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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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12 José Parra, et al.,

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Plaintiffs,

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vs.

15 Bashas', Inc.,

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Defendant.

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) No. CIV 02-0591-PHX-RCB

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O R D E R

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18 I. Introduction

19

The original complaint in this action was filed by

20 Plaintiffs José Parra and Gonzalo Estrada on April 4, 2002.

21 Complt. (doc. 1). The Court granted Plaintiffs' motion to

22 amend their complaint, and Plaintiffs filed their First

23 Amended Complaint (doc. 116) on March 11, 2004, adding Aurelia

24 Martinez as a named plaintiff. In their pleadings, Plaintiffs

25 alleged that Defendant Bashas', Inc. committed civil rights

26 violations under 42 U.S.C. § 1981 for intentional

27 discrimination and under Title VII of the Civil Rights Act of

28 1964, 42 U.S.C. §2000(e) et seq, for both disparate impact and

disparate treatment. In September 2004, Plaintiffs filed their

1 motion for appointment of class counsel (doc. 152) and, under

2 seal, filed their motion for class certification in this

3 matter (doc. 159). These motions were fully briefed on

4 November 23, 2004, and the issue of class certification was

5 argued orally on January 24, 2005.

6

In response to these motions, each party filed motions to

7 strike evidence. Defendant's Mot. to Strike (doc. 191);

8 Plaintiffs' Mot. to Strike Evidence and Mot. to Strike

9 Testimony (doc. 205 & 197). Also, prior to filing their

10 motion for class certification, Plaintiffs filed a motion

11 requesting permission to use expert analysis as a rebuttal

12 opinion. Mot. Reb. Opin. (doc. 147). Defendant objected to

13 Plaintiffs' request and filed a cross motion asking that the

14 Court, in the event that Plaintiffs' motion is granted, allow

15 them the opportunity to depose Plaintiffs' expert on the

16 rebuttal analysis and offer a report in opposition. Resp. &

17 Cross Mot. (doc. 179). All of these motions were fully

18 briefed on December 30, 2004. This Court, having carefully

19 considered the arguments presented by the parties, now rules

20 on all of these matters.

21 II. Background Facts

22

Defendant Bashas', Inc. operates grocery stores in

23 Arizona under three different trade names: Bashas', A.J.'s

24 Fine Foods ("A.J.'s") and Food City. Each of the three stores

25 provides a different format of either traditional, gourmet or

26 price-impact grocery. Hourly workers at all of Defendant's

27 stores have their pay set in accordance with pay scales

28 established by Michael Proulx, current president and Chief

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1 Operating Officer of Bashas', Inc. 2 ... 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1

A. The History of Food City

2

The original Food City store was an independent

3 neighborhood grocer established in the 1940s. Resp. (doc.

4 190) at 8. In January 1994, Defendant bought this original

5 Food City store. Id. Thereafter, a Bashas' store was

6 converted into a Food City store, based on the original Food

7 City store design. Id. at 9. Wages of Bashas' employees at

8 that store were not reduced after the conversion, but new

9 hires at that store were placed on the lower Food City wage

10 scale established at the original store. Id. In June 1996, a

11 second Bashas' was converted to the Food City format. Id. The

12 wages of existing employees and new hires were handled the

13 same way as the previously converted Bashas' store. Id.

14

On December 15, 1996, Defendant bought sixteen Mega Foods

15 stores, a warehouse grocery store chain. Resp. (doc. 190) at

16 9. Twelve of the sixteen Mega Foods stores eventually became

17 Food City stores. Id. These stores were in vastly varying

18 conditions; some relatively new and in good condition, while

19 others were older and had significant facility issues. Id.

20 The pay scales at the Mega Foods stores "compared" with

21 existing Food City rates in 1998. Id. A decision was made to

22 raise the pay rates in these newly-acquired stores to the

23 wage levels at the Food City stores. Id. By the end of 2000,

24 Defendant had twenty-six Food City stores. Resp. (doc. 190)

25 at 9.

26

Around 2001, Defendant purchased a few ABCO stores, some

27 of which were converted to Bashas' stores and some of which

28 were converted to Food City stores. Id. Again, Defendant

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1 contends that these stores were in a variety of different

2 conditions. Id. at 9-10.

3

In November 2001, Defendant acquired twenty-two Southwest

4 Supermarkets and converted them into Food City stores. Id. at

5 10. Defendant asserts that many of the stores had physical

6 conditions which had been neglected. Id. In addition,

7 Southwest pay scales were lower than Food City pay scales.

8 Id. When these stores were acquired, Defendant states that it

9 raised the wages of the Southwest employees up to the Food

10 City scale within six months, or 780 hours of work. Resp.

11 (doc. 190) at 10.

12

B. History of the Pay Scales

13

When the first Food City store was acquired in 1994, the

14 hourly wages of the Food City employees were lower than the

15 wages at Bashas' format stores. Id. at 11. Such hourly wages

16 were not raised dramatically upon the purchase of Food City.

17 Id. at 12. In 1997 and 1998, the pay scales between the

18 Bashas' stores and Food City stores started to converge. Id.

19 at 13. In 1999, Defendant went from six pay zones to four pay

20 zones. Id. Defendant contends that in 2000 there were only

21 four zones, and in 2000 and 2001 there was more movement

22 toward uniformity. Id. Only after the acquisition of the

23 Southwest Supermarkets did Defendant's management believe

24 that Food City had become a chain in its own right and

25 mandate a move to the higher paid, unionized grocery store

26 wage scales. Resp. (doc. 190) at 14. Defendant contends that

27 in 2001, the wage rates were "essentially equalized." Id.

28

C. Plaintiffs' Claims

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1

In the case at bar, Plaintiffs claim that the hourly

2 workforce at Food City stores is disproportionately Hispanic.

3 Mot. (doc. 159) at 1. They assert that although the job

4 positions within the different store formats are virtually

5 identical, Defendant used a separate pay scale for Food City

6 stores. Id. Plaintiffs further claim that from at least 1998,

7 the written pay scale for Food City workers was consistently

8 lower in most job positions than the same jobs in Bashas' and

9 A.J.'s stores, and that even within Food City stores,

10 Hispanic employees have been paid less than their white

11 counterparts in similar positions. Id. Moreover, Plaintiffs

12 claim that working conditions within Food City stores were

13 inferior to those of Bashas' and A.J.'s stores, and that

14 Defendant's senior management has long been aware of these

15 differences. Id.

16

Plaintiffs challenge these alleged practices under 42

17 U.S.C. § 1981 for intentional discrimination and under Title

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

19 seq, for both disparate impact and disparate treatment. Id.

20 at 2. Plaintiffs therefore move this Court, pursuant to

21 Federal Rule of Civil Procedure 23, to certify the class as

22 described below and appoint class counsel. Mots. (doc. 159 &

23 152). Before deciding the issues of certification and

24 appointment of counsel, the Court must first address the

25 motions filed by the parties in relation to these matters.

26 III. Motions to Strike

27

A. Defendant's Separate Motion to Strike and Motion to

28 Withdraw Exhibit

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1

i. Disclosure of Witnesses

2

Defendant moves to strike one declaration and two

3 affidavits proffered by Plaintiffs in their motion to certify

4 a class. Defendant's Mot. to Strike (doc. 191) at 1. First,

5 Defendant moves to strike a declaration from Elizabeth

6 Lawrence1 that presents testimony as to store conditions

7 documented in internal inspection reports of Food City

8 stores.2 Id. at 1-2. Defendant argues that such evidence is

9 inadmissible because Lawrence was never disclosed as a

10 witness, lay or expert. Id. at 2.

11

The Federal Rules of Evidence allow summaries of contents

12 of voluminous materials which cannot conveniently be examined

13 in court. Fed. R. Evid. 1006. In the contested declaration,

14 Lawrence identifies the documents to which she refers, the

15 internal inspection reports, and summarizes some of their

16 contents. In her statement, Lawrence does not offer any

17 opinions about the documents. Instead, Lawrence discloses

18 only information that she believes the documents convey. In

19 addition, Lawrence attaches the summarized documents as

20

21 1 Elizabeth Lawrence is an attorney of record in this matter.

22

2 The contested statement reads:

23

I have personally reviewed all of the internal

inspection reports of Food City stores produced in

24

this litigation by defendant, attached as Exhibit

25

D. These reports reveal dirty conditions, including rodents, roaches, substandard equipment, flies,

26

gnats and other insects, lack of soap in restroom,

etc. In the course of this litigation, we received

27

no reports of internal inspections at Bashas'

stores or A.J.'s stores.

28

Decl. Lawrence (doc. 177).

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1 Exhibit D to her declaration. Exbt. D (doc. 177). Therefore,

2 the Court concludes that Lawrence's statement is admissible

3 as a summary for class certification purposes and considers

4 it with the appropriate weight.

5

Second, Defendant moves to strike the affidavits of

6 Joanne Huerta and Antoinetta Acuna, because Plaintiffs

7 disclosed them as witnesses six days before they filed their

8 motion for class certification. Defendant's Mot. to Strike

9 (doc. 191) at 2. Defendant cites no legal authority

10 indicating a violation on Plaintiffs' part, and does not

11 provide the Court with any argument as to how Plaintiffs'

12 late notice caused them ill effects.

13

Due to the lack of authority or arguments by either party

14 on this matter, the Court finds that Defendant has not

15 sufficiently shown a basis for their claim to strike the

16 affidavits of Huerta and Acuna. As required under Federal

17 Rule of Procedure 26(a) and 26(e)(1), Plaintiffs provided

18 Defendant with notice of Huerta and Acuna as possible

19 witnesses in a supplemental disclosure statement. Notice

20 (doc. 150). Plaintiffs claim that they provided Defendant

21 with Huerta and Acuna's names as soon as they knew of their

22 willingness to testify in this matter and the declarations

23 were signed. Resp. (doc. 194) at 3. Without further argument

24 as to how Plaintiffs' supplemental notice was insufficient,

25 the Court will consider the affidavits.

26

ii. Attorney-Client Privilege

27

Defendant contests Plaintiffs' use of an alleged

28 privileged document, BAEMAIL 001668 ("the memo" or "the

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1 document"). Defendant's Mot. to Strike (doc. 191). Defendant

2 asserts that the document in question was inadvertently 3 disclosed to Plaintiffs during a production of documents 4 conducted in 2004 and to the public when Defendant attached

5 it as an exhibit to its Motion to Strike, which was filed 6 unsealed. Id. at 2-3; Mot. to Withdraw (doc. 208) at 1. 7 According to Defendant, the document sought legal advice on

8 matters involved in the case at bar from Bashas' attorney, 9 Tom Kennedy, and therefore is privileged. Defendant's Mot. to 10 Strike (doc. 191) at 4. In contrast, Plaintiffs claim that

11 the document is not a privileged communication and assert

12 that even if deemed to be such, Defendant has waived the

13 privilege by disclosing the document to others in their

14 production and motion to strike.3 Resp. (doc. 194) at 3-6. The

15 Court will analyze the issue of waiver first.

16

Plaintiffs argue that Defendant cannot assert protection

17 of the BAEMAIL 001668 document under the attorney-client 18 privilege, because Defendant waived the privilege through 19 disclosure. Resp. (doc. 194) at 6. "An express waiver [of an

20 attorney-client privilege] occurs when a party discloses 21 privileged information to a third party who is not bound by 22 the privilege, or otherwise shows disregard for the privilege

23 by making the information public." Bittaker v. Woodford, 331 24 F.3d 715, 719 (9th Cir. 2003). Inadvertence of disclosure does 25

26 3 On December 3, 2004, Defendant filed a motion to withdraw this
27 exhibit, recognizing its mistake in attaching the contested memo to its motion and not filing the motion under seal. Mot. to Withdraw
28 (doc. 208).

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1 not as a matter of law prevent the occurrence of waiver. Weil

2 v. Investment/Indicators, Research and Management, Inc., 647

3 F.2d 18, 24 (9th Cir. 1981). Here, Plaintiffs assert that any

4 attorney-client privilege with respect to the BAEMAIL 001668

5 document was waived by its inclusion within the stack of

6 documents produced by Defendant in 2004 and its inclusion in

7 Defendant's motion to strike. Resp. (doc. 194) at 6.

8 Although Plaintiffs have argued the merits of various federal

9 cases dealing with the issue of waiver, Defendant has

10 provided the Court with no counter argument on the issue.

11

The court notes that the regional circuits have developed

12 at least three different methods of analyzing whether an

13 inadvertent disclosure results in a waiver of the attorney-

14 client privilege. As summarized in Simon Property Grp., L.P.

15 v. mySimon, Inc., 194 F.R.D. 644, 648 (S.D. Ind. 2000) these

16 three approaches include:

17

The first might be termed the strict liability

approach, so that any non-privileged disclosure, no

18

matter how slight and no matter to whom, forfeits

the privilege. The second is the subjective intent

19

approach, so that only a deliberate disclosure

forfeits the privilege. The third might be called

20

the skeptical balancing approach, in which the court

considers all the relevant circumstances.

21

22 Id., cited in United States v. TRW, Inc., 204 F.R.D. 170, 176

23 (C.D. Cal. 2001). This third approach, also called the

24 "middle test," "pragmatic approach," and the "totality of the

25 circumstances approach," has been embraced by the Ninth

26 Circuit. TRW, Inc., 204 F.R.D. at 176; see also, Gomez v.

27 Vernon, 255 F.3d 1118, 1131-32 (9th Cir. 2001); United States

28 v. de la Jara, 973 F.2d 746, 749-50 (9th Cir. 1992). As a

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1 result, it is the most persuasive test for the present

2 analysis.

3

It must first be noted that the burden of establishing

4 that the privilege applies to any document lies with the

5 party asserting it – not the party contesting it. See Weil,

6 647 F.2d at 25. An element that the asserting party must

7 prove is that it has not waived the privilege. Id.; see

8 also, In re Grand Jury Proceedings, 517 F.2d 666, 670 (5th

9 Cir. 1975). The mere inadvertence of a privileged document's

10 disclosure does not, as a matter of law, prevent the

11 occurrence of waiver. Id. at 24; see also, Underwater

12 Storage, Inc. v. United States Rubber Co., 314 F.Supp. 546

13 (D.D.C. 1970). As a result, this court must consider the

14 factors adopted by the Ninth Circuit in determining whether

15 an inadvertent disclosure has waived the privilege.

16

In determining whether the privilege has been waived, the

17 Ninth Circuit considers the totality of the circumstances in

18 order to determine whether the producing party took

19 sufficient steps to safeguard the privilege. The specific

20 factors considered include:

21

(1) the reasonableness of the precautions to prevent

inadvertent disclosure; (2) the time taken to

22

rectify the error; (3) the scope of the discovery;

(4) the extent of the disclosure; and (5) the

23

overriding issue of fairness.

24 TRW, Inc., 204 F.R.D. at 177; see also, Hartford Fire Ins.

25 Co. v. Garvey, 109 F.R.D. 323, 332 (N.D. Cal. 1985) (citing

26 Lois Sportwear U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D.

27 103, 105 (S.D.N.Y. 1985). The court will analyze each of

28 these factors below.

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1

First, with regard to the reasonableness of the

2 precautions taken to prevent the disclosure of the BAEMAIL

3 001668 document, the court must consider the circumstances in

4 both situations where the memo was disclosed. Defendant has

5 offered no argument as to what procedures or precautions it

6 used to prevent inadvertent disclosure of the document.

7

Next, the court considers the time taken by Defendant to

8 rectify the error. This factor focuses on the actions taken

9 by the producing party to resolve the problem once it

10 realizes that it has made an inadvertent disclosure. TRW,

11 Inc., 204 F.R.D. at 180. Here, in the first instance of

12 disclosure, Defendant did not discover its mistake until it

13 was conducting a deposition related to this action.

14 Defendant's Mot. to Strike (doc. 191) at 2. In the second

15 instance of disclosure, Defendant seems to have discovered

16 its mistake a month after filing its motion to Strike. Mot.

17 to Withdraw (doc. 208). It is arguable that Defendant only

18 became aware of its mistake when Plaintiffs raised the issue

19 in their response to Defendant's motion to strike. Resp.

20 (doc. 194) at 6.

21

This factor seems to contemplate the situation where a

22 producing party does realize the error, and then makes an

23 effort to re-acquire the disclosed document. In TRW, Inc.,

24 the court noted that the producing party immediately

25 requested return of the documents and asked that they be

26 sealed. 204 F.R.D. at 180. While the court considered these

27 acts to be a "point in [the producing party's] favor," it

28 still considered a several month delay in discovering the

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1 error to be a factor generally favoring the receiving party.

2 Id. Certainly, in relation to the first instance of

3 disclosure, Defendant's request that all copies of the

4 document be destroyed was a reasonable remedial step. See

5 Defendant's Mot. to Strike (doc. 191) at 3. Upon the second

6 occurrence of disclosure, Defendant's filing of a motion to

7 withdraw was also a reasonable remedial step. See Mot. to

8 Withdraw (doc. 208).

9

The third and fourth issues will be discussed together as

10 they are interrelated. These factors require the court to

11 consider the scope of the discovery at issue, as well as the

12 scope of the disclosure. Here, it appears undisputed that in

13 the first instance of disclosure, Defendant produced

14 approximately thousands of other emails and attachments, and

15 that the memo is a one-page document. See Defendant's Mot. to

16 Strike (doc. 191) at 2. In the second instance of disclosure,

17 Defendant attached the one-page document to its own nineteen-

18 page motion to strike. Exhibit 1 (doc. 191).

19

In Lazar v. Mauney, 192 F.R.D. 324, 330 (N.D. Ga. 2000),

20 a district court concluded that where 1,000 pages were

21 produced with three privileged documents, the privilege was

22 not waived. Likewise, in Lois Sportwear U.S.A., Inc. v. Levi

23 Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985), twenty-

24 two privileged documents were produced with 16,000 documents.

25 In the TRW, Inc. case, of the 200,000 documents produced,

26 approximately 200-300 privileged documents were produced.

27 204 F.R.D. at 181. While the total number of documents

28 produced was far greater in TRW, Inc., that court considered

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1 the ratio of privileged documents produced in comparison to

2 all documents was roughly similar to that in Lois Sportwear.

3 Id. That ratio is roughly similar to the privileged

4 documents produced in Lazar; which, in turn is similar to

5 that in the present case, in regard to the first instance of

6 disclosure.

7

While not creating a precise rule as to when the ratio is

8 too close to constitute inadvertent disclosure, the above

9 analysis is clearly intended to ensure that the disclosure

10 was simply inadvertent – not reckless. One document stuck

11 somewhere in the middle of thousands could reasonably be

12 missed by even a careful review process. In contrast, one

13 document attached as an exhibit to a nineteen-page document

14 that, for the most part, argues how the exhibit is privileged

15 and should be stricken from the record, would not likely be

16 missed by a careful review process or inadvertently not filed

17 under seal. Defendant argues that its attachment and unsealed

18 filing of the memo should be deemed inadvertent because, at

19 the time of submission, Defendant also filed several other

20 "voluminous" pleadings. Mot. to Withdraw (doc. 208) at 1.

21 However, the fact that Defendant filed other voluminous

22 documents, some under seal, at the same time it filed the

23 contested memo within a nineteen-page motion does not

24 indicate inadvertency. In fact, such circumstances tend to

25 weaken such an assertion since Defendant was clearly aware

26 that many of its exhibits required filing under seal, but,

27 although the majority of its motion to strike focused on the

28 alleged privileged communication, chose to file the motion

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1 and memo unsealed.

2

The rule established in the case law described above is

3 intended to assure that the opposing party cannot take

4 advantage of a reasonable mistake, while at the same time

5 assuring that the privilege is safeguarded. After all, if 6 there is no penalty to a reckless disclosure, there will be 7 no incentive to diligently review discovery for privileged

8 documents. This "middle test" simply recognizes that where 9 the scope of discovery is vast in light of the narrowness of 10 the disclosure – a reasonable mistake was probably made.

11 Therefore, the Court finds that in Defendant's first incident 12 of disclosure of the memo, its disclosure was inadvertent. 13 However, Defendant's second unsealed filing of the contested

14 document as an exhibit to its own motion is more an act of 15 recklessness than inadvertency.4 Due to Defendant's second act 16 of disclosure, the Court finds that any privilege on the

17 BAEMAIL 001668 document was waived and the document should 18 not be stricken from the record. Based on this finding, the 19 Court deems unnecessary any further analysis on whether the

20 document was actually privileged, and shall deny Defendant's 21 motion to strike (doc. 191). Consequently, Defendant's Motion 22 to Withdraw Exhibit (doc. 208) is now moot and shall be

23 denied.

24

25

4 Although the Ninth Circuit has not yet ruled on the issue, a

District Court in the Third Circuit found that a party's filing of an

26 alleged privileged document alone waives the attorney-client privilege. See McGreevy v. CSS Industries, Inc., 1996 WL 412813, *2

27 (E.D.Pa. 1996) (finding that the plaintiff's filing of the McGreevy

Memorandum could alone constitute a waiver of the attorney-client

28 privilege).

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1

B. Plaintiffs' Motions to Strike Evidence and Deposition

2

Testimony

3

i. Motion to Strike Evidence Submitted by Defendant

4

On November 30, 2004, Plaintiffs filed a motion to strike

5 evidence submitted by Defendant. Plaintiffs' Mot. to Strike 6 (doc. 205). Essentially, Plaintiffs claim that many of 7 Defendant's exhibits fail to comply with the Federal Rules of

8 Evidence and are therefore inadmissible.

9

a. Relevancy

10

Plaintiffs assert that many of Defendant's submitted

11 declarations5 and exhibits are irrelevant to the motion for

12 class certification and should therefore be struck from the

13 record.6 Under Federal Rule of Evidence 402, evidence which is

14 not relevant is not admissible. Evidence is considered 15 relevant if it has "any tendency to make the existence of any 16 fact that is of consequence to the determination of the

17 action more probable or less probable[.]" Fed. R. Evid. 401.

