Petition for Writ of Certiorari — The GEO Group, Inc., Petitioner v. Alejandro Menocal, et al.

APPENDIX

APPENDIX

TABLE OF CONTENTS

Appendix A:

Order of the U.S. Court Of Appeals

For The Tenth Circuit affirming

the district court’s class certification order (February 9, 2018) ......... 1a

Appendix B:

Order of the U.S. Court of Appeals

For The Tenth Circuit denying The

GEO Group, Inc.’s petition for reconsideration and rehearing en

banc (March 5, 2018) .................... 42a

Appendix C

Order of U.S. District Court for the

District of Colorado granting motion for class certification under

Rule 23(b)(3) and appointment of

class counsel under Rule 23(g)

(February 27, 2017) ...................... 44a

Appendix D

Order of the U.S. Court of Appeals

For The Tenth Circuit order granting permission for interlocutory

appeal (April 11, 2017) ................. 70a

Appendix E

Excerpts from the Trafficking

Victims Protection Act .................. 72a

1a

APPENDIX A

FILED

United States Court of Appeal

Tenth Circuit

February 9, 2018

Elisabeth A. Shumaker

Clerk of the Court

PUBLISH

UNITED STATES COURT OF APPEAL

FOR THE TENTH CIRCUIT

ALEJANDRO MENOCAL, MARCOS BRAMBILA, GRISEL XAHUENTITLA, HUGO HERNANDEZ, LOURDES ARGUETA, JESUS GAYTAN, OLGA

ALEXAKLINA, DAGOBERTO

VIZGUERRA, and DEMETRIO

VALGERA, on their own behalf

and on behalf of all others similarly situated,

Plaintiffs – Appellees

v.

THE GEO GROUP, INC.,

Defendant – Appellant,

No. 17-1125

2a

and

NATIONAL ADVOCACY CENTER OF THE SISTERS OF THE

GOOD SHEPHERD; NATIONAL

EMPLOYMENT LAW PROJECT;

NATIONAL GUESTWORKER

ALLIANCE; NATIONAL IMMIGRANT JUSTICE CENTER; NATIONAL IMMIGRATION LAW

CENTER; PANGEA LEGAL SERVICES; PUBLIC CITIZEN;

SANCTUARY FOR FAMILIES;

SOUTHERN POVERTY LAW

CENTER; AMERICAN IMMIGRANTS FOR JUSTICE; ASIAN

AMERICANS ADVANCING JUSTICE; DETENTION WATCH

NETWORK; HUMAN RIGHTS

DEFENSE CENTER; ILLINOIS

COALITION FOR IMMIGRANT

AND REFUGEE RIGHTS; JUSTICE STRATEGIES; LEGAL AID

AT WORK; HUMAN TRAFFICKING PRO BONO LEGAL CENTER; TAHIRIH JUSTICE CENTER; ASISTA IMMIGRATION

ASSISTANCE; FREEDOM NETWORK USA,

Amici Curiae.

______________________________________

3a

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 1:14-CV-02887-JLK)

______________________________________

Mark Emery, Norton Rose Fulbright US LLP, Washington, D.C. (Charles A. Deacon Norton Rose Fulbright US LLP, San Antonio, Texas; and Dana

Eismeier, Burns, Figa & Will, Greenwood Village,

Colorado, with him on the brief), for DefendantAppellant.

David Lopez, Outten & Golden LLP, Washington,

D.C. (Juno Turner and Elizabeth V. Stork, Outten &

Golden LLP, New York, New York; R. Andrew Free,

Law Office of R. Andrew Free, Nashville, Tennessee;

Alexander Hood, David Seligman, and Andrew

Schmidt, Towards Justice, Denver, Colorado; Brandt

Milstein, Milstein Law Office, Boulder, Colorado;

Andrew H. Turner, The Kelman Beuscher Firm,

Denver, Colorado; and Hans Meyer, Meyer Law Office, P.C., Denver, Colorado, with him on the brief),

for Plaintiffs-Appellees.

Scott D. McCoy and Shalini Agarwal, Southern Poverty Law Center, Tallahassee, Florida, Alia AlKhatib, Southern Poverty Law Center, Miami, Florida, and Lisa Graybill, Southern Poverty Law Center,

New Orleans, Louisiana, filed a brief for the Southern Poverty Law Center as Amicus Curiae, in support of Appellees.

Adina H. Rosenbaum and Scott L. Nelson, Public Citizen Litigation Group, Washington, D.C., filed a brief

for Public Citizen, Inc., and The National Employ-

4a

ment Law Project, as Amici Curiae, in support of

Appellees.

Katherine E. Melloy Goettel, Mark Fleming, Claudia

Valenzuela, and Keren Zwick, National Immigration

Justice Center, Chicago, Illinois, filed a brief for National Immigrant Justice Center, et al., as Amici Curiae, in support of Appellees.

Andrew C. Lillie, Nathaniel H. Nesbitt, and Ann C.

Stanton, Hogan Lovells US LLP, Denver, Colorado,

filed a brief for Human Trafficking Pro Bono Legal

Center, Tahirih Justice Center, Asista Immigration

Assistance, Freedom Network USA, and Sancuary

for Families, as Amici Curiae, in support of Appellees.

_________________________________

Before MATHESON, BACHARACH, and

McHUGH, Circuit Judges.

_________________________________

MATHESON, Circuit Judge.

_________________________________

This appeal addresses whether immigration detainees housed in a private contract detention facility

in Aurora, Colorado (the “Aurora Facility”) may

bring claims as a class under (1) 18 U.S.C. § 1589, a

provision of the Trafficking Victims Protection Act

(the “TVPA”) that prohibits forced labor; and (2) Colorado unjust enrichment law.

The GEO Group, Inc. (“GEO”) owns and operates

the Aurora Facility under government contract.

While there, the plaintiff detainees (the “Appellees”)

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rendered mandatory and voluntary services to GEO.

Under GEO’s mandatory policies, they cleaned their

housing units’ common areas. They also performed

various jobs through a voluntary work program,

which paid them $1 a day.

The district court certified two separate classes: (1)

all detainees housed at the Aurora Facility in the

past ten years (the “TVPA class”), and (2) all detainees who participated in the Aurora Facility’s voluntary work program in the past three years (the “unjust enrichment class”).

On interlocutory appeal, GEO argues that the district court abused its discretion in certifying each

class under Rule 23(b)(3) of the Federal Rules of Civil Procedure. It primarily contends that the Appellees’ TVPA and Colorado unjust enrichment claims

both require predominantly individualized determinations, making class treatment inappropriate. Exercising jurisdiction under 28 U.S.C. § 1292, we affirm.

I. BACKGROUND

A. Factual History

At all times relevant to this appeal, GEO owned

and operated the Aurora Facility under contract with

the U.S. Immigration and Customs Enforcement

(“ICE”). In operating this facility, GEO implemented

two programs that form the basis for this case: (1)

the Housing Unit Sanitation Policy, which required

all detainees to clean their common living areas; and

(2) the Voluntary Work Program, which compensated

detainees $1 a day for performing various jobs.

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1. Housing Unit Sanitation Policy (“Sanitation Policy”)

The Aurora Facility’s Sanitation Policy had two

components: (1) a mandatory housing unit sanitation

program, and (2) a general disciplinary system for

detainees who engaged in “prohibited acts,” including refusal to participate in the housing unit sanitation program.

Under the mandatory housing unit sanitation program, GEO staff generated daily lists of detainees

from each housing unit who were assigned to clean

common areas after meal service. Upon arriving at

the Aurora Facility, every detainee received a handbook (the “Aurora Facility Supplement”) notifying

them of their obligation to participate in this program. Dawn Ceja, the Aurora Facility’s Assistant

Warden for Operations, confirmed at her deposition

that “all of the detainees will have a turn on [the

common area cleaning assignments].” App., Vol. II at

483.

Under the disciplinary system, detainees who refused to perform their cleaning assignments faced a

range of possible sanctions, including: (1) the initiation of criminal proceedings, (2) disciplinary segregation—or solitary confinement—up to 72 hours, (3)

loss of commissary, (4) loss of job, (5) restriction to

housing unit, (6) reprimand, or (7) warning. The Aurora Facility Supplement included an explanation of

the disciplinary system and the possible sanctions for

refusing to clean.

The Appellees alleged that the TVPA class members were all “forced * * * to clean the [housing units]

for no pay and under threat of solitary confinement

as punishment for any refusal to work.” App., Vol. I

7a

at 19. Five of the nine named plaintiffs and three

other detainees filed declarations further explaining

that they had fulfilled their cleaning assignments

because of the Sanitation Policy’s threat of solitary

confinement.

2. Voluntary Work Program (“VWP”)

Under the Aurora Facility’s VWP, participating detainees received $1 a day in compensation for voluntarily performing jobs such as painting, food services,

laundry services, barbershop, and sanitation. Detainees who wished to participate in the VWP had to

sign the “Detainee Voluntary Work Program Agreement,” which specified that “[c]ompensation shall be

$1.00 per day.” App., Vol. V at 779. The Aurora Facility Supplement also specified that detainees would

“be paid $1.00 per day worked (not per work assignment)” under the VWP. App., Vol. V at 761. Detainees had the additional option of working without pay

if no paid positions were available.

The complaint alleged that the VWP class members

were all “paid * * * one dollar ($1) per day for their

[VWP] labor.” App., Vol. I at 19. Five of the nine

named plaintiffs and three other detainees who had

participated in the VWP filed declarations further

describing their work. Their jobs had included serving food, cleaning the facilities, doing laundry, and

stripping and waxing floors. Their hours had ranged

from two to eight hours a day, and they had all received $1 a day in compensation.

B. Procedural History

The Appellees filed a class action complaint against

GEO in the U.S. District Court for the District of

Colorado on behalf of current and former ICE detainees housed at the Aurora Facility. The complaint

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alleged: (1) a TVPA forced labor claim based on the

Sanitation Policy, and (2) an unjust enrichment

claim under Colorado law based on the VWP.1

1. GEO’s Motion to Dismiss

GEO moved to dismiss the complaint under Rule

12(b)(6) of the Federal Rules of Civil Procedure for

failure to state a claim. Regarding the TVPA claim,

GEO argued that the Thirteenth Amendment’s civic

duty exception to the prohibition on involuntary servitude should also apply to the TVPA’s ban on forced

labor.2 It further contended that such an exception

would extend to government contractors in addition

to the federal government. Regarding the unjust enrichment claim, GEO asserted sovereign immunity

as a government contractor because ICE “specifically

directed [it] to * * * establish a voluntary detainee

work program, and pay the detainees who volunteer

for that program $1.00 per day.” App., Vol. I at 19899.

The district court rejected these arguments and

denied GEO’s motion to dismiss the TVPA and unjust enrichment claims. See Menocal v. GEO Grp.,

Inc., 113 F. Supp. 3d 1125 (D. Colo. 2015). GEO

moved for reconsideration of the court’s rulings. The

court denied the motion, finding that GEO “d[id] not

identify any intervening change in controlling law or

1 The complaint brought a third claim under the Colorado

Minimum Wages of Workers Act, but the district court dismissed this claim, and it is not at issue here.

2 2 GEO cited the Fifth Circuit’s decision in Channer v. Hall,

112 F.3d 214 (5th Cir. 1997), which relied in part on the “judicially-created exception[]” to the Thirteenth Amendment to hold

that “the federal government is entitled to require a communal

contribution by an [immigration] detainee in the form of housekeeping tasks.” Id. at 218-19.

9a

new evidence previously unavailable” to warrant reconsideration. Menocal v. GEO Grp., Inc., No. 14-cv02887-JLK, 2015 WL 13614120, at *1 (D. Colo. Aug.

26, 2015).

GEO then moved for an order certifying an interlocutory appeal from the orders denying its motion to

dismiss and its motion for reconsideration. It requested that the district court certify the following

questions for interlocutory appeal:

(1) Whether civil detainees lawfully

held in the custody of a private detention facility under the authority of the

United States can state a claim for

“forced labor” under the TVPA, 18

U.S.C. § 1589, for allegedly being required to perform housekeeping duties.

(2) Whether, under Colorado law, civil

detainees may state a claim for unjust

enrichment based on work performed

pursuant to the Voluntary Work Program, absent any alleged reasonable

expectation of being paid more than $1

per day.

(3) Whether a state law claim for unjust

enrichment brought by civil detainees

against a federal contractor is barred by

the “government contractor” defense,

where such claims would require that

detainees receive additional compensation even though the contract expressly

requires that compensation of more

than $1 per day be approved by the government’s contracting officer.

10a

App., Vol. II at 346. The district court denied GEO’s

motion to certify an interlocutory appeal on all three

of these questions. Accordingly, the district court’s

rulings on these questions are not properly before us

in this appeal. See 28 U.S.C. § 1292(b) (providing

that a court of appeals may only permit an interlocutory appeal to be taken from most non-final decisions

if the district judge first certifies the interlocutory

appeal).

2. The Appellees’ Motion for Class Certification

After they prevailed on the motion to dismiss, the

Appellees moved for certification of a separate class

for each claim under Rules 23(a) and (b)(3) of the

Federal Rules of Civil Procedure. For the TVPA

claim, the Appellees proposed a class of “all persons

detained in [GEO’s] Aurora Detention Facility in the

ten years prior to the filing of this action” (the “TVPA

class”). App., Vol. II at 409. For the unjust enrichment claim, they proposed a class of “all people who

performed work [for the] Aurora Detention Facility

under [GEO’s] VWP Policy in the three years prior to

the filing of this action” (the “unjust enrichment

class”). Id. at 418.

GEO opposed the certification of both proposed

classes. It argued that neither class adequately satisfied the Rule 23 requirements. The district court rejected GEO’s arguments and certified both classes as

proposed by the Appellees. See Menocal v. GEO Grp.,

Inc., 320 F.R.D. 258 (D. Colo. 2017). It also approved

the nine named plaintiffs as the representatives of

both classes. Id. at 271.

GEO petitioned this court for interlocutory review

of the class certifications. We granted GEO’s petition

11a

for permission to appeal under Rule 23(f). See Fed. R.

Civ. Pro. 23(f) (“A court of appeals may permit an

appeal from an order granting or denying classaction certification * * * *”); 28 U.S.C § 1292(e) (authorizing the Supreme Court to “prescribe rules * * *

provid[ing] for an appeal of an interlocutory decision

to the courts of appeals that is not otherwise provided for” by statute). Accordingly, only the district

court’s order granting class certification—and not its

rulings on whether the complaint stated TVPA and

unjust enrichment claims—is before us.

