paid
each carrier for all the deliveries the carrier performed as a
whole.3 Sleepy’s also points out that, where carriers were not

3
One of the key factual disputes in this case is whether
Sleepy’s had relationships with the drivers individually or with
the corporate entities with which the drivers were affiliated.
Sleepy’s points us to evidence that the IDAs were signed on
behalf of, and payments were made to, the corporate entities.
The proposed class members counter that they only formed
those entities as a condition of working for Sleepy’s.

Amici—the National Employment Law Project
(“NELP”) and Toward Justice—support Appellants’ argument
and posit that the use of LLCs to misclassify employees is a
widespread public policy problem.

[S]ome employers . . . require workers to form limited
liability corporations . . . , individual franchises, or other
shell businesses to get a job, even where they are clearly
employees . . . . [T]he employer contracts with the workers
in their capacity as ‘owners’ or ‘partners’ of the shell
company in order to avoid liability under labor and
employment laws. Companies like the LLC model
because there are fewer reporting requirements under tax
laws, making it harder to identify independent contractor
misclassification.

Amicus Curiae Br. of NELP 8–9 (footnote omitted).

8
one-person limited liability companies (“LLCs”), their owners
did not necessarily drive the truck, and that there were signers
to IDAs who did not provide delivery services to Sleepy’s on
a full-time basis.

Appellants brought an employee misclassification suit
and sought certification as a class of Sleepy’s delivery drivers.
They alleged that Sleepy’s misclassified them as independent
contractors; because they are actually employees of Sleepy’s,
it violated the New Jersey Wage Payment Law, N.J. Stat. Ann.
§ 34:11–4.1 et seq., by making deductions from their pay for,
among other things, damage claims, uniforms, customer
claims, and other fines. Also, Sleepy’s allegedly violated the
New Jersey Wage and Hour Law, N.J. Stat. Ann. § 34:11-56a
et seq., by failing to pay Appellants overtime when they
worked more than 40 hours in a week.

2. Sleepy’s Records

Sleepy’s maintained driver rosters that listed an
identification code for each driver, how many trucks that driver
was authorized to drive for it, and whom it authorized to drive
each truck. The driver identification codes were used by
Sleepy’s computer software system to design daily delivery
routes and assign those routes to a specific truck, including the
approved driver for that truck.

Sleepy’s also produced load sheets and manifests for
each truck that listed the products to be delivered and listed the
driver of that truck. Drivers had to provide their cell phone
numbers so that they could be called during delivery. Their
numbers appeared on the manifests. Sleepy’s assigned each
driver a two or three letter code (e.g., “5HC” for Henderson

9
Clarke, or “5STT” for Sam Hargrove). J.A. 1123–24. If a
driver operated more than one truck, Sleepy’s assigned an
additional number after the letter code. Typical was Plaintiff
Marco Eusebio, whose driver code was “5ETC.” J.A. 1123.
At times he operated three trucks for Sleepy’s, and his
secondary trucks were assigned the codes “5ETC2” and
“5ETC3.” Id. The driver roster can thus be used to link each
truck to a particular driver.

Sleepy’s also generated in digital form “Outside Carrier
Expense Detail” reports for each driver. These display the
driver’s identifier (which is identical to the driver identification
assigned to the driver on the driver rosters), the number of
deliveries assigned to the driver each day, the number of
deliveries completed each day, the amounts paid, and the
amounts and reason for any deductions from the driver’s pay.

Each driver also was required to sign in at a security
gate when he arrived at the Sleepy’s facility in Robbinsville.
The gate logs were maintained by the security guard and listed
the driver’s identification, the time he arrived, his name, and,
if the driver had a helper, his name.

3. Appellants’ Methods for Ascertaining Class
Members

In seeking class certification, Appellants argued they
could piece together who the proposed class members were
from Sleepy’s available records. Appellants’ counsel reviewed
the driver rosters, pay statements, and gate logs that Sleepy’s
produced in discovery and concluded that during the applicable
class period, from 2007 to 2016, approximately 193
individuals were hired by Sleepy’s to perform deliveries in

10
New Jersey and personally performed deliveries on a full-time
basis. Of those, 111 individuals operated only one truck for at
least six months during that period. Twelve of the currently
proposed class members operated only one truck for at least six
months for Sleepy’s.

Appellants posit that their class can thus be identified
by lining up the Outside Carrier Expense Detail reports, which
show the days a driver performed deliveries by their assigned
identification code, with the gate logs for corresponding dates,
which show who was the driver for the truck that day. They
included samples of those documents for six proposed class
members, packaging their gate logs, driver rosters, and pay
statements for the same days, which taken together show that
those drivers performed multiple deliveries for Sleepy’s on
days they signed in at the gate.

For example, Appellants compared the relevant
documents, specifically the gate logs and the pay statements,
for named plaintiff Sam Hargrove, with his testimony, to show
it corroborated that he worked full-time for Sleepy’s,
performing many deliveries per day, five to six days a week.
From June 19, 2008 to November 1, 2008, the pay statements
showed that Hargrove operated one truck for Sleepy’s and was
paid for deliveries performed on 69 days during that period.
The gate logs for ten of those days are admittedly missing and
another driver filled in for Hargrove on two days. Appellants
posit that this process of lining up documents can be replicated
for each proposed class member.

Sleepy’s counters that there are substantial gaps in the
record that foreclose class certification. For example, it argues
that most of the documents on which Appellants rely are from

11
a small window in 2008–2009, and that these documents
cannot support certification for the proposed class period from
2007 to 2016. It claims as well that it made a broad range of
documents available, but that Appellants’ counsel only copied
a narrow subset. The parties engaged in discovery in 2010 and
2011. Sleepy’s produced Outside Carrier Expense Detail
reports for all carriers making deliveries from 2007 to 2010. It
also provided access to all the gate logs it had. Sleepy’s
concedes that the gate logs, “if completed properly,” “would
reflect the date and time an individual entered and departed
from the Robbinsville facility.” Sleepy’s Br. 8 (citing J.A.
1000). During a second round of discovery, Sleepy’s produced
additional data regarding payments and deductions made to
carriers from 2011 through 2016.