18

In the case at bar, the Court finds that the majority of

19 the exhibits contested by Plaintiffs for lack of relevance

20 may make more or less probable the determination of whether 21 Plaintiffs satisfy the requirements for class certification. 22 An exception to this finding is Exhibit 46, which is a copy

23 of a handwritten note in Spanish with no translation

24

25

5 Plaintiffs move to strike Paragraphs 2, 4, 5, 6-8, 10-14, 17,

21, 26, 27, and 33 from the Affidavit of Michael Proulx. Plaintiffs'

26 Mot. to Strike (doc. 205) at 8-12.

27

6 Due to lack of relevance, Plaintiffs move to strike Defendant's

Exhibits 1, 1A, 1C-1F, 1P, 4, 5, 18, 33, 43-47, 50-135. Plaintiffs'

28 Mot. to Strike (doc. 205).

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1 provided. Without an authenticated translation of this

2 document, the Court cannot understand nor rely on its 3 contents. Consequently, Exhibit 46 will not make more or less 4 probable the determination of whether Plaintiffs satisfy the

5 requirements for class certification. The Court finds that 6 except for Exhibit 46, the remaining contested exhibits are 7 relevant. Exhibit 46 shall be stricken from the record due to

8 a lack of relevance.

9

b. Lack of Foundation or Authentication

10

Plaintiffs argue that many of Defendant's declarations7

11 and exhibits lack foundation or have not been authenticated, 12 as is required under Rule 901(a).8 "Before evidence may be 13 admitted, a foundation must be laid 'by evidence sufficient

14 to support a finding that the matter in question is what its 15 proponent claims.'" Beyene v. Coleman Sec. Servs., Inc., 854 16 F.2d 1179, 1182 (9th Cir. 1988). The testimony of a witness

17 with personal knowledge of the facts who attests to the 18 identity and execution of the document may lay the foundation 19 required for receipt of a document into evidence. See U.S. v. 20 Dibble, 429 F.2d 598, 602 (9th Cir. 1970). "It is well 21 established that unauthenticated documents cannot be 22 considered on a motion for summary judgment." Hal Roach

23

24

7 Plaintiffs seek to strike Paragraphs 2, 20, 26, 28, 29, 30, 35

25

from the Affidavit of Michael Proulx. Plaintiffs' Mot. to Strike (doc. 205).

26

8 Plaintiffs, on the basis of a lack of foundation or

27 authenticity, move to strike Defendant's exhibits 1, 1A-1I, 1N-1P, 1R-1U, and 1W; 2-5, 7, 8, 10-17, 20, 21, 24-37, 39, 40, 43, 45, 46,

28 47, and 49. Plaintiffs' Mot. to Strike (doc. 205) at 1.

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1 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 2 1550 (9th Cir. 1989). Defendant, as the party offering the 3 evidence, has the burden of presenting sufficient evidence of 4 authenticity. Fed. R. Evid. 901(a).

5

Plaintiffs claim that Defendant has failed to lay a

6 foundation or authenticate many of its declarations and

7 exhibits, and has offered no evidence to sustain a finding

8 that the documents are what they are purported to be. "No 9 affidavit discloses the source of the documents...[and] [n]o 10 one offers sworn testimony as to the authorship of any of

11 these documents." Plaintiffs' Mot. to Strike (doc. 205) at 2. 12 Furthermore, Plaintiffs argue that some of the listed 13 exhibits were created only for litigation.9 Id. at 3.

14

Defendant, in its response to Plaintiffs' motion to

15 strike and request for authentication, provides the Court

16 with the affidavits of Michael Proulx10 and Stephanie Quincy.11

17 Resp. (doc. 213) at Exbts. 1 & 2. Proulx, in his affidavit, 18 states that many of the challenged exhibits are true and 19 accurate and have been verified through employees whom he

20 supervises. See Resp. (doc. 213) at Exbt. 1. Proulx also 21 states that many of the documents are records kept in the 22

23 9 Plaintiffs assert these claims in relation to Defendant's
24 Exhibits 1B, 1D, 31, 33, 35, 36, and 37. Plaintiffs' Mot. to Strike

(doc. 205) at 3. 25

26

10 Michael Proulx is the current President and Chief Operating

Officer of Bashas', Inc., and has worked at Bashas' since 1966.Resp.

27 (doc. 213) at Exbt. 1.

28

11 Stephanie Quincy is an attorney of record in this lawsuit.

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1 ordinary course of business. Id. For purposes of the

2 underlying motion, Proulx, as President and CFO of Bashas',

3 Inc., has sufficient personal knowledge of the company's

4 business, paid wages, store conditions, competitors, and

5 other related information submitted in Exhibits 1A, B, C, D,

6 E, F, G, H, I, N, O, P, R, S, T, U, 12, 13, 15, 34, 49.

7 Proulx's affidavit swearing to the authenticity and

8 correctness of these documents satisfies the foundation and

9 authentication requirements of Rule 901(a) for purposes of a

10 motion for class certification.

11

Plaintiffs argue that due to a lack of authenticity,

12 Defendant's Exhibit 7, the Report of Dr. Michael P. Ward,

13 should be stricken from the record. The report is offered as

14 Defendant's expert's testimony, but, as Plaintiffs note, is

15 not a sworn statement. In response to Plaintiffs' motion to

16 strike this exhibit, Defendant offers Quincy's affidavit

17 which states that the exhibit is a true and correct copy of

18 Ward's report. Exbt. 2 (doc. 213) at ¶4. The same report was

19 included as an exhibit in Defendant's response to Plaintiffs'

20 Motion to Use Expert Analysis as Rebuttal Opinion and was

21 cited in Plaintiffs' reply on the issue. Reply (doc. 180) at

22 3. Because Plaintiffs' have cited the same document in a

23 previous filing, the Court concludes that Plaintiffs do not

24 substantially question the authenticity of Exhibit 7. The

25 Court finds that it is reasonable to assume authentication

26 upon Quincy's sworn statement that Exhibit 7 is what it is

27 purported to be.

28

Quincy, in her affidavit, also claims that Exhibits 39,

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1 40, 43, 45, and 47 are true and accurate copies of certain

2 legal documents. Exbt. 2 (doc. 213) at ¶¶11-15. Quincy

3 asserts that Exhibits 39 and 40 are true and accurate copies

4 of EEOC filings made by potential class members and received

5 from the EEOC pursuant to a Freedom of Information Act

6 request. Id. at ¶¶11-12. In addition, Quincy affirms that

7 Exhibit 43 contains bankruptcy filings related to the

8 bankruptcy of named plaintiff Martinez, Exhibit 45 is a legal

9 opinion by Administrative Law Judge Gregory Z. Meyerson, and

10 Exhibit 47 includes criminal records related to potential

11 class member Parra obtained from publicly available records.

12 Exbt. 2 (doc. 213) at ¶¶13-15. At this point in litigation,

13 and without any further arguments as to why the documents are

14 untrustworthy, it is reasonable to assume authentication upon

15 Quincy's sworn statement that the contested exhibits are what

16 they are purported to be.

17

Quincy also asserts that Exhibit 5 contains copies of pay

18 rate records obtained from other grocery stores in response

19 to appropriately served subpoenas. "As a part of this case, I

20 served subpoenas upon Mercado Y Carniceria El Rancho, Inc.,

21 Carniceria El Camino, Inc., La Mexicana Supercarniceria #1,

22 Rita Ranch Market, 99 Ranch Market, 99 cent Store

23 Corporation, and Uruapan Carniceria." Exbt. 2 (doc. 213) at

24 ¶3. Defendant notes that "[t]he custodians of records of

25 these exhibits have been disclosed as witnesses and will be

26 called at trial to authenticate the documents if Plaintiffs

27 do not stipulate to their authenticity." Resp. (doc. 213) at

28 10. Again, considering this lawsuit's point in litigation,

- 20 -

1 and without any further arguments as to why the documents are

2 untrustworthy, it is reasonable to assume authentication upon 3 Quincy's sworn statement that the contested exhibits are what 4 they are purported to be.

5

On similar grounds, Plaintiffs contest Defendant's

6 submission of charts contained in Exhibits 21, 31, 33, 35, 36

7 and 37. The Court finds that the charts included in Exhibits

8 21, 31 and 37 are summaries of information that is either 9 already admitted into evidence or obtained from voluminous 10 business records. Exbt. 2 (doc. 213) at ¶¶5, 6, & 10; Exbt.

11 30 (doc. 190) at ¶9. The charts either cite to the documents 12 they are summarizing12 or are authenticated by an accompanying 13 affidavit and will be considered.13 However, the charts

14 included in Exhibits 33, 35, and 36 lack such foundation and 15 authentication. These contested charts seem to be an 16 organized version of defense counsel's personal notes and

17 arguments related to this case. Although Quincy claims these 18 documents to be summaries, the exhibits do not cite to the 19 documents from which the information originally came. The

20 Court cannot be expected to scrutinize the thousands of pages 21 of documents submitted by the Defendant to locate the origin 22 of such information. Therefore, the Court concludes that

23 Exhibits 33, 35, and 36 lack foundation and consequently will 24 not be considered in connection with the underlying motion. 25

26

12 Specifically, Exhibits 21 and 31.

27 13 Exhibit 31 is a copy of a chart that is attached to the
28 affidavit of Tom Dominick, submitted as Defendant's Exhibit 30.

- 21 -

1 Due to the fact that Exhibit 1W is a copy of Exhibit 35,

2 Exhibit 1W shall also not be considered.

3

In addition, asserting lack of authentication, Plaintiffs

4 move to strike extracts of deposition testimony filed as

5 exhibits by Defendant.14 Id. at 4. Defendant, in its original

6 filing of exhibits with its response to Plaintiffs' motion to

7 certify class, submitted numerous deposition excerpts without

8 the court reporter's certification. See Resp. & Notice (doc. 9 190 & 193). "A deposition or an extract therefrom is 10 authenticated...when it identifies the names of the deponent

11 and the action and includes the reporter's certification that 12 the deposition is a true record of the testimony of the 13 deponent." Orr v. Bank of America, 285 F.3d 764, 774 (9th Cir.

14 2002).

15

Both parties concede that Defendant's Exhibit 10,

16 excerpts of Michael Gantt's deposition transcript, should be

17 stricken from the record due to the fact that they were filed 18 without the court reporter's certificate. Plaintiffs' Mot. to 19 Strike Evidence (doc. 205) at 4-5; Resp. (doc. 213) at 6-7.

20 Exhibit 10 shall not be considered in connection with the

21 motion for class certification.

22

As to the remaining contested exhibits, Defendant filed

23 the missing certificates in its response to Plaintiffs' 24 25

26

27

14 Specifically, Plaintiffs move to strike Defendant's exhibits

2, 3, 8, 10, 11, 14, 16, 17, 20, 24, 25, 26, 27, 28, 29, and 32.

28 Plaintiffs' Mot. to Strike Evidence (doc. 205) at 4.

- 22 -

1 motion to strike the evidence.15 Exhibit 4 (doc. 213).

2 Although the certificates should have been originally filed

3 with the exhibits, the Court sees no indication that

4 Defendant's postponed filing will cause significant harm to

5 Plaintiffs.

6

Finally, Plaintiffs object to thirty-five affidavits made

7 by Spanish-speaking affiants who are employees of Defendant.16

8 Plaintiffs' Mot. to Strike Evidence (doc. 205) at 7.

9 Plaintiffs argue that Defendant failed to establish that the

10 statements were properly translated and they should

11 consequently be stricken.17 Id. In their exhibits, Defendant

12 submitted a number of affidavits from potential class

13 members, written and signed in Spanish. Defendant also

14 submitted what it asserted to be English translations of the

15 affidavits that were also signed by the affiants. Plaintiffs

16 contest the submission of these affidavits because "Defendant

17 has offered no certified translation to confirm that the

18 English versions are true and accurate translations of the

19 document signed by the affiants." Id.

20

21

15 The Court notes that Defendant did not attach a certificate for

the deposition e xcerpts of Michael Gantt, Exhibit 10. Because the

22 parties have agreed to the striking of the exhibit from the record,

there is no issue concerning the appropriateness of a certification. 23

24

16 Plaintiffs move to strike Defendant's Exhibits 50, 53, 58, 69, 70, 71, 73, 77, 79, 82, 83, 87, 88, 91, 92, 93, 94, 95, 97, 100, 101,

25

102, 103, 108, 109, 113, 119, 120, 122, 124, 126, 127, 131, 132, and 134.

26 17 Plaintiffs move to strike exhibits 50, 53, 58, 69, 70, 71, 73,
27 77, 79, 82, 83, 87, 88, 91, 92, 93, 94, 95, 97, 100, 101, 102, 103, 108, 109, 113, 119, 120, 122, 124, 126, 127, 131, 132, 134.
28 Plaintiffs' Mot. to Strike Evidence (doc. 205) at 7.

- 23 -

1

In response to Plaintiffs' motion to strike, Defendant

2 submitted the affidavit of W. Todd Turner. Resp. (doc. 213)

3 at Exbt. 5. In his sworn statement, Turner describes his

4 qualifications and expertise regarding Spanish language

5 translation and states that he translated the contested

6 affidavits from English into Spanish. Id. However, Plaintiffs

7 note that Turner does not explain the circumstances under

8 which the affiants signed affidavits in two languages (e.g.,

9 whether the affiants were advised of the content of the

10 English-language affidavits before signing them). Plaintiffs

11 argue that Defendant has therefore failed to lay a proper

12 foundation for the admission of the translated affidavits.

13 See Jack v. Trans World Airlines, Inc., 854 F.Supp. 654, 659

14 (N.D.Cal. 1994).

15

Although Turner does not explain the circumstances under

16 which the affiants signed the affidavits, he states that the

17 translations are true and accurate. Exbt. 5 (doc. 213) at ¶5.

18 Since the parties have not indicated that the affiants are

19 illiterate, it is reasonable to assume that the Spanish

20 versions of the affidavits were read and understood by the

21 affiants. Consequently, it is irrelevant whether the English

22 versions were signed by the affiants. The English versions

23 need only be authenticated by the translator's, Turner's,

24 sworn statement to such. These affidavits will be considered.

25

c. Lack of Disclosure

26

Plaintiffs assert that many of Defendant's exhibits

27 should be stricken, because they were not disclosed during

28

- 24 -

1 discovery.18 Plaintiffs' Mot. to Strike Evidence (doc. 205) at

2 4. The Federal Rules of Civil Procedure direct that a party 3 who "without substantial justification fails to disclose 4 information required by Rule 26(a) or 26(e)(1), is not,

5 unless such failure is harmless, permitted to use as

6 evidence...on a motion any witness or information not so

7 disclosed." Fed. R. Civ. P. 37(c)(1).

Plaintiffs move

8 to strike specific charts filed by Defendant that were 9 allegedly not disclosed.19 The charts contain information 10 about store format histories, Plaintiffs' expert's report,

11 health department inspections, and statements by affiants 12 about store conditions. See Exhibits 1B, 21, 31 and 37 (doc. 13 190). Defendant admits that it did not disclose the charts to

14 Plaintiffs, but claims that the information contained in the

15 charts was disclosed. Resp. (doc. 213) at 6.

16

Although Defendant did not disclose to Plaintiffs the

17 exact charts that they submitted into evidence, Plaintiffs do 18 not contest that they received the information contained in 19 the charts in other forms. Disclosure of the information in

20 any form put Plaintiffs on notice of what evidence and 21 documents Defendant intended to rely upon in this matter. 22 Exhibits 1B, 21, 31 and 37 are merely summaries of such

23

24

18 Specifically, Plaintiffs move to strike exhibits 1B, 1W, 21,

25

31, 33, 35, 36, 37, and 50-135. Plaintiffs' Mot. to Strike Evidence (doc. 205) at 4. The Court will not review Exhibits 1W, 33, 35, and

26 36 under this claim as they have already been deemed stricken from the record based on other grounds.

27 19 Plaintiffs move to strike exhibits 1B, 21, 31 and 37.
28 Plaintiffs' Mot. to Strike Evidence (doc. 205) at 4.

- 25 -

1 evidence. The Court finds that Defendant satisfied the

2 disclosure requirements of Rule 26(a) or 26(e)(1).

3

Plaintiffs also contest Defendant's use of affidavits

4 from eighty-five of Defendant's employees who were allegedly

5 not disclosed as witnesses.20 Defendant asserts, and

6 Plaintiffs do not contest, that sixty-eight of the contested

7 affiants were disclosed in Defendant's First Supplemental

8 Disclosure Statement. Resp. (doc. 213) at 6. The remaining

9 affiants are defined by Defendant as rebuttal witnesses. Id.

10

As Defendant disclosed the names and addresses of sixty-

11 eight of the contested affiants in their First Supplemental 12 Disclosure Statement (doc. 70), the Court concludes that Rule 13 26(a) of the Federal Rules of Procedure pertaining to

14 disclosures, has been satisfied. The affidavits of these 15 witnesses shall remain in the record. Under Federal Rule of 16 Civil Procedure 26, disclosure is not required for rebuttal

17 witnesses. Therefore, the Court concludes that the remaining 18 affidavits shall remain in the record and only used for 19 purposes of rebuttal, as Defendant asserts.

20

d. Lack of Personal Knowledge

21

Plaintiffs object to Defendant's Exhibits 1 and 30,

22 arguing that their authors lack personal knowledge of the

23 matter they discuss.21 Defendant's Exhibit 1 is the first

24

25

20 Plaintiffs move to strike exhibits 50-135.Plaintiffs' Mot. to

26 Strike Evidence (doc. 205) at 5.

27

21 Although Plaintiffs also object to Defendant's Exhibits 1W,

33, 35, and 36, the Court will not review these exhibits under this

28 claim because they have already been stricken on other grounds.

- 26 -

1 affidavit of Michael Proulx. Plaintiffs contest the

2 submission of many of Proulx's declarations included in the

3 affidavit, arguing that Proulx lacks personal knowledge of

4 the matters on which he opines. In his statements, Proulx

5 discusses, among other things, matters involving Bashas' past

6 history and business, store formats, wage scales, store

7 conditions, and competitors. Proulx, as President and CFO of

8 Bashas', Inc., has sufficient personal knowledge of these

9 matters for purposes of the underlying motion.

10

Defendant's Exhibit 30 is the affidavit of Tom Dominick.

11 Dominick is the current Vice President of Food Safety and

12 Sanitation for Bashas' and has handled food safety for the

13 company since 1998. Exbt. 30 (doc. 190) at ¶3. In his

14 affidavit, Dominick makes statements about his experiences

15 with food safety and sanitation at Bashas' stores. Due to his

16 position at Defendant's company, Dominick has sufficient

17 personal knowledge of these matters to be considered on a

18 motion for class certification.

19

ii. Motion to Strike Deposition Testimony of Paul

20 Joe

Pedraza

21

Plaintiffs also move to strike the testimony of Paul Joe

22 Pedraza, Exhibit 38, submitted by Defendant in its response

23 to Plaintiffs' motion for class certification. Mot. to Strike

24 Test. (doc. 197). Essentially, Plaintiffs claim that the

25 exhibit is the transcript of a deposition that was taken by

26 Defendant without notice to Plaintiffs, as required under

27 Federal Rule of Procedure 30(b)(1) and 32(a). Id. at 1. In

28 contrast, Defendant asserts that the testimony is an

- 27 -

1 affidavit that does not require notice and should not be

2 struck. Resp. (doc. 212) at 6.

3

Although the Ninth Circuit has not reviewed this issue in

4 relation to motions for class certification, the matter has

5 been reviewed in regard to motions for summary judgment. The

6 Ninth Circuit has held that a witness' statement taken in

7 question and answer form, which had neither been subject to

8 cross examination nor signed, was admissible under Rule

9 56(c). In re Sunset Bay Associates, 944 F.2d 1503, 1510 (9th

10 Cir. 1991) [hereinafter Sunset Bay]. The court in Sunset Bay

11 based their decision on the holding of a previous case,

12 Hoover v. Switlik Parachute Co., 663 F.2d 964 (9th Cir. 1981),

13 where it concluded that similar documents met the

14 requirements for Rule 56(c) affidavits since they were made

15 on personal knowledge and set forth facts in evidence. Id. at

16 965-66.

17

[T]he logic of Hoover implies that an unsigned

deposition should be admissible where, as

18

here, the deponent was sworn. The approach of

Hoover is pragmatic, looking to see if the

19

deposition testimony is at least as reliable

as an admissible affidavit. Because there is

20

no reason to believe that the sworn answers to

questions are less reliable that an affidavit,

21

to the extent that the content of the

deposition testimony is otherwise admissible,

22

that testimony should be admissible on summary

judgment.

23

24 Sunset Bay, 944 F.2d at 1510. In a later case, the court

25 held that a statement was admissible under the same rule

26 despite the fact that the party objecting to the admission of

27 the statement had not been present at the time it was taken.

28 Curnow v. Ridgecrest Police, 952 F.2d 321, 324 (9th Cir.

- 28 -

1 1991). The court in Curnow simply found the statement

2 admissible "because [the witness'] answers to the questions 3 were given under oath...[and the statement] was at least as 4 reliable as an affidavit." Id.

5

An affidavit shall "be made on personal knowledge, shall

6 set forth such facts as would be admissible in evidence, and

7 shall show affirmatively that the affiant is competent to

8 testify to the matters stated therein." Fed. R. Civ. P. 9 56(e). Similar to the above described cases, the contested 10 exhibit in the case at bar contains statements taken in a

11 question and answer form that were not subject to cross 12 examination nor signed. See Exhibit 38 (doc. 190). Although 13 Pedraza's statements were taken under oath, Plaintiffs argue

14 that the sworn answers are less reliable than an affidavit 15 because they are inadmissible under the Rules of Evidence. 16 Reply (doc. 218) at 8-9. Plaintiffs object to the majority of

17 Pedraza's statements by asserting that they are inadmissable

18 hearsay or lay opinion testimony, lack personal knowledge or

19 foundation, are prejudicial or irrelevant, or are responses

20 to leading questions.22 Id.

21

The statements included in Defendant's Exhibit 38 contain

22 testimony concerning Pedraza's own employment history and

23 work experience with the United Food and Commercial Workers

24

25

22 In their Reply (doc. 218), Plaintiffs object to numerous

statements contained in Pedraza's testimony, many of which were not

26 included in the excerpted transcript filed by Defendant as Exhibit 38. Due to the fact that Plaintiffs' motion to strike specifically

27 moves to strike Defendant's Exhibit 38, the Court only reviews the

claims related to statements submitted in that exhibit, not the

28 transcript in its entirety.

