Bacilio Ruiz Torres, et al v. Mercer Canyons Inc.

Filing

FILED OPINION (A. WALLACE TASHIMA, MILAN D. SMITH, JR. and LESLIE E. KOBAYASHI) AFFIRMED. Judge: MDS Authoring, FILED AND ENTERED JUDGMENT. [10107579]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BACILIO RUIZ TORRES; JOSE
AMADOR, on behalf of
themselves and all other
similarly situated persons,
Plaintiffs-Appellees,

No. 15-35615
D.C. No.
1:14-cv-03032-SAB

v.

OPINION

MERCER CANYONS INC.,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
Stanley Allen Bastian, District Judge, Presiding
Argued and Submitted July 8, 2016
Seattle, Washington
Filed August 31, 2016
Before: A. WALLACE TASHIMA, and MILAN D.
SMITH, JR., Circuit Judges, and LESLIE E.
KOBAYASHI,* District Judge.
Opinion by Judge Milan D. Smith, Jr.
*

The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.

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RUIZ TORRES V. MERCER CANYONS
SUMMARY**

Labor Law / Class Certification
The panel affirmed the district court’s order certifying a
plaintiff class of domestic farm workers who alleged
violations of the Agricultural Workers’ Protection Act and
Washington law.
The plaintiffs alleged that the defendant farm employer
failed to inform them of the availability of agricultural work
that was performed by temporary foreign workers under the
federal H-2A visa program, and failed to pay domestic
workers the same wage as the foreign workers.
The panel affirmed the district court’s certification of an
Inaccurate Information class and an Equal Pay subclass. The
panel held that as to the Inaccurate Information class, the
district court did not abuse its discretion in finding common
questions under Fed. R. Civ. P. 23(a)(2) regarding a duty to
disclose information pertaining to H-2A jobs, nor in finding
that common issues predominated under Rule 23(b)(3). The
panel also affirmed the district court’s findings of
commonality and typicality with regard to the Equal Pay
subclass, as well as the district court’s finding of typicality
under Rule 23(a)(4).

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Eric D. Miller (argued), Michael T. Reynvaan, Frederick B.
Rivera, and William B. Stafford, Perkins Coie LLP, Seattle,
Washington, for Defendant-Appellant.
Lori Jordan Isley (argued), Joachim Morrison, and David
Solis, Columbia Legal Services, Yakima, Washington; Adam
J. Berger and Martin S. Garfinkel, Schroeter Goldmark &
Bender, Seattle, Washington; for Plaintiffs-Appellees.

OPINION
M. SMITH, Circuit Judge:
Defendant Mercer Canyons, Inc. (Mercer) appeals the
district court’s order certifying a class of domestic farm
workers, represented by Bacilio Ruiz Torres and Jose
Amador (collectively, Plaintiffs). Mercer operates a fruit and
vegetable farm near Prosser, Washington. In 2013, Mercer
participated in the federal H-2A program, which permitted
Mercer to hire foreign workers to fill temporary agricultural
positions at an hourly wage of $12.
Plaintiffs brought a putative class action, claiming that
Mercer had a common policy or practice of failing to inform
domestic farm workers of the availability of H-2A work that
paid $12 per hour, in violation of the Agricultural Workers’
Protection Act (AWPA), 29 U.S.C. §§ 1831(e) and 1821(f),
and the Washington Consumer Protection Act (CPA), Wash.
Rev. Code § 19.86.020. In addition, Plaintiffs alleged that
Mercer failed to pay its own domestic workers $12 per hour

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when they carried out the same tasks as foreign H-2A
workers, in violation of AWPA and state wage laws.
The district court certified an Inaccurate Information class
and an Equal Pay subclass, corresponding to Plaintiffs’
claims. We affirm the district court’s class certification order.
FACTS AND PRIOR PROCEEDINGS
A. Background
Mercer applied for, and was granted, permission to hire
temporary foreign workers under the federal H-2A program
in order to supplement its workforce for the 2013 season. In
February 2013, the Department of Labor issued Mercer a
Clearance Order, which described the terms and conditions of
Mercer’s participation in the H-2A program. Among other
things, the Clearance Order allowed Mercer to employ up to
44 foreign workers for temporary vineyard work from March
24 to September 1, 2013. It also listed the specific types of
tasks the H-2A workers would perform, along with the hourly
wage they would receive ($12).
One of the conditions of its involvement in the H-2A
program obligated Mercer to recruit domestic labor to
minimize the number of foreign workers filling the 44
available positions. See Alfred L. Snapp & Son, Inc. v. Puerto
Rico, ex. rel. Barez, 458 U.S. 592, 596 (1982). Specifically,
Mercer was required to engage in the “positive recruitment”
of domestic workers from February 4 to March 21, 2013
through routine recruitment practices, such as telling former
employees about H-2A jobs and “solicit[ing] their return.”
20 C.F.R. § 655.135(c), 655.150–154, 655.158. Furthermore,
Mercer was required to hire any qualified domestic worker

