UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FRED BOWERMAN; JULIA Nos. 18-16303 BOWERMAN, on behalf of themselves 18-17275 and all others similarly situated, Plaintiffs-Appellees, D.C. No. 3:13-cv-00057- v. WHO FIELD ASSET SERVICES, INC.; FIELD ASSET SERVICES, LLC, n/k/a Xome OPINION Field Services, LLC, Defendants-Appellants.

Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding

Argued and Submitted July 20, 2021 Submission Vacated September 23, 2021 Resubmitted June 23, 2022 San Francisco, California

Filed July 5, 2022

Before: William A. Fletcher, Mark J. Bennett, and Bridget S. Bade, Circuit Judges.

Opinion by Judge Bennett 2 BOWERMAN V. FIELD ASSET SERVICES

SUMMARY *

Class Action / Attorneys’ Fees

The panel reversed the district court’s class certification order of a class of 156 individuals who personally performed work for Field Asset Services, Inc. (“FAS”), reversed the partial summary judgment in favor of the class, vacated the interim award of more than five million dollars in attorneys’ fees, and remanded for further proceedings.

FAS is in the business of pre-foreclosure property preservation for the residential mortgage industry. Plaintiff Fred Bowerman was the sole proprietor of BB Home Services, which contracted with FAS as a vendor. Bowerman alleged that FAS willfully misclassified him and members of the putative class as independent contractors, rather than employees, resulting in FAS’s failure to pay overtime compensation and to indemnify them for their business expenses.

FAS first argued that the district court abused its discretion by certifying the class, despite the predominance of individualized questions over common ones. Under Fed. R. Civ. P. 23(b)(3), a district court must find that common questions of fact or law to class members predominate over individual members’ questions before certifying a class. The panel held that the class members could not establish FAS’s liability for failing to pay overtime wages or to reimburse expenses by common evidence. The panel reversed the class certification because the class members failed to

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. BOWERMAN V. FIELD ASSET SERVICES 3 demonstrate that FAS’s liability was subject to common proof. Even if class members needed to prove only that they were misclassified as independent contractors to establish FAS’s liability by common evidence, class certification would still be improper under Rule 23(b)(3) because the class members failed to show that “damages are capable of measurement on a classwide basis.” Comcast Corp. v. Behrend, 569 U.S. 27, 34 (2013). Even under a narrow interpretation of Comcast Corp., the class members cannot establish predominance. Nor have the class members shown that damages can be determined without excessive difficulty.

FAS first argued that the district court abused its discretion by certifying the class, despite the predominance of individualized questions over common ones. Under Fed. R. Civ. P. 23(b)(3), a district court must find that common questions of fact or law to class members predominate over individual members’ questions before certifying a class. The panel held that the class members could not establish FAS’s liability for failing to pay overtime wages or to reimburse expenses by common evidence. The panel reversed the class certification because the class members failed to demonstrate that FAS’s liability w