Sylvester Owino v. Corecivic, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SYLVESTER OWINO; JONATHAN No. 21-55221
GOMEZ, on behalf of themselves, and
all others similarly situated, D.C. No.
Plaintiffs-Appellees, 3:17-cv-01112-
JLS-NLS
v.

CORECIVIC, INC., a Maryland OPINION
corporation,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding

Argued and Submitted February 18, 2022
San Francisco, California

Filed June 3, 2022

Before: M. Margaret McKeown and William A. Fletcher,
Circuit Judges, and Richard D. Bennett, * District Judge.

Opinion by Judge McKeown

*
The Honorable Richard D. Bennett, United States District Judge
for the District of Maryland, sitting by designation.
2 OWINO V. CORECIVIC

SUMMARY **

Class Certification / Victims of Trafficking and
Violence Protection Act

The panel affirmed the district court’s order certifying
three classes in an action brought under the Victims of
Trafficking and Violence Protection Act of 2000 by
individuals who were incarcerated in private immigration
detention facilities owned and operated by CoreCivic, Inc.,
a for-profit corporation.

U.S. Immigration and Customs Enforcement contracts
with CoreCivic to incarcerate detained immigrants in 24
facilities across 11 states. Plaintiffs, detained solely due to
their immigration status and neither charged with, nor
convicted of, any crime, alleged that the overseers of their
private detention facilities forced them to perform labor
against their will and without adequate compensation in
violation of the Victims of Trafficking and Violence
Protection Act of 2000, the California Trafficking Victims
Protection Act (“California TVPA"), various provisions of
the California Labor Code, and other state laws.

The panel held that the district court properly exercised
its discretion in certifying a California Labor Law Class, a
California Forced Labor Class, and a National Forced Labor
Class.

The panel held that, as to the California Forced Labor
Class, plaintiffs submitted sufficient proof of a classwide
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 OWINO V. CORECIVIC 3

policy of forced labor to establish commonality. Plaintiff
established predominance because the claims of the class
members all depended on common questions of law and fact.
The panel agreed with the district court that narrowing the
California Forced Labor Class based on the California
TVPA’s statute of limitations was not required at the class
certification stage.

For the same reasons as above, the panel held that, as to
the National Forced Labor Class, the district court did not
abuse its discretion in concluding that plaintiffs presented
significant proof of a classwide policy of forced labor and
that common questions predominated over individual ones.
The panel held that under Moser v. Benefytt, Inc., 8 F.4th 872
(9th Cir. 2021), CoreCivic’s personal jurisdiction challenge
with respect to the claim of non-California-facility class
members was an issue for the district court to resolve. The
panel declined to vacate the certification of the National
Forced Labor Class, but it held that CoreCivic retained its
personal jurisdiction defense, and the panel remanded the
personal jurisdiction question to the district court for
consideration at the appropriate time.

As to the California Labor Law Class, the panel held that
plaintiffs established that damages were capable of
measurement on a classwide basis, and they did not need to
present a fully formed damages model when discovery was
not yet complete. The panel agreed with the district court
that the named plaintiffs were typical of the class they sought
to represent and their allegations, if true, fit within
California’s Unfair Competition Law and the state labor law
provisions they invoked. Narrowing the class based on
statute of limitations was not required at the certification
stage. The panel held that the district court did not abuse its
discretion in certifying a failure-to-pay and waiting-time
4 OWINO V. CORECIVIC

claim, which was affirmatively interwoven in plaintiffs’
pleadings.

COUNSEL

Nicholas D. Acedo (argued), Daniel P. Struck, Rachel Love,
Ashlee B. Hesman, and Jacob B. Lee, Struck Love
Bojanowski & Acedo PLC, Chandler, Arizona, for
Defendant-Appellant.

Eileen R. Ridley (argued) and Alan R. Ouellette, Foley &
Lardner LLP, San Francisco, California; Robert L. Teel,
Law Office of Robert L. Teel, Seattle, Washington; for
Plaintiffs-Appellees.

