The UCL Practitioner

"Dole Buyers Get Mixed Win In 9th Circ. Natural Label Ruling"

Last week, I was quoted in an article in Competition Law360 (subscription) on the Ninth Circuit's unpublished opinion in Brazil v. Dole Packaged Foods, LLC, 2016 WL 5539863 (9th Cir. Sept. 30, 2016).

The article begins:

Consumers won a major false advertising battle Friday when the Ninth Circuit ruled the label on Dole's "all natural" frozen berry products may be misleading, but the panel's finding that the decertified class hadn't shown it could prove classwide damages greatly limits what the buyers can recover if they ultimately prevail, attorneys say.

As I told the reporter, I think the opinion mistakenly assumes that there are only two ways to measure UCL restitution, which is not the law in California.  Also, the class certification portion of the opinion seems to me inconsistent with Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979 (9th Cir. 2015) (discussed in this blog post).  The analysis assumes that every unnamed class member would have to show that they were misled, which is inconsistent with both Pulaski and In re Tobacco II Cases, 46 Cal.4th 298 (2009), which this opinion does not cite (it cites only the more recent Tobacco II opinion on remand, discussed here).  This non-precedential opinion should be limited to its facts.

New UCL class certification opinion: Nicodemus v. Saint Francis Memorial Hospital

In Nicodemus v. Saint Francis Memorial Hospital, ___ Cal.App.5th ___ (Sept. 14, 2016; pub. ord. Oct. 6, 2016), the plaintiff asserted a UCL "unlawful" prong claim based on the defendants' violations of Evidence Code section 1158, which limits the amount a medical provider can charge for producing copies of medical records when requested by an attorney.  The Court of Appeal (First Appellate District, Division Four) reversed the trial court's order denying class certification of this claim. 

The opinion reconfirmed the rule that a class is ascertainable even if it includes some members that might have been uninjured by the defendant's unlawful conduct.  Slip op. at 10-17.  Notably, in so holding, the opinion distinguished Hale v. Sharp Healthcare, 232 Cal.App.4th 50 (2014), in which a class was decertified "after nearly three years of litigation" because "it was indisputably demonstrated that there was simply no way to avoid a complicated individualized inquiry to determine not just eligibility for damages but to prove liability."  Nicodemus, slip op. at 15 (citing Hale, 232 Cal.App.4th at 54, 63-64).  In contrast, if "[t]he potential class members may be readily identified by reference to" the defendant's records, "speculation" that some may not have been harmed "goes to the merits of each class member's recovery" and would be "an inappropriate focus for the ascertainability inquiry."  Id. at 16.  

The opinion also held that "[t]he predominance of common questions requirement is patently satisfied here"  Id. at 18.  After setting forth the relevant law, the Court explained: "The common question here is the application of section 1158 to HealthPort's uniform practices in response to attorney requests for medical records.  The fact that each class member ultimately may be required to establish his or her records request was submitted before or in contemplation of litigation does not overwhelm the common question regarding those uniform copying practices.  The trial court erred in ruling otherwise."  Id. at 20 (footnote omitted).  Put another way, just as the Supreme Court held in Brinker, the “community of interest” element of class certification is “patently satisfied” if the evidence shows that the defendant has a uniform policy or practice and that policy or practice is alleged to violate California law.  See id. at 18-20. 

Finally, the opinion considered the argument that the class was overbroad because one of the defendants, Saint Francis, would be liable only to a portion of it.  The class was defined to include all patients whose medical records requests were fulfilled by HealthPort, and Saint Francis was only one of many medical providers who contracted with HealthPort for this purpose.  The Court of Appeal disagreed with the trial court's conclusion that this presented an impediment to class certification.  Slip op. at 20-22. The Court held that certification is proper even if some class members may have a claim against one, but not all, named defendants, noting that these were the facts of one of the Supreme Court's leading class certification precedents, Vasquez v. Superior Court, 4 Cal.3d 800 (1971).  Nicodemus, slip op. at 21 (citing Vasquez, 4 Cal.3d at 805, 810-11, 815).  The Court also rejected the argument that the plaintiff was obligated to join all the other medical providers who used HealthPort, as well as the argument that Saint Francis risked being held responsible for the wrongdoing of those other providers.  Id. at 22.

(I filed a publication request on behalf of CAOC in this case.)

"Ninth Circuit Uneasy About a Higher Bar for 'Ascertainability'"

Yesterday, the Recorder had an article (subscription) about Monday's oral argument in In re ConAgra Foods, a false advertising case alleging that the defendant mislabeled its Wesson Oil products as "100% Natural."  The district court found the classes ascertainable in a lengthy order about eighteen months ago.  In re ConAgra Foods, Inc., 90 F.Supp.3d 919 (C.D. Cal. 2015).  On appeal, the defendant is urging the Ninth Circuit to adopt the Third Circuit's truncated view of "ascertainability" set forth in in Carrera v. Bayer Corp., 727 F. 3d 300 (3d Cir. 2013).

According to the Recorder article, the panel's comments suggested skepticism of Carrera's heightened approach to ascertainability, which the Seventh Circuit considered and rejected in Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015).   It will be interesting to see what the Ninth Circuit does, although I would be very surprised if it were to adopt Carrera's reasoning.

New Ninth Circuit class certification opinion: Ruiz Torres v. Mercer Canyons Inc.

I hope everyone had a restful Labor Day weekend.  Last week, in Ruiz Torres v. Mercer Canyons Inc., ___ F.3d ___ (9th Cir. Aug. 31, 2016), the Ninth Circuit affirmed an order granting class certification of wage claims brought by domestic farm workers. 

Among other things, the defendant argued that the common questions identified by the district court for purposes of Rule 23(a) were phantom, non-questions because they misconstrued the governing legal standard.  Slip op. at 10-12. The Ninth Circuit declined the defendant's invitation to resolve these merits arguments (which the defendant had also raised in an unsuccessful, pre-certification summary judgment motion), reconfirming the rule that "we consider merits questions at the class certification stage only to the extent they are relevant to whether Rule 23 requirements have been met."  Id. at 10.

The court also rejected the defendant's arguments concerning predominance (id. at 13-17), as well as the assertion that a class cannot not be certified if it includes both injured and non-injured members (id. at 17-23).  As to the latter point:

Mercer’s statement is inaccurate, as even a well defined class may inevitably contain some individuals who have suffered no harm as a result of a defendant’s unlawful conduct. See Newberg on Class Actions § 2:3; Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 823 (7th Cir. 2012) (“[S]ome class members’ claims will fail on the merits if and when damages are decided, a fact generally irrelevant to the district court’s decision on class certification.”).

