Giles v. St. Charles Health System, Inc.

Filing 53

OPINION and ORDER: Granting Plaintiffs' Motion for Class Certification 35 . The parties' requests for oral argument are denied as unnecessary. Signed on 10/22/2013 by Chief Judge Ann L. Aiken. (lg)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON CAROL LYNN GILES, individually and on behalf of all other persons similarly situated; SHAWN H. DUNLAP, an individual; CHERYL LEE FISCHER, an individual; MELODIN CORNIS, an individual; and MARY ANN ADLER, an individual, Case No. 6:13-cv-00019-AA OPINION AND ORDER Plaintiffs, v. ST. CHARLES HEALTH SYSTEM, INC., an Oregon corporation, doing business as PIONEER MEMORIAL HOSPITAL, ST. CHARLES MEDICAL CENTER - BEND, ST. CHARLES MEDICAL CENTER - REDMOND, and ST. CHARLES - MADRAS, Defendant. ), Roxanne L. Farra Roxanne L. Farra, P.C. 17 N.W. Irving Avenue Bend, Oregon 97701 Attorney for plaintiffs Page 1 - OPINION AND ORDER Brenda K. Baumgart John Baird Dudrey Stoel Rives L.L.P. 900 SW Fifth Avenue, Suite 2600 Portland, Oregon 97204 Attorneys for defendant AIKEN, Chief Judge: Plaintiffs Carol Giles, Shawn Dunlap, Cheryl Fischer, Melodin Cornis, and Mary Ann Adler move for class certification pursuant to Fed. R. Civ. P. 23. opposes plaintiffs' Defendant St. motion. Charles Health System, For the reasons set Inc. forth below, plaintiffs' motion is granted. BACKGROUND Plaintiffs are employed as registered nurses at defendant's hospitals. employees Defendant requires its hourly nurses and certain other (collectively "caregivers") to fulfill training and certification requirements, which are not necessary to maintain an Oregon nursing license, as a condition of employment. In November 2010, Ms. Giles informed hospital management that it was unlawful not to compensate employees for this study and test-taking time. On December 2, 2011, Ms. Giles filed a small claims action against defendant. On December 28, 2011, defendant agreed, in writing, to begin drafting a policy pertaining to compensation for study and test-taking time, tests; in and to pay for Ms. exchange, Ms. Giles Giles' dismissed 2011 certification her complaint without prejudice. Ms. Giles remained Page 2 - OPINION AND ORDER in contact with hospital management regarding defendant's payment practices between February 2012 and December 2012. On December 5, 2012, Ms. Giles notified defendant that she consulted a labor lawyer regarding these practices. On December 28, 2012, defendant issued a memorandum, entitled "Study and Test Taking Time," proposing to pay caregivers for their unpaid training time since January 1, 2011, "based on the two-year statute of limitations for overtime and premium pay actions in Oregon." Giles Decl. Ex. A ("Policy") . As a condition of payment, the caregiver was required to sign a "Study and Test Taking Time Release Form," in which he or she stipulates to "hav[ing] been paid for hours all spent studying and certifications" and to "release all claims Health System Additionally, in that regard." caregivers were Id. given at the taking tests against St. Ex. C option for Charles ("Release") . to meet with defendant's human resources staff to discuss the new policy. On January 4, 2013, Ms. Giles filed a putative class action in this Court, alleging that defendant Standards Act and Oregon's labor laws. Giles moved for an order violated the Fair Labor On February 22, 2013, Ms. requiring defendant to cease communications with potential class members regarding this lawsuit, the Policy, or the Release of any potential claims; she also moved to produce any documents obtained from putative class members. Thereafter, Ms. Dunlap and Ms. Fischer joined this lawsuit as named plaintiffs. On May 9, 2013, this Court denied Ms. Giles' discovery Page 3 - OPINION AND ORDER request but otherwise granted her motion to communications with putative class members. plaintiffs moved for class certification; limit defendant's On June 18, the proposed 2013, class includes "[a]ll present and former hourly nurses and respiratory therapists who were employed by Defendant in Oregon and studied for, trained for, obtained, or renewed a BLS, ACLS, PALS, ENPC, NRP, TNCC, TEAM or S.T.A.B.L.E. certification between December 12, 2008 ([three] years preceding December 12, 2011) and the present." Compl. ~ 23. Thereafter, Melodin Cornis and Mary Ann Adler joined this lawsuit as plaintiffs. STANDARD OF REVIEW "Class certification is proper if plaintiffs show that they meet the requirements of Fed. R. Civ. P. 23(a) and also come within one of the Interstate provisions Bank, N.A., of 23 (b) . " 97 F.R.D. Wilcox 440, 443 Dev. (D.Or. Co. v. First 1983). The plaintiff bears the burden of establishing compliance with Fed. R. Civ. P. 23. 