- 29 -

1 Union ("UFCW"). See Exhibit 38 (doc. 190). Such information

2 comes from Pedraza's personal experience and knowledge, and 3 is admissible under Ninth Circuit case law. The Court does 4 not find such statements to be inadmissible under any of

5 Plaintiffs' theories. In addition, the exhibit contains 6 remarks involving Pedraza's lay opinions about individuals 7 and events related to this lawsuit. Id. Specifically, Pedraza 8 makes statements involving Bashas' business decisions,23 other 9 individuals' fear of a certain person and their reasoning for 10 signing certain documents,24 and Bill McDonough's involvement 11 in this lawsuit.25 Opinion testimony of this type is 12 admissible under Federal Rule of Evidence 701. Accordingly, 13 the Court concludes that Defendant's Exhibit 38 is at least

14 as reliable as an affidavit and need not be stricken from the 15 record. 16 IV. Plaintiffs' Motion to Use Expert Analysis as Rebuttal

17 Opinion

18

On September 7, 2004, Plaintiffs filed a Motion for

19 Permission to Use Previously-Disclosed Expert Analysis as

20 Rebuttal Opinion and Request for Expedited Decision. Mot. 21 Reb. Opin. (doc. 147). The Court, finding no grounds for 22 expedited treatment on the issue, denied Plaintiffs' request

23 for an expedited decision. Order (doc. 149). The Court agreed

24

25

23 Defendant's Exhibit 38 (doc. 190) at 11, line 19-20.

26 24 Defendant's Exhibit 38 (doc. 190) at 22, line 7-8.
27 25 Defendant's Exhibit 38 (doc. 190) at 26, line 23-24;
28 Defendant's Exhibit 38 (doc. 190) at 27, line 3-23.

- 30 -

1 to consider the matter in connection with Plaintiffs' motion

2 to certify class, heard oral argument on the issue on January

3 24, 2005, and is now ready to rule. Id.

4

In their motion, Plaintiffs ask the Court to allow them

5 to use analysis produced by their previously-disclosed expert 6 as a rebuttal opinion. Mot. Reb. Opin. (doc. 147). 7 Specifically, Plaintiffs seek the Court's permission to allow 8 their disclosed statistical expert, Dr. Richard Drogin,26 to 9 present an opinion in rebuttal to an opinion expressed by 10 defendant's expert, Dr. Michael Ward.27 Mot. Reb. Opin. (doc.

11 147) at 2. The analysis at issue is Drogin's study of the 12 rates of pay at hire for whites and Hispanics within Food 13 City stores. Id. Defendant's expert, in his report, expressed

14 the opinion that there cannot be discrimination in the pay 15 between whites and Hispanics in Food City stores because all 16 employees are paid according to one pay scale. Exbt. 7 (doc.

17 190) at 8-9. To rebut Ward's assertion, Plaintiffs would like 18 to submit a two-page report created by Drogin that includes 19 an analysis of the actual pay received at initial hire for

20 white and Hispanic employees within Food City stores. Exbt. 1 21 (doc. 148). 22

23

26 Dr. Drogin is an Emeritus Professor in the Department of

24

Statistics at California State University, Hayward and is a partner in a statistical consulting firm. See Decl. Drogin (doc. 160) at

25 Exbt. 1, ¶¶ 1-2.

26

27 Dr. Ward has a Ph.D. in economics from the University of

Chicago, is Senior Vice President of a consulting firm specializing

27 in economic and statistical research, and is a senior economist at a

research firm that performs grant and contract research for the

28 Federal Government. See Exbt. 7 (doc. 190) at ¶¶1-2.

- 31 -

1

Defendant contests the submission of Drogin's initial

2 hire pay analysis as a rebuttal opinion because the analysis

3 is a new, previously undisclosed and unpled theory. Resp.

4 (doc. 179) at 1. Defendant asserts that Drogin's analysis is

5 a new theory of the case, requiring further depositions and

6 analysis by their own expert on the same issue. Id. at 4-9.

7 In connection with their opposition to Plaintiffs' motion,

8 Defendant filed a cross motion requesting that if the report

9 is admitted as a rebuttal opinion, Defendant be granted

10 additional time to conduct another deposition of Drogin and

11 have their own expert analyze the same matter and create a

12 rebuttal report in response. Cross Mot. (doc. 179) at 10.

13

Plaintiffs wish to submit the contested opinion to

14 counter Ward's claim on the impossibility of pay

15 discrimination in Defendant's stores. Mot. Reb. Opin. (doc.

16 147) at 5. Consequently, the analysis more closely resembles

17 a rebuttal than a new case theory. Therefore, the Court will

18 allow Plaintiffs to submit Drogin's analysis as a rebuttal to

19 Ward's report. The Court will only review the analysis as

20 rebuttal in relation to Plaintiffs' motion for class

21 certification. Because the report will be reviewed for such

22 limited purposes and Defendant has not indicated how further

23 questioning of Drogin and an additional study will aid the

24 Court in determining the issue of certification, Defendant's

25 requests for an additional deposition of Drogin and time to

26 submit a rebuttal report of its own are unnecessary.

27 . . .

28

- 32 -

1 V. Class Certification

2

Plaintiffs ask this Court to certify a class consisting

3 of:

4

All Hispanic workers employed by defendant in

an hourly position at any Food City retail

5

store since April 4, 1998, who have been or

may be subject to the challenged pay policies

6

and practices and disparate working

conditions.

7

Mot. (doc. 159) at 17. Federal Rule of Civil Procedure 23

8

governs class certification and has two parts. A party seeking

9

certification must successfully meet all the requirements of

10

Rule 23(a) and at least one of the requirements of Rule 23(b).

11

Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186,

12

amended, 273 F.3d 1266 (9th Cir. 2001).28 A party seeking class

13

14

15

28 Fed. R. Civ. P. 23(a) requires:

(1) that the class be so numerous that joinder of all members is

16

impractical,

17

(2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are

18

typical of the claims or defenses of the class,

(4) the representative parties will fairly and adequately

19

protect the interests of the class

20

Fed. R. Civ. P. 23(b) requires:

(1) the prosecution of separate actions by or against individual

21

members of the class would create a risk of

(A) inconsistent or varying adjudications...or

22

(B) adjudications with respect to individual members of the

class would as a practical matter be dispositive of

23

the interests of other members not parties...or

24

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making

25

appropriate final injunctive relief or corresponding declaratory

relief with respect to the class as a whole; or

26

(3) the court finds that the questions of law or fact common to

the members of the class predominate over any questions

27

affecting only individual members, and that a class action is

superior to other available methods of the fair and efficient

28

adjudication of the controversy.

- 33 -

1 certification bears the burden of proving facts sufficient to

2 meet these criteria. See id. In determining a motion for class

3 certification, a court must determine based upon a "rigorous

4 analysis," whether each of the requirements of Rule 23 have

5 been satisfied. General Telephone Company of the Southwest v.

6 Falcon, 457 U.S. 147, 161 (1982)."Although some inquiry into

7 the substance of a case may be necessary to ascertain

8 satisfaction of the commonality and typicality requirements of

9 Rule 23(a), it is improper to advance a decision on the merits

10 to the class certification stage." Moore v. Hughes

11 Helicopters, Inc., 708 F.2d 475, 480 (9th Cir. 1983); Eisen v.

12 Carlisle & Jacquelin, 417 U.S. 156, 177 (1974). While a

13 court's analysis must be rigorous, Rule 23 confers "broad

14 discretion to determine whether a class should be certified,

15 and [allows a court] to revisit that certification throughout

16 the legal proceedings[.]" Armstrong v. Davis, 275 F.3d 849,

17 872 n. 28 (9th Cir. 2001).

18

A. Rule 23(a)

19

i. Numerosity

20

First, Rule 23(a) requires that the proposed class be so

21 numerous that "joinder of all members is impracticable." Fed.

22 R. Civ. P. 23(a)(1). In the case at bar, Defendant does not

23 contest certification based on failure to meet this condition.

24 Moreover, as a class with thousands of members, this

25 requirement is satisfied. Mot. (doc. 159) at 18; Decl. Drogin

26 (doc. 160) at Exbt. 1.

27

ii. Commonality

28

Second, in order for a class to be certified, there must

- 34 -

1 be "questions of law or fact common to the class..." Fed. R.

2 Civ. P. 23(a)(2). The element of commonality specifically

3 refers to the group characteristics of the class as a whole.

4 See Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 144-45

5 (N.D. Cal. 2004). To find commonality, "[a]ll questions of

6 fact and law need not be common to satisfy the rule." Hanlon

7 v. Chrysler, 150 F.3d 1011, 1019-20 (9th Cir. 1998). "The

8 existence of shared legal issues with divergent factual

9 predicates is sufficient, as is a common core of salient facts

10 coupled with disparate legal remedies within the class." Id.

11 Generally, the element of commonality should be construed

12 permissively, but a "mere allegation of individualized

13 discrimination on the basis of race, coupled with proof that

14 other people of color work in the same environment, is

15 insufficient to establish commonality." Donaldson v. Microsoft

16 Corp., 205 F.R.D. 558, 565 (W.D. Wash. 2001).

17

In this instance, Plaintiffs base their discrimination

18 claims on Defendant's pay policies, the alleged

19 disproportionality of Hispanics employed at Food City stores

20 verses Defendant's other stores, and Defendant's alleged

21 common practice of maintaining inferior store conditions at

22 Food City locations. F. Amend. Complt. (doc. 116) at 4-7.

23 Plaintiffs present extensive evidence to support their

24 contention that there are factual and legal questions common

25 to all class members with respect to whether Defendant has

26 engaged in company-wide discrimination against Hispanic

27 employees in pay and working conditions. This evidence can be

28 grouped into three categories: (1) facts and expert opinion

- 35 -

1 supporting the existence of company-wide policies and

2 practices; (2) expert statistical evidence of class-wide race

3 disparities attributable to discrimination; and (3) anecdotal

4 evidence from class members.

5

First, Plaintiffs present evidence that Defendant's

6 policies governing compensation are similar across all stores

7 due to the fact that all of Defendant's stores use company-

8 established pay schedules to determine rates of pay. Mot.

9 (doc. 159) at 4. Defendant concedes that such pay schedules

10 are used, and that past pay schedules established for Food

11 City stores contained lower pay ranges than those utilized at

12 Bashas' and A.J.'s stores. Resp. (doc. 190) at 11; Exbt. 7

13 (doc. 190) at ¶10. However, both parties concede that over the

14 past several years the contested pay scales have merged and,

15 for the most part, are now identical. Mot. (doc. 159) at 7;

16 Resp. (doc. 190) at 14-15. Consequently, some class members

17 may now receive pay that is equal to that of their

18 counterparts in Defendant's other stores, while other class

19 members may not. Thus, although Defendant's system for

20 compensating hourly employees is similar across all stores,

21 the Court is not satisfied that the manner in which the system

22 affects the class raises issues that are common to all class

23 members.

24

Plaintiffs also present statistical evidence of class-

25 wide race disparities. Decl. Drogin (doc. 160) at Exbt. 1.

26 "Use of statistical analysis to raise an inference of class-

27 wide discrimination and satisfy commonality is well accepted."

28 Dukes, 222 F.R.D. at 154. Plaintiffs rely primarily on the

- 36 -

1 expert testimony of Dr. Drogin who concludes that there are

2 statistically significant disparities between the workforce

3 make-up of Defendant's Food City stores and its other stores,

4 and between the compensation provided to Defendant's Hispanic

5 employees verses employees of other races. Decl. Drogin (doc.

6 160) at Exbt. 1, ¶ 32.

7

Defendant argues that Drogin's analysis is incorrect and

8 that there is no statistical pattern of discrimination at its

9 stores. Resp. (doc. 190) at 19. Defendant relies on the

10 testimony of its own expert economist, Dr. Ward, who provides

11 a critique of Drogin's analysis. Id. at 19-27. Specifically,

12 Defendant asserts that Drogin wholly disregarded Defendant's

13 "actual" pay practices. Id. at 20 (arguing that Drogin failed

14 to consider "that during the time in question, hourly workers

15 at all formats were paid according to published pay

16 scales...[and Drogin] failed to understand...the history of

17 the [store] formats and wage scales.").

18

The Court may delve into the substance of expert

19 testimony only to the extent necessary to determine if it is

20 sufficiently probative of an inference of discrimination to

21 create commonality. See Dukes, 222 F.R.D. at 154. A party

22 challenging statistical evidence "cannot rebut an inference of

23 discrimination by merely pointing to flaws in the plaintiff's

24 statistics." EEOC v. General Telephone Co. of the Northwest,

25 Inc., 885 F.2d 575, 581 (9th Cir. 1989). Rather, the party

26 challenging the statistical analysis must "produce credible

27 evidence that curing the alleged flaws would also cure the

28 statistical disparity[.]" Id. at 583.

- 37 -

1

Here, Defendant points out numerous flaws in Drogin's

2 analysis but fails to put forth sufficient evidence that

3 fixing the defects would cure the statistical disparity.

4 Moreover, Dr. Ward and Defendant concede to three of Dr.

5 Drogin's conclusions: (1) Food City Stores have a higher

6 percentage of Hispanic employees compared to Bashas' or A.J.'s

7 stores, (2) the pay scales at Bashas' and A.J.'s stores were

8 higher than those at Food City during the period 1998-2000,

9 and (3) Hispanic employee hourly rates were lower in similar

10 jobs. Resp. (doc. 190) at 19; Exbt. 7 (doc. 190) at ¶10.

11 However, these concessions alone do not indicate commonality

12 among all the class members, as Defendant's pay scales,

13 implemented at Food City and Bashas' stores, are now almost

14 identical. Mot. (doc. 159) at 7; Resp. (doc. 190) at 14-15.

15

Finally, Plaintiffs submit anecdotal evidence in order to

16 show commonality. Anecdotal evidence of discrimination is

17 often used in Title VII pattern and practice cases to bolster

18 the statistical proof by bringing "the cold numbers

19 convincingly to life." Int'l Brotherhood of Teamsters v.

20 United States, 431 U.S. 324, 339 (1977). Here, Plaintiffs have

21 submitted declarations from each of the class representatives,

22 as well as declarations from class members. See Decl. G.

23 Estrada (doc. 176); Decl. Martinez (doc. 163); Decl. Acuna

24 (doc. 166); Decl. Lopez (doc. 173); Decl. J. Estrada (doc.

25 164); Decl. Arriaga (doc. 175); Decl. Salazar (doc. 172);

26 Decl. Gutierrez (doc. 171); Decl. Urbina (doc. 165); Decl.

27 Parra (doc. 168). The declarants testify to their employment

28 experiences and pay histories with Bashas' Inc., and the sub-

- 38 -

1 standard conditions they witnessed in Food City stores. This

2 anecdotal evidence, in combination with the other evidence

3 previously discussed, supports an inference that Defendant's

4 policies on working conditions have affected Plaintiffs in a

5 common manner.

6

Although members of the proposed class may incorporate

7 different factual circumstances in their claims, as current

8 and former employees at Defendant's stores, they each have

9 been subject to Defendant's stores' working conditions. Their

10 claims all stem from the same source: the alleged existence of

11 common discriminatory practices conducted by Defendant.29

12 Therefore, on the issue of working conditions, the proposed

13 class shares sufficient commonality to satisfy the minimal

14 requirements of Rule 23(a)(2). The Court does not find

15 sufficient commonality among the class members on the issue of

16 pay. Thus, due to its inability to satisfy Rule 23(a)(2), the

17 Court shall deny certification of the proposed class on the

18 issue of discriminatory pay policies.30

19

20

29 Defendant challenges the commonality of the proposed class by

asserting that the class is simply too diverse. Resp. (doc. 190) at

21 36-45. Specifically, Defendant raises concerns with the diversity of

the positions listed on the contested pay schedules, the employment 22 experience of class members, and the locations of Food City stores.

Id. Many of these arguments go to the merits of Plaintiffs' 23 discrimination claims instead of the issue of class certification.

24

Here, although the Court may consider the substance of a case when considering the commonality and typicality of a class, the Court need

25

not make a complete determination as to the merits of Plaintiffs' claims in order to rule on these elements.

26 30 Due to this determination, the Court has not reached the other
27 requirements for class certification on this issue, and further expresses no opinion on whether Plaintiffs could satisfy such
28 requirements.

- 39 -

1

iii. Typicality

2

Third, to be certified as a class, Rule 23 requires that

3 "the claims or defenses of the representative parties [be]

4 typical of the claims or defenses of the class..." Fed. R.

5 Civ. P. 23(a)(3). As the Supreme Court has explained:

6

The commonality and typicality requirements...

tend to merge. Both serve as guideposts for

7

determining whether under the particular

circumstances maintenance of a class action is

8

economical and whether the named plaintiff's

claim and the class claims are so interrelated

9

that the interests of the class members will

be fairly and adequately protected in their

10

absence.

11 General Telephone Co. of Southwest v. Falcon, 457 U.S. 147,
12 157 n. 13 (1982). Typicality refers specifically to the
13 individual characteristics of the named plaintiffs in relation
14 to the class as a whole. See Dukes, 222 F.R.D. at 144-45.
15 "Under the rule's permissive standards, representative claims
16 are 'typical' if they are reasonably co-extensive with those
17 of absent class members; they need not be substantially
18 identical." Hanlon,150 F.3d at 1020. It is sufficient for the
19 plaintiffs' claims to "arise from the same remedial and legal
20 theories" as the class claims. See Dukes, 222 F.R.D. at 166,
21 quoting Arnold v. United Artists Theatre Circuit, Inc., 158
22 F.R.D. 439, 449 (N.D. Cal. 1994).
23 Here, the named Plaintiffs selected to represent the
24 proposed class are Gonzalo Estrada and Aurelia Martinez.31 Mot.
25 (doc. 159) at 21. Both Estrada and Martinez are Hispanic and
26
27 31 Plaintiffs notify the Court that José Parra has withdrawn as
28 a named plaintiff in this case. Reply (doc. 207) at n. 27.

- 40 -

1 are current or former employees of a Food City store owned and

2 operated by Defendant. Decl. Estrada (doc. 176) at 1; Decl.

3 Martinez (doc. 163) at 1.

4

Estrada was employed at Food City from April 1999 until

5 July 2002. Decl. Estrada (doc. 176) at 1. While employed with

6 Defendant's company, he worked in the deli and meat

7 departments, and was an hourly-paid employee. Id. at 2-3.

8 Estrada claims that during his tenure at Food City, he was

9 aware of the pay schedule differences between Food City stores

10 and Defendant's other stores. Id. at 3. Estrada also claims

11 that he witnessed unclean working conditions at the Food City

12 store in Mesa, Arizona where he worked. Id. at 3-4. In the

13 case at bar, Estrada has articulated claims for pay disparity

14 and disparate working conditions. He exhausted his

15 administrative remedies before filing this lawsuit under Title

16 VII by filing an EEOC charge in November 2001. Id. at 5.

17 Because Estrada suffered from the same alleged disparate

18 working conditions as the potential class members, the Court

19 finds that he sufficiently satisfies the typicality

20 requirement of Rule 23 for this issue.

21

Martinez has been employed at a Food City store in

22 Phoenix, Arizona since 1991. Decl. Martinez (doc. 163) at 1-2.

23 Throughout her employment at Food City, she has worked only in

24 the Tortilleria department. Id. at 2. Martinez states that she

25 is an hourly-paid employee and claims that she has witnessed

26 unclean working conditions at the store and in the department

27 where she works. Id. 2-6. In the case at bar, Martinez has

28 articulated claims for pay disparity and disparate working

- 41 -

1 conditions. Despite the fact that she has not filed an EEOC

2 charge, and therefore not exhausted her administrative 3 remedies under Title VII, Martinez may "piggyback" onto 4 Estrada's efforts and go forth with her Title VII claim. See

5 Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8 (1975).

6

Defendant contests Martinez's typicality, arguing that

7 the position in which she is employed is not comparable to a

8 position located within the Bashas' or A.J.'s stores. Resp. 9 (doc. 190) at 59-61. In contrast, Plaintiff argues that in 10 certain company documents,32 Defendant lists Martinez's

11 position as an equivalent to a donut fryer position. Reply 12 (doc. 207) at 27. Without further information on this issue, 13 the Court cannot determine whether Martinez's position has a

14 comparable counterpart in Defendant's other stores. 15 Regardless, Martinez claims she has suffered from the same 16 alleged disparate working conditions as the proposed class

17 members. While close, the Court finds that she sufficiently 18 satisfies the typicality requirement of Rule 23(a)(3) on that 19 issue.

20

iv. Adequacy

21

Fourth, the party moving for class certification must

22 show that "the representative parties will fairly and

23 adequately protect the interests of the class." Fed. R. Civ.

24 P. 23(a)(4).33 Like the commonality and typicality

25

26

32 Plaintiffs note the written pay scales and a document used to

recruit new employees for Bashas' stores. Reply (doc. 207) at 27.

27 33 Since the revision of Rule 23 in December 2003, the adequacy
28 of class counsel is now evaluated pursuant to Rule 23(g)."Rule

- 42 -

1 requirements, it assures that shared interests between the 2 representative plaintiffs and the class as a whole are 3 present, but it also functions to ensure competency and the

4 absence of conflicts. See Amchem Products, Inc. v. Windsor,

5 521 U.S. 591, 625-26 (1997).

6

Defendant challenges Plaintiffs' adequacy, arguing that

7 their alleged private, ulterior motives and actions show they

8 are not adequate representatives of all class members. Resp.

9 (doc. 190) at 47-52. Specifically, Defendant asserts that the 10 named Plaintiffs are pursuing this case on behalf of the UFCW 11 and are merely puppets of the organization. Id. at 47-48. 12 Defendant argues that this ulterior motive indicates that the 13 named plaintiffs have no individual claims and do not have the

14 same interests as their class members. Id. at 48, 54.