Id. at 17.  (See this blog post for a short discussion of Messner.) 

Elaborating on this point, the court distinguished Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir. 2012), which also involved a class comprised of assertedly injured and non-injured members:

Mercer’s claim that the presence of certain “non-injured” individuals within the Inaccurate Information class defeats predominance is also mistaken. Empirically, Mercer contends that the class is too broad because it includes a subset of people exposed to—yet ultimately not harmed by—a policy of non-disclosure. This merely highlights the possibility that an injurious course of conduct may sometimes fail to cause injury to certain class members. However, it fails to reveal a flaw that may defeat predominance, such as the existence of large numbers of class members who were never exposed to the challenged conduct to begin with. See Mazza v. Am. Honda Motor Co., 666 F.3d 581, 596 (9th Cir. 2012); see also Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1068–69 (9th Cir. 2014).

....

This stands in contrast to the situation in Mazza, where many class members were not injured by virtue of the fact that they “were never exposed to the allegedly misleading advertisements.” 666 F.3d at 597. In Mazza, the defendant subjected only a small segment of an expansive class of car buyers to misleading material as part of a “very limited” advertising campaign. Id. at 595. Under those circumstances, we found that Rule 23 predominance was defeated, since “it was unreasonable to assume that all class members purchasing cars had seen the potentially misleading ads.” Id. at 596. That is not the situation here, where the existence of a common policy or practice, if proven, is evidence that the class as a whole was exposed to purportedly misleading omissions about H-2A jobs.

Ruiz Torres, slip op. at 17-19 (footnote omitted; hyperlinks added).  I think this analysis, and this means of distinguishing Mazza and Berger, easily can be carried over into class actions involving UCL and CLRA claims.  See this post for my original discussion of Mazza, and this post for my original discussion of Berger.

The opinion goes on to discuss a number of other class certification issues, including typicality.  It is worth a full read. 

Judicial Conference Committee on Rules of Practice and Procedure proposed amendments to Rule 23

This month, the Judicial Conference Committee on Rules of Practice and Procedure published a preliminary draft of proposed amendments to Federal Rule of Civil Procedure 23, governing class actions.  The proposed changes to Rule 23, and the proposed Committee Note, appear at pp. 211-232 of the pdf file. 

To my eye, most of the changes do nothing more than codify what is already standard class action practice and procedure.  Only one of the changes stands out.  Proposed amended Rule 23(e)(5)(B) would require court approval of any payment (or other "consideration") to an objector (or objector's counsel) to drop the objection.  This would weaken professional objectors' leverage and perhaps deter frivolous objections. 

Last week, the National Law Journal had an article (subscription) on this proposed amendment:

Many practitioners say they see the rules change as a means of curbing what they consider to be an abuse of the class action settlement process.

"What's new about that proposal is it basically says that an objector can't be paid off to drop their objection without approval by the district court," said Leslie Brueckner, senior attorney at Public Justice. "That could have a big impact because it could effectively halt the problem of so-called 'professional objectors,' who basically hold up class action settlements for their own pecuniary gain, by basically exposing that kind of practice to the light of day."

(Hyperlink added.)  Comments on the proposed rule changes (which include changes to other provisions besides Rule 23) are due on February 15, 2017.

Recent Ninth Circuit class certification opinion: Moyle v. Liberty Mutual Retirement Benefit Plan

In Moyle v. Liberty Mutual Retirement Benefit Plan, 823 F.3d 948 (9th Cir. May 20, 2016), the Ninth Circuit affirmed both class certification and the judgment in an action against an ERISA employee benefit plan.

The case asserted a series of claims arising out of alleged misstatements in the summary plan description.  Id. at 956.  The district court and the Ninth Circuit both rejected the argument that individualized proof of reliance was necessary, or that it precluded class certification: 

[W]e affirm the district court on the ground that where the defendant's representations were allegedly made on a uniform and classwide basis, individual issues of reliance do not preclude class certification. See Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir. 1992) (“We emphasize that the defense of non-reliance is not a basis for denial of class certification.”). Therefore, the district court correctly held that Appellants met the commonality and typicality requirements.

Id. at 964-65.  The Ninth Circuit also held that common questions predominated, and that class certification was proper even though "some [class members potentially] would receive relief while others would not."  Id. at 965.

On the merits, however, the Ninth Circuit affirmed summary judgment in the defendant's favor on all but one claim, holding that reliance, classwide or otherwise, had not been proven.  Id. at 962-64.  The upshot, therefore, is that the class members are bound by this judgment. 

Merits determination at class certification stage: Palacio v. Jan & Gail's Care Homes, Inc.

I'm catching up on opinions of interest handed down during my blogging hiatus.  Here's a decision from last December.

In Palacio v. Jan & Gail's Care Homes, Inc., 242 Cal.App.4th 1133 (Dec. 7, 2015), a wage and hour case, the trial court denied class certification after holding that the plaintiff had not proven a uniform unlawful policy -- because the alleged policy was not unlawful.  Id. at 1137.  The Court of Appeal affirmed this merits determination and the ensuing order denying class certification.  Id. at 1138. 

The opinion does not mention the long-established general rule that merits questions should not be considered at the certification stage, and that courts should instead "assum[e] for purposes of the certification motion that any claims have merit."  Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004, 1023 (2012).  Evidently, the plaintiffs did not raise this argument on appeal, perhaps for strategic reasons.  Sometimes, if you're going to lose your case on the merits, it's better to find that out early.

The merits question considered by the Court of Appeal involved employees of a 24-hour residential care facility governed by Wage Order 5.  Under paragraph 11(E), such facilities may require on-duty meal periods if certain conditions are met, but these facilities need not also comply with paragraph 11(A), a "general provision" that governs agreed on-duty meal periods, not required ones.  Palacio, 242 Cal.App.4th at 1138-41.

Recent decision affirms denial of class certification: Schermer v. Tatum

Earlier this year, in Schermer v. Tatum, 245 Cal.App.4th 912 (Mar. 18, 2016), the Court of Appeal (Fourth Appellate District, Division One) affirmed the trial court's order sustaining the defendants' demurrer to the class allegations without leave to amend. The action alleged UCL and other violations in connection with various aspects of defendants' operation of eighteen separate mobilehome parks.

