Case: 8:19-cv-909 As of: 09/23/2019 07:44 PM PDT 1 of 5
ACCO,(DFMx),DISCOVERY,MANADR
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Southern Division − Santa Ana)
CIVIL DOCKET FOR CASE #: 8:19−cv−00909−JLS−DFM

Yunghui Chen v. Western Digital Corporation et al Assigned to: Judge Josephine L. Staton Referred to: Magistrate Judge Douglas F. McCormick Cause: 28:1331 Fed. Question: Employment Discrimination
Plaintiff

Date Filed: 05/14/2019 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Yunghui Chen on behalf of herself and all others similarly situated

represented by Felicia Medina Medina Orthwein LLP 1322 Webster Street Suite 200 Oakland, CA 94612 510−679−2145 Fax: 510−217−3580 Email: fmedina@medinaorthwein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aashish Y Desai Desai Law Firm PC 3200 Bristol Street Suite 650 Costa Mesa, CA 92626 949−614−5830 Fax: 949−271−4190 Email: aashish@desai−law.com ATTORNEY TO BE NOTICED

Danielle Anne Fuschetti Sanford Heisler Sharp LLP 111 Sutter Street Suite 975 San Francisco, CA 94104 415−795−2022 Fax: 415−795−2021 Email: dfuschetti@sanfordheisler.com ATTORNEY TO BE NOTICED

David W Sanford Sanford Heisler Sharp LLP 1350 Avenue of the Americas 31st Floor New York, NY 10019 646−402−5656 Fax: 646−402−5651 Email: dsanford@sanfordheisler.com PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin H Sharp Sanford Heisler Sharp LLP 611 Commerce Street Suite 3100 Nashville, TN 37203 615−434−7001 Fax: 615−434−7020 Email: ksharp@sanfordheisler.com PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant

Case: 8:19-cv-909 As of: 09/23/2019 07:44 PM PDT 2 of 5

Western Digital Corporation

represented by Apalla U Chopra OMelveny and Myers LLP 400 South Hope Street Los Angeles, CA 90071−2899 213−430−6000 Fax: 213−430−6407 Email: achopra@omm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susannah Kelly Howard OMelveny and Myers LLP Two Embarcadero Center 28th Floor San Francisco, CA 94111 415−984−8700 Fax: 415−984−8701 Email: showard@omm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Western Digital Technologies, Inc.

represented by Apalla U Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susannah Kelly Howard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/14/2019 05/14/2019 05/14/2019 05/14/2019 05/14/2019
05/14/2019
05/15/2019

# Docket Text
1 COMPLAINT Receipt No: 0973−23739472 − Fee: $400, filed by Plaintiff Yunghui Chen. (Attorney Danielle Anne Fuschetti added to party Yunghui Chen(pty:pla))(Fuschetti, Danielle) (Entered: 05/14/2019)
2 CIVIL COVER SHEET filed by Plaintiff Yunghui Chen. (Fuschetti, Danielle) (Entered: 05/14/2019)
3 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening) 1 , Civil Cover Sheet (CV−71) 2 filed by Plaintiff Yunghui Chen. (Fuschetti, Danielle) (Entered: 05/14/2019)
4 NOTICE of Interested Parties filed by Plaintiff Yunghui Chen, identifying Western Digital Corporation, Western Digital Technologies, Inc.. (Fuschetti, Danielle) (Entered: 05/14/2019)
5 STIPULATION to Exceed Page Limitation as to Plaintiff's Memorandum of Points and Authorities in Support of Motion for Preliminary Approval of Class Settlement filed by Plaintiff Yunghui Chen. (Attachments: # 1 Proposed Order)(Fuschetti, Danielle) (Entered: 05/14/2019)
6 NOTICE OF MOTION AND MOTION for Settlement Approval of Class and Collective Action Settlement filed by Plaintiff Yunghui Chen. Motion set for hearing on 7/1/2019 at 01:30 PM before Judge CVRecovery Case CRStatistics Unassigned. (Attachments: # 1 Memorandum, # 2 Declaration, # 3 Declaration, # 4 Declaration, # 5 Declaration) (Fuschetti, Danielle) (Entered: 05/14/2019)
7 NOTICE of Appearance filed by attorney Apalla U Chopra on behalf of Defendants Western Digital Corporation, Western Digital Technologies, Inc. (Attorney Apalla U Chopra added to party Western Digital Corporation(pty:dft), Attorney Apalla U Chopra added to party Western Digital Technologies, Inc.(pty:dft))(Chopra, Apalla) (Entered: 05/15/2019)

Case: 8:19-cv-909 As of: 09/23/2019 07:44 PM PDT 3 of 5

05/15/2019 05/15/2019 05/15/2019 05/15/2019 05/15/2019
05/15/2019 05/15/2019 05/15/2019 05/16/2019 05/22/2019 05/22/2019 05/29/2019 06/04/2019

8 NOTICE of Appearance filed by attorney Susannah Kelly Howard on behalf of Defendants Western Digital Corporation, Western Digital Technologies, Inc. (Attorney Susannah Kelly Howard added to party Western Digital Corporation(pty:dft), Attorney Susannah Kelly Howard added to party Western Digital Technologies, Inc.(pty:dft))(Howard, Susannah) (Entered: 05/15/2019)
9 NOTICE OF ASSIGNMENT to District Judge James V. Selna and Magistrate Judge Douglas F. McCormick. (et) (Entered: 05/15/2019)
10 NOTICE TO PARTIES OF COURT−DIRECTED ADR PROGRAM filed. (et) (Entered: 05/15/2019)
11 21 DAY Summons Issued re Complaint (Attorney Civil Case Opening) 1 as to Defendants Western Digital Corporation, Western Digital Technologies, Inc. (et) (Entered: 05/15/2019)
12 NOTICE OF PRO HAC VICE APPLICATION DUE for Non−Resident Attorney David Sanford. A document recently filed in this case lists you as an out−of−state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G−64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (et) (Entered: 05/15/2019)
13 INITIAL ORDER FOLLOWING FILING OF COMPLAINT ASSIGNED TO JUDGE SELNA (lb) (Entered: 05/15/2019)
14 PROOF OF SERVICE filed by Plaintiff Yunghui Chen, re Stipulation to Exceed Page Limitation, 5 , Complaint (Attorney Civil Case Opening) 1 , Certificate/Notice of Interested Parties 4 , Civil Cover Sheet (CV−71) 2 , NOTICE OF MOTION AND MOTION for Settlement Approval of Class and Collective Action Settlement 6 , Summons Request 3 served on 5/15/2019. (Fuschetti, Danielle) (Entered: 05/15/2019)
15 *NOTE: CHANGES MADE BY THE COURT* ORDER TO EXCEED PAGE LIMITATIONS FOR PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT 5 by Judge James V. Selna. (es) (Entered: 05/16/2019)
16 PROOF OF SERVICE filed by Plaintiff Yunghui Chen, re Notice of Assignment to United States Judges(CV−18) − optional html form 9 , Notice to Parties of Court−Directed ADR Program (ADR−8) − optional html form 10 , Initial Order upon Filing of Complaint − form only 13 served on 5/16/2019. (Fuschetti, Danielle) (Entered: 05/16/2019)
17 APPLICATION of Non−Resident Attorney David W. Sanford to Appear Pro Hac Vice on behalf of Plaintiff Yunghui Chen (Pro Hac Vice Fee − $400 Fee Paid, Receipt No. 0973−23787453) filed by plaintiff Yunghui Chen. (Attachments: # 1 Proposed Order) (Attorney Aashish Y Desai added to party Yunghui Chen(pty:pla)) (Desai, Aashish) (Entered: 05/22/2019)
18 ORDER by Judge James V. Selna, GRANTING 17 Non−Resident Attorney David W. Sanford APPLICATION to Appear Pro Hac Vice on behalf of Yunghui Chen, designating Aashish Y. Desai as local counsel. (es) (Entered: 05/23/2019)
19 Amendment to NOTICE OF MOTION AND MOTION for Settlement Approval of Class and Collective Action Settlement 6 Amended Memorandum of Points and Authorities filed by Plaintiff Yunghui Chen. (Sanford, David) (Entered: 05/29/2019)
20 ORDER TO REASSIGN CASE due to self−recusal pursuant to General Order 19−03 by Judge James V. Selna. Case transferred from Judge James V. Selna to the calendar of Judge Josephine L. Staton for all further proceedings. Case number now reads as SACV19−00909 JLS( DFMx). (lwag) (Entered: 06/04/2019)

Case: 8:19-cv-909 As of: 09/23/2019 07:44 PM PDT 4 of 5

06/05/2019 06/05/2019 06/07/2019
06/07/2019 07/15/2019 08/06/2019 08/08/2019
08/08/2019 08/14/2019 08/14/2019 08/29/2019 08/29/2019 08/29/2019

21 INITIAL STANDING ORDER FOR CASES ASSIGNED TO JUDGE JOSEPHINE L. STATON (tg) (Entered: 06/05/2019)
22 NOTICE OF ERRATA filed by Plaintiff Yunghui Chen. correcting NOTICE OF MOTION AND MOTION for Settlement Approval of Class and Collective Action Settlement 6 (Attachments: # 1 Exhibit Corrected Exhibit A to Declaration of David Sanford in Support of Unopposed Motion for Preliminary Approval of Class Settlement)(Sanford, David) (Entered: 06/05/2019)
23 TEXT ONLY ENTRY (IN CHAMBERS) ORDER CONTINUING HEARING: On the Courts own motion, the hearing re Plaintiff's Unopposed Motion for Preliminary Approval of Class Settlement 6 is ordered CONTINUED from July 1, 2019 to August 16, 2019, at 10:30 a.m. before Judge Josephine L. Staton.THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (tg) TEXT ONLY ENTRY (Entered: 06/07/2019)
24 WAIVER OF SERVICE Returned Executed filed by Plaintiff Yunghui Chen. upon All Defendants. Waiver of Service signed by Apalla Chopra. (Sanford, David) (Entered: 06/07/2019)
25 Joint STIPULATION Extending Time to Answer the complaint as to Western Digital Technologies, Inc. answer now due 8/14/2019; Western Digital Corporation answer now due 8/14/2019, re Complaint (Attorney Civil Case Opening) 1 filed by defendants Western Digital Technologies, Inc.; Western Digital Corporation.(Howard, Susannah) (Entered: 07/15/2019)
26 APPLICATION of Non−Resident Attorney Kevin H. Sharp to Appear Pro Hac Vice on behalf of Plaintiff Yunghui Chen (Pro Hac Vice Fee − $400 Fee Paid, Receipt No. 0973−24213179) filed by plaintiff Yunghui Chen. (Attachments: # 1 Proposed Order) (Desai, Aashish) (Entered: 08/06/2019)
27 MINUTE IN CHAMBERS ORDER (10 Requesting Supplemental Briefing; and (2) Continuing Hearing on Motion for Preliminary Approval (Doc. 6) by Judge Josephine L. Staton: The Court ORDERS Plaintiff to file supplemental briefing, no longer than ten (10) pages in length and within twenty−one (21) days of this Order. Plaintiff is further ORDERED to file the side agreement for the Court's review. Plaintiff may do so under seal without further order of the Court. Finally, in light of the foregoing, the Court CONTINUES the hearing on Plaintiff's Motion 6 to 10/11/2019 at 10:30 AM. (jp) (Entered: 08/08/2019)
28 ORDER by Judge Josephine L. Staton: granting 26 Non−Resident Attorney Kevin H Sharp APPLICATION to Appear Pro Hac Vice on behalf of Plaintiff Yunghui Chen, designating Aashish Y Desai as local counsel. (jp) (Entered: 08/08/2019)
29 ANSWER to Complaint (Attorney Civil Case Opening) 1 filed by Defendants Western Digital Corporation, Western Digital Technologies, Inc..(Howard, Susannah) (Entered: 08/14/2019)
30 NOTICE of Interested Parties filed by Defendants Western Digital Corporation, Western Digital Technologies, Inc., (Howard, Susannah) (Entered: 08/14/2019)
31 SEALED DOCUMENT Chen Memorandum of Understanding re NOTICE OF MOTION AND MOTION for Settlement Approval of Class and Collective Action Settlement 6 , Minutes of In Chambers Order/Directive − no proceeding held,,, Set/Reset Motion Hearing and R&R Deadlines,, 27 filed by Plaintiff Yunghui Chen.(Fuschetti, Danielle) (Entered: 08/29/2019)
32 APPLICATION to file document Supplemental Briefing in Support of Motion for Preliminary Approval of Class Action Settlement under seal filed by Plaintiff Yunghui Chen. (Attachments: # 1 Proposed Order, # 2 Redacted Document, # 3 Redacted Document)(Fuschetti, Danielle) (Entered: 08/29/2019)
33 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Supplemental Briefing in Support of Motion for Preliminary Approval of Class Action Settlement under seal 32 filed by Plaintiff Yunghui Chen. (Attachments: # 1 Unredacted Document, # 2 Unredacted Document)(Fuschetti, Danielle) (Entered: 08/29/2019)

Case: 8:19-cv-909 As of: 09/23/2019 07:44 PM PDT 5 of 5

08/29/2019 08/30/2019 08/30/2019

34 PROOF OF SERVICE filed by Plaintiff Yunghui Chen, re Sealed Declaration in SupportDeclaration, 33 , Sealed Document, 31 served on August 29, 2019. (Fuschetti, Danielle) (Entered: 08/29/2019)
35 PROOF OF SERVICE filed by Plaintiff Yunghui Chen, re Sealed Declaration in SupportDeclaration, 33 , Sealed Document, 31 served on August 29, 2019. (Fuschetti, Danielle) (Entered: 08/30/2019)
36 PROOF OF SERVICE filed by Plaintiff Yunghui Chen, re Sealed Declaration in SupportDeclaration, 33 , Sealed Document, 31 served on August 29, 2019. (Fuschetti, Danielle) (Entered: 08/30/2019)

 
 Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 1 of 32 Page ID #:1

1 David Sanford (DC SBN 457933 Pro Hac Vice to be filed) dsanford@sanfordheisler.com
2 SANFORD HEISLER SHARP, LLP 700 Pennsylvania Avenue SE, Suite 300
3 Washington, DC 20003 Telephone: (202) 499-5200
4 Facsimile: (202) 499-5199

5 Danielle Fuschetti (CA SBN 294064) dfuschetti@sanfordheisler.com
6 SANFORD HEISLER SHARP, LLP 111 Sutter Street, Suite 975
7 San Francisco, CA 94104 Telephone: (415) 795 2020
8 Facsimile: (415) 795 2021
9 Felicia Medina (CA SBN 255804) fmedina@medinaorthwein.com
10 MEDINA ORTHWEIN, LLP 1322 Webster St., Suite 200
11 Oakland, CA 94612 Telephone: (510) 823-2040
12 Facsimile: (510) 217-3580
13 Attorneys for the Plaintiff and the Class
14
UNITED STATES DISTRICT COURT
15
CENTRAL DISTRICT OF CALIFORNIA
16

17

18

Case No.: __________

YUNGHUI CHEN, on behalf of herself

19 and all others similarly situated,

CLASS AND COLLECTIVE

20

PLAINTIFFS,

ACTION COMPLAINT

21 vs.

JURY TRIAL DEMANDED

22 WESTERN DIGITAL CORPORATION AND WESTERN
23 DIGITAL TECHNOLOGIES, INC.,

24

DEFENDANTS.

25

26

27

28

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 2 of 32 Page ID #:2

1

Plaintiff Yunghui Chen (“Plaintiff” or “Class Representative”), by and

2 through her attorneys at Sanford Heisler Sharp, LLP and Medina Orthwein LLP,

3 brings this action in her individual capacity, and on behalf of the Collective

4 Action and Rule 23 Classes of women defined below against Western Digital

5 Corporation and Western Digital Technologies, Inc. to redress gender

6 discrimination in employment. Plaintiff alleges upon knowledge as to herself and

7 otherwise upon information and belief as follows:

8

I. INTRODUCTION

9

1. Defendant Western Digital Corporation (“WDC”) is a data storage

10 company and one of the largest hard disk manufacturers in the world. Western

11 Digital Technologies, Inc., Western Digital (Fremont), LLC, and Western Digital

12 Media, LLC are wholly-owned U.S. subsidiaries of Western Digital Corporation

13 Inc. Western Digital Corporation, Western Digital Technologies, Inc, Western

14 Digital (Fremont), LLC, and Western Digital Media, LLC are collectively referred

15 to as “Defendants.” Western Digital Technologies Inc., along with its subsidiaries,

16 Western Digital (Fremont), LLC, and Western Digital Media, LLC, operate many

17 of WDC’s U.S. engineering, research, and development functions and offer many

18 of its products and services.

19

2. Plaintiff is a former, long-time female employee of Defendants. She

20 brings this action on an individual, class, and collective basis alleging violations of

21 Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”),

22 the Equal Pay Act, 29 U.S.C. §§ 206 et seq. (“EPA”), the California Fair

23 Employment and Housing Act, Cal. Gov. Code § 12940 et seq. (“FEHA”), the

24 California Equal Pay Act, Cal. Lab. Code § 1197.5 (“CEPA”), California Business

25 and Professions Code § 17200, and the California Private Attorneys General Act

26 of 2004, Cal. Lab. Code § 2698 et seq. (“PAGA”), seeking redress and

27 programmatic change for female employees who have worked or will work for

28 Defendants.

2 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 3 of 32 Page ID #:3

1

II. THE PARTIES

2 Plaintiff Yunghui Chen

3

3. Plaintiff is a successful female auditor who lives in Irvine, California.

4 She joined Western Digital Technologies, Inc. as a Senior Internal Auditor in the

5 Internal Audit Department in 2005.

6

4. In 2008, Plaintiff was promoted to Internal Audit Manager. She

7 remained in that position until her employment ended in September 2016.

8 Defendants

9

5. Western Digital Corporation is a data storage company and one of the

10 largest hard disk manufacturers in the world. Its corporate headquarters are in San

11 Jose, California. Western Digital Technologies, Inc., is a wholly-owned subsidiary

12 of WDC. Western Digital (Fremont), LLC and Western Digital Media, LLC are

13 wholly-owned subsidiaries of Western Digital Technologies, Inc.

14

6. Defendants employ over 5,000 people in the United States, with

15 approximately 1,400 in Irvine, California, which was the Company’s Headquarters

16 before February 2017. Defendants reap $19 billion per year in revenue as of June

17 2017.