15

The Court is not convinced that the named plaintiffs are

16 inadequate due to Defendant's allegations of ulterior motives.

17 Both proposed named plaintiffs, Estrada and Martinez have

18 expressed their ability and willingness to represent the

19 class. Decl. Estrada (doc. 176) at ¶13; Decl. Martinez (doc. 20 163) at ¶21. The interests of the class and those of the named 21 plaintiffs are the same as both seek to prove that Defendant's 22 working conditions discriminate against Hispanic employees. 23 Both also seek the same result of an order of injunctive

24 relief eradicating any discriminatory policies. Therefore, the
25
26 23(a)(4) will continue to call for scrutiny of the proposed class
27 representative, while this subdivision will guide the court in assessing proposed class counsel as part of the class certification
28 process." Fed. R. Civ. P. 23 Advisory Committee note.

- 43 -

1 Court finds that the named plaintiffs satisfy the element of

2 adequacy required of Rule 23(a)(4). Concluding that Plaintiffs

3 have satisfied the threshold elements of class certification

4 enumerated in Rule 23(a) on the working conditions issue, the

5 Court will now analyze the proposed class under the

6 requirements of Rule 23(b).

7

B. Rule 23(b)

8

Certification under Rule 23(b) requires satisfaction of

9 one of three elements. Here, Plaintiffs argue that they

10 satisfy two of the possible elements listed in Rule 23(b).

11

i. Rule 23(b)(2)

12

First, Plaintiffs assert that they satisfy the

13 requirements of Rule 23(b)(2), mandating that "the party

14 opposing the class has acted or refused to act on grounds

15 generally applicable to the class, thereby making appropriate

16 final injunctive relief or corresponding declaratory relief

17 with respect to the class as a whole[.]" Fed. R. Civ. P.

18 23(b)(2); Mot. (doc. 159) at 23. "Civil rights cases against

19 parties charged with unlawful, class-based discrimination are

20 prime examples" of Rule 23(b)(2) classes. Amchem Prods., 521

21 U.S. at 614.

22

Here, Plaintiffs argue that certification under Rule

23 23(b)(2) is appropriate because Defendant has acted and

24 refused to act on grounds generally applicable to the entire

25 class. Mot. (doc. 159) at 23. Plaintiffs allege that Defendant

26 has acted in a discriminatory manner generally applicable to

27 the class, and plaintiffs have sought declaratory and

28 injunctive relief with respect to the class as a whole.

- 44 -

1 Amended Complt. (doc. 116) at 7-8.

2

This declaratory and injunctive relief would

include, inter alia:...4) enjoining the

3

maintenance of unequal terms and conditions of

employment for class members, including the

4

safety and cleanliness of the stores; and 5) a

declaration that the challenged practices

5

violate Section 1981 and Title VII.

6 Mot. (doc. 159) at 23.

7

On the issue of disparate working conditions, Defendant

8 challenges Plaintiffs' ability to certify the class under Rule

9 23(b)(2), arguing that Plaintiffs' complaints do not support

10 injunctive relief. Resp. (doc. 190) at 66. "They have not

11 identified a specific policy or practice of discrimination to

12 be enjoined[.]" Id. Defendant relies on the ruling in Monreal

13 v. Potter, 367 F.3d 1224 (10th Cir. 2004) to support its

14 argument.

15

In Monreal, seven management-level Hispanic postal

16 employees sought to represent a class of Hispanic management

17 employees who had "suffered race discrimination with respect

18 to the terms and conditions of their employment, or

19 promotions, or retaliation[.]" 367 F.3d 1234. The plaintiffs

20 offered statistics "to show that Hispanics constitute a

21 proportionately lower number of managers than do whites." Id.

22 at 1235. They also offered ninety-three declarations from

23 members of the proposed class, complaining of discrimination

24 in promotions, compensation, evaluations, job shifting and

25 assignments, discipline, disrespectful treatment, training and

26 advancement, a hostile and retaliatory environment that

27 deterred Hispanic Postmasters and managers from seeking

28 advancement and making or supporting Title VII charges, and

- 45 -

1 serial retaliation on Hispanic Postmasters and managers who

2 made or supported Title VII charges. Id. at 1234-35. The Tenth

3 Circuit affirmed the district court's denial of class

4 certification under Rule 23(b)(2), because the plaintiffs had

5 "not articulated a policy--besides generalized non-compliance

6 with Title VII--that could be the subject of injunctive or

7 declaratory relief," and the plaintiffs' complaint did not

8 request "any specific relief of this type." Id. at 1236.

9 Defendant argues that the same analysis should apply here.

10 Resp. (doc. 190) at 67.

11

Despite the fact that this Court is not required to

12 follow the Tenth Circuit's conclusions in Monreal, the claims

13 here do not significantly resemble those of the Tenth Circuit

14 case. In the case at bar, Plaintiffs claim that Defendant

15 acted in a discriminatory manner by maintaining disparate

16 working conditions in their stores. Unlike the numerous claims

17 of discrimination articulated by the plaintiffs in Monreal,

18 Plaintiffs here allege one main claim of a discriminatory

19 practice or policy. Although the facts of each individual

20 complaint may differ according to where and in what position

21 the class member worked, viewed together they form a general

22 claim that Defendant holds a discriminatory policy or practice

23 in relation to working conditions offered in its Food City

24 stores. Moreover, Plaintiffs seek specific declaratory and

25 injunctive relief on this matter, defined as:

26

4) enjoining the maintenance of unequal terms

and conditions of employment for class

27

members, including the safety and cleanliness

of the stores; and 5) a declaration that the

28

challenged practices violate Section 1981 and

- 46 -

1

Title VII.

2 Mot. (doc. 159) at 23. Thus, the Court concludes that
3 Plaintiffs satisfy the requirements of Rule 23(b)(2) on the
4 working conditions claim.
5 C. Conclusion
6 The Court concludes that regarding their claim of
7 disparate working conditions, Plaintiffs have satisfied the
8 requirements of Rule 23(b)(2), and determines that a further
9 analysis of Rule 23(b)(3) and Plaintiffs' hybrid claim are
10 unnecessary. Consequently, the Court finds that on the issue
11 of disparate working conditions, Plaintiffs have satisfied all
12 of the requirements of Rule 23, and therefore grants in part
13 and denies in part the certification of the requested class.
14 Plaintiffs have requested that the Court order that class
15 members be provided notice and an opportunity to opt out, akin
16 to that provided by Rule 23(b)(3). Mot. (doc. 159) at 26.
17 Minimum due process requirements apply where the monetary
18 relief sought in a class action lawsuit is "substantial."
19 Molski, 318 F.3d at 948. The Molski court concluded that
20 "notice and the right to opt-out [] must be provided to bind
21 absent class members when substantial monetary damages are
22 involved." Id. The court further indicated that a claim for
23 punitive damages is "substantial." Id. at 951. Pursuant to
24 Rule 23(d), the Court is permitted to order notice and opt-out
25 plans as it deems necessary. Fed. R. Civ. P. 23(d). However,
26 in light of the fact that Plaintiffs seek no monetary damages
27 in relation to their claims of disparate working conditions,
28

- 47 -

1 there is no reason for any opt-out notification.

2 VI. Appointment of Class Counsel

3

Rule 23(g) governs the standards and framework for the

4 selection of class counsel for a certified class. Fed. R. Civ.

5 P. 23(g).34 The rule articulates four criteria that the court

6 must consider in evaluating the adequacy of proposed counsel.

7 The four mandatory considerations are (1) the work counsel has

8 done in identifying or investigating potential claims in the

9 action, (2) counsel's experience in handling class actions,

10 other complex litigation, and claims of the type asserted in

11 the action, (3) counsel's knowledge of the applicable law, and

12 (4) the resources counsel will commit to representing the

13 class. Fed. R. Civ. Pro. 23(g)(1)(C)(i). The court is also

14 free to consider "any other matter pertinent to counsel's

15 ability to fairly and adequately represent the interests of

16 the class[.]" Fed. R. Civ. Pro. 23(g)(1)(C)(ii). "No single

17 factor should necessarily be determinative in a given case."

18 Fed. R. Civ. P. 23(g) Advisory Committee note.35

19

In the case at bar, the law firm Davis, Cowell & Bowe and

20 The Impact Fund36 seek to be appointed counsel of the proposed

21

22

34 Rule 23 was amended on December 1, 2003 and, as part of the

revision, added subsection Rule 23(g). 23

24

35 Fed. R. Civ. Pro. 23(g)(2)(B) sets forth the standards to be followed by the court in selecting among competitive candidates to

25

serve as class counsel. As this Court is not aware of any other attorneys interested in serving as class counsel in this case, this

26 matter will not be reviewed.

27

36 The Impact Fund is a non-profit legal foundation, which

supports complex public interest litigation. Decl. Lawrence (doc.

28 154) at ¶ 3. Currently, The Impact Fund serves as lead counsel in the

- 48 -

1 class. Mot. for Appt. (doc. 152). Davis, Cowell & Bowe and The 2 Impact Fund assert that they each satisfy the criteria 3 articulated in Rule 23(g). Davis, Cowell & Bowe argue that

4 they have already spent over three years identifying and 5 investigating potential claims in this action, and associated 6 The Impact Fund as co-counsel to further assist with their 7 investigation. Decl. Lawrence (doc. 154) at ¶¶10-13. 8 "Attorneys and staff of The Impact Fund have communicated with

9 class members and assisted with the litigation of this 10 action." Mot. for Appt. (doc. 152) at 4; Decl. Lawrence (doc. 11 154) at ¶ 11. Plaintiffs' counsel also assert that they have 12 extensive experience with class action lawsuits and cases 13 involving similar claims, and therefore have extensive

14 knowledge of the applicable law. Mot. for Appt. (doc. 152) at 15 5. Plaintiffs note that Davis, Cowell & Bowe and The Impact 16 Fund were recently appointed class counsel in Dukes v. Wal17 Mart Stores, 222 F.R.D. 137 (N.D. Cal. 2004). Mot. for Appt. 18 (doc. 152) at 4.

19

Defendant challenges the appointment of Davis, Cowell &

20 Bowe and The Impact Fund as class counsel. Resp. (doc. 189).

21 Defendant questions Davis, Cowell & Bowe's dedication to the

22 proposed class due to the fact that the firm also represents

23 the UFCW. Resp. (doc. 189) at 3-7. Defendant argues that if

24 the UFCW decides that this lawsuit is not in its best
25 interests, the attorneys and named plaintiffs in this class
26
27 Dukes v. Wal-Mart Stores litigation. 222 F.R.D. 137 (N.D. Cal. 2004);
28 Mot. for Appt. (doc. 152) at 4.

- 49 -

1 action lawsuit will drop the case, to the detriment of the

2 proposed class members. Id. at 3-4. Defendant also questions 3 whether the attorneys have sufficient resources to litigate a 4 class action suit.37 Id. at 7. Moreover, Defendant argues that

5 Plaintiffs' motion for appointment of class counsel is 6 premature and should not be determined until after a 7 determination concerning class certification has been made by

8 this Court. Id. at 2.

9

Since it has been determined that the proposed class in

10 this matter may be certified on the working conditions claim,

11 the Court does not find that an appointment of class counsel 12 is premature. See Rule 23(c)(1)(B) (providing that an order 13 certifying a class action must appoint class counsel under

14 Rule 23(g)). The law firm of Davis, Cowell & Bowe and The 15 Impact Fund each have committed significant time and effort to 16 investigating potential claims in this action. Davis, Cowell &

17 Bowe has interviewed numerous Food City workers, reviewed 18 corporate and public records, and, since the first complaint 19 was filed, have taken and defended over thirty depositions,

20 reviewed numerous documents, and litigated many motions. Decl. 21 Lawrence (doc. 154) at ¶¶ 11 & 14. Since March 2004, The 22 Impact Fund has communicated with class members and assisted

23 Davis, Cowell & Bowe with this litigation. Id. at ¶ 11. Each 24 have also shown sufficient experience with employment claims 25 and class action litigation, indicating that they both hold

26
27 37 Defendant, citing The Impact Fund's website, asserts that the
28 organization consists of only two attorneys. Resp. (doc. 189) at 7.

- 50 -

1 significant knowledge about the law applicable to the claims 2 at hand.38 Although The Impact Fund may house only a couple of 3 attorneys, the Court is satisfied that that organization, 4 working together with the law firm of Davis, Cowell & Bowe,

5 will have sufficient resources and manpower to manage the 6 class action lawsuit. Furthermore, despite Defendant's 7 allegation that Plaintiffs' counsel will drop this case at the

8 requests of the UFCW, the class action, once certified, cannot 9 be dismissed or settled without the approval of the Court. 10 Fed. R. Civ. P. 23(e). Therefore, the Court concludes that the

11 law firm of Davis, Cowell & Bowe and The Impact Fund satisfy 12 the criteria of Rule 23(g) and may be appointed class counsel 13 to the class certified in this order.

14

Therefore,

15

IT IS ORDERED that Defendant's Motion to Strike Evidence

16 From Plaintiffs' Motion to Certify Class (doc. 191) is DENIED.

17

IT IS FURTHER ORDERED that Defendant's Motion to Withdraw

18 Exhibit (doc. 208) is DENIED as moot.

19

IT IS FURTHER ORDERED that Plaintiffs' Motion to Strike

20 Evidence (doc. 205) is GRANTED IN PART and DENIED IN PART in 21 accordance with this order. Defendant's Exhibits 1W, 10, 33, 22 35, 36 and 46 are stricken.

23

IT IS FURTHER ORDERED that Plaintiffs' Motion to Strike

24

25

38 Davis, Cowell & Bowe has handled numerous individual employment

26 discrimination claims as well as a number of class actions. Decl. Lawrence (doc. 154) at ¶ 5. Impact Fund attorney Jocelyn Larkin has

27 practiced employment discrimination law since 1987 and has served as

class counsel in approximately 18-20 employment class actions. Decl.

28 Larkin (doc. 153) at ¶ 4.

- 51 -

1 Deposition Testimony of Paul Joe Pedraza, Exhibit 38 (doc.

2 197) is DENIED.

3

IT IS FURTHER ORDERED that Plaintiffs' Motion for

4 Permission to Use Previously-Disclosed Expert Analysis as

5 Rebuttal Opinion (doc. 147) is GRANTED.

6

IT IS FURTHER ORDERED that Defendant's Cross Motion to

7 Depose Expert as to New Theory and Offer Expert Report in

8 Opposition (doc. 179) is DENIED.

9

IT IS FURTHER ORDERED that Plaintiffs' Motion for Class

10 Certification (doc. 159) is GRANTED in part and DENIED in

11 part. The Court certifies a class as follows:

12

All Hispanic workers employed by defendant in

an hourly position at any Food City retail

13

store since April 4, 1998, who have been or

may be subject to the challenged disparate

14

working conditions.

15 Plaintiffs' motion is denied, without prejudice, as to the

16 issues of the challenged pay policies and practices.

17

IT IS FURTHER ORDERED that Plaintiffs' Motion for

18 Appointment as Class Counsel (doc. 152) is GRANTED.

19

DATED this 29th day of August, 2005.

20

21

22

23

24

25 Copies to counsel of record

26

27

28

- 52 -

 
 Case 2:02-cv-00591-RCB Document 234 Filed 03/30/06 Page 1 of 8

1 WO

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE DISTRICT OF ARIZONA

9

10

11

12 José Parra, et al.,

)

)

13

Plaintiffs, ) No. CIV 02-0591-PHX-RCB

)

14

vs.

)

O R D E R

)

15 Bashas', Inc.,

)

)

16

Defendant.

)

)

17

18 I. Introduction

19

The original complaint in this action was filed by Plaintiffs

20 José Parra and Gonzalo Estrada on April 4, 2002. Complt. (doc. 1).

21 The Court granted Plaintiffs' motion to amend their complaint, and

22 Plaintiffs filed their First Amended Complaint (doc. 116) on March

23 11, 2004, adding Aurelia Martinez as a named plaintiff. In their

24 pleadings, Plaintiffs alleged that Defendant Bashas', Inc.

25 ("Bashas'") committed civil rights violations under 42 U.S.C. §

26 1981 for intentional discrimination and under Title VII of the

27 Civil Rights Act of 1964, 42 U.S.C. §2000(e) et seq, for both

28 disparate impact and disparate treatment. In September 2004,

Case 2:02-cv-00591-RCB Document 234 Filed 03/30/06 Page 2 of 8

1 Plaintiffs filed their motion for appointment of class counsel

2 (doc. 152) and, under seal, filed their motion for class

3 certification in this matter (doc. 159). These motions were fully

4 briefed on November 23, 2004, and the issue of class certification

5 was argued orally on January 24, 2005.

6

On August 31, 2005, the Court issued an order ruling on these

7 motions. Order (doc. 224). In its order, the Court granted in

8 part and denied in part Plaintiffs' motion for class certification.

9 Id. at 52. Specifically, the Court certified a class defined as

10 follows:

11

All Hispanic workers employed by defendant in an

hourly position at any Food City retail store

12

since April 4, 1998, who have been or may be

subject to the challenged disparate working

13

conditions.

14 Id. However, the Court denied Plaintiffs' motion, without

15 prejudice, as to the issues of the challenged pay policies and

16 practices. Id. The Court ruled in such a manner because it

17 concluded that Plaintiffs failed to satisfy the "commonality"

18 requirement of Rule 23(a)(2)1 in relation to these issues. Id. at

19 39.

20

Plaintiffs present evidence that Defendant's

policies governing compensation are similar across

21

all stores due to the fact that all of Defendant's

stores use company-established pay schedules to

22

23

1 Rule 23(a) of the Federal Rules of Civil Procedure lists the

24 prerequisites to a class action as:

25

(1) the class is so nu merous that joinder of all

members is impractical, (2) there are questions of

26

law or fact common to the class, (3) the claims or

defenses of the representative parties are typical

27

of the claims or defenses of the class, and (4) the

representative parties will fairly and adequately

28

protect the interests of the class.

- 2 -

Case 2:02-cv-00591-RCB Document 234 Filed 03/30/06 Page 3 of 8

1

determine rates of pay. Mot. (doc. 159) at 4.

Defendant concedes that such pay schedules are

2

used, and that past pay schedules established for

Food City stores contained lower pay ranges than

3

those utilized at Bashas' and A.J.'s stores. Resp.

(doc. 190) at 11; Exbt. 7 (doc. 190) at ¶10.

4

However, both parties concede that over the past

several years the contested pay scales have merged

5

and, for the most part, are now identical. Mot.

(doc. 159) at 7; Resp. (doc. 190) at 14-15.

6

Consequently, some class members may now receive

pay that is equal to that of their counterparts in

7

Defendant's other stores, while other class

members may not. Thus, although Defendant's system

8

for compensating hourly employees is similar

across all stores, the Court is not satisfied that

9

the manner in which the system affects the class

raises issues that are common to all class

10

members.

11 Id.

12

In response to the Court's order, Plaintiffs filed a motion

13 entitled "Plaintiffs' Supplemental Motion to Redefine and Limit

14 Requested Class and to Reconsider August 31, 2005 Order." Mot. to

15 Reconsider (doc. 225).2 Believing that the characterization of

16 this motion as both a "supplemental motion" and a "motion to

17 reconsider" would cause confusion as to whether Defendant could

18 respond, the Court issued an order permitting such a response.

19 Order (doc. 229). Accordingly, Defendant filed its response on

20 October 5, 2005. Resp. (doc. 230). Thereafter, Plaintiffs filed a

21 motion requesting leave to file a reply in this matter, and

22 attached the proposed reply to the motion. Motion for Leave to

23 File (doc. 233).3

24

25

2 In its motion for reconsideration, Plaintiffs requested oral argument on this matter. Mot. to Reconsider (doc. 225). Finding

26 oral argument unnecessary, the Court shall deny this request.

27

3 Defendant did not file an objection to Plaintiffs' motion for

leave to file a reply. Therefore, the Court shall grant Plaintiffs'

28 motion for leave to file their reply and has considered the reply in

- 3 -

Case 2:02-cv-00591-RCB Document 234 Filed 03/30/06 Page 4 of 8

1

This Court, having carefully considered the arguments

2 presented by the parties, now rules on these matters.

3 II. Motion to Reconsider

4

The decision to grant or deny a motion for reconsideration is

5 left to the sound discretion of the trial court. See School Dist.

6 No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th

7 Cir. 1993). Such motions are disfavored and are only appropriate

8 if a court "(1) is presented with newly discovered evidence; (2)

9 committed clear error or the initial decision was manifestly

10 unjust; or (3) if there is an intervening change in controlling

11 law." Id. A motion for reconsideration is not the place to make new

12 arguments not raised in the original briefs. All Hawaii Tours v.

13 Polynesian Cultural Ctr., 116 F.R.D. 645, 650 (D. Haw. 1987), rev’d

14 on other grounds, 855 F.2d 860 (9th Cir. 1988). Nor is it the time

15 to ask the court to rethink what it has already thought. Above the

16 Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.

17 Va. 1983).

18

Here, Plaintiffs do not raise any newly discovered evidence in

19 their motion. In their request for reconsideration, Plaintiffs ask

20 the Court to "certify a more limited class, covering only those

21 employees who were actually paid a rate on the disputed pay scales,

22 which was lower than that for comparable Bashas'/A.J.'s Fine Foods

23 workers[.]" Mot. to Reconsider (doc. 225) at 2. Specifically,

24 Plaintiffs ask that the Court certify a class defined as:

25

All Hispanic workers employed by defendant in an

26

hourly position at any Food City retail store since April 4, 1998, who were subject to

27

28 reaching its decision in this order.

- 4 -

Case 2:02-cv-00591-RCB Document 234 Filed 03/30/06 Page 5 of 8

1

defendant's policy of using lower pay schedules

for Food City workers than for workers in

2

comparable positions in Bashas' and A.J.'s Fine

Food stores. The class excludes any Hispanic Food

3

City employee who was, at all times during his or

her employment, paid a rate that was the same as

4

the rate for the equivalent position in Bashas'

and A.J.'s Fine Food stores.