Appellants counter that they provided evidence outside
of the 2008–2009 period. Included was testimony from
multiple members of the putative class who claim they had to
sign in on the gate logs every morning during the entire class
period. Moreover, Sleepy’s has suggested that it had, or was
trying to obtain, gate logs spanning from 2008 to 2016. As for
the claim that only a narrow range of documents were copied,
Appellants posit that, when their counsel went to Sleepy’s
facility to examine the logs, they were in hard-copy form and
counsel were not permitted to take the documents out of the
facility or to stay beyond 6:00 p.m. Nonetheless they were able
to scan thousands of pages of gate logs that are in evidence.
The parties dispute the significance of these gaps in the record.
Whether they foreclose class certification is a question before
us.

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 B. Procedural Background

1. Filing of the Class Action and Ruling on the
Merits

Appellants filed their class action complaint in March
2010. After preliminary discovery, the District Court granted
Sleepy’s motion for summary judgment, holding that, under
then-controlling New Jersey law, the drivers were independent
contractors and not employees. Appellants appealed to us, and
in May 2015 we vacated and remanded so that the District
Court could apply the proper test adopted by the New Jersey
Supreme Court in response to a certified question from us.
Hargrove v. Sleepy’s, LLC, 106 A.3d 449 (N.J. 2015).

On remand, the parties filed partial cross-motions for
summary judgment on whether the named plaintiffs were
employees or independent contractors. The District Court
granted Appellants’ motion and denied Sleepy’s motion,
holding that the three named plaintiffs were employees of
Sleepy’s. Specifically, it held that Sleepy’s exercised
considerable control over the work of the drivers under the
IDAs; they performed deliveries within Sleepy’s usual course
of business; by reporting to and working in the Robbinsville
facility each morning and performing deliveries on routes
designed by Sleepy’s, the drivers worked in Sleepy’s places of
business; and they could not operate independent businesses
because Sleepy’s required them to work full-time and their
IDAs barred them from performing deliveries for other
businesses.

Thus the District Court has already held on summary
judgment that the named plaintiffs—Samuel Hargrove, Andre

13
Hall, and Marco Eusebio—were misclassified as independent
contractors and instead are employees of Sleepy’s. The issues
of class certification and damages were not decided.

2. The First Motion to Certify

Appellants thereafter filed their first motion for class
certification for a proposed class of 193 individuals who
contracted with Sleepy’s and performed deliveries on a full-
time basis. They argued the class was ascertainable because
all of the class members signed contracts with Sleepy’s, were
listed on the driver rosters, were identified on the daily delivery
manifests, all signed in with a Sleepy’s security guard in a gate
log each morning, all of the deductions Sleepy’s took from the
drivers’ pay were listed in their pay statements, and Sleepy’s
kept track of each driver’s deliveries using scanner data.
Appellants also produced testimony showing that Sleepy’s
assigned drivers a full shift of work each day and prohibited
any driver from making deliveries for other businesses while
making deliveries for it, so that, as a practical matter, the
drivers could only work exclusively for Sleepy’s.

In February 2018, however, the District Court denied
Appellants’ motion without prejudice. Hargrove v. Sleepy’s,
LLC, No. 10-cv-01138, 2018 WL 1092457 (D.N.J. Feb. 28,
2018) (“Hargrove I”). The Court held that Appellants had not
demonstrated the ascertainability of the proposed class. In
assessing whether class membership could be ascertained from
the driver rosters, pay statements, and gate logs, it noted that
Sleepy’s “acknowledges those records identify the drivers,” id.
at *7, yet held that the available documents did not show which
multiple-truck drivers were working on a full-time basis. The
Court also noted, notwithstanding Appellants’ emphasis on

14
gate logs, they “[were] not fully completed. Sometimes the
time a truck entered the facility (time-in) and the time it left the
facility (time-out) [were] not recorded. As a result, there are
gaps in listing time-in or time-out of the facility for the trucks
and the drivers.” Id. Additionally, the Court held that it could
not ascertain who was a member of the class for the purpose of
Appellants’ claim for deductions because so many of the
carriers were LLCs, stating that there “is no way of knowing .
. . whether any carrier reduced any driver[’]s pay by deducting
Sleepy’s listed deductions.” Id. at *8. And the Court stated it
could not ascertain the class members who had overtime claims
because “there is no way of knowing whether the carrier paid
drivers overtime.” Id.

3. The Renewed Motion to Certify

Appellants filed a renewed motion for certification of a
class of only the 111 individuals who performed deliveries on
a full-time basis and who drove one truck for Sleepy’s. Those
individuals included 73 drivers who ran only one truck for
Sleepy’s, and an additional 38 drivers who ran one truck for at
least six months even though they operated more than one
truck on other occasions.

The District Court denied the renewed motion for class
certification in May 2019. Hargrove II, 2019 WL 8881823.
First, it construed the motion as a motion for reconsideration.
Under the standard of review for reconsideration motions, it
would reconsider its prior denial of class certification only if
Appellants pointed to “(1) an intervening change in the
controlling law; (2) the availability of new evidence that was
not available when the court granted the motion . . . ; or (3) the
need to correct a clear error of law or fact or to prevent manifest

15
injustice.” Id. at *3. It ruled that Appellants demonstrated
none of these circumstances. Id.

The Court nonetheless engaged in the Rule 23
certification analysis, and held that the narrower class was still
not ascertainable because the records kept by Sleepy’s
regarding the identity of the drivers lacked critical information.
Id. at *6. Much like its February 2018 ruling in Hargrove I, it
determined that the driver rosters, pay statements, and gate logs
failed to show who worked on a full-time basis; thus it was
“unable to determine if Sleepy’s was the only company the
drivers worked for.” Id. at *5. Additionally, the Court found
that the gate logs were not provided for “the full class period,”
and there was no evidence that those documents existed. Id. at
*6. Moreover, Appellants could not show “which potential
class members were subject to improper deductions and which
potential class members worked over forty hours per week
without being paid over-time.” Id. And that “while
determining the amount of deductions may be simple based on
the [pay statements], the documents still do not allow the Court
to determine whether the drivers actually suffered a
deduction.” Id.

