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Date: 02-10-2018

Case Style:

Alejandro Menocal, et al. v. National Advocacy Center of The Sisters of the Good Shepherd, et al.

District of Colorado Federal Courthouse - Denver, Colorado

Case Number: 17-1125

Judge: Matheson

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of Colorado (Denver County)

Plaintiff's Attorney: David Lopez,
Juno Turner,
Elizabeth Stork,
Andrew Free,
Alex Hood,
David Seligman,
Andrew Schmidt,
Brandt Milstein,
Andrew Turner,
Ossai Miazad,
Hans Meyer
and
Ashley Boothby for Appellees


Scott D. McCoy and Shalini Agarwal, Southern Poverty Law Center, Tallahassee,
Florida, Alia Al-Khatib, Southern Poverty Law Center, Miami, Florida, and Lisa
Graybill, Southern Poverty Law Center, New Orleans, Louisiana, filed a brief for the Southern Poverty Law Center as Amicus Curiae, in support of Appellees.


Adina H. Rosenbaum and Scott L. Nelson, Public Citizen Litigation Group, Washington,
D.C., filed a brief for Public Citizen, Inc., and The National Employment Law Project, as
Amici Curiae, in support of Appellees.


Katherine E. Melloy Goettel, Mark Fleming, Claudia Valenzuela, and Keren Zwick,
National Immigration Justice Center, Chicago, Illinois, filed a brief for National Immigrant Justice Center, et al., as Amici Curiae, in support of Appellees.


Andrew C. Lillie, Nathaniel H. Nesbitt, and Ann C. Stanton, Hogan Lovells US LLP, Denver, Colorado, filed a brief for Human Trafficking Pro Bono Legal Center, Tahirih Justice Center, Asista Immigration Assistance, Freedom Network USA, and Sancuary for Families, as Amici Curiae, in support of Appellees.

Defendant's Attorney: Mark Emery, Norton Rose Fulbright US LLP, Washington, D.C. (Charles A. Deacon
Norton Rose Fulbright US LLP, San Antonio, Texas; and Dana Eismeier, Burns, Figa &
Will, Greenwood Village, Colorado, with him on the brief), for Defendant-Appellant.

