253 F.R.D. 586 | E.D. Cal. | 2008
ORDER
This is a wage and hour action brought by plaintiffs Jason Campbell and Sarah Sobek individually and on behalf of other similarly situated individuals against defendant PricewaterhouseCoopers LLP (“PwC”). Plaintiffs allege that PwC misclassified them as exempt employees under California law and failed to pay them overtime and other benefits that an employer would normally be required to provide to non-exempt employees. Pending before the court is plaintiffs’ motion for class certification.
I. Factual Background
A. General Background
Defendant PricewaterhouseCoopers LLP (“PwC”) is the largest public accountancy partnership in the world. Deck of William Kershaw, Ex. 3. PwC has over 30,000 employees in its United States offices, which currently include six California offices in Irvine, Los Angeles, Sacramento, San Diego, San Francisco, and San Jose. Deck of Carl Overstreet 114. The present suit only involves employees in PwC’s California offices.
PwC’s organizational structure is complex and multi-tiered. PwC’s subdivision of its professional services begins with three lines of service (“LOS”), which are Assurance, Tax, and Advisory. Only Assurance and Tax are at issue in this action. Each line of service is then further divided into divisions. Overstreet Deck IT 3. The divisions within each line of service may focus on specialized services, such as external audits, transaction structuring (e.g., mergers and acquisitions, deals), information technology, or consulting work. Id.
There are several personnel job titles within PwC. These include associate, senior associate, manager, senior manager, director, managing director, and partner, Deck of Jason Campbell U 4; Deck of Sarah Sobek 114, with partners generally exercising the greatest authority within PwC’s organizational structure. Plaintiffs contend that while PwC requires employees in the positions of manager, senior manager, director, managing director, and partner to hold a Certified Public Accountant (“CPA”) license, Campbell Deck H 5; Sobek Deck 115, employees in the positions of associate or senior associate need not be so licensed.
The named plaintiffs in this action, Jason Campbell and Sarah Sobek, worked as associates in the Assurance line of service. Campbell Deck 112; Sobek Deck 112. The proposed class, however, consists of all unlicensed associates and senior associates who worked for PwC in its Assurance and Tax lines of service in California from October 27,
All persons employed by PricewaterhouseCoopers LLP in California, from October 27, 2002 until the time when class notice may be given, who: (1) assisted certified public accountants in the practice of public accountancy, as provided for in California Business and Professions Code sections 5051 and 5053, (2) worked as associates or senior associates in the assurance and tax lines of service, (3) were not licensed by the State of California as certified public accountants during some or all of this time period, and (4) were classified as exempt employees.
B. Assurance and Tax Lines of Service
Assurance and Tax are PwC’s two largest lines of service. Kershaw Deck, Ex. 3. PwC serves two classes of clients: audit and non-audit (or, in PwC’s nomenclature, Channel 1 and Channel 2 clients). Overstreet Deck H 7. For audit clients, PwC provides external auditing and financial reporting services in addition to other limited services. Id. For non-audit clients, PwC provides consulting services but no auditing or financial reporting services. Id. This distinction is said to ensure an arm’s length relationship between PwC and its audit clients.
There are three divisions within the Assurance line of service in California: Attest, Systems Process Assurance (“SPA”), and Transaction Services. Attest provides financial statement and internal control audits, and only serves audit clients, id. HH 7-8, while SPA provides services related to information technology (“IT”) management controls. Deck of Michael Corey It 6. SPA services include reviews of database security controls and infrastructure security. Id. 115. Finally, Transaction Services advises clients on such transactions as mergers and acquisitions and initial public offerings. SPA and Transactional Services both serve audit and non-audit clients. Deck of Curt Moldenhauer HIT 5, 7; Corey Deck IT 6.
Tax contains a greater number of divisions than Assurance. These include divisions such as International Tax Services, Private Company Services, and State and Local Tax. Deck of Margaret Barron 114. The services provided by Tax include tax estimate and tax return preparation for a variety of entities, Deck of Jacquie Wilson 117; Deck of Brian Hunt H 8; Deck of Joseph Hillsted II5, advice on compliance with the Internal Revenue Code and international tax treaties, Deck of Paul Flopping 116, and review of tax-related entries in quarterly and year-end reports, Deck of Angela Lam 118. Tax serves both audit and non-audit clients. Barron Deck 115.
C. Recruiting, Education, and Training
PwC recruits candidates from a variety of backgrounds for its various positions. PwC employs on-campus recruiting, targeting students graduating in the near future, and experienced recruiting, targeting individuals who have already worked at accounting and professional services firms. Barron Deck H 7. PwC also recruits internally. Moldenhauer Deck H 9.
Educational background is sometimes a factor in recruiting. Id. at 1110. For example, preferred candidates for Attest and Tax either hold a degree in accounting or the requisite number of college courses enabling that candidate to sit for the CPA exam. Overstreet Deck 1111; Barron Deck 118. PwC also generally requires that SPA candidates hold a bachelor’s or master’s degree in Accounting, Finance, or Computer Science. PwC, however, may also hire recent college graduates with little or no prior work experience. Moldenhauer Deck U12; Campbell Dep., Ex. 1 (resume); Sobek Dep., Ex. 1 (resume).
PwC requires a minimum 40 to 150 hours of annual training for Tax associates and senior associates. Deck of Keith Larson H 7. Nevertheless, prior work experience or a previous internship with PwC may decrease the amount of training required for an employee. Deck of Daniel Goepp 1110. In addition, training and continuing education requirements vary between lines of service and between divisions. For example, training offered to new employees in the Attest division may focus on the risk assessment and analytical procedures used in audits, while Tax training may include technical issues associ
D. Duties of Associates and Senior Associates
PwC employed Campbell for a year, from August 2005 to August 2006, and employed Sobek for slightly less than two years, from August 2004 to June 2006. Campbell and Sobek both characterize their job duties as primarily assisting CPAs in performing audits. Campbell Decl. 112; Sobek Decl. 112. Both claim that their job duties on audits involved verifying financial statement items by obtaining and reviewing the underlying documentation that supported the items. Campbell Decl. KH6-7; Sobek Decl. 11116-7. Campbell and Sobek both maintain that they worked in excess of eight hours per day and worked on weekends and holidays without overtime pay. Campbell Decl. H12; Sobek Decl. If 12.
