BRINKER RESTAURANT v. S.C. (HOHNBAUM)Petitioners' Supplemental BriefCal.July 26, 2011S166350 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA SUPreRECMEshyGay; BRINKER RESTAURANT CORPORATION, BRINKER Bat!LE INTERNATIONAL,INC., and BRINKER INTERNATIONAL PAYROLL COMPANY,L.P., Petitioners, JUL 26 2671 Frederick KK. Chines Clark Vv. SAEetreeNT THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR.“Dapiiiynm THE COUNTYOFSAN DIEGO, Respondent. ADAM HOHNBAUM,ILLYA HAASE, ROMEO OSORIO, AMANDA JUNE RADER, and SANTANA ALVARADO, Real Parties in Interest. PETITION FOR REVIEW OF A DECISION OF THE COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE, CASE No. D049331, GRANTING A WRIT OF MANDATE TO THE SUPERIOR COURT FOR THE COUNTY OF SANDIEGO, CASE No. GIC834348, HONORABLE PATRICIA A.Y. COWETT, JUDGE BRINKER’S SUPPLEMENTALBRIEF RE: WAL-MARTy. DUKES AND CRUZ v. DOLLAR TREE STORES AKIN GUMP STRAUSS HAUER & FELD LLP REX S. HEINKE (SBN 66163) JOHANNA R.SHARGEL (SBN 214302) 2029 CENTURY PARKEAST, SUITE 2400 Los ANGELES, CALIFORNIA 90067-3012 TELEPHONE: (310) 229-1000 FACSIMILE: (310) 229-1001 HUNTON & WILLIAMS LLP LAURA M.FRANZE (SBN 250316) M. BRETT BuRNS(SBN 256965) 550 SOUTH HOPESTREET, SUITE 2000 Los ANGELES, CALIFORNIA 90071-2627 TELEPHONE: (213) 532-2000 FACSIMILE: =(213) 532-2020 MORRISON & FOERSTER LLP KARENJ. KUBIN (SBN 71560) 425 MARKET STREET SAN FRANCISCO, CALIFORNIA 94105 TELEPHONE: (415) 268-7000 FACSIMILE: (415) 268-7522 HUNTON & WILLIAMS LLP SUSAN J. SANDIDGE 1445 Ross AVENUE,SUITE 3700 DALLAS, TEXAS 75202 TELEPHONE: (214)979-2923 FACSIMILE: (214) 979-3910 ATTORNEYSFOR PETITIONERS S166350 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA BRINKER RESTAURANT CORPORATION, BRINKER INTERNATIONAL, INC., and BRINKER INTERNATIONAL PAYROLL COMPANY,L.P., Petitioners, Vv. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTYOFSAN DIEGO, Respondent. ADAM HOHNBAUM,ILLYA HAASE, ROMEO OSORIO, AMANDA JUNE RADER,and SANTANA ALVARADO, Real Parties in Interest. PETITION FOR REVIEW OF A DECISION OF THE COURT OF APPEAL, FOURTH APPELLATEDISTRICT, DIVISION ONE, CASE NO. D049331, GRANTING A WRIT OF MANDATE TO THE SUPERIOR COURT FOR THE COUNTY OF SAN DIEGO, CASE No. GIC834348, HONORABLE PATRICIA A.Y. COWETT, JUDGE BRINKER’S SUPPLEMENTALBRIEF RE: WAL-MART v. DUKES AND CRUZ v. DOLLAR TREE STORES AKIN GUMP STRAUSS HAUER & FELD LLP REX S. HEINKE (SBN 66163) JOHANNAR. SHARGEL(SBN 214302) 2029 CENTURY PARKEAST,SUITE 2400 Los ANGELES, CALIFORNIA 90067-3012 TELEPHONE: (310) 229-1000 FACSIMILE: (310) 229-1001 HUNTON & WILLIAMS LLP LAURA M. FRANZE (SBN 250316) M. BRETT Burns(SBN 256965) 550 SOUTH HOPE STREET, SUITE 2000 Los ANGELES, CALIFORNIA 90071-2627 TELEPHONE: (213) 532-2000 FACSIMILE: (213) 532-2020 MORRISON & FOERSTER LLP KAREN J. KUBIN (SBN 71560) 425 MARKET STREET SAN FRANCISCO, CALIFORNIA 94105 TELEPHONE: (415) 268-7000 FACSIMILE: (415) 268-7522 HUNTON & WILLIAMS LLP SUSAN J. SANDIDGE 1445 Ross AVENUE, SUITE 3700 DALLAS, TEXAS 75202 TELEPHONE: (214) 979-2923 FACSIMILE: (214) 979-3910 ATTORNEYSFOR PETITIONERS TABLE OF CONTENTS Page I. THE DUKES AND CRUZ DECISIONS.......cccccscsssssssssessseecesrsssesceeees 1 II. THE IMPACT OF DUKES AND CRUZ ON THE ISSUES BEFORETHIS COURT...ecccsssssssssssecesesessscsscsssesssssseecensaceusacaeenes6 CERTIFICATE OF COMPLIANCE.......ccccssssscsesssssesssssssscscseseenseseesscseasacaees 10 TABLE OF AUTHORITIES Page(s) FEDERAL CASES Cruz v. Dollar Tree Stores, Inc. (N.D. Cal. July 8, 2011, Nos. 07-2050, 07-4012) 2011 WL 2682967.00.....cccccsssesssssscssccssssccescessscassesscsssenseseeecsecenes 1,5, 6,8 Marlo v. United Parcel Serv., Inc. (9th Cir. 2011) 639 F.3d 943 vccccssccsseccscssesessesssccacscsecscsesseseceees 6, 7 Wal-Mart Stores, Inc. v. Dukes (2011) 131 S.Ct. 2541 (Scalia, J.) o.ccccesescssesesssssesssscssceceesseesesees passim RULES California Rules of Court Rule 8.520(d) oo. ecccsscsssssccsseessceessssessscsssesscecenscesseceuecsacetessecsaucasssseesees 1 il BRINKER’S SUPPLEMENTALBRIEF RE: WAL-MARTy. DUKES AND CRUZ v. DOLLAR TREE STORES Brinker Restaurant Corporation, Brinker International, Inc., and BrinkerInternational Payroll Company,L.P. (“Brinker”) file this supplementalbrief pursuant to Rule 8.520(d) ofthe California Rules of Court to address the United States Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes (2011) 131 S.Ct. 2541 (Scalia, J.), and the decision of the United States District Court for the Northern District of Californiain Cruz v. Dollar Tree Stores, Inc. (N.D. Cal. July 8, 2011, Nos. 07-2050, 07- 4012) 2011 WL 2682967. Dukesclarifies the requirements for a class action, reversing a Ninth Circuit decision on whichPlaintiffs rely in their Opening Brief on the Merits (“OBM”). Cruz, relying on Dukes, likewise addresses the applicable standards for determining whetherclass certification is appropriate in a case such as this. Both decisions were issued after Brinker filed its AnswerBrief on the Merits (“ABM”), making a supplemental brief appropriate. (Cal. Rules of Court, rule 8.520(d) [“A party mayfile a supplementalbrief limited to new authorities . . . that were not available in time to be includedin a party’s brief on the merits.”].) I. THE DUKES AND CRUZ DECISIONS In Dukes, current and former Wal-Mart employees sought judgment against the company on behalf of themselves and a nationwide class of approximately 1.5 million female employees, because of Wal-Mart’s alleged discriminationin violation of Title VII of the Civil Rights Act of 1964. While plaintiffs did not allege that “Wal-Mart has any express corporate policy against the advancement of women”(Dukes, supra, 131 S.Ct. at p. 2548), they posited that Wal-Mart should be held liable for giving local supervisors discretion over employment matters. Thedistrict courtcertified the proposed class and the Ninth Circuit affirmed, ruling that the case “could be manageablytried as a class action” by extrapolating the validity and value of every class member’s claim from a randomly selected sample. (/d. at p. 2550.) The Supreme Court reversed. Recognizing that the “‘class determination generally involves considerations that are enmeshed in the factual and legal issues comprisingthe plaintiff’s cause of action’” (Dukes, supra, 131 S.Ct. at p. 2552, quoting General Tel. Co. ofSouthwestv. Falcon (1982) 457 U.S. 147, 160), the Court held that Title VII requires an eeeinquiry into “‘the reasonfor a particular employment decision’”(ibid., quoting Cooperv. Federal Reserve Bank ofRichmond (1984) 467 U.S. 867 ? 