Jerusalem F. Beligan

The odds looked bad for Beligan as he argued on appeal the denial of class certification in a case over nurses' pay.

In the trial court, U.S. District Judge Philip S. Gutierrez of Los Angeles had rejected certification. Not only had Beligan failed to submit admissible evidence of the nurses' injuries, Gutierrez held, but Beligan and his firm had not shown they could adequately represent the proposed class.

But in a turnaround, a unanimous 9th U.S. Circuit Court of Appeals panel reversed Gutierrez, praised Beligan by name, and--in a major win for the plaintiffs' bar--ruled that at the certification stage evidence need not be admissible at any subsequent trial because a certification order is "tentative," "preliminary" and "limited." Sali v. Corona Regional Medical Center, 889 F.3d 623 (9th Cir., op. filed May 3, 2018).

"It was the roller coaster ride of my professional career," said Beligan, who has been with the case since he filed it in 2014.

The circuit's opinion faulted Gutierrez for mentioning only "apparent errors" by class counsel without noting "class counsel's substantial and competent work on this case." The opinion detailed the extent of the work in a long paragraph and concluded with a shout-out: "Additionally, attorney Jerusalem Beligan has extensive experience litigating class-action cases in state and federal court."

The defense didn't go quietly. It sought but failed to get en banc review and certiorari at the U.S. Supreme Court. "Is this ever going to end," Beligan said he wondered. When the case returned to the trial court it settled in August 2019 for an undisclosed sum. Beligan obtained more than $300,000 in fees and costs.

When the 9th Circuit's published opinion posted, Beligan said joy was tempered with caution. "Even though we won, we had to bite our tongues. We didn't want to fan the flames. The defense bar hated the opinion because it changed the rules." In fact, it created a split with the 3rd, 5th and 7th circuits on the evidence admissibility issue; the 8th Circuit has lined up with the 9th Circuit on the question.

Since then, Beligan has written a post-Sali practice guide for the California Employment Lawyers Association that quotes from the opinion and cites significant subsequent cases that have used the new development. "Limiting class-action evidence to only admissible evidence risks terminating actions before crucial evidence can be gathered," he wrote. "The Ninth Circuit's ruling makes common sense."

And the panel's endorsement of Beligan is useful. "It's given me an opportunity to cite it as evidence of adequacy when I draft motions to be class representative in my cases since," he said. "I lead off with that quote."

-- John Roemer