Plaintiffs also maintain that the scope of their duties were necessarily constrained by two standards: (1) Section 5053 of the California Business and Professions Code, which requires the control and supervision of unlicensed accountants, and (2) the professional standards set by the American Institute of Certified Public Accountants, which contain a similar directive. Plaintiffs allege that PwC’s compliance with these rules is evidenced in their policies regarding who is allowed to sign various documents, letters, and reports.
PwC has submitted approximately fifty declarations from individuals in a wide array of positions at PwC (e.g., from associates and senior associates to managers and partners) and from various divisions within both the Assurance and Tax lines of service. They demonstrate not insignificant variations in the type of work performed by division and by line of service. They show that the work of the SPA division within Assurance, for example, is centered around information technology (IT). Decl. of Irina Majstrova 115. Similarly, they show that looking across lines of service, Tax associates spend most of their time on the significantly different task of preparing tax returns or tax estimates. Decl. of Jesse Dang H7; Decl. of Jacquie Wilson H 7 (80% of time spent on tax returns). One associate stated that “[i]t is difficult to compare the job duties of, for instance, a SPA Senior Associate with those of an Associate in the Tax line of service because the nature and purpose of the duties are entirely different.” Dang Decl. U 7.
In addition, there are said to be significant differences between the work performed by associates and senior associates, because one of the primary duties of senior associates is to supervise associates. See, e.g., Decl. of Joseph Gomez 1111 (“When I became a Senior Associate, I spent about 50% to 60% of my time reviewing the work of other Associates.”). The degree of supervision is limited by, inter alia, the legal and professional standards that govern the accounting profession. As explained below, however, whether the differences between associates and seniors associates are material is a difficult issue, and not without uncertainty.
II. Standard
A party seeking to certify a class must demonstrate that it has met all four requirements of Rule 23(a) and at least one of the requirements of Rule 23(b). Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir.2001). Rule 23(a) allows a class to be certified
only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
In other words, the class must satisfy the requirements of numerosity, commonality, typicality, and adequacy.
Rule 23(b) provides for three types of class actions. Here, plaintiff seeks to certify the class under Rule 23(b)(3), which allows for a class to be certified if “the court finds that the questions of law or fact common to the members of the class predominate over any question affecting only individual members, and that a class action is superior to other available methods for the fair and efficient
The matters pertinent to the findings include:
(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the difficulties likely to be encountered in the management of a class action.
Id.
The court must conduct a “rigorous analysis” of the moving party’s claims to examine whether the requirements are satisfied, Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). Generally, however, the court should not consider whether the party seeking class certification has stated a cause of action or is likely to prevail on the merits. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Nevertheless, the court is not only “ ‘at liberty to’ consider evidence which goes to the requirements of Rule 23” but in fact is required to consider such evidence, “ ‘even [if] the evidence may also relate to the underlying merits of the case.’ ” Dukes v. Wal-Mart, 509 F.3d 1168, 1178 n. 2 (9th Cir.2007) (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir.1992)). If the court concludes that the moving party has met its burden of proof, the court has broad discretion to certify the class. Zinser, 253 F.3d at 1186.
III. Analysis
A. Ascertainability of Class
Separate from the requirements under Rules 23(a) and (b), and as a threshold to their analysis, defendant argues that plaintiffs have failed to propose an ascertainable class.
An adequate class definition specifies “a distinct group of plaintiffs whose members [can] be identified with particularity.” Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir.1978). One of the primary purpose of the class definition is to make it “administratively feasible” for the court to determine individual class membership. Aiken v. Obledo, 442 F.Supp. 628, 658 (E.D.Cal.1977). The class definition should therefore provide the court with objective criteria to discern the class’s members. See O’Connor v. Boeing N. Am., Inc., 197 F.R.D. 404, 416 (C.D.Cal.2000). Such criteria may include, for example, a defendant’s own actions and the damages caused by such actions, Int’l Molders’ & Allied Workers’ Local Union No. 164 v. Nelson, 102 F.R.D. 457, 464-65 (N.D.Cal.1983), or even just geographical boundaries, Berlowitz v. Nob Hill Masonic Mgmt., 1996 WL 724776, at *5 (N.D.Cal. Dec. 6,1996).
Nevertheless, the class definition may not consider the merits of the action in determining individual class membership. See Eisen, 417 U.S. at 177-78, 94 S.Ct. 2140; Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir.1983); Hagen v. City of Winnemucca, 108 F.R.D. 61, 63-64 (D.Nev. 1985) (finding definition of class insufficient when it involved violations of proposed members’ constitutional rights).
Defendant’s attack on plaintiffs’ motion stems from plaintiffs’ partial reliance on two statutes to define the class. The proposed class would include individuals who “assisted certified public accountants in the practice of public accountancy, as provided for in California Business and Professions code sections 5051 and 5053.” Section 5051 defines seven acts that are deemed as the “practice of public accountancy,” including holding oneself out to the public as skilled in public accountancy, maintaining an office for the business of a public accountant, and offering to perform certain services such as an audit for compensation. Section 5053 states that nothing shall preclude an individual who is not certified as an accountant from assisting one who is, so long as the former is under the control and supervision of the latter.
