source: Caselaw Access Project

author: M. SMITH, Circuit Judge:

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text:
    Bacilio Ruiz TORRES; Jose Amador, on behalf of themselves and all other similarly situated persons, Plaintiffs-Appellees, v. MERCER CANYONS INC., Defendant-Appellant.
    No. 15-35615
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted July 8, 2016—Seattle, Washington
    Filed August 31, 2016

      Eric D. Miller (argued), Michael T. Reynvaan, Frederick B. Rivera, and William B. Stafford, Perkins Coie LLP, Seattle, Washington, for DefendanL-Appel-lant.
    Lori Jordan Isley (argued), Joachim Morrison, and David Solis, Columbia Legal Services, Yakima, Washington; Adam J. Berger and Martin S. Garfinkel, Schroeter Goldmark & Bender, Seattle, Washington; for Plaintiffs-Appellees.
    Before: A. WALLACE TASHIMA, and MILAN D. SMITH, JR., Circuit Judges, and LESLIE E. KOBAYASHI, District Judge.

       The Honorable Leslie E. Kobayashi, United States District Judge for the District - of Hawaii, sitting by designation.

   OPINION

M. SMITH, Circuit Judge:

Defendant Mercer Canyons, Inc. (Mercer) appeals the district court’s order certifying a class of domestic farm workers, represented by Bacilio Ruiz Torres and Jose Amador (collectively, Plaintiffs). Mercer operates a fruit and vegetable farm near Prosser, Washington. In 2013, Mercer participated in the federal H-2A program, which permitted Mercer to hire foreign workers to fill temporary agricultural positions at an hourly wage of $12.

Plaintiffs brought a putative class action, claiming that Mercer had a common policy or practice of failing to inform domestic farm workers of the availability of H-2A work that paid $12 per hour, in violation of the Agricultural Workers’ Protection Act (AWPA), 29 U.S.C. §§ 1831(e) and 1821(f), and the Washington Consumer Protection Act (CPA), Wash. Rev. Code § 19.86.020. In addition, Plaintiffs alleged that Mercer failed .to pay its own domestic workers $12 per hour when they carried out the same tasks as foreign H-2A workers, in violation of AWPA and state wage laws.

The district court certified an Inaccurate Information class and an Equal Pay subclass, corresponding to Plaintiffs’ claims. We affirm the district court’s class certification order.

FACTS AND PRIOR PROCEEDINGS

A. Background

Mercer applied for, and was granted, permission to hire temporary foreign workers under the federal H-2A program in order to supplement its workforce for the 2013 season. In February 2013, the Department of Labor issued Mercer a Clearance Order, which described the terms and conditions of Mercer’s participation in the H-2A program. Among other things, the Clearance Order allowed Mercer to employ up to 44 foreign workers for temporary vineyard work from March 24 to September 1, 2013. It also listed the specific types of tasks the H-2A workers would perform, along with the hourly wage they would receive ($12).

One of the conditions of its involvement in the H-2A program obligated Mercer to recruit domestic labor to minimize the number of foreign workers filling the 44 available positions. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel. Barez, 458 U.S. 592, 596, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982). Specifically, Mercer was required to engage in the “positive recruitment” of domestic workers from February 4 to March 21, 2013 through routine recruitment practices, such as telling former employees about H-2A jobs and “soli-citfing] their return.” 20 C.F.R. § 655.135(c), 655.150-154, 655.158. Furthermore, Mercer was required to hire any qualified domestic worker who applied for H-2A work, a requirement that continued through the first half of the contract period, in this case, until June 15, 2013. See 20 C.F.R. § 655.135(a) & (d).

In 2013, Mercer maintained a call-back list to keep track of workers who walked in seeking employment. The list, entitled an “Employment Information Form,” allowed prospective applicants to provide their names, phone numbers, whether they had a driver’s license, and relevant skills or experience so Mercer could “contact [them] for future employment opportunities.” During the 45-day positive recruitment period, almost 200 people entered their information on this list.

Ultimately, Mercer hired only 22 domestic workers for the H-2A program. Some workers were hired through an organization called WorkSource, which provided job referrals. Of the remaining 22 positions available under the H-2A program, Mercer hired only 19 foreign workers. Those 19 workers arrived on May 2, 2013. Their H-2A contract originally ran until September 1, 2013, but was extended two weeks, until September 15, 2013.

During the course of the H-2A program, Mercer realized that additional labor was needed because the H-2A employees were not completing the work fast enough. As a result, Mercer used its own domestic workers to perform some H-2A tasks, such as grapevine tying. It also sought the services of a labor contractor, M&L, which brought in 44 more domestic workers to help with H-2A tasks. Mercer was required to provide a copy of the terms of the work contract or Clearance Order to any worker who performed qualifying H-2A work during the contract period. See 20 C.F.R. §§ 655.122(q); 655.103(b) (defining “corresponding employment”). In addition, all H-2A workers, including any employees performing qualifying H-2A tasks, were entitled to the same wages of $12 per hour. See 20 C.F.R. § 655.122(a).

B. Ruiz Torres and Amador

Ruiz Torres and Amador are domestic farm workers. Ruiz Torres was a vineyard worker at Mercer in 2012. Ruiz Torres later returned to work at Mercer from January 8 to September 6, 2013. During this period, Ruiz Torres claims to have performed some qualifying H-2A work in Mercer’s vineyards. He alleges that he was sometimes paid $12 an hour for this work, and sometimes not. Mercer did not provide Ruiz Torres with either a copy of the Clearance Order or a written work contract. Neither did it inform him about available H-2A work paying $12 per hour.

On March 19, 2013, during the positive recruitment period, Amador walked into Mercer’s front office with his wife and father-in-law. All three were looking for seasonal farmwork in Mercer’s vineyards. Mercer did not tell Amador about the availability of H-2A work for $12 per hour. Instead, the front-office staff informed him that “the chances of getting jobs were really low until the people from ... Mexico arrived, and they would have to see how many spots were open.” Ultimately, Ama-dor decided that he would not sign the employment call-back list, although his wife and father-in-law did. Mercer did not contact any of them about employment opportunities.

C. Procedural History

Plaintiffs brought a putative class action in the Eastern District of Washington, alleging that Mercer failed “to inform local farm workers about the availability of $12 an hour vineyard labor jobs.” According to Plaintiffs, Mercer’s failure to disclose violated AWPA, 29 U.S.C. §§ 1831(e) and 1821(f), and. the CPA,. Wash. Rev. Code § 19.86.020. In addition, Plaintiffs claimed that Mercer failed to pay its domestic workers $12 per hour for qualifying H-2A work, in violation of AWPA, 29 U.S.C. § 1832(a), and 1822(a), and Washington wage law, Wash. Rev. Code § 49.52.050.

Mercer moved for summary judgment on Plaintiffs’ individual claims under AWPA, the CPA, and Washington state wage laws. The district court denied summary judgment. It further denied Mercer’s motion for reconsideration, and Mercer’s request to certify the summary judgment order for interlocutory appeal.

Subsequently, Plaintiffs moved to certify an Inaccurate Information class and an Equal Pay subclass. The Inaccurate Information class, numbering approximately 600 individuals, includes the following members:

All domestic migrant and seasonal farm workers who: 1) were employed as vineyard workers by Mercer Canyons in 2012; 2) sought employment at Mercer Canyons in 2013 between February 4 and June 15, 2013; or 3) performed vineyard work at Mercer Canyons between March 24 and September 15, 2013, and were not referred by WorkSource.

Within this class, Plaintiffs identified an Equal Pay subclass, see Fed. R. Civ. P. 23(c)(5), of approximately 200 individuals. This subclass is comprised of the following members:

All domestic and seasonal farm workers who performed vineyard work between March 24 and September 15, 2013 for Mercer Canyons, were paid less than $12 per hour, and were not referred by WorkSource.

The district court granted Plaintiffs motion for class certification, and appointed Ruiz Torres and Amador as class representatives. This timely appeal followed.

STANDARD OF REVIEW AND JURISDICTION

We have jurisdiction pursuant to 28 U.S.C. § 1292(e). We review the district court’s class certification order for abuse of discretion and the findings of fact upon which it relied for clear error. Parsons v. Ryan, 754 F.3d 657, 673 (9th Cir. 2014). “An abuse of discretion occurs when the district court ... relies upon an improper factor, omits consideration of a factor entitled to considerable weight, or mulls the correct mix of factors but makes a clear error of judgment in assaying them.” Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1018 (9th Cir. 2011) (quoting Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1171 (9th Cir. 2010)). When reviewing an order granting class certification, “we accord the district court noticeably more deference than when we review a denial.” Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 956 (9th Cir. 2013) (quoting Wolin, 617 F.3d at 1171).

ANALYSIS

Rule 23 sets forth a series of pre-requi-sites to class certification, including the existence of (1) “questions of law or fact common to the class” and (2) “claims or defenses of the representative parties ... typical of the claims of defenses of the class.” Fed. R. Civ. P. 23(a)(2), (a)(4). Rule 23(b)(3), applicable here, additionally requires that common questions of law or fact found under Rule 23(a)(2) “predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”

On appeal, Mercer raises numerous challenges to the district court’s certification decision. In particular, it contends that the district court found common issues where there were none. Next, it contends that the district court abused its discretion by finding that these common issues predominated. Finally, it challenges the district court’s finding that Ruiz Torres and Amador’s claims and defenses were typical of those of the class. We address each of these arguments in turn.

