Rest break and wage statement claims denied certification; Court appears to confuse PAGA requirements with other civil claims

United States District Court Judge Susan Illston (Northern District of California) denied certification in a suit by security guards alleging, among other things, failure to provide adequate rest breaks and failure to provide adequate wage statements.  Temple v. Guardsmark LLC, 2011 WL 723611 (N.D.Cal. Feb 22, 2011).  The rest break analysis was not particularly controversial.  The Order suggests that the defendant had a facially lawful policy and a large number of declarants supporting its practices.  The Court also agreed with defendant's observation that "even if plaintiffs have isolated one general question of whether the narrow California-specific policy displaced the general, national always-on-duty [policy], that question does not have a common answer."  Slip op., at 6.

The problematic portion of the Opinion concerns the wage statement claim.  There is no mention anywhere that the wage statement claim is purely derivative of a PAGA claim.  But the Court seems to impose an administrative exhaustion claim on Labor Code section 226:

California Labor Code Section 226(a) requires wage statements to show “all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.” California law also requires that employees be paid double their regular rate of pay for every hour worked over twelve hours in a single day. Cal. Labor Code § 510. Finally, California requires that an “aggrieved employee or representative ... give written notice by certified mail to the Labor and Workforce Development Agency and the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation,” before bringing a civil action based on violation of Section 226(a) of the Labor Code.  Cal. Labor Code §§ 2699.3, 2699.5.

Slip op., at 7.  It is settled law in California that PAGA did not displace any civil actions that could have been brought prior to its passage.  And there is no reason to conclude that PAGA requires LWDA exhaustion for anything other than PAGA claims.  It is unclear from the Order why this issue is discussed in this way.  It may be that the plaintiff attempted to circumvent a statute of limitations issue by claiming that a PAGA claim for other violations gave sufficient notice of the wage statement claim to permit relation back to the filing of an earlier complaint.  Whatever the case, the Order is dangerously unclear and incorrectly suggests an exhaustion requirement under 226 that does not exist.

Court certifies wage statement, late pay claims for 20,000 seasonal tax preparers working for H & R Block in California

United States District Court Judge Susan Illston (Northern District of California) certified a class action alleging violation of Labor Code §§ 203, 226 and 2699.   Lemus v. H&R Block Enterprises, LLC (N.D. Cal. December 7, 2010).  It appears from the decision that the case was trimmed down from a broader set of claims; a Fourth Amended Complaint was filed by stipulation of the parties after the motion for certification was filed.  The Court's fairly simple discussion suggests that the Court viewed these statutory violations as well-suited to class treatment.  It is interesting to see that, thus far, most plaintiffs are apparently avoiding the uncertainty of pursuing a representative action under PAGA by simply certifying that claim along with other claims.

Mileage reimbursement class certified in part; class definition corrected by Court

United States District Court Judge Susan Illston (Northern District of California) certified in part a class action alleging the failure to reimburse work-related mileage expenses.  Wilson v. Kiewit Pacific Co. (N.D. Cal. December 6, 2010).  As an initial matter, the Court refused to certify a class of "all" employees, noting that it was overbroad:

As an initial matter, plaintiff cannot seek to certify a class of “all current and former” California employees of defendant from July 6, 2006 to present. Motion at 3; Reply at 3-4. On its face, that definition is impermissibly overbroad as it includes employees who never incurred unreimbursed business mileage expenses under California law.

Slip op., at 3.  Next, the Court observed that the plaintiff did not submit evidence demonstrating that the Northern California district was operated under the same policies as the Southern California District.  The Court found the plaintiff inadequate to represent the Northern California District employees on the basis of thin evidence of any uniform policy that was actionable.

With respect to the Southern California District, the Court agreed with the defendant that the plaintiff's proposed class definition was problematic, but not for the reason argued:

The Court agrees that there is a problem with the way plaintiff has proposed to define this particular subclass, but not the ascertainability problem defendant asserts. Instead, plaintiff's proposed definition-all Southern California district employees who drove their non-company owned vehicles “over” 25/35 miles-would seem to include only those who received some reimbursement under defendant's policy and not those employees who drove under 25/35 miles but were nonetheless owed reimbursement for non-commute time under plaintiff's theories. The Court doubts plaintiff intended to exclude those employees from the proposed class.

Slip op., at 7.  The Court then revised the class definition, declaring it ascertainable and better defined:

All of defendant's past and present non-union employees working in the Southern California district at any time from July 6, 2005 to present who were not reimbursed for non-commute mileage expenses incurred in using personal vehicles to travel to off-site meetings or trainings.

