In Morgan v. Wet Seal, Inc., ___ Cal.App.4th ___ (Oct. 12, 2012; pub. ord. Nov. 7, 2012), the Court of Appeal (First Appellate District, Division Two) affirmed an order denying class certification of wage and hour claims involving expense reimbursements.
The U.S. Supreme Court will hear oral argument today at 10:00 a.m. Eastern (7:00 a.m. Pacific) in Comcast Corp. v. Behrend, no. 11-864.
Normally, the Court makes oral argument transcripts available later the same day. When the Behrend argument transcript is posted online, it should be available at this link. UPDATE: The transcript has been posted.
SCOTUSblog has a detailed oral argument preview on the case. The Court is expected to elaborate, to some as-yet unknown extent, on Dukes. The Court's statement of the issue reads as follows:
Whether a district court may certify a class action without resolving
whether the plaintiff class has introduced admissible evidence,
including expert testimony, to show that the case is susceptible to
awarding damages on a class-wide basis.
The U.S. Supreme Court will hear oral argument on Monday, November 5, 2012 in Comcast Corp. v. Behrend, no. 11-864. Arguments always begin at 10:00 a.m. Eastern (7:00 a.m. Pacific), and normally the transcript is posted later the same day. Check here for the link on Monday.
This is the case in which the Supreme Court may elaborate on Dukes. The question presented, which normally tracks the language of the cert. petition, was restated by the Supreme Court when it granted cert. The restated question reads:
Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.
This is the case in which the Supreme Court addressed the administrative exemption but did not reach the issue of class certification. Harris v. Superior Court (Liberty Mutual), 53 Cal.4th 170 (2011). The Court of Appeal, on remand, held that the trial court should not have granted the defendant's motion to decertify the class. Harris v. Superior Court (Liberty Mutual), 207 Cal.App.4th 1225 (2012) (depublished).
The depublication request, filed by the California Employment Law Council, argued that Court of Appeal did not follow the Supreme Court's directives when it applied the administrative exemption on remand.
My original post on the Court of Appeal opinion on remand in Harris is here.
In Meyer v. Portfolio Recovery Associates, LLC, ___ F.3d ___ (9th Cir. Oct. 12, 2012), the Ninth Circuit held that district courts are authorized to grant provisional class certification under Rule 23(b)(2) when issuing a preliminary injunction:
[Defendant] also argues that the district court lacked authority to certify a provisional class pursuant to FRCP 23(b)(2) because that rule only provides for final, not preliminary, injunctive relief.
FRCP 23(b) states, “A class action may be maintained if Rule 23(a) is satisfied and if ... the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” The plain language of FRCP 23(b)(2) does not restrict class certification to instances when final injunctive relief issues; it only requires that final injunctive relief be appropriate. [Defendant] did not show the district court incorrectly interpreted or applied FRCP 23(b)(2).
Slip op. at 12260. The opinion also holds that the district court correctly certified the class. Id. at 12257-59.
The article addresses the "trial by formula" catchphrase used in Dukes and explains that this part of the Supreme Court's analysis is limited to Title VII class actions, which have unique statutory requirements not present in UCL cases and other types of cases commonly litigated as class actions. In particular, the clever language does not mean that evidentiary extrapolations are impermissible Rule 23(b)(3) class actions, nor does it place any kind of due process limitation on the class action device, as some courts have recently and erroneously held. The article also discusses the Court of Appeal opinion in Duran, which misconstrued Dukes and is now under review by the California Supreme Court. Brinker is also touched on.
My thanks to the editor of Competition, John Cove, for including the article in the issue. Thanks are also due to the attorneys (you know who you are) who reviewed and provided helpful comments on drafts of the article.
Three published post-transfer opinions have been handed down in Brinker "grant and hold" cases (of which there are nine). The first opinion to be published comes in the last "grant and hold" case, in which the Supreme Court granted review on April 11, 2012 (one day before the Brinker opinion issued).
In Muldrow v. Surrex Solutions Corp., ___ Cal.App.4th ___ (Aug. 29, 2012), the Fourth Appellate District, Division One, affirmed the trial court's judgment in a non-class-certification context. According to the Muldrow panel, "In Brinker, the Supreme Court held that an
employer need only provide for meal
periods, and need not ensure that
employees take such breaks." Slip op. at 24.
