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, v. D.C. No. 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 8302 VINOLE v. COUNTRYWIDE HOME LOANS
COUNSEL
Michael D. Singer, Cohelan, Khoury & Singer, on behalf of appellants Raymond Vinole and Ken Yoder. VINOLE v. COUNTRYWIDE HOME LOANS 8303 Thomas R. Kaufman, Seyfarth Shaw LLP, on behalf of appel- lee 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, Coun- trywide 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 cer- tify and prior to the pretrial and discovery cutoffs, and (2) denying class certification based on its reasoning that individ- ual 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 certifi- cation before Plaintiffs filed their motion to certify, and Plain- tiffs had ample time to prepare and present their certification argument. Second, the district court did not abuse its discre- tion by denying certification under Rule 23(b)(3) because the record supports its conclusion that individual issues predomi- nate over common issues. 8304 VINOLE v. COUNTRYWIDE HOME LOANS 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 Stan- dards Act (“FLSA”), 29 U.S.C. § 213(a)(1). I.W.C. Wage Order 4-2001, § 2(M) defines an outside salesperson as a per- son “who customarily and regularly works more than half the 1 Countrywide also employs Internal Home Loan Consultants, who per- form 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. VINOLE v. COUNTRYWIDE HOME LOANS 8305 working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or con- tracts 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 Coun- trywide on the theory that Countrywide impermissibly classi- fied 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 simi- larly designated titles, who have worked for Defen- dant 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. 2 Plaintiffs 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 busi- ness practices, conversion, and declaratory relief. They seek back pay with interest, declaratory relief, injunctive relief, punitive damages, penalties, and attorneys’ fees. 8306 VINOLE v. COUNTRYWIDE HOME LOANS On August 7, 2007, before the discovery cutoff and pretrial motion cutoff, Countrywide filed a motion to deny certifica- tion. 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 proce- durally improper because Plaintiffs had yet to file a motion for class certification; and (2) class certification was substan- tively warranted based on the evidence they presented, which included nine declarations from HLCs that served as a “pre- view” of the motion for class certification that Plaintiffs’ intended to file.
On November 15, 2007, the district court granted Country- wide’s motion. First, the district court held that it was permit- ted to decide the question of certification on Countrywide’s motion under Rule 23 notwithstanding the fact that Country- wide had filed its motion before the pretrial motion and dis- covery 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 success- fully petitioned this court for permission to file an interlocu- tory appeal pursuant to Federal Rule of Civil Procedure 23(f).3 3 We 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. VINOLE v. COUNTRYWIDE HOME LOANS 8307 II
We review a district court’s order denying class certifica- tion 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 enti- tled to substantial weight, or mulls the correct mix of factors but makes a clear error of judgment in assay- ing 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 proce- durally 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 8308 VINOLE v. COUNTRYWIDE HOME LOANS put the class certification issue before the district court or pro- hibits a defendant from seeking early resolution of the class certification question. The only requirement is that the certifi- cation question be resolved “[a]t an early practicable time.” The plain language of Rule 23(c)(1)(A) alone defeats Plain- tiffs’ 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 dis- trict court here charted “troubling new territory” by entertain- ing 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 Teach- ers Union, Local 1600 v. Byrd, the Seventh Circuit also con- cluded 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 defen- dant’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 dis- trict 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’ VINOLE v. COUNTRYWIDE HOME LOANS 8309 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 dis- covery); 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 defen- dants to purported class actions may only raise issues regard- ing 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 pur- ported “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 Beau- 4 Several secondary sources also recognize that either plaintiffs or defen- dants 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] (Mat- thew Bender 3d ed. 2009) (“The defendant need not wait for the plaintiff to act, however. The defendant may move for an order denying class certi- fication.”); 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).”). 8310 VINOLE v. COUNTRYWIDE HOME LOANS 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 con- sidering 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, dis- covery had not yet commenced, and no motion to certify a class had been filed. See 505 F. Supp. 2d at 614-16. The dis- trict 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 prohibi- tion 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 certifi- cation. 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 ques- 5 In our case, during the hearing on Countrywide’s motion to deny certi- fication, the district court specifically recognized the Countrywide’s motion was brought pursuant to Rule 23, not Rule 12(b). VINOLE v. COUNTRYWIDE HOME LOANS 8311 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 certifi- cation was not yet before the court and discovery was ongo- ing. 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 pro- hibition 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 cer- tify a class. Accordingly, the district court did not err by con- sidering Countrywide’s motion.
