Last month, the Fourth Circuit vacated a class-certification order, finding that the commonality and predominance requirements for a damages class action brought under Rule 23(b)(3) were not met. Overby v. Anheuser-Busch, LLC, No. 25-1520, 2026 WL 1718962, at *1 (4th Cir. June 15, 2026). This decision further entrenches the commonality and predominance requirements set forth in Stafford v. Bojangles’ Restaurants, Inc., 123 F.4th 671 (4th Cir. 2024). Together, the two decisions provide a framework for defendants seeking to defeat class action certification, avoid litigation, and resist the pressure to settle non-meritorious claims.

The prospective class members, hourly employees at an Anheuser-Busch production facility in Virginia, sued Anheuser-Busch under the Virginia Wage Payment Act, the Virginia Overtime Wage Act, and the Fair Labor Standards Act, alleging that the company had a corporate policy of failing to compensate the plaintiffs for all mandatory pre- and/or post-shift work. Overby, No. 25-1520, 2026 WL 1718962, at *2.

The plaintiffs claimed that the company had requirements before employees arrived at their workstation and after they left, including donning/doffing personal protective equipment, complying with COVID-19 health protocols, attending shift-handoff meetings, and securing tools. Id. The plaintiffs claimed that because the company required employees to be present and working at their designated station the moment their shift starts until the moment their shift concludes, these preparatory and cleanup steps necessarily fall outside shift hours. Id. Finally, the plaintiffs claimed that because the company did not automatically compensate employees beyond their eight-hour shifts, the plaintiffs have not received pay for compensable pre- and post-shift work. Id.

The district court certified the class, finding that there were common, predominating questions as to whether the company compensated class members for pre- and post-shift work and whether failure to compensate this work violated Virginia law. Id. The Fourth Circuit reversed, based on its prior decision in Bojangles.

In Bojangles, the Fourth Circuit noted that “a key safeguard embedded in our commonality and predominance analyses is eschewing overly general articulations of common questions.” Id. *11.  The district court’s decision violated this principle/safeguard because it framed the common issue in such a broad manner that it masked the many disparities between the proposed class members’ claims.  Id.  Specifically, the court noted that (1) the prospective class members did not all claim to perform the same categories of pre- and post-shift work; (2) they did not perform off-shift work in the same times and places; and (3) they were subject to different legal standards during their relevant employment periods because the relevant statutory scheme was revised in July 2022. Id. at *5-6. Thus, the court reasoned, these inquiries required “mini-trials” into the nature of each member’s work and whether the company mandated the labor. Id. at *5. Upon remand, the court instructed the district court to deny certification or resolve these issues, possibly by employing subclasses reflecting the factual distinctions noted by the court. Id. at *6.

The court’s decision is a reminder of the risks and danger presented by an improperly certified class, which “may force a defendant to settle rather than incur the costs of defending a class action and run the risk of potentially ruinous liability.” Id. *10 (quoting Fed. R. Civ. P. 23 advisory committee’s note to the 1998 amendment).  Accordingly, when facing a “settle or bet the store,” Id.*11, class certification decision, defendants should approach depositions with particular care to solicit evidence of factual variations in prospective class members’ claims, including differences in the time, place, and substance of work performed and differences in the legal standard to which each member is subject.

Defendants who can present their case within the Bojangles/Overby framework may find a receptive audience in the Fourth Circuit.