Misle v. Schnitzer Steel Industries, Inc. et al

REPLY

N.D. Cal.November 20, 2017

STOEL RIVES LLP ATTO RN EY S AT LA W SA CRA M E NT O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY IN SUPPORT OF CROSS-MOTION FOR SUMMARY ADJUDICATION CASE NO. 4:15-CV-06031-JSW 94721535.3 0068163-00128 THOMAS A. WOODS (SB #210050) thomas.woods@stoel.com STOEL RIVES LLP 500 Capitol Mall, Suite 1600 Sacramento, CA 95814 Telephone: 916.447.0700 Facsimile: 916.447.4781 BAO M. VU (SB #277970) bao.vu@stoel.com STOEL RIVES LLP Three Embarcadero Center, Suite 1120 San Francisco, CA 94111 Telephone: 415.617.8900 Facsimile: 415.617.8907 Attorneys for Defendant Schnitzer Steel Industries, Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION HOWARD MISLE, Plaintiff, v. SCHNITZER STEEL INDUSTRIES, INC., an Oregon Corporation, and DOES 1 through 25, inclusive, Defendants. ______________________________________ SCHNITZER STEEL INDUSTRIES, INC., an Oregon Corporation, Counterclaimant, v. HOWARD MISLE, Counterdefendant. Case No. 4:15-cv-06031-JSW DEFENDANT SCHNITZER STEEL INDUSTRIES, INC.’S REPLY IN SUPPORT OF CROSS-MOTION FOR SUMMARY ADJUDICATION Trial: Date: December 15, 2017 Time: 9:00 a.m. Dept: Courtroom 5, 2nd Floor Judge: Jeffrey S. White Case 4:15-cv-06031-JSW Document 153 Filed 11/20/17 Page 1 of 10 STOEL RIVES LLP ATTO RN EY S AT LA W SA CRA M E NT O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY IN SUPPORT OF CROSS-MOTION FOR SUMMARY ADJUDICATION -1- CASE NO. 4:15-CV-06031-JSW 94721535.3 0068163-00128 REPLY IN SUPPORT OF CROSS-MOTION FOR SUMMARY ADJUDICATION I. INTRODUCTION Similar to many of the arguments in Plaintiff’s moving papers, the arguments in his Reply and Opposition are circular and confusing. For example, Plaintiff claims Defendant is improperly “mov[ing] for summary adjudication as if this motion practice were intended to produce advisory opinions about the proper interpretation of provisions of the APA.” (Opp’n & Reply at 1:2-4.) This is confusing not only because Plaintiff is seeking relief similar to Defendant, but also because the Court expressly limited the instant motions to contract interpretation issues, a fact Plaintiff apparently does not appreciate. To the extent Plaintiff does raise contract intepretation issues in opposing Defendant’s cross-motion, he relies at great length on the purported “intent” of the parties. Plaintiff fails, however, to establish any competent, admissible evidence of intent, just pure unsupported speculation. No evidence of intent can support his proffered interpretations because his interpretations contradict the expressly expansive APA language at issue, which was negotiated at length by sophisticated lawyers on behalf of sophisticated commercial entities. Moreover, with respect to the CUP Claim, Defendant’s evidence establishes unquestionably that the Losses it suffered and sought indemnity for related or arose directly or indirectly from Plaintiff’s noncompliance with the 2000 CUP. Accordingly, the Court should grant judgment in Defendant’s favor. II. ARGUMENT A. DEFENDANT’S PRE-LITIGATION ATTORNEYS’ FEES AND COSTS FALL WITHIN THE DEFINITION OF “LOSSES” AS OPPOSED TO CONSTITUTING WHAT IS COMMONLY REFERRED TO AS “PREVAILING PARTY FEES AND COSTS” UNDER APA § 12.5 Plaintiff’s Reply and Opposition, like his moving papers, wholly ignore the express language of the APA, which includes a broad and expansive definition of recoverable “Losses” under § 11.1. Plaintiff’s Reply and Opposition also ignore the express limitation in APA § 12.5 that limits prevailing party fees and costs to those “incurred in that action or proceeding.” Case 4:15-cv-06031-JSW Document 153 Filed 11/20/17 Page 2 of 10 STOEL RIVES LLP ATTO RN EY S AT LA W SA CRA M E NT O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY IN SUPPORT OF CROSS-MOTION FOR SUMMARY ADJUDICATION -2- CASE NO. 4:15-CV-06031-JSW 94721535.3 0068163-00128 Rather, the Reply and Opposition discuss authority that provides, in the absence of a contract provision to the contrary, that certain pre-litigation fees and costs