I. Inaccurate Information class

A. Rule 23(a)(2) commonality

“What matters to class certification ... is not the raising of common ‘questions’ — even in droves — but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). To satisfy Rule 23(a)(2) commonality, “ ‘[e]ven a single [common] question’ will do.” Id. at 359, 131 S.Ct. 2541 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)).

In finding commonality within the Inaccurate Information class, the district court identified two related common questions it believed would drive the resolution of the litigation:

(1) “Whether Mercer Canyons had a policy or practice to withhold information pertaining to H-2A jobs from job-seekers and current employees”
(2) “Whether such withholding constituted providing false or misleading information concerning the existence of, or terms and conditions of, jobs ... under the AWPA and CPA.”

Mercer argues that the district court “committed a per se abuse of discretion by misinterpreting the substantive law governing plaintiffs’ claims, which led it to divine common issues.” This is essentially the same argument made by Mercer in its motion for summary judgment, wherein it asserted that AWPA imposes no such disclosure duty concerning H-2A work. To resolve this question at the class certification- stage would provide Mercer the sort of interlocutory review of the summary judgment order that the district court had declined to certify.

Instead, we consider merits questions at the class certification stage only to the extent they are relevant to whether Rule 23 requirements have been met. Stockwell v. City of S.F., 749 F.3d 1107, 1113 (9th Cir. 2014). With this principle in mind, we conclude that the district court did not abuse its discretion by identifying the existence of a legal issue common to the class. The district court found that one reading of the relevant statutes supports the existence of a disclosure duty, and that an answer to this threshold question would drive the resolution of the litigation. Without such a duty, the claims of the class as a whole would fail. With it, Plaintiffs would clear a significant legal, hurdle.

In particular, the district court focused on Sections 1831(e) and 1821(f) of AWPA. Section 1831 relates to seasonal agricultural workers, while Section 1821 concerns migrant agricultural workers. These two provisions exhibit significant parallels, and the language of § 1831(e) is nearly identical to that of § 1821(f). Section 1831(e) states:

No farm labor contractor, agricultural employer, or agricultural association shall knowingly provide false or misleading information to any seasonal agricultural worker concerning the terms, conditions, or existence of agricultural employment required to be disclosed by subsection (a), (b), or (c) of this section.

In construing the meaning of AWPA’s reference to “false or misleading information,” the district court considered a separate, but related, set of regulations concerning an employer’s duties under the H-2A program, see, e.g., 20 C.F.R. §§ 655.122, 655.135, 655.153, and determined that AWPA’s prohibition on the provision of “false or misleading information,” 29 U.S.C. §§ 1831(e), 1821(f), could include a material omission. For the purposes of class certification, we need not presently decide whether Plaintiffs’ construction of Sections 1831(e) and 1821(f) of AWPA is correct, only that it raises a common legal question.

Mercer counters that since H-2A positions are not specifically referenced in AWPA, such positions are not “required to be disclosed,” and therefore fall outside the scope of the statute. That argument is susceptible of classwide resolution. While we do not here decide the common question, we agree with the district court that Mercer’s failure to disclose “information pertaining to H-2A jobs,” such as the existence or pay-rate of such work, may constitute “false or misleading” information, and therefore poses a common question of liability.

Moreover, the district court identified a related question of fact. Plaintiffs presented evidence that Mercer had a “common policy or practice of withholding information pertaining to H-2A jobs from job-seekers and current employees.” The answer to this question, too, will help to drive the resolution of the litigation for all class members. See Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1165-66 (9th Cir. 2014) (holding that “[pjroving at trial whether such informal or unofficial policies existed” would drive the resolution of class claims).

B. Rule 23(b)(3) predominance

The Rule 23(b)(3) predominance inquiry asks the court to make a global determination of whether common questions prevail over individualized ones. For purposes of this analysis, “[a]n individual question is one 'where members of a proposed class will need to present evidence that varies from member to member,’ while 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.’ ” Tyson Foods v. Bouaphakeo, - U.S. -, 136 S.Ct. 1036, 1045, 194 L.Ed.2d 124 (2016) (quoting 2 W. Rubenstein, Newberg on Class Actions § 4:50, 196-97 (5th ed. 2012)).

Predominance is not, however, a matter of nose-counting. Jimenez, 765 F.3d at 1165. Rather, more important questions apt to drive the resolution of the litigation are given more weight in the predominance analysis over individualized questions which are of considerably less significance to the claims of the class. It is an assessment of “whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 944 (9th Cir. 2009) (quotations omitted).

1. Common proof of injury under the CPA

Mercer’s primary challenge to predominance is that the district court erred concerning the elements of a CPA claim under Washington law. Specifically, Mercer claims that “[the district court] failed to appreciate that ... injury is an element of [CPA] liability, not just a component of damages.” Here, the district court did not commit such a clear legal misstep. Rather, it acknowledged that a CPA claim requires the following five elements:

(1) an unfair or deceptive act or practice;
(2) which occurs in trade or commerce;
(3) that impacts the public interest;
(4) which causes injury to the plaintiff in his or her business or property; and
(5) which injury is causally linked to the unfair or deceptive act.

See Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wash.2d 299, 858 P.2d 1054,1061 (1993) (en banc).

The district court then weighed whether common issues predominate within the Inaccurate Information Class. First, it noted that Plaintiffs could satisfy at least the first three CPA elements by “proving the common questions.” It then remarked that any individualized questions raised by Mercer “nearly all go to the issue of damages rather than liability.” Thus, it concluded that predominance was not defeated, notwithstanding the existence of some individualized questions.

Because this reasoning does not reveal an error of law concerning the kinds of factors to be weighed, Mercer must rely on the claim that the district court “mull[ed] the correct mix of factors but [made] a clear error of judgment in assaying them,” Stearns, 655 F.3d at 1018 (quotations omitted). But the district court recognized that important questions, regarding the existence of a common policy of non-disclosure, and whether such non-disclosure constituted false and misleading information, would “drive the resolution” of the AWPA and CPA claims. Wal-Mart, 564 U.S. at 350, 131 S.Ct. 2541. Considered in light of these core claims, the district court did not abuse its discretion by concluding that the existence of some individualized issues did not overwhelm an overall finding of predominance.

2. “Informational” injury

Moreover, it is not clear that Plaintiffs’ showing of “injury” under the CPA would necessarily be wholly individualized. Plaintiffs characterize their injury as an informational one. This informational injury, they claim, stems from a common policy of non-disclosure by Mercer. As a result of this non-disclosure, class members were deprived of the opportunity to pursue H-2A work at $12 per hour.

The CPA is a remedial statute that defines “injury” liberally to include when “the plaintiffs property interest or money is diminished ... even if the expenses caused by the statutory violation are minimal.” Panag v. Farmers Ins. Co. of Wash., 166 Wash.2d 27, 204 P.3d 885, 892 (2009) (en banc) (quotations omitted). “[T]he injury involved need not be great, or even quantifiable.” Ambach v. French, 167 Wash.2d 167, 216 P.3d 405, 407 (2009) (en banc). Rather, the limitation that a defendant’s conduct cause injury in “business or property” has only been deployed to exclude suits for personal injury and emotional distress. See Wash. State Physicians Ins. Exch., 858 P.2d at 1063.

Under Plaintiffs’ theory, an individual may experience “injury” under the CPA if, for example, Mercer’s omission causes her to expend time or resources looking for other jobs. In this manner, informational injury need not result in direct pecuniary loss, although it may do so. See Panag, 204 P.3d at 900; Handlin v. On-Site Manager, Inc., 187 Wash.App. 841,351 P.3d 226, 230 (2015) (holding that “consumer disclosures mandated by the [state Fair Credit Reporting Act] are a form of property,” and that “sufficient injury is therefore pleaded if a plaintiff alleges that she was deprived of the use of her property for even a short amount of time”). Moreover, a reasonable fact finder could conclude that, but for Mercer’s alleged policy of non-disclosure, class members would have had the opportunity to seek H-2A work at the $12 hourly rate. See Schnall v. AT&T Wireless Servs. Inc., 171 Wash.2d 260, 259 P.3d 129, 137 (2011) (adopting a “proximate cause standard” for causation under the CPA).

In contrast, Mercer interprets the nature of the alleged “injury” more narrowly as being deprived of an H-2A job. Mercer reasons that to show injury, one must demonstrate eligibility ■ for an H-2A job. Such a reading relies on an unduly narrow conception of “injury.” Under the CPA, an injury resulting from non-disclosure may also include being denied the opportunity to apply for an H-2A job. For similar reasons, Plaintiffs’ theory of liability does not depend on a class member’s immigration status. Under the informational injury theory, a class member’s status is irrelevant at the liability phase, so long as she was denied the opportunity to apply for a job as a result of Mercer’s policy of omission. The separate question of actual damages will hinge on the amount of harm caused by class members’ being deprived of the opportunity to pursue those jobs. The presence of individualized damages calculations, however, does not defeat predominance. Leyva v. Med-line Indus., Inc., 716 F.3d 510, 513-14 (9th Cir. 2013).