18

7. Upon information and belief, Defendants’ headquarters in the State of

19 California maintain control, oversight, and direction over the operation of their

20 facilities, including their employment practices.

21

8. Plaintiff was employed by Western Digital Technologies, Inc. during

22 all relevant times.

23

III. JURISDICTION AND VENUE

24

9. The Central District of California has personal jurisdiction over

25 Defendants because they maintain offices in this District, they do business in

26 California and in this district, and many of the acts complained of and giving rise

27 to the claims alleged herein occurred in California and in this district.

28

10. This Court has original subject matter jurisdiction over the claims for

3 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 4 of 32 Page ID #:4

1 violations of Title VII, and the EPA pursuant to 28 U.S.C. § 1331 and 1343 and 42

2 U.S.C. § 2000e-5(f)(3). These claims arise under the laws of the United States and

3 are brought to recover damages for deprivation of equal rights.

4

11. This Court has supplemental jurisdiction over Plaintiff’s state law

5 claims, including claims under the FEHA, the CEPA, California Business and

6 Professions Code §17200 et seq., and the PAGA, pursuant to 28 U.S.C. Section

7 1367. These claims constitute the same case and controversy raised in the claims

8 under federal law.

9

12. Venue is proper pursuant to 28 U.S.C. § 1391(b) and 42 U.S.C. §

10 2000e-5(f)(3). Defendants conduct substantial business in Irvine, California,

11 which was also the location of their U.S. headquarters throughout the alleged class

12 period. A substantial part of the events and omissions giving rise to the claims

13 alleged herein occurred in this district, the majority of the unlawful employment

14 practices were committed here, and the employment records relevant to those

15 practices are maintained and administered here.

16

13. Plaintiff has standing to bring this suit and has exhausted her

17 administrative remedies and complied with all statutory prerequisites to maintain

18 Title VII and FEHA claims. Plaintiff dual filed individual and class charges of

19 discrimination with the California Department of Fair Employment and Housing

20 (“DFEH”) and the U.S. Equal Employment Opportunity Commission (“EEOC”)

21 on October 7, 2016.

22

14. On November 14, 2016, Plaintiff filed a notice with the Labor &

23 Workforce Development Agency (“LWDA”) asserting claims of pay

24 discrimination in violation of the California Equal Pay Act and caused this notice

25 to be served on Western Digital Corporation and its legal representatives. More

26 than 60 days have elapsed since filing of this notice, and the LWDA has not notified

27 the Parties that it intends to investigate these claims.

28

15. On January 30, 2017, the Parties entered into a separate tolling

4 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 5 of 32 Page ID #:5

1 agreement.

2

IV. FACTUAL ALLEGATIONS

3 A. DEFENDANTS’ INEQUITABLE PAY, PROMOTION, AND

4

PLACEMENT PRACTICES

5

16. Men dominate Defendants’ leadership and management. Upon

6 information and belief, the overrepresentation of men in Defendants’ leadership is

7 both the source and product of continuing systemic discrimination against female

8 employees.

9

17. Defendants discriminate against women by permitting their

10 predominantly male leadership to overtly favor men in pay, promotions, and other

11 opportunities regardless of their qualifications.

12

18. Defendants maintain uniform policies and practices with respect to

13 pay, promotions, and job placement. Defendants also cultivate and promote a

14 common, male-dominated corporate culture. During Plaintiff’s employment and

15 for a substantial portion of the Class Period, these polices, practices, and values

16 originated in Defendants’ headquarters in Irvine, California and were disseminated

17 throughout their branches using common media and methods. These common

18 compensation, promotions, and placement policies and practices have resulted in

19 and perpetuated longstanding, companywide gender discrimination and sex-based

20 disparities with respect to pay, promotions, and job placement.

21

19. In recent years, Defendants have used several leveling structures that

22 have produced unjustified disparities in compensation, promotions, and job

23 placement between male and female employees. Rather than provide meaningful,

24 equitable, and objective criteria, these leveling systems cause, perpetuate, and mask

25 pervasive disparities in the working conditions of male and female employees.

26

20. Upon information and belief, Defendants rely on a tap-on-the-

27 shoulder promotion process that disparately impacts women and encourages the

28 predominantly male management to engage in a pattern of disparate treatment.

5 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 6 of 32 Page ID #:6

1 Rather than posting open positions, managers evaluate which, if any, of their

2 reporting employees should be placed into them.

3

21. The placement process also calls for managers to consider tainted

4 variables, such as management’s personal relationship with and exposure to the

5 candidate and the candidate’s track record of career enhancing opportunities.

6 These variables often favor men, in part because of the over-representation of men

7 in Defendants’ senior ranks.

8

22. Defendants’ policies for determining raises and incentive

9 compensation likewise invite discrimination. Upon information and belief

10 Defendants have used a “Performance Based Salary Adjustment” policy that calls

11 for managers to rate employees according to six vague categories of performance

12 ratings: New Hire, Significantly Below Target, Below Target, On Target, Above

13 Target, and Significantly Above Target. These vague criteria invite managers to

14 rely on their own explicit and implicit biases when determining raises and incentive

15 compensation, leading to gender disparities as a result.

16

23. Upon information and belief, Defendants also utilize a system of

17 forced stacked rankings to make incentive compensation decisions. Defendants

18 encourage managers to distribute rankings that determine compensation across a

19 normal curve, a practice called force-stacked ranking. They also instruct managers

20 that there are always some underperforming employees, leaving managers little

21 choice but to find some employees to rate as underperforming, even if none exist.

22 Moreover, managers are instructed to consider tainted variables such as whether

23 the employee is meeting development “goals and values” and whether he or she is

24 a “role model.” These vague and subjective criteria encourage reliance on implicit

25 and explicit biases as managers attempt to distinguish between male and female

26 employees performing equally.

27

24. Upon information and belief, Defendants’ and their senior executives

28 and HR are aware of and condone these inequitable pay, promotion, titling, job

6 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 7 of 32 Page ID #:7

1 placement and other practices, but have taken no steps to remedy the root causes of

2 the disparity. Defendants are aware of the demographics of their workforce,

3 including the underrepresentation of women in different levels and functions.

4 B. PLAINTIFF YUNGHUI CHEN

5

25. Yunghui Chen (“Ms. Chen,” “Plaintiff,” or “Class Representative”)

6 worked for Western Digital Technologies, Inc. from 2005 through 2016.

7

26. Plaintiff holds a dual Bachelors of Arts in Accounting and Banking &

8 Finance from Tamkang University in Taiwan and a Masters of Science in

9 Accountancy from San Diego State University. Plaintiff has been a certified

10 Internal Auditor since 2007 and a certified Public Accountant since 2011.

11

27. Ms. Chen joined Western Digital Technologies, Inc. as a Senior

12 Internal Auditor in the Internal Audit Department in 2005 after gaining relevant

13 experience as an Accountant, Staff Auditor, and Senior Accountant. In 2008, she

14 was promoted to Internal Audit Manager responsible for Channel Compliance.

15

28. In January 2013, Plaintiff was asked to transition from the Internal

16 Audit Manager responsible for Channel Compliance to the Internal Audit Manager

17 responsible for Operational Audit so that she could take on many of the

18 responsibilities that the former Senior Internal Audit Manager had after he

19 transitioned to a higher title. Plaintiff was chosen because of her breadth of

20 experience working on Operational Audit projects while simultaneously

21 completing her assignments in Channel Compliance within the Internal Audit

22 Department.

23

29. From January 2013 to the conclusion of her employment in September

24 2016, Plaintiff worked on the Operational Audit projects in the Internal Audit

25 Department. Although she remained an Internal Audit Manager, Ms. Chen was

26 performing many of the tasks of as Senior Manager. For example, Plaintiff

27 independently performed various large-scale audits such as HR & payroll audits,

28 Corporate Treasury review, Financial Close process review, Procurement function

7 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 8 of 32 Page ID #:8

1 review, Marketing Development Fund review, Marketing Incentive Program

2 review, Expense reviews for the Chairman and Board of Directors, and Anti-

3 bribery and Corruption reviews. All the while, Ms. Chen supervised senior auditors

4 and an assistant manager, worked directly with employees from entry level

5 positions to Vice Presidents, and reported directly to Defendants’ senior

6 management.

7

30. Defendants recognized Ms. Chen’s breadth of experience in Channel

8 Compliance and Operational Audit Department by tasking her with increased

9 responsibilities in both areas, but, nonetheless, paid her $30,000 less than her male

10 counterparts performing equal and substantially similar work and refused to

11 promote her to Senior Manager, despite promoting similarly situated, less-qualified

12 men.

13

31. For example, in or around May of 2012, a male Internal Audit Senior

14 Manager responsible for Operational Audit, was promoted to Director of Internal

15 Audit. In January 2013, Ms. Chen was asked to transition from the Internal Audit

16 Manager responsible for Channel Compliance to the Internal Audit Manager

17 responsible for Operational Audit. WDC made this request so that Ms. Chen could

18 take on many of the responsibilities this male Director had as a Senior Internal

19 Audit Manager. Ms. Chen was chosen because of her breadth of experience

20 working on Operational Audit projects while simultaneously completing her

21 assignments in Channel Compliance within the Internal Audit Department. From

22 January 2013 to September 2016, Ms. Chen continued working on Operational

23 Audit projects in the Internal Audit Department. Although Ms. Chen remained an

24 Internal Audit Manager and was not given the title of Senior Manager or a pay

25 increase, she was performing much of the same tasks as a Senior Manager at this

26 time.

27

32. Despite successfully carrying out the job duties of a Senior Manager

28 for years, Ms. Chen was denied a promotion to the role. Instead, Defendants

8 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 9 of 32 Page ID #:9

1 promoted a male employee with similar, if not less, experience. This male

2 employee with similar responsibilities in Channel Compliance at the HGST

3 subsidiary began working in Western Digital Technologies, Inc.’s Internal Audit

4 Department as a Manager for Channel Compliance in 2013. He took over all of Ms.

5 Chen’s previous responsibilities and tasks in Channel Compliance as she

6 transitioned her focus to Operational Audit. After working in the Western Digital

7 Technologies, Inc. Internal Audit Department for one year, this male employee was

8 promoted to Senior Manager. Yet Ms. Chen did not receive the Senior Manager

9 title after working for five years as a Manager in the Internal Audit Department and

10 an additional three years in the Operational Audit Department.

11

V. CLASS ACTION ALLEGATIONS

12 A. DEFENDANTS ENGAGED IN A COMMMON POLICY, PATTERN,

13

AND PRACTICE OF DISCRIMINATION AGAINST THE

14

NATIONWIDE AND CALIFORNIA CLASSES.

15

33. Plaintiff re-alleges and incorporates by reference each and every

16 allegation above.

17

34. Defendants subjected female employees to a pattern and practice of

18 systemic unlawful disparate treatment and unlawful disparate impact

19 discrimination comprised of (a) assigning female employees to lower

20 classifications than similarly situated male employees performing the same job

21 duties; and (b) paying female employees less than their male counterparts.

22

35. These problems affecting pay, promotions, and placement are

23 systemic and Company-wide. They stem from the Company’s common

24 employment policies, practices, and procedures, including Defendants’ job

25 assignment, leveling, banding, and compensation policies, practices, and

26 procedures. Such policies, practices, and procedures are not valid, job-related, or

27 justified by business necessity and all suffer from: a lack of transparency;

28 inadequate quality standards and controls; insufficient implementation metrics; and

9 CLASS AND COLLECTIVE ACTION COMPLAINT

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1 inadequate opportunities for redress or challenge. As a result, employees are

2 evaluated, compensated, developed, and placed within a system that is

3 insufficiently designed, articulated, explained, or implemented to consistently,

4 reliably, or equitably manage or reward employees.

5

36. These problems affecting pay, promotions, and placement also stem

6 from centralized decision-making by the Company’s compact and predominately

7 male senior leadership team, which maintains centralized control over employees’

8 terms and conditions of employment, and is responsible for formulating, reviewing,

9 and approving the acts, policies, and practices that result in the systemic unlawful

10 disparate treatment and unlawful disparate impact disparate impact of female

11 employees in pay, promotions, and placement.

12 B. CLASS DEFINITIONS

13

37. Plaintiff seeks to maintain claims on her own behalf and on behalf of

14 Classes of similarly situated female employees.

15

38. Nationwide Sub-Class (Excluding California). “Nationwide Sub-

16 Class” means women directly employed by Western Digital Technologies, Inc.,

17 Western Digital (Fremont), LLC, and/or Western Digital Media, LLC in a Covered

18 Position as regular employees in the United States at any time on or after November

19 1, 2013 (excluding those who became employed by Western Digital Corporation

20 or an affiliated entity as a result of or in connection with an acquisition on or after

21 May 1, 2016), excluding any member of the California Sub-class.

22

39. California Sub-Class. “California Sub-Class” means women directly

23 employed by Western Digital Technologies, Inc., Western Digital (Fremont), LLC,

24 and/or Western Digital Media, LLC in California in a Covered Position at any time

25 on or after November 1, 2012 (excluding those who became employed by Western

26 Digital Corporation or an affiliated entity as a result of or in connection with an

27 acquisition on or after May 1, 2016).

28

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1

40. Covered Position. A “Covered Position” means an indirect labor

2 position at the Senior Manager level or below.

3

41. Class Representative and the Classes of Western Digital employees

4 that Plaintiff seeks to represent have been subjected to a systemic pattern and

5 practice of gender discrimination in pay, promotions, and placement as well as

6 disparate impact gender discrimination in pay, promotions, and placement by

7 Defendants.

8

42. Because of the Company’s systemic pattern and practice of gender

9 discrimination in pay, promotions, and placement, Class Representative and the

10 Classes of Western Digital employees that she seeks to represent have been

11 adversely affected and have experienced harm, including the loss of compensation,

12 employment benefits, and opportunities, as well as physical and emotional pain and

13 suffering.

14

43. Class Representative and the Classes of Western Digital employees

15 that she seeks to represent seek to maintain claims on Plaintiff’s own behalf and on

16 behalf of the foregoing Classes of similarly situated female employees. Plaintiff

17 seeks to represent all of the female employees described above. The systemic

18 gender discrimination described in this Complaint has been, and is, continuing in

19 nature.

20 C. EFFICIENCY OF CLASS PROSECUTION OF COMMON CLAIMS

21

44. Certification of the foregoing Classes of female employees is the most

22 efficient and economical means of resolving the questions of law and fact that are

23 common to the claims of Class Representative and the respective Classes. Ms.

24 Chen’s individual claims require resolution of the common questions concerning

25 whether Defendants have engaged in a systemic pattern and/or practice of gender

26 discrimination against female employees in pay and promotion and/or whether

27 their facially neutral policies have an adverse effect on the Classes’ pay,

28

11 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 12 of 32 Page ID #:12

1 promotions, and placement. The respective Classes seek remedies to eliminate the

2 adverse effects of such discrimination in pay, promotions, and placement.

3

45. Plaintiff has standing to seek such relief because of the adverse effects

4 that such discrimination has had on her and on similarly-situated female employees

5 generally. Defendants caused their injuries through their discriminatory policies,

6 practices, and procedures, as well as their disparate treatment of employees who

7 are female.

8

46. To gain such relief for herself, as well as for the respective Class

9 members, Plaintiff will first establish the existence of systemic gender

10 discrimination by Defendants as the premise for the relief she seeks.

11

47. Without certifying the aforementioned Classes, the same evidence and

12 issues would be subject to re-litigation in a multitude of individual lawsuits with

13 an attendant risk of inconsistent adjudications and conflicting obligations.

14 Certification of the proposed Classes is the most efficient and judicious means of

15 presenting the evidence and arguments necessary to resolve such questions for the

16 Class Representative, the proposed Classes, and the Defendants.

17 D. NUMEROSITY AND IMPRACTICABILITY OF JOINDER

18

48. Each Class that the Class Representative seeks to represent is too

19 numerous to make joinder practicable.

20

49. Upon information and belief, each Class has more than 40 members.

21 E. COMMON QUESTIONS OF LAW AND FACT

22

50. The prosecution of the claims of the Class Representative will require

23 the adjudication of numerous questions of law and fact common to her claims and

24 those of the Classes that Plaintiff seeks to represent.

25

51. The common questions of law include: (a) whether Defendants

26 engaged in unlawful, systemic gender discrimination in their compensation,

27 promotion, and job placement policies, practices, and procedures; (b) whether the

28 failure to institute adequate standards, quality controls, implementation metrics, or

12 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 13 of 32 Page ID #:13

1 oversight in compensation, promotion, and job placement policies, practices, and

2 procedures violates Title VII, the FEHA, and the California Equal Pay Act; (c)

3 whether the lack of transparency and of opportunities for redress in those systems

4 violates Title VII, the FEHA, and the California Equal Pay Act; (d) whether the

5 failure of upper management and HR to prevent, investigate, or properly respond

6 to evidence and complaints of discrimination in compensation, promotion, and job

7 placement policies, practices, procedures violates Title VII, the FEHA, and the

8 California Equal Pay Act; (e) whether Defendants are liable for a continuing

9 systemic violation of Title VII, the FEHA, and the California Equal Pay Act; (f) a

10 determination of the proper standards for proving a pattern or practice of

11 discrimination in compensation, promotion, and job placement by Defendants

12 against their female employees under the disparate treatment theory of liability; and

13 (g) a determination of the proper standard for proving that Defendants’ facially

14 neutral employment practices had a disparate impact on each Class.

15

52. The common questions of fact include whether Defendants have,

16 through their policies, practices, and procedures: (a) used a system of assignments

17 to jobs, compensation levels, and compensation bands that lacks meaningful or

18 appropriate standards, implementation metrics, quality controls, transparency, and

19 opportunities for redress; (b) through the use of that system of assignment placed

20 female employees in jobs, compensation levels, and compensation bands lower

21 than similarly situated male employees; (c) systemically, intentionally, or

22 knowingly placed female employees in jobs, compensation levels, and

23 compensation bands lower than similarly situated male employees; (d) used a

24 compensation system that lacks meaningful or appropriate standards,

25 implementation metrics, quality controls, transparency, and opportunities for

26 redress; (e) through the use of that compensation system compensated female

27 employees less than similarly situated male employees in salary, bonus, equity

28 grants, and/or other perquisites; (f) systemically, intentionally, or knowingly

13 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 14 of 32 Page ID #:14

1 compensated female employees less than similarly situated male employees; (g)

2 used a system for performance evaluations that lacks meaningful or appropriate

3 standards, implementation metrics, quality controls, transparency, or opportunities

4 for redress; (h) through the use of that performance evaluation system inaccurately,

5 unfairly, or disparately measured, classified, and compared female and male

6 employee performance; (i) used Human Resources systems that lack meaningful or

7 appropriate standards, implementation metrics, quality controls, transparency, or

8 opportunities for redress; (j) through relying upon and using these systems

9 minimized or ignored evidence of gender discrimination in pay, promotions, and

10 placement in the workplace and/or otherwise mishandled the investigation of and

11 response to complaints of discrimination in pay, promotions, and placement

12 brought to the attention of senior management and the Human Resources

13 department; (k) systematically, intentionally, knowingly, or deliberately sowed an

14 indifference to evidence of discrimination in pay, promotions, and placement or

15 otherwise minimized, ignored, or mishandled evidence of or complaints of gender

16 discrimination in pay, promotions, and placement.

