Suarez v. Bank of America N.A., 3:18-cv-01202-LB

Background

Plaintiffs are former Bank of America non‑exempt employees (Irma Frausto: call‑center Treasury Services Advisor; Arianna Suarez: teller → assistant manager) who sued on behalf of classes for unpaid off‑the‑clock work and missed meal/rest breaks, plus derivative claims (late final wages, inaccurate wage statements, UCL).
Plaintiffs submitted ~64 declarations reporting routine off‑the‑clock startup/shutdown tasks and missed/shortened breaks; proposed a class‑wide survey (Dr. Jon Krosnick) and records analysis (Jarrett Gorlick) to prove liability and damages.
Bank of America submitted 51 declarations, timekeeping policies and training materials, and an expert (Robert Crandall) arguing compliance and criticizing plaintiffs’ methods.
The court found numerosity, typicality, and adequacy satisfied for narrowed classes and that common questions (as refined) predominate for those classes under Rule 23(b)(3).
The court certified narrowed classes: (1) Off‑the‑clock claim — Treasury Services Advisors and persons with similar duties in call centers; and Assistant Managers and similar in financial centers (limited to pre‑ and post‑shift boot‑up/shut‑down tasks); (2) Meal/rest breaks claim — Treasury Services Advisors and similar in call centers. Derivative claims certified for the same classes.
The court ordered the parties to submit a joint revised class definition within 14 days.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 23(a) prerequisites are met for the proposed classes	Plaintiffs argued numerosity, commonality, typicality, and adequacy are met via declarations, common policies/practices, and representative evidence	Bank argued heterogenous jobs, manager discretion, and individual issues defeat commonality/typicality/adequacy	Court found numerosity, typicality, and adequacy satisfied for narrowed classes; certifications granted in part
Whether common questions and predominance under Rule 23(b)(3) exist for off‑the‑clock claims	Plaintiffs said system‑wide practices (startup/shutdown tasks) make off‑the‑clock work inevitable and amenable to class‑wide proof and sampling	Bank said variations across many job titles and manager practices require individualized inquiries	Court narrowed class to specific job titles and to pre/post‑shift startup/shutdown duties and held common questions predominate for those narrowed classes
Whether common questions and predominance exist for meal/rest‑break claims	Plaintiffs relied on call‑volume and operational practices in call centers that make breaks impossible and on survey/records analytics to prove liability and damages	Bank argued missed breaks turn on individual manager discretion and varied workplace conditions	Court limited the breaks class to call‑center Treasury Services Advisors (and similar duties) and held common questions and generalized proof (survey + call/time records) can predominate for that group
Admissibility/appropriateness of survey/statistical and records‑based proof for class‑wide liability/damages	Plaintiffs proposed a Krosnick survey and Gorlick records analysis to provide generalized proof of liability and to calculate damages	Bank criticized the experts and pointed to its own data and expert (Crandall) showing compliance	Court held representative survey and records analysis are an appropriate method here (given dispute over employer records) and sufficient at certification to show a class‑wide means of proof; criticisms go to weight at trial

Key Cases Cited

Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258 (class proponents must actually prove Rule 23 prerequisites)
Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (commonality requires capacity for class‑wide answers)
Comcast Corp. v. Behrend, 569 U.S. 27 (predominance and admissible classwide damages model requirement)
Amgen Inc. v. Conn. Ret. Plans and Tr. Funds, 568 U.S. 455 (limits on merits‑free ranging inquiry at certification)
Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (use of representative statistical evidence for liability/damages)
Torres v. Mercer Canyons Inc., 835 F.3d 1125 (commonality/typicality standards in Ninth Circuit)
Jimenez v. Allstate Ins. Co., 765 F.3d 1161 (upholding class certification where unofficial policies discouraged overtime reporting)
Vaquero v. Ashley Furniture Indus., Inc., 824 F.3d 1150 (common contention of unpaid mandatory duties suitable for class resolution)
Leyva v. Medline Indus., Inc., 716 F.3d 510 (individualized damages do not necessarily defeat certification)
Senne v. Kansas City Royals Baseball Corp., 934 F.3d 918 (discussion of representative evidence and donning/doffing analogies)