In a fact-heavy discussion, the Court of Appeal determined that common questions did not predominate.  Id. at 922-30.

New class certification opinion: Schmidt v. California Highway Patrol

In Schmidt v. California Highway Patrol, ___ Cal.App.4th ___ (Aug. 1, 2016), the Court of Appeal (Second Appellate District, Division Six) affirmed an order granting class certification (slip op. at 8-9), as well as the ensuing judgment (id. at 10-11) and attorneys' fees award under Code of Civil Procedure section 1021.5 (id. at 11-12).

The opinion (briefly) discusses the elements of class certification, mainly ascertainability, numerosity and typicality.  A class consisting of "the vast majority" of 187 persons was sufficiently numerous; the class members' identities need not be proven at the certification stage; and "[t]ypicality refers to the nature of the claim of the class representative, not the specific facts from which the claim arose.  (Seastrom v. Neways, Inc. (2007) 149 Cal.App.4th 1496, 1502.)"  Slip op. at 9.

New Ninth Circuit class certification opinion: Vaquero v. Ashley Furniture Industries, Inc.

In June, the Ninth Circuit handed down a wonderful new class certification opinion, Vaquero v. Ashley Furniture Industries, Inc., ___ F.3d ___ (9th Cir. Jun. 8, 2016). 

Vaquero is a wage and hour class action alleging that the defendant, who paid its sales associates on commission, failed to pay for time the associates spent working on tasks unrelated to sales.  Citing Dukes, the Court held that those allegations presented common questions: 

[T]he complaint contains a “common contention” that easily “is capable of classwide resolution”: it is one type of injury allegedly inflicted by one actor in violation of one legal norm against a relatively small number of class members who all generally performed the same work. Dukes, 564 U.S. at 350. The district court permissibly concluded that Vaquero had pleaded a common injury capable of class-wide resolution.

Slip op. at 7.

The court also reconfirmed that even in the post-Comcast world, under the Ninth Circuit's own precedents, including Yokoyama, Leyva, Jimenez, and Pulaski & Middleman, variations in damages do not defeat class certification:

Our precedent is well settled on this point. In Yokoyama, we held that “damage calculations alone cannot defeat certification.” 594 F.3d at 1094. That is, the “amount of damages is invariably an individual question and does not defeat class action treatment.” Id. (quoting Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975)). We have repeatedly confirmed the Yokoyama holding that the need for individualized findings as to the amount of damages does not defeat class certification. See Leyva, 716 F.3d at 514 (holding that “the presence of individualized damages cannot, by itself, defeat class certification under Rule 23(b)(3)”); Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1167 (9th Cir. 2014) (holding that Leyva was the “controlling case,” and that individual damages calculations did not defeat class certification), cert. denied, 135 S. Ct. 2835 (2015). Indeed, “Yokoyama remains the law of this court, even after Comcast.” Pulaski & Middleman, 802 F.3d at 988.

Slip op. at 9.  (Notably, on June 6, 2016, the U.S. Supreme Court denied the cert. petition in Pulaski & Middleman.)

The opinion also considers the U.S. Supreme Court's decision, handed down in March, in Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036 (2016).  In Tyson Foods, the Supreme Court "declined to establish" a "'broad rule against the use in class actions of what the parties call representative evidence.'"  Vaquero, slip op. at 10 (quoting Tyson Foods, 136 S.Ct. at 1046).  Instead, the Supreme Court "held that class certification was appropriate even though class members might have to prove liability and damages individually."  Id. (citing Tyson Foods, 136 S.Ct. at 1046) (emphasis in original).  The opinion goes on to cite claim forms and special master proceedings as examples of management tools that would not preclude assertion of individual defenses, and to note that Tyson Foods permits use of representative sampling in a proper case.  Id. at 11-12.

Congratulations to my friends Michael Rubin, Kevin Barnes, Gregg Lander, and Michael Singer on this great result.

You know, after Dukes, and again after Comcast, I was very concerned that those opinions would be misconstrued in the lower courts and employed as tools to deny class certification far more often than we had previously seen.  These fears were unfounded, at least within the Ninth Circuit. 

U.S. Supreme Court limits "pick off" attempts in federal court: Campbell-Ewald v. Gomez

In Campbell-Ewald Co. v. Gomez, ___ S.Ct. ___ (2016), the U.S. Supreme Court held that the defendant may not "pick off" the class representative by offering full individual relief under Rule 68.  If the plaintiff rejects the offer, the case is not moot.  Slip op. at 6-8. 

In so holding, the Court adopted the analysis of Justice Kagan's dissent in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013) (discussed in this blog post). 

In California, this rule was established more than forty years ago.  See La Sala v. American Sav. & Loan Assn., 5 Cal.3d 864 (1971).  The Ninth Circuit reached the same conclusion back in 2011, and reiterated it in 2013, after Genesis Healthcare.  See Diaz v. First American Home Buyers Protection Corp., 732 F.3d 948 (9th Cir. 2013) (discussed here); Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011) (discussed here). 

The Ninth Circuit, bound by the two latter decisions, rejected the pick-off attempt in Campbell Ewald itself.  See Gomez v. Campbell-Ewald Co., 768 F.3d 871, 874-75 (9th Cir. 2014) (discussed here). 

New class certification opinion: Alberts v. Aurora Behavioral Health Care

In Alberts v. Aurora Behavioral Health Care, ___ Cal.App.4th ___ (Oct. 16, 2015), the Court of Appeal (Second Appellate District, Division One) reversed an order denying class certification of meal period and rest break claims. 

Among other holdings, the Court reconfirmed that employers may not avoid class certification (or liability) merely by adopting a written policy that may be facially compliant with the law:

Even if we assume (as the trial court did) that the Hospital’s written meal and rest break policy is “facially legal” and its facial legality is undisputed by plaintiffs, the mere existence of a lawful break policy will not defeat class certification in the face of actual contravening policies and practices that, as a practical matter, undermine the written policy and do not permit breaks.  (See, e.g., Brinker, supra,53 Cal.4th at p. 1040 [an “employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks”]; Jaimez, supra, 181 Cal.App.4th at p. 1303; [Ibid.; Boyd v. Bank of America Corp. (2014) 300 F.R.D. 431, 442); cf. Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 963 [reversing summary judgment for employer based, in part, on evidence that truck drivers “felt pressured” not to take rest breaks, and management knew some drivers were not taking breaks].)