3. The presence of “non-injured” class members

Even crediting Plaintiffs’ theory of injury, Mercer falls back on the argument that “a class cannot be certified if it contains both injured and non-injured parties.” We find this argument unpersuasive for several reasons.

First, Mercer’s statement is inaccurate, as even a well-defined class may inevitably contain some individuals who have suffered no harm as a result of a defendant’s unlawful conduct. See Newberg on Class Actions § 2:3; Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 823 (7th Cir. 2012) (“[S]ome class members’ claims will fail on the merits if and when damages are decided, a fact generally irrelevant to the district court’s decision on class certification.”).

Mercer’s cláim that the presence of certain “non-injured” individuals within the Inaccurate Information class defeats predominance is also mistaken. Empirically, Mercer contends that the class is too broad because it includes a subset of people exposed to — yet ultimately not harmed by — a policy of non-disclosure. This merely highlights the possibility that an injurious course of conduct may sometimes fail to cause injury to certain class members. However, it fails to reveal a flaw that may defeat predominance, such as the existence of large numbers of class members who were never exposed to the challenged conduct to begin with. See Mazza v. Am. Honda Motor Co., 666 F.3d 581, 596 (9th Cir. 2012); see also Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1068-69 (9th Cir. 2014). Mercer’s remaining challenges concern the overbreadth of the class definition. Yet the class definition is reasonably co-extensive with Plaintiffs’ chosen theory of liability. Ultimately, Mercer’s argument reflects a merits dispute about the scope of that liability, and is not appropriate for resolution at the class certification stage of this proceeding.

a. Empirical overbreadth

Mercer contends that, even if a common policy or practice of non-disclosure existed, it did not result in injury to certain class members. That is not because they were not subject to the challenged practice in the first place. Rather, it is Mercer’s contention that those class members, even had Mercer provided them with the omitted H-2A job information, would not have been any better off because they were not looking for work at the time, would not have been ultimately hired by Mercer¡ or for other individualized reasons. Mercer’s examples each highlight the potential for unlawful conduct in the absence of harm. We conclude that such fortuitous non-injury to a subset of class members does not necessarily defeat certification of the entire class, particularly as the district court is well situated to winnow out those non-injured members at the damages phase of the litigation, or to refine the class definition. See Newberg on Class Actions § 2:3.

This stands in contrast to the situation in Mazza, where many class members were not injured by virtue of the fact that they “were never exposed to the allegedly misleading advertisements.” 666 F.3d at 597. In Mazza, the defendant subjected only a small segment of an expansive class of car buyers to misleading material as part of a “very limited” advertising campaign. Id. at 595. Under those circumstances, we found that Rule 23 predominance was defeated, since “it was unreasonable to assume that all class members purchasing cars had seen the potentially misleading ads.” Id. at 596. That is not the situation here, where the existence of a common policy or practice, if proven, is evidence that the class as a whole was exposed to purportedly misleading omissions about H-2A jobs.

Mercer counters that whether the omission was misleading, and therefore injurious, will “turn on the minutia of individual interactions and circumstances” between Mercer and class members. However, Mercer has not shown that the class as a whole was exposed to “disparate information from various representatives of the defendant,” Stearns, 655 F.3d at 1020, creating materially different impressions about the availability of H-2A work. Rather, the conduct at issue is reasonably uniform as the crux of Plaintiffs’ legal challenge involves a common failure to disclose information, and not merely a disparate series of affirmative statements. Accordingly, the district court did not abuse its discretion in concluding that whether a class-wide policy or practice of non-disclosure existed was a common question of fact that “predominates over the exact interaction between individual job-seekers and Mercer.”

In sum, pursuant to Rule 23, “the court’s task at certification is to ensure that the class is not ‘defined so broadly as to include a great number of members who for some reason could not have been harmed by the defendant’s allegedly unlawful conduct.’ ” Newberg on Class Actions § 2:3 (quoting Messner, 669 F.3d at 824). We are satisfied that condition is met here.

b. Definitional overbreadth

Mercer’s challenge also stems from an underlying concern that the class was drawn too broadly, perhaps in the interest of inclusion of all individuals who had potential damages claims under AWPA and the CPA. This potential flaw, however, is not fatal to certification. Mercer’s dispute merely reflects the existence of contrasting litigation positions on the proper scope of liability, and a merits issue that the district court will later resolve concerning the breadth of Mercer’s disclosure duty over time.

For now, Plaintiffs need not downsize their legal theory that Mercer had a disclosure duty toward all members of the class, in favor of a duty to target only those most likely to be interested. What is critical is that Plaintiffs’ theory of informational injury, through Mercer’s failure to disclose H-2A job information to those it typically recruited or used for H-2A work, actually maps onto the membership of the class. In other words, class membership must fit the theory of legal liability.

We conclude that the composition of the Inaccurate Information class meets this requirement, given the underlying legal framework upon which Plaintiffs rely. Notably, none of the relevant disclosure regulations varies on its face according to the existing knowledge or interest of the worker. For example, an employer of seasonal or migrant workers must contact former domestic workers “employed by the employer in the occupation at the place of employment during the previous year and solicit their return.” 20 C.F.R. § 655.153. This regulation corresponds to the portion of the class definition that includes those “employed as vineyard workers by Mercer Canyons in 2012.”

In addition, the class definition includes those seasonal and migrant workers who “sought employment at Mercer Canyons in 2013 between February 4 and June 15, 2013.” This part of the definition maps onto Mercer’s positive recruitment and hiring obligations during this interval. See 20 C.F.R. § 655.154 (requiring an employer to engage in “method(s) of “positive recruitment” “no less than the normal recruitment efforts of non-H-2A agricultural employers”); 20 C.F.R. § 655.135(a) & (d) (requiring an employer to hire all qualified domestic applicants up through the first half of the contract period). As a result, this definition tracks the group of job-seekers who were subject to, and therefore could be harmed by, Mercer’s allegedly unlawful failure to disclose.

The class definition also includes those domestic workers who “performed vineyard work at Mercer Canyons between March 24 and September 15, 2013.” Because H-2A work encompassed many vineyard tasks such as vine-tying, Plaintiffs contend that those who performed vineyard work during the contract period were entitled to H-2A job information pursuant to the regulations. See 20 C.F.R. § 655.122(q) (requiring an employer to disclose the terms of the work contract to workers engaged in qualifying H-2A work during the contract period); § 655.103(b) (defining “corresponding employment”).

The composition of the Inaccurate Information class, as reflected in these definitions, reveals a reasonably close fit with Plaintiffs’ theory of liability, such that Rule 23(b)(3) predominance is maintained. As a result, the membership of the class is largely co-extensive with those who could have been injured by Mercer’s conduct. As the case progresses, the district court may elect to separate the class into subclasses, or adjust the scope of the class definition, if it later finds that the inclusiveness of the class exceeds the' limits of Mercer’s legal liability under AWPA or the CPA.

Finally, Mercer identifies one minor source of over-expansiveness. Specifically, it claims that some individuals who “sought employment” at Mercer and might ostensibly fall within the class definition, were actually seeking work as tractor drivers, and thus presented unlikely candidates for H-2A vineyard work. If necessary, however, the district court may construe the class definition more narrowly, or otherwise conform its interpretation of the class definition with the prevailing theory of liability. See Messner, 669 F.3d at 826 n.15 (“In circumstances such as these, involving minor overbreadth problems that do not call into question the validity of the class as a whole, the better course is not to deny class certification entirely but to amend the class definition as needed to correct for the over-breadth.”).

II. The Equal Pay subclass

The district court certified an Equal Pay subclass within the Inaccurate Information class, consisting of those workers who “performed vineyard work between March 24 and September 15, 2013, were paid less than $12 per hour, and were not referred by WorkSource.” With respect to this subclass, the district court identified a common question of “whether Mercer Canyon had a practice to consistently fail to pay employees $12 [an hour] for corresponding Clearance Order work.” It found that predominance existed because Plaintiffs planned to prove liability for underpayment in the aggregate, such that there was a common question of liability amenable to class-wide proof.

A. Rule 23(a)(2) commonality

Plaintiffs proposed to demonstrate class-wide liability by offering proof of un-derpayment in the aggregate. Mercer protests that the common proof that Plaintiffs rely upon, company accounting and payroll records, is inaccurate. Rather, Mercer asserts that the records are simply accounting cost codes for it to track work in the aggregate, and do not show the actual rate at which individual employees were paid. Instead, Mercer claims that it used timecards, which reflected when an employee performed H-2Á tasks. This information was then manually entered into Mercer’s payroll system, so that employees were allegedly paid $12 per hour for performing corresponding work.

Whether the proffered evidence ultimately shows that Mercer failed to pay its workers touches on a central element of liability. “When, as here, the concern about the proposed class is ... an alleged failure of proof as to an element of the plaintiffs’ cause of action — courts should engage that question as a matter of summary judgment, not class certification.” Tyson Foods, 136 S.Ct. at 1047 (quoting Nagareda, 84 N.Y.U. L. Rev. at 107). As a result, we conclude that the district court did not abuse its discretion by identifying a common question of fact concerning whether Mercer’s domestic workers were consistently paid $12 per hour for H-2A work.