Description: This appeal addresses whether immigration detainees housed in a private contract
detention facility in Aurora, Colorado (the “Aurora Facility”) may bring claims as a class
under (1) 18 U.S.C. § 1589, a provision of the Trafficking Victims Protection Act (the
“TVPA”) that prohibits forced labor; and (2) Colorado unjust enrichment law.
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
4
both require predominantly individualized determinations, making class treatment
inappropriate. Exercising jurisdiction under 28 U.S.C. § 1292, we affirm.
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 general disciplinary system for detainees who
engaged in “prohibited acts,” including refusal to participate in the housing unit
sanitation program.
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.
5
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
6
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
1. GEO’s Motion to Dismiss
GEO moved to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for failure to state a claim. Regarding the TVPA claim, GEO argued that
the Thirteenth Amendment’s civic duty exception to the prohibition on involuntary
servitude should also apply to the TVPA’s ban on forced labor.2 It further contended that
such an exception would extend to government contractors in addition to the federal
government. Regarding the unjust enrichment claim, GEO asserted sovereign immunity
1 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.
2 GEO cited the Fifth Circuit’s decision in Channer v. Hall, 112 F.3d 214 (5th Cir.
1997), which relied in part on the “judicially-created exception[]” to the Thirteenth
Amendment to hold that “the federal government is entitled to require a communal
contribution by an [immigration] detainee in the form of housekeeping tasks.” Id. at 218-
19.
7
as a government contractor because ICE “specifically directed [it] to . . . establish a
voluntary detainee work program, and pay the detainees who volunteer for that program
$1.00 per day.” App., Vol. I at 198-99.
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., 113 F. Supp.
3d 1125 (D. Colo. 2015). GEO moved for reconsideration of the court’s rulings. The
court denied the motion, finding that GEO “d[id] not identify any intervening change in
controlling law or new evidence previously unavailable” to warrant reconsideration.
Menocal v. GEO Grp., Inc., No. 14-cv-02887-JLK, 2015 WL 13614120, at *1 (D. Colo.
Aug. 26, 2015).
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.
8
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 28 U.S.C. § 1292(b) (providing
that a court of appeals may only permit an interlocutory appeal to be taken from most
non-final decisions if the district judge first certifies the interlocutory appeal).
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 the filing
of this action” (the “TVPA class”). App., Vol. II at 409. For the unjust enrichment
claim, they proposed a class of “all people who performed work [for the] Aurora
Detention Facility under [GEO’s] VWP Policy in the three years prior to the filing of this
action” (the “unjust enrichment class”). Id. at 418.
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., 320 F.R.D. 258 (D. Colo. 2017). It also approved the nine named plaintiffs as
the representatives of both classes. Id. at 271.
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 class9
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., 808 F.3d 800, 808 (10th Cir. 2015) (citations and quotations omitted).
10
B. Class Certification Requirements
Rule 23 of the Federal Rules of Civil Procedure provides the class certification
requirements. Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011). Plaintiffs
seeking class certification must show that the underlying case (1) satisfies each of Rule
23(a)’s prerequisites, and (2) falls under at least one of Rule 23(b)’s categories of class
actions. See Soseeah, 808 F.3d at 808. The district court must undertake a “rigorous
analysis” to satisfy itself that a putative class meets the applicable Rule 23 requirements.
CGC Holding Co. v. Broad & Cassel, 773 F.3d 1076, 1086 (10th Cir. 2014) (quotations
omitted).
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
11
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, 564 U.S. at 350. In the context of
class-wide proof by statistical evidence, the Supreme Court has instructed that a question
is common if there is “some glue holding the [class members’ allegations] together.” Id.
at 352.
“A finding of commonality requires only a single question of law or fact common
to the entire class.” DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1195 (10th Cir.
2010); see also Wal-Mart, 564 U.S. at 359 (“We quite agree that for purposes for Rule
23(a)(2) even a single common question will do.” (brackets and quotations omitted)).
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
12
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., 765 F.3d 1205, 1216 (10th Cir.
2014) (quotations omitted).
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, 521 U.S. 591, 623 (1997). “It is not necessary that all of the elements of the
claim entail questions of fact and law that are common to the class, nor that the answers
to those common questions be dispositive.” CGC Holding, 773 F.3d at 1087. “Put
differently, the predominance prong asks whether the common, aggregation-enabling,
issues in the case are more prevalent or important than the non-common, aggregationdefeating,
individual issues.” Id. (quotations omitted).
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.” Id. We do so by “consider[ing] . . . how the class intends to answer
factual and legal questions to prove its claim—and the extent to which the evidence
