Litigating California Wage & Hour and Labor Code Class Actions

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purposes, are mass actions, i.e., actions in which monetary claims by 100 or more plaintiffs are proposed to be tried jointly because they involve common questions of law or fact. 301 The CAFA is not retroactive and does not apply to class actions filed in state court before its enactment on February 18, 2005, and removed to federal court after that date. 302 C. Removal Under CAFA The burden of establishing removal jurisdiction remains on the proponent of federal jurisdiction. 303 Removal must be timely and must be done during one of two thirty-day periods for removing the case. The first thirty-day removal period is triggered “if the case stated by the initial pleading is removable on its face.” 304 The second thirty-day removal period is triggered if the initial pleading does not indicate that the case is removable, and the defendant receives “a copy of an amended pleading, motion, order or other paper” from which removability may first be ascertained. 305 If a complaint alleges damages in excess of $5 million, then the amount in controversy is ”presumptively satisfied” unless it appears to a legal certainty that the claim is actually for less than the jurisdictional minimum. 306 If the complaint fails to specify any amount in damages, the removal papers must provide the court with facts to support the jurisdictional amount. Moreover, the Ninth Circuit has held that the defendant seeking removal must prove by a “preponderance of the evidence” that the amount in controversy has been met. 307 The third, and possibly the most important, scenario is when the complaint alleges that the amount in controversy is less than $5 million. The Ninth Circuit addressed this scenario in Lowdermilk v. United States Bank. 308 When this sort of pleading occurs, the removing defendant must prove to a “legal certainty” that the CAFA amount in controversy has been met. The Ninth Circuit first noted that federal courts are courts of “limited jurisdiction” and therefore should strictly construe subject matter jurisdiction. 309 Second, the court noted that 301 302 303 304 305 306 307 308 309 Id. § 1332 (d) (11)(B)(i). See Bush v. Cheaptickets, Inc., 425 F.3d 683 (9th Cir. 2005). Lowdermilk v. United States Bank National, 479 F.3d 994, 997 (9th Cir. 2007); Lewis v. Verizon Comm’n, Inc., 2010 WL 4645465, 4 (9th Cir. 2010). Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005). Carvalho v. Equifax Info. Serv., LLC, 629 F.3d 876, 885 (9th Cir. 2010). Lowdermilk, 479 F.3d at 998; Abrego Abrego v. Dow Chem. Co., 443 F.3d 676 n.8 (9th Cir. 2006). Abrego Abrego, 443 F.3d at 683. Lowdermilk, 479 F.3d at 1000. Id. at 998. Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 68
the plaintiff is “master of her complaint” and can plead to avoid federal jurisdiction. 310 Moreover, the court raised the bar in cases where there is no evidence of bad faith, requiring the defendant to not only contradict the plaintiff’s own assessment of damages, but also overcome the presumption against federal jurisdiction. 311 1. “Other Paper” Requirement Defendants should be aware that mere verbal statements that opposing counsel or the plaintiff make regarding the amount in damages may not be enough. In fact, several courts in the Ninth Circuit have held that oral statements generally are not the “other paper” that can trigger removal. 312 These decisions considered only oral statements made in the context of mediation and settlement communications, so it is unclear whether oral statements made in other contexts can be used to satisfy the “other paper” requirement. The Ninth Circuit has established the framework for determining whether the amount in controversy meets the jurisdictional threshold. A district court “may consider whether it is ‘facially apparent’ from the complaint that the jurisdictional amount is in controversy. If not, the court may consider facts in the removal petition, and may ‘require parties to submit summary-judgment-type evidence relevant to the amount in controversy at the time of removal’.” 313 2. Premature Removal and Sanctions The Ninth Circuit has made clear that it disfavors premature removal. The seminal case, Abrego Abrego v. The Dow Chemical Co., reaffirmed the principle of “guard[ing] against premature and protective removals and minimiz[ing] the potential for a cottage industry of removal litigation.” 