Photo of Thomas Kaufman

On March 22, 2016, the United States Supreme Court decided Tyson Foods, Inc. v. Bouaphakeo, et al., No. 14-1146, a class action under Rule 23 of the Federal Rule of Civil Procedure (“Rule 23”) and a collective action under the Fair Labor Standards Act (“FLSA”).  The issue on appeal involved the extent to which statistical evidence may be used as common proof of liability in class and representative actions.  The Court specifically limited its ruling to the facts of that case, holding that a class plaintiff may use statistical sampling to determine classwide liability (which has been dubbed “trial by formula”) only when there is a scientifically viable way to extrapolate the results of a sample to any particular class member. 
Continue Reading U.S. Supreme Court’s Tyson Foods v. Bouaphakeo Opinion Reaffirms The Importance Of Challenging Plaintiff’s Experts In Class Actions

On November 13, 2014, the Second District Court of Appeal, Division One, issued a decision in Walgreen Co. Overtime CasesThe opinion explains the meaning of Brinker Restaurant Corp. v. Superior Court as it applies to the duty to “provide” a meal period in a style that is so simple that a child could understand it.  Unfortunately, it is so clear in its conclusions that we fear that it will be depublished.
Continue Reading Brinker for Dummies

On July 14, 2014, the California Supreme Court held in Peabody v. Time Warner Cable, Inc. that employees qualify for the California “commissioned employee” exemption in a pay period only if they receive “earnings [that] exceed one and one-half (1-1/2) times the minimum wage” in that two-week pay period.  The Court held that an employer may not satisfy the minimum earnings prong of the exemption by reassigning wages from a different pay period for employees who are paid commissions that are calculated monthly.  In addition, as explained below, while the Court expressly declined to address the issue, its reasoning will lead plaintiffs’ counsel to argue that more than half of an employee’s pay in a pay period must “represent commissions” if the employee is to meet the exemption in that pay period.
Continue Reading California Supreme Court Limits Application of Commissioned Employee Exemption

On Monday, the California Supreme Court issued yet another decision on class certification; this time in an action challenging the independent contractor (“IC”) classification of a proposed class of Antelope Valley News newspaper deliverers, Ayala v. Antelope Valley Newspapers, Inc.  Although much of the case addresses the proper standards for evaluation of whether a person is an IC or employee, the California Supreme Court further clarified the proper procedures for a trial court considering class certification and did so in a way that should lead either to depublication or reversal of the awful Hall v. Rite-Aid decision I blogged about last month.
Continue Reading Cal. Supreme Court Clarifies Standards for Class Certification of Independent Contract Class Actions

The Fourth District Court of Appeal’s decision earlier this month in Hall v. Rite Aid Corp. represents an unfortunate step backwards in the development of a coherent jurisprudence on class certification.  In a misunderstanding of a general class action principle discussed in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), the appellate court in Hall seemingly held that, where the plaintiff alleges that the employer has an unlawful policy, the trial cannot resolve the “merits” dispute over the actual elements of the underlying legal claim in determining whether the policy violates the law on a classwide basis.  As explained below the case is infected by what I have formerly referred to as “Underpants Gnomes” thinking.
Continue Reading Hall v. Rite Aid and the Return of the Underpants Gnomes

On May 20, 2014, the First District Court of Appeal in Jong v. Kaiser Foundation Hospitals, issued a decision affirming the summary judgment granted as to one of the individual class representatives in a putative class action for overtime pay resulting from off-the-clock work.  As explained below, the decision is helpful to employers in providing an example where an employer was not on constructive notice of off-the-clock work and, therefore, was entitled to summary judgment.  The case also cites favorably to several federal FLSA decisions in which the employer won summary judgment on an off-the-clock claim.
Continue Reading New Decision Clarifies Summary Judgment Standards for Off-the-Clock Claims

On December 31, 2013, in Vasquez v. Franklin Management Real Estate Fund, Inc., the California Court of Appeal held that a maintenance technician, who alleged that he was constructively discharged in violation of public policy when his employer refused to reimburse gas mileage, pleaded facts sufficient to support a cause of action.  Accordingly, the appellate court held that the trial court abused its discretion by sustaining the employer’s demurrer without leave to amend.  While at first glance, employers may shudder at the expansion of constructive discharge claims, the case actually has a narrow, fact-specific holding.
Continue Reading New Decision Examines the Scope of Constructive Discharge

On October 17, 2013, in Sonic-Calabasas A, Inc. v. Moreno, the California Supreme Court issued a 73-page decision (excluding concurrence and dissent) that attempted to construe the U.S. Supreme Court’s recent Federal Arbitration Act (“FAA”) decisions (Concepcion and American Express) as narrowly as possible so as to preserve the right of state courts to strike down arbitration agreements as unconscionable for any reason that does not “interfere with the fundamental attributes of arbitration.”


Continue Reading Sonic Calabasas Is A Tactical Retreat From Supreme Court FAA Precedent

In Rodriguez v. AT&T Mobility, LLC, the Ninth Circuit continues a string of recent decisions cracking down on district courts’ tendency to remand class actions on the purported basis that the defendant failed to meet the burden of proof that subject matter jurisdiction exists. District courts have incentives to do this because remand orders are normally not reviewable on appeal (except in limited circumstances for class action removals) and doing so has the effect of lightening their case load.  As explained below, the Ninth Circuit’s decision will make it harder for intellectually honest district courts to remand typical class action cases.


Continue Reading Ninth Circuit Falls In Line With Supreme Court Ruling on Class Action Removals

By Thomas Kaufman and Anna Stancu

On July 11, 2013, the Second Appellate District in Beaumont-Jacques v. Farmers Group Inc.concluded as a matter of law that a worker’s ability to exercise meaningful discretion in her job-related efforts rendered her an independent contractor, regardless of Farmers’ input regarding the “quality and direction of her efforts.”  The court held that Farmers did not exercise the “control of the details” of the appellant worker’s efforts necessary to create an employer/ employee relationship.  As discussed below, the court held that the key consideration was the right to control the manner and means of how the worker performed her duties.  The court further held that summary judgment was proper notwithstanding that some of the minor elements of the independent contractor test arguably supported an employer/employee relationship.


Continue Reading Court of Appeal Affirms Summary Judgment in Favor of Farmers Insurance on Independent Contract Issue