II. DISCUSSION

We begin with our standard of review. We then

provide an overview of the Rule 23 class certification

requirements relevant to this appeal, and additional

background on the TVPA and Colorado unjust enrichment law as needed. We consider the TVPA and

the unjust enrichment classes in turn, and conclude

that the district court did not abuse its discretion in

certifying each class under Rule 23.

A. Standard of Review

“We review the district court’s decision to certify [a]

class for an abuse of discretion. The district court

abuses its discretion when it misapplies the Rule 23

factors—either through a clearly erroneous finding of

fact or an erroneous conclusion of law—in deciding

whether class certification is appropriate. Our review

is only de novo to the extent we must determine

whether the district court applied the correct standard. In the end, as long as the district court applies

the proper Rule 23 standard, we will defer to its class

certification ruling provided that decision falls within the bounds of rationally available choices given

the facts and law involved in the matter at hand.”

12a

Soseeah v. Sentry Ins., 808 F.3d 800, 808 (10th Cir.

2015) (citations and quotations omitted).

B. Class Certification Requirements

Rule 23 of the Federal Rules of Civil Procedure

provides the class certification requirements. Wal–

Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011).

Plaintiffs seeking class certification must show that

the underlying case (1) satisfies each of Rule 23(a)’s

prerequisites, and (2) falls under at least one of Rule

23(b)’s categories of class actions. See Soseeah, 808

F.3d at 808. The district court must undertake a

“rigorous analysis” to satisfy itself that a putative

class meets the applicable Rule 23 requirements.

CGC Holding Co. v. Broad & Cassel, 773 F.3d 1076,

1086 (10th Cir. 2014) (quotations omitted).

Rule 23(a) sets forth four threshold requirements:

(1) the class is so numerous that joinder

of all members is impracticable;

(2) there are questions of law or fact

common to the class;

(3) the claims or defenses of the representative parties are typical of the

claims or defenses of the class; and

(4) the representative parties will fairly

and adequately protect the interests of

the class.

Fed. R. Civ. P. 23(a). Only requirements (2) (the

“commonality” requirement) and (3) (the “typicality”

requirement) are contested in this appeal.

Of the class action categories set forth in Rule

23(b), only the Rule 23(b)(3) class action is at issue

here. A Rule 23(b)(3) class action must satisfy two

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additional requirements: (1) the “questions of law or

fact common to class members [must] predominate

over any questions affecting only individual members” (the “predominance” requirement), and (2) a

class action must be “superior to other available

methods for fairly and efficiently adjudicating the

controversy” (the “superiority” requirement). Fed. R.

Civ. P. 23(b)(3).

We provide additional background on each of the

Rule 23 requirements contested in this appeal: commonality, typicality, predominance, and superiority.

1. Rule 23(a)’s Threshold Requirements:

Commonality and Typicality

a. Commonality

To satisfy the commonality requirement, a party

seeking class certification must demonstrate “there

are questions of law or fact common to the class.”

Fed. R. Civ. P. 23(a)(2). In other words, the class

members’ claims must “depend upon a common contention * * * of such a nature that it is capable of

classwide resolution—which means that determination of its truth or falsity will resolve an issue that is

central to the validity of each one of the claims in one

stroke.” Wal-Mart, 564 U.S. at 350. In the context of

class-wide proof by statistical evidence, the Supreme

Court has instructed that a question is common if

there is “some glue holding the [class members’ allegations] together.” Id. at 352.

“A finding of commonality requires only a single

question of law or fact common to the entire class.”

DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188,

1195 (10th Cir. 2010); see also Wal-Mart, 564 U.S. at

359 (“We quite agree that for purposes for Rule

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23(a)(2) even a single common question will do.”

(brackets and quotations omitted)).

b. Typicality

To satisfy the typicality requirement, a party seeking class certification must demonstrate that “the

claims or defenses of the representative parties are

typical of the claims or defenses of the class.” Fed. R.

Civ. P. 23(a)(3). “[D]iffering fact situations of class

members do not defeat typicality * * * so long as the

claims of the class representative and class members

are based on the same legal or remedial theory.” Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co.,

765 F.3d 1205, 1216 (10th Cir. 2014) (quotations

omitted).

2. Rule 23(b)(3)’s Additional Requirements:

Predominance and Superiority

a. Predominance

“The Rule 23(b)(3) predominance inquiry tests

whether proposed classes are sufficiently cohesive to

warrant adjudication by representation.” Amchem

Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). “It

is not necessary that all of the elements of the claim

entail questions of fact and law that are common to

the class, nor that the answers to those common

questions be dispositive.” CGC Holding, 773 F.3d at

1087. “Put differently, the predominance prong asks

whether the common, aggregation-enabling, issues in

the case are more prevalent or important than the

non-common, aggregation-defeating, individual issues.” Id. (quotations omitted).

In reviewing the district court’s predominance determination, we must “characterize the issues in the

case as common or not, and then weigh which issues

predominate.” Id. We do so by “consider[ing] * * *

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how the class intends to answer factual and legal

questions to prove its claim—and the extent to which

the evidence needed to do so is common or individual.” Id. And because we must thus consider the

class’s underlying cause of action and determine

which elements are amenable to common proof, “it is

impractical to construct an impermeable wall that

will prevent the merits from bleeding into the class

certification decision to some degree.” Id. (quotations

omitted). But “[f]or the purposes of class certification,

our primary function is to ensure that the requirements of Rule 23 are satisfied, not to make a determination on the merits of the putative class’s

claims.” Id.

b. Superiority

A putative class proceeding under Rule 23(b)(3)

must show that a class action would be “superior to

other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).

Rule 23(b)(3) includes a non-exhaustive list of factors

pertinent to the superiority analysis:

(A) the class members’ interests in individually controlling the prosecution

or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy

already begun by or against class members;

(C) the desirability or undesirability of

concentrating the litigation of the

claims in the particular forum; and

16a

(D) the likely difficulties in managing a

class action.

Fed. R. Civ. P. 23(b)(3); Fed. R. Civ. P. 23(b) advisory

committee’s note to the 1966 amendment.3

Courts and commentators have observed that the

Rule 23(b)(3) class action is superior when it allows

for the “vindication of the rights of groups of people

who individually would be without effective strength

to bring their opponents into court at all.” See Amchem, 521 U.S. at 617 (quotations omitted); see also

Just Film, Inc. v. Buono, 847 F.3d 1108, 1123 (9th

Cir. 2017) (crediting unlikelihood that class members

would individually pursue their claims due to risks,

small recovery, and costs of litigation as the consideration “at the heart” of the superiority analysis).

For this reason, “the class action device is especially

pertinent to vulnerable populations.” 2 William B.

Rubenstein, Newberg on Class Actions § 4:65 (5th

ed., Dec. 2017 update) (Newberg). Considerations

such as class members’ limited understanding of the

law, limited English skills, or geographic dispersal

therefore weigh in favor of class certification. See id.4

3 Although Rule 23(b)(3) states that these factors are perti-

nent to both superiority and predominance, “most courts analyze [these factors] solely in determining whether a class suit

will be a superior method of litigation.” 2 William B. Rubenstein, Newberg on Class Actions § 4:64 (5th ed., Dec. 2017

update).

4 See, e.g., Silva-Arriaga v. Texas Express, Inc., 222 F.R.D.

684, 691 (M.D. Fla. 2004) (citing class members’ “limited English skills and * * * understanding of the legal system” in support of superiority finding); In re Monster Worldwide, Inc. Securities Litig., 251 F.R.D. 132, 139 (S.D.N.Y. 2008) (finding superiority based in part on class members’ geographic dispersal).

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C. The TVPA Class

We affirm the district court’s certification of the

TVPA class. We first provide background on the

TVPA. We then analyze whether the district court

abused its discretion in applying the Rule 23 requirements to certify the TVPA class. In reviewing

the class certification decision, “our primary function

is to ensure that the requirements of Rule 23 are satisfied, not to make a determination on the merits of

the putative class’s claims.” CGC Holding, 773 F.3d

at 1087.

1. TVPA’s Forced Labor Provision—18 U.S.C. §

1589

The TVPA establishes a civil cause of action for victims of prohibited trafficking activity. 18 U.S.C. §

1595. As relevant to this appeal, the TVPA’s forced

labor provision prohibits persons from:

knowingly provid[ing] or obtain[ing] the

labor or services of a person by any one

of, or by any combination of, the following means—

(1) by means of force, threats of force,

physical restraint, or threats of physical

restraint to that person or another person;

(2) by means of serious harm or threats

of serious harm to that person or another person;

(3) by means of the abuse or threatened

abuse of law or legal process; or

(4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform

18a

such labor or services, that person or

another person would suffer serious

harm or physical restraint[.]

Id. § 1589(a) (emphases added). The term “serious

harm” denotes “any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all

the surrounding circumstances, to compel a reasonable person of the same background and in the same

circumstances to [render labor] * * * to avoid incurring that harm.” Id. § 1589(c)(2).

2. Application of Rule 23 Requirements

GEO contends that the district court abused its

discretion in determining that the TVPA class satisfies commonality, typicality, predominance, and superiority. The parties’ arguments—both in their

briefs and at oral argument—focus primarily on predominance, the closest issue. We address predominance last, after commonality, typicality, and superiority. The court did not abuse its discretion as to any

of these requirements in certifying the TVPA class.

a. Commonality

The TVPA class meets Rule 23(a)’s commonality

requirement. The district court identified “a number

of crucial questions with common answers.” Menocal,

320 F.R.D. at 264. These questions include: (1)

whether the Sanitation Policy “constitutes improper

means of coercion” under § 1589, (2) whether GEO

“knowingly obtain[s] detainees’ labor using [the Sanitation Policy]”, and (3) whether a civic duty exception exempts the Sanitation Policy from § 1589. Id.

at 264-65. Because all members of the TVPA class

base their claims on the Sanitation Policy, we agree

with the district court that the answers to these

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questions would “resolve an issue that is central to

the validity of each one of the claims in one stroke.”

Wal-Mart, 564 U.S. at 350. Indeed, any one of these

questions alone would satisfy the commonality requirement for the TVPA class. See id. at 359; Stricklin, 594 F.3d at 1195. The district court therefore did

not abuse its discretion in applying the Rule 23(a)

commonality requirement to the TVPA class.

b. Typicality

The TVPA class satisfies Rule 23(a)’s typicality requirement. Typicality requires only that “the claims

of the class representative and class members are

based on the same legal or remedial theory.” Colo.

Cross-Disability, 765 F.3d at 1216 (quotations omitted).

Here, the claims of all the class members—

including the representatives—share the same theory: that GEO knowingly obtained class members’ labor by means of the Sanitation Policy, which threatened—or was intended to cause them to believe they

would suffer—serious harm or physical restraint if

they did not fulfill their cleaning assignments. The

class representatives allege that they—just like all

other Aurora Facility detainees in the relevant period—performed “mandatory, uncompensated work * *

* under [GEO’s] Housing Unit Sanitation policy.”

App., Vol. I at 26; see App., Vol. II at 483 (Assistant

Warden Ceja confirming that “all of the detainees * *

* have a turn on [the cleaning assignments]”). And

the class representatives’ declarations present no circumstances that would give rise to a different theory

of liability. 5 The district court therefore did not

5 The only factual differences among the class representa-

tives’ experiences pertain to their specific interactions with Au-

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abuse its discretion in applying the Rule 23(a) typicality requirement to the TVPA class.

c. Superiority

The TVPA class meets the Rule 23(b)(3) superiority

requirement. The TVPA class members would have

to overcome significant hurdles to adjudicate their

individual claims and thus have little “interest[] in

individually controlling the prosecution or defense of

separate actions.” See Fed. R. Civ. P. 23(b)(3). As the

district court noted—and GEO does not dispute—

“the putative class members reside in countries

around the world, lack English proficiency, and have

little knowledge of the legal system in the United

States.” Menocal, 320 F.R.D. at 268. Based on these

considerations, the court did not abuse its discretion

in applying Rule 23(b)(3)’s superiority requirement

to the TVPA class. See Newberg § 4:65 (identifying

these considerations as factors in favor of class certification); see also Amchem, 521 U.S. at 617 (explaining that Rule 23(b)(3) classes seek to “vindicat[e] * *

* the rights of groups of people who individually

would be without effective strength to bring their opponents into court at all” (quotations omitted)).6

rora Facility guards and whether they witnessed firsthand other individual detainees being sanctioned or threatened with

solitary confinement for refusal to clean. But these factual differences do not defeat typicality because the class members’

legal theory—that GEO knowingly obtained their labor through

the uniform Sanitation Policy—does not change based on their

personal interactions with GEO staff or their knowledge of specific instances in which GEO threatened or carried out the

threat of solitary confinement. See Colo. Cross-Disability, 765

F.3d at 1216.

6 GEO also suggests that the class should instead seek to

have the ICE standards relating to the Sanitation Policy

“changed by the agency, declared invalid, or enjoined,” Aplt. Br.

21a

d. Predominance

Although Rule 23(b)(3)’s predominance requirement “regularly presents the greatest obstacle to

class certification,” CGC Holding, 773 F.3d at 1087,

it does not defeat the TVPA class in this case. To determine whether the district court abused its discretion in applying the predominance requirement, we

first “characterize the issues in the case as common

or not, and then weigh which issues predominate.”

See id. GEO contends that two of the TVPA class’s

issues are not susceptible to generalized proof: (i) the

causation element, and (ii) damages. But as the following analysis shows, (i) the causation element is

susceptible to generalized proof and thus cannot defeat class certification, and (ii) individual damages

assessments would not predominate over the class’s

common issues.

i. The causation element

The causation element is susceptible to generalized

proof and thus cannot defeat class certification under

Rule 23(b)(3)’s predominance requirement. As discussed above, the TVPA’s forced labor provision prohibits the knowing procurement of labor “by means

of” the use or threat of—or a scheme intended to

threaten—serious harm or physical restraint. See 18

U.S.C. § 1589(a)(1)-(4). Although the statute does not

use the word “cause,” to show a § 1589 violation,

plaintiffs must prove that an unlawful means of coercion caused them to render labor. See United

States v. Kalu, 791 F.3d 1194, 1211-12 (10th Cir.

at 45. But such actions, even if feasible, would not provide

damages relief and thus are not “superior * * * available methods for fairly and efficiently adjudicating the controversy,” especially for former detainees in the TVPA class. See Fed. R. Civ.