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who applied for H-2A work, a requirement that continued
through the first half of the contract period, in this case, until
June 15, 2013. See 20 C.F.R. § 655.135(a) & (d).
In 2013, Mercer maintained a call-back list to keep track
of workers who walked in seeking employment. The list,
entitled an “Employment Information Form,” allowed
prospective applicants to provide their names, phone
numbers, whether they had a driver’s license, and relevant
skills or experience so Mercer could “contact [them] for
future employment opportunities.” During the 45-day positive
recruitment period, almost 200 people entered their
information on this list.
Ultimately, Mercer hired only 22 domestic workers for
the H-2A program. Some workers were hired through an
organization called WorkSource, which provided job
referrals. Of the remaining 22 positions available under the
H-2A program, Mercer hired only 19 foreign workers. Those
19 workers arrived on May 2, 2013. Their H-2A contract
originally ran until September 1, 2013, but was extended two
weeks, until September 15, 2013.
During the course of the H-2A program, Mercer realized
that additional labor was needed because the H-2A employees
were not completing the work fast enough. As a result,
Mercer used its own domestic workers to perform some H-2A
tasks, such as grapevine tying. It also sought the services of
a labor contractor, M&L, which brought in 44 more domestic
workers to help with H-2A tasks. Mercer was required to
provide a copy of the terms of the work contract or Clearance
Order to any worker who performed qualifying H-2A work
during the contract period. See 20 C.F.R. §§ 655.122(q);
655.103(b) (defining “corresponding employment”). In

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addition, all H-2A workers, including any employees
performing qualifying H-2A tasks, were entitled to the same
wages of $12 per hour. See 20 C.F.R. §655.122(a).
B. Ruiz Torres and Amador
Ruiz Torres and Amador are domestic farm workers. Ruiz
Torres was a vineyard worker at Mercer in 2012. Ruiz Torres
later returned to work at Mercer from January 8 to September
6, 2013. During this period, Ruiz Torres claims to have
performed some qualifying H-2A work in Mercer’s
vineyards. He alleges that he was sometimes paid $12 an hour
for this work, and sometimes not. Mercer did not provide
Ruiz Torres with either a copy of the Clearance Order or a
written work contract. Neither did it inform him about
available H-2A work paying $12 per hour.
On March 19, 2013, during the positive recruitment
period, Amador walked into Mercer’s front office with his
wife and father-in-law. All three were looking for seasonal
farmwork in Mercer’s vineyards. Mercer did not tell Amador
about the availability of H-2A work for $12 per hour. Instead,
the front-office staff informed him that “the chances of
getting jobs were really low until the people from . . . Mexico
arrived, and they would have to see how many spots were
open.” Ultimately, Amador decided that he would not sign
the employment call-back list, although his wife and fatherin-law did. Mercer did not contact any of them about
employment opportunities.
C. Procedural History
Plaintiffs brought a putative class action in the Eastern
District of Washington, alleging that Mercer failed “to inform

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local farm workers about the availability of $12 an hour
vineyard labor jobs.” According to Plaintiffs, Mercer’s failure
to disclose violated AWPA, 29 U.S.C. §§ 1831(e) and
1821(f), and the CPA, Wash. Rev. Code § 19.86.020. In
addition, Plaintiffs claimed that Mercer failed to pay its
domestic workers $12 per hour for qualifying H-2A work, in
violation of AWPA, 29 U.S.C. § 1832(a), and 1822(a), and
Washington wage law, Wash. Rev. Code § 49.52.050.
Mercer moved for summary judgment on Plaintiffs’
individual claims under AWPA, the CPA, and Washington
state wage laws. The district court denied summary judgment.
It further denied Mercer’s motion for reconsideration, and
Mercer’s request to certify the summary judgment order for
interlocutory appeal.
Subsequently, Plaintiffs moved to certify an Inaccurate
Information class and an Equal Pay subclass. The Inaccurate
Information class, numbering approximately 600 individuals,
includes the following members:
All domestic migrant and seasonal farm
workers who: 1) were employed as vineyard
workers by Mercer Canyons in 2012;
2) sought employment at Mercer Canyons in
2013 between February 4 and June 15, 2013;
or 3) performed vineyard work at Mercer
Canyons between March 24 and September
15, 2013, and were not referred by
WorkSource.
Within this class, Plaintiffs identified an Equal Pay subclass,
see Fed. R. Civ. P. 23(c)(5), of approximately 200

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individuals. This subclass is comprised of the following
members:
All domestic and seasonal farm workers who
performed vineyard work between March 24
and September 15, 2013 for Mercer Canyons,
were paid less than $12 per hour, and were not
referred by WorkSource.
The district court granted Plaintiff’s motion for class
certification, and appointed Ruiz Torres and Amador as class
representatives. This timely appeal followed.
STANDARD OF REVIEW AND JURISDICTION
We have jurisdiction pursuant to 28 U.S.C. § 1292(e). We
review the district court’s class certification order for abuse
of discretion and the findings of fact upon which it relied for
clear error. Parsons v. Ryan, 754 F.3d 657, 673 (9th Cir.
2014). “An abuse of discretion occurs when the district court
. . . relies upon an improper factor, omits consideration of a
factor entitled to considerable weight, or mulls the correct
mix of factors but makes a clear error of judgment in assaying
them.” Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1018
(9th Cir. 2011) (quoting Wolin v. Jaguar Land Rover N. Am.,
LLC, 617 F.3d 1168, 1171 (9th Cir. 2010)). When reviewing
an order granting class certification, “we accord the district
court noticeably more deference than when we review a
denial.” Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 956
(9th Cir. 2013) (quoting Wolin, 617 F.3d at 1171).

