* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
ROYA KOIKE and ADAM ODNERT, on behalf of themselves and all others generally situated, and on behalf of the general public, Plaintiffs, and SHAUN NGUYEN, Petitioner-intervenor - Appellant,

v. STARBUCKS CORPORATION, Defendant - Appellee. No. 09-15541 D.C. No. 3:06-cv-03215-VRW

MEMORANDUM *

Appeal from the United States District Court for the Northern District of California Vaughn R. Walker, Chief District Judge, Presiding Argued and Submitted April 13, 2010 San Francisco, California 

# FILED

MAY 05 2010 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 Before: KLEINFELD, TASHIMA and THOMAS, Circuit Judges. Shaun Nguyen, an intervenor, appeals th e district court’s denial of a motion for class certification in a diversity action brought by former Starbucks employees Roya Koike and Adam Obnert. We ha ve jurisdiction pursuant to 18 U.S.C. § 1291, and we affirm. I We have appellate jurisdic tion to entertain this appeal. Starbucks argues that we lack jurisdiction to hear this appeal because no final judgment has been entered as to Nguyen, who intervened only afte r judgment was entered against plaintiffs Koike and Obnert. However, both this c ourt and the Supreme Court have held that a putative class member can intervene for the limited purpose of appealing a district court’s denial of class certification subsequent to the entry of final judgment as to the named plaintiff’s claim, thus implicitly concluding that circuit courts have jurisdiction to hear such appeals. See United Airlines, Inc. v. McDonald , 432 U.S. 385, 393-96 (1977); see also Alaska v. Suburban Propane Gas Corp. , 123 F.3d 1317, 1320-21 (9th Cir. 1997). II The district court’s denial of the motion for class certification was proper. Even giving full credence to the evidence presented by Koike, this evidence tends3 to show only that business pressures exist which might lead assistant managers to work off-the-clock. The district court did not abuse its discretion in finding that individualized factual determinations ar e required to determine whether class members did in fact engage in off-the -clock work and whether Starbucks had actual or constructive knowledge of off-the-clock work performed. Nguyen argues that the district cour t abused its discretion by improperly assessing the merits of Koike’s claims. However, a “district court may consider the merits of the claims to the extent th at it is related to the Rule 23 analysis.” Vinole v. Countrywide Home Loans, Inc. , 571 F.3d 935, 947 n. 15 (9th Cir. 2009). The district court’s analysis clearly rela ted to the issue of predominance under Rule 23(b)(3), and was not an improper assessment of the merits. Nguyen argues that the evidence presented by Starbucks does not undermine Koike’s ability to prove her claims with common evidence. First, Nguyen argues that the testimony of Starbucks’ statistical expert is consistent with Koike’s assertion that class members regularly n eeded to work more than forty hours per week to complete assigned tasks. This c ontention ignores the fact that the district court assumed as true that assistant managers’ job tasks require work in excess of forty hours per week, yet nonetheless prope rly determined that individual issues4 predominate. Thus, the fact that the expert’s testimony can be reconciled with Koike’s assertion does not undermine th e district court’s conclusion. Nguyen also argues that the expert’s testimony regarding variations in the amount of overtime worked from pay period to pay period is irrelevant to the issue of class certification because variation in damages among class members should not preclude certification. However, the distri ct court did not rest its denial of class certification on a variation in damages. It considered the expert’s testimony regarding variation in overtime workedonly in determining that a number of Starbucks stores had excess non-overtime capacity, thus allowing those assistant managers with more than forty hours of workper week to delegate work to others. This conclusion speaks to variations in Starbucks’ liability as opposed to merely at the damages stage. Nguyen argues that the declarations of current assistant managers submitted by Starbucks have no evidentiary value because the declaran ts are not class members and because courts are reluctant to give significant weight to declarations that constitute a “litigation-driven” selec tive sampling of employees. However, the district court relied on these declarations only as evidence that (1) Starbucks trained its assistant managers regarding its policy against off-the-clock work, and5 (2) assistant managers were paid for so me overtime work during the class period. Neither proposition is in dispute. Finally, Nguyen argues that the district court abused its discretion in declining to assign an adverse inference to Starbucks’ failure to submit the results of its class member survey. We disagr ee. The adverse inference which Koike sought would not have undermined the district court’s decision. Thus, the district court did not abuse its discretion in dec lining to apply any adverse inference.

AFFIRMED.