FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAYMOND VINOLE, on behalf of 

himself and all others similarly

situated; KEN YODER, No. 08-55223

Plaintiffs-Appellants, D.C. No.  v. CV-07-00127-DMS

COUNTRYWIDE HOME LOANS, INC., a OPINION

New York corporation,

Defendant-Appellee. 

Appeal from the United States District Court

for the Southern District of California

Dana M. Sabraw, District Judge, Presiding

Argued and Submitted

February 5, 2009—Pasadena, California

Filed July 7, 2009

Before: Barry G. Silverman and Consuelo M. Callahan,

Circuit Judges, and Richard Mills,* Senior District Judge.

Opinion by Judge Callahan

*The Honorable Richard Mills, Senior United States District Judge for

the Central District of Illinois, sitting by designation. 

8299
COUNSEL

Michael D. Singer, Cohelan, Khoury & Singer, on behalf of

appellants Raymond Vinole and Ken Yoder.

8302 VINOLE v. COUNTRYWIDE HOME LOANS
Thomas R. Kaufman, Seyfarth Shaw LLP, on behalf of appellee Countrywide Home Loans, Inc.

OPINION

CALLAHAN, Circuit Judge:

Plaintiffs-Appellants Raymond Vinole and Ken Yoder

(“Plaintiffs”) appeal the district court’s order granting

Defendant-Appellee Countrywide Home Loans, Inc.’s

(“Countrywide”) motion to deny class certification. In this

wage-and-hour dispute, Plaintiffs seek to represent a proposed

class of current and former Countrywide employees who are

or were employed as External Home Loan Consultants

(“HLCs”). They allege that Countrywide mis-classified HLCs

as “exempt” outside sales employees and, as a result, Countrywide impermissibly failed to pay premium overtime and

other wages. In a procedural wrinkle, Countrywide filed its

motion to deny certification before Plaintiffs filed a motion

for certification pursuant to Federal Rule of Civil Procedure

23 (“Rule 23”) and prior to the pretrial motion deadline and

discovery cutoff. 

On appeal, we consider whether the district court abused its

discretion by (1) considering Countrywide’s motion to deny

class certification before Plaintiffs had filed a motion to certify and prior to the pretrial and discovery cutoffs, and (2)

denying class certification based on its reasoning that individual issues predominate over common issues. See Fed. R. Civ.

P. 23(b)(3). We affirm. First, no rule or decisional authority

prohibited Countrywide from filing its motion to deny certification before Plaintiffs filed their motion to certify, and Plaintiffs had ample time to prepare and present their certification

argument. Second, the district court did not abuse its discretion by denying certification under Rule 23(b)(3) because the

record supports its conclusion that individual issues predominate over common issues.

VINOLE v. COUNTRYWIDE HOME LOANS 8303
I

Countrywide is a corporation that provides mortgages to

homeowners and home purchasers. It employs roughly 1,140

HLCs, like Plaintiffs Vinole and Yoder, in small satellite

offices throughout California to sell loan products on its

behalf. HLCs are focused on outside sales and “represent

Countrywide in local communities, and specifically work with

realtors, builders, and other potential business partners in

order to develop business relationships and obtain referral

business.” They are paid entirely on commission, based on

loan production.1 Countrywide declares that it “has no control

over what HLCs actually do during the day” and does not

monitor how HLCs perform their work activities. It further

states that “[i]t is immaterial how much, or how little time

HLCs spend in the office, or working overall” and that “[i]t

is up to each HLC to decide how much time they want to

spend doing this, how they want to market themselves, and

how much money they want to make.” HLCs can earn several

hundreds of thousands of dollars, and the average annual

compensation of Countrywide’s HLCs during the relevant

period was over $100,000.

Countrywide applies a uniform wage exemption to HLCs,

categorizing them as “exempt” outside salespeople to whom

Countrywide is not obligated to pay overtime and related

wages. It relies on the “outside salesperson” exemption found

in the California Industrial Wage Commission’s (“I.W.C.”)

Wage Order 4-2001, § 1(C), codified at Cal. Code Regs., tit.

8, § 11040, and a similar exemption in the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 213(a)(1). I.W.C. Wage

Order 4-2001, § 2(M) defines an outside salesperson as a person “who customarily and regularly works more than half the

1Countrywide also employs Internal Home Loan Consultants, who perform inside loan origination work based on phone calls and walk-ins.

Countrywide classifies these employees as non-exempt workers who are

paid on an hourly basis. 

8304 VINOLE v. COUNTRYWIDE HOME LOANS
working time away from the employer’s place of business

selling tangible or intangible items or obtaining orders or contracts for products, services, or use of facilities.”

