The trend toward reversing certification decisions on appeal is no longer limited to state courts in California. If you have a certification order up on appeal in the Ninth Circuit, you need to read Parra v. Bashas', Inc. (9th Cir. 2008) 536 F.3d 975. The Ninth Circuit has repeatedly affirmed commonality findings in employment cases (Dukes v. Wal-Mart, Inc. (9th Cir. 2007) 474 F.3d 1214), but the converse was not true. In fact, until this year, the Ninth Circuit had never reversed a district court finding that commonality was lacking in an employment suit. They did, however, in Parra, wherein the Ninth Circuit held that where the denial of certification was predicated on lack of commonality, and commonality is apparent from the record, District Court’s order denying class certification in a pay discrimination class action is an abuse of discretion and must be reversed.
[T]he Plaintiffs here establish commonality even though their individual factual situations differ because they all seek a common legal remedy for a common wrong. Plaintiffs here not only presented evidence of discriminatory pay scales, but also provided statistical and anecdotal evidence of discrimination by Bashas’, Inc. These pay scales were common for all Bashas’, Inc. employees and provided for different pay for similar jobs based only on the store where the employee worked. The proposed class here shares the alleged discriminatory pay scales of Bashas’, Inc. The class definition seeks to reach those Hispanic employees who suffered past discrimination under these pay scales.
The defendant argued that "the difficulty in redressing the harm and calculating the various pay disparities for the different employment positions precludes class certification." The Ninth Circuit disagreed. "We have previously held that classes with far more complex remedies can seek redress in the form of a class action. ... The claimed difficulties in the calculations of damages, as they affected the various class members, do not preclude class certification." (citing Staton v. Boeing Co. (9th Cir. 2003) 327 F.3d 938).
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