The GEO Group, Inc. ("GEO") owns and operates the Aurora Facility under government contract. While there, the plaintiff detainees (the "Appellees") rendered mandatory and voluntary services to GEO. Under GEO's mandatory policies, they cleaned their housing units' common areas. They also performed various jobs through a voluntary work program, which paid them $1 a day.
The district court certified two separate classes: (1) all detainees housed at the Aurora Facility in the past ten years (the "TVPA class"), and (2) all detainees who participated in the Aurora Facility's voluntary work program in the past three years (the "unjust enrichment class").
On interlocutory appeal, GEO argues that the district court abused its discretion in certifying each class under Rule 23(b)(3) of the Federal Rules of Civil Procedure. It primarily contends that the Appellees' TVPA and Colorado unjust enrichment claims both require predominantly individualized determinations, making class treatment inappropriate. Exercising jurisdiction under
I. BACKGROUND
A. Factual History
At all times relevant to this appeal, GEO owned and operated the Aurora Facility under contract with the U.S. Immigration and Customs Enforcement ("ICE"). In operating this facility, GEO implemented two programs that form the basis for this case: (1) the Housing Unit Sanitation Policy, which required all detainees to clean their common living areas; and (2) the Voluntary Work Program, which compensated detainees $1 a day for performing various jobs.
1. Housing Unit Sanitation Policy ("Sanitation Policy")
The Aurora Facility's Sanitation Policy had two components: (1) a mandatory housing unit sanitation program, and (2) a
Under the mandatory housing unit sanitation program, GEO staff generated daily lists of detainees from each housing unit who were assigned to clean common areas after meal service. Upon arriving at the Aurora Facility, every detainee received a handbook (the "Aurora Facility Supplement") notifying them of their obligation to participate in this program. Dawn Ceja, the Aurora Facility's Assistant Warden for Operations, confirmed at her deposition that "all of the detainees will have a turn on [the common area cleaning assignments]." App., Vol. II at 483.
Under the disciplinary system, detainees who refused to perform their cleaning assignments faced a range of possible sanctions, including: (1) the initiation of criminal proceedings, (2) disciplinary segregation-or solitary confinement-up to 72 hours, (3) loss of commissary, (4) loss of job, (5) restriction to housing unit, (6) reprimand, or (7) warning. The Aurora Facility Supplement included an explanation of the disciplinary system and the possible sanctions for refusing to clean.
The Appellees alleged that the TVPA class members were all "forced ... to clean the [housing units] for no pay and under threat of solitary confinement as punishment for any refusal to work." App., Vol. I at 19. Five of the nine named plaintiffs and three other detainees filed declarations further explaining that they had fulfilled their cleaning assignments because of the Sanitation Policy's threat of solitary confinement.
2. Voluntary Work Program ("VWP")
Under the Aurora Facility's VWP, participating detainees received $1 a day in compensation for voluntarily performing jobs such as painting, food services, laundry services, barbershop, and sanitation. Detainees who wished to participate in the VWP had to sign the "Detainee Voluntary Work Program Agreement," which specified that "[c]ompensation shall be $1.00 per day." App., Vol. V at 779. The Aurora Facility Supplement also specified that detainees would "be paid $1.00 per day worked (not per work assignment)" under the VWP. App., Vol. V at 761. Detainees had the additional option of working without pay if no paid positions were available.
The complaint alleged that the VWP class members were all "paid ... one dollar ($1) per day for their [VWP] labor." App., Vol. I at 19. Five of the nine named plaintiffs and three other detainees who had participated in the VWP filed declarations further describing their work. Their jobs had included serving food, cleaning the facilities, doing laundry, and stripping and waxing floors. Their hours had ranged from two to eight hours a day, and they had all received $1 a day in compensation.
B. Procedural History
The Appellees filed a class action complaint against GEO in the U.S. District Court for the District of Colorado on behalf of current and former ICE detainees housed at the Aurora Facility. The complaint alleged: (1) a TVPA forced labor claim based on the Sanitation Policy, and (2) an unjust enrichment claim under Colorado law based on the VWP.