needed to do so is common or individual.” Id. And because we must thus consider the
class’s underlying cause of action and determine which elements are amenable to
common proof, “it is impractical to construct an impermeable wall that will prevent the
13
merits from bleeding into the class certification decision to some degree.” Id. (quotations
omitted). But “[f]or the purposes of class certification, 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.” Id.
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.3
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
3 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).
14
individually would be without effective strength to bring their opponents into court at
all.” See Amchem, 521 U.S. at 617 (quotations omitted); see also Just Film, Inc. v.
Buono, 847 F.3d 1108, 1123 (9th Cir. 2017) (crediting unlikelihood that class members
would individually pursue their claims due to risks, small recovery, and costs of litigation
as the consideration “at the heart” of the superiority analysis). For this reason, “the class
action device is especially pertinent to vulnerable populations.” 2 William B.
Rubenstein, Newberg on Class Actions § 4:65 (5th ed., Dec. 2017 update) (Newberg).
Considerations such as class members’ limited understanding of the law, limited English
skills, or geographic dispersal therefore weigh in favor of class certification. See id.4
C. The TVPA Class
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, 773 F.3d at 1087.
4 See, e.g., Silva-Arriaga v. Texas Express, Inc., 222 F.R.D. 684, 691 (M.D. Fla.
2004) (citing class members’ “limited English skills and . . . understanding of the legal
system” in support of superiority finding); In re Monster Worldwide, Inc. Securities
Litig., 251 F.R.D. 132, 139 (S.D.N.Y. 2008) (finding superiority based in part on class
members’ geographic dispersal).
15
1. TVPA’s Forced Labor Provision—18 U.S.C. § 1589
The TVPA establishes a civil cause of action for victims of prohibited trafficking
activity. 18 U.S.C. § 1595. As relevant to this appeal, the TVPA’s forced labor
provision prohibits persons from:
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[.]
Id. § 1589(a) (emphases added). The term “serious harm” denotes “any harm, whether
physical or nonphysical, including psychological, financial, or reputational harm, that is
sufficiently serious, under all the surrounding circumstances, to compel a reasonable
person of the same background and in the same circumstances to [render labor] . . . to
avoid incurring that harm.” Id. § 1589(c)(2).
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,
16
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, 320 F.R.D.
at 264. These questions include: (1) whether the Sanitation Policy “constitutes improper
means of coercion” under § 1589, (2) whether GEO “knowingly obtain[s] detainees’
labor using [the Sanitation Policy]”, and (3) whether a civic duty exception exempts the
Sanitation Policy from § 1589. Id. at 264-65. Because all members of the TVPA class
base their claims on the Sanitation Policy, we agree with the district court that the
answers to these questions would “resolve an issue that is central to the validity of each
one of the claims in one stroke.” Wal-Mart, 564 U.S. at 350. Indeed, any one of these
questions alone would satisfy the commonality requirement for the TVPA class. See id.
at 359; Stricklin, 594 F.3d at 1195. The district court therefore did not abuse its
discretion in applying the Rule 23(a) commonality requirement to the TVPA class.
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, 765 F.3d at 1216 (quotations omitted).
Here, the claims of all the class members—including the representatives—share the same
theory: that GEO knowingly obtained class members’ labor by means of the Sanitation
Policy, which threatened—or was intended to cause them to believe they would suffer—
17
serious harm or physical restraint if they did not fulfill their cleaning assignments. The
class representatives allege that they—just like all other Aurora Facility detainees in the
relevant period—performed “mandatory, uncompensated work . . . under [GEO’s]
Housing Unit Sanitation policy.” App., Vol. I at 26; see App., Vol. II at 483 (Assistant
Warden Ceja confirming that “all of the detainees . . . have a turn on [the cleaning
assignments]”). And the class representatives’ declarations present no circumstances that
would give rise to a different theory of liability.5 The district court therefore did not
abuse its discretion in applying the Rule 23(a) typicality requirement to the TVPA class.
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, 320 F.R.D. at 268. Based on these considerations, the court
5 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,
765 F.3d at 1216.
18
did not abuse its discretion in applying Rule 23(b)(3)’s superiority requirement to the
TVPA class. See Newberg § 4:65 (identifying these considerations as factors in favor of
class certification); see also Amchem, 521 U.S. at 617 (explaining that Rule 23(b)(3)
classes seek to “vindicat[e] . . . the rights of groups of people who individually would be
without effective strength to bring their opponents into court at all” (quotations
omitted)).6
d. Predominance
Although Rule 23(b)(3)’s predominance requirement “regularly presents the
greatest obstacle to class certification,” CGC Holding, 773 F.3d at 1087, it does not
defeat the TVPA class in this case. To determine whether the district court abused its
discretion in applying the predominance requirement, we first “characterize the issues in
the case as common or not, and then weigh which issues predominate.” See id. GEO
contends that two of the TVPA class’s issues are not susceptible to generalized proof: (i)
