142 Litigating CA Wage & Hour Class and PAGA Actions (24th Edition) Seyfarth Shaw LLP | www.seyfarth.com offered a recovery, and because those employees who elect not to opt in usually lack interest in the litigation and are unlikely to sue later. Although opt-in classes were rare in California, nothing before Hypertouch expressly forbade them (in contrast to Federal Rule of Civil Procedure 23, which forbids opt-in classes except where, as in the FLSA and ADEA, Congress provides that an opt-in class is the only kind permitted).737 In barring opt-in classes under state law, the Hypertouch court reasoned that Code of Civil Procedure Section 382 should be interpreted as parallel to Rule 23, which does not allow for opt-in class actions.738 The court also criticized the opt-in procedure as a device that improperly is used by the defendant to “chip away at the size of the class.”739 In addition, the court attempted to construe its decision as beneficial to class defendants because an opt-out class binds more potential plaintiffs in those cases where the employer prevails on the merits.740 Whatever the merits of this reasoning, the fact remains that trial courts throughout California are now barred from certifying cases as opt-in class actions. In 2007, however, another appellate court narrowed Hypertouch. In Estrada v. FedEx Ground Package System, Inc.,741 the trial court certified an independent contractor misclassification class but only of certain drivers of certain trucks on certain routes. The only way to determine who qualified as a class member under the particular class definition the court adopted was to ask the class members, because no records existed that would reveal class membership. Accordingly, the trial court authorized the sending of a questionnaire for drivers to answer under oath to determine whether they qualified as class members. Those who failed to respond were ultimately deemed not to be class members and were dismissed from the case without prejudice. The plaintiffs argued that this procedure was tantamount to having certified a class on an opt-in basis, in violation of Hypertouch. The Court of Appeal rejected the comparison, noting that the questionnaire mechanism was not used to opt in to the class action, but merely to identify which drivers were class members.742 In essence, the questionnaire was used to ascertain class membership, not to determine whether someone, once identified as a class member, wished to participate in the class action. In cases where a trial court certified a class that requires gathering information from putative class members to determine class membership, Estrada may provide a hook for the defendant to argue that the potential class must be surveyed to determine who are class members, with all non-respondents to the survey being dismissed from the case. 737 Id. at 1547-48. 738 Id. at 1542-43. 739 Id. at 1542. 740 Id. 741 154 Cal. App. 4th 1 (2007). 742 Id. at 26 (“discovery was necessary to determine whether in fact there was an ascertainable class”).
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