Brown v. Wal-Mart: Good News for Plaintiffs Seeking Standing and Class Cert in Seating Cases

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In April, Wal-Mart attempted and failed to defeat class certification and challenge standing for employee plaintiffs seeking redress for seating violations before the Northern District of California. On April 27, 2018, the district court released a scathing order denying Wal-Mart’s motion to decertify the class in Brown, et al. v. Wal-Mart Store, Inc., Case No. 09-cv-03339-EJD, stating that addressing Wal-Mart’s motion is “an exercise in futility” (slip op available here). The order dealt with the interpretation of two aspects of section 14 of California Wage Order 7-2001—one involving class certification requirements and the other involving standing.

Wal-Mart fought long and hard to decertify the class in Brown ever since it was first certified. In August 2012, the district court certified a class of “[a]ll persons who, during the applicable statute of limitations, were employed by Wal-Mart in the State of California in the position of Cashier.” Slip op. at 1. Wal-Mart appealed the certification to the Ninth Circuit. Two other appeals were pending before the Ninth Circuit at the time that dealt with similar issues, one of which was Kilby v. CVS, No. S215614 (Cal. April 4, 2016) (Kilby was previously covered on the ILJ here, and the Brown appeal was previously covered on the ILJ here). The Ninth Circuit had certified questions regarding interpretation of the Wage Order to the California Supreme Court in those two cases. Once the California Supreme Court issued its decision in Kilby, the Ninth Circuit decided to affirm certification in Brown in June 2016. Slip op. at 2. Proceedings in the district court resumed, but Wal-Mart again raised the issue less than two years later, filing a motion to decertify the class in January 2018. After briefing concluded, the district court rejected Wal-Mart’s arguments entirely.

Wal-Mart’s decertification argument failed largely because it relied on rehashed arguments (see slip op. at 4). Wal-Mart presented arguments regarding cashier duties that the district court had already explicitly rejected: Wal-Mart’s 30(b)(6) witness testified all cashiers perform the same essential tasks and the district court found her credible. Wal-Mart claimed newly-raised evidence as well, but failed to sufficiently describe how it was meaningfully different. Wal-Mart’s decertification argument also stumbled because it relied on arguments and evidence that “ignor[ed] or misapprehend[ed]” the Kilby decision. See slip op. at 5. The California Supreme Court stated in Kilby that “courts must examine subsets of an employee’s total tasks and duties by location . . . and consider whether it is feasible for an employee to perform each set of location-specific tasks while seated” Kilby, at 564. This means that the amount of time plaintiffs spend doing each duty is irrelevant in seating cases—the correct inquiry is whether the duties at each work location can reasonably be performed seated. See Cal. Code Regs., tit.8, § 11040, subd. 14(a) (Wage Order No. 4-2001). Disregarding this precedent, Wal-Mart argued that one of the named plaintiff’s claims were not typical of the class because she “was on register nearly 100% of her working time” and “did not spend time on tasks away from her checkstand, unlike other [c]ashiers.” Slip op. at 6 (internal citations omitted). In short, the district court wrote that as to decertification, Wal-Mart “does not have a leg to stand on.” Slip op. at 3.

Issuing a final blow, the district court denied Wal-Mart’s argument that the plaintiffs in Brown lacked standing using a bit of wordplay: “In a final ironic twist, Wal-Mart digresses from its tirade against sitting and takes a swipe at standing.” Slip op. at 6. Wal-Mart again ignored precedent set by Kilby by arguing that Brown plaintiffs could not satisfy the injury-in-fact requirement of Article III standing because the Wage Order was a procedural requirement rather than a substantive provision. In Kilby, however, the California Supreme Court explained that the Wage Order “provide[s] a minimum level of protection for workers.” Kilby, at 563. “In other words,” the district court wrote, “the Wage Order does not prescribe a procedure that businesses must follow but instead protects an employee’s concrete interest in her own well-being, and therefore “clearly sits in the [substantive provision] group.” Slip op. at 6.

This order is a victory for plaintiffs in seating claims, as it substantially strengthens arguments in favor of standing and class certification. This validation of Kilby may be one of many to come as the weight of precedent builds in favor of seating plaintiffs.

Authored by:
Ariel Harman-Holmes, Associate