876) — an inquiry that is impossible to conduct on class basis. The Supreme Court explained: Here respondents wish to sue aboutliterally millions of employmentdecisionsat once. Without some glue holding the alleged reasons for all those decisions together,it will be impossible to say that examination ofall the class members’ claimsfor relief will produce a common answerto the crucial question why was I disfavored. (/bid., original emphasis.) The Dukes Court elaborated that withoutthat “glue holding the alleged reasons forall those [employment] decisions together” ~ thatis, without proof that Wal-Mart “‘operated undera general policy of 399discrimination’” — certification was inappropriate. (Dukes, supra, 131 S.Ct. at p. 2553, quoting Falcon, supra, 457 U.S. at p. 159.) “Wal-Mart’s announced policy forbids sex discrimination,”andits ““policy of allowing discretion by local supervisors over employment matters .... is just the opposite of a uniform employmentpractice that would provide the commonality neededfor a class action; it is a policy against having uniform employmentpractices.” (Dukes, supra, 131 S.Ct. at pp. 2553-2554, original emphasis; see also id. at p. 2551 [proof of commonality requiresthat all putative class members’ claims depend upon a common contention “of such a nature that it is capable of classwide resolution — which meansthat determinationofits truth or falsity will resolve an issue that is central to the validity of each one of the claimsin one stroke”].) The Dukes plaintiffs failed to identify “a common modeof exercising discretion that pervades the entire company”(id. at pp. 2554- 2555), and the Court foundthis fatal to their class claim. While the Dukesplaintiffs tried to establish “some common 39direction” “by meansofstatistical and anecdotal evidence,” the Supreme Court held that such evidence fell “well short.” (Dukes, supra, 131 S.Ct. at p. 2555.) It explained, as a threshold matter, that any regional and national data about gender disparities between men and womenat Wal-Mart “may be attributable to only a small set of Wal-Martstores, and cannotbyitself establish the uniform, store-by-store disparity upon whichtheplaintiffs’ theory of commonality depends.” (/bid.) Moreover,evenif statistical proof could establish a pay or promotion disparity “in all of Wal-Mart’s 3,400 stores, that would still not demonstrate that commonality of issue exists.” (Dukes, supra, 131 S.Ct. at p. 2555.) Some managerswill claim a dearth of qualified, available, or interested womenin their particular area, “[a]nd almost all of them will claim to have been applying some sex-neutral, performance-basedcriteria — whosenature and effects will differ from store to store.” (bid.) Thus, “[o]ther than the bare existence of delegated discretion, respondents have identified no ‘specific employmentpractice’ — much less onethatties all their 1.5 million claims together. Merely showing that Wal-Mart’s policy of discretion has producedan overall sex-based disparity doesnot suffice.” (Id. at pp. 2555-2556.) The Supreme Court concludedthat becauseplaintiffs provided “no convincing proof of a companywidediscriminatory pay and promotion policy .. . they have notestablished the existence of any common question.” (Dukes, supra, 131 S.Ct. at p. 2556.) It elaborated: [T]he membersofthe class “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 policiesthatall differed... . Some thrived while others did poorly. They havelittle in common buttheir sex and this lawsuit.” (Ibid., quoting Dukes v. Wal-MartStores, Inc. (9th Cir. 2010) 603 F.3d 571, 652 (dis. opn. of Kozinski, J.).) The Northern District of California applied Dukes in a wage and hourclass action and decertified a class of store managers claimingthat they were misclassified as exempt executives and thereby denied overtime pay and mealandrest breaks in violation of California law. (Cruz, supra, 2011 WL 2682967.) The district court observed that “[t]he appropriateness”of plaintiffs’ central proof — “representative testimony from a handfulof class members” — while once “a questionable proposition underthis circuit’s case law”is “now untenablein light of” the Supreme Court’s decision in Dukes. (Id. at *4.) Dukes, the Cruz court explained, “provides a forceful affirmation of a class action plaintiff’s obligation to produce commonproofofclass-wide liability in order to justify class certification”(id. at *5), and “the failure of Plaintiffs here to offer a basis for extrapolation of representative testimonyto the class as a wholeis fatal to continued certification”(id. at *8).' Ii. THE IMPACT OFDUKES AND CRUZ ON THE ISSUES BEFORE THIS COURT The decisions in Dukes and Cruz have considerable relevancehere. First, Dukes is a reminderthat the class determination often “will entail some overlap with the merits of the plaintiff’s underlying claim.” (Dukes, supra, 131 S.Ct. at p. 2551.) Just as Title VII requires an inquiry into the reason behind an employmentdecision, California’s meal andrest period laws require an inquiry into “why”a particular break wasnot taken or “why” an employee worked off the clock on a particular occasion. (ABM,pp. 105-106.) Without “some glue” holding together the reasons for those untaken breaksor that off-the-clock work, class members’ claims cannotbe decided en masse. (Dukes, supra, 131 S.Ct. at p. 2552; see also Cruz, supra, 2011 WL 2682967,at *5 [decertifying class becauseplaintiffs “failed to provide commonproofto serve as the ‘glue’ that would allow a class-wide determination of how class membersspent their time ona ' In addition to Dukes, the Cruz court relied on the Ninth Circuit’s decision in Marlo v. United Parcel Serv., Inc. (9th Cir. 2011) 639 F.3d 943 whichaffirmeda district court decision also decertifying a class of employeesallegedly misclassified as exempt from California’s overtime laws. (Cruz, supra, 2011 WL 2682967,at *5.) As in Cruz, the Marlo plaintiffs’ “primary evidence” was “the testimony of individual class members” and the Ninth Circuit confirmed “the impropriety of relying on representative testimony where plaintiffs have provided noreliable means of extrapolating that testimonyto the class as a whole.” (Jbid.) 3 weekly basis”]; Marlo, supra, 639 F.3d at p. 949 [holdingthat district court did notabuse its discretion in concluding that individual questions would predominate where employee declarations and deposition testimony “suggest variations in job duties that appear to be a product of employees working at different facilities, under different managers, and with different customer bases’”], quoting Marlo v. United ParcelServ., Inc. (C.D. Cal. 2008) 251 F.R.D. 476, 486.) Second, as in Dukes, where there was no corporate policy of sex discrimination,here there is no evidence of a company-wide policy that deprives employeesoftheir meal orrest period rights. To the contrary,in both cases, companypolicy explicitly prohibits the practices that plaintiffs claim were widespread. Without “significant proof” — indeed, any proof — that Brinker “operated under a generalpolicy” of denying class members mealorrest periods, a class cannot becertified. (Dukes, supra, 131 S.Ct. at p. 2553.) Moreover,just as in Dukes, Brinker gave its managers the discretion to determine the best way of providing meal andrest periodsattheir particular restaurants. (Brinker’s Answer to Amicus Curiae Brief of Rogelio Hernandez, pp. 5-6.) Some managers, for example, allowed employeesto take meal periodsas a group, while others had designated “breakers” to relieve employees oneat a time. (/d., p. 6.) Meal period compliance methodseven varied within a single restaurant, between “front of the house” and “back of the house” employees, and between lunch and dinnershifts. (/d., p. 6 fn. 3.) Thus Brinker, like Wal-Mart, has “the opposite of a uniform employmentpractice” that would provide the necessary groundsfor a class action. (Dukes, supra, 131 S.Ct. at p. 2554.) Finally, the Supreme Courtflatly rejected the Brinker Plaintiffs’ argumentthat representative proof is a legitimate substitute for class-wide evidenceofliability. Plaintiffs cited the Ninth Circuit’s decision in Dukes as supportfor the argumentthat a class maybejustified “by raising an inference of class-wide discrimination through theuse ofstatistical analysis.” (OBM,p. 125.) That argument has been dashed by the Supreme Court’s decision, which makesclear that absent proof of a common employmentpractice, a class cannot be cobbled together with statistical and anecdotal evidence. (Dukes, supra, 131 S.Ct. at pp. 