FILED

NOT FOR PUBLICATION

AUG 13 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

YADIR A. ONTIVEROS, as an No. 17-56644 individual, and on behalf of all others similarly situated, D.C. No. 2:15-cv-07118-DMG-RAO Plaintiff-Appellee,

v. MEMORANDUM*

SAFELITE FULFILLMENT, INC., a Delaware corporation,

Defendant-Appellant,

and

SAFELITE GROUP, INC., et al.,

Defendants.

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding

Argued and Submitted August 8, 2018 Pasadena, California

Before: GRABER, WARDLAW, and CHRISTEN, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. In this class action, Plaintiff Yadir A. Ontiveros alleges that Defendant

Safelite Fulfillment, Inc. violated California’s wage and hour laws. The parties

agreed to have the district court decide the merits of Plaintiff’s claims first, on

summary judgment, and then to litigate class certification. After the district court

resolved several key issues in Plaintiff’s favor, Defendant mailed to putative class

members packets containing settlement agreements and encouraging putative class

members to settle. The district court ruled that the communications were

misleading, invalidated the releases contained in the settlement agreements, and

ordered Defendant to send a "curative notice" to the individuals who had received

the packets. Defendant appeals. On de novo review, Bingue v. Prunchak, 512

F.3d 1169, 1172 (9th Cir. 2008), we dismiss the appeal for lack of jurisdiction.

In the absence of a final judgment, we lack jurisdiction to review the orders

in question. 28 U.S.C. § 1291; Dannenberg v. Software Toolworks Inc., 16 F.3d

1073, 1074 (9th Cir. 1994). No exception to the final judgment rule applies here

because Defendant has not identified a "right at stake [that] will be destroyed if not

vindicated before trial." McElmurry v. U.S. Bank N.A., 495 F.3d 1136, 1140 (9th

Cir. 2007) (internal quotation marks and brackets omitted).

Defendant’s interests in avoiding the uncertainty and costs of litigation,

alone, are not so great as to justify immediate review. Assuming that the

2 settlement agreements at issue are valid, only some putative class members settled

their claims—meaning that Defendant still must litigate this case. If the result is

adverse to Defendant, it remains free to argue, in a later appeal following final

judgment, that the district court erred in invalidating the releases and that those

releases free Defendant from having to compensate the settling class members

further.

As for the argument that the orders infringe on Defendant’s First

Amendment rights, Defendant has not identified a risk of harm so great as to

justify across-the-board appellate review of all orders requiring curative notice.

See Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 108 (2009) (explaining that a

party seeking review before a final judgment must demonstrate that "deferring

review until final judgment so imperils the interest as to justify the cost of allowing

immediate appeal of the entire class of relevant orders").

DISMISSED.

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