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ANALYSIS
Rule 23 sets forth a series of pre-requisites to class
certification, including the existence of (1) “questions of law
or fact common to the class,” and (2) “claims or defenses of
the representative parties . . . typical of the claims of defenses
of the class.” Fed. R. Civ. P. 23(a)(2), (a)(4). Rule 23(b)(3),
applicable here, additionally requires that common questions
of law or fact found under Rule 23(a)(2) “predominate over
any questions affecting only individual members, and that a
class action is superior to other available methods for fairly
and efficiently adjudicating the controversy.”
On appeal, Mercer raises numerous challenges to the
district court’s certification decision. In particular, it contends
that the district court found common issues where there were
none. Next, it contends that the district court abused its
discretion by finding that these common issues predominated.
Finally, it challenges the district court’s finding that Ruiz
Torres and Amador’s claims and defenses were typical of
those of the class. We address each of these arguments in
turn.
I. Inaccurate Information class
A. Rule 23(a)(2) commonality
“What matters to class certification . . . is not the raising
of common ‘questions’—even in droves—but, rather the
capacity of a classwide proceeding to generate common
answers apt to drive the resolution of the litigation.” WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). To
satisfy Rule 23(a)(2) commonality, “‘[e]ven a single
[common] question’ will do.” Id. at 359 (quoting Richard A.

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Nagareda, Class Certification in the Age of Aggregate Proof,
84 N.Y.U. L. Rev. 97, 132 (2009)).
In finding commonality within the Inaccurate Information
class, the district court identified two related common
questions it believed would drive the resolution of the
litigation:
(1) “Whether Mercer Canyons had a policy or
practice to withhold information pertaining to
H-2A jobs from job-seekers and current
employees”
(2) “Whether such withholding constituted
providing false or misleading information
concerning the existence of, or terms and
conditions of, jobs . . . under the AWPA and
CPA.”
Mercer argues that the district court “committed a per se
abuse of discretion by misinterpreting the substantive law
governing plaintiffs’ claims, which led it to divine common
issues.” This is essentially the same argument made by
Mercer in its motion for summary judgment, wherein it
asserted that AWPA imposes no such disclosure duty
concerning H-2A work. To resolve this question at the class
certification stage would provide Mercer the sort of
interlocutory review of the summary judgment order that the
district court had declined to certify.
Instead, we consider merits questions at the class
certification stage only to the extent they are relevant to
whether Rule 23 requirements have been met. Stockwell v.
City of S.F., 749 F.3d 1107, 1113 (9th Cir. 2014). With this

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principle in mind, we conclude that the district court did not
abuse its discretion by identifying the existence of a legal
issue common to the class. The district court found that one
reading of the relevant statutes supports the existence of a
disclosure duty, and that an answer to this threshold question
would drive the resolution of the litigation. Without such a
duty, the claims of the class as a whole would fail. With it,
Plaintiffs would clear a significant legal hurdle.
In particular, the district court focused on Sections
1831(e) and 1821(f) of AWPA. Section 1831 relates to
seasonal agricultural workers, while Section 1821 concerns
migrant agricultural workers. These two provisions exhibit
significant parallels, and the language of § 1831(e) is nearly
identical to that of § 1821(f).1 Section 1831(e) states:
No farm labor contractor, agricultural
employer, or agricultural association shall
knowingly provide false or misleading
information to any seasonal agricultural
worker concerning the terms, conditions, or
existence of agricultural employment required
to be disclosed by subsection (a), (b), or (c) of
this section.2

1

The text of Section 1821(f) differs from Section 1831(e) in two
respects, neither of which is material here. First, it refers to subsections
“(a), (b), (c), or (d)” of that provision because Section 1821 includes an
additional subsection concerning disclosure requirements for housing
providers. In addition, it substitutes the word “seasonal agricultural
worker” for “migrant agricultural worker.”
2

Subsections (a), (b), and (c) of § 1831 deal with written disclosure
requirements, posting requirements, and recording keeping requirements
imposed on employers of agricultural workers.

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In construing the meaning of AWPA’s reference to “false
or misleading information,” the district court considered a
separate, but related, set of regulations concerning an
employer’s duties under the H-2A program, see, e.g.,
20 C.F.R. §§ 655.122, 655.135, 655.153, and determined that
AWPA’s prohibition on the provision of “false or misleading
information,” 29 U.S.C. §§ 1831(e), 1821(f), could include a
material omission. For the purposes of class certification, we
need not presently decide whether Plaintiffs’ construction of
Sections 1831(e) and 1821(f) of AWPA is correct, only that
it raises a common legal question.
Mercer counters that since H-2A positions are not
specifically referenced in AWPA, such positions are not
“required to be disclosed,” and therefore fall outside the
scope of the statute. That argument is susceptible of classwide resolution. While we do not here decide the common
question, we agree with the district court that Mercer’s failure
to disclose “information pertaining to H-2A jobs,” such as the
existence or pay-rate of such work, may constitute “false or
misleading” information, and therefore poses a common
question of liability.
Moreover, the district court identified a related question
of fact. Plaintiffs presented evidence that Mercer had a
“common policy or practice of withholding information
pertaining to H-2A jobs from job-seekers and current
employees.” The answer to this question, too, will help to
drive the resolution of the litigation for all class members. See
Jiminez v. Allstate Ins. Co., 765 F.3d 1161, 1165–66 (9th Cir.
2014) (holding that “[p]roving at trial whether such informal
or unofficial policies existed” would drive the resolution of
class claims).

