Migis v. Autozone, Inc., A150540

• Decision Date: 14 December 2016
• Docket Number: A150540
• Citation: 282 Or.App. 774,387 P.3d 381
• Parties: Michael Migis, individually, and on behalf of all others similarly situated, Plaintiff-Respondent Cross-Appellant, v. Autozone, Inc., a Nevada corporation, Defendant-Appellant Cross-Respondent.
• Court: Oregon Court of Appeals

282 Or.App. 774
387 P.3d 381

Michael Migis, individually, and on behalf of all others similarly situated, Plaintiff-Respondent Cross-Appellant,
v.
Autozone, Inc., a Nevada corporation, Defendant-Appellant Cross-Respondent.

A150540

Court of Appeals of Oregon.

Argued and submitted January 6, 2015; on respondent's motion for reconsideration filed May 24, 2012, and appellant's response to motion to reconsider order filed June 7, 2012.
December 14, 2016

Roy Pulvers, Portland, argued the cause for appellant-cross-respondent. With him on the opening brief was Hinshaw & Culbertson LLP. With him on the combined reply and answering brief on cross-appeal and the reply brief on cross-assignment of error was Holland & Knight LLP.

A E Bud Bailey argued the cause for respondent-cross-appellant. On the briefs were J. Dana Pinney and Bailey, Pinney & Associates, LLC.

Mark A. Friel and Stoll Stoll Berne Lokting & Shlachter PC filed the brief amicus curiae for Oregon Trial Lawyers Association.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

DEVORE, J.

282 Or.App. 776

Plaintiff Migis filed a class action against his former employer, defendant AutoZone, Inc., on behalf of himself and current and former employees of defendant. He alleged several wage-violation claims, seeking damages and statutory penalties. After a jury trial and bench trial, defendant appeals a general judgment that awarded plaintiff and other class members $110,030 in damages, $2,439,266 in statutory penalties, and $1,144,058 in prejudgment interest on the damages and statutory penalties. Defendant also appeals a supplemental judgment that, in addition to other things, awarded $4,249,665.49 in attorney fees to plaintiff. As relevant on appeal, plaintiff's wage-violation claims are (1) that current and former employees were not paid for the time they worked off the clock (the off-the-clock claims), and (2) that defendant failed to timely provide final wages upon termination of employment (the final-wages claim). Plaintiff cross-appeals, challenging the trial court's rulings concerning a meal-break claim and the court's failure to award additional civil penalties.

Defendant raises nine assignments of error. In its first assignment, defendant contends that the trial court erred when it certified the classes and denied defendant's two motions to decertify the classes. As we explain in this opinion, we reject defendant's challenge to class certification as to the off-the-clock claims on the merits and its certification challenge to the final-wages claims because its arguments on appeal were not preserved.

In defendant's third and fourth assignments of error, defendant challenges civil penalties that the trial court imposed under ORS 652.150 and ORS 653.055. Those assignments contend that, as to the off-the-clock claims, the court erred in awarding civil penalties in an amount of $2,348,791 without a jury finding that defendant willfully failed to pay unpaid wages. For the reasons we explain below, we agree with defendant that a finding of willfulness was required for the court to impose civil penalties for the off-the-clock claims. Accordingly, we reverse and remand the general judgment on that basis.

282 Or.App. 777

Defendant's second, fifth, sixth, eighth, and ninth assignments of error also concern the civil penalties imposed.¹ Defendant's second assignment asserts that the trial court was not authorized to impose $862,894 in civil penalties, prejudgment interest, and attorney fees after tolling the statutory limitations period for civil penalties under ORCP 32 N by way of another action filed against defendant (the Joarnt action).² That assignment fails to comply with ORAP 5.45, and we decline to review it. As to defendant's fifth

387 P.3d 386

assignment, challenging prejudgment interest on the penalties, we reject it without written discussion. Defendant's eighth and ninth assignments claim as error the trial court's denial on procedural grounds of defendant's prejudgment and postjudgment motions challenging the penalties imposed. Our reversal of the penalties as to the off-the-clock claims also obviates the need to address much of what was challenged in those motions, but to the extent that the motions raised arguments regarding the final-wages claim, namely additional penalties tolled due to the filing of the Joarnt action, we conclude that the trial court's denials of the motions on procedural grounds were not made in error.