1186 (9th See Zinser v. Accufix Research Inst., 253 F.3d 1180, Cir. 2001)). Nonetheless, " [a] class may only be certified if [the court] is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir. 1992) and internal quotations omitted) . Hanon (citations As such, "district courts [have] broad discretion to determine whether a class should be certified, and to revisit that Page 4 - OPINION AND ORDER certification throughout the legal proceedings." Armstrong v. Davis, 275 F.3d 849, 871 n.28 (9th Cir. 2001), denied, cert. 537 U.S. 812 (2002), abrogated on other grounds, Johnson v. California, 543 U.S. 499, 504-05 (2005). Under Fed. R. Civ. P. 23(a), the plaintiff must demonstrate that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; ( 3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). Under Fed. R. Civ. P. 23(b), the plaintiff must also prove, in relevant part, that "questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23 (b) (3). DISCUSSION Defendant contends that plaintiffs' motion should be denied. Defendant first argues that Ms. Giles is not an adequate class representative because she did not execute a Release and her claims are "subject to a unique defense" pursuant to Or. 12.220. 1 Rev. Stat. § Def.'s Resp. to Mot. Class Cert. 7. Defendant also argues 1 The Court notes that potential defenses are ordinarily considered when evaluating whether the plaintiff's claims are typical of the proposed class. Compare Capps v. U.S. Bank Nat'l Ass'n, 2009 WL 5149135, *5 (D.Or. Dec. 28, 2009) (discussing the adequacy requirement), with Hanan, 976 F.2d at 508 (discussing Page 5 - OPINION AND ORDER that Ms. Giles' claims are not typical of caregivers who signed Releases or former registered nurses. 2 Lastly, defendant asserts that plaintiffs cannot satisfy Fed. R. Civ. P. 23(b) because "the putative class' claims can only be resolved with individualized damages inquiries." Id. at 12-13 (citing Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1433 (2013)). I. Numerosity Under Fed. R. Civ. P. 23(a), the proposed class must be "so numerous that joinder of all members is impracticable." Civ. P. 23(a) (1). Fed. R. The size of a potential class is a key factor in assessing numerosity because "where a class is large in numbers, joinder will usually be impracticable." Jordan v. L.A. Cnty., 669 F.2d 1311, 1319 (9th Cir.), vacated on other grounds, 459 U.S. 810 (1982). "[A]s a rough rule of thumb, approximately forty members is sufficient to satisfy the numerosity requirement." Wilcox, 97 F.R.D. at 443 (citation and internal quotations omitted); see also the typicality requirement) . 2 Defendant additionally contends that Ms. Giles' "claims are not typical of St. Charles' caregivers who are not registered nurses or respiratory therapists but who completed study or testtaking time"; it therefore requests that Ms. Giles be limited to "representing the St. Charles employees who completed one of the eight courses she identified in her complaint." Def.'s Resp. to Mot. Class Cert. 9, 12. According to plaintiffs, "[i]t was always [their] intent to limit the class definition to current and former caregivers of Defendant who completed one of the eight (8) courses" outlined in the complaint. Pls.' Reply to Mot. Class Cert. 9. Because the parties are in agreement as to this issue, the Court need not address it further. Page 6 - OPINION AND ORDER Or. Laborers-Emp'rs Health & Welfare Trust Fund v. Philip Morris, 188 F.R.D. 365, 372-73 (D.Or. 1998). Defendant does not dispute that the numerosity requirement is In fact, met in the case at bar. defendant admits that it "met with approximately 500 caregivers regarding their study and testtaking time . . 450 taking Defs.' time." [of which] Resp. reported unpaid study and test- to Mot. Class Cert. 4. Further, plaintiffs estimate that, based on the Oregon Nurses Association's purported membership, there are at least "849 nurses" who potentially affected by the challenged payment practice. Mem. in Supp. of Mot. Class Cert. 7 are Pls.' (citing Farra Decl. Ex. A) . Therefore, the putative class is sufficiently numerous to satisfy Fed. R. Civ. P. 23 (a) (1). II. Common Questions of Law or Fact Fed. R. Civ. P. 23(a) requires that "there are questions of law or fact common to the class." provision "has been construed Fed. R. Civ. P. 23(a) (2). permissively [such that] This [a]ll questions of fact and law need not be common to satisfy the rule." Hanlon, 150 F.3d at 1019. Instead, the "existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class." 