the causation element, and (ii) damages. But as the following analysis shows, (i) the
causation element is susceptible to generalized proof and thus cannot defeat class
certification, and (ii) individual damages assessments would not predominate over the
class’s common issues.
6 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).
19
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 18 U.S.C. § 1589(a)(1)-(4). Although the statute does not use the
word “cause,” to show a § 1589 violation, plaintiffs must prove that an unlawful means
of coercion caused them to render labor. See United States v. Kalu, 791 F.3d 1194, 1211-
12 (10th Cir. 2015) (affirming a jury instruction on § 1589 that advised the jury to
consider whether “as a result of [the defendant’s] use of . . . unlawful means, the [victim
rendered labor] where, if [the defendant] had not resorted to those unlawful means, the
[victim] would have declined to” (quotations omitted)).
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.7 In contrast, GEO argues that a plaintiff must show that the
unlawful means in fact caused the labor. But we need not decide which of these
standards applies to § 1589’s causation requirement in resolving the class certification
7 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, 320 F.R.D. at 264
& n.2.
20
question. Even assuming GEO’s proposed standard applies, the causation element is
susceptible to class-wide proof and thus does not preclude the TVPA class from
satisfying the predominance requirement.
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. 773 F.3d at 1092-
93. In that case, a putative class of borrowers brought a civil RICO claim8 against the
defendants, a group of lenders. Id. at 1080. The plaintiffs alleged that the defendants
had fraudulently induced them to pay upfront fees for loans that the defendants never
actually had the intent or ability to fund. Id. The putative class consisted of “at least 100
borrowers . . . who paid advance fees to defendants.” Id. at 1084. We determined that
8 The Racketeer Influenced and Corrupt Organizations Act (“RICO”) prohibits
various activities performed in connection with an ongoing criminal organization. See 18
U.S.C. §§ 1961-68. In addition to enacting criminal penalties for racketeering activities,
RICO also created a private cause of action for “[a]ny person injured in his business or
property by reason of” the defendant’s RICO violations. Id. § 1964(c) (emphasis added).
A plaintiff bringing a civil RICO claim must show causation. CGC Holding, 773 F.3d at
1088. In civil RICO claims arising from fraud, reliance “frequently serves as a proxy for
both legal and factual causation.” Id.
21
“the fact that a class member paid the nonrefundable up-front fee in exchange for the loan
commitment constitutes circumstantial proof of reliance on the misrepresentations and
omissions regarding . . . the defendant entities’ ability or intent to actually fund the
promised loan.” Id. at 1091-92 (emphasis added).
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.” Id. at 1092. By allowing such an inference, the issue of reliance “becomes
solvable with a uniform piece of circumstantial evidence [i.e., the payment of the up-front
fee].” Id. We therefore held that “the putative class is not stymied, for purposes of class
certification, under Rule 23(b)’s predominance element.” Id.
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.
22
First, a TVPA class member could individually establish causation based on
circumstantial evidence.9 In CGC Holding, we said a jury could infer that a given class
member relied on the defendants’ misrepresentations. Id. at 1091-92. The circumstantial
evidence in CGC Holding included: (1) the plaintiff received a loan commitment
agreement promising funds and requiring payment of an upfront fee in exchange for
financing, and (2) the plaintiff in fact paid the fee. Id. at 1082, 1091-92. Here, a class
member detainee could present the following circumstantial evidence to support an
analogous inference that the Sanitation Policy caused the detainee to work: (1) the
detainee received notice of the Sanitation Policy’s terms, including the possible sanctions
for refusing to clean; and (2) the detainee performed housing unit cleaning work for GEO
when assigned to do so.
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. Id. at 1082. Under
this “cookie-cutter scheme,” potential borrowers received formulaic loan commitment
agreements that required payment of non-refundable upfront fees before receiving the
falsely promised financing. Id. Likewise, the TVPA class members allege that GEO
“coerced [their] labor through a uniform policy subjecting detainees who refused to
9 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).
23
perform such uncompensated work to discipline, up to and including solitary
confinement.” App., Vol. I at 29 (emphasis added).
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, 564 U.S. at 352.10 As in CGC Holding, we “see no reason why a putative class
10 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.” 564 U.S. at 356. The Wal-Mart plaintiffs had “held a multitude of
different jobs, at different levels of Wal–Mart’s hierarchy, for variable lengths of time, in
3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and
female), subject to a variety of regional policies that all differed.” Wal-Mart, 564 U.S. at
359-60 (quotations omitted). The Wal-Mart plaintiffs therefore lacked “some glue
holding the alleged reasons for [their adverse employment decisions] together.” Id. at
352.
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.” 136 S. Ct. 1036, 1048 (2016).
In contrast, the employees in Tyson Foods, who “worked in the same facility, did similar
