others similarly situated v. LEE PUBLICATIONS, INC., a Delaware Corporation, d.b.a North County Times

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 YVONNE DALTON, individually and
on behalf of all others similarly
situated; DIAN GARZA, individually
and on behalf of all others
similarly situated; ARMINDA
GUZMAN, individually and on
behalf of all others similarly
situated; SHARON HUGHEN,
individually and on behalf of all No. 10-80159
others similarly situated; ETELVINA
D.C. No. SALGADO, individually and on 3:08-cv-01072-BTM behalf of all others similarly Southern District of  situated; HECTOR MIGUEL SALGADO, California, individually and on behalf of all San Diego others similarly situated; REFUGIO
SANCHEZ, individually and on ORDER
behalf of all others similarly
situated,
Plaintiffs-Respondents,
v.
LEE PUBLICATIONS, INC., a Delaware
Corporation, d.b.a North County
Times; DOES 1 THROUGH 50,
Defendants-Petitioners. 
Submitted October 12, 2010
Filed November 16, 2010
Before: Diarmuid F. O’Scannlain, Stephen S. Trott, and
William A. Fletcher, Circuit Judges.
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Order;
Dissent by Judge O’Scannlain
ORDER
The court, in its discretion, denies the petition for permis-
sion to appeal the district court’s July 27, 2010 order granting
class action certification. See Fed. R. Civ. P. 23(f); Chamber-
lan v. Ford Motor Co., 402 F.3d 952 (9th Cir. 2005) (per
curiam).
O’SCANNLAIN, Circuit Judge, dissenting:
Although I do not necessarily think that the district court’s
judgment is manifestly erroneous, I must respectfully dissent
from our order denying permission to appeal. I am persuaded
that its decision is at least debatable and is likely to evade
review because of the intense settlement pressure posed by
class certification.
Under Federal Rule of Civil Procedure 23(f), this Court has
broad discretion to allow interlocutory appeals of class certifi-
cation decisions. Rule 23(f) states that “a court of appeals may
permit an appeal from an order granting or denying class-
action certification,” without providing any criteria to limit
this discretion. Fed. R. Civ. P. 23(f) (emphasis added); see
also id. (advisory note) (noting that Rule 23(f) differs from
the interlocutory appeal requirement of 28 U.S.C. § 1292(b)
in that 23(f) omitted “the potentially limiting requirements of
§ 1292(b)”). According to the advisory committee’s note,
Rule 23(f)’s drafters intended to give the courts of appeal “un-
fettered discretion . . . akin to the discretion exercised by the
Supreme Court in acting on a petition for certiorari.” Fed. R.
Civ. P. 23(f) (advisory note).
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I agree that Chamberlan v. Ford Motor Co., 402 F.3d 952
(9th Cir. 2005), referred to in the order, controls the disposi-
tion of this petition. But Chamberlan was “not intended to cir-
cumscribe the broad discretion granted the courts of appeal by
Rule 23(f).” Id. at 960; see also id. (“We underscore that the
decision to permit interlocutory appeal is, at bottom, a discre-
tionary one.”). Instead, Chamberlan merely noted that:
Review of class certification decisions will be most
appropriate when: (1) there is a death-knell situation
for either the plaintiff or defendant that is indepen-
dent of the merits of the underlying claims, coupled
with a class certification decision by the district
court that is questionable; (2) the certification deci-
sion presents an unsettled and fundamental issue of
law relating to class actions, important both to the
specific litigation and generally, that is likely to
evade end-of-the-case review; or (3) the district
court’s class certification decision is manifestly erro-
neous.
Id. at 959 (emphasis added).
We should pay particular attention to the first Chamberlan
circumstance because it best embodies Rule 23(f)’s purpose
of allowing interlocutory review where the unique settlement
pressures of class action suits would otherwise foreclose any
appellate review whatsoever. See id. (noting that the concerns
which “justify expansion of present opportunities to appeal,”
are (1) that “[a]n order denying certification may confront the
plaintiff with a situation in which the only sure path to appel-
late review is by proceeding to final judgment” on a “claim
that, standing alone, is far smaller than the costs of litigation,”
and (2) that “[a]n order granting certification . . . may force
a defendant to settle rather than incur the costs of defending
a class action and run the risk of potentially ruinous liabili-
ty”); cf. Castano v. Am. Tobacco Co., 84 F.3d 734, 746 (5th
Cir. 1996) (“[C]lass certification creates insurmountable pres-
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sure on defendants to settle, whereas individual trials would
not. The risk of facing an all-or-nothing verdict presents too
high a risk, even when the probability of an adverse judgment
is low. These settlements have been referred to as judicial
blackmail.”).
Where these settlement pressures exist, one party faces a
“death-knell situation.” Chamberlan, 402 F.3d at 960.
Accordingly, an interlocutory appeal is appropriate even if the
certification decision is not “manifestly erroneous,” so long as
it is “questionable.” Id. Moreover, Rule 23(f)’s text and pur-
pose counsel a broad reading of “death-knell situation.” Id.
Petitioner Lee Publications is a newspaper publishing com-
pany. It has been sued by a class consisting of its approxi-
mately 800 distributors. The distributors allege that they are
Petitioner’s employees, as opposed to independent contrac-
tors, and are therefore entitled to certain benefits under the
California labor laws. The district court certified the class.
That determination is questionable because deciding whether
each distributor is an employee requires fact-intensive inqui-
ries that are specific to each member of the class.
The key distinction between employees and independent
contractors, under California law and elsewhere, is whether
the employee exercises “the right to control the manner and
means of accomplishing the result desired.” Tieberg v. Unem-
ployment Ins., 471 P.2d 975, 977 (Cal. 1970). Here, the con-
tract between Petitioner and the class members is clearly
written with the intention of establishing an independent con-
tractor relationship. See District Court Order (Dkt. No. 76), at
11 (noting that the contract specified, inter alia, that class
members (1) were independent contractors, (2) were “free to
ignore all suggestions offered by [Petitioner],” and (3) must
supply their own vehicles and equipment)). Thus, Respon-
dents cannot establish that they are employees by reference to
their contract. Instead, if Respondents are to prevail, they will
have to show that Petitioner exercised de facto control over
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the means by which they delivered newspapers. But, this will
require an examination of the working relationship between
Petitioner and each member of the class, raising serious ques-
tions as to whether class certification is appropriate. See Fed.
R. Civ. Pro. 23(b)(3).
Moreover, Petitioner faces a “death-knell situation”
because certification will expose it, a member of the strug-
gling newspaper industry, to $18 million in liability, thereby
exerting intense settlement pressure. See Pet.’s Br. at 16-17.
Because Petitioner faces a “death-knell situation” and the dis-
trict court order is “questionable,” I would grant permission
to appeal. Chamberlan, 402 F.3d at 959.
I respectfully dissent.
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