131 S.Ct. 2541, the "claims Id.; see also Wal-Mart Stores, Inc. v. Dukes, 2551 must (2011) depend Page 7 - OPINION AND ORDER (in order to be common to the class, upon a common contention [and this contention] must be of classwide resolution") "The threshold Sorenson v. such a nature that it is capable of (citation and internal quotations omitted). requiremen[t] Concannon, 893 of commonality F.Supp. 1469, [is] high." (D.Or. 1479 not 1994) (citation and internal quotations omitted). Here, defendant does requirement is fulfilled. not dispute that the commonality Defendant subjected each putative class member to the same policies regarding test-taking and study time; this is precisely the payment practice at issue in this lawsuit. As a result, the potential class members' the same laws. statutes See, e.g., Compl. common to the ~ putative 47 claims are governed by (listing applicable Oregon class' claims). Accordingly, plaintiff's claims present common questions of law and fact. III. Typicality Pursuant to Fed. R. Civ. P. 23(a), "the claims or defenses of the representative parties defenses of the class." [must be] typical of the Fed. R. Civ. P. 23 (a) (3). claims or The claims "are 'typical' if they are reasonably co-extensive with those of absent class members; they need not be substantially identical." 150 F.3d at 1020. When assessing typicality, Hanlon, the court examines "the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought." Hanon, 976 threshold requiremen[t] F.2d at 508. Like of typicality [is] Page 8 - OPINION AND ORDER commonality, not high." "[t]he Sorenson, 893 F.Supp. at 1479. A. Caregivers who Signed Releases Defendant asserts that none of the representative plaintiffs ~execute[d] the retro-pay forms reflecting their receipt of wages," such that their claims are not typical. Cert. 4 n.l. the forms." ~signed Dunlap Plaintiffs argue, Decl. ) . Def.'s Resp. to Mot. Class to the contrary, that Ms. Pl.'s Reply to Mot. Ms. Dunlap, however, Class Cert. does declaration that she signed a Release form. ~refused not 9 (citing specify Rather, Dunlap in Ms. her Dunlap to sign" the Release and, as such, has not been paid the wages that defendant concedes are due and owing. Dunlap Decl. 11 11-15. is Therefore, as defendant notes, there no evidence indicating that any of the named plaintiffs executed a Release and/or received wages. This does not necessarily mean that typicality is lacking. Defendant previously represented to this Court that executing a Release would not affect a potential class member's ability to join in this action and obtain additional relief: If the caregivers believe they are entitled to liquidated damages under the FLSA or penalty wages under ORS Chapter 652 and 653 or that they are entitled to an additional year's worth of unpaid study time (as plaintiffs contend in this lawsuit), they are free to assert as much in litigation. If asked, St. Charles' representatives make clear that the caregivers' rights in the litigation will not be affected by their participation in the meetings. Def.'s Resp. to Mot. Limit Commc'ns 8-9 Page 9 - OPINION AND ORDER (citations omitted); see also Answer 17-26 ~~ (pleading no Release-based Thereafter, defendant notified caregivers that ~sign[ing] you from participating in the lawsuit to any type does not of 'release' in regard to study and test-taking time . prevent defense). collect all amounts due to you for your unpaid study and test-taking time." Proposed Curative Notice 2. 3 Therefore, because these Releases do not preclude putative class members from pursuing claims akin to plaintiffs', they are immaterial proceedings. members who to the Court's While executed defendant the 3 analysis is at correct retro-pay forms this that and stage in the ~putative class received their The Court acknowledges that defendant now maintains these Releases are legally binding, especially as to the putative class members' state law claims, such that ~the Court will have to resolve the question of whether retro-pay forms are valid." Def.'s Resp. to Mot. Class Cert. 5; see also id. at 6-7 (~[t]he effect of the forms will be a key issue in this case, one that bears not only on the absent class members' damages but in their very right to recover relief under state law"). Defendant, however, cannot obtain an advantage in these proceedings by taking positions that contravene those previously asserted. See Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 993 (9th Cir. 