OPINION

McKEOWN, Circuit Judge:

This appeal arises from a class action filed by individuals
who were incarcerated in private immigration detention
facilities owned and operated by a for-profit corporation,
CoreCivic, Inc. These individuals—detained solely due to
their immigration status and neither charged with, nor
convicted of, any crime—allege that the overseers of their
private detention facilities forced them to perform labor
against their will and without adequate compensation. Our
inquiry on appeal concerns only whether the district court
properly certified three classes of detainees. Considering the
significant deference we owe to the district court when
reviewing a class certification, as well as the district court’s
extensive and reasoned findings, we affirm the certification
of all three classes.
 OWINO V. CORECIVIC 5

BACKGROUND

In 2017, Sylvester Owino (“Owino”) and Jonathan
Gomez (“Gomez”) (collectively “Owino”) brought a class
action suit against CoreCivic. Both men were previously
held in a civil immigration detention facility operated by
CoreCivic—Owino from 2005 to 2015, and Gomez from
2012 to 2013. They filed suit “on behalf of all civil
immigration detainees who were incarcerated and forced to
work by CoreCivic,” seeking declaratory and injunctive
relief and damages, among other remedies, for
“forcing/coercing detainees to clean, maintain, and operate
CoreCivic’s detention facilities in violation of both federal
and state human trafficking and labor laws.” Specifically,
Owino alleged violations of the Victims of Trafficking and
Violence Protection Act of 2000, 18 U.S.C. § 1589 et seq.
(“TVPA”), California Trafficking Victims Protection Act,
Cal. Civ. Code § 52.5 (“CTVPA”), various provisions of the
California Labor Code, and other state laws.

Pursuant to 8 U.S.C. § 1231(g), U.S. Immigration and
Customs Enforcement (“ICE”) contracts with CoreCivic to
incarcerate detained immigrants in 24 facilities across
11 states. According to Owino, those incarcerated in these
facilities “are detained based solely on their immigration
status and have not been charged with a crime.” Because of
this, ICE states these detainees “shall not be required to
work, except to do personal housekeeping.” These
housekeeping duties are delineated in ICE’s Performance-
Based National Detention Standards (“Standards”):
“1. making their bunk beds daily; 2. stacking loose papers;
3. keeping the floor free of debris and dividers free of clutter;
and 4. refraining from hanging/draping clothing, pictures,
keepsakes, or other objects from beds, overhead lighting
fixtures or other furniture.” Performance-Based National
6 OWINO V. CORECIVIC

Detention Standards 2011, at 406 (revised Dec. 2016),
https://www.ice.gov/doclib/detention-standards/2011/pbnds
2011r2016.pdf. The Standards also require facilities to
provide detainees with the “opportunity to participate in a
voluntary work program” (“Work Program”) for which they
must be compensated at least $1 per day. Id. at 406, 407.

Despite these guidelines, Owino contends that, “as a
matter of policy,” CoreCivic compelled him and detainees
across its facilities to work “as a virtually free labor force to
complete ‘essential’ work duties at their facilities,” including
such “foundational tasks” as kitchen and laundry services.
CoreCivic’s written policies require “all” detainees to
“maintain[] the common living area [i.e., not the bunk bed
area] in a clean and sanitary manner.” The policies further
require “[d]etainee/inmate workers” to carry out a “daily
cleaning routine,” to remove trash, sweep, mop, clean toilets,
clean sinks, clean showers, and clean furniture, and to
undertake “[a]ny other tasks assigned by staff in order to
maintain good sanitary conditions.” Yet, according to
Owino, CoreCivic generally paid ICE detainees either $1 per
day or nothing at all. Owino further contends that CoreCivic
paid ICE detainees between $.75 and $1.50 per day for work
that it “misclassified” as “volunteer,” thus failing to pay
wages that approximated the minimum hourly wage required
by California law.

