We’ve been watching the stuttering progress of Wang v. Chinese Daily News for some time. The plaintiffs brought a wide range of claims, alleging denial of overtime, meal breaks, wage statements, and timely pay after termination, under the FLSA and California law. The district court certified the class and a collective action, and the case was tried; in September 2010, the Ninth Circuit affirmed the certification decision.
The employer petitioned the Supreme Court for review, and in October 2011, the Court vacated and remanded the case for reconsideration in light of Wal-Mart v. Dukes. The Ninth Circuit has now passed on that instruction, vacating the district court’s certification decision and remanding for further consideration in light of Dukes.
Unsurprisingly, the Ninth Circuit held that the case could no longer proceed under Rule 23(b)(2), directing the district court to consider whether the case could instead be certified under Rule 23(b)(3), which requires that common issues predominate over individual issues, and whether Rule 23(a)(2)’s commonality requirement is satisfied in light of Dukes.
All in all, the Ninth Circuit’s decision is not surprising, nor all that momentous, as it merely passes on the Supreme Court’s instructions to the district court. The interesting decision will come after the district court issues a new opinion and the Ninth Circuit, presumably, gets the case for a third time. Still, it’s worth keeping tabs on, because Wang is one of the more prominent cases expressly applying Dukes to wage and hour matters — undermining the drumbeat from plaintiffs’ counsel that Dukes has no application to such cases. The Ninth Circuit already seems to have rejected that view, at least implicitly.
Similar issues are still before the Supreme Court in Ross v. RBS Citizens, N.A., which Proskauer is defending. There the Seventh Circuit declined to apply Dukes in a Rule 23(b)(3) wage and hour case. The petition was conferenced in October and we’re still waiting for a decision.