OSMIN MELGAR V. CSK AUTO, INC., No. 16-15373 (9th Cir. 2017)
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FILED NOT FOR PUBLICATION MAR 3 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT OSMIN MELGAR, individually and on behalf of all others similarly situated, No. U.S. COURT OF APPEALS 16-15373 D.C. No. 3:13-cv-03769-EMC Plaintiff-Appellee, MEMORANDUM * v. 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 2 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 selfidentifying 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 ‘selfserving affidavit’ as proof of class membership.” See id. at 1132. AFFIRMED. 3
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