Appellants thereafter sought leave to appeal the District
Court’s denial pursuant to Fed. R. Civ. P. 23(f), and we granted
their request.

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 II. ANALYSIS4

A. Standard Applied to Renewed Motions for
Class Certification

Appellants argue that the District Court erred in treating
their renewed motion for class certification as a motion for
reconsideration, and that it instead should have treated it as an
independent motion for class certification.5

We have not previously decided what standard applies
when reevaluating an initial denial of a motion for certification.

4
The District Court had jurisdiction under 28 U.S.C.
§§ 1331, 1332(a), and 1332(d)(2). We have jurisdiction over
this interlocutory appeal pursuant to 28 U.S.C. § 1292(e) and
Federal Rule of Civil Procedure 23(f).
5
Our dissenting colleague would hold that Appellants
forfeited the issue of whether the District Court applied the
wrong standard of review. Dissent. Op. 1. But the cases he
cites involved arguments and issues that were forfeited because
they were only raised for the first time in a reply brief, see
Prometheus Radio Project v. FCC, 824 F.3d 33, 53 (3d Cir.
2016), or only in footnotes, see John Wyeth & Bro. v. CIGNA
Int’l Corp., 119 F.3d 1070, 1076 n.6 (3d Cir. 1997). That is
not what we have here. Appellants raised the argument in their
opening brief, see Hargrove et al. Br. 11 n.12, and then
elaborated in detail in their Reply, see Hargrove et al. Reply 8–
9. And the District Court expressly discussed and ruled on the
standard-of-review issue. Hargrove, 2019 WL 8881823, at
*2–3. Cf. Lark v. Sec’y Pa. Dep’t of Corr., 645 F.3d 596, 607
(3d Cir. 2011) (stating that “the crucial question regarding

17
District courts in our Circuit have applied different standards.
Some have held that “the best course of action is to treat the
present [m]otion like any other for class certification, and to
apply the usual Rule 23 standard.” Carrow v. FedEx Ground
Package Sys., Inc., No. 16-cv-3026, 2019 WL 7184548, at *4
(D.N.J. Dec. 26, 2019). Per Rule 23(c)(1)(C), “[a]n order that
grants or denies class certification may be altered or amended
before final judgment.” Fed. R. Civ. P. 23(c)(1)(C). In our
case, the Court required Appellants not only to satisfy the
requirements of Rule 23, but also to show that (1) there had
been “an intervening change in controlling law;” (2) “new
evidence” had become available; or (3) there was “the need to
correct a clear error of law or to prevent manifest injustice.”
Max’s Seafood Cafe, 176 F.3d at 677.

Sleepy’s cites a case from the Second Circuit and cases
from district courts in our Circuit as support that courts
uniformly apply the motion for reconsideration standard, but it
mischaracterizes the holdings of those cases. The holding of
In re Initial Public Offering Securities Litigation, 483 F.3d 70

waiver” is whether the proceedings “put the [d]istrict [c]ourt
on notice of the legal argument”); see also Bagot v. Ashcroft,
398 F.3d 252, 256 (3d Cir. 2005) (“This Court has
discretionary power to address issues that have been waived.”).
There is no argument here that the parties did not have fair
notice of this contention, cf. In re: Asbestos Prod. Liab. Litig.
(No. VI), 873 F.3d 232, 237 (3d Cir. 2017) (declining to
consider argument raised in a footnote because “it fail[ed] to
give fair notice of the claims being contested on appeal”), or
that Sleepy’s did not have an opportunity to respond. Indeed
it responded to the standard-of-review argument at length.
Sleepy’s Br. 18–21.

18
(2d Cir. 2007), was that district courts may consider a motion
to alter or amend a class certification ruling anytime before
final judgment, id. at 73, and not that those courts should apply
the motion-for-reconsideration standard. The Second Circuit
specifically noted that “[n]othing in our decision precludes the
Petitioners from returning to the District Court to seek
certification of a more modest class, one as to which the Rule
23 criteria might be met.” Id.

Sleepy’s also cites In re Tropicana Orange Juice
Marketing & Sales Practices Litigation, No. 11-cv-7382, 2018
WL 6819331, at *2 (D.N.J. Dec. 28, 2018), but there the Court
merely stated that district courts have discretion to consider
renewed motions for class certification and not that the
reconsideration standard applies; in fact, it applied only the
Rule 23 analysis without any reference to the reconsideration
standard. Id. at *2–3.

District courts outside our Circuit are also split on this
issue. Compare Remington v. Newbridge Sec. Corp., No. 13-
cv-60384, 2014 WL 505153, at *13 (S.D. Fla. Feb. 7, 2014)
(declining to “construe [plaintiff’s] renewed request for class
certification as one for reconsideration”), with Torrent v.
Yakult U.S.A., Inc., No. 15-cv-124, 2016 WL 6039188, at *1
(C.D. Cal. Mar. 7, 2016) (applying the “stringent law of the
case standard [for a] motion[] to reconsider” to a renewed
motion for class certification) (quoting Anderson Living Tr. v.
WPX Energy Prod., LLC, 308 F.R.D. 410, 438 (D.N.M.
2015)). But the courts that apply the motion-for-
reconsideration standard do so despite the language of Rule
23(c)(1)(C), which states that “[a]n order that grants or denies
class certification may be altered or amended before final
judgment,” their concern being that the parties will be

19
improperly given a “second bite at the apple” by relitigating
the class-certification issue. See Anderson Living Tr., 308
F.R.D. at 438.

