Achieving Appellate Victories for Insurer in Wage-Hour Class Action
A company’s first and often best opportunity to successfully defend a wage-hour class action is to defeat certification of the proposed class. Epstein Becker Green has successfully opposed class certification in many wage-hour actions. For example, on behalf of a national insurance company, Epstein Becker Green defeated class certification in a decision that withstood two appellate challenges within the past year.
As we reported, a Los Angeles Superior Court denied class certification on claims that the plaintiffs, property inspectors working for the national insurance company, had been misclassified as independent contractors, denied meal and rest periods, and provided inaccurate wage statements, among other things. This case was unusual in that the plaintiffs proposed trying the class action in a day or two through a single witness—their expert, who would testify about what he was told in an anonymous, non-random survey. Epstein Becker Green’s client and the other defendants would never be allowed to cross-examine a single putative class member at trial, let alone know who had participated in the survey. Also, there would be no repercussions if a class member lied or exaggerated as a result. Ironically, the plaintiff’s expert testified that putative class members could be expected to remember the lengths of breaks they took 10 years ago—but the expert couldn’t remember how long his own breaks were during his deposition for the case!
The plaintiffs appealed the trial court’s decision, but in late 2018, a California court of appeal affirmed the trial court’s denial of class certification. (The appellate decision tackled a number of issues that had not previously been addressed by the courts of appeal, including the standards for using surveys to establish liability in class actions.) The court of appeal adopted many of Epstein Becker Green’s arguments wholesale in its decision. The plaintiffs/appellants then petitioned the court of appeal for a rehearing, which was granted. However, after the rehearing, in July 2019, the court of appeal again sided with Epstein Becker Green’s position and upheld the denial of class certification.
The Epstein Becker Green team included Michael S. Kun and Kevin Sullivan.