in certain contractual disputes are recoverable under Cal. Civ. Code § 1717. That provision awards to the prevailing party in certain contractual disputes “reasonable attorney’s fees in addition to other costs.” Cal. Civ. Code § 1717(a). Unlike that provision, however, APA § 12.5 has the further limitation that “the successful or prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding.” (APA1 § 12.5 (emphasis added).) Indeed, Stokus v. Marsh, 217 Cal. App. 3d 647, 655-56 (1990), the principal California authority Plaintiff relies upon, makes clear that the holding was based upon the fact that the only limitation under Cal. Civ. Code § 1717(a) is that the fees and costs be “reasonable” – not “reasonable” and also “incurred in that action and proceeding.”2 (Emphasis added.) Confused, the Reply and Opposition argue that, [h]ypothetically, if a Claim Certificate was served seeking $5,000, $4,000 of which Misle did not dispute but another $1,000 for fees to prepare a Claim Certificate, he could easily choose not to object because it would cost him more than the amount of the entire claim to go through the dispute process. This does not equate to an “agreement” or support a theory that Claim Certificate preparation fees are thus included within the definition of “Losses.” (Opp’n & Reply at 4:12-16.) Plaintiff overlooks the logical flaw in this argument. If he were to agree to $4,000, but object to $1,000 claim certificate preparation fees and costs, Defendant would have no recourse to recoup the $1,000 under Plaintiff’s proffered interpretation. In that scenario, Defendant could never recover that $1,000 attributed to claim certificate preparation because (if the Court were to buy Plaintiff’s argument) there would be no “Losses” to litigate at all, only the $1,000 attributable to claim certificate preparation, but that apparently is only for the prevailing party under APA § 12.5. 1 Relevant portions of the Asset Purchase Agreement and Schedules 5.14 and 9.2(f) are attached to the Declaration of Howard Misle, ECF Dckt. 60-1 at Exs. A-C thereto. 2 Defendant recognizes that pre-litigation fees and costs are properly recoverable under Cal. Civ. Code § 1717. The issue at bar is not whether Defendant has the option of recovering pre-litigation fees and costs as the “prevailing party.” Rather, the issue at bar is whether the claim certificate costs, which need to be prepared regardless of whether any action is ever filed, fall within the broad and expansive definition of recoverable “Losses” under § 11.1. Case 4:15-cv-06031-JSW Document 153 Filed 11/20/17 Page 3 of 10 STOEL RIVES LLP ATTO RN EY S AT LA W SA CRA M E NT O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY IN SUPPORT OF CROSS-MOTION FOR SUMMARY ADJUDICATION -3- CASE NO. 4:15-CV-06031-JSW 94721535.3 0068163-00128 Accordingly, the express language in the APA renders attorneys’ fees and costs incurred in connection with mandatory claim certificates “Losses” under § 11.1, not “Litigation Costs” under APA § 12.5. B. DEFENDANT’S STORM WATER SOIL CLAIM CONSTITUTES A “SELLING PARTIES’ RETAINED ENVIRONMENTAL LIABILITIES” The uncontroverted facts establish that Defendant’s Storm Water Soil Claim is upon Losses relating to or arising out of “Selling Parties’ Retained Environmental Liabilities.” First, Plaintiff wrongly argues the indemnity provisions should be strictly construed against Defendant. In doing so, Plaintiff relies upon authority applicable to the unique context in which a subcontractor agrees to indemnify a general contractor (which obviously has more bargaining power), even for the general contractor’s own negligence.3 The court in Crawford v. Weather Shield Manufacturing Inc., 44 Cal. 4th 541, 552 (2008), recognized the heightened scrutiny in that context because “it is the indemnitee who may often have the superior bargaining power, and who may use this power unfairly to shift to another a disproportionate share of the financial consequences of its own legal fault.” (Underline added.) Even in those contexts, however, the court in Heppler