Defendant argues that plaintiffs’ reliance of these statutes makes it difficult to discern who should be included in the class. For
Even if the court were to agree that incorporation of these two statutes into the class definition introduces an element of ambiguity, courts retain the discretion to alter an inadequate class definition. See Lamumba Corp. v. City of Oakland, 2007 WL 3245282, at *5 (N.D.Cal. Nov. 2, 2007); Hagen, 108 F.R.D. at 64 (altering definition to remove condition of constitutional violation). Accordingly, the court could strike the reference to Sections 5051 and 5053 from the class definition, although it appears to the court unnecessary. In any event, defendant does not challenge the remainder of the class definition, which is sufficiently definite, ascertainable, and administratively feasible.
B. Requirements under Rule 23(a)
As noted, Rule 23(a) lists the prerequisites for a class action. These requirements are (1) the impracticability of joining all members (“numerosity”); (2) the existence of common questions of law or fact (“commonality”); (3) typicality of the claims and defenses of the parties with respect to the proposed class (“typicality”); and (4) adequate representation of the proposed class by the parties before the court (“adequacy of representation”). Fed.R.Civ.P. 23(a); see also Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir.2003).
1. Numerosity
Rule 23(a) (l)’s requirement that an attempt to join all parties be “impracticable” does not equate to “impossible.” See Fed.R.Civ.P. 23(a)(1); Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-14 (9th Cir.1964). Instead, an attempt to join all parties must only be difficult or inconvenient. Harris, 329 F.2d at 913-14. Although impracticability does not hinge only on the number of members in the putative class, joinder is usually impracticable if a class is “large in numbers.” Jordan v. Los Angeles County, 669 F.2d 1311, 1319 (9th Cir.1982), vacated on other grounds, 459 U.S. 810, 103 S.Ct. 35, 74 L.Ed.2d 48 (1982). While there is no set number of members required, courts have generally found classes numbering in the hundreds to be sufficient to satisfy the numerosity requirement. See, e.g., Gay v. Waiters’ & Dairy Lunchmen’s Union, Local No. 30, 549 F.2d 1330, 1332-34 (9th Cir.1977) (reversing district court’s finding that 184 potential members is insufficient to fulfill Rule 23(a)(1)’s requirements); Sagers v. Yellow Freight Sys., Inc., 529 F.2d 721, 734-35 (5th Cir.1976) (holding class of approximately 110 members satisfied numerosity requirement); see also James Wm. Moore, Moore’s Federal Practice § 23.22[1][b] (Daniel R. Coquillete et al. eds., 3d ed.2007) (noting forty-one or more members is “usually sufficiently numerous”).
Here, plaintiffs contend that they anticipate a class numbering over one thousand members. Kershaw Decl. at ¶ 12. Defendant does not challenge that the numerosity requirement is met. The court therefore finds that plaintiffs have satisfied the numerosity requirement.
2. Commonality
Commonality exists when “there are questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). Rule 23(a)(2) does not require that every or all questions of fact or law be common or identical. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir.1998). Rule 23(a)(2) is also more lenient than the related requirement under Rule 23(b)(3) that common questions of law or fact predominate. Id. In other words, common questions exist; but they need not be the predominant questions in the case. Id. Commonality may exist where there is a common legal issue with varied factual predicates, or where there is a common factual
Here, plaintiffs have adequately pled common questions of law or fact. Common legal questions include whether a license is required to satisfy the professional exemption, whether assistants to licensed accountants may exercise discretion and independent judgment under the laws and professional standards governing accounting, and which duties performed by the class members, to the extent they are shared, should be classified as exempt. Common factual questions include whether defendant implemented policies and procedures requiring the supervision of class members. These questions are similar to those that other courts have found sufficient to constitute common questions of law or fact for purposes of Rule 23(a)(2). See, e.g., Sepulveda v. Wal-Mart Stores, Inc., 237 F.R.D. 229, 242 (C.D.Cal.2006). Accordingly, the court finds that the requirement of commonality is satisfied.
3. Typicality
Typicality requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed.R.Civ.P. 23(a)(3). For typicality to be met, plaintiffs need not possess identical claims to those of the putative class members. Hanlon, 150 F.3d at 1020. Instead, plaintiffs’ claims need only be “reasonably coextensive” with the claims of the putative class. Id. The inquiry focuses on the claims themselves—-not the factual predicates from which the claims arise. Hanon v. Dataprods. Corp., 976 F.2d 497, 508 (9th Cir. 1992). “The test of typicality ‘is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.’ ” Id.
Here, the named plaintiffs allege the same injury as that allegedly suffered by the other class members, e.g., defendant’s failure to pay overtime, as a result of the same conduct by defendants, i.e., miselassification. Their legal claims (and the corresponding statutory bases of such claims) are also the same as those of the other class members. For example, in addition to failure to pay overtime, plaintiffs also allege that defendant failed to provide meal periods in violation of California Labor Code § 512(a), and failed to provide the statutorily defined compensation for missed meal periods in violation of California Labor Code § 226.7.
Defendant contends, however, that plaintiffs’ employment in only a single division of a line of service precludes a finding of typicality.
In Staton, however, there was a broad cross-section of thirty-two named employee plaintiffs, which is not the case here. 327 F.3d at 957 (“ ‘The named plaintiffs ... include a very broadly selected cross-section of the different categories of Boeing employees. Salaried and hourly, management and line-worker, union and non-union are all represented, as are each of the major geographic hubs ... and each of the pre-merger eompa
The court finds that class certification is appropriate as to the positions that plaintiffs actually held. As noted below, this issue might be better framed as a problem of predominance. Regardless of how the issue is framed, the fact remains that plaintiffs have virtually no knowledge of what associates in other divisions do. Moreover, based on the, evidence submitted by PwC, there appear to be significant differences between the work required by an audit versus the work involved in securing a client’s IT infrastructure, or in creating tax provisions for a trust. In light of the such differences, the court finds that certification is only appropriate to a class of Attest associates.