17

53. The employment policies, practices, and procedures to which Class

18 Representative and the respective Classes are subjected are set at the Company’s

19 corporate level. Each policy applies universally within each Class. These

20 employment policies, practices, and procedures are not unique or limited to any

21 function or business unit; rather, they apply to all function and business units and

22 thus affect Class Representative and the respective Classes in the same ways

23 regardless of the function or business unit in which they work.

24 F. THE TYPICALITY OF CLAIMS AND RELIEF SOUGHT

25

54. The Class Representative’s claims are typical of the claims of the

26 respective Classes.

27

55. Gender discrimination in pay, promotions, and placement affect the

28 Class Representative and all Class members in the same or similar ways

14 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 15 of 32 Page ID #:15

1 corresponding to their level within the Company. Class Representative and

2 similarly situated female employees were paid less than similarly situated male

3 employees for equal work and were assigned to lower job classifications than

4 similarly situated male employees.

5

56. The relief necessary to remedy the claims of the Class Representative

6 is exactly the same as that necessary to remedy the claims of the Class members in

7 this case.

8

57. Class Representative seeks the following relief for her individual

9 claims and for those of the members of the proposed Classes: (a) a declaratory

10 judgment that Defendants have engaged in systemic gender discrimination against

11 the Classes by (1) assigning female employees to lower job titles and classifications

12 than their male counterparts; (2) paying female employees less than their male

13 counterparts; (b) a permanent injunction against such continuing discriminatory

14 conduct; (c) injunctive relief that effectuates a restructuring of the Company’s

15 promotion, training, performance evaluation, leveling, and compensation policies,

16 practices, and procedures; (d) back pay, front pay, and other equitable remedies

17 necessary to make the employees whole from Defendants’ discrimination; (e)

18 punitive and nominal damages to prevent and deter Defendants from engaging in

19 similar discriminatory practices in the future; (f) compensatory damages; and (g)

20 attorneys’ fees, costs, and expenses.

21 G. ADEQUACY OF REPRESENTATION

22

58. The Class Representative’s interests are co-extensive with those of the

23 respective Classes that she seeks to represent in this case. The Class Representative

24 seeks to remedy the Company’s discriminatory employment policies, practices, and

25 procedures so that female employees will no longer be prevented from receiving

26 equal pay and advancing into higher-paying and higher-ranked positions.

27

59. Class Representative is willing and able to represent the respective

28 Classes fairly and vigorously as she pursues her claims in this action.

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1

60. Class Representative has retained counsel who are qualified,

2 experienced, and able to conduct this litigation and to meet the time and fiscal

3 demands required to litigate an employment discrimination class action of this size

4 and complexity. The combined interests, experience, and resources of counsel to

5 litigate competently the Class claims at issue in this case satisfy the adequacy of

6 representation requirement of Federal Rule of Civil Procedure 23(a)(4).

7 H. REQUIREMENTS OF RULE 23(b)(3)

8

61. The common issues of fact and law affecting the claims of the Class

9 Representative and proposed Class members, including, but not limited to, the

10 common issues previously identified herein, predominate over any issues affecting

11 only individual claims. These common issues include whether Defendants have

12 engaged in gender discrimination against female employees by (a) assigning

13 female employees to lower job titles, job levels, career tracks, and classifications

14 than their male counterparts; and (b) paying female employees less than their male

15 counterparts.

16

62. A class action is superior to other available means for the fair and

17 efficient adjudication of the claims of the Class Representative and the members of

18 the respective Classes.

19

63. The cost of proving the patterns and practices of discrimination by

20 Defendants makes it impracticable for the Class Representative and members of

21 the respective Classes to prosecute their claims individually.

22

64. By virtue of Defendants’ pattern and practice of discrimination, the

23 Class Representative and Class members are eligible for monetary remedies for

24 losses caused by the systemic discrimination, including back pay, front pay,

25 compensatory damages, and nominal and punitive damages.

26

VI. COLLECTIVE ACTION ALLEGATIONS

27

65. Defendants have engaged in systemic gender discrimination in pay

28 against their female employees. Defendants have caused, contributed to, and

16 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 17 of 32 Page ID #:17

1 perpetuated gender-based pay disparities through common policies, practices, and

2 procedures, including but not limited to common compensation and performance

3 management policies, and centralized decision-making.

4

66. Plaintiff in this action seeks to be appointed as representative of the

5 Collective Action.

6

67. The Collective Action Representative brings collective claims

7 alleging violations of the Equal Pay Act of 1963 (“EPA”) as a collective action

8 pursuant to 29 U.S.C. § 216(b). Collective Action Representative seeks to

9 represent all similarly situated employees described above who were paid less than

10 male employees for doing similar work. The systemic gender discrimination

11 described in this Complaint has been, and is, continuing in nature.

12

68. Collective Action Plaintiffs. “Collective Action Plaintiffs” means

13 women directly employed by Western Digital Technologies, Inc., Western Digital

14 (Fremont), LLC, and/or Western Digital Media, LLC in a Covered Position in the

15 United States at any time on or after November 1, 2013 (excluding those who

16 became employed by Western Digital Corporation or an affiliated entity as a result

17 of or in connection with an acquisition on or after May 1, 2016).

18

69. Questions of law and fact common to Collective Action

19 Representative and the respective Collective that she seeks to represent include but

20 are not limited to the following:

21

a. Whether members of the Collective were subjected to an unlawful

22

common policy that resulted in unequal pay for equal work;

23

b. Whether Defendants unlawfully failed and continue to fail to

24

compensate members of the Collective at a level commensurate with

25

similarly situated male employees;

26

c. Whether Defendants’ policy, practice, or procedure of failing to

27

compensate members of the Collective at levels commensurate with

28

comparable male employees violates applicable provisions of the EPA;

17 CLASS AND COLLECTIVE ACTION COMPLAINT

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1

d. Whether Defendants’ failure to compensate members of the Collective

2

at a level commensurate with comparable male employees was willful within

3

the meaning of the EPA.

4

70. Counts for violation of the EPA may be brought and maintained as an

5 “opt-in” collective action pursuant to 29 U.S.C. § 216(b) for all claims asserted by

6 the Collective Action Representative, because her claims are similar to the claims

7 of the Collective Action class that she seeks to represent.

8

71. The Collective Action Representative and the Collective Action class

9 that she seeks to represent (a) are similarly situated and (b) are subjected to

10 Defendants’ common compensation policies, practices, and procedures and

11 centralized decision-making resulting in unequal pay based on sex by failing to

12 compensate members of the Collective Action class at a level commensurate with

13 male employees who perform substantially equal work and/or hold equivalent

14 levels, job titles, and positions.

15

VII. COUNTS

16

COUNT 1

17

GENDER DISCRIMINATION – PAY, PROMOTIONS, AND

18

PLACEMENT

19

(Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.)

20 (On Behalf of Class Representative, in her Individual and Representative

21

Capacities, and the Nationwide and California Classes Against All

22

Defendants)

23

72. Plaintiff re-alleges and incorporates by reference each and every

24 allegation contained in the previous paragraphs of this Complaint as if fully set

25 forth herein.

26

73. This Count is brought on behalf of Plaintiff in her individual and

27 representative capacities, and all members of the Nationwide and California

28 Classes.

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1

74. Defendants have discriminated against Plaintiff and the Classes in

2 violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., as amended

3 by the Civil Rights Act of 1991 (“Title VII”), by subjecting them to different

4 treatment on the basis of their gender, including by engaging in intentional

5 disparate treatment, and by maintaining uniform policies and practices that have an

6 adverse, disparate impact on them.

7

75. Defendants have engaged in an intentional, company-wide and

8 systemic policy, pattern, and/or practice of discrimination against Plaintiff and the

9 Nationwide and California Classes by, among other things: maintaining a

10 discriminatory system of determining compensation; maintaining a discriminatory

11 system of compensation levelling based on job levels and career tacks; and

12 systemically discriminating against women in placement in and promotion to titles,

13 job levels, and career tracks.

14

76. These foregoing common policies, practices, and/or procedures have

15 produced an unjustified disparate impact on Plaintiff and the members of the

16 Nationwide and California Classes with respect to pay, promotion, and job

17 placement.

18

77. As a result of this disparate treatment and disparate impact

19 discrimination, Defendants have treated Plaintiff and the Nationwide and

20 California Classes differently from and less preferentially than similarly-situated

21 male employees with respect to pay, promotion, and job placement.

22

78. Defendants have failed to prevent, to respond to, to investigate

23 adequately, and/or to appropriately resolve this gender discrimination.

24

79. Defendants’ conduct has been intentional, deliberate, willful,

25 malicious, reckless, and conducted in callous disregard of the rights of the Class

26 Representative and all members of the Nationwide and California Classes, entitling

27 the Class Representative and all members of the classes to punitive damages.

28

19 CLASS AND COLLECTIVE ACTION COMPLAINT

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1

80. As a result of Defendants’ conduct alleged in this Complaint, the Class

2 Representative and the members of the Nationwide and California Classes have

3 suffered and continue to suffer harm, including but not limited to, lost earnings,

4 lost benefits, lost future employment opportunities, and other financial loss, as well

5 as non-economic damages.

6

81. By reason of the continuous nature of Defendants’ discriminatory

7 conduct, which persisted throughout the employment of the Class Representative

8 and the members of the Nationwide and California Classes, the continuing

9 violations doctrine applies to all violations alleged herein.

10

82. By reason of Defendants’ discrimination, the Class Representative

11 and the members of the Classes are entitled to all legal and equitable remedies

12 available for violations of Title VII, including reinstatement and an award of

13 compensatory and punitive damages. Attorneys’ fees and costs should be awarded

14 under 42 U.S.C. § 2000e-5(k).

15

COUNT 2

16

DENIAL OF EQUAL PAY FOR EQUAL WORK

17 (The Fair Labor Standards Act, as amended by the Equal Pay Act, 29 U.S.C.

18

§§ 206, et seq.)

19 (On Behalf of Class Representative, in her Individual and Representative

20 Capacities and the Collective Action Plaintiffs Against All Defendants)

21

83. Plaintiff re-alleges and incorporates by reference each and every

22 allegation contained in the previous paragraphs of this Complaint as if fully set

23 forth herein.

24

84. This Count is brought on behalf of Plaintiff in her individual and

25 representative capacities, and all Collective Action Plaintiffs.

26

85. Defendants have discriminated against the Class Representative and

27 Collective Action Plaintiffs in violation of the Fair Labor Standards Act of 1938,

28 29 U.S.C. §§ 206, et seq., as amended by the Equal Pay Act of 1963 (“EPA”).

20 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 21 of 32 Page ID #:21

1 Defendants have paid the Class Representative and Collective Action Plaintiffs less

2 than similarly-situated male colleagues performing equal work on jobs, the

3 performance of which requires equal skill, effort, and responsibility, and which are

4 performed under similar working conditions.

5

86. Defendants subjected the Class Representative and the Collective

6 Action Plaintiffs to common discriminatory pay policies, including: a

7 discriminatory system of determining salaries, stock awards, bonuses, and other

8 compensation incentives; discriminating against women in assignment to job level,

9 band, career track, and titles, which results in women receiving lower base and

10 incentive compensation; and other forms of discrimination affecting pay.

11

87. The differential in pay between male and female employees was not

12 due to seniority, merit, quantity, or quality of production, but was due to gender.

13

88. Defendants caused, attempted to cause, or contributed to the

14 continuation of the wage rate discrimination based on sex in violation of the EPA.

15 Moreover, the foregoing conduct constitutes a willful violation of the EPA within

16 the meaning of 29 U.S.C. § 255(a). Because Defendants have willfully violated

17 the EPA, a three-year statute of limitations applies to such violations, pursuant to

18 29 U.S.C. § 255.

19

89. As a result of Defendants’ conduct alleged in this Complaint, the Class

20 Representative and all Collective Action Plaintiffs have suffered and will continue

21 to suffer harm, including but not limited to: lost earnings, lost benefits, and other

22 financial loss, as well as non-economic damages. By reason of the continuous

23 nature of Defendants’ conduct, which persisted throughout the employment of the

24 Class Representative and the Class members, the continuing violations doctrine

25 applies to all violations alleged herein.

26

90. By reason of Defendants’ discrimination, the Class Representative

27 and all Collective Action Plaintiffs are entitled to all legal and equitable remedies

28 available for violations of the EPA including liquidated damages for all willful

21 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 22 of 32 Page ID #:22

1 violations, prejudgment interest, attorneys’ fees, costs, and other compensation

2 pursuant to 29 U.S.C. § 216(b). Attorneys’ fees should be awarded under 29 U.S.C.

3 § 216(b).

4

COUNT 3

5 GENDER DISCRIMINATION – PAY, PROMOTIONS, & PLACEMENT

6 (California Fair Employment and Housing Act, Cal. Gov. Code § 12940, et

7

seq.)

8 (On Behalf of Class Representative, in her Individual and Representative

9

Capacities, and the California Class Against All Defendants)

10

91. Plaintiff re-alleges and incorporates by reference each and every

11 allegation contained in the previous paragraphs of this Complaint as if fully set

12 forth herein.

13

92. This Count is brought on behalf of Plaintiff in her individual and

14 representative capacities, and all members of the California Class.

15

93. Defendants have discriminated against Plaintiff and the California

16 Class in violation of the California Fair Employment and Housing Act (the

17 “FEHA”), Cal. Gov’t Code § 12940, et seq., by subjecting them to different

18 treatment because and on the basis of their gender, including by engaging in

19 intentional disparate treatment, and by maintaining uniform policies and practices

20 that have an adverse, disparate impact on them.

21

94. Defendants have engaged in an intentional, company-wide and

22 systemic policy, pattern, and/or practice of discrimination against Plaintiff and the

23 California Class by, among other things: maintaining a discriminatory system of

24 determining compensation; maintaining a discriminatory system of compensation

25 levelling based on job levels and career tacks; and systemically discriminating

26 against women in placement in and promotion to titles, job levels, and career tracks.

27

28

22 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 23 of 32 Page ID #:23

1

95. These foregoing common policies, practices, and/or procedures have

2 produced an unjustified disparate impact on Plaintiff and the members of the

3 California Class with respect to pay, promotion, and job placement.

4

96. As a result of this disparate treatment and disparate impact

5 discrimination, Defendants have treated Plaintiff and the California Class members

6 differently from and less preferentially than similarly-situated male employees with

7 respect to pay, promotion, and job placement.

8

97. Defendants have failed to prevent, respond to, adequately investigate,

9 and/or appropriately resolve this gender discrimination.

10

98. Defendants’ conduct has been intentional, deliberate, willful,

11 malicious, reckless, and conducted in callous disregard of the rights of the Class

12 Representative and all members of the California Class, entitling Class

13 Representative and all members of the California Class to punitive damages.

14

99. As a result of Defendants’ conduct alleged in this Complaint, the Class

15 Representative and the members of the California Class have suffered and continue

16 to suffer harm, including but not limited to, lost earnings, lost benefits, lost future

17 employment opportunities, and other financial loss, as well as non-economic

18 damages.

19

100. By reason of the continuous nature of Defendants’ discriminatory

20 conduct, which persisted throughout the employment of the Class Representative

21 and the members of the California Class, the continuing violations doctrine applies

22 to all violations alleged herein.

23

101. By reason of Defendants’ discrimination, the Class Representative

24 and the members of the California Class are entitled to all legal and equitable

25 remedies available for violations of the FEHA, including reinstatement and an

26 award of compensatory and punitive damages.

27

102. Attorneys’ fees should be awarded under Cal. Gov’t Code § 12940.

28

///

23 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 24 of 32 Page ID #:24

1

COUNT 4

2 DENIAL OF EQUAL PAY FOR EQUAL & SUBSTANTIALLY SIMILAR

3

WORK

4 (California Equal Pay Act, as amended by The California Fair Pay Act, Cal.

5 Lab. Code §1197.5, et seq.; California Equal Pay Act, Cal. Lab § 1197.5

6

(West 2015) (amended 2015))

7 (On Behalf of Class Representative, in her Individual and Representative

8

Capacities, and the California Class Against All Defendants)

9

103. Plaintiff re-alleges and incorporates by reference each and every

10 allegation contained in the previous paragraphs of this Complaint as though fully

11 set forth herein.

12

104. This Count is brought on behalf of Plaintiff in her individual and

13 representative capacities, and all members of the California Class.

14

105. Defendants have discriminated against Plaintiff and all members of

15 the California Class in violation of the California Equal Pay Act, Cal. Lab. Code §

16 1197.5 (West 2015) (amended 2015), et seq. Defendants have paid Class

17 Representative and members of the California Class less than similarly-situated

18 male colleagues in the same establishment performing equal work on jobs the

19 performance of which requires equal skill, effort, and responsibility, and which are

20 performed under similar working conditions.

21

106. Defendants have discriminated against Plaintiff and all members of

22 the California Class in violation of the California Equal Pay Act, as amended by

23 the California Fair Pay Act, Cal. Lab. Code § 1197.5 et seq. Defendants have paid

24 Class Representative and members of the California Class less than similarly-

25 situated male colleagues performing substantially similar work, when viewed as a

26 composite of skill, effort, and responsibility, and performed under similar working

27 conditions.

28

24 CLASS AND COLLECTIVE ACTION COMPLAINT

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1

107. Defendants subjected the Class Representative and the members of the

2 California Class to common discriminatory pay policies, including: a

3 discriminatory system of determining salaries, stock awards, bonuses, and other

4 compensation incentives; a discriminatory system of compensation levelling based

5 on job levels and career tracks; discriminating against women in assignment to job

6 level, band, career track, and titles, which results in women receiving lower base

7 and incentive compensation; and other forms of discrimination affecting pay.

