Twelve post-Brinker class certification opinions (Updated)

In preparation for a recent seminar, I pulled together the following list of twelve post-Brinker class certification opinions in wage and hour cases, including the three that were depublished just over a year ago: 

• Hernandez v. Chipotle Mexican Grill, 146 Cal.Rptr.3d 424 (2012), depublished 12/12/2012

• Lamps Plus Overtime Cases, 146 Cal.Rptr.3d 691 (2012), depublished 12/12/2012

• Tien v. Tenet Healthcare Corp., 147 Cal.Rptr.3d 620 (2012), depublished 1/16/2013

• Morgan v. Wet Seal, Inc., 210 Cal.App.4th 1341 (2012), review denied

• Bradley v. Networkers Int’l, LLC, 211 Cal.App.4th 1129 (2013), review denied

• Dailey v. Sears, Roebuck and Co., 214 Cal.App.4th 974 (2013), review denied

• Faulkinbury v. Boyd & Assoc., Inc., 216 Cal.App.4th 220 (2013), review denied

• Bluford v. Safeway Stores, Inc., 216 Cal.App.4th 864 (2013), review denied

• Benton v. Telecom Network Specialists, Inc., 220 Cal.App.4th 701 (2013), review denied

• Jones v. Farmers Insurance Exchange, 221 Cal.App.4th 986 (2013), review denied

• Martinez v. Joe’s Crab Shack Holdings, 221 Cal.App.4th 1148 (2013), review granted, No. S214864

• Williams v. Superior Court (Allstate Ins. Co.), 221 Cal.App.4th 1353 (2013), review denied, No. S215887

Of the opinions that remain published and citable, all except Morgan and Dailey hold that class certification was either properly granted or improperly denied. 

Petitions for review were filed in all twelve cases.  After depublishing the first three opinions, the Supreme Court summarily denied review six times in succession, until last week, when it granted review in Martinez, with briefing deferred pending resolution of Duran.  (Duran is not on the list above because it preceded Brinker.)  Also last week, the Supreme Court gave itself an extension of time to grant or deny review in Jones. 

What Martinez and Duran have in common is that they are both misclassification cases.  The Martinez opinion also specifically referenced Duran:

The [trial] court rejected as unfair plaintiffs' proffered trial plan, under which their expert, Richard Drogin, proposed to assess the rate at which managerial employees are engaged in nonexempt tasks through statistical sampling methods. [Citation].¹⁵

¹⁵ The Supreme Court has granted review of a decision heavily relied upon by the trial court in denying class certification. (See Duran v. U.S. Bank National Assn. (2012) 203 Cal.App.4th 212, review granted May 16, 2012, S200923.) One of the issues presented in Duran is the validity of using statistical surveys to establish liability.

Martinez, 165 Cal.Rptr.3d at 92 & n.15.

Jones, by contrast, is not a misclassification case, and the plaintiffs in Jones did not rely on or proffer statistical sampling proof.  Williams is not a misclassification case, either.  That's the case in which the trial court decertified the class in reliance on Dukes; the Court of Appeal summarily denied the plaintiff's writ petition; and the Supreme Court issued a "grant and transfer" order directing the Court of Appeal to consider the writ petition on the merits. 

It will of course be interesting to see if the Supreme Court decides to take up either Jones or Williams.  I am told that the petition for review in Williams cited this blog's post on that opinion, in which I pointed out that the Court of Appeal had correctly construed Dukes (hardly a reason for the Supreme Court to grant review).

UPDATE:  On March 12, 2014, the Supreme Court denied review in Jones, and on March 19, 2014, the Supreme Court denied review in Williams.