FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACK JIMENEZ, individually and on No. 12-56112
behalf of other members of the
general public similarly situated, D.C. No.
Plaintiff-Appellee, 2:10-cv-08486-
JAK-FFM
v.
ALLSTATE INSURANCE COMPANY, an OPINION
Illinois corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted
June 4, 2014—Pasadena, California
Filed September 3, 2014
Before: Ronald M. Gould and N.R. Smith, Circuit Judges,
and Edward R. Korman, Senior District Judge.*
Opinion by Judge Gould
*
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
2 JIMENEZ V. ALLSTATE
SUMMARY**
Class Certification
The panel affirmed the district court’s grant of class
certification to about 800 Allstate Insurance Company
employees in California who alleged that Allstate had a
practice or unofficial policy of requiring its claim adjusters to
work unpaid off the-the-clock overtime in violation of
California law.
The panel held that the district court did not abuse its
discretion in applying Fed. R. Civ. P. 23(a)(2)’s commonality
requirement.
The panel also held that the class certification order did
not violate Allstate’s due process rights. Specifically, the
panel held that the class certification order preserved
Allstate’s opportunity to raise any individualized defenses at
the damages phase, and that the district court’s approval of
statistical modeling did not violate Allstate’s due process
rights.
COUNSEL
James M. Harris (argued), Andrew M. Paley, Sheryl L.
Skibbe, John R. Giovannone, and Kiran Aftab Seldon,
Seyfarth Shaw LLP, Los Angeles, California, for Defendant-
Appellant.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
JIMENEZ V. ALLSTATE 3
Alexander R. Wheeler (argued), R. Rex Parris, Kitty Szeto,
Jacob L. Karczewski, and John M. Bickford, R. Rex Parris
Law Firm, Lancaster, California, for Plaintiff-Appellee.
Gretchen M. Nelson, Kreindler & Kreindler LLP, Los
Angeles California; and David M. Arbogast, Arbogast Bowen
LLP, Los Angeles, California, for Amici Curiae The
Consumer Attorneys of California, California Employment
Lawyers Association, and The Impact Fund.
OPINION
GOULD, Circuit Judge:
Allstate appeals from the district court’s grant of class
certification to Jack Jimenez and about 800 other Allstate
employees in California who allege that Allstate has a
practice or unofficial policy of requiring its claims adjusters
to work unpaid off-the-clock overtime in violation of
California law. We have jurisdiction under 28 U.S.C.
§ 1292(e), and we affirm.
I
Allstate has 13 local offices in California, which are
individually managed but under centralized leadership.1 At
those 13 offices, Allstate employs five categories of claims
1
We draw the factual background for our opinion from the district
court’s class-certification order. The district court’s factual findings are
reviewed for clear error, Berger v. Home Depot USA, Inc., 741 F.3d 1061,
1066 (9th Cir. 2014), and neither party has challenged those findings on
appeal.
4 JIMENEZ V. ALLSTATE
adjusters: Auto, Liability Determination, Casualty, Property,
and a Special Investigation Unit. Some adjusters spend most
of their work day in a particular office (“inside” adjusters),
while others, although they are officially assigned to a
particular office, spend most of their time in the field
(“outside” adjusters). The amount and type of work, as well
as the level and quality of claims adjusters’ interaction with
managers, varies between offices, between categories of
adjusters, and between inside and outside adjusters.
In 2005, Allstate shifted all of its California-based claims
adjusters to hourly status from exempt, or salaried, positions.
Before that reclassification, claims adjusters often worked
more than 8 hours per day or 40 hours per week. Since the
reclassification, claims adjusters’ workload has been
substantially the same as it was before the reclassification,
their compensation is still referred to as an annual salary, and
hourly payment rates are not shared with current or
prospective employees.
Claims adjusters do not keep time records. Rather, the
manager of each local office has the power to file a
timekeeping “exception” or “deviation” from the default
expectation of 8 hours per day and 40 hours per week. This
adjustment takes place when a claims adjuster’s request for
overtime or early leave is approved. Managers do not adjust
time cards based on either their own observations of work
habits or on the technological records contained in computer
and telephone systems. Each local office has a non-
negotiable compensation budget, which creates a functional
limit on the amount of overtime a manager may approve.
Jimenez filed a class action suit alleging that Allstate had
not paid overtime to current and former California-based
JIMENEZ V. ALLSTATE 5
claims adjusters in violation of California Labor Code §§ 510
and 1198 and had not paid adjusters for missed meal breaks
in violation of California Labor Code §§ 226.7 and 512(a).