8

108. The differential in pay between male and female employees was not

9 due to seniority, merit, or the quantity or quality of production, a bona fide factor

10 other than sex, such as education, training, or experience, but was due to gender.

11 In the alternative, to the extent that Defendants’ relied upon one or more of these

12 factors, said factor(s) were not reasonably applied and did/do not account for the

13 entire wage differential.

14

109. Defendants caused, attempted to cause, contributed to, or caused the

15 continuation of, the wage rate discrimination based on sex. Moreover, the

16 foregoing conduct constitutes a willful violation of the California Equal Pay Act,

17 Cal. Lab. Code § 1197.5 (West 2015) (amended 2015), et seq., and California Equal

18 Pay Act, as amended by the California Fair Pay Act, Cal. Lab. Code § 1197.5 et

19 seq. Therefore, a three-year statute of limitations applies to such violations,

20 pursuant to California Equal Pay Act, Cal. Lab. Code § 1197.5(h) (West 2015)

21 (amended 2015), et seq., and California Equal Pay Act, as amended by the

22 California Fair Pay Act, Cal. Lab. Code § 1197.5(i).

23

110. As a result of Defendants’ conduct alleged in this Complaint and/or

24 Defendants’ willful, knowing, and intentional discrimination, Plaintiff has suffered

25 and will continue to suffer harm, including but not limited to lost earnings, lost

26 benefits, and other financial loss, as well as non-economic damages. By reason of

27 the continuous nature of Defendants’ conduct, which persisted throughout the

28

25 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 26 of 32 Page ID #:26

1 employment of the Class Representative and the Class members, the continuing

2 violations doctrine applies to all violations alleged herein.

3

111. Plaintiff and the California Class are therefore entitled to all legal and

4 equitable remedies, including doubled compensatory awards for all willful

5 violations.

6

112. Attorneys’ fees should be awarded under California Labor Code §

7 1197.5(h).

8

COUNT 5

9 UNFAIR COMPETITION IN VIOLATION OF CALIFORNIA BUSINESS

10

AND PROFESSIONS CODE

11

California Business and Professions Code § 17200 et seq.

12 (On Behalf of Class Representative, in her Individual and Representative,

13

Capacities, and the California Class Against All Defendants)

14

113. Plaintiff re-alleges and incorporates by reference each and every

15 allegation contained in the previous paragraphs of this Complaint as though fully

16 set forth herein.

17

114. This Count is brought on behalf of Plaintiff in her individual and

18 representative capacities, and all members of the California Class.

19

115. Defendants are “persons” as defined under California Business &

20 Professions Code § 17021.

21

116. Defendants’ willful failure to pay women equally and otherwise to

22 offer women equal employment opportunities as alleged above, constitutes

23 unlawful and/or unfair and/or fraudulent activity prohibited by California Business

24 and Professions Code §17200. As a result of their unlawful and/or unfair and/or

25 fraudulent acts, Defendants reaped and continue to reap unfair benefits and illegal

26 profits at the expense of Plaintiff and the California Class. Defendants should be

27 enjoined from this activity.

28

26 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 27 of 32 Page ID #:27

1

117. By reason of the continuous nature of Defendants’ conduct, which

2 persisted throughout the employment of the Class Representative and the Class

3 members, the continuing violations doctrine applies to all violations alleged herein.

4

118. Accordingly, Plaintiff and the California Class members are entitled

5 to restitution with interest and other equitable relief, pursuant to Cal. Bus. & Prof.

6 Code §17203.

7

COUNT 6

8 CLAIMS UNDER THE PRIVATE ATTORNEYS GENERAL ACT OF 2004

9

(Cal. Lab. Code §2698 et seq.)

10 (On Behalf of Class Representative, in her Individual and Representative

11

Capacities, and the PAGA Class Against All Defendants)

12

119. Plaintiff re-alleges and incorporates by reference each and every

13 allegation contained in the previous paragraphs of this Complaint as though fully

14 set forth herein.

15

120. Plaintiff brings this claim on behalf of herself and other current and

16 former female employees directly employed by Western Digital Technologies,

17 Inc., Western Digital (Fremont), LLC, and/or Western Digital Media, LLC in

18 California in a Covered Position at any time on or after the date that is one year and

19 65 days prior to the date this Complaint is filed (excluding those who became

20 employed by Western Digital Corporation or an affiliated entity as a result of or in

21 connection with an acquisition on or after May 1, 2016)

22

121. The California Private Attorneys General Act of 2004, Cal. Lab. Code

23 §2698, et seq., gives any employee aggrieved by an employer's violation of the

24 Labor Code the right to file an action to recover civil penalties for Labor Code

25 violations.

26

122. The California Equal Pay Act, Cal. Lab. Code § 1197.5(a) prohibits

27 employers from “pay[ing…] employees at wage rates less than the rates paid to

28 employees of the opposite sex for substantially similar work, when viewed as a

27 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 28 of 32 Page ID #:28

1 composite of skill, effort, and responsibility, and performed under similar working

2 conditions,” except where the employer demonstrates the wage differential is based

3 upon a seniority system, merit system, system that measures earnings by quantity

4 or quality of production or a bona fide factor other than sex, these factors account

5 for the entire wage differential, and each factor relied upon is applied reasonably.

6 “Prior salary shall not, by itself, justify any disparity in compensation.” Cal. Lab.

7 Code § 1197.5(a)(3).

8

123. Defendants have violated the California Labor Code by paying

9 women a wage rate less than that paid to men equally for performing equal or

10 substantially similar work when viewed as a composite of skill, effort, and

11 responsibility, and performed under similar working conditions, in violation of the

12 California Equal Pay Act, Cal. Lab. Code § 1197.5(a).

13

124. The above-referenced violations are willful, intentional, and ongoing.

14 Plaintiff, as a private attorney general, seeks to recover the maximum civil penalties

15 for all violations.

16

125. On November 14, 2016, Plaintiff filed notice of her PAGA claims for

17 violations of Labor Code Section 1197.5, stemming from pay discrimination and

18 retaliation with the California Department of Labor and Workforce Development

19 and served that notice on Defendants via certified mail.

20

126. For wages owed as a result of gender-based pay inequity, Plaintiff

21 seeks the maximum penalties provided by Labor Code Section 210(a), which

22 provides a civil penalty as follows: (1) for any initial violation, one hundred dollars

23 ($100) for each failure to pay each employee; (2) for each subsequent violation, or

24 any willful or intentional violation, two hundred dollars ($200) for each failure to

25 pay each employee, plus twenty-five percent of the amount unlawfully withheld.

26 Plaintiff seeks a civil penalty of $200 per pay period per employee, plus twenty-

27 five percent of the unpaid wages owed in the aggregate to current and former

28 female attorneys on whose behalf Plaintiff brings this claim.

28 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 29 of 32 Page ID #:29

1

127. In addition, Plaintiff seeks costs and attorneys’ fees under Labor Code

2 Section 2699(g).

3 VIII. PRAYER FOR RELIEF ON CLASS, COLLECTIVE, AND PAGA

4

CLAIMS

5

128. WHEREFORE, the Plaintiff, Class Representative, and Collective

6 Action Representative, on her own behalf and on behalf of the respective Classes

7 and Collective Action Plaintiffs, prays that this Court:

8

129. Certify this case as a class action maintainable under Federal Rules of

9 Civil Procedure Rule 23(a), (b)(2) and/or (b)(3), on behalf of the proposed

10 Nationwide Class; designate the proposed Class Representative; and designate

11 Plaintiff’s counsel of record as Class Counsel for each Class;

12

130. Certify this case as a class action maintainable under Federal Rules of

13 Civil Procedure Rule 23(a), (b)(2) and/or (b)(3), on behalf of the proposed

14 California Class; designate the proposed Class Representative as representative;

15 and designate Plaintiff’s counsel of record as Class Counsel for each Class;

16

131. Certify this action as a collective action under the EPA on behalf of

17 the Collective Action Representative and the Collective Action class; designate the

18 proposed Collective Action Representative as representative of the Collective

19 Action class; promptly issue notice pursuant to 29 U.S.C. § 216(b) to all similarly

20 situated members of the Collective Action, which (1) apprises them of the

21 pendency of this action and (2) permits them to assert timely EPA claims in this

22 action by filing individual Consent to Join forms pursuant to 29 U.S.C. § 216(b);

23 and toll the statute of limitations on the claims of all members of the Collective

24 Action class from the date the original Complaint was filed until the Collective

25 members are provided with reasonable notice of the pendency of this action and a

26 fair opportunity to exercise their right to opt in as Collective Action Plaintiffs;

27

132. Declare and adjudge that Defendants’ employment policies, practices,

28 and/or procedures challenged herein are illegal and in violation of the rights of the

29 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 30 of 32 Page ID #:30

1 Plaintiff, Class Representative, Collective Action Representative, members of the

2 Nationwide and California Classes, and Collective Action Plaintiffs;

3

133. Issue a permanent injunction against Defendants and their partners,

4 officers, trustees, owners, employees, agents, attorneys, successors, assigns,

5 representatives, and any and all persons acting in concert with them from engaging

6 in any conduct violating the rights of Plaintiff, Class Representative, Collective

7 Action Representative, members of the Nationwide and California Classes,

8 Collective Action Plaintiffs, and those similarly situated as secured by Title VII,

9 and the Equal Pay Act, the FEHA, and the California Equal Pay Act and order such

10 injunctive relief as will prevent Defendants from continuing their discriminatory

11 practices and from engaging in any further unlawful practices, policies, customs,

12 usages, and gender discrimination as set forth herein;

13

134. Order Defendants to adjust the wage rates and benefits for the

14 respective Plaintiff, Class Representative, Collective Action Representative,

15 members of the Nationwide Class, and Collective Action Plaintiffs to the level that

16 they would be enjoying but for the Defendants’ discriminatory policies, practices,

17 and/or procedures;

18

135. Award back pay, front pay, lost benefits, preferential rights to jobs,

19 and other damages for lost compensation and job benefits suffered by Plaintiff,

20 Class Representative, Collective Action Representative, members of the

21 Nationwide and California Classes, and Collective Action Plaintiffs.

22

136. Award nominal, compensatory, and punitive damages to Plaintiff,

23 Class Representative, and members of the Nationwide Classes;

24

137. Award nominal and liquidated damages to Plaintiff, the Collective

25 Action Representative, and the Collective Action Plaintiffs in the maximum

26 amount available under the Equal Pay Act;

27

138. Order Defendants to make whole Plaintiff, Class Representative,

28 Collective Action Representative, members of the Nationwide and California

30 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 31 of 32 Page ID #:31

1 Classes, and Collective Action Plaintiffs by providing them with any other

2 monetary and affirmative;

3

139. Award litigation costs and expenses, including, but not limited to,

4 reasonable attorneys’ fees, to the Plaintiff, Class Representative, Collective Action

5 Representative, members of the Nationwide and California Classes, and Collective

6 Action Plaintiffs;

7

140. Award Plaintiff, Class Representative, Collective Action

8 Representative, members of the Nationwide and California Classes, and Collective

9 Action Plaintiffs, all pre-judgment interest and post-judgment interest available

10 under law;

11

141. Award Plaintiff, Class Representative, Collective Action

12 Representative, members of the Nationwide and California Classes, and Collective

13 Action Plaintiffs any other appropriate equitable relief;

14

142. Award civil penalties pursuant to the California Private Attorneys

15 General Act, Cal. Lab. Code §2698, et. seq.

16

143. Order that this Court retain jurisdiction of this action until such time

17 as the Court is satisfied that the Defendants have remedied the practices complained

18 of herein and are determined to be in full compliance with the law; and

19

144. Award additional and further relief as this Court may deem just and

20 proper.

21

22

23

24

25

26

27

28

31 CLASS AND COLLECTIVE ACTION COMPLAINT

Case 8:19-cv-00909 Document 1 Filed 05/14/19 Page 32 of 32 Page ID #:32

1

JURY DEMANDED

2 Plaintiff demands a trial by jury on all issues triable of right by jury.

3

4 Dated: May 14, 2019

5

Respectfully submitted,

6
/s/ David Sanford

7

David Sanford (Pro Hac Vice to be filed)

8

Danielle Fuschetti (CA SBN 294064)

SANFORD HEISLER SHARP, LLP

9

Felicia Medina (CA SBN 255804)

10

MEDINA ORTHWEIN, LLP

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

32 CLASS AND COLLECTIVE ACTION COMPLAINT

 
 Case 8:19-cv-00909-JVS-DFM Document 19 Filed 05/29/19 Page 1 of 40 Page ID #:235

1 David Sanford (DC SBN 457933 Pro Hac Vice) dsanford@sanfordheisler.com
2 SANFORD HEISLER SHARP, LLP 3 700 Pennsylvania Ave, SE, Suite 300
Washington, DC 20003 4 Telephone: (202) 499-5200 5 Facsimile: (202) 499-5199

6 Danielle Fuschetti (CA SBN 294064) dfuschetti@sanfordheisler.com

7 SANFORD HEISLER SHARP, LLP

111 Sutter Street, Suite 975 8 San Francisco, CA 94104

9 Telephone: (415) 795 2020 Facsimile: (415) 795 2021
10

11

Felicia Medina (CA SBN 255804) fmedina@medinaorthwein.com

12 MEDINA ORTHWEIN, LLP 1322 Webster St., #200
13 Oakland, CA 94612

14

Telephone: (510) 823-2040 Facsimile: (510) 217-3580

15 Attorneys for Plaintiff and the Class
16

17

UNITED STATES DISTRICT COURT

18

CENTRAL DISTRICT OF CALIFORNIA

19 YUNGHUI CHEN, on behalf of herself 20 and all others similarly situated,

21

PLAINTIFFS,

22 v.

23

WESTERN DIGITAL CORPORATION AND WESTERN DIGITAL

24 TECHNOLOGIES, INC.,

25

DEFENDANTS.

26

27

28

Case No. 8:19-cv-00909-JVS-DFM

PLAINTIFF’S AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

Date: Time: Courtroom: Judge:

July 1, 2019 1: 30 p.m. 10 C James V. Selna

Complaint Date: Trial Date:

May 14, 2019

Case 8:19-cv-00909-JVS-DFM Document 19 Filed 05/29/19 Page 2 of 40 Page ID #:236

1

TABLE OF CONTENTS

2

Page

3 I. INTRODUCTION ..................................................................................................... 1

4 II. BACKGROUND ....................................................................................................... 3

5

A. Western Digital Technologies Inc. & Western Digital Corporation............... 3

6

B. Plaintiff, The Classes, And the Collective ...................................................... 3

7

C. The Allegations ............................................................................................... 4

8

D. Pre-Suit Discovery, Negotiations, and Settlement .......................................... 5

9 III. KEY TERMS OF THE SETTLEMENT ................................................................... 6

10

A. $7.75 Million Non-Reversionary Total Settlement Fund ............................... 7

11

B. Cy Pres............................................................................................................. 7

12

C. Comprehensive Programmatic Relief ............................................................. 8

13

D. Released Claims .............................................................................................. 8

14

E. Attorneys’ Fees and Incurred Expenses .......................................................... 9

15

F. Service Award ............................................................................................... 10

16

G. Other Settlement Terms ................................................................................ 10

17 IV. STANDARD............................................................................................................ 11

18 V. THE COURT SHOULD CERTIFY THE CLASS FOR SETTLEMENT .............. 12

19

A. The Class Is Sufficiently Numerous to Make Joinder Impracticable ........... 13

20

B. Questions of Law or Fact Are Common to The Class .................................. 13

21

C. Class Representative’s Claims Are Typical of The Classes ......................... 15

22

D. Plaintiff and Her Counsel Will Fairly and Adequately Protect the Classes’

23

Interests, Satisfying Rule 23(a)(4) And Rule 23(g) ...................................... 16

24

E. The Requirements of Rule 23(b)(2) Are Satisfied ........................................ 17

25

F. Class Certification is Also Appropriate Under Rule 23(b)(3) ...................... 18

26

1. Common Issues Predominate.............................................................. 18

27

28 Case No. 8:19-cv-00909 PLF’S AM. MEM. OF POINTS & AUTHORITIES ISO PRELIMINARY APPROVAL
ii

Case 8:19-cv-00909-JVS-DFM Document 19 Filed 05/29/19 Page 3 of 40 Page ID #:237

1

2. A Class Action is the Superior Means of Adjudication...................... 18

2 VI. THE COURT SHOULD CONDITIONALLY CERTIFY THE EPA

3

COLLECTIVE ACTION UNDER 29 U.S.C. § 216(b). ......................................... 19

4 VII. THE COURT SHOULD PRELIMINARILY APPROVE THE PROPOSED

5

CLASS SETTLEMENT .......................................................................................... 21

6

A. The Proposed Settlement was the Product of Vigorous, Arm’s-Length,

7

Informed Negotiations by Experienced Counsel and Is Not Collusive ........ 21

8

B. The Settlement Provides Equitable Relief to the Class................................. 22

9

C. The Proposed Settlement Falls Within the Range of Reasonableness.......... 22

10

1. The Proposed Settlement Provides Good, Class-wide Relief Through

11

A Reasonable Distribution Method .................................................... 23

12

2. The Settlement is Reasonable in Light of the Risks, Expense, and

13

Delay of Continued Litigation. ........................................................... 24

14

3. Class Counsel’s Attorneys’ Fees Request is Reasonable ................... 25

15

4. The Relief to Plaintiff is Reasonable and Appropriate ....................... 26

16

5. The Extent of Discovery and the Stage of Proceedings ..................... 27

17

D. The Proposed Class Notice is Appropriate and Should be Approved .......... 28

18

E. Preliminary Approval is Appropriate Under the EPA .................................. 29

19

F. The Court Should Schedule a Fairness Hearing ........................................... 30

20 VIII. CONCLUSION........................................................................................................ 30

21

22

23

24

25

26

27

28 Case No. 8:19-cv-00909 PLF’S AM. MEM. OF POINTS & AUTHORITIES ISO PRELIMINARY APPROVAL
iii

Case 8:19-cv-00909-JVS-DFM Document 19 Filed 05/29/19 Page 4 of 40 Page ID #:238

1

TABLE OF AUTHORITIES

2 FEDERAL CASES

Page(s)

