UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RAEF LAWSON, individually and on No. 18-15386 behalf of all other similarly situated individuals, and in his capacity as D.C. No. Private Attorney General 3:15-cv-05128- Representative, JSC Plaintiff-Appellant,

v. OPINION GRUBHUB, INC.; GRUBHUB HOLDINGS, INC., Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Jacqueline Scott Corley, Magistrate Judge, Presiding

Argued and Submitted June 9, 2021 Seattle, Washington

Filed September 20, 2021

Before: William A. Fletcher, Paul J. Watford, and Daniel P. Collins, Circuit Judges.

Opinion by Judge W. Fletcher 2 LAWSON V. GRUBHUB

SUMMARY*

Class Certification / Employment Law

The panel affirmed the district court’s denial of class certification, vacated the judgment for Grubhub, Inc. on the minimum wage, overtime, and expense reimbursement claims, and remanded for further proceedings in a diversity action brought by a plaintiff food delivery driver for Grubhub.

Grubhub classified the plaintiff as an independent contractor rather than as an employee. The plaintiff alleged he was misclassified, alleged violations of the California Labor Code, and sought to represent a class of similarly situated delivery drivers in California.

The panel held the district court properly denied certification to plaintiff’s proposed class of delivery drivers in California. All members of plaintiff’s putative class – except plaintiff and one other – signed agreements waiving their right to participate in a class action. Plaintiff could not satisfy the requirement in Fed. R. Civ. P. 23(a) because he is neither typical of the class nor an adequate representative, and because the proceedings would be unlikely to generate common answers. Plaintiff adduced no facts in addition to those already considered by the district court that would change the analysis as to class certification.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. LAWSON V. GRUBHUB 3

In Dynamex Operations W., Inc. v. Superior Court, 416 P.3d 1, 33–40 (Cal. 2018), the California Supreme Court adopted an “ABC test” for classification of workers raising claims rooted in California wage orders. In Vazquez v. Jan- Pro Franchising International, Inc., 478 P.3d 1207 (Cal. 2021), the California Supreme Court held that the ABC test applied retroactively to claims rooted in wage orders. The panel rejected Grubhub’s contention that California Proposition 22 “abated” the application of its ABC test to plaintiff’s pending claims.

There is no dispute that plaintiff’s minimum wage and overtime claims are rooted in wage orders. Because the district court rendered its judgment before the California Supreme Court decided Dynamex, it had no occasion to apply the ABC test to plaintiff’s claims. The panel remanded to the district court to apply the ABC test in the first instance.

The California Supreme Court in Dynamex did not consider whether expense reimbursement claims under Cal. Labor Code § 2802 were subject to the ABC test. The panel remanded for the district court to decide in the first instance whether the ABC test applied to plaintiff’s expense reimbursement claim. 4 LAWSON V. GRUBHUB

COUNSEL Shannon Liss-Riordan (argued) and Thomas Fowler, Lichten & Liss Riordan P.C., Boston, Massachusetts, for Plaintiff- Appellant. Theane Evangelis (argued), Theodore J. Boutrous Jr., Dhananjay S. Manthripragada, Brandon J. Stoker, and Samuel Eckman, Gibson Dunn & Cru