In June, the U.S. Ninth Circuit Court of Appeals affirmed class certification of a wage and hour case over the defendants’ objection that individual damages calculations predominated. Vaquero v. Ashley Furniture Industries, Inc., ___ F.3d ___ (9th Cir. Jun. 8, 2016).
In Vaquero, the plaintiff alleged that the defendant paid its sales associates on commission but failed to pay for time the associates spent working on tasks unrelated to sales. Citing Wal-Mart v. Dukes, 564 U.S. 338 (2011), the Vaquero Court held that those allegations presented common questions:
[T]he complaint contains a “common contention” that easily “is capable of classwide resolution”: it is one type of injury allegedly inflicted by one actor in violation of one legal norm against a relatively small number of class members who all generally performed the same work. Dukes, 564 U.S. at 350. The district court permissibly concluded that Vaquero had pleaded a common injury capable of class-wide resolution. Slip op. at 7.
The court also reconfirmed that even in the post-Comcast world, under the Ninth Circuit’s own precedents, including Yokoyama, Leyva, Jimenez, and Pulaski & Middleman, variations in damages do not defeat class certification:
Our precedent is well settled on this point. In Yokoyama, we held that “damage calculations alone cannot defeat certification.” 594 F.3d at 1094. That is, the “amount of damages is invariably an individual question and does not defeat class action treatment.” Id. (quoting Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975)). We have repeatedly confirmed the Yokoyama holding that the need for individualized findings as to the amount of damages does not defeat class certification. See Leyva, 716 F.3d at 514 (holding that “the presence of individualized damages cannot, by itself, defeat class certification under Rule 23(b)(3)”); Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1167 (9th Cir. 2014) (holding that Leyva was the “controlling case,” and that individual damages calculations did not defeat class certification), cert. denied, 135 S. Ct. 2835 (2015). Indeed, “Yokoyama remains the law of this court, even after Comcast.” Pulaski & Middleman, 802 F.3d at 988.
Slip op. at 9. (Notably, on June 6, 2016, the U.S. Supreme Court denied the cert. petition in Pulaski & Middleman.)
The Vaquero opinion also addressed the recent U.S. Supreme Court decision in Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036 (2016). In Tyson Foods, the Supreme Court “declined to establish” a “‘broad rule against the use in class actions of what the parties call representative evidence.'” Vaquero, slip op. at 10 (quoting Tyson Foods, 136 S.Ct. at 1046). Instead, the Supreme Court “held that class certification was appropriate even though class members might have to prove liability and damages individually.” Id. (citing Tyson Foods, 136 S.Ct. at 1046) (emphasis in original). The opinion goes on to cite claim forms and special master proceedings as examples of case management tools that would not preclude class certification, and to note that Tyson Foods permits use of representative sampling. Id. at 11-12.