4. Adequacy of Representation
Adequacy of representation requires that “representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). In order for plaintiffs to adequately represent the putative class members, they must demonstrate, first, that they do not possess any conflicts of interest with the class members and, second, that both plaintiffs and their counsel will work to “prosecute the action vigorously” with respect to the entire class. Staton, 327 F.3d at 957.
Here, there is no serious dispute as to either part of the analysis. There is no purported conflict of interest between Campbell and Sobek, on the one hand, and the putative class members, on the other. Turning to the second part of the analysis, a key consideration is the competency of counsel. Hanlon, 150 F.3d at 1020. Plaintiffs’ counsel has ample experience in California wage-and-hour class action suits. Kershaw Decl. 112, Ex. 1. Additionally, both of the named plaintiffs have participated in the litigation process—a relevant factor to determining adequacy of representation. See Sepulveda, 237 F.R.D. at 244. The court therefore finds that plaintiffs satisfy the adequacy of representation requirement.
C. Requirements under Rule 23(b)(3)
In addition to the requirements set forth in Rule 23(a), plaintiffs must also satisfy one of the requirements set forth in Rule 23(b). Here, plaintiffs seek certification pursuant to Rule 23(b)(3), which requires that common questions of law or fact “predominate over any question affecting only individual members” and that a class action be “superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R.Civ.P. 23(b)(3). As with the other components of the class action inquiry, the court’s function is not to pass on the merits. Eisen, 417 U.S. at 178, 94 S.Ct. 2140.
1. Predominance
The predominance requirement “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Hanlon, 150 F.3d at 1022 (internal quotation marks omitted). The inquiry “presumes that the existence of common issues of fact or law have been established pursuant to Rule 23(a)(2).” Id. “ ‘When common questions present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication, there is clear justification for handling the dispute on a representative rather than on an individual basis.’ ”
Defendant argues that three exemptions—professional, administrative, and executive—may apply to each proposed class member. The court first discusses the requirements unique to each exemption, and then separately addresses the requirement common to all three exemptions regarding the exercise of independent judgment and discretion. The latter requirement is arguably the single most important issue, because
a. Requirements Unique to Each Exemption
i. Professional Exemption
Plaintiffs first argue that common proof can establish that no class member is entitled to the professional exemption.
This is not, however, the only avenue for satisfying the requirements of the professional exemption. The exemption provides for two separate avenues: the first (the professional exemption) applies to employees who are duly licensed or certified, whereas the second (the learned professional exemption) applies to those who are “primarily engaged in an occupation commonly recognized as a learned or artistic profession.” Id. at § 11040(1)(A)(3)(b). Clearly, the proposed class cannot possibly satisfy the first avenue—since, by definition, it only encompasses unlicensed employees. Predominance, however, is measured by the significance of the issue. Wamboldt v. Safety-Kleen Systems, Inc., 2007 WL 2409200, at *13 (N.D.Cal.2007).
Plaintiffs argue that this second avenue (the learned professional exemption) cannot apply to the facts of this case, because it would require disregarding the specific requirements for the recognized profession of accounting in favor of the more general requirements for learned professions. The argument has great force. Defendant notes that in Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 543-46 (7th Cir.1999), the Seventh Circuit upheld a finding that an unlicensed employee at an accounting firm qualified for the learned professional exemption based on his B.S. in Mathematics and the twenty hours of continuing education required by his employer.
To satisfy the learned professional exemption, defendant would need to prove that the class members are primarily engaged in an “occupation commonly recognized as a learned or artistic profession” (as distinct
Defendant seizes upon the element of specialized instruction and study to argue that the exemption will involve individualized questions. For example, defendant notes that its education related hiring requirements vary by division and that it offers a multitude of training courses for its employees, which are utilized to varying degrees from individual to individual. But the test considers whether an employee is “primarily engaged in an occupation commonly recognized as learned.” Id. at § 11040(1)(A)(3)(b) (emphasis added). In other words, the predicate for the learned professional exemption is a qualifying occupation, not a particular individual level of educational attainment. But see Piscione, 171 F.3d at 544-45 (focusing on individual educational attainment). This inquiry presents a common question because it focuses on whether the individual is employed in a qualifying occupation.
Defendant’s interpretation of the learned professional exemption, which focuses on the education and training possessed by each individual employee, cannot be reconciled with the language of the exemption. To illustrate, one component of the exemption may be satisfied by a prolonged course of specialized instruction. Accepting defendant’s interpretation of the exemption would mean that an associate who takes a several month-long training course is potentially employed in “an occupation commonly recognized as learned,” whereas that associate’s colleague down the hall who works in the same division and line of service but who takes a two-week long training course, is not employed in such “an occupation.” The court cannot accept defendant’s interpretation, which would embrace such inconsistent results.
Rather, the court finds that the requirements unique to the professional exemption-setting aside, for the moment, the requirement of discretion and independent judgment—are susceptible to common proof.
ii. Administrative Exemption
California law also exempts employees who are primarily engaged in the “performance of work directly related to the management policies or general business operations of [their] employer or [their] employer’s customers.” Cal.Code Regs., tit. 8, § 11040(1)(A)(2)(a)(i). Employees who work as advisors and consultants to an employer’s customers may qualify for the administrative exemption. See Former 29 C.F.R. § 541.205(d).
Here, plaintiffs contend that, for two reasons, “no unlicensed associate within PwC spends more than 50 percent of his or her time providing advice to PwC’s clients on matters of significance.” Reply at 14. First, plaintiffs argue that the rules of independence governing the accounting profession prohibit even licensed professionals from functioning as administrators of a customer’s business. But, as even plaintiffs’ expert admitted, these rules do not prohibit licensed professionals from providing advice or making recommendations “to assist the client’s management in performing its functions and making decisions.” Carradero Decl., Ex. 3, Ueltzen Dep. 111:8-114:12 (agreeing with opinion rendered by defendant’s expert); see also Deck of John Toriello It 12 (drafting memorandum to evaluate client’s position of keeping separate financial statements for itself and a company in which it had fifty percent ownership). The regulations make clear that those who give advice, such as consultants, may qualify for the administrative exemption.