2555-2556.) Indeed, the Supreme Court expressly disapprovedofthe “novel project”of replacing individualized determinations of each employee’s eligibility for relief with “Trial by Formula.” (/d. at p. 2561; see also Cruz, supra, 2011 WL 2682967,at *6.) Dukes and Cruz, in short, confirm what Brinkerhassaidall along: A class cannotbe certified without evidence of class-wide wrongdoing, and there is none here. Respectfully submitted, Dated: July 25, 2011 AKIN GUMP STRAUSS HAUER & FELD LLP Rex S. Heinke Johanna R. Shargel MORRISON & FOERSTER LLP Karen J. Kubin HUNTON & WILLIAMS LLP Laura M. Franze M.Brett Burns an ooY “] By berLl Rex S. Heinke Attorneys for PETITIONERS CERTIFICATE OF COMPLIANCE [Cal. Rules of Court, rule 8.504(d)] This brief consists of 1,855 words as counted by the Microsoft Word version 2007 word processing program usedto generate thebrief. Dated: July 25, 2011 AKIN GUMP STRAUSS HAUER & FELD LLP MORRISON & FOERSTER LLP HUNTON & WILLIAMS LLP 5 a J “3 i\ CO MAL, By Ihe Le) a TF Rex S. Heinke Attorneys for PETITIONERS 10 Westlaw. Slip Copy, 2011 WL 2682967 (N.D.Cal.) (Cite as: 2011 WL 2682967 (N.D.Cal.)) Only the Westlaw citation is currently available. United States District Court, N.D.California. Miguel A. CRUZ,and John D. Hansen,individually and on behalfofall others similarly situated, Plaintiffs, v. DOLLAR TREESTORES,INC., Defendant. Robert Runnings,individually, and on behalfofall others similarly situated, Plaintiffs, v. Dollar Tree Stores, Inc., Defendant. Nos. 07-2050 SC, 07-4012 SC. July 8, 2011. Molly Ann Desario, Eileen Marie Bissen, Scott Ed- ward Cole, Matthew Roland Bainer, Scott Cole & Associates, APC, Oakland, CA,forPlaintiffs. Maureen E. McClain, Annamary Elizabeth Gannon, Krista Stevenson Johnson, Matthew P. Vandall, Lit- tler Mendelson, Robert Louis Zaletel, San Fran- cisco, CA, Beth Hirsch Berman, Williams Mullen, Norfolk, VA, for Defendant. ORDER DECERTIFYING CLASS SAMUEL CONTI, District Judge. Il. INTRODUCTION *I This is a certified class action brought by Plaintiffs Robert Runnings (“Runnings”), Miguel Cruz (“Cruz”), and John Hansen (“Hansen”) (collectively, “Plaintiffs”), who allege that they and other current and former store managers at Defend- ant Dollar Tree Stores, Inc. (“Defendant” or “Dollar Tree”) were misclassified as executive-exempt em- ployees and thereby denied overtime pay and meal and rest breaks in violation of California law. On May 27, 2011, the Court conducted a hearing on the trial plans submitted by Plaintiffs and Defendant. At the conclusion of the hearing, the Court ex- pressed concern over the continued propriety of Page 2 of 10 Page | class treatment in this case and ordered the parties to submit briefs addressing whether continued class treatment was appropriate. The parties have submit- ted briefs in response to the Court's order. ECF Nos. 314 (“Def.'s Br.”), 317 (“Pls.' Br.).FN' After reviewing these briefs, and many other papers sub- mitted by the parties over the course of this litiga- tion, the Court finds that continued class treatment is inappropriate and DECERTIFIES the class for the following reasons. FNI. Cruz vy. Dollar Tree, Case No. 07-2050 (“Cruz action”), and Runnings v. Dollar Tree, Case No. 07-4012 (“Runnings action”), have been consolid- ated. Unless otherwise noted, all docket numbers in this Order refer to docket entries in the Cruz action. II. BACKGROUND The Court assumesthe parties are familiar with the procedural and factual background ofthis case, which the Court set out in its May 26, 2009 Order Granting the Amended Motion for Class Certifica- tion. ECF No. 107 (“Orig.Cert.Order”). Accord- ingly, the Court provides a truncated version here. Plaintiffs are former Dollar Tree employees who held the position of store manager. On April If, 2007, Cruz and Hansenfiled suit (“the Cruz ac- tion”) on behalf of themselves and all others simil- arly situated against Dollar Tree, alleging that Dol- lar Tree improperly categorizes its store managers as executive-exempt employees under California and federal labor laws. ECF No. | (“Compl.”). In August 2007, Runnings filed a similar action in state court (the “ Runnings action’), which was sub- sequently removed and consolidated with the Cruz action. See ECF No.45. On May 26, 2009, the Court certified a class of “all persons who were employed by Dollar Tree Stores, Inc. as California retail Store Managers at any time on or after December 12, 2004, and on or © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. Slip Copy, 2011 WL 2682967 (N.D.Cal.) (Cite as: 2011 WL 2682967 (N.D.Cal.)) before May 26, 2009,” and appointed Plaintiffs as class representatives. See Orig. Cert. Order. The class consisted of 718 store managers (““SMs”) who worked in 273retail locations. /d On June 18, 2010, in the wake of two Ninth Circuit decisions regarding employment class ac- tions— In re Wells Fargo Home Mortgage Over- time PayLitigation, 571 F.3d 953 (9th Cir.2009)( “Wells Fargo I” ), and Vinole vy. Countrywide Home Loans, Inc. .. 571 F.3d 935 (9th Cir.2009) —Dollar Tree moved for decertification, arguing that changes in the law made continued classtreat- ment inappropriate. ECF No. 188. On September 9, 2010, the Court granted in part and denied in part Dollar Tree's motion for decertification. ECF No. 232 (“Part.Decert.Order’). *2 As explained in the Original Certification Order and the Partial Decertification Order, Dollar Tree requires its SMs to complete weekly payroll certifications indicating whether they spent more than fifty percent of their actual work time each weck performing seventeen listed duties that Dollar Tree believes to be “managerial” in nature. See Part. Decert. Order at 2. The certification form states that SMs “may not spend more than a total of 35% of his/her actual work time each week receiv- ing product, distributing and storing product, stock- ing product and cashiering.” /d. Each SM must cer- tify “yes” if he or she spent the majority of his or her time performing the seventeen duties and “no” if he or she did not. /d The payroll certification form further states that if the SM responds no, “s/he must immediately provide an explanation to both Payroll and Human Resources. No salary or wage will be withheld because of non-compliance.” /d. The form provides a space for SMs to write an ex- planation. /d. In its Partial Decertification Order, after re- viewing the Ninth Circuit's decisions in Wells Fargo I and Vinole and examining subsequentdis- trict court reactions, the Court decided that, with a modification of the class definition, this case could proceed as a class action. The Court held that Dol- Page 3 of 10 Page 2 lar Tree's payroll certifications provided common proof of how SMs were spending their time. Part. Decert. Order at 12-13. The Court reasoned that this common proof—which was lacking in other cases *N? where classes were decertified after Vi- nole and Wells Fargo | —would obviate the need for much individual testimony from SMs concern- ing how they spent their time. /d However, the Court narrowedthe class to include only those SMs whocertified “no” on a payroll certification form at least once during the class period. The Court reasoned that, in order to prove liability with regard to the SMs who always certified “yes,” Plaintiffs would need to show that these SMs werenot truth- ful when completing their payroll certifications. /d. Such credibility determinations would require indi- vidualized inquiries that would overwhelm the common issues in the case. /d. By narrowing the