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B. Rule 23(b)(3) predominance
The Rule 23(b)(3) predominance inquiry asks the court to
make a global determination of whether common questions
prevail over individualized ones. For purposes of this
analysis, “[a]n individual question is one ‘where members of
a proposed class will need to present evidence that varies
from member to member,’ while a common question is one
where ‘the same evidence will suffice for each member to
make a prima facie showing [or] the issue is susceptible to
generalized, class-wide proof.’” Tyson Foods v. Bouaphakeo,
136 S. Ct. 1036, 1045 (2016) (quoting 2 W. Rubenstein,
Newberg on Class Actions § 4:50, 196–97 (5th ed. 2012)).
Predominance is not, however, a matter of nose-counting.
Jiminez, 765 F.3d at 1165. Rather, more important questions
apt to drive the resolution of the litigation are given more
weight in the predominance analysis over individualized
questions which are of considerably less significance to the
claims of the class. It is an assessment of “whether proposed
classes are sufficiently cohesive to warrant adjudication by
representation.” Vinole v. Countrywide Home Loans, Inc.,
571 F.3d 935, 944 (9th Cir. 2009) (quotations omitted).
1. Common proof of injury under the CPA
Mercer’s primary challenge to predominance is that the
district court erred concerning the elements of a CPA claim
under Washington law. Specifically, Mercer claims that “[the
district court] failed to appreciate that . . . injury is an element
of [CPA] liability, not just a component of damages.” Here,
the district court did not commit such a clear legal misstep.
Rather, it acknowledged that a CPA claim requires the
following five elements:

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(1) an unfair or deceptive act or practice;
(2) which occurs in trade or commerce;
(3) that impacts the public interest;
(4) which causes injury to the plaintiff in his
or her business or property; and
(5) which injury is causally linked to the
unfair or deceptive act.

See Wash. State Physicians Ins. Exch. & Ass’n v. Fisons
Corp., 858 P.2d 1054, 1061 (Wash. 1993) (en banc).
The district court then weighed whether common issues
predominate within the Inaccurate Information Class. First,
it noted that Plaintiffs could satisfy at least the first three CPA
elements by “proving the common questions.” It then
remarked that any individualized questions raised by Mercer
“nearly all go to the issue of damages rather than liability.”
Thus, it concluded that predominance was not defeated,
notwithstanding the existence of some individualized
questions.
Because this reasoning does not reveal an error of law
concerning the kinds of factors to be weighed, Mercer must
rely on the claim that the district court “mull[ed] the correct
mix of factors but [made] a clear error of judgment in
assaying them,” Stearns, 655 F.3d at 1018 (quotations
omitted). But the district court recognized that important
questions, regarding the existence of a common policy of
non-disclosure, and whether such non-disclosure constituted
false and misleading information, would “drive the

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resolution” of the AWPA and CPA claims. Wal-Mart,
654 U.S. at 350. Considered in light of these core claims, the
district court did not abuse its discretion by concluding that
the existence of some individualized issues did not
overwhelm an overall finding of predominance.
2. “Informational” injury
Moreover, it is not clear that Plaintiffs’ showing of
“injury” under the CPA would necessarily be wholly
individualized. Plaintiffs characterize their injury as an
informational one. This informational injury, they claim,
stems from a common policy of non-disclosure by Mercer. As
a result of this non-disclosure, class members were deprived
of the opportunity to pursue H-2A work at $12 per hour.
The CPA is a remedial statute that defines “injury”
liberally to include when “the plaintiff’s property interest or
money is diminished . . . even if the expenses caused by the
statutory violation are minimal.” Panag v. Farmers Ins. Co.
of Wash., 204 P.3d 885, 892 (Wash. 2009) (en banc)
(quotations omitted). “[T]he injury involved need not be
great, or even quantifiable.” Ambach v. French, 216 P.3d 405,
407 (Wash. 2009) (en banc). Rather, the limitation that a
defendant’s conduct cause injury in “business or property”
has only been deployed to exclude suits for personal injury
and emotional distress. See Wash. State Physicians Ins. Exch.,
858 P.2d at 1063.
Under Plaintiffs’ theory, an individual may experience
“injury” under the CPA if, for example, Mercer’s omission
causes her to expend time or resources looking for other jobs.
In this manner, informational injury need not result in direct
pecuniary loss, although it may do so. See Panag, 204 P.3d at