2012) (judicial estoppel ~is an equitable doctrine invoked not only to prevent a party from gaining an advantage by taking inconsistent positions, but also because of general considerations of the orderly administration of justice and regard for the dignity of judicial proceedings, and to protect against a litigant playing fast and loose with the courts") (citations and internal quotations omitted); see also New Hampshire v. Maine, 532 U.S. 742, 749-50, reh'g denied, 533 U.S. 968 (2001). Accordingly, the Court relies on defendant's prior representation that executing a Release does not impact a caretaker's ability to participate fully in this lawsuit. Nonetheless, even assuming that these forms were binding, they would not necessarily bar class certification; rather, the class could be limited to those caregivers who did not sign a Release. Page 10 - OPINION AND ORDER overtime wages litigation," cannot recover additional these damages amounts may be again recoverable defendant's allegedly willful violation of the law. 40-41, 49-50. in this due to ~~ See Compl. In other words, to the extent that different class members may be entitled to recover different amounts due, in part, to these Releases, this is a damage calculation issue and not a basis to deny class certification. B. See Hanon, 976 F.2d at 508. Former Caregivers Defendant also contends that plaintiffs, as currently employed caregivers, have claims former employees. fundamentally Defendant relies on Or. Rev. which governs penalty wages, class different certification. See from Stat. those § of 652.150, as the dispositive statute barring Def. 's Resp. to Mot. Class Cert. 9 (plaintiffs' claims are not typical of "former registered nurses, who will assert final paycheck claims under ORS 652.150"). Under Or. Rev. Stat. willfully failing termination, as overtime wages, Rev. Stat. § to § pay: 652.150, an employer can be liable for ( 1) wages required by Or. as required by Or. 653.055. due Rev. to Stat. Rev. Stat. an employee 652. 14 0; § § or upon ( 2) 653.261 and Or. Herb v. Van Dyke Seed Co., 2012 WL 4210613, *2 (D.Or. Sept. 19, 2012). Because plaintiffs allege the failure to pay regular and overtime wages under Or. Rev. Stat. § 653.261, for which they are seeking penalty wages, Or. Rev. Stat. § 652.150 is clearly applicable to the case at bar. Page 11 - OPINION AND ORDER See Compl. ~~ 47-50. Defendant is correct, however, that former caregivers may also have a cognizable claim under Or. governs final employees, paycheck claims, whereas Nevertheless, do not. Rev. Stat. § 652.140, plaintiffs, as which current penalty claims arising from a defendant's failure to pay regular and overtime or termination wages are alternate 4210613 at *2-4. theories of See recovery. In other words, Herb, 2 012 where premised on the WL same allegedly wrongful conduct, a plaintiff can receive a penalty for unpaid regular and/ or overtime wages termination, but not both; damages would be the same. in either or unpaid wages instance, the due upon amount of See, e.g., Thiebes v. Wal-Mart Stores, Inc., 2004 WL 1688544, *10 (D.Or. July 26, 2004); see also Def.'s Resp. to Mot. Class Cert. 10 ("former registered nurses are not entitled to both final paycheck penalties under ORS 652.140 and unpaid overtime penalties under ORS 653.055 for the same wrong, namely, failure to pay for study and test-taking time") (emphasis omitted) . Here, Ms. Giles notified defendant that its payment practices were illegal in November 2010, over two years before defendant elected to institute a new policy and compensate caregivers for required study and test-taking time; during this period, some of the affected caregivers ended their employment. Regardless, it is undisputed that all of the claims in this case are based on the same employer misconduct, Page 12 - OPINION AND ORDER notably, the failure to provide compensation Armstrong, for certain certification 275 F.3d at 868-69 requirements. (in cases involving a system-wide policy or practice, typicality exists if the proposed class members have injuries "result[ing] Therefore, similar from the to those same, of the named injurious plaintiff course of and conduct"). to the extent that plaintiffs are seeking to recover unpaid regular and overtime wages due to defendant's allegedly illegal payment practices, plaintiffs' claims are "reasonably coextensive" with those of former caregivers. 