class, the Court sought to avoid this problem. FN2. See, eg, In re Wells Furgo Home Mortg. Overtine Pay Litig, 268 F.R.D. 604, 611 (N.D.Cal. Jan.t3, 2010) ( “Wells Fargo II” ) (denying class certification be- cause plaintiffs could not produce “common proof that would absolve this court from inquiring into how each [manager] spenttheir working day”). The Partial Decertification Order resulted in a class consisting of 273 members and defined as “all persons who were employed by Dollar Tree Stores, Inc. as California retail store managers at any time on or after December 12, 2004, and on or before May 26, 2009, and who responded ‘no’ at least once on Dollar Tree's weekly payroll certifica- tions.” /d. at 23. The class definition has not been altered further.N? FN3. On March 8, 2011, the Court granted in part Dollar Tree's Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery Requests. ECF No. 282 (“Mar. 8, 2011 Order”). The Court dis- missed the claims of eighty-nine class members who failed to respond to limited © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. Slip Copy, 2011 WL 2682967 (N.D.Cal.) (Cite as: 2011 WL 2682967 (N.D.Cal.)) discovery authorized by the Court despite multiple warnings that failure to respond might result in dismissal. /d The Court de- clined to dismiss twenty class members who did not receive the final warning letter sent by Plaintiffs’ counsel. The March 8, 2011 Order reduced the class to its current size of 184 members. The Court subsequently reviewed motions from Plaintiffs and Defendant addressing trial manage- ment issues, reviewed and denied a motion for re- consideration of the Partial Decertification Order filed by Plaintiffs, and held a May 27, 2011 hearing to discuss trial management issues. See ECF Nos. 277 (“Def.'s Trial Plan”), 290 (“Pls.' Trial Plan”), 301 (“Mot. for Recon.”). These developments, along with the Ninth Circuit's decision in Marlo v. United Parcel Serv., Inc., No. 09-56196, 2011 U.S.App. LEXIS 8664 (9th Cir. Apr. 28, 2011) ( “Marlo HI” ), made the Court increasingly con- cerned that individualized issues will predominate over class-wide issues if this case proceeds to trial as a class action. The Court thus decided to enter- tain further briefing from the parties regarding the propriety of continued class treatment. The Su- preme Court's recent decision in Wal-Mart Stores, Inc. v. Dukes, No. 10-277, 2011 U.S. LEXIS 4567 (June 20, 2011), has since heightened the Court's concems. Having considered the parties’ briefings, recent developments in the case, and recent devel- opments in the law ofclass actions, the Court finds that decertification of the class is warranted. IH. LEGAL STANDARD *3 The district court has the discretion to certi- fy a class under Federal Rule of Civil Procedure 23. See Molski v. Gleich, 318 F.3d 937, 946 (9th Cir.2003). Rule 23(a) requires that the plaintiff demonstrate (1) numerosity, (2) commonality, (3) typicality, and (4) fair and adequate representation of the class interest. Fed.R.Civ.P. 23(a). In addition to meeting these requirements, the plaintiff must also show that the lawsuit qualifies for class action status under one of the three criteria found in Rule Page 4 of 10 Page 3 23(b). Dukes, 2011 U.S. LEXIS 4567, at *12. A district court's order to grant class certifica- tion is subject to later modification, including class decertification. See Fed.R.Civ.P. 23(c)(I\(C) (“An order that grants or denies class certification may be altered or amended before final judgment.”). “If evidence not available at the time of certification disproves plaintiffs’ contentions that common is- sues predominate, the district court has the author- ity to modify or even decertify the class.” Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 579 (9th Cir.2010), rev'd on other grounds, No. 10-277, 2011 U.S. LEXIS 4567 (June 20, 2011). In considering the appropriateness of decerti- fication, the standard of review is the same as a mo- tion for class certification: whether the Rule 23 re- quirements are met. O'Connor yv. Boeing N. Am., Inc, 197 F.R.D. 404, 410 (C.D.Cal.2000). “Although certification decisions are not to focus on the merits of a plaintiffs claim, a district court reevaluating the basis for certification may consider its previous substantive rulings in the context of the history of the case, and may consider the nature and range of proof necessary to establish the class-wide allegations.” Marlo v. United Parcel Serv., Inc., 251 F.R.D. 476, 479 (N.D.Cal.2008) ( “Marlo I” ) (internalcitations omitted). IV. DISCUSSION The central issue in this case is whether Dollar Tree misclassified its SMs as exempt. Here, the Court previously ruled that Plaintiff had satisfied Rule 23(a) and certified the class under Rule 23(b)(3). See Orig. Cert. Order. Dollar Tree argues that continued certification under Rule 23(b)(3) is improper because Plaintiffs have failed to provide common proof of misclassification, and that there- fore individual inquiries will predominate at trial. FN4 Def.'s Br. at 1. Plaintiffs argue that there have been no new developments in the facts of this case or in the law that compel decertification. Pls.’ Br. at 4. The Court agrees with DollarTree. FN4. Doilar Tree also argues that Plaintiffs © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. Slip Copy, 2011 WL 2682967 (N.D.Cal.) (Cite as: 2011 WL 2682967 (N.D.Cal.)) fail to satisfy the commonality requirement of Rule 23(a). Because the Court finds that the predominance requirement is not met, it does not address whether Rule 23(a) is satisfied. Rule 23(b)(3) requires that “questions of law or fact commonto the members ofthe class predomin- ate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudic- ation of the controversy.” Fed.R.Civ.P. 23(b)(3). Among the issues central to the predominance in- quiry is whetherthe case, if tried, would present in- tractable management problems. Fed.R.Civ.P. 23(b)(3)(D). *4 Developments in this case and in the case law since the Court issued its Partial Decertification Order in September 2010 have persuaded the Court that individual issues predominate in this case and trial as a class action would present unmanageable difficulties. In particular, the basis for continued certification of the present class in the Court's Par- tial Decertification Order—the determination that the payroll certification forms could serve as reli- able common proof of how SMs were spending their time—is no longer tenable. Both parties have repeatedly attacked the reliability of the certifica- tion forms. Additionally, it has become clear to the Court that “the crux” of Plaintiffs' proof at trial will be representative testimony from a handful of class members. See ECF No. 290 (“Pls.’ Mot. for Pre-Trial Order’’) at 6. The appropriateness of such a trial plan was a questionable proposition under this circuit's case law at the time of the Court's Par- tial Decertification Order.'