On April 15, 2019, Owino filed a motion for class
certification, seeking to certify five classes:

1. California Labor Law Class: All ICE detainees who
(i) were detained at a CoreCivic facility located in
California between May 31, 2013, and the present, and
(ii) worked through CoreCivic’s Voluntary Work
Program during their period of detention in California.
 OWINO V. CORECIVIC 7

2. California Forced Labor Class: All ICE detainees
who (i) were detained at a CoreCivic facility located in
California between January 1, 2006, and the present,
(ii) cleaned areas of the facilities above and beyond the
personal housekeeping tasks enumerated in the
Standards, and (iii) performed such work under threat
of discipline irrespective of whether the work was paid
or unpaid.

3. National Forced Labor Class: All ICE detainees
who (i) were detained at a CoreCivic facility between
December 23, 2008, and the present, (ii) cleaned areas
of the facilities above and beyond the personal
housekeeping tasks enumerated in the Standards, and
(iii) performed such work under threat of discipline
irrespective of whether the work was paid or unpaid.

4. California Basic Necessities Class: All ICE
detainees who (i) were detained at a CoreCivic facility
located in California between January 1, 2006, and the
present, (ii) worked through CoreCivic’s Work
Program, and (iii) purchased basic living necessities
through CoreCivic’s commissary during their period of
detention in California.

5. National Basic Necessities Class: All ICE detainees
who (i) were detained at a CoreCivic facility between
December 23, 2008, and the present, (ii) worked
through CoreCivic’s Work Program, and (iii) purchased
basic living necessities through CoreCivic’s
commissary during their period of detention.

A year later—following numerous filings, oral
argument, and supplemental briefing—the district court
certified three of the proposed five classes: (1) the California
Labor Law Class, (2) the California Forced Labor Class, and
8 OWINO V. CORECIVIC

(3) the National Forced Labor Class. In an extensive and
thoughtful order, the district court found the following:

1. California Labor Law Class: Owino and Gomez
“adequately have established that they were never paid
a minimum wage through the [Work Program],” that
they “never received wage statements,” and that
CoreCivic “failed to pay compensation upon
termination” and “imposed unlawful terms and
conditions of employment.” There were sufficient
“common, predominating questions” to certify the
class.

2. California Forced Labor Class: Owino and Gomez
“sufficiently have demonstrated” that CoreCivic
facilities in California “implemented common
sanitation and disciplinary policies that together may
have coerced detainees to clean areas of [CoreCivic’s
California] facilities beyond the personal housekeeping
tasks enumerated in the ICE [Standards].”

3 National Forced Labor Class: Owino and Gomez
“sufficiently have demonstrated” the same regarding
CoreCivic facilities nationwide.

Due to the vulnerability of the class members and the “risks,
small recovery, and relatively high costs of litigation,” the
district court concluded that “class-wide litigation is
superior” because “no viable alternative method of
adjudication exists.”

ANALYSIS

We review the district court’s class certification for
“abuse of discretion.” B.K. ex rel. Tinsley v. Snyder,
 OWINO V. CORECIVIC 9

922 F.3d 957, 965 (9th Cir. 2019). As we set out at length
in Snyder,

An error of law is a per se abuse of discretion.
Accordingly, we first review a class
certification determination for legal error
under a de novo standard, and if no legal error
occurred, we will proceed to review the
decision for abuse of discretion. A district
court applying the correct legal standard
abuses its discretion only if it (1) relies on an
improper factor, (2) omits a substantial
factor, or (3) commits a clear error of
judgment in weighing the correct mix of
factors. Additionally, we review the district
court’s findings of fact under the clearly
erroneous standard, meaning we will reverse
them only if they are (1) illogical,
(2) implausible, or (3) without support in
inferences that may be drawn from the
record.

