FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD SULLIVAN; DEANNA EVICH; No. 06-56649
RICHARD BURKOW, D.C. No.
Plaintiffs-Appellants, CV-05-00392-AHS
v.
ORACLE CORPORATION, a Delaware ORDER
CERTIFYING
corporation; ORACLE UNIVERSITY, QUESTIONS TO
form unknown, THE SUPREME
Defendants-Appellees. COURT OF
CALIFORNIA
Filed February 17, 2009
Before: William A. Fletcher and Ronald M. Gould,
Circuit Judges, and Louis H. Pollak,*
Senior District Judge.
ORDER
We respectfully ask the California Supreme Court to exer-
cise its discretion to accept and decide the certified questions
below, pursuant to California Rule of Court 8.548.
I. Statement of Facts and Procedural Background
Defendant Oracle Corporation (“Oracle”) is a Delaware
corporation with its principal place of business in California.
Plaintiffs are “Instructors” — to use Oracle’s term — who
trained customers to use Oracle software. The parties stipu-
*The Honorable Louis H. Pollak, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
1841
1842 SULLIVAN v. ORACLE CORP.
lated in federal district court that from April 1999 to June
2006 (the date of the stipulation) Oracle “utilized Instructors
on a contract basis through its subsidiary, Oracle Corporation
Canada, to perform work inside the United States [and] inside
the State of California.” According to the stipulation, Oracle
provided the training materials used by Plaintiffs. Oracle “rec-
ognized revenue” for work performed by Plaintiffs in the
United States (including California). Oracle “required its
Instructors to travel to destinations within the United States
away from their city of domicile for the purpose of perform-
ing work for Oracle.” At all relevant times, all three plaintiffs
resided in the United States. All three of them received their
letters of employment in their home states.
Plaintiff Donald Sullivan worked as an Oracle Instructor
from June 1998 to January 2004. During this period, Sullivan
resided in Colorado. During 2001, Sullivan worked in Colo-
rado “on at least 150 days”; he worked in California “on 32
days”; and he worked in other states “on at least” 52 days.
During 2002, he worked in Colorado “on at least 150 days”;
he worked in California “on 12 days”; and he worked in other
states “on at least” 20 days. During 2003, he worked in Colo-
rado “on at least 150 days”; he worked in California “on 30
days”; and he worked in other states “on at least” 19 days.
The record does not reflect how many days, if any, Sullivan
worked in Canada.
Plaintiff Deanna Evich worked as an Oracle Instructor from
August 1999 to July 2004. During this period, Evich resided
in Colorado. During 2001, Evich worked in Colorado “at least
150 days”; she worked in California “on 33 days”; and she
worked in other states “on at least” 3 days. During 2002, she
worked in Colorado “on approximately 30 days”; she worked
in California “on 11 days.” During 2003, she worked in Colo-
rado “on approximately 30 days”; she worked no days in Cali-
fornia. During 2004, she worked in Colorado “on at least 100
days”; she worked in California “on 36 days”; and she worked
SULLIVAN v. ORACLE CORP. 1843
in other states “on at least” 4 days. The record does not reflect
how many days, if any, Evich worked in Canada.
Plaintiff Richard Burkow worked as an Oracle Instructor
from March 1998 to April 2002. During this period, Burkow
resided in Arizona. During 2001, Burkow worked in Arizona
“on at least 100 days”; he worked in California “on 15 days”;
and he worked in other states “on at least” 68 days. During
2002, he worked in Arizona “on at least 60 days”; he worked
in California “on five days”; and he worked in other states
“on at least” 12 days. The record does not reflect how many
days, if any, Burkow worked in Canada.
For a number of years, Oracle classified its Instructors as
“teachers,” who are exempt from the overtime provisions of
California’s Labor Code (“Labor Code”) and the federal Fair
Labor Standard Act (“FLSA”). See Cal. Sch. of Culinary Arts
v. Lujan, 4 Cal. Rptr. 3d 785, 791-92 (Ct. App. 2003)
(describing regulations establishing exemption for teachers
from the Labor Code’s overtime provisions); 29 U.S.C.
§ 213(a)(1) (providing exemptions from the FLSA’s overtime
provisions); 29 C.F.R. §§ 541.303(a)-(b) (applying FLSA
exemption to certain categories of teachers). The parties stipu-
lated that Oracle’s California offices were primarily responsi-
ble for the decision to classify the Instructors as “teachers”
who were exempt from the overtime provisions of the Labor
Code and the FLSA.
In 2003, Oracle reclassified its California-based Instructors
and began paying them overtime under the Labor Code. In
2004, Oracle reclassified all of its Instructors working in the
United States and began paying them overtime under the
FLSA. Oracle has not retroactively provided overtime pay-
ments to the plaintiffs in the suit before us for work they per-
formed in California prior to the reclassification.
