ninth circuit in california supreme court law the law the ninth circuit as it is clear clears the for class action settlement to apply or to a subsequent case that the subsequent case must be based on the this classification of exempt employees for unpaid overtime off the clock surely nichols case is because not also miscalculation there was no miscalculation in rain here at all not even mentioned if you a global search for miscalculation you'll not find it anywhere and rainier nichols also has distinct claims for labor code violation i mean a violation of labor go to a for timely payment of wages and wage daman violations seven different theory or actually a different factual predicate it's a different factual predicate it's not different theory because here it will stepping back and rainier we're saying we're misclassified is exempt we are never paid overtime in the first commissions in the bonuses should be tackling the regular rate so it's entirely different factual predicate and one example i like to point this court to is the ninth circuit's holding in hesse's for sprint the plaintiff in that case sued sprint for different billing errors or different billing surcharges and improper business practices the ninth circuit held that sprint can be sued for different parts of the bill a phone bill if that's a if that can be a different factual predi certainly different factual conduct in the nichols case is a different factual predicate and i think the law is fairly clear it's to the requirement that there be the same factual predicate i'm struggling to understand why this is a different factual predicate and as i understand your argument the rainier case was about misclassification right and she was never misclassified and so now she's proceeding on a different theory but if the ranier case was limited to mis misclassified as part of rainier because she was a mortgage consultant so she's part of the rainier class but the rainier class you have to understand goes back to two thousand and three so the rainier class includes people who worked as exempt employees from two thousand and three two thousand and thirteen mr nichols was exempt for that period but we're not suing for miss cap misclassification we're not suing saying we want to overtime because she's this class fired we're saying after you reclassified or you didn't calculate the overtime rate correctly that was never raised in rainier there was never  rainier about the hourly rate and the number of hours worked for particular items overtime payment incentive overtime that was never resist and i would like to also direct the court's attention to taylor and taylor the pla sought to include miscalculation claims in her settlement the district court rejected that attempt because the plaintiff until or never said she got these incentive payments this is the same as the ringer plaintiffs there's nothing in there in your case where they said we got th commissions and bonuses we think that they should have been included are over time right they never said that anywhere in the entire case you can check the entire appellate and the record it's nowhere to be found but we also have a distinct claims beyond   and ask the court to ask respondents counsel is this what you're intending to happen is this what you want to happen is for any class elements wipe out all claims how far would it go there are different parts of the labor code for two point five dealing with whistleblower retaliation labor code section sixty three ten dealing with workplace safety with these claims be included as well just because i work for you and that's part of the employment relationship w that beard included the district court area because it did not follow the ninth circuit law the district court followed general contract law regarding general leases this was not a general lease i asked the court to ask respondents counsel are you attempting to force a general lease and with that said i also would like to raise the public policy issues an absent class member when they get a class notice they don't know i mean to expect them to understand the legal ramifications of a release in in general these based on ninth circuit law but that's what respondent is arguing and that's what the district court followed there is nowhere in the rain your release or the in your case are very miscalculation there raynier case with miss classification mis that's what the rainier case is about mortgage consultants who are merely pushing paper who said i'm being paid salary i'm not being paid overtime for anything over eight hours in a day forty hours in a work week after citibank reclassified it's mortgage employees what we're saying is you're not tackling the overtime and correctly because by federal and california law the overtime rate must include all nondiscretionary pay or remuneration so that is the difference there's a fundamental difference and we also have citibank has a practice of paying them when we also have wage statement violations that were never raised and in rainier namely the name of the employer citibank city always citibank always put city on which they miss as opposed to full of full legal name which is required by california law citibank also doesn't spell out they are the rate of that of incentive over time payment which is required by california law and none of this was raised in rainier none of this was raised at all so we're thinking the ranee or operative complaint did not have an allegation of inaccurate kulish ans correct and rainer the complaints in the settlement agreement every single document on rainier had none of that so that's why judge fisher's order granting summary judgment for citibank should be affirmed because ms nichols is signed release was dispositive as judge  not need to go there although we can discuss the factual predicate test citibank's summary judgment motion asserted two separate and distinct legal defenses the law afforded both of those defenses to citibank one defense was based on common law res judicata principles that defense is not contractually based instead it relies on the