You're viewing Docket Item 127.1 from the case Lynne Wang, et al v. Chinese Daily News, Inc.. View the full docket and case details.

Download this document:




Case: 08-55483 03/28/2013 ID: 8568114 DktEntry: 127-1 Page: 1 of 17

Nos. 08-55483 & 08-56740

In the UNITED STATES COURT OF APPEALS

for the NINTH CIRCUIT

LYNNE WANG, YU FANG INES KAI, and HUI JUNG PAO,

On Behalf of Themselves and all Others Similarly Situated

Plaintiffs-Appellees,

vs.

CHINESE DAILY NEWS, INC.,

Defendant-Appellant.



On Appeal from the United States District Court

Central District of California

Case No. CV-04-1498-CBM-JWJ

The Honorable Consuelo B. Marshall







BRIEF FOR AMICI CURIAE

IMPACT FUND, LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE

SAN FRANCISCO BAY AREA, & LEGAL AID SOCIETY –

EMPLOYMENT LAW CENTER IN SUPPORT OF APPELLEES’

PETITION FOR PANEL REHEARING OR REHEARING EN BANC

IMPACT FUND
Jocelyn Larkin
(SBN: 110817)
Michael Caesar
(SBN: 280548)
125 University Avenue
Suite 102
Berkeley, CA 94710
Tel: (510) 845-3473
Fax: (510) 845-3654


Amici Curiae

LAWYERS’ COMMITTEE
FOR CIVIL RIGHTS OF
THE SAN FRANCISCO BAY
AREA
Paul Chavez
(SBN: 241576)
131 Steuart Street
Suite 400
San Francisco, CA 94105
Tel: (415) 543-9444
Fax: (415) 543-0296

LEGAL AID SOCIETY –
EMPLOYMENT LAW
CENTER
Fernando Flores
(SBN: 256193)
180 Montgomery Street
Suite 600
San Francisco, CA 94104
Tel: (415) 864-8848
Fax: (415) 593-0096

Case: 08-55483 03/28/2013 ID: 8568114 DktEntry: 127-1 Page: 2 of 17

TABLE OF CONTENTS


TABLE OF AUTHORITIES .................................................................................... ii

Page

DISCLOSURE STATEMENT OF AMICI CURIAE ............................................. iii

INTEREST OF AMICI CURIAE ............................................................................. iv

SUMMARY OF ARGUMENT ................................................................................. 1

ARGUMENT ............................................................................................................. 1

I.

THE “TRIAL BY FORMULA” LANGUAGE FROM DUKES
DID NOT CREATE AN ENTITLEMENT TO LITIGATE
CLASS CLAIMS INDIVIDUALLY .................................................... 1
A.

“Trial by Formula” Refers Only to Hilao’s Unusual Trial
Plan and Was Rejected in Dukes Because Title VII
Requires the Opportunity to Present Individual Defenses .......... 1

B.

The “Trial by Formula” Criticized in Dukes is Entirely
Unlike the Method of Proof Used in this Case ........................... 6

CONCLUSION ........................................................................................................ 10

CERTIFICATE OF COMPLIANCE ......................................................................... I





Case: 08-55483 03/28/2013 ID: 8568114 DktEntry: 127-1 Page: 3 of 17



Table of Authorities

Page(s)

Cases
Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) ..........................2, 3
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) ..................................... 8
Comcast Corp. v Behrend, No. 11-864,

2013 WL 1222646 (U.S. Mar. 27, 2013) ............................................................... 2

Driver v. AppleIllinois, LLC, No. 06 C 6149,

2012 WL 689169 (N.D. Ill. Mar. 2, 2012) ............................................................. 5
Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010) ......................... 6,7, 8
Hilao v. Estate of Marcos, 103 F.3d 767 (1996) ............................................. passim
Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) ................................. 3
Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) ....................................................... 4
Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) ............................................. 5
Ross v. RBS Citizens, N.A., 667 F.3d 900 (7th Cir. 2011) ......................................... 5
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) ................................. passim
Wang v. Chinese Daily News. Inc., Nos. 08-55483, 08-56740,

2013 WL 781715 (9th Cir. Mar. 4, 2013) ..........................................................1, 4
Wang v. Chinese Daily News. Inc., 623 F.3d 743 (9th Cir. 2010) ............................ 8
Statutes