5

6 Id. Plaintiffs do not raise any new evidence in relation to this

7 proposed change but merely argue that it is a clarification that

8 will resolve the Court's prior concerns about the proposed class

9 meeting the Rule 23(a)(2) requirement of "commonality." Reply

10 (doc. 233) at 1. However, in support of this change, Plaintiffs

11 put forth the same assertions that they posed in their initial

12 motion for class certification. Mot. for Reconsideration (doc.

13 225) at 4-16. A motion for reconsideration that merely repeats

14 arguments previously raised is appropriately denied. Taylor v.

15 Knapp, 871 F.2d 803, 805 (9th Cir. 1988).

16

Second, this Court did not commit clear error when it refused

17 to grant Plaintiffs' motion for class certification on the issues

18 of the challenged pay policies and practices. To prove that the

19 Court committed clear error, the movant must demonstrate that the

20 Court’s action falls clearly outside the bounds of its authority.

21 McDowell v. Calderdon, 197 F.3d 1253, 1256 (9th Cir. 1999). If the

22 propriety of the Court’s judgment is a debatable question, there is

23 no clear error and the motion to reconsider is properly denied.

24 Id. Here, Plaintiffs have made no arguments demonstrating that the

25 Court’s order falls outside the bounds of its authority.

26

Finally, Plaintiffs have not indicated that there has been an

27 intervening change in controlling law. Therefore, the third basis

28 for a motion for reconsideration is not met. Consequently,

- 5 -

Case 2:02-cv-00591-RCB Document 234 Filed 03/30/06 Page 6 of 8

1 Plaintiffs' motion for reconsideration shall be denied.

2 III. Motion to Redefine

3

Plaintiffs also base their motion on Rule 23(c)(1)(C) of the

4 Federal Rules of Civil Procedure. Rule 23(c)(1)(C) provides that

5 "[a]n order under Rule 23(c)(1) may be altered or amended before

6 final judgment." This rule "provides district courts with broad

7 discretion to determine whether a class should be certified, and to

8 revisit that certification throughout the legal proceedings before

9 the court." Armstrong v. Davis, 275 F.3d 849, 871 n.28 (9th Cir.

10 2001).

11

Pursuant to this discretion, Plaintiffs ask the Court to

12 certify the more limited class, covering only those employees who

13 were actually paid a rate on the disputed pay scales. Mot. to

14 Reconsider (doc. 225) at 2.

15

As plaintiffs understand the [Court's prior]

ruling, the Court concluded that the class, as

16

proposed, was too broad in that it encompassed

Hispanic employees who had been subject to lower

17

pay scales as well as some who, in later years,

were paid at the same rate as their counterparts

18

at Bashas' and A.J.'s Fine Foods when rates for

particular jobs were equalized...This narrower

19

class definition is expressly tailored to address

the concerns raised by this Court and satisfies

20

the requirements of Rule 23(a) and 23(b).

21 Id. at 1. Plaintiffs assert that the fact that Defendant

22 eventually merged the contested pay scales "does not deprive

23 victims of their right to seek redress for earlier violations nor

24 moot the issues." Id., citing Gonzales v. Police Dept., City of

25 San Jose, Cal., 901 F.2d 758, 762 (9th Cir. 1990) ("That minority

26 employees were 'promoted just before trial...does not constitute a

27 defense to plaintiffs' charges, nor does it moot the issues...'").

28 Plaintiffs argue that evidence demonstrates that substantial

- 6 -

Case 2:02-cv-00591-RCB Document 234 Filed 03/30/06 Page 7 of 8

1 differences remained in the 2001 pay scale, indicating that 2,200

2 Hispanic Food City employees held jobs paid based upon the lower

3 pay scale. Id. at 5. In addition, Plaintiffs note that, while a

4 number of pay steps were equalized in 2002 and 2003, more than 700

5 Hispanic workers were still paid based upon lower rates than their

6 Bashas' counterparts in 2003.4 Id.

7

In contrast, Defendant asserts that these same arguments were

8 previously raised by Plaintiffs in their original motion for class

9 certification. Resp. (doc. 230) 11-13.

10

The evidence in this case has not changed since

the Court's August 31, 2005 Order. The factual

11

information offered by Plaintiffs is not new, it

is simply repackaged.

12

13 Id. at 13. Moreover, Defendant argues that Plaintiffs'

14 "redefinition" of the class is no different from the original

15 definition proposed. Id. at 8. Defendant notes that, although the

16 newly proposed definition explicitly limits itself to those that

17 have suffered a loss, parties who have not suffered an economic

18 loss would not have been entitled to relief under the original

19 definition either. Id. at 8-9. Thus, Defendant maintains that

20 Plaintiffs' motion is merely an effort to rehash law and facts that

21 have already been considered by the Court, and asserts that the

22 motion should be denied. Id. at 14. The Court agrees.

23

The Court sees no real difference between Plaintiffs' newly

24 proposed class definition and that proposed in Plaintiffs' original

25

26 4 Plaintiffs note that because discovery was cut off in April
27 2004, they do not have the pay scales for 2004 and 2005 and are thus unable to determine whether the pay scales are now identical. Mot. to
28 Reconsider (doc. 225) at 5 n.5.

- 7 -

Case 2:02-cv-00591-RCB Document 234 Filed 03/30/06 Page 8 of 8

1 motion for class certification. Consequently, the motion currently

2 before the Court is a motion to reconsider matters that the Court

3 has already reviewed and ruled upon. For the reasons explained

4 above, such a motion must be denied.

5

Therefore,

6

IT IS ORDERED that Plaintiffs' motion for leave to file reply

7 brief (doc. 233) is GRANTED.

8

IT IS FURTHER ORDERED that Plaintiffs' Supplemental Motion to

9 Redefine and Limit Requested Class and to Reconsider August 31,

10 2005 Order (doc. 225) is DENIED.

11

DATED this 29th day of March, 2006.

12

13

14

15

16

17 Copies to counsel of record

18

19

20

21

22

23

24

25

26

27

28

- 8 -

 
 Case 2:02-cv-00591-RCB Document 267-2 Filed 09/26/08 Page 1 of 9

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSÉ PARRA; GONZALO ESTRADA,



and AURELIA MARTINEZ,

 Plaintiffs-Appellants, v.

No. 06-16038
D.C. No. CV-02-00591-RCB

BASHAS’, INC.,
 Defendant-Appellee.

OPINION

Appeal from the United States District Court for the District of Arizona
Robert C. Broomfield, District Judge, Presiding
Argued and Submitted April 17, 2008—San Francisco, California
Filed July 29, 2008
Before: Procter Hug, Jr., Mary M. Schroeder, and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Hug

9633

Case 2:02-cv-00591-RCB Document 267-2 Filed 09/26/08 Page 2 of 9

9636

PARRA v. B ASHAS’, INC.

COUNSEL
Jocelyn D. Larkin, The Impact Fund, Berkeley, California, and Elizabeth A. Lawrence, Davis, Cowell & Bowe, LLP, San Francisco, California, for the appellants.
Stephanie J. Quincy, Sherman & Howard L.L.C., Phoenix, Arizona, for the appellee.

OPINION
HUG, Circuit Judge:
Plaintiffs, current and former Hispanic employees of Bashas’, Inc., filed this class action alleging that they had been discriminated against based upon their national origin in violation of Title VII of the 1964 Civil Rights Act as amended (“Title VII”), 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Plaintiffs allege that defendant discriminated against them in pay and working conditions based on their national origin. The district court certified the proposed class as to the working conditions claim, but denied certification of the proposed class regarding the pay discrimination claim based upon a finding of lack of commonality within the class. Plaintiffs filed a motion for the district court to reconsider its motion and, in the alternative, they offered to redefine the pay discrimination class. Those motions were denied. The Plaintiffs appeal the court’s decision to deny certification of the class alleging pay discrimination. We have jurisdiction over this appeal under 28 U.S.C. § 1292 because we granted Plaintiffs’ request to file this appeal pursuant to Fed. R. Civ. P. 23(f). We reverse the district court concluding that it abused

Case 2:02-cv-00591-RCB Document 267-2 Filed 09/26/08 Page 3 of 9

PARRA v. B ASHAS’, INC.

9637

its discretion in failing to find commonality in the Plaintiffs’ original class definition for the discriminatory pay claim.

I.

Bashas’, Inc. owns and operates 150 grocery stores under three trade names: Bashas’, A.J.’s Fine Foods ( “A.J.’s”) and Food City. Bashas’, Inc. acquired A.J.’s and Food City stores through a series of acquisitions and brought them under the umbrella of Bashas’, Inc. while retaining the three trade names. Although Bashas’, Inc. owns all of these stores, the demographics of the patrons and employees at the three trade name stores vary significantly. In particular, the employees of the 58 Food City stores are predominantly Hispanic, while Bashas’ and A.J.’s have a much smaller number of Hispanic employees. During the time period relevant to this appeal, Hispanic workers at Bashas’ and A.J.’s comprised around 15% of the workforce. At Food City, however, Hispanic employees routinely constituted approximately 75% of the workforce.

Although the stores operate under different trade names and serve different clientele, the job requirements for the employees at the stores are practically indistinguishable. Regardless of these similarities, the wages for similar jobs at the three brand named stores differed until around 2003 when the pay scales were equalized through a phased pay-merger program. The plaintiffs produced evidence that according to these pay scales, the hourly pay disparities for comparable jobs at the three brand named stores ranged from $0.15 per hour to $2.94 per hour. These hourly disparities translate to annual salary differences of around $300 per year to almost $6,000 per year. These pay disparities resulted in the predominantly Hispanic Food City employees receiving less pay than their counterparts in the Bashas’ or A.J.’s stores.

Plaintiffs brought this case to address their concerns about the disparate pay and working conditions among the three

Case 2:02-cv-00591-RCB Document 267-2 Filed 09/26/08 Page 4 of 9

9638

PARRA v. B ASHAS’, INC.

brand named stores. After initially filing the complaint, the Plaintiffs sought to certify a class of employees consisting of:

All Hispanic workers employed by defendant in an hourly position at any Food City retail store since April 4, 1998, who have been or may be subject to the challenged pay policies and practices and disparate working conditions.

In its initial class certification order, the district court certified the class as to the disparate working conditions claim. However, the district court found that the Plaintiffs could not establish the commonality requirement for the disparate pay claim and denied their request for class certification of this claim.

The Plaintiffs then filed a motion asking for reconsideration and, alternatively, to redefine the class. However, the district court denied both the motion for reconsideration and the motion to redefine the class because the court saw “no real difference” between the newly proposed class and the original class. The proposed newly defined class was:

All Hispanic workers employed by defendant in an hourly position at any Food City retail store since April 4, 1998, who were subject to defendant’s policy of using lower pay schedules for Food City workers than for workers in comparable position in Bashas’ and A.J.’s Find Food stores. The class excludes any Hispanic Food City employee who was, at all times during his or her employment, paid a rate that was the same as the rate for the equivalent position in Bashas’ and A.J.’s Find Food stores.

We granted Plaintiffs’ request to file this appeal pursuant to Fed. R. Civ. P. 23(f) to review the district court’s decision.

Case 2:02-cv-00591-RCB Document 267-2 Filed 09/26/08 Page 5 of 9

PARRA v. B ASHAS’, INC. II.

9639

We review a district court’s order on class certification for an abuse of discretion. Molski v. Gleich , 318 F.3d 937, 946 (9th Cir. 2003). We limit our review to whether the district court correctly selected and applied Rule 23’s criteria. An abuse of discretion occurs when the district court, “in making a discretionary ruling, relies upon an improper factor, omits consideration of a factor entitled to substantial weight, or mulls the correct mix of factors but makes a clear error of judgment in assaying them. ” Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 295 (1st Cir. 2000).

III.

[1] The requirements for establishing a class action are set forth in Fed. R. Civ. P. 23, which provides:

(a) prerequisites. One or more members of the class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or facts common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class1.

In this case, we review only the district court’s order finding that the Plaintiffs failed to establish commonality among the proposed class members for their pay discrimination claim2.

1Rule 23(b) provides three additional requirements for bringing a class action, one of which must be met in order to bring the action. We do not discuss the other requirements of Rule 23(b) because the district court ruled that the class certification was based on failure to meet the commonality requirements of Rule 23(a)(2).
2We review only the commonality finding because the district court stopped analyzing the Plaintiffs’ class certification request for the discriminatory pay after finding commonality lacking.

Case 2:02-cv-00591-RCB Document 267-2 Filed 09/26/08 Page 6 of 9

9640

PARRA v. B ASHAS’, INC.

To establish commonality, “[t]he existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies.” Hanlon v. Chrysler Corp. , 150 F.3d 1011, 1019 (9th Cir. 1998); Staton v. Boeing Co. , 327 F.3d 938, 953 (9th Cir. 2003).

[2] In Staton v. Boeing Co. , we upheld a district court’s finding of commonality for a very broad class. 327 F.3d 938 at 956. The Staton class consisted of over 15,000 AfricanAmerican salaried and hourly employees who alleged company-wide discriminatory practices. Id. at 953. Although the class consisted of salaried and hourly employees in different positions as well as employees from companies Boeing recently acquired, we upheld the district court’s finding that commonality existed because the class suffered under “company-wide discriminatory practices. ” Id. We reiterated our holding in Hanlon that “[t]he existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class. ” Id. (quoting Hanlon, 150 F.3d at 1019). The class in Staton illustrates that a proposed class can consist of members with widely differing experiences as they relate to the case but seek a common remedy for a common policy of discrimination.

Our decision in Hanlon also highlights the nature of the requirements to find commonality. 150 F.3d at 1019-20. We noted that Rule 23(a)(2) has been construed permissively and not all questions of fact and law need to be common to satisfy this rule. Id. at 1019. We again described how commonality can be met even though members of a class have different methods of compensation. Id. at 1020. In Hanlon, as well as in Staton, we illustrated the flexible standard for commonality. Where the circumstances of each particular class member

Case 2:02-cv-00591-RCB Document 267-2 Filed 09/26/08 Page 7 of 9

PARRA v. B ASHAS’, INC.

9641

vary but retain a common core of factual or legal issues with the rest of the class, commonality exists. 3

[3] Here, the district court found past pay disparities for similar jobs at Bashas’, Inc.’s three brand named stores. In its original order, the district court thoroughly analyzed the evidence proffered by both parties and noted three significant conclusions conceded by Bashas’, Inc.:

(1) Food City Stores have a higher percentage of Hispanic employees compared to Bashas’ or A.J.’s stores, (2) the pay scales at Bashas’ and A.J.’s stores were higher than those at Food City during the period 1998-2000, and (3) Hispanic employee hourly rates were lower in similar jobs.

However, the district court then found these concessions and Plaintiffs’ other evidence were insufficient to establish commonality among all class members because Bashas’, Inc. has now merged its pay scales. Finding the pay disparities no longer existed at the time the order was written, the district court only looked at the current pay scales. In doing so, the district court failed to consider the evidence of past pay disparities and discrimination common to the Hispanic workers at Food City.

[4] The district court here abused its discretion by basing its decision that the proposed class lacked commonality on the fact that the pay scales were equalized at the time of its order. Regardless of whether the pay scales are now equalized, Plaintiffs allege past pay discrimination occurred. The Plaintiffs claim damages from the effects of past discriminatory

3Although this circuit has, up to now, never reversed a district court finding that commonality was lacking in an employment suit, other circuits have. See, e.g., Forbush v. J.C. Penny Co., 994 F.2d 1101, 1106 (5th Cir. 1993); Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1557 (11th Cir. 1986); Paxton v. Union Nat’l Bank , 688 F.2d 552, 561 (8th Cir. 1982).

Case 2:02-cv-00591-RCB Document 267-2 Filed 09/26/08 Page 8 of 9

9642

PARRA v. B ASHAS’, INC.

pay scales, and if they prevail on their claims, they are entitled to damages.

[5] Similar to the certified classes in our cases previously described, the Plaintiffs here establish commonality even though their individual factual situations differ because they all seek a common legal remedy for a common wrong. Plaintiffs here not only presented evidence of discriminatory pay scales, but also provided statistical and anecdotal evidence of discrimination by Bashas’, Inc. These pay scales were common for all Bashas’, Inc. employees and provided for different pay for similar jobs based only on the store where the employee worked. The proposed class here shares the alleged discriminatory pay scales of Bashas’, Inc. The class definition seeks to reach those Hispanic employees who suffered past discrimination under these pay scales.

[6] Finally, at oral argument, Bashas’, Inc. argued that the difficulty in redressing the harm and calculating the various pay disparities for the different employment positions precludes class certification. We disagree. We have previously held that classes with far more complex remedies can seek redress in the form of a class action. See, e.g., Staton, 327 F.3d at 953-57. The claimed difficulties in the calculations of damages, as they affected the various class members, do not preclude class certification.

IV.

In this case, the Plaintiffs presented the district court with extensive evidence showing Bashas’, Inc.’s discriminatory pay practices commonly affected all members of the proposed class. We conclude the district court abused its discretion in failing to find commonality existed in the original class definition. Accordingly, we REVERSE the district court’s finding that Plaintiffs’ originally proposed class lacked commonality under Rule 23(a)(2) and REMAND for consideration of the

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PARRA v. B ASHAS’, INC.

9643

remaining class certification factors in accordance with this opinion.

 
 1 WO

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE DISTRICT OF ARIZONA

9

10

11

12 Jose Parra, Gonzalo Estrada )

and Aurelia Martinez

)

13

)

Plaintiffs, ) No. CV 02-0591 PHX RCB

14

)

) Related Case: CV 09-0209 PHX JAT

15

vs.

)

O R D E R

)

16 Bashas’ Inc.,

)

)

17

Defendant.

)

)

18

19

For seven years the court has presided over this action

20 alleging national origin discrimination in violation of Title VII

21 of the 1964 Civil Rights Act as amended (“Title VII”), 42 U.S.C.

22 § 2000e, et seq., and intentional race discrimination in violation

23 of 42 U.S.C. § 1981. On February 2, 2009, this court conducted a

24 status conference, more fully discussed below. That same day, the

25 Equal Employment Opportunity Commission (“EEOC”) filed an

26 application for an order to show cause why an administrative

27 subpoena should not be issued against respondent, Bashas’ Inc., in

28 EEOC v. Bashas’, Inc., 2:09-CV-00209-JAT. That enforcement action

1 was randomly assigned to the Honorable James A. Teilborg, United

2 States District Court Judge. Currently pending before the court is

3 a motion by Bashas’ to transfer that enforcement action to this

4 court pursuant to LRCiv 42.1(a) (doc. 281). For the reasons set

5 forth herein, in the exercise of its discretion, the court GRANTS

6 this motion to transfer.

7

Background

8 I. Parra v. Bashas’

9

Assuming familiarity with this action, only those facts

10 bearing directly on the enforcement action will be set forth

11 herein. On September 26, 2001, Jose Parra filed a Charge of

12 Discrimination with the EEOC. Mot. (doc. 281), exh. A thereto

13 (doc. 281-3) at 2. In that Charge, Mr. Parra stated his belief

14 that he had “been discriminated against because of [his] race,

15 Hispanic, and [his] national origin, Mexican-American[,] with

16 respect to pay, assignment and working conditions.” Id. After

17 several other employees filed similar charges, the EEOC issued

18 right-to-sue letters. Id. at 2:19-21. Messrs. Parra and Estrada

19 then filed this putative class action on April 4, 2002.

20 Thereafter, the EEOC closed all charges. Id. at 2:22.

21

Discovery ensued during which Bashas’ produced wage charts for

22 its various stores for the years 1994 - 2003, inclusive. Id. at

23 2:24-25. In April 2004, Bashas’ produced what plaintiffs describe

24 as “massive spreadsheets” comprehensively setting forth a variety

25 of factors primarily related to wages. Id. at 2:25. Thereafter,

26 in September 2004, plaintiffs moved for class certification. The

27 court granted class certification as to the disparate working

28 conditions claim, but it denied certification as to the pay claim

- 2 -

1 because it found a lack of commonality under Fed. R. Civ. P.

2 23(a)(2). Parra v. Bashas’, Inc., 2005 WL 6182238 (D.Ariz. Aug.

3 29, 2005). Following plaintiffs’ appeal, the Ninth Circuit

4 reversed this court’s “finding that Plaintiffs’ originally proposed

5 class lacked commonality” as to the pay claim and “remand[]ed for

6 consideration of the remaining class certification factors in

7 accordance with th[at] opinion.” Parra v. Bashas’, Inc., 536 F.3d

8 975, 980 (9th Cir. 2008) (emphasis omitted).

9

In late November 2008, plaintiffs “request[ed] that this Court

10 set the matter for a status conference in order to reopen discovery

11 and set a briefing schedule for plaintiffs’ motion for class

12 certification of their Equal Pay Claim.” Mot. (doc. 269) at 2:1-3.

13 Plaintiffs offered the following rationale: “since discovery ha[d]

14 been closed since April 2004, [they] need[ed] to obtain updated

15 discovery concerning the status of defendants’ pay policy and its

16 impact on the putative class.” Id. at 2:11-13. Following the

17 Supreme Court’s denial of a petition for certiorari, on February 2,

18 2009, this court conducted a status conference. During that

19 conference, plaintiffs reiterated their “need to update the

20 discovery . . . to resubmit the pay claim . . . for class

21 certification.” Tr. (doc. 279) at 3:2-4. Finding that “the time

22 for the discovery sought by Plaintiffs has long since expired[,]”

23 the court denied their request “to reopen discovery for that

24 limited purpose.” Id. at 14:18-20.

25 II. EEOC Enforcement Action

26

Despite closing its files after issuing the right-to-sue

27 letters to the Parra plaintiffs, the EEOC continued with its own

28 investigation. Shortly after this court denied plaintiff’s motion

- 3 -

1 for reconsideration on the class certification issue, on May 11,

2 2006, the EEOC served a subpoena upon Bashas’. See id., exh. B

3 thereto (doc. 281-3). The EEOC sought, among other things, “all

4 pay scales in effect for any hourly positions” at Bashas’, A.J.’s

5 and Food City, “from 1998 to present.” Id., exh. B thereto (doc.