3 Aho v. Americredit Fin. Servs.,

4

277 F.R.D. 609 (S.D. Cal. 2011) ............................................................................. 17

5 Amchem Prods., Inc. v. Windsor,

6

521 U.S. 591 (1997)............................................................................................18-19

7 Barbosa v. Cargill Meat Solutions Corp.,

8

297 F.R.D. 431 (E.D. Cal. 2013) ............................................................................. 25

9 Bellifemine v. Sanofi-Aventis U.S. LLC,

10

No. 07 Civ. 2207, 2010 WL 3119374 (S.D.N.Y. Aug. 5, 2010)....................... 14, 17

11 Bellinghausen v. Tractor Supply Co.,

12

306 F.R.D. 245, 257 (N.D. Cal. 2015) .................................................................... 27

13 In re Bluetooth Headset Prods. Liab. Litig.,

14

654 F.3d 935 (9th Cir. 2011) ................................................................................... 22

15 Bond v. Ferguson Enters., Inc.,

16

No. 1:09-cv-01662 OWW MJS, 2011 WL 284962 (E.D. Cal. Jan. 25, 2011) . 22, 24

17 Brown v. Nucor Corp.,

18

785 F.3d 895 (4th Cir. 2015) ................................................................................... 14

19 Bruno v. Quten Research Inst., LLC,

20

280 F.R.D. 524 (C.D. Cal. 2011)............................................................................. 13

21 California v. eBay, Inc.,

22

No. 5:12-cv-5874-EJD, 2014 WL 4273888 (N.D. Cal. Aug. 29, 2014) ................. 11

23 Campanelli v. Hershey Co.,

24

No. C 08-1862 BZ, 2011 WL 3583597 (N.D. Cal 2011)........................................ 29

25 Campbell v. City of Los Angeles,

26

No. 15-56990, 2018 WL 4354379 (9th Cir., Sept. 13, 2018).................................. 20

27

28 Case No. 8:19-cv-00909 PLF’S AM. MEM. OF POINTS & AUTHORITIES ISO PRELIMINARY APPROVAL
iv

Case 8:19-cv-00909-JVS-DFM Document 19 Filed 05/29/19 Page 5 of 40 Page ID #:239

1 Carlson v. C.H. Robinson Worldwide, Inc.,

2

No. CIV 02–3789 JNE/JJG, 2006 WL 2671105 (D. Minn. 2006).......................... 26

3 Carter v. Anderson Merchandisers, LP,

4

2010 WL 1946784 (N.D. Cal. May 11, 2010)......................................................... 22

5 Ching v. Siemens Indus.,

6

No. C 11-4838 MEJ, 2013 U.S. Dist. LEXIS 169279 (N.D. Cal. Nov. 26, 2013) . 19

7 Class Plaintiffs v. City of Seattle,

8

955 F.2d 1268 (9th Cir. 1992)......................................................................................11

9 Clesceri v. Beach City Instruments & Protective Servs.,

10

No. CV-10-38730JST (RZx), 2011 WL 320998 (C.D. Cal. Jan. 27, 2011) ........... 11

11 Cotton v. Hinton,

12

559 F.2d 1326 (5th Cir. 1977) ................................................................................. 27

13 Ellis v. Costco Wholesale Corp.,

14

285 F.R.D. 492 (N.D. Cal. 2012) ........................................................... 14-15, 18-19

15 Ellis v. Naval Air Rework Facility,

16

87 F.R.D. 15 (N.D. Cal. 1980) ................................................................................ 21

17 Gamble v. Boyd Gaming Corp.,

18

Nos. 2:13–cv–01009–JCM–PAL, 213–cv–01043–JCM–PAL, 2:13–cv–01801–

19

JCM–PAL, 2015 WL 4874276 (D. Nev. Aug. 13, 2015) ....................................... 29

20 Glass v. UBS Fin. Servs., Inc.,

21

No. 06-4068, 2007 WL 221862 (N.D. Cal. Jan. 26, 2007) ................................. 6, 27

22 Grayson v. 7-Eleven, Inc.,

23

No. 09–CV–1353 MMA (WMc), 2011 WL 2414378 (S.D. Cal. 2011) ................. 18

24 Gripenstraw v. Blazin’ Wings, Inc.,

25

2013 WL 6798926 (E.D. Cal. Dec. 19, 2013) ......................................................... 24

26 Hanlon v. Chrysler Corp.,

27

28 Case No. 8:19-cv-00909 PLF’S AM. MEM. OF POINTS & AUTHORITIES ISO PRELIMINARY APPROVAL
v

Case 8:19-cv-00909-JVS-DFM Document 19 Filed 05/29/19 Page 6 of 40 Page ID #:240

1

150 F.3d 1011 (9th Cir. 1998) .......................................................... 12-13, 15-16, 21

2 Hanon v. Dataprods. Corp.,

3

976 F.2d 497 (9th Cir. 1992) ................................................................................... 15

4 Harris v. Vector Marketing Co.,

5

No. C–08–5198 EMC, 2011 WL 1627973

6

(N.D. Cal. Apr. 29, 2011) ........................................................................ 2, 21, 23, 26

7 Hazelwood School Dist. v. U.S.,

8

433 U.S. 299 (1977)................................................................................................. 14

9 Hensley v. Eppendorf N. Am., Inc.,

10

2014 WL 2566144 (S.D. Cal. June 6, 2014) ........................................................... 20

11 In re Heritage Bond Litig.,

12

02-ML-1475-DT(RCx), 2005 WL 1594403 (C.D. Cal. June 10, 2005).............25-26

13 In re High-Tech Employee Antitrust Litig.,

14

2015 WL 5158730 (N.D. Cal. Sept. 2, 2015).....................................................26-27

15 Hnot v. Willis Group Holdings Ltd.,

16

228 F.R.D. 476 (S.D.N.Y. 2005) ............................................................................. 15

17 Hofmann v. Dutch LLC,

18

317 F.R.D. 566 (S.D. Cal. Apr. 26, 2016)............................................................... 15

19 Illoldi v. Koi NY LLC,

20

No: 1:15-cv-6838, 2016 WL 3099372 (S.D.N.Y. May 31, 2016) .....................11-12

21 Ingram v. Coca-Cola Co.,

22

200 F.R.D. 685 (N.D. Ga. 2001) ............................................................................. 26

23 Jimenez v. Allstate Ins. Co.,

24

765 F.3d 1161 (9th Cir. 2014) ................................................................................. 13

25 La Parne v. Monex Deposit Co.,

26

No. SACV 08-0302, 2010 WL 4916606 (C.D. Cal. Nov. 29, 2010)..........................12

27

28 Case No. 8:19-cv-00909 PLF’S AM. MEM. OF POINTS & AUTHORITIES ISO PRELIMINARY APPROVAL
vi

Case 8:19-cv-00909-JVS-DFM Document 19 Filed 05/29/19 Page 7 of 40 Page ID #:241

1 Lee v. Timberland Co.,

2

No. C 07-2367 JF, 2008 WL 2492295 (N.D. Cal. June 18, 2008).......................... 29

3 Lemus v. H&R Block Enters.

4

LLC, No. C 09-3179 SI, 2012 WL 3638550 (N.D. Cal. Aug. 22, 2012) ................ 27

5 Leuthold v. Destination Am.,

6

224 F.R.D. 462 (N.D. Cal. 2004) ............................................................................ 20

7 Liberte Capital Group v. Capwill,

8

2007 WL 2492461 (N.D. Ohio Aug. 29, 2007)....................................................... 26

9 Local Joint Executive Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc.,

10

244 F.3d 1152 (9th Cir. 2001) ................................................................................. 18

11 Lopez v. G.A.T. Airline Ground Support, Inc., No. 98cv2268–IEG(BGS),

12

2010 WL 3633177 (S.D. Cal. Sept. 13, 2010) ........................................................ 18

13 Lynn’s Food Store, Inc. v. United States,

14

679 F.2d 1350 (11th Cir. 1982) ............................................................................... 29

15 Manouchehri v. Styles for Less, Inc.,

16

2016 WL 3387473 (S.D. Cal. June 20, 2016) ......................................................... 16

17 Mazza v. Am. Honda Motor Co.,

18

666 F.3d 581 (9th Cir. 2012) ................................................................................... 13

19 In re Mego Fin. Corp. Sec. Litig.,

20

213 F.3d 454 (9th Cir. 2000) ................................................................................... 27

21 Murillo v. Pac. Gas & Elec. Co.,

22

266 F.R.D. 468 (E.D. Cal. 2010) ............................................................................. 12

23 Norris-Wilson v. Delta-T Group, Inc.,

24

270 F.R.D. 596 (S.D. Cal. 2010) ............................................................................. 18

25 Officers for Justice v. Civil Service Comm. of the City and County of San Francisco,

26

688 F.2d 615 (9th Cir. 1982)..................................................................................11, 23

27

28 Case No. 8:19-cv-00909 PLF’S AM. MEM. OF POINTS & AUTHORITIES ISO PRELIMINARY APPROVAL
vii

Case 8:19-cv-00909-JVS-DFM Document 19 Filed 05/29/19 Page 8 of 40 Page ID #:242

1 In re Pacific Enters. Sec. Litig.,

2

47 F.3d 373 (9th Cir. 1995) ..................................................................................... 25

3 Palacios v. Newman Grain Inc.,

4

No. 1:14-cv-1804-DAD-SAB, 2016 WL 8730677 (E.D. Cal. May 27, 2016) ....... 28

5 Parsons v. Ryan,

6

754 F.3d 657 (9th Cir. 2014) ................................................................................... 18

7 Riker v. Gibbons,

8

3:08-cv-115-LRH-VPC, 2010 U.S. Dist. LEXIS 120841 (D. Nev. Oct. 28, 2010) ... 27

9 Rodriguez v. West Publ’g Corp.,

10

563 F.3d 948 (9th Cir. Cal. 2009).......................................................................23-24

11 Singer v. Becton Dickinson & Co.,

12

No. 08-CV-821 - IEG (BLM), 2010 WL 2196104 (S.D. Cal. Jun. 1, 2010) .......... 25

13 Smith v. CRST Van Expedited, Inc.,

14

No. 10-CV-1116-IEG (WMC), 2013 WL 163293 (S.D. Cal. Jan. 14, 2013) ......... 25

15 Stuart v. RadioShack Corp.,

16

No. C-07-4499 EMC, 2010 WL 3155645 (N.D. Cal. Aug. 9, 2010) ...................... 26

17 Tapia v. Zale Del., Inc.,

18

No. 13-CV-1565-BAS (PCL), 2016 WL 1385181 (S.D. Cal. Apr. 6, 2016).......... 15

19 Torrisi v. Tucson Elec. Power Co.,

20

8 F.3d 1370 (9th Cir. 1993) ..................................................................................... 25

21 Velez v. Novartis Pharm. Corp.,

22

244 F.R.D. 243 (S.D.N.Y. 2010)..................................................................14-15, 17

23 Wal-Mart Stores, Inc. v. Dukes,

24

131 S. Ct. 2541 (2011)...........................................................................13, 15, 17, 24

25 Wellens et. al. v. Daiichi Sankyo, Inc.,

26

No. C 13-00581 WHO (DMR) (N.D. Cal. Feb. 11, 2016)...................................... 21

27

28 Case No. 8:19-cv-00909 PLF’S AM. MEM. OF POINTS & AUTHORITIES ISO PRELIMINARY APPROVAL
viii

Case 8:19-cv-00909-JVS-DFM Document 19 Filed 05/29/19 Page 9 of 40 Page ID #:243

1 In re Wells Fargo Home Mortg. Overtime Pay Litig.,

2

571 F.3d 953 (9th Cir. 2009) ................................................................................... 18

3 Willix v. Healthfirst, Inc.,

4

No. 07 Civ. 1143(ENV)(RER), 2011 WL 754862 (E.D.N.Y. Feb. 18, 2011)........ 29

5 In re Wireless Facilities, Inc. Sec. Litig.,

6

253 F.R.D. 630 (S.D. Cal. 2008) ............................................................................. 11

7 Wright v. Stern,

8

553 F. Supp. 2d 337 (S.D.N.Y. 2008) ..................................................................... 26

9 STATE CASES

10 Consumer Privacy Cases,

11

175 Cal. App. 4th 545 (2009) .................................................................................. 25

12 FEDERAL STATUTES

13 29 U.S.C. § 206(d) ......................................................................................................... 4, 20

14 29 U.S.C. §§ 216(b) ........................................................................................2, 5, 19-20, 29

15 29 U.S.C. §§ 256 ................................................................................................................ 29

16 42 U.S.C. §§ 2000e et seq. ................................................................................................... 4

17 STATE STATUTES

18 Cal Bus. & Prof. Code § 17200 et seq. ................................................................................ 4

19 Cal. Gov. Code § 12940 et seq. ........................................................................................... 4

20 Cal. Lab. Code § 1197.5 ...................................................................................................... 4

21 Cal. Lab. Code § 2698 et seq. .............................................................................................. 4

22 RULES

23 Fed. R. Civ. P. 23 .........................................................................2, 11-15, 20-21, 24, 29-30

24 Fed. R. Civ. P. 23(a)......................................................................................................12-13

25 Fed. R. Civ. P. 23(a)(2) ...................................................................................................... 13

26 Fed. R. Civ. P. 23(a)(3) ...................................................................................................... 15

27

28 Case No. 8:19-cv-00909 PLF’S AM. MEM. OF POINTS & AUTHORITIES ISO PRELIMINARY APPROVAL
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1 Fed. R. Civ. P. 23(a)(4).................................................................................................16-17 2 Fed. R. Civ. P. 23(b)(2).................................................................................................17-18 3 Fed. R. Civ. P. 23(b)(3)................................................................................................ 18, 28 4 Fed. R. Civ. P. 23(c)(2)(B) ................................................................................................ 28 5 Fed. R. Civ. P. 23(e)................................................................................................12, 28-29 6 Fed. R. Civ. P. 23(e)(1) .......................................................................................... 12, 21, 28 7 Fed. R. Civ. P. 23(e)(2)...............................................................................12, 21-23, 26, 30 8 Fed. R. Civ. P. 23(e)(3)...................................................................................................... 23 9 Fed. R. Civ. P. 23(g) .....................................................................................................16-17 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 8:19-cv-00909 PLF’S AM. MEM. OF POINTS & AUTHORITIES ISO PRELIMINARY APPROVAL
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1 I. INTRODUCTION

2

On behalf of herself and approximately 1,370 similarly situated female employees

3 of Defendants Western Digital Corporation Inc. and Western Digital Technologies Inc.

4 (collectively “Western Digital”), Plaintiff Yunghui Chen (“Plaintiff”) moves for

5 preliminary approval of this class, collective action, and PAGA settlement (the

6 “Settlement”) of claims related to gender discrimination in employment. Reached prior to

7 the initiation of formal litigation, the Settlement represents a victory for current and future

8 female employees at Western Digital. In addition to a $7,750,000 non-reversionary fund,

9 the Settlement provides for two years of extensive programmatic relief to be monitored by

10 Plaintiff’s Counsel.

11

The proposed settlement is the product of over two years of arm’s length

12 negotiations over a tolling agreement, substantial pre-suit discovery, mediation, and

13 dueling expert statistical analyses of class-wide data. Before pursuing material settlement

14 discussions, Plaintiff and Western Digital (the “Parties”) engaged in a fulsome

15 investigation, including an exchange of data and documents pertaining to Plaintiff, the

16 proposed classes, and the claims. This voluntary interchange enabled the Parties to conduct

17 meaningful and intense negotiations with a keen eye towards the strengths and weaknesses

18 of their positions and the value of the claims pled. Both parties completed expert statistical

19 analyses of class-wide data that informed their views of the case and ultimately helped set

20 the parameters for settlement talks. All negotiations were conducted at arm’s length and

21 were facilitated by a highly-experienced and nationally-esteemed employment mediator,

22 David Rotman of Gregorio, Haldeman & Rotman in San Francisco, California. The Parties

23 agreed in principle to certain salient terms of the Settlement only after months of protracted

24 negotiations and a full day of mediation conducted by Mr. Rotman, and spent close to two

25 years intensely negotiating over the final terms.

26

The Settlement is an extraordinary outcome for women at Western Digital. The non-

27 reversionary $7.75 Million Settlement fund represents great value for the Classes, resulting

28

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1 in an average recovery of at least approximately $3,615 per class member, and the

2 comprehensive programmatic relief commits Western Digital to concrete measures

3 designed to ensure accountability and equal opportunity for women. The fact that the

4 Parties were able to reach such a favorable settlement without years of risky and expensive

5 litigation is a testament to both Western Digital and the Plaintiff; and, the early resolution

6 of this matter, itself, presents substantial benefits to the Class Members and promotes

7 judicial economy.

8

The Settlement is the best possible outcome of this matter given the substantial risks

9 and delays associated with litigation. Accordingly, the Settlement demonstrably “falls

10 within the range of possible approval.” Harris v. Vector Marketing Co., No. C–08–5198

11 EMC, 2011 WL 1627973, at *9 (N.D. Cal. Apr. 29, 2011). The Court should therefore

12 authorize notice to the Class Members and submit the Settlement to them for their feedback

13 and approval.

14

In order to effectuate the Settlement, Plaintiff respectfully moves the Court to:

15

(i) Certify the proposed Rule 23 Settlement Class, including

16

(a) A Nationwide subclass for pay, promotion, and placement discrimination

17

claims brought under Title VII;

18

(b) A California subclass for pay, promotion, and placement discrimination

19

claims and related claims under California law;

20

(ii) Appoint the Plaintiff as Class Representative and Plaintiff’s Counsel as Class

21

Counsel;

22

(iii) Conditionally certify the EPA Collective Action under 29 U.S.C. § 216(b);

23

(iv) Preliminarily approve the Settlement;

24

(v) Approve the Notice of Settlement for mailing to the Class Members; and;

25

(vi) Schedule a Final Fairness Hearing.

26

27

28

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1 II. BACKGROUND

2

3

Western Digital Corporation is a computer data storage company and one of the

4 largest hard disk manufacturers in the world. It employs over 5,000 employees in the

5 United States, with approximately 1,400 at its former headquarters in Irvine, California. In

6 the U.S., it operates largely through Western Digital Technologies Inc. (“WDT”), HGST,

7 and SanDisk.1 Western Digital Technologies Inc., along with its subsidiaries, Western

8 Digital (Fremont), LLC, and Western Digital Media, LLC, operates many of Western

9 Digital Corporation’s U.S. engineering, research, and development functions and offer

10 many of its products and services.