28 U.S.C. § 2072(b) ................................................................................................... 4
Rules

Federal Rule of Civil Procedure 23 ................................................................. passim





ii

Case: 08-55483 03/28/2013 ID: 8568114 DktEntry: 127-1 Page: 4 of 17



DISCLOSURE STATEMENT OF AMICI CURIAE

Pursuant to Federal Rule of Appellate Procedure 29(c) and Ninth Circuit

Local Rule 29-2, Amici Curiae hereby disclose that they are not-for-profit

organizations, with no parent corporation and no publicly-traded stock. No party

or counsel for any party was involved in authoring or editing this brief in whole or

in part and no entity or person, aside from the Amici Curiae, made any monetary

contribution towards the preparation and submission of this brief. All parties have

consented to the filing of this Amicus Brief.

























iii

Case: 08-55483 03/28/2013 ID: 8568114 DktEntry: 127-1 Page: 5 of 17



INTEREST OF AMICI CURIAE

Amicus Curiae Impact Fund is a non-profit legal foundation that provides

funding, training, and co-counsel to public interest litigators across the country,

assisting in civil rights and employment cases. It is a California State Bar Legal

Services Trust Fund Support Center and provides services to legal services projects

across the state. The Impact Fund is class counsel in the gender discrimination

class actions, Dukes v. Wal-Mart Stores, Inc., No. C-01-2252 (N.D. Cal.) and Ellis

v. Costco Wholesale Corp., No. C-04-3341 (N.D. Cal.).



The Lawyers’ Committee for Civil Rights of the San Francisco Bay

Area (“Lawyers’ Committee”) is a civil rights and legal services organization

that advances, protects and promotes the rights of communities of color,

immigrants, and refugees. Lawyers’ Committee, with the assistance of hundreds

of pro bono attorneys, provides free legal assistance and representation to

individuals in the areas of racial justice, immigrant justice, and voting rights. In

addition, Lawyers’ Committee handles impact cases that focus on important civil

rights issues, including the rights of low wage immigrant workers.



Throughout its history, Lawyers’ Committee has sought broad-based relief

for many of its clients. Indeed, class-wide relief is often the only way our clients,

who are predominantly low-income, can effectively obtain redress for their

grievances. Any improper or unnecessary restrictions on securing class-based



iv

Case: 08-55483 03/28/2013 ID: 8568114 DktEntry: 127-1 Page: 6 of 17



treatment as a form of relief under Rule 23 is therefore cause for concern and an

issue of vital interest to Lawyers’ Committee.



The Legal Aid Society – Employment Law Center (ELC) is a non-profit

public interest law firm whose mission is to protect and advance the workplace

rights of individuals from traditionally under-represented communities. Since

1970, ELC has represented plaintiffs in cases involving workplace rights,

particularly those cases of special import to communities of color, women, recent

immigrants, individuals with disabilities, the LGBT community, and the working

poor. ELC often brings cases for low-wage workers as class and collective actions.



v

Case: 08-55483 03/28/2013 ID: 8568114 DktEntry: 127-1 Page: 7 of 17





SUMMARY OF ARGUMENT

In the final section of this Court’s opinion, the panel held that “[e]mployers

are entitled to individualized determinations of each employee’s eligibility for

monetary relief.” 2013 WL 781715, at *6 (internal citations omitted). The opinion

continues: “Employers are also entitled to litigate any individual affirmative

defenses they may have to class member’ claims.” Id. Incorporating the

arguments made by Appellees in their Petition for Rehearing, Amici Curiae write

separately to emphasize that the Supreme Court did not create a due process right,

nor any other “entitlement,” to litigate defenses to class claims on an individual

basis. Additionally, Amici highlight the key ways in which this case differs from

the specific practices criticized by the Supreme Court when it referred to “Trial by

Formula” in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).



ARGUMENT

I. THE “TRIAL BY FORMULA” LANGUAGE FROM DUKES DID

NOT CREATE AN ENTITLEMENT TO LITIGATE CLASS CLAIMS
INDIVIDUALLY


A. “Trial by Formula” Refers Only to Hilao’s Unusual Trial Plan

and Was Rejected in Dukes Because Title VII Requires the
Opportunity to Present Individual Defenses







In Dukes, the Supreme Court’s reference to “Trial by Formula” appears at

the tail end of its extended discussion of whether the claims for backpay under



1

Case: 08-55483 03/28/2013 ID: 8568114 DktEntry: 127-1 Page: 8 of 17



Title VII in that case could properly be certified under Federal Rule of Civil

Procedure 23(b)(2). 131 S. Ct. 2561. Read in context, the limited import of the

“Trial by Formula” shorthand is plain: it refers only to one trial plan adopted in an

unusual case that the Court found incompatible with Title VII’s statutory scheme.1



The “Trial by Formula” phrase appears after the Dukes Court concluded that

claims for backpay under Title VII could not be certified under Rule 23(b)(2). Id.