1020. IV. Hanlon, 150 F.3d at Thus, the typicality requirement is met. Adequacy Under Fed. R. Civ. P. 23 (a), "the representative parties [must] fairly and adequately protect the interests of the class." Fed. R. proposed Civ. P. 23(a) (4) representative "This factor requires: Plaintiffs interest with the proposed class, do and not ( 2) have that represented by qualified and competent counsel." Bank Nat' 1 Ass'n, 2009 WL 5149135, *5 (D.Or. ( 1) that the conflicts Plaintiffs Capps v. Dec. 28, of are U.S. 2009) (citation and internal quotations omitted). Initially, defendant does not dispute that plaintiffs are represented by qualified and competent counsel. See generally Def.'s Resp. to Mot. Class Cert.; see also Pls.' Mem. in Supp. of Mot. Class Cert. 10-11 ("counsel is a highly experienced employment litigator with significant trial experience, who has prosecuted and Page 13 - OPINION AND ORDER defended employment law claims, to include wage and hour lawsuits, involving large, lawyer teams institutional employers, from big, well-funded law representing defendant in this action") 13). often opposing multifirms like the (citing Farra Decl. one ~~ 7- Accordingly, whether this element is met hinges on whether a conflict of interest exists between the named plaintiffs and the putative class. A. Caregivers who Signed Releases Defendant asserts representatives that because plaintiffs they did not are not execute adequate class Releases. As discussed above, however, the Releases do not impact a caregiver's ability to participate in this lawsuit. In other words, plaintiffs share the same interests as the putative class members, even those who signed Releases, in that they all seek to recover damages stemming from defendant's failure to fully compensate its employees for required study and test-taking time. In addition, plaintiffs represent that they "stand willing and able to zealously prosecute the litigation on behalf of the class." Pls.' Mem. in Supp. of Mot. Class Cert. 10. plaintiffs' assertion. The record supports For instance, Ms. Giles refused an offer from defendant to be compensated for study and test-taking time "from December 2, 2008, caregivers would present." Supplemental Giles Decl. throughout this only to present" because receive lawsuit, Page 14 - OPINION AND ORDER Ms. wages similarly-situated "from August Ex. A, Giles and 1, at 11-13. her 2010, to Moreover, counsel have appropriately pursued the potential class members' interests. See generally Pl.'s Mem. in Supp. of Mot. Limit Commc'ns (requesting an order limiting defendant's prospective communications with putative class members due to its false and/or misleading statements, which this Court granted) . such, As no conflict of interest exists between plaintiffs and those caregivers who signed Releases. B. Existence of a Unique Defense Defendant next contends that a conflict of interest exists, such that Ms. Giles is not an adequate class representative, 4 because she is subject to a unique defense under Or. Rev. Stat. § 12.220: The ordinary rule in class action practice is that the lead plaintiff's and the putative class' claims are commenced for statute of limitations purposes on the date the class complaint is filed . . in the ordinary case, plaintiff's claims and the putative class' claims would be commenced on January 4, 2013, the filing date of this case. Plaintiff, however, seeks to use the filing date of the small claims court action as the date her and the class' claims were commenced . . . Plaintiff's attempt to do so makes her (but not the putative class) subject to a statute of limitations defense under ORS 12.220 because she voluntarily dismissed the small claims action. Def.'s Resp. to Mot. Class Cert. 8. Thus, defendant is not, in fact, asserting that Or. Rev. Stat. 4 Defendant's argument ignores the fact that, at this stage in the proceedings, several other plaintiffs have been named as potential class representatives, none of whom are subject to this alleged defense because they did not file a complaint in small claims court. See Local Joint Exec. Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F3d 1152, 1162 n.2 (9th Cir.), cert. denied, 534 U.S. 973 (2001) (the adequacy requirement "is satisfied as long as one of the class representatives is an adequate class representative"). Page 15 - OPINION AND ORDER § 12.220, which limitations for provides certain for a tolling "involuntarily applicable to the case at bar. of the dismissed" statute of actions, is See Supplemental Giles. Decl. Ex. A, at 3; Def.'s Resp. to Mot. Class Cert. 7. While difficult to decipher, defendant's argument implies that portions of Ms. Gile's claims may be time-barred. argument or limitations evidence period for Yet defendant does not provide any regarding the plaintiffs' proper accrual action; merely contends that, due to Or. Rev. Stat. § instead, date or defendant 12.220, plaintiffs' claims "commenced" in January 2013 instead of December 2011. Plaintiffs, however, did not rely on the relation-back period afforded by Or. Rev. Stat. § 12.220 in asserting that the "look back period should be measured from December 2011." Class Mot. Cert. 6. Rather, Ms. Giles Pls.' Reply to "relied on the representation made by management in delaying the filing of the suit" until January 2013. 