A divided Ninth Circuit memorandum disposition in Ibarra v. Wells Fargo Bank today affirms a summary judgment wage-and-hour class action liability ruling for the plaintiffs, but it puts on hold a decision on the amount of damages pending a Supreme Court decision. The opinion in that pending case, Ferra v. Loews Hollywood Hotel, LLC, in which the court granted review three months ago, will determine whether the plaintiff class in the federal case receives $97,284,817.91 or $24,472,114.36.
The Ninth Circuit says it cannot determine which is the appropriate damage amount without deciding “the very issue that the California Supreme Court is positioned to resolve in Ferra” and it concludes “the better course of action is not to decide this important question of state law ourselves, but to leave that question in the hands of
the California Supreme Court.”
The Supreme Court limited the issue in Ferra to: “Did the Legislature intend the term ‘regular rate of compensation’ in Labor Code section 226.7, which requires employers to pay a wage premium if they fail to provide a legally compliant meal period or rest break, to have the same meaning and require the same calculations as the term ‘regular rate of pay’ under Labor Code section 510(a), which requires employers to pay a wage premium for each overtime hour?”
The Ninth Circuit plaintiff asked the Supreme Court to depublish the Court of Appeal’s pro-defendant opinion in Ferra. She might have also supported the Ferra plaintiff’s petition for review, but the Supreme Court does not show on its docket letters in support of petitions for review.
[Updated: Horvitz & Levy filed an amicus curiae brief in the Ninth Circuit in the Ibarra case.]
[July 16, 2021 update: Did the Supreme Court answer a $72,000,000+ question yesterday?]