™* It is now untenable in light of the Ninth Circuit's decision in Marlo II and the Supreme Court's decision in Dukes. FNS. See, eg., Wells Fargo I, 268 F.R.D. at 612 (“[T]he court has been unable to locate any case in which a court permitted a plaintiff to establish the non-exempt status of class members, especially with re- spect to the outside sales exemption, Page 5 of 10 Page 4 through statistical evidence or representat- ive testimony.”); Beauperthuy v. 24 Hour Fitness USA, Inc., 2011 U.S. Dist. LEXIS 24768, *59-60 (N.D.Cal.2011) (rejecting the use of representative testimony where deposition testimony “show[ed] that for every manager who says one thing about his or her job duties and responsibilities, anothersays just the opposite.”). The Court begins by briefly reviewing the Cali- fornia labor law at issue in this case and then pro- ceeds to explain why continued class treatment is no longer appropriate. A. California's Executive Exemption in Class Ac- tions California law requires that all employees re- ceive overtime compensation and authorizes civil actions for the recovery of unpaid compensation. Cal. Lab.Code §§ 510, 1194. However, the law re- cognizes an exemption for “executive” employees who meet six criteria. To qualify as executive-ex- empt, an employee must: (1) managethe enterprise, a customarily recognized department, or subdivi- sion thereof; (2) direct the work of two or more oth- er employees; (3) have the authority to hire orfire, or have their recommendations to hire, fire, or pro- mote given weight; (4) exercise discretion and inde- pendent judgment; (5) be “primarily engaged” in exempt duties; and (6) earn a monthly salary equal to twice the state minimum wage for full-time em- ployment. Cal.Code Regs. tit. 8, § 11070 (AMD (a)-(f). The “primarily engaged” prong of the exemp- tion inquiry requires a week-by-week analysis of how each employee spent his or her time. Marlo II, 2011 U.S.App. LEXIS 8664, at *14. The applicable regulations state that in determining whether an em- ployee is “primarily engaged” in exempt work, “{t]he work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work ... shall be con- sidered.” Cal.Code Regs.tit. 8, § 11090 © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. Slip Copy, 2011 WL 2682967 (N.D.Cal.) (Cite as: 2011 WL 2682967 (N.D.Cal.)) (1)(A)C)(e). California courts have construed this requirement to mean that “the Court must determ- ine whether any given class members (or all the class members) spend more than 51% oftheir time on managerial tasks in any given workweek.” Dun- bar v. Albertson's, Inc., 141 Cal.App.4th 1422, 47 Cal.Rptr.3d 83, 86 (Ct.App.2006) (emphasis ad- ded). *5 In order to satisfy Rule 23(b)(3), Plaintiffs must provide commonproof that “misclassification was the rule rather than the exception.” Marlo II, 2011 U.S.App. LEXIS 8664, at *12. Thus, Plaintiffs must provide common proof that, among other things, class members were spending more than fifty-one percent of their time on managerial tasks in any given workweek. In its Partial Decerti- fication Order, the Court held that the payroll certi- fication forms could provide this proof. Subsequent developments have demonstrated that the certifica- tion forms cannot serve as reliable common proof and that Plaintiffs instead intend to rely on indi- vidual testimony by exemplar class membersat tri- al. B. Changes in the Legal Landscape Favor Decer- tification Two developments in the law of employment class actions since the Court issued its Partial De- certification Order bear heavily on the Court's de- cision that class treatment in this case is no longer proper. First, the Ninth Circuit's recent decision in Marlo II affirms the impropriety of relying on rep- resentative testimony where plaintiffs have provided no reliable means of extrapolating that testimony to the class as a whole. In Marlo IJ, the Ninth Circuit affirmed the decision of this district court decertifying a class of employees who alleged they were misclassified as executive-exempt. 2011 U.S.App. LEXIS 8664, at *17. The district court found that the plaintiffs had failed to satisfy Rule 23(b) (3)'s predominance requirement because they had failed to provide commonevidence of misclas- sification that would obviate the need for individu- Page 6 of 10 Page 5 alized inquiries. Marfo /, 251 F.R.D. at 485. The court explained that the plaintiffs’ primary evidence at trial would be the testimony of individual class members./d. at 486. The court concluded: Without more than this individual testimony, the Court cannot conceive how the overtime exemp- tion will be presented to the jury as a common is- sue for class-wide adjudication, as opposed to a number of individualized inquiries. There is a significant risk that the trial would become an un- manageable set of mini-trials on the particular in- dividuals presented as witnesses. /d. In affirming the district court's decision, the Ninth Circuit held that the plaintiffs' evidence did not support predominance, and that the district court did not abuse its discretion by holding that representative testimony did not support a class- wide determination. Marlo I, 2011 U.S.App. LEX- IS 8664, at *15—-17. As explained below, given that the payroll certification forms in the instant case can no longer be considered reliable proof, Plaintiffs' evidence in this case closely parallels that in Marlo / and fails to establish predominance for the samereasons. Second, the United States Supreme Court's re- cent decision in Dukes provides a forceful affirma- tion of a class action plaintiffs obligation to pro- duce common proof of class-wide liability in order to justify class certification. In Dukes, the Court re- versed certification of a class of current and former female Wal-Mart employees who alleged that Wal-Mart discriminated against them on the basis of their sex by denying them equal pay and promo- tions in violation of Title VII of the Civil Rights Act of 1964.2011 U.S. LEXIS 4567, at *37~38. The Court found that the plaintiffs had failed to satisfy the commonality requirement of Rule 23(a). /d. The Court emphasized that it was not enough to pose common questions; rather, those questions must be subject to commonresolution. /d at *19. The evid- ence of commonality the plaintiffs offered—consisting of statistical evidence of pay and promotion disparities, anecdotes from class © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. Slip Copy, 2011 WL 2682967 (N.D.Cal.) (Cite as: 2011 WL 2682967 (N.D.Cal.)) members, and the testimony of a sociologist who opined that Wal-Mart had a culture of sex discrim- ination—failed to provide the “glue” necessary to render all class members’ claims subject to common resolution. /d . at *27-34. Similarly here, as ex- plained below, Plaintiffs have failed to provide common proof to serve as the “glue” that would al- low a class-wide determination of how class mem- bers spent their time on a weekly basis. In the ab- sence of such proof, the commonality threshold, let alone the predominance inquiry of Rule 23(b)(3), has not been met. *6 Also of importance to this case, Dukes re- jected a “Trial by Formula” approach to damages akin to that which Plaintiffs have proposed here. /d. at *48-51. The Dukes plaintiffs intended to determ- ine each class member's damages using a formulaic model approved by the Ninth Circuit in Hilao v. Es- fate of Marcos, 103 F.3d 767, 782-87 (9th Cir.1996). fd. In Hilao, compensatory damages for 9,541 class members were calculated by selecting 137 claims at random, referring those claims to a special master for valuation, and then extrapolating the validity and value of the untested claims from the sample set. See Dukes, 603 F.3d at 625-26. The Ninth Circuit in Dukes concluded that a similar pro- cedure could be used by allowing Wal-Mart “to present individual defenses in the randomly selec- ted sample cases, thus revealing the approximate percentage of class members whose unequal pay or nonpromotion was due to something other than gender discrimination.” /d. at 627 n. 5. The Su- preme Court rejected this “novel project” as a “Trial by Formula” that would deprive Wal-Mart of its right to assert statutory defenses to the indi- vidual claims of all class members. Dukes, 2011 U.S. LEXIS 4567, at *48-51. Here, Plaintiffs rely on Hilao to propose determining individualized damages “in a formulaic manner.” Pls.' Mot. for Pre-Trial Order at 4 n. 10. In light of the Supreme Court's rejection of this approach, it is not clear to the Court how, even if class-wide liability were es- tablished, a week-by-week analysis of every class member's damages could be feasibly conducted. Page 7 of 10 Page 6 C. Recent Developments in this Case Compel De- certification Since issuing its Partial Decertification Order, the Court has learned that the payroll certification forms cannot serve as reliable common proof of misclassification, and that Plaintiffs intend to rely primarily on individual testimony by exemplar class members to prove their case. These develop- ments lead the Court to conclude that individual is- sues will predominateattrial. 