737 F.3d 538 (9th Cir. 2013), 08-55483, Wang v. Chinese Daily News, Inc.
|Docket Nº:||08-55483, 08-56740.|
|Citation:||737 F.3d 538|
|Opinion Judge:||W. FLETCHER, Circuit Judge:|
|Party Name:||Lynne WANG; Yu Fang Ines Kai; Hui Jung Pao, on behalf of themselves and all others similarly situated; Lien Yi Jung; Yu Fang Kai; Chang Chingfang; Jeffrey Sun; Shieh-Sheng Wei; Yun Min Pao; Hui Jung Lee; Chengyang Yan; Shiang Huang; Chih-Ming Sheu; Minh Vi-Huynh; Jenny Liu Hung, Plaintiffs-Appellees, v. CHINESE DAILY NEWS, INC., Defendant-Appellant|
|Attorney:||Della Barnett, Berkeley, CA; Cordelia Dai and Randy Renick (argued), Hadsell Stormer Richardson & Renick, LLP, Pasadena, CA, for Appellees. Michael M. Berger (argued), Benjamin G. Shatz, Yi-Chin Ho, and Andrew L. Satenberg, Manatt, Phelps & Phillips, Los Angeles, CA, for Appellant.|
|Judge Panel:||Before: STEPHEN S. TROTT and WILLIAM A. FLETCHER, Circuit Judges, and CHARLES R. BREYER, District Judge.[*]|
|Case Date:||September 03, 2013|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted July 31, 2012.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Central District of California, Consuelo B. Marshall, Senior District Judge, Presiding. D.C. No. 2:04-cv-01498-CBM-JWJ.
This court's opinion filed March 4, 2013, and reported at 709 F.3d 829 (9th Cir.2013), is withdrawn, and is replaced by the attached Opinion.
With the filing of the new opinion, the panel has voted unanimously to deny the petition for rehearing. Judge Fletcher has voted to deny the petition for rehearing en banc, and Judges Trott and Breyer so recommend.
The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.
Named plaintiffs filed a class action suit against defendant-appellant Chinese Daily News, Inc. (" CDN" ), alleging violations of the federal Fair Labor Standards Act (" FLSA" ), of California's Unfair Business Practices Law, and of the California Labor Code. The district court certified the FLSA claim as a collective action and certified the state-law claims as a class action. 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, we affirmed the district court. On October 3, 2011, the United States Supreme Court vacated and remanded for reconsideration in light of its decision in Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). We now reverse the district court's certification of the plaintiff class under Federal Rule of Civil Procedure 23(b)(2), and we remand for the district court to reconsider its analysis under Rules 23(a) and 23(b)(3).
On March 5, 2004, Lynne Wang, Yu Fang Ines Kai, and Hui Jung Pao filed suit against CDN on behalf of current, former, and future CDN employees based in CDN's San Francisco and Monterey Park (Los Angeles) locations, claiming violations of the FLSA, 29 U.S.C. § 206 et seq., California's Unfair Competition Law, Cal. Bus. & Prof.Code § 17200 et seq., and California's Labor Code. Plaintiffs alleged that CDN employees were made to work more than eight hours per day and more than forty hours per week. They further alleged that they were wrongfully denied overtime compensation, meal and rest breaks, accurate and itemized wage statements,
and penalties for wages due but not promptly paid at termination. They sought damages, restitution, attorneys' fees, and injunctive relief.
After plaintiffs narrowed the class definition to include only non-exempt employees at the Monterey Park facility, the district court certified the FLSA claim as a collective action. The district court certified the state-law claims as a class action under Rule 23(b)(2). Wang v. Chinese Daily News, Inc., 231 F.R.D. 602, 611 (C.D.Cal.2005). In the alternative, the district court held that the class could be certified under Rule 23(b)(3). Id. at 614.
The post-certification litigation proceeded in three stages. First, both sides sought summary judgment on the question whether CDN's reporters were eligible for overtime under the FLSA. The court granted summary judgment to plaintiffs, holding that CDN's reporters did not fall within the " creative professional exemption" and were thus eligible for overtime. Wang v. Chinese Daily News, Inc., 435 F.Supp.2d 1042, 1055 (C.D.Cal.2006); see 29 C.F.R. § 541.302(d). Second, the district court held a sixteen-day jury trial. The jury returned a special verdict awarding the plaintiff class over $2.5 million in damages. Third, the court held a bench trial on the remaining issues of injunctive relief, penalties, prejudgment interest, and restitution. It held that plaintiffs' injuries could be remedied by damages and denied plaintiffs' request for an injunction.
We affirmed. Wang v. Chinese Daily News, 623 F.3d 743 (9th Cir.2010). The Supreme Court granted certiorari, vacated our opinion, and remanded for reconsideration in light of Wal-Mart Stores, Inc. v. Dukes, __U.S. __, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). The parties submitted post-remand supplemental briefing, and we held oral argument.
A party seeking class certification must satisfy the requirements of Federal Rule of Civil Procedure 23(a) and the requirements of at least one of the categories under Rule 23(b). The district court held that Rule 23(a) had been satisfied and certified the class under Rule 23(b)(2). In the alternative, it held that the class could be certified under Rule 23(b)(3). Wang, 231 F.R.D. at 614. We reverse the district court's certification under Rule 23(b)(2) for purposes of monetary relief in light of Wal-Mart. We remand for the district court to reconsider its analysis under Rules 23(a) and 23(b)(3), and to examine whether the Rule 23(b)(2) class certification may continue for purposes of injunctive relief.
A. Rule 23(a)
" Rule 23(a) ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate." Wal-Mart, 131 S.Ct. at 2550. The rule requires a party seeking class certification to satisfy four requirements: numerosity, commonality, typicality, and adequacy of representation. Id. The rule provides:
One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a). Class certification is proper only if the trial court has concluded,
after a " rigorous analysis," that Rule 23(a) has been satisfied. Wal-Mart, 131 S.Ct. at 2551 (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). CDN challenges the district court's finding that the commonality requirement of Rule 23(a)(2) was satisfied. CDN does not challenge other Rule 23(a) findings of the district court.
Plaintiffs argue that CDN has waived its right to challenge the district court's commonality finding because its opening brief, filed before the Supreme Court's decision in Wal-Mart, discussed the existence of common questions only in arguing against Rule 23(b)(3) certification. CDN did not argue the issue of commonality in its discussion of Rule 23(a). " Generally, an issue is waived when the appellant does not specifically and distinctly argue the issue in his or her opening brief." United States v. Brooks, 610 F.3d 1186, 1202 (9th Cir.2010) (internal quotation marks omitted). However, we may consider new arguments on appeal if the issue arises because of an intervening change in law. See Randle v. Crawford, 604 F.3d 1047, 1056 (9th Cir.2010). We conclude that the Court's decision in Wal-Mart presents a sufficiently significant legal development to excuse any failure of CDN to discuss the commonality requirement of Rule 23(a)(2) in its opening brief. Further, any potential prejudice to plaintiffs is cured by the fact that both parties were able to address the commonality issue under Rule 23(a)(2) in their supplemental briefs submitted after the Supreme Court's remand.
The district court held that the commonality requirement was satisfied because of numerous common questions of law and fact...
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