The? plaintiffs? in? this? case ?were? current? and former? home? mortgage? consultants? of? Wells Fargo Bank. ?The claimed they were improperly classified? as? exempt? and? entitled? to? overtime. The employees who had worked in California moved for class certification.? ?The employer argued that class certification was inappropriate under Fed R. Civ. P. 23(b)(3), because an individualized analysis of the application of the white-collar overtime exemptions would be necessary, and would predominate over class issues. ?The District Court agreed with respect to five possible exemptions, but not two.? ?The District Court nevertheless certified the class, because ?it is manifestly disingenuous for an employer to treat a class of employees as a homogenous group for the purposes of internal policies and compensation, and then assert that the same group is too diverse for class treatment in overtime litigation.? The employer appealed and the Ninth Circuit reversed the certification of the class as an abuse of discretion. ?The panel agreed with the District Court that an employer?s internal exemption policy is a permissible factor in determining whether common issues predominate.?? ?The appellate court nevertheless held that the District Court had given impermissible weight to the blanket exemption policy, because its existence did nothing to facilitate common proof of otherwise individualized issues.? ?The circuit contrasted this type of uniform corporate policy with ?one ?that ?set ?the ?job ?responsibilities ?of employees.?? The panel refused to consider Wells Fargo?s argument that the FLSA forbids state law opt-out class actions, even where no FLSA claims have been asserted, because the employer did not adequately brief the pre-emption issue.
In re Wells Fargo Home Mortgage Overtime Litigation, 571 F.3d 953 (9th Cir. July 7, 2009) (Mills (C.D. Ill), Silverman and Callahan).