On March 28, 2013, NELA filed an amicus brief in support of a class of low-wage workers who are seeking rehearing before the Ninth Circuit in Wang v. Chinese Daily News. Plaintiffs, newspaper employees, brought suit under the Fair Labor Standards Act, California’s Unfair Business Practices Law, and the California Labor Code. The district court certified an opt-in collective action with respect to plaintiffs’ federal wage and hour claims and then also certified the state law claims as an opt-out class action under Fed. R. Civ. P. 23(b)(2) (and in the alternative, certified the state law claims under Rule 23(b)(3) as well). After a sixteen-day jury trial and a three-day bench trial, the district court entered judgment in favor of plaintiffs. On September 27, 2010, a panel of the Ninth Circuit affirmed the district court. The Chinese Daily News filed a petition for certiorari with the U.S. Supreme Court, which was held pending a decision in Wal-Mart Stores, Inc. v. Dukes. After Dukes was decided in 2011, the Supreme Court vacated the panel’s decision and remanded the case to the Ninth Circuit with instructions to reconsider its decision in light of Dukes. On March 4, 2013, the panel vacated the district court’s finding of commonality under Rule 23(a)(2) and remanded the issue to the district court for reconsideration in light of Dukes. Of serious concern to NELA members are two errors in the panel’s opinion: 1) suggesting that commonality requires “significant proof” of a policy that violates the law, when all that is required is to identify a common question susceptible to a common answer; and 2) insisting on individual proceedings for damages related to the panel’s disapproval of what it calls “trial by formula.” The opinion potentially undermines decades of routine practice, as approved by the Ninth Circuit, in wage and hour cases including the use of representative testimony, statistical sampling, and other aggregate methods of proof to prove damages once a class is certified.
NELA’s brief argues that state and federal law have long recognized that class actions provide an important vehicle for vulnerable, low-wage workers to enforce their rights—a vehicle that the panel’s opinion threatens to undermine by imposing an unnecessarily high bar on class certification through an improper expansion of Dukes. Case law before and after Dukes has held that commonality exists where a common question has the ability to generate common answers, and that wage and hour class actions can depend on aggregate and representative proof to establish liability and damages. We ask the Ninth Circuit to remove the sentence in Section II.A of the panel’s opinion discussing “significant proof” as well as to withdraw Section II.D, or in the alternative, to grant rehearing en banc.