Evidence in the record, in the form of declarations from

HLCs regarding the amount of time individual HLCs spent

inside and outside the office, suggests that the time spent in

or out of the office varies greatly. Countrywide does not keep

records reflecting whether any particular HLC qualifies for

the exemption and does not monitor any possible change in an

HLC’s exemption eligibility—it apparently only tracks the

number and value of loans that HLCs close each month.

In October 2006, Plaintiffs filed a complaint in California

state court, which Countrywide removed to federal court in

January 2007. The First Amended Class Action Complaint

(“Complaint”) alleges twelve causes of action against Countrywide on the theory that Countrywide impermissibly classified all HLCs as exempt despite the fact that most HLCs

primarily engaged in non-exempt activities inside the office.2

Plaintiffs seek to represent a putative class defined as follows:

All current and former California-based employees

having a title of Loan Consultant and/or other similarly designated titles, who have worked for Defendant COUNTRYWIDE HOME LOANS, INC.

within the last four (4) years from the filing of the

Complaint up to and including the time of trial for

this matter (“Loan Consultants”)[.]

The Complaint also proposes eight sub-classes within the

larger class.

2Plaintiffs allege claims for restitution of overtime wages, failure to pay

overtime wages, failure to pay minimum wages, failure to provide meal

periods, failure to provide rest periods, illegal record keeping, unfair business practices, conversion, and declaratory relief. They seek back pay with

interest, declaratory relief, injunctive relief, punitive damages, penalties,

and attorneys’ fees. 

VINOLE v. COUNTRYWIDE HOME LOANS 8305
On August 7, 2007, before the discovery cutoff and pretrial

motion cutoff, Countrywide filed a motion to deny certification. The discovery cutoff was scheduled for November 9,

2007, and the pretrial motion cutoff was scheduled for

December 3, 2007. Plaintiffs had not yet filed an affirmative

motion for class certification. Plaintiffs opposed the motion,

arguing that (1) the motion was “not ‘ripe’ ” and was procedurally improper because Plaintiffs had yet to file a motion

for class certification; and (2) class certification was substantively warranted based on the evidence they presented, which

included nine declarations from HLCs that served as a “preview” of the motion for class certification that Plaintiffs’

intended to file.

On November 15, 2007, the district court granted Countrywide’s motion. First, the district court held that it was permitted to decide the question of certification on Countrywide’s

motion under Rule 23 notwithstanding the fact that Countrywide had filed its motion before the pretrial motion and discovery cutoff dates. Second, the district court held that class

certification was not substantively proper because Plaintiffs

had not met their burden to demonstrate the applicability of

one of the Rule 23(b) certification grounds. Specifically, it

concluded that individual issues predominated over common

issues because determining the propriety of a HLC’s exempt

status would require an individualized analysis of how each

HLC spent his or her time, and that Countrywide had “no

common scheme or policy that would diminish the need for

individual inquiry.” (Order at 5, Nov. 15, 2007.)

After entry of the district court’s order, Plaintiffs successfully petitioned this court for permission to file an interlocutory appeal pursuant to Federal Rule of Civil Procedure 23(f).3

3We ordered that this case be calendered with In re Wells Fargo Home

Mortgage Overtime Pay Litigation, No. 08-15355, also decided today,

because the cases involve similar issues as to the certification of a class

of loan consultants. 

8306 VINOLE v. COUNTRYWIDE HOME LOANS
II

We review a district court’s order denying class certification for an abuse of discretion. Zinser v. Accufix Research

Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). As we stated

in Parra v. Bashas’, Inc., 

[w]e limit our review to whether the district court

correctly selected and applied Rule 23’s criteria. An

abuse of discretion occurs when the district court, in

making a discretionary ruling, 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.

536 F.3d 975, 977-78 (9th Cir. 2008) (citation and internal

quotation marks omitted).

III

A

[1] We first address Plaintiffs’ argument that a defense

motion to deny class certification “brought outside the context

of a plaintiff’s motion actually seeking certification is procedurally improper per se.” Although we have not previously

addressed this argument directly, we conclude that Rule 23

does not preclude a defendant from bringing a “preemptive”

motion to deny certification.

[2] Rule 23(c)(1)(A) addresses the timing of a district

court’s class certification determination, and states: “Time to

Issue: At an early practicable time after a person sues or is

sued as a class representative, the court must determine by

order whether to certify the action as a class action.” Fed. R.

Civ. P. 23(c)(1)(A). Nothing in the plain language of Rule

23(c)(1)(A) either vests plaintiffs with the exclusive right to

VINOLE v. COUNTRYWIDE HOME LOANS 8307
put the class certification issue before the district court or prohibits a defendant from seeking early resolution of the class

certification question. The only requirement is that the certification question be resolved “[a]t an early practicable time.”

