A recent Ninth Circuit decision continues to emphasize how, post-Comcast, defendants should look for ways to characterize individualized issues as questions of liability, not questions of damages.

In Bowerman v. Field Asset Services, Inc., 2022 WL 2433971, — F.4th —- (Jul. 5, 2022), the plaintiffs alleged that the defendant willfully misclassified the plaintiffs as independent contractors, rather than employees, in order to avoid paying overtime compensation and indemnifying them for their business expenses.  Id. at *4.  The district court certified a class, believing that the defendant’s arguments against class certification only constituted an argument that individualized damages determinations defeated predominance.  See id.

The Ninth Circuit saw things differently.  According to the Ninth Circuit, individualized inquiries were necessary to determine which particular class members ever worked overtime or ever incurred business expenses.  Id.  In the process, the Ninth Circuit rejected the plaintiffs’ reliance on Leyva v. Medline Industries, Inc., 716 F.3d 510 (9th Cir. 2013), for the proposition that “[t]he presence of individualized damages cannot, by itself, defeat class certification under Rule 23(b)(3).”  Id. at 514.  Instead, the Bowerman court emphasized that while a question about “the calculation of damages” might not be enough to defeat class certification, a question about “the existence of damages in the first place” could do so.  See Bowerman, 2022 WL 2433971, at *8 (emphasis in the original).  And because the plaintiffs could not prove through common evidence that every class member had suffered damages caused by the defendant’s conduct without “excessive difficulty,” the Ninth Circuit held that a class could not be certified consistent with Comcast’s guidance that a class should only be certified if a case is “susceptible to awarding damages on a class-wide” basis.  Id. at *9 (citing Comcast Corp. v. Behrend, 569 U.S. 27, 32 n.4 (U.S. 2013)).

Bowerman therefore reminds defendants that they have two paths for turning what may at first glance appear to be individualized damages issues into certification-defeating obstacles.  First, defendants can argue how they are not challenging how damages are calculated, but whether damages even exist.  Second, defendants can argue that even if damages exist, class certification is still improper if determination of individualized damages would be “excessively difficult.”  Many lower courts have been reluctant to apply Comcast to accept this second argument.  But Bowerman offers a reminder that acceptance of the first argument remains universally solid.