v. J.M. Peters Co., 73 Cal. App. 4th 1265, 1277 (1999), recognized that: “the question whether an indemnity agreement covers a given case turns primarily on contractual interpretation, and it is the intent of the parties as expressed in the agreement that should control. When the parties knowingly bargain for the protection at issue, the protection should be afforded. This requires an inquiry into the circumstances of the damage or injury and the language of the contract; of necessity, each case will turn on its own facts.” Heppler, 73 Cal. App. 4th at 1277 (quoting Rossmoor Sanitation, Inc. v. Pylon, Inc., 13 Cal. 3d 622, 633 (1975)). Here the Court cannot ignore the broad, intentional, express definition of 3 All but one of the cases cited by Plaintiff in his Reply and Opposition, at 5:3-15 involve a general contractor seeking indemnity from its subcontractor for damages arguably resulting from the general contractor’s own negligence. See 5 Cal. Real Est. Forms § 5:406 (2d ed. 2016) (“Generally, the courts have strictly construed these type of indemnity provisions against the indemnitee.”). The exception is Prince v. Pacific Gas & Electric Co., 45 Cal. 4th 1151, 1158 (2009), but that case quoted Crawford only to conclude that authority was inapplicable because “Prince makes no claim that PG&E expressly contracted to indemnify her for the type of damages alleged here,” focusing its analysis on equitable indemnity, which is not at issue here. Case 4:15-cv-06031-JSW Document 153 Filed 11/20/17 Page 4 of 10 STOEL RIVES LLP ATTO RN EY S AT LA W SA CRA M E NT O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY IN SUPPORT OF CROSS-MOTION FOR SUMMARY ADJUDICATION -4- CASE NO. 4:15-CV-06031-JSW 94721535.3 0068163-00128 “Selling Parties’ Retained Environmental Liabilities,” especially where both parties are sophisticated, represented by sophisticated law firms, and Plaintiff did not even bother to read the contract. (Vu Decl., ECF dckt. 151-2 at Ex. A thereto, 22:22-24:1.) Second, Plaintiff wrongfully seeks to link the broad definition of “Selling Parties’ Retained Environmental Liabilities” to CERCLA, arguing that “it is manifest that APA section 9.7’s purpose is to allocate CERCLA and CERCLA-like liabilities.” (Opp’n & Reply at 6:9-11.) Plaintiff overlooks the fact that the mutual intention of the parties at the time of contracting governs interpretation, and that mutual intention “‘is to be inferred, if possible, solely from the written provisions of the contract.’” George v. Auto. Club of S. Cal., 201 Cal. App. 4th 1112, 1120 (2011) (quoting AIU Ins. Co. v. Super. Ct., 51 Cal. 3d 807, 821-22 (1990)). Here, the broad definition of “Environmental Laws” belies Plaintiff’s argument. (APA § 11.1, p. 53.) Plaintiff offers no extrinsic evidence whatsoever to suggest that the parties intended this phrase to somehow be limited to “CERCLA and CERCLA-like liabilities.” Plaintiff offered no communications, no drafts of documents, and no testimony on this issue.4 As is evident from the various claims at issue in this case, environmental claims for indemnity arise from various contexts for an industrial facility like the one at issue, not just CERCLA, as is evidenced by the expansive language of APA § 9.7(a). Finally, Plaintiff argues that “California courts routinely import definitions from statutes and ordinances in order to construe contract terms.” (Opp’n & Reply at 8:11-12.) However, there is no uncertainty or vagueness that Plaintiff has highlighted that somehow limits the purposefully broad definition of “Seller’s Retained Environmental Liabilities” to CERCLA. Third, Plaintiff wrongly argues that the Storm Water Soil Claim falls outside the definition of “Sellers’ Retained Environmental Liabilities.” For example, under APA § 9.7(a)(iii)(C), Plaintiff agreed to indemnify Defendant for “any and all Losses[5] related to or 4 Defendant does not concede that this extrinsic evidence would be admissible to support Plaintiff’s argument, but it is notable that Plaintiff proffers no evidence whatsoever. 