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Case: 08-55483 04/12/2013 ID: 8587979 DktEntry: 140 Page: 1 of 25

Nos. 08-55483, 08-56740

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LYNNE WANG, et al.

Plaintiffs-Appellees,

v.

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

APPELLANT’S RESPONSE TO APPELLEES’

PETITION FOR PANEL REHEARING OR, IN THE

ALTERNATIVE, REHEARING EN BANC





LATHAM & WATKINS LLP
Yi-Chin Ho
Joseph B. Farrell
355 South Grand Ave.
Los Angeles, California 90071
Telephone: 213-485-1234
Facsimile: 213-891-8763




LATHAM & WATKINS LLP
Paul T. Crane
555 11th Street NW
Suite 1000
Washington, DC 20004
Telephone: 202-637-2200
Facsimile: 202-637-2201








Attorneys for Appellant
Chinese Daily News, Inc.









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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Defendant and

Appellant Chinese Daily News, Inc. (“CDN”) states that no publicly held

corporation owns 10% or more of its stock. CDN has a parent corporation, Cooper

Investors, Inc., and no publicly held corporation owns 10% or more of that

company’s stock.

Dated: April 12, 2013

LATHAM & WATKINS LLP


By: s/ Yi-Chin Ho



Attorneys for Appellant,
Chinese Daily News, Inc.



i








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TABLE OF CONTENTS

Page

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

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

I.

The Petition For Panel Rehearing Should Be Denied ........................... 1

A.

B.

The Panel Correctly Instructed The District Court That It
May Not Calculate Damages Through
“Trial by Formula” ...................................................................... 1

Plaintiffs’ Arguments For Why “Trial by Formula”
Remains Permissible After Wal-Mart Are Meritless .................. 4

II.

The Petition For Rehearing En Banc Should Be Denied .................... 12

III. The Separate Commonality Issue Raised Only By An Amicus

Is Not Properly Before The Court And Therefore Should Be
Denied.................................................................................................. 14

CONCLUSION ........................................................................................................ 17










ii

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TABLE OF AUTHORITIES

CASES

Page(s)

Amgen Inc. v. Conn. Ret. Plans & Trust Funds,

133 S. Ct. 1184 (2013) ............................................................................................ 8

Anderson v. Mt. Clemens Pottery Co.,

328 U.S. 680 (1946) .............................................................................................. 10

Artichoke Joe’s Cal. Grand Casino v. Norton,

353 F.3d 712 (9th Cir. 2003) ................................................................................. 15

Comcast Corp. v. Behrend,

2013 WL 1222646 (U.S. Mar. 27, 2013) ......................................................... 7, 10

Cruz v. Dollar Tree Stores, Inc.,

2011 WL 2682967 (N.D. Cal. July 8, 2011) ........................................................... 6

Day v. Apolina,

505 F.3d 963 (9th Cir. 2007) ................................................................................. 15

Delagarza v. Tesoro Ref. & Mktg. Co.,

2011 WL 4017967 (N.D. Cal. Sept. 8, 2011) ......................................................... 8

Dukes v. Wal-Mart Stores, Inc.,

603 F.3d 571 (9th Cir. 2010) ................................................................................... 2

Ellis v. Costco Wholesale Corp.,

657 F.3d 970 (9th Cir. 2011) ...................................................................... 6, 14, 17

Espenscheid v. DirectSat USA, LLC,

705 F.3d 770 (7th Cir. 2013) .......................................................................... 11, 12

Franco v. Conn. Gen. Life Ins. Co.,

2013 WL 177943 (D.N.J. Jan. 16, 2013) ................................................................ 6

Hart v. Massanari,

266 F.3d 1155 (9th Cir. 2001) ............................................................................... 12

Johnson v. General Mills, Inc.,

276 F.R.D. 519 (C.D. Cal. 2011) ............................................................................ 6




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McElmurry v. U.S. Bank Nat. Ass’n,