Id. at 965–66 (quoting Sali v. Corona Reg’l Med. Ctr.,
909 F.3d 996, 1002 (9th Cir. 2018)). Notably, in “reviewing
a grant of class certification, we accord the district court
noticeably more deference than when we review a denial of
class certification.” Wolin v. Jaguar Land Rover N. Am.,
LLC, 617 F.3d 1168, 1171 (9th Cir. 2010).

In assessing whether to certify a class, the district court
determines whether the requirements of Rule 23 are met.
Rule 23 provides:

One or more members of a class may sue or
be sued as representative parties on behalf of
all members only if: (1) the class is so
10 OWINO V. CORECIVIC

numerous that joinder of all members is
impracticable [“numerosity”]; (2) there are
questions of law or fact common to the class
[“commonality”]; (3) the claims or defenses
of the representative parties are typical of the
claims or defenses of the class [“typicality”];
and (4) the representative parties will fairly
and adequately protect the interests of the
class [“adequacy”].

Fed. R. Civ. P. 23(a). Additionally, a proposed class must
satisfy one of the subdivisions of Rule 23(b). Comcast Corp.
v. Behrend, 569 U.S. 27, 33 (2013). Owino seeks to proceed
under Rule 23(b)(3), which requires “the court find[] that the
[common questions] predominate over any questions
affecting only individual members [‘predominance’], and
that a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy
[‘superiority’].” Fed R. Civ. P. 23(b)(3). The district court
made both findings.

CoreCivic brings three challenges to each of the three
certified classes. We review each of these challenges in turn.

I. CALIFORNIA FORCED LABOR CLASS

A. Class-wide Policy of Forced Labor

We first consider CoreCivic’s assertion that Owino
failed to present “[s]ignificant proof” of a class-wide policy
of forced labor, thus defeating commonality. Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 353 (2011). To support
the California Forced Labor class, Owino provided the
declarations of four detainees, all from one facility, but this
was not the extent or the focus of Owino’s “significant
proof,” nor was it the focus of the district court’s decision.
 OWINO V. CORECIVIC 11

Rather, Owino centered his argument, and the district court
centered its holding, on the text of CoreCivic’s corporate
policies. The sanitation policy requires detainees to remove
trash, wash windows, sweep and mop, “thoroughly” scrub
toilet bowls, sinks, and showers, and undertake sundry other
cleaning responsibilities across the facility. On their face,
these policies appear to go beyond those minimal tidying
responsibilities laid out in the ICE Standards. The discipline
policy further makes clear that detainees are subject to a
range of punishments, including disciplinary segregation,
for refusal to “clean assigned living area” or “obey a staff
member/officer’s order.”

The persuasive weight of the text of these policies is
augmented by the statements of ICE detainees themselves,
who declared that they were in fact required to clean
common areas—without payment and under threat of
punishment—in line with the policies. Further, one of
CoreCivic’s own senior managers testified that CoreCivic
facilities do not have the ability to opt out of these company-
wide, “standard policies.”

Commonality is necessarily established where there is a
class-wide policy to which all class members are subjected.
Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014). And
while “the mere existence of a facially defective written
policy—without any evidence that it was implemented in an
unlawful manner—does not constitute ‘[s]ignificant proof’
that a class of employees were [sic] subject to an unlawful
practice,” Davidson v. O’Reilly Auto Enters., LLC, 968 F.3d
955, 968 (9th Cir. 2020) (internal citation omitted), Owino
relied on the written policies as well as the testimony of
former ICE detainees and CoreCivic’s own manager.
Although the company “may wish to distance itself from [its
employee’s] statements,” here the “admissions were
12 OWINO V. CORECIVIC

material and [are] properly before us.” Abdullah v. U.S. Sec.
Assocs., 731 F.3d 952, 966 (9th Cir. 2013).

In view of the highly deferential abuse of discretion
standard and the full scope of evidence in the record, we
reject CoreCivic’s claim that Owino failed to provide
“significant proof” of the class-wide policy necessary to
satisfy the commonality requirement.

