                                                                              FILED
                            NOT FOR PUBLICATION                               MAY 05 2010

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



                            FOR THE NINTH CIRCUIT


ROYA KOIKE and ADAM ODNERT, on                   No. 09-15541
behalf of themselves and all others
generally situated, and on behalf of the         D.C. No. 3:06-cv-03215-VRW
general public,

              Plaintiffs,                        MEMORANDUM*

  and

SHAUN NGUYEN,

              Petitioner-intervenor -
Appellant,

  v.

STARBUCKS CORPORATION,

              Defendant - Appellee.


                  Appeal from the United States District Court
                     for the Northern District of California
                Vaughn R. Walker, Chief District Judge, Presiding

                       Argued and Submitted April 13, 2010
                            San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: KLEINFELD, TASHIMA and THOMAS, Circuit Judges.

      Shaun Nguyen, an intervenor, appeals the district court’s denial of a motion

for class certification in a diversity action brought by former Starbucks employees

Roya Koike and Adam Obnert. We have jurisdiction pursuant to 18 U.S.C. §

1291, and we affirm.

                                            I

      We have appellate jurisdiction to entertain this appeal. Starbucks argues that

we lack jurisdiction to hear this appeal because no final judgment has been entered

as to Nguyen, who intervened only after judgment was entered against plaintiffs

Koike and Obnert. However, both this court and the Supreme Court have held that

a putative class member can intervene for the limited purpose of appealing a

district court’s denial of class certification subsequent to the entry of final

judgment as to the named plaintiff’s claim, thus implicitly concluding that circuit

courts have jurisdiction to hear such appeals. See United Airlines, Inc. v.

McDonald, 432 U.S. 385, 393-96 (1977); see also Alaska v. Suburban Propane

Gas Corp., 123 F.3d 1317, 1320-21 (9th Cir. 1997).

                                           II

      The district court’s denial of the motion for class certification was proper.

Even giving full credence to the evidence presented by Koike, this evidence tends


                                            2
to show only that business pressures exist which might lead assistant managers to

work off-the-clock. The district court did not abuse its discretion in finding that

individualized factual determinations are required to determine whether class

members did in fact engage in off-the-clock work and whether Starbucks had

actual or constructive knowledge of off-the-clock work performed.

      Nguyen argues that the district court abused its discretion by improperly

assessing the merits of Koike’s claims. However, a “district court may consider

the merits of the claims to the extent that it is related to the Rule 23 analysis.”

Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 947 n. 15 (9th Cir. 2009).

The district court’s analysis clearly related to the issue of predominance under Rule

23(b)(3), and was not an improper assessment of the merits.

      Nguyen argues that the evidence presented by Starbucks does not undermine

Koike’s ability to prove her claims with common evidence. First, Nguyen argues

that the testimony of Starbucks’ statistical expert is consistent with Koike’s

assertion that class members regularly needed to work more than forty hours per

week to complete assigned tasks. This contention ignores the fact that the district

court assumed as true that assistant managers’ job tasks require work in excess of

forty hours per week, yet nonetheless properly determined that individual issues




                                            3
predominate. Thus, the fact that the expert’s testimony can be reconciled with

Koike’s assertion does not undermine the district court’s conclusion.

      Nguyen also argues that the expert’s testimony regarding variations in the

amount of overtime worked from pay period to pay period is irrelevant to the issue

of class certification because variation in damages among class members should

not preclude certification. However, the district court did not rest its denial of class

certification on a variation in damages. It considered the expert’s testimony

regarding variation in overtime worked only in determining that a number of

Starbucks stores had excess non-overtime capacity, thus allowing those assistant

managers with more than forty hours of work per week to delegate work to others.

This conclusion speaks to variations in Starbucks’ liability as opposed to merely at

the damages stage.

      Nguyen argues that the declarations of current assistant managers submitted

by Starbucks have no evidentiary value because the declarants are not class

members and because courts are reluctant to give significant weight to declarations

that constitute a “litigation-driven” selective sampling of employees. However, the

district court relied on these declarations only as evidence that (1) Starbucks

trained its assistant managers regarding its policy against off-the-clock work, and




                                           4
(2) assistant managers were paid for some overtime work during the class period.

Neither proposition is in dispute.

      Finally, Nguyen argues that the district court abused its discretion in

declining to assign an adverse inference to Starbucks’ failure to submit the results

of its class member survey. We disagree. The adverse inference which Koike

sought would not have undermined the district court’s decision. Thus, the district

court did not abuse its discretion in declining to apply any adverse inference.



      AFFIRMED.




                                          5