1. The Payroll Certification Forms Can No Longer Be Considered Reliable Common Proof In its Partial Decertification Order, the Court found that the payroll certifications appeared reli- able based on the analysis of Dollar Tree's expert Robert Crandall. See Part. Decert. Order at 17-20. In making this determination, however, the Court expressly noted that “[t]he Court is not bound by these determinations as the litigation progresses. If persuaded by the parties to do so, the Court can re- vise its determination concerning the overall reliab- ility of the certifications.” /d at 20. The Court has since learned that approximately sixty percent of class members stated under oath that either (1) they were not truthful when submitting their weekly payroll certifications, or (2) their “yes” responses did not in fact indicate that they spent more than fifty percent of their actual work time performing the tasks listed on the form. ECF No. 298-1 (“Vandall Decl. ISO Objections to Ngo Decl.”) at § 4.*’e An additional twenty-five percent of the class could not recall whether they were truthful when submitting their weekly certifications or provided no response atall. /d. FN6. When it issued the Partial Decertific- ation Order, the Court was only presented with evidence that ten class members in- dicated they were not truthful when sub- mitting their payroll certifications. See Part. Decert. Order at 17. Dollar Tree has subsequently provided evidence that 111 class members indicated the same. Vandall Decl. ISO Objections to Ngo Decl. at § 4. © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. Slip Copy, 2011 WL 2682967 (N.D.Cal.) (Cite as: 2011 WL 2682967 (N.D.Cal.)) *7 In addition, Plaintiffs themselves have ar- gued on numerous occasions since the Court's Par- tial Decertification Order that the certifications are not an accurate indication of how class spent their time. They have made this argument despite the re- peated admonition that “if Plaintiffs intend to argue that the certifications do not provide a reliable measure of weeks when SMs were not spending most of their time performing managerial tasks, then it is not clear to the Court how this case can proceed as a class action.” Part. Decert. Order at 17; see also ECF No. 294 (“Order Granting Leave to File Mot. for Recons.”) at 2 (same). Indeed, in opposition to Defendant's motion for summary ad- judication, Plaintiffs argued that “the certification responses are clearly unreliable.” Runnings action, ECF No. 337 (“Pls Opp. To MSA”) at 10. Plaintiffs argued that class members were confused about how to complete the forms, that the analysis of Defendant's expert Crandall was based on old data compiled prior to the narrowing of the class, and that there are a large number of weeks for which class members did not fill out certification forms. /d. Similarly, in Plaintiffs' motion for recon- sideration filed on April 22, 2011, Plaintiffs argued that “[rJecent events ... have revealed that Dollar Tree's [payroll certification] records are wrought with problems and have therefore provided an unre- liable basis by which to establish eligibility for class membership.” ECF No. 301 at 1. Plaintiffs now argue that the certification forms are indeed reliable common proof of how class members were spending their time. Pls.’ Br. at 8-10. Their argument, however, amounts to nothing more than pointing to the Court's determination in the Partial Decertification Order and noting that Dollar Tree has used the process for years. /d. This does nothing to overcomethefact that a majority of class members have stated under oath that their cer- tifications were not truthful or did not accurately reflect the time they actually spent performing the tasks listed on the form. in sum, the Court's certification of the current Page 8 of 10 Page 7 class was premised on the reliability of the payroll certifications as common proof of misclassification. Subsequent briefing by both parties has made this premise no longer sustainable. As a result, it is no longer possible to view the negative responsesas, in the words of the Supreme Court, the “glue” that holds all of the individualized experiences of the class members together. See Dukes, 2011 US. LEXIS 4567, at *24. 2. Representative Testimony Cannot Properly Serve as Common Proof of Class-wide Liability in This Case Plaintiffs indicated in their trial plan that they intend to make representative testimony “the crux” of their case. Pls.' Mot. for Pretrial Order at 6 (“exemplar plaintiffs' testimony will be the crux of the Plaintiffs’ case”); id. at 8 (“the liability issues in this case should be driven by the actual work per- formed by the class members as evidenced by the exemplar plaintiffs’ testimony .”). They now con- tend that this Court already decided that represent- ative testimony of exemplar plaintiffs would be binding on the rest of the class when it chose to cer- tify this case as a class action. Pls.’ Br. at 19. Ac- cording to Plaintiffs, “this Court should simply or- der that the testimony of five exemplar plaintiffs will be extrapolated to the class as a whole.” /d. The Court declines to do so. In its Partial Decerti- fication Order, the Court noted that “representative testimony seems appropriate as part of Plaintiffs’ case-in-chief.” Part. Decert. Order at 21 n. 5. However, as the order makes clear, this statement was premised on the determination that the payroll certifications provided the glue necessary to justify extrapolation from a subset of class members to the class as a whole. As explained above, this conclu- sion is no longer tenable. *8 Courts in this district have repeatedly decer- tified classes in overtime exemption cases where Plaintiffs have provided no reliable means of extra- polating from the testimony of a few exemplar class members to the class as a whole. In Marlo J, the Court explained that: © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. Slip Copy, 2011 WL 2682967 (N.D.Cal.) (Cite as: 2011 WL 2682967 (N.D.Cal.)) Plaintiff's evidence at trial primarily would be in- dividual [class members'] testimony.... The ex- empt/non-exempt inquiry focuses on what an em- ployee actually does. The declarations and depos- ition testimony of [class members] submitted by the parties suggest variations in job duties... Without more than this individual testimony, the Court cannot conceive how the overtime exemp- tion will be presented to the jury as a commonis- sue for class-wide adjudication, as opposed to a numberofindividualized inquiries. 