Brinker Restaurant Corp. v. Superior Court made it clear that California employers do not have to police meal and rest periods, so it would seem they have a safe harbor so long as employees have the freedom to take meal and rest breaks, right? Not only that, Brinker cited (albeit in a footnote) the same commentator (Professor Richard Nagareda) as the U.S. Supreme Court did in Wal-Mart Stores, Inc. v. Dukes for the proposition that “what really matters to class certification is not similarity at some unspecified level of generality but, rather, dissimilarity that has the capacity to undercut the prospects for joint resolution of class members’ claims through a unified proceeding.” Given the convergence of Brinker and Dukes on the basic elements required for class certification, wouldn’t it be reasonable for California courts to follow the Supreme Court’s opinion in Comcast Corp. v. Behrend denying class certification where individual damages issues would overwhelm issues common to the class?
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