5 “Losses” is defined to “mean[] any claims, liabilities, suits, causes of action, losses, damages (including natural resource damages and including any Third-Party Claims for consequential, incidental or punitive damages), diminution in value, fines, penalties, Case 4:15-cv-06031-JSW Document 153 Filed 11/20/17 Page 5 of 10 STOEL RIVES LLP ATTO RN EY S AT LA W SA CRA M E NT O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY IN SUPPORT OF CROSS-MOTION FOR SUMMARY ADJUDICATION -5- CASE NO. 4:15-CV-06031-JSW 94721535.3 0068163-00128 arising directly or indirectly out of . . . any Hazardous Materials generated at or transported from any Acquired Real Property, Excluded Real Property or by or on behalf of the Selling Parties and disposed of or stored at off-site locations.” Plaintiff does not challenge the plain meaning of this provision, arguing only that it would lead to an “absurd result.” (See Opp’n & Reply at 9:19-10:4.) Plaintiff argues that this interpretation would lead to absurdity because Plaintiff may be on the hook for indemnity related to Defendant’s own contamination of soil after it took over the Facility. This principally ignores APA § 9.7(a)’s use of the word “retained,” which means the environmental condition must have existed or been caused by Plaintiff as of the Closing Date. Defendant cannot retain any liability that was never his to begin with. Plaintiff also overlooks that the absurdity courts are to avoid should not be premised on some irrelevant hypothetical that never occurred and never will occur. The unrebutted, admissible evidence establishes that the soil was contaminated under Plaintiff’s watch, had to be specially disposed of, and resulted in related Losses to Defendant. Indemnity for Losses such as this falls squarely within APA § 9.7(a)(iii)(C) and, given the broad and expansive definition of “Sellers’ Retained Environmental Liabilities” generally, is entirely consistent with the APA’s various provisions. Plaintiff has offered no evidence that Defendant somehow sought indemnity for soil it contaminated, or that it ever did in the past. Especially because this is the last tranche remaining in escrow,6 all of which will be disbursed between the parties at the conclusion of this action, Plaintiff’s hypothetical should bear no weight. As another example, the Storm Water Soil Claim also falls within the scope of the definition of “Sellers’ Retained Environmental Liabilities” because it constitutes “Remediation.” (See APA § 9.7(a)(i).) To be clear, the definition of Remediation in its entirety is as follows:7 Encumbrances, costs and expenses, including reasonable fees and disbursements of counsel, consultants and other advisors.” APA § 11.1. 6 (Complaint, ECF dckt. 1-1, at ¶ 7.) 7 The undersigned counsel for Defendant respectfully acknowledges that the ellipses in its quoted definition of “Remediation,” at fn. 15 of its Opposition and Cross-Motion for Summary Judgment, rendered the definition of that term materially incomplete. This was due to an unintentional misreading of the provision by the undersigned. Defendant respectfully submits, however, that the express language of APA § 9.7(a)(i), and the definitions of “Remediation” and “Environmental Law,” as outlined herein, nevertheless undermine any argument that the Storm Water Soil Claim somehow also falls outside the broad definition of “Sellers’ Retained Case 4:15-cv-06031-JSW Document 153 Filed 11/20/17 Page 6 of 10 STOEL RIVES LLP ATTO RN EY S AT LA W SA CRA M E NT O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY IN SUPPORT OF CROSS-MOTION FOR SUMMARY ADJUDICATION -6- CASE NO. 4:15-CV-06031-JSW 94721535.3 0068163-00128 “Remediation” means any investigation, assessment, testing, treatment, monitoring reporting (including the preparation and submittal of any applications or forms necessary to obtain any Permits required for such Remediation), risk assessments, cleanup, removal, restoration, capping, encapsulation, containment or other remediation or response actions as required (i) to meet the recommendations presented in, or to