October 18th, 2017


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Ninth Circuit Rejects En Banc Review Bid in Risinger v. SOC

9th Circ. Won’t Rethink Class Cert. For Private Iraq Guards

By Vin Gurrieri

Law360, New York (October 17, 2017, 9:15 PM EDT)

The full Ninth Circuit on Tuesday let stand its decision that thousands of armed guards at U.S. military bases in Iraq can collectively pursue claims that the private security contractor they worked for forced them to work far in excess of the hourly limits imposed by the federal government.

A three judge panel issued a one page order rejecting a bid by SOC LLC and its parent company Day & Zimmermann Inc. for an en banc review of a September decision that upheld a ruling by U.S. District Judge Miranda M. Du to certify a class of armed guards represented by plaintiff Karl Risinger.

Judge Du had held that the guards could collectively pursue claims that SOC uniformly misrepresented the amount of time they were required to work at no more than six days per week and up to 12 hours per day — a ruling the Ninth Circuit affirmed in its September decision.

But in a Sept. 15 petition for en banc review, SOC said the Ninth Circuit essentially used an approach to class certification that existed before the U.S. Supreme Court’s landmark Dukes decision in 2011 that decertified 1.5 million female Walmart employees. The decision was widely perceived as raising the bar for plaintiffs bringing classwide discrimination claims.

Plaintiffs’ counsel Scott E. Gizer of Early Sullivan Wright Gizer & McRae LLP told Law360 Tuesday that “we are pleased the Ninth Circuit correctly and unanimously denied SOC’s petition, moving us one step closer to justice for these brave plaintiffs.”

Representatives for SOC were not immediately available for comment Tuesday.

The dispute stems from a $485 million contract awarded to SOC in 2009 by the U.S. Department of Defense. Under the terms of that deal, SOC had to staff 16 military bases in Iraq and had to limit guards at 72 hours per week, according to court filings by the plaintiffs. Those parameters were communicated to potential employees by SOC recruiters, who used call scripts, and outlined in the workers’ employment contracts, according to court documents.

Risinger, a U.S. Army veteran who worked for SOC in Iraq for a period, alleged in a 2012 lawsuit that the company intentionally understaffed bases and that those manpower shortages meant that guards at the 16 bases in Iraq were forced in practical terms to work seven days a week for more than 14 hours per day, with some going months before having a day off.

The lawsuit, which sought to represent all individuals employed as armed guards by SOC in Iraq from 2006 through 2012, included allegations of promissory fraud, negligent misrepresentation, and breach of contract related to the company’s alleged misrepresentation of guards’ anticipated work schedule before they went to Iraq and breach of its employment contract after they arrived. The class could potentially include in excess of 4,000 people, according to court filings.

In appealing the class certification ruling, SOC had challenged Judge Du’s conclusion that the guards met the predominance prong for certification, which requires that questions of law or fact that are common to class members predominate over any questions that affect only individual class members.

But the Ninth Circuit in its September ruling said that Judge Du had “permissibly found” that SOC recruiters made nearly identical representations concerning guards’ anticipated work schedule in scripts used by recruiters.

Additionally, SOC employees and several recruits described a similar understanding of the work schedule limits, according to the Ninth Circuit ruling.

“Because the district court’s finding renders the misrepresentation element of Risinger’s fraud claims amenable to classwide proof, the district court did not abuse its discretion by concluding that common issues would predominate,” the panel said, adding that the lower court also correctly decided that a common question of contract interpretation predominates for Risinger’s breach of contract claim.

Day & Zimmermann is also named as a defendant.

Circuit Judges Susan P. Graber and Mary H. Murguia as well as U.S. District Judge Edward Davila sat on the panel for the Ninth Circuit.

Risinger is represented by Scott E. Gizer and Devin A. McRae of Early Sullivan Wright Gizer & McRae LLP.

SOC is represented by Theodore J. Boutrous, Theane Evangelis and Bradley J. Hamburger of Gibson Dunn & Crutcher LLP, and Kimberly J. Gost, Matthew J. Hank and Rick D. Roskelley of Littler Mendelson PC.

The case is Karl Risinger v. SOC LLC, case number 1615120 in the U.S. Court of Appeals for the Ninth Circuit.

–Editing by Kelly Duncan.