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 2014-10

James Brady v. Deloitte & Touche , 587 F. App'x 363 ( 2014 )


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  •                                                                                  FILED
NOT FOR PUBLICATION                                 OCT 09 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES BRADY; SARAH CAVANAGH,                        No. 12-16384
individually and on behalf of all others
similarly situated,                                 D.C. No. 3:08-cv-00177-SI
Plaintiffs - Appellants,
MEMORANDUM*
v.
DELOITTE & TOUCHE, a limited
liability partnership,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Argued and Submitted September 12, 2014
San Francisco, California
Before: BEA, IKUTA, and HURWITZ, Circuit Judges.
This is a putative class action on behalf of unlicensed accountants against
Deloitte & Touche LLP, alleging various wage and hour violations under California
law. The district court originally certified the class, but, in light of this Court’s opinion
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
in Campbell v. PricewaterhouseCoopers, LLP,
    642 F.3d 820 
    (9th Cir. 2011), granted
Deloitte’s subsequent motion to decertify. We have jurisdiction over the appeal from
the decertification order under 28 U.S.C. § 1292(e) and Federal Rule of Civil
Procedure 23(f), and affirm.
1. We review a decertification order for abuse of discretion. Smith v. Univ. of
Wash., Law Sch.,
    233 F.3d 1188
    , 1192–93 (9th Cir. 2000). “We limit our review to
whether the district court correctly selected and applied Rule 23’s criteria.” Parra v.
Bashas’, Inc.,
    536 F.3d 975
    , 977 (9th Cir. 2008). An abuse of discretion occurs when
the district court “relies upon an improper factor, omits consideration of a factor
entitled to substantial weight, or mulls the correct mix of factors but makes a clear
error of judgment in assaying them.”
    Id. at 977–78 
    (citation omitted).
2. The central issue in this case is whether unlicensed Deloitte accountants are
exempt from California wage and hour laws under either the Professional Exemption,
Cal. Code Regs. tit. 8, § 11040(1)(A)(3) (2001), or the Administrative Exemption,
    id. § 11040(1)(A)(2). 
    To be exempt under either Exemption, an employee must
“customarily and regularly exercise[] discretion and independent judgment.”
    Id. § 11040(1)(A)(2)(b), 
    (3)(c). The Administrative Exemption applies to employees who
are primarily engaged in work directly related to management policies or general
business operations.
    Id. § 11040(1)(A)(2)(a), 
    (f).
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3. In determining whether either of the two Exemptions applies, the district
court analyzes the work performed by the employees. See Marlo v. United Parcel
Serv., Inc.,
    639 F.3d 942
    , 946–48 (9th Cir. 2011);
    Campbell, 642 F.3d at 830
    , 832–33.
Deloitte proffered evidence that the level of discretion afforded to unlicensed
accountants varies dramatically from assignment to assignment. Deloitte also
submitted evidence that some unlicensed accountants are primarily assigned to work
involving management policies or general business operations. Certification under
Rule 23(b)(3) requires “that the questions of law or fact common to class members
predominate over any questions affecting only individual members.” Fed. R. Civ. P.
23(b)(3). Given the individual inquiries involved in determining the application of the
Professional and Administrative Exemptions in this case, the district court did not
abuse its discretion by determining that the common questions of law or fact
appellants identified did not predominate over these individual issues.
AFFIRMED.
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