B. Rule 23(b)(3) predominance

Mercer also claims that defending against the aggregate underpayment claims will require it to raise individualized defenses, thereby defeating predominance. Plaintiffs’ approach, it argues, would result in a “Trial by Formula,” without allowing Mercer to engage in individual inquiries or raise individual defenses that a particular class member was paid the proper wages.

Mercer reasons that because these defenses would not be “common to the claims made by all class members,” Tyson Foods, 136 S.Ct. at 1047, Plaintiffs’ method of common proof is deficient. Tyson Foods addressed the use of representative samples and statistical methods of proof. Id. at 1046. Here, proof is not a matter of probability — it is a matter of logic that an aggregate underpayment means that Mercer underpaid some, possibly all, subclass members. In this context, Plaintiffs’ method of establishing liability for underpayment in the aggregate is a permissible means of proceeding. See Newberg on Class Actions § 12:2 (“[T]here is no absolute requirement in Rule 23 that aggregate damages be calculable, but where they are, they may be all that plaintiffs need to prove.”). Particularly where Mercer has allegedly failed to keep adequate accounting records specific to each employee, class members may be compelled to resort to an aggregate method of proving wage underpayment. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946) (“[I]t is the employer who has the duty ... to keep proper records of wages, hours and other conditions and practices of employment and who is in position to know and to produce the most probative facts concerning the nature and amount of work performed.”).

Of course, the partitioning of damages among class members may lead to individual calculations. Yet those calculations would not impact a defendant’s liability for the total amount of damages. Cf. Hilao v. Estate of Marcos, 103 F.3d 767, 786 (9th Cir. 1996) (class-action defendant’s interest was “only in the total amount of damages for which it will be liable,” not “the identities of those receiving damage awards”). In wage-and-hour disputes, such individualized damages inquiries are common, and typically do not defeat certification. Leyva, 716 F.3d at 513-14.

III. Rule 23(a)(4) typicality

The test of typicality serves to ensure that “the interest of the named representative aligns with the interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). “Under the Rule’s permissive standards, representative claims are ‘typical’ if they are reasonably coextensive with those of absent class members; they need not be substantially identical.” Parsons, 754 F.3d at 685 (quotations omitted). In this context, “typicality refers to the nature of the claim or defense, ... and not to the specific facts from which it arose or the relief sought.” Id. Measures of typicality include “whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.” Hanon, 976 F.2d at 508.

The district court found that the typicality requirement was met in this case. Mercer raises several arguments to the contrary. First, Mercer emphasizes that the class definition includes both “seasonal and migrant farm workers,” whereas Amador and Ruiz Torres are only seasonal farm workers. Mercer has not articulated how this would make a substantive difference in the prosecution of the AWPA and CPA claims. In fact, AWPA’s disclosure provision regarding seasonal workers, 29 U.S.C. § 1821(f), is nearly identical to the one involving migrant workers, 29 U.S.C. § 1831(e). See supra. Nor does the CPA draw any such distinctions.

Next, Mercer notes that some of the workers performing H-2A tasks were hired through a labor contractor, M&L, whereas Ruiz Torres was directly hired by Mercer. However, both allegedly experienced the same informational harm of not being told about H-2A work paying $12 per hour, and the harm of wage underpayment after performing qualifying H-2A work. Moreover, for the equal pay claims, both must prove that Mercer was an “employer” within the meaning of federal and state labor law. See 29 U.S.C. § 1802(2), (5); Wash. Rev. Code § 49.46.010(2), (4). The M&L workers might also claim that M&L was a joint employer. Yet the district court did not abuse its discretion when it concluded that “the nature of the claim would appear to be the same even if one additional question would need to be answered” for the M&L workers.

Mercer further contends that Ruiz Torres is not a typical “former employee,” since he is a former employee who later returned to perform a non-H-2A job at Mercer. However, he claims to have suffered the same class-wide harm of not being told about the available H-2A work, and falls squarely into the class of workers who allegedly performed H-2A tasks for less than $12 per hour. Therefore, his claims are sufficiently typical of that of the class.

Finally, Mercer argues that Ama-dor is an atypical representative for the Inaccurate Information class because he never signed the call-back list when he visited seeking work. Amador explained he was so discouraged upon learning that H-2A jobs were being held for foreign workers that he decided not to leave his contact information. Nonetheless, it is undisputed that Amador “sought employment” from Mercer, as the class definition requires, and that Mercer failed to disclose to Ama-dor the availability of $12-per-hour H-2A jobs. Amador’s personal narrative is somewhat more colorful, but it falls within the common contours of Plaintiffs theory of liability. See Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985 n.9 (9th Cir. 2011) (“Differing factual scenarios resulting in a claim of the same nature as other class members does not defeat typicality.”). Here, the gravamen of'the Inaccurate Information claim is a common omission about the availability of H-2A work paying $12 an hour. The “nature” of Amador’s individual claim is thus “reasonably coextensive” with that of the class of local farm workers who did not receive the benefit of information about H-2A jobs. Parsons, 754 F.3d at 685. Moreover, Mercer does not indicate how any differences would “preoccupy” Ruiz Torres or Amador or “threaten to become the focus of the litigation,” Hanon, 976 F.2d at 508, such that the district court committed a clear error of judgment.

CONCLUSION

For the foregoing reasons, we hold that the district court did not abuse its discretion by certifying the Inaccurate Information class and the Equal Pay subclass. The district court’s class certification order is AFFIRMED.

      . The text of Section 1821(f) differs from Section 1831(e) in two respects, neither of which is material here. First, it refers to subsections "(a), (b), (c), or (d)” of that provision because Section 1821 includes an additional subsection concerning disclosure requirements for housing providers. In addition, it substitutes the word "seasonal agricultural worker” for "migrant agricultural worker.”

      . Subsections (a), (b), and (c) of § 1831 deal with written disclosure requirements, posting requirements, and recording keeping requirements imposed on employers of agricultural workers.

      . WorkSource referrals are excluded from the class definition, as the referred individuals were presumably informed about available H-2A jobs.

      . Mercer initially sought discovery concerning the immigration status of the lead plaintiffs. The district court denied Mercer’s motion to compel and issued a protective order.

      . In only two cases did Mercer identify putative class members, former employees Sandra Blanco and her sister Genoveva Guzman, who were affirmatively contacted about available work by Mercer. Mercer does not indicate, however, that the advertised work concerned the H-2A positions.

      . Mazza quotes a Second Circuit decision stating that "no class may be certified that contains members lacking Article III standing.” Mazza, 666 F.3d at 594 (quoting Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006)). However, that statement taken in context signifies only that it must be possible that class members have suffered injury, not that they did suffer injury, or that they must prove such injury at the certification phase. See Denney, 433 F.3d at 263-64 ("We do not require that each member of a class submit evidence of personal standing.... [Rather], the class must ... be defined in such a way that anyone within it would have standing.”); see also Stearns, 655 F.3d at 1021 ("At least one named plaintiff must satisfy the actual injury component of standing in order to seek relief on behalf of himself or the class.”); Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc).

      . Indeed, defining the class to include only those individuals who were "injured” by nondisclosure threatens to create a "fail safe” class, one that is defined so narrowly as to "preclude!] membership unless the liability of the defendant is established.” Kamar v. RadioShack Corp., 375 Fed.Appx. 734, 736 (9th Cir. 2010). As a result, we require no more than a reasonably close fit between the class definition and the chosen theory of liability.

      . Mercer also challenges the accuracy of the employment call-back list, which Plaintiffs used to identify those class members who "sought employment.” It notes that the list contains some Mercer customers who erroneously signed it. However, this is an evidentia-ry quibble in the guise of a challenge to the class definition. It does not bear on the salient question of whether those workers who actually "sought employment,” as the class definition provides, were unlawfully denied information on H-2A jobs.

      . Mercer’s argument relies on the assumption that those job-seekers who listed "truck driving” as one of their skills on the employment call-back list were not also interested in pursuing H-2A work.

      . Under the aggregate approach, Plaintiffs need not identify specific instances in which an employee was not paid $12 per hour for performing H-2A work, as long as the records show (1) the total wages that non-H-2A employees received for performing H-2A qualifying work, and (2) the total number of hours of H-2A work performed by those employees. Since H-2A work required compensation at $12 per hour, the existence of a shortfall in aggregate wages would constitute proof of underpayment.

      . As the Wal-Mart Court noted, "[t]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” 131 S.Ct. at 2551 n.5 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 158, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)).