B
Having determined that Countrywide filed its motion to deny class certification at a permissible point in the proceed- ings, we next consider whether the district court abused its discretion in granting Countrywide’s motion before the pre- trial 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 con- sider Countrywide’s motion when it did. However, the opera- 8312 VINOLE v. COUNTRYWIDE HOME LOANS 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 desig- nated period of time to address the issue of class certifica- tion.” (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 expi- ration of a pretrial motion deadline. Plaintiffs’ argument is essentially a re-packaged version of their argument that plain- tiffs are entitled to complete control over the timing of a dis- trict 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 certi- fication process, and “[w]hether or not discovery will be per- mitted . . . 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 advis- able practice for a District Court to follow is to afford the liti- gants 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 VINOLE v. COUNTRYWIDE HOME LOANS 8313 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 avail- able 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. Tell- ingly, 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? 6 The 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). 8314 VINOLE v. COUNTRYWIDE HOME LOANS [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 pre- view 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 proce- durally 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 dis- covery 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, Plain- tiffs’ 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 argu- ment we have rejected—to avoid having the district court decide the motion on the merits. Nothing in the record sug- gests that Plaintiffs could not have more diligently prepared their certification argument in the months between the date VINOLE v. COUNTRYWIDE HOME LOANS 8315 Countrywide filed its motion and the date Plaintiffs’ opposi- tion 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 dis- covery 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. 7 Plaintiffs 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 continu- ance. 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. 8316 VINOLE v. COUNTRYWIDE HOME LOANS 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 indi- vidual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the con- troversy.”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 suf- ficiently 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 out- side salesperson exemption precluded certification because that analysis would require an individualized inquiry into the 8 On appeal, the parties do not dispute whether Plaintiffs have satisfied the requirements of Rule 23(a), which is a prerequisite to class certifica- tion. See Parra, 536 F.3d at 978. 9 The party seeking certification bears the burden of demonstrating that he has met the requirements of Rule 23(b). Zinser, 253 F.3d at 1186. VINOLE v. COUNTRYWIDE HOME LOANS 8317 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 over- time and other wages applies to an employee “who customar- ily 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 evalu- ating 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 per- formed by the employee to determine how much of that work is exempt. Id. Second, the court determines whether the 10 The Tenth Circuit summarized the rationale underlying these exemp- tions as follows: The reasons for excluding an outside salesman are fairly appar- ent. 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 com- missions as extra compensation. He works away from his employer’s place of business, is not subject to the personal super- vision 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 out- side salesman. Jewel Tea Co. v. Williams, 118 F.2d 202, 207-08 (10th Cir. 1941). 8318 VINOLE v. COUNTRYWIDE HOME LOANS employee’s work was consistent with the employer’s expecta- tion 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.”).
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. 11 The 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 omit- ted). 12 The 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). VINOLE v. COUNTRYWIDE HOME LOANS 8319 06cv1330, 2008 WL 410691, *7-10 (S.D. Cal. Feb. 12, 2008) (relying on Wang and certifying class of former FedEx man- agers 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 certi- fication, 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 dis- trict 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 employ- ees, but focused on whether the employer exercised some 13 However, as is apparent from the Wang and In re Wells Fargo deci- sions, 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 Deci- sions Have Refined the Contours of California’s Wage and Hour Laws, Los Angeles Lawyer, June 2008, at 29-30. 8320 VINOLE v. COUNTRYWIDE HOME LOANS level of centralized control in the form of standardized hierar- chy, standardized corporate policies and procedures govern- ing 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 rele- vant part, 275 F. App’x at 672; Alba v. Papa John’s USA, Inc., No. CV 05-7487 GAF, 2007 WL 953849, *10-13 (certi- fying 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 evi- dence that the duties of the job are largely defined by compre- hensive corporate procedures and policies, district courts have routinely certified classes of employees challenging their clas- sification as exempt, despite arguments about ‘individualized’ differences in job responsibilities.”).14
[10] Here, the district court weighed the relevant consider- ations 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 & 14 We 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. Con- sistent with our holding in In re Wells Fargo, we do not embrace any dis- positive reliance in those decisions on the rule from Wang. See In re Wells Fargo Home Mortgage Overtime Pay Litig., slip. op. at 8334-36. VINOLE v. COUNTRYWIDE HOME LOANS 8321 n.1.) It did not suggest that the lack of a common policy nec- essarily 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 mini- mize 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 individ- ual inquiry.”).) But this is a legitimate concern. Plaintiffs’ claims will require inquiries into how much time each indi- vidual 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 ques- tionnaires, statistical or sampling evidence, representative tes- timony, 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 modifica- tion of the class, redefine the class, or certify subclasses. These arguments are not persuasive in light of our determina- tion that Plaintiffs’ claims require a fact-intensive, individual analysis of each employee’s exempt status. Moreover, Plain- tiffs 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 actu- ally assist the court, and the decision to use such tools is 8322 VINOLE v. COUNTRYWIDE HOME LOANS 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 defen- dant 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 dis- trict court did not abuse its discretion by considering Country- wide’s motion where Plaintiffs had a sufficient opportunity to present its case in favor of class certification. Finally, consis- tent 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 15 Plaintiffs 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 dec- larations, are admittedly exempt. (Order at 7 (“[I]f the Court were to cer- tify this proposed class, it would allow putative class members who, by their own admission do not qualify for relief, to litigate inherently merit- less 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. VINOLE v. COUNTRYWIDE HOME LOANS 8323 exempt. Here, the district court conducted a proper inquiry considering the relevant factors and, accordingly, its order denying class certification is AFFIRMED.