Marlo v. UPS: District Court Did Not Abuse Discretion In Decertifying Class, Ninth Circuit Says

Marlo v. United Parcel Service, Inc., --- F.3d --- (9th Cir. 4/28/11) is a long-running putative class action on behalf of people employed as UPS supervisors. The Court summarized its holding as follows:

Plaintiff-Appellee Michael Marlo and Defendant-Appellant United Parcel Service, Inc. (UPS) appeal or cross-appeal from a jury verdict awarding Marlo unpaid overtime, meal, and rest-period wages. UPS classified Marlo as an executive and administrative employee under California’s Industrial Welfare Commission (IWC) Wage Order No. 9, Cal. Code Regs. tit8, § 11090 (2005), thereby purporting to exempt him from the California Labor Code’s overtime-pay requirements. See Cal. Lab. Code § 515(a). The district court initially certified a class comprised of full-time supervisors employed by UPS from 2000 to 2004, and appointed Marlo class representative. In 2008, however, the court decertified the class on the ground that Marlo had failed to establish that common issues of law or fact predominated over individual ones. See Fed. R. Civ. P. 23(b)(3).

We have jurisdiction under 28 U.S.C. § 1291. We hold that the district court did not abuse its discretion in decertifying the class. We address the remaining issues in a memorandum disposition filed contemporaneously with this opinion.

Slip op. at 1-2.

Marlo argued that the trial court improperly shifted to him the burden of demonstrating that the class members were misclassified as exempt. The Court rejected this contention:

The district court’s order decertifying the class recognized that distinction. It evaluated whether “questions of law or fact common to class members predominate over any questions affecting only individual members, and [whether] a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). The court concluded, “Because [Marlo] has brought a class action challenging UPS’s exemption of FTS as a policy of misclassification, [he] must be ‘able to demonstrate pursuant to either scenario that misclassification was the rule rather than the exception. . . .’ ” Marlo, 251 F.R.D. at 482 (citation omitted). The district court therefore properly placed the burden on Marlo to demonstrate that Rule 23’s class certification requirements had been met.

Slip op. at 7. The Court rejected Marlo's other contentions as well.

The opinion is available here.