The complaint also made derivative claims that Allstate had
not timely paid wages upon termination in violation of
California Labor Code §§ 201 and 202, had issued non-
compliant wage statements in violation of California Labor
Code § 226(a), and had engaged in unfair competition in
violation of California Business and Professions Code
§ 17200.
The district court certified the class with respect to the
unpaid overtime, timely payment, and unfair competition
claims.2 It found that Jimenez had presented sufficient
evidence to establish the following common questions under
Federal Rule of Civil Procedure 23(a)(2):3
(i) whether class members generally worked
overtime without receiving compensation as
a result of Defendant’s unofficial policy of
discouraging reporting of such overtime,
Defendant’s failure to reduce class members’
workload after the reclassification, and
2
The district court did not certify the class with respect to the meal
break and wage statement claims because, in contrast to the off-the-clock
claim, Jimenez did not bring forth evidence of specific policies or
practices that would have caused claims adjusters as a group not to take
breaks. It also excluded all members of a currently ongoing class of auto-
field adjusters. Jimenez did not appeal these parts of the class certification
order.
3
The district court’s class certification order discussed all applicable
Rule 23 prongs, but because this appeal focuses on commonality, we do
not repeat the district court’s findings on other issues here.
6 JIMENEZ V. ALLSTATE
Defendant’s policy of treating their pay as
salaries for which overtime was an
“exception”; (ii) whether Defendant knew or
should have known that class members did so;
and (iii) whether Defendant stood idly by
without compensating class members for such
overtime.
Under Rule 23(b)(3), the district court held that the common
question of whether Allstate had an “unofficial policy” of
denying overtime payments while requiring overtime work
predominated over any individualized issues regarding the
specific amount of damages a particular class member may be
able to prove. Finally, it held that class treatment was a
superior method of adjudication because statistical sampling
of class members could accurately and efficiently resolve the
question of liability, while leaving the potentially difficult
issue of individualized damage assessments for a later day.
We granted permission for an interlocutory appeal under
Federal Rule of Civil Procedure 23(f). See Chamberlan v.
Ford Motor Co., 402 F.3d 952, 959 (9th Cir. 2005). Allstate
timely perfected its appeal, and this proceeding followed.
II
We review a district court’s class certification order for
abuse of discretion. Berger, 741 F.3d at 1066–67. A class
certification order is an abuse of discretion if the district court
applied an incorrect legal rule or if its application of the
correct legal rule was based on a “factual finding that was
illogical, implausible, or without support in inferences that
may be drawn from the facts in the record.” Leyva v. Medline
Indus. Inc., 716 F.3d 510, 513 (9th Cir. 2013) (quoting United
JIMENEZ V. ALLSTATE 7
States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en
banc)).
III
Allstate raises two substantial legal challenges to the
district court’s class certification order. First, it argues that
the order does not comply with Rule 23 because the common
questions it identified will not resolve class-wide liability
issues. Second, it argues that the district court’s approval of
statistical modeling violates Allstate’s due process rights and
conflicts with Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541
(2011). For the reasons given below, we affirm the ruling of
the district court.
A
Allstate’s first argument is that the district court’s class
certification order misapplied Rule 23(a)(2)’s commonality
requirement.4 “The Supreme Court has recently emphasized
that commonality requires that the class members’ claims
‘depend upon a common contention’ such that ‘determination
4
Allstate’s opening brief includes two cursory statements that the
district court’s order also incorrectly applied Rule 23(b)(3)’s requirement
that classwide questions predominate over individual issues. That is not
enough to preserve the issue for appeal. See, e.g.,United States v.
Stoterau, 524 F.3d 988, 1003 fn. 7 (9th Cir. 2008) (“These contentions are
general, mentioned only in passing, and are unsupported by meaningful
argument. Accordingly, they are waived.”); Greenwood v. FAA, 28 F.3d
971, 977 (9th Cir. 1994) (“We review only issues which are argued
specifically and distinctly in a party’s opening brief. We will not
manufacture arguments for an appellant, and a bare assertion does not
preserve a claim.”). However, if we were to reach that claim, we would
affirm the district court’s predominance holding for many of the same
reasons that we affirm the result of its commonality analysis.
8 JIMENEZ V. ALLSTATE
of its truth or falsity will resolve an issue that is central to the
validity of each claim in one stroke.’” Mazza v. Am. Honda
Motor Co., 666 F.3d 581, 588 (9th Cir. 2012) (quoting Dukes,
131 S.Ct at 2551) (internal alteration omitted). These
common questions may center on “shared legal issues with
divergent factual predicates [or] a common core of salient
facts coupled with disparate legal remedies.” Hanlon v.
Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). We
agree with the district court’s determination that the three
common questions identified in this case have that capacity
because of their close relationship with the three prongs of the
underlying substantive legal test.
This analysis does not turn on the number of common
questions, but on their relevance to the factual and legal
issues at the core of the purported class’ claims. Compare
Dukes, 131 S.Ct. at 2556 ( “We quite agree that for purposes
of Rule 23(a)(2), even a single common question will do.”)
(internal quotation marks omitted), Wang v. Chinese Daily
News, 737 F.3d 538, 544 (9th Cir. 2013) (“Plaintiffs need not
show that every question in the case, or even a preponderance
of questions, is capable of classwide resolution.”), Mazza,
666 F.3d at 589 (“[C]ommonality only requires a single
significant question of law or fact.”), with Dukes, 131 S.Ct.
at 2551 (“What matters to class certification is not the raising
of common ‘questions’—even in droves.”) (quoting
Nagareda, Class Certification in the Age of Aggregate Proof,
84 N.Y.U. L.Rev. 97, 132 (2009) (alteration omitted)). As
Dukes and all of our subsequent caselaw have made clear, a
class meets Rule 23(a)(2)’s commonality requirement when
the common questions it has raised are “apt to drive the
resolution of the litigation,” no matter their number.
Abdullah, 731 F.3d at 962 (quoting Dukes, 131 S.Ct. at 2551.)
JIMENEZ V. ALLSTATE 9
Whether a question will drive the resolution of the
litigation necessarily depends on the nature of the underlying
legal claims that the class members have raised. Parsons v.
Ryan, 754 F.3d 657, 676 (9th Cir. 2014) (“commonality
cannot be determined without a precise understanding of the
nature of the underlying claims.”); see also Abdullah,
731 F.3d at 958–63 (comparing a common question to the
elements of California’s “nature of the work” standard in an
employment classification class action). Under California
law, there are three elements of an off-the-clock claim of the
type raised by the class here: “[A] plaintiff may establish
liability for an off-the-clock claim by proving that (1) he
performed work for which he did not receive compensation;
(2) that defendants knew or should have known that plaintiff
did so; but that (3) the defendants stood idly by.” Adoma v.
Univ. of Phoenix, Inc., 270 F.R.D. 543, 548 (E.D. Cal. 2010)
(internal quotation marks omitted).
Each of the three common questions recognized by the
district court will drive the answer to the plaintiffs’ claims on
one of these three elements of their claim. First, the district
court found that the plaintiffs’ arguments had raised the
common question of whether the class had worked unpaid
overtime as a result of “Defendant’s unofficial policy of
discouraging reporting of such overtime, Defendant’s failure
to reduce class members’ workload after the reclassification,
and Defendant’s policy of treating their pay as salaries for
which overtime was an “exception.” Proving at trial whether
such informal or unofficial policies existed will drive the
resolution of prong one of the Adoma test.5 The second
5
Allstate argues that its formal policies which call for employees to be
paid for all overtime worked are lawful, and that the alleged informal
“policy-to-violate-the-policy” does not exist. This argument is
10 JIMENEZ V. ALLSTATE
common question was whether Allstate “knew or should have
known” that the class was working unpaid overtime, which
plaintiffs allege could be shown through either the testimony
of managers who saw the class members work schedules or
through an analysis of the telephone and computer systems
used by class members. Resolution of this common
question–whether in favor of the class or in favor of
Allstate–will tend to show whether Allstate is liable under the
second Adoma prong.6 Finally, the third common question,
whether “Defendants stood idly by,” repeats verbatim the
standard from the third Adoma prong. The close connection
between the common questions noted by the district court and
the legal test it must apply to determine whether plaintiffs can
make out an off-the-clock claim under California law means
appropriately made at trial or at the summary judgment stage, as it goes
to the merits of the plaintiffs’ claim. See In re Whirlpool Corp.
Front-Loading Washer Products Liab. Litig., 722 F.3d 838, 857 (6th Cir.
2013) (noting that if a defendant has a strong argument against classwide
liability, it “should welcome class certification” as that allows it the
opportunity to resolve claims of all class members at once). Whether any
of these common questions are ultimately resolved in favor of either side
is immaterial at this class certification stage, where we determine whether
any answer that the questions could produce will drive resolution of the
class’ claims.