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900; Handlin v. On-Site Manager, Inc., 351 P.3d 226, 230
(Wash Ct. App. 2015) (holding that “consumer disclosures
mandated by the [state Fair Credit Reporting Act] are a form
of property,” and that “sufficient injury is therefore pleaded
if a plaintiff alleges that she was deprived of the use of her
property for even a short amount of time”). Moreover, a
reasonable fact finder could conclude that, but for Mercer’s
alleged policy of non-disclosure, class members would have
had the opportunity to seek H-2A work at the $12 hourly
rate.3 See Schnall v. AT&T Wireless Servs., Inc., 259 P.3d
129, 137 (Wash. 2011) (adopting a “proximate cause
standard” for causation under the CPA).
In contrast, Mercer interprets the nature of the alleged
“injury” more narrowly as being deprived of an H-2A job.
Mercer reasons that to show injury, one must demonstrate
eligibility for an H-2A job. Such a reading relies on an unduly
narrow conception of “injury.” Under the CPA, an injury
resulting from non-disclosure may include being denied the
opportunity to apply for an H-2A job. For similar reasons,
Plaintiffs’ theory of liability does not depend on a class
member’s immigration status.4 Under the informational injury
theory, a class member’s status is irrelevant at the liability
phase, so long as she was denied the opportunity to apply for
a job as a result of Mercer’s policy of omission. The separate
question of actual damages will hinge on the amount of harm
caused by class members’ being deprived of the opportunity

3
WorkSource referrals are excluded from the class definition, as the
referred individuals were presumably informed about available H-2A jobs.
4

Mercer initially sought discovery concerning the immigration status of
the lead plaintiffs. The district court denied Mercer’s motion to compel
and issued a protective order.

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to pursue those jobs. The presence of individualized damages
calculations, however, does not defeat predominance. Leyva
v. Medline Indus., Inc., 716 F.3d 510, 513–14 (9th Cir. 2013).
3. The presence of “non-injured” class members
Even crediting Plaintiffs’ theory of injury, Mercer falls
back on the argument that “a class cannot be certified if it
contains both injured and non-injured parties.” We find this
argument unpersuasive for several reasons.
First, Mercer’s statement is inaccurate, as even a welldefined class may inevitably contain some individuals who
have suffered no harm as a result of a defendant’s unlawful
conduct. See Newberg on Class Actions § 2:3; Messner v.
Northshore Univ. HealthSystem, 669 F.3d 802, 823 (7th Cir.
2012) (“[S]ome class members’ claims will fail on the merits
if and when damages are decided, a fact generally irrelevant
to the district court’s decision on class certification.”).
Mercer’s claim that the presence of certain “non-injured”
individuals within the Inaccurate Information class defeats
predominance is also mistaken. Empirically, Mercer contends
that the class is too broad because it includes a subset of
people exposed to—yet ultimately not harmed by—a policy
of non-disclosure. This merely highlights the possibility that
an injurious course of conduct may sometimes fail to cause
injury to certain class members. However, it fails to reveal a
flaw that may defeat predominance, such as the existence of
large numbers of class members who were never exposed to
the challenged conduct to begin with. See Mazza v. Am.
Honda Motor Co., 666 F.3d 581, 596 (9th Cir. 2012); see also
Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1068–69
(9th Cir. 2014). Mercer’s remaining challenges concern the

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overbreadth of the class definition. Yet the class definition is
reasonably co-extensive with Plaintiffs’ chosen theory of
liability. Ultimately, Mercer’s argument reflects a merits
dispute about the scope of that liability, and is not appropriate
for resolution at the class certification stage of this
proceeding.
a. Empirical overbreadth
Mercer contends that, even if a common policy or practice
of non-disclosure existed, it did not result in injury to certain
class members. That is not because they were not subject to
the challenged practice in the first place. Rather, it is
Mercer’s contention that those class members, even had
Mercer provided them with the omitted H-2A job
information, would not have been any better off because they
were not looking for work at the time, would not have been
ultimately hired by Mercer, or for other individualized
reasons. Mercer’s examples each highlight the potential for
unlawful conduct in the absence of harm.5 We conclude that
such fortuitous non-injury to a subset of class members does
not necessarily defeat certification of the entire class,
particularly as the district court is well situated to winnow out
those non-injured members at the damages phase of the
litigation, or to refine the class definition. See Newberg on
Class Actions § 2:3.
This stands in contrast to the situation in Mazza, where
many class members were not injured by virtue of the fact

5

In only two cases did Mercer identify putative class members, former
employees Sandra Blanco and her sister Genoveva Guzman, who were
affirmatively contacted about available work by Mercer. Mercer does not
indicate, however, that the advertised work concerned the H-2A positions.

