Post-Dukes Chinese Daily News Class Is Re-certified

On April 15, 2014, U.S. District Judge Consuelo B. Marshall re-certified a class of non-exempt newspaper employees who had brought wage-and-hour claims, finding that the plaintiffs’ allegations satisfied the commonality and predominance requirements for certification under the more stringent standards articulated by the U.S. Supreme Court’s Wal-Mart Stores Inc. v. Dukes (131 S.Ct. 2541 (2011)). Wang v. Chinese Daily News, Inc., No. 2:04-cv-01498 (C.D. Cal. April 15, 2014) (slip opinion available here). Thus, the court held that plaintiffs satisfied rule 23(b)(3). Id.

In 2008, the plaintiffs had obtained a $5.1 million judgment on behalf of the same class of employees under the Fair Labor Standards Act and California state law for the failure to pay overtime and to provide meal and rest breaks, among other violations. The Ninth Circuit affirmed that judgment in 2010 (623 F.3d 743 (9th Cir. 2010)), but after Dukes, the U.S. Supreme Court granted certiorari, vacated the Ninth Circuit’s opinion, and remanded to the Ninth Circuit for it to reconsider applying Dukes. The Ninth Circuit subsequently reversed the district court’s certification from 2005 and ordered it to reconsider its analysis under Rules 23(a)(2) and 23(b)(3), in light of Dukes, Brinker Rest. Corp. v. Superior Court (273 P.3d 513 (Cal. 2012)), and other caselaw developments. Wang v. Chinese Daily News, Inc., No. 08-55483 (9th Cir. Sept. 3, 2013).

Upon remand, Judge Marshall reexamined whether there were common questions of law or fact, and found many. Citing Dukes on the standard of commonality, the court stated, “[w]hat matters to class certification . . . is not the raising of common ‘questions’—even in droves—but rather, the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Slip op. at 4 (internal citations omitted). One question, which the court focused on, was whether the defendant failed to pay overtime compensation to non-exempt employees who worked over 40 hours per week. Id. at 5-7. The court found the plaintiffs had proffered enough evidence to show that the employer had treated the class members consistently and that supervisors had little or no discretion to deviate from the uniform policy of not providing overtime pay and/or meal and rest breaks. Id. at 6, 10. Plaintiffs also informed the court that because there were currently no identifiable class members still employed by the newspaper, they were no longer seeking certification under Rule 23(b)(2), the injunctive relief standard, so Judge Marshall declared that issue moot. Id. at 8.

The district court’s re-certification of the class shows that class certification of wage-and-hour cases is still appropriate in a post-Dukes era, if the plaintiffs allege that the treatment of class members is consistent and not subject to the discretion of individual managers.