(CN) - The 8th Circuit decertified a class of Domino's Pizza delivery drivers who say customers do not tip them because they think the delivery fee covers it.
Domino's starting charging Minnesota delivery customers a $1 flat per-delivery fee in 2005 and it raised the fee to $1.50 in 2008.
Customers who ordered food online were told that a "delivery charge will apply," and employees were instructed to say the same over the phone. The fee appears on customer receipts as "Del Charge."
No part of the fee goes to delivery drivers. In 2009, Domino's began printing on some pizza boxes, "Any Delivery Charge is not a tip paid to your driver. Please reward your driver for awesomeness."
A district court certified a class of 1,600 Minnesota delivery drivers who claimed the delivery fee was gratuity that Domino's wrongly withheld from them.
A three-judge panel of the St. Louis-based federal appeals court reversed Monday saying that "the District Court abused its discretion by certifying the class.
"The varied context of the transactions made it unreasonable for some customers to construe the delivery charge as a payment for personal services, thereby preventing one-stroke determination of a classwide question," Judge William Benton wrote for the panel.
Matt Luiken, one of two class representatives, testified that he told some customers, "There's this delivery charge, but it's not - that's not actually a gratuity."
Thus, at least some customers were on notice that the fee was not a tip, according to the ruling.
"Some pizza customers asked about the charge and some did not; some employees volunteered that it was not a gratuity and some did not," Benton wrote. "Those circumstances determine the objective reasonableness of construing the charge as a payment for personal services. This court has previously rejected certification of classes where trial would require considering varied circumstances."
The plaintiffs' attorney, Matt Helland of Nichols Kaster, declined to comment on the ruling.
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