Second, plaintiffs note that PwC’s company policy directs who may and may not sign various documents, letters, and reports—the effect of which is to limit giving direct advice to clients to those above the senior associate level. Because this policy is not only relevant to determining whether PwC associates and senior associates are performing work directly related to their client’s general business operations under the administrative exemption, but also whether the class members exercise discretion and independent judgment, it is discussed below in that latter context.
iii. Executive Exemption
PwC also argues that application of the executive exemption will require case-by-case analysis. The executive exemption requires, among other things, that an employee: (1) manage a customarily recognized department or subdivision thereof; (2) customarily and regularly direct the work of two or more other employees; and (3) make recommendations as to the hiring or firing, and advancement, promotion, or change of status of other employees that carry particular weight. Cal.Code Regs., tit. 8., § 11040(1)(A)(1).
Here, defendant notes that many, but not all, of the proposed class members serve as the “in charge” (PwC’s nomenclature) on engagements and thereby manage a team of other employees. But a team of employees assembled for a particular engagement is not a “recognized department.” The California Division of Labor Standards Enforcement (DLSE) Manual cautions that “the term ‘customarily recognized department or subdivision’ has a particular meaning. The phrase is intended to distinguish between ‘a mere collection of employees assigned from time to time to a specific job or series of jobs’ and ‘a unit with permanent status and function.’ ” DLSE Manual at § 53.3.1. Although the question of whether a team of employees working on an engagement constitutes a “recognized department” is one on the merits, there is little dispute as to its answer. There is no evidence that the teams over which some associates may have “in charge” status are units with permanent status and function. Accordingly, because the executive exemption does not apply at all, it does not pose an individualized question for the class.
b. Requirement Common to All Exemptions: Discretion and Independent Judgment
Above the court determined whether certain requirements for the professional, ad
It is this requirement that requires further analysis, for clearly if the class members exercise such powers differently, class certification is suspect. The term discretion and independent judgment “implies that the person has the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance.” Former 29 C.F.R. § 541.207(a). “Discretion and independent judgment involves the comparison and evaluation of possible courses of conduct, and acting or making a decision after considering various possibilities.” Nordquist, 32 Cal.App.4th at 564, 38 Cal.Rptr.2d 221.
There are two potential components to whether (and how often) an employee exercises independent judgment and discretion: one based on the employee’s actual duties and one based on the employer’s expectations. As the California Supreme Court explained it, both these components are problematic:
On the one hand, if hours worked on [an exempt activity] were determined through an employer’s job description, then the employer could make an employee exempt from overtime laws solely by fashioning an idealized job description that had little basis in reality. On the other hand, an employee who is supposed to be engaged in [an exempt activity] during most of his working hours and falls below the 50 percent mark due to his own substandard performance should not thereby be able to evade a valid exemption.
Ramirez v. Yosemite Water Co., 20 Cal.4th 785, 802, 85 Cal.Rptr.2d 844, 978 P.2d 2 (1999). Accordingly, Ramirez instructed trial courts to “steer clear of these two pitfalls by inquiring into the realistic requirements of the job.” Id. (emphasis in original). “In so doing, the court should consider, first and foremost, how the employee actually spends his or her time. But the trial court should also consider whether the employee’s practice diverges from the employer’s realistic expectations.” Id. Ramirez thus envisions the synthesis of two components, one directed at the employee and one directed at the employer.
The California Supreme Court has also clarified the import of Ramirez in the class action context: an employer’s realistic expectations are “likely to prove susceptible to common proof,” but how employees actually spend their time “has the potential to generate individual issues.”
i. Employer’s Realistic Expectations
Plaintiffs argue that the question of whether the proposed class members exercise independent judgment and discretion can be answered by common proof. The purported common proof is PwC’s policy that unlicensed associates must be under the control and supervision of licensed accountants, which plaintiffs contend is a necessary product of the statutes and professional standards governing the practice of public accountancy. See Cal. Bus. & Prof.Code § 5053 (nothing
PwC also has a policy that employees should be compliant with applicable professional standards. Kershaw Decl., Ex. 6 at 00661. Similar to Section 5053, the pertinent professional rules promulgated by AICPA address generally the supervision of unlicensed accounting employees. Davila Decl., Ex. I (AICPA § 311.11) (“Supervision involves directing the efforts of assistants who are involved in accomplishing the objectives of the audit and determining whether those objectives were accomplished.”). These rules envision, however, that the amount of supervision that is appropriate varies on an individual basis. “The nature and extent of supervision and review must necessarily reflect wide variances in practice. The auditor charged with final responsibility for the engagement must exercise seasoned judgment in varying degrees of his supervision and review of the work done and judgment exercised by his subordinates.” Id., Ex. G (AIC-PA § 210.03). The factors to be taken into consideration include the complexity of the project and the qualifications of the employee. Id., Ex. I (AICPA § 311.11).
In order to prove that the requirement of discretion and independent judgment is susceptible to common proof based on these standards, plaintiffs must prevail on its argument that compliance with Section 5053 and related professional standards necessarily means that all unlicensed employees are performing non-exempt work. Put slightly differently, the question is whether being under “control and supervision” precludes the exercise of meaningful discretion and judgment.
Defendant relies upon a California Superior Court decision, which it argues is persuasive authority for the issues presented here. Ruiz v. PricewaterhouseCoopers LLP, Case No. BC 287920 (Cal.Sup.Ct. December 8, 2003), involved a trio of overtime lawsuits against several accounting firms, including PwC. They were brought as private attorney general suits under California’s Unfair Competition Law (prior to its amendment by Proposition 64, which subsequently required that all representative actions proceed as class actions).
