In a pair of recent opinions, the U.S. Court of Appeals for the Ninth Circuit rejected class certification of claims alleging the unlawfulness of employers’ internal policies treating their employees as exempt from overtime laws. While holding that “reverse uniform” wage exemption policies are relevant to the federal class certification analysis, trial courts may not rely on such policies to the near exclusion of other factors touching on whether common issues will predominate at trial including, for example, whether the employees were actually performing similar duties. Thus, the Ninth Circuit reversed the grant of class certification in In re Wells Fargo Home Mortgage, and affirmed the denial of certification in Vinole v. Countrywide Home Loans, Inc.

These opinions apply outside the context of labor law, since they articulate the standards for certification applicable to any type of class action suit brought in the Ninth Circuit. Significantly, the opinions remind trial courts that they may consider the merits of the claims to the extent relevant to the “predominance” inquiry, and admonish that trial courts cannot simply hope that so-called “innovative procedural tools”– such as questionnaires, statistical or sampling evidence, representative testimony, expert testimony, or separate judicial mini-proceedings—will ease the trial burdens if there is no showing at the certification stage how these tools would actually assist the court.