The First Appellate District published two new class certification opinions in the last week. Both are wage and hour cases.
In ABM Industries Overtime Cases, ___ Cal.App.5th ___ (Dec. 11, 2017; pub. ord. Jan. 10, 2018), Division Four reversed an order denying class certification of meal period, expense reimbursement, and other claims, with directions to certify the class and subclasses. This opinion has a very interesting discussion of class definitions and the ascertainability element of class certification. It also addresses the use of expert testimony and "database analysis of timekeeping and payroll records" "as a means to show common practices for purposes of class certification." Slip op. at 20.
Then, yesterday, Division One handed down a new opinion in the long-running Duran litigation, which is a misclassification case involving an exemption defense (namely, the outside salesperson exemption). Years ago, class certification was granted and the plaintiffs prevailed at trial. The defendant appealed. The lengthy appellate process culminated in the California Supreme Court's 2014 Duran opinion (discussed here), which remanded the case back to the trial court for class certification to be addressed anew. This time, class certification was denied below, and the Court of Appeal affirmed. Duran v. U.S. Bank Nat'l Assn., ___ Cal.App.5th ___ (Jan. 17, 2018).
Like the opinion in ABM Industries, the new Duran opinion also discusses expert testimony, but of a different kind than considered in ABM Industries. The latter case is addressed in a footnote in Duran (slip op. at 24-25 n. 16).
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