First, Polo claimed that predominance was defeated based on class member responses to a survey which reflected wait times of anywhere between zero and sixty minutes. See id., at 14. Polo claimed that such evidence demonstrated adjudication of claims would require individualized inquiry, not only with regard to each individual class member’s experience, but in the application of Polo's inspection policy at any given store. See id., at 14-15. The Court disagreed, reasoning that Polo’s arguments in this regard had already been considered and deemed insufficient to overcome a finding of predominance:
In the Court's view, neither of these facts justifies decertification of the waiting time class. The Court has already rejected Polo's contention that variations in the specific amounts of class members' wait times defeats commonality. The Court observed that, regardless of differences in amounts of time, "the most significant questions [are] . . . whether plaintiffs were made to wait for inspections without compensation and whether this off-the-clock time is compensable, questions that are common to all class members." July 8, 2008 Order at *11. Moreover, as the Court has likewise already observed, to the extent that "application of the de minimis rule might require inquiries into the individual experiences of class members, these individual questions will arise only after significant common questions of law and fact have been answered, and may not arise at all in the liability context." Id.
The Court also rejects Polo's contention that variations among Polo stores warrant decertification of the waiting time claims. Polo does not dispute that it maintains a uniform policy requiring employees to submit to bag searches, or that it does not compensate employees for time spent waiting for these searches. Differences in the size and layout of each store, or the timing of class members' shifts, will only affect damages, rather than Polo's liability. Accordingly, the Court DENIES Polo's motion to decertify the waiting time claims on the basis of new facts.See Otsuka, 2010 U.S. Dist. LEXIS 12867, at 15-17.
Second, Polo claimed that decertification was warranted because many of the class members reported waiting times of ten minutes or less, and as a result, would not be entitled to recover in light of the Ninth Circuit’s decision in Rutti v. Lojack Corp., 578 F.3d 1084 (9th Cir. 2009), establishing that periods of ten minutes or less are de minimis. The Court rejected this argument as well, reasoning that Polo failed to appreciate the common nature which such issues posed:
Under federal law, "employees cannot recover for otherwise compensable time if it is de minimis." Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir. 1984). According to Polo, the most recent case dealing with the de minimis exception, Rutti v. Lojack Corp., 578 F.3d 1084 (9th Cir. 2009), establishes that, in general, periods of ten minutes or less are de minimis and therefore cannot give rise to recovery. Polo asserts that because many of the class members surveyed reported waiting times of ten minutes or less, the Court should decertify the claim. Once again, however, Polo has failed to persuasively rebut the conclusions reached in the Court's certification order. As the Court noted in that order, even if defendants are correct that federal de minimis standards apply to plaintiffs' California claims, application of those standards will still require resolution of a number of significant common legal questions, including "(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work." Lindow, 738 F.2d at 1063. Therefore, Rutti does not justify decertification of the waiting time claims.Otsuka, 2010 U.S. Dist. LEXIS 12867, at 17-18.