P. 23(b)(3).

22a

2015) (affirming a jury instruction on § 1589 that advised the jury to consider whether “as a result of [the

defendant’s] use of * * * unlawful means, the [victim

rendered labor] where, if [the defendant] had not resorted to those unlawful means, the [victim] would

have declined to” (quotations omitted)).

The parties dispute whether a plaintiff may use a

reasonable person standard to make this causation

showing. The TVPA class contends that a plaintiff

need only show that the unlawful means—here, the

Sanitation Policy—would have caused a reasonable

person to render the labor.7 In contrast, GEO argues

that a plaintiff must show that the unlawful means

in fact caused the labor. But we need not decide

which of these standards applies to § 1589’s causation requirement in resolving the class certification

question. Even assuming GEO’s proposed standard

applies, the causation element is susceptible to classwide proof and thus does not preclude the TVPA

class from satisfying the predominance requirement.

This analysis proceeds in three parts. First, in CGC

Holding, this court held—at least in the fraud context—that plaintiffs may prove causation by classwide inference. Second, CGC Holding applies to the

circumstances of this case. Third, the mere speculative possibility that a class-wide inference would not

apply to some TVPA class members does not make

causation insusceptible to class-wide proof.

7 For purposes of deciding the class certification question, we

do not address the merits of whether the Sanitation Policy qualifies as an unlawful means of coercion under § 1589. GEO does

not dispute—and neither do we—the district court’s determination that this question can be answered on a class-wide basis.

See Menocal, 320 F.R.D. at 264 & n.2.

23a

1) CGC Holding: Class-wide proof of causation

from common circumstantial evidence

In CGC Holding, this court recognized that plaintiffs may prove class-wide causation based on inference from common circumstantial evidence. 773 F.3d

at 1092-93. In that case, a putative class of borrowers brought a civil RICO claim8 against the defendants, a group of lenders. Id. at 1080. The plaintiffs

alleged that the defendants had fraudulently induced

them to pay upfront fees for loans that the defendants never actually had the intent or ability to fund.

Id. The putative class consisted of “at least 100 borrowers * * * who paid advance fees to defendants.”

Id. at 1084. We determined that “the fact that a class

member paid the nonrefundable up-front fee in exchange for the loan commitment constitutes circumstantial proof of reliance on the misrepresentations

and omissions regarding * * * the defendant entities’

ability or intent to actually fund the promised loan.”

Id. at 1091-92 (emphasis added).

Because we would allow an individual plaintiff to

establish an inference of reliance from this type of

circumstantial proof, we saw “no reason why a putative class containing plaintiffs, who all paid substantial up-front fees in return for financial promises,

8 The Racketeer Influenced and Corrupt Organizations Act

(“RICO”) prohibits various activities performed in connection

with an ongoing criminal organization. See 18 U.S.C. §§ 196168. In addition to enacting criminal penalties for racketeering

activities, RICO also created a private cause of action for “[a]ny

person injured in his business or property by reason of” the defendant’s RICO violations. Id. § 1964(c) (emphasis added). A

plaintiff bringing a civil RICO claim must show causation. CGC

Holding, 773 F.3d at 1088. In civil RICO claims arising from

fraud, reliance “frequently serves as a proxy for both legal and

factual causation.” Id.

24a

should not be entitled to posit the same inference to

a factfinder on a classwide basis.” Id. at 1092. By allowing such an inference, the issue of reliance “becomes solvable with a uniform piece of circumstantial evidence [i.e., the payment of the up-front fee].”

Id. We therefore held that “the putative class is not

stymied, for purposes of class certification, under

Rule 23(b)’s predominance element.” Id.

2) Application of CGC Holding’s class-wide

circumstantial evidence analysis to this case

CGC Holding said that, when a class member could

individually establish causation based on circumstantial evidence, a court may likewise allow a class

to rely on circumstantial evidence that the class

shares to establish causation on a class-wide basis.

CGC Holding’s reasoning applies with equal force to

the facts of this case because (1) a court could permit

an individual TVPA class member to establish causation through circumstantial evidence, and (2) the

TVPA class members share the relevant evidence in

common because their claims are based on allegations of a single, common scheme.

First, a TVPA class member could individually establish causation based on circumstantial evidence.9

In CGC Holding, we said a jury could infer that a

given class member relied on the defendants’ misrepresentations. Id. at 1091-92. The circumstantial evidence in CGC Holding included: (1) the plaintiff received a loan commitment agreement promising

9 Plaintiffs are generally free to introduce any relevant ad-

missible evidence to prove their claims, with no distinction between direct and circumstantial evidence. See Fed. R. Evid. 401;

see also 1A Fed. Jury Prac. & Instr. § 12:04 (6th ed., Aug. 2017

update).

25a

funds and requiring payment of an upfront fee in exchange for financing, and (2) the plaintiff in fact paid

the fee. Id. at 1082, 1091-92. Here, a class member

detainee could present the following circumstantial

evidence to support an analogous inference that the

Sanitation Policy caused the detainee to work: (1) the

detainee received notice of the Sanitation Policy’s

terms, including the possible sanctions for refusing

to clean; and (2) the detainee performed housing unit

cleaning work for GEO when assigned to do so.

Second, because the TVPA class allegations are

based on a single, common scheme, class members

share the relevant circumstantial evidence in common, thus making class-wide proof possible. In CGC

Holding, the lender defendants allegedly “engaged in

a common scheme to defraud” the borrower plaintiffs. Id. at 1082. Under this “cookie-cutter scheme,”

potential borrowers received formulaic loan commitment agreements that required payment of nonrefundable upfront fees before receiving the falsely

promised financing. Id. Likewise, the TVPA class

members allege that GEO “coerced [their] labor

through a uniform policy subjecting detainees who

refused to perform such uncompensated work to discipline, up to and including solitary confinement.”

App., Vol. I at 29 (emphasis added).

GEO acknowledges that each class member received notice of the Sanitation Policy’s terms upon

admission to the Aurora Facility. See App., Vol. II at

480 (Assistant Warden Ceja testifying that upon admission to the Aurora Facility, each detainee “signs

[a document] memorializing that he or she received

this policy”). Under these circumstances, the Sanitation Policy provides the “glue” that holds together

the class members’ reasons for performing housing

26a

unit cleaning duties assigned by GEO. Wal-Mart, 564

U.S. at 352.10 As in CGC Holding, we “see no reason

why a putative class containing plaintiffs, who all

[performed housing unit cleaning work under the

10 In Wal-Mart, the Supreme Court held that anecdotal and

statistical evidence “are insufficient to establish that [the plaintiffs’ gender discrimination] theory can be proved on a classwide

basis.” 564 U.S. at 356. The Wal-Mart plaintiffs had “held a

multitude of different jobs, at different levels of Wal–Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled

across 50 states, with a kaleidoscope of supervisors (male and

female), subject to a variety of regional policies that all differed.” Wal-Mart, 564 U.S. at 359-60 (quotations omitted). The

Wal-Mart plaintiffs therefore lacked “some glue holding the alleged reasons for [their adverse employment decisions] together.” Id. at 352.

As the Court later explained in Tyson Foods, Inc. v. Bouaphakeo, the Wal-Mart plaintiffs could not have relied on statistical evidence even in individual suits—much less a class action—because they “were not similarly situated.” 136 S. Ct.

1036, 1048 (2016). In contrast, the employees in Tyson Foods,

who “worked in the same facility, did similar work, and w[ere]

paid under the same policy,” could have introduced statistical

evidence in a series of individual suits. Id.

Here, the TVPA class members—unlike the Wal-Mart and

Tyson Foods plaintiffs—do not rely on statistical evidence. A

TVPA class member bringing an individual suit against GEO

therefore would not need to make a “similarly situated” showing to rely on the circumstantial evidence discussed above. And,

as CGC Holding instructs, because an individual TVPA class

member could rely on this evidence and because the same evidence applies to all class members, class-wide proof is possible

in this case. But even assuming that Wal-Mart and Tyson

Food’s “similarly situated” analysis applies where—as here—

the plaintiffs do not rely on statistical evidence, the TVPA class

members are more like the Tyson Foods plaintiffs: they were

detained in the same facility, did the same work, and faced the

same potential sanctions for refusing to work under the same

Sanitation Policy.

27a

uniform Sanitation Policy], should not be entitled to

posit the same inference to a factfinder on a classwide basis.” See CGC Holding, 773 F.3d at 1092.

3) Hypothetical possibilities do not defeat the

class-wide inference

Based on the foregoing, the Appellees have met

their burden to show that the causation element

would not cause individual questions to predominate.

See id. at 1087 (“The real question is whether plaintiffs have sufficiently met their burden under Rule

23(b) * * * [to] show that common questions subject

to generalized, classwide proof predominate over individual questions.”). Specifically, the Appellees have

shown that the TVPA class could establish causation

on a class-wide basis from the available circumstantial evidence. In contrast, as the district court noted,

“GEO does not allege and there is nothing in the record to show that detainees who are not on the daily

list still choose to perform the additional duties or

that detainees work autonomously.” Menocal, 320

F.R.D. at 265 n.3. GEO offers in rebuttal only speculative assertions regarding the class members’ subjective motivations for performing their cleaning duties.11

GEO’s hypothetical alternative explanations for the

class members’ labor do not defeat the Appellees’

showing that the causation element is susceptible to

11 GEO posits possible alternative reasons class members

may have worked: “They may like to have a sanitary environment. They may like to be social while working, or participate

because of peer pressure. They may willingly obey the facility’s

policy out of respect for it. Or they may simply wish to stay

busy.” Aplt. Br. at 37.

28a

class-wide proof. The permissibility of a class-wide

inference depends on whether the class members’

claims are “solvable with a uniform piece of circumstantial evidence” or instead “involve significant individualized or idiosyncratic elements.” CGC Holding, 773 F.3d at 1092. Here, as we explained above, a

factfinder could reasonably draw a class-wide inference of causation from common evidence pertaining

to the uniform Sanitation Policy.

Had GEO “presented evidence that could rebut the

Plaintiffs’ common inference of [causation] on an individualized basis, we and the district court might

have concluded that individual issues * * * would

predominate at trial.” See Torres v. S.G.E. Mgmt.,

L.L.C., 838 F.3d 629, 644 (5th Cir. 2016) (en banc),

cert. denied, 138 S. Ct. 76 (mem.) (2017). But even

after three months of discovery regarding class certification issues, GEO did not present any individualized rebuttal evidence to the district court that would

cause individual causation questions to predominate

at trial.12 In any event, “the district court may revisit

12 12 At oral argument, GEO’s counsel pointed to two pieces

of rebuttal evidence. Oral Argument at 9:42-10:59. First, counsel cited Assistant Warden Ceja’s deposition testimony stating

that detainees may “help out” with housing unit cleaning because “[s]ometimes people just like to keep busy” and “[i]t

makes the time go by faster.” App., Vol. II at 483. Apart from its

conjectural nature, this testimony does not raise concerns about

individual issues predominating because GEO could introduce

this same testimony against all class members at trial. Second,

counsel suggested that the detainee declarations filed in this

suit rebut causation as to the declarants: “Does that make

sense—that the same detainees would be volunteering to step

up and work a variety of jobs in food service and laundry for a

dollar a day but yet at the same time say that they only performed occasional housekeeping chores as a result [of the Sani-

29a

its decision and choose to decertify the class should

[GEO] eventually produce individualized rebuttal evidence.” See Torres, 838 F.3d at 645.

In CGC Holding, we stated that “causation can be

established through an inference of reliance where

the behavior of plaintiffs and the members of the

class cannot be explained in any way other than reliance upon the defendant’s conduct.” 773 F.3d at

1089-90 (emphasis added) (quotations omitted). GEO

interprets this language to mean that conjectural

possibilities alone may preclude an otherwise permissible class-wide inference. We disagree. Even on

CGC Holding’s facts, it is at least conceivable that a

class member may have paid advance loan fees even

though he or she did not actually rely on the defendant’s misrepresentations. For example, a hypothetical class member may instead have paid the fees

solely because he or she trusted the judgment of a

third party, who, for whatever reason, maliciously

recommended entering into a loan agreement with

the defendants. We nevertheless allowed a class-wide

inference in CGC Holding because “the same considerations could lead a reasonable factfinder to conclude beyond a preponderance of the evidence that

each individual plaintiff relied on the defendants’

representations.” See id. at 1090 (quoting Klay v.

Humana, Inc., 382 F.3d 1241, 1259 (11th Cir.

2004)). 13 And here, for the reasons already stated

tation Policy.]” Oral Argument at 10:42-10:59. We see no inconsistency in the declarants’ statements.

13 In CGC Holding, we also “note[d] that the inference of re-

liance here is limited to transactional situations—almost always financial transactions—where it is sensible to assume

that rational economic actors would not make a payment unless

they assumed that they were receiving some form of the prom-

30a

above, the same considerations could lead a reasonable factfinder to conclude by a preponderance of the

evidence that each TVPA class member would not

have performed his or her assigned cleaning duties

without being subject to the Sanitation Policy.

****

In assessing the causation element’s susceptibility

to class-wide proof, we take no position on whether

the class would ultimately succeed on such proof at

trial. See id. at 1087 (“For the purposes of class certification, our primary function is * * * not to make a

determination on the merits of the putative class’s

claims.”). Rather, we must affirm the district court’s

class certification determination if it “falls within the

bounds of rationally available choices given the facts

and law involved in the matter at hand.” See

Soseeah, 808 F.3d at 808 (quotations omitted). Under

the circumstances here, the district court concluded

that a factfinder could—but need not—accept a classwide inference of causation. Menocal, 320 F.R.D. at

267. For the foregoing reasons, we are satisfied that

the district court did not abuse its discretion.

ised benefit in return.” 773 F.3d at 1091 n.9 (emphases added).

But we nowhere announced a brightline rule limiting class-wide

inferences to cases involving an economic transaction amenable

to rational choice theory. See Torres, 838 F.3d at 642 (emphases

added) (explaining that our opinion in CGC Holding “says only

that the absence of another rational explanation for the plaintiffs’ behavior is sufficient to infer reliance—it does not say it is

a necessary condition”). Our case—which involves alleged group

coercion rather than individual arm’s length transacting—not

only allows for a class-wide inference of causation for the reasons stated above but arguably supports an even stronger inference.

31a

ii. Damages

The presence of individualized damages issues does

not defeat the predominance of questions common to

the TVPA class. “[T]he fact that damages may have

to be ascertained on an individual basis is not, standing alone, sufficient to defeat class certification.”