11

12

Plaintiff Yunghui Chen was employed at Western Digital for more than ten years,

13 concluding in September 2016. She has been pursuing this case for more than two and a

14 half years. As stated in the civil Complaint, Doc. No. 1, she seeks to represent current and

15 former female WDT (and subsidiary) employees through class, collective, and PAGA

16 representative claims related to gender discrimination in pay, promotions, and job

17 placement.

18

The Settlement class consists of two mutually exclusive subclasses – a California

19 Sub-Class and a Nationwide Sub-Class, as well as a group of “Collective Action Plaintiffs”

20 that overlaps with both subclasses. The “Nationwide Sub-Class” comprises:

21

22

[W] omen directly employed by Western Digital Technologies, Inc., Western Digital (Fremont), LLC, and/or Western Digital Media, LLC in a Covered

23

Position2 as regular employees in the United States at any time from November

24

1, 2013 through the date of the Order Granting Preliminary Approval,

25

1 Western Digital Corporation and Western Digital Technologies Inc. are collectively 26 referred to herein as “Western Digital” or “the Company.”

27 2 The Settlement defines “Covered Position” as an indirect labor position at the Senior

Manager level or below. Settlement §1.8.

28

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1

(excluding those who became employed by Western Digital Corporation or an

2

affiliated entity as a result of or in connection with an acquisition on or after May 1, 2016), who do not opt out of the monetary relief provisions of the

3

Settlement, and excluding any member of the California Sub-class.

4 Settlement § 1.17.

5

The “California Sub-Class” comprises:

6

[W] omen directly employed by Western Digital Technologies, Inc., Western

7

Digital (Fremont), LLC, and/or Western Digital Media, LLC in California in a

8

Covered Position at any time from November 1, 2012 through the date of the

Order Granting Preliminary Approval, (excluding those who became employed

9

by Western Digital Corporation or an affiliated entity as a result of or in

10

connection with an acquisition on or after May 1, 2016), who do not opt out of

the monetary relief provisions of the Settlement.

11

12 Settlement § 1.3. The Settlement defines “Collective Action Plaintiffs” identically to the

13 Class Action Sub-Class, except that it does not exclude members of the California Sub-

14 Class. Settlement § 1.6. Thus, any individual who is a collective action is also a member

15 of one of the two sub-classes. To date, there are approximately 1,370 class members.

16

17

On behalf of the Classes and the Collective, Plaintiff alleges that Western Digital

18 systemically failed to pay women equally to men and discriminated against women in pay,

19 promotions, and placement, in violation of the federal Equal Pay Act (“EPA”), 29 U.S.C.

20 § 206(d); the California Equal Pay Act (“CEPA”), Cal. Lab. Code § 1197.5; Title VII, 42

21 U.S.C. §§ 2000e et seq.; and the California Fair Employment and Housing Act (“FEHA”),

22 Cal. Gov. Code § 12940 et seq. Complaint ¶¶ 72–112. Plaintiff also asserts derivative

23 claims under the California Unfair Competition Law, Cal Bus. & Prof. Code § 17200 et

24 seq. and the California Private Attorneys General Act (“PAGA”), Cal. Lab. Code § 2698

25 et seq., for violations of the California Equal Pay Act on behalf of the Classes. Id ¶¶ 113–

26 26. These allegations are based on common systems of compensation and promotion that

27

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1 result in unjustified, widespread, and uniform disparities in compensation, promotion, and

2 placement. Id. ¶¶ 18-23.

3

Western Digital has consistently denied any wrongdoing and has denied all of

4 Plaintiff’s individual and class allegations; it maintains that Plaintiff’s individual and

5 representative claims lack factual and legal merit. Western Digital further maintains that,

6 absent a settlement, Plaintiff would not be able to certify a class action under Federal Rule

7 of Civil Procedure 23 or a collective action on the EPA claims under 29 U.S.C. § 216(b).

8

9

Plaintiff initiated this case by dual-filing a class Charge of Discrimination with the

10 United States Equal Employment Opportunity Commission (“EEOC”) and a Complaint of

11 Discrimination with the California Department of Fair Employment and Housing

12 (“DFEH”) on October 7, 2016, Plaintiff. See Fuschetti Decl. ¶ 7. In the following months

13 Plaintiff’s Counsel and Western Digital’s counsel, O’Melveny & Myers LLP, met and

14 conferred regarding exploring a pre-suit resolution of Plaintiff’s individual, class, and

15 collective claims prior to litigation, and ultimately agreed to engage in private mediation.

16

Prior to the April 27, 2017 mediation, the parties engaged in substantial informal

17 discovery. Early in negotiations, Western Digital produced substantial amounts of

18 information concerning Plaintiff. Western Digital then made three comprehensive

19 productions of class-wide data. The final production contained hundreds of pages of relevant

20 documents, including over four years of compensation and other employment information

21 pertaining to class members. Id. at ¶ 12. Defendants also provided a written explanation

22 of the data systems and responded to Plaintiff’s written questions about the data. The

23 Parties’ counsel spent many hours conferring and corresponding on the phone and in writing,

24 until Class Counsel was confident that they had reached a clear understanding of the data and

25 its implications.

26

Both Parties retained statisticians to analyze the class data. Plaintiff hired Dr. Dwight

27 Steward, a highly-regarded economist with a long track record of performing complex

28

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1 analyses specifically for litigation. Id. at ¶ 13. Dr. Steward and his team analyzed the data

2 for disparities in pay and promotions and produced multiple controlled regression models.

3 Id. In addition to relying on Dr. Steward’s analyses, Plaintiff’s counsel analyzed the data

4 internally to gain insights about the class. On April 20, 2017, to prepare for the mediation,

5 the Parties’ experts and counsel conferred via phone regarding their respective

6 methodologies.

7

On April 27, 2017, the Parties participated in a full-day mediation before David

8 Rotman, a most highly-regarded mediator with a track record of resolving challenging and

9 high-stakes disputes, including in the field of employment law. Id. at ¶ 14. See Glass v.

10 UBS Fin. Servs., Inc., No. 06-4068, 2007 WL 221862, at *1 (N.D. Cal. Jan. 26, 2007)

11 (citing Mr. Rotman’s reputation as “one of the preeminent mediators of employment law

12 claims in the country" and describing him as “a well-respected mediator with substantial

13 experience in employment litigation”). The Parties reached an agreement in principle to

14 settle the case for $7.75 Million and executed a brief Memorandum of Understanding

15 regarding several key terms of the settlement. Id.3

16

Following the mediation, the Parties continued to negotiate vigorously over other

17 Settlement terms, including the class definitions, programmatic relief, settlement allocation

18 formula, and scope of the release, among other matters. Id. at ¶ 15. On May 14, 2019, the

19 Parties executed the Class Settlement Agreement. Id.

20 III. KEY TERMS OF THE SETTLEMENT

21

The Settlement represents an outstanding result for both current and former female

22 employees of Western Digital. The non-reversionary Settlement Fund provides a

23 significant settlement payment to each Class and Collective Member, in addition to class-

24 wide programmatic relief, tailored to the claims and designed to secure equal opportunity

25 for women at Western Digital. The Settlement has the support of Plaintiff, Class Counsel,

26

27 3 After reaching the class MOU, the parties also reached a confidential agreement to resolve

Plaintiff’s other individual and non-class claims.

28

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1 and Western Digital.

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 4 Our Mission and How We Work, Legal Aid at Work (2018), 27 https://legalaidatwork.org/our-mission-and-how-we-work/.

28

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1

2

3

4

5

6

7

Under the Settlement, Western Digital will also undertake sweeping programmatic

8 measures to help eliminate gender disparities and foster equal employment opportunity

9 going forward. As detailed in the Agreement, Defendants will undertake initiatives to (1)

10 evaluate, promote, and compensate women equitably; (2) perform statistical analyses with

11 regard to evaluation, promotion, and compensation; (3) design and execute leadership

12 development initiatives for women; (4) bolster their policies regarding flexible work

13 arrangements and maternity and parental leave; (5) maintain records relevant to this

14 agreement; (6) reinforce their commitment to EEO compliance and enforcement; and (7)

15 enhance their processes for investigation of internal complaints, such as complaints of

16 gender discrimination. Settlement §§ 3.4–3.10. In order to ensure the Company’s

17 compliance with the agreement, Western Digital will also appoint a Compliance Monitor

18 who will determine whether the terms and conditions of the agreement have been satisfied.

19 Settlement § 3.2. These extensive and wide-ranging reforms will have a tangible impact

20 on the daily experience of women working at Western Digital.

21

22

23 5 See also Project Survive, Legal Aid at Work (2018), https://legalaidatwork.org/our-
24 programs/domestic-violence-survivors/; Work & Family, Legal Aid at Work (2018),

25 https://legalaidatwork.org/our-programs/work-and-family-program/; Fair Play For Girls

in Sports, Legal Aid at Work (2018), https://legalaidatwork.org/our-programs/fair-play26 for-girls-in-sports/;

27 6 Who We Are, Legal Aid Society of Orange County (2019), http://dev.www.legal-

aid.com/about-us/who-we-are/.

28

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1

2

3

4

5

6

7

8

9

10

11

12

13

Class Counsel will apply for reasonable attorneys’ fees and reimbursement of their

14 incurred out-of-pocket costs in a combined amount totaling $2,583,333, or 33 1/3% of the

15 $7.75 million Settlement Fund. Settlement § 5.1. The Court need not rule on Class

16 Counsel’s fees and costs now; Plaintiff will file a formal application prior to the Final

17 Fairness Hearing. As Plaintiff will explain in detail in the application, $2,583,333 in

18 combined fees and costs is reasonable and well-justified in consideration of the risks Class

19 Counsel has undertaken in pursuing this case on a contingency basis, and the outstanding

20 result achieved on behalf of the Classes and Collective.

21

While settling this case efficiently, Class Counsel has ably represented the classes’

22 interests, as evidenced by this Agreement. Plaintiff’s Counsel has invested over 1,000

23 hours, and over $500,000 in attorneys and staff time, and incurred costs of approximately

24 $115,000. Plaintiff’s Counsel anticipates investing a total of approximately 1200 hours of

25 attorney and staff time and $130,000 in costs through the final approval hearing, and

26 hundreds of additional hours over the course of the two-year consent decree period.

27

28

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1

Plaintiff’s Counsel’s service to the class has included investigating the claims and

2 researching the law, drafting and filing charges with the EEOC, DFEH, and LWDA,

3 conducting informal discovery, drafting the Complaint, analyzing the data with the

4 assistance of their expert, engaging in extensive settlement negotiations, and preparing for

5 and participating in a full day of formal mediation. Fuschetti Decl. ¶ 18. Sanford Heisler

6 Sharp has extended approximately $115,000 in expenses, the majority of which covered

7 the cost of expert statistical analysis of class data and of mediation. Class Counsel will

8 continue to incur substantial time and expenses throughout the next two (2) years as they

9 advise Class and Collective Members regarding the Settlement and monitor Western

10 Digital’s compliance with the Settlement’s robust programmatic relief provisions. Id. ¶ 22.

11

12

Pursuant to the terms of the Settlement, Plaintiff will seek a service award of

13 $50,000. Settlement § 6.1. The proposed service award represents just 0.65% of the total

14 cash settlement and will not significantly reduce the awards to the Class and Collective

15 Members. The Court need not rule on the service awards now; Plaintiff will file a formal

16 application prior to the Final Fairness Hearing.

17

The service award is well deserved in light of the risks and burdens Plaintiff

18 undertook in order to be able to step forward on behalf of the class. Plaintiff has been

19 involved at every step of this case and has had a large impact on every aspect of its

20 investigation and resolution. Chen Decl. ¶¶ 5, 14. As the sole named class representative,

21 Plaintiff is also acutely aware that, by initiating this action on a class basis, she is putting

22 her career and livelihood at risk. Id. at ¶ 18-19. Plaintiff had already ceased working at

23 Western Digital when the case was initiated, and still accepted the risk that potential

24 employers would refuse to hire her upon learning of the lawsuit. Id. ¶ 9.

25

26

Pursuant to the Settlement, $75,000 is allocated for payment of the State of

27 California’s share of civil penalties to the California Labor and Workforce Development

28

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1 Agency. Settlement § 4.2.1. Additionally, the Settlement allocates $50,000 for the fees and

2 costs of the Class Administrator. Settlement § 4.2.2. Class Counsel sought out quotes from

3 three Class Administrators and believes that actual costs of administration will be less than

4 $50,000, resulting in a small increase in the amount of class member payments.

5 IV. STANDARD

6

It is well-settled that “[j]udicial policy favors settlement of class actions, as substantial

7 resources can be saved by avoiding the time, cost, and rigors of formal litigation.”7 Clesceri

8 v. Beach City Instruments & Protective Servs., No. CV-10-38730JST (RZx), 2011 WL

9 320998, at *7 (C.D. Cal. Jan. 27, 2011). Further: “Courts encourage early settlement of

10 class actions, when warranted, because early settlement allows class members to recover

11 without unnecessary delay and allows the judicial system to focus resources elsewhere.”

12 Illoldi v. Koi NY LLC, No: 1:15-cv-6838, 2016 WL 3099372, at *4 (S.D.N.Y. May 31,

13 2016). See also, e.g., California v. eBay, Inc., No. 5:12-cv-5874-EJD, 2014 WL 4273888,

14 at *6 (N.D. Cal. Aug. 29, 2014) (suggesting that where parties are in an adequate position

15 to evaluate a settlement, resolution at an early juncture favors settlement approval).

16

The procedure for deciding whether to approve a proposed Rule 23 class action

17 settlement is generally a two-step process involving a preliminary approval stage and a

18 final fairness hearing. In re Wireless Facilities, Inc. Sec. Litig., 253 F.R.D. 630, 634 (S.D.

19 Cal. 2008). At the first stage, the Court makes a preliminary determination as to whether

20 certification of a settlement class is warranted and whether the proposed settlement is fair,

21 reasonable, and adequate. See id. Then, the court approves the “form and manner of notice

22 and sets a final fairness hearing, where it will make a final determination of the class

23 settlement.” Id.

24

25 7 See also, e.g., Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992) (noting

the “the strong judicial policy that favors settlements, particularly where complex class action 26 litigation is concerned”); Officers for Justice v. Civil Service Comm. of the City and County

27 of San Francisco, 688 F.2d 615, 625 (9th Cir. 1982) (asserting that “[v]oluntary conciliation

and settlement are the preferred means of dispute resolution”).

28

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Under Federal Rules of Civil Procedure 23(e), preliminary approval is appropriate if

2 the parties demonstrate that the Court will likely be able to “(i) approve the proposal under

3 Rule 23(e)(2); and (ii) certify the class for purposes of judgment on the proposal.” Fed. R.

4 Civ. Proc. R. 23(e)(1)(B). At the preliminary approval stage, the court need only “determine

5 whether the proposed settlement is within the range of possible approval,” Murillo v. Pac.

6 Gas & Elec. Co., 266 F.R.D. 468, 479 (E.D. Cal. 2010), while giving “proper deference to

7 the private consensual decision of the parties,” Hanlon v. Chrysler Corp., 150 F.3d 1011,

8 1027 (9th Cir. 1998). At this juncture, “[t]he court is really only concerned with whether the

9 proposed settlement discloses grounds to doubt its fairness or other obvious deficiencies. . . .

10 The court is assisted in its inquiry where [. . .] the stipulation and settlement appear to be, for

11 the most part, the result of vigorous, arms-length bargaining.” Murillo, 266 F.R.D. at 479.

12 “[T]he settlement need only be potentially fair, as the Court will make a final determination

13 of its adequacy at the hearing on final approval, after such time as any party has had a chance

14 to object and/or opt out.” La Parne v. Monex Deposit Co., No. SACV 08-0302, 2010 WL

15 4916606, at *2 (C.D. Cal. Nov. 29, 2010).

16

As courts and commentators have stated, preliminary approval essentially amounts to

17 a determination that there is “probable cause” to believe that the settlement may be fair,

18 sufficient to warrant submitting the agreement to the Class Members for their input. See, e.g.,

19 Illoldi, 2016 WL 3099372, at *1 (“The preliminary determination of fairness is at most a

20 determination that there is what might be termed ‘probable cause’ to submit the proposal

21 to class members and hold a full-scale hearing as to its fairness.”). The class members then

22 vote on the settlement by deciding whether to opt-out or object to its terms.

23 V. THE COURT SHOULD CERTIFY THE CLASS FOR SETTLEMENT

24

In order to effectuate the Settlement, the Parties have stipulated to the certification of

25 two Rule 23 subclasses: the “Nationwide Sub-Class” and “California Sub-Class” specified

26 above. As the proposed Classes satisfy all the requirements of Rule 23(a) – numerosity,

27 commonality, typicality, and adequacy – preliminary certification is appropriate.

28

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A. The Class Is Sufficiently Numerous to Make Joinder Impracticable

2

The Rule 23 Class totals approximately 1,370 members. This number is more than

3 sufficient to establish numerosity under Rule 23(a). See Bruno v. Quten Research Inst., LLC,

4 280 F.R.D. 524, 533 (C.D. Cal. 2011).

5

B. Questions of Law or Fact Are Common to The Class

6

Commonality is construed permissively, and just one common question will satisfy Rule

7 23(a)(2). Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1165 (9th Cir. 2014) (citing Wal-Mart

8 Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011)). “All questions of fact and law need not

9 be common to satisfy the rule. The existence of shared legal issues with divergent factual

10 predicates is sufficient, as is a common core of salient facts coupled with disparate legal

11 remedies within the class.” Hanlon, 150 F.3d at 1019. “[C]ommonality only requires a

12 single significant question of law or fact,” Mazza v. Am. Honda Motor Co., 666 F.3d 581,

13 589 (9th Cir. 2012), where that question is capable of “generat[ing] common answers apt

14 to drive the resolution of the litigation,” Dukes, 131 S.Ct. at 2551.

15

On behalf of the Classes, Plaintiff alleges that: (1) Western Digital systemically pays

16 Class Members less than their male colleagues who perform substantially similar work, in

17 violation of the state and federal Equal Pay Acts, Title VII, and FEHA; (2) Class Members

18 have been denied promotions and promoted at a slower rate than equally or less qualified

19 men in violation of Title VII and FEHA; and (3) Class Members have been

20 disproportionately placed into lower paying positions compared to equally or less qualified

21 men in violation of Title VII and FEHA.