495 F.3d 1136 (9th Cir. 2007) ............................................................................... 12

Miller-Wohl Co., Inc. v. Comm’r of Labor & Indus. State of Mont.,

694 F.2d 203 (9th Cir. 1982) ................................................................................. 15

RBS Citizens, N.A. v. Ross,

2013 WL 1285303 (U.S. Apr. 1, 2013) .................................................................. 7

Ross v. RBS Citizens, N.A.,

667 F.3d 900 (7th Cir. 2012) ................................................................................... 7

Santiago v. Rumsfeld,

425 F.3d 549 (9th Cir. 2005) ................................................................................. 16

Stone v. Advance Am.,

278 F.R.D. 562 (S.D. Cal. 2011) ............................................................................ 6

Swan v. Peterson,

6 F.3d 1373 (9th Cir. 1993) ................................................................................... 16

Troy v. Kehe Food Distribs.,

276 F.R.D. 642 (W.D. Wash. 2011) ....................................................................... 8

United States v. Burdeau,

180 F.3d 1091 (9th Cir. 1999) ............................................................................... 14

United States v. City of Los Angeles,

288 F.3d 391 (9th Cir. 2002) ................................................................................. 15

United States v. City of New York,

276 F.R.D. 22 (E.D.N.Y. 2011) .............................................................................. 5

United States v. Gementera,

379 F.3d 596 (9th Cir. 2004) ................................................................................. 16

United States v. Wahchumwah,

--- F.3d ---, 2013 WL 811610 (9th Cir. Mar. 4, 2013) ......................................... 15

United States v. Weitzenhoff,

35 F.3d 1275 (9th Cir. 1993) ................................................................................. 12




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United States v. Wylie,

625 F.2d 1371 (9th Cir. 1980) ............................................................................... 12

Wal-Mart Stores, Inc. v. Dukes,

131 S. Ct. 2541 (2011) ....................................................... 1, 2, 3, 4, 11, 14, 16, 17

28 U.S.C. §2072(b) ................................................................................................2, 5

STATUTES

RULES

Circuit Rule 35-1 ...................................................................................................... 13

Fed. R. App. P. 35(a) .......................................................................................... 1, 12

Fed. R. App. P. 35(b) ............................................................................................... 15

Fed. R. App. P. 35(b)(1)(B) ..................................................................................... 13

Fed. R. App. P. 40 ...................................................................................................... 1

OTHER AUTHORITIES

5-23 Moore’s Fed. Prac. - Civil § 23.46 .................................................................... 7

Brief of Amici Curiae National Employment Lawyers Association, et al.,

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (No. 10-277) ................ 17

Petition for a Writ of Certiorari, RBS Citizens, N.A. v. Ross, 2013 WL 1285303

(U.S. Apr. 1, 2013) (No. 12-165) ............................................................................ 7

Respondents’ Brief in Opposition, RBS Citizens, N.A. v. Ross, 2013 WL 1285303

(U.S. Apr. 1, 2013) (No. 12-165) ............................................................................ 8



v




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SUMMARY OF ARGUMENT

Appellees (hereinafter “plaintiffs”) do not contest this Court’s reversal of

class certification under Rule 23(b)(2), or this Court’s vacatur of class certification

under Rule 23(b)(3). Rather, plaintiffs seek rehearing on the Court’s instruction to

the district court that, if it again certifies a class, it may not calculate damages

through the use of “Trial by Formula.” See slip op. 15 (quoting Wal-Mart Stores,

Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011)). Plaintiffs challenge this

straightforward application of Wal-Mart by repeating the same series of strained

arguments that the panel properly rejected the first time around. For the reasons

discussed below, plaintiffs fail to satisfy the standard for panel rehearing, see Fed.

R. App. P. 35(a), and the standard for rehearing en banc, see Fed. R. App. P. 40.

Accordingly, the petition should be denied.1

ARGUMENT

I.

THE PETITION FOR PANEL REHEARING SHOULD BE DENIED
A. The Panel Correctly Instructed The District Court That It May

Not Calculate Damages Through “Trial by Formula”

In Wal-Mart, the district court outlined the following trial plan for how it

would handle the backpay claims for all class members. The court would select a


1 As discussed below, infra §III, the request by amicus curiae National
Employment Lawyers Association (“NELA”) that the panel delete a sentence
related to Rule 23(a)’s commonality standard is not properly before this Court and,
in any event, does not satisfy the requirements for rehearing or rehearing en banc.