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that they “were never exposed to the allegedly misleading
advertisements.” 666 F.3d at 597. In Mazza, the defendant
subjected only a small segment of an expansive class of car
buyers to misleading material as part of a “very limited”
advertising campaign. Id. at 595. Under those circumstances,
we found that Rule 23 predominance was defeated, since “it
was unreasonable to assume that all class members
purchasing cars had seen the potentially misleading ads.” Id.
at 596. That is not the situation here, where the existence of
a common policy or practice, if proven, is evidence that the
class as a whole was exposed to purportedly misleading
omissions about H-2A jobs.6
Mercer counters that whether the omission was
misleading, and therefore injurious, will “turn on the minutia
of individual interactions and circumstances” between Mercer
and class members. However, Mercer has not shown that the
class as a whole was exposed to “disparate information from
various representatives of the defendant,” Stearns, 655 F.3d
at 1020, creating materially different impressions about the
availability of H-2A work. Rather, the conduct at issue is
reasonably uniform as the crux of Plaintiffs’ legal challenge
6
Mazza quotes a Second Circuit decision stating that “no class may be
certified that contains members lacking Article III standing.” Mazza,
666 F.3d at 594 (quoting Denney v. Deutsche Bank AG, 443 F.3d 253, 264
(2d Cir. 2006)). However, that statement taken in context signifies only
that it must be possible that class members have suffered injury, not that
they did suffer injury, or that they must prove such injury at the
certification phase. See Denney, 433 F.3d at 263–64 (“We do not require
that each member of a class submit evidence of personal standing . . . .
[Rather], the class must . . . be defined in such a way that anyone within
it would have standing.”); see also Stearns, 655 F.3d at 1021 (“At least
one named plaintiff must satisfy the actual injury component of standing
in order to seek relief on behalf of himself or the class.”); Bates v. United
Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc).

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involves a common failure to disclose information, and not
merely a disparate series of affirmative statements.
Accordingly, the district court did not abuse its discretion in
concluding that whether a class-wide policy or practice of
non-disclosure existed was a common question of fact that
“predominates over the exact interaction between individual
job-seekers and Mercer.”
In sum, pursuant to Rule 23, “the court’s task at
certification is to ensure that the class is not ‘defined so
broadly as to include a great number of members who for
some reason could not have been harmed by the defendant’s
allegedly unlawful conduct.’” Newberg on Class Actions
§ 2:3 (quoting Messner, 669 F.3d at 824). We are satisfied
that condition is met here.
b. Definitional overbreadth
Mercer’s challenge also stems from an underlying
concern that the class was drawn too broadly, perhaps in the
interest of inclusion of all individuals who had potential
damages claims under AWPA and the CPA. This potential
flaw, however, is not fatal to certification. Mercer’s dispute
merely reflects the existence of contrasting litigation
positions on the proper scope of liability, and a merits issue
that the district court will later resolve concerning the breadth
of Mercer’s disclosure duty over time.
For now, Plaintiffs need not downsize their legal theory
that Mercer had a disclosure duty toward all members of the
class, in favor of a duty to target only those most likely to be

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interested.7 What is critical is that Plaintiffs’ theory of
informational injury, through Mercer’s failure to disclose H2A job information to those it typically recruited or used for
H-2A work, actually maps onto the membership of the class.
In other words, class membership must fit the theory of legal
liability.
We conclude that the composition of the Inaccurate
Information class meets this requirement, given the
underlying legal framework upon which Plaintiffs rely.
Notably, none of the relevant disclosure regulations varies on
its face according to the existing knowledge or interest of the
worker. For example, an employer of seasonal or migrant
workers must contact former domestic workers “employed by
the employer in the occupation at the place of employment
during the previous year and solicit their return.” 20 C.F.R.
§ 655.153. This regulation corresponds to the portion of the
class definition that includes those “employed as vineyard
workers by Mercer Canyons in 2012.”
In addition, the class definition includes those seasonal
and migrant workers who “sought employment at Mercer
Canyons in 2013 between February 4 and June 15, 2013.”8

7

Indeed, defining the class to include only those individuals who were
“injured” by non-disclosure threatens to create a “fail safe” class, one that
is defined so narrowly as to “preclude[] membership unless the liability of
the defendant is established.” Kamar v. RadioShack Corp., 375 F. App’x
734, 736 (9th Cir. 2010). As a result, we require no more than a
reasonably close fit between the class definition and the chosen theory of
liability.
8

Mercer also challenges the accuracy of the employment call-back list,
which Plaintiffs used to identify those class members who “sought
employment.” It notes that the list contains some Mercer customers who

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This part of the definition maps onto Mercer’s positive
recruitment and hiring obligations during this interval. See
20 C.F.R. § 655.154 (requiring an employer to engage in
“method(s) of “positive recruitment” “no less than the normal
recruitment efforts of non-H-2A agricultural employers”);
20 C.F.R. § 655.135(a) & (d) (requiring an employer to hire
all qualified domestic applicants up through the first half of
the contract period). As a result, this definition tracks the
group of job-seekers who were subject to, and therefore could
be harmed by, Mercer’s allegedly unlawful failure to disclose.
The class definition also includes those domestic workers
who “performed vineyard work at Mercer Canyons between
March 24 and September 15, 2013.” Because H-2A work
encompassed many vineyard tasks such as vine-tying,
Plaintiffs contend that those who performed vineyard work
during the contract period were entitled to H-2A job
information pursuant to the regulations. See 20 C.F.R.
§ 655.122(q) (requiring an employer to disclose the terms of
the work contract to workers engaged in qualifying H-2A
work during the contract period); § 655.103(b) (defining
“corresponding employment”).
The composition of the Inaccurate Information class, as
reflected in these definitions, reveals a reasonably close fit
with Plaintiffs’ theory of liability, such that Rule 23(b)(3)
predominance is maintained. As a result, the membership of
the class is largely co-extensive with those who could have

erroneously signed it. However, this is an evidentiary quibble in the guise
of a challenge to the class definition. It does not bear on the salient
question of whether those workers who actually “sought employment,” as
the class definition provides, were unlawfully denied information on H-2A
jobs.