Concern about parties getting a second opportunity,
however, cannot override the language of Rule 23(c)(1)(C),
which allows for multiple bites at the apple throughout the
litigation, and that does not impose an additional requirement
on parties to prove a change in law or show new evidence to
succeed on a renewed motion for certification. The Rule does
not distinguish between a renewed motion for certification
based on new evidence and one based on a more narrow and
clearer definition of a class that meets the requirements of Rule
23. As a practical matter, we know no reason why plaintiffs
who can cabin more clearly their class, and meet the other Rule
23 requirements, should be barred from succeeding on a
renewed motion.

Accordingly, we decline to import the stringent motion-
for-reconsideration standard to a renewed motion for class
certification under Rule 23(c)(1)(C). “[T]he best course of
action is to treat [renewed motions] like any other for class
certification, and to apply the usual Rule 23 standard.”
Carrow, 2019 WL 7184548, at *4. Plaintiffs can succeed on a
renewed motion for class certification if they more clearly
define their proposed class even if there has been no change in
the law and no new evidence produced.

The District Court thus erred by treating Appellants’
renewed motion for class certification as a motion for
reconsideration. Its application of that standard was not,
however, outcome determinative because it still considered the

20
other Rule 23 criteria and found Appellants’ proposed class
was not ascertainable. We thus proceed to review that ruling.6

“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.” Byrd, 784
F.3d at 161 (citation and internal quotation marks omitted).
We review de novo the legal standard applied. Id.

B. Ascertainability

1. The Rule 23 Legal Framework

As noted, in our Circuit a Rule 23(b)(3) class must also
be “currently and readily ascertainable based on objective
criteria.” Marcus, 687 F.3d at 593. The plaintiff has the
burden of making this showing by a preponderance of the
evidence, and a district court must “undertake a rigorous
analysis of the evidence to determine if the standard is met.”
Carrera, 727 F.3d at 306. However, a plaintiff need not “be
able to identify all class members at class certification—
instead, a plaintiff need only show that ‘class members can be

6
Sleepy’s correctly points out that the only order on
appeal before us is the District Court’s May 2019 order
denying Appellants’ renewed motion for certification and that
Appellants did not seek interlocutory review of the February
2018 order denying their initial motion. However, in the May
2019 order, the Court expressly incorporates portions of the
February 2018 order. See Hargrove II, 2019 WL 8881823, at
*1. We accordingly also review the cited portions of that order.

21
identified.’” Byrd, 784 F.3d at 163 (emphasis omitted)
(quoting Carrera, 727 F.3d at 308 n.2).

We have analyzed the ascertainability standard in detail
on several occasions. We first addressed it in Marcus v. BMW
of North America LLC, in which the plaintiff proposed a class
of New Jersey purchasers of BMW vehicles equipped with
“run-flat tires” that had “gone flat and been replaced” during
the class period. 687 F.3d at 592. This definition presented
serious ascertainability issues. First, the vehicles were
manufactured by a foreign subsidiary who was not a party to
the action, so that defendant did not have access to records of
which vehicles were equipped with the defective tires. Id. at
593. Second, dealerships regularly replaced the run-flat tires
with regular tires, and the plaintiff did not present a method of
obtaining records from individual dealerships. Id. at 593–94.
Finally, the plaintiff limited the class to purchasers of BMWs
whose tires had “gone flat and been replaced” and did not
propose a method of determining who met this part of the class
definition. Id. at 594. Because the answer to each of these
questions was left to “potential class members’ say so,” we
remanded to the District Court to consider “the critical issue of
whether the defendants’ records can ascertain class members
and, if not, whether there is a reliable, administratively feasible
alternative.” Id.

In Hayes v. Wal-Mart Stores, Inc., we considered claims
brought by a putative class of New Jersey retail discount club
customers who purchased goods with extended warranties.
725 F.3d 349, 352 (3d Cir. 2013). The proposed class
definition included all customers who purchased a “Service
Plan to cover as-is products,” but it excluded customers whose
“as-is product was covered by a full manufacturer’s warranty,

22
was a last-one item . . . who obtained service on their product,
and . . . who have previously been reimbursed for the cost of
the Service Plan.” Id. at 353. We noted that this class
definition required separate factual inquiries to determine class
membership: “(1) whether a Sam’s Club member purchased a
Service Plan for an as-is item, (2) whether the as-is item was a
‘last one’ item or otherwise came with a full manufacturer’s
warranty, and (3) whether the member nonetheless received
service on the as-is item or a refund of the cost of the Service
Plan.” Id. at 356. We remanded so that the plaintiff could
propose reliable and administratively feasible methods of
answering these questions without requiring “extensive and
individualized fact-finding.” Id.

In Carrera v. Bayer Corp., the District Court certified a
class composed of all purchasers of a particular over-the-
counter diet supplement during several years in Florida. 727
F.3d at 304. Defendants were the drug manufacturers, and they
did not have access to any retailer records that could have
established which customers purchased the drug during the
pertinent time period. Id. The plaintiff proposed using
“retailer records of online sales and sales made with store
loyalty or rewards cards,” combined with affidavits from
potential class members. Id. But the plaintiff had not sought,
nor obtained, the proposed records during class discovery. See
id. at 308–09. We determined that it was inappropriate to
certify the class without further inquiry into the nature and
extent of the available records. Id. at 309. In addition, we
noted that, even if the proposed records did exist, there was no
evidence that a “single purchaser,” let alone the whole class,
could be identified using them. Id. We remanded so that the
plaintiff could conduct additional discovery on whether there

23
was a reliable and administratively feasible means of
determining class membership. Id. at 312.

In Byrd v. Aaron’s Inc., we considered claims brought
by individuals who leased computers with spyware that was
installed and activated without their consent. 784 F.3d at 160.
The class definition included both the lessees and their
household members. Id. Defendants kept detailed records
enabling identification of the lessees. Id. at 169. We
concluded that identification of the household members was
unlikely to pose “serious administrative burdens that are
incongruous with the efficiencies expected in a class action.”
Id. at 170 (quoting Marcus, 687 F.3d at 593). “Any form used
to indicate a household member’s status in the putative class
must be reconciled with the 895 known class members or some
additional public records.” Id. at 171.