22

The resolution of these claims presents a series of common questions more than

23 capable of satisfying the Dukes standard. These shared questions include: (1) whether

24 Western Digital treated women differently than men in the application of its compensation,

25 promotion, and/or placement policies and procedures; (2) whether Western Digital’s

26 compensation, promotion, and/or placement policies and procedures have an adverse

27

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1 impact on women; and (3) if adverse impact is shown, and whether Western Digital

2 satisfies its affirmative defenses to maintain such discriminatory policies and procedures.

3

Statistical analysis of class data indicates the existence of common injuries

4 stemming from pay, promotion, and placement discrimination. After controlling for a

5 range of potential non-discriminatory factors, Dr. Steward found statistically significant

6 pay disparities between class members and their male counterparts, strongly suggesting

7 systematic injuries, endemic to the Classes. The standard deviations associated with these

8 disparities are well above the recognized two-standard-deviations that establishes prima

9 facie proof of a pattern or practice of discrimination. Such pronounced disparities may, in

10 themselves, be sufficient to establish class-wide liability. See, e.g., Hazelwood School

11 Dist. v. U.S., 433 U.S. 299, 307-308, 309 n.14 (1977) (holding that gross statistical

12 disparities, typically those “greater than two or three standard deviations,” “alone may in a

13 proper case constitute prima facie proof of a pattern or practice of discrimination”); Brown

14 v. Nucor Corp., 785 F.3d 895 (4th Cir. 2015) (finding that decertification constituted an

15 abuse of discretion when plaintiff’s allegations of systematic discrimination were

16 supported by statistical evidence significant to 2 standard deviations).

17

These questions are likely to generate common answers which are determinative of

18 the litigation at hand. See Ellis v. Costco Wholesale Corp., 285 F.R.D. 492, 506-533 (N.D.

19 Cal. 2012) (finding commonality and certifying Rule 23 class where plaintiffs alleged their

20 employer engaged in a pattern or practice of gender discrimination in the promotion of

21 female employees to management positions).8

22

23

24

25 8 See also Velez v. Novartis Pharm. Corp., 244 F.R.D. 243, 257–67 (S.D.N.Y. 2010)

(commonality established where all class members bring common claims that Novartis 26 discriminated against female sales employees with respect to wages, promotion and

27 pregnancy”); Bellifemine v. Sanofi-Aventis U.S. LLC, No. 07 Civ. 2207, 2010 WL

3119374, at *1 (S.D.N.Y. Aug. 5, 2010).

28

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1

C. Class Representative’s Claims Are Typical of The Classes

2

“Courts evaluate the typicality requirement of Rule 23(a)(3) by considering whether

3 the named representative and the class members have similar injuries and whether those

4 injuries arise from the same course of conduct.” Tapia v. Zale Del., Inc., No. 13-CV-1565-

5 BAS (PCL), 2016 WL 1385181, *9 (S.D. Cal. Apr. 6, 2016) (citing Hanon v. Dataprods.

6 Corp., 976 F.2d 497, 508 (9th Cir. 1992)). This standard does not require uniformity. “The

7 Ninth Circuit interprets typicality permissively,” and “representative claims are typical if

8 they are ‘reasonably co-extensive with those of absent class members,’ though they ‘need

9 not be substantially identical.’” Hofmann v. Dutch LLC, 2016 U.S. Dist. LEXIS 55628, at

10 *7 (S.D. Cal. Apr. 26, 2016) (citing Hanlon, 150 F.3d at 1020); see also Ellis, 285 F.R.D.

11 at 517 n.16 (“[E]ven post-Dukes, class members need not be identical with no distinctions

12 in their personal employment history. . . Were that the standard, Rule 23 would cease to

13 exist altogether.”).

14

Plaintiff’s claims and those of the Classes arise from the same course of conduct:

15 Defendants’ discriminatory policies and systems that resulted in female employees being

16 systematically denied pay, promotions, and placement equal to that of comparable male

17 employees. Western Digital’s company-wide policies, practices, and procedures

18 concerning pay levelling, stock and bonus distribution, promotions (such as a tap-on-the-

19 shoulder selection process and failure to post open positions), and placement practices are

20 the root of the reduced pay and advancement opportunities that both Plaintiff and the Class

21 Members experienced. As no defenses to the class-wide pay, promotion, and placement

22 claims are unique to Plaintiff, her claims are typical.9

23

24

25 9 See Ellis, 285 F.R.D. at 533-535; Velez, 2010 WL 4877852 at *9 (plaintiffs found to be

typical where they alleged that they and all class members were discriminated against on 26 the basis of their gender); Hnot v. Willis Group Holdings Ltd., 228 F.R.D. 476 (S.D.N.Y.

27 2005) (typicality satisfied where plaintiffs allege suffering from similar discriminatory

practices as the other class members).

28

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1

D. Plaintiff and Her Counsel Will Fairly and Adequately Protect the

2

Classes’ Interests, Satisfying Rule 23(a)(4) And Rule 23(g)

3

Rule 23(a)(4) requires that class representatives “fairly and adequately protect the

4 interests of the class.” To determine this, courts undertake a two-part inquiry: “(1) do the

5 named plaintiffs and their counsel have any conflicts of interest with other class members

6 and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf

7 of the class?” Manouchehri v. Styles for Less, Inc., 2016 WL 3387473, at *3 (S.D. Cal.

8 June 20, 2016) (citing Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019). Rule 23(g)

9 requires the Court to consider proposed class counsel’s prior experience, knowledge, and

10 ability to properly represent the Classes.

11

Plaintiff easily satisfies Rule 23(a)(4). No conflicts of interest exist between

12 Plaintiff and Class Members. Plaintiff and Class Members share the same common goal:

13 rooting out systemic gender discrimination at Western Digital and equalizing pay,

14 promotion, and placement opportunities for women at the company. Manouchehri, 2016

15 WL 3387473 at *3. As a long-term employee who dedicated her career to Western Digital,

16 Plaintiff is committed both to remedying the impacts of discrimination and to preventing

17 future discrimination. Plaintiff has vigorously prosecuted this case on behalf of the Classes

18 and will continue to do so. See supra III(F); Chen Decl. ¶¶ 5, 14. Her efforts have achieved

19 not only a highly favorable monetary result for the Classes, but comprehensive structural

20 reforms that will benefit all female employees at Western Digital.

21

Class Counsel are two preeminent plaintiffs’ firms experienced in complex class

22 litigation, especially gender discrimination cases. See Sanford Decl. ¶ 7 and Medina Decl.

23 ¶ 5. Sanford Heisler Sharp, a nationwide civil rights firm specializing in employment

24 matters, has served as lead or co-lead counsel in approximately fifty class and collective

25 actions, covering class members in most of the states in the country. Sanford Decl. ¶ 7. It

26 has consistently achieved outstanding class results, including the largest jury verdict in a

27 Title VII discrimination class action in U.S. history, and been recognized repeatedly for its

28

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1 zealous and high-caliber advocacy.10 Id. at ¶ 10-13. Medina Orthwein LLP is a civil rights

2 litigation firm founded by two prominent civil rights attorneys, Felicia Medina and Jennifer

3 Orthwein. The Firm focuses on employment and corrections cases with a unique emphasis

4 on advocating for plaintiffs with intersectional identities. Medina Decl. ¶ 5. Felicia

5 Medina, who received her law degree from Yale Law School in 2006, has been named a

6 Law360 “Rising Star,” a Law360 “Minority Powerbroker,” and a San Francisco

7 SuperLawyer Rising Star. Id. In 2016, she was honored as one of the National LGBT Bar

8 Association’s “Best LGBT Lawyers under 40.” Id. As discussed above, Plaintiff’s

9 Counsel have pursued this case zealously and are prepared to continue to advocate for the

10 class. See supra II(D) & III(E). Accordingly, both Rule 23(a)(4) and Rule 23(g) are

11 satisfied.

12

E. The Requirements of Rule 23(b)(2) Are Satisfied

13

Rule 23(b)(2) allows class treatment when “the party opposing the class has acted or

14 refused to act on grounds that apply generally to the class, so that final injunctive relief or

15 corresponding declaratory relief is appropriate respecting the class as a whole.” Aho v.

16 Americredit Fin. Servs., 277 F.R.D. 609, 615 (S.D. Cal. 2011) (citing Dukes, 131 S.Ct. at

17 2558). In a (b)(2) class, “notice to absent class members and an opportunity to opt out of

18 the class is not required.” Id. at 614.

19

In this case, Plaintiff maintains that Western Digital uses uniform pay, promotion, and

20 placement policies and practices, in concert with a discriminatory culture promoted by

21 Western Digital’s senior management. Consequently, the programmatic relief negotiated by

22 the Parties to address those policies and practices will “provide relief to each member of the

23

24

25 10 See e.g. Velez, 2010 WL 4877852 at *10 (“Here, Class Counsel, Sanford Wittels &

Heisler LLP [Sanford Heisler’s former name], has just the sort of established record 26 contemplated by the Rules.”); Bellifemine, 2010 WL 3119374, at *4 (recognizing Sanford

27 Heisler as having “an established record of competent and successful prosecution of large

. . . class actions”).

28

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1 class.” Parsons v. Ryan, 754 F.3d 657, 688 (9th Cir. 2014). Thus, the programmatic relief

2 portion of the Settlement qualifies for certification under Rule 23(b)(2).

3

F. Class Certification is Also Appropriate Under Rule 23(b)(3)

4

1. Common Issues Predominate

5

“The Rule 23(b)(3) predominance inquiry tests whether proposed classes are

6 sufficiently cohesive to warrant adjudication by representation.” Grayson v. 7-Eleven, Inc.,

7 No. 09–CV–1353 MMA (WMc), 2011 WL 2414378, at *4 (S.D. Cal. 2011) (quoting

8 Amchem Prods. v. Windsor, 521 U.S. 591, 623 (1997)). “When common questions present

9 a significant aspect of the case and they can be resolved for all members of the class in a

10 single adjudication, there is clear justification for handling the dispute on a representative

11 rather than on an individual basis.” Norris-Wilson v. Delta-T Group, Inc., 270 F.R.D. 596,

12 606-07 (S.D. Cal. 2010) (citing Local Joint Executive Bd. of Culinary/Bartender Trust

13 Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1162 (9th Cir. 2001)). Here, common issues

14 predominate because “[r]esolution of Plaintiff’[s] challenge to [alleged discriminatory

15 employment] practices will resolve significant issues with respect to the class as a whole,

16 and this dwarfs individualized issues as to particular employment decisions.” Ellis, 285

17 F.R.D. at 538; In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953, 958 (9th

18 Cir. 2009) (“[U]niform corporate policies will often bear heavily on questions of

19 predominance and superiority”).11

20

2. A Class Action is the Superior Means of Adjudication

21

In considering whether a class action is the superior approach for resolving the

22 controversy:

23

[C]ourts will [first] look at whether or not the class members have interests

24

in individually controlling the prosecution or defense of separate actions;

25 11See also, e.g., Lopez v. G.A.T. Airline Ground Support, Inc., No. 98cv2268–IEG(BGS),
26 2010 WL 3633177, at *8 (S.D. Cal. Sept. 13, 2010) (finding predominance in employment

27 class action alleging claims “based upon company policies […] consistently applied” to

class members).

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1

second, the courts consider the extent and nature of any litigation concerning

2

the controversy already begun by or against class members; third, the courts assess the desirability or undesirability of concentrating the litigation of the

3

claims in the particular forum; finally, the courts consider the likely

4

difficulties in managing a class action.

5 Ching v. Siemens Indus., No. C 11-4838 MEJ, 2013 U.S. Dist. LEXIS 169279, at *5 (N.D.

6 Cal. Nov. 26, 2013) (emphasis added).

7

Here, class treatment is superior to other methods of adjudication. Plaintiff has

8 already engaged in extensive investigation to develop the class claims. Requiring each

9 individual Class Member to conduct duplicative discovery and to separately litigate her

10 own action would be highly inefficient and an affront to judicial economy. Moreover,

11 given the risks of suing one’s employer and the relatively low sums involved, it would be

12 impracticable for most Class Members to pursue individual actions. Indeed, as in other

13 cases in which classes have been certified, “[g]iven the class’s common questions affecting

14 the class as a whole at the liability stages of this matter, and given class members’ ability

15 to opt out of the monetary relief class or to pursue their claims for relief in [this action],

16 class members have a diminished interest in individually controlling the common portions

17 of this action.” Ellis, 285 F.R.D. at 539–540.12 Finally, the Central District is an acceptable

18 location for this case because Plaintiff resides and worked for Western Digital there.

19 VI. THE COURT SHOULD CONDITIONALLY CERTIFY THE EPA

20

COLLECTIVE ACTION UNDER 29 U.S.C. § 216(b)

21

For settlement purposes, the Parties stipulate to certification of an EPA Collective

22 Action comprised of all women below the level of “Senior Director” who were or are

23 employed by Western Digital Technologies, Inc., Western Digital (Fremont), LLC, and/or

24

25 12 The Court need not reach the issue of whether the case, if tried, would present
26 manageability issues. See, e.g. Amchem Prods., Inc., 521 U.S. at 610 (“Confronted with a

27 request for settlement-only class certification, a district court need not inquire whether the

case, if tried, would present intractable management problems[...]”).

28

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1 Western Digital Media, LLC in the United States between November 1, 2013 and date of

2 Order Granting Preliminary Approval in an “indirect labor” position (excluding those who

3 became employed by Western Digital Corporation or an affiliated entity as a result of or in

4 connection with an acquisition on or after May 1, 2016). Plaintiff alleges violations of the

5 Equal Pay Act, 29 U.S.C. § 206(d) and thus seeks conditional certification under Section

6 216(b).

7

Claims under the EPA are not subject to Rule 23’s certification process, but rather

8 are subject to the collective action process under the FLSA. Instead, “[d]etermining

9 whether a suit may be maintained as an FLSA collective action is within the discretion of

10 the district court.” Hensley v. Eppendorf N. Am., Inc., 2014 WL 2566144, at *2 (S.D. Cal.

11 June 6, 2014). The Ninth Circuit has adopted a two-step approach for collective action

12 certification under Rule 216(b). See Campbell v. City of Los Angeles, No. 15-56990, 2018

13 WL 4354379, at *11–12 (9th Cir., Sept. 13, 2018). The standard for approval at the first

14 stage is “a lenient one that typically results in certification.” Hensley, 2014 WL 2566144,

15 at *6; Leuthold v. Destination Am., 224 F.R.D. 462, 467 (N.D. Cal. 2004) (“[T]he [i]nitial

16 determination is usually made under a fairly lenient standard and typically results in

17 conditional class certification.”). A plaintiff must “provide little more than substantial

18 allegations, supported by declarations or discovery, that the putative class members were

19 together the victims of a single decision, policy, or plan.” Id. This requires merely “some

20 factual basis beyond the mere averments in [his] complaint for the class allegations.” Id.

21 Importantly, the “showing required here is considerably less stringent than the showing

22 required under Federal Rule of Civil Procedure 23.” Id.

23

Here, the EPA Collective Action easily hurdles the low bar for conditional

24 certification; as the considerably more stringent Rule 23 is satisfied, certification of a

25 Section 216(b) collective action follows as a matter of course. Accordingly, conditional or

26 step one certification is appropriate. If the Court grants this request, Collective Action

27 Plaintiffs will receive notice of this Settlement and their options. Collective Action

28

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1 Plaintiffs will release their claims under the EPA by cashing their rewards checks. Courts

2 in California have approved this opt-in process in cases under the EPA. Wellens et. al. v.

3 Daiichi Sankyo, Inc., No. C 13-00581 WHO (DMR) (N.D. Cal. Feb. 11, 2016).

4 VII. THE COURT SHOULD PRELIMINARILY APPROVE THE PROPOSED

5

CLASS SETTLEMENT

6

A proposed settlement warrants approval if it is “fundamentally fair, adequate, and

7 reasonable.” Hanlon, 150 F.3d at 1026. Under Rule 23, preliminary approval is appropriate

8 if the Court will likely be able to “(i) approve the proposal under Rule 23(e)(2); and (ii) certify

9 the class for purposes of judgment on the proposal.” Fed R. Civ. Proc. 23(e)(1). “Closer

10 scrutiny [of a class action settlement] is reserved for the final approval hearing.” Harris, 2011

11 WL 1627973, at *7.

12

A. The Proposed Settlement was the Product of Vigorous, Arm’s-Length,

13

Informed Negotiations by Experienced Counsel and Is Not Collusive

14

The arms-length bargaining process, undertaken by experienced Counsel who have

15 zealously pursued the interests of the class, favors approval. See Fed. R. Civ. Proc.

16 23(e)(2)(A)&(B).

17

As discussed, supra pp 16:21-17:10, Plaintiff is represented by experienced counsel

18 who, along with Plaintiff, have zealously pursued the interests of the class, and achieved an

19 excellent result. The fact that both sides are represented by experienced and well-informed

20 counsel who recommend the settlement supports granting approval. Ellis v. Naval Air Rework

21 Facility, 87 F.R.D. 15, 18 (N.D. Cal. 1980) (finding that “the fact that experienced counsel

22 involved in the case approved the settlement after hard-fought negotiations is entitled to

23 considerable weight.”).

24

The Settlement is unquestionably the result of arms-length negotiations. The parties

25 engaged in vigorous negotiations that included extensive class-wide discovery and expert

26 analysis. See supra II(D). As a result of the extensive investigation and in-depth analysis of

27 the Plaintiff’s claims, the Parties negotiated the Settlement with complete knowledge of the

28

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1 strengths, weaknesses, and potential damages in the case. See, e.g., Bond v. Ferguson Enters.,

2 Inc., No. 1:09-cv-01662 OWW MJS, 2011 WL 284962, at *6 (E.D. Cal. Jan. 25, 2011)

3 (granting preliminary approval where an agreement was reached through mediation after

4 “extensive investigation and discovery allowing [both parties] to assess the strengths and

5 weaknesses of the case.”). The resultant Settlement lacks any of the features that the Ninth

6 Circuit considers indicative of collusion. It (1) is non-reversionary; (2) awards counsel a

7 standard fee of 33 and 1/3 percent; and (3) it remains wholly within the Court’s discretion

8 whether to award the requested fee/costs out of the Fund. In re Bluetooth Headset Prods.

