McCleery v. Allstate Ins. Co. affirms the denial of class certification in a complicated, multi-party suit alleging independent contractor misclassification

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I think it is not a stretch to opine that independent contractor misclassification is, by far, the easiest misclassification theory to pursue on a classwide basis (as compared to, for example, cases about the administrative exemption for store managers). In McCleery v. Allstate Ins. Co. (July 15, 2019), the Court of Appeal (Second Appellate District, Division One), in an opinion issued following a grant of rehearing for the second appeal in the matter, we see why there are limits to what is possible even in the comparatively straightforward arena of independent contractor misclassification. The fact summary suggests that this was too big a bite:

Property inspectors Timothy McCleery, Yvonne Beckner, Terry Quimby and April Boyles Jackson filed this action on behalf of themselves and similarly situated persons, alleging defendants Allstate Insurance Company and Farmers Group, insurers for whom the plaintiffs provided property inspection services, and CIS Group LLC/North American Compass Insurance Services Group (CIS), Advanced Field Services, Inc. (AFS), and Capital Personnel Services, Inc. (PMG), service companies contracting to provide inspection services, concocted a scheme to insulate themselves from labor laws by nominally employing plaintiffs as independent contractors while retaining control over all aspects of their work. Plaintiffs purport to represent a putative class of approximately 1,550 property inspectors in California.

Slip op., at 3-4. At the first go-round, the trial court denied certification, summarily rejected a statistical sampling plan, and concluded that individualized determinations were required for each class members. The Court of Appeal reversed, directing the trial court to consider whether proposed sampling and statistical methods could render some or all of the individualized issues manageable. After additional briefing and an extensive survey, the trial agreed that the survey was carefully crafted to maximize accuracy but still failed to address key individual issues:

However, the court found that plaintiffs’ statistical sampling alone did not render their claims manageable. It found that Dr. Krosnick’s survey results failed to specify for which insurers inspections were performed, or to explain whether the inspectors’ failure to take meal or rest breaks was due to preference or to the exigencies of the job. Also, the survey’s anonymity foreclosed the defendants from cross-examining witnesses to verify responses or test them for accuracy or bias.

Slip op., at 17. The trial court again denied certification and the plaintiffs again appealed.

While several issues were of concern to the Court, the inability of the defendants to examine any survey respondents (who were kept anonymous from the survey expert) was viewed as an impediment to the defendants’ ability to cross-examine the actual class members who participated in the survey:

In fact, plaintiffs expressly admit they intend to answer the ultimate question in this case based solely on expert testimony—testimony founded on multiple hearsay that defendants could never challenge. As Dr. Krosnick declared, “ Respondents are not testifying witnesses. Instead, . . . . [i]t is the expert who will offer opinions . . . , and the expert can be cross-examined.” But “[a]lthough an expert ‘may rely on inadmissible hearsay in forming his or her opinion [citation], and may state on direct examination the matters on which he or she relied, the expert may not testify as to the details of those matters if they are otherwise inadmissible.’ ” (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1525.)

Slip op., at 24-25. The plan to rely, almost exclusively according to the Court, on an anonymous, double-blind survey to prove liability was viewed as a bridge too far, no matter how scientifically the survey was crafted. The Court, citing Duran and Brinker, concluded that the trial court acted within its discretion when denying certification.

I admit to having some sympathy, as it is my experience that the similar insurance, lender, and real estate property inspection industries are carefully constructed in an attempt to support the notion that the end companies requesting the inspections and setting very detailed parameters for how those inspections are to occur are not employers of the people out performing those inspections for them. What this opinion will have the tendency to do is insulate the biggest companies because of the complex hairball of crossing middle-tier vendors they have created, while directing attention to the smaller middle-tier vendors that act as the go-betweens for the insurance, lender, and real estate companies.

Noel v. Thrifty Payless, Inc. should be decided soon, addressing whether class members must be identifiable

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In what might be a significant decision, Noel v. Thrifty Payless, Inc. was argued to the California Supreme Court on May 8, 2019. The issue presented for review is as follows: “Must a plaintiff seeking class certification under Code of Civil Procedure section 382 or the Consumer Legal Remedies Act demonstrate that records exist permitting the identification of class members?” While California appeared to have settled this question decisively many decades ago, the question arose when the First Appellate District (Division Four) opined that such identification was required. A decision may issue any time in the next couple of weeks. This is not likely to be an issue for wage and hour cases — where employer records are basically always available as a source of identification information — but is may be an issue in consumer class actions, where specific class members identification may not be possible.