6 281-3) at 6, ¶¶ 1-3. The EEOC further sought “all documents or

7 materials reflecting the racial and national origin composition of

8 hourly employees at” those “stores in . . . Arizona for ll years

9 starting in 1998 to the present[.]” Id., exh. B thereto (doc. 281-

10 3) at 6, ¶ 7. Additionally, the EEOC sought the personnel files

11 for two of the named plaintiffs in the Parra action, among others.

12 Id., exh. B thereto (doc. 281-3) at 6, ¶ 6.

13

Evidently “Bashas’ objected to th[at] subpoena on various

14 grounds, including that those individual charges had been closed

15 for more than four years, that the allegations in those charges

16 were now the subject of the Parra litigation, and the EEOC had an

17 opportunity to intervene and elected not to do so.” Mot. (doc.

18 281) at 4:2-5. On September 12, 2006, the EEOC advised Bashas’

19 that it was “re-open[ing]” the charges as to the eight individuals

20 who had filed EEOC charges against Bashas’ in 2002, including

21 plaintiffs Parra and Estrada. Id., exh. C thereto (doc. 281-3) at

22 8. The EEOC further advised Bashas’ that once the EEOC “completed

23 [its] investigations, a determination w[ould] be issued and

24 [Bashas’] w[ould] be . . . notified.” Id.

25

In response, Bashas’ took the position that the EEOC “had no

26 authority to ‘re-open’ th[ose] charges because the right-to-sue

27 letters were issued four years earlier and the EEOC was on notice

28 of the Parra litigation and had ample time to intervene[.]” Id. at

- 4 -

1 4:7-9. According to Bashas’, “[t]he EEOC never replied, and never

2 moved to enforce that subpoena.” Id. at 4:10.

3

On May 9, 2007, pursuant to its statutory and regulatory

4 authority, the EEOC filed a “Commissioner’s Charge” against

5 Bashas’. Resp. (doc. 283), exh. 1 thereto (doc. 283-2) at 2. In

6 that Charge, the EEOC states its “belie[f] that [Bashas’] has,

7 since at least May 2004, violated Title VII by discriminating

8 against Hispanics due to their national origin.” Id. Asserted

9 discriminatory activities “include[] . . . failing to pay Hispanic

10 employees comparable wages to non-Hispanic employees and failing to

11 promote Hispanics []to Management positions.” Id. The

12 Commissioner filed that Charge on behalf of “all persons who have

13 been adversely affected by the . . . unlawful practices[]” just

14 described. Id. The EEOC provided Bashas’ with a “Notice” of that

15 Charge, and in July 2007, served Bashas’ with two subpoenas. See

16 id., exh. 2 thereto (doc. 283-2) at 4); and Resp. (doc. 283) at

17 2:28 - 3:1 (footnote omitted).

18

According to Bashas’, the EEOC “refused” to provide it “with

19 even the most basic information” so that it “could defend itself”

20 against the Commissioner’s Charge. Mot. (doc. 281) at 4:19-20.

21 Nonetheless, Bashas’ did provide some information in response to

22 those two subpoenas. After reviewing the information Bashas’

23 provided, the EEOC deemed it “inadequate[.]” Id., exh. E (doc. 281-

24 3) thereto at 12; and exh. F (doc. 281-3) thereto at 15. On

25 December 6, 2007, the EEOC then “impose[d] additional requirements”

26 on Bashas’ for document productions. Id., exh. E thereto (doc.

27 281-3) at 12. After reviewing Bashas’ “description of [its]

28 automated records[,] . . . [t]o address [Bashas’] concerns

- 5 -

1 regarding over broad data requests[,]” the EEOC “ attempted to

2 restrict the data requested as much as possible.” Id., exh. F

3 thereto (doc. 281-3) at 15.

4

In a March 14, 2008, letter response, Bashas’ variously

5 characterized the EEOC’s requests as “overly broad[;]” “unduly

6 burdensome[;]” and “ambiguous.” Id., exh. G thereto (doc. 281-3)

7 at 22. Reiterating that it did not know the basis of the

8 Commissioner’s Charge, Bashas’ indicated that it could not

9 determine which documents were relevant or responsive to EEOC’s

10 request. Id., exh. G thereto (doc. 281-3) at 21. Expressing

11 “grave concerns about where any information shared with the EEOC

12 [might] go[,]” Bashas’ stated it would “not produce any electronic

13 data or hard copy files until” execution of “an appropriate

14 confidentiality agreement[.]” Id., exh. G thereto (doc. 281-3) at

15 22. As it had previously, Bashas’ stated its “concern that [the

16 Commissioner’s] charge is being used as a vehicle to relitigate the

17 Parra case after an adverse ruling.” Id. Seeking “assurances

18 . . . that the EEOC w[ould] not be used as a tool to circumvent the

19 [Federal] Rules of Civil Procedure[,]” Bashas’ enclosed a proposed

20 confidentiality order to “address and resolve th[at] issue.” Id.

21

Apparently the EEOC would not enter into a confidentiality

22 agreement with Bashas’. On May 28, 2008, it issued the subpoena

23 which is the subject of the current enforcement action. See id.,

24 exh. H thereto at 25-29. A few weeks later, on June 13, 2008,

25 Bashas’ asserted its objections to that subpoena. Id. at 5:21-23;

26 see also Resp. (doc. 283) at 3:17-19. The EEOC took no further

27 action until February 2, 2009, when it filed an “Order to Show

28 Cause Why an Administrative Subpoena Should Not Be Enforced.”

- 6 -

1

Shortly thereafter, on February 25, 2009, Bashas’ filed the

2 present motion to transfer the enforcement action to this court

3 solely on the basis of LRCiv 42.1(a). Bashas’ reasons for transfer

4 are twofold. First, it claims that there is a “significant

5 overlap” between that enforcement action and the Parra action.

6 Mot. (doc. 281) at 6:3. Second, Bashas’ argues that there is a

7 “risk of conflicting rulings” if the enforcement action is allowed

8 to proceed before another court. Id. at 6:4-5.

9

Initially missing the mark, the EEOC’s first response is that

10 these two actions are “totally unrelated” and thus not appropriate

11 for “consolidation under Fed. R. Civ. P. 42.” Resp. (doc. 283) at

12 1:27 (emphasis added). Bashas’ is seeking a transfer, not

13 consolidation, however; and the basis for that transfer is a Local

14 Rule - 42.1(a) - not the Federal Rules of Civil Procedure. Thus,

15 the EEOC’s response is irrelevant insofar as it pertains to

16 consolidation.

17

Turning to LRCiv 42.1, the EEOC again argues that

18 “consolidation,” as opposed to transfer, is not proper under that

19 Rule. Presumably the EEOC would make those same arguments against

20 transfer under that Local Rule. Thus, the court will treat the

21 EEOC’s consolidation arguments as directed at transfer, rather than

22 at consolidation. The EEOC is taking the position that because a

23 different time frame is at issue in the enforcement action than in

24 Parra, “different events” are involved. Resp. (doc. 283) at 7:11-

25 12. The EEOC adds that the questions of law are not the same

26 because it is merely seeking to enforce an investigative subpoena.

27 It has not yet made a determination as to the existence of a Title

28 VII violation. Thus, from the EEOC’s standpoint, the enforcement

- 7 -

1 action and Parra “are unrelated.” Id. at 8:12.

2

The Parra plaintiffs are “tak[ing] no position” with respect

3 to this transfer motion. “Statement of Non-Opposition” (doc. 282),

4 at 2:1-2

5

Discussion

6

LRCiv 42.1(a)(1) provides in relevant part:

7

Whenever two or more cases are pending before

different Judges and any party believes that

8

such cases (A) arise from substantially the same

transaction or event; (B) involve substantially

9

the same parties or property; . . . (D) calls for

determination of substantially the same questions

10

of law; or (E) for any other reason would entail

substantial duplication of labor if heard by

11

different Judges, any party may file a motion to

transfer the case or cases involved to a single Judge.

12

13 LRCiv 42.1(a)(1) (emphasis added). Before examining those

14 standards vis-a-vis the enforcement action and Parra, it is worth

15 noting that “[d]istrict court judges have broad discretion

16 regarding the assignment or reassignment of cases.” Badea v. Cox,

17 931 F.2d 573, 575 (9th Cir. 1991) (internal quotation marks and

18 citations omitted). This “broad discretion” derives from the fact

19 that the Ninth Circuit “do[es] not review independently a district

20 court’s determination of the scope and application of local rules

21 . . . because [it] give[s] district courts broad discretion in

22 interpreting, applying, and determining the requirements of their

23 own local rules[.]” Id. (internal quotation marks and citation

24 omitted); see also Guam Sasaki Corp. V. Diana’s Inc., 881 F.2d 713,

25 715 (9th Cir. 1989) (emphasis added) (The Ninth Circuit “afford[s] a

26 high degree of deference to local rules and to district court

27 decisions which are designed to delineate local practice and define

28 the local rules.”) Based upon this broad discretion, in Badea the

- 8 -

1 Court remanded to the same district judge for further proceedings,

2 despite plaintiff’s assertion on appeal that the district court

3 “should have transferred [the] case to another judge who had heard

4 a factually similar case involving different parties.” Badea, 931

5 F.3d at 575. Indeed, so broad is that deference that even where a

6 case had “little in common with the prior case,” there was no abuse

7 of discretion in transferring that case to a judge “because it

8 allegedly presented issues similar to those in another case

9 previously heard by him.” See Jacobson v. Hughes Aircraft Co., 105

10 F.3d 1288, 1302 (9th Cir. 1997) (citation omitted). It is against

11 this backdrop which the court is viewing Bashas’ transfer motion.

12

As this court stated in Gagan v. Estate of Sharar, 2008 WL

13 2810978 (D.Ariz. July 18, 2008), “[b]y its terms, LRCiv 42.1(a)(1)

14 does not require that each of its subsections be shown before a

15 transfer is proper thereunder.” Id. at *2. As in Gagan, though,

16 several subsections of that Rule are met here.

17

There is little doubt that the enforcement action and Parra

18 “arise from substantially the same transaction or event[]” –

19 alleged discriminatory conduct by Bashas’. The fact, as the EEOC

20 stresses, that it is not yet “litigating any Title VII violation by

21 Bashas’[,]” does not alter the court’s conclusion in this regard.

22 Resp. (doc. 283) at 8:7. Moreover, as Bashas’ points out, both

23 actions raise issues concerning employee information which Bashas’

24 has steadfastly maintained is confidential. In fact, in Parra this

25 court has issued not one, but two, confidentiality orders; one of

26 those orders pertains directly to a database which the EEOC is

27 seeking through its enforcement subpoena. Therefore, the first

28 factor under LRCiv 42.1(a)(1) clearly weighs in favor of a transfer

- 9 -

1 here.

2

Both actions involve “substantially” the same parties as well.

3 Bashas’ is the defendant in Parra, and the respondent in the

4 enforcement action. Further, although not parties to the

5 enforcement action, some of the Parra plaintiffs are part of the

6 EEOC’s focus therein. That is evidenced by the fact that the EEOC

7 is seeking the personnel files of plaintiffs Jose A. Parra and

8 Gonzalo Estrada, among others. See Mot. (doc. 281), exh. B thereto

9 (doc. 281-3) at 6.

10

Likewise, the enforcement action and Parra call for a

11 “determination of substantially the same questions of law” in that

12 the EEOC’s allegations of discrimination are, as Bashas’ points

13 out, “strikingly similar” to those in Parra. See Reply (doc. 286)

14 at 2:10. Both pertain to Bashas’ alleged discrimination against

15 Hispanic employees with respect to pay. The fact that the

16 Commissioner’s Charge also includes a failure to promote allegation

17 does not undermine the essential similarity of these claims. In

18 any event, as this court has previously recognized, “exactness is

19 not the standard” under this Local Rule. See Gagan, 2008 WL

20 2810978, at *3. So the fact that the legal issues may vary

21 somewhat between Parra and the enforcement action is not a

22 sufficient basis upon which to deny a transfer here.

23

Moreover, just as in Gagan, “subsection (E), the broad, catch-

24 all provision of LRCiv 42.1(a)(1), provides ample justification for

25 transferring” the enforcement action to this court. See id. This

26 court has gained considerable familiarity with Parra, having

27 presided over it for roughly seven years. The court’s familiarity

28 is all the more significant because at least on the face of it, it

- 10 -

1 appears that in the enforcement action the EEOC is seeking much the

2 same information which has been, if not directly, at least

3 peripherally, the subject of two prior confidentiality orders in

4 Parra. Certainly the interests of judicial economy and the

5 avoidance of duplicative efforts would not be served if the

6 enforcement action were to remain before Judge Teilborg. See In re

7 Marshall, 291 B.R. 855, 859 (Bankr. C.D. Cal. 2003) (“The purpose

8 of assigning related cases to the same judge is to promote judicial

9 efficiency and to avoid the necessity of a new judge learning a

10 complex factual scenario from the beginning.”)

11

The assignment factors enumerated in LRCiv 42.1(a)(4), as

12 Bashas’ contends, also weigh heavily in favor of transferring the

13 enforcement action to this court. That Rule states in relevant

14 part:

15

In determining the Judge to whom the case

. . . will be assigned pursuant to subparagraph[]

16

(a)(1) . . . above, the following factors may

be considered: (A) whether substantive matters

17

have been considered in a case; (B) which Judge

has the most familiarity with the issues involved

18

in the case; (C) whether a case is reasonably viewed

as the lead or principal case; or (D) any other factor

19

serving the interest of judicial economy.

20 LRCiv 42.1(a)(4). Given that the enforcement action was fairly

21 recently commenced, Judge Teilborg has issued only scheduling

22 orders; he has yet to consider any substantive matters, although a

23 motion for leave to conduct limited discovery was just filed on

24 April 3, 2009.

25

Not only does the first factor which LRCiv 42.1(a)(4) lists

26 favor transfer, but so does the second. There can be no doubt, as

27 explained herein, that this court has “the most familiarity with

28 the issues involved[,]” especially taking into account its prior

- 11 -

1 consideration of confidentially issues which seemingly bear

2 directly upon the enforcement action. Given the manner in which

3 the enforcement action has unfolded, Parra could easily be deemed

4 the “lead or principal case” with respect to that other action.

5 For all of these reasons, the court finds that the “interest of

6 judicial economy” would best be served here by granting Bashas’

7 motion to transfer.

8

Accordingly,

9

IT IS ORDERED that “Defendants’ Motion to Transfer EEOC’s

10 Subpoena Enforcement Action” (doc. 281), i.e. EEOC v. Bashas’,

11 Inc., 2:09-cv-00209-JAT, is GRANTED;

12

IT IS FURTHER ORDERED that a copy of this order shall be

13 provided to United States District Court Judge James A. Teilborg.

14

DATED this 15th day of April, 2009.

15

16

17

18

19

20

21

22

23 Copies to counsel of record

24

25

26

27

28

- 12 -

 
 1 WO

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE DISTRICT OF ARIZONA

9

10

11

12 José Parra, Gonzalo Estrada, and Aurelia Martinez,
13 Plaintiffs,
14 vs.
15 Bashas’, Inc.
16 Defendant.
17

)

)

)

) No. CIV-02-0591-PHX-RCB

)

)

O R D E R

)

)

)

)

)

18

Introduction

19

More than a decade ago, current and former Hispanic1

20 employees of defendant Bashas’, Inc. filed this action

21 alleging race and national origin discrimination in violation

22 of Title VII of the 1964 Civil Rights Act as amended (“Title

23 VII”), 42 U.S.C. § 2000e, et seq., for both disparate impact 24 and disparate treatment, and intentional race discrimination 25 in violation of 42 U.S.C. § 1981. Plaintiffs allege that

26

27

1

Plaintiffs interchangeably refer to themselves as “Latino” or

“Hispanic.” For the sake of uniformity, and because plaintiffs primarily
28 refer to themselves as Hispanics so too will this court.

1 Bashas’ has discriminated against them with respect to pay

2 and working conditions. In 2005, this court denied

3 certification of a pay class, but granted certification as to

4 the working conditions claim. Parra v. Bashas’, Inc., 2005

5 WL 6182338 (D. Ariz. 2005) (“Parra I”). In the ensuing

6 years, for a host of reasons recounted below, this action has

7 not moved beyond the class certification stage. Pending

8 before the court is the most recent permutation of the class

9 certification issue.

10

Background

11

Bashas’ Inc. operates three grocery store chains with

12 three different formats and monikers: A.J.’s Fine Foods

13 (“A.J.’s”); (2) Bashas’; and (3) Food City. In this putative 14 class action, named plaintiffs Gonzalo Estrada,2 a Hispanic

15 former Food City hourly employee, and Aurelia Martinez, a 16 Hispanic current Food City hourly employee,3 allege that

17 Bashas’ pays its “predominantly” Hispanic Food City

18 employees, less than it pays “the Caucasian employees at

19 A.J.’s Fine Foods and Bashas’ for performing the same work.”

20 First Amended Complaint (“FAC”) (Doc. 116) at 1:26-2:2, ¶ 1

21 (“the pay claim”). Plaintiffs further allege that the Food

22 City Hispanic employees “are required to work under

23

24

2

As part of their motion forclass certification, plaintiffs have

submitted numerous de clarations from current and former Hispanic hourly

25 Food City employees. José Agapito Perez Estrada provided one such

declaration. To clarify, all references herein to Estrada are to thenamed

26 plaintiff, Gonzalo Estrada.

27

3

Originally, José Parra also was a named plaintiff, but he has

since withdrawn, although he remains a member of the putative class. See

28 Parra I, 2005 WL 6182338, at *17 n. 31.

- 2 -

1 conditions that are typically less safe and less hygienic

2 than the conditions found at A.J.’s . . . and Bashas’.” Id.

3 at 2:2-4, ¶ 1 (“the working conditions claim”).

4

In Parra I, this court granted plaintiffs’ motion for

5 class certification pursuant to Fed.R.Civ.P. 23(b)(2) as to

6 the working conditions claim, but denied certification of the

7 pay claim, because there was not “sufficient commonality

8 among the class members” as to the latter claim. Parra I,

9 2005 WL 6182338, at *16. Commonality, as Rule 23(a)(2)

10 requires for all class actions, was lacking because, as the

11 parties conceded, “the contested pay scales ha[d] merged and,

12 for the most part, are now identical.” Id. at *15 (citations

13 omitted).

14

On appeal, the Ninth Circuit faulted this court for

15 “only look[ing] at the current pay scales.” Parra v. 16 Bashas’, Inc., 536 F.3d 975, 979 (9th Cir. 2008) (“Parra II”),

17 cert. denied, Bashas’, Inc. v. Parra, 555 U.S. 1154, 129

18 S.Ct. 1050, 173 L.Ed.2d 470 (2009). This court also should

19 have “consider[ed] the evidence of past pay disparities and

20 discrimination common to the Hispanic workers at Food City.”

21 Id. Taking that evidence into account, the Court found that

22 the “pay scales were common for all Bashas’, Inc. employees

23 and provided for different pay for similar jobs based only on

24 where the employee worked.” Id. Additionally, the Ninth

25 Circuit pointed out that “[t]he class definition seeks to 26 reach those Hispanic employees who suffered past 27 discrimination under th[o]se pay scales.” Id. (emphasis 28 added). Given plaintiffs’ “extensive evidence showing

- 3 -

1 Bashas’, Inc.’s discriminatory pay practices commonly

2 affected all members of the proposed class[,]” the Ninth

3 Circuit reversed this court’s commonality finding and

4 remanded, instructing it to “consider[] . . . the remaining

5 class certification factors[.]” Id. at 979-980.

6

Thereafter, the issue of class certification as to the

7 pay claim was in a state of legal limbo for quite a while.

8 Bashas’ filing of a voluntary Chapter 11 bankruptcy petition

9 resulting in an automatic statutory stay, heavily contributed

10 to that state, as did this court’s decision to “defer

11 resolution of the class certification issue pending a

12 decision” in Wal-Mart Stores, Inc. v. Dukes, 603 F.3d 571 13 (9th Cir. 2010) (“Dukes II”) (en banc), cert. granted, ---

14 U.S. ---, 131 S.Ct. 795, 178 L.Ed.2d 530 (2010). Ord. (Doc.

15 295) at 2:14-15 (citation omitted). This court opted for

16 deferral “rather than deciding the case in haste without the

17 benefit of the Supreme Court’s decision in Dukes[.]” Id. at

18 2:13-14.

19

Nearly three years after Parra II, the Supreme Court

20 rendered its decision in Wal-Mart Stores, Inc. v. Dukes, 564

21 U.S. ___, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (“Dukes”).

22 Vacating certification of a class estimated to include 1.5

23 million female current or former Wal-Mart employees, the

24 Supreme Court held, inter alia, that plaintiffs did “not

25 establish[] the existence of any common question[,]” as Rule 26 23(a)(2) requires. Id. at 2557 (footnote omitted). In 27 accordance with this court’s order, the parties then 28 simultaneously filed supplemental briefs and replies with

- 4 -

1 respect to the potential impact of Dukes upon the present

2 case. After considering all of the submissions filed with 3 respect to plaintiffs’ 2004 motion for class certification, 4

4 their positions during oral argument thereon, and the

5 parties’ supplemental Dukes briefs, replies and other

6 filings, the court finds as follows.

7

Discussion

8

Originally, plaintiffs sought class certification

9 pursuant to Fed.R.Civ.P. 23(b)(2) as to both the pay and the

10 working conditions claims; and in Parra I, this court

11 confined its analysis accordingly. Now, however, in light of

12 Dukes, the plaintiffs are seeking certification of the pay

13 claim pursuant to Fed.R.Civ.P. 23(b)(3). Furthermore, also

14 in light of Dukes, Bashas’ is requesting that this court

15 reconsider its decision certifying the working conditions

16 claim, and decertify that claim. The court will address the

17 myriad of issues surrounding class certification as to each

18 of these two claims separately, beginning with the pay claim.

19 But first, the court will outline the legal framework for its

20 analysis.

21 I. Class Certification Legal Framework

22

Rule 23 “give[s] the district court broad discretion

23 over certification of class actions[.]” Stearns v. 24 Ticketmaster Corp., 655 F.3d 1013, 1019 (9th Cir. 2011).