work, and w[ere] paid under the same policy,” could have introduced statistical evidence
in a series of individual suits. Id.
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 Food’s “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
24
containing plaintiffs, who all [performed housing unit cleaning work under the uniform
Sanitation Policy], should not be entitled to posit the same inference to a factfinder on a
classwide basis.” See CGC Holding, 773 F.3d at 1092.
3) Hypothetical possibilities do not defeat the class-wide inference
Based on the foregoing, the Appellees have met their burden to show that the
causation element would not cause individual questions to predominate. See id. at 1087
(“The real question is whether plaintiffs have sufficiently met their burden under Rule
23(b) . . . [to] show that common questions subject to generalized, classwide proof
predominate over individual questions.”). Specifically, the Appellees have shown that
the TVPA class could establish causation on a class-wide basis from the available
circumstantial evidence. In contrast, as the district court noted, “GEO does not allege
and there is nothing in the record to show that detainees who are not on the daily list still
choose to perform the additional duties or that detainees work autonomously.” Menocal,
320 F.R.D. at 265 n.3. GEO offers in rebuttal only speculative assertions regarding the
class members’ subjective motivations for performing their cleaning duties.11
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
same facility, did the same work, and faced the same potential sanctions for refusing to
work under the same Sanitation Policy.
11 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.
25
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,
773 F.3d at 1092. Here, as we explained above, a factfinder could reasonably draw a
class-wide inference of causation from common evidence pertaining to the uniform
Sanitation Policy.
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., 838 F.3d 629, 644 (5th Cir. 2016) (en banc), cert. denied, 138 S. Ct. 76 (mem.)
(2017). But even after three months of discovery regarding class certification issues,
GEO did not present any individualized rebuttal evidence to the district court that would
cause individual causation questions to predominate at trial.12 In any event, “the district
court may revisit its decision and choose to decertify the class should [GEO] eventually
produce individualized rebuttal evidence.” See Torres, 838 F.3d at 645.
12 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.
26
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.” 773 F.3d at
1089-90 (emphasis added) (quotations omitted). GEO interprets this language to mean
that conjectural possibilities alone may preclude an otherwise permissible class-wide
inference. We disagree. Even on CGC Holding’s facts, it is at least conceivable that a
class member may have paid advance loan fees even though he or she did not actually
rely on the defendant’s misrepresentations. For example, a hypothetical class member
may instead have paid the fees solely because he or she trusted the judgment of a third
party, who, for whatever reason, maliciously recommended entering into a loan
agreement with the defendants. We nevertheless allowed a class-wide inference in CGC
Holding because “the same considerations could lead a reasonable factfinder to conclude
beyond a preponderance of the evidence that each individual plaintiff relied on the
defendants’ representations.” See id. at 1090 (quoting Klay v. Humana, Inc., 382 F.3d
1241, 1259 (11th Cir. 2004)).13 And here, for the reasons already stated above, the same
13 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.” 773 F.3d at 1091
n.9 (emphases added). But we nowhere announced a brightline rule limiting class-wide
inferences to cases involving an economic transaction amenable to rational choice theory.
See Torres, 838 F.3d at 642 (emphases added) (explaining that our opinion in CGC
Holding “says only that the absence of another rational explanation for the plaintiffs’
behavior is sufficient to infer reliance—it does not say it is a necessary condition”). Our
case—which involves alleged group coercion rather than individual arm’s length
transacting—not only allows for a class-wide inference of causation for the reasons stated
above but arguably supports an even stronger inference.
27
considerations could lead a reasonable factfinder to conclude by a preponderance of the
evidence that each TVPA class member would not have performed his or her assigned
cleaning duties without being subject to the Sanitation Policy.
* * * *
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,
808 F.3d at 808 (quotations omitted). Under the circumstances here, the district court
concluded that a factfinder could—but need not—accept a class-wide inference of
causation. Menocal, 320 F.R.D. at 267. For the foregoing reasons, we are satisfied that
the district court did not abuse its discretion.
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., 725 F.3d
1213, 1220 (10th Cir. 2013) (quoting McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 231
(2d Cir. 2008)); see also Newberg § 4:54 & n.2 (stating that “courts in every circuit have
28
uniformly held that the 23(b)(3) predominance requirement is satisfied despite the need to
make individualized damage determinations” and listing cases).
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, 320 F.R.D. at 267. The TVPA class’s common
questions include: (1) whether the Sanitation Policy qualifies as an unlawful means
under § 1589, (2) scienter, (3) causation, (4) whether a civic duty exception exempts the
