Avilez v. Pinkerton: Exhaustive Certification Ruling Provides Guidance on Dukes and Brinker

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A detailed analysis of the arguments and counterarguments around a plaintiff’s motion to certify a class alleging meal and rest break violations has been published in the Federal Rules of Decision. See Avilez v. Pinkerton Gov’t Servs., 286 F.R.D. 450 (2012). The ruling, by Central District of California Judge David O. Carter, methodically works through the Rule 23 certification elements, and in doing so provides unusually broad guidance as to the more rigorous procedural requirements implied by the U.S. Supreme Court’s Dukes decision as well as the substantive aspects of California’s meal break statute set forth by the California Supreme Court in Brinker v. Superior Court, 53 Cal. 4th 1004 (2012).

While Pinkerton did not contest the easily-established numerosity requirement, the company did challenge typicality, the cited reason being that “some unstated number of putative class members signed a document purporting to waive their right to participate in a class action against Defendant, whereas Plaintiff signed no such document.” However, Judge Carter concluded that the defendant’s argument merely postulated that the plaintiff had a stronger claim than some other putative class members, and that there is no authority holding that such a circumstance precludes certification. Avilez at 456-7.

Judge Carter also rebuffed the defendant’s challenge to the named plaintiff’s adequacy, which was premised on a survey purporting to show that a majority of Pinkerton employees prefer the “present arrangement” with respect to meal breaks, seemingly irrespective of whether that arrangement complies with Brinker. See Avilez at 457-58. Judge Carter methodically deconstructed Lanzarone v. Guardsmark Holdings, Inc., 2006 U.S. Dist. LEXIS 95785 (C.D. Cal. Sept. 7, 2006), the defendant’s main authority supporting this point, finding that it “betrays a deep naïveté” about incumbent employees’ motivations and incentives. See Avilez at 458. Moreover, the survey that was the basis for the defendant’s adequacy argument covered only 30 employees, and the defendant failed to disclose the identity of the person who conducted the survey. Judge Carter thus struck the survey evidence, vitiating the defendant’s adequacy challenge. Avilez at 458-60.

Beyond providing plaintiffs with a favorable adequacy ruling, this analysis also offers useful benchmarks for contrasting the truly rigorous surveys that class action plaintiffs will often proffer in support of class certification. See id. For instance, the survey altogether excluded former employees, even though the defendant’s own deponent testified that former employees constituted at least half, and perhaps nearly three-quarters, of the class members. Id. Judge Carter also noted his skepticism with respect to “the motivations behind and credibility of current employees’ responses to employer-elicited questions regarding employees’ contentment with their employer’s policy.” Id. at 458.

Finally, as to the often pivotal question of whether common questions of law and fact predominate, Judge Carter’s analysis brought to bear the procedural and substantive mandates of Dukes and Brinker, and concluded that the plaintiff’s prima facie case is subject to common proof, “which is all that is necessary to meet the predominance requirement of Rule 23(b)(3).” Avilez at 469. Thus, the defendant’s challenges to predominance not focused on the prima facie case are not relevant, a finding that is in keeping with “courts ‘traditionally be[ing] reluctant to deny class action status’ under predominance requirement of Rule 23(b)(3) ‘simply because affirmative defenses may be available against individual members.’” Avilez at 469, citing Lorber v. Beebe, 407 F. Supp. 279, 294 (S.D.N.Y. 1975).