Slip op., at 7.  This, in particular is very helpful to litigants.  It demonstrates an engaged Court that has provided a concrete example of how to refine and improve a class definition.

The Court found unpersuasive the defendant's argument that some class members had individual deals in place to get company cars.  The Court finished by offering some comments about the obligation to supplement witness lists provided with initial disclosures, finding that those concerns were not at issue due to the rapidly shifting nature of the plaintiff's claims.

Nationwide breach of contract class certified; laws of 48 states at issue

United States District Court Judge Susan Illston (Northern District of California) certified a nationwide class action alleging declaratory relief and breach of contract claims.  In re Conseco Life Ins. Co. LifeTrend Ins. Sales and Marketing Litigation, 2010 WL 3931096 (N.D.Cal. Oct 06, 2010).  Plaintiffs sought certification of a nationwide class, challenging certain life insurance policy changes for policies administered by defendant Conseco Life Insurance Company (“Conseco”).  The Court granted the motion to certify the nationwide class, but denied the motion to certify a California sub-class.

The interesting portion of the discussion focuses on the laws at issue:

Conseco relies heavily on Zinser and In re Paxil in contending that the variations in state law defeat certification. Both of those cases, however, concerned nationwide product liability actions involving significant variations in the state tort laws governing the multiple claims asserted by the plaintiffs. See Zinser, 253 F.3d at 541-42; In re Paxil, 212 F.R.D. at 542-44. Here, by contrast, plaintiffs assert only two claims-breach of contract and declaratory judgment-on behalf of the national class. Conseco has not identified any state-to-state variations in the law governing declaratory judgment, and Conseco overstates the extent of any variations in state contract law, including as to the definition of breach, the existence of causation and damages requirements, and the admissibility of extrinsic evidence.  First, contrary to Conseco's representations, several courts have recognized that the law relating to the element of breach does not vary greatly from state to state. See, e.g., Klay v. Humana, Inc., 382 F.3d 1241, 1262-63 (11th Cir.2004); Leszczynski v. Allianz Ins., 176 F.R.D. 659, 672 (S.D.Fla.1997). Second, plaintiffs have persuasively rebutted Conseco's assertions concerning variations in the causation and damages elements of the contract claim. Finally, the Court agrees with plaintiffs that, as neither party has asserted that the form policy contract contains ambiguous terms (rather, they offer competing interpretations based on the face of the documents), admission of extrinsic evidence should not be necessary to interpret the contractual provisions at issue. Plaintiffs' contractual interpretations may ultimately be rejected at the summary judgment stage or disproved at trial, but they are not patently untenable from the face of the documents, and do not demonstrate a lack of common issues of law.

Slip op., at 6.

The Court rejected the California sub-class, concededly asserted as an alternative pleading, because the fraud theory of liability was inconsistent with the theory underlying the nationwide class claims.

Written contact with putative class members for purpose of finding new plaintiff is not solicitation under California Rule of Professional Conduct 1-400

United States District Court Judge Susan Illston (Northern District of California) concluded that letters to putative class members seeking a new plaintiff were neither in violation of the Court's prior order governing class member contact nor a violation of California Rule of Professional Conduct 1-400, which governs solicitation.  Rand v. American National Insurance Company, 2010 WL 2758720 (N.D. Cal July 13, 2010).

In an earlier Order in that matter, the Court, in an effort to ensure protection of putative class members' privacy rights, instructed plaintiff's counsel to:

inform each policyholder at the outset of the initial contact that he or she has a right not to speak with counsel and that if he or she chooses not to speak with counsel, counsel will immediately terminate contact and not contact them again. Additionally, counsel will inform the policyholder that his or her refusal to speak with counsel will not prejudice his or her rights as a class member if the Court certifies a class. Finally, counsel is to keep a record for the Court of policyholders who make it known that they do not wish to be contacted.