Nor was the court correct to require, at the certification stage, that plaintiffs demonstrate a “universal practice” on the part of management to deny nursing staff the benefit of the Hospital’s written break policy.  The trial court failed to analyze the proper question––whether plaintiffs had articulated a theory susceptible to common resolution.  (Benton v. Telecom Network Specialists, Inc. (2013) 220 Cal.App.4th 701, 726 (Benton) [“the proper inquiry is ‘whether the theory of recovery advanced by the plaintiff is likely to prove amendable to class treatment’”]; Sav-On, supra,34 Cal.4th at p. 327.)  Instead, it asked whether the evidence was sufficient to establish plaintiffs’ ultimate right to recovery.  At the certification stage, plaintiffs need only establish that the question of whether the Hospital’s practices or procedures resulted in the denial of lawful breaks can be determined on a class-wide basis. Instead of undertaking this analysis, the trial court held that plaintiffs had to prove class members missed all breaks to which they were entitled.  This is an incorrect standard for certification that, as other courts have also found, if correct, would prevent certification of virtually any wage and hour class.  (See, e.g., Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1207 (Bufil) [“a class is not inappropriate merely because each member at some point may be required to make an individual showing as to eligibility for recovery”]); Benton, at pp. 725–728 [reversing order denying certification despite evidence that some putative class members received breaks].)

Slip op. at 18-19 (footnote omitted).

The opinion also addresses the use of expert statistical evidence at the class certification stage.  Id. at 22-26.

A third new Ninth Circuit opinion addresses class certification: Alcantar v. Hobart Service

The Ninth Circuit has issued quite a few new class certification opinions recently.  In a third recent opinion, Alcantar v. Hobart Service, ___ F.3d ___ (9th Cir. Sept. 3, 2015), the Court reversed in part an order denying class certification in a wage and hour action.   The action alleged that the defendant violated the Labor Code and the UCL by not compensating employees for "the time they spent commuting in [the employer]’s service vehicles from their homes to their job sites and from those job sites back home."  Slip op. at 4.

Among other things, the Court held that the district court erred by requiring, as a prerequisite to certification, proof that the defendant maintained a "uniform policy requiring technicians to commute in the service vehicles."  Id. at 12. Whether such a policy exists is a merits question, and the district court improperly reached it at the certification stage.  Id. at 12-13 (citing Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S.Ct. 1184, 1191, 1197 (2013)). 

The opinion upheld the trial court's order denying class certification of related meal period and rest break claims.  Citing no authority other than Rule 23, the opinion states that the denial was within the district court's discretion "because questions as to why service technicians missed their meal and rest breaks, whether because of their employer’s failure to provide them or their own choice to forgo them, would predominate over questions common to the class."  Slip op. at 13-14.  This conclusion, unfortunately, is wholly inconsistent with the legal standard articulated by the California Supreme Court for meal periods in Brinker.  For citations to opinions that correctly apply Brinker, see this link. 

In the next section of the opinion, the Court applied the Morillion "control" test in holding that the trial court erred by granting summary judgment in the defendant's favor on the commute time claim.  Slip op. at 14-18.  One justice dissented from this portion of the opinion.  Id. at 22-31.  In the final section, the Court held that the trial court properly granted summary judgment in defendant's favor on the derivative PAGA claim because the PAGA notice letter was inadequate.  Id. at 19-22.

Another recent Ninth Circuit class certification opinion: Bobbitt v. Milberg LLP

In Bobbitt v. Milberg LLP, ___ F.3d ___ (9th Cir. Sept. 10, 2015), the Ninth Circuit reversed an order denying class certification of legal malpractice claims against several law firms and attorneys.  The panel held that Arizona law governed the claims, and that the district court erred in holding that different states' laws applied depending on each class member's domicile.  Slip op. at 8-12.

New Ninth Circuit class certification opinion: Pulaski & Middleman, LLC v. Google, Inc.

In Pulaski & Middleman, LLC v. Google, Inc., ___ F.3d ___ (9th Cir. Sept. 21, 2015), the Ninth Circuit reversed an order denying class certification of UCL and FAL claims.

Consistent with its earlier opinions Stearns and Yokoyama, as well as the California Supreme Court's Tobacco II opinion, the Court held that variations in the amount of recoverable restitution do not defeat class certification.  Slip op. at 10-17 (citing Stearns v. Ticketmaster Corp., 655 F.3d 1013 (9th Cir. 2011); Yokoyama v. Midland Nat'l Life Ins. Co., 594 F.3d 1087 (9th Cir. 2010); In re Tobacco II Cases, 46 Cal.4th 298 (2009)). 

Rather, "restitution is available on a classwide basis once the class representative makes the threshold showing of liability under the UCL and FAL."  Id. at 14.  That "threshold showing" requires proof only that "members of the public are likely to be deceived" by the defendant's conduct.  Id. at 11 (quoting Tobacco II, 46 Cal.4th at 312).

The Court also held (as it had done previously in Leyva and Jimenez) that "differences in damage calculations do not defeat class certification," even after the U.S. Supreme Court's Comcast opinion.  Slip op. at 17 (citing Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013); Jimenez v. Allstate Ins. Co., 765 F.3d 1161 (9th Cir. 2014); Leyva v. Medline Industries, Inc., 716 F.3d 510 (9th Cir. 2013)).

Finally, the Court held that the plaintiffs' proposed method for calculating restitution was not "arbitrary."  Slip op. at 18-20.  This section of the opinion contains an interesting discussion of the different possible ways to measure restitution under the UCL, and considers both Colgan v. Leatherman Tool Group, 135 Cal.App.4th 663 (2006) (see this blog post) and Kwikset Corp. v. Superior Court (Benson), 51 Cal.4th 310 (2011).

"Will Uber drivers get class-action status for employment case?"

The motion for class certification in the Uber misclassification case made the San Francisco Chronicle. The motion was argued last Thursday before U.S. District Judge Edward Chen. 

The article relates a few interesting exchanges that took place during the hearing:

Chen appeared skeptical of Uber’s arguments at the hearing’s outset. “Isn’t it contradictory that Uber says every single driver is an independent contractor and yet also says they are dramatically different from one another and thus can’t be certified as a class?” he asked.

....

Chen also questioned whether the plaintiff drivers had much backing among other drivers. “There’s nothing in the record to show mass support for the position of your three named plaintiffs,” he said to the drivers’ attorney, Shannon Liss-Riordan.