251 F.R.D. at 486. The court decertified the class because the plaintiff failed “to provide com- mon evidence to support extrapolation from indi- vidual experiences to a class-wide judgment that is not merely speculative.” /d The Ninth Circuit af- firmed, as explained supra. See also Wells FargoIl, 268 F.R.D. at 612 (denying class certification in overtime exemption case because differences among class members rendered representative testi- mony insufficient common proof of misclassifica- tion); Whiteway v, FedEx Kinkos Office and Print Servs., Inc., No. 05-CV-02320 (N.D.Cal. Oct. 2, 2009) (decertifying class in overtime exemption case because plaintiff could not show how testi- mony of 10-20 class members could be extrapol- ated to the class). Because it is no longer viable to consider the payroll certifications reliable common proof of how class members were spending their time, there is no basis for distinguishing this case from those in which this district has found certification improper. As in those cases, the failure of Plaintiffs here to offer a basis for extrapolation of representative testimony to the class as a whole is fatal to contin- ued certification. 3. Plaintiffs’ Other Evidence Does Not Provide Common Proof of How Class Members Spent Their Time Plaintiffs contend that, even if the payroll certi- fication forms are not reliable, class-wide ltability may be tried by a plethora of other common evid- ence. Pls.’ Br. at 10. Plaintiffs have presented evid- Page 9 of 10 Page 8 ence of Dollar Tree's centralized operational and human resources hierarchy. See Runnings action, ECF No. 124 (“Pls.' Am. Mot. for Class Cert.”). They have likewise presented evidencethatall store managers are given uniform training and training-re- lated materials, use the same on-the-job tools, re- ceive “daily planners” that require them to perform certain tasks, and are subject to other Dollar Tree policies intended to standardize the experiences of all store managers. /d. While this evidence does provide some proof that class members shared a number of common employment experiences, it does not provide com- mon proof of whether they were spending more than fifty percent of their time performing exempt tasks. As the Ninth Circuit explained in Marlo If, the existence of “documents explaining the activit- ies that [managers] are expected to perform, and procedures that [managers] should follow ... does not establish whether [the managers] actually are ‘primarily engaged’ in exempt activities during the course of the workweek.” 2011 U.S.App. LEXIS 8664, at *13. This evidence is therefore insufficient to establish that common issues will predominate over individualized onesattrial. V. CONCLUSION *9 For the foregoing reasons, the Court finds that continued class treatment is not appropriate in this case and DECERTIFIES the class. The Court invites Class Counsel to file a motion to equitably toll the statute of limitations on the misclassifica- tion claims of former class members to preserve their right to pursue individual claims against Dol- lar Tree. The Court encourages the parties to re- solve this issue by stipulation. The parties shall appear for a Case Manage- ment Conference on September 9, 2011 at 10:00 a.m. in Courtroom 1, on the 17th floor, U .S. Court- house, 450 Golden Gate Avenue, San Francisco, CA 94102. IT IS SO ORDERED. © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 10 of 10 Page 9 Slip Copy, 2011 WL 2682967 (N.D.Cal.) (Cite as: 2011 WL 2682967 (N.D.Cal.)) N.D.Cal.,201 1. Cruz v. Dollar Tree Stores, Inc. Slip Copy, 2011 WL 2682967 (N.D.Cal.) END OF DOCUMENT © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES Iam employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is: 2029 Century Park East, Suite 2400, Los Angeles, CA 90067. On July 25, 2011, I served the foregoing documentdescribed as: BRINKER’S SUPPLEMENTALBRIEF RE: WAL-MART y. DUKES AND CRUZ vy. DOLLAR TREE STORESon the interested parties below, using the following means: SEE ATTACHED SERVICE LIST i] BY UNITED STATES MAIL enclosed the documentin a sealed envelope or package addressed to the respective addresses of the parties stated above andplaced the envelopes for collection and mailing, following our ordinary business practices. I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. On the same daythat correspondenceis placed for collection and mailing,it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid at Los Angeles, California. J (STATE) I declare under penalty of perjury under the lawsofthe State of California that the foregoingis true and correct. Executed on July 25, 2011, at Los Angeles, California. “oo ; oN / Lo, <( \ ff . \ Us a T CC {ce \ SySerena L. Steiner NONE ee ~ [Print Name ofPerson Executing Proof] {Signatlrey 7 SERVICE LIST L. Tracee Lorens, Esq. Wayne Alan Hughes,Esq. Lorens & Associates, APLC 701 B Street, Suite 1400 San Diego, CA 92101 Tel: 619.239.1233 Fax: 619.239.1178 [Attorneys for Real Parties in Interest] Kimberly A. Kralowec, Esq. The Kralowec Law Group 188 The Embarcadero Suite 800 San Francisco, CA 94105 Tel: 415.546.6800 Fax: 415.546.6801 [Attorneys for Real Parties in Interest] Timothy D. Cohelan, Esq. Michael D. Singer, Esq. Cohelan, Khoury & Singer 605 C Street, Suite 200 San Diego, CA 92101-5305 Tel: 888.808.8358 Fax: 619.595.3000 [Attorneys for Real Parties in Interest] William Turley, Esq. The Turley Law Firm, APLC 625 Broadway, Suite 625 San Diego, CA 92101 Tel: 619.234.2833 Fax: 619.234.4048 [Attorneys for Real Parties in Interest] California Court of Appeal Fourth Appellate District, Div. One Symphony Towers 750 B Street, Suite 300 San Diego, CA 92101 Tel: 619.645.2760 [Case No. D049331] Hon. David B. Oberholtzer San Diego Superior Court 330 W. Broadway — San Diego, CA 92101 Tel: 858.634.1509 [Case No. GIC834348] Fred W. Alvarez Michael D. Schlemmer Wilson Sonsini Goodrich & Rosati 650 Page Mill Road Palo Alto, CA 94304 Tel: 650.493.9300 Fax: 650.493.6811 [Attorneys for Amicus Curiae TechNet] Yi-Chin Ho Michael M.Berger Benjamin G. Shatz Andrew L. Satenberg Manatt, Phelps & Phillips, LLP 11355 West Olympic Boulevard Los Angeles, CA 90064 Tel: 310.312.4000 Fax: 310.312.4224 [Attorneys for Amicus Curiae Chinese Daily News, Inc.] Paul Grossman Paul W. Cane,Jr. Katherine C. Huibonhoa Rishi Sharma Paul, Hastings, Janofsky & Walker LLP 55 Second Street, 24th Floor San Francisco, CA 94105 Tel: 415.856.7000 Fax: 415.856.7100 [Attorneys for Amicus Curiae California Employment Law Council] Donald M.Falk Mayer Brown LLP Two Palo Alto Square, Suite 300 Palo Alto, CA 94306 Tel: 650.331.2000 Fax: 650.331.2060 [Attorneys for Amici Curiae American Trucking Associations, Inc. and California Trucking Association] Robin L. Unander Law Office of Robin L. Unander 924 AnacapaStreet, Suite 21 Santa Barbara, CA 93101 Tel: 805.962.5949 Fax: 805.962.2068 [Attorney for Amicus Curiae California Automotive Business Coalition] Lawrence Foust Senior Vice President and General Counsel Childrens Hospital Los Angeles 4650 Sunset Boulevard, Mailstop #5 Los Angeles, CA 90027 Tel: 323.361.2461 [Attorney for Amicus Curiae Childrens Hospital Los Angeles] Christine T. Hoeffner Ballard Rosenberg Golper & Savitt, LLP 500 North Brand Blvd., 20th Floor Glendale, CA 91203 Tel: 818.508.3700 Fax: 818.506.4827 [Attorneys for Amicus Curiae Childrens Hospital Los Angeles] John S. Miller, Jr. Dwayne P. McKenzie Cox, Castle & Nicholson LLP 2049 Century Park East, Suite 2800 Los Angeles, CA 90067 Tel: 