Most recently, in City Select Auto Sales Inc. v. BMW of
North America, we vacated and remanded a district court
ruling that a proposed class of car dealers who received
unsolicited faxes from a credit agent was not ascertainable
because a database of the dealers did not list which ones
actually received the fax. 867 F.3d at 441. We vacated for two
reasons:

First, our ascertainability precedents do not
categorically preclude affidavits from potential
class members, in combination with the
Creditsmarts database, from satisfying the
ascertainability standard. Second, because the
Creditsmarts database was not produced during
discovery, plaintiff was denied the opportunity to
demonstrate whether a reliable, administratively

24
 feasible method of ascertaining the class exists
based, in whole or in part, on that database.

Id. at 440–41. We emphasized that “[a]ffidavits, in
combination with records or other reliable and administratively
feasible means, can meet the ascertainability standard,” id. at
441, and that “[t]he only factual inquiry required to determine
class membership is whether a particular dealership in the
database received the BMW fax on one of the dates in
question,” id. at 442.7

7
Since Marcus, judges on our Court have warned that
the overzealous application of the “administratively feasible”
requirement will defeat the purpose of Rule 23 to protect the
rights of individuals who may lack the resources to bring
individual claims. Judge Fuentes has pointed out that other
Circuits to address ascertainability—including the Second,
Sixth, Seventh, Eighth, and Ninth Circuits—have rejected it.
See City Select, 867 F.3d at 443 n.3, 448 (Fuentes, J.,
concurring); see also Byrd, 784 F.3d 172 (Rendell, J.,
concurring) (“Our heightened ascertainability requirement . . .
narrows the availability of class actions in a way that the
drafters of Rule 23 could not have intended.”). Some have
warned that applying a heightened ascertainability standard
could be used to punish plaintiffs where defendants fail to keep
accurate records. Carrera v. Bayer Corp., No. 12-2621, 2014
WL 3887938, at *3 (3d Cir. May 2, 2014) (Ambro, J.,
dissenting from denial of en banc review); Byrd, 784 F.3d at
173 (Rendell, J., concurring) (accord). See also Briseno v.
ConAgra Foods, Inc., 844 F.3d 1121, 1125–26 (9th Cir.)
(holding that class proponents were not required to
demonstrate that there was an administratively feasible way to

25
 2. The District Court Misapplied the
Ascertainability Standard

The District Court misapplied our ascertainability case
law. It was too exacting and essentially demanded that
Appellants identify the class members at the certification stage.
But all that is required is that Appellants show there is a
“reliable and administratively feasible mechanism,” Byrd, 784
F.3d at 163 (quoting Carrera, 727 F.3d at 306), for
determining class membership. They have met that
requirement.

Appellants produced evidence that could be used to
identify which drivers worked for Sleepy’s full time. They
produced testimony from a dozen potential class members
stating they were required to work exclusively for Sleepy’s
full-time. It set delivery routes that ran about 10 hours each
day. Because of this 10-hour minimum workday, the drivers
routinely worked more than 40 hours per week. Appellants
produced evidence that the drivers were wholly reliant on
Sleepy’s for their income and, as a practical matter, were not
able to perform deliveries for anyone else.

Moreover, pay statements showed that delivery drivers
completed multiple deliveries each day, five to six days a week,
and Sleepy’s manifests listed the driver of the truck and how
many deliveries they were assigned each day. Pay statements
also listed amounts that were deducted from the driver’s pay,
including the reason for the deductions.

determine who was in the class for it to be certified), cert.
denied, 138 S. Ct. 313 (2017).

26
 Sleepy’s maintained driver rosters listing the names of
the individuals who contracted with it; who could drive under
their contracts (including the signee and, if the signee had more
than one truck, the names of the secondary drivers approved to
drive the other trucks who are not members of the proposed
class); and how many trucks the driver operated for Sleepy’s.
Sleepy’s security gate logs further show who was driving the
truck through the gate each day. Appellants correlated the logs
with concurrent pay statements and showed that a driver
personally performed deliveries for Sleepy’s nearly every day
his truck was on the road. Appellants thus identified several
distinct data sets that, taken together with the affidavits,
establish a “reliable and administratively feasible mechanism”
for determining class membership. Byrd, 784 F.3d at 163
(quoting Carrera, 727 F.3d at 306).

Compare our case to Marcus, 687 F.3d 583, and
Carrera, 727 F.3d 300, where we held the proposed classes
were not ascertainable, respectively, because the entities sued
were not the ones with the necessary records, and it was not
clear that any records existed. In both cases we remanded for
the district court to determine further whether there were any
records at all. Here we are stacks away from such a dearth of
documents. Appellants obtained thousands of records from
Sleepy’s and have explained how they can use them to identify
individual drivers who worked full-time.

We have held that the ascertainability standard was
satisfied in cases in which plaintiffs submitted far less evidence
than here. In Byrd, for example, we held that the household
class members were ascertainable even though no evidence as
to them had been submitted because we could imagine the

27
types of evidence that could be identified and used to link the
existing class members to household members. 784 F.3d at
170–71. Here we need not use our imagination. We know
there are multiple sets of evidence that can be matched with
and verified by the putative class members’ affidavits. And
indeed the District Court used this same set of evidence to
determine on the merits that the named plaintiffs were
employees.

We made clear in City Select that “[a]ffidavits, in
combination with records or other reliable and administratively
feasible means, can meet the ascertainability standard.” 867
F.3d at 441. There we held the class of car dealerships was
ascertainable even though the database did not list which
dealerships received unsolicited faxes because the database in
combination with the potential class members’ affidavits
would allow the class to be defined. Id. at 441–42. So too
here.

