Abelardo Saucedo v. John Hancock Life & Health Insurance, C O.; Texas Municipal Plans Consortium, LLC

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABELARDO S AUCEDO ; FELIPE
ACEVEDO M ENDOZA ; J OSE V ILLA
M ENDOZA ; J AVIER S AUCEDO ;
S ANDRA S AUCEDO , Individually, and
on behalf of all other similarly
situated persons,
Plaintiffs-Appellees,
v.
J OHN HANCOCK LIFE & HEALTH
INSURANCE, C O.; TEXAS M UNICIPAL
P LANS C ONSORTIUM, LLC,
Defendants,
NW M ANAGEMENT AND R EALTY
S ERVICES , INC .; J OHN HANCOCK LIFE
INSURANCE C OMPANY ,
Defendants,
and
FARMLAND M ANAGEMENT S ERVICES ,
Defendant-Appellant.
No. 13-35955
D.C. No.
2:12-cv-00478-
TOR

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2 S AUCEDO V . FARMLAND M ANAGEMENT
ABELARDO S AUCEDO ; FELIPE
ACEVEDO M ENDOZA ; J OSE V ILLA
M ENDOZA ; J AVIER S AUCEDO ;
S ANDRA S AUCEDO , Individually, and
on behalf of all other similarly
situated persons,
Plaintiffs-Appellees,
v.
J OHN HANCOCK LIFE INSURANCE
C OMPANY ; J OHN HANCOCK LIFE &
HEALTH INSURANCE, C O.; TEXAS
M UNICIPAL P LANS C ONSORTIUM,
LLC,
Defendants-Appellants,
and
FARMLAND M ANAGEMENT S ERVICES ;
NW M ANAGEMENT AND R EALTY
S ERVICES , INC .,
Defendants.
No. 13-35996
D.C. No.
2:12-cv-00478-
TOR

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S AUCEDO V . FARMLAND M ANAGEMENT 3
ABELARDO S AUCEDO ; FELIPE
ACEVEDO M ENDOZA ; J OSE V ILLA
M ENDOZA ; J AVIER S AUCEDO ;
S ANDRA S AUCEDO , Individually, and
on behalf of all other similarly
situated persons,
Plaintiffs-Appellees,
v.
J OHN HANCOCK LIFE INSURANCE
C OMPANY ; J OHN HANCOCK LIFE &
HEALTH INSURANCE, C O.; TEXAS
M UNICIPAL P LANS C ONSORTIUM,
LLC; FARMLAND M ANAGEMENT
S ERVICES ,
Defendants,
and
NW M ANAGEMENT AND R EALTY
S ERVICES , INC .,
Defendant-Appellant.
No. 13-36022
D.C. No.
2:12-cv-00478-
TOR
ORDER
Filed August 5, 2015
Before: Andrew J. Kleinfeld, Jacqueline H. Nguyen,
and Michelle T. Friedland, Circuit Judges.

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4 S AUCEDO V . FARMLAND M ANAGEMENT
SUMMARY*
Certification of Questions to State Supreme Court
The panel certified to the Washington Supreme Court the
following questions:
(1) Does the Washington Farm Labor Contractor Act, in
particular Washington Revised Code § 19.30.010(2), include
in the definition of a “farm labor contractor” an entity who
is paid a per-acre fee to manage all aspects of farming—
including hiring and employing agricultural workers as well
as making all planting and harvesting decisions, subject to
approval—for a particular plot of land owned by a third
party?
(2) Does the FLCA, in particular Washington Revised
Code § 19.30.200, make jointly and severally liable any
person who uses the services of an unlicensed farm labor
contractor without either inspecting the license issued by the
director of the Department of Labor & Industries to the farm
labor contractor or obtaining a representation from the
director of the Department of Labor & Industries that the
contractor is properly licensed, even if that person lacked
knowledge that the farm labor contractor was unlicensed?
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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S AUCEDO V . FARMLAND M ANAGEMENT 5
ORDER
We certify to the Washington Supreme Court the
questions set forth in Part III of this order.
Further proceedings in this court are stayed pending
receipt of the answers to the certified questions. These cases,
which were consolidated on appeal, are withdrawn from
submission until further order of this court or an order
declining to accept the certified questions. If the
Washington Supreme Court accepts the certified questions,
the parties will file a joint report six months after the date of
acceptance, and every six months thereafter, advising us of
the status of the proceeding.
I.
Pursuant to Washington Revised Code § 2.60.020, a
panel of the United States Court of Appeals for the Ninth
Circuit (before which this appeal is pending) certifies to the
Washington Supreme Court questions of law regarding the
proper interpretation of the Washington Farm Labor
Contractor Act (“FLCA”), in particular Washington Revised
Code § 19.30.010 and § 19.30.200. No published decision
of either the Washington Supreme Court or the Washington
appellate courts has interpreted the relevant provisions of
this statute to date, and the answers to the certified questions
are “necessary . . . to dispose of” this appeal. Wash. Rev.
Code § 2.60.020. We respectfully request that the
Washington Supreme Court answer the certified questions
presented below. Our phrasing of the issues is not meant to
restrict the court’s consideration of the case, and “we
acknowledge that the Washington Supreme Court may, in its
discretion, reformulate the questions.” Perez-Farias v.
Glob. Horizons, Inc., 668 F.3d 588, 589 (9th Cir. 2011)
(alterations omitted). Should the Washington Supreme
Court decline certification, “we will resolve the issues