1. GEO's Motion to Dismiss
GEO moved to dismiss the complaint under
The district court rejected these arguments and denied GEO's motion to dismiss the TVPA and unjust enrichment claims. See Menocal v. GEO Grp., Inc. ,
GEO then moved for an order certifying an interlocutory appeal from the orders denying its motion to dismiss and its motion for reconsideration. It requested that the district court certify the following questions for interlocutory appeal:
(1) Whether civil detainees lawfully held in the custody of a private detention facility under the authority of the United States can state a claim for "forced labor" under the TVPA,18 U.S.C. § 1589 , for allegedly being required to perform housekeeping duties.
(2) Whether, under Colorado law, civil detainees may state a claim for unjust enrichment based on work performed pursuant to the Voluntary Work Program, absent any alleged reasonable expectation of being paid more than $1 per day.
(3) Whether a state law claim for unjust enrichment brought by civil detainees against a federal contractor is barred by the "government contractor" defense, where such claims would require that detainees receive additional compensation even though the contract expressly requires that compensation of more than $1 per day be approved by the government's contracting officer.
App., Vol. II at 346. The district court denied GEO's motion to certify an interlocutory appeal on all three of these questions. Accordingly, the district court's rulings on these questions are not properly before us in this appeal. See
2. The Appellees' Motion for Class Certification
After they prevailed on the motion to dismiss, the Appellees moved for certification of a separate class for each claim under Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure. For the TVPA claim, the Appellees proposed a class of "all persons detained in [GEO's] Aurora Detention Facility in the ten years prior to
GEO opposed the certification of both proposed classes. It argued that neither class adequately satisfied the Rule 23 requirements. The district court rejected GEO's arguments and certified both classes as proposed by the Appellees. See Menocal v. GEO Grp., Inc. ,
GEO petitioned this court for interlocutory review of the class certifications. We granted GEO's petition for permission to appeal under Rule 23(f). See Fed. R. Civ. Pro. 23(f) ("A court of appeals may permit an appeal from an order granting or denying class-action certification...."); 28 U.S.C § 1292(e) (authorizing the Supreme Court to "prescribe rules ... provid[ing] for an appeal of an interlocutory decision to the courts of appeals that is not otherwise provided for" by statute). Accordingly, only the district court's order granting class certification-and not its rulings on whether the complaint stated TVPA and unjust enrichment claims-is before us.
II. DISCUSSION
We begin with our standard of review. We then provide an overview of the Rule 23 class certification requirements relevant to this appeal, and additional background on the TVPA and Colorado unjust enrichment law as needed. We consider the TVPA and the unjust enrichment classes in turn, and conclude that the district court did not abuse its discretion in certifying each class under Rule 23.
A. Standard of Review
"We review the district court's decision to certify [a] class for an abuse of discretion. The district court abuses its discretion when it misapplies the Rule 23 factors-either through a clearly erroneous finding of fact or an erroneous conclusion of law-in deciding whether class certification is appropriate. Our review is only de novo to the extent we must determine whether the district court applied the correct standard. In the end, as long as the district court applies the proper Rule 23 standard, we will defer to its class certification ruling provided that decision falls within the bounds of rationally available choices given the facts and law involved in the matter at hand." Soseeah v. Sentry Ins. ,
B. Class Certification Requirements
Rule 23 of the Federal Rules of Civil Procedure provides the class certification requirements. Wal-Mart Stores, Inc. v. Dukes ,
Rule 23(a) sets forth four threshold requirements:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). Only requirements (2) (the "commonality" requirement) and (3) (the "typicality" requirement) are contested in this appeal.
Of the class action categories set forth in Rule 23(b), only the Rule 23(b)(3) class action is at issue here. A Rule 23(b)(3) class action must satisfy two additional requirements: (1) the "questions of law or fact common to class members [must] predominate over any questions affecting only individual members" (the "predominance" requirement), and (2) a class action must be "superior to other available methods for fairly and efficiently adjudicating the controversy" (the "superiority" requirement). Fed. R. Civ. P. 23(b)(3).
We provide additional background on each of the Rule 23 requirements contested in this appeal: commonality, typicality, predominance, and superiority.
