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Wang v. Chinese Daily News, Inc.

United States Court of Appeals, Ninth Circuit

September 3, 2013

Lynne WANG; Yu Fang Ines Kai; Hui Jung Pao, on behalf of themselves and all others similarly situated; Lien Yi Jung; Yu Fang Kai; Chang Chingfang; Jeffrey Sun; Shieh-Sheng Wei; Yun Min Pao; Hui Jung Lee; Chengyang Yan; Shiang Huang; Chih-Ming Sheu; Minh Vi-Huynh; Jenny Liu Hung, Plaintiffs-Appellees,
v.
CHINESE DAILY NEWS, INC., Defendant-Appellant. Lynne Wang; Yu Fang Ines Kai; Hui Jung Pao, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees,
v.
Chinese Daily News, Inc., Defendant-Appellant, and Lien Yi Jung; Yu Fang Kai; Chingfang Chang; Shieh-Sheng Wei; Yun Min Pao; Hui Jung Lee; Chengyang Yan; Shiang L. Huang; Chih-Ming Sheu; Minh Vi-Huynh; Jenny Liu Hung; Jeffrey Sun, Plaintiffs.

Argued and Submitted July 31, 2012.

Page 539

[Copyrighted Material Omitted]

Page 540

[Copyrighted Material Omitted]

Page 541

Della Barnett, Berkeley, CA; Cordelia Dai and Randy Renick (argued), Hadsell Stormer Richardson & Renick, LLP, Pasadena, CA, for Appellees.

Michael M. Berger (argued), Benjamin G. Shatz, Yi-Chin Ho, and Andrew L. Satenberg, Manatt, Phelps & Phillips, Los Angeles, CA, for Appellant.

Appeal from the United States District Court for the Central District of California, Consuelo B. Marshall, Senior District Judge, Presiding. D.C. No. 2:04-cv-01498-CBM-JWJ.

Before: STEPHEN S. TROTT and WILLIAM A. FLETCHER, Circuit Judges, and CHARLES R. BREYER, District Judge.[*]

ORDER

This court's opinion filed March 4, 2013, and reported at 709 F.3d 829 (9th Cir.2013), is withdrawn, and is replaced by the attached Opinion.

With the filing of the new opinion, the panel has voted unanimously to deny the petition for rehearing. Judge Fletcher has voted to deny the petition for rehearing en banc, and Judges Trott and Breyer so recommend.

The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

OPINION

W. FLETCHER, Circuit Judge:

Named plaintiffs filed a class action suit against defendant-appellant Chinese Daily News, Inc. (" CDN" ), alleging violations of the federal Fair Labor Standards Act (" FLSA" ), of California's Unfair Business Practices Law, and of the California Labor Code. The district court certified the FLSA claim as a collective action and certified the state-law claims as a class action. After a sixteen-day jury trial and a three-day bench trial, the district court entered judgment in favor of plaintiffs. On September 27, 2010, we affirmed the district court. On October 3, 2011, the United States Supreme Court vacated and remanded for reconsideration in light of its decision in Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). We now reverse the district court's certification of the plaintiff class under Federal Rule of Civil Procedure 23(b)(2), and we remand for the district court to reconsider its analysis under Rules 23(a) and 23(b)(3).

I. Background

On March 5, 2004, Lynne Wang, Yu Fang Ines Kai, and Hui Jung Pao filed suit against CDN on behalf of current, former, and future CDN employees based in CDN's San Francisco and Monterey Park (Los Angeles) locations, claiming violations of the FLSA, 29 U.S.C. § 206 et seq., California's Unfair Competition Law, Cal. Bus. & Prof.Code § 17200 et seq., and California's Labor Code. Plaintiffs alleged that CDN employees were made to work more than eight hours per day and more than forty hours per week. They ...


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