Wallace B. Roderick Revocable Living Tr. v. XTO Energy, Inc., 725 F.3d 1213, 1220 (10th Cir. 2013) (quoting McLaughlin v. Am. Tobacco Co., 522 F.3d 215,

231 (2d Cir. 2008)); see also Newberg § 4:54 & n.2

(stating that “courts in every circuit have uniformly

held that the 23(b)(3) predominance requirement is

satisfied despite the need to make individualized

damage determinations” and listing cases).

Here, the district court reasonably determined

that, “considering the numerous questions common

to the class, * * * the possible need for specific damages determinations does not predominate.” Menocal,

320 F.R.D. at 267. The TVPA class’s common questions include: (1) whether the Sanitation Policy qualifies as an unlawful means under § 1589, (2) scienter,

(3) causation, (4) whether a civic duty exception exempts the Sanitation Policy from § 1589, and (5) if

so, whether it extends to government contractors like

GEO. As we said in another case, “[t]he district court

reasonably concluded that these questions drove the

litigation and generated common answers that determined liability in a single stroke.” In re Urethane

Antitrust Litig., 768 F.3d 1245, 1256 (10th Cir. 2014)

(quotations omitted). Moreover, the district court

could “preserve the class action model in the face of

individualized damages,” XTO Energy, 725 F.3d at

1220, such as by limiting the class action to liability

issues. The court therefore did not abuse its discre-

32a

tion in determining that individual damages would

not predominate.

****

The district court did not abuse its discretion in

certifying the TVPA class based on its “rigorous

analysis” of the Rule 23 requirements contested here.

See CGC Holding, 773 F.3d at 1086. The court reasonably determined that the class members could

show causation through class-wide inference and

that individual damage assessments would not predominate over the class’s common issues. Its findings

on commonality, typicality, and superiority were

likewise reasonable and fell within its discretion.

D. The Unjust Enrichment Class

We affirm the district court’s certification of the unjust enrichment class. We first provide background

on unjust enrichment under Colorado law. We then

analyze whether the district court abused its discretion in applying the Rule 23 requirements to certify

the unjust enrichment class. As with the TVPA class,

“our primary function is to ensure that the requirements of Rule 23 are satisfied, not to make a determination on the merits of the putative class’s

claims.” Id. at 1087.

1. Unjust Enrichment under Colorado Law

Unjust enrichment “is an equitable theory of recovery that exists independent of any contract.” Melat,

Pressman & Higbie, L.L.P. v. Hannon Law Firm, 287

P.3d 842, 847, 849 (Colo. 2012). Under Colorado

common law, “a party claiming unjust enrichment

must prove that (1) the defendant received a benefit

(2) at the plaintiff’s expense (3) under circumstances

that would make it unjust for the defendant to retain

33a

the benefit without commensurate compensation.”

Lewis v. Lewis, 189 P.3d 1134, 1141 (Colo. 2008).

The third element—whether the defendant’s retention of the benefit would be unjust—calls for “a factintensive inquiry in which courts look to, among other things, the intentions, expectations, and behavior

of the parties.” Melat, 287 P.3d at 847 (emphasis

added). Whether a plaintiff had a reasonable expectation of payment—while potentially relevant to the

unjustness inquiry—is not itself an element of unjust

enrichment under Colorado law. See Ninth Dist.

Prod. Credit Ass’n v. Ed Duggan, Inc., 821 P.2d 788,

799-800 & n.19 (Colo. 1991). In Ed Duggan, the Colorado Supreme Court explained that the plaintiff’s

reasonable expectation of payment is an element of

implied-in-fact contract claims but not unjust enrichment (or implied-in-law contract) claims. Id.14

2. Application of Rule 23 Requirements

GEO argues the district court abused its discretion

in determining that the unjust enrichment class satisfies commonality, typicality, predominance, and

superiority. We address predominance, the closest

issue, last. We conclude that the court did not abuse

14 The trial court in Ed Duggan had given an “erroneous[]”

unjust enrichment instruction by conflating two distinct legal

claims: (1) implied-in-fact contract, and (2) unjust enrichment

(or implied-in-law contract). Ed Duggan, 821 P.2d at 800. A

contract implied in fact “arises from the parties’ conduct,” which

“must evidence a mutual intention by the parties to contract

with each other.” DCB Constr. Co. v. Cent. City Dev. Co., 940

P.2d 958, 961 (Colo. App. 1996), as modified on denial of reh’g

(Aug. 29, 1996), aff’d, 965 P.2d 115 (Colo. 1998). In contrast, a

contract implied in law—or unjust enrichment—arises “not

from consent of the parties, * * * but from the law of natural

immutable justice and equity.” Id. at 962 (quotations omitted).

34a

its discretion as to any of these requirements in certifying the unjust enrichment class.

a. Commonality

The unjust enrichment class meets Rule 23(a)’s

commonality requirement. The district court found

“the existence of at least a single common question—

whether GEO received a benefit from VWP participants’ labor.” Menocal, 320 F.R.D. at 269. GEO does

not dispute—and neither do we—that answering this

question would “resolve an issue that is central to

the validity of each one of the claims in one stroke.”

Wal-Mart, 564 U.S. at 350. And this question alone

suffices to establish the commonality requirement for

the unjust enrichment class. See id. at 359; Stricklin,

594 F.3d at 1195. The district court therefore did not

abuse its discretion in applying the Rule 23(a) commonality requirement to the unjust enrichment

class.

b. Typicality

The unjust enrichment class satisfies Rule 23(a)’s

typicality requirement. Typicality requires only that

“the claims of the class representative and class

members are based on the same legal or remedial

theory.” Colo. Cross-Disability, 765 F.3d at 1216

(quotations omitted). Here, the claims of all the class

members—including the representatives—share the

same theory: that GEO unjustly retained a benefit

from class members’ labor under the VWP. The class

representatives allege that they—just like all detainees participating in the Aurora Facility’s VWP in the

relevant period—“were uniformly paid $1 [per] day of

work” and that GEO “was thereby unjustly enriched”

by their work. App., Vol. I at 31. And the class representatives’ declarations present no circumstances

35a

that would give rise to a different theory of liability. 15 The district court therefore did not abuse its

discretion in applying the Rule 23(a) typicality requirement to the unjust enrichment class.

c. Superiority

The unjust enrichment class, a subset of the TVPA

class, meets Rule 23(b)(3)’s superiority requirement

for the same reasons the TVPA class does. The district court noted that “[a]s stated above, many of the

putative class members are immigrant detainees

who lack English proficiency[,] * * * have limited financial resources and reside in countries around the

world.” Menocal, 320 F.R.D. at 270. It also was “not

aware of any other suit asserting the claims brought

in this case and no other class member has demonstrated an interest in controlling the litigation.” Id.

Based on these considerations, the court did not

abuse its discretion in applying the Rule 23(b)(3) superiority requirement to the unjust enrichment class.

See Newberg § 4:65; see also Amchem, 521 U.S. at

617.16

15 The only factual differences among the class representa-

tives’ experiences pertain to the nature of their jobs and the

hours they worked. But these factual differences do not defeat

typicality because the class members’ legal theory—that GEO

unjustly retained a benefit from their labor under the VWP—

does not change based on the nature of their jobs or their hours

worked. See Colo. Cross-Disability, 765 F.3d at 1216.

16 GEO’s suggestion that class members should “challenge

ICE’s underlying policy authorizing the $1 per day practice as

violating some federal law or constitutional right,” Aplt. Br. at

54, again ignores the nature of the controversy at hand. Notwithstanding GEO’s attempts to divine “the Plaintiffs’ real

complaint,” id., the alternatives proposed by GEO would not

address the class members’ claims for monetary relief and thus

36a

d. Predominance

Although Rule 23(b)(3)’s predominance requirement “regularly presents the greatest obstacle to

class certification,” CGC Holding, 773 F.3d at 1087,

it does not defeat the unjust enrichment class. GEO

contends that two of the unjust enrichment class’s

issues are not susceptible to generalized proof: (i) the

unjustness element, and (ii) damages. But as we

show below, (i) the unjustness element is susceptible

to generalized proof, and (ii) individual damages assessments would not predominate over the class’s

common issues.

i. The unjustness element

The unjustness element is susceptible to generalized proof and thus cannot defeat class certification

under Rule 23(b)(3)’s predominance requirement.

This analysis proceeds in two parts. First, unjustness

presents a common question here because the class

members seek to establish this element through

shared circumstances susceptible to class-wide proof.

See CGC Holding, 773 F.3d at 1087 (explaining that

we consider “how the class intends to answer factual

and legal questions to prove its claim—and the extent to which the evidence needed to do so is common

or individual”). Second, GEO’s sole argument to the

contrary—that the common evidence cannot establish a reasonable expectation of payment on the part

of the class members—fails because Colorado law

does not require such a showing as an element of unjust enrichment.

1) The class members’ unjustness showings rely on common circumstances

are not “superior * * * available methods for fairly and efficiently adjudicating the controversy.” See Fed. R. Civ. P. 23(b)(3).

37a

Although the unjustness element requires “a factintensive inquiry,” Melat, 287 P.3d at 847, the unjust

enrichment class members intend to rely on facts

that are shared amongst the class and thus are susceptible to class-wide proof. The class members

“claim that GEO’s retention of the benefit is unjust

because GEO utilized a policy [of] paying extremely

low wages to workers who were all detained, uniquely vulnerable as immigrants, and subject to GEO’s

physical control.” Aplee. Br. at 48. They seek to establish the unjust nature of GEO’s benefit based on

“evidence of a common course of conduct by GEO—

the uniform VWP and the uniform payments.” Id. at

51. Because the class members’ theory of unjustness

depends on shared rather than individualized circumstances, the unjustness question is common to

the class and does not defeat predominance. See Tyson Foods, 136 S. Ct. at 1045 (“[A] common question

is one where the same evidence will suffice for each

member to make a prima facie showing or the issue

is susceptible to generalized, class-wide proof.”

(brackets and quotations omitted)).

2) The class members need not show a reasonable expectation of payment under Colorado law

GEO’s only argument as to why class members

would need to rely on individualized circumstances

to show unjustness is that Colorado law requires

plaintiffs to show a reasonable expectation of payment beyond $1 per day, which the common evidence

here does not support. This argument fails because,

as discussed above, the Colorado Supreme Court has

made clear that a reasonable expectation of payment

is not a required element of unjust enrichment under

38a

Colorado law. See Ed Duggan, 821 P.2d at 799-800 &

n.19.17

In light of Ed Duggan, GEO’s citation to an earlier,

contrary decision by the Colorado Court of Appeals,

Aplt. Br. at 46, 51, is not persuasive. See Britvar v.

Schainuck, 791 P.2d 1183, 1184 (Colo. App. 1989) (“A

plaintiff cannot recover for unjust enrichment * * *

for services rendered absent proof of circumstances

indicating that compensation is reasonably expected.”). Moreover, post-Ed Duggan Colorado Supreme Court cases involving unjust enrichment

claims have not required plaintiffs to show a reasonable expectation of payment by the defendant. See,

e.g., City of Arvada ex rel. Arvada Police Dep’t v.

Denver Health & Hosp. Auth., 403 P.3d 609, 616-17

(Colo. 2017) (concluding that a public hospital could

seek recovery against a municipality under unjust

enrichment theory where it, “by virtue of its statutory obligation, performed a service [providing medical

treatment to a municipal arrestee] normally covered

under contract,” even though the municipality “never

17 We address GEO’s “reasonable expectation” argument—

even though it overlaps with the merits of the underlying unjust enrichment claims— “only to the extent * * * [it is] relevant

to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Conn. Ret. Plans & Tr.

Funds, 568 U.S. 455, 466 (2013). As we noted above, Rule

23(b)(3) predominance depends on “how the class intends to answer factual and legal questions to prove its claim—and the

extent to which the evidence needed to do so is common or individual.” CGC Holding, 773 F.3d at 1087. Answering the predominance question thus requires an understanding of the elements of the class’s underlying claim (in this case, whether unjust enrichment has a “reasonable expectation” element under

Colorado law). See id. at 1088.

39a

promised to pay for that service, and has in fact refused to pay, but * * * may have received a benefit”).

****

In deciding the narrow question of whether the unjustness element is susceptible to class-wide proof,

we take no position on whether the class would ultimately succeed on such proof at trial. See CGC Holding, 773 F.3d at 1087 (“For the purposes of class certification, our primary function is * * * not to make a

determination on the merits of the putative class’s

claims.”). Rather, we must affirm the district court’s

determination if it “falls within the bounds of rationally available choices given the facts and law involved in the matter at hand.” See Soseeah, 808 F.3d

at 808 (quotations omitted). Under the circumstances

here, the district court determined that the class

members could establish the unjustness of GEO’s

benefit based not on individualized transactions but

on the “overall context” and “uniform policies” shared

by all class members. Menocal, 320 F.R.D. at 269.

For the foregoing reasons, we are satisfied that the

district court did not abuse its discretion.

ii. Damages

As with the TVPA class, the presence of individualized damages issues does not defeat the predominance of questions common to the unjust enrichment

class. “[T]he fact that damages may have to be ascertained on an individual basis is not, standing alone,

sufficient to defeat class certification.” XTO Energy,

725 F.3d at 1220 (quoting McLaughlin, 522 F.3d at

231); see also Newberg § 4:54 & n.2 (stating that

“courts in every circuit have uniformly held that the

23(b)(3) predominance requirement is satisfied de-

40a

spite the need to make individualized damage determinations” and listing cases).

Here, the district court reasonably found that “individual damages in this case should be easily calculable using a simple formula” based on number of

hours worked, type of work performed, and fair market value of such work. Menocal, 320 F.R.D. at 270.

It further stated that if damages proved to be less

straightforward, “decertification or amendment of

the class for damages determinations may be appropriate at a later juncture.” Id. The court therefore did

not abuse its discretion in determining that individual damages would not predominate over the liability issues common to the class—including (1) whether GEO received a benefit from the class members’

VWP labor, and (2) whether it retained such a benefit unjustly. See XTO Energy, 725 F.3d at 1220

(“[T]he district court is in the best position to evaluate the practical difficulties which inhere in the class

action format, and is especially suited to tailor the

proceedings accordingly.”).

****

The district court did not abuse its discretion in

certifying the unjust enrichment class based on its

“rigorous analysis” of the Rule 23 requirements contested here. See CGC Holding, 773 F.3d at 1086. The

court reasonably determined that the class members

shared the circumstances relevant to the unjustness

question and that individual damage assessments

would not predominate over the class’s common issues. Its findings on commonality, typicality, and superiority were likewise reasonable and fell within its

discretion.