310.277.4222 Fax: 310.277.7889 [Attorneys for Amicus Curiae Associated General Contractors of California, Inc.] Fred J. Hiestand 1121 L Street, Suite 404 Sacramento, CA 95814 Tel: 916.448.5100 [Attorney for Amicus Curiae Civil Justice Association of California] Richard Simmons Guylyn R. Cummins Sheppard, Mullin, Richter & Hampton LLP 501 West Broadway,19th Floor San Diego, CA 92101 Tel: 619.338.6500 Fax: 619.234.3815 [Attorneys for Amici Curiae Employers Group, California Retailers Association, California Hospital Association, California Restaurant Association and National Federal of Independent Business Small Business Legal Center] Theodore J. Boutrous, Jr. Julian W. Poon Kirsten R. Galler David S. Han Blaine H. Evanson Gibson, Dunn & Crutcher LLP 333 South Grand Avenue Los Angeles, CA 90071 Tel: 213.229.7000 Fax: 213.229.7520 [Attorneys for Amici Curiae Chamber of Commerceofthe United States of America and California Chamberof Commerce] Robin S. Conrad Shane Brennan Kawka National ChamberLitigation Center, Inc. 1615 H Street, NW Washington, DC 20062 Tel: 202.463.5337 [Attorneys for Amicus Curiae Chamber of Commerceofthe United States ofAmerica] Robert R. Roginson Division of Labor Standards Enforcement Departmentof Industrial Relations State of California 455 Golden Gate Avenue, 9th Floor San Francisco, CA 94102 Tel: 415.703.5300 [Attorneys for Amici Curiae Division ofLabor Standards Enforcementof the DepartmentofIndustrial Relations of the State of California and State Labor Commissioner Angela Bradstreet] Julia A. Dunne Lena K. Sims Matthew S. Dente Littler Mendelson 501 West Broadway, Suite 900 San Diego, CA 92101 Tel: 619.232.0441 Fax: 619.232.4302 [Attorneys for Amici Curiae National Retail Federation, National Council of Chain Restaurants, Contain-A-Way, Inc., USA Waste of California, Inc., California Building Industry Association, California Professional Association ofSpecialty Contractors, Western Growers Association, AmericanStaffing Association, California Hotel & Lodging Association and National Association ofManufacturers] Allan G. King Littler Mendelson 2001 Ross Avenue Suite 1500, Lock Box 116 Dallas, TX 75201 Tel: 214.880.8100 Fax: 214.880.0181 [Attorneys for Amici Curiae National Retail Federation, National Council of Chain Restaurants, Contain-A- Way, Inc., USA Waste of California, Inc., California Building Industry Association, California Professional Association ofSpecialty Contractors, Western Growers Association, American Staffing Association, California Hotel & Lodging Association and National Association ofManufacturers] Richard H. Rahm Littler Mendelson 650 California Street, 20th Floor San Francisco, CA 94108 Tel: 415.433.1940 Fax: 415.399.8490 [Attorneys for Amici Curiae National Retail Federation, National Council of Chain Restaurants, Contain-A-Way, Inc., USA Waste of California, Inc., California Building Industry Association, California Professional Association ofSpecialty Contractors, Western Growers Association, American Staffing Association, California Hotel & Lodging Association and National Association ofManufacturers] Lee Burdick John Morris Higgs, Fletcher & Mack LLP 401 West A Street, Suite 2600 San Diego, CA 92101 Tel: 619.236.1551 Fax: 619.696.1410 [Attorneys for Amicus Curiae San Diego Regional Chamberof Commerce] Robert M.Pattison Joel P. Kelly JoAnna L. Brooks Timothy C. Travelstead Jackson Lewis LLP 199 FremontStreet, 10th Floor San Francisco, CA 94105 Tel: 415.394.9400 Fax: 415.394.9401 [Attorneys for Amici Curiae San Francisco Bay Area Chapter, San Diego Chapter, Sacramento Chapter, Southern California (“ACCA-SoCal”) Chapter and Employment and Labor Law Committee of the Association of Corporate Counsel lan Herzog Susan E. Abitanta Law Offices of Ian Herzog 233 Wilshire Boulevard, Suite 550 Santa Monica, CA 90401 Tel: 310.458.6660 Fax: 310.458.9065 [Attorneys for Amici Curiae Morry Brookler and the Putative Brookler Class] Donald C.Carroll Charles P. Scully, I Law Offices of Carroll & Scully, Inc. 300 MontgomeryStreet, Suite 735 San Francisco, CA 94104 Tel: 415.362.0241 Fax: 415.362.3384 [Attorneys for Amicus Curiae California Labor Federation, AFL-CIO] Brad Seligman Impact Fund 125 University Avenue, Suite 102 Berkeley, CA 94710 Tel: 510.845.3473 Fax: 510.845.3654 [Attorneys for Amici Curiae Impact Fund, Asian Law Caucus, Asian Pacific American Legal Center, Equal Rights Advocates, Lawyers’ Committee for Civil Rights, Legal Aid Society - Employment Law Center, Mexican American Legal Defense & Educational Fund, Public Advocates and Women’s Employment Rights Clinic of Golden Gate University School ofLaw David A. Rosenfeld William A. Sokol Theodore Franklin Patricia M. Gates Weinberg, Roger & Rosenfeld 1001 Marina Village Parkway Suite 200 Alameda, CA 94501 Tel: 510.337.1001 Fax: 510.337.1023 [Attorneys for Amici Curiae Alameda County Central Labor Council, Bricklayers & Allied Craftworkers Local Union No. 3, California Conference ofMachinists, Communications Workers ofAmerica, Contra Costa County Central Labor Council, Northern California Carpenters Regional Council, South Bay Central Labor Council, and United Food & Commercial Workers International Union Local 5] Clare Pastore USC Gould School of Law 600 Exposition Boulevard Los Angeles, CA 90089 Tel: 213.821.4410 [Attorneys for Amici Curiae Bet Tzedek Legal Services, Asian Pacific American Legal Center ofSouthern California, California Rural Legal Assistance Foundation, Centro Legal de La Raza, La Raza Centro Legal, Legal Aid Society - Employment Law Center, Maintenance Cooperation Trust Fund, National Employment Law Project, Stanford Community LawClinic and Wage Justice Center] Kevin Kish Bet Tzedek Legal Services 3435 Wilshire Boulevard, Suite 470 Los Angeles, CA 90010 Tel: 213.384.3243 [Attorneys for Amici Curiae Bet Tzedek Legal Services, Asian Pacific American Legal Center ofSouthern California, California Rural Legal Assistance Foundation, Centro Legal de La Raza, La Raza Centro Legal, Legal Aid Society - Employment Law Center, Maintenance Cooperation Trust Fund, National Employment Law Project, Stanford Community Law Clinic and Wage Justice Center] Bryan Schwartz Bryan Schwartz Law 180 Grand Avenue,Suite 1550 Oakland, CA 94612 Tel: 888.891.8489 Fax: 510.444.9301 [Attorneys for Amici Curiae California Employment Lawyers Association and Consumer Attorneys of California] David M.Arbogast Arbogast & Berns LLP 6303 Owensmouth Avenue 10th Floor Woodland Hills, CA 91367-2263 Tel: 818.961.2000 Fax: 818.936.0232 [Attorneys for Amici Curiae California Employment Lawyers Association and ConsumerAttorneys of California] Miles E. Locker Locker Folberg LLP 235 Montgomery Street, Suite 835 San Francisco, CA 94101 Tel: 415.962.1626 Fax: 415.962.1628 [Attorneys for Amici Curiae Barry Broad and Miles E. Locker] Barry Broad Broad & Gusman, LLP 1127 11th Street, Suite 501 Sacramento, CA 95814 Tel: 916.442.5999 Fax: 916.442.3209 [Attorneys for Amici Curiae Barry Broad and Miles E. Locker] Timothy G. Williams Pope, Berger & Williams, LLP 3555 5th Avenue, 3rd Floor San Diego, CA 92103 Tel: 619.234.1222 Fax: 619.236.9677 [Attorneys for Amici Curiae Gelasio Salazar and Saad Shammas] Michael J. Smith Lora Jo Foo Danielle A. Lucido Worksafe Law Center 171 12th Street, Third Floor Oakland, CA 94607 Tel: 510.302.1011 Fax: 510.663.5132 [Attorneys for Amici Curiae Worksafe Law Center, La Raza Centro Legal, the Legal Aid Society - Employment Law Center, Southern California Coalition for Occupational Safety & Health and Watsonville Law Center]
