Lubin v. The Wackenhut Corporation tackles Wal-mart Stores, Inc. v. Dukes, Brinker, and decertification

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This opinion is like Christmas and Hanukkah, sitting in an Easter Basket filled with Valentine's Day treats.  And I overlooked it for two weeks!  In Lubin v. The Wackenhut Corporation, the Court of Appeal (Second Appellate District, Division Four) gets deep into the wage and hour weeds in 50-page opinion that is overflowing with interesting bits.  Here's the summary of how the matter ended up before the Court of Appeal:

Appellants Nivida Lubin, Sylvia M. Maresca, and Kevin Denton (together plaintiffs) filed this action on behalf of themselves and similarly situated persons, alleging defendant and respondent The Wackenhut Corporation (Wackenhut) violated California labor laws by failing to provide employees with off-duty meal and rest breaks and by providing inadequate wage statements. The trial court initially granted plaintiffs’ motion for class certification. However, as the case approached trial, the United States Supreme Court reversed a grant of class certification in Wal-Mart Stores, Inc. v. Dukes (2011) 564 U.S. 338 (Wal-Mart). Relying on Wal-Mart, Wackenhut moved for decertification. The trial court granted the motion. 

Slip op., at 2.

I don't have time to try and summarize this monster opinion at the moment, but it is a must read.  The Court spends a lot of time explaining why Wal-Mart is not applicable to wage and hour certification questions, notes that the Supreme Court, which decided Wal-Mart, held this year in Tyson Foods, Inc. v. Bouaphakeo, ___ U.S. ___, ___, 136 S.Ct. 1036, 1048 (2016) that statistical evidence is appropriately used in class actions, spends a substantial amount of time applying Brinker and the cases that followed to explain that variations in rates of missed meal and rest breaks, when certified based on an unlawful policy or procedure, is a damages issue, not a predominance question, and lots, lots, more!

Weinberg, Roger & Rosenfeld, Emily P. Rich, Theodore Franklin, Manuel A. Boigues; Posner & Rosen, Howard Z. Rosen, Jason C. Marsili, Brianna M. Primozic; James R. Hawkings, James R. Hawkings, and Gregory E. Mauro, represented the successful Plaintiffs and Appellants on appeal.

Ninth Circuit begins to define scope of Mazza in Ruiz Torres v. Mercer Canyons Inc.

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In Mazza v. Am. Honda Motor Co., 666 F.3d 581 (9th Cir. 2012), the Ninth Circuit Rule 23 predominance was defeated where many (or even most) class members “were never exposed to the allegedly misleading advertisements” (666 F.3d at 597) because the defendant subjected only a small segment of an expansive class of car buyers to misleading material as part of a “very limited” advertising campaign (id. at 595).  This decision raised questions about how federal courts in the Ninth Circuit would actually evaluate UCL claims when faced with reconciling In re Tobacco II and Mazza.  In Ruiz Torres v. Mercer Canyons Inc. (9th Cir. Aug. 31, 2016), a wage & hour suit in which the District Court certified a class, the Ninth Circuit analyzed Mazza in a manner demonstrating that it may be constrained in its application moving forward.

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