1

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“sample set of the class members” and determine liability as well as the amount of

backpay owed to each of those particular persons. Wal-Mart, 131 S. Ct. at 2561.

The court would then determine the “percentage of claims determined to be valid,”

apply that percentage to “the entire remaining class,” and multiply that number “by

the average backpay award in the sample set to arrive at the entire class recovery.”

Id.; see Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 624-27 (9th Cir. 2010)

(explaining that “a formula would be used to calculate the ‘lump sum’ in backpay

that Wal-Mart owes to the class”). That “lump sum” would then be distributed to

members of the class “without further individualized proceedings.” 131 S. Ct. at

2561.

The Supreme Court determined that such a procedure, which it referred to as

“Trial by Formula,” violated the Rules Enabling Act because it would “abridge” or

“modify” Wal-Mart’s “substantive right[s].” See id. (quoting 28 U.S.C. §2072(b)).

The Court explained that, under the applicable substantive law, “Wal-Mart is

entitled to individualized determinations of each employee’s eligibility for

backpay.” 131 S. Ct. at 2560. Accordingly, the Court held that damages may not

be calculated—and “a class cannot be certified”—“on the premise that Wal-Mart

will not be entitled to litigate its statutory defenses to individual claims.” Id. at

2561.




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In this case, the district court (before Wal-Mart) permitted plaintiffs to

establish damages for the entire class in a method quite similar to the trial plan

rejected by the Supreme Court in Wal-Mart. Here, plaintiffs’ expert selected 44

class members to serve as a sample set for the entire class. See 1-ER-12-p.140.

Based on various averages established by this sample group, plaintiffs’ expert then

used different models and “ratios to calculate the amount of damages” for the

entire class. Id. As the expert later testified at trial, plaintiffs “were looking for a

practical way to extrapolate the smaller class to the larger class.” 14-ER-93-

p.3649.

After this case was remanded by the Supreme Court for further consideration

in light of Wal-Mart, the panel correctly recognized that, 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. 15. In other words, no

matter how “practical” such “extrapolation” may be, the district court may not

engage in “‘Trial by Formula,’ wherein damages are determined for a sample set of

class members and then applied by extrapolation to the rest of the class ‘without

further individualized proceedings.’” Id. (quoting Wal-Mart, 131 S. Ct. at 2561).

To permit otherwise, the panel explained, would violate Chinese Daily News’s

(“CDN”) substantive right “to litigate any individual affirmative defenses [it] may

have to class members’ claims.” Slip op. 15 (citing Wal-Mart, 131 S. Ct. at 2561).




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B.

Plaintiffs’ Arguments For Why “Trial by Formula” Remains
Permissible After Wal-Mart Are Meritless

In the face of this straightforward application of Wal-Mart, plaintiffs grasp

at proverbial straws in a futile attempt to argue that “Trial by Formula” remains

permissible after Wal-Mart. In so doing, plaintiffs rehash the same strained

assertions that this Court has already considered and correctly rejected. As

explained below, plaintiffs fail to identify any legitimate reason why this Court

should reconsider its decision.

1.

Plaintiffs and their amici primarily argue that Wal-Mart has no

purchase here because the Supreme Court’s condemnation of Trial by Formula was

limited to the Title VII context and the particular facts of that case. See, e.g., Pet.

1-7 (arguing that Wal-Mart “is confined to the specific facts and statutory scheme

in that case”); Impact Fund Br. 1-5 (arguing that Trial by Formula “refers only to

one trial plan adopted in an unusual case that the Court found incompatible with

Title VII’s statutory scheme”); NELA Br. 12. Such a crabbed reading of Wal-Mart

is untenable for several reasons.