6
Allstate also argues that the district court improperly expanded the
second element of California’s three part test for “off-the-clock” claims
by allowing plaintiffs to proceed on a theory that Allstate “could have
known” rather than “knew or should have known” about the alleged
unpaid overtime. See Adoma, 270 F.R.D. at 548. “We review de novo a
district court’s interpretation of law, including state law.” Trishan Air,
Inc. v. Fed. Ins. Co., 635 F.3d 422, 426-27 (9th Cir. 2011). The district
court’s order recited the correct legal standard and noted reasons that the
evidence brought forth by Jimenez and the class had the potential to meet
that burden as properly understood. The district court did not err in its
application of California law.
JIMENEZ V. ALLSTATE 11
that these are precisely the kind of common questions that
Rule 23(a)(2) and Dukes require.
The district court did not abuse its discretion in
determining that these three common questions contained the
“glue” necessary to say that “examination of all the class
members’ claims for relief will produce a common answer to
the crucial question[s]” raised by the plaintiffs’ complaint.
Dukes, 131 S. Ct. at 2552.
B
Allstate’s second contention is that the district court’s
class certification order violated Allstate’s due process rights
in two ways. First, it argues that the order improperly limited
Allstate’s ability to raise affirmative defenses at trial,7 and
second, it argues that the use of statistical sampling among
class members to determine liability contradicts Dukes.
In Dukes, the Supreme Court reversed certification of a
class of employees because the employer was “entitled to
individualized determination of each employee’s eligibility
for backpay.” 131 S.Ct. at 2560. In making this holding, the
Court relied on two key factors. First, it noted as significant
that its holding was made in the context of a class certified
under Rule 23(b)(2), which contains fewer procedural
safeguards than Rule 23(b)(3). Id. And second, it looked at
7
Allstate raised three potential affirmative defenses to the class’ claims:
that class members performed only de minimis amounts of off-the-clock
overtime, that knowledge of any substantial off-the-clock work could not
reasonably be imputed to managers, and that class members may have
unreasonably failed to pursue compensation for their off-the-clock work.
The merits of these claims are not before us in this appeal, and we take no
position on them.
12 JIMENEZ V. ALLSTATE
the statutory context of Title VII suits, which explicitly
includes affirmative defenses relating to motive and
alternative explanations. Id. at 2561 (noting the need for
class procedures to “give[] effect to . . . statutory
requirements”). In a more recent case, Comcast Corp. v.
Behrend, 133 S.Ct. 1426 (2013), the Supreme Court
expanded on the notion that individualized determinations of
certain questions were necessary to comply with the Fifth
Amendment’s Due Process Clause. Reversing the Third
Circuit’s affirmance of class certification under Rule
23(b)(3), the Court held that a methodology for calculation of
damages that could not produce a class-wide result was not
sufficient to support certification. Comcast, 133 S.Ct. at
1434–35 (noting the “nearly endless” permutations of
potential damages issues arising out of the model’s flaws).
However, none of the problems identified by Dukes or
Comcast exist in the district court’s certification order here.8
Since Dukes and Comcast were issued, circuit courts
including this one have consistently held that statistical
sampling and representative testimony are acceptable ways to
determine liability so long as the use of these techniques is
not expanded into the realm of damages.
In this circuit, Leyva v. Medline Industries, Inc., 716 F.3d
510 (9th Cir. 2013), is the controlling case. There, we held
8
The parties contest whether Dukes and Comcast apply in the same
fashion to classes certified under Rule 23(b)(2) as opposed to Rule
23(b)(3) classes and whether there may be a potential distinction between
statutory and non-statutory affirmative defenses. We need not resolve
these doctrinal complications to resolve this case. Assuming without
deciding that all of the requirements of Dukes apply here, the class
certification order was not an abuse of discretion or a violation of
Allstate’s due process rights.
JIMENEZ V. ALLSTATE 13
that a district court’s denial of class certification was an abuse
of discretion. Id. at 513–14. The district court had denied
certification because individual issues predominated on
damages calculations. We reversed because we recognized
that “damages determinations are individual in nearly all
wage-and-hour class actions,” id. at 513 (quoting Brinker
Rest. Corp. v. Superior Court, 273 P.3d 513, 546 (Cal. 2012),
and “[i]n this circuit . . . damage calculations alone cannot
defeat class certification,” id. (quoting Yokoyama v. Midland
Nat’l Life Ins. Co., 594 F.3d 1087, 1094 (9th Cir. 2010). We
therefore held that the district court had applied the wrong
legal standard, a per se abuse of discretion, id. at 514 (citing
Hinkson, 585 F.3d at 1263.