1. Rule 23(a) 's Threshold Requirements: Commonality and Typicality
a. Commonality
To satisfy the commonality requirement, a party seeking class certification must demonstrate "there are questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). In other words, the class members' claims must "depend upon a common contention ... of such a nature that it is capable of classwide resolution-which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Wal-Mart ,
"A finding of commonality requires only a single question of law or fact common to the entire class." DG ex rel. Stricklin v. Devaughn ,
b. Typicality
To satisfy the typicality requirement, a party seeking class certification must demonstrate that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3). "[D]iffering fact situations of class members do not defeat typicality ... so long as the claims of the class representative and class members are based on the same legal or remedial theory." Colo. Cross Disability Coal. v. Abercrombie & Fitch Co. ,
2. Rule 23(b)(3) 's Additional Requirements: Predominance and Superiority
a. Predominance
"The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem Prods., Inc. v. Windsor ,
In reviewing the district court's predominance determination, we must "characterize the issues in the case as common or not, and then weigh which issues predominate."
b. Superiority
A putative class proceeding under Rule 23(b)(3) must show that a class action would be "superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3). Rule 23(b)(3) includes a non-exhaustive list of factors pertinent to the superiority analysis:
(A) the class members' interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3) ; Fed. R. Civ. P. 23(b) advisory committee's note to the 1966 amendment.
Courts and commentators have observed that the Rule 23(b)(3) class action is superior when it allows for the "vindication of the rights of groups of people who individually would be without effective strength to bring their opponents into court at all." See Amchem ,
We affirm the district court's certification of the TVPA class. We first provide background on the TVPA. We then analyze whether the district court abused its discretion in applying the Rule 23 requirements to certify the TVPA class. In reviewing the class certification decision, "our primary function is to ensure that the requirements of Rule 23 are satisfied, not to make a determination on the merits of the putative class's claims." CGC Holding ,
1. TVPA's Forced Labor Provision-
The TVPA establishes a civil cause of action for victims of prohibited trafficking activity.
knowingly provid[ing] or obtain[ing] the labor or services of a person by any one of, or by any combination of, the following means-
(1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person;
(2) by means of serious harm or threats of serious harm to that person or another person;
(3) by means of the abuse or threatened abuse of law or legal process; or
(4) by means of any scheme, plan, or pattern intended to cause the person to believe that , if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint [.]
2. Application of Rule 23 Requirements
GEO contends that the district court abused its discretion in determining that the TVPA class satisfies commonality, typicality, predominance, and superiority. The parties' arguments-both in their briefs and at oral argument-focus primarily on predominance, the closest issue. We address predominance last, after commonality, typicality, and superiority. The court did not abuse its discretion as to any of these requirements in certifying the TVPA class.
a. Commonality
The TVPA class meets Rule 23(a) 's commonality requirement. The district court identified "a number of crucial questions with common answers." Menocal ,
b. Typicality
The TVPA class satisfies Rule 23(a) 's typicality requirement. Typicality requires only that "the claims of the class representative and class members are based on the same legal or remedial theory." Colo. Cross Disability ,
c. Superiority
The TVPA class meets the Rule 23(b)(3) superiority requirement. The TVPA class members would have to overcome significant hurdles to adjudicate their individual claims and thus have little "interest[ ] in individually controlling the prosecution or defense of separate actions." See Fed. R. Civ. P. 23(b)(3). As the district court noted-and GEO does not dispute-"the putative class members reside in countries around the world, lack English proficiency, and have little knowledge of the legal system in the United States." Menocal ,
Although Rule 23(b)(3) 's predominance requirement "regularly presents the greatest obstacle to class certification," CGC Holding ,
i. The causation element
The causation element is susceptible to generalized proof and thus cannot defeat class certification under Rule 23(b)(3) 's predominance requirement. As discussed above, the TVPA's forced labor provision prohibits the knowing procurement of labor "by means of" the use or threat of-or a scheme intended to threaten-serious harm or physical restraint. See
The parties dispute whether a plaintiff may use a reasonable person standard to make this causation showing. The TVPA class contends that a plaintiff need only show that the unlawful means-here, the Sanitation Policy-would have caused a reasonable person to render the labor.
This analysis proceeds in three parts. First, in CGC Holding , this court held-at least in the fraud context-that plaintiffs may prove causation by class-wide inference. Second, CGC Holding applies to the circumstances of this case. Third, the mere speculative possibility that a class-wide inference would not apply to some TVPA class members does not make causation insusceptible to class-wide proof.