First and foremost, plaintiffs’ interpretation is contrary to the language and

rationale of Wal-Mart itself. The Supreme Court “disapprove[d]” the particular

Trial by Formula proposed in Wal-Mart because it would have violated the Rules

Enabling Act—not Title VII per se. Wal-Mart, 131 S. Ct. at 2561. The Rules

Enabling Act provides that federal rules of procedure, like Rule 23, “shall not




4

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abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072(b) (emphasis

added). The substantive rights at stake in Wal-Mart happened to be those under

Title VII, but the Rules Enabling Act (and the logic of Wal-Mart) applies to “any

substantive right,” not just those that flow from Title VII.2 Plaintiffs’ attempt to

shoehorn Wal-Mart as a Title VII-only case flouts the fundamental principle that

lies at the heart of the Rules Enabling Act and Wal-Mart’s rejection of Trial by

Formula: if a defendant would have a substantive right to present an individualized

defense in a case where the plaintiff proceeded alone, the defendant does not lose

that right merely because the plaintiff (and other plaintiffs) invoke the class action

device established by Rule 23.

It is therefore unsurprising that the great weight of authority supports the

view that the Supreme Court’s rebuke of Trial by Formula extends beyond the

narrow confines of Title VII. See, e.g., United States v. City of New York, 276

F.R.D. 22, 37 (E.D.N.Y. 2011) (“Wal-Mart’s rejection of ‘Trial by Formula’

means that the underlying substantive law determines whether individual

proceedings are required; a litigant may not convert an individual question into a

common question by concocting a method of classwide proof that subverts rights


2 In their petition, plaintiffs frequently refer to Wal-Mart’s “statutory” rights that
would have been abridged by a Trial by Formula. See, e.g., Pet. 4. Of course, the
Rules Enabling Act prohibits the abridgment of any substantive right—not just
those that arise from a statute. See 28 U.S.C. § 2072(b). The panel properly
recognized this distinction. See slip op. 15.

5


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created by the underlying substantive law.”); Stone v. Advance Am., 278 F.R.D.

562, 566 n.1 (S.D. Cal. 2011) (acknowledging that Wal-Mart “eliminates a ‘trial by

formula’ approach to use statistics to extrapolate average damages for an entire

class, at least when the statute contains an individualized defense”); Johnson v.

General Mills, Inc., 276 F.R.D. 519, 524 (C.D. Cal. 2011) (explaining in a non-

employment case that, in light of Wal-Mart’s rejection of Trial by Formula, if

plaintiffs establish “liability for the class, Defendants may challenge reliance and

causation individually during a determination of damages, after the issues that are

common have been litigated and resolved”); 3 Cruz v. Dollar Tree Stores, Inc.,

2011 WL 2682967, at *6 (N.D. Cal. July 8, 2011) (decertifying a wage and hours

class because, among other reasons, Wal-Mart “rejected a ‘Trial by Formula’

approach to damages akin to that which Plaintiffs have proposed here”); Franco v.

Conn. Gen. Life Ins. Co., 2013 WL 177943, at *18 (D.N.J. Jan. 16, 2013)

(applying Wal-Mart’s admonition against Trial by Formula in ERISA context); see


3 For this reason, and contrary to plaintiffs’ suggestion (at 5), Johnson supports
the panel’s application of Wal-Mart beyond the Title-VII context. Indeed,
plaintiffs appear to tacitly acknowledge as much in their parenthetical describing
Johnson, which merely asserts that an “individualized determination of damages”
does not necessarily “defeat[] predomination under [Rule] 23(b)(3).” Pet. 5.
Similarly, plaintiffs’ “see also” cite to Ellis v. Costco Wholesale Corp., 657 F.3d
970 (9th Cir. 2011), does not actually support their argument that Wal-Mart is
somehow limited to Title VII. Tellingly, plaintiffs cite Ellis only for the
undisputed proposition that Rule 23(b)(3) “applies different standards than Rule
23(b)(2).” Pet. 5.



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also 5-23 Moore’s Fed. Prac. - Civil § 23.46 (“[A] mathematical formula or

statistical technique may not be used to compute damages if this would deprive the

defendant of the right to litigate its defenses to individual claims.”).

