Michael Marlo v. United Parcel Service, Inc., No. 09-56196 (9th Cir. 2011)Annotate this Case
Plaintiff and defendant, the United Parcel Service, Inc. ("UPS"), appealed a jury verdict awarding plaintiff unpaid overtime, meal, and rest-period wages. The district court originally certified a class comprised of full-time supervisors employed by UPS under Federal Rule of Civil Procedure 23 and appointed plaintiff as class representative under California's Industrial Welfare Commission ("IWC") Wage Order No. 9, Cal. Code Regs. tit. 8 11090. At issue was whether the district court erred in subsequently decertifying the class on the ground that plaintiff failed to establish that common issues of law or fact predominated over individual ones. The court held that the district court did not abuse its discretion in decertifying the class where the district court held that plaintiff had not established predominance, had relied heavily on a survey that was neither reliable nor representative of a class, that his remaining evidence similarly was not representative of the class, and did not address the "primarily engaged" element of the exemptions under the IWC Wage Order No. 9.