41a

III. CONCLUSION

We affirm the district court’s certification of both

classes. We grant the outstanding motions for leave

to file amicus briefs.

42a

APPENDIX B

FILED

United States Court of Appeal

Tenth Circuit

March 5, 2018

Elisabeth A. Shumaker

Clerk of the Court

UNITED STATES COURT OF APPEAL

FOR THE TENTH CIRCUIT

ALEJANDRO MENOCAL, et al.

Plaintiffs – Appellees

v.

THE GEO GROUP, INC.,

Defendant – Appellant,

No. 17-1125

---------NATIONAL ADVOCACY CENTER

OF THE SISTERS OF THE GOOD

SHEPHERD,

Amici Curiae.

______________________________________________

ORDER

________________________________________________

Before MATHESON, BACHARACH, and

McHUGH, Circuit Judges.

_________________________________________________

43a

Appellant’s petition for rehearing is denied.

The petition for rehearing en banc was transmitted

to all of the judges of the court who are in regular active service. As no member of the panel and no judge

in regular active service on the court requested that

the court be polled, that petition is also denied.

Entered for the Court

s/ Elisabeth A. Shumaker

ELISABETH A. SHUMAKER, Clerk

44a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02887-JLK

ALEJANDRO MENOCAL,

MARCOS BRAMBILA,

GRISEL XAHUENTITLA,

HUGO HERNANDEZ,

LOURDES ARGUETA,

JESUS GAYTAN,

OLGA ALEXAKLINA,

DAGOBERTO VIZGUERRA, and

DEMETRIO VALEGRA,

on their own behalf and on behalf of all others similarly situated,

Plaintiffs,

v.

THE GEO GROUP, INC.,

Defendant.

_________________________________________________

ORDER GRANTING MOTION FOR CLASS CERTIFICATION

UNDER

RULE

23(b)(3)

AND

APPOINTMENT OF CLASS COUNSEL UNDER

RULE 23(g) (ECF NO. 49)

_________________________________________________

Kane, J.

45a

Plaintiffs Alejandro Menocal, Marcos Brambila,

Grisel Xahuentitla, Hugo Hernandez, Lourdes Argueta, Jesus Gaytan, Olga Alexaklina, Dagoberto

Vizguerra, and Demetrio Valerga (Representatives)

are current and former detainees of the Aurora Detention Facility (Facility), a private immigration detention center in Aurora, Colorado, owned and operated by Defendant The GEO Group, Inc. (GEO). Representatives originally brought three claims against

GEO for: (1) noncompliance with the Colorado Minimum Wages of Workers Act, Colo. Rev. Stat. § 8-6101, et seq.; (2) violations of the forced labor provision of the Trafficking Victims Protection Act (TVPA),

18 U.S.C. §§ 1589, 1595; and (3) unjust enrichment.

Representatives brought the claims on their own behalf and on behalf of proposed classes of similarlysituated current and former detainees of the Facility.

GEO moved to dismiss the claims, and I granted its

motion as to only the Colorado minimum wage claim.

Representatives now seek certification of the proposed classes for their remaining TVPA and unjust

enrichment claims.

Although Representatives and putative class members have diverse backgrounds, their circumstances

are uniquely suited for a class action. All share the

experience of having been detained in the Facility

and subjected to uniform policies that purposefully

eliminate nonconformity. The questions posed in this

case are complex and novel, but the answers to those

questions can be provided on a classwide basis. Appreciating that the class action is “a valuable tool to

circumvent the barriers to the pursuit of justice,” Alba Conte & Herbert Newberg, Newberg on Class Actions § 25:24 (4th ed.), I GRANT the Motion for Class

46a

Certification Under Rule 23(b)(3) and Appointment

of Class Counsel under Rule 23(g) (ECF No. 49).

I. Background

Representatives take issue with two aspects of

GEO’s operation of the Aurora Detention Facility.

First, they allege that, in carrying out its Housing

Unit Sanitation Policy, GEO violated the Trafficking

Victims Protection Act by requiring detainees to

clean the private and common areas of the Facility

without any compensation and under the threat of

solitary confinement and other punishments. Second,

they claim that GEO was unjustly enriched by paying detainees who participated in its Voluntary Work

Program (VWP) only $1 per day.

GEO, a for-profit, multinational corporation, operates the Facility pursuant to a contract with U.S.

Immigration and Customs Enforcement (ICE). ICE’s

Performance Based National Detention Standards

mandate that all detainees perform personal housekeeping. Specifically, [d]etainees are required to

maintain their immediate living areas in a neat and

orderly manner by:

1. making their bunk beds daily; 2.

stacking loose papers; 3. keeping the

floor free of debris and dividers free of

clutter; and 4. refraining from hanging/draping clothing, pictures, keepsakes, or other objects from beds, overhead lighting fixtures or other furniture.

Def.’s Opp. Class Certification Ex. 2 at 15-16, ECF

No. 51-2. GEO combined these responsibilities with

portions of the American Correctional Association

standards and its own corporate policy to develop the

Facility’s Housing Unit Sanitation Policy, which has

47a

been in effect since 1995. Mot. Class Certification Ex.

1 at 15:23-25, 27:9-14, 86:22-87:3, ECF No. 50-1.

Representatives claim that the detainees’ compulsory

duties under the Sanitation Policy, such as sweeping

and mopping floors and cleaning toilets and showers,

fall outside the scope of ICE’s personal housekeeping

requirement. The GEO Detainee Handbook Local

Supplement, with which all detainees at the Facility

are provided, states that failure to perform one’s duties under the Sanitation Policy is a “high-moderate”

offense for which detainees can be punished by the

initiation of criminal proceedings, termination from

their jobs, and up to 72 hours in disciplinary segregation, among other sanctions. Mot. Class Certification Ex. 1 at 29:13-30:2, 79:13-25; Ex. 4 at 18, 26,

ECF No. 50-3. Representatives and other detainees

were aware of the Sanitation Policy during their detention and claim that they performed the required

duties to avoid solitary confinement. See Mot. Class

Certification Ex. 5 ¶ 3, ECF No. 49-2; Ex. 6 ¶ 3, ECF

No. 49-3; Ex. 7 ¶ 3, ECF No. 49-4; Ex. 8 ¶ 3, ECF No.

49-5; Ex. 9 ¶ 3, ECF No. 49-6; Ex. 10 ¶ 3, ECF No.

49-7; Ex. 11 ¶ 3, ECF No. 49-8; Ex. 12 ¶ 3, ECF No.

49-9. Based on these allegations, Representatives assert that the labor performed by detainees at the Facility pursuant to the Sanitation Policy is forced labor in violation of the TVPA. They request that I certify a TVPA class of “[a]ll persons detained in Defendant’s Aurora Detention Facility in the ten years

prior to the filing of this action.” Mot. Class Certification at 10, ECF No. 49.

Separately, GEO offers a Voluntary Work Program

that allows detainees to work in various positions

around the Facility and earn $1 per day. As part of

the program, detainees perform tasks such as main-

48a

taining the on-site medical facility, doing laundry,

preparing meals, and cleaning the Facility. ICE’s

Performance Based National Detention Standards

require that detainees be compensated “at least

$1.00 (USD) per day” for work completed under the

facility’s VWP. Mot. Dismiss, Ex. 1 at 5, ECF No. 111. Representatives allege that GEO misled VWP participants to believe it could pay them no more than

$1 per day under the ICE standards. Representatives

also stress that GEO employs only a single outside

custodian and that detainees are unable to seek other employment in a competitive market. Mot. Class

Certification at 9. As a result, they claim that GEO

derives significant economic benefit from its VWP

and has been unjustly enriched because of it. Representatives propose certification of an unjust enrichment class comprised of “[a]ll people who performed

work [at] Defendant’s Aurora Detention Facility under Defendant’s [Voluntary Work Program] Policy in

the three years prior to the filing of this action.”

II. Legal Standard

“The class action is ‘an exception to the usual rule

that litigation is conducted by and on behalf of the

individual named parties only.’” Wal-Mart Stores, Inc.

v. Dukes, 564 U.S. 338, 348 (2011) (quoting Califano

v. Yamasaki, 442 U.S. 682, 700-701 (1979)). The exception is appropriate when the party seeking certification can establish the four threshold requirements

set forth in Federal Rule of Civil Procedure 23(a) and

fulfillment of at least one of the provisions in Rule

23(b). “When addressing class certification, the district court must undertake a ‘rigorous analysis’ to

satisfy itself that the prerequisites of Rule 23 * * *

are met.” CGC Holding Co., LLC v. Broad and Cassel,

773 F.3d 1076, 1086 (10th Cir. 2014). Under Rule

49a

23(a), the party requesting certification must first

show that: “(1) the class is so numerous that joinder

of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the

claims or defenses of the representative parties are

typical of the claims or defenses of the class; and (4)

the representative parties will fairly and adequately

protect the interests of the class.” If successful, the

party must then demonstrate, pursuant to Rule 23(b),

one of the following: (1) individual adjudication

would create a risk of incompatible standards of conduct for the party opposing the class or would impair

other members’ ability to protect their interests; (2)

injunctive or declaratory relief is appropriate for the

class as a whole due to the action or inaction of the

party opposing the class; or (3) common questions of

law or fact predominate over any individual questions and a class action is the superior method for

“fairly and efficiently adjudicating the controversy.”

Here, Representatives rely on Rule 23(b)(3), which

requires predominance of questions of law or fact

common to the class and superiority of the class action method. The conditions of predominance and

superiority were added “to cover cases ‘in which a

class action would achieve economies of time, effort,

and expense, and promote * * * uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other

undesirable results.’” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997) (quoting Fed. R. Civ. P.

23 advisory committee’s note). In determining if

these requirements are met, I must consider, among

other factors: “(A) the class members’ interests in individually controlling the prosecution or defense of

separate actions; (B) the extent and nature of any

50a

litigation concerning the controversy already begun

by or against class members; (C) the desirability or

undesirability of concentrating the litigation of the

claims in the particular forum; and (D) the likely difficulties in managing a class action.” Fed. R. Civ. P.

23(b)(3).

III. Discussion

GEO challenges Representatives’ satisfaction of

almost all of the Rule 23 considerations. Preliminarily, I find that Representatives have demonstrated

that the proposed classes satisfy the numerosity1 and

adequacy requirements. As to the remaining factors—commonality and typicality under Rule 23(a)

and predominance and superiority under Rule

23(b)(3), GEO’s most compelling, but ultimately un-

1 Representatives have carried their burden by offering

“‘some evidence of established, ascertainable numbers constituting the class.’” Colo. Cross-Disability Coal. v. Abercrombie &

Fitch Co., 765 F.3d 1205, 1214-15 (10th Cir. 2014) (citing Rex v.

Owens ex rel. Okla., 585 F.2d 432, 436 (10th Cir. 1978)). With

respect to the TVPA class, GEO’s Assistant Warden of Operations estimated that, in the past ten years, 50,000 to 60,000 individuals have been detained at the Facility and subject to the

Sanitation Policy. Mot. Class Certification Ex. 1 at 49:24-50:2.

As for the unjust enrichment class, GEO’s records show that

787 detainees participated in the Voluntary Work Program in

November 2012 alone. Mot. Class Certification Ex. 15 at 7, ECF

No. 50-6. Representatives approximate that there will be 2,000

total members of the class. GEO argues that Representatives

cannot simply rely on the presumption that classes with greater

than 40 putative members satisfy the numerosity requirement.

Representatives do not just depend on that presumption, however; they have also shown that joinder would be impracticable

due to the unique characteristics of the class members, namely

that many are spread around the world and are not fluent in

English or the U.S. legal system.

51a

convincing, argument is that elements of both claims

necessitate inquiries specific to each class member.

A. Trafficking Victims Protection Act Claim

The forced labor provision of the TVPA

makes it unlawful for anyone to: knowingly provide[] or obtain[] the labor or

services of a person * * * (1) by means of

force, threats of force, physical restraint,

or threats of physical restraint to that

person or another person; (2) by means

of serious harm or threats of serious

harm to that person or another person;

(3) by means of the abuse or threatened

abuse of law or legal process; or (4) by

means of any scheme, plan, or pattern

intended to cause the person to believe

that, if that person did not perform such

labor or services, that person or another

person would suffer serious harm or

physical restraint.

18 U.S.C. § 1589 (emphasis added). The element that

the labor be obtained “by means of” the defendant’s

improper coercion is central to the parties’ dispute.

GEO claims that evaluating whether this element is

fulfilled requires an individualized assessment of

what caused each putative class member to perform

labor under the Sanitation Policy. Consequently,

GEO asserts that the commonality, typicality, predominance, and superiority requirements are not

met for the TVPA class.

52a

Federal Rule of Civil Procedure 23(a): Commonality

& Typicality

To fulfill the commonality requirement, Representatives must demonstrate that “there are questions of

law or fact common to the class.” Fed. R. Civ. P.

23(a)(1). A qualifying question must be “of such a nature that it is capable of classwide resolution—which

means that determination of its truth or falsity will

resolve an issue that is central to the validity of each

one of the claims in one stroke.” Wal-Mart Stores,

Inc., 564 U.S. at 350. The analysis must not focus on

the mere existence of common questions but on “‘the

capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.’” Id. at 350 (quoting Richard Nagareda, Class

Certification in the Age of Aggregate Proof, 84 N.Y.U.

L. Rev. 97, 132 (2009)). Nevertheless, “[i]t is not necessary that all of the elements of the claim entail

questions of fact and law that are common to the

class, nor that the answers to those common questions be dispositive.” CGC Holding Co., LLC, 773

F.3d at 1087 (citing Amgen Inc. v. Conn. Ret. Plans &

Trust Funds, 133 S. Ct. 1184, 1196 (2013)).

Representatives submit that the common questions

putative class members share are: “(1) whether GEO

obtains the labor of class members; (2) whether GEO

threatens class members with physical restraint, serious harm, or abuse of the legal process; and (3)

whether GEO ‘knowingly’ obtains class members’ labor ‘by * * * means of’ these threats.” Mot. Class Certification at 11. GEO argues that these questions fail

to demonstrate, as required by Wal-Mart Stores, Inc.

v. Dukes, that an issue central to the validity of Representatives’ claim is susceptible to classwide resolution.