district court's judgment in or near which by operation of law extinguished ms nichols claims or would have extinguished ms nichols claims in this case had she not signed the opt in agreement the other defense and the defense that judge fisher correctly address is a contractually based defense under state law that ms nichols agreed in writing to release her claims in exchange for receiving money that defense contractually says the defense the judge fisher correctly relied upon in her summary judgment order and to address one of the statements that ms nichols counsel made and that they make in their papers one of the fundamentally false premises in their papers is that citibank that that appellee is arguing that a general release agreement bars ms nichols claims that's not the case to judge settles point what we're arguing is the agreement that she signed which is very clear in its terms the opt in agreement that she signed says that she is waving her wage and hour claim that she did or could pled did plead or could have pled in were near including for overtime compensation including for penalties under state law that release is very clear and therefore as judge fisher correctly analyzed unless it was obtained by fraud or deceit it's an in four simple agreement her ms nichols response in under in the court below was well i didn't understand it to include certain allegations of a subjective intent as i'm sure the court is aware is not a basis for invalidating a contract when the language in the agreement is clear and there's a plethora of cases including for being of the judge for sure cited that support that so what what ms nichols counsels is tempting to do here that they've attempted to do in their papers is conflate the two tests but there is not a single decision by this court that applies the that applies to race judicata which is the common law principle that looks whether by operation of law a release extinguishes prior claims as are two different offenses that we've asserted and they've completely ignored the fence that the y in addition i heard i heard ms nichols counsel say that the trial court essentially did not protect ms nichols two from misunderstanding what the her claims and the reason that she received payment in re near all in reason that she was a class member near and had the ability to sign this agreement to receive money all of her claims were based on  nonexempt work as a home lending specialist for citibank and that's and that's alleged in the complaint and we can we can talk about identical factual predicate but i want to i want to complete the discussion of this agreement that apparently did not protect the class members and that there is there's an issue with class members not understanding releases if that was the case the entire system of approving class settlements would be completely undermined there is a process here under rule twenty three and that process was followed in or near but if ms nichols thought that it hadn't been followed or if she thought that the release was not fair she had remedies she could have opted out she could have sought to intervene she could have objected to the settlement she could have with the benefit of counsel which she had by the time the settlement was finally approved she could have filed an appeal in the second circuit challenging the release in the opt in form or in the settlement agreement as somehow brought she did not do any of those things instead within weeks of receiving her notice which she acknowledged she read the release and she submitted her claim for not once but twice she sent a she faxed it in right away and this is in the record and she mailed it in and then she accepted her payment she received the check and then again with the benefit of counsel on december second two thousand and fifteen instead of saying you know what this release is wrong it's too broad it's whatever she cashed the check and she's entitled to do that but what she's not entitled to do is what she did nine days later which is the she went out having signed a contract that said i released my claims and she filed the suit this new lawsuit or claims that she had released nine days earlier me the summary judgment order should be affirmed because what mr ms nichols is trying to do here violates principles of contract law based on the agreement that she i'll address it briefly and some of the comments that the council made first the issue here if we are addressing race judicata is whether there's an identity of claims the test is not one for whether there are identical facts that is an identical predicate and that's true in all of the cases including has and contrary just looking at the record contrary to what my colleague has said there is a specific allegation in ranier that addresses the over time claims that issue here it's in the record at page three twenty eight it's paragraph thirty six of the first to many complaint which alleges that in or around there are separate allegations first regarding this classification then it says in or around july eighteenth two thousand and ten defendants reclassified plaintiffs as nonexempt from the overtime requirements of the f l a say and applicable state laws there after began receiving some compensation for overtime hours work some compensation that's me carefully back to the quote however this compensation routinely fell short of what is required under the f l s a and applicable state laws that is analogous in the nonexempt employees are not receiving or were not receiving all of the overtime that they should be receiving in addition with respect to the wage the paragraph forty one of the first amended complaint in rainier alleges members of the state law class and that includes ms nichols were not provided with accurate wage statements as required by state law among other in accuracies these statements did not accurately reflect all hours worked including overtime hours all the claims alleged in this case were alleged and disposed  words the difference tell me what the factual predicate is or the factual was is that home alone home lending