The plain language of Rule 23(c)(1)(A) alone defeats Plaintiffs’ argument that there is some sort of “per se rule” that

precludes defense motions to deny certification, and Plaintiffs

have produced no authority to the contrary. 

[3] In addition, contrary to Plaintiffs’ assertion that the district court here charted “troubling new territory” by entertaining Countrywide’s motion to deny certification, federal courts

have repeatedly considered defendants’ motions to deny class

certification. In Rutledge v. Electric Hose & Rubber Co., we

affirmed the district court’s order granting defendants’ motion

to deny certification under Rule 23, albeit without expressly

addressing any challenge to the defendants’ ability to bring

such a motion before plaintiffs moved for certification. 511

F.2d 668, 673 (9th Cir. 1975). In Cook County College Teachers Union, Local 1600 v. Byrd, the Seventh Circuit also concluded that it was proper for the district court to consider the

defendants’ motions to deny certification where the plaintiffs

had not yet moved to certify a class. See 456 F.2d 882, 884-85

(7th Cir. 1972) (“One opposing a class action may move for

an order determining that the action may not be maintained as

a class suit.”), cert. denied, 409 U.S. 848 (1972); see also

Parker v. Time Warner Entm’t. Co., 331 F.3d 13, 21-22 (2d

Cir. 2003) (reviewing a district court’s order granting defendant’s motion to deny class certification but vacating that

order because the district court had not permitted plaintiffs to

conduct limited discovery).

Plaintiffs’ proposed rule is also contrary to the fact that district courts throughout the nation have considered defendants’

“preemptive” motions to deny certification. See, e.g., Fedotov

v. Peter T. Roach & Assocs., P.C., 354 F. Supp. 2d 471, 478

(S.D.N.Y. 2005) (stating that “defendant’s Motion for Denial

of Class Certification—a procedural ‘preemptive strike’

8308 VINOLE v. COUNTRYWIDE HOME LOANS
against this purported class action—is properly before this

court”); Chevron USA, Inc. v. Vermillion Parish Sch. Bd., 215

F.R.D. 511, 515-16 (W.D. La. 2003) (granting defendants’

motion to deny class certification), aff’d, 377 F.3d 459, 464

(5th Cir. 2004); Bryant v. Food-Lion, Inc., 774 F. Supp. 1484,

1495 (D.S.C. 1991) (denying on the merits defendant’s

motion to deny class certification brought before start of discovery); Osborn v. Pennsylvania-Delaware Serv. Station

Dealers Ass’n, 499 F. Supp. 553, 560 (D. Del. 1980)

(“Plaintiff’s briefing appears to incorrectly assume that defendants to purported class actions may only raise issues regarding the appropriateness of this procedure in response to class

certification motions.”); Brown v. Milwaukee Spring Co., 82

F.R.D. 103, 104 (E.D. Wis. 1979) (“While the plaintiff has

the burden of establishing her right to maintain a class action,

the defendants may test the propriety of the action by means

of a motion for denial of class certification.”).4

Plaintiffs rely on three district court cases for their purported “per se rule” prohibiting defendants from moving to

deny class certification prior to the plaintiffs’ filing of a

motion to certify: In re Wal-Mart Stores, Inc. Wage and Hour

Litigation, 505 F. Supp. 2d 609 (N.D. Cal. 2007); Baas v.

Dollar Tree Stores, Inc., No. C 07-03108 JSW, 2007 WL

2462150 (N.D. Cal. Aug. 27, 2007) (unpublished); and Beau4Several secondary sources also recognize that either plaintiffs or defendants may put class certification at issue and that defendants may move

to deny class certification before plaintiffs file a motion to certify a class.

See, e.g., James Wm. Moore, 5 MOORE’S FED. PRACTICE, § 23.82[1] (Matthew Bender 3d ed. 2009) (“The defendant need not wait for the plaintiff

to act, however. The defendant may move for an order denying class certification.”); William B. Rubenstein, Alba Conte & Herbert B. Newberg, 3

NEWBERG ON CLASS ACTIONS, § 7:6 (4th ed. June 2009) (“Not infrequently,

however, the defendants may initially move for an order denying the

class.”); Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, 7AA

FED. PRAC. & PROC. CIV. 3D, § 1785 (2008) (“Either plaintiff or defendant

may move for a determination of whether the action may be certified

under Rule 23(c)(1).”). 

VINOLE v. COUNTRYWIDE HOME LOANS 8309
perthuy v. 24 Hour Fitness USA, Inc., No. 06-0715 SC, 2006

WL 3422198 (N.D. Cal. Nov. 28, 2006) (unpublished). These

cases do not support Plaintiffs’ proposed rule. 