1) CGC Holding : Class-wide proof of causation from common circumstantial evidence
In CGC Holding , this court recognized that plaintiffs may prove class-wide causation based on inference from common circumstantial evidence.
Because we would allow an individual plaintiff to establish an inference of reliance from this type of circumstantial proof, we saw "no reason why a putative class containing plaintiffs, who all paid substantial up-front fees in return for financial promises, should not be entitled to posit the same inference to a factfinder on a classwide basis."
2) Application of CGC Holding 's class-wide circumstantial evidence analysis to this case
CGC Holding said that, when a class member could individually establish causation based on circumstantial evidence, a court may likewise allow a class to rely on circumstantial evidence that the class shares to establish causation on a class-wide basis. CGC Holding 's reasoning applies with equal force to the facts of this case because (1) a court could permit an individual TVPA class member to establish causation through circumstantial evidence, and (2) the TVPA class members share the relevant evidence in common because their claims are based on allegations of a single, common scheme.
First, a TVPA class member could individually establish causation based on circumstantial evidence.
Second, because the TVPA class allegations are based on a single, common scheme, class members share the relevant circumstantial evidence in common, thus making class-wide proof possible. In CGC Holding , the lender defendants allegedly "engaged in a common scheme to defraud" the borrower plaintiffs.
GEO acknowledges that each class member received notice of the Sanitation Policy's terms upon admission to the Aurora Facility. See App., Vol. II at 480 (Assistant Warden Ceja testifying that upon admission to the Aurora Facility, each detainee "signs [a document] memorializing that he or she received this policy"). Under these circumstances, the Sanitation Policy provides the "glue" that holds together the class members' reasons for performing housing unit cleaning duties assigned by GEO. Wal-Mart ,
3) Hypothetical possibilities do not defeat the class-wide inference
Based on the foregoing, the Appellees have met their burden to show that the
GEO's hypothetical alternative explanations for the class members' labor do not defeat the Appellees' showing that the causation element is susceptible to class-wide proof. The permissibility of a class-wide inference depends on whether the class members' claims are "solvable with a uniform piece of circumstantial evidence" or instead "involve significant individualized or idiosyncratic elements." CGC Holding ,
Had GEO "presented evidence that could rebut the Plaintiffs' common inference of [causation] on an individualized basis, we and the district court might have concluded that individual issues ... would predominate at trial." See Torres v. S.G.E. Mgmt., L.L.C. ,
In CGC Holding , we stated that "causation can be established through an inference of reliance where the behavior of plaintiffs and the members of the class cannot be explained in any way other than reliance upon the defendant's conduct."
* * * *
In assessing the causation element's susceptibility to class-wide proof, we take no position on whether the class would ultimately succeed on such proof at trial. See id. at 1087 ("For the purposes of class certification, our primary function is ... not to make a determination on the merits of the putative class's claims."). Rather, we must affirm the district court's class certification determination if it "falls within the bounds of rationally available choices given the facts and law involved in the matter at hand." See Soseeah ,
ii. Damages
The presence of individualized damages issues does not defeat the predominance of questions common to the TVPA class. "[T]he fact that damages may have to be ascertained on an individual basis is not, standing alone, sufficient to defeat class certification." Wallace B. Roderick Revocable Living Tr. v. XTO Energy, Inc. ,
Here, the district court reasonably determined that, "considering the numerous questions common to the class, ... the possible need for specific damages determinations does not predominate." Menocal ,
* * * *
The district court did not abuse its discretion in certifying the TVPA class based on its "rigorous analysis" of the Rule 23 requirements contested here. See CGC Holding ,
D. The Unjust Enrichment Class
We affirm the district court's certification of the unjust enrichment class. We first provide background on unjust enrichment under Colorado law. We then analyze whether the district court abused its discretion in applying the Rule 23 requirements to certify the unjust enrichment class. As with the TVPA class, "our primary function is to ensure that the requirements of Rule 23 are satisfied, not to make a determination on the merits of the putative class's claims."