specialist nonexempt home lending specials putting aside the misclassification allegations that relate to h l s's who worked before july two thousand and ten but nonexempt misclassification specialist yes based on you have the claims are based on supposedly not being paid all of their overtime those are the facts and not the the alleged harm to ms nichols is the same in both cases in  that she didn't receive all of the overtime in this case it's alleged that she did not receive all of her overtime and all of the claims flowing from that are claims that are derived from the overtime the wage statements the  allegation in accurate calculation of over time it does not use those exact words but it doesn't need to under the test it says that they were shorted there over time if the test were exactly the same allegations and if you look at all of the cases then it would be a very rare circumstance in which is the identical factual predicate or common pleas to back the pli what the courts look at and it's stated  during the time period in question those claims clearly would be tried together claims for unpaid overtime and whether the over time was calculated correctly and in the process of settling there in your case you have to calculate the overtime and determine whether the overtime was calculated correctly otherwise we get into the the policy morass of if we're going to split hairs based on an allegation that these specific words were not used  then we lose the certainty that that we benefit from in settlements and the courts which are already bogged down with so many of these wage our class actions are going to have an even more course they could we be looking at the same payroll records for the same time periods for the same people including ms nichols we'd be looking at the same wage statements and to say that well but in rainier they didn't allege that the wage statements i didn't say the name of the employer so we're going to look at the way statements are near but we're going to have a separate class action here in nichols to take a look at the same way steve see if they say citibank is the employer which by the way they do so counsel can make up an allegation that that is not true but say that's a basis for a separate lawsuit but it doesn't make sense to try those cases together it's totally inefficient and defeats the purposes of race judicata which this court analysis in this case that the decision should be affirmed on that basis as well in addition to the basis which counsel has not addressed at all which is that she signed an agreement that's in forcible under california contract or just briefly a couple points i think you heard it from defense response counsel's own mouth there in your just in on involve miscalculation it was off the clock judge fisher's order granting summary judgment recognizes the difference she says a pitch to of or order granting summary judgment in rainier defendants virtues the pen that failing to pay over time through misclassification and off the clock work nichols is not alleging any off the clock nichols is alleging miscalculation of the overtime rate which is just the settled you recognized the difference in the allegations well you reference the order t  wage and hour laws were released under this settlement agreement that just in the end that's not the law of the ninth circuit again just judge fisher and respondents looked at general contract law and in response rip argument here today response counsel's argument a focus on contract law is this the effect of a class settlement is not governed by general contract principles as as the ninth circuit said i believe in has your rains and rains pos the case the defendant may have drafted the release as broadly as possible the language is irrelevant in the release what we look at are the facts of the case is doesn't then i call factual predicate test that is the test that the district court should have applied the district court applied contract principles which plaintiff pallant respectfully submit was wrong in again the  rainier case there's no mention of any late payment of commissions there's no not a single word in the record dealing with late payment of commissions there's not a single record any word in the record about inaccurate wa minutes and with respect to response counsel's argument that the cases could've been tried together that's not the test if that was the test then we wouldn't have heskey as a published decision of the circuit has he said you can sue sprint for different parts of a cell phone bill different surcharges your case survives the district court erred in granting summary judge in that case the ninth circuit reversed if a different if different parts of the bill a cell phone bill can serve as two different class actions are different cases then certainly an employer's different conduct different parts of the conduct ruling to different aspects of employment can be two different cases that is the law of the ninth circuit that's where the district court erred and that's where response arguments fall short and that's why we believe that most courts now have an opt out settlement but regardless of whether it's opt in or opt out the fact is the effect is the same the effect of a settlement a class settlement or nothing less is set on that is based on the language of the of the underlying what's what's relevant is the facts the facts of the case the claims of ritz and rainier didn't raise any of the claims that nichols is raising and these are distinct factual claims distinct that there can be no dispute even judge fisher recognized it because it's not government contract law it's governed by the identical factual predicate doctrine which the ninth circuit itself has followed which numerous district courts have followed which i would like to raise in our briefing we cite in numerous district court cases in which district judges have held that even the same labor code provisions if they're based on different facts can give rise to a different case and the prior settlement does not apply so with that said we would submit thank you