In In re Wal-Mart Stores, the district court did not have

before it a Rule 23 motion to deny class certification—

instead, and unlike the present case, the district court was considering the defendant’s motions to dismiss and strike class

allegations pursuant to Federal Rule of Civil Procedure 12,

when the defendant had not yet answered the complaint, discovery had not yet commenced, and no motion to certify a

class had been filed. See 505 F. Supp. 2d at 614-16. The district court exercised its discretion and denied the motions in

order to allow plaintiffs time to conduct discovery prior to

considering the propriety of the class allegations. Id. at

615-16. However, it in no way set forth an absolute prohibition on defense motions to deny certification.5

Plaintiffs’ reliance on Baas is similarly unfounded because

that case involved a defendant’s motions to dismiss and strike

class allegations on vagueness grounds and was decided in

nearly the same procedural posture as In re Wal-Mart Stores.

See Baas, 2007 WL 2462150 at *2-3 (distinguishing a Rule

23 motion and holding that defendant’s attempt to dismiss

class allegations under Rule 12 was premature). As in In re

Wal-Mart Stores, Baas did not adopt the per se rule urged by

Plaintiffs here.

Finally, the Plaintiffs misread Beauperthuy as supporting a

per se prohibition on preemptive motions to deny class certification. In that case, the district court denied defendants’

motion under Rule 23(d)(4) to compel amendment of the

pleadings to eliminate class allegations on the grounds that

such a motion was “procedurally inseparable” from the ques5

In our case, during the hearing on Countrywide’s motion to deny certification, the district court specifically recognized the Countrywide’s

motion was brought pursuant to Rule 23, not Rule 12(b). 

8310 VINOLE v. COUNTRYWIDE HOME LOANS
tion of class certification, and that the plaintiffs had not yet

filed a motion to certify. Beauperthuy, 2006 WL 3422198, at

*3. The district court held only that it was procedurally

improper to consider a motion to compel an amendment of the

pleadings in a class action case where the question of certification was not yet before the court and discovery was ongoing. Id. Again, the district court did not announce the rule

forwarded by Plaintiffs here.

[4] In short, Plaintiffs have read into Rule 23 a per se prohibition against defendants filing of a motion to deny class

certification where none exists. A defendant may move to

deny class certification before a plaintiff files a motion to certify a class. Accordingly, the district court did not err by considering Countrywide’s motion.

B

Having determined that Countrywide filed its motion to

deny class certification at a permissible point in the proceedings, we next consider whether the district court abused its

discretion in granting Countrywide’s motion before the pretrial motion cutoff and the discovery cutoff. The district court

held that (1) it was not obligated to wait for the pretrial

motion deadline before considering the class certification

issue, and (2) Plaintiffs had “sufficient time to prepare for

Defendant’s motion” despite the fact that the discovery cutoff

was three weeks away. Plaintiffs argue that the district court’s

consideration of the motion was “fundamentally unfair”

because they were deprived of the opportunity to present their

argument based on a full record.

[5] Plaintiffs offer virtually no factual assertions in support

of their claim that the district court abused its discretion by

considering Countrywide’s motion to deny certification

before the December 3, 2007 pretrial motion deadline. They

essentially argue that it was unfair for the district court to consider Countrywide’s motion when it did. However, the operaVINOLE v. COUNTRYWIDE HOME LOANS 8311
tive scheduling order simply states that “[a]ll other pretrial

motions must be filed on or before December 3, 2007.” As the

district court noted in its order, “the scheduling order neither

provides Plaintiffs an exclusive right nor a specifically designated period of time to address the issue of class certification.” (Order at 3.) In addition, Plaintiffs have not offered any

authority, and we have found none, for the proposition that a

district court either abuses its discretion or errs as a matter of

law by considering the issue of class certification before expiration of a pretrial motion deadline. Plaintiffs’ argument is

essentially a re-packaged version of their argument that plaintiffs are entitled to complete control over the timing of a district court’s consideration of the class certification issue, an

argument which we have already rejected.

[6] We also conclude that Plaintiffs were provided with

adequate time in which to conduct discovery related to the

question of class certification such that the district court did

not abuse its discretion by considering Countrywide’s motion.

District courts have broad discretion to control the class certification process, and “[w]hether or not discovery will be permitted . . . lies within the sound discretion of the trial court.”

Kamm v. Cal. City Dev. Co., 509 F.2d 205, 209 (9th Cir.