Sanitation Policy from § 1589, and (5) if so, whether it extends to government contractors
like GEO. As we said in another case, “[t]he district court reasonably concluded that
these questions drove the litigation and generated common answers that determined
liability in a single stroke.” In re Urethane Antitrust Litig., 768 F.3d 1245, 1256 (10th
Cir. 2014) (quotations omitted). Moreover, the district court could “preserve the class
action model in the face of individualized damages,” XTO Energy, 725 F.3d at 1220, such
as by limiting the class action to liability issues. The court therefore did not abuse its
discretion in determining that individual damages would not predominate.
* * * *
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,
773 F.3d at 1086. The court reasonably determined that the class members could show
causation through class-wide inference and that individual damage assessments would
not predominate over the class’s common issues. Its findings on commonality, typicality,
and superiority were likewise reasonable and fell within its discretion.
29
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.” Id. at 1087.
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, 287 P.3d 842,
847, 849 (Colo. 2012). Under Colorado common law, “a party claiming unjust
enrichment must prove that (1) the defendant received a benefit (2) at the plaintiff’s
expense (3) under circumstances that would make it unjust for the defendant to retain the
benefit without commensurate compensation.” Lewis v. Lewis, 189 P.3d 1134, 1141
(Colo. 2008).
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, 287 P.3d at 847
(emphasis added). Whether a plaintiff had a reasonable expectation of payment—while
potentially relevant to the unjustness inquiry—is not itself an element of unjust
enrichment under Colorado law. See Ninth Dist. Prod. Credit Ass’n v. Ed Duggan, Inc.,
821 P.2d 788, 799-800 & n.19 (Colo. 1991). In Ed Duggan, the Colorado Supreme Court
30
explained that the plaintiff’s reasonable expectation of payment is an element of impliedin-
fact contract claims but not unjust enrichment (or implied-in-law contract) claims.
Id.14
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, 320 F.R.D. at 269. GEO
does not dispute—and neither do we—that answering this question would “resolve an
issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart,
564 U.S. at 350. And this question alone suffices to establish the commonality
requirement for the unjust enrichment class. See id. at 359; Stricklin, 594 F.3d at 1195.
14 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, 821 P.2d at 800. A contract
implied in fact “arises from the parties’ conduct,” which “must evidence a mutual
intention by the parties to contract with each other.” DCB Constr. Co. v. Cent. City Dev.
Co., 940 P.2d 958, 961 (Colo. App. 1996), as modified on denial of reh’g (Aug. 29,
1996), aff’d, 965 P.2d 115 (Colo. 1998). In contrast, a contract implied in law—or unjust
enrichment—arises “not from consent of the parties, . . . but from the law of natural
immutable justice and equity.” Id. at 962 (quotations omitted).
31
The district court therefore did not abuse its discretion in applying the Rule 23(a)
commonality requirement to the unjust enrichment class.
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, 765 F.3d at 1216
(quotations omitted). Here, the claims of all the class members—including the
representatives—share the same theory: that GEO unjustly retained a benefit from class
members’ labor under the VWP. The class representatives allege that they—just like all
detainees participating in the Aurora Facility’s VWP in the relevant period—“were
uniformly paid $1 [per] day of work” and that GEO “was thereby unjustly enriched” by
their work. App., Vol. I at 31. And the class representatives’ declarations present no
circumstances that would give rise to a different theory of liability.15 The district court
therefore did not abuse its discretion in applying the Rule 23(a) typicality requirement to
the unjust enrichment class.
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
15 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, 765 F.3d at
1216.
32
noted that “[a]s stated above, many of the putative class members are immigrant
detainees who lack English proficiency[,] . . . have limited financial resources and reside
in countries around the world.” Menocal, 320 F.R.D. at 270. It also was “not aware of
any other suit asserting the claims brought in this case and no other class member has
demonstrated an interest in controlling the litigation.” Id. Based on these considerations,
the court did not abuse its discretion in applying the Rule 23(b)(3) superiority
requirement to the unjust enrichment class. See Newberg § 4:65; see also Amchem, 521
U.S. at 617.16
d. Predominance
Although Rule 23(b)(3)’s predominance requirement “regularly presents the
greatest obstacle to class certification,” CGC Holding, 773 F.3d at 1087, it does not
defeat the unjust enrichment class. GEO contends that two of the unjust enrichment
class’s issues are not susceptible to generalized proof: (i) the unjustness element, and (ii)
damages. But as we show below, (i) the unjustness element is susceptible to generalized
proof, and (ii) individual damages assessments would not predominate over the class’s
common issues.
16 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,” id., the
alternatives proposed by GEO would not address the class members’ claims for monetary
relief and thus are not “superior . . . available methods for fairly and efficiently
adjudicating the controversy.” See Fed. R. Civ. P. 23(b)(3).
33
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, 773 F.3d at 1087 (explaining that we consider “how