In support of their mistaken interpretation of Wal-Mart, plaintiffs and their

amici rely primarily on Ross v. RBS Citizens, N.A., 667 F.3d 900 (7th Cir. 2012),

vacated, 2013 WL 1285303 (U.S. Apr. 1, 2013). See, e.g., Pet. 4-6; Impact Fund

Br. 5; NELA Br. 12. In particular, plaintiffs and their amici emphasize a footnote

in Ross that held that a defendant had no right to raise individualized affirmative

defenses in a Rule 23(b)(3) class action for monetary relief because Wal-Mart only

protected the substantive rights of defendants in Rule 23(b)(2) actions for equitable

relief. See Ross, 667 F.3d at 908 n.7 (quoted by plaintiffs at Pet. 4-5). The

defendants in Ross subsequently petitioned the Supreme Court for a writ of

certiorari, making their challenge to this footnote front-and-center. See Petition for

a Writ of Certiorari at i (Questions Presented), 11-16, RBS Citizens, N.A. v. Ross,

2013 WL 1285303 (U.S. Apr. 1, 2013) (No. 12-165). After plaintiffs filed their

petition for rehearing, the Supreme Court granted the cert petition in Ross, vacated

the Seventh Circuit’s decision, and remanded for further consideration in light of

Comcast Corp. v. Behrend, 2013 WL 1222646 (U.S. Mar. 27, 2013). See RBS

Citizens, 2013 WL 1285303, at *1. Notably, even the plaintiffs in Ross

(respondents at the Supreme Court) declined to defend the Seventh Circuit’s




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decision along the lines advanced by plaintiffs here. See Respondents’ Brief in

Opposition at 13-14, RBS Citizens, 2013 WL 1285303 (claiming that the Seventh

Circuit did not hold that class action defendants lack the right to assert substantive

“defenses on an individualized basis” but rather “merely rejected the argument that

the existence of individualized defenses necessarily defeats commonality”

(emphasis omitted)). With Ross having been vacated by the Supreme Court,

plaintiffs and their amici are left without even a wobbly leg to stand on.4

2. After spilling considerable ink claiming Wal-Mart is inapplicable here,

plaintiffs shift gears with the peculiar assertion that the panel’s opinion is “contrary

to the holding in Wal-Mart”—and other “long-standing precedent”—which

generally approves the use of “aggregate proof” in class actions. See Pet. 7-10.

That argument is a red herring. Contrary to plaintiffs’ assertion, the panel did not

suggest that aggregate proof is always and inevitably impermissible. Rather, the


4 Plaintiffs suggest (at 3 n.2) that “the Wal-Mart decision has been distinguished
by the Supreme Court [and other courts] when application was sought beyond Title
VII.” As even a cursory glance at the decisions cited by plaintiffs reveals, however,
Wal-Mart was distinguished factually, not legally—and certainly not for the
reasons advocated by plaintiffs in their petition. See Amgen Inc. v. Conn. Ret.
Plans & Trust Funds, 133 S. Ct. 1184 (2013) (applying Wal-Mart and concluding
that materiality is a “common” issue in securities fraud cases and, therefore, need
not be proven on the merits for class certification); Troy v. Kehe Food Distribs.,
276 F.R.D. 642, 654-57 (W.D. Wash. 2011) (finding commonality and
predominance because, unlike in Wal-Mart, “no employee-by-employee analysis”
was “necessary to resolve” “multiple common questions” that would drive the
litigation); Delagarza v. Tesoro Ref. & Mktg. Co., 2011 WL 4017967 (N.D. Cal.
Sept. 8, 2011) (same).



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panel held that certain forms of aggregate proof are impermissible—namely, those

that deprive a defendant of its right to present individualized defenses in violation

of the Rules Enabling Act. Despite the accompanying rhetoric, none of the cases

cited by plaintiffs (at 8-9 & n.3) supports the use of aggregate proof that would run

afoul of the Rules Enabling Act.

3.

Plaintiffs also argue that rehearing is appropriate because other courts

“since Wal-Mart have certified wage and hour cases, expressly reaffirming the

principle that the need to calculate the specific damages of individual class

members does not undermine commonality, the predomination of common issues,

the superiority of the class action mechanism, or the manageability of a class

action.” Pet. 10-11. Plaintiffs, however, are once again attacking a straw man. As

an initial matter, the fact that courts have certified classes despite the presence of

individualized damages questions has nothing to do with whether the district court

in this case may once again extrapolate damages for the entire class from a subset

of class members, thereby depriving CDN of the opportunity to present

individualized defenses against each class member.