Oracle’s reclassification of its Instructors appears to have
been prompted by a 2003 class action in federal district court
1844 SULLIVAN v. ORACLE CORP.
for the Central District of California. Plaintiffs in that suit
claimed that Oracle misclassified its Instructors under the
Labor Code and the FLSA. Gabel & Sullivan v. Oracle
(“Sullivan I”), Case No. SACV 03-348 AHS (MLGx) (C.D.
Cal. Mar. 29, 2005). The district court certified two classes.
The first was comprised of plaintiffs seeking damages under
the Labor Code; the second was comprised of plaintiffs seek-
ing damages under the FLSA. That suit was settled, resulting
in a dismissal with prejudice of claims of both classes. How-
ever, claims brought by plaintiffs under California law “for
periods of time they may have worked in the State of Califor-
nia when they were not a resident of the State” were excepted
from the settlement. Those claims were dismissed without
prejudice.
Plaintiffs brought the present suit in state court shortly after
the settlement in Sullivan I. Oracle removed the suit to the
federal district court for the Central District of California,
where it was assigned to the same district judge as Sullivan
I. Plaintiffs allege three claims in the present suit. They seek
class certification for all three claims.
The first claim, brought by all three Plaintiffs, alleges a vio-
lation of the California Labor Code. See, e.g., Cal. Lab. Code
§ 510(a); see also Burnside v. Kiewit Pac. Corp., 491 F.3d
1053, 1073 n.18 (9th Cir. 2007). Plaintiffs allege that Oracle
failed to pay overtime for work performed in California to
Instructors domiciled in other states who worked complete
days and complete weeks in California. Plaintiffs seek to
apply the Labor Code to a full day’s work when that work
was performed entirely in California, and to a full week’s
work when that work was performed entirely in California.
They do not seek to apply the Labor Code to only a part of
a day’s work or part of a week’s work that was performed in
California.
The second claim, brought by all three Plaintiffs, alleges a
violation of California’s Unfair Competition Law, commonly
SULLIVAN v. ORACLE CORP. 1845
referred to as § 17200. See Cal. Bus. & Prof. Code § 17200
et seq. This claim is predicated on the violations of the Labor
Code alleged in the first claim.
The third claim, brought only by Plaintiffs Evich and Bur-
kow, alleges a different violation of § 17200. This claim is
predicated on violations of the FLSA. Plaintiffs allege that
Oracle failed to pay overtime under the FLSA for work per-
formed throughout the United States. Class members in Sulli-
van I who settled their claims against Oracle are not included
in the would-be class.
The district court granted summary judgment to Oracle on
all three claims. On the first and second claims, the court held
that California’s Labor Code (and, derivatively, § 17200) does
not apply to nonresidents who work primarily in other states.
Further, the court held that if the Labor Code were construed
to apply to such work, it would violate the Due Process
Clause of the Fourteenth Amendment. On the third claim, the
court held that § 17200 does not apply to work performed out-
side California for which payment was less than that required
by the FLSA; to the extent the third claim involved work per-
formed in California the claim failed “for the same reasons
that Plaintiffs’ § 17200 claim based on Labor Code provisions
fails.”
In a published opinion, we reversed in part and affirmed in
part the decision of the district court. Sullivan v. Oracle Corp.
(Sullivan II), 547 F.3d 1177 (9th Cir. 2008). We reversed on
the first and second claims, holding that the Labor Code and
§ 17200 apply to Plaintiffs’ overtime work that was per-
formed in California. Id. at 1181-86. We affirmed on the third
claim, holding that § 17200 does not apply to Plaintiffs’ over-
time work performed outside of California even if the
employer violated the FLSA. Id. at 1186-87.
Oracle filed a petition for rehearing en banc of our decision
on the first and second claims. Plaintiffs filed a petition for
1846 SULLIVAN v. ORACLE CORP.
rehearing by the panel on the third claim. The California
Employment Law Council, the California Restaurant Associa-
tion, and the Employers’ Group each filed amicus briefs in
support of Oracle’s petition for rehearing en banc on the first
and second claims.
II. Certified Questions
We certify the following questions to the California
Supreme Court, corresponding to the three claims presented
by the plaintiffs.
First, does the California Labor Code apply to overtime
work performed in California for a California-based employer
by out-of-state plaintiffs in the circumstances of this case,
such that overtime pay is required for work in excess of eight
hours per day or in excess of forty hours per week?
Second, does § 17200 apply to the overtime work described
in question one?
Third, does § 17200 apply to overtime work performed out-
side California for a California-based employer by out-of-
state plaintiffs in the circumstances of this case if the
employer failed to comply with the overtime provisions of the
FLSA?
