NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSMIN MELGAR, individually and on No. 16-15373
behalf of all others similarly situated,
D.C. No. 3:13-cv-03769-EMC
Plaintiff-Appellee,
v. MEMORANDUM *
CSK AUTO, INC., an Arizona Corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted February 15, 2017
San Francisco, California
Before: CANBY, SILER,** and HURWITZ, Circuit Judges.
On interlocutory appeal, Defendant CSK Auto, Inc., now known as O’Reilly
Auto Enterprises, LLC (“O’Reilly”), challenges the district court’s order certifying
a class of O’Reilly’s retail store managers and assistant managers in California.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
We affirm.
Without deciding the validity of the district court’s interpretation of the
liability standard under California Labor Code § 2802, we hold that the district
court did not abuse its discretion by relying on its interpretation in finding the
commonality requirement satisfied. See Fed. R. Civ. P. 23(a). The district court
properly examined whether the lawfulness of O’Reilly’s reimbursement policy
would serve to “generate common answers apt to drive the resolution of the
litigation.” See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (internal
quotation marks and emphasis omitted).
Nor did the district court abuse its discretion by certifying a fail-safe class.
A fail-safe class is commonly defined as limiting membership to plaintiffs
described by their theory of liability in the class definition such that the definition
presupposes success on the merits. See William B. Rubenstein, Newberg on Class
Actions § 3:6 (5th ed. 2016). Here, the class definition did not presuppose its
success, because the liability standard applied by the district court required class
members to prove more facts to establish liability than are referenced in the class
definition. We further note, though we do not hold, that our circuit’s caselaw
appears to disapprove of the premise that a class can be fail-safe. See Vizcaino v.
United States District Court, 173 F.3d 713, 721–22 (9th Cir. 1999) (rejecting a
claim that a class definition defining the plaintiffs as common law employees
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assumed their contested legal status and was therefore “circular”).
The district court did not abuse its discretion by certifying a class with a
self-certification process for absent class members. Our recent decision in Briseno
v. ConAgra Foods, Inc. controls, foreclosing O’Reilly’s argument that a self-
identifying class is not “administratively feasible” at the certification stage. 844
F.3d 1121 (9th Cir. 2017). Briseno rejects O’Reilly’s due process concern with
respect to this case, specifically that claimants “will eventually offer only a ‘self-
serving affidavit’ as proof of class membership.” See id. at 1132.
AFFIRMED.
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