Slip op., at 1.  After the death of the plaintiff, plaintiff's counsel sent a letter containing a first paragraph with substantially compliant language in the first paragraph.  The letter then went on to encourage contact to discuss the circumstances of annuity purchases.  The Court concluded that the inclusion of the disclaimer language in the first paragraph satisfied the Court's prior Order and was not an improper solicitation:

The Court also finds that the letter complies with California Rule of Professional Conduct 1-400. That rule defines “communication” as “any message or offer made by or on behalf of a member concerning the availability for professional employment....” Cal. R. Prof. Conduct 1-400(A). The rule defines “solicitation” as “any communication ... concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain; and ... [w]hich is: (a) delivered in person or by telephone.” Id. at 1-400(B)(1)-(2). The rule generally prohibits “solicitations.” Id. at 1-400(C). As plaintiffs note, the letter was sent by mail, and thus it is not a “solicitation.” Defendant argues that because the letter invited policyholders to contact plaintiff's counsel by telephone, the letter is a “solicitation.” The Court disagrees, as the plain language of Rule 1-400(B) states that a solicitation is a communication “delivered” in person or by telephone. Here, the communication was delivered by mail. See Parris v. Superior Court, 109 Cal.App. 4th 285, 298 n. 6 (2003) (neither mail notice nor web site was “solicitation” under Rule 1-400(B)).

Slip op., at 2.

Flat panel price fixing claims by indirect purchasers certified

United States District Court Judge Susan Illston (Northern District of California) certified a class of indirect purchasers harmed by an alleged global price-fixing conspiracy in the market for Thin Film Transistor Liquid Crystal Display (“TFT-LCD”) panels.  In re TFT-LCD (Flat Panel) Antitrust Litigation, 2010 WL 1286478 (N.D. Cal. Mar 28, 2010).

The opinion explains what a TFT-LCD panel is:

TFT-LCD panels are made by sandwiching liquid crystal compound between two pieces of glass called substrates. The resulting screen contains hundreds of thousands of electrically charged dots, called pixels, which form an image. The panel is then combined with a backlight unit, a driver, and other equipment to create a “module” allowing the panel to operate and be integrated into a television, computer monitor, or other product.

Order, at 1.

The Plaintiffs alleged that during the class period, defendants formed a cartel to interfere with the normal cycle of supply and demand for TFT-LCD panels. According to plaintiffs, defendants agreed on prices, agreed to limit production, and agreed to manipulate the supply of TFT-LCD panels and products so that prices remained artificially high.  But the plaintiffs had quite a bit more to go on than mere allegation.  Thus far, in connection with DOJ investigations that are ongoing, seven corporate defendants in the action have also pled guilty to Sherman Act violations relating to suppressing and eliminating competition by fixing the prices of TFT-LCD panels. Those defendants are Sharp Corporation (CR 08-802 SI); LG Display Co. Ltd. and LG Display America, Inc. (CR 08-803 SI), Chunghwa Picture Tubes, Ltd. (CR 08-804 SI); Hitachi Displays Ltd. (CR 09-247 SI); Epson Imaging Devices Corporation (CR 09-854 SI); and Chi Mei Optoelectronics Corporation (CR 09-1166 SI).

The defendants also sought to strike modifications to the class definition.  The court denied the request:

Defendants have moved to strike the proposed modifications to the class definitions on the ground that plaintiffs should be required to seek leave of Court and/or the consent of defendants in order to modify the class definition. Defendants rely on this Court's decision in Jordan v. Paul Financial LLC, No. C 09-4496 SI, 2009 WL 192888 (N.D.Cal. Jan.27, 2009), in which the Court denied the plaintiff's request, made at the class certification hearing, to withdraw the pending class certification motion in order to substantively redefine the class and conduct additional discovery. However, Jordan is distinguishable in that there the proposed redefinition of the class was significant, and would have required additional discovery. Here, the proposed modifications are minor, require no additional discovery, and cause no prejudice to defendants. The Court DENIES defendants' motion to strike the modified class definitions.

Order, at 5.

The opinion has some interesting comments about damage proof models at certification and conspiracy allegations.

Northern District Court certifies class in misclassification suit against Deloitte & Touche LLP

United States District Court Judge Susan Illston (Northern District of California) certified a class of salaried employees alleging that they were misclassified as exempt by Deloitte & Touche LLP.  Brady v. Deloitte & Touche LLP, 2010 WL 1200045 (N.D. Cal. Mar. 23, 2010).  The class consists of salaried employees in the audit line of service but who were not licensed accountants.  The Court identified common issues of law and fact as follows:

Common questions of law include whether the professional exemption under California law requires a license for accountants, whether accounting is a “learned profession” under California Wage Order 4-2001, and whether the duties of proposed class members would qualify for administrative exception under California law. Common factual questions include whether defendant's standardized policies and procedures prevented the class members from customarily and regularly exercising discretion and independent judgment with respect to matters of significance, whether defendant categorically classified all class members as exempt, whether defendant required class members to work overtime, along with a host of other questions relating to overtime, meal breaks, timekeeping and pay.

Slip op., at 4.  Generally, the Court maintained a sharp delineation between certification questions and merits issues.