Metropolitan News-Enterprise


Wednesday, November 17, 2010


Page 1


Court Allows Newspaper Carriers’ Class Action to Proceed


By STEVEN M. ELLIS, Staff Writer


A class action by plaintiffs who claim that a San Diego-area newspaper tried to make an end-run around state labor law by classifying home delivery carriers as independent contractors instead of employees can go forward, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A split three-judge panel rejected a request by Lee Publications, publisher of the North County Times, for permission to appeal a class-certification order in a suit alleging the company tried to contract its way out of its obligations to its employees.

Senior Judge Stephen S. Trott and Judges William A. Fletcher voted to deny the petition in an order, but Judge Diarmuid F. O’Scannlai dissented, writing that the lower court’s ruling was “questionable.” He also said that the company’s exposure to $18 million in liability was a “death-knell situation” for “a member of the struggling newspaper industry,” meaning the case would likely evade review given the pressure to settle.

A group of current and former newspaper carriers sued Lee Publications, alleging that the company misclassified their status in their contracts, depriving them of regular and overtime wages, and leading to unpaid rest breaks and meal periods. They also said they suffered improper deductions from their paychecks and unreimbursed expenses incurred in discharging their duties, such as the costs of gasoline, rubber bands and plastic bags.

U.S. District Judge Barry T. Moskowitz of the Southern District of California granted the plaintiffs’ request to certify a class including employees who, beginning in April 2004, signed written agreements for home delivery characterizing them as independent contractors.

Moskowitz agreed that the proposed class was so numerous that joinder of all members was impracticable, that there were common questions of law or fact among class members, that the claims or defenses of the representative parties were typical of those of the class, and that the class representatives could fairly and adequately protect the interests of the class.

He declined the plaintiffs’ request to rule that there were acts or omissions that applied generally to the whole class because injunctive relief would not apply to former employees, but he determined that common issues predominated over individual issues and that a class action was superior to adjudicating each claim.

Seeking to prevent the matter from moving forward, Lee Publications sought permission to immediately appeal to the Ninth Circuit under Federal Rule of Civil Procedure 23(f). The rule gives appellate courts broad discretion to allow such interlocutory appeals of class certification decisions.

But Trott and Fletcher voted to deny the request, citing, without further comment, a per curiam opinion by the Ninth Circuit in Chamberlan v. Ford Motor Co. (1995) 402 F.3d 952.

O’Scannlain dissented that the Chamberlan court’s statement that review was “most appropriate” in a “death-knell situation” imposing pressure to settle showed that interlocutory review was appropriate “even if the certification decision is not ‘manifestly erroneous,’ so long as it is ‘questionable.’ ”

He opined that the district court’s ruling was questionable—even though he acknowledged that it was not necessarily “manifestly erroneous”—because “deciding whether each distributor is an employee requires fact-intensive inquiries that are specific to each member of the class.”

The case is Dalton v. Lee Publications, Inc., 10-80159.


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