the class intends to answer factual and legal questions to prove its claim—and the extent
to which the evidence needed to do so is common or individual”). Second, GEO’s sole
argument to the contrary—that the common evidence cannot establish a reasonable
expectation of payment on the part of the class members—fails because Colorado law
does not require such a showing as an element of unjust enrichment.
1) The class members’ unjustness showings rely on common
circumstances
Although the unjustness element requires “a fact-intensive inquiry,” Melat, 287
P.3d at 847, the unjust enrichment class members intend to rely on facts that are shared
amongst the class and thus are susceptible to class-wide proof. The class members
“claim that GEO’s retention of the benefit is unjust because GEO utilized a policy [of]
paying extremely low wages to workers who were all detained, uniquely vulnerable as
immigrants, and subject to GEO’s physical control.” Aplee. Br. at 48. They seek to
establish the unjust nature of GEO’s benefit based on “evidence of a common course of
conduct by GEO—the uniform VWP and the uniform payments.” Id. at 51. Because the
class members’ theory of unjustness depends on shared rather than individualized
34
circumstances, the unjustness question is common to the class and does not defeat
predominance. See Tyson Foods, 136 S. Ct. at 1045 (“[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.” (brackets and quotations
omitted)).
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, 821 P.2d at
799-800 & n.19.17
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.
17 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, 568 U.S. 455, 466 (2013). As
we noted above, Rule 23(b)(3) predominance depends on “how the class intends to
answer factual and legal questions to prove its claim—and the extent to which the
evidence needed to do so is common or individual.” CGC Holding, 773 F.3d at 1087.
Answering the predominance question thus requires an understanding of the elements of
the class’s underlying claim (in this case, whether unjust enrichment has a “reasonable
expectation” element under Colorado law). See id. at 1088.
35
Schainuck, 791 P.2d 1183, 1184 (Colo. App. 1989) (“A plaintiff cannot recover for unjust
enrichment . . . for services rendered absent proof of circumstances indicating that
compensation is reasonably expected.”). Moreover, post-Ed Duggan Colorado Supreme
Court cases involving unjust enrichment claims have not required plaintiffs to show a
reasonable expectation of payment by the defendant. See, e.g., City of Arvada ex rel.
Arvada Police Dep’t v. Denver Health & Hosp. Auth., 403 P.3d 609, 616-17 (Colo. 2017)
(concluding that a public hospital could seek recovery against a municipality under unjust
enrichment theory where it, “by virtue of its statutory obligation, performed a service
[providing medical treatment to a municipal arrestee] normally covered under contract,”
even though the municipality “never promised to pay for that service, and has in fact
refused to pay, but . . . may have received a benefit”).
* * * *
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, 773 F.3d 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 determination if it
“falls within the bounds of rationally available choices given the facts and law involved
in the matter at hand.” See Soseeah, 808 F.3d at 808 (quotations omitted). Under the
circumstances here, the district court determined that the class members could establish
the unjustness of GEO’s benefit based not on individualized transactions but on the
“overall context” and “uniform policies” shared by all class members. Menocal, 320
36
F.R.D. at 269. For the foregoing reasons, we are satisfied that the district court did not
abuse its discretion.
ii. Damages
As with the TVPA class, the presence of individualized damages issues does not
defeat the predominance of questions common to the unjust enrichment class. “[T]he fact
that damages may have to be ascertained on an individual basis is not, standing alone,
sufficient to defeat class certification.” XTO Energy, 725 F.3d at 1220 (quoting
McLaughlin, 522 F.3d at 231); see also Newberg § 4:54 & n.2 (stating that “courts in
every circuit have uniformly held that the 23(b)(3) predominance requirement is satisfied
despite the need to make individualized damage determinations” and listing cases).
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, 320 F.R.D. at
270. It further stated that if damages proved to be less straightforward, “decertification or
amendment of the class for damages determinations may be appropriate at a later
juncture.” Id. The court therefore did not abuse its discretion in determining that
individual damages would not predominate over the liability issues common to the
class—including (1) whether GEO received a benefit from the class members’ VWP
labor, and (2) whether it retained such a benefit unjustly. See XTO Energy, 725 F.3d at
1220 (“[T]he district court is in the best position to evaluate the practical difficulties
which inhere in the class action format, and is especially suited to tailor the proceedings
accordingly.”).
37
* * * *
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, 773 F.3d at 1086. The court reasonably determined that the class
members shared the circumstances relevant to the unjustness question and that individual
damage assessments would not predominate over the class’s common issues. Its findings
on commonality, typicality, and superiority were likewise reasonable and fell within its
discretion.

Outcome: We affirm the district court’s certification of both classes. We grant the
outstanding motions for leave to file amicus briefs.

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