The Ruiz court noted that Section 5053 “is part of the Accountancy Act, which regulates the licensing and practice of accountants ... and is not part of the Labor Code of the Wage Orders, which regulate overtime and work conditions.” Id. at *5. The court characterized plaintiffs position as requiring an “illogical leap between two completely unrelated statutory schemes.” Id. The court also noted that Ramirez required the court to examine “how the employee actually spends his or her time,” presumably requiring an individualized inquiry. 20 Cal.4th at 802, 85 Cal.Rptr.2d 844, 978 P.2d 2. Finally, it held that “as a matter of common sense, exercising discretion and independent judgment is not incompatible with being under the control and supervision of someone else.” Id. at 6 (noting that even high-ranking company officers are under the control and supervision of a board of directors or shareholders).
It appears to this court that there is something less than logic in refusing to recognize
PwC’s company rules prohibit the putative class members from signing their names to various documents, letters, and reports. The pertinent regulation states, however, that “[t]he fact that an employee’s decision may be subject to review and that upon occasion the decisions are revised or reversed after review does not mean that the employee is not exercising discretion and independent judgment.” Former 29 C.F.R. § 541.207(e)(1). For example, an assistant to the president of a large corporation may regularly reply to correspondence addressed to the president. Id. Although the president may on occasion alter or discard the prepared reply and direct that another one be sent, this action does not destroy the exempt character of the assistant’s function. Id. Similarly, a “management consultant who has made a study of the operations of a business and who has drawn a proposed change in organization, may have the plan reviewed and revised by his superiors before it is submitted to the client.” Id. at § 541.207(e)(2). In addition, “[t]he policies formulated by the credit manager of a large corporation may be subject to review by higher company officials who may approve or disapprove these policies.” Id.; see also Copas v. E. Bay Mun. Util. Dist., 61 F.Supp.2d 1017, 1030 (N.D.Cal.1999) (finding that employee exercised independent judgment and discretion even though his written work and reports were subject to review by supervisors).
Accordingly, the court finds that the fact that the work of PwC associates and senior associate is subject to review is not sufficient to prove that they are performing non-exempt work. Nevertheless, as noted below, the court need not rely upon this fact in certifying a class. Instead, the court finds that based on the similarity of duties performed by Attest associates, class certification is appropriate.
ii. Employees’ Actual Duties
Regardless of what policies an employer may establish from the top-down, and regardless of what professional standards may apply at an industry-wide level, what employees actually do, on a day-to-day basis, is a separate matter. For example, simply because PwC does not have a policy expressly prohibiting discretion and independent judgment does not mean that its employees actually exercise such discretion and independent judgment. Under Ramirez, the court must inquire “first and foremost” into “how the employee actually spends his or her time.” 20 Cal.4th at 802, 85 Cal.Rptr.2d 844, 978 P.2d 2. Of course, on a motion for class certification, the issue is narrower: the question is whether that inquiry is susceptible to common proof.
Where the relevant duties performed (i.e., those that arguably constitute exempt activity) vary from class member to class member, many courts have found that individual issues, rather than common issues, predominate. See Jimenez v. Domino’s Pizza, 238 F.R.D. 241, 251 (C.D.Cal.2006) (no predominance of common question where “there were many variable[s] which affected a particular manager’s mix of duties”; “the predominating issue in this case is the actual mix of duties worked which entails a need to conduct an individual inquiry for each class member”); Sepulveda, 237 F.R.D. at 249 (no predominance of common question where there was “voluminous evidence that there actually was a great deal of variance in [assistant manager] duties”); Pfohl v. Farmers Ins. Group, 2004 WL 554834, at *9 (C.D.Cal. Mar. 1, 2004) (“The differing job duties and the individualized inquiry to determine whether these varying duties meet the administrative exemption preclude a collective action in this case.”); Perry v. U.S. Bank, 2001 WL 34920473, at *7 (N.D.Cal. Oct. 16, 2001) (no predominant common question “in light of the differences in individual job duties”); Dunbar v. Albertson’s, 141 Cal.
Conversely, in cases where class treatment was deemed appropriate, the job duties between the class members were similar. In Tiemo, for example, one of the cases relied upon by plaintiffs, the employer argued that the class members’ job duties varied from store to store, but upon examination of the record, the court determined that “the Store Manager position at Rite Aid is, in fact, sufficiently similar from store to store in all important respects such that class treatment is appropriate in this ease.” Tierno v. Rite Aid Corp., 2006 WL 2535056, at *9 (N.D.Cal. Aug. 31, 2006). Similarly, the primary dispute between an employer and its employees may focus on how a single activity undertaken by all class members should be treated. See, e.g., Morillion v. Royal Packing Co., 22 Cal.4th 575, 94 Cal.Rptr.2d 3, 995 P.2d 139 (2000) (class action by agricultural workers alleging that time spent commuting on employer’s bus counted as “hours worked”).
The fact that an employer classifies all or most of a particular class of employees as exempt does not eliminate the need to make a factual determination as to whether class members are actually performing similar duties.
[Plaintiffs] assume that an employer is liable if it classifies employees without regard to the law or investigating what work they do, even if the employees were, in fact, subject to the exemption. While such action on the part of an employer may be ‘deliberate’ and ‘willful,’ [which might be relevant for waiting time penalties] it is not ‘misclassification.’
In other words, [plaintiffs] cannot recover under Labor Code section 1194 unless the Account Manager Subclass members were not, in fact, subject to the outside salesperson exemption; that determination requires consideration of the individual circumstances of each Account Manager Subclass member.
Id.
