NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUSAN HOWARD, an individual; et al.,

Plaintiffs

- Appellants,

v. CVS CAREMARK CORPORATION, a Delaware Corporation; et al.,

Defendants

- Appellees. No. 15

- 55465

D.C. No. 2:13

- cv
- 04748

- SJO

- PJW

MEMORANDUM *

Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding Submitted January 7, 2016 ** Pasadena, California

Before: WATFORD and FRIEDLAND, Circuit Judges and MOTZ, *** Senior District Judge.
Plaintiffs appeal the district court’s denial of their motion for class

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable J. Frederick Motz, Senior District Judge for the U.S. District Court for the District of Maryland, sitting by designation. 

# FILED

JAN 11 2016
MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

certification. We affirm.
“Parties seeking class certification bear the burden of demonstrating that
they have met e ach of the four requirements of Federal Rule of Civil Procedure
23(a) and at least one of the requirements of Rule 23(b).” Ellis v. Costco
Wholesale Corp. , 657 F.3d 970, 979

- 80 (9th Cir. 2011). These requirements are
not “mere pleading standard[s].” Wal

- Mart Stores v. Dukes , 131 S. Ct. 2541,

255 1 (2011). The district court must conduct a “rigorous analysis” to determine
whether the prerequisites of Rule 23(a) have been satisfied, which may “entail
some overlap with the merits of the plaintiff’s underlyi ng claim.” Id.

The district court did not abuse its discretion in holding that Plaintiffs failed
to establish commonality , as would be necessary for class certification under Rule
23(a)

. 1

T he district court did not abuse its discretion in holding that Plaintiffs’
proposed method of common proof was insufficient to provide a class

- wide answer
to the question of whether class members engaged in off

- the

- clock (“OTC”) work

.

1 Because we affirm the district court’s decision to deny class certification on lack

of

- commonality grounds, we need not address the district court’s alternative bases for denying certification.3

T he district court appropriately considered the “persuasiveness of the evidence”
regarding the reliability of the Rx Connect data in order to determine whether that

data were sufficient to serve as common proof that class member s actually worked

OTC hours. See Ellis , 657 F. 3d at 982 ; s ee also Marlo v. United Parcel Service,

Inc. , 639 F.3d 942, 949 (9th Cir. 2011)

. The court’s determination that the data
were unreliable is not clearly erroneous. CVS presented unrebutted evidence of
data anomalies, evidence of actual and potential sharing of Rx Connect credentials
among employees, and evidence that Rx Connect was not even fully implemented
in its current form until partway through the class period

. Indeed, Plaintiffs never

offered evidence

—

not even as to the named Plaintiffs ’ own employment

— verifying that the Rx Connect entries attrib utable to specific employees actually

reflect OTC tasks they carried out. A lthough CVS’s reliance on Rx Connect data
for certain legal compliance and customer service

- related purposes may be a

reason that the district court could have viewed the Rx Connect data as reliable
enough to support class certification, that does not mean that it was an abuse of
discretion for the district court to find the data insufficiently reliable. 2

2 Plaintiffs’ reliance on cases that allowed statistical sampling and representative testimony to overcome flaws in the proposed method of common proof is unavailing because Plaintiffs have expressly disavowed using sampling to cure any4

The district court also did not abuse its discretion in holding that P laintiffs

failed to offer sufficient evidence that a common policy existed to pressure or
require employees to work OTC. The record reveals that managers ’ approaches to
approval of overtime varied substantially across stores, as did staffing levels and

pr essures that may have led employees to work overtime. Plaintiffs failed to offer

evidence of an actual, uniform policy or practice of tacitly violating CVS’s own
official policies of prohibiting OTC work , and rather only offered a few anecdotal
examples of individuals who worked OTC in response to workplace pressures at

individual stores.

AFFIRMED.

defects in the Rx Connect data. See Jimenez v. Allstate Ins. , 765 F.3d 1161, 1168 (9th Cir. 2014) ; Adoma v. Univ

. of Phx

. , Inc. , 270 F.R.D. 543 , 550

- 51 (E.D. Cal. 2010 ).