1975); accord Armstrong v. Davis, 275 F.3d 849, 871 n.28

(9th Cir. 2001). Although a party seeking class certification is

not always entitled to discovery on the class certification

issue, we have stated that “[t]he propriety of a class action

cannot be determined in some cases without discovery,”

Kamm, 509 F.2d at 210, and that “the better and more advisable practice for a District Court to follow is to afford the litigants an opportunity to present evidence as to whether a class

action was maintainable.” Doninger v. Pac. Nw. Bell, Inc.,

564 F.2d 1304, 1313 (9th Cir. 1977) (holding, however, that

class certification was properly denied without discovery

where plaintiffs could not make a prima facie showing of

Rule 23’s prerequisites or that discovery measures were

“likely to produce persuasive information substantiating the

class action allegations”); accord Mantolete v. Bolger, 767

8312 VINOLE v. COUNTRYWIDE HOME LOANS
F.2d 1416, 1424-25 (9th Cir. 1985). Our cases stand for the

unremarkable proposition that often the pleadings alone will

not resolve the question of class certification and that some

discovery will be warranted.6

Here, however, considerably more information was available to the district court when it ruled on the motion to deny

certification than just the pleadings. Although the district

court considered Countrywide’s motion roughly three weeks

before the November 2007 discovery cutoff, Plaintiffs had

nearly ten months to conduct informal and formal discovery

between the time Plaintiffs filed their original class action

complaint and their opposition to Countrywide’s motion. Tellingly, Plaintiffs’ counsel and Judge Sabraw had the following

exchange at the hearing on Countrywide’s motion to deny

class certification:

[Counsel]: The complaint was filed October 20th,

2006.

The Court: Okay. So tomorrow will be one year.

[Counsel]: Yes.

The Court: And here there has been — it has been

in the federal court for . . . about 10 months. And . . .

discovery closes in two or three weeks?

6The Eleventh Circuit recently stated that “the parties’ pleadings alone

are often not sufficient to establish whether class certification is proper,

and the district court will need to go beyond the pleadings and permit

some discovery and/or an evidentiary hearing to determine whether a class

may be certified.” Mills v. Foremost Ins. Co., 511 F.3d 1300, 1309 & n.14

(11th Cir. 2008); see also In Re Am. Med. Sys., Inc., 75 F.3d 1069, 1086

(6th Cir. 1996) (“The court should defer decision on certification pending

discovery if the existing record is inadequate for resolving the relevant

issues.”) (citation and quotation marks omitted). 

VINOLE v. COUNTRYWIDE HOME LOANS 8313
[Counsel]: Right. We are — I would say, your

honor, that we are anticipating being able to file a

Rule 23 motion within about four weeks.

The Court: What more discovery would you do?

[Counsel]: We are not going to conduct any more

discovery in terms of obtaining information from the

defense or taking depositions and so forth, but we

are compiling additional declarations from putative

class members.

As I mentioned in the briefing, we provided a preview of those declarations, because we didn’t want

to be on defendants’ schedule forced into putting

forth our Rule 23 motion in opposition to a procedurally improper motion to deny class certification.

[7] Several things are apparent from this colloquy. First, at

the time of the hearing Plaintiffs had conducted significant

discovery and did not intend to propound any additional discovery seeking information from Countrywide regarding the

propriety of class certification. Second, it is evident that

Plaintiffs had made a strategic choice to limit the amount of

evidence it presented to the district court in opposition to

Countrywide’s motion; they proffered their class certification

arguments through their “preview” declarations. Third, Plaintiffs’ real complaint is not that they were deprived of adequate

time in which to complete discovery, but that they “didn’t

want to be on defendants’ schedule.” But, again, this is just

a variation on Plaintiffs argument in favor of a per se rule.

Plaintiffs, in a strategic gamble, relied on their position that

Countrywide’s motion was procedurally improper—an argument we have rejected—to avoid having the district court

decide the motion on the merits. Nothing in the record suggests that Plaintiffs could not have more diligently prepared

their certification argument in the months between the date

8314 VINOLE v. COUNTRYWIDE HOME LOANS
Countrywide filed its motion and the date Plaintiffs’ opposition brief was due.

Moreover, the record indicates that Plaintiffs did not

request a continuance or an extension of time in which to

respond to Countrywide’s motion. If Plaintiffs truly were not

prepared to present their position on class certification, it

seems reasonable that they would have requested an extension

or continuance as soon as possible after Countrywide filed its

motion to deny class certification.7

[8] We have decided that Countrywide could properly file

its motion to deny class certification before the close of discovery and before the pretrial motion deadline. Accordingly,

the district court’s consideration of the motion would only be

improper if Plaintiffs could show some procedural prejudice

from the timing of the consideration. Plaintiffs have failed to

do so on the record presented, and, thus, the district court did

not abuse its discretion.

IV

Next, we review the merits of the district court’s denial of

class certification for an abuse of discretion. Zinser, 253 F.3d

at 1186. Plaintiffs’ claim that the district abused its discretion

by not certifying a class in accordance with Wang v. Chinese

Daily News, Inc., 231 F.R.D. 602 (C.D. Cal. 2005), which

certified a Rule 23(b)(3) class on the basis of an employer’s

uniform classification of a group of its employees as exempt.

