NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 11 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUSAN HOWARD, an individual; et al., No. 15-55465
Plaintiffs - Appellants, D.C. No. 2:13-cv-04748-SJO-PJW
v.
MEMORANDUM*
CVS CAREMARK CORPORATION, a
Delaware Corporation; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted January 7, 2016**
Pasadena, California
Before: WATFORD and FRIEDLAND, Circuit Judges and MOTZ,*** Senior
District Judge.
Plaintiffs appeal the district court’s denial of their motion for class
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable J. Frederick Motz, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
certification. We affirm.
“Parties seeking class certification bear the burden of demonstrating that
they have met each of the four requirements of Federal Rule of Civil Procedure
23(a) and at least one of the requirements of Rule 23(b).” Ellis v. Costco
Wholesale Corp., 657 F.3d 970, 979-80 (9th Cir. 2011). These requirements are
not “mere pleading standard[s].” Wal-Mart Stores v. Dukes, 131 S. Ct. 2541,
2551 (2011). The district court must conduct a “rigorous analysis” to determine
whether the prerequisites of Rule 23(a) have been satisfied, which may “entail
some overlap with the merits of the plaintiff’s underlying claim.” Id.
The district court did not abuse its discretion in holding that Plaintiffs failed
to establish commonality, as would be necessary for class certification under Rule
23(a).1
The district court did not abuse its discretion in holding that Plaintiffs’
proposed method of common proof was insufficient to provide a class-wide answer
to the question of whether class members engaged in off-the-clock (“OTC”) work.
1
Because we affirm the district court’s decision to deny class certification on lack-
of-commonality grounds, we need not address the district court’s alternative bases
for denying certification.
2
The district court appropriately considered the “persuasiveness of the evidence”
regarding the reliability of the Rx Connect data in order to determine whether that
data were sufficient to serve as common proof that class members actually worked
OTC hours. See Ellis, 657 F. 3d at 982; see also Marlo v. United Parcel Service,
Inc., 639 F.3d 942, 949 (9th Cir. 2011). The court’s determination that the data
were unreliable is not clearly erroneous. CVS presented unrebutted evidence of
data anomalies, evidence of actual and potential sharing of Rx Connect credentials
among employees, and evidence that Rx Connect was not even fully implemented
in its current form until partway through the class period. Indeed, Plaintiffs never
offered evidence—not even as to the named Plaintiffs’ own employment—
verifying that the Rx Connect entries attributable to specific employees actually
reflect OTC tasks they carried out. Although CVS’s reliance on Rx Connect data
for certain legal compliance and customer service-related purposes may be a
reason that the district court could have viewed the Rx Connect data as reliable
enough to support class certification, that does not mean that it was an abuse of
discretion for the district court to find the data insufficiently reliable.2
2
Plaintiffs’ reliance on cases that allowed statistical sampling and representative
testimony to overcome flaws in the proposed method of common proof is
unavailing because Plaintiffs have expressly disavowed using sampling to cure any
3
The district court also did not abuse its discretion in holding that Plaintiffs
failed to offer sufficient evidence that a common policy existed to pressure or
require employees to work OTC. The record reveals that managers’ approaches to
approval of overtime varied substantially across stores, as did staffing levels and
pressures that may have led employees to work overtime. Plaintiffs failed to offer
evidence of an actual, uniform policy or practice of tacitly violating CVS’s own
official policies of prohibiting OTC work, and rather only offered a few anecdotal
examples of individuals who worked OTC in response to workplace pressures at
individual stores.
AFFIRMED.
defects in the Rx Connect data. See Jimenez v. Allstate Ins., 765 F.3d 1161, 1168
(9th Cir. 2014); Adoma v. Univ. of Phx., Inc., 270 F.R.D. 543, 550-51 (E.D. Cal.
2010).
4