Some courts, however, have determined that it is unfair for an employer to “on the one hand, argue that all [class members] are exempt from overtime wages and, on the other hand, argue that the Court must inquire into the job duties of each [class member] in order to determine whether that individual is ‘exempt.’ ” See, e.g., Wang v. Chinese Daily News, 231 F.R.D. 602, 613 (C.D.Cal.2005). But, under Walsh, there is no estoppel effect given to an employer’s decision to classify a particular class of employees as exempt—whether right or wrong, or even issued in bad faith; instead, the only legally relevant issue to alleged misclassification is whether the exemption in fact applies.
Here, both parties have submitted evidence pertaining to the job duties performed by class members. Plaintiffs have submitted two employee declarations (their own) and defendant has submitted approximately fifty employee declarations (from a mix of associate, senior associate, and higher-level employees). The Campbell and Sobek declarations state that their “daily activities involved assisting CPAs in performing audits for PwC’s clients” and that “[e]very audit was essentially performed in the same way.” Campbell Decl. K 6; Sobek Decl. 116. They also describe how their duties were prescribed by the “audit plan,” a computerized program with a list of financial statement items that needed to be verified. Id. Sobek and Campbell both stated that neither they nor “any other associate or senior associate had the authority to prepare or deviate from the audit plan.” Sobek Decl. 118; Campbell Decl. 118.
Crucially, however, their personal knowledge appears limited, in large part, to one division (Attest) within one line of service (Assurance).
PwC has submitted a small mountain of declarations. Upon review, two consistent findings emerge, both of which dovetail with the limitations in Sobek and Campbell’s testimony. First, they attest to significant differences in the work performed between divisions and between lines of services. Some employees work on IT, some work on tax returns, some work on reviewing quarterly and year-end reports, some work on transactions, and some work audits. See, e.g., Majstrova Decl. H 5; Dang Decl. H 7; Wilson Decl. K 7. Whether framed as an issue of typicality under Rule 23(a)(3) or predominance under Rule 23(b)(3), the court finds that certification would be improper if not limited to the Attest division where plaintiffs actually worked.
Second, it appears that there is a meaningful distinction between associates and senior associates’ duties. A significant if not primary responsibility for senior associates is to review the work of associates. See, e.g., Gomez Decl. 1111 (“When I became a Senior Associate, I spent about 50% to 60% of my time reviewing the work of other Associates.”); Decl. of Ryann Lucas H17 (“As an associate, I spent 50% of my time on an engagement preparing the documentation, whereas as a Senior Associate, I spent less time preparing (no more than 30%) and more
Although there is also some evidence of variation in the duties performed by associates within the same division, the duties are nevertheless sufficiently similar to warrant class treatment. For example, it appears that many Attest associates test the client’s “internal controls,” such as the requirement that checks be signed by someone other than the person who draws it. Decl. of Ashlee Pierce 1110; Decl. of Blair Krebs 1111. Similarly, many Attest associates perform “detail testing,” in which a sample of items from major account balances is selected and a search of hard evidence of those items is performed. Decl. of Denise MeCurry If 16; Decl. of Michael McCarvel 1111. Based on the similarities in duties performed by Attest associates, the court finds that there is a common, predominant question of law or fact. Cf Tierno, 2006 WL 2535056, at *9.
c. Other Claims
Plaintiffs also allege a host of claims that are derivative of, or dependent upon, a finding that PwC misclassified its employees.
2. Superiority of Class Resolution
Rule 23(b)(3) also requires that class resolution be “superior to other available methods for the fair and efficient adjudication of the controversy.” The relevant inquiry is determined by analyzing the four factors in Rule 23(b)(3)(A-D). Hanlon, 150 F.3d at 1023. Most these factors indicate that class resolution is a superior method in this case.
First, “the interest of members of the class in individually controlling the prosecution or defense of separate actions” must give way to two competing concerns: the reality that class members may fear reprisal in pursuing individual claims against their employer, and the fact that individual litigation against a well-funded defendant would be cost prohibitive. See Scott v. Aetna Servs., Inc., 210 F.R.D. 261, 268 (D.Conn.2002).
Second, “the extent and nature of any litigation concerning the controversy” is not a concern, as neither party has identified any related, pending litigation.
Third, “the desirability or undesirability of concentrating the litigation of the claims in this particular forum” does not weigh heavily on either side.
Fourth, although there may be manageability issues, they are significant only if they create a situation that is less fair and efficient than other available techniques. In re Sugar Industry Antitrust Litigation, 73 F.R.D. 322, 358 (E.D.Pa.1976). Manageability concerns must be weighed against the alternatives and “will rarely, if ever, be in itself sufficient to prevent certification of a class.” May v. Humana, Inc., 382 F.3d 1241,1272 (11th Cir.2004).
Accordingly, the court finds that the requirements of Rule 23(b) (3) are satisfied here.
IV. Conclusion
For the reasons set forth above, the court GRANTS the motion with respect to Attest
The court notes that the above determination is one involving a controlling question of law and there is substantial ground for difference of opinion and that an immediate appeal from the order will materially advance the ultimate termination of the litigation.
ACCORDINGLY, the court certifies the matter for interlocutory appeal pursuant to 28 U.S.C. § 1292.
IT IS SO ORDERED.
. Plaintiffs seek to certify a class under Federal Rule of Civil Procedure 23(b)(3), which provides for an "opt out” class action as opposed to an "opt in” class action. Cf. 29 U.S.C. § 216(b) (Fair Labor Standards Act).
. This remains true even if the class were limited to Attest associates.
. Plaintiffs also allege violations of numerous other sections of the California Code, including sections 17200 of the Business and Professions Code and sections 203, 226, 510, 1174, and 1194 of the Labor Code. However, these violations are contingent upon a finding that plaintiffs were in fact misclassified as exempt employees.