In its seventh assignment of error, defendant appeals the supplemental judgment, disputing the statutory bases for plaintiff's entitlement to the award of attorney fees and contending that the trial court exceeded its discretion by applying a "fee multiplier enhancement" to the attorney fee. Our reversal of the general judgment necessitates the reversal and remand of the supplemental judgment, ORS 20.220(3), but we nevertheless address some of the issues

282 Or.App. 778

defendant raises in its seventh assignment because those issues are likely to arise on remand.³

Plaintiff's cross-appeal raises several assignments of error—all of which we reject without written discussion. That disposition obviates our need to address defendant's cross-assignment of error on cross-appeal. Accordingly, we affirm on cross-appeal.

I. BACKGROUND

To provide general context for the assignments of error, we outline the procedural history of this case. We provide more detail later in our discussion of each individual assignment. In November 2007, plaintiff filed this action on behalf of himself and current and former employees of defendant, in which he alleged wage and hour violations. As relevant on appeal, plaintiff alleged, among other claims, that employees were required to work off the clock (the off-the-clock claims) and that defendant would not timely pay final wages as required by ORS 652.140 (the final-wages claim). Plaintiff sought class certification, and, in March 2009, the court certified the off-the-clock class and the final-wages class.

The claims proceeded to trial in January 2010. In addition to his final-wages claim, plaintiff sought to prove that, as to his off-the-clock claims, wages were owed for (1) the time employees spent between disarming the alarm at a store's entrance and clocking in, (2) the time spent between clocking out and setting the alarm, and (3) the time spent traveling between defendant's stores to deliver parts or work another shift. The parties disputed whether the jury was required to find that defendant willfully violated the wage and hour laws as to the off-the-clock claims in order to impose civil penalties under ORS 652.140, ORS 652.150, and ORS 653.055. The trial court sided with plaintiff, deciding that a finding of willfulness applied only to the final-wages

282 Or.App. 779

claim and reserved the imposition of civil penalties as to the off-the-clock claims as a matter to be determined by the court. The jury returned a verdict against defendant as to the off-the-clock claims and the final-wages claim, awarding $110,030 in damages. In April 2010, the court held a bench trial in which it determined civil penalties in the amount of $2,439,266. In September 2011, defendant filed two motions: the first to reduce the civil penalties, arguing that the penalties exceeded what was permissible under federal due process, and the second, an alternative ORCP 64 motion for a new trial. The court denied those motions on substantive and procedural grounds. After the court entered a general judgment in November 2011, defendant renewed the arguments it had made before judgment by means of another ORCP 64 motion for a new trial along with an ORCP 63 motion for a judgment notwithstanding the verdict. Those motions were denied in February 2012.

387 P.3d 387

In June 2012, plaintiff filed a supplemental fee petition under ORCP 68. After discovery and a hearing, the trial court awarded attorney fees. The court determined that plaintiff was entitled under ORS 652.200 and ORS 653.055 to more than $2.2 million in fees. The trial court found, in part, that, because of the "risks involved" and the "excellent results" obtained by plaintiff's counsel, a "multiplier enhancement" to double the lodestar fee was appropriate, resulting in a fee award of more than $4.4 million.

II. DISCUSSION

A. Certification

We begin with defendant's first assignment of error in which it contends that the trial court erred by certifying, and then declining to decertify, the off-the-clock class and the final-wages class. The assignment concerns three rulings: (1) the pretrial order granting certification; (2) the order denying defendant's motion to decertify the class, which was made at the end of the trial; and (3) the order denying defendant's renewed motion to decertify the class, which was made well after the trial. Defendant advances three arguments as to why the court erred: (1) class certification lacked adequate proof of commonality, ORCP 32 A(2); (2) a class action was not superior to other methods

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