B. Predominance of Common Questions

We next consider CoreCivic’s claim that Owino failed to
establish that common questions predominate over
individual ones, thus defeating predominance. The
predominance inquiry tests “whether proposed classes are
sufficiently cohesive to warrant adjudication by
representation.” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S.
442, 453 (2016) (quoting Amchem Products, Inc. v. Windsor,
521 U.S. 591, 623 (1997)). Here, they are.

As the district court noted, the California Forced Labor
class members “share a large number of common attributes,
including that they are immigrants who are or were
involuntarily detained in [CoreCivic’s] facilities and
subjected to common sanitation and disciplinary policies.”
The claims of these class members all depend on common
questions of law and fact—whether CoreCivic utilized
threats of discipline to compel detainees to clean its
California facilities in violation of state and federal human
trafficking statutes. This is a quintessential “common
question” as defined by the Supreme Court: “the same
evidence will suffice for each member to make a prima facie
showing [or] the issue is susceptible to generalized, class-
wide proof.” Tyson Foods, 577 U.S. at 453 (citation
omitted).
 OWINO V. CORECIVIC 13

In other words, the question is appropriate for class-wide
resolution because either CoreCivic’s company-wide
policies and practices violated the law and the rights of the
class members, or they didn’t. See Parsons, 754 F.3d at 678
(holding that the “policies and practices to which all
members of the class are subjected . . . are the ‘glue’ that
holds together the putative class . . . either each of the
policies and practices is unlawful as to every inmate or it is
not”); see also Gonzalez v. U.S. Immigr. & Customs Enf’t,
975 F.3d 788, 808 (9th Cir. 2020).

CoreCivic argues against predominance largely by
attempting to reframe the inquiry, asserting that the district
court should have asked whether each class member actually
has a viable California TVPA claim. However, this is not
the applicable test. In Tyson Foods, the Supreme Court
instructs that

[t]he predominance inquiry asks whether the
common, aggregation-enabling, issues in the
case are more prevalent or important than the
non-common, aggregation-defeating,
individual issues. When one or more of the
central issues in the action are common to the
class and can be said to predominate, the
action may be considered proper under Rule
23(b)(3) even though other important matters
will have to be tried separately, such as
damages or some affirmative defenses
peculiar to some individual class members.

577 U.S. at 453 (internal citations and quotation marks
omitted); see also Olean Wholesale Grocery Coop., Inc. v.
Bumble Bee Foods, 31 F.4th 651, 681–82 (9th Cir. 2022) (en
banc).
14 OWINO V. CORECIVIC

C. Statute of Limitations

Finally, we consider CoreCivic’s argument that the
district court should have narrowed the proposed California
Forced Labor class based on the statute of limitations. While
Owino seeks to include all ICE detainees held at a CoreCivic
facility in California between January 1, 2006, and the
present, CoreCivic argues that because the California TVPA
has a seven-year statute of limitations, no detainee who was
released before May 31, 2010, can bring a claim. See Cal.
Civ. Code § 52.5(c). The district court ruled that such a
finding was premature at the class certification stage: “If
discovery indicates that the class period should be limited,
the Court will entertain a motion to that effect; however, at
this stage in the litigation and on the record before it, the
Court is not inclined to narrow the class period.”

We agree with the district court that narrowing the class
based on statute of limitations is not required at the
certification stage. Along with our sister circuits, we have
held this in the context of the predominance inquiry. See,
e.g., Williams v. Sinclair, 529 F.2d 1383, 1388 (9th Cir.
1975) (“The existence of a statute of limitations issue does
not compel a finding that individual issues predominate over
common ones.”); see also In re Monumental Life Ins. Co.,
365 F.3d 408, 420–21 (5th Cir. 2004); Waste Mgmt.
Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir.
2000). We now clarify that this principle is applicable to
certification more broadly. After all, “[e]ven after a
certification order is entered, the judge remains free to
modify it in the light of subsequent developments in the
litigation.” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147,
160 (1982). CoreCivic cites no case law to the contrary. We
therefore hold that the district court did not abuse its
 OWINO V. CORECIVIC 15

discretion in declining to narrow the California Forced Labor
class.

