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

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.

We affirm the district court’s certification of both classes. We grant the

outstanding motions for leave to file amicus briefs.