As I have explained elsewhere, that is not a correct reading of Brinker; in fact, the Supreme Court held that employers have an affirmative obligation to relieve employees of all duty for their meal periods. Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004, 1017 (2012) ("an employer’s obligation is to relieve its employee of all duty"). For unknown reasons, however, the parties' counsel in Muldrow conceded the incorrect reading. See id. at 25 n.17 ("In
their supplemental brief, filed after transfer from the Supreme Court,
appellants concede that the Brinker
court 'answered [their claim on appeal] in the negative.'"). The analysis consists of a single paragraph at the end of an opinion primarily focused on other issues.
The Second Appellate District, Division Eight has published post-transfer opinions in two of the nine "grant and hold" cases:
Both opinions come from the same panel (Bigelow, P.J., Grimes J., and
Flier, J.). Both affirm lower court orders denying class
certification. I will try to have more on these opinions later.
UPDATE: On December 12, 2012, the Supreme Court depublished the Lamps Plus and Hernandez opinions. Depublication requests remain pending in Muldrow and in another post-transfer opinion, Tien v. Tenet Healthcare Corp., 209 Cal.App.4th 1077 (2012).
In Ross v. RBS Citizens, N.A., 667 F.3d 900 (7th Cir. 2012), the Seventh Circuit affirmed
class certification of claims for unpaid overtime wages under FLSA and
Illinois state law. The opinion closely analyzes Dukes.
A copy of the cert. petition in Ross is available here. I have not yet seen any documents from AmEx. If you have copies of those, please forward.UPDATE: Many thanks to the blog reader who kindly forwarded a copy of the cert. petition in AmEx.
In Bolden v. Walsh Construction Co., ___ F.3d ___ (7th Cir. Aug. 8, 2012), the Seventh Circuit, in an opinion by Judge Easterbrook, reversed an order granting class certification of race discrimination claims under Title VII, distinguishing McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012) (discussed in this blog post).
In Tucker v. Pacific Bell Mobile Services, ___ Cal.App.4th ___ (Aug. 7, 2012), the Court of Appeal (First Appellate District, Division Five) affirmed an order sustaining the defendants' demurrer to the complaint's class allegations, relying heavily on Knapp v. AT&T Wireless Services, Inc., 195 Cal.App.4th 932 (2011) and Cohen v. DirecTV, Inc., 178 Cal.App.4th 966 (2009).
The opinion contains a lengthy and interesting discussion of the legal standard governing challenges to class allegations at the pleading stage. Slip op. at 5-10.
In Evon v. Law Offices of Sidney Mickel, ___ F.3d ___ (9th Cir. Aug. 1, 2012), the Ninth Circuit reversed an order denying class certification of claims brought under the federal Fair Debt Collection Practices Act.
This case presents the classic case for treatment as a class action: that is, the commonality linking the class members is the dispositive question in the lawsuit. It is not necessary that members of the proposed class “share every fact in common.” Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9th Cir. 2010). Thus, the district court abused its discretion in finding that commonality was not satisfied.
Slip op. at 8495.
The opinion also says that correspondence from an attorney's office is almost always bad news. Id. at 8486. (I sure do hope my clients don't think that.)
In Paige v. Consumer Programs Inc., No. CV-07-2498-MWF (RCx) (C.D. Cal. Jul. 16.2012), Judge Michael W. Fitzgerald granted class certification of meal period and rest break claims:
The parties disagree about the meaning of Brinker and its impact on the Court’s assessment of the adequacy of the purported class under Rule 23(b)(1) and (3). As a result, it is important for the Court to clarify the import of the majority opinion in Brinker as it applies to this case. The portion of the Brinker decision relevant here examined whether, when assessing meal and rest break claims under California law, “individual questions or questions of common or general interest predominate.” Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004, 1017, 139 Cal. Rptr. 3d 315 (2012). This determination is relevant to the analysis of class sufficiency. Fed. R. Civ. P. 23(b)(3) ....
The California Supreme Court in Brinker allowed for the possibility that meal and rest break claims could predominately feature questions of general interest. The Brinker Court ultimately held that, under California law, “an employer’s obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires.” Brinker, 53 Cal. 4th at 1017. The employer’s duty is not to ensure that no work takes place during a given period, but to provide what is a substantively meaningful break. See generally id. The employer satisfies this obligation to uninterrupted, (2) is free to leave the premises, and (3) is relieved of all duty for the entire period.” Id. at 1036. Additionally, the Brinker court observed that an “employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.” Id. at 1040.
