All California employees of defendant paid on an hourly basis as nonexempt employees for the period of March 2003 to the present who (a) were instructed to and attended a Saturday store meeting or district office meeting without receiving the full amount of mandated premium pay, or (b) worked a split shift schedule without receiving the full amount of mandated premium pay, or (c) fit into both (a) and (b).Defendant appealed, claiming that the district court erred by certifying what it termed a “fail-safe class” – i.e. a class which utilizes a merits-based definition to conceal defects in predominance. See Kamar, 2010 U.S. App. LEXIS 7664, at 2-3. Under such circumstances, a defendant’s liability would have to be adjudicated as a precursor to ascertaining class membership. See id. The Court disagreed with Radio Shack’s analysis, reasoning that “the designation made by the district court should be seen as a way of narrowing the class to employees within the reporting time and split-shift classifications, without actually distinguishing between those who may and those who may not ultimately turn out to be entitled to premium pay.” See id., at 3. That the class definition was merits neutral was demonstrated by the fact that the definition was “not a circular one that determines the scope of the class only once it is decided that a class member was actually wronged.” See id.
Although unpublished, the Court’s opinion is citable authority pursuant to FRAP, Rule 32.1.