      . It is possible that Mercer exposed Amador to both a misrepresentation along with a common omission concerning the availability of H-2A jobs. Nonetheless, Mercer fails to raise this particular challenge to typicality and, moreover, the thrust of the misrepresentation essentially overlaps with that of the material omission. Both create the false impression that Mercer was not seeking to hire H-2A workers when he sought employment.


author: TASHIMA, Circuit Judge:

text:
    C.R., by and through his parents and next friends, Mark and Kathryn Rainville, Plaintiff-Appellant, v. EUGENE SCHOOL DISTRICT 4J, an Oregon public school district, Defendant-Appellee.
    No. 13-35856
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 16, 2015, Portland, Oregon
    Submission Vacated October 19, 2015
    Resubmitted January 19, 2016
    Filed September 1, 2016

      Marianne Dugan (argued), Eugene, Oregon, for Plaintiff-Appellant.
    Blake H. Fry (argued), Mersereau Shannon LLP, Portland, Oregon, for Defendant-Appellee.
    Peter D. Hawkes, Lane Powell PC, Portland, Oregon; Kevin Díaz, ACLU Foundation of Oregon, Inc., Portland, Oregon; for Amicus Curiae The American Civil Liberties Union of Oregon.
    Before: A. WALLACE TASHIMA and CARLOS T. BEA, Circuit Judges and LARRY A. BURNS, District Judge.

       The Honorable Larry A. Burns, United States District Judge for the' Southern District of California, sitting by designation.

   OPINION

TASHIMA, Circuit Judge:

C.R., a student in the Defendant Eugene School District 4J (the “School District”), was twelve years old when he was suspended from Monroe Middle School for sexually harassing two younger students. The incident that led to his suspension was the last in an escalating series of encounters with two younger students at the school. It occurred about five minutes after school let out, a few hundred feet from campus. C.R. challenged his suspension in district court under the First Amendment, arguing that because the harassment occurred off-campus, in a public park, the school lacked the authority to discipline him. C.R. also challenged his suspension on due process grounds. The district court rejected C.R.’s claims and granted the School District’s motion for summary judgment.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I.

C.R. was a seventh-grade student at Monroe Middle School when the incident at issue occurred. In October 2011, C.R., along with a few other seventh-grade boys, began following two sixth-grade students home. The two sixth-graders, a girl (A.L) and a boy (J.R.), were both disabled. All of the children took the same route home: a bike path leading from the school, across a public park, to a neighboring street. The park borders the school’s athletic fields, but there is no visible boundary to indicate where school property ends and the park begins. On the far side of the park, across from the school, is a track belonging to the School District. The school’s administrators casually refer to the park, track, and fields collectively as “the back field.”

Over the course of several days, the older boys engaged in teasing behavior, which quickly escalated. The boys began by giving the younger students vulgar fake names, like “Ass-Julio,” and insisting the sixth-graders repeat them. Soon, the boys’ jokes became sexual in nature. On the day in Question, the group of older boys circled the younger students. The boys'asked the younger students if they watched pornography. The boys asked if A.I. and J.R. were dating, and one boy suggested that J.R. take A.I. to the local B.J.’s Restaurant. This set off a series of comments— puns — on the similarity between the restaurant’s name and an abbreviation for the slang term “blowjob,” referring to oral sex. One boy told the younger students that there was a “really good” sandwich at B.J.’s that “takes two to eat.” He suggested J.R. and A.I. try it together.

Tracy Parks, an instructional aide in the School District, was biking home from school with her daughters when she rode past the group of students. Parks was a friend of C.R.’s mother and had known C.R. since he was in kindergarten. Concerned by the group’s posture, Parks approached. She noticed that A.I. looked “a little scared.” Parks asked both A.I. and J.R. if they felt comfortable, and although J.R. said “yes,” A.I. said “no.” Parks told the boys to leave and walked the two younger students home. Along the way, A.I. recounted what had happened, telling Parks that the boys “were talking about [B.J.’s] restaurant, but she thought it was [actually] something else.” A.I. repeated to Parks that she was uncomfortable with what had happened.

On Monday, Parks called the school to report what she had seen. Parks spoke with Katherine Kiraly, the school’s vice principal. Although she did not know the other boys, Parks told Kiraly that she knew C.R. and could identify him as a participant. Kiraly conferred with then-principal Peter Tromba about Parks’ report. She then began an informal investigation.

Kiraly met first with A.I. and J.R. A.I. recounted the series of encounters with the older boys, including their use of vulgar fake names, increasingly sexual comments, and the B.J.’s puns. She told Kiraly that the final encounter made her feel unsafe. Kiraly also interviewed J.R., who did not report feeling uncomfortable during the encounter. Tromba recalled later overhearing the students discussing the incident at lunch with their friends, who were upset to hear how A.I. and J.R. had been treated.

Kiraly next interviewed the boys she suspected had been involved in the incident, including C.R. C.R. denied any involvement and insisted that nothing inappropriate had happened. The administrators asked C.R. not to tell the other boys about the interview. C.R. ignored their request and discussed his interview at lunch that same day.

The other boys involved in the incident confirmed A.I.’s story. They admitted making inappropriate comments, including the B.J.’s puns. The boys were clear that they intended their comments about B.J.’s to refer to oral sex. The boys also confirmed that C.R. had participated in the incident, and at least one indicated that C.R. was the ringleader. Called in for a second interview, C.R. admitted that he had made a comment about B.J.’s and that his behavior was inappropriate. Based on these interviews, administrators determined that the incident fell within the School District’s definition of sexual harassment and that C.R. had participated in that harassment.

Tromba and Kiraly disciplined all of the boys involved in the incident, including C.R. In an email, the administrators informed C.R.’s parents of the basis of that decision: Not only had C.R. participated in the incident, he also lied to administrators in his first interview and disobeyed their request to refrain from discussing the interview with his friends. Under the School District’s “door-to-door” policy, the administrators determined that they had the power to discipline C.R. for his off-campus speech. Accordingly, the school imposed a two-day, out-of-school suspension.

One year later, C.R.’s parents sued the School District on his behalf, alleging violations of C.R.’s First Amendment and due process rights. The parties filed cross-motions for summary judgment. The district court granted summary judgment to the School District and denied C.R.’s cross-motion for summary judgment. C.R. timely appealed.

II.

The parties do not dispute the basic facts of the case, as outlined above. Both parties generally agree that a group of boys, including C.R., surrounded A.I. and J.R. in a public park, several hundred feet from the school’s property line, and made a series of comments to the younger students about B.J.’s Restaurant. Where, as here, the underlying facts are not in dispute, “the only question ... is whether the district court correctly applied the law.” Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004). We review the district court’s grant of summary judgement de novo. Szajer v. City of L.A., 632 F.3d 607, 610 (9th Cir. 2011). We may affirm the grant of summary judgment on any ground supported by the record. Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 956 (9th Cir. 2009).

C.R. attempts to cast the school’s characterization of the incident as sexual harassment as a factual dispute, requiring reversal of summary judgment. It is not. Federal courts owe significant deference to a school’s interpretation of its own rules and policies. See Bd. of Educ. of Rogers, Ark. v. McCluskey, 458 U.S. 966, 970, 102 S.Ct. 3469, 73 L.Ed.2d 1273 (1982); Wood v. Strickland, 420 U.S. 308, 326, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). We uphold a school’s disciplinary determinations so long as the school’s interpretation of its rules and policies is reasonable, and there is evidence to support the charge. See McCluskey, 458 U.S. at 970, 102 S.Ct. 3469; Wood, 420 U.S. at 326, 95 S.Ct. 992. The School District’s policy defines sexual harassment to include “verbal ... conduct of a sexual nature” including “sex-oriented verbal kidding, teasing, or jokes.” Eugene School District 4J, Student Rights & Responsibilities Handbook (2008). As described above, the school administration’s investigation uncovered at least some evidence that C.R. participated in sexually suggestive joking directed at A.I. and J.R. The School District’s characterization of this behavior as sexual harassment in its Student Handbook is reasonable. Thus, we defer to the School District’s determination that C.R. participated in sexual harassment.

III.

We begin by summarizing the framework for analyzing school regulation of student speech under the First Amendment. To determine whether a school properly disciplined a student for off-campus speech requires us to answer two questions: First, we consider the threshold question of whether the school could permissibly regulate the student’s off-campus speech at all. Next, we consider the question of whether the school’s regulation of the student’s speech complied with the First Amendment’s requirements. We conclude that C.R.’s suspension was permissible under the First Amendment.

A. First Amendment Framework: School Regulation of Student Speech

“[S]tudents in public schools do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’ ” Chandler v. McMinnville Sch. Dist., 978 F.2d 524, 527 (9th Cir. 1992) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969)). At the same time, “[t]he First Amendment rights of public school students ‘are not automatically coextensive with the rights of adults in other settings.’” Id. (quoting Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986)). The “basic educational mission” of the school may at times conflict with the speech rights of its students. Fraser, 478 U.S. at 685, 106 S.Ct. 3159. Thus, our precedent recognizes that “[sjchools must achieve a balance between protecting the safety and well-being of their students and respecting those same students’ constitutional rights.” LaVine v. Blaine Sch. Dist., 257 F.3d 981, 987 (9th Cir. 2001) (citing Karp v. Becken, 477 F.2d 171, 174 (9th Cir. 1973)).

The Supreme Court has outlined four types of student speech that schools may restrict, each governed by its own lead case: “(1) vulgar, lewd, obscene, and plainly offensive speech is governed by Fraser, (2) school-sponsored speech is governed by Hazelwood [School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988)];” (3) “speech promoting illegal drug use” is governed by Morse v. Frederick, 551 U.S. 393, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007); and (4) “speech that falls into [none] of these categories’ is governed by Tinker.” Wynar v. Douglas Cty. Sch. Dist., 728 F.3d 1062, 1067 (9th Cir. 2013) (internal citations and quotation marks omitted). Each of these leading cases, however, concerns only a school’s ability to regulate students’ on-campus speech. Whether and how these precedents apply to off-campus speech are questions the Supreme Court has yet to answer. See Morse, 551 U.S. at 401, 127 S.Ct. 2618.

