Still Duking it Out: Ninth Circuit Considers Impact of Dukes on Wage and Hour Class Actions

It has been more than a year since the Supreme Court’s landmark ruling in Wal-Mart Stores, Inc. v. Dukes, and its impact on wage and hour class actions remains hotly debated.  While plaintiffs’ attorneys have argued that the decision is limited substantively to discrimination cases and procedurally to Rule 23(b)(2) class actions, an increasing number of court rulings have endorsed  the application of Dukes’ commonality and due process holdings to wage and hour claims, at least in state law class actions.  The issues were the focal point last Tuesday when the Ninth Circuit heard oral argument in Wang v. Chinese Daily News.  The Ninth Circuit had previously affirmed the district court’s handling of the case––including its certification of a class under Rule 23(b)(2) and its judgment for the plaintiffs following a jury trial––but the Supreme Court vacated that ruling post-Dukes and sent the case back to the Court of Appeals for “further consideration in light of ... Dukes….”  The Ninth Circuit’s ruling this time around will almost certainly impact Dukes’ application in wage and hour class actions.

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