In any event, when discussing Wal-Mart’s admonition against Trial by

Formula (under the heading “Damages”), the panel did not suggest that the

requirement of individualized damages calculations necessarily barred the

possibility of class certification. Indeed, the panel’s instructions contemplate the




9

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possibility of the district court again certifying a class under Rule 23(b)(3). See

slip op. 15. Of course, the need for individualized damages determinations must

be considered by the district court when deciding whether class certification is

appropriate. See, e.g., Comcast, 2013 WL 1222646, at *5 (finding a lack of

predominance because “[q]uestions of individual damage calculations will

inevitably overwhelm questions common to the class”). But contrary to plaintiffs’

contention, the panel did not establish a blanket rule against certification when

individualized defenses must be litigated.

4.

Finally, plaintiffs and their amici erroneously argue that the burden

shifting framework first established by Anderson v. Mt. Clemens Pottery Co., 328

U.S. 680 (1946), supports the use of trial by formula here. See Pet. 12-13; Impact

Fund Br. 8; NELA Br. 15. Under Mt. Clemens, an employee’s burden to prove

entitlement to overtime pay is lessened when an “employer’s records are inaccurate

or inadequate.” Specifically, the employee may prove “the amount and extent of

[the unpaid] work as a matter of just and reasonable inference.” The burden then

shifts to the employer to demonstrate “the precise amount of work performed” or

produce evidence negating “the reasonableness of the inference to be drawn from

the employee’s evidence.” Mt. Clemens, 328 U.S. at 687-88. Plaintiffs’ reliance

on Mt. Clemens is mistaken for several reasons.




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To begin, plaintiffs conflate two distinct principles. Mt. Clemens alleviates

the burden on individual employees to prove with precision the amount of

overtime they worked when an employer fails to keep proper records. The fact that

an individual employee may ultimately approximate his own hours, however,

emphatically does not mean that a sample set of employees may be used to

approximate everybody else’s hours. See Espenscheid v. DirectSat USA, LLC, 705

F.3d 770, 775 (7th Cir. 2013) (Posner, J.) (while invocation of Mt. Clemens

permits “each employee” of a putative class to “reconstruct[]” his or her own

“unreported time” through “‘just and reasonable inference[s],’” “the experience of

a small, unrepresentative sample” of employees “can’t support an inference about

the work time of thousands of [other] workers” (citations omitted)).

Moreover, Mt. Clemens involves the sort of individualized determinations

that the Supreme Court concluded may not be replaced with Trial by Formula.

Wal-Mart, 131 S. Ct. at 2561. Under Mt. Clemens, an employer retains the right to

rebut the employee’s evidence. Pursuant to Wal-Mart and the Rules Enabling Act,

that right cannot be eliminated through Rule 23.

Along those lines, all of the cases cited favorably by plaintiffs in footnote 7

of their petition are Fair Labor Standards Act (“FLSA”) cases, not Rule 23 cases.

See Pet. 13 n.7. As this Court has recognized, there are significant distinctions

between the collective actions permitted by the FLSA and the opt-out class actions




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established by Rule 23(b)(3). See, e.g., McElmurry v. U.S. Bank Nat. Ass’n, 495

F.3d 1136, 1139 (9th Cir. 2007).5 Furthermore, the only appellate opinion cited by

plaintiffs that post-dates Wal-Mart affirmed class decertification because of

variances in potential damages across class members. See Espenscheid, 705 F.3d

at 773-74 (cited at Pet. 13 n.7).

In short, the burden-shifting framework established by Mt. Clemens has no

bearing on Wal-Mart’s admonition against Trial by Formula.

II. THE PETITION FOR REHEARING EN BANC SHOULD BE

DENIED

En banc review is an “exceedingly time-consuming and inefficient process,”

Hart v. Massanari, 266 F.3d 1155, 1179 (9th Cir. 2001), that is granted only in

extraordinary circumstances. See Fed. R. App. P. 35(a); United States v. Wylie,

625 F.2d 1371, 1378 n.10 (9th Cir. 1980) (“en banc hearings are disfavored”).

Such review should be granted only when (1) it “is necessary to secure or maintain

uniformity of the court’s decisions; or (2) the proceeding involves a question of

exceptional importance.” Fed. R. App. P. 35(a). In other words, en banc review

“is generally reserved for conflicting precedent within the circuit . . . and egregious

errors in important cases.” United States v. Weitzenhoff, 35 F.3d 1275, 1293 (9th

Cir. 1993) (Kleinfeld, J., dissenting from the order rejecting the suggestion for


5 Certification of a collective action under the FLSA’s opt-in procedure is not at
issue here.



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rehearing en banc). Plaintiffs do not come close to satisfying this demanding

standard.