satisfy any other obligation triggered by, any Environmental Report or (ii) to bring the Business or any Acquired Asset into compliance with Environmental Law existing as of the Closing Date applicable to commercial or industrial real properties, and, in the case of this clause (ii), to the extent such actions are required (x) under a reasonable interpretation of Environmental Law existing as of the Closing Date applicable to commercial or industrial real properties or (y) by a Governmental Entity. (APA § 11.1, pp. 58-59 (emphasis added).) Notably, Environmental Laws is broadly defined too: “Environmental Laws” means any common law or federal, state, county, regional, district, local or foreign statute, treaty, ordinance, rule, regulation, policy, protocol, standards, Permit or order, and all amendments thereto, relating to the protection of human health, safety, or the environment, including all requirements pertaining to: (i) the manufacture, processing, distribution, use, presence, production, handling, treatment, storage and disposal of Hazardous Materials; (ii) the reporting, investigation and remediation of Releases of Hazardous Materials into any media, including soil, groundwater, surface water and air; (iii) the health and safety of employees in the workplace or of any member of the public with respect to the handling of or exposure to Hazardous Materials; (iv) natural resources; (v) wetlands; (vi) noise and (vii) endangered or threatened species or habitats, including, but not limited to, the Federal Water Pollution Control Act (33 U.S.C. §1251 et seq.), RCRA, Safe Drinking Water Act (42 U.S.C. §3000(f) et seq.), Toxic Substances Control Act (15 U.S.C. §2601 et seq.), Clean Air Act (42 U.S.C. §7401 et seq.), CERCLA and other similar state and local statutes, and any regulations promulgated thereto, but excluding local zoning Laws and Laws administered by the Occupational Safety and Health Administration and by the Department of Labor. (APA § 11.1, pp. 53-54 (emphasis added).) In other words, within the scope of Remediation is any “removal,” “other remediation,” or “other response actions” “as required . . . (ii) to bring the Business or any Acquired Asset into compliance with Environmental Law [which includes in its definition requirements pertaining to disposal of Hazardous Materials] existing as of the Closing Date applicable to commercial or industrial real properties . . . to the extent such Environmental Liabilities.” Plaintiff argued the applicability of APA § 9.7(a)(i), which of course utilizes the defined terms “Remediation” and “Environmental Law,” in its Motion for Summary Adjudication (14:4-17) and its Reply and Opposition (10:9-11:16). Case 4:15-cv-06031-JSW Document 153 Filed 11/20/17 Page 7 of 10 STOEL RIVES LLP ATTO RN EY S AT LA W SA CRA M E NT O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY IN SUPPORT OF CROSS-MOTION FOR SUMMARY ADJUDICATION -7- CASE NO. 4:15-CV-06031-JSW 94721535.3 0068163-00128 actions are required (x) under a reasonable interpretation of Environmental Law existing as of the Closing Date applicable to commercial or industrial real properties or (y) by a Governmental Entity.” Here, proper disposal of the contaminated soil was required by the law and that soil became contaminated under Plaintiff’s watch, and was contaminated at the time Defendant acquired the Facility. There is no dispute that Environmental Laws existing on the Closing Date required proper disposal of the contaminated soil. Accordingly, the Court should enter judgment as to this issue in Defendant’s favor. C. DEFENDANT’S CUP CLAIM PROPERLY ENCOMPASSES ITEMS THAT MAY BE DEEMED TO “RELATE TO OR ARISE DIRECTLY OR INDIRECTLY FROM” PLAINTIFF’S BREACH OF APA § 9.2(F), SCHEDULE 9.2(F), AND RELATED PROVISIONS, THOUGH EXTENT OF SUCH LOSSES REMAINS TO BE DETERMINED BY A TRIER OF FACT At the outset, the Court should not even consider Plaintiff’s challenge to the specific items challenged in Plaintiff’s Motion, because it does not raise issues of contract interpretation thus falling outside the scope