We have twice considered whether schools may regulate students’ off-campus speech. Both times, we concluded that the school’s regulation was permissible. Wynar, 728 F.3d at 1072; LaVine, 257 F.3d at 989.

In LaVine, a high school student wrote a poem from the perspective of a school shooter. Id. at 983-84. Two or three months after he wrote the poem, the student rediscovered it in his living room and brought it to school for his teacher’s feedback. Id. at 984. The teacher was disturbed by the poem and shared it with the school’s administration, who decided to “emergency expel” the student out of caution. Id. at 984-86. The student sued the school, alleging a First Amendment violation. Id. at 986. We held that the school did not violate the student’s free speech rights when it expelled him based on the poem’s violent content. Id. at 992. Although we did not explicitly address the poem’s off-campus origin, we later interpreted LaVine to stand for the proposition that while “the location of the speech can make a difference ... not ... all off-campus speech is beyond the reach of school officials.” Wynar, 728 F.3d at 1068.

In Wynar, a student was expelled for a series of messages threatening to commit a school shooting, sent to friends via the social website MySpace. Id. at 1065-66. The messages were written and sent from the student’s home computer after school hours. Id. Nevertheless, we concluded that the school did not violate the student’s First Amendment rights when it suspended him. Id. at 1070. We held that, “when faced with an identifiable threat of school violence, schools may take disciplinary action in response to off-campus speech.... ” Id. at 1069.

Wynar identified two tests used by our sister circuits to determine when a school may regulate off-campus speech. In Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011), the Fourth Circuit applied a “nexus” test, asking whether a student’s off-campus speech was tied closely enough to the school to permit its regulation. Id. at 573. In S.J.W. v. Lee’s Summit R-7 School District, 696 F.3d 771 (8th Cir. 2012), the Eighth Circuit applied a test asking whether it was “reasonably foreseeable” that off-campus speech would reach the school. Id. at 777. “[RJeluctant to try and craft a one-size fits all approach,” Wynar declined to choose between these tests, holding that both were satisfied in the case of a threatened school shooting. Wynar, 728 F.3d at 1069.

More recently, the Fifth Circuit en banc also held that schools may sometimes discipline students for off-campus speech. See Bell v. Itawamba Cty. Sch. Bd., 799 F.3d 379 (5th Cir. 2015) (en banc). In Bell, a student was disciplined for uploading a rap video containing vulgar and arguably threatening lyrics to the websites Face-book and YouTube. Id. at 383. The student recorded and uploaded the video at home. Id. Even so, the court concluded that the school permissibly regulated the student’s speech. Id. at 400. In reaching its decision, the court declined “to adopt or reject approaches advocated by other circuits,” instead holding that a school may regulate students’ off-campus speech “when a student intentionally directs at the school community speech reasonably understood by school officials to threaten, harass, and intimidate a teacher...” Id. at 396. Whatever the legal test ultimately applied, courts consistently engage in a circumstance-specific inquiry to determine whether a school permissibly can discipline a student for off-campus speech.

Once the court has determined that a student’s off-campus speech was susceptible to regulation by the school, we apply Tinker to evaluate the constitutionality of the school’s imposition of discipline. See Wynar, 728 F.3d at 1070-71; LaVine, 257 F.3d at 992. “Under Tinker, schools may restrict speech that ‘might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities’ or that collides ‘with the rights of other students to be secure and to be let alone.’ ” Wynar, 728 F.3d at 1070 (quoting Tinker, 393 U.S. at 508, 514, 89 S.Ct. 733). Thus, for its actions to survive First Amendment scrutiny, the School District must show both that it had the authority to reach C.R.’s off-campus speech and that the imposition of discipline complied with Tinker.

B. The School District Had the Authority to Discipline C.R. for His Off-Campus, Sexually Harassing Speech

We have not yet considered whether a school may discipline a student for off-campus sexual harassment. Nor are there any directly analogous decisions from any other circuit. Rather, the vast majority of the law in this area concerns school officials’ authority to discipline students for internet speech. In this case, nothing was put into writing, and the students’ speech was never shared online; the offending comments were made in person, just as school was letting out, a few hundred feet from the school’s property line.

We follow Wynar in applying both the nexus and reasonable foreseeability tests to C.R.’s speech. We conclude that under either test, the School District had the authority to discipline C.R. for his off-campus speech.

1. Nexus

Although the harassment at issue in this case took place off school property, it was closely tied to the school. First, all of the individuals involved were students, a fact that typically counsels in favor of finding that a student’s speech was susceptible to school discipline. See Wynar, 728 F.3d at 1069 (finding school showed nexus in part because all individuals involved were students); Kowalski, 652 F.3d at 573 (same). Next, the incident took place on a path that begins at the schoolhouse door. The path then runs from the school’s fields across a public park that shares a boundary with school property, before eventually meeting a neighboring street. A.I. and J.R. had not yet reached the street when the older boys caught up to them. As a result, the students were only a few hundred feet from the school door when the harassment began. Moreover, while the park is technically city property, it is referred to by school administrators as part of “the back field.”. There is no visual marker (i.e., a fence or other boundary) to indicate where school property ends and the city park begins; it is therefore unclear whether the students even recognized that they had left school property.

Furthermore, all of the students had been let out of school just minutes before the incident. The school’s schedule thus brought the students together on the bike path. Had all of the students not been released from school at the same time and walked home along the same path, the older students would not have had the same opportunity to sexually harass the younger students. The record does not reflect whether there were alternative routes home available to the younger students, but it is clear that it was school itself that brought the children together on the path. Moreover, it is a reasonable exercise of the School District’s in loco parentis authority to be concerned with its students’ well being as they begin their homeward journey at the end of the school day. See Fraser, 478 U.S. at 684, 106 S.Ct. 3159; Veronica Sch. Dist. 47J v. Acton, 515 U.S. 646, 654-56, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (collecting cases).

2. Reasonable Foreseeability

Because the harassment happened in such close proximity to the school, administrators could reasonably expect the harassment’s effects to spill over into the school environment. Simply seeing their harassers in the hallway could well be disruptive for affected students. Similarly, a student who is routinely subject to harassment while walking home from school may be distracted during school hours by the prospect of the impending harassment. A student’s ability to focus during the day could be impaired by intrusive worries about whether she or he would once again face uncomfortable and sexually intimidating comments immediately after school lets out.

Administrators could also reasonably expect students to discuss the harassment in school. Indeed, A.I. was upset enough about the incident to discuss it with her friends in the lunch room. And administrators likely could not disregard the possibility that the older students would continue to harass their targets if they encountered one another in the hallways or the school yard. Because the harassment in this case was so closely connected to campus — on the students’ walk home, a few hundred feet from the school, immediately after school let out — administrators could reasonably expect that the effects of the speech would extend to the students’ in-school experience. Cf. Kowalski, 652 F.3d at 573 (“[Plaintiff] also knew ... that the fallout from her conduct and the speech within the [MySpace page] would be felt in the school itself.”).

Under either the nexus test or the reasonable foreseeability test, the School District could take reasonable disciplinary action against C.R.’s off-campus speech.

C.R. contends that finding for the School District on this point would dangerously expand its reach, permitting schools to regulate student speech in public places, like a shopping mall, bookstore, or movie theater, where children might stop on the way home from school. But we do not hold that either test extends the school’s authority so far — that is a question for another day.

Our decision is necessarily restricted to the unique facts presented by this case: The speech at issue occurred exclusively between students, in close temporal and physical proximity to the school, on property that is not obviously demarcated from the campus itself. A school may act to ensure students are able to leave the school safely without implicating the rights of students to speak freely in the broader community. In short, the School District’s actions were reasonable under Wynar. For all of the foregoing reasons, we conclude that the School District had the authority to discipline C.R. for his off-campus, sexually harassing speech.

C. C.R.’s Suspension Was Permissible Under Tinker

Tinker permits schools to restrict student speech in two broad sets of circumstances: if the speech “might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities,” or, alternatively, if the speech “collides ‘with the rights of other students to be secure and to be let alone.’ ” Wynar, 728 F.3d at 1070 (quoting Tinker, 393 U.S. at 508, 514, 89 S.Ct. 733). The School District’s decision to discipline C.R. falls squarely within Tinker’s second set of circumstances.

“The precise scope of Tinker’s interference with the rights of others language is unclear.” Wynar, 728 F.3d at 1072 (quoting Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 217 (3rd Cir. 2001)). We have held, however, that speech that “is merely offensive to some listener” is not sufficient, and does not fall within Tinker’s scope. Id. Sexually harassing speech is more than that. In Wynar, we held that MySpace messages threatening a school shooting “represent the quintessential harm to the rights of other students to be secure.” Id. Almost by .definition, the speaker’s explicit, physical threat prevented the targeted students from feeling safe in school.

