Ninth Circuit Affirms Certification of “No Injury” Wage and Hour Class

Carlton Fields

On August 31, the Ninth Circuit continued its trend of certifying “no injury” classes, this time in the context of an Agricultural Workers’ Protection Act claim that a Washington state fruit and vegetable farm violated the statute by hiring foreign workers to fill temporary agricultural jobs without informing domestic workers of the availability of the work.

The district court certified an “inaccurate information” class and an “equal pay” class. The Ninth Circuit rejected two challenges to the certification.

First, it rejected the defendant’s argument that the district court committed a “per se abuse of discretion” by “misinterpreting the substantive law governing plaintiff’s claims, which led it to divine common issues.” The court ruled that “one reading of the relevant statutes” supported the existence of a disclosure duty. This was not an abuse of discretion because the argument was “susceptible of classwide resolution.”

Second, the court rejected the defendant’s argument that the presence of “no-injury” claimants in the class negated predominance. In keeping with the statute, the court broadly defined injury to include time spent looking for other jobs. But even if this definition of injury was incorrect, the presence of some class members who did not suffer harm did not defeat certification. The court could weed them out at the damages phase. The court also permitted proof of damages by “aggregate” data.

Torres v. Mercer Canyons, Inc., — F.3d –, 2016 WL 4537378 (9th Cir. 2016).

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Carlton Fields

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