Wang v. Chinese Daily News: Ninth Circuit Directs District Court to Conduct “Rigorous” Certification Analysis Under Dukes
On remand from the U.S. Supreme Court, the Ninth Circuit has issued the latest iteration of a class certification decision that has been in continual flux even as it has been widely cited in wage and hour class actions. See Wang v. Chinese Daily News, Inc., No. 08-55843 (9th Cir. Mar. 4, 2013) (slip opinion available here). In October of 2011, the U.S. Supreme Court vacated Wang v. Chinese Daily News, Inc., 623 F.3d 743 (9th Cir. 2010), and remanded it “for further consideration in light of Wal-Mart Stores, Inc. v. Dukes.”
In the underlying action, a hybrid FLSA collective action and state-law wage and hour class action, the district court had granted certification under both Federal Rule 23(b)(2) and 23(b)(3). On appeal to the Ninth Circuit, the appellate panel affirmed the certification under Rule 23(b)(2) and on that basis found it unnecessary to consider the certification under 23(b)(3). However, in this most recent ruling, the Ninth Circuit found that the monetary damages sought by the plaintiff were in no sense “incidental,” and on that basis altogether vacated the district court’s Rule 23(a)(2) analysis and directed the district court to conduct a Dukes-compliant analysis, stating: “Plaintiffs must show ‘significant proof that [CDN] operated under a general policy of [violating California labor laws].’” Slip op at 10 (internal citation omitted).
However, plaintiffs need not show that every question in the case, or even a preponderance of questions, is capable of classwide resolution. So long as there is “even a single common question,” a would-be class can satisfy the commonality requirement of Rule 23(a)(2). Id. The Ninth Circuit directed the district court to two of its recent class certification decisions, In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953, 958–59 (9th Cir. 2009) and Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 944–48 & n.14 (9th Cir. 2009), and ordered it to conduct its analysis on remand consistent with the predominance jurisprudence articulated in those cases. Slip op. at 13.
Once again, therefore, while Dukes has plainly imposed a more demanding class certification standard, that standard has not proved to be the insuperable obstacle to certification that many had predicted when Dukes was issued.