                                                                               FILED
                      UNITED STATES COURT OF APPEALS                            JAN 05 2011

                                                                            MOLLY C. DWYER, CLERK
                             FOR THE NINTH CIRCUIT                           U.S. COURT OF APPEALS




DANIEL FORRAND, on behalf of                      No. 09-55543
himself, and all others similarly situated; et
al.,                                              D.C. No. 2:08-cv-01360-DSF-PJW
                                                  Central District of California,
               Plaintiffs - Appellants,           Los Angeles

  and
                                                  ORDER
ARA KARAMIAN,                                     AMENDING MEMORANDUM
                                                  DISPOSITION
               Plaintiff,

  v.

FEDERAL EXPRESS CORPORATION,

               Defendant - Appellee.


Before: HALL, FISHER, and BYBEE, Circuit Judges.

        The memorandum disposition filed October 26, 2010, is amended as

follows:

        At page 4, change the first sentence of the first full paragraph to read “Upon
        remand, the district court must apply this standard to determine whether the
        level of FedEx’s control over employees within the proposed general class
        when they are on-the-clock but off-shift is sufficient to render the on-the-
        clock but off-shift time compensable under California law, first, in
        determining whether Rule 23 certification is proper and, subsequently, in
        deciding the merits.”
         With this amendment, the panel has voted to grant in part and deny in part

the petition for rehearing. Judge Hall recommended the denial of the petition for

rehearing en banc. Judges Fisher and Bybee have voted to deny the petition for

rehearing en banc.

         The full court has been advised of the petition for rehearing en banc and no

judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.

P. 35.

         The petition for panel rehearing is GRANTED in part and DENIED in part.

The petition for rehearing en banc is DENIED.

         No further petitions for panel rehearing or rehearing en banc will be

entertained.
                                                                              FILED
                            NOT FOR PUBLICATION                                JAN 05 2011

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DANIEL FORRAND, on behalf of                     No. 09-55543
himself, and all others similarly situated;
YVETTE GREEN, on behalf of                       D.C. No. 2:08-cv-01360-DSF-PJW
themselves and all others similarly
situated; EUGENE COLON, on behalf of
themselves and all others similarly              MEMORANDUM*
situated,

        Plaintiffs - Appellants,

  and

ARA KARAMIAN,

        Plaintiff,

  v.

FEDERAL EXPRESS CORPORATION,

        Defendant - Appellee.


                     Appeal from the United States District Court
                        for the Central District of California
                      Dale S. Fischer, District Judge, Presiding

                       Argued and Submitted October 6, 2010


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                  Pasadena, California

Before: HALL, FISHER and BYBEE, Circuit Judges.

      Plaintiffs-Appellants Daniel Forrand, Yvette Green, and Eugene Colon

appeal the district court’s denial of their motion for class certification. Because the

facts are familiar to the parties, we will not recite them here. Upon consideration of

the law, arguments, and record, we affirm in part, stay in part, reverse in part, and

remand in part.

1.    Proper Class Representatives

      We reverse the district court’s decision to the extent it excluded Yvette

Green as a proper class representative on the basis that Green had worked as a

“handler” and “couriers/handlers” are excluded from the proposed class. Because

handler and courier/handler are the titles of two discrete positions at Federal

Express Corporation (“FedEx”), as conceded by Defendant-Appellee in its

briefing, the district court clearly erred in determining Green was not a proper class

representative for this reason.

      We affirm, however, the district court’s decision as to the exclusion of

Forrand and Colon as class representatives. The Plaintiffs-Appellants did not raise

the issue of Forrand’s and Colon’s exclusions in their opening brief on appeal, and

we do not conclude the district court abused its discretion in finding them improper

class representatives. See Eberle v. City of Anaheim, 901 F.2d 814, 817-18 (9th
Cir. 1990). Therefore, the proposed mechanic subclass is without a proper

representative, and we affirm the district court’s denial of certification as to the

proposed mechanic subclass.