The Court reasoned that backpay was an “individualized monetary claim” and that,

given the history and structure of Rule 23, such claims belonged under Rule

23(b)(3), where additional protections, like notice and the right to opt out, are

mandatory. Id. at 2558.



The Court expressly did not reach the question of whether any forms of

monetary relief might be certifiable under Rule 23(b)(2). It discussed, but did not

adopt, the Fifth Circuit’s formulation for what types of monetary relief could be

certified under Rules 23(b)(2)—those “incidental to requested injunctive or

declaratory relief.” 131 S. Ct. at 2560 (quoting Allison v. Citgo Petroleum Corp.,

151 F.3d 402, 415 (5th Cir. 1998)). It said that even if that formulation were



1 As Appellees note, the Dukes Court actually approved the use of aggregate
proof. See Appellees’ Petition for Rehearing at 7-10. Indeed, the Supreme Court’s
recent decision in Comcast Corp. v. Behrend, No. 11-864, 2013 WL 1222646 (U.S.
Mar. 27, 2013), affirmed the propriety of using damage models to calculate class-
wide injury in antitrust actions. Id. at *5 (holding that damage model must be
matched to theory of liability).



2

Case: 08-55483 03/28/2013 ID: 8568114 DktEntry: 127-1 Page: 9 of 17



correct, the backpay claims in Dukes could not satisfy that test, since the Fifth

Circuit defined “incidental” monetary relief, in part, as not requiring “additional

hearings to resolve the disparate merits of each individual’s case.” Id. (quoting

Allison, 151 F.3d at 415) (emphasis added). Since Title VII’s “detailed remedial

scheme” required additional proceedings (known as Teamsters hearings2) to permit

the employer to present individual statutory defenses specific to Title VII, the

backpay sought in Dukes could not be considered “incidental monetary relief.” Id.



In one final paragraph, following this “even if” discussion, the Dukes Court

refers to “Trial by Formula.” Having concluded that Title VII requires additional

individual proceedings before backpay can be awarded, the Court held that such

proceedings could not be replaced with a “Trial by Formula.” Id. at 2561.



There is no need to speculate what the Supreme Court meant by “Trial by

Formula” as it specifically described the objectionable model:

A sample set of the class members would be selected, as to whom
liability for sex discrimination and the backpay owing as a result
would be determined in depositions supervised by a master. The
percentage of claims determined to be valid would then be applied to
the entire remaining class, and the number of (presumptively) valid
claims thus derived would be multiplied by the average backpay
award in the sample set to arrive at the entire class recovery—without
further individualized proceedings.



2 The Court held that the two-stage trial model first articulated in

International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977),
“gives effect” to Title VII’s statutory requirements. 131 S. Ct. at 2561.





3

Case: 08-55483 03/28/2013 ID: 8568114 DktEntry: 127-1 Page: 10 of 17





131 S. Ct. at 2561. The Court then cited to the portion of the Ninth Circuit’s

Dukes ruling that contains a lengthy exegesis of the method of proof used in Hilao

v. Estate of Marcos, 103 F.3d 767, 782-87 (1996), and how it might provide a

viable approach to evaluate the backpay claims before it. Dukes, 131 S. Ct. at

2561; see also infra Part I.B. In other words, the Court’s rejection of “Trial by

Formula” refers only to the Ninth Circuit’s proposal to apply the Hilao method of

proof to the claims in Dukes. The Court “disapprove[d] that novel project,”—

because it would not allow Wal-Mart to present statutory defenses to individual

Title VII backpay claims and therefore abridged a statutory right in violation of the

Rules Enabling Act (not due process).3 131 S. Ct. at 2561.



