NOT FOR PUBLICATION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, CLERK

U.S. COURT OF APPEALS
2

certification. We affirm.

“Parties seeking class certification bear the burden of demonstrating that 

they have met each 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, 

2551 (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 underlying 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

 

The 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 lackof-commonality grounds, we need not address the district court’s alternative bases

for denying certification.
3

The 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 members actually worked 

OTC hours. See Ellis, 657 F. 3d at 982; see 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 attributable to specific employees actually 

reflect OTC tasks they carried out. Although 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 any 
4

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

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 

pressures 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).