53a

In Wal-Mart, the Supreme Court found that a proposed class of female employees alleging discrimination under Title VII lacked even a single question

common to the class and thus did not satisfy the

commonality requirement. 564 U.S. at 342, 359. Relying on the fact that the defendant had no specific

discriminatory employment policy or biased evaluation method, the Court found that the central question of why each class member was disfavored could

not produce a common answer. Id. at 352-55, 59. The

defendant’s local supervisors were given discretion

over employment decisions such that it was unlikely

that each manager exercised their discretion in a

common discriminatory manner. Id. at 355-56. The

Court stated that “[w]ithout some glue holding the

alleged reasons for all those decisions together, it

[would] be impossible to say that examination of all

the class members’ claims for relief [would] produce

a common answer * * * *” Id. at 352.

Unlike in Wal-Mart, GEO has a specific, uniformly

applicable Sanitation Policy that is the subject of

Representatives’ TVPA claim. This Policy is the glue

that holds the allegations of the Representatives and

putative class members together,2 creating a number

of crucial questions with common answers. For example: Does GEO employ a Sanitation Policy that

2 GEO argues that each class member could have labored due

to different parts of the Policy so the Policy as a whole cannot

be the glue. The text of the statute contradicts that assertion.

The statue provides that “a scheme, plan, or pattern” can constitute improper means without requiring determination of

which specific part of the scheme, plan, or pattern motivated

the laborer. 18 U.S.C. § 1589. Thus, a uniform policy can be the

glue that holds the allegations of a class together.

54a

constitutes improper means of coercion under the

forced labor statute? Does GEO knowingly obtain detainees’ labor using that Policy? Is there a civic duty

exception to the forced labor statute that makes the

Policy acceptable? Representatives have demonstrated the existence of common questions that can resolve issues “central to the validity” of its TVPA

claim “in one stroke.” Wal-Mart Stores, Inc, 564 U.S.

at 350.

“The commonality and typicality requirements of

Rule 23(a) do not require that every member of the

class share a fact situation identical to that of the

named plaintiff.” Colo. Cross-Disability Coal. v.

Abercrombie & Fitch Co., 765 F.3d 1205, 1216 (10th

Cir. 2014) (citation omitted). Furthermore, “differing

fact situations of class members do not defeat typicality under Rule 23(a)(3) so long as the claims of the

class representative and class members are based on

the same legal or remedial theory.” Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988).

GEO contends that Representatives’ experiences

could not be typical, because perception of a threat is

subjective and because none of Representatives were

actually placed in segregation for refusing to clean.

GEO also points out that Representatives detention

at the Facility only spans back to May 2011, while

the proposed class goes back ten years. The nature of

detention is unique in that it allows the detainer to

almost fully control the experience of the detainee. In

this case, Representatives and the putative class

members were all subject to and impacted by the

Sanitation Policy, and the duties they performed under the Policy were at the direction of GEO’s staff.3

3 One way in which GEO implements the Policy is by posting

a list of detainees who are required to perform additional

55a

Mot. Class Certification Ex. 2 at 1-3, ECF No. 50-2. I

find it irrelevant that no Representative was actually

disciplined with segregation for violating the Policy,

since the forced labor statute includes threats,

schemes, plans, and patterns as improper means of

coercion. As for the time period covered by the class,

GEO’s Assistant Warden of Operations testified that

its Sanitation Policy had been in effect since 1995,

when she began working for the company. Mot. Class

Certification Ex. 1 12:23-13:1, 23:8-16, 86:22-87:3.

Representatives and the proposed class of individuals detained during the ten years prior to the filing of

the Complaint could, therefore, bring claims based

on the same legal or remedial theory. Representatives have shown that the typicality requirement is

met for their Proposed TVPA class.

Federal Rule of Civil Procedure 23(b)(3): Predominance and Superiority

While the class undoubtedly satisfies the Rule

23(a) factors, the Rule 23(b)(3) “predominance criterion is far more demanding.” Amchem Prods., Inc.,

521 U.S. at 623–24. Its “inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Id. at 623. In considering whether questions of law or fact common to class

members predominate, I look to the specific elements

of the underlying claim. See Erica P. John Fund, Inc.

v. Halliburton Co., 563 U.S. 804, 809 (2011).

cleanup of the common areas each day. Mot. Class Certification

Ex. 4 at 19. GEO does not allege and there is nothing in the

record to show that detainees who are not on the daily list still

choose to perform the additional duties or that detainees work

autonomously.

56a

GEO contends that, to satisfy the “by means of” element of the forced labor statute, each class member

would need to show what specifically compelled him

or her to perform the sanitation duties at the Facility.

It suggests that some detainees labored just because

they desired to stay occupied. And, with respect to

those hypothetical detainees, GEO claims it could

not have violated the TVPA because it did not obtain

their labor “by means of” improper coercion. Representatives refute this argument, stating that, instead

of individually inquiring as to why each detainee labored, a reasonable person standard should be used.

According to Representatives, “the language and

structure of the forced labor statute * * * call for an

objective inquiry that turns on whether a reasonable

person would provide labor to[] GEO if placed in the

position of the person providing such labor.” Mot.

Class Certification at 15.

Representatives cite Nuñag-Tanedo v. East Baton

Rouge Parish School Board, No. LA CV 10-01172

JAK (MLGx), 2011 WL 7095434 (C.D. Cal. Dec. 12,

2011), as support for their assertion that a reasonable person standard should be used. Nuñag-Tanedo

involved a class of Filipino nationals who were recruited to work as teachers in Louisiana public

schools and felt compelled to teach in order to repay

the exorbitant debts they incurred as part of the recruitment process. Id. at *1. Construing the forced

labor statute, the court in Nuñag-Tanedo found that

the putative class members shared the same background and circumstances such that a reasonable

person standard could be used to determine whether

it was the defendants’ scheme that ultimately compelled the plaintiffs to work. Id. at *1.

57a

In turn, GEO relies on Panwar v. Access Therapies,

Inc., No. 1:12-cv-00619, 2015 WL 329013 (S.D. Ind.

Jan. 22, 2015), and David v. Signal International,

LLC, No. 08-1220, 2012 WL 10759668, at *15 (E.D.

La. Jan. 4, 2012), to challenge the use of a reasonable

person standard. The proposed classes in Panwar

and David, as in Nuñag-Tanedo, were comprised of

foreign citizens who were recruited to work in the

United States and then were allegedly coerced by

improper means to continue laboring. Unlike in Nuñag-Tanedo, however, the courts in both Panwar and

David determined that the use of a classwide reasonable person standard was not appropriate.

Panwar, 2015 WL 329013, at *1; David, 2012 WL

10759668, at *1-2.

In Panwar, the court found that the backgrounds

and circumstances of the plaintiffs and class members varied too greatly to apply a uniform reasonable

person standard. 2015 WL 329013, at *6. The class

members had different contracts, worked in different

states, and faced different working conditions. Id.

The court reasoned that it was likely that “a significant number” of putative class members did not labor due to improper coercion as they never sought to

terminate their contracts, were not threatened by

deportation, or would not be seriously harmed by

having to pay damages for breach of their employment contracts. Id. The facts in this case are distinct

from those in Panwar given that Representatives

and the putative class members here were all subject

to a universal policy under uniform conditions.

The second case GEO cites, David v. Signal International, LLC, goes beyond looking at the similarities and differences of class members’ circumstances

and meticulously analyzes the “by means of” element

58a

of the forced labor statute. The plaintiffs in David

asserted, as Representatives do here, that the statute concerns only the defendant’s conduct and

whether a reasonable person in the plaintiffs’ shoes

would have been compelled to provide labor against

his or her will. 2012 WL 10759668, at *17. For guidance on the proper query under the statute, the court

looked to United States v. Kozminski, 487 U.S. 931

(1988). Id. at *17-19. The Supreme Court held in

Kozminski that, for the purposes of criminal prosecution, involuntary servitude under 18 U.S.C. § 1584 is

limited to the “compulsion of services by the use or

threatened use of physical or legal coercion.” 487 U.S.

at 952-53. The forced labor statute was enacted in

response to that holding in order to combat the exploitation of workers via means other than physical

or legal coercion, including through threats of and

actual non-physical “serious harm.” H.R. Conf. Rep.

106-939, 3-5. In Kozminski, the Supreme Court alluded to causation, stating: “[T]he vulnerabilities of

the victim are relevant in determining whether the

physical or legal coercion or threats thereof could

plausibly have compelled the victim to serve.” 487

U.S. at 952. The court in David consequently determined that “the forced labor analysis cannot be confined solely to the defendant’s conduct but necessarily must take into account the particular victim’s vulnerabilities.” David, 2012 WL 10759668, at *19. It

additionally concluded that whether the defendants’

coercive conduct caused the plaintiffs to labor could

not “be answered via generalized class-wide proof but

rather must be answered individually based upon

individualized proof.” Id. at *21.

I find the analysis in David to be persuasive in that

the forced labor statute does contain both an objec-

59a

tive and a subjective component. The subjective component is whether the victims actually labored because of the perpetrator’s conduct, while the objective

component is whether a reasonable person would respond in a similar way as the victims. See id. at *20.

Representatives’ proposal that the subjective component be eliminated by using only a reasonable person

standard does not coincide with the statute.4

Nevertheless, the holding in David does not foreclose certification of the proposed class in this case.

Representatives argue, as an alternative to eliminating the subjective component of the statue, that the

“by means of” element can be satisfied by inferring

from classwide proof that the putative class members

labored because of GEO’s improper means of coercion.

Representatives are correct that there is nothing

preventing such an inference. I have not found and

GEO has not provided any authority requiring that,

for TVPA claims, causation must be proven by direct

and not circumstantial evidence. Were a jury deciding the individual merits of Representatives claims,

it surely would be permitted to make such an inference. Thus, it should be allowed on a classwide basis

as well. See CGC Holding Co., LLC, 773 F.3d at 1092.

Representatives and the putative class members in

this case were directed by GEO’s staff when, where,

4 Representatives highlight that individuals can also be con-

victed of or held civilly liable for attempting to violate the forced

labor statute under 18 U.S.C. § 1594. They claim that, even if

some putative class members labored for reasons other than

GEO’s improper means of coercion, GEO still attempted to obtain their labor via those means. As a result, Representatives

argue that such class members would be entitled to the same

civil remedy, making an individual inquiry regarding causation

unnecessary. Their Complaint, however, does not assert a claim

for attempt under 18 U.S.C. § 1594.

60a

and how to perform their sanitation duties. Given

the climate in which they were detained, it is possible that an inference of causation would be appropriate even despite some class members’ purported willingness to work for reasons other than GEO’s improper means of coercion. See David, 2012 WL

10759668, at *21 (“[B]ased on the type of coercion

used, there may be cases where consent becomes irrelevant.”). For class certification purposes, though, I

need only conclude that the “by means of” element

could be established by classwide circumstantial evidence.

Representatives reference CGC Holding Co., LLC v.

Broad and Cassel as an example of when circumstantial evidence can be used to show causation on a

classwide basis. In CGC Holding, the Tenth Circuit

held that certification of a class of real estate borrowers bringing claims under the Racketeer Influenced and Corrupt Organizations (RICO) Act was

appropriate even though actual and proximate causation were elements of the claim. 773 F.3d at 108081. The court found that, under certain circumstances, “it is beneficial to permit a commonsense inference * * * applicable to the entire class to answer a

predominating question as required by Rule 23.” Id.

at 1089. The circumstances here—namely the class

members’ detainment, the imposition of a uniform

policy, and the numerous other questions common to

the class—certainly make it beneficial to permit such

an inference.5

5 GEO argues that the rationale applied in the RICO context

in CGC Holding cannot be extended to TVPA claims. I disagree.

The analysis in CGC Holding may not dictate the outcome in

this matter, but it is instructive.

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In a final effort to show that individual questions

predominate as to the TVPA claim, GEO asserts that

any damages inquiry would have to be specific to

each class member. But, considering the numerous

questions common to the class, I find that the possible need for specific damages determinations does

not predominate. In re Urethane Antitrust Litig., 768

F.3d 1245, 1255 (10th Cir. 2014); see also Fed. R. Civ.

P. 23 advisory committee’s note (“[A] fraud perpetrated on numerous persons by the use of similar

misrepresentations may be an appealing situation

for a class action, and it may remain so despite the

need, if liability is found, for separate determination

of the damages suffered by individuals within the

class.”). Since causation under the forced labor statute “can be found through generalized, classwide

proof,” common questions predominate in this case

and “class treatment is valuable in order to take advantage of the efficiencies essential to class actions.”

CGC Holding Co., LLC, 773 F.3d at 1089 (citations

omitted).

“[C]lass status is appropriate as long as plaintiffs

can establish an aggregation of legal and factual issues, the uniform treatment of which is superior to

ordinary one-on-one litigation.” Id. at 1087. In including Rule 23(b)(3), “the Advisory Committee had

dominantly in mind vindication of ‘the rights of

groups of people who individually would be without

effective strength to bring their opponents into court

at all.’” Amchem Prods., Inc., 521 U.S. at 617 (quoting Kaplan, A Prefatory Note, 10 B.C. Ind. & Com. L.

Rev. 497, 497 (1969)). In this case, the putative class

members reside in countries around the world, lack

English proficiency, and have little knowledge of the

legal system in the United States. It is unlikely that

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they would individually bring these innovative

claims against GEO. Further, if they were to do so,

each detainee would have to litigate the same exact

issues regarding GEO’s Sanitation Policy. The class

action is the superior method for adjudicating the

TVPA claim. Representatives have thus demonstrated that their proposed TVPA class fulfills the requirements of Rule 23(a) & (b)(3) such that certification is appropriate.

B. Unjust Enrichment Claim

Turning to Representatives unjust enrichment

claim, GEO’s arguments against certification similarly involve whether an element of the claim compels individualized inquiries. To succeed on a claim

of unjust enrichment, a plaintiff must prove “(1) the

defendant received a benefit (2) at the plaintiff’s expense (3) under circumstances that would make it

unjust for the defendant to retain the benefit without

commensurate compensation.” Lewis v. Lewis, 189

P.3d 1134, 1141 (Colo. 2008) (citing Salzman v.