9 Liab. Litig., 654 F.3d 935, 947 (9th Cir. 2011). Finally, that the Settlement was reached with

10 “[t]he assistance of an experienced mediator in the settlement process confirms that the

11 settlement is non-collusive.” Carter v. Anderson Merchandisers, LP, 2010 WL 1946784, at

12 *7 (N.D. Cal. May 11, 2010) (internal citations omitted).

13

B. The Settlement Provides Equitable Relief to the Class

14

The Settlement treats class members equitably with respect to each other and does not

15 grant preferential treatment to Plaintiff or any other class member. See Fed. R. Civ. Proc. R.

16 23(e)(2)(D). Settlement shares are calculated to reflect differences in income and tenure.

17 Each Nationwide Sub-Class Member will be assigned a proportionate share of the Class

18 Settlement Fund based on her gross pre-tax income for work in a covered position during the

19 applicable class damages period for claims under the Equal Pay Act; California Sub-Class

20 Members will be assigned shares based on the same proportion, with an additional year

21 weighted at half the value as one year in the Nationwide Sub-Class damages period due to

22 the availability of an additional year of restitution damages under the California UCL.13

23

C. The Proposed Settlement Falls Within the Range of Reasonableness

24

In assessing whether a settlement is reasonable, a court is instructed to consider

25 whether the relief obtained is adequate, taking into account: (i) the costs, risks, and delay of

26

27 13 Class members receive less if they have signed a settlement containing a general release.

Settlement § 4.3.1.

28

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1 trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the

2 class, including the method of processing class-member claims; (iii) the terms of any

3 proposed award of attorney's fees, including timing of payment; and (iv) any agreement

4 required to be identified under Rule 23(e)(3). The determination of a “reasonable” settlement

5 is not susceptible to a mathematical equation yielding a particular sum. Rodriguez v. West

6 Publ’g Corp., 563 F.3d 948, 965 (9th Cir. 2009). Rather, settlements may fall within a range

7 of possible approval. See Harris, 2011 WL 1627973, at *7. The Ninth Circuit has advised

8 that “the settlement or fairness hearing is not to be turned into a trial or rehearsal for trial on

9 the merits,” and, “[t]he proposed settlement is not to be judged against a hypothetical or

10 speculative measure of what might have been achieved by the negotiators.” Officers for

11 Justice v. Civil Service Com., 688 F.2d at 625. Here, the substantial class-wide recovery, in

12 a gender discrimination class action, is adequate and approvable.

13

1. The Proposed Settlement Provides Good, Class-wide Relief Through

14

A Reasonable Distribution Method

15

The Settlement provides for a non-reversionary cash settlement payment to the Class

16 of $7.75 million, which covers distributions to Class Members, attorneys’ fees, litigation

17 costs, service awards, and expenses associated with the Settlement. The average Class

18 Member will receive at least $3,615, automatically, without any action on their part. The

19 method of distribution of class payments, through the mail, using an address trace search to

20 find any addresses for returned mailings, provides an adequate mechanism for distributing

21 these payments. Settlement §7.1; see Fed. R. Civ. Proc. R.23(e)(2)(C). In addition, Class

22 Members currently employed by Western Digital will receive benefits from the programmatic

23 relief, which will materially advance the goal of equal opportunities for female Western

24 Digital employees. In exchange for these benefits, class members are subject to a narrowly-

25

26

27

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1 tailored release, limited to claims of pay discrimination, and disparate treatment, and disparate

2 impact arising from the operative facts alleged in the Complaint. Settlement § 11.1.

3

2. The Settlement is Reasonable in Light of the Risks, Expense, and

4

Delay of Continued Litigation

5

This robust recovery and narrowly tailored release are an excellent deal for the class in

6 light in light of the risks, expense, and delay associated with continued litigation and trial.

7

Although Plaintiff believes her claims have merit, she also recognizes that the class

8 would face significant legal, factual, and procedural obstacles to recovering damages.

9 Western Digital strongly disputes that it discriminated against female employees through its

10 pay, promotion, and placement policies and practices and has presented evidence in defense

11 of the claims. Absent this Settlement, Defendants would have contested the propriety of class

12 treatment both in response to a motion for certification and through any trial. Substantial

13 disputes also remain as to both merits issues and the certifiability of the Classes. Disputes

14 pertaining to certification stem from the constant evolution of Rule 23 jurisprudence in light

15 of the Supreme Court’s ruling in Dukes v. Wal-Mart, as well as from recent lower-court

16 decisions interpreting it. Such uncertainty favors approval. Rodriguez, 563 F.3d at 964, 967.

17

Moreover, “[e]ven if Plaintiff… were to prevail, they would be required to expend

18 considerable additional time and resources, potentially outweighing any additional recovery

19 obtained through successful litigation.” Bond, 2011 WL 284962, at *6. The factual and legal

20 issues in this action are complex. The trial of Plaintiff’s class claims – which collectively

21 involve the claims of over one thousand Class Members – would require substantial

22 preparation and ultimately the presentation of dozens of witnesses and multiple experts.

23 Gripenstraw v. Blazin’ Wings, Inc., 2013 WL 6798926, at *11 (E.D. Cal. Dec. 19, 2013)

24 (recognizing the risk and expense of further litigation involving the “examination of

25 numerous witnesses, by both parties, either through depositions or trial testimony, often

26

27

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1 both”). In contrast to the delay that would result from trial and appeals, the proposed

2 Settlement yields a certain, substantial, and prompt recovery for the Classes.

3

3. Class Counsel’s Attorneys’ Fees Request is Reasonable

4

The settlement permits class counsel to seek attorneys’ fees up to 33 and 1/3 percent

5 of the Fund, a percentage frequently approved by Courts in the Ninth Circuit. Plaintiff

6 anticipates seeking less than the maximum available fees. She will instead seek combined

7 fees and costs incurred of 33.3% of the $7.75 million Fund. A portion of the requested

8 award will constitute reimbursement for Counsel’s out-of-pocket reasonable litigation

9 expenses of $130,000 in expert fees, mediation costs, travel, and other necessary layouts,

10 further reducing the percentage fee to below 32%. The requested fee of less than 32 percent

11 is well within the range approved by the Ninth circuit in typical cases.

12

“The Ninth Circuit has established a 25% ‘benchmark’ for common fund cases.”

13 Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1376 (9th Cir. 1993). “The exact percentage

14 [of fees] awarded [in a class action] . . . depend[s] on the facts of the case, and in most

15 common fund cases, the award exceeds that benchmark percentage.” Barbosa v. Cargill

16 Meat Solutions Corp., 297 F.R.D. 431, 448 (E.D. Cal. 2013) (citations omitted, emphasis

17 added). While endorsing the 25% benchmark, California courts recognize that most fee

18 awards are approximately 33% of the common fund. Smith v. CRST Van Expedited, Inc.,

19 No. 10-CV-1116-IEG (WMC), 2013 WL 163293, at *4–5 (S.D. Cal. Jan. 14, 2013) (citing

20 Consumer Privacy Cases, 175 Cal. App. 4th 545, 557 n.13 (2009)). As a result, fee awards

21 of 33 1/3 % or more are regularly approved in this Circuit. E.g. In re Pacific Enters. Sec.

22 Litig., 47 F.3d 373, 379 (9th Cir. 1995) (affirming award of one-third of $12 million fund);

23 Singer v. Becton Dickinson & Co., No. 08-CV-821 - IEG (BLM), 2010 WL 2196104, at

24 *8 (S.D. Cal. Jun. 1, 2010) (ruling that an award of 33.33% fees in employment class action

25 “falls within the typical range of 20% to 50% awarded in similar cases”); In re Heritage

26 Bond Litig., 02-ML-1475-DT(RCx), 2005 WL 1594403, at *8 (C.D. Cal. June 10, 2005)

27

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1 (awarding fees totaling one-third of $27,783,000 fund).14

2

4. The Relief to Plaintiff is Reasonable and Appropriate

3

In addition to sharing in the Class Settlement Fund on the same terms as all other Class

4 Members, Plaintiff will apply for a service award of $50,000.15 This service award is also

5 reasonable and appropriate and does not provide cause to reject the Settlement at the

6 preliminary approval stage.

7

“[T]he Ninth Circuit has recognized that service awards to named plaintiffs in a class

8 action are permissible and do not render a settlement unfair or unreasonable.” See, e.g.,

9 Harris, 2011 WL 1627973, at *9. In assessing service awards, Courts consider “the actions

10 the plaintiff has taken to protect the interests of the class, the degree to which the class has

11 benefitted from those actions, . . . the amount of time and effort the plaintiff expended in

12 pursuing the litigation . . . and reasonable fears of workplace retaliation.” In re High-Tech

13 Employee Antitrust Litig., 2015 WL 5158730, at *16 (N.D. Cal. Sept. 2, 2015).

14

A service award of $50,000 is within the range of reasonableness. Courts in the Ninth

15 Circuit and elsewhere have awarded similar or higher amounts in both employment cases and

16 other contexts. See, e.g., Wright v. Stern, 553 F. Supp. 2d 337, 342 (S.D.N.Y. 2008)

17 ($50,000 awards to each of 11 named plaintiffs in an employment discrimination action).16

18

19 14 See, e.g., Stuart v. RadioShack Corp., No. C-07-4499 EMC, 2010 WL 3155645, at *6–
20 7 (N.D. Cal. Aug. 9, 2010) (awarding one-third fee in employment class action); Carlson
21 v. C.H. Robinson Worldwide, Inc., No. CIV 02–3789 JNE/JJG, 2006 WL 2671105, at *8 (D. Minn. 2006) (awarding fee of 35.5% in sex discrimination class action).
22 15 Pursuant to Rule 23(e)(2), the Court must consider any agreement made in connection with
23 the proposed settlement. As Plaintiff’s confidential settlement of individual claims was reached to resolve only her non-class claims, it provides no obstacle to final approval.
24 16 See also In re High-Tech Employee Antitrust Litig., (granting service awards totaling
25 $140,000 and $100,000 for related matters); Liberte Capital Group v. Capwill, 2007 WL 2492461, at *1 (N.D. Ohio Aug. 29, 2007) (granting service awards of $97,134 and
26 $95,172 to two class representatives); Ingram v. Coca-Cola Co., 200 F.R.D. 685, 694 (N.D.
27 Ga. 2001) (awarding four $300,000 service awards in a Title VII case);

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1 Moreover, at only 0.65%, the requested service award is a fraction of the overall

2 Settlement.17 As set forth above, supra III(F), Plaintiff was indispensable to securing this

3 result for the class, expended substantial time and resources, and incurred substantial risk in

4 doing so. Chen Decl. ¶¶ 5, 14, 18, 19. Under established case law, she is entitled to

5 reasonable recognition for single-handedly pursuing this matter on behalf of absent class

6 members.

7

5. The Extent of Discovery and the Stage of Proceedings

8

To the extent that the Court considers the status of discovery, this factor supports

9 preliminary approval. Formal discovery is not a prerequisite, and courts approve settlements

10 reached prior to the formal commencement of a lawsuit.18 Rather, courts consider whether

11 the parties have gathered “sufficient information to make an informed decision about the

12 settlement.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir. 2000). Settlements

13 reached at an early interval should be approved where factors such as an informal exchange

14 of information enable a sufficient evaluation of the merits of a case prior to settlement.

15 Bellinghausen v. Tractor Supply Co., 306 F.R.D. 245, 257 (N.D. Cal. 2015) (holding that the

16 critical question is not when the case is resolved but “whether the parties carefully

17 investigated the claims before reaching a resolution.”).19 Here, the Parties engaged in a pre-

18 filing investigation and exchange of information similar to full-fledged class discovery and

19 sufficient to allow them to calculate damages and to weigh the strengths and weaknesses of

20

21 17 E.g., In re High-Tech Emple. Antitrust Litig., at *16–18 (finding that awards of $80,000

and up were acceptable as compared to average class member recovery of approximately 22 $5,800, resulting in a ratio of 14-21 to 1); Lemus v. H&R Block Enters. LLC, No. C 09-

23 3179 SI, 2012 WL 3638550, at *5-6 (N.D. Cal. Aug. 22, 2012) (approving $15,000 service

awards where the average class recovery was about $1,200). 24 18 Riker v. Gibbons, 3:08-cv-115-LRH-VPC, 2010 U.S. Dist. LEXIS 120841, at *14 (D. Nev.

25 Oct. 28, 2010) (“absence of extensive formal discovery is immaterial”). 19 See, e.g., Cotton v. Hinton, 559 F.2d 1326, 1332 (5th Cir. 1977) (approving settlement,
26 despite “very little formal discovery […] and […] no voluminous record[...]”); Glass, 2007

27 WL 221862, at *1 (approving settlement reached early in proceedings based on informal

discovery prior to mediation).

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1 the claims. See supra II(D). Where parties’ negotiations include “extensive discussion and

2 examination of the parties' respective positions on the legal and factual issues raised by the

3 class action” and result in “a meaningful settlement agreement,” courts favor approval.

4 Palacios v. Newman Grain Inc., No. 1:14-cv-1804-DAD-SAB, 2016 WL 8730677 **21-22

5 (E.D. Cal. May 27, 2016). Requiring any more would elevate form over substance and

6 penalize the Parties and Classes for the efficient resolution of the case.

7

8

Pursuant to Rule 23(e), the Court must “direct notice in a reasonable manner to all class

9 members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). The notice

10 provided members of a class certified under Rule 23(b)(3) must be “the best notice practicable

11 under the circumstances” and must “clearly and concisely state in plain, easily understood

12 language” the nature of the action, the class definition, a general statement of the class claims

13 and issues, that a class member may enter an appearance through counsel if desired, the right

14 and manner of exclusion or objection, and the binding effect of class judgment. Fed. R. Civ.

15 P. 23(c)(2)(B).

16

The proposed Notice of Class Action Lawsuit (the “Notice”) for distribution to Class

17 Members meets this bar. Fuschetti Decl. Settlement, Ex. A. It explains in plain and concise

18 language (i) the nature of the lawsuit; (ii) the Class definition and claims; (iii) the settlement

19 amount and how the parties intend to divide it; (iv) the attorneys’ fees and costs and service

20 award requested by Plaintiff and Class Counsel; (v) the rights of Class Members to opt-out

21 or object to the Settlement’s terms and the process by which they can do so; (vi) the binding

22 effect of the Settlement on Class Members who do not request exclusion; (vii) and the

23 particulars of the final fairness hearing. See Rule 23(c)(2)(B).

24

The Parties’ proposed plan for directing notice to the Classes is also reasonable and

25 sufficient. Using last-known addresses provided by Defendants, the third-party Claims

26 Administrator will send the Notice by First Class United States Mail to all Class Members.

27 Settlement § 9.2.2. The Claims Administrator will perform address searches (skip traces) to

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1 obtain the correct address of any Class Member whose Notice is returned as undeliverable

2 and will attempt re-mailings where new addresses are secured. Id. at 10.2.3.

3

4

The EPA is part of the Federal Fair Labor Standards Act (“FLSA”) and incorporates

5 its enforcement mechanisms. An opt-in collective action settlement under the FLSA/EPA

6 does not involve the rights of absent class members and is not subject to Rule 23(e).

7 Nonetheless, courts review the settlement to ensure that it is fair and reasonable. See, e.g., 29

8 U.S.C. §§ 216(b), 256; Willix v. Healthfirst, Inc., No. 07 Civ. 1143(ENV)(RER), 2011 WL

9 754862 (E.D.N.Y. Feb. 18, 2011). “The standard for approval of an FLSA settlement is lower

10 than for a Rule 23 settlement because an FLSA settlement does not implicate the same due

11 process concerns as does a Rule 23 settlement.” Willix, 2011 WL 754862, at *5; see also

12 Gamble v. Boyd Gaming Corp., 2015 WL 4874276, at *4 n.2 (“District courts are not

13 constrained by the mandates for the proposed settlement of Rule 23 class actions.”). An

14 FLSA settlement need only reflect a reasonable compromise of disputed issues. Lynn’s Food

15 Store, Inc. v. United States, 679 F.2d 1350, 1354 (11th Cir. 1982).

16

In this case, as the Settlement meets the stricter Rule 23(e) standard, it also passes

17 muster under the EPA. Bona fide disputes exist regarding Plaintiff’s EPA collective action

18 claims covering both liability and damages, and, absent settlement, whether certification of a

19 collective action is appropriate. See, e.g. Lee v. Timberland Co., No. C 07-2367 JF, 2008

20 WL 2492295 at *2 (N.D. Cal. June 18, 2008). Under the circumstances, Plaintiff maintains

21 that there is little question that the Settlement represents a fair and reasonable compromise of

22 contested claims. See, e.g., Campanelli v. Hershey Co., No. C 08-1862 BZ, 2011 WL

23 3583597, at *1 (N.D. Cal 2011) (“substantial” payments achieved through arm’s length

24 negotiations). Moreover, unlike many cases, since each Collective Action Plaintiff is also a

25 Rule 23 Class Member, each employee will receive (i) a notice which meets the more

26

27

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1 stringent requirements of Rule 23 and due process and (ii) an opportunity to weigh in on the

2 Settlement by appearing at the final fairness hearing.

3

4

Because the Settlement meets the requirements for preliminary approval, the Court

5 should set a final fairness hearing to decide whether to grant final approval of the Settlement

6 and grant Plaintiff’s application for service awards and Class Counsel’s motion for attorneys’

7 fees and costs. See Fed. R. Civ. P. 23(e)(2). The Settlement directs that Western Digital

8 provide a comprehensive class and collective action list to the Class Administrator no later

9 than sixty (60) days after the date of entry of the order granting Preliminary Approval, and

10 notice will go out no later than seventy-five (75) days after the date of entry of the order

11 granting Preliminary Approval. Class Members will then have sixty (60) days to opt-out or

12 object. Accordingly, Plaintiff requests that a final fairness hearing be set for a mutually

13 convenient date after the notice period.

14 VIII. CONCLUSION

15

For the reasons set forth above and in the accompanying papers, Plaintiff

16 respectfully requests that the Court grant Plaintiff’s Motion.

17

18 Dated: May 29, 2019 19 20 21

Respectfully submitted,
/s/ David Sanford David Sanford, (Pro Hac Vice) Danielle Fuschetti (CA SBN 294064) SANFORD HEISLER SHARP, LLP

22

Felicia Medina, (CA SBN 255804)

MEDINA ORTHWEIN LLP

23

Attorneys for the Plaintiff and the Classes

24

25

26

27

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PLAINTIFF’S AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION

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