To begin, plaintiffs do not—and could not—allege that en banc review is

necessary to “maintain uniformity” of this Court’s decisions. Plaintiffs also fail to

demonstrate that their petition involves a question of exceptional importance. The

petition, for example, does not involve “an issue on which the panel decision

conflicts with the authoritative decisions of other United States Courts of Appeals

that have addressed the issue.” Fed. R. App. P. 35(b)(1)(B); see Circuit Rule 35-1.

Even if there had been tension between the panel’s decision and the Seventh

Circuit’s opinion in Ross (which is debatable), any such friction was eliminated

when the Supreme Court vacated Ross.

En banc review is particularly inappropriate here for three additional reasons.

First, as already discussed, the panel committed no error when instructing the

district court to take heed of the Supreme Court’s “admonitions” against the use of

“Trial by Formula” for calculating damages. Slip op. 15. Second, plaintiffs do not

challenge any aspect of the panel’s judgment—that is, they do not contest the

reversal of class certification under Rule 23(b)(2) or the vacatur of the

commonality and predominance findings under Rule 23(a) and Rule 23(b)(3),

respectively. As Members of this Court have recognized, “en banc proceedings

should be reserved for . . . decid[ing] cases, not . . . edit[ing] statements in




13

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opinions.” United States v. Burdeau, 180 F.3d 1091, 1092 (9th Cir. 1999)

(Tashima, J., concurring in the order denying rehearing en banc). Third, the

instructions challenged by plaintiffs in their petition—regarding how the district

court may calculate damages—will only be relevant in this case if “the district

court again certifies a class under Rule 23(b)(3).” Slip op. 15. Because there is a

reasonable likelihood the district court will not recertify the class, en banc review

at this time would be premature. There is no reason to delay future proceedings

that both sides acknowledge must take place in order to decide a question that may

ultimately have no consequence here.

For all these reasons, plaintiffs’ request for rehearing en banc should be

denied.

III. THE SEPARATE COMMONALITY ISSUE RAISED ONLY BY AN

AMICUS IS NOT PROPERLY BEFORE THE COURT AND
THEREFORE SHOULD BE DENIED

Amicus National Employment Lawyers Association (“NELA”) separately

requests that the panel delete the following sentence from its commonality analysis:

“Plaintiffs must show ‘significant proof that [CDN] operated under a general

policy of [violating California labor laws].’” Slip op. 10 (quoting Ellis, 657 F.3d at

983 (in turn quoting Wal-Mart, 131 S. Ct. at 2553)). Importantly, plaintiffs do not

make such a request or otherwise challenge any aspect of the panel’s commonality




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decision. Because this argument is raised solely by an amicus, it is not properly

before the Court and therefore must be rejected.

It is well-settled that “only a party to a matter before this court may petition

for rehearing or rehearing en banc.” Day v. Apolina, 505 F.3d 963, 964 (9th Cir.

2007); see Fed. R. App. P. 35(b) (“A party may petition for a hearing or rehearing

en banc.”). It is equally well-established that an “amicus curiae is not a party to

litigation,” Miller-Wohl Co., Inc. v. Comm’r of Labor & Indus. State of Mont., 694

F.2d 203, 204 (9th Cir. 1982), and that amicus “status does not allow [amici] to

raise issues or arguments formally and gives [them] no right of appeal,” United

States v. City of Los Angeles, 288 F.3d 391, 400 (9th Cir. 2002). Accordingly,

NELA plainly could not have sought rehearing on the commonality issue on its

own volition. It may not do so now merely because plaintiffs have sought

rehearing on an entirely separate issue. Put simply, NELA lacks authority to

independently seek rehearing on the commonality issue since no party has sought

rehearing on that question.

