138 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com On the flip side, numerous decisions from judges more skeptical of class certification have denied class certification notwithstanding a common job description and an absence of an employer’s exemption audit of each person in the proposed class.710 The most practical lesson to draw from these cases is to pay very close attention to the assigned judge’s history with respect to class certification. An employer can usually learn more about whether to settle the case or fight through class certification based upon the judge’s general views on class certification than from any facts in the case. C. Subclasses In Sav-On, the California Supreme Court suggested that one way to handle individualized issues without denying class certification altogether would be to divide the class into subclasses. For example, if a key individualized factor that would affect a manager’s exempt status is the size of the store managed, the trial court might divide the class into multiple subclasses based on store size. When a court is considering whether to divide a class into subclasses, the employer should be prepared to assert defenses that could defeat certification as to those particular subclasses. Employers may have typicality and adequacy arguments as to the subclass that do not apply to a broader class. For example, if none of the named plaintiffs is a member of a particular subclass, then the court may not certify the subclass because the plaintiff’s claims would not typify those of the subclass. In addition, under federal class action law that likely applies to 710 See, e.g., In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953 (9th Cir. 2009) (overturning grant of class certification for loan originators because a uniform exemption policy cannot be the sole basis for a class certification, but is only one factor to be looked at); Vinole v. Countrywide Home Loans, Inc., 246 F.R.D. 637 (S.D. Cal. 2007) (Judge Sabraw denied certification of proposed class of loan originators on ground individualized issues predominated as to whether any originator spent enough time outside to qualify for outside sales exemption), aff’d, 571 F.3d 935 (9th Cir. 2009); Jimenez v. Domino’s Pizza, 238 F.R.D. 241 (C.D. Cal. 2006) (Judge Selna denied class certification of store manager class based on predominance of individualized issues as to how store managers divide their time between exempt and non-exempt work); Sepulveda v. Wal-Mart Stores, Inc., 237 F.R.D. 229 (C.D. Cal. 2006) (Judge Fischer denied class certification of assistant manager class based on predominance of individualized issues as to how employees divided time between exempt and non-exempt work); Campbell v. PricewaterhouseCoopers, 253 F.R.D. 586 (E.D. Cal. 2008) (Judge Karlton denied certification as to categories of employees holding the same jobs as the class representatives, but in different departments; “The fact that an employer classifies all or most of a particular class of employees as exempt does not eliminate the need to make a factual determination as to whether class members are actually performing similar duties”); Marlo v. United Parcel Service, 453 Fed. App’x 682 (9th Cir. 2011) (affirming Judge Pregerson’s denial of class certification as to store managers because plaintiff could not devise a trial plan by which classwide misclassification could be established by use of collective proof); Mora v. Big Lots Stores, Inc., 194 Cal. App. 4th 496 (2011) (affirming trial court’s denial of class certification as to store managers due to insufficient evidence of a uniform corporate policy requiring store managers to engage primarily in non-managerial duties); Weigele v. FedEx, 267 F.R.D. 614 (S.D. Cal. 2010) (Judge Sammartino decertified class of Dock Service Managers, holding that the fact the managers were all uniformly trained and classified as exempt was insufficient to overcome individualized issues concerning widespread differences in the manner in which the employees chose to manage, which affected the actual duties they performed); Cruz v. Dollar Tree Stores, 2011 WL 2682967 (N.D. Cal. July 8, 2011) (Judge Conti decertified a class of store managers, holding that the “glue” that gave rise to a common resolution was now missing given that the majority of the class members testified that verification forms did not accurately reflect how class members spent their time and therefore individual testimony would be required); Gales v. WinCo Foods, 2011 WL 3794887, at *10-11 (N.D. Cal. Aug. 26, 2011) (Judge Breyer denied class certification based on predominance of individualized issues as to whether assistant store managers spent their time performing primarily exempt or non-exempt tasks); Wang v. Chinese Daily News, 709 F.3d 829, 835-36 (9th Cir. 2013) (remanding for reconsideration of certification of wage and hour class where class was certified on the basis of a uniform exemption policy; the Ninth Circuit disapproved of “the district court’s conclusion that common questions predominate in this case … on the fact, considered largely in isolation, that plaintiffs are challenging CDN’s uniform policy of classifying all reporters and account executives as exempt employees”).
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