The Brinker court did not elaborate on every possible form of common proof that may satisfy a predominance assessment, but explained that, where it is alleged with support that common, uniform policies consistently applied resulted in the purported violations, class treatment is appropriate. Id. at 1033. Because the plaintiff in Brinker alleged such a uniform policy with regard to rest breaks, the Brinker court determined that the rest break claims could proceed on a class-wide basis. Id. at 1033.
Slip op. at 2-3. This is one of the better and more accurate summaries of the opinion that I have seen by a lower court since the decision was handed down in April. Judge Pregerson's summary in Ricaldi is also very good.
In Hester v. Vision Airlines, Inc., ___ F.3d ___ (9th Cir. Jul. 18, 2012), the Ninth Circuit affirmed an order granting class certification of claims brought by pilots and airline crew members for recovery of hazard pay earned in delivering supplies to military posts in Iraq and Afghanistan.
The Supreme Court heard oral argument in this case last October, and handed down its opinion in late December. Harris v. Superior Court (Liberty Mutual Ins. Co.), 53 Cal.4th 170 (2011). The high court reversed the Court of Appeal's earlier holding that the administrative exemption did not apply to the plaintiff insurance adjusters, as the employer had argued, and remanded the case back to that court for further proceedings. The opinion did not address class certification.
In its opinion on remand earlier this week, the Court of Appeal held that the employer's reliance on the administrative exemption was misplaced, and that the workers' claims for unpaid overtime were properly certified for class treatment:
We hold that, with the few exceptions we have noted, Adjusters’ work duties do not satisfy the qualitative component of the “directly related” requirement because they are not carried on at the level of policy or general business operations. Adjusters therefore are not primarily engaged in work that is “directly related to management policies or general business operations.” (Fed. Regs. § 541.205(a) (2000).) It follows that Adjusters are not exempt administrative employees under either Wage Order 4-1998 or Wage Order 4-2001. Accordingly, Adjusters’ motion for summary adjudication should have been granted, and, because the qualitative component of the “directly related” requirement is a predominant common issue under both wage orders, Employers’ motion for class decertification should have been denied in its entirety.
Slip. op. at 25-26.
UPDATE: On October 24, 2012, the Supreme Court depublished the Harris opinion. It is no longer citable as precedent.
In an unpublished opinion, the Court of Appeal (Second Appellate District, Division Seven) held again that orders denying class certification do not have collateral estoppel effect as to unnamed class members:
We agree with Bridgeford [v. Pacific Health Corp., 202 Cal.App.4th 1034 (2012)] and its adoption as a matter of California law of the United States Supreme Court’s analysis in Smith v. Bayer Corp., supra, 564 U.S. ___ [131 S.Ct. 2368]. Here, Ellis and McCrary were not named parties in Larner nor in privity with any party to that action for purposes of collateral estoppel. Although their economic interests may have been substantially aligned with Larner’s when she began her lawsuit against Los Angeles Doctors, without class certification issues decided in the prior proceeding cannot bind absent putative class members. (See Bridgeford, supra, 202 Cal.App.4th at p. 1044; see also Johnson v. GlaxoSmithKline, Inc., supra, 166 Cal.App.4th at p. 1513, fn. 8.)
Genesis is a FLSA collective action, not a class action under Rule 23. The Third Circuit held that the defendant could not "pick off" the FLSA representative:
Laura Symczyk sought relief under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 207 and 216(b), on behalf of herself and all others similarly situated. The District Court for the Eastern District of Pennsylvania dismissed Symczyk's complaint for lack of subject matter jurisdiction after defendants Genesis HealthCare Corporation and ElderCare Resources Corporation extended an offer of judgment under Fed.R.Civ.P. 68 in full satisfaction of her alleged damages, fees, and costs. At issue in this case is whether a collective action brought under § 216(b) of the FLSA becomes moot when, prior to moving for "conditional certification" and prior to any other plaintiff opting in to the suit, the putative representative receives a Rule 68 offer. We will reverse and remand.
Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims.