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6 S AUCEDO V . FARMLAND M ANAGEMENT
according to our perception of Washington law.” Id.
(alteration omitted).
II.
John Hancock Life & Health Insurance Co.; John
Hancock Life Insurance Company; Texas Municipal Plans
Consortium, LLC; Farmland Management Services; and
NW Management and Realty Services (Defendants) are
deemed the petitioners in this request because Defendants
appeal the district court’s conclusions on these issues. We
designate Defendants to file the first brief, pursuant to
Washington Rule of Appellate Procedure 16.16(e)(1). The
captions of the consolidated cases are:
ABELARDO S AUCEDO ; FELIPE ACEVEDO
M ENDOZA ; J OSE V ILLA M ENDOZA ; J AVIER
S AUCEDO ; S ANDRA S AUCEDO , Individually,
and on behalf of all other similarly situated
persons, Plaintiffs-Appellees,
v.
J OHN HANCOCK LIFE & HEALTH INSURANCE,
C O.; TEXAS M UNICIPAL P LANS
C ONSORTIUM, LLC, Defendants,
NW M ANAGEMENT AND R EALTY S ERVICES ,
INC .; J OHN HANCOCK LIFE INSURANCE
C OMPANY , Defendants,
and
FARMLAND M ANAGEMENT S ERVICES ,
Defendant-Appellant;
ABELARDO S AUCEDO ; FELIPE ACEVEDO
M ENDOZA ; J OSE V ILLA M ENDOZA ; J AVIER
S AUCEDO ; S ANDRA S AUCEDO , Individually,

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S AUCEDO V . FARMLAND M ANAGEMENT 7
and on behalf of all other similarly situated
persons, Plaintiffs-Appellees,
v.
J OHN HANCOCK LIFE INSURANCE C OMPANY ;
J OHN HANCOCK LIFE & HEALTH INSURANCE,
C O.; TEXAS M UNICIPAL P LANS
C ONSORTIUM, LLC, Defendants-Appellants,
and
FARMLAND M ANAGEMENT S ERVICES ; NW
M ANAGEMENT AND R EALTY S ERVICES , INC .,
DEFENDANTS ; and
ABELARDO S AUCEDO ; FELIPE ACEVEDO
M ENDOZA ; J OSE V ILLA M ENDOZA ; J AVIER
S AUCEDO ; S ANDRA S AUCEDO , Individually,
and on behalf of all other similarly situated
persons, Plaintiffs-Appellees,
v.
J OHN HANCOCK LIFE INSURANCE C OMPANY ;
J OHN HANCOCK LIFE & HEALTH INSURANCE,
C O.; TEXAS M UNICIPAL P LANS
C ONSORTIUM, LLC; FARMLAND
M ANAGEMENT S ERVICES , Defendants,
and
NW M ANAGEMENT AND R EALTY S ERVICES ,
INC ., Defendant-Appellant.
The names and addresses of counsel for the parties are as
follows:
Lori Jordan Isley, Joachim Morrison, and Andrea L.
Schmitt, Columbia Legal Services, Yakima, WA, for
Plaintiffs-Appellees.