1. Unjust Enrichment under Colorado Law
Unjust enrichment "is an equitable theory of recovery that exists independent of any contract." Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm ,
The third element-whether the defendant's retention of the benefit would be unjust-calls for "a fact-intensive inquiry in which courts look to, among other things , the intentions, expectations, and behavior of the parties." Melat ,
2. Application of Rule 23 Requirements
GEO argues the district court abused its discretion in determining that the unjust enrichment class satisfies commonality, typicality, predominance, and superiority. We address predominance, the closest issue, last. We conclude that the court did not abuse its discretion as to any of these requirements in certifying the unjust enrichment class.
a. Commonality
The unjust enrichment class meets Rule 23(a) 's commonality requirement. The district court found "the existence of at least a single common question-whether GEO received a benefit from VWP participants' labor." Menocal ,
b. Typicality
The unjust enrichment class satisfies Rule 23(a) 's typicality requirement. Typicality requires only that "the claims of the class representative and class members are based on the same legal or remedial theory." Colo. Cross Disability ,
c. Superiority
The unjust enrichment class, a subset of the TVPA class, meets Rule 23(b)(3) 's superiority requirement for the same reasons the TVPA class does. The district court noted that "[a]s stated above, many of the putative class members are
d. Predominance
Although Rule 23(b)(3) 's predominance requirement "regularly presents the greatest obstacle to class certification," CGC Holding ,
i. The unjustness element
The unjustness element is susceptible to generalized proof and thus cannot defeat class certification under Rule 23(b)(3) 's predominance requirement. This analysis proceeds in two parts. First, unjustness presents a common question here because the class members seek to establish this element through shared circumstances susceptible to class-wide proof. See CGC Holding ,
1) The class members' unjustness showings rely on common circumstances
Although the unjustness element requires "a fact-intensive inquiry," Melat ,
2) The class members need not show a reasonable expectation of payment under Colorado law
GEO's only argument as to why class members would need to rely on individualized circumstances to show unjustness is that Colorado law requires plaintiffs to show a reasonable expectation of payment beyond $1 per day, which the common evidence here does not support. This argument fails because, as discussed above, the Colorado Supreme Court has made clear that a reasonable expectation of payment is not a required element of unjust enrichment under Colorado law. See Ed Duggan ,
In light of Ed Duggan , GEO's citation to an earlier, contrary decision by the Colorado Court of Appeals, Aplt. Br. at 46, 51, is not persuasive. See Britvar v. Schainuck ,
* * * *
In deciding the narrow question of whether the unjustness element is susceptible to class-wide proof, we take no position on whether the class would ultimately succeed on such proof at trial. See CGC Holding ,
ii. Damages
As with the TVPA class, the presence of individualized damages issues does not defeat
Here, the district court reasonably found that "individual damages in this case should be easily calculable using a simple formula" based on number of hours worked, type of work performed, and fair market value of such work. Menocal ,
* * * *
The district court did not abuse its discretion in certifying the unjust enrichment class based on its "rigorous analysis" of the Rule 23 requirements contested here. See CGC Holding ,
III. CONCLUSION
We affirm the district court's certification of both classes. We grant the outstanding motions for leave to file amicus briefs.
Notes
The complaint brought a third claim under the Colorado Minimum Wages of Workers Act, but the district court dismissed this claim, and it is not at issue here.
GEO cited the Fifth Circuit's decision in Channer v. Hall ,
Although Rule 23(b)(3) states that these factors are pertinent to both superiority and predominance, "most courts analyze [these factors] solely in determining whether a class suit will be a superior method of litigation." 2 William B. Rubenstein, Newberg on Class Actions § 4:64 (5th ed., Dec. 2017 update).
See, e.g. , Silva-Arriaga v. Texas Express, Inc. ,
The only factual differences among the class representatives' experiences pertain to their specific interactions with Aurora Facility guards and whether they witnessed firsthand other individual detainees being sanctioned or threatened with solitary confinement for refusal to clean. But these factual differences do not defeat typicality because the class members' legal theory-that GEO knowingly obtained their labor through the uniform Sanitation Policy-does not change based on their personal interactions with GEO staff or their knowledge of specific instances in which GEO threatened or carried out the threat of solitary confinement. See Colo. Cross Disability ,
GEO also suggests that the class should instead seek to have the ICE standards relating to the Sanitation Policy "changed by the agency, declared invalid, or enjoined," Aplt. Br. at 45. But such actions, even if feasible, would not provide damages relief and thus are not "superior ... available methods for fairly and efficiently adjudicating the controversy," especially for former detainees in the TVPA class. See Fed. R. Civ. P. 23(b)(3).