314 The court reminded the parties that CAFA’s legislative history agreed with such a conclusion, citing to a portion of the Senate Judiciary Committee Report: The Committee understands that in assessing the various criteria established in all these new jurisdictional provisions, a federal court may 310 311 312 313 314 Id. at 999. Id. See Molina v. Lexmark Int’l, Inc., 2008 U.S. Dist. LEXIS 22031, at *4 (C.D. Cal. 2008) (holding that oral communications during settlement do not constitute “other papers for the purposes of § 1446(b)”); see also Jiminez v. Sears, Roebuck & Co., 2010 U.S. Dist. LEXIS 22031, at *4 (C.D. Cal. 2010); see also Mendoza v. OM Fin. Life Ins. Co., 2009 U.S. Dist. LEXIS 59008 (N.D. Cal. 2009). Singer v. State Farm Mutual Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997) (citing Allen v. R&H Oil & Gas Co., 63 F.3d 1326 (5th Cir. 1995)). Abrego Abrego, 443 F.3d at 691. Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 69
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Litigating California Wage & Hour a
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Table of Contents I. Introduction a
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A. Disclosure of Class Member Names
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associated statutory penalties. 1 T
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who does not meet the threshold com
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exempt work is of a kind which in e
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3) The employee performs his or her
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decisions have concluded that under
Page 17 and 18:
Bell court to look beyond the Wage
Page 19 and 20: place of business, would that quali
Page 21 and 22: IWC had the authority to promulgate
Page 23 and 24: stores” by providing them a porti
Page 25 and 26: declare such a system illegal witho
Page 27 and 28: employers should be able to defend
Page 29 and 30: waive the right to reimbursement, s
Page 31 and 32: Due to the ambiguity in the meaning
Page 33 and 34: For each workday the employer fails
Page 35 and 36: Arguably, no additional $100-per-pa
Page 37 and 38: permitted” the employee to work t
Page 39 and 40: federal decisions also held that an
Page 41 and 42: for all overtime hours worked. The
Page 43 and 44: much broader, such as the court’s
Page 45 and 46: In the appeal of Chau, the appellat
Page 47 and 48: years before the lawsuit, or for an
Page 49 and 50: imposition of penalties, 194 routin
Page 51 and 52: In one such class action, Elliot v.
Page 53 and 54: First, there has been a substantial
Page 55 and 56: Recent court decisions have begun t
Page 57 and 58: of her hours was paid at a rate of
Page 59 and 60: the limitations period for a penalt
Page 61 and 62: passage, then the employee could st
Page 63 and 64: all, but rather simply to proceed w
Page 65 and 66: Shortly thereafter, another Divisio
Page 67 and 68: and the ability to bring a collecti
Page 69: XIII. Class Action Fairness Act of
Page 73 and 74: alleged conduct or any related cond
Page 75 and 76: Initially, the decisions were split
Page 77 and 78: XIV. Class Certification A. General
Page 79 and 80: expectations and the realistic requ
Page 81 and 82: In the immediate wake of Sav-On, th
Page 83 and 84: Similarly, employers may argue that
Page 85 and 86: A 5 to 4 ruling reversed the Ninth
Page 87 and 88: facility to the next, or variations
Page 89 and 90: employer’s defense arsenal, and t
Page 91 and 92: In reaching this conclusion, the Co
Page 93 and 94: party who seeks the same relief, pr
Page 95 and 96: is to be so maintained.” This det
Page 97 and 98: speech. 429 Therefore, the court he
Page 99 and 100: Puerto, or Crab Addison cases would
Page 101 and 102: epresentative. That question was an
Page 103 and 104: CashCall to disclose the identities
Page 105 and 106: nothing but still are bound by the
Page 107 and 108: Initially, there appeared to be a v
Page 109 and 110: the case. As any one of these class
Page 111 and 112: have any great impact on class sett
Page 113 and 114: plaintiff’s attorney and putative
Page 115 and 116: the California Supreme Court issued
Page 117 and 118: While California courts have essent
Page 119 and 120: The plaintiffs attempted to justify
Page 121:
Breadth. Depth. Results. www.seyfar
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