By separate order, we today withdraw our published panel
opinion in this appeal, pending a decision by the California
Supreme Court on the questions of California law that we
now certify. If the California Supreme Court decides any or
all of the certified questions, we will accept and rely on the
Court’s decision of that question or those questions in any fur-
ther proceedings in this court.
III. Explanation of the Importance of the Certified
Questions
Answers to the three certified questions by the California
Supreme Court will determine the outcome of the summary
judgment motion made as to Plaintiffs’ three claims.
SULLIVAN v. ORACLE CORP. 1847
The answer to the questions will have considerable practi-
cal importance. A large but undetermined number of
California-based employers employ out-of-state residents to
perform work in California. If those workers are covered by
the overtime provisions of the California Labor Code, this
will have an appreciable economic impact on these employers
and employees. There may also be an appreciable economic
impact on the overall labor market in California, given the
competitive cost advantage out-of-state employees may have
over California-resident employees if overtime pay under Cal-
ifornia law is not required for work they perform in Califor-
nia.
As we read the decisions of the California appellate courts,
there is no directly controlling precedent on the question
whether the overtime law of California or the overtime laws
of the home states of Plaintiffs should apply to work per-
formed by Plaintiffs in California for a California-based
employer. The general choice-of-law principles under Califor-
nia are long established and relatively clear. See Sullivan II,
547 F.3d at 1182. Their application to this case, however, is
unclear. We have inferred from Tidewater Marine Western,
Inc. v. Bradshaw, 14 Cal. 4th 557 (1996), and Campbell v.
Arco Marine, Inc., 42 Cal. App. 4th 1850 (1996), that the
overtime provisions of the California Labor Code are intended
to cover full days and full weeks worked in California by out-
of-state residents employed by California-based companies,
but we have not been able to discover any appellate decision
of a California court directly addressing that question. See
Sullivan II, 547 F.3d at 1183. Nor have we been able to dis-
cover any appellate decision dealing with the application of
§ 17200 to the work performed by Plaintiffs in and outside
California. Further, although the issue directly before us con-
cerns only overtime pay, we are aware that there are broader
implications of a holding that the Labor Code covers in-state
work by out-of-state residents employed by California-based
employers, given the multifarious provisions of the Labor
Code.
1848 SULLIVAN v. ORACLE CORP.
IV. Administrative Information
The caption of the case is:
No. 06-56649
DONALD SULLIVAN; DEANNA EVICH; RICHARD
BURKOW,
Plaintiffs - Appellants,
v.
ORACLE CORPORATION, a Delaware corporation;
ORACLE UNIVERSITY, form unknown,
Defendants - Appellees.
Counsel for the parties are as follows:
For Plaintiffs - Appellants: Charles S. Russell, Robert W.
Thompson, CALLAHAN McCUNE & WILLIS, 111 Fashion
Lane, Tustin, CA 92780.
For Defendants - Appellees: Stephen L. Berry, Paul Gross-
man, PAUL, HASTINGS, JANOFSKY & WALKER, 55 Sec-
ond Street, 24th Floor, San Francisco, CA 94105; Paul W.
Cane, Jr., Kirby C. Wilcox, PAUL, HASTINGS, JANOFSKY
& WALKER, 695 Town Center Drive, 17th Floor, Costa
Mesa, CA.
If the California Supreme Court grants the request for certi-
fication, Donald Sullivan, Deanna Evich, and Richard Bur-
kow should be deemed the petitioners, as they are the
appellants before our court.
V. Conclusion
We recognize that the California Supreme Court has a
heavy caseload, and we do not make our request lightly. We
SULLIVAN v. ORACLE CORP. 1849
hope that the Court will accept and decide all three of the cer-
tified questions. However, if the Court in its discretion
chooses to accept and decide only one or two of the questions,
we will be grateful for its assistance as to that question or
those questions.
All further proceedings in this case in this court are stayed
pending final action by the California Supreme Court. This
case is withdrawn from submission until further order of this
court. This panel retains jurisdiction over further proceedings
upon receiving a decision from the California Supreme Court
or upon that court’s decision to decline to answer the certified
question or questions. The parties shall notify the Clerk of this
court within one week after the California Supreme Court
accepts or rejects certification. If the California Supreme
Court accepts the certified question or questions, the parties
shall file a joint status report to our court every six months
after the date of acceptance, or more frequently if circum-
stances warrant, and again within one week if the California
Supreme Court renders an opinion.
In accordance with California Rule of Court 8.548, the
Clerk of Court is hereby directed to transmit forthwith to the
California Supreme Court, under official seal of the Ninth
Circuit, the original and ten copies of this order, along with
all relevant briefs and excerpts of record. The Clerk shall also
file certificates of service with the parties to this appeal. Cal.
R. Ct. 8.548(c)-(d).
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