The law is what matters, not drivers’ desires, she said. “This isn’t a popularity contest,” she said. “It’s not a question of what people want.”

(Hyperlink added.)  Whenever I hear that argument, in state court at least, I always cite Richmond v. Dart Industries, Inc., 29 Cal.3d 462 (1981), which explains that if someone doesn't want to participate in the case, they can choose to opt out.  Widespread affirmative support is not an element of class certification that the plaintiffs must prove. 

New class certification opinion: Safeway, Inc. v. Superior Court (Esparza)

In Safeway, Inc. v. Superior Court (Esparza), ___ Cal.App.4th ___ (Jul. 22, 2015), the Court of Appeal (Second Appellate District, Division Four) refused to disturb an order granting class certification of a UCL claim predicated on violations of Labor Code section 226.7, which requires employers to pay premium wages for missed meal periods.  

The trial court granted class certification, and the Court of Appeal affirmed, even though the defendant filed more than 2,000 class member declarations in an effort to oppose certification.  Slip op. at 12.  (Just imagine the number of hours it took to gather those.  Probably equivalent to an attorney billing full time for a couple of years.)

The Court of Appeal reached the merits of the UCL claim to some degree, finding it necessary in order "to adjudicate the propriety of a class action."  Id. at 15 (citation omitted).  The Court concluded:

[A] UCL claim may be predicated on a practice of not paying premium wages for missed, shortened, or delayed meal breaks attributable to the employer’s instructions or undue pressure, and unaccompanied by a suitable employee waiver or agreement.  (See Cortez, supra, 23 Cal.4th at p. 177 [under UCL, employer’s failure to pay earned wages was an unlawful business practice]; Sullivan v. Oracle Corp. (2011) 51 Cal.4th 1191, 1206 [under UCL, California employer’s failure to pay overtime wages to out-of-state employees was an unlawful business practice]; Tomlinson v. Indymac Bank F.S.B (2005) 359 F.Supp.2d 891, 895-897 [employer’s failure to pay meal break premium wages was an unlawful business practice under the UCL].)

Slip op. at 18.  The Court also held that the conduct did not fall within any Cel-Tech safe harbor.  Id. at 19-20.

As for whether this UCL claim was suitable for class treatment, the Court concluded it was, relying heavily on Justice Werdegar's concurrence in Brinker.  Slip op. at 23-25.  Most notably, the Court adopted the presumption, recognized by Justices Werdegar and Liu, that if the employer's records show no meal period taken when one was required, this creates a rebuttable presumption that a violation occurred:

Here, establishing that a significant number of employees accrued unpaid meal break premium wages is capable of common proof, in view of petitioners’ time punch data and the presumption identified by Justice Werdegar.  There is no dispute that the applicable wage order is Wage Order 7-2001 (Cal. Code Regs., tit. 8, § 11070), which obliges employers to provide at least one 30-minute meal break for shifts of over five hours (absent a waiver available only in limited circumstances) (id., subd. (11)(A)), requires employers to record meal breaks (id., subd. (7)(A)(3)), and permits an “on duty” meal break only with the employee’s express written agreement (id., subd. (11)(C)).  The time punch data and records identified by [plaintiffs' accounting expert] are capable of raising a rebuttable presumption that a significant portion of the missed, shortened, and delayed meal breaks reflected meal break violations under section 226.7.  Because that fact potentially can be shown without consideration of an unwieldy number of individualized issues, the record shows that the facts necessary to establish liability are capable of common proof.

Slip op. at 25 (emphasis added).

The whole opinion is worth a good read. 

U.S. Supreme Court takes up two class certification cases: Tyson Foods, Inc. v. Bouaphakeo and Campbell-Ewald Co. v. Gomez

The U.S. Supreme Court recently granted cert. in two cases of interest.  And today, the Court is conferencing two others worth following because of the certification-related issues they present.

First, on June 8, 2015, the Court agreed to hear Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146.  In Tyson, a FLSA case, the Eighth Circuit affirmed the district court's denial of the defendant's motion to decertify the collective action.  Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791 (8th Cir. 2014).  The motion relied heavily on the "trial by formula" language of Dukes.  One judge found the defense arguments persuasive, and dissented.  These are the questions presented, as framed in the cert. petition:

I.   Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample.

II.   Whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.

The SCOTUSblog case page, with links to the cert. petition and other documents, is here. 

Second, on May 18, 2015, the Court took up Campbell-Ewald Co. v. Gomez, No. 14-857, which involves "pick-off" attempts.  In this case, the defendant made a full-relief settlement offer to the individual plaintiff under Rule 68 shortly after he commenced his putative class action.  The Ninth Circuit held that the plaintiffs' rejection of the offer did not render his individual claims moot, nor were the class claims moot: 

Gomez's individual claim is not moot.  Campbell-Ewald argues that “whether or not the class action here is moot,” the individual claim was mooted by Gomez's rejection of the offer. The company is mistaken. Although this issue was unsettled until recently, we have now expressly resolved the question. “[A]n unaccepted Rule 68 offer that would fully satisfy a plaintiff's claim is insufficient to render the claim moot.” Diaz v. First Am. Home Buyers Prot. Corp., 732 F.3d 948, 950 (9th Cir.2013). Because the unaccepted offer alone is “insufficient” to moot Gomez's claim, and as Campbell-Ewald identifies no alternate or additional basis for mootness, the claim is still a live controversy. 

Similarly, the putative class claims are not moot.  We have already explained that “an unaccepted Rule 68 offer of judgment—for the full amount of the named plaintiff's individual claim and made before the named plaintiff files a motion for class certification—does not moot a class action.” Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1091-92 (9th Cir.2011). Like the Pitts plaintiff, Gomez rejected the offer before he moved for class certification. Gomez's rejection therefore does not affect any class claims.   

Gomez v. Campbell-Ewald Co., 768 F.3d 871, 874-75 (9th Cir. 2014) (hyperlinks added).  The panel also held that these conclusions were fully consistent with the U.S. Supreme Court's post-Pitts opinion, Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523 (2013). 

(My prior blog posts on Diaz, Pitts and Genesis are here, here and here.)

See the SCOTUSblog case page for links to the cert. petition and other documents.  This is how the cert. petition framed the pick-off questions (there is also a third question on an unrelated substantive issue):

1.   Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim.