Sexual harassment also implicates the rights of students to be secure. Such harassment is harmful because it positions the target as a sexual object rather than a person, threatening the individual’s sense of physical, as well as emotional and psychological, security. Often, the threat of an unwanted physical intrusion is implicit even within the context of purely verbal sexual harassment. Schools therefore must have the authority to discipline students for engaging in sexually inappropriate and harassing speech. Cf. Fraser, 478 U.S. at 685, 106 S.Ct. 3159 (“We hold that [the] School District acted entirely within its permissible authority in imposing sanctions upon [a student] in response to his offensively lewd and indecent speech.”).

The facts of this case illustrate the point. Both of the targeted students were unable to return home after school without being subjected to questions about sex acts and whether they were dating — inappropriate and unsettling questions for students just out of elementary school. Unsurprisingly, A.I. reported feeling scared and uncomfortable after the encounter. The school could therefore reasonably ex-, pect that those feelings would cause A.I. to feel less secure in school, affecting her ability to perform as a student and engage appropriately with her peers. Moreover, the harassment had already begun to escalate from the repetition of curse words to sexual comments directed at the victims. The school could reasonably expect the harassment to escalate further if allowed to continue unchecked. Without intervening administrative action, the younger students would be deprived of their right to be secure at school.

The targeted students’ age is also relevant to the analysis. The Supreme Court has recognized that overtly sexual speech “could well be seriously damaging to its less mature audience” when that audience was younger than 14 years old “and on the threshold of awareness of human sexuality.” Id. at 683, 106 S.Ct. 3159; see also Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 649, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (noting that, when it comes to student sexual harassment, grade schools may exercise a greater degree of control over student speech than colleges). Because C.R.’s speech interfered with the younger students’ rights to be secure and let alone, we conclude that his suspension was permissible under Tinker.

In sum, we conclude: First, the district court correctly held that the School District could discipline C.R. for his off-campus speech. Second, the School District’s decision to suspend C.R. for two days for .sexual harassment was permissible under Tinker. Sexually harassing speech, by definition, interferes with the victims’ ability to feel safe and secure at school. The district court did not err in granting summary judgment to the School District on C.R.’s First Amendment claims.

IV.

C.R.’s due process claims also fail.

A. Procedural Due Process

The Constitution requires only informal procedures when schools suspend students for ten days or fewer. “[T]he student [must] be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” Goss v. Lopez, 419 U.S. 565, 581, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). The school need not outline specific charges and their potential consequences or notify parents of the charges prior to the student’s suspension. Wynar, 728 F.3d at 1072-73. “In the great majority of cases the disciplinarian may informally discuss the alleged misconduct with the student minutes after it has occurred.” Goss, 419 U.S. at 582, 95 S.Ct. 729. We require “only that, in being given an opportunity to explain his version of the facts at this discussion, the student first be told what he is accused of doing and what the basis of the accusation is.” Id.

It is undisputed that, in his interviews, C.R. received informal notice of the charges against him and an opportunity to tell his side of the story. C.R. testified that Kiraly and Tromba expressed concern about the .way A.I. and J.R. had been treated and suspicion that the younger students had been harassed, before asking C.R. for “the whole story.” Taken in the light most favorable to C.R., the uncontro-verted facts show that he was provided those informal procedures that the Constitution requires for a two-day, out-of-school suspension.

C.R. contends that the school did not provide him with sufficient notice of the specific nature of the allegations, or of how his conduct violated the school rules. It is not constitutionally required that the school inform a student of the specific rules or policies he allegedly violated. Wynar, 728 F.3d at 1073. Accordingly, the school also need not take the extra step of informing the student exactly how his conduct violated the specific rules at issue — no bill of particulars is required. C.R. further contends that the school did not provide him an adequate opportunity to gather relevant evidence to rebut the school’s charges. This, too, is not constitutionally required. Goss, 419 U.S. at 582, 95 S.Ct. 729.

Finally, C.R. contends that the school violated his procedural due process rights by not following its own policies regarding suspension. However, school administrators’ “purported failure to comply with their own administrative procedure does not, itself, constitute a violation of constitutional due process.” Wynar, 728 F.3d at 1073. Thus, even assuming that C.R. is correct that the School District did not follow its own procedures for issuing a suspension in his case, he still cannot state a claim for deprivation of procedural due process on this basis. The district court thus correctly concluded that the School District afforded C.R. all the process that he was due.

B. Substantive Due Process

C.R. contends that the school violated his substantive due process rights when it recorded the reason for his suspension as “harassment — sexual.” According to C.R., the stigma from this label was so strong that he was deprived of his right to a good reputation.

C.R. fails to show that he has a substantive due process interest in maintaining a clean, non-stigmatizing school disciplinary record. “Substantive due process refers to certain actions that the government may not engage in, no matter how many procedural safeguards it employs.” Wedges/Ledges of Cal. v. City of Phoenix, Ariz., 24 F.3d 56, 66 (9th Cir. 1994) (quoting Blaylock v. Schwinden, 862 F.2d 1352, 1355 (9th Cir. 1988)). Generally speaking, substantive due process protects an individual’s fundamental rights to liberty and bodily autonomy. See, e.g., Lawrence v. Texas, 539 U.S. 558, 564, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003); Roe v. Wade, 410 U.S. 113, 168, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (Stewart, J., concurring); Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Here, no fundamental rights are at stake. There is no reason why a school should not be permitted to record the reason for a student’s suspension, however unsavory, so long as it applied the appropriate procedural safeguards while pursuing its investigation. C.R. fails to raise any viable substantive due process claim.

V.

In our digital age, a school’s power to discipline students for off-campus speech has become an increasingly salient question for the courts. This case, however, presents us with an analog problem: Whether the School District overstepped its authority when it disciplined C.R. for engaging in sexual harassment a few hundred feet from the school’s physical boundaries, a few minutes after class let out. Under this set of facts, we conclude that C.R.’s speech was tied closely enough to the school to subject him to the school’s disciplinary authority. As imposed by the school, that discipline complied with the requirements of Tinker. Finally, we conclude that the School District afforded C.R. all of the process the Constitution requires.

The district court’s order granting the School District’s motion for summary judgment and denying C.R.’s cross-motion for summary judgment, and its order dismissing the action are

AFFIRMED.

      . The parties dispute whether C.R. waived his arguments under Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), that school administrators acted pursuant to the School District's policy, custom, or practice when it suspended C.R., precluding him from pursuing his claims against the School District. See Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004). Having reviewed the summary judgment papers, we are satisfied that C.R. sufficiently raised the issue. Because the cover of the student handbook defining the door-to-door policy is labeled "Eugene School District 4J,” we further conclude that C.R. has adequately shown that administrators disciplined him pursuant to a School District policy.

      . C.R. also brought several state-law causes of action that are not at issue in this appeal.

      . Wynar noted that, in Wisniewski v. Board of Education of the Weedsport Central School District, 494 F.3d 34 (2nd Cir. 2007), the Second Circuit also considered the question of discipline for off-campus student speech. That court declined to decide whether to apply the Eight Circuit’s "reasonably foreseeable” test or its own variation of that test. See Wynar, 728 F.3d at 1068 (discussing Wisniewski, 494 F.3d at 39).

      . It suffices for now to observe that, typically, malls, bookstores, and movie theaters are located more than a few hundred feet from the schoolhouse door. And unlike the field next to the school, such venues are unlikely to be confused with school property. Presumably, students also would have more options to avoid any such place of suspected harassment or could ask an older sibling or parent to accompany them there. Unlike in this case, the school's schedule would not directly lead to the students’ encounter. Both Wynar tests rely on the speech’s close connection with the school to permit administrative discipline. That connection is missing in the scenarios C.R. conjures.

      . The School District's disciplinary action may also have been permissible under the Tinker test's "substantial disruption" language. See Kowalski, 652 F.3d at 574 (holding that “schools have a compelling interest in regulating speech that interferes with or disrupts the work and discipline of the school, including ... student harassment and bullying,” and that interest justifies punishing off-campus sexual harassment under Tinker in order to provide "a safe school environment conducive to learning” (internal quotation marks omitted)). Because we conclude that the School District’s disciplinary action falls within the Tinker test’s "rights of others" language, however, we do not reach this issue.

      . After being suspended for sexual harassment, C.R. was later suspended for stealing office supplies. The discipline record (somewhat dramatically) refers to the incident as "theft — major.” C.R. included this designation in his substantive due process claim and the following discussion applies equally to both record designations.

