                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAR 3 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

 OSMIN MELGAR, individually and on               No.    16-15373
 behalf of all others similarly situated,
                                                 D.C. No. 3:13-cv-03769-EMC
                  Plaintiff-Appellee,

   v.                                            MEMORANDUM *

 CSK AUTO, INC., an Arizona Corporation,

                  Defendant-Appellant.

                    Appeal from the United States District Court
                      for the Northern District of California
                    Edward M. Chen, District Judge, Presiding

                     Argued and Submitted February 15, 2017
                            San Francisco, California

Before: CANBY, SILER,** and HURWITZ, Circuit Judges.

        On interlocutory appeal, Defendant CSK Auto, Inc., now known as O’Reilly

Auto Enterprises, LLC (“O’Reilly”), challenges the district court’s order certifying

a class of O’Reilly’s retail store managers and assistant managers in California.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
            The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
We affirm.

      Without deciding the validity of the district court’s interpretation of the

liability standard under California Labor Code § 2802, we hold that the district

court did not abuse its discretion by relying on its interpretation in finding the

commonality requirement satisfied. See Fed. R. Civ. P. 23(a). The district court

properly examined whether the lawfulness of O’Reilly’s reimbursement policy

would serve to “generate common answers apt to drive the resolution of the

litigation.” See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (internal

quotation marks and emphasis omitted).

      Nor did the district court abuse its discretion by certifying a fail-safe class.

A fail-safe class is commonly defined as limiting membership to plaintiffs

described by their theory of liability in the class definition such that the definition

presupposes success on the merits. See William B. Rubenstein, Newberg on Class

Actions § 3:6 (5th ed. 2016). Here, the class definition did not presuppose its

success, because the liability standard applied by the district court required class

members to prove more facts to establish liability than are referenced in the class

definition. We further note, though we do not hold, that our circuit’s caselaw

appears to disapprove of the premise that a class can be fail-safe. See Vizcaino v.

United States District Court, 173 F.3d 713, 721–22 (9th Cir. 1999) (rejecting a

claim that a class definition defining the plaintiffs as common law employees


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assumed their contested legal status and was therefore “circular”).

      The district court did not abuse its discretion by certifying a class with a

self-certification process for absent class members. Our recent decision in Briseno

v. ConAgra Foods, Inc. controls, foreclosing O’Reilly’s argument that a self-

identifying class is not “administratively feasible” at the certification stage. 844

F.3d 1121 (9th Cir. 2017). Briseno rejects O’Reilly’s due process concern with

respect to this case, specifically that claimants “will eventually offer only a ‘self-

serving affidavit’ as proof of class membership.” See id. at 1132.

      AFFIRMED.




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