For purposes of deciding the class certification question, we do not address the merits of whether the Sanitation Policy qualifies as an unlawful means of coercion under § 1589. GEO does not dispute-and neither do we-the district court's determination that this question can be answered on a class-wide basis. See Menocal ,
The Racketeer Influenced and Corrupt Organizations Act ("RICO") prohibits various activities performed in connection with an ongoing criminal organization. See
Plaintiffs are generally free to introduce any relevant admissible evidence to prove their claims, with no distinction between direct and circumstantial evidence. See Fed. R. Evid. 401 ; see also 1A Fed. Jury Prac. & Instr. § 12:04 (6th ed., Aug. 2017 update).
In Wal-Mart , the Supreme Court held that anecdotal and statistical evidence "are insufficient to establish that [the plaintiffs' gender discrimination] theory can be proved on a classwide basis."
As the Court later explained in Tyson Foods, Inc. v. Bouaphakeo , the Wal-Mart plaintiffs could not have relied on statistical evidence even in individual suits-much less a class action-because they "were not similarly situated." --- U.S. ----,
Here, the TVPA class members-unlike the Wal-Mart and Tyson Foods plaintiffs-do not rely on statistical evidence. A TVPA class member bringing an individual suit against GEO therefore would not need to make a "similarly situated" showing to rely on the circumstantial evidence discussed above. And, as CGC Holding instructs, because an individual TVPA class member could rely on this evidence and because the same evidence applies to all class members, class-wide proof is possible in this case. But even assuming that Wal-Mart and Tyson Foods "similarly situated" analysis applies where-as here-the plaintiffs do not rely on statistical evidence, the TVPA class members are more like the Tyson Foods plaintiffs: they were detained in the same facility, did the same work, and faced the same potential sanctions for refusing to work under the same Sanitation Policy.
GEO posits possible alternative reasons class members may have worked: "They may like to have a sanitary environment. They may like to be social while working, or participate because of peer pressure. They may willingly obey the facility's policy out of respect for it. Or they may simply wish to stay busy." Aplt. Br. at 37.
At oral argument, GEO's counsel pointed to two pieces of rebuttal evidence. Oral Argument at 9:42-10:59. First, counsel cited Assistant Warden Ceja's deposition testimony stating that detainees may "help out" with housing unit cleaning because "[s]ometimes people just like to keep busy" and "[i]t makes the time go by faster." App., Vol. II at 483. Apart from its conjectural nature, this testimony does not raise concerns about individual issues predominating because GEO could introduce this same testimony against all class members at trial. Second, counsel suggested that the detainee declarations filed in this suit rebut causation as to the declarants: "Does that make sense-that the same detainees would be volunteering to step up and work a variety of jobs in food service and laundry for a dollar a day but yet at the same time say that they only performed occasional housekeeping chores as a result [of the Sanitation Policy.]" Oral Argument at 10:42-10:59. We see no inconsistency in the declarants' statements.
In CGC Holding , we also "note[d] that the inference of reliance here is limited to transactional situations-almost always financial transactions-where it is sensible to assume that rational economic actors would not make a payment unless they assumed that they were receiving some form of the promised benefit in return."
The trial court in Ed Duggan had given an "erroneous[ ]" unjust enrichment instruction by conflating two distinct legal claims: (1) implied-in-fact contract, and (2) unjust enrichment (or implied-in-law contract). Ed Duggan ,
The only factual differences among the class representatives' experiences pertain to the nature of their jobs and the hours they worked. But these factual differences do not defeat typicality because the class members' legal theory-that GEO unjustly retained a benefit from their labor under the VWP-does not change based on the nature of their jobs or their hours worked. See Colo. Cross Disability ,
GEO's suggestion that class members should "challenge ICE's underlying policy authorizing the $1 per day practice as violating some federal law or constitutional right," Aplt. Br. at 54, again ignores the nature of the controversy at hand. Notwithstanding GEO's attempts to divine "the Plaintiffs' real complaint,"
We address GEO's "reasonable expectation" argument-even though it overlaps with the merits of the underlying unjust enrichment claims-"only to the extent ... [it is] relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Amgen Inc. v. Conn. Ret. Plans & Tr. Funds ,