5 5 Supplemental Giles Decl. Ex. A, at 12. Specifically, the record reflects that Ms. Giles delayed filing suit because defendant represented, in December 2011, that it would effectuate a change to its payment practices concerning required study and test-taking time. Ms. Giles first notified defendant that failing to compensate employees for required study and test-taking time was unlawful in November 2010. See Giles Decl. ~ 6. After defendant neglected to remedy this practice, Ms. Giles filed a small claims action in December 2011, which she only agreed to dismiss based on defendant's written agreement to begin drafting a policy to compensate employees for certain certification requirements; after over one year of constant communications, defendant still had yet to change its payment policy, such that plaintiff contacted an attorney and filed suit. Id. at ~~ 7-28; see also Supplemental Giles Decl. Ex. A, at 12 (Ms. Giles "relied on the representation made by management in delaying the filing of the suit," such that "SCMC has waived Page 16 - OPINION AND ORDER Thus, defendant's argument that Ms. Giles is subject to a unique defense pursuant to Or. Rev. Stat. 12.220 is without merit. § Plaintiffs are therefore adequate class representatives. V. Predominance Fed. R. Civ. P. 23(b) mandates that "questions of law or fact common to class members predominate over any questions affecting only individual members." Fed. R. Civ. P. 23 (b) (3). "The Rule 2 3 (b) ( 3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). "[p] lain tiffs issues, need not establish that there are no As such, individual only that the class issues predominate and that a class action is superior." (D.Or. 2009) Phelps v. 3PD, (citations omitted). Inc., 261 F.R.D. 548, 559 "When common questions present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication, there is clear justification for handling the dispute on a representative rather than on an individual basis." Hanlon, 150 F.3d at 1022 (citation and internal quotations omitted). The predominance requirement is met in the case at bar. Contrary to defendant's assertion, this finding does not repudiate Comcast. contends. Notably, Comcast can not be read as narrowly as defendant In Comcast, the Supreme Court considered class and/or is estopped from claiming that the statute of limitations only runs back from when I filed suit") . Page 17 -OPINION AND ORDER certification for more than two million current and former Comcast subscribers who sought damages for purported violations of federal antitrust laws. Comcast, 133 S.Ct. at 1429-30. The Supreme Court held R. met that Fed. Civ. P. 23 (b) (3) was not because the plaintiffs' model of damages fell "far short of establishing that damages are capable of measurement on a classwide basis"; while such "[c]alculations need not be exact" at the class-certification stage, "any model supporting a plaintiff's damages case must be consistent with its liability case, particularly with respect to the alleged anticompetitive effect of the violation." (citation and internal quotations As omitted). a Id. at 1433 result, the plaintiffs' motion for class certification was denied because the proposed damages model failed to "isolate damages resulting from In other words, any one theory of anti trust impact." the inability to match a damages model with any one theory of liability was fatal to the class. the Thus, presumption, 23 (b) (3) Id. at 1433-35. Supreme Court's holding uncontested by the parties, requires damages to be was that measurable based Fed. on R. based on the Ci v. a P. common methodology applicable to the entire class in antitrust cases. As such, is nothing in Comcast indicates that this presumption applicable to wage and hour claims under federal and state law. See, e.g., (N.D.Ill. "damages Harris v. comScore, Inc., (language Apr. 2, 2013) must be measurable Page 18 - OPINION AND ORDER based in 2013 WL 1339262, Comcast on a *11 n. 9 indicating common that methodology applicable to the entire class . bind this