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. On March 4, 2013, the panel vacated the district court’s finding of commonality under Rule 23(a)(2) and remanded to the district court for reconsideration in light of Dukes. Of serious concern to NELA members are two errors in the panel 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 its 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 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 opinion discussing “significant proof” as well as to withdraw Section II.D or in the alternative to grant rehearing en banc.
Court: Ninth Circuit (petition for rehearing en banc)
Brief writers: David Borgen, Todd Jackson, Joseph E. Jaramillo and Catha Worthman