2.    The “Meal and Rest Break” Claims

      The Plaintiffs-Appellants argued on appeal that the district court abused its

discretion in not staying the case pending the California Supreme Court’s

resolution of Brinker Restaurant Corp. v. Superior Court, 80 Cal. Rptr. 3d 781

(Cal. Ct. App. 2008). We agree that the resolution of Brinker may dictate what

California law requires employers must do to comply with California state labor

laws regulating employee meal and rest breaks. Therefore, we now stay the

resolution of the issues raised by the Plaintiffs-Appellants potentially affected by

Brinker, namely the Plaintiffs-Appellants’ “meal and rest break” claims.

      Notwithstanding this partial stay, the district court has discretion to proceed

on the claims not potentially affected by Brinker. During oral argument, the parties

agreed the Brinker claims were severable.

3.    The “Pay for All Hours Worked” Claims

      We reverse and remand the district court’s decision as to the Plaintiffs-

Appellants’ motion for class certification of their “pay for all hours worked” claims

(i.e., the on-the-clock/off-shift issue). The district court’s decision failed to

articulate and apply the proper standard for determining when employee time
should be compensated as “hours worked” under California law. See Rutti v.

Lojack Corp., Inc., 596 F.3d 1046, 1061-62 (9th Cir. 2010) (separate opinion by

Silverman, J.). As enunciated in Rutti, “Under California law it is the level of the

employer’s control over its employees that is determinative.” Id. at 1062 (internal

quotation marks removed); see also Morillion v. Royal Packing Co., 22 Cal. 4th

575, 578 (2000) (interpreting DLSE’s “hours worked” definition and holding that

employee can be under an employer’s control even when the employee is not

“suffered or permitted to work”); Bono Enters., Inc. v. Bradshaw, 32 Cal. App. 4th

968, 975 (1995) (determining that “[w]hen an employer directs, commands or

restrains an employee from leaving the work place during his or her lunch hour and

thus prevents the employee from using the time effectively for his or her own

purposes, that employee remains subject to the employer’s control”), disapproved

on other grounds by Tidewater Marine W., Inc. v. Bradshaw, 14 Cal. 4th 557

(1996).

      Upon remand, the district court must apply this standard to determine

whether the level of FedEx’s control over employees within the proposed general

class when they are on-the-clock but off-shift is sufficient to render the on-the-

clock but off-shift time compensable under California law, first, in determining

whether Rule 23 certification is proper and, subsequently, in deciding the merits.
4.    The Foster Data

      Insofar as the district court’s decision relied upon the court’s conclusion that

the Plaintiffs-Appellants’ case is “fundamental[ly] flaw[ed]” because their

arguments “rel[ied]” on data “composed of records giving information about”

shifts worked by employees excluded from the proposed general class, Forrand v.

Fed. Express Corp., No. CV08-1360, 2009 WL 648966, at *4 n.7 (C.D. Cal. Feb.

18, 2009) (internal quotation marks omitted), we reverse the decision. Although it

is unclear from the district court’s statement what shift data the district court was

referring to, it appears from the Plaintiffs-Appellants’ reply brief that the district

court believed the Plaintiffs-Appellants had proposed the damages be calculated by

using the data compiled for Foster v. FedEx, BC 282300 (L.A. Sup. Ct. Nov. 30,

2006), a previous class action case involving occupations excluded from the

present suit. We credit the Plaintiffs-Appellants’ argument that the existence of the

Foster data is relevant merely because it is evidence that FedEx has access to the

kind of data at issue in this case. Reply Br. 13.

      In light of this clarification, the district court’s conclusion that FedEx would

be required to use the Foster data to calculate the damages in this case was

mistaken. Accordingly, the district court erred in relying upon this mistaken

conclusion to deny class certification.
      AFFIRMED in part, STAYED in part, REVERSED in part, REMANDED in

part. The parties shall bear their own costs on appeal.