2.   Whether the answer to the first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified.

Finally, today the Court is conferencing two other cases of interest: Allstate Insurance Co. v. Jimenez, No. 14-910, and Dow Chemical Co. v. Industrial Polymers, Inc., No. 14-1091.  If cert. is granted or denied, it would normally be announced by Monday, or alternatively, either or both cases may be relisted and considered again at a later conference. 

In Allstate, a misclassification case on behalf of insurance adjusters, the Ninth Circuit affirmed the district court's order granting class certification of wage and hour claims brought under California law.  Jimenez v. Allstate Ins. Co., 765 F.3d 1161 (9th Cir. 2014).  The opinion discusses Dukes, Leyva, and, notably, Brinker, in concluding that class certification was properly granted under Rule 23.  (For more on Leyva, see this blog post.)  (I did not previously post on Jimenez, but one thing I found notable about it was its reliance on state-law framing of the certification questions by citing Brinker.)

In Dow Chemical, an antitrust case, the Tenth Circuit affirmed the district court's order granting the direct purchasers' class certification motion.  In re Urethane Antitrust Litigation, 768 F.3d 1245 (10th Cir. 2014).   The opinion contains a lengthy analysis of the U.S. Supreme Court's Comcast opinion. (For more on Comcast, see this blog post.)

Supreme Court grants review in class certification case: Augustus v. ABM Security Services

Last week, the California Supreme Court granted review in a wage and hour class action, Augustus v. ABM Security Services, No. S224853. 

As explained in my original blog post on this case, the Court of Appeal (Second Appellate District, Division One) affirmed the trial court's order granting class certification, but reversed the judgment on the merits, holding that the defendant employer did not violate California's rest break laws.  Augustus v. ABM Security Services, Inc., 233 Cal.App.4th 1065 (2014), review granted. 

The latter ruling is what sparked the Supreme Court's interest. This is the statement of issues on review, according to the docket:

This case presents the following issues: (1) Do Labor Code, § 226.7, and Industrial Welfare Commission wage order No. 4-2001 require that employees be relieved of all duties during rest breaks? (2) Are security guards who remain on call during rest breaks performing work during that time under the analysis of Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833?

Nevertheless, I would imagine that the eventual opinion will consider the class certification aspects of the case, given the procedural posture presented to the Court of Appeal. 

New class certification opinion: Mies v. Sephora U.S.A., Inc.

In Mies v. Sephora U.S.A., Inc., ___ Cal.App.4th ___ (Feb. 2, 2015; pub. ord. Feb. 26, 2015), the Court of Appeal (First Appellate District, Division One) affirmed an order denying class certification in an employee misclassification case. 

The Court's analysis relied heavily on Duran.  See slip op. at 11-14. The opinion also includes this footnote of interest:

This is not a case like Williams v. Superior Court (2013) 221 Cal.App.4th 1353, 1358, 1369–1370 or Jones v. Farmers Ins. Exchange (2013) 221 Cal.App.4th 986, 996, in which the class disputes (which were not misclassification disputes) centered on whether application of a uniform policy (no compensation for time before arrival at first worksite; no compensation for at home “computer sync time”) was lawful.  If unlawful, some class members would be damaged and some might not be, but the employer would face liability as to each.  Here, the question is not the legality of Sephora’s operational procedures.  Instead, the parties dispute the evidentiary value of the policies—Mies claims they demonstrate total uniformity in the tasks Specialists perform and the manner in which they perform them.  Sephora disagrees, and points to the varied declarations of Sephora employees, evidence the trial court credited.  Thus, unlike in Williams and Jones, the policies here are just a piece of a far more complicated puzzle and do not, in light of the trial court’s factual determinations, provide a means of readily determining liability issues for the entire proposed class.  The same rationale distinguishes Benton v. Telecom Network Specialists, Inc. (2013) 220 Cal.App.4th 701, 726, in which the issue was whether a policy regarding meal and rest breaks was unlawful on its face as to all class members.

Id. at 19 n.15.  And the opinion had this to say concerning proffered statistical evidence:

Finally, the trial court did not err in rejecting Mies’ proposal to use statistical evidence to prove liability with respect to absent class members.   Mies’ proposal was undeveloped and unsubstantiated, and the court was not required to accept her unjustified assurances regarding what she could prove, especially given the declaration of Sephora’s expert stating the use of sampling to determine liability with respect to absent class members would not work.  (Duran, supra, 59 Cal.4th at pp. 31–32 [“a statistical plan for managing individual issues must be conducted with sufficient rigor”]; Dailey, supra, 214 Cal.App.4th at pp. 998–999 [“a mere proposal for statistical sampling” not “an adequate evidentiary substitute for demonstrating the requisite commonality”], italics omitted; cf. Mora v. Big Lots Stores, Inc. (2011) 194 Cal.App.4th 496, 510 [“Dr. Hoffman had not yet conducted a survey and his declaration describing the proper method for designing and implementing a scientific survey did nothing to refute the evidence presented by Big Lots that it did not operate its stores or supervise its managers in a uniform and standardized manner.”].)

Id. at 20-21 (footnote omitted).

Supreme Court depublishes another post-Brinker opinion: In re Walgreen Co. Overtime Cases

Last week, on February 18, 2015, the Supreme Court depublished the Court of Appeal's opinion in In re Walgreen Co. Overtime Cases, 231 Cal.App.4th 437 (2014).  The opinion is no longer citable as a precedent.

In Walgreen, the Court of Appeal (Second Appellate District, Division One) affirmed the trial court's order denying class certification of meal period claims.  In so doing, the Court discussed the substantive meal period standards adopted in Brinker, but did so in a manner that the Supreme Court apparently considered inconsistent with its Brinker opinion.  Depublication requests were filed by both CELA and CAOC.

This development is just as important as the Supreme Court's orders, in late 2012 and early 2013, depublishing three other post-Brinker opinions.  Those orders are discussed in these blog posts.

New post-Brinker class certification opinion: Gerard v. Orange Coast Mem. Med. Ctr.

In Gerard v. Orange Coast Memorial Medical Center, ___ Cal. App.4th ___ (Feb. 10, 2015), the Court of Appeal (Fourth Appellate District, Division Three) reversed the trial court's order granting the defendant's preemptive motion to deny class certification.

Such motions are discussed here, as well as in my article, “A Tool for Mischief: Preemptive Defense Motions Under BCBG Overtime Cases to Reject Class Certification,” CAOC Forum, January/February 2009 (with Kevin K. Green) (CAOC members-only link).

