                                                                            FILED
                            NOT FOR PUBLICATION                             MAR 09 2015

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



                            FOR THE NINTH CIRCUIT


CATHERINE E. AVILEZ, as an                        No. 13-55154
individual and on behalf of all others
similarly situated,                               D.C. No. 8:11-cv-00493-DOC-RZ

              Plaintiff - Appellee,
                                                  MEMORANDUM*
  v.

PINKERTON GOVERNMENT
SERVICES, INC., a corporation,

              Defendant - Appellant.


                    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


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