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been injured by Mercer’s conduct. As the case progresses, the
district court may elect to separate the class into subclasses,
or adjust the scope of the class definition, if it later finds that
the inclusiveness of the class exceeds the limits of Mercer’s
legal liability under AWPA or the CPA.
Finally, Mercer identifies one minor source of overexpansiveness. Specifically, it claims that some individuals
who “sought employment” at Mercer and might ostensibly
fall within the class definition, were actually seeking work as
tractor drivers, and thus presented unlikely candidates for H2A vineyard work.9 If necessary, however, the district court
may construe the class definition more narrowly, or otherwise
conform its interpretation of the class definition with the
prevailing theory of liability. See Messner, 669 F.3d at 826
n.15 (“In circumstances such as these, involving minor
overbreadth problems that do not call into question the
validity of the class as a whole, the better course is not to
deny class certification entirely but to amend the class
definition as needed to correct for the overbreadth.”).
II. The Equal Pay subclass
The district court certified an Equal Pay subclass within
the Inaccurate Information class, consisting of those workers
who “performed vineyard work between March 24 and
September 15, 2013, were paid less than $12 per hour, and
were not referred by WorkSource.” With respect to this
subclass, the district court identified a common question of
“whether Mercer Canyon had a practice to consistently fail to

9

Mercer’s argument relies on the assumption that those job-seekers who
listed “truck driving” as one of their skills on the employment call-back
list were not also interested in pursuing H-2A work.

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pay employees $12 [an hour] for corresponding Clearance
Order work.” It found that predominance existed because
Plaintiffs planned to prove liability for underpayment in the
aggregate, such that there was a common question of liability
amenable to class-wide proof.
A. Rule 23(a)(2) commonality
Plaintiffs proposed to demonstrate class-wide liability by
offering proof of underpayment in the aggregate.10 Mercer
protests that the common proof that Plaintiffs rely upon,
company accounting and payroll records, is inaccurate.
Rather, Mercer asserts that the records are simply accounting
cost codes for it to track work in the aggregate, and do not
show the actual rate at which individual employees were paid.
Instead, Mercer claims that it used timecards, which reflected
when an employee performed H-2A tasks. This information
was then manually entered into Mercer’s payroll system, so
that employees were allegedly paid $12 per hour for
performing corresponding work.
Whether the proffered evidence ultimately shows that
Mercer failed to pay its workers touches on a central element
of liability. “When, as here, the concern about the proposed
class is . . . an alleged failure of proof as to an element of the
plaintiffs’ cause of action—courts should engage that
question as a matter of summary judgment, not class
10

Under the aggregate approach, Plaintiffs need not identify specific
instances in which an employee was not paid $12 per hour for performing
H-2A work, as long as the records show (1) the total wages that non-H-2A
employees received for performing H-2A qualifying work, and (2) the
total number of hours of H-2A work performed by those employees. Since
H-2A work required compensation at $12 per hour, the existence of a
shortfall in aggregate wages would constitute proof of underpayment.

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certification.” Tyson Foods, 136 S. Ct. at 1047 (quoting
Nagareda, 84 N.Y.U. L. Rev. at 107). As a result, we
conclude that the district court did not abuse its discretion by
identifying a common question of fact concerning whether
Mercer’s domestic workers were consistently paid $12 per
hour for H-2A work.
B. Rule 23(b)(3) predominance
Mercer also claims that defending against the aggregate
underpayment claims will require it to raise individualized
defenses, thereby defeating predominance. Plaintiffs’
approach, it argues, would result in a “Trial by Formula,”
without allowing Mercer to engage in individual inquiries or
raise individual defenses that a particular class member was
paid the proper wages.
Mercer reasons that because these defenses would not be
“common to the claims made by all class members,” Tyson
Foods, 136 S. Ct. at 1047, Plaintiffs’ method of common
proof is deficient. Tyson Foods addressed the use of
representative samples and statistical methods of proof. Id. at
1046. Here, proof is not a matter of probability—it is a matter
of logic that an aggregate underpayment means that Mercer
underpaid some, possibly all, subclass members. In this
context, Plaintiffs’ method of establishing liability for
underpayment in the aggregate is a permissible means of
proceeding. See Newberg on Class Actions § 12:2 (“[T]here
is no absolute requirement in Rule 23 that aggregate damages
be calculable, but where they are, they may be all that
plaintiffs need to prove.”). Particularly where Mercer has
allegedly failed to keep adequate accounting records specific
to each employee, class members may be compelled to resort
to an aggregate method of proving wage underpayment. See

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Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687
(1946) (“[I]t is the employer who has the duty . . . to keep
proper records of wages, hours and other conditions and
practices of employment and who is in position to know and
to produce the most probative facts concerning the nature and
amount of work performed.”).
Of course, the partitioning of damages among class
members may lead to individual calculations. Yet those
calculations would not impact a defendant’s liability for the
total amount of damages. Cf. Hilao v. Estate of Marcos,
103 F.3d 767, 786 (9th Cir. 1996) (class-action defendant’s
interest was “only in the total amount of damages for which
it will be liable,” not “the identities of those receiving damage
awards”). In wage-and-hour disputes, such individualized
damages inquiries are common, and typically do not defeat
certification. Leyva, 716 F.3d at 513–14.
III.