court") is merely dicta and does not (citing Justices Ginsburg and Breyer, dissenting: "the decision should not be read to require, as a prerequisite to certification, that damages attributable to a classwide injury be measurable on a class-wide basis"). decision does not In any event, "[t]he Comcast infringe on the long-standing principle that individual class member damage calculations are permissible in a certified class under Rule 23 (b) (3) 2146925, Indus. *24 (E.D.Cal. Inc., 716 calculations F.3d alone May 15, 510, cannot If Munoz v. PHH Corp., 2013 WL 2013); see also Leyva v. 511-114 (9th defeat Cir. 2013) certification") Medline ("damage (citation omitted). For instance, in Leyva, a class action involving wage and hour claims under California law, the Ninth Circuit interpreted Comcast as requiring "that the plaintiffs must be able to show that their damages stemmed from the defendant's actions that created the legal liability." found Leyva, 716 F.3d at 511-14. Comcast to be distinguishable: As such, the Leyva court "unlike in Comcast, if putative class members prove Medline's liability, damages will be calculated based on the wages each employee lost due to Medline's unlawful practices." Id. at 514. This conclusion was strengthened by evidence of record reflecting "Medline's computerized payroll and time-keeping database [,] [which] would enable the court to accurately calculate damages and related penalties for each claim." Id. Page 19 - OPINION AND ORDER Other courts from within the Ninth Circuit have similarly held that Comcast does not act as a bar to class actions where the plaintiffs provide a workable damages model. See, e.g., Parra v. Bashas', Inc., 2013 WL 2407204, *32 (D.Ariz. May 31, 2013) (grocery store employees' model for calculating back pay survived Comcast: "through a computer program, and relying upon objective factors such as the individual employee payroll record (dates of employment job position, hours worked) the record, losses for quotations and the wage scale, which is part of the plaintiffs will be able to each eligible class member") omitted) ; see also In re calculate back pay (citation and internal Diamond Foods, Inc., Sec. Litig., 2013 WL 1891382, *11-12 (N.D.Cal. May 6, 2013); Munoz, 2013 WL 2146925 at *24-25; Barbosa v. Cargill Meat Solutions Corp., 2013 WL 3340939, *9-10 (E.D.Cal. July 2, 2013); but see Def.'s Resp. to Mot. Class Cert. 13 (citing Farrand v. Fed. Express Corp., 2103 WL 1793951, *4-5 (C.D.Cal Apr. 5, 2013); and Ginsburg v. Comcast Commc'ns Mgmt. LLC, 2013 WL 1661483, *7 (W.D.Wash. Apr. 17, 2013)). This Court finds the reasoning in Leyva persuasive, especially because the relevant facts are analogous to the present case. The predominance inquiry will therefore be satisfied if plaintiffs: (1) can establish that their damages arise out of defendant's allegedly wrongful conduct; and (2) provide a methodology, even if "not fully developed", for calculating damages measurement on a classwide basis." that are "capable of Parra, 2013 WL 2407204 at *32 (quoting Comcast, 133 S.Ct. at 1433); see also Leyva, 716 F.3d at Page 20 - OPINION AND ORDER 514. One common question drives this i.e. lawsuit whether defendant failed to pay current and former caregivers regular and overtime wages for required study and test-taking time, in violation of state and federal law. As discussed above, there are no presented. significant individual issues Further, it is undisputed that plaintiffs, along with the putative class members, were subjected to the same illegal payment practice. Policy; see also Morgan Decl. 2-3. ~~ wages are due and owing as a See generally Defendant acknowledges that result of this practice and that plaintiffs and the putative class are "similarly-situated." Supplemental Giles Decl. Ex. A, at 11. study and test-taking ascertainable Transcript' 'retro-pay' that for looking "by time at defendant Critically, the amount of affected the maintains Id.; caregivers computerized for forms; or as a last resort, each is easily 'Caregiver caregiver; its 'Table 1' in Defendant's 'Compensation for Study and Test Taking Time' policy listing 'the maximum hours that apply 'regardless of the number of times that a caregiver must take the certification test in order to pass it.'" Pls.' Reply to Mot. Class Cert. 11 (citation omitted) In sum, if the potential class members prevail on the issue of liability, damages will be calculated based on defendant's computerized records reflecting the wages that each caregiver lost as a result of defendant's unlawful payment practice. 