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8 S AUCEDO V . FARMLAND M ANAGEMENT
Christopher Glenn Emch and John Ray Nelson, Foster
Pepper PLLC, Spokane, WA; Susan Felice DiCicco Ari M.
Selman, and David B. Salmons, Morgan, Lewis & Bockius
LLP, New York, NY, and Washington, D.C., for
Defendants-Appellants John Hancock Life Insurance
Company, John Hancock Life & Health Insurance Co., and
the Texas Municipal Plans Consortium, LLC.
Leslie R. Weatherhead and Geana Van Dessel, Lee &
Hayes, PLLC, Spokane, WA, for Defendant-Appellant
Farmland Management Services.
Brendan V. Monahan and Sarah Lynn Wixson, Stokes
Lawrence Velikanje Moore & Shore, Yakima, WA, for
Defendant-Appellant NW Management and Realty Services,
Inc.
III.
The questions of law to be answered are as follows. The
second question is necessary to resolve this case only if the
first question is answered in the affirmative.
(1) Does the FLCA, in particular Washington Revised
Code § 19.30.010(2), include in the definition of a “farm
labor contractor” an entity who is paid a per-acre fee to
manage all aspects of farming—including hiring and
employing agricultural workers as well as making all
planting and harvesting decisions, subject to approval—for
a particular plot of land owned by a third party?
(2) Does the FLCA, in particular Washington Revised
Code § 19.30.200, make jointly and severally liable any
person who uses the services of an unlicensed farm labor
contractor without either inspecting the license issued by the
director of the Department of Labor & Industries to the farm
labor contractor or obtaining a representation from the
director of the Department of Labor & Industries that the

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S AUCEDO V . FARMLAND M ANAGEMENT 9
contractor is properly licensed, even if that person lacked
knowledge that the farm labor contractor was unlicensed?
IV.
The statement of facts is as follows:
John Hancock Life & Health Insurance Co. is owned by
John Hancock Life Insurance Company. At all times
relevant to this case, the John Hancock insurance companies
and Texas Municipal Plans Consortium, LLC (together
referred to as “Hancock”) owned the apple orchards known
as Alexander I, Alexander II, and Independence in Yakima
County, Washington.
Hancock leased all three orchards to Farmland
Management Services (“Farmland”) under two Master
Lease and Management Agreements, which were identical
in all material respects. Under the Master Leases, Farmland
received a “management fee” in exchange for either
operating and managing the orchards for Hancock or
subleasing the orchards to a third-party company for
operation and management. Hancock reimbursed all costs
incurred by Farmland to operate the orchards and collected
all profits from the farming operation. Farmland elected to
sublease the orchards to NW Management and Realty
Services (“NWM”) under an Orchard Management
Agreement.1 NWM received a per-acre fee from Farmland.
Farmland reimbursed NWM for all operating costs and
collected all profits. These costs and profits were then
passed along to Hancock under the Master Leases, so
ultimately Hancock paid for all of NWM’s costs and
1 As of July 2013, NWM was no longer in operation.

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10 S AUCEDO V . FARMLAND M ANAGEMENT
collected all of the orchards’ profits (minus Farmland’s
management fee).
The Orchard Management Agreement between
Farmland and NWM required that NWM “operate and use
the orchard Properties for the sole purpose of conducting a
first-class agricultural operation.” The Agreement further
stated that NWM “will hire, employ, discharge and supervise
the work of all employees and independent contractors
performing labor and/or services on the Properties. [NWM]
shall be the employer of record of all persons employed to
perform work on the ‘Properties.’” The Agreement left the
details of managing the orchards substantially to NWM’s
discretion, including how to best “perform and supervise all
customary and necessary farming operations including but
not limited to planting, training, irrigating, weed control,
thinning, cultivating, fertilizing, pruning, mowing,
controlling insect and disease, harvesting and other
necessary and proper procedures.” NWM was required to
submit to Farmland a yearly Farm Operating Plan, which
would include NWM’s anticipated budget for the coming
year. Farmland would send this budget to Hancock for
approval, and Hancock routinely approved it. Neither
Farmland nor Hancock exerted any control over NWM’s
employment decisions, leaving NWM to decide unilaterally
how many people to hire, whom to hire, and when or
whether to terminate employment. Nor would NWM’s fee
be affected by these employment decisions, such as how
many people it hired.
Hancock and Farmland’s Master Leases required
Farmland to obtain any necessary licenses, or require any
third party hired to do so. Farmland represented to
Hancock’s representative Oliver Williams that it had done
so. At no point did NWM obtain a farm labor contractor

