Forced labor claims by immigration detainees may proceed as Rule 23 class
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Wednesday, February 14, 2018

Forced labor claims by immigration detainees may proceed as Rule 23 class

By Nicole D. Prysby, J.D.

Immigration detainees met Rule 23’s requirements for certification of two classes for claims against a private detention facility, held the Tenth Circuit, affirming a district court on interlocutory appeal. Requirements for the class based on forced work under the Trafficking Victims Protection Act were met because all class members based their claims and theory of recovery on the facility’s sanitation policy, which required detainees to perform cleaning tasks or be subject to sanctions including segregation and criminal proceedings. Requirements for an “unjust enrichment class” were met because their claims were all based on the theory that the facility unjustly retained a benefit from their labor under the voluntary work program. Causation for both classes was subject to generalized proof, and though damages might require individualized calculations, that could not defeat class certification (Menocal v. The Geo Group, Inc., February 9, 2018, Matheson, S., Jr.).

Background. Immigration detainees at a private detention facility in Colorado sought to bring a class action against the facility under the Trafficking Victims Protection Act (TVPA) and Colorado unjust enrichment law. Under the facility’s sanitation policy, detainees were required to perform cleaning tasks or be subject to sanctions, such as solitary confinement or criminal proceedings. The detainees also performed jobs through a voluntary work program that paid $1 per day for tasks such as laundry and food services. The district court certified two classes: the TVPA class for the mandatory work and the unjust enrichment class for the voluntary work. The facility argued on interlocutory appeal that class treatment was inappropriate.

TVPA class. The Tenth Circuit affirmed certification of the TVPA class. It discussed the elements of a cause of action under the TVPA, noting that it requires serious harm, which means any physical or nonphysical harm, including psychological, financial, or reputational harm. Because all class members based their claims on the sanitation policy, they met the commonality requirement. Typicality was also met since the theory of liability was the same for class members and representatives—that the facility knowingly obtained their labor by means of the sanitation policy, which threatened serious harm or physical restraint if they did not perform the uncompensated work. Superiority was met because the detainees would have to overcome significant hurdles to adjudicate their claims individually; in many cases, the putative class members reside outside the U.S., lack English proficiency, and have little knowledge of legal procedures.

As to predominance, the facility argued that causation and damages were not susceptible to generalized proof. But the court disagreed, finding that causation was susceptible to generalized proof because it could be established through circumstantial evidence and the class claims were based on allegations of a single, common scheme (the sanitation policy). To the extent there were individualized issues, such as the detainees’ motivations for performing cleaning duties, those did not predominate. They would not have performed the assigned cleaning duties without being subject to the sanitation policy. The court also noted that the presence of individualized damages does not defeat certification.

Unjust enrichment class. The Tenth Circuit also affirmed certification of the unjust enrichment class. This class met the commonality requirement because there was a single common question: whether the facility received a benefit from the detainees’ labor. All class members shared the same theory of liability; that the facility unjustly retained a benefit from their labor under the voluntary work program. Therefore, typicality was met. The superiority requirement was met using the same logic as for the TVPA class; putative class members are immigrant detainees, who live around the world, and lack English proficiency and financial resources.

Regarding predominance, the facility argued that the unjustness element and damages were not susceptible to generalized proof. The court disagreed, finding that the unjustness element was based on shared circumstances. The facility argued that under Colorado law, the detainees would need to show a reasonable expectation of payment beyond $1 per day to demonstrate unjustness, and that the common evidence did not support such a showing. But the court found that a reasonable expectation of payment is not a required element of unjust enrichment under Colorado law according to the Colorado Supreme Court. Here, the detainees could establish unjustness based not on individualized transaction, but on uniform policies and overall context shared by all class members. As to damages, the court again noted that the presence of individualized damages does not defeat class certification.

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