II. NATIONAL FORCED LABOR CLASS

We can dispense with CoreCivic’s first two challenges
to the National Forced Labor class easily, as these challenges
are virtually identical to those directed at the California
Forced Labor class. For the same reasons discussed above,
the district court did not abuse its discretion in concluding
that Owino presented significant proof of a class-wide policy
of forced labor. Likewise, the district court did not abuse its
discretion in concluding that common questions
predominate over individual ones. CoreCivic’s argument
that the TVPA necessitates a subjective, individualized
inquiry fails due to contrary language in the statute, see, e.g.,
18 U.S.C. § 1589(c)(2) (defining “serious harm” as that
which would compel a “reasonable person” to perform or
continue performing labor to avoid incurring such harm), as
well as the broader predominance test prescribed by
precedent. Tyson Foods, 577 U.S. at 453.

However, CoreCivic’s appeal with respect to personal
jurisdiction is not resolved by what we wrote, above, with
respect to the National Forced Labor class. See Bristol-
Myers Squibb Co. v. Superior Ct. of Cal., 137 S. Ct. 1773
(2017). The district court ruled that CoreCivic had waived
its personal jurisdiction challenge with respect to the claim
of the non-California-facility class members, because it did
not raise such a defense in its first responsive pleadings
(which CoreCivic filed after the Supreme Court decided
Bristol-Myers Squibb). After the district court’s ruling and
after CoreCivic filed its opening brief in this appeal, the
Ninth Circuit squarely addressed this issue: prior to class
certification, a defendant does “not have ‘available’ a Rule
12(b)(2) personal jurisdiction defense to the claims of
16 OWINO V. CORECIVIC

unnamed putative class members who were not yet parties to
the case.” Moser v. Benefytt, Inc., 8 F.4th 872, 877 (9th Cir.
2021).

Although Owino maintains that Moser was wrongly
decided, we have no authority to ignore circuit precedent.
See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en
banc). Owino’s challenge to the merit of CoreCivic’s
personal jurisdiction defense is an issue for the district court
to resolve. See Moser, 8 F.4th at 879.

We decline to vacate the certification of the National
Forced Labor class, but we hold that CoreCivic retains its
personal jurisdiction defense and remand the personal
jurisdiction question to the district court for consideration at
the appropriate time.

III. CALIFORNIA LABOR LAW CLASS

A. Damages Capable of Class-wide Measurement

We first consider CoreCivic’s arguments that the
members of the California Labor Law class have not
presented “a fully formed damages model” and thus cannot
be certified. Owino claims that CoreCivic misclassified the
detainees participating in the Work Program as “volunteers”
rather than “employees” and thus failed to pay them the
minimum wage required in California for “employees,” in
violation of California wage and hour law. The district court
certified the class, holding that Owino had met the
“evidentiary” burden of “present[ing] proof that damages are
capable of being measured on a class-wide basis.”

We agree with the district court that Owino did not need
to present a fully formed damages model “when discovery
was not yet complete and pertinent records may have been
 OWINO V. CORECIVIC 17

still within Defendant’s control.” Rather, “plaintiffs must
show that ‘damages are capable of measurement on a
classwide basis,’ in the sense that the whole class suffered
damages traceable to the same injurious course of conduct
underlying the plaintiffs’ legal theory.” Just Film, Inc. v.
Buono, 847 F.3d 1108, 1120 (9th Cir. 2017) (quoting
Comcast, 569 U.S. at 34). In other words, “plaintiffs must
be able to show that their damages stemmed from the
defendant’s actions that created the legal liability.” Vaquero
v. Ashley Furniture Indus., Inc., 824 F.3d 1150, 1154 (9th
Cir. 2016) (citation omitted).