      . C.R. also contends that the district court erred in dismissing his motion to compel further discovery as moot, once it had ruled on the cross-motions for summary judgment. We will not disturb such a denial of discovery "except upon the clearest showing that the denial ... results in actual and substantial prejudice" Laub v. U.S. Dep't of the Interior, 342 F.3d 1080, 1085, 1093 (9th Cir. 2003) (internal quotation marks omitted). C.R. did not file his motion to compel until two months after the expiration of the discovery cutoff date and more than a month after he filed his own motion for summary judgment. The motion was, therefore, untimely, and the district court had no obligation to consider it. See Laborde v. Regents of the Univ. of Cal., 686 F.2d 715, 719 (9th Cir. 1982). Moreover, C.R. made no showing that he suffered any prejudice as a result of the ruling. We thus conclude that the district court did not abuse its discretion in dismissing C.R.'s motion as moot.


author: GRABER, Circuit Judge: LYNN, Chief District Judge,

text:
    IN RE: TFT-LCD (FLAT PANEL) ANTITRUST LITIGATION, Sony Electronics, Inc.; Sony Computer Entertainment America, LLC, Plaintiffs-Appellants, v. Hannstar Display Corporation, Defendant-Appellee.
    No. 14-15916
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted August 8, 2016 San Francisco, California
    Filed September 1, 2016

      Stephen V. Bomse (argued), David M. Goldstein, and Shannon C. Leong, Orrick Herrington & Sutcliffe LLP, San Francisco, California; Brian D. Ginsburg, Orrick Herrington Sutcliffe LLP, New York, New York; for Plaintiffs-Appellants.
    Harrison J. Frahn IV (argued) and James G. Kriessman, Simpson Thacher & Bartlett LLP, Palo Alto, California, for Defendant-Appellee.
    Before: J. CLIFFORD WALLACE and SUSAN P. GRABER, Circuit Judges, and BARBARA M. G. LYNN, Chief District Judge.

       The Honorable Barbara M. G. Lynn, United States Chief District Judge for the Northern District of Texas, sitting by designation.

   Dissent by Chief Judge LYNN

OPINION

GRABER, Circuit Judge:

Plaintiffs Sony Electronics, Inc., and Sony Computer Entertainment America, LLC (collectively “Sony”), and Defendant HannStar Display Corporation engaged a mediator to resolve a price-fixing dispute. The mediator proposed settlement in an email exchange. Both parties accepted by email. But HannStar' refused to comply, and Sony sued to enforce the agreement. The district court denied Sony’s motion for summary judgment, holding that the California Evidence Code’s mediation privilege bars introduction of the settlement emails. The parties stipulated to a final judgment, and this appeal followed. We review denovo, Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1124 (9th Cir. 2002), and reverse and remand. We hold that federal, rather than California, privilege law applies.

This case stems from a major price-fixing scheme and long-running litigation. E.g., In re TFT-LCD (Flat Panel) Antitrust Litig., 637 Fed.Appx. 981 (9th Cir. 2016) (unpublished) (consolidating appeals of price-fixing suits). HannStar Display Corporation is a Taiwanese company in the business of manufacturing and selling LCD panels and products. Sony is an electronics company, offering a broad range of consumer electronic products throughout the United States and elsewhere. In 2010, HannStar entered into a plea agreement in which it admitted that, for more than four years, it participated in a conspiracy to fix the prices of LCDs sold in the United States and elsewhere. Sony purchased many price-fixed HannStar products and contemplated bringing its own suit against HannStar for antitrust damages.

In December 2010, Sony entered into a tolling agreement with HannStar and began investigating the damage that the price-fixing cartel had caused it. Sony and HannStar agreed to mediate their dispute. They turned to Professor Eric Green for mediation assistance. Both HannStar and Sony authorized counsel to make an agreement. At first, Professor Green was unable to secure an agreement between the parties. Sony informed HannStar and Professor Green that it would file a complaint against HannStar on March 28, 2012, if the parties could not reach an agreement before that date.

On March 25, 2012, Professor Green sent an email to counsel for both HannStar and Sony. His email stated that he had been authorized to make a Mediator’s Proposal. He proposed that the matter be settled for “$4.1 million, to be paid on March 30, 2012, subject to the execution of an appropriate Settlement Agreement, MOU, or Agreement in Principle.” Professor Green also wrote:

I ask that each of you inform me privately and confidentially by close of business (5:00 pm PDT) Tuesday, March 27, 2012 whether you “ACCEPT” or “REJECT” the Mediator’s Proposal. These double-blind responses will be kept confidential by me so that if one side accepts the Mediator’s Proposal but the other side does not, the side not accepting the Mediator’s Proposal will never know what the other side responded. This protects both the parties from being leveraged. Of course, if both sides accept the Mediator’s Proposal, I will inform you immediately that the matter is settled.

The next day Professor Green wrote to both parties: “I would like to remind you that it is in the nature of a Mediator’s Proposal that your response can only be ‘ACCEPT’ or ‘REJECT.’ No negotiation is permitted.” Both counsel responded “Understood.”

On March 27, counsel for HannStar wrote to Professor Green:

Pursuant - to your emails of March 25th and 26th, HannStar authorizes acceptance by HannStar of the Mediator’s Proposal for settlement as set forth in your March 25th email to Sony counsel and me. If the proposal is accepted by Sony, would also appreciate a brief call with you about a couple of logistical matters arising out of the enunciated proposal.

That same day, counsel for Sony wrote to Professor Green: “Thanks much for your efforts. Sony accepts.” After Sony accepted, Professor Green wrote to both parties:

I am pleased to be able to inform you that I have received written confirmation from each of you that both Sony and HannStar have accepted the Mediator’s Proposal pursuant to my email of March 25. This case is now settled subject to agreement on terms and conditions in a written settlement document.

Sony refrained from filing suit against HannStar in March 2010, though it sued several other participants in the price-fixing scheme. But HannStar refused to abide by the mediated settlement agreement and informed counsel for Sony that it did not intend to pay the settlement amount contained in the Mediator’s Proposal. Sony filed this action. It alleged federal and state antitrust claims and breach of contract for HannStar’s alleged reneging on the settlement agreement.

After concluding its antitrust cases against other defendants, Sony dismissed its antitrust claims against HannStar. It continued to litigate its state-law breach of contract claim for HannStar’s failure to abide by the settlement. HannStar filed a motion to dismiss for lack of federal jurisdiction. The district court denied the motion; federal diversity jurisdiction allowed the case to remain in federal court. Sony moved for summary judgment on its contract claim. The district court denied the motion because, it ruled, California Evidence Code section 1123(b) precluded admission of the email exchange (and the resulting contract) without some express statement to the effect that the settlement was intended to be enforceable or binding. A final judgment, and this appeal, followed.

Pursuant to Federal Rule of Evidence 501, federal common law generally governs claims of privilege. “Where there are federal question claims and pendent state law claims present, the federal law of privilege applies.” Agster v. Maricopa County, 422 F.3d 836, 839 (9th Cir. 2005). “But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” Fed. R. Evid. 501. In Wilcox v. Arpaio, 753 F.3d 872 (9th Cir. 2014), we clarified the meaning of this rule for a state suit to enforce a settlement of both federal and state claims.

In Wilcox, Mary and Earl Wilcox had filed an action against Maricopa County and several of its officials. Id. at 874. The plaintiffs filed both federal claims, under § 1983, and supplemental state claims. Id. They asserted that their claims had been settled through a county-established mediation program. Id. The plaintiffs attempted to enforce their settlement and, in support of their motion, submitted an email from the county mediator stating that the claim had been settled. Id. at 874. The county argued that the emails from the county mediator were inadmissible under Arizona privilege law. Id. at 875. The plaintiffs claimed that federal privilege law applied. Id.

We agreed with the plaintiffs. Although state contract law governed whether the parties had reached a settlement, the underlying action that was allegedly settled contained both federal and state claims. Id. at 876. We held that “federal common law generally governs claims of privilege.” Id. at 876. Because the evidence in Wilcox related to a federal as well as a state claim — the plaintiffs had sued under both federal and state law — federal law applied. Id. ‘Where, as here, the same evidence relates to both federal and state law claims, we are not bound by Arizona law on privilege. Rather, federal privilege law governs.” Id. (internal quotation marks omitted).

Here, as in Wilcox, Sony initially filed suit under both state and federal law. The settlement negotiations concerned both issues; the evidence that Sony seeks to admit “relates” to both federal and state law claims. At the time of mediation, both parties would have expected to litigate both federál and state law issues. Counsel for HannStar conceded — as the later-filed complaint confirmed — that the settlement negotiations related to all claims, both federal and state.

Unlike in Wilcox, Sony ultimately dismissed the federal law claims, and the action ultimately proceeded under the court’s diversity jurisdiction. But the eventual dismissal of federal claims does not govern whether the evidence related to federal law. Because, here, at the time the parties engaged in mediation, their negotiations concerned (and the mediated settlement settled) both federal and state law claims, the federal law of privilege applies. Accordingly, the district court erred in applying California privilege law to resolve this dispute.

REVERSED and REMANDED.

LYNN, Chief District Judge,

dissenting:

I respectfully dissent.

The question of whether to apply this Court’s holding in Wilcox v. Arpaio, 753 F.3d 872 (9th Cir. 2014), should be analyzed against the backdrop of the claims pending in a lawsuit when the admission of the evidence is sought. In this case, only state law claims remained at the time Sony sought to admit evidence of the email exchange, in support of its motion for summary judgment. Because at that time the action no longer involved any federal issue, the evidence could not relate to a federal claim.

The district court thus correctly determined that state privilege law governed and that California Evidence Code § 1123(b) precluded admission of the email exchange, and the resulting settlement contract. Fair v. Bakktiari, 40 Cal.4th 189, 51 Cal.Rptr.3d 871, 147 P.3d 653 (2006). For these reasons, I dissent.

      . Wilcox was published approximately two months after the district court entered judgment and thus the district judge did not have the benefit of Wilcox when she denied Sony’s summary judgment motion.