From this very narrow point concerning the possible frontiers of Rule

23(b)(2) as applied to Title VII backpay claims, this Court conferred for the first

time a far-reaching entitlement to raise individualized defenses to any claim in a

class or collective action, whether statutory or common law. 2013 WL 781715, at

*6. But nowhere does the Dukes opinion refer to a due process right, or any such



3 The Court explained that “[b]ecause the Rules Enabling Act forbids
interpreting Rule 23 to ‘abridge, enlarge or modify any substantive right,’ 28
U.S.C. § 2072(b), a class cannot be certified on the premise that Wal-Mart will not
be entitled to litigate its statutory defenses to individual claims.” 131 S. Ct. at
2561 (citing Ortiz v. Fibreboard Corp., 527 U.S. 815, 845 (1999)).





4

Case: 08-55483 03/28/2013 ID: 8568114 DktEntry: 127-1 Page: 11 of 17



entitlement for that matter, to present individualized defenses.4 The Court’s

analysis is tied entirely to Rule 23, the Title VII statutory scheme, and the remedial

scheme set forth in Teamsters.



The Supreme Court’s rejection of “Trial by Formula,” then, means no more

than that the Hilao method of proof cannot be substituted for individual Teamsters

remedial hearings to determine backpay under Title VII. As other courts have

found, it has no relevance where, as here, the operative statute affords no specific

right to individualized proof. See Ross v. RBS Citizens, N.A., 667 F.3d 900, 909

n.7 (7th Cir. 2011) (holding that the presence of individual affirmative defenses in

wage and hour action did not prevent 23(b)(3) certification; Dukes prohibited only

backpay under Rule 23(b)(2) due to statutory defense under Title VII); Driver v.

AppleIllinois, LLC, No. 06 C 6149, 2012 WL 689169, at *3 (N.D. Ill. Mar. 2,

2012) (holding that Dukes did not prevent assessment of damages in wage and

hour class action with aggregate proof).

B. The “Trial by Formula” Criticized in Dukes is Entirely Unlike

the Method of Proof Used in this Case





As noted above, the target of the Supreme Court’s criticism in Dukes was

the very specific and unusual trial model used in Hilao, “a 10,000+ plaintiff class


4 The Dukes Court’s did refer to Due Process in connection with the rights of

class members to notice under Rule 23(b)(3) in suits primarily for monetrary
damages. 131 S. Ct. at 2559 (citing Phillips Petroleum Co. v. Shutts, 472 U.S.
797, 812 (1985)).



5

Case: 08-55483 03/28/2013 ID: 8568114 DktEntry: 127-1 Page: 12 of 17



action filed by Philippine nationals and their descendants who were alleged victims

of torture, summary execution, and ‘disappearance’ at the hands of Ferdinand E.

Marcos, the Philippines’ former president.” Dukes v. Wal-Mart Stores, Inc., 603

F.3d 571, 625 n.54 (9th Cir. 2010) (en banc). That trial model, adopted to address

an extraordinary set of facts and circumstances, has nothing to do with the kinds of

routine evidence used here, which was based on mathematical extrapolation from

Chinese Daily News’s own employee and business records, and worker testimony.

Aggregate proof was, in fact, only necessary in this case because of Defendant’s

own failure to maintain employee time records properly.



We turn, then, to this Court’s discussion of Hilao, in Dukes. There, the

Ninth Circuit, sitting en banc, declined to rule on the specifics of the district

court’s proposed trial plan, concluding that Rule 23 manageability had been met.

“At this stage, we express no opinion regarding Wal-Mart’s objections to the

district court’s tentative trial plan (or that trial plan itself) . . . .” Dukes, 603 F.3d at

625. The Ninth Circuit then observed that there were “a range of possibilities . . .

that would allow this class action to proceed in a manner that is both manageable

and in accordance with due process . . . .” Id. (emphasis added).



One possible approach, according to the Dukes en banc majority, would be

to utilize the method used to determine compensatory damages in Hilao. Id. at

625. The components of that methodology were:



6

Case: 08-55483 03/28/2013 ID: 8568114 DktEntry: 127-1 Page: 13 of 17

? Claim Forms – Class members filed written claims. The district court

determined that over 500 were facially invalid, leaving over 9500

claims. Id.

? Sample of Claims – A computer randomly selected 137 claims, based

upon a statistician’s testimony about the probability that the

percentage of valid claims among that sample could be generalized to

all claims. Id. at 625-26.