The trial court granted the defense motion after concluding that the named plaintiffs "failed to show that they have any claim against the Defendant."  Slip op. at 4.  In its opinion, the Court of Appeal focused primarily on a substantive legal question involving second meal periods, which, it held, the trial court had incorrectly resolved in the defendant's favor.  Id. at 5-17.  On class certification, the Court of Appeal said this:

[Plaintiffs] argue the court improperly denied class certification for several reasons.  Among other things they cite as an abuse of discretion the court’s community interest analysis based on its erroneous “legal assumption that ‘liability is not established by an illegal policy.’” Plaintiffs contend that assumption is contrary to the holding of Brinker, supra, 53 Cal.4th at page 1033, and Faulkinbury v. Boyd & Associates, Inc. (2013) 216 Cal.App.4th 220, 232.  We conclude this argument has merit.

Brinker summarized the applicable standard of review as follows:  “On review of a class certification order, an appellate court’s inquiry is narrowly circumscribed.  ‘The decision to certify a class rests squarely within the discretion of the trial court, and we afford that decision great deference on appeal, reversing only for a manifest abuse of discretion: “Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification.”  [Citation.]  A certification order generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal assumptions.  [Citations.]’  [Citations.]”  (Brinker, supra, 53 Cal.4th at p. 1022.)

The central truth of the court’s nearly two-page order denying class certification is set forth near the beginning where the court explained:  “One of the most basic requirements for class certification is that the proposed Representative Plaintiffs show that they have a prima facie claim.  For, if Plaintiffs do not have a claim there can be no typicality or commonality.  Here, the proposed Representative Plaintiffs have failed to show that they have any claim against the Defendant.”

As we have explained above, plaintiffs have shown their invalid second meal period policy and waiver theory is potentially viable, and plaintiffs have proffered substantial evidence hospital violated the governing law by failing to provide second meal periods or premium pay in lieu thereof on shifts longer than 12 hours as required.  The court’s contrary conclusions rest on improper criteria and assumptions that are erroneous as a matter of law.  Consequently, we conclude the court abused its discretion by denying [plaintiffs] class certification on the grounds plaintiffs failed to show they have any claim.  We express no opinion on the other stated grounds for denial of class certification but instead direct the court to consider them further on remand.

Id. at 20-21.  Another reason for reversing the order would be that the trial court improperly reached and resolved a substantive merits question at the class certification stage, which Brinker held should be avoided unless such issues are "enmeshed" with the elements of certification, or unless resolution of such issues is "essential" or "necessary" to the certification decision.  See Brinker, 53 Cal.4th at 1023, 1025.  As a general matter, plaintiffs are not required to prove that a challenged policy is in fact unlawful in order to obtain class certification. 

Supreme Court grants review in case of interest: Dynamex Operations West v. Superior Court (Lee)

Last week, the Supreme Court granted the defendant's petition for review in Dynamex Operations West v. Superior Court, No. S222732.  In that case, the Court of Appeal (Second Appellate District, Division Seven) vacated, in part, the trial court's order denying the defendant's motion to decertify certain wage and hour claims.  Dynamex Operations West, Inc. v. Superior Court, 230 Cal.App.4th 718 (2014), review granted. 

The petition for review focused on substantive wage and hour issues, and this is the question for review, according to the docket:

In a wage and hour class action involving claims that the plaintiffs were misclassified as independent contractors, may a class be certified based on the Industrial Welfare Commission definition of employee as construed in Martinez v. Combs (2010) 49 Cal.4th 35, or should the common law test for distinguishing between employees and independent contractors discussed in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 control?

In answering this question, the Supreme Court may well have an opportunity to expand on its three most recent class certification opinions, namely, Brinker, Duran, and Ayala.  It's hard to predict how far the Court might delve into class certification issues when it ultimately decides this case, which could be two or three years from now.  

This litigation has already resulted in one published opinion on class certification issues.  In Lee v. Dynamex, Inc., 166 Cal.App.4th 1325 (2008), the Court of Appeal reversed the trial court's order denying class certification.  My post on that opinion is here. 

Many thanks to the blog reader who wrote to advise me of the grant of review.

New class certification opinion: Augustus v. ABM Security Services, Inc. (Updated)

Last Thursday, the Court of Appeal (Second Appellate District, Division One) published an opinion primarily addressing California's rest break laws, but also touching on class certification.  Augustus v. ABM Security Services, Inc., ___ Cal.App.4th ___ (Dec. 31, 2014; pub. ord. Jan. 29, 2015).

In Augustus, the Court of Appeal reversed summary judgment in the plaintiffs' favor on the rest break claim, but affirmed the order granting class certification of the claim.  Slip op. at 17-19.  The latter part of the opinion follows Brinker's holding that cases challenging the legality of a uniform policy are properly certified for class treatment, even if the policy may have been applied in a non-uniform manner:   

From [defendant]’s concession and [the manager]’s testimony the trial court could reasonably conclude ABM possessed a uniform policy of requiring its security guards to remain on call during their rest breaks.  Indeed, ABM never denied this policy below.  Whether such a policy is permissible is an issue “eminently suited for class treatment.”  (Brinker, supra, 53 Cal.4th at p. 1033.)

ABM cites to substantial evidence indicating the policy was not uniformly applied, but such evidence would go only to the issue of damages.  The trial court could reasonably conclude the necessity of individual proof of damages would not destroy the community of interest.  (Faulkinbury v. Boyd & Associates, Inc., supra, 216 Cal.App.4th at p. 237.)

Slip op. at 18-19.  The part of the opinion is consistent with other post-Brinker opinions, such as Jones and Williams. 

UPDATE:  For a detailed discussion of the rest break issue considered in the Augustus opinion, see this post by Glenn Danas from the blog Impact Litigation Journal.

Post-Brinker class certification opinion of note: Martinez v. Joe's Crab Shack Holdings (Updated)

Almost a year ago, I put together a list of twelve post-Brinker class certification opinions of note in wage and hour cases.  One of the opinions was Martinez v. Joe’s Crab Shack Holdings, 221 Cal.App.4th 1148 (2013), in which the Supreme Court granted review in early 2014. 

In the original Martinez opinion, filed in December 2013, the Court of Appeal (Second Appellate District, Division Seven) reversed the trial court's order denying class certification in an employee misclassification case.  Here is my blog post on the opinion. 