Bachrach, 996 P.2d 1263, 1266-67 (Colo. 2000)). Determining whether retention of the benefit is unjust

involves “careful consideration of particular circumstances,” Lewis, 189 P.3d at 1140 (citation omitted),

and “a fact-intensive inquiry in which courts look to,

among other things, the intentions, expectations, and

behavior of the parties,” Melat, Pressman & Higbie,

L.L.P. v. Hannon Law Firm, L.L.C., 287 P.3d 842,

847 (Colo. 2012) (citing Lewis, 189 P.3d at 1140,

1143). The analysis “often will turn on whether a

party engaged in some type of wrongdoing.” Dudding

v. Norton Frickey & Assocs., 11 P.3d 441, 445 (Colo.

2000).

GEO argues that the “unjust” element, dependent

on the intentions, expectations, and behavior of the

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parties, requires an inquiry specific to each putative

class member and cannot be demonstrated on a

classwide basis. As with the TVPA claim, GEO contends that the necessity of an individualized inquiry

for one of the elements of the claim prevents the

commonality, typicality, predominance, and superiority requirements from being met.

Federal Rule of Civil Procedure 23(a): Commonality

and Typicality

Again, I start the certification analysis with the

Rule 23(a) commonality requirement that there be at

least one question common to the class that will resolve an issue central to the validity of the claim “in

one stroke.” Wal-Mart Stores, Inc., 564 U.S. at 350,

359. Representatives assert that the questions common to the proposed class are: “(1) whether the class

provided GEO with a benefit in the form of substantially discounted labor, and (2) whether, under the

circumstances of this case, it would be unjust for

GEO to retain that benefit.” Consistent with its

overarching argument, GEO states that the second

question regarding the “unjust” element is not a

question common to the class as it requires an individualized inquiry.6 I address this argument further

6 GEO’s other arguments purportedly addressing commonali-

ty for the unjust enrichment class relate more to the merits of

the claim than the existence of common questions. Citing Alvarado Guevara v. Immigration and Naturalization Service,

902 F.2d 394, 396-96 (5th Cir. 1990), GEO asserts that detainees are not participants in the same market as other persons

who could become employed by ICE since they are removed

from the American industry. According to GEO, detainees could

not reasonably expect that they would be paid more than $1.00

per day. It is unclear how this line of reasoning relates to the

commonality analysis. If anything, the question of whether detainees should be paid in line with the market seems to support

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below in discussing the predominance factor. For the

purposes of the commonality requirement, though, I

find that Representatives have demonstrated the existence of at least a single common question—

whether GEO received a benefit from VWP participants’ labor—the determination of which will resolve

an issue central to the validity of the unjust enrichment claim in one stroke.

GEO also claims that Representatives’ experiences

are not typical of the class because its representation

that ICE dictates the $1.00 per day pay rate was only

made to specific individuals and not on a classwide

basis. According to GEO, Representatives and putative class members would not be challenging the

same conduct under the same legal theories as required for typicality. Representatives respond by

stating that their unjust enrichment claim does not

turn on class members’ individualized reliance on

GEO’s explanation of the pay rate, but instead, that

the misrepresentation contributes to the context of

GEO’s enrichment. As noted throughout this order,

detainment presents distinctive conditions. Representatives, like the putative class members, worked

under the Voluntary Work Program in an environment GEO controlled. GEO dictated the jobs they

performed, the rate they were paid, and the alleged

savings it experienced.

Representatives’ unjust enrichment claim challenges the same conduct under the same legal theothe existence of questions that can be answered on a classwide

basis.

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ries as any unjust enrichment claim putative class

members would bring. Thus, with respect to that

claim, Representatives have demonstrated the proposed class fulfills the Rule 23(a) prerequisites.

Federal Rule of Civil Procedure 23(b)(3): Predominance and Superiority

The more stringent predominance factor demands

that I look to the elements of the claim and fully consider GEO’s argument regarding the necessity of individualized inquiries in determining whether its enrichment is unjust. The “unjust” element of the claim

calls for an analysis of “the intentions, expectations,

and behavior of the parties” to determine when retention of the benefit becomes unjust. Melat, Pressman & Higbie, 287 P.3d at 847 (citing Lewis, 189

P.3d at 1140, 1143). GEO insists that such expectations and intentions are highly individualized and

could not be consistent classwide. I am not persuaded. It is not necessary to analyze the intentions, expectations, and behavior of each individual class

member; it is enough to consider the overall context

based on classwide proof. GEO “has failed to explain

why it would be equitable for it to retain [the benefit

conferred by] some of the putative class members,

but inequitable to retain [the benefit] from others.”

James D. Hinson Elec. Contr. Co. v. BellSouth Telecomms., Inc., 275 F.R.D. 638, 647 (M.D. Fla. 2011).

GEO’s treatment of participants in the VWP was

based on uniform policies and, therefore, it is likely

that, if its retention of a benefit was unjust with respect to one class member, it was unjust with respect

to all class members.

GEO quotes Friedman v. Dollar Thrifty Automotive

Group, Inc., 304 F.R.D. 601 (D. Colo. 2015), twice to

support the proposition that class certification is in-

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appropriate for unjust enrichment claims, because

“common questions will rarely, if ever, predominate.”

Def.’s Opp. Class Certification at 40, 42 (quoting

Friedman, 304 F.R.D. at 611). In Friedman, however,

the court determined that whether the defendant’s

enrichment from its sales were unjust turned on the

circumstances of the sales, “implicat[ing] 2.58 million

face-to-face individualized transactions in which customers with varying circumstances, preferences, and

levels of knowledge * * * engaged with thousands of

[the defendant’s] agents * * * *” Friedman, 304 F.R.D.

at 609, 611. Those interactions were unscripted and

each could differ based on what was told to or understood by the consumer about purchasing the defendant’s products. Id. at 609-10. Under those circumstances, it is logical that the answers to the common

questions could not be established by common evidence and would not predominate, but those are not

the facts of this case. Here, there is a consistent policy under which detained individuals worked and

were paid the same amount. Perhaps the extent to

which GEO was unjustly enriched would require individualized inquiries, but whether it was unjust at

all could be determined on a classwide basis.

Observing that the extent inquiry would likely be

particular to each class member, GEO argues that

individualized damages questions predominate over

any common questions. Since VWP participants

worked varying hours and did not all perform the

same type of work,7 any award to them would need

7 GEO also contends that, for the damages analysis, partici-

pants would need individualized proof of whether it made misrepresentations to them specifically. Def.’s Opp. Class Certification at 42-43. Any misrepresentations, however, should not be

relevant in determining the extent to which a particular participant enriched GEO.

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to account for those individual factors. Representatives assert that damages could be determined by a

formula and statistical sampling taking into account

the number of hours worked, type of work performed,

and fair market value of such work. However, they

have not provided a detailed model or expert opinion

on calculating damages, which GEO claims is necessary for them to sufficiently carry their burden. I

agree with Representatives that there is no requirement that they produce expert testimony at this

stage on the precise formula to be used for the calculation of damages. See Alba Conte & Herbert Newberg, Newberg on Class Actions § 12:4 (5th ed.) (explaining that, in many class actions such as wage

and hour cases, individual damages are easily calculable, while other more complex cases require the

proponents of class certification to provide a classwide method for calculating individual damages). I

find that Representatives have demonstrated that

individual damages in this case should be easily calculable using a simple formula. If this proves untrue,

decertification or amendment of the class for damages determinations may be appropriate at a later

juncture.

Additionally, the class action is the superior method for adjudicating Representatives’ unjust enrichment claim. I am not aware of any other suit asserting the claims brought in this case and no other class

member has demonstrated an interest in controlling

the litigation. As stated above, many of the putative

class members are immigrant detainees who lack

English proficiency. They have limited financial resources and reside in countries around the world. It

is very likely that these claims would not be brought

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by individual detainees, especially considering the

case’s innovative nature.

Representatives have demonstrated that the Rule

23(a) and (b)(3) requirements are satisfied with respect to their TVPA and unjust enrichment claims

despite GEO’s arguments that elements of each

claim require individualized inquiries that preclude

certification. In light of the pervasive character of

the common issues and the de minimis nature of any

individualized issues, I conclude that this case is an

exception to the rule and class certification for both

claims is appropriate. See In re Nassau County Strip

Search Cases, 461 F.3d 219, 230 (2d Cir. 2006).

C. Appointment of Representatives’ Counsel as Class

Counsel

Upon certifying a class, class counsel must also be

appointed. Fed. R. Civ. P. 23(g)(1). In doing so, I

“must consider: (i) the work counsel has done in

identifying or investigating potential claims in the

action; (ii) counsel’s experience in handing class actions, other complex litigation, and the types of

claims asserted in the action; (iii) counsel’s

knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the

class * * * *” Id.

Representatives’ counsel have invested significant

time, energy, and resources into this case. They have

uniquely relevant experience with the client base

and with bringing complex claims against detention

facilities. Many of the attorneys and their staff are

also Spanish speakers, making it easier for them to

communicate with some members of the classes. I

find that Representatives’ counsel are well-suited to

represent the classes and appoint them to do so.

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IV. Conclusion

For the foregoing reasons, I GRANT the Motion for

Class Certification Under Rule 23(b)(3) and Appointment of Class Counsel Under Rule 23(g) (ECF

No. 49). The classes as proposed in the Motion are

certified for Representatives’ TVPA and unjust enrichment claims. Alejandro Menocal, Marcos Brambila, Grisel Xahuentitla, Hugo Hernandez, Lourdes

Argueta, Jesus Gaytan, Olga Alexaklina, Dagoberto

Vizguerra, and Demetrio Valerga are named as representatives of the classes. Attorneys Brandt Milstein, Andrew Turner, Andrew Free, Alexander Hood,

David Seligman, Andrew Schmidt, and Hans Meyer

are appointed as counsel for the classes. To proceed

with this case, the parties shall file a revised Proposed Stipulated Scheduling and Discovery Order by

March 27, 2017.

DATED this 27th day of February, 2017.

__s/ John L. Kane __________

JOHN L. KANE

SENIOR U.S. DISTRICT JUDGE

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APPENDIX D

FILED

United States Court of Appeal

Tenth Circuit

April 11, 2017

Elisabeth A. Shumaker

Clerk of the Court

UNITED STATES COURT OF APPEAL

FOR THE TENTH CIRCUIT

THE GEO GROUP, INC.,

Petitioner,

v.

ALEJANDRO MENOCAL,

MARCOS BRAMBILA, GRISEL

XAHUENTITLA, HUGO HERNANDEZ, LOURDES ARGUETA, JESUS GAYTAN, OLGA ALEXAKLINA, DAGOBERTO VIZGUERRA, and DEMETRIO VALGERA, on their own

behalf and on behalf of all others

similarly situated,

Respondents.

No. 17-701

(D.C. No. 1:14CV-02887-JLK)

(D. Colo.)

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________________________________________________

ORDER

________________________________________________

Before TYMKOVICH, Chief Judge, HARTZ and

MATHESON, Circuit Judges.

This matter is before the court on the GEO Group’s

Petition for Permission to Appeal Class Certification.

See Fed. R. App. P. 5(a); Fed. R. Civ. P. 23(f). We also

have a response from the plaintiffs/respondents. In

addition, on March 30, 2017, the petitioner filed an

unopposed motion for leave to file a reply in support

of the petition. As a preliminary matter, we grant the

motion to file the reply, and direct the clerk to file

the reply attached to the motion.

Upon consideration of the Petition, the response,

the reply, and the materials on file, we note both the

complexity and difficulty of the issues presented, and

we grant the Petition. Within 14 days of the date of

this order, the petitioner shall pay the $505 filing

and docketing fees to the Clerk of the District Court

for the District of Colorado. See Fed. R. App. P.

5(d)(1)(A). The date of this order shall serve as the

date of the notice of appeal in the new matter. Id. at

5(d)(2).

The clerk of this court is directed to open the new

appeal once the clerk of the district court notifies this

court that the filing fee has been paid. Id. at 5(d)(3).

Entered for the Court

s/ Elisabeth A. Shumaker

ELISABETH A. SHUMAKER, Clerk

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APPENDIX E

Excerpts from the Trafficking Victims

Protection Act, as codified

18 U.S.C. § 1589

Forced labor

(a) Whoever knowingly provides or obtains the labor

or services of a person by any one of, or by any combination of, the following means—

(1) by means of force, threats of force, physical restraint, or threats of physical restraint to that

person or another person;

(2) by means of serious harm or threats of serious

harm to that person or another person;

(3) by means of the abuse or threatened abuse of

law or legal process; or

(4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that

person did not perform such labor or services,

that person or another person would suffer serious harm or physical restraint,

shall be punished as provided under subsection (d).

(b) Whoever knowingly benefits, financially or by receiving anything of value, from participation in a

venture which has engaged in the providing or obtaining of labor or services by any of the means described in subsection (a), knowing or in reckless disregard of the fact that the venture has engaged in

73a

the providing or obtaining of labor or services by any

of such means, shall be punished as provided in subsection (d).

(c) In this section:

(1) The term “abuse or threatened abuse of law or

legal process” means the use or threatened use of

a law or legal process, whether administrative,

civil, or criminal, in any manner or for any purpose for which the law was not designed, in order

to exert pressure on another person to cause that

person to take some action or refrain from taking

some action.

(2) The term “serious harm” means any harm,

whether physical or nonphysical, including psychological, financial, or reputational harm, that is

sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the

same background and in the same circumstances

to perform or to continue performing labor or services in order to avoid incurring that harm.

(d) Whoever violates this section shall be fined under

this title, imprisoned not more than 20 years, or both.

If death results from a violation of this section, or if

the violation includes kidnaping, an attempt to kidnap, aggravated sexual abuse, or an attempt to kill,

the defendant shall be fined under this title, imprisoned for any term of years or life, or both.

74a

18 U.S.C. § 1593

Mandatory restitution

(a) Notwithstanding section 3663 or 3663A, and in

addition to any other civil or criminal penalties authorized by law, the court shall order restitution for

any offense under this chapter.

(b) (1) The order of restitution under this section

shall direct the defendant to pay the victim

(through the appropriate court mechanism) the

full amount of the victim's losses, as determined

by the court under paragraph (3) of this subsection.

(2) An order of restitution under this section shall

be issued and enforced in accordance with section

3664 in the same manner as an order under section 3663A.

(3) As used in this subsection, the term “full

amount of the victim's losses” has the same meaning as provided in section 2259(b)(3) and shall in

addition include the greater of the gross income

or value to the defendant of the victim's services

or labor or the value of the victim's labor as guaranteed under the minimum wage and overtime

guarantees of the Fair Labor Standards Act (29

U.S.C. 201 et seq.).

(4) The forfeiture of property under this subsection shall be governed by the provisions of section

413 (other than subsection (d) of such section) of

the Controlled Substances Act (21 U.S.C. 853).