. Defendant alternately argues that typicality is lacking because the named plaintiffs would be preoccupied with unique defenses pertaining to their poor job performance, but they have failed to articulate how this performance impacts whether or not they should have been classified as exempt.
. Though predominance may be marginal, actions addressing what are, in reality, several individual claims may not be practically pursued unless a class action is authorized. Indeed, such may be true in the instant case.
. Section 515 of the California Labor Code states, "[t]he Industrial Welfare Commission may establish exemptions from the requirement that an overtime rate of compensation be paid.” The regulation for the professional exemption is found in Wage Order No. 4-2001, which governs "PROFESSIONAL, TECHNICAL, CLERICAL, MECHANICAL AND SIMILAR OCCUPATIONS.” The same regulation is also published in the California Code of Regulations at title 8, section 11040.
. The exemption provides:
(3) Professional Exemption
A person employed in a professional capacity means any employee who meets all of the following requirements:
(a) Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting; or
(b) Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession....
Cal.Code Regs., tit. 8, § 11040(A). In addition, the employee must satisfy other requirements, such as exercise independent judgment and discretion.
. Piscione did not address the threshold question of whether an unlicensed employee working in the field of accounting can qualify for the learned professional exemption, or if the non-learned professional exemption essentially preempts the field for accounting-related work. In this regard, it would be instructive to consider whether unlicensed employees working in other enumerated professions (e.g., medicine, dentistry, optometry, etc.) have been found to qualify for the learned professional exemption.
. These regulations have been revised under federal law but the Wage Orders adopted these regulations as effective on the dale the Wage Orders were adopted. Cal.Code Regs., tit. 8, § 11040 ("The activities constituting exempt work and non-exempt work shall be construed in the same manner as such terms are construed in the following regulations under the Fair Labor Standards Act effective as of the date o this order ...”). These former regulations are therefore the legally relevant ones. A copy of the former regulations can also be found in the current California Division of Labor Standards Enforcement (DLSE) Manual.
. In light of this fact, plaintiffs’ reliance on the administrative/production worker dichotomy is less than helpful. Plaintiffs argue that the dichotomy distinguishes between (a) employees whose duties directly relate to the management policies or general business operations of its clients versus (b) those employees whose duties relate to producing the commodity (whether goods or services) that the enterprise exists to
. A problem with the latter requirement is that it will almost always limit class actions to jobs that are precisely the same, and which are performed in the same manner. Such a conclusion would defeat the effect of class actions which permit suit in cases where unlawful conduct would otherwise go uncorrected because of the limited recovery available in individual suits.
. In Sav-On, for example, it appears that the duties between class members did not vary significantly; rather, the only question was whether each task fell on the exempt or non-exempt side of the ledger. See Sav-On, 34 Cal.4th at 330-31, 17 Cal.Rptr.3d 906, 96 P.3d 194 ("As plaintiffs argued to the trial court, '[t]he only difference between Defendant’s declarations and Plaintiffs’ evidence is that the parties disagree on whether certain identical work tasks are “managerial” or "non-managerial.”' ”).
. The PwC-specific policies to which plaintiffs allude are those pertaining to who may sign various documents, letters, and reports.
. As discussed above, this is only half of the issue, because the court must also consider “how the employee actually spends his or her time.” Ramirez, 20 Cal.4th at 802, 85 Cal.Rptr.2d 844, 978 P.2d 2. But the notion that the company rules may be disregarded must be rejected. The fact that in an individual case or number of cases an employee is working contrary to the company’s rules would not necessarily undermine the propriety of class certification.
. In an earlier motion, defendant argued that Ruiz collaterally estopped class certification here, but the court denied the motion since Ruiz was brought as a private attorney general suit, rather than as a class action, precluding the necessity of showing "identity of issues.”
. One court has noted that a “[defendant's initial, uniform classification ... has only minimal relevance to the facts that ultimately must be determined at trial.” Vinole v. Countrywide Home Loans, Inc., 246 F.R.D. 637, 641 (S.D.Cal. 2007): Proving a uniform classification is akin to proving the element of standing: naturally, an employee must have been classified as exempt to bring a misclassification claim. But once that initial hurdle is cleared, the case will ultimately turn on whether the employee was wrongly classified as exempt.
. It may be intuitively unfair to permit an employer, who has historically classified a particular group of employees as exempt based on a uniform rule, to argue in the context of litigation that the exemption inquiry will require an individualized analysis. But the assumption behind such an intuitively appealing argument is that an employer should somehow be bound by its prior position—which is foreclosed by Walsh. "[I]n resolving questions of California law, this court is bound by the pronouncement of the California Supreme Court ... and the opinions of the California Courts of Appeal are merely data for determining how the highest California court would rule ... [but] the opinion of the Court of Appeals on questions of California law cannot simply be ignored.” Brewster v. County of Shas
. This issue is also raised in defendant's motion to strike. The court discusses the relevant issues raised by that motion but finds that the arguments primarily go to the weight of the evidence rather than its admissibility.
. "Q. Do you know what associates do in the [Transactional Services] division?
A. No, I do not.
Q. Do you know what associates do in the [Systems Processing Assurance] division do?
A. Specifically, no, I do not.”
. “Q. Do you know what the duties were of a [Systems Processing Assurance] associate, generally?
A. They basically did SAS-70 type work, the controls. I’m not sure. That’s all I knew of them.”
. Of course, plaintiffs need not personally possess such information, but Campbell and Sobek's depositions and declarations are the only pieces of evidence submitted by plaintiffs on the duties performed by PwC associates and senior associates.
. These include, for example, waiting time penalties, Cal. Labor Code § 203, wage statement claims, Cal. Labor Code § 226, and meal and rest break claims. Cal. Labor Code §§ 512(a) & 226.7.
. The court also calls the parties' attention to Federal Rule of Civil Procedure 23(f).