7Plaintiffs argue that they asked the district court to “belay its ruling on

the motion to deny certification until [they] brought their substantive

motion,” which Plaintiffs contend was essentially a request for a continuance. Plaintiffs have not cited to evidence in the record substantiating any

such formal request, and the district court’s docket does not reflect as

much. 

VINOLE v. COUNTRYWIDE HOME LOANS 8315
A

Under Rule 23(b)(3), a class may be certified if the district

court “finds that the questions of law or fact common to class

members predominate over any questions affecting only individual members, and that a class action is superior to other

available methods for fairly and efficiently adjudicating the controversy.”8

 Fed. R. Civ. P. 23(b)(3). The predominance

inquiry focuses on “the relationship between the common and

individual issues” and “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.”

9

Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir.

1998) (citation and quotation marks omitted). Rule 23(b)(3)’s

predominance and superiority requirements were added “to

cover cases ‘in which a class action would achieve economies

of time, effort, and expense, and promote . . . uniformity of

decision as to persons similarly situated, without sacrificing

procedural fairness or bringing about other undesirable

results.’ ” Anchem Prods., Inc. v. Windsor, 521 U.S. 591, 615

(1997) (quoting Fed. R. Civ. P. 23(b)(3) Adv. Comm. Notes

to 1966 Amendment). Accordingly, a central concern of the

Rule 23(b)(3) predominance test is whether “adjudication of

common issues will help achieve judicial economy.” Zinser,

253 F.3d at 1189 (citation and quotation marks omitted). 

Keeping the requirements and purpose of Rule 23(b)(3) in

mind, our assessment of whether the district court abused its

discretion also implicates the analytical framework within

which courts review application of an exemption to an

employee. Here, the district court held that analysis of the outside salesperson exemption precluded certification because

that analysis would require an individualized inquiry into the

8On appeal, the parties do not dispute whether Plaintiffs have satisfied

the requirements of Rule 23(a), which is a prerequisite to class certification. See Parra, 536 F.3d at 978. 

9The party seeking certification bears the burden of demonstrating that

he has met the requirements of Rule 23(b). Zinser, 253 F.3d at 1186. 

8316 VINOLE v. COUNTRYWIDE HOME LOANS
manner in which each HLC actually carried out his or her

work, and that this burden was not lessened by the presence

of other issues susceptible to common proof. (See Order at

4-7.)

Federal law and California law provide exemptions for

“outside salespersons.”

10 The California exemption from overtime and other wages applies to an employee “who customarily and regularly works more than half the working time away

from the employer’s place of business selling tangible or

intangible items or obtaining orders or contracts for products,

services, or use of facilities.” Cal. Code Regs. tit. 8,

§§ 11040(1)(C), (2)(M). Under California law, a court evaluating the applicability of the outside salesperson exemption

must conduct an individualized analysis of the way each

employee actually spends his or her time, and not simply

review the employer’s job description. Ramirez v. Yosemite

Water Co., 978 P.2d 2, 9 (Cal. 1999). This entails a two-step

inquiry. See, e.g., Campbell v. PriceWaterHouseCoopers,

LLP, 253 F.R.D. 586, 600 (E.D. Cal. 2008). First, the court

examines in an individualized fashion the work actually performed by the employee to determine how much of that work

is exempt. Id. Second, the court determines whether the

10The Tenth Circuit summarized the rationale underlying these exemptions as follows: 

The reasons for excluding an outside salesman are fairly apparent. Such salesmen, to a great extent, works individually. There

are no restrictions respecting the time he shall work and he can

earn as much or as little, within the range of his ability, as his

ambition dictates. In lieu of overtime, he ordinarily receives commissions as extra compensation. He works away from his

employer’s place of business, is not subject to the personal supervision of his employer, and his employer has no way of knowing

the number of hours he works per day. To apply hourly standards

primarily devised for an employee on a fixed hourly wage is

incompatible with the individual character of the work of an outside salesman. 

Jewel Tea Co. v. Williams, 118 F.2d 202, 207-08 (10th Cir. 1941). 

VINOLE v. COUNTRYWIDE HOME LOANS 8317
employee’s work was consistent with the employer’s expectation and whether those expectations were realistic.11 Id.;

accord Sepulveda v. Wal-Mart Stores, Inc., 237 F.R.D. 229,

246 (C.D. Cal. 2006), aff’d in relevant part, 275 F. App’x 672

(9th Cir. 2008).

Under federal law, the FLSA’s exemption found in 29

U.S.C. § 213(a)(1) exempts employees whose “primary duty”

is making sales or “obtaining orders or contracts for services

or for the use of facilities for which a consideration will be

paid by the client or customer,” and “[w]ho is customarily and

regularly engaged away from the employer’s place or places

of business in performing such primary duty.” 29 C.F.R.

