In Bell v. Superior Court (H.F. Cox, Inc.), ___ Cal.App.4th ___ (Nov. 21, 2007; pub. ord. Dec. 20, 2007), the Court of Appeal affirmed in part and reversed in part the trial court's order denying certification of certain Labor Code claims. The opinion contains some interesting language on the "superiority" element of class certification:
The party seeking class certification has the burden to establish that class action will be a superior means of resolving the dispute. (Aguiar v. Cintas Corp. No. 2, supra, 144 Cal.App.4th at pp. 132-133.) Our Supreme Court recently addressed the issue of the superiority of a class action in a wage and hour case. In Gentry v. Superior Court (2007) 42 Cal.4th 443, the Supreme Court concluded that both factors on which the trial court relied in this case – the size of some claims suggesting individual enforcement and the possibility of administrative proceedings before the Labor Commissioner – were insufficient to deny class certification. The court noted that there are many other factors in favor of class resolution in such cases, including that current employees might not bring individual claims out of a fear of retaliation, that current employees might not know of their rights (especially where, as here, the employer has affirmatively told them they are not eligible for overtime), and the necessity of class actions to give teeth to wage and hour laws even when some employees may have claims large enough for individual enforcement. (Id. at p. 459-462.) The court specifically held that an administrative action before the Labor Commissioner was an inadequate substitute for a class action. (Id. at p. 465.) As such, the trial court’s conclusion that a class action is not superior cannot stand.
Slip op. at 35-36 (footnotes omitted).
UPDATE: On April 25, 2008, the Supreme Court depublished the Bell opinion.