716 F.3d at 514. Accordingly, Page 21 - OPINION AND ORDER See Leyva, common questions of law and fact predominate over any individual issues. VI. Superiority Pursuant to Fed. R. Civ. P. 23(b), certification is proper if "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." 23 (b) (3). Fed. R. Civ. "[T] he purpose of the superiority requirement P. is to assure that the class action is the most efficient and effective means of resol[ution] ." 617 F.3d 1168, 1175 quotations omitted). Wolin v. (9th Cir. Jaguar Land Rover N. Am., LLC, 2010) (citation and internal "The superiority inquiry under Rule 23(b) (3) requires determination of whether the objectives of the particular class action procedure will be achieved in the particular case," which "necessarily involves a comparative evaluation of alternative mechanisms of dispute (citation omitted) . resolution." Hanlon, 150 F. 3d at 1023 "Where recovery on an individual basis would be dwarfed by the cost of litigating on an individual basis, this factor weighs in favor of class certification." Wolin, 617 F.3d at 1175 (citations omitted) Here, it is in the class members' best interest to litigate their claims in a single action. Individual actions would entail increased expenses, duplication of discovery, and a potential for inconsistent results. See Phelps, Enters. v. Weyerhaeuser Co., 2004). 261 ·F. R. D. 2004 WL 2997526, at *5 563; Morelock (D.Or. Dec. 16, Specifically, class members would have "less litigation or settlement leverage, significantly reduced resources and no greater Page 22 - OPINION AND ORDER prospect for recovery" litigate their claims. should they be required to Hanlon, 150 F.3d at 1023. individually In fact, most class members would likely forego pursuing claims, since their individual damages are relatively small and litigating in federal court or elsewhere is costly. In addition, 6 it would be far more time consuming for each individual putative class member to seek and compel discovery. For example, the same hospital administrators would need to be deposed numerous times regarding the same subject matter. Further, the parties would need to individually retain experts and/or litigate damages issues. For these reasons, courts often certify class actions when an employer's wage and hour practices similarly impact a large number of workers. See, e.g., Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978). A class action is thus the most efficient and economical approach for pursuing the claims at issue. P. See Amchem Prods., 521 U.S. at 615 (Fed. R. Civ. 23 exists to vindicate "the rights of groups of people who individually would be without effective strength to bring their opponents into court at all"). 6 While not dispositive, many of the putative class members are unlikely to bring individual actions because defendant led them to believe that they released any and all claims as a result of being compensated for two years of study and test-taking time. As plaintiffs allege, however, putative class members may be entitled to three, as opposed to two, years of back wages and further amounts for penalties or interest. Defendant's behavior further indicates that a class action would best serve the interests of the potential class members. Page 23 - OPINION AND ORDER Moreover, litigation "[p]laintiffs pending know elsewhere" and of no it related is individual undisputed concentrating the litigation in this forum is desirable. Mem. Cert. that Pls.' in Supp. of Mot. Class Cert. 15; Def.'s Resp. to Mot. Class 15-16. Finally, "[a] lthough the proposed class will be large, Plaintiffs do not anticipate any serious problems managing this case as a class action [because] Defendant's payroll records and the transcripts for each caregiver showing the certifications taken are computerized and, as noted, Defendant has already identified the current caregivers entitled to unpaid study and test taking time from January 1, 2010, forward." Pls.' Mem. in Supp. of Mot. Class Cert. 15 (citing Farra Decl. Ex. C). To the extent that plaintiffs prove they are entitled to damages prior to January 1, 2010, the same process can be used to identify current and former caregivers and the wages due to them. the superior vehicle. Page 24 - OPINION AND ORDER Therefore, a class action is CONCLUSION Plaintiffs' GRANTED. motion The parties' for class certification (doc. IT IS SO ORDERED. this~day is requests for oral argument are DENIED as unnecessary. Dated 35) of October 2013. Ann Aiken United States District Judge Page 25 - OPINION AND ORDER

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