§ 541.500(a).12 Similar to the California exemption, analysis

of the FLSA exemption is a fact-intensive inquiry. See, e.g.,

Tumminelo v. United States, 14 Cl. Ct. 693, 697 (1988) (“The

determination of whether an exemption applies to a given

individual . . . is a very fact-specific exercise.”).

B

Plaintiffs ask us to follow the Wang decision and adopt a

rule that class certification is warranted under Rule 23(b)(3)

whenever an employer uniformly classifies a group of

employees as exempt, notwithstanding the requirement that

the district court conduct an individualized analysis of each

employee’s actual work activity. See 231 F.R.D. at 612-13;

see also Wiegele v. FedEx Ground Package Sys., Inc., No.

11The California Supreme Court has cautioned that a defendant cannot

defeat class certification simply by raising an exemption as an affirmative

defense, Sav-On Drug Stores, Inc. v. Superior Court, 96 P.3d 194, 207

(Cal. 2004), but has also stated that “[a]ny dispute over how the employee

actually spends his or her time, of course, has the potential to generate

individual issues.” Id. at 206 (internal citations and quotation marks omitted). 

12The term “primary duty” includes “work performed incidental to and

in conjunction with the employee’s own outside sales.” 29 U.S.C.

§ 541.500(b). 

8318 VINOLE v. COUNTRYWIDE HOME LOANS
06cv1330, 2008 WL 410691, *7-10 (S.D. Cal. Feb. 12, 2008)

(relying on Wang and certifying class of former FedEx managers based on application of exemption). This is essentially

the approach adopted by the district court in In re Wells

Fargo Home Mortgage Overtime Pay Litigation, 527 F. Supp.

2d 1053, 1068 (N.D. Cal. 2007), which is also before us on

appeal. 

[9] We decline to adopt such an approach because—as set

forth in greater length in our opinion in In re Wells Fargo—

we hold that a district court abuses its discretion in relying on

an internal uniform exemption policy to the near exclusion of

other factors relevant to the predominance inquiry. See In re

Wells Fargo Home Mortgage Overtime Pay Litig., No. 08-

15355, slip. op. at 8335-36. As we stated there, focusing on

a uniform exemption policy alone does little to further the

purpose of Rule 23(b)(3)’s predominance inquiry, which

requires an assessment of the relationship between individual

and common issues. Id. Instead of adopting what would

essentially be a bright-line presumption in favor of class certification, we favor an approach that takes into consideration all

factors that militate in favor of, or against, class certification.

Id. at 8334. The overarching focus remains whether trial by

class representation would further the goals of efficiency and

judicial economy. See Zinser, 253 F.3d at 1189.

Our approach is consistent with that taken by several district courts with respect to evaluating class certification in the

wage exemption context.13 These courts acknowledged the

employer’s uniform application of an exemption to employees, but focused on whether the employer exercised some

13However, as is apparent from the Wang and In re Wells Fargo decisions, no consensus has developed. See Heffelfinger v. Elec. Data Sys.,

Inc., No. CV 07-00101 MMM (Ex), 2008 U.S. Dist. LEXIS 5296, *75-92

(C.D. Cal. Jan. 7, 2008); Steven B. Katz, A Flurry of Recent Court Decisions Have Refined the Contours of California’s Wage and Hour Laws,

Los Angeles Lawyer, June 2008, at 29-30. 

VINOLE v. COUNTRYWIDE HOME LOANS 8319
level of centralized control in the form of standardized hierarchy, standardized corporate policies and procedures governing employees, uniform training programs, and other factors

susceptible to common proof. See, e.g., Sepulveda, 237

F.R.D. at 247-49 (denying class certification), aff’d in relevant part, 275 F. App’x at 672; Alba v. Papa John’s USA,

Inc., No. CV 05-7487 GAF, 2007 WL 953849, *10-13 (certifying sub-classes); Tierno v. Rite Aid Corp., No. C 05-02520

TEH, 2006 WL 2535056, *5-10 (N.D. Cal. Aug. 31, 2006)

