We’ve been watching the stuttering progress of Wang v. Chinese Daily News for some time.  The plaintiffs brought a wide range of claims, alleging denial of overtime, meal breaks, wage statements, and timely pay after termination, under the FLSA and California law.  The district court certified the class and a collective action, and the case was tried; in September 2010, the Ninth Circuit affirmed the certification decision.

The employer petitioned the Supreme Court for review, and in October 2011, the Court vacated and remanded the case for reconsideration in light of Wal-Mart v. Dukes.  The Ninth Circuit has now passed on that instruction, vacating the district court’s certification decision and remanding for further consideration in light of Dukes.

Unsurprisingly, the Ninth Circuit held that the case could no longer proceed under Rule 23(b)(2), directing the district court to consider whether the case could instead be certified under Rule 23(b)(3), which requires that common issues predominate over individual issues, and whether Rule 23(a)(2)’s commonality requirement is satisfied in light of Dukes.

All in all, the Ninth Circuit’s decision is not surprising, nor all that momentous, as it merely passes on the Supreme Court’s instructions to the district court.  The interesting decision will come after the district court issues a new opinion and the Ninth Circuit, presumably, gets the case for a third time.  Still, it’s worth keeping tabs on, because Wang is one of the more prominent cases expressly applying Dukes to wage and hour matters — undermining the drumbeat from plaintiffs’ counsel that Dukes has no application to such cases.  The Ninth Circuit already seems to have rejected that view, at least implicitly.

Similar issues are still before the Supreme Court in Ross v. RBS Citizens, N.A., which Proskauer is defending.  There the Seventh Circuit declined to apply Dukes in a Rule 23(b)(3) wage and hour case.  The petition was conferenced in October and we’re still waiting for a decision.

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Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.