The question is framed quite broadly, so the Court's holding may well impact ordinary class action litigation in the federal courts under Rule 23. The Ninth Circuit recently held that defendants may not "pick off" the class representative in Rule 23 class cases. Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011) (discussed in this blog post). The Seventh Circuit, by contrast, held that they can—if they do it before the class certification motion is filed. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011) (discussed in this blog post). Both of these opinions are cited in the cert. petition in Genesis.
In Sotelo v. MediaNews Group, Inc., ___ Cal.App.4th ___ (May 31, 2012; pub. ord. July 2, 2012), the Court of Appeal (First Appellate District, Division Two) affirmed an order denying class certification of various wage and hour claims arising out the defendant's alleged treatment of workers as independent contractors rather than employees. The opinion does not cite Brinker.
In City of San Diego v. Haas, ___ Cal.App.4th ___ (Jun. 29, 2012), the Court of Appeal (Fourth Appellate District, Division One) affirmed class certification of a defendant class (also sometimes called a "defense class").
The opinion relied on both Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (2012) and Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011) (although the citation of the latter case is a little odd because that case did not address predominance, the issue for which it is cited in Haas). Slip op. at 36-41.
In Keegan v. American Honda Motor Co., ___ F.R.D. ___, 2012 WL 2250040 (C.D. Cal. Jun. 12, 2012), Judge Margaret M. Morrow of the Central District of California construed and distinguished the Ninth Circuit's opinion in Mazza v. American Honda, 666 F.3d 581 (9th Cir. 2012), and partially granted class certification of UCL, CLRA and other claims.
Here is one passage addressing Mazza:
The court is mindful of the Ninth Circuit's warning that differences in state law concerning the need for proof of reliance can “spell the difference between the success and failure of the claim.” Mazza, 666 F.3d at 591. Mazza, however, addressed omissions in advertisements and oral statements that included differing information. The Ninth Circuit concluded that “[a] presumption of reliance [could] not arise when class members ‘were exposed to quite disparate information from various representatives of the defendant.’ “ Id. at 596 (quoting Stearns, 655 F.3d at 1020). It noted further: “For everyone in the class to have been exposed to the omissions, as the dissent claims, it is necessary for everyone in the class to have viewed the allegedly misleading advertising. Here the limited scope of that advertising makes it unreasonable to assume that all class members viewed it.” Id.
In this case, by contrast, plaintiffs allege that defendants did not disclose to any member of the class information regarding the potential for excessive and premature tire wear caused by negative camber. There is no question of different statements being made to different groups of consumers, or certain class members being exposed to information others were not. Consequently, the court concludes that any potential differences in state law concerning the proof of reliance that is necessary to prevail on consumer protection claims do not defeat predominance in this case.
Keegan, 2012 WL 2250040 at *33-*34.
The order also has this passage on class certification of a UCL "fraudulent" prong claim:
As is clear from the California Supreme Court's decision in In re Tobacco II Cases, 46 Cal.4th 298 (2009), moreover, there is no need to prove reliance on an individual basis. Rather, “In re Tobacco II Cases set out a liberal approach to the reliance inquiry,” permitting plaintiffs to prove a UCL violation by presenting “generalized evidence that Defendants' conduct was ‘likely to deceive’ members of the public.” Plascencia v. Lending 1 st Mortgage LLC, 259 F.R.D. 437, 448 (N.D. Cal. 2009). Indeed, as with the CLRA, materiality is relevant to prove reliance, since “a presumption, or at least an inference, of reliance arises wherever there is a showing that a misrepresentation was material.” In re Tobacco II,46 Cal.4th at 327. Consequently, a violation of the UCL can be proved with common evidence regarding the nature of the design defect in question, the likely effect of the defect on class vehicles, its likely impact on vehicle safety, what Honda knew or did not know, and what it disclosed or did not disclose to consumers. See Yamada, 275 F.R.D. at 578 (“[I]t is unlikely that a member of the putative class would have purchased the NobelDirect product without having been influenced by Defendants' uniform marketing claims. Furthermore, it is reasonable to assume that no rational member of the putative class would have purchased and used the NobelDirect implant had he or she been aware of the alleged defective design”); Delarosa v. Boiron, Inc., 275 F.R.D 582, 594 (C.D. Cal. 2011) (“In addition, Defendant's arguments that it can present proof that Coldcalm worked for some individual class members goes to the proof of the merits of Plaintiff's claim, not to the common question as to the overall efficacy of the product”).