of what the Court permitted. If the Court does consider these issues at this juncture despite its Order, then it should find that the items of indemnity sought by Defendant under its CUP Claim “relate to or arise directly out of” Plaintiff’s noncompliance with the 2000 CUP, and accordingly enter judgment in Defendant’s favor. As is thoroughly outlined in Defendant’s moving papers, Plaintiff’s noncompliance with the 2000 CUP resulted in the City deeming it invalid. Indeed, Plaintiff himself recognized this and that is why he sought to obtain an “adjustment” from the 2000 CUP’s conditions and, when that was rejected, amend the 2000 CUP. (Vu Decl., ECF dckt. 151-2 at pp. 267, 299, 303-305, 329.) The evidence establishes that Plaintiff’s noncompliance was so significant that the City of San Jose essentially required Defendant to start from scratch, engaging in a give-and-take with the City to get the Facility into compliance with a valid CUP. This give-and-take unquestionably “relate(ed) to or [arose] directly out of” Plaintiff’s noncompliance. Simply put, if the Facility was in compliance with a valid CUP, none of this would have been required. For example, Plaintiff wrongly argues now that the $13,178.75 David J. Powers fees for the environmental consultants that the City of San Jose hired (but required that Defendant pay Case 4:15-cv-06031-JSW Document 153 Filed 11/20/17 Page 8 of 10 STOEL RIVES LLP ATTO RN EY S AT LA W SA CRA M E NT O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY IN SUPPORT OF CROSS-MOTION FOR SUMMARY ADJUDICATION -8- CASE NO. 4:15-CV-06031-JSW 94721535.3 0068163-00128 for) would have been necessitated “regardless of compliance or non-compliance with the 2000 CUP.” (Opp’n & Reply at 12:8-9.) This is contradicted by Plaintiff’s own evidence submitted to the Court. In support of his own motion Plaintiff submitted an email from the City of San Jose’s Rebekah Ross that states: A number of conditions from AMI Metals’ original Conditional Use Permit were not implemented, and the project never received Public Works clearance. As a result our City Attorney has determined that the lack of compliance with the CUP invalidates the 2000 permit and puts the baseline at zero. Therefore, please provide a revised Initial Study that evaluates the project as a new recycling transfer facility and all related operations, etc. as new. The following technical reports and information are required: . . . (ECF dckt. 150-2, at p. 280.) This is exactly what Defendant has been claiming all along, and supported by other evidence Plaintiff also submitted. (See ECF dckt. 150-2, at p. 9.) Accordingly, for this reason and the others thoroughly outlined in Defendant’s moving and opposition papers, the Court should enter judgment on this issue in Defendant’s favor. III. CONCLUSION Accordingly, Defendant respectfully requests that the Court deny all Plaintiff’s requests for summary judgment, instead granting summary judgment in Defendant’s favor as follows: • Defendant’s pre-litigation attorneys’ fees and costs fall within the definition of “Losses,” as opposed to constituting what is commonly referred to as “prevailing party fees and costs” under APA § 12.5; • Defendant’s Storm Water Soil Claim constitutes a “Selling Parties’ Retained Environmental Liabilities;” and, • Defendant’s CUP Claim properly encompasses items that may be deemed to “relate to or arise directly or indirectly from” Plaintiff’s breach of APA § 9.2(f), Schedule 9.2(f), and related provisions, though the extent of such Losses remains to be determined by a trier of fact. Case 4:15-cv-06031-JSW Document 153 Filed 11/20/17 Page 9 of 10 STOEL RIVES LLP ATTO RN EY S AT LA W SA CRA M E NT O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY IN SUPPORT OF CROSS-MOTION FOR SUMMARY ADJUDICATION -9- CASE NO. 4:15-CV-06031-JSW 94721535.3 0068163-00128 Dated: November 20, 2017 STOEL RIVES LLP By: /s/ Bao M. Vu Thomas A. Woods Bao M. Vu Attorneys for Defendant Schnitzer Steel Industries, Inc. Case 4:15-cv-06031-JSW Document 153 Filed 11/20/17 Page 10 of 10