Wang v. Chinese Daily News: On Remand From SCOTUS After Wal-Mart, Ninth Circuit Reverses In Part Judgment for Class of Employees and Remands

In Wang v. Chinese Daily News, 623 F.3d 743 (9th Cir. 2010) (discussed here), the Ninth Circuit affirmed judgment after trial in favor of a class of newspaper employees. In 2011, the United States Supreme Court vacated that decision and ordered the Ninth Circuit to reconsider it in light of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___ (2011) (discussed here). In its re-vamped opinion, Wang v. Chinese Daily News, ___ F.3d ___ (9th Cir. 3/4/13), the Ninth Circuit reversed the judgment for the class members, holding: 

Defendant Chinese Daily News (CDN) could challenge the district court's finding that the commonality requirement of Federal Rule 23(a)(2) was satisfied, even though it originally did not brief the issue.  "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."  Slip op. at 7-8. 

Although Wal-Mart differed substantially from Wang, the district court should reconsider its commonality finding in light of Wal-Mart: 

On remand, the district court must determine whether the claims of the proposed class “depend upon a common contention . . . of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Plaintiffs must show “significant proof that [CDN] operated under a general policy of [violating California labor laws].” However, plaintiffs need not show that every question in the case, or even a preponderance of questions, is capable of classwide resolution. So long as there is “even a single common question,” a would-be class can satisfy the commonality requirement of Rule 23(a)(2). 

Slip op. at 10 (citations omitted). 

In light of Wal-Mart, the district court erred in certifying a class seeking monetary relief under Rule 23(b)(2). Further, "none of the named plaintiffs had standing to pursue injunctive relief on behalf of the class, as none of them is a current CDN employee."  Slip op. at 11. 

The district court should reconsider class certification under Rule 23(b)(3) because: (1) the Ninth Circuit recently has held that an employer's uniform policy of classifying all reporters and account executives as exempt employees is not sufficient to support Rule 23(b)(3) certification in and of itself; and (2) the California Supreme Court recently clarified meal period requirements in Brinker v. Superior Court.  Slip op. at 11-14.  

Finally, the Court held: "If the district court again certifies a class under Rule 23(b)(3), it should calculate damages in light of the Supreme Court’s admonitions in Wal-Mart."  Slip op. at 15.  

Wang v. Chinese Daily News is available here.