Because an amicus is not a party, this Court has repeatedly and consistently

held that, in “the absence of exceptional circumstances,” it will “not address issues

raised only in an amicus brief.” Artichoke Joe’s Cal. Grand Casino v. Norton, 353

F.3d 712, 719 n.10 (9th Cir. 2003); see, e.g., United States v. Wahchumwah, ---

F.3d ---, 2013 WL 811610, at *4 n.2 (9th Cir. Mar. 4, 2013) (“the court will not




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consider arguments raised only in amicus briefs”); Santiago v. Rumsfeld, 425 F.3d

549, 552 n.1 (9th Cir. 2005) (“We follow our general rule in declining to

address . . . arguments not raised by the parties.”). This Court has previously

identified two “discretionary exceptions” to that general rule, but neither exception

applies here. First, this Court has considered an issue raised only by an amicus

“where it involves a jurisdictional question or touches upon an issue of federalism

or comity that could be considered sua sponte.” Swan v. Peterson, 6 F.3d 1373,

1383 (9th Cir. 1993); see United States v. Gementera, 379 F.3d 596, 607 (9th Cir.

2004) (same). Second, this Court “has addressed purely legal questions when the

parties express an intent to adopt the arguments as their own.” Gementera, 379

F.3d at 607; Swan, 6 F.3d at 1383 (same). NELA’s challenge to the panel’s

commonality discussion obviously does not touch on this Court’s jurisdiction, and

plaintiffs have declined to adopt “amicus’ argument by reference in their [own]

brief.” Swan, 6 F.3d at 1383. For all these reasons, NELA’s attempt to circumvent

the limitations on amicus curiae set forth in the Federal Rules should be rejected.6


6 Even if NELA’s arguments were properly before the court, they are meritless.
NELA challenges the panel’s determination that “[p]laintiffs must show significant
proof that CDN operated under a general policy of violating California labor laws.”
Slip op. 10 (alterations and internal quotation marks omitted). But that
requirement flows directly from the Supreme Court’s decision in Wal-Mart. See
131 S. Ct. at 2553. Indeed, even plaintiffs acknowledged in their supplemental
brief that, under Wal-Mart, the district court “must determine whether there was
‘significant proof that [CDN] operated under a general policy’ with respect to its



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CONCLUSION

The petition for panel rehearing or, in the alternative, rehearing en banc

should be denied.



Dated: April 12, 2013

LATHAM & WATKINS LLP











By: s/ Yi-Chin Ho




Attorneys for Appellant,
Chinese Daily News, Inc.




labor practices.” Supp. Ans. Br. 7 (quoting Ellis, 657 F.3d at 970 (in turn quoting
Wal-Mart)). And understandably so: without “significant proof” that CDN
operated under a general labor policy, there would be no “glue holding the alleged
reasons for all [of CDN’s] decisions together.” Wal-Mart, 131 S. Ct. at 2552.
As with the other arguments made on rehearing, NELA’s true complaint is not
with the panel’s application of Wal-Mart, but rather with Wal-Mart itself. Indeed,
NELA’s assertions are of a piece with contentions it made—and lost—as an
amicus in Wal-Mart. See Brief of Amici Curiae National Employment Lawyers
Association, et al. at 23-28, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011)
(No. 10-277). For example, as an amicus in Wal-Mart, NELA argued that the
“significant proof” requirement advocated by Wal-Mart—and eventually adopted
by the Supreme Court—“violates any reasonable conception of a separation
between class and merits proof.” Id. at 23. NELA makes a nearly identical
argument here. See NELA Br. 2 (claiming that the panel’s “significant proof”
standard will “entangle courts unnecessarily in determining the merits of plaintiffs’
claims”).



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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitations of Circuit Rule 35-4

and Circuit Rule 40-1 because this brief contains 4175 words.

This brief complies with the typeface requirements of Fed R. App. P. 32(a)(5)

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

been prepared in proportionally spaced typeface using Microsoft Word 2010 in

Times New Roman 14-point font.



Dated: April 12, 2013

Respectfully submitted,










LATHAM & WATKINS LLP

By: s/ Yi-Chin Ho

Attorneys for Appellant,
Chinese Daily News, Inc.







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9th Circuit Case Number(s)

08-55483; 08-56740

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