Ninth Circuit Holds Dukes v. Wal-Mart Certification Requirements Apply To Small Class Actions And In The Wage And Hour Context

by Perkins Coie

On Tuesday, on remand from the U.S. Supreme Court, the Ninth Circuit held that the certification requirements set forth by the U.S. Supreme Court for a multimillion plaintiff gender discrimination class action in Dukes v. Wal-Mart Stores, 131 S. Ct. 2541 (2011), applied equally to a 200-person class of newspaper employees with wage and hour claims.

The opinion in Wang v. Chinese Daily News, Case No. 08-55483 (9th Cir. March 4, 2013) is a welcomed extension of Dukes and offers the following key insights:

  • The stringent interpretation of Rule 23(a)(2)’s commonality requirement in Dukes applies to mega and smaller class actions alike;
  • Plaintiffs who seek individual monetary relief cannot circumvent Rule 23(b)(3)’s predominance test by tacking on an injunctive relief claim and seeking certification under Rule 23(b)(2);  
  • For wage and hour claims, an employer’s maintenance of an internal wage hour policy will not alone satisfy Rule 23(b)(3)’s predominance test if individual inquiries will make class treatment difficult or impossible; 
  • Individual damages for class members cannot be determined by applying findings from a sample under the “Trial by Formula” method.   

The decision is a positive advancement in the area of class action defense and a valuable tool for employers for obtaining denial of class certification in wage and hour actions in the future.

The Proposed Class and Procedural Background

In 2004, plaintiffs filed a class action on behalf of newspaper employees who worked in Chinese Daily News’ San Francisco and Los Angeles offices, and then plaintiffs narrowed the class definition to one office with 200 employees.  Plaintiffs asserted claims under the California Labor Code relating to overtime, meal and rest breaks, itemized wage statements and penalties, and for violation of California’s Unfair Business Practices Law (Bus. & Prof. Code § 17200). Plaintiffs also pursued collective action under the Fair Labor Standards Act. The district court certified plaintiffs’ class under Rule 23(b)(2), or alternatively Rule 23(b)(3). The Ninth Circuit affirmed.  Following Dukes, the Supreme Court vacated and remanded the Ninth Circuit’s decision for reconsideration.

Rule 23(a)(2) Commonality Difficult to Satisfy for Mega (1.5 Million) and Smaller (200) Classes Alike

The Court vacated its previous ruling that plaintiffs’ claims satisfied Rule 23(a)(2)’s commonality requirement.  The Court reiterated the requirement from Dukes that, for Rule 23(a)(2) commonality to exist, plaintiffs must share not only common questions, but common answers as well. The Court held that, although “Plaintiffs’ claims do not depend upon establishing commonalities among 1.5 million employees and millions of discretionary employment decisions,” there were nonetheless “significant differences among the class members.” The Court remanded and instructed the district court to apply the “one stroke” standard from Dukes: whether a factfinder can resolve a dispute of fact that is central to the class members’ claims in “one stroke,” or whether commonality is defeated because additional “strokes” are required to resolved individualized issues.

Line in the Sand Drawn Between “(b)(2)” and “(b)(3)” Class Actions Under Rule 23

The Court made two key points regarding the standards for certifying (b)(2) versus (b)(3) class actions:

  • Plaintiffs cannot circumvent Rule 23(b)(3)’s predominance analysis by masking a class action to recover individual monetary damages as an action for injunctive relief under Rule 23(b)(2). During the en banc appeal in Dukes before the Ninth Circuit, the Court held that, although plaintiffs sought individual monetary relief, the district court could still certify a (b)(2) class because plaintiffs’ monetary claims did not predominate over their claim for injunctive relief.  The Supreme Court rejected this interpretation, holding that, absent “incidental” damages, “individualized monetary claims belong in Rule 23(b)(3).”  The Wang plaintiffs conceded that the district court’s previous Rule 23(b)(2) certification decision could not stand under this more stringent standard; accordingly, the Court reversed.
  • The Court sharpened the predominance analysis under Rule 23(b)(3) in wage and hour class actions.  In remanding the case for reconsideration of whether plaintiffs’ class could be certified under Rule 23(b)(3), the Court made two pronouncements—(1) plaintiffs’ challenge to the employer’s internal wage and hour policy will not alone satisfy predominance if potential individual issues will make class treatment difficult or impossible, and (2) for California meal and rest break claims, the predominance analysis must be informed by Brinker Restaurant Corp. v. Superior Court, 273 P.3d 513 (2012).  In Brinker, the California Supreme Court recognized that, while a class may be certified to address an employer’s facially unlawful wage and hour policy, it expressed doubt as to a class action’s utility to resolve individual employees’ challenges to their employer’s actions or decisions related to wage and hour issues.

The Court Rejected Use of the “Trial by Formula” Sampling Method to Prove Individual Damages on Classwide Basis

The Ninth Circuit cautioned that damages must be proven as to each individual plaintiff and disavowed the “trial by formula” method, which calculates damages based on a set of class members and then projects those damages to the entire class. The Court also acknowledged that a “trial by formula” damages calculation would improperly deny defendant the opportunity to raise affirmative defenses as to each individual plaintiff’s damages claim.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Perkins Coie | Attorney Advertising

Written by:

Perkins Coie

Perkins Coie on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.