? Special Master – A special master supervised the depositions of the

sample claimants, reviewed the claims, determined which claims were

valid, and recommended an amount of damages to be awarded as to

those claims. The special master recommended a total compensatory

damage award based upon the percentage of valid claims, multiplied

by the average recommended award. Id.

? Jury Trial – The district court then held a jury trial on compensatory

damages. The jury heard the testimony of the sample of claimants,

the statistical expert, and the Special Master concerning his

recommendations. It accepted some of the Special Master’s

recommendations and rejected others. Id.

? Pro Rata Distribution of Compensatory Award – The district court

entered judgment for the sample claimants, based on the jury’s

7





Case: 08-55483 03/28/2013 ID: 8568114 DktEntry: 127-1 Page: 14 of 17





findings, and divided the compensatory damage award among the

remaining claimants pro rata. Id.

The Ninth Circuit did not explain how specifically the Hilao methodology

might be used, other than suggesting that Wal-Mart could litigate its individual

defenses in the randomly selected “sample cases.” Id. at 628 n.56. The “Trial by

Formula” used in Hilao and criticized by the Supreme Court in Dukes bears no

similarity to the process used in this case. Indeed, the differences are legion.

First, this case involved one trial of damages claims before one jury and one

bench trial to decide the issues of injunctive relief, penalties, prejudgment interest,

and restitution. Wang v. Chinese Daily News, Inc., 623 F.3d 743, 750 (9th Cir.

2010). Hilao was a trifurcated proceeding with the disputed methodology applied

to only one phase: class compensatory damages. Hilao involved evidence as to

only 1.5% of all claims submitted by class members, with the results extrapolated

to the entire class. Here, Chinese Daily News’s own time records, while

incomplete, were used as the basis for determining damages. Chinese Daily News

itself was responsible for the holes in the data, evidenced by the district court’s

determination that the long standing rule that an employee may prove damages “as

a matter of just and reasonable inference” when an employer fails to keep proper

and accurate records. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690-91

(1946).



8

Case: 08-55483 03/28/2013 ID: 8568114 DktEntry: 127-1 Page: 15 of 17



Second, Hilao involved the use of a special master, who reviewed claims,

supervised the taking of deposition testimony in the Philippines, and presented

recommendations to the jury. No such intermediary fact-finder was used here.

The evidence was presented directly to the jury and to the bench.

Third, the evidence in Hilao consisted of anecdotal testimony regarding a

wide range of events, physical injuries, and subjective emotional distress. The

evidence here consisted of objective proof provided by company business records,

buttressed by compelling corporate admissions and worker testimony. Based on

this evidence, plaintiffs’ expert extrapolated the missing data and drew proper

conclusions from that objective proof.

Fourth, the illegal conduct in Hilao occurred in a wide array of

circumstances, resulting in vastly different types of injuries. In this case, the

illegal conduct was one specific type of conduct (failure to pay workers for time

worked), in one specific type of environment (Chinese Daily News’ Monterey Park

Facility in Southern California), resulting from the implementation of a uniform

company policy, and which affected each class member in the same way

(depriving each of pay earned).



The properly conducted proceedings in this case bear no resemblance to the

“Trial by Formula” rejected by the Supreme Court in Dukes.





9

Case: 08-55483 03/28/2013 ID: 8568114 DktEntry: 127-1 Page: 16 of 17




For the foregoing reasons, Amici Curiae request that the Court grant

CONCLUSION

Appellees’ Petition for Panel Rehearing or, in the Alternative, Rehearing En Banc.

Dated: March 28, 2013



Respectfully submitted,

/s/ Jocelyn Larkin
Jocelyn Larkin
IMPACT FUND
Attorney for Amici Curiae



10

Case: 08-55483 03/28/2013 ID: 8568114 DktEntry: 127-1 Page: 17 of 17



CERTIFICATE OF COMPLIANCE

1.

This brief complies with the type-volume limitation of Fed. R. App. P.

29(d) and Ninth Circuit Rule 29-2(c) because this brief contains 2,507 words

(4,200 words or less) excluding the parts of the brief exempted by Fed. R. App. P.

32(a)(7)(B)(iii).

2.

The brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Microsoft Word

2010 in Times New Roman 14-point font.

Dated: March 28, 2013



Respectfully submitted,


/s/ Jocelyn Larkin
Jocelyn Larkin








I