Ninth Circuit Panel Decertifies Class of Janitorial & Maintenance Workers: Impact Fund & Amici Urge Rehearing

Meredith Dixon, Law Fellow

A certified class of janitorial and maintenance workers survived two motions for decertification, successfully proved employer wrongdoing at summary judgment, and received significant damages in a jury bellwether trial before seeing their efforts undone by the Ninth Circuit.  The recent panel opinion in Bowerman v. Field Asset Services, Inc., 39 F.4th 652, 661-63 (9th Cir. 2022), reversed certification after over seven years of litigation as a certified class.  In doing so, the panel blatantly ignored the district judge’s repeated conclusion that the case was best managed as a class action.

On August 18, 2022, the Impact Fund with fellow amici Centro Legal de la Raza, Disability Rights California, Housing and Economic Rights Advocates, Law Foundation of Silicon Valley, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and Public Advocates, Inc., urged the Ninth Circuit to rehear the case en banc.  Amici believe that the panel misinterpreted settled Ninth Circuit case law and interfered with the ability of district courts to manage their own courtrooms and cases. 

Our brief argues that the panel decision authored by Judge Bennett and joined by Judges Bade and Fletcher contains multiple errors.

Our amicus brief argues that the panel decision authored by Judge Bennett and joined by Judges Bade and Fletcher contains multiple errors. First, the panel applied the wrong legal standard for establishing predominance under Rule 23(b)(3). The predominance analysis asks whether, in determining liability, “questions of law or fact common to the class members predominate over any questions affecting only individual members.” Fed. R. Civ. P. 23(b)(3). The district court had already concluded at summary judgment that no individualized inquiries were necessary to find that the defendant violated the law when it treated its vendors as employees, required them to work overtime and make regular business expenditures, and then did not pay them as the law required. Ignoring this ruling entirely, the panel held that questions of individualized damages—whether each individual class member had ever worked overtime or incurred expenses—would create individualized questions regarding liability. The Ninth Circuit has repeatedly held that individualized damage determinations do not defeat class certification, rendering the panel’s decision plainly wrong.

Second, the panel also ignored the district court’s multiple orders on class certification. The panel should have analyzed whether the district court’s finding of predominance was a permissible conclusion based on the record before it. Instead, the panel simply replaced the district court’s judgment with its own. The panel failed to cite to or discuss the findings of the district court, which had grappled with the facts, law, and requirements of Rule 23 at every step of the litigation, including at summary judgment and again after the bellwether trial on damages.

We and our fellow legal services amici are grateful to continue preserving class actions as a robust vehicle for workers, consumers, and other underserved communities to vindicate their rights and enable greater access to justice.