Id. at *23.
Many thanks to the friend who forwarded this decision.
Today, the U.S. Supreme Court announced that it has granted cert. on a limited question in Comcast Corp. v. Behrend, no. 11-864:
The petition for a writ of certiorari is granted limited to the following question: “Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.”
In Smentek v. Dart, ___ F.3d ___ (7th Cir. Jun. 19, 2012), the Seventh Circuit (Judge Posner) construed the U.S. Supreme Court's opinion last year in Smith v. Bayer Corp., 131 S. Ct. 2368 (2011). The question considered was whether, under Smith, federal judges must afford "comity" to each other's orders denying class certification. The answer was no:
Whatever the scope of the Supreme Court’s current concept of comity, the defendants’ argument that Smith v. Bayer Corp. adopted a rule of comity in class action suits that precludes granting class certification in a copycat class action must be rejected ....
The rule urged by the defendants in this case that the denial of class certification bars the certification of the same or a similar class in a suit by a member of the same class as the previous suit ... would contradict the holding of Smith v. Bayer Corp., which is that a class member who did not become a party to the previous parallel class action is not precluded from seeking class certification in his class action. ....
We are left with the weak notion of “comity” as requiring a court to pay respectful attention to the decision of another judge in a materially identical case, but no more than that even if it is a judge of the same court or a judge of a different court within the same judiciary. We emphasize, however, the qualification in “materially identical.” Even two class actions involving the same class may differ materially, for example in the suitability of the class representative or the adequacy of class counsel, and where they do the judge in the second, or third, or nth class action is on his own. This is not such a case; nevertheless the district judge gave plausible reasons for her disagreement with the judges in the two previous Cook County dental cases. Can more be required? The defendants’ claim that she was bound by the decisions of the other judges just because those decisions preceded and were contrary to her decision has no basis in law and flouts the principle that a district court decision does not have precedential effect.Camreta v. Greene, 131 S. Ct. 2020, 2033 n. 7 (2011); Wirtz v. City of South Bend, 669 F.3d 860, 862-63 (7th Cir. 2012). The defendants would have such decisions treated not as mere precedents but as super-precedents that no court lacking appellate authority could question.
The district judge’s grant of class certification is therefore affirmed.
In Ortega v. Topa Ins. Co., ___ Cal.App.4th ___ (May 25, 2012), the Court of Appeal (Second Appellate District, Division Three) affirmed an order striking class allegations from the complaint.
Among other things, the Court affirmed the applicability of the "death knell" doctrine to such rulings:
While generally an order granting a motion to strike is not an appealable order, in this case, the trial court’s order is effectively a final judgment. The order at issue in this case struck all class allegations from the complaint. Such an order is appealable, even if made at the pleading stage. “Whatever its form, an order that has the effect of denying certification as a class action disposes of that action and is an appealable final judgment.” (Prince v. CLS Transportation, Inc. (2004) 118 Cal.App.4th 1320, 1322, fn. 2.)
Slip op. at 9.
On a related note, a recent unpublished opinion from the Fifth Appellate District, Barnes v. Bakersfield Dodge, Inc., No. F063370 (Cal. App. May 22, 2012), held that the "death knell" doctrine applies to an order granting a motion to compel arbitration in a putative class case if the arbitration clause bans class proceedings. At least one publication request has been filed there. The appellate court reversed the order, holding that the defendant had waived its right to seek to compel arbitration.
UPDATE: The publication requests in Barnes were denied.
On Monday, the U.S. Supreme Court relisted the Behrend case for the fifth time. Comcast Corp. v. Behrend, no. 11-864. It was scheduled for conference on Thursday, June 7, and if it is not relisted again, the up-or-down vote on certiorari should be announced in the Court's order list on Monday, June 11.
This case involves class certification of antitrust claims and could provide an opportunity for elaboration on Dukes. The Third Circuit's opinion is Behrend v. Comcast Corp., 655 F.3d 182 (3d Cir. 2011).
UPDATE: On Monday, June 11, 2012, the case was relisted yet again, for the conference of June 14, 2012. We'll have to check the docket again on the 18th.
UPDATE: On Monday, June 18, 2012, the case was relisted again for the conference of June 21, 2012. Check back on June 25. I'm pretty sure this sort of serial relisting is not normal.
