Additional Subclass Certified in Brinker, 17 Months After Landmark Ruling

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In Brinker v. Superior Court, the court affirmed certification of a rest break subclass, reversed certification of an “off-the-clock” subclass and remanded for reconsideration the question of meal period subclass certification in light of clarifications of law provided in that decision. Last Thursday, Judge Dato granted certification of the meal period subclass (tentative ruling available here). 

Judge Dato’s class certification decision focused on “the plaintiff theory of liability and proof, not on alternative approaches a defendant might prefer were being pursued.” The plaintiffs’ main theory of meal period liability is that Brinker’s meal period policies, particularly its written policy, violate California law. Focusing on that theory, Judge Dato held that the validity of Brinker’s meal period policy is a classwide issue subject to common proof.

Judge Dato’s decision is in line with other post-Brinker decisions (which he cites) such as Bradley v Networkers International LLC (2012) 211 Cal.App.4th 129 and Faulkinbury v. Boyd Associates, Inc. (2013) 216 Cal.App.4th 1129, which also read Brinker as focusing on plaintiffs’ theory of liability and, in particular, whether they allege that a policy violates California law. Whether in fact a policy violates California law is not part of the certification analysis – it is a merits issue. Brinker, Bradley and Faulkinbury all follow this approach. In addition, to show that common issues did not predominate, Brinker argued that there is wide variation in how meal period policies were implemented and applied. Judge Dato, relying on Bradley, stated that whether there is a lack of company-wide policy that violates California law is also a classwide issue subject to common proof.