75a

(c) As used in this section, the term “victim” means

the individual harmed as a result of a crime under

this chapter, including, in the case of a victim who is

under 18 years of age, incompetent, incapacitated, or

deceased, the legal guardian of the victim or a representative of the victim's estate, or another family

member, or any other person appointed as suitable

by the court, but in no event shall the defendant be

named such representative or guardian.

18 U.S.C. § 1595

Civil remedy

(a) An individual who is a victim of a violation of this

chapter may bring a civil action against the perpetrator (or whoever knowingly benefits, financially or

by receiving anything of value from participation in a

venture which that person knew or should have

known has engaged in an act in violation of this

chapter) in an appropriate district court of the United States and may recover damages and reasonable

attorneys fees.

(b) (1) Any civil action filed under subsection (a) shall

be stayed during the pendency of any criminal action arising out of the same occurrence in which

the claimant is the victim.

(2) In this subsection, a “criminal action” includes

investigation and prosecution and is pending until final adjudication in the trial court.

(c) No action may be maintained under subsection (a)

unless it is commenced not later than the later of-(1) 10 years after the cause of action arose; or

76a

(2) 10 years after the victim reaches 18 years of

age, if the victim was a minor at the time of the

alleged offense.

(d) In any case in which the attorney general of a

State has reason to believe that an interest of the

residents of that State has been or is threatened or

adversely affected by any person who violates section

1591, the attorney general of the State, as parens patriae, may bring a civil action against such person on

behalf of the residents of the State in an appropriate

district court of the United States to obtain appropriate relief.

22 U.S.C. § 7101

Purposes and findings

(a) Purposes

The purposes of this chapter are to combat trafficking in persons, a contemporary manifestation of

slavery whose victims are predominantly women and

children, to ensure just and effective punishment of

traffickers, and to protect their victims.

(b) Findings

Congress finds that:

(1) As the 21st century begins, the degrading institution of slavery continues throughout the

world. Trafficking in persons is a modern form of

slavery, and it is the largest manifestation of

slavery today. At least 700,000 persons annually,

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primarily women and children, are trafficked

within or across international borders. Approximately 50,000 women and children are trafficked

into the United States each year.

(2) Many of these persons are trafficked into the

international sex trade, often by force, fraud, or

coercion. The sex industry has rapidly expanded

over the past several decades. It involves sexual

exploitation of persons, predominantly women

and girls, involving activities related to prostitution, pornography, sex tourism, and other commercial sexual services. The low status of women

in many parts of the world has contributed to a

burgeoning of the trafficking industry.

(3) Trafficking in persons is not limited to the sex

industry. This growing transnational crime also

includes forced labor and involves significant violations of labor, public health, and human rights

standards worldwide.

(4) Traffickers primarily target women and girls,

who are disproportionately affected by poverty,

the lack of access to education, chronic unemployment, discrimination, and the lack of economic opportunities in countries of origin. Traffickers

lure women and girls into their networks through

false promises of decent working conditions at

relatively good pay as nannies, maids, dancers,

factory workers, restaurant workers, sales clerks,

or models. Traffickers also buy children from poor

families and sell them into prostitution or into

various types of forced or bonded labor.

78a

(5) Traffickers often transport victims from their

home communities to unfamiliar destinations, including foreign countries away from family and

friends, religious institutions, and other sources

of protection and support, leaving the victims defenseless and vulnerable.

(6) Victims are often forced through physical violence to engage in sex acts or perform slavery-like

labor. Such force includes rape and other forms of

sexual abuse, torture, starvation, imprisonment,

threats, psychological abuse, and coercion.

(7) Traffickers often make representations to

their victims that physical harm may occur to

them or others should the victim escape or attempt to escape. Such representations can have

the same coercive effects on victims as direct

threats to inflict such harm.

(8) Trafficking in persons is increasingly perpetrated by organized, sophisticated criminal enterprises. Such trafficking is the fastest growing

source of profits for organized criminal enterprises worldwide. Profits from the trafficking industry contribute to the expansion of organized crime

in the United States and worldwide. Trafficking

in persons is often aided by official corruption in

countries of origin, transit, and destination,

thereby threatening the rule of law.

(9) Trafficking includes all the elements of the

crime of forcible rape when it involves the involuntary participation of another person in sex acts

by means of fraud, force, or coercion.

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(10) Trafficking also involves violations of other

laws, including labor and immigration codes and

laws against kidnapping, slavery, false imprisonment, assault, battery, pandering, fraud, and

extortion.

(11) Trafficking exposes victims to serious health

risks. Women and children trafficked in the sex

industry are exposed to deadly diseases, including

HIV and AIDS. Trafficking victims are sometimes

worked or physically brutalized to death.

(12) Trafficking in persons substantially affects

interstate and foreign commerce. Trafficking for

such purposes as involuntary servitude, peonage,

and other forms of forced labor has an impact on

the nationwide employment network and labor

market. Within the context of slavery, servitude,

and labor or services which are obtained or maintained through coercive conduct that amounts to

a condition of servitude, victims are subjected to a

range of violations.

(13) Involuntary servitude statutes are intended

to reach cases in which persons are held in a condition of servitude through nonviolent coercion. In

United States v. Kozminski, 487 U.S. 931 (1988),

the Supreme Court found that section 1584 of Title 18, should be narrowly interpreted, absent a

definition of involuntary servitude by Congress.

As a result, that section was interpreted to criminalize only servitude that is brought about

through use or threatened use of physical or legal

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coercion, and to exclude other conduct that can

have the same purpose and effect.

(14) Existing legislation and law enforcement in

the United States and other countries are inadequate to deter trafficking and bring traffickers to

justice, failing to reflect the gravity of the offenses

involved. No comprehensive law exists in the

United States that penalizes the range of offenses

involved in the trafficking scheme. Instead, even

the most brutal instances of trafficking in the sex

industry are often punished under laws that also

apply to lesser offenses, so that traffickers typically escape deserved punishment.

(15) In the United States, the seriousness of this

crime and its components is not reflected in current sentencing guidelines, resulting in weak

penalties for convicted traffickers.

(16) In some countries, enforcement against traffickers is also hindered by official indifference, by

corruption, and sometimes even by official participation in trafficking.

(17) Existing laws often fail to protect victims of

trafficking, and because victims are often illegal

immigrants in the destination country, they are

repeatedly punished more harshly than the traffickers themselves.

(18) Additionally, adequate services and facilities

do not exist to meet victims' needs regarding

health care, housing, education, and legal assis-

81a

tance, which safely reintegrate trafficking victims

into their home countries.

(19) Victims of severe forms of trafficking should

not be inappropriately incarcerated, fined, or otherwise penalized solely for unlawful acts committed as a direct result of being trafficked, such as

using false documents, entering the country without documentation, or working without documentation.

(20) Because victims of trafficking are frequently

unfamiliar with the laws, cultures, and languages

of the countries into which they have been trafficked, because they are often subjected to coercion and intimidation including physical detention and debt bondage, and because they often

fear retribution and forcible removal to countries

in which they will face retribution or other hardship, these victims often find it difficult or impossible to report the crimes committed against them

or to assist in the investigation and prosecution of

such crimes.

(21) Trafficking of persons is an evil requiring

concerted and vigorous action by countries of

origin, transit or destination, and by international organizations.

(22) One of the founding documents of the United

States, the Declaration of Independence, recognizes the inherent dignity and worth of all people.

It states that all men are created equal and that

they are endowed by their Creator with certain

unalienable rights. The right to be free from slav-

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ery and involuntary servitude is among those unalienable rights. Acknowledging this fact, the

United States outlawed slavery and involuntary

servitude in 1865, recognizing them as evil institutions that must be abolished. Current practices

of sexual slavery and trafficking of women and

children are similarly abhorrent to the principles

upon which the United States was founded.

(23) The United States and the international

community agree that trafficking in persons involves grave violations of human rights and is a

matter of pressing international concern. The international community has repeatedly condemned

slavery and involuntary servitude, violence

against women, and other elements of trafficking,

through declarations, treaties, and United Nations resolutions and reports, including the Universal Declaration of Human Rights; the 1956

Supplementary Convention on the Abolition of

Slavery, the Slave Trade, and Institutions and

Practices Similar to Slavery; the 1948 American

Declaration on the Rights and Duties of Man; the

1957 Abolition of Forced Labor Convention; the

International Covenant on Civil and Political

Rights; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment; United Nations General Assembly

Resolutions 50/167, 51/66, and 52/98; the Final

Report of the World Congress against Sexual Exploitation of Children (Stockholm, 1996); the

Fourth World Conference on Women (Beijing,

1995); and the 1991 Moscow Document of the Organization for Security and Cooperation in Europe.

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(24) Trafficking in persons is a transnational

crime with national implications. To deter international trafficking and bring its perpetrators to

justice, nations including the United States must

recognize that trafficking is a serious offense.

This is done by prescribing appropriate punishment, giving priority to the prosecution of trafficking offenses, and protecting rather than punishing the victims of such offenses. The United

States must work bilaterally and multilaterally to

abolish the trafficking industry by taking steps to

promote cooperation among countries linked together by international trafficking routes. The

United States must also urge the international

community to take strong action in multilateral

for a to engage recalcitrant countries in serious

and sustained efforts to eliminate trafficking and

protect trafficking victims.

22 U.S.C. § 7102

Definitions

In this chapter:

(1) Abuse or threatened abuse of law or legal process

The term “abuse or threatened abuse of the legal

process” means the use or threatened use of a law or

legal process, whether administrative, civil, or criminal, in any manner or for any purpose for which the

law was not designed, in order to exert pressure on

another person to cause that person to take some action or refrain from taking some action.

***

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(3) Coercion

The term “coercion” means—

(A) threats of serious harm to or physical restraint against any person;

(B) any scheme, plan, or pattern intended to

cause a person to believe that failure to perform

an act would result in serious harm to or physical

restraint against any person; or

(C) the abuse or threatened abuse of the legal

process.

***

(9) Severe forms of trafficking in persons

The term “severe forms of trafficking in persons”

means—

(A) sex trafficking in which a commercial sex act

is induced by force, fraud, or coercion, or in which

the person induced to perform such act has not

attained 18 years of age; or

(B) the recruitment, harboring, transportation,

provision, or obtaining of a person for labor or

services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary

servitude, peonage, debt bondage, or slavery.

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(10) Sex trafficking

The term “sex trafficking” means the recruitment,

harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a

commercial sex act.

***

(12) Task Force

The term “Task Force” means the Interagency Task

Force to Monitor and Combat Trafficking established

under section 7103 of this title.

***

(14) Victim of a severe form of trafficking

The term “victim of a severe form of trafficking”

means a person subject to an act or practice described in paragraph (9).

(15) Victim of trafficking

The term “victim of trafficking” means a person subjected to an act or practice described in paragraph (9)

or (10).

22 U.S.C. § 7103

Interagency Task Force to Monitor

and Combat Trafficking

(a) Establishment

The President shall establish an Interagency Task

Force to Monitor and Combat Trafficking.

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(b) Appointment

The President shall appoint the members of the Task

Force, which shall include the Secretary of State, the

Administrator of the United States Agency for International Development, the Attorney General, the

Secretary of Labor, the Secretary of Health and Human Services, the Director of National Intelligence,

the Secretary of Defense, the Secretary of Homeland

Security, the Secretary of Education, and such other

officials as may be designated by the President.

(c) Chairman

The Task Force shall be chaired by the Secretary of

State.

(d) Activities of the Task Force

The Task Force shall carry out the following activities:

***

(7) Not later than May 1, 2004, and annually

thereafter, the Attorney General shall submit to

the Committee on Ways and Means, the Committee on Foreign Affairs, and the Committee on the

Judiciary of the House of Representatives and the

Committee on Finance, the Committee on Foreign

Relations, and the Committee on the Judiciary of

the Senate, a report on Federal agencies that are

implementing any provision of this chapter, or

any amendment made by this chapter, which

shall include, at a minimum, information on—

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***

(N) activities or actions by Federal departments and agencies to enforce-(i) section 7104(g) of this title and any similar

law, regulation, or policy relating to United

States Government contractors and their employees or United States Government subcontractors and their employees that engage in

severe forms of trafficking in persons, the procurement of commercial sex acts, or the use of

forced labor, including debt bondage;

(ii) section 1307 of Title 19; relating to prohibition on importation of convict-made goods), including any determinations by the Secretary of

Homeland Security to waive the restrictions of

such section; and

(iii) prohibitions on the procurement by the

United States Government of items or services

produced by slave labor, consistent with Executive Order 13107 (December 10, 1998);

***

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22 U.S.C. § 7104

Prevention of trafficking

***

(g) Termination of certain grants, contracts and cooperative agreements

The President shall ensure that any grant, contract,

or cooperative agreement provided or entered into by

a Federal department or agency under which funds

are to be provided to a private entity, in whole or in

part, shall include a con dition that authorizes the

department or agency to terminate the grant, contract, or cooperative agreement, or take any of the

other remedial actions authorized under section

7104b(c) of this title, without penalty, if the grantee

or any subgrantee, or the contractor or any subcontractor, engages in, or uses labor recruiters, brokers,

or other agents who engage in-(i) severe forms of trafficking in persons;

(ii) the procurement of a commercial sex act during the period of time that the grant, contract, or

cooperative agreement is in effect;

(iii) the use of forced labor in the performance of

the grant, contract, or cooperative agreement; or

(iv) acts that directly support or advance trafficking in persons, including the following acts:

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(I) Destroying, concealing, removing, confiscating, or otherwise denying an employee access

to that employee's identity or immigration

documents.

(II) Failing to provide return transportation or

pay for return transportation costs to an employee from a country outside the United

States to the country from which the employee

was recruited upon the end of employment if

requested by the employee, unless-(aa) exempted from the requirement to provide

or pay for such return transportation by the

Federal department or agency providing or entering into the grant, contract, or cooperative

agreement; or

(bb) the employee is a victim of human trafficking seeking victim services or legal redress

in the country of employment or a witness in a

human trafficking enforcement action.

(III) Soliciting a person for the purpose of employment, or offering employment, by means of

materially false or fraudulent pretenses, representations, or promises regarding that employment.

(IV) Charging recruited employees unreasonable placement or recruitment fees, such as fees

equal to or greater than the employee's monthly salary, or recruitment fees that violate the

laws of the country from which an employee is

recruited.

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(V) Providing or arranging housing that fails

to meet the host country housing and safety

standards.

***