Catherine E. Avilez, as an individual and on behalf of all others similarly situated v. PINKERTON GOVERNMENT SERVICES, INC., a corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CATHERINE E. AVILEZ, as an
individual and on behalf of all others
similarly situated,
Plaintiff - Appellee,
v.
PINKERTON GOVERNMENT
SERVICES, INC., a corporation,
Defendant - Appellant.
No. 13-55154
D.C. No. 8:11-cv-00493-DOC-RZ
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted February 10, 2015
Pasadena, California
Before: KOZINSKI, CHRISTEN, and HURWITZ, Circuit Judges.
In this action raising claims under the California meal break statute,
California Labor Code § 226.7, Pinkerton Government Services, Inc. appeals the
district court’s order granting Catherine Avilez’s motion to certify various classes
FILED
MAR 09 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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of current and former Pinkerton employees. We have jurisdiction under 28 U.S.C.
§ 1292(e) and Federal Rule of Civil Procedure 23(f). We vacate the district court’s
order and remand for entry of a revised class certification order.
1. The district court did not abuse its discretion by striking Pinkerton’s expert
survey and supporting declarations. Pinkerton failed to timely identify its expert,
the survey instrument, and the identities and contact information for its employee
declarants. Fed. R. Civ. P. 26(a)(1)(A).
2. Pinkerton waived its Rules Enabling Act argument by not raising it in
opposition to the motion for class certification.
3. The district court abused its discretion to the extent it certified classes and
subclasses that include employees who signed class action waivers. Avilez’s
arbitration agreement does not contain a class action waiver and counsel did not
dispute that those who signed such waivers have potential defenses that Avilez
would be unable to argue on their behalf. To the extent the classes and subclasses
include individuals who signed class action waivers, Avilez is not an adequate
representative, Fed. R. Civ. P. 23(a)(4), and her claim lacks typicality, Fed. R. Civ.
P. 23(a)(3).
4. If individuals who signed class action waivers are excluded from the “Meal
Break” and “Wage Statement” subclasses, then these subclasses, along with the
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“No-Signed-Waiver” subclass, would satisfy Federal Rules of Civil Procedure
23(a)(1)–(4). We need not decide whether these subclasses, as modified, would
satisfy the predominance requirement of Rule 23(b)(3). On remand, the district
court shall certify a class under Federal Rule of Civil Procedure 23(c)(4) on the
issue whether there exists a prima facie case for liability. If a prima facie case
exists, the district court may proceed to entertain Pinkerton’s affirmative defenses
and cull the class accordingly.
5. The district court did not abuse its discretion by granting class certification
on Avilez’s unfair business practices claim, which is derivative of her other claims.
6. Because the Meal Break and Wage Statement subclasses include employees
who signed class action waivers, the district court’s class certification order is
vacated. On remand, the district court shall enter a new certification order
consistent with this decision.
7. Each party shall bear its own costs on appeal.
VACATED and REMANDED.
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