Karl Risinger v. Soc LLC

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 1 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

KARL E. RISINGER, No. 16-15120

Plaintiff-Appellee, D.C. No.
2:12-cv-00063-MMD-PAL
v.

SOC LLC; et al., MEMORANDUM*

Defendants-Appellants.

Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding

Argued and Submitted June 9, 2017
Pasadena, California

Before: GRABER and MURGUIA, Circuit Judges, and DAVILA, ** District
Judge.

SOC LLC, SOC-SMG, Inc., and Day & Zimmerman, Inc. (collectively,

“SOC”), appeal the district court’s order certifying a class of armed guards

represented by Plaintiff Karl E. Risinger, who worked for SOC in Iraq between

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward J. Davila, United States District Judge for the
Northern District of California, sitting by designation.
2006 and 2012. Risinger alleges that SOC misrepresented guards’ anticipated

work schedule and breached a provision of its employment agreement requiring the

performance of “customary” duties. We have jurisdiction pursuant to 28 U.S.C.

§ 1292(e). We review an order certifying a class for abuse of discretion, and any

factual findings relied upon by the district court for clear error. Parsons v. Ryan,

754 F.3d 657, 673 (9th Cir. 2014). We affirm.

SOC challenges the district court’s predominance determination under

Federal Rule of Civil Procedure 23(b)(3). “The Rule 23(b)(3) predominance

inquiry tests whether proposed classes are sufficiently cohesive to warrant

adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591,

623 (1997). It requires that “questions of law or fact common to class members

predominate over any questions affecting only individual members.” Fed. R. Civ.

P. 23(b)(3). A question is “individual” if members of the proposed class will need

to present varying evidence, whereas a question is “common” if the same evidence

can be used for each member to make a prima facie showing, or if the issue can be

proved by generalized, class-wide proof. Torres v. Mercer Canyons Inc., 835 F.3d

1125, 1134 (9th Cir. 2016).

The district court permissibly found that SOC recruiters made nearly

identical representations concerning guards’ anticipated work schedule. See

United States v. Working, 224 F.3d 1093, 1102 (9th Cir. 2000) (en banc). SOC’s

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contract with the Department of Defense limited guards to a 6-day, 72-hour

workweek, which was reflected in scripts used by recruiters. Additionally, SOC

employees and several recruits described a similar understanding. Because the

district court’s finding renders the misrepresentation element of Risinger’s fraud

claims amenable to class-wide proof, the district court did not abuse its discretion

by concluding that common issues would predominate. See Henry v. Lehman

Commercial Paper, Inc. (In re First All. Mortg. Co.), 471 F.3d 977, 990-91 (9th

Cir. 2006).

Similarly, the district court did not abuse its discretion by deciding that a

common question of contract interpretation predominates for Risinger’s breach of

contract claim. SOC’s standardized employment agreement provided that guards

“shall perform duties and responsibilities that are customary for [the] employee’s

position.” On summary judgment, the district court determined “customary” to be

ambiguous, and found “genuine issues of material fact exist as to whether the

Employment Agreement provided for a 72-hour workweek as ‘customary.’”

Because the evidence needed to resolve the ambiguity is common to the class,

individual issues will not predominate.

Furthermore, we predict the Supreme Court of Nevada would adopt, in a

fraud action, a presumption of reliance on a material misrepresentation. See

Johnson v. Travelers Ins. Co., 515 P.2d 68, 72 & n.4 (Nev. 1973) (citing with

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approval a California case that recognizes a presumption of reliance). The district

court, therefore, did not abuse its discretion by determining that common issues

would predominate with respect to other aspects of the fraud claim: materiality and

reliance. As just noted, the court permissibly found that all class members were

exposed to the same recruitment script and that SOC made the same representation

to all class members. The district court also permissibly concluded, on this record,

that the 72-hour workweek representation was material to all class members.

Finally, we reject as unpersuasive SOC’s arguments that the certification

order violates the Rules Enabling Act, due process, or Article III principles. See

Vaquero v. Ashley Furniture Indus., Inc., 824 F.3d 1150, 1156 (9th Cir. 2016)

(holding that the Rules Enabling Act is not violated where a defendant may still

challenge the sufficiency of evidence after class certification); see also Torres, 835

F.3d at 1137 (explaining that “fortuitous non-injury to a subset of class members

does not necessarily defeat certification of the entire class, particularly as the

District Court is well-situated to winnow out those non-injured members at the

damages phase of the litigation, or to refine the class definition”).

AFFIRMED.

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