Similar positions have been adopted by those of our sister
circuits that have faced related issues after the Supreme
Court’s Dukes and Comcast decisions. In re Whirlpool
affirmed a grant of class certification in a consumer class
action alleging product liability claims. 722 F.3d at 850–61.
In that case, the Sixth Circuit held that, “no matter how
individualized the issue of damages may be, determination of
damages may be reserved for individual treatment with the
question of liability tried as a class action,” a position that it
said held true even when some consumers might have no
harms at all. Id. at 853–55 (internal quotation marks
omitted). Butler v. Sears, Roebuck and Co., 727 F.3d 796,
801–02 (7th Cir. 2013) affirmed class certification for a group
of plaintiffs alleging very similar product liability claims as
those in Whirlpool. Judge Posner’s opinion for the Seventh
Circuit concluded that “[i]t would drive a stake through the
heart of the class action device . . . to require that every
member of the class have identical damages.” Id. at 801. He
noted that the existence of a “single, central, common issue
of liability” was sufficient to support class certification, and
14 JIMENEZ V. ALLSTATE
the defendant was free to address complications with the
district court during the damages phase. Id. at 801–02. More
recently, the Fifth Circuit in In re Deepwater Horizon,
739 F.3d 790, 810–17 (5th Cir. 2014) affirmed certification
of a settlement class for those harmed by the an oil spill in the
Gulf of Mexico. BP challenged the proposed settlement on
the grounds that the claims from thousands of plaintiffs in the
Gulf region were too disparate to meet Rule 23(a)(2)’s
commonality requirement. The Fifth Circuit rejected this
argument, holding that the proper focus of the analysis was
the defendant’s conduct, and “even an instance of injurious
conduct” satisfies Rule 23, Dukes, and due process. Id. at
810–11. So long as the plaintiffs were harmed by the same
conduct, disparities in how or by how much they were
harmed did not defeat class certification. Id. We conclude
that these cases are compelling. And their reasoning is
consistent with our circuit precedent in Leyva.9
In crafting the class certification order in this case, the
district court was careful to preserve Allstate’s opportunity to
9
The California Supreme Court’s recent decision in Duran v. U.S. Bank
Nat’l Association, 325 P.3d 916 (Cal. 2014) is not to the contrary. While
it reversed the result of a trial that had used statistical sampling and
representative testimony to find in favor of a class of employees alleging
mis-classification under California labor laws, it did not place a wholesale
bar on the use of such tactics. Id. at 939 (“We need not reach a sweeping
conclusion as to whether or when sampling should be available as a tool
for proving liability in a class action.”) Rather, it noted serious problems
with the size of the sample, the way it was selected, and the application of
sample evidence to the larger class. Id. at 940–45. These errors required
reversal because the sample itself was so flawed as to violate the
defendant’s due process rights and California class certification principles.
Id. at 945. That is not the question we face in this appeal.
JIMENEZ V. ALLSTATE 15
raise any individualized defense it might have at the damages
phase of the proceedings. It rejected the plaintiffs’ motion to
use representative testimony and sampling at the damages
phase, and bifurcated the proceedings. This split preserved
both Allstate’s due process right to present individualized
defenses to damages claims and the plaintiffs’ ability to
pursue class certification on liability issues based on the
common questions of whether Allstate’s practices or informal
policies violated California labor law.
Further, the district court carefully analyzed the specific
statistical methods proposed by plaintiffs. It struck some of
the expert testimony offered by plaintiffs as insufficiently
empirically supported and took pains to ensure that the
statistical analysis it did accept conformed to the legal
questions to which the analysis was being applied. Unlike the
putative class in Comcast, 133 S.Ct. at 1434, which relied on
statistical analysis that was not closely tied to the relevant
legal questions, or in Duran, 325 P.3d at 940, which used a
sample of 20 names drawn from a hat without evidence
showing that the number of names chosen or the method of
selection would produce a result that could be “fairly
extrapolated to the entire class,” the district court has
accepted a form of statistical analysis that is capable of
leading to a fair determination of Allstate’s liability, and
preserved the rights of Allstate to present its damages
defenses on an individual basis. The district court did not
abuse its discretion by entering its class certification order,
and did not violate Allstate’s due process rights.
16 JIMENEZ V. ALLSTATE
IV
The district court’s class certification order is affirmed.
The case is remanded to the district court for further
proceedings consistent with this opinion.
AFFIRMED.