To be sure, the records Appellants rely on are
incomplete. The District Court held that it could not rely on
those records to determine which drivers drove full-time. But
it failed to explain why, in light of our precedents, the records
as a whole, together with the affidavits, did not provide a
reliable and feasible mechanism to ascertain class members at
the certification stage. Appellants do not have to prove at this
stage that each proposed class member was indeed a full-time
driver, but only that the members can be identified. See City
Select, 867 F.3d at 439; Byrd, 784 F.3d at 163. Appellants have
done exactly that by presenting large samples of Sleepy’s
driver rosters, gate logs, and pay statements. And the gaps in
the record do not undermine the conclusion that all the
evidence taken together could at the merits stage be used to

28
determine who the full-time drivers were. See Carrow, 2019
WL 7184548, at *6 (holding plaintiffs could show which
drivers worked full-time even though they “cannot account for
what each driver was doing during every minute of every day
throughout the class period”). Sleepy’s relies on Carrera to
argue that Appellants failed to obtain enough documents, but
there the defendant had no records of who purchased the drug
and the plaintiffs failed to seek any records from third parties
or even to show that those records existed. See 727 F.3d at
308–09. To repeat, Appellants here obtained thousands of
pages of documents.

Many of Sleepy’s factual arguments also do not hold up.
For example, it claims that the Outside Carrier Expense Detail
reports and pay statements are not useful because they do not
list the name of the person driving the truck. But the pay
statements list the driver identification listed in the driver roster
(tied to a known individual) and list what days a driver had a
truck on the road, how many deliveries that truck made, what
the driver was paid, and what deductions were made from the
drivers’ pay by Sleepy’s and why. Sleepy’s also contends that
the gate logs do not show who actually drove the truck, but
drivers were required to show their Sleepy’s identification
badge at a security gate when they arrived at its warehouse and
when they left to make their deliveries after the truck was
loaded, plus the identity of the driver was listed under the
heading “Driver Name.” J.A. 880. Perhaps most audaciously,
Sleepy’s suggests that its own driver rosters should be
disregarded because it is unclear that they are accurate.
However, the rosters list the identification numbers assigned to
each driver and that same identification appears on each pay
statement. And the former dispatch supervisor for Sleepy’s
testified that it used Excel worksheets to list the people who

29
were approved to drive the trucks and whether they were
drivers or helpers. She made clear that drivers not approved to
make the delivery run would “lose their run” and that only
approved drivers appeared on the roster. J.A. 889.

Sleepy’s argues as well that which drivers were paid
overtime is not ascertainable because it is possible that the
corporate entities separately paid their individual drivers
overtime and thus complied with New Jersey law. But the
deductions they were subject to were discernible from Sleepy’s
Outside Carrier Expense Detail reports, which show what
deductions were made from which trucks. And the exact
damages owed each driver is not an ascertainability issue. See
Vaquero v. Ashley Furniture Indus., Inc., 824 F.3d 1150, 1155
(9th Cir. 2016) (holding that “the need for individual damages
calculations does not, alone, defeat class certification”).

Sleepy’s also points us to evidence that certain
individual drivers did not work full time. For example, Brian
Martin signed an IDA but he was not a full-time driver for
Sleepy’s, as his business did not deliver exclusively for it and
he rarely drove his own truck. Sleepy’s notes that the gate logs
Appellants rely on show that Martin was at the Robbinsville
facility briefly on certain days, but fail to reflect whether he
came to the facility multiple times or made any other deliveries
for other customers that day. This misses the point. Martin is
no longer part of the proposed class. Appellants concede that
not all drivers were full-time drivers for Sleepy’s. They have
attempted to narrow their class definition to exclude
individuals whose record is as incomplete as Martin’s.
Moreover, even if Martin were still included in the proposed
class, it would have been an issue of overbreadth, not
ascertainability, in that some drivers who were not full-time

30
drivers would have been included in the proposed class. As we
held in Byrd, a class can still be ascertainable even if it may be
slightly overbroad. 784 F.3d at 168–69. And it is not clear that
there is an overbreadth issue with the new proposed class of
111 drivers.

Thus we reverse the District Court’s holding with
respect to ascertainability. The class members are identifiable
through objective criteria—they are listed in Sleepy’s
contracts, driver rosters, gate logs, pay statements, and other
data. Many of the putative class members have been deposed.
The District Court improperly focused on perceived gaps in the
evidence—gaps that were plausibly created by Sleepy’s own
record keeping.8

8
To be clear, before us is only the May 2019 order
denying certification of the class of 111 individuals who
performed deliveries on a full-time basis and who drove one
truck for Sleepy’s. Although the Court incorporated by
reference portions of its February 2018 order denying
certification of the class of 193, the denial of that certification
motion is not before us. So Appellants may move forward with
their proposed class of 111.

Additionally, although ascertainability does not stand as
a bar to class certification, we express no opinion on whether
the other requirements for certification under Rule 23 are
satisfied. The District Court did not consider the issue, and we
decline to do so in the first instance.

On remand, if the parties further litigate the other
requirements of Rule 23 or if they reach the merits, the District
Court is of course free to reopen discovery to address gaps in

31
 3. Employers’ Failure to Keep Records as a
Roadblock to Class Certification

That the District Court focused on the gaps in the record
is especially troubling given that Appellants are only able to
rely on the records that Sleepy’s kept and produced. We
reverse and remand based on the District Court’s
misapplication of our ascertainability precedent, but we also
clarify that where an employer’s lack of records makes it more
difficult to ascertain members of an otherwise objectively
verifiable class, the employees who make up that class will not
be made to bear the cost of the employer’s faulty record
keeping.

To hold otherwise would be in tension with the Supreme
Court’s decisions in Mt. Clemens, 328 U.S. 680, and Tyson
Foods, 136 S. Ct. 1036, which held that employees’ wage
claims should not suffer simply due to an employer’s failure to
maintain employee pay records that it is required to keep by
law. In Tyson Foods, the Supreme Court explained that the
“‘remedial nature of [the FLSA] and the great public policy
which it embodies . . . militate against making’ the burden of
proving uncompensated work ‘an impossible hurdle for the
employee.’” 136 S. Ct. at 1047 (alterations in original)
(quoting Mt. Clemens, 328 U.S. at 687). Employees can meet
their burdens of proof by “produc[ing] sufficient evidence to

the record, especially given that Sleepy’s may have more
documents that cover a wider timespan. And Sleepy’s will in
any event at the merits stage be able to present evidence as to
any of the 111 drivers to show that he or she was not in fact a
full-time driver. But these are questions for a later stage in this
litigation, and they do not affect our ascertainability ruling.