There is a clear line of causation between the alleged
misclassification of detainee employees as “volunteers” and
the deprivation of earnings they may have suffered as a
consequence of the violation of California wage and hour
laws. See id. at 1155 (holding that, “[i]n a wage and hour
case . . . the employer-defendant’s actions necessarily
caused the class members’ injury”). According to evidence
from a CoreCivic manager, spreadsheets of wages paid, and
CoreCivic’s corporate policy itself, ICE detainees
participated in the Work Program across CoreCivic’s
facilities, for which they were almost never paid more than
$1.50 per day. If CoreCivic did indeed misclassify these
participants as “volunteers” (e.g., because the detainees
should have been considered “employees”), CoreCivic
would necessarily have failed to pay the minimum hourly
wage required by California law. Thus, any damages that
the class members are owed necessarily “stemmed from
[CoreCivic’s] actions.” Id.

Owino presented sufficient evidence to show that
damages are capable of measurement on a class-wide basis.
This evidence includes documentation of “typical” shift
lengths, the days worked by ICE detainees, the wages paid,
18 OWINO V. CORECIVIC

and the job assignments. Additional testimony and
CoreCivic records can establish details about which
detainees participated in the Work Program, see Ridgeway v.
Walmart Inc., 946 F.3d 1066, 1087 (9th Cir. 2020), and as
the Supreme Court emphasized in Tyson Foods, sufficiently
reliable representative or statistical evidence can be used to
establish the hours that a class of employees had worked.
577 U.S. at 459.

B. Narrowing the Class

In seeking certification of the California Labor Law
class, Owino alleged that detainees’ participation in the
Program violated a variety of state labor law provisions, as
well as California’s Unfair Competition Law (“UCL”), Cal.
Bus. & Prof. Code § 17200, et seq. CoreCivic notes,
correctly: “Other than the California UCL claim [which has
a four-year statute of limitations, id. § 17208], all other state
law claims have a one-, two-, or three-year statute of
limitations.” CoreCivic thus argues that Owino is barred
from representing this class at all, because his last day in the
Work Program was May 22, 2013, which is more than four
years before he filed the May 31, 2017, complaint. (Owino
disputes this date, claiming he worked until his release on
March 9, 2015.) CoreCivic further argues that Gomez is
time-barred from pursuing non-UCL claims, because his last
day in the Work Program was September 7, 2013.

The district court held that, for the purposes of the
certification motion, even if the plaintiffs’ claims under the
California Labor Code are time-barred, they could still
recover for the majority of the alleged violations under the
UCL because the UCL prohibits unfair competition, defined
as “any unlawful, unfair or fraudulent business act or
practice,” Cal. Bus. & Prof. Code § 17200, and naturally this
includes such violations of California’s wage and hour law.
 OWINO V. CORECIVIC 19

Under this characterization, the class period for all claims
seeking remedies under the UCL begins May 31, 2013; the
period for waiting-time and failure-to-pay claims begins
May 31, 2014; and the period for claims as to the alleged
failure to provide wage statements begins May 31, 2016 (for
remedies pursuant to Cal. Code Civ. Proc. § 340), or May
31, 2014 (for remedies pursuant to Cal. Code Civ. Proc.
§ 338).

As to the named plaintiffs, the district court ruled that
neither Owino nor Gomez is typical of the members of the
California Labor Law class seeking penalties under
California Labor Code § 226 (which requires employers to
provide wage statements to employees), and that Gomez is
not typical of members of the California Labor Law Class
seeking waiting-time penalties under California Labor Code
§ 203. Nonetheless, the court found that Owino is part of the
California Labor Law class for the wage claims, for failure
to pay compensation upon termination, and for waiting time
penalties and actual damages for the failure to provide wage
statements, while Gomez is part of the California Labor Law
class for the wage claims. Due to CoreCivic’s “belated
assertion of . . . factual disputes concerning whether Mr.
Owino worked during the Class Period for the California
Labor Law Class,” the district court stated it was
“disinclined to resolve this issue at the class certification
stage . . . particularly given that Mr. Gomez remains a viable
class representative for the majority of the claims of the
California Labor Law Class.”