(certifying class); see also Damassia v. Duane Reade, Inc.,

250 F.R.D. 152 (S.D.N.Y. 2008) (“Where . . . there is evidence that the duties of the job are largely defined by comprehensive corporate procedures and policies, district courts have

routinely certified classes of employees challenging their classification as exempt, despite arguments about ‘individualized’

differences in job responsibilities.”).14

[10] Here, the district court weighed the relevant considerations and properly focused on whether class certification

would enhance efficiency and further judicial economy. It

stated that “in cases where exempt status depends upon an

individualized determination of an employee’s work, and

where plaintiffs allege no standard policy governing how

employees spend their time, common issues of law and fact

may not predominate.” (Order at 5 & n.2.) The district court

further acknowledged that federal courts have permitted class

actions in exemption mis-classification cases and that in such

cases “the plaintiffs generally have alleged facts regarding (a)

company-wide policies governing how employees spend their

time, or (b) uniformity in work duties and experiences that

diminish the need for individualized inquiry.” (Id. at 4-5 &

14We cite the Tierno and Alba decisions for their respective discussions

of the presence of centralized corporate policies detailing employees’ job

duties and responsibilities that reflect the realities of the workplace. Consistent with our holding in In re Wells Fargo, we do not embrace any dispositive reliance in those decisions on the rule from Wang. See In re Wells

Fargo Home Mortgage Overtime Pay Litig., slip. op. at 8334-36. 

8320 VINOLE v. COUNTRYWIDE HOME LOANS
n.1.) It did not suggest that the lack of a common policy necessarily defeats certification as a matter of law, but that the

lack of that type of evidence in this case reduced the number

of issues susceptible to common proof. Plaintiffs seek to minimize the district court’s main concern—that although there

are common issues, including uniform classification, the

inquiry into each HLC’s exempt status would burden the

court. (Id. at 6 (“The principal factor in determining whether

common issues of fact predominate is whether the uniform

classification, right or wrong, eases the burden of the individual inquiry.”).) But this is a legitimate concern. Plaintiffs’

claims will require inquiries into how much time each individual HLC spent in or out of the office and how the HLC

performed his or her job; all of this where the HLC was

granted almost unfettered autonomy to do his or her job. This

must be considered along with the lack of issues subject to

common proof that would actually ameliorate the need to hold

several hundred mini-trials with respect to each HLC’s actual

work performance.

Plaintiffs argue that these trial burdens could be mitigated

through the use of “innovative procedural tools” such as questionnaires, statistical or sampling evidence, representative testimony, separate judicial or administrative mini-proceedings,

expert testimony, etc. They also argue that the district court

could have certified the entire class subject to later modification of the class, redefine the class, or certify subclasses.

These arguments are not persuasive in light of our determination that Plaintiffs’ claims require a fact-intensive, individual

analysis of each employee’s exempt status. Moreover, Plaintiffs have not provided authority for the proposition that the

district court abused its discretion by not certifying a class and

using these tools. It is not certain that these tools would actually assist the court, and the decision to use such tools is

VINOLE v. COUNTRYWIDE HOME LOANS 8321
within the discretion of the district court.15

[11] Here, the district court correctly selected and applied

Rule 23’s criteria, and there is no persuasive evidence in the

record that it relied on an improper factor, failed to consider

a factor entitled to substantial weight, or mulled the correct

mix of factors but made a “clear error of judgment in assaying

them.” Parra, 536 F.3d at 977-78. Accordingly, the district

court did not abuse its discretion.

V

We decline to adopt Plaintiffs’ proposed rule that a defendant may not move to deny class certification under Rule

23(b)(3) unless and until the plaintiffs have affirmatively

moved to certify a class. In addition, we conclude that the district court did not abuse its discretion by considering Countrywide’s motion where Plaintiffs had a sufficient opportunity to

present its case in favor of class certification. Finally, consistent with our decision in In re Wells Fargo Home Mortgage

Overtime Pay Litigation, issued today, we decline to adopt a

rule that a Rule 23(b)(3) class is presumptively proper where

an employer uniformly classifies a group of employees as

15Plaintiffs also argue that the district court abused its discretion by

improperly analyzing the merits of the underlying claims when it noted

that Plaintiffs’ proposed class includes HLCs who, through their own declarations, are admittedly exempt. (Order at 7 (“[I]f the Court were to certify this proposed class, it would allow putative class members who, by

their own admission do not qualify for relief, to litigate inherently meritless claims through a representative action.”).) Plaintiffs characterize the

district court as denying certification based on the taint of a few putative

class members. Plaintiffs’ argument is not persuasive. The district court

may consider the merits of the claims to the extent that it is related to the

Rule 23 analysis, see Hanon v. Dataproducts Corp., 976 F.2d 497, 509

(9th Cir. 1992); Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480

(9th Cir. 1983), and the court’s discussion of Plaintiff’s inclusion of

exempt employees in the putative class focuses on whether it militates

against use of a representative action, which is within the district court’s

purview. 

8322 VINOLE v. COUNTRYWIDE HOME LOANS
exempt. Here, the district court conducted a proper inquiry

considering the relevant factors and, accordingly, its order

denying class certification is AFFIRMED.

VINOLE v. COUNTRYWIDE HOME LOANS 8323