25

4

In 2004, the class certification motion, the response, the reply

26 and some supporting documentation were all filed under seal. Given “the

extreme passage of time[,]” as Bashas’ notes, “much of the information no

27 longer is sensitive.” Defs.’ Supp. Br. (Doc. 301) at 2:25, n. 1. Thus, to
the extent the parties have relied upon any sealed documents, so, too has

28 the court.

- 5 -

1 However, class certification remains “‘an exception to the

2 usual rule that litigation is conducted by and on behalf of

3 the individual named parties only.’” Comcast Corp. v.

4 Behrend, --- U.S. ----, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515

5 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–701,

6 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). “[T]o justify a

7 departure from that rule, a class representative must be part

8 of the class and possess the same interest and suffer the

9 same injury as the class members.” Dukes, 131 S.Ct. at 2550

10 (internal quotation marks and citations omitted).

11

The Dukes Court made clear that “Rule 23 does not set

12 forth a mere pleading standard.” Dukes, 131 S.Ct. at 2551.

13 Therefore, “a party seeking to maintain a class action ‘must

14 affirmatively demonstrate . . . compliance’ with Rule 23.”

15 Comcast, 133 S.Ct. at 1432 (quoting Dukes, 131 S.Ct. at 2551-

16 2552). That means, “a party must . . . ‘be prepared to prove

17 that there are in fact sufficiently numerous parties, common

18 questions of law or fact,’ typicality of claims or defenses, 19 and adequacy of representation, as required by Rule 23(a).” 5

20

21

5

“The Supreme Court . . . has yet to decisively attacah standard

of proof to Rule 23 requirements[,]” Keegan v. American Honda Motor Co. ,

22

284 F.R.D. 504, 521 n. 83 (C.D.Cal. 2012) (internal quotation marks and citation omitted), even after its two most recent class action decisions,

23

Amgen Inc. v. Conn. Ret. Plans and Trust Funds , --- U.S. ----, 133 S.Ct. 1184, 185 L.Ed.2d 308 (2013), and Comcast . Similarly, the Ninth Circuit

has not yet been squarely confronted with this burden of proof issue.
24 Among the Circuit Courts to have addressed the issue, a consensus is

emerging around the “preponderance of the evidence” standard. See, e.g.,
25 Levitt v. J.P. Morgan Se curities, Inc., 710 F.3d 454, 465 (2 nd Cir. 2013)

(internal quotation marks and citation omitted) (emphasis added) (“The Rule
26 23 requirements must be established by at least a preponderance of the

evidence.”); Messner v. Northshore Univ. HealthSystem , 669 F.3d 802, 811
27 (7th Cir. 2012) (citations omitted) (“Plaintiffs bear the burdenof showing

that a proposed class satisfies the Rule 23 requirements, . . . , but they
28 need not make that showing to a degree of absolute certainty. It is

- 6 -

1 Id. (quoting Dukes, 131 S.Ct. at 2551) (emphasis in

2 original). Satisfying those prerequisites, “effectively

3 limit[s] . . . class claims to those fairly encompassed by

4 the named plaintiff’s claims.” Dukes, 131 S.Ct. at 2550

5 (internal quotation marks and citations omitted).

6

When analyzing the propriety of class certification, the

7 Supreme Court has “[r]epeatedly . . . emphasized that it

8 ‘‘may be necessary for the court to probe behind the

9 pleadings before coming to rest on the certification

10 question,’ and certification is proper only if ‘the trial

11 court is satisfied, after a rigorous analysis, that the

12 prerequisites of Rule 23(a) have been satisfied.’’” Comcast,

13 133 S.Ct. at 1432 (quoting Dukes, 131 S.Ct. at 2551) (quoting

14 in turn General Telephone Co. of Southwest v. Falcon, 457

15 U.S. 147, 160–161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)).

16 The exact contours of a “rigorous analysis,” as well as the

17 extent to which courts may “probe behind the pleadings[,]” is

18 still evolving. What is certain though is that a rigorous

19 analysis “will frequently entail ‘overlap with the merits of

20 the plaintiff’s underlying claim.’” Id. (quoting Dukes, 564

21

22 sufficient if each disputed requirement has been proven by a preponderance

of evidence.”); In re Hydrogen Peroxide Antitrust Litig,. 552 F.3d 305, 320

23 (3d Cir. 2008) (“a district court exercising proper discretion in deciding
whether to certify a class will resolve factual disputes by a preponderance

24 of the evidence and make findings that each Rule 23 requirement is met or
is not met[]”). However, that view is not universally held. See Gooch v.

25 Life Investors, Co. o f Am., 672 F.3d 402, 418 n. 8 (declining
“preponderance of the evidence” standard for the “rigorous analysis”

26 mandated by Dukes and Falcon).
Absent specific guidance from the Supreme Court or the Ninth Circuit,

27 the court, “see[s] no reason to superimpose a more specific standard than
the Supreme Court[.]” See Gooch, 672 F.3d at 418 n. 8. This is especially

28

so because “factual issues are not in play[]” in that Bashas’ concessions provide the primary factual basis, at least withrespect to plaintiffs’ pay

claim. See id.

- 7 -

1 U.S. at ----, 133 S.Ct. at 2551). “That is so because the

2 ‘class determination generally involves considerations that

3 are enmeshed in the factual and legal issues comprising the

4 plaintiff’s cause of action.’” Id. (quoting Dukes, 564 U.S.,

5 at ----, 131 S.Ct. at 2551) (other quotation marks and

6 citation omitted).

7

Post-Dukes, the Ninth Circuit has stressed that “a

8 district court must consider the merits if they overlap with

9 the Rule 23(a) requirements.”) Ellis v. Costco Wholesale 10 Corp., 657 F.3d 970, 981 (9th Cir. 2011) (“Ellis I”) (emphasis

11 in original) (citations omitted). Indeed, the Supreme Court

12 has recently cautioned that “Rule 23 grants no license to

13 engage in free-ranging merits inquiries at the certification

14 stage. Merits questions may be considered to the extent – but

15 only to the extent - that they are relevant to determining

16 whether the Rule 23 prerequisites for class certification are

17 satisfied.” Amgen, 133 S.Ct. at 1194-95; see also Comcast,

18 133 S.Ct. 1426. “To hold otherwise would turn class

19 certification into a mini-trial.” Ellis I, 657 F.3d at 983

20 n. 8. This court thus will “not turn the[s]e class

21 certification proceedings into a dress rehearsal for the

22 trial on the merits.” See Messner v. Northshore University 23 HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012) (citations

24 omitted).

25

That said, neither “the possibility that a plaintiff

26 will be unable to prove his allegations, nor the possibility

27 that the later course of the suit might unforeseeably prove

28 the original decision to certify the class wrong, is a basis

- 8 -

1 for declining to certify a class which apparently satisfies

2 [Rule 23].” United Steel, Paper & Forestry, Rubber,

3 Manufacturing Energy, Allied Industrial & Service Workers

4 International Union v. ConocoPhillips Co., 593 F.3d 802, 809

5 (9th Cir. 2010). “[A]ctual, not presumed, conformance with

6 Rule 23(a) remains . . . indispensable.” Falcon, 457 U.S. at

7 161. Consequently, “a court is not required to

8 “unquestioningly accept a plaintiff’s arguments as to the

9 necessary Rule 23 determinations.” Gonzales v. Comcast

10 Corp., 2012 WL 10621, at *9 (E.D.Cal. Jan. 3, 2012) (internal

11 quotation marks and citation omitted), adopted in full, 2012

12 WL 217708 (E.D.Cal. Jan. 23, 2012).

13

Once all four prerequisites of Rule 23(a) are shown,

14 “the party must also satisfy through evidentiary proof at

15 least one of the provisions of Rule 23(b).” Comcast, 133

16 S.Ct. at 1432. In the present case, the provision at issue

17 is subsection three, which requires a court to find that “the

18 questions of law or fact common to class members predominate

19 over any questions affecting only individual members.”

20 Fed.R.Civ.P. 23(b)(3). Leaving no doubt, the Comcast Court

21 expressly held that “[t]he same analytical principles[,]”

22 outlined above, requiring a rigorous analysis and “frequently

23 entail[ing] some overlap with the merits[,] . . . govern Rule

24 23(b).” Comcast, 133 S.Ct. at 1432 (citation omitted).

25 These principles form the backdrop for the pending issue of 26 whether to certify a class as to plaintiffs’ pay claim, and 27 also whether to decertify the class as to their working 28 conditions claim.

- 9 -

1 II. Pay Claim

2

A. Fed.R.Civ.P. 23(a)

3

1. Numerosity

4

Numerosity, the first prerequisite for class

5 certification under Rule 23(a), is shown when “the class is

6 so numerous that joinder of all members is impracticable.”

7 Fed.R.Civ.P. 23(a)(1). In Parra I, Bashas’ did not contest

8 certification based upon a lack of numerosity, and the

9 putative class has “thousands of members[.]” See Parra I,

10 2005 WL 6182338, at *14 (citations omitted). The plaintiffs

11 thus have readily shown numerosity. Further, because Bashas’

12 did not contest numerosity on appeal, nor does Bashas’ raise

13 that issue now, the court adheres to that earlier finding.

14 Consequently, the court is free to turn to the vigorously

15 disputed issue of whether, in the wake of Dukes, plaintiffs

16 have met their burden of showing commonality as to their pay

17 claim.

18

2. Commonality

19

The second requirement under Rule 23(a) is the existence

20 of “questions of law or fact common to the class[.]”

21 Fed.R.Civ.P. 23(a)(2). Commonality under that Rule was

22 “[t]he crux” of Dukes, 131 S.Ct. at 2550. In the present 23 case, the parties strenuously disagree as to the

24 applicability of Dukes, especially given the procedural

25 posture of this case -- on remand after a finding of 26 commonality. From Bashas’ perspective, Dukes “substantially 27 restated the standard for establishing commonality[.]” Def.’s 28 Resp. (Doc. 304) at 5:20, n. 1 (citations omitted). Strongly

- 10 -

1 implying that because Dukes constitutes an intervening change

2 in law, Bashas’ further argues that “[n]either the law of the

3 case doctrine nor the mandate rule” require this court to

4 abide by the Ninth Circuit’s finding of commonality in Parra

5 II. Id. at 5:19, n. 1. Hence, Bashas’ believes that after

6 Dukes “it is not only proper but necessary [for this court]

7 to revisit Plaintiffs’ ability to show commonality.” Id. at

8 5:23, n. 1.

9

To the contrary, plaintiffs argue that the Ninth

10 Circuit’s finding of commonality in Parra II “is unaffected”

11 by Dukes. Pls.’ Supp. Br. (Doc. 302) at 16:11. Therefore,

12 plaintiffs assert that Bashas’ is “effect[ively] . . .

13 urg[ing] this Court to ignore the mandate of the Ninth

14 Circuit.” Pls.’ Reply (Doc. 303) at 6:5-6 (citation

15 omitted). Skirting the critical issue of whether Dukes

16 amounts to a change in controlling law, plaintiffs first

17 observe that the Parra II Court “did not rely on any of the

18 Ninth Circuit’s rulings in Wal-Mart, now reversed by the

19 Supreme Court[”] in Dukes. Id. at 16:12-13. While obviously 20 true,6 it does not necessarily follow that because of that

21 Dukes is not an intervening change in law, as plaintiffs

22 suggest.

23

Plaintiffs add that Dukes and the present case “raise

24 different commonality issues.” Id. at 16:14. Assuming that

25 is so, it also does not necessarily follow therefrom that

26 Dukes does not constitute an intervening change in law. Put

27

28

6

Given that Parra II was decided in 2008, it would have been

impossible for that Court to have relied upon the Ninth Circuit’s 2010

Dukes decision.

- 11 -

1 differently, it is possible that Dukes is an intervening

2 change in law, regardless of the nature of the commonality

3 issues. Plaintiffs’ final response is that “the policy issue

4 in this case is precisely the kind of ‘specific employment

5 practice’ found lacking by the Supreme Court in [Dukes].”

6 Id. at 16:19-21. Still, this is not directly responsive to

7 the change in law issue.

8

a. Law of the Case/Rule of Mandate

9

It is well settled in this Circuit that “‘[w]hen a case

10 has been decided by an appellate court and remanded, the

11 court to which it is remanded must proceed in accordance with

12 the mandate and such law of the case as was established by

13 the appellate court.’” United States v. Luong, 627 F.3d 1305, 14 1309 (9th Cir. 2010) (quoting Firth v. United States, 554 F.2d 15 990, 993 (9th Cir. 1977)). Pursuant to the law of the case, “a

16 court will generally refuse to reconsider an issue that has

17 already been decided by the same court or a higher court in

18 the same case.” Gonzalez v. Arizona, 677 F.3d 383, 389 n. 4 19 (9th Cir. 2012) (citation omitted) (en banc), cert. granted, -

20 -- U.S. ----, 133 S.Ct. 476, 184 L.Ed.2d 296 (2012). The

21 law of the case doctrine applies when, inter alia, “the issue

22 in question [was] decided explicitly . . . in the previous

23 disposition.” United States v. Thrasher, 483 F.3d 977, 981 24 (9th Cir. 2007). Plainly, “the issue in question” here –

25 whether plaintiffs met Rule 23(a)(2)’s commonality standard – 26 was explicitly decided in Parra II. Thus, prior to Dukes, 27 the Ninth Circuit’s finding of commonality in Parra II would 28 have been binding upon this court, and the law of the case

- 12 -

1 doctrine would have barred reconsideration of that issue on

2 remand.

3

The same result holds true with respect to the rule of

4 mandate, which “is similar to, but broader than, the law of

5 the case doctrine.” See id. at 982 (internal quotation marks

6 and citation omitted). “The Supreme Court long ago

7 emphasized that when acting under an appellate court’s

8 mandate, an inferior court ‘cannot vary it, or examine it for

9 any other purpose than execution; or give any other or

10 further relief; or review it, even for apparent error, upon

11 any matter decided upon appeal; or intermeddle with it,

12 further than to settle so much as has been remanded.’” 13 Matter of Beverly Hills Bancorp, 752 F.2d 1334, 1337 (9th Cir.

14 1984) (quoting In re Sanford Fork & Tool Co., 160 U.S. 247,

15 255, 16 S.Ct. 291, 293, 40 L.Ed. 414 (1895)). Prior to

16 Dukes, the rule of mandate would have deprived this court of

17 jurisdiction to revisit on remand the Parra II commonality

18 finding. See Luong, 627 F.3d at 1309 (internal quotation

19 marks and citation omitted) (“[I]f a district court errs by

20 violating the rule of mandate, the error is a jurisdictional

21 one[.]”) That is so because in reversing this court’s

22 “finding that Plaintiffs’ originally proposed class lacked

23 commonality under Rule 23(a)(2),” the Ninth Circuit

24 explicitly remanded “for consideration of the remaining class

25 certification factors in accordance with [its] opinion.”

26 Parra II, 536 F.3d at 980 (emphasis added).

27

Importantly, there is some flexibility with respect to

28 the rule of mandate and law of the case doctrines. Indeed,

- 13 -

1 Ninth Circuit “cases make clear that the rule of mandate is

2 designed to permit flexibility where necessary, not to

3 prohibit it.” U.S. v. Kellington, 217 F.3d 1084, 1095 n. 12 4 (9th Cir. 2000) (emphasis added). The Ninth Circuit likewise

5 has recognized that the “[l]aw of the case should not be

6 applied woodenly in a way inconsistent with substantial 7 justice.” United States v. Miller, 822 F.2d 828, 832-33 (9th

8 Cir. 1987); see also Yankee Atomic Electric Co. v. United

9 States, 679 F.3d 1354, 1360 (Fed. Cir. 2012) internal

10 quotation marks and citations omitted) (“An appellate mandate

11 does not turn a district judge into a robot, mechanically

12 carrying out orders that become inappropriate in light of

13 subsequent factual discoveries or changes in the law.”)

14

Given that inherent flexibility, there are exceptions

15 warranting a departure from the law of the case and rule of

16 mandate doctrines. Among other reasons, a court has

17 discretion to depart from the law of the case doctrine based

18 upon “intervening controlling authority [which] makes

19 reconsideration appropriate[.]” United States v. Jingles, 20 682 F.3d 811, 820 (9th Cir. 2012) (internal quotation marks

21 and citations omitted). Further, because “[t]he mandate rule

22 is a subpart of the law of the case doctrine[,]” . . . the

23 mandate rule is subject to the same exceptions[]” as the law

24 of the case doctrine. American Express Travel Related Serv. 25 Co. v. Fraschilla (In re Fraschilla), 235 B.R. 449, 457 (9th 26 Cir. BAP 1999), aff’d, 242 F.3d 381 (9th Cir. 2000) (citing 27 Miller, 822 F.2d at 832). Hence, because the “Ninth Circuit 28 has identified . . . an intervening change in the law” as one

- 14 -

1 of several “circumstances in which the law of the case

2 doctrine,” need not be applied, “by analogy the rule of

3 mandate doctrine[] [also] need not be applied[]” when there

4 has been such a change in the law. See Allen v. Astrue,

5 2010 WL 4825925, at *5 (C.D.Cal. 2010) (emphasis added)

6 (citing cases).

7

In the present case, the issue thus becomes whether, as

8 Bashas’ contends, Dukes constitutes an intervening change in

9 the controlling law so as to permit departure from the rule

10 of mandate and law of the case doctrines. See Fraschilla,

11 235 B.R. at 455 (citing cases)(“[T]rial courts are permitted

12 on remand to consider whether any exceptions to the law of

13 the case doctrine excuse compliance with a determination made

14 by an appellate court.”) In its first application of Dukes,

15 the Ninth Circuit sweepingly declared it to be “new precedent

16 altering existing case law[,]” requiring remand to the

17 district court. Ellis I, 657 F.3d at 974. The Ninth Circuit

18 in Ellis vacated and remanded a grant of class certification

19 in a Title VII action alleging gender discrimination by the

20 defendant employer in its promotion and management practices.

21 Admittedly, the Ellis I Court was not faced with the precise

22 issue before this court: whether Dukes is a change in 23 controlling law so as to permit deviating from the law of the

24 case and rule of mandate doctrines. Nonetheless, the Ninth

25 Circuit’s broad declaration in Ellis I is a strong signal

26 that it views Dukes as changing the legal landscape with

27 respect to class certification.

28

Reinforcing this view is the Ninth Circuit’s more recent

- 15 -

1 decision in Wang v. Chinese Daily News, Inc., 709 F.3d 829

2 (9th Cir. 2013). There, the plaintiffs argued that the

3 defendant had “waived its right to challenge the district

4 court’s commonality finding because its opening brief, filed

5 before . . . Wal-Mart, discussed the existence of common

6 questions only in arguing against Rule 23(b)(3)

7 certification.” Id. at 833. The defendant “did not argue

8 the issue of commonality in its discussion of Rule 23(a).”

9 Id. “Generally, an issue is waived when the appellant does

10 not specifically and distinctly argue the issue in his or her

11 opening brief.” Id. (internal quotation marks and citation

12 omitted). However, invoking the settled rule that an

13 appellate court “may consider new arguments . . . if the

14 issue arises because of an intervening change in law[,]” the

15 Ninth Circuit “conclude[d] that the [Supreme] Court’s

16 decision in Wal-Mart present[ed] a sufficiently significant

17 legal development to excuse any failure of [the defendant] to

18 discuss the commonality requirement of Rule 23(a)(2) in its

19 opening brief.” Id.

20

The Ninth Circuit is not alone in its view that Wal-Mart

21 is “new precedent altering existing case law[,]” Ellis I, 657

22 F.3d at 974, or a “significant legal development[.]” See

23 Wang, 709 F.3d at 833. Other courts, including district

24 courts within this Circuit, have variously recognized that

25 Dukes: (1) sets forth a “heightened standard of 26 commonality[;]”7 (2) “represents a significant restatement of

27

28

7

See Morrison v. Anadarko Petroleum Corp. , 280 F.R.D. 621

(W.D.Okla. 2012) (refusing to give preclusive effect toa state court class

certification order beca use that court “did not apply the heightened

- 16 -

1 the commonality requirement[;]”8 (3) clarifies the Rule 2 23(a) commonality element;9 and (4) “undoubtedly increas[es]

3 the burden on class representatives by requiring that they

4 identify how common points of facts and law will drive or 5 resolve the litigation[.]”10 Partially based upon this

6 weight of authority, the court is convinced that Dukes

7 represents an intervening change in law.

8

Additionally, an independent examination of Dukes

9 further convinces this court that the Supreme Court altered

10 the legal standards for assessing commonality by, among other

11 things, adding an additional level of scrutiny under Rule

12 23(a)(2). More specifically, Dukes adopted the view that

13 “[w]hat matters to class certification . . . is not the

14

15 standard of commonality as set forth in Dukes[]”).

16

8

Walter v. Hughes Communications, Inc., 2011 WL 2650711, at *7

17 (N.D.Cal. 2011).

18

9

See, e.g., Ellis I, 657 F.3d at 974 (“Several of the[] issues

[“relating to class certification[]”] have recently been clarified

by

19 Dukes); Ross v. RBS Citizens, N.A. , 667 F.3d 900, 902 (7th Cir. 2012)

(“[T]he Supreme Court clarified the Rule 23(a) commonality element in”

20 Dukes); Sanchez v. Sephora USA, Inc., 2012 WL 2945753, at *3 (N.D.Cal.

2012) (same); In re Wells Fargo Residential Mortg. Lending Discrimination

21 Litigation, 2011 WL 3903117, at *2 (N.D.Cal. 2011) (same).

This court is keenly aware that in attempting to define what

22 constitutes an intervening change in controlling law, it has previously
found that “cases which merely confirm, clarify or explain existing case

23 law” do not amount to such a change. Teamsters Local 617 Pension and
Welfare Funds v. Apollo Group, Inc. , 282 F.R.S. 216, 224 (D.Ariz. 2012).

24 Significantly, however, in Apollo Group this court was examining what
constitutes an intervening controlling law for purposes of determining

25 whether to alter or amend a judgment under Rule 59(e), and it limited its
finding accordingly. The interests of finality and conservation, which are

26

of paramount importance in that context, Carrollv. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003), are not implicated here. Moreover, as can be seen,

27 clarification is just one of many ways in which courts have described
Dukes’ influence on Rule 23(a)(2)’s commonality standard.