32
show the amount and extent of that work as a matter of just and
reasonable inference.” Mt. Clemens, 328 U.S. at 687. Those
inferences are often necessary “to fill an evidentiary gap
created by the employer’s failure to keep adequate records.”
Tyson Foods, 136 S. Ct. at 1047.

We extend the holdings of Tyson Foods and Mt.
Clemens to the ascertainability determination at the class-
certification stage and hold that where an employer has failed
to keep records it was required to keep by law, employees can
prove ascertainability (it remains their burden) by producing
“sufficient evidence” to define their proposed class as “a matter
of just and reasonable inference.” Mt. Clemens, 328 U.S. at
687; Tyson Foods, 136 S. Ct. at 1046–47 (holding that
plaintiffs may use representative samples to establish “the
employees’ hours worked in a class action”).

For purposes of our case, the New Jersey Wage and
Hour Law provides that “[a]ll the time the employee is required
to be at his or her place of work or on duty shall be counted as
hours worked.” N.J. Admin. Code § 12:56-5.2(a). An
employer is required to keep accurate records showing the
names of its employees, days and hours worked, and other
information. N.J. Stat. Ann. § 34:11-56a20; N.J. Admin. Code
§ 12:56-4.1. Sleepy’s thus had an obligation to keep clear
employment records. It apparently failed to do so for the
members of the proposed class.

Sleepy’s argues that it acted in good faith when it failed
to keep complete records for the proposed class members
because it believed they were independent contractors and not
employees. If we accept this argument and allow Appellants’
class action to be thwarted by Sleepy’s lack of records, we

33
would be creating an incentive for employers not to keep
records and thus avoid potential lawsuits. We thus would be
crafting a vast loophole to class certification; employers could
simply argue that they believed the potential class members
were not employees. This would lead to paradoxical outcomes.
Cf. Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 540 (6th
Cir. 2012) (“[C]lass action litigation grows out of systemic
failures of administration, policy application, or records
management that result in small monetary losses to large
numbers of people. To allow that same systemic failure to
defeat class certification would undermine the very purpose of
class action remedies.”).

It cannot be the case that Mt. Clemens and Tyson Foods
do not apply anytime an employer argues workers in good faith
were not treated as employees but as independent contractors.
If this were so, no court would be able to use those precedents
to determine damages where a defendant misclassified its
workers as independent contractors or otherwise misclassified
employees. We simply follow the path of the Supreme Court
that in cases such as this one, where employment records are
lacking, the employer and not the employee will bear the cost
of such deficiencies, whether they be intentional or good-faith
misclassifications. While this does not mean plaintiffs can
avoid the ascertainability requirement, it does allow just and
reasonable inferences to fill in the gaps in a defendant’s faulty
record keeping.

* * * * *

Accordingly, we reverse the judgment of the District
Court and remand this case for further proceedings in accord
with this opinion.

34
HARDIMAN, Circuit Judge, dissenting.

“In our adversarial system of adjudication, we follow
the principle of party presentation.” United States v. Sineneng-
Smith, 140 S. Ct. 1575, 1579 (2020). This assumes that “parties
represented by competent counsel know what is best for them,
and are responsible for advancing the . . . argument entitling
them to relief.” Id. (quoting Castro v. United States, 540 U.S.
375, 386 (2003) (Scalia, J., concurring in part and concurring
in the judgment)) (quotation marks and alteration omitted). So
“courts normally decide only questions presented by the
parties.” Id. (quotation marks, citation, and alteration omitted).
Because the Majority neglects this principle to reach an issue
Appellants failed to raise properly, I respectfully dissent.

Appellants filed a renewed motion for class certification
that the District Court construed as a motion for
reconsideration. The Court reasoned:

Plaintiffs must meet a higher standard than
before—they must show that either there has
been a change in the controlling case law[] (they
have not); new evidence is available that was not
available when the Court denied the motion (they
have not); or the need to correct a clear error of
law or fact or to prevent manifest injustice (they
have not).

Hargrove v. Sleepy’s LLC, 2019 WL 8881823, at *7 (D.N.J.
2019). Appellants failed to present the issue of whether the
District Court erred in applying this standard. Nevertheless, my
colleagues conclude the District Court erred in “treat[ing] the
renewed motion for class certification as a motion for
reconsideration.” Maj. Op. 4–5. They do so apparently based

1
on a footnote in the procedural history section of Appellants’
brief. See Hargrove Br. 11 n.12. But we have held that is
insufficient to raise an issue or argument. See, e.g., Prometheus
Radio Project v. FCC, 824 F.3d 33, 53 (3d Cir. 2016)
(arguments and issues “relegated to a footnote” are forfeited)
(citing United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.
2005) (“It is well settled that an appellant’s failure to identify
or argue an issue in his opening brief constitutes waiver of that
issue on appeal.”), and John Wyeth & Bro. v. CIGNA Int’l
Corp., 119 F.3d 1070, 1076 n.6 (3d Cir. 1997) (“[A]rguments
raised in passing (such as, in a footnote), but not squarely
argued, are considered waived.”)). Moreover, Rule 28(a) of the
Federal Rules of Appellate Procedure and Rule 28.1(a) of the
Third Circuit Local Appellate Rules require appellants “to set
forth the issues raised on appeal and to present an argument in
support of those issues in their opening brief.” Kost v.
Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).