In July 2014, the Supreme Court transferred the case back to the Court of Appeal with directions to reconsider the matter in light of Duran v. U.S. Bank National Assn., 59 Cal.4th 1 (2014). 

In November 2014, the Court of Appeal handed down a new opinion, in which it once again reversed the order denying class certification.  Martinez v. Joe's Crab Shack Holdings, 231 Cal.App.4th 362 (2014).  The opinion discusses both Duran and Ayala v. Antelope Valley Newspapers, Inc., 59 Cal.4th 522 (2014), decided in late June 2014.

A petition for rehearing was denied in early December 2014, and a petition for review was filed in late December 2014. Here's the link to the Supreme Court's docket (No. S223373).  The deadline to grant or deny review will fall in late February 2015 (absent any extensions of time).  UPDATE: On February 11, 2015, the petition for review was denied. 

In related news, in September 2014, the Supreme Court declined to review the Court of Appeal's opinion in Hall v. Rite Aid Corp., 226 Cal.App.4th 278 (2014), a thirteenth post-Brinker opinion of note. In Hall, the Court of Appeal (Fourth Appellate District, Division One) reversed the trial court's order decertifying the class in a suitable seating case. 

At some point, I intend to update my list of post-Brinker opinions to include both of these developments. 

New class certification opinion: Cochran v. Schwan's Home Service, Inc.

In Cochran v. Schwan's Home Service, Inc., ___ Cal.App.4th ___ (Aug. 12, 2014), the Court of Appeal (Second Appellate District, Division Two) reversed an order denying class certification of a claim for violation of Labor Code section 2802, which relates to reimbursment of expenses. 

The opinion is short but interesting, and discusses Duran. 

Speaking of which, I'm collecting orders of California Superior Court judges construing Duran.  If you have copies of any, please forward.  I will post links to the collection once I have a few more.  Right now, I only have two, but there must be more out there.  Thanks in advance.

Recent Ninth Circuit class certification opinion: Stockwell v. City and County of San Francisco

In Stockwell v. City and County of San Francisco, 749 F.3d 1107 (9th Cir. Apr. 24, 2014), the district court denied class certification of plaintiffs' age discrimination claim under FEHA, holding that the plaintiffs had not established the existence of a common question under Rule 23(a). 

The Ninth Circuit reversed, in an opinion that contains an interesting discussion of Dukes, Amgen and Ellis.  An excerpt from the analysis: 

We conclude that the district court erred in denying class certification because of its legal error of evaluating merits questions, rather than focusing on whether the questions presented, whether meritorious or not, were common to the members of the putative class. By doing so, the district court made an error of law and relied on improper factors, thereby abusing its discretion.

....

Here, the officers have identified a single, well-enunciated, uniform policy that, allegedly, generated all the disparate impact of which they complain: the SFPD's decision to make investigative assignments using the Q–50 List instead of the Q–35 List. Each member of the putative class was on the Q–35 List. Each suffered the effects of its elimination, whatever those were.

....

The officers produced a statistical study purportedly showing a disparate impact. The district court, and the City, critiqued that study as inadequate for—among other reasons—failing to conduct a regression analysis to take account of alternative explanations, unrelated to age, for any statistical imbalance. But whatever the failings of the class's statistical analysis, they affect every class member's claims uniformly, just as the materiality issue in Amgen affected every class member uniformly. Each member of the putative class suffered the effects of eliminating the Q–35 List.   If those effects amount to a disparate impact on account of age, it will be so for all class members or for none; their claims rise and fall together.

Id. at 1114-15 (footnote omitted).  The panel remanded with directions to the district court to assess whether the other requirements of Rule 23 were satisfied.

Supreme Court to hand down class certification/ employment opinion this morning: Ayala v. Antelope Valley Newspapers

Last week, the California Supreme Court announced that this morning it would hand down its opinion in Ayala v. Antelope Valley Newspapers, No. S206874. When the opinion is posted online at approximately 10:00 a.m., it should be available at this link:

• Ayala v. Antelope Valley Newspapers, ___ Cal.4th ___ (Jun. 30, 2014)

This class action was brought by newspaper carriers who were classified as independent contractors rather than employees.  The trial court denied class certification, and the Court of Appeal reversed as to most of the claims.  Ayala v. Antelope Valley Newspapers, Inc., 210 Cal.App.4th 77 (2012), review granted.

It originally appeared that the Supreme Court was interested in the class certification issues presented in the case, but the oral argument reportedly focused entirely on the substantive question of whether the workers were properly classified.  It will be interesting to see the opinion this morning. 

"Class actions are thriving after Brinker"

This article appeared in the Daily Journal a few weeks ago, on May 8, 2014, while I was immersed in several briefing projects.  I was pleasantly surprised to see my photo on the front page, and I received a number of kind congratulatory emails from friends and acquaintances. 

An excerpt:

[P]laintiffs' attorneys such as Kimberly Kralowec of The Kralowec Law Group say the pendulum of appellate decisions has swung in their clients' direction. 

Kralowec argued Brinker before the Court of Appeal and ... before the state Supreme Court ....  She said appellate decisions favor class certification if there is a blaket policy on employee breaks that doesn't square with the law.  "It doesn't matter that it may have been applied differently, affected class members differently, or not affected some plaintiffs at all," she said.

In the raft of published opinions that apply Brinker, six favored class certification, and two did not.  The state Supreme Court denied review on all of them.  What's more, the high court depublished three appellate cases that favored the defense in early 2013.

Class certification issues raised by Duran and Brinker? I can help

A lot of new briefing may be coming up in the wake of Duran as well as the post-Brinker opinions that continue to be handed down. 

I am now accepting new appellate and trial-level briefing matters. 

If you have an appeal involving UCL, wage and hour, or class certification issues, I can handle it on an hourly or a flat-fee basis.  I can also assist you with your trial-level briefing, such as class certification motions, oppositions to demurrers or motions to dismiss, and oppositions to decertification motions.  If your judge requests further briefing on the impact of Duran, I can assist with that as well.

To inquire about retaining me for your matter, please contact me at my work email address, kkralowec -at- kraloweclaw -dot- com, or call me at 415-546-6800.

For samples of my work, my Supreme Court briefs in Brinker are here; my successful depublication requests in the three defense-favorable post-Brinker cases are available at these links; and my amicus brief for CELA in Duran is here.