Because plaintiffs can recover for almost all of the
alleged violations under the UCL, the district court properly
rejected CoreCivic’s argument against certification as
predicated on “a distinction without a difference.” The
district court appropriately exercised its discretion by
20 OWINO V. CORECIVIC

declining to resolve a factual matter that CoreCivic raised
for the first time in its post-hearing supplemental brief, and
which the district court concluded was not dispositive of
certification.

We agree with the district court that Owino and Gomez
are typical of the class they are seeking to represent and their
allegations, if true, fit within the statutes they invoke.
Although they may run into statute of limitations issues—
some disputed and unproven—narrowing the class based on
statute of limitations is not required at the certification stage.
Cf. Int’l Woodworkers of Am. v. Chesapeake Bay Plywood
Corp., 659 F.2d 1259, 1270 (4th Cir. 1981) (“Courts passing
upon motions for class certification have generally refused
to consider the impact of such affirmative defenses as the
statute of limitations on the potential representative’s
case.”).

C. Failure-to-pay and Waiting-time Claim

Finally, CoreCivic argues that because Owino and
Gomez “did not reference their failure-to-pay/waiting-time
claim ([Cal. Labor Code] §§ 201–203)” in their motion for
class certification, the district court should not have certified
that claim as one common to the California Labor Law class.
Because the claims are affirmatively interwoven in Owino’s
pleadings, the district court did not abuse its discretion in
certifying this claim.

To begin, the complaint included California Labor Code
§§ 201–03 among the causes of action for the California
Labor Law class:

Plaintiffs and Class Members incorporate the
above allegations by reference.
 OWINO V. CORECIVIC 21

California Labor Code §§ 201 and 202
require CoreCivic to pay all compensation
due and owing to Plaintiffs and Class
Members immediately upon discharge or
within seventy-two hours of their termination
of employment. Cal. Labor Code § 203
provides that if an employer willfully fails to
pay compensation promptly upon discharge
or resignation, as required by §§ 201 and 202,
then the employer is liable for such “waiting
time” penalties in the form of continued
compensation up to thirty workdays.

CoreCivic willfully failed to pay Plaintiffs
and Class Members who are no longer
employed by CoreCivic compensation due
upon termination as required by Cal. Labor
Code §§ 201 and 202. As a result, CoreCivic
is liable to Plaintiffs and former employee
Class Members waiting time penalties
provided under Cal. Labor Code § 203, plus
reasonable attorneys’ fees and costs of suit.

Owino asserted that CoreCivic violated a dozen provisions
of the California Labor Code with respect to the members of
the California Labor Law class. The motion for class
certification then stated, “Plaintiffs’ claims on behalf of the
CA Labor Law Class for violations of the California Labor
Code . . . all turn on a common legal question: whether ICE
detainees that worked through the [Work Program] at
CoreCivic’s facilities in California are employees of
CoreCivic under California law . . . .” Owino then discussed
this question in depth.
22 OWINO V. CORECIVIC

CoreCivic has cited no precedent to suggest that Owino
must specifically list the citation of each of the dozen
provisions of the California Labor Code in the motion for
class certification. Such an approach would exalt form over
substance and ignore the fair notice Owino provided to
CoreCivic throughout the certification proceeding. Rather,
because Owino outlined these provisions substantively in the
complaint, stated that “all” of the alleged violations of the
Labor Code turn on a common question, and discussed the
common question at length, Owino sufficiently referenced
this matter before the district court.

Conclusion

We affirm the district court’s certification of all three
classes. We hold that CoreCivic retains its personal
jurisdiction defense and remand the personal jurisdiction
question to the district court for consideration at the
appropriate juncture.

AFFIRMED.