Rule 23(a)(4) typicality

The test of typicality serves to ensure that “the interest of
the named representative aligns with the interests of the
class.’” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th
Cir. 1992).11 “Under the Rule’s permissive standards,
representative claims are ‘typical’ if they are reasonably
coextensive with those of absent class members; they need
11

As the Wal-mart Court noted, “[t]he commonality and typicality
requirements of Rule 23(a) tend to merge. Both serve as guideposts for
determining whether under the particular circumstances maintenance of
a class action is economical and whether the named plaintiff’s claim and
the class claims are so interrelated that the interests of the class members
will be fairly and adequately protected in their absence.” 131 S. Ct. at
2551 n.5 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 158
(1982)).

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not be substantially identical.” Parsons, 754 F.3d at 685
(quotations omitted). In this context, “typicality refers to the
nature of the claim or defense . . . and not to the specific facts
from which it arose or the relief sought.” Id. Measures of
typicality include “whether other members have the same or
similar injury, whether the action is based on conduct which
is not unique to the named plaintiffs, and whether other class
members have been injured by the same course of conduct.”
Hanon, 976 F.3d at 508.
The district court found that the typicality requirement
was met in this case. Mercer raises several arguments to the
contrary. First, Mercer emphasizes that the class definition
includes both “seasonal and migrant farm workers,” whereas
Amador and Ruiz Torres are only seasonal farm workers.
Mercer has not articulated how this would make a substantive
difference in the prosecution of the AWPA and CPA claims.
In fact, AWPA’s disclosure provision regarding seasonal
workers, 29 U.S.C. § 1821(f), is nearly identical to the one
involving migrant workers, 29 U.S.C. §1831(e). See supra
note 2. Nor does the CPA draw any such distinctions.
Next, Mercer notes that some of the workers performing
H-2A tasks were hired through a labor contractor, M&L,
whereas Ruiz Torres was directly hired by Mercer. However,
both allegedly experienced the same informational harm of
not being told about H-2A work paying $12 per hour, and the
harm of wage underpayment after performing qualifying H2A work. Moreover, for the equal pay claims, both must
prove that Mercer was an “employer” within the meaning of
federal and state labor law. See 29 U.S.C. § 1802(2), (5);
Wash. Rev. Code § 49.46.010(2), (4). The M&L workers
might also claim that M&L was a joint employer. Yet the
district court did not abuse its discretion when it concluded

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that “the nature of the claim would appear to be the same
even if one additional question would need to be answered”
for the M&L workers.
Mercer further contends that Ruiz Torres is not a typical
“former employee,” since he is a former employee who later
returned to perform a non-H-2A job at Mercer. However, he
claims to have suffered the same class-wide harm of not
being told about the available H-2A work, and falls squarely
into the class of workers who allegedly performed H-2A tasks
for less than $12 per hour. Therefore, his claims are
sufficiently typical of that of the class.
Finally, Mercer argues that Amador is an atypical
representative for the Inaccurate Information class because he
never signed the call-back list when he visited seeking work.
Amador explained he was so discouraged upon learning that
H-2A jobs were being held for foreign workers that he
decided not to leave his contact information. Nonetheless, it
is undisputed that Amador “sought employment” from
Mercer, as the class definition requires, and that Mercer failed
to disclose to Amador the availability of $12-per-hour H-2A
jobs. Amador’s personal narrative is somewhat more colorful,
but it falls within the common contours of Plaintiff’s theory
of liability. See Ellis v. Costco Wholesale Corp., 657 F.3d
970, 985 n.9 (9th Cir. 2011) (“Differing factual scenarios
resulting in a claim of the same nature as other class members
does not defeat typicality.”). Here, the gravamen of the
Inaccurate Information claim is a common omission about the
availability of H-2A work paying $12 an hour. The “nature”
of Amador’s individual claim is thus “reasonably
coextensive” with that of the class of local farm workers who

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did not receive the benefit of information about H-2A jobs.12
Parsons, 754 F.3d at 685. Moreover, Mercer does not
indicate how any differences would “preoccupy” Ruiz Torres
or Amador or “threaten to become the focus of the litigation,”
Hanon, 976 F.2d at 508, such that the district court
committed a clear error of judgment.
CONCLUSION
For the foregoing reasons, we hold that the district court
did not abuse its discretion by certifying the Inaccurate
Information class and the Equal Pay subclass. The district
court’s class certification order is AFFIRMED.

12

It is possible that Mercer exposed Amador to both a misrepresentation
along with a common omission concerning the availability of H-2A jobs.
Nonetheless, Mercer fails to raise this particular challenge to typicality
and, moreover, the thrust of the misrepresentation essentially overlaps
with that of the material omission. Both create the false impression that
Mercer was not seeking to hire H-2A workers when he sought
employment.