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S AUCEDO V . FARMLAND M ANAGEMENT 11
license from the Washington Department of Labor &
Industries.
Plaintiffs, a class of 722 former NWM employees who
worked for NWM in 2009, 2010, or 2011, sued Defendants
in 2012 in the Eastern District of Washington for violations
of the federal Migrant and Seasonal Agricultural Worker
Protection Act, 29 U.S.C. § 1801, et seq., and the FLCA,
Wash. Rev. Code § 19.30.010, et seq. The district court
certified the Plaintiffs’ class as to the FLCA claims, and all
other claims were settled and dismissed. The FLCA claims
allege that NWM violated the FLCA by failing to maintain
a farm labor contractor’s license and failing to make certain
disclosures to Plaintiffs that farm labor contractors are
required make. Plaintiffs allege that Farmland and Hancock
are jointly and severally liable with NWM for the FLCA
violations under Washington Revised Code § 19.30.200
because they used the services of an unlicensed farm labor
contractor without either inspecting NWM’s license or
asking the director of the Department of Labor & Industries
whether NWM was licensed.
Hancock and Farmland separately moved to dismiss the
FLCA claims against them, arguing that Washington
Revised Code § 19.30.200 applies only to those who
“knowingly” use the services of an unlicensed farm labor
contractor and that they did not know that NWM was
unlicensed. The district court denied both motions, holding
that the FLCA imposed an affirmative duty on Hancock and
Farmland to verify that NWM was properly licensed by
either inspecting NWM’s license or making an inquiry with
the director of the Department of Labor & Industries.
All Defendants then moved for summary judgment on
the ground that NWM was not a “farm labor contractor” as
defined in Washington Revised Code § 19.30.010(2)
because it was an “agricultural employer” that employed

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12 S AUCEDO V . FARMLAND M ANAGEMENT
agricultural workers only to work NWM’s farms. The
district court denied the motion, holding that although NWM
was an “agricultural employer,” “agricultural employers”
and “farm labor contractors” are not mutually exclusive, and
that agricultural employers “who are paid to farm another’s
land”—such as NWM—are required to obtain licenses under
the FLCA.
Plaintiffs then moved for summary judgment, asking the
court to hold as a matter of law that NWM was a farm labor
contractor under the FLCA, that NWM violated the FLCA
by failing to obtain a farm labor contractor’s license and by
failing to provide Plaintiffs with required disclosures, and
that Hancock and Farmland are jointly and severally liable
for NWM’s FLCA violations. The district court granted
Plaintiff’s motion for summary judgment, finding that
NWM was a farm labor contractor because it engaged in
employing agricultural workers “for a fee,” that NWM
therefore was required to comply with the FLCA but did not,
and that Hancock and Farmland were jointly and severally
liable for NWM’s violations because they did not take the
affirmative steps listed in Washington Revised Code
§ 19.30.200 to determine whether NWM was licensed. The
district court awarded Plaintiffs damages of $500 per class
member per violation per year worked, regardless of the
class member’s immigration status, for a total of $1,004,000.
The district court further held that Plaintiffs were entitled to
attorney fees under the FLCA, which permits a court to
“award to the prevailing party, in addition to costs and
disbursements, reasonable attorney fees at trial and appeal.”
Wash. Rev. Code § 19.30.170(1). Defendants timely
appealed the district court’s entry of judgment and damage
award.

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S AUCEDO V . FARMLAND M ANAGEMENT 13
V.
Because of the complexity of these state law issues and
because of their significant policy implications, we believe
that the Washington Supreme Court, which has not yet
interpreted the relevant provisions of the FLCA, “is better
qualified to answer the certified questions in the first
instance.” See Perez-Farias, 668 F.3d at 593 (alteration
omitted). Additionally, the Washington Supreme Court’s
authoritative answers are “necessary . . . in order to dispose
of [this] proceeding.” Wash. Rev. Code § 2.60.020.
VI.
The Clerk of the Court is hereby directed to immediately
transmit to the Washington Supreme Court, under official
seal of the Ninth Circuit, a copy of this order and request for
certification and all relevant briefs and excerpts of record
pursuant to Washington Revised Code § 2.60.010 and
§ 2.60.030.
IT IS SO ORDERED.
___________________________________
Chief Judge Sidney R. Thomas
U.S. Court of Appeals for the Ninth Circuit

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