UPDATE: On June 25, 2012, the Supreme Court granted cert. in this case.
One question raised since the Supreme Court handed down Brinker is the extent to which lower courts will follow the concurring opinion of Justices Werdegar and Liu, which elaborates on both the Labor Code and the class certification issues addressed in Justice Werdegar's majority opinion.
In a recent order, Judge Dean Pregerson of the U.S. District Court for the Central District of California found the concurring opinion persuasive on at least the former point.
First, Judge Pregerson summarized the Brinker majority decision regarding employers' legal obligations with respect to meal periods:
The California Supreme Court recently clarified the law regarding meal periods, in Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004, 139 Cal.Rptr.3d 315, 273 P.3d 513 (Cal.2012). Relevant here, the court concluded that “an employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work.” Id. at 338. The court further explained that a “worker must be free to attend to anypersonal business he or she may choose during the unpaid meal period.” Id. at 340 (quoting Cal. Dep't of Indus. Relations, Div. of Labor Standards Enforcement, Opinion Letter No.1991.06.03, at 1). Accordingly, the meal period requirement is only “satisfied if the employee (1) has at least 30 minutes uninterrupted, (2) is free to leave the premises, and (3) is relieved of all duty for the entire period.” Id.
In other words, the “wage orders and governing statute do not countenance an employer's exerting coercion against the taking of, creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks.” Brinker, 133 Cal.App.4th at 343, 34 Cal.Rptr.3d 635. Thus, as the court summarized: “The employer satisfies [its meal period] obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30–minute break, and does not impede or discourage them from doing so.” Id.
Judge Pregerson then had this to say regarding the concurring opinion:
Finally, in a concurring opinion joined by Justice Liu, Justice Werdegar emphasized that relevant IWC wage orders also require employers to record meal periods. Id. at 353 (Werdegar, J., concurring) (citing Cal.Code Regs. tit. 8, § 11050); see alsoCal.Code Regs. tit. 8, § 11040(7)(A)(3) (same). The Justices therefore concluded that the burden is on the employer to show that it relieved an employee of all duty for a meal period, if the employer fails to record the meal period as required. ....
As an initial matter, the court notes its agreement with Justices Werdegar and Liu that it is the employer's burden to rebut a presumption that meal periods were not adequately provided, where the employer fails to record any meal periods. Otherwise, employers would have an incentive to ignore their recording duty, leaving employees the difficult task of proving that the employer either failed to advise them of their meal period rights, or unlawfully pressured them to waive those rights. See Brinker, 133 Cal.App.4th at 353 & n. 1, 34 Cal.Rptr.3d 579 (Werdegar, J., concurring) (citing Cicairos, 133 Cal.App.4th at 961, 35 Cal.Rptr.3d 243 (“[W]here the employer has failed to keep records required by statute, the consequences for such failure should fall on the employer, not the employee.” (internal quotation marks omitted))). Here, as mentioned, there is no dispute that USIS failed to record any meal periods.
Id. at *4, *5 (empahsis added). The order goes on to deny the defendant's summary judgment motion.
While the order does not address the class certification aspects of Brinker (either the majority or concurring opinions), there is no reason not to expect that judges will find the concurrence persuasive on class certification as well. After all, what non-binding authority could be more persuasive than further elaboration by Justice Werdegar, author of not only the Brinker majority opinion, but also Sav-on, Baycol, Fireside Bank, and Lockheed Martin -- five of the nine landmark class certification decisions issued by the Supreme Court since 2000?
The petition for review, answer and reply are available at this link. Last week, counsel for the workers filed a request for an extension of time, through July 30, 2012, to file the opening brief on the merits, which would otherwise be due in approximately mid-June.
I am told that a couple of dozen amicus letters were filed in support of review. The Court's practice, however, is not to log these filings on the docket.
Since last week, the docket has been updated to indicate the issue on review:
This case presents issues concerning the certification of class actions in wage and hour misclassification litigation and the use of representative testimony and statistical evidence at trial of such a class action.
Here is my post on the original opinion handed down in February. The Court of Appeal (First Appellate District, Division One) reversed the judgment and class certification in an employee misclassification case. Duran v. U.S. Bank National Ass'n., 203 Cal.App.4th 212 (2012). The opinion is no longer citable.