The Majority contends Appellants did more than raise
this issue in a footnote because they “elaborated in detail in
their Reply.” Maj. Op. 17 n.5. That’s not enough. Appellants
must present and argue each issue “in their opening brief.”
Kost, 1 F.3d at 182 (emphasis added). We have never (until
now, apparently) established an exception to this rule where
the appellee addresses the issue and the appellant subsequently
“elaborate[s]” in the reply brief, or where the parties are not
“surprised” because the district court “expressly discussed and
ruled on the . . . issue.” Maj. Op. 17 n.5. And for good reason.
Such an exception will destabilize our forfeiture jurisprudence
and undermine our clear and easily administrable rule. It will
also invite mischief by permitting appellants to raise issues and
arguments summarily in an opening brief, thus forcing
appellees to guess at the questions presented and appellant’s

2
specific arguments, before presenting their full argument in a
reply brief. This impairs our deliberative process.

The Majority cites several cases it believes support its
decision to reach this issue. Id. None of them do. It cites Lark
v. Secretary Pennsylvania Department of Corrections, 645
F.3d 596, 607 (3d Cir. 2011), and Bagot v. Ashcroft, 398 F.3d
252, 256 (3d Cir. 2005), which discuss notice in the district
court and our discretion to address issues waived below but
raised properly on appeal. Neither case supports the Majority’s
decision because here we deal only with an issue not raised
properly on appeal. Next, my colleagues cite In re: Asbestos
Products Liability Litigation (No. VI), 873 F.3d 232, 237 (3d
Cir. 2017), for their position that we should excuse forfeiture
when, despite an appellant’s failure to raise an issue properly
in accordance with our well-settled precedent and the Federal
and Local Rules of Appellate Procedure, the parties
nevertheless have fair notice of the claim. In Asbestos, as in
this appeal, appellants tried to preserve an issue in a footnote
while committing their entire opening brief to other issues. We
held that an “attempt to shoehorn in an argument” in a footnote
is “insufficient to raise an issue on appeal,” and that “[a]s a
general matter, an appellant waives an argument in support of
reversal if it is not raised in the opening brief.” Id. We should
apply the same rule here.

Consistent with our longstanding precedent, I would
affirm the District Court and hold that Appellants failed to
present and argue the issue of whether the Court erred in

3
denying their renewed motion for class certification under the
motion-for-reconsideration standard.1

I also disagree with the Majority’s conclusion on the
merits. On the record before it, I cannot say the District Court
abused its discretion in holding Appellants failed to establish
ascertainability.

Appellants failed to show that the class was currently
and readily ascertainable. See Marcus v. BMW of N. Am. LLC,
687 F.3d 583, 593 (3d Cir. 2012). They consistently presented
a confused and incomplete method for ascertaining class
members, which led the Court to its holding on ascertainability.
The District Court did not reach this conclusion for lack of
trying. It considered substantial briefing, heard argument, and
allowed the parties to depose Appellants’ key witness when
their methodology remained unclear. Despite these

1
Setting aside Appellants’ forfeiture, I disagree with my
colleagues’ broad holding that a district court can never apply
the motion-for-reconsideration standard to a renewed motion
for class certification. See Maj. Op. 5 (“Courts cannot
graft . . . the heightened motion-for-reconsideration standard
[onto renewed motions for class certification].”). District
courts have “ample discretion to consider (or to decline to
consider) a revised class certification motion after an initial
denial.” In re: Tropicana Orange Juice Mktg. & Sales
Practices Litig., 2018 WL 6819331, at *2 (D.N.J. 2018)
(quoting In re Initial Pub. Offering Sec. Litig., 483 F.3d 70, 73
(2d Cir. 2007)). Because district courts may decline to consider
such motions at all, it stands to reason that they retain
discretion to apply the reconsideration standard.

4
opportunities, Appellants failed to establish ascertainability by
a preponderance of the evidence.

As just one example of Appellants’ shortcomings,
consider the gate logs presented (and not presented) at the class
certification stage. Appellants have consistently said Sleepy’s
gate logs are a key component of their ascertainability
methodology. See, e.g., App. 1412 (Appellants’ witness
testified that the only way she could show a particular driver
drove on a particular day was by cross-referencing an Outside
Carrier Expense Detail report with the gate log). But even after
discovery, Appellants failed to obtain gate logs for the full
class period. And the logs they presented (from a few months
in 2008 and 2009) were missing data. For that reason, the
District Court questioned the reliability of those documents in
Appellants’ ascertainability analysis. And Appellants are to
blame for this evidentiary defect because Sleepy’s offered to
provide all its gate logs but Appellants claimed it was “not
[Appellants’] burden to review all of the gate logs . . . prior to
class certification.” Reply Brief in Support of Plaintiffs’
Renewed Motion for Class Certification, Case No. 3:10-cv-
01138, ECF No. 225, 11 n.15. So the District Court
unsurprisingly concluded Appellants failed to meet their
burden for ascertainability given their willful ignorance of the
existence and substance of a central category of evidence.

Finally, in reversing the District Court’s ascertainability
determination, the Majority extends the holdings of Anderson
v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), and Tyson
Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016). Maj. Op.
6 (“[W]here an employer has failed to keep records it was
required to keep by law, employees can prove ascertainability
by producing ‘sufficient evidence’ to define their proposed
class as ‘a matter of just and reasonable inference.’”) (quoting

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Mt. Clemens, 328 U.S. at 687, and Tyson Foods, 136 S. Ct. at
1046–47). I would not apply those precedents to this case
because there was never any doubt that the plaintiffs in Mt.
Clemens and Tyson Foods were employees. Here, the company
in good faith believed the drivers were independent
contractors. The District Court agreed with that classification,
and only after the New Jersey Supreme Court held otherwise
did they learn that the drivers were employees. See Hargrove
v. Sleepy’s LLC, 2016 WL 8258865, at *1 (D.N.J. 2016); see
also Hargrove v. Sleepy’s LLC, Case Nos. 12-2540 & 12-2541,
Petition for Certification of Question of Law (“We believe that
this case raises an important issue of New Jersey law that is
both determinative and novel.”).

For the reasons stated, I would affirm the order of the
District Court and respectfully dissent.

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