28

10

Gonzales, 2012 WL 10621, at *10 (citation omitted) (emphasis in

original).

- 17 -

1 raising of common ‘questions’ — even in droves — but, rather

2 the capacity of a classwide proceeding to generate common

3 answers apt to drive the resolution of the litigation.”

4 Dukes, 131 S.Ct. at 2551 (internal quotation marks and

5 citation omitted) (emphasis in original). Consequently, in

6 its discretion, and given “the contours of the situation and

7 common sense[,]” this court finds it appropriate to revisit

8 the commonality issue, notwithstanding the Ninth Circuit’s

9 resolution of that issue in Parra II.11

10

Hegler v. Borg, 50 F.3d 1472 (9th Cir. 1995) (“Hegler

11 II”), is closely analogous, and provides additional support

12 for reexamining the commonality issue in light of Dukes. 13 Reversing and remanding, in Hegler v. Borg, 990 F.2d 1258 (9th

14 Cir. 1993), the Ninth Circuit instructed the district court

15 to determine whether a particular error was harmless beyond a

16 reasonable doubt. On remand, the district court “disobeyed

17 the instruction in the mandate because an intervening Supreme

18

11

To a certain extent, the court finds itself in the position, so

19 aptly described by the Fraschilla court:

20

In effect, when there has been an intervening

authoritative decision of a higher appellate court

21

[i.e., Dukes] to which both the lower appellate court

that issued the mandate [i.e., Parra III] and th[is]

22

trial court owe obedience, then the trial court is

presented with the dilemma of a clash between the

23

dictates of the doctrine of stare decisis and the

imperative of the mandate rule. The correct choice

24

depends upon the contours of the situation and common

sense. It is no more comfortable for the trial court than

25

it is for the private soldier who receives contradictory

orders from the sergeant and the captain or the employee

26

caught between a middle manager and a top executive.

27 Fraschilla, 235 B.R. at 458.

28

- 18 -

1 Court decision prescribed a different standard.” Fraschilla,

2 235 B.R. at 458. In Hegler II, another Ninth Circuit panel

3 agreed that it “must apply intervening Supreme Court

4 authority to a subsequent appeal[]” as an exception to the

5 law of the case doctrine. Hegler II, 50 F.3d at 1478.

6 Therefore, the Hegler II Court “had no difficulty affirming

7 the [district] court[]” despite that court’s disregard of the

8 mandate and the law of the case. See Fraschilla, 235 B.R. at

9 458 (citation and footnote omitted).

10

Southern Oregon Barter Fair v. Jackson County, 372 F.3d

11 1128 (9th Cir. 2004), and Fraschilla, 235 B.R. 449, are also

12 instructive as to when a district court may depart from the

13 mandate and law of the case. In Barter Fair, the Court held

14 that it was not an abuse of discretion to re-examine the

15 merits after the issuance of a preliminary injunction,

16 notwithstanding the law of the case, because an intervening

17 Supreme Court decision “provided important guidance” therein.

18 Barter Fair, 372 F.3d at 1136.

19

Similarly, in Fraschilla, 235 B.R. 449, the Bankruptcy

20 Appellate Panel (“BAP”) held that although its mandate had

21 directed entry of judgment in plaintiff’s favor, the trial

22 court did not err by subsequently conducting a trial where,

23 following remand, there had been two intervening Ninth

24 Circuit decisions. One such decision “amplified the

25 importance of the other elements of [nondischargeability for] 26 common law fraud.” Id. at 456. The second intervening 27 decision, while “somewhat opaque,” “adjusted the focus” for a 28 finding of nondischargeability, “emphasiz[ing] the need to

- 19 -

1 make an actual finding regarding intent[.]” Id. Those two

2 decisions change[d] the landscape regarding credit card

3 nondischargeability actions . . . alter[ing] the analysis

4 that was applicable when the BAP decided the initial

5 appeal[]” therein. Id. at 455. As Barter Fair and

6 Fraschilla demonstrate, even if an intervening decision does

7 not go so far as to “prescribe a different standard,”

8 nonetheless, such a decision can warrant a departure from the

9 rule of mandate and law of the case doctrines. See

10 Fraschilla, 235 B.R. at 458.

11

Ultimately, as plaintiffs assert, the Parra II Court’s

12 finding of commonality (as distinguished from its rationale)

13 might be “unaffected.” Pls.’ Supp. Br. (Doc. 302) at 6:13

14 (citation omitted). It also may be, as plaintiffs assert,

15 that Dukes “does not require a re-examination of [prior]

16 factual findings[] in this case. See Pls.’ Reply (Doc. 303)

17 at 6:8-9 (emphasis added). Nevertheless, this court cannot

18 disregard Dukes, which altered the legal standards for

19 assessing Rule 23(a)(2) commonality.

20

b. Dukes

21

The Dukes plaintiffs alleged “that the discretion

22 exercised by their local supervisors over pay and promotions 23 matters violate[d] Title VII by discriminating against

24 women.” Dukes, 131 S.Ct. at 2547. The Dukes plaintiffs

25 attempted to demonstrate the common issue of company-wide 26 gender discrimination chiefly through three different “forms 27 of proof[.]” Dukes, 131 S.Ct. at 2549. First, the plaintiffs 28 relied upon “statistical evidence about pay and promotion

- 20 -

1 disparities between men and women at the company[.]” Id.

2 Second, they relied upon “anecdotal reports of discrimination

3 from about 120 of Wal–Mart’s female employees[.]” Id.

4 Third, the plaintiffs relied upon “the testimony of a

5 sociologist, . . . , who conducted a ‘social framework

6 analysis’ of Wal–Mart’s ‘culture’ and personnel practices,

7 and concluded that the company was ‘vulnerable’ to gender

8 discrimination.” Id. (citation omitted). In dismantling the

9 nation-wide class, a five justice majority in Dukes held that

10 plaintiffs did not show commonality because they did not

11 “provide . . . convincing proof of a companywide

12 discriminatory pay and promotion policy[,]” and hence they

13 did “not establish[] the existence of any common question[,]”

14 as Rule 23(a)(2) mandates. Id. at 2556-57.

15

Summarizing the commonality requirement, Justice Scalia

16 wrote, that it “requires the plaintiff to demonstrate that

17 the class members ‘have suffered the same injury[,]’” not

18 “merely that they have all suffered a violation of the same

19 provision of law.” Id. at 2551 (quoting Falcon, 457 U.S. at

20 157, 102 S.Ct. 2364). To show that they have suffered the

21 same injury, plaintiffs’ “claims must depend upon a common

22 contention,” according to the Dukes Court. Id. That common 23 contention, in turn, “must be of such a nature that it is

24 capable of classwide resolution - which means that

25 determination of its truth or falsity will resolve an issue 26 that is central to the validity of each [claim] in one 27 stroke.” Id. Such a common contention was missing in Dukes 28 because there was not “some glue holding the alleged reasons

- 21 -

1 for all [of] those [individual employment] decisions

2 together[.]” Id. at 2552 (emphasis in original). Therefore,

3 it would “be impossible to say that examination of all the

4 class members’ claims for relief will produce a common answer

5 to the crucial question why was I disfavored.” Id. (emphasis

6 in original).

7

Rejecting plaintiffs’ statistical evidence, the Dukes

8 Court found that “[e]ven if . . . taken at face value,” such

9 evidence was “insufficient to establish that [plaintiffs’]

10 theory c[ould] be proved on a classwide basis.” Id. at 2555.

11 “Merely showing that Wal-Mart’s policy of discretion had

12 produced an overall sex-based disparity does not suffice.”

13 Id. at 2556. The “more fundamental” failure in plaintiffs’

14 proof though was their failure to “identif[y]” [a] ‘specific

15 employment practice’ - - much less one that ties all their

16 1.5 million claims together.” Id. at 1255-56. Plaintiffs’

17 anecdotal evidence in Dukes was similarly defective and “too

18 weak to raise an inference that all the individual,

19 discretionary personnel decisions are discriminatory[,]”

20 because it did not focus on particular Wal-Mart stores. Id.

21 Thus, because the plaintiffs did not provide “convincing

22 proof of a companywide discriminatory pay and promotion 23 policy,” the Dukes Court held that they did “not establish[]

24 the existence of any common question.” Id. (footnote

25 omitted).

26

c. Analysis

27

Before considering whether plaintiffs have shown

28 commonality post-Dukes, it is necessary to clarify the scope

- 22 -

1 of their pay claim. Since seeking class certification in

2 2004, plaintiffs have severely restricted the scope of that

3 claim. Originally, plaintiffs’ pay claim had encompassed a

4 pay policy purporting to have “elements of local manager

5 subjectivity[,]” Pls.’ Supp. Br. (Doc. 302) at 18:27, n. 9,

6 the so-called, “Subjective Placement claim[.]” Pls.’ Reply

7 (Doc. 303) at 5:16-17. Plaintiffs unequivocally declare that

8 they “did not pursue that policy on . . . appeal . . . and no

9 longer seek certification of that claim[,]” however. Pls.’

10 Supp. Br. (Doc. 302) at 18:27-28, n. 9.

11

Another component of plaintiffs’ pay claim had been

12 Bashas’ alleged failure to pay Sunday premiums to Food City

13 employees. Plaintiffs make only “passing reference” to the

14 Sunday premiums; and, more importantly, they have not come

15 forth with any factual support for this claim, as Bashas’

16 accurately notes. See Def.’s Supp. Br. (Doc. 301) at 2:26,

17 n. 2 (citation omitted). Furthermore, as Bashas’ also

18 correctly notes, “[p]laintiffs never raised this [issue]

19 again and neither this Court nor the [Ninth] Circuit . . .

20 addressed it.” Id. at 2:27-28, n. 2. Plaintiffs have,

21 therefore, implicitly abandoned the Sunday premiums aspect of

22 their pay claim. Through their actions or, as the case may

23 be, inaction, plaintiffs’ pay claim now consists solely of 24 what they describe as Bashas’ “written Two-Tiered Wage Scale 25 [(“the wage scale”)][.]”12 Pls.’ Reply (Doc. 303) at 5:17-18.

26

27

12

Bashas’ twice acknowledges that plaintiffs are challenging its

pay scales. See Def.’s Supp. Br. (Doc. 301) at 9:19-20(citations omitted)

28

(emphasis added) (identifying “Bashas’ pay scales[]” as “the actual employment practice challenged in this case[]”); and id. at 10:19-20

(emphasis added) (defining the “issue at hand[]” as whether the challenged

- 23 -

1 The court will limit its analysis accordingly.

2

Plaintiffs are pursuing two closely related, although

3 not identical, theories of discrimination with respect to

4 Bashas’ wage scales – disparate treatment and disparate 5 impact.13 See Pls.’ Supp. Br. (Doc. 302) at 17:28-18:2.

6 Borrowing from Dukes, plaintiffs assert that they do have a

7 common answer to the “crucial question” posed therein, “[ w]hy

8 was I disfavored?” See Dukes, 131 S.Ct. at 2552 (emphasis in

9 original). The common answer, plaintiffs posit, is because

10 Bashas’ “adopted a lower wage scale for predominantly

11 Hispanic Food City employees doing the same work as their

12 white counterparts at Bashas’ and A.J.’s Fine Foods.” Pls.’

13 Supp. Br. (Doc. 302) at 17:26-28. Thus, regardless of which

14

15
pay scales constitute a discriminatory pr actice[]”). Yet, in its reply

16 Bashas’ seems to disavow that view, declaring that “[w]hile Plaintiffs
claim to challenge [its] pay scales, in reality, they [are] rely[ing] on

17 statistically derived average pay differences between Hispanic Food City
employees and their counterparts working in other Bashas’ formats.” Def.’s

18

Resp. (Doc. 304) at 3:3-5 (emphasis in original). Even assuming arguendo that is so, it does not change the fact that plaintiffs’ equal pay claim

19 centers on Bashas’ wages scales themselves.

20

13

For the most part, the parties have overlooked the distinction

21 between these two theories. For example, inits reply Bashas’ outlines the
legal framework for a prima facie case of disparate im pact, Def.’s Resp.

22 (Doc. 304) at 4:1-22, but it seems to couch its Dukes -based arguments in
terms of disparate treatment, not disparate impact.

23

Bashas’ is not alone in this tendency. Even though they are pursuing

both, plaintiffs did not separately analyze disparate impact and disparate

24

treatment in terms of commonality or otherwise. Cf . Ellis v. Costco

Wholesale Corp., 285 F.R.D. 492, 510 (N.D.Cal. 2012) (“Ellis II

”)

25

(“[B]ecause there are differences with respect to the way Dukes might be applied to disparate treatment, as opposed to disparate impact claims, the

26

Court . . . address[ed] these claims separately[.]”) Following the parties’ lead, and without the advantage of their fully briefed views on

27

this issue, this court, too, will not distinguish between disparate treatment and disparate impact at this stage. That does not foreclose the

28

possibility that that distinction will become relevant later in this litigation.

- 24 -

1 theory their pay claim is grounded upon, plaintiffs contend

2 that they have met Dukes’ commonality standard because

3 “[r]esolution of whether Bashas’ [pay] policy violates Title

4 VII and Section 1981 . . . will resolve the question for all

5 class members.” Id. at 17:23-25.

6

Bashas’ responds that commonality is lacking because, as

7 in Dukes, the plaintiffs “cannot provide proof of a

8 companywide discriminatory pay practice.” Def.’s Supp. Br.

9 (Doc. 301) at 12:24 (emphasis omitted). Bashas’ further

10 responds that, also like Dukes, neither plaintiffs’

11 statistical nor their anecdotal evidence suffice to establish

12 commonality. Patterning its argument after the evidentiary

13 shortcomings in Dukes only serves to lay bare the flaws in

14 Bashas’ commonality analysis, however. Although Bashas’

15 assails the evidence of plaintiffs’ statistician, Dr. Richard

16 Drogin, it cannot now distance itself from “three significant

17 . . . conce[ssions]” it made earlier in this litigation. See

18 Parra II, 536 F.3d at 979. Bashas’ retained Dr. Michael P.

19 Ward, an economist and statistician, to refute Dr. Drogin’s

20 statistical analyses. Dr. Ward conceded these conclusions

21 reached by Dr. Drogin:

22

(1) Food City Stores have a higher

percentage of Hispanic employees

23

compared to Bashas’ or A.J.’s stores,

(2) the pay scales at Bashas’ and A.J.’s

24

stores were higher than those at Food City

during the period 1998-2000, and (3)

25

Hispanic employee hourly rates were

lower in similar jobs.

26 Id.; see also Parra I, 2005 WL 6182338, at *16 (same).

27 Bashas’ wage scales, in combination with these concessions,

28 provide the “convincing proof of a companywide discriminatory

- 25 -

1 pay . . . policy” missing from Dukes. See Dukes, 131 S.Ct.

2 at 2556.

3

Indeed, even prior to Dukes, the Ninth Circuit was

4 similarly convinced, explaining that:

5

These pay scales were common for all Bashas’,

Inc. employees and provided for different

6

pay for similar jobs based only on the store

where the employee worked. The proposed class

7

here shares the alleged discriminatory pay

scales of Bashas’, Inc. The class definition

8

seeks to reach those Hispanic employees who

suffered past discrimination under these pay

9

scales.

10 Parra II, 536 F.3d at 979. The foregoing seriously erodes

11 Bashas’ assertion that plaintiffs have not shown commonality

12 because Dr. Drogin “fail[ed] to “identify . . . a ‘specific

13 employment practice’ or one that impacts all of the

14 individuals in the proposed class.” Def.’s Supp. Br. (Doc.

15 301) at 10:24-26 (citing Dukes, 131 S.Ct. at 2555).

16

Relatedly, the foregoing also deeply undercuts Bashas’

17 bald assertion that commonality is lacking because the

18 plaintiffs cannot show that they “‘have suffered the same

19 injury[.]’” Def.’s Supp. Br. (Doc. 301) at 9:14-15 (quoting

20 Dukes, 131 S.Ct. at 2551) (emphasis added by Bashas’). The

21 putative class members have suffered the same injury: they

22 received lower wages than their Caucasian counterparts at 23 A.J.’s and Bashas’ stores at least “during the period 1998-

24 2000[]” when, it is undisputed, that “the pay scales at

25 Bashas’ and A.J.’s stores were higher than those at Food 26 City[.]” See Parra II, 536 F.3d at 977 (“according to 27 [Bashas’] pay scales, the hourly pay disparities for 28 comparable jobs at the three brand named stores ranged from

- 26 -

1 $0.15 per hour to $2.94 per hour[,]” which “translate to

2 annual salary differences of around $300 per year to almost

3 $6,000 per year[]”). Thus, unlike Dukes, this is not a “mere

4 claim by [current and former Food City] employees that they

5 have suffered a Title VII injury, or even a disparate-impact

6 Title VII injury[.]” See Dukes, 131 S.Ct. at 2551. Rather,

7 as is evident, plaintiffs’ pay claims can “productively be

8 litigated at once.” See id.

9

In addition, Bashas’ attacks on plaintiffs’ statistical

10 evidence are largely immaterial because they are directed

11 primarily at Dr. Drogin’s regression analyses, which

12 plaintiffs offered to support their “Subjective Placement 13 claim[]” – a claim they are no longer pursuing.14 Pls.’ Reply

14 Br. (Doc. 303) at 7:1-2 (footnote omitted). Bashas’ fares no

15 better with its attacks on plaintiffs’ anecdotal evidence –

16 declarations from 13 former and current Bashas’ employees. As

17 with their statistical evidence, Bashas’ contends that

18 plaintiffs cannot establish commonality because, their

19 anecdotal evidence, inter alia, does not “provide

20 ‘significant proof’ that [Bashas’] operated under a general

21 policy of discrimination[.]’” Def.’s Supp. Br. (Doc. 301) at

22 11:9-10 (quoting Dukes, 131 S.Ct. at 2553). Plaintiffs

23 counter, and the court agrees, that their anecdotal evidence 24 is “unnecessary to establish commonality[,]” Pls.’ Reply 25 (Doc. 303) at 7:15 (emphasis omitted), given the “three

26

27

14

Given the simultaneous filing of the opening post-Dukes briefs,

Bashas’ cannot be faulted in its opening brief for concentrating on its

28

perceived deficiencies in Dr. Drogin’s analyses. Bashas’ had no way of knowing when it filed that brief, that plaintiffswould be abandoning their

Subjective Placement claim.

- 27 -

1 significant conclusions conceded by Bashas’” and identified

2 above. See Parra II, 536 F.3d at 979.

3

Of equal import is that Bashas’ written, non-

4 discretionary, centralized wage scale under which, as

5 plaintiffs allege and the evidence indicates, Hispanic Food

6 City hourly employees were paid less than their Caucasian

7 counterparts at Bashas’ and A.J.’s stores, is precisely what

8 was missing in Dukes. See Dukes, 131 S.Ct. at 2548

9 (emphasis added) (“These plaintiffs . . . do not allege that

10 Wal-Mart has any express corporate policy against the

11 advancement of women.”) Bashas’ wage scales “provide the

12 ‘glue’ the Supreme Court sought — but did not find — in

13 Dukes, sufficient to ‘say that examination of all the class

14 members’ claims for relief will produce a common answer to

15 the crucial question why was I disfavored.” Ellis II, 285

16 F.R.D. at 530 (emphasis in original) (quoting Dukes, 131

17 S.Ct. at 2552).

18

So, for example, if a trier of fact finds that Bashas’

19 wage scales “lead to disparate outcomes[,]” that “is a common

20 question subject to classwide proof and rebuttal.” See id. at

21 531. In the parlance of Dukes, determining the “truth or

22 falsity” of whether Bashas’ wage scales violate Title VII or

23 section 1981 in the manner alleged “will resolve in one

24 stroke[]” an issue that is “central to the validity” of each

25 class member’s pay claim. See Dukes, 131 S.Ct. at 2551; see 26 also Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 27 1029 (9th Cir. 2012) (quoting Dukes, 131 S.Ct. at 2551) (claim 28 that defendant violated the Fair Debt Collection Practices

- 28 -

1 Act by sending “collection notices addressed to the debtor,

2 but in ‘care of’ the debtor’s employer, without first

3 obtaining consent[,] . . . is a common contention among the

4 class and ‘determination of its truth or falsity’ is pivotal

5 to this lawsuit and is capable of determination ‘in one

6 stroke[]’”). “This case,” at least insofar as the equal pay

7 claim is concerned, “presents the classic case for treatment

8 as a class action: that is, the commonality linking the class

9 members is the dispositive question in the lawsuit.” See

10 Evon, 688 F.3d at 1030 (internal quotation marks and citation

11 omitted).

12

Notably, “commonality only requires a single significant

13 question of law or fact.’” Mazza, 666 F.3d at 589 (quoting

14 Dukes, 131 S.Ct. at 2556) (emphasis added). Further easing a

15 plaintiff’s burden at this stage is that Rule 23(a)(2)’s

16 commonality requirement is to be “construed permissively, and

17 “[a]ll questions of fact and law need not be common to

18 satisfy the rule.” Ellis I, 657 F.3d at 981 (internal

19 quotation marks and citation omitted); see also Evon, 688

20 F.3d at 1030 (internal quotation marks and citation omitted)

21 (“It is not necessary that members of the proposed class

22 share every fact in common.”) Plaintiffs thus have a “limited 23 burden under Rule 23(a)(2)[.]” Mazza, 666 F.3d at 589.

24 Consequently, even in the wake of Dukes, for the reasons 25 outlined above, this court has little difficulty finding that 26 a class proceeding herein has “the capacity to generate 27 common answers apt to drive the litigation” insofar as the 28 equal pay claim is concerned. See Dukes, 131 S.Ct. at 2551

- 29 -

1 (internal quotation marks and citation omitted) (emphasis in

2 original); see also Gales v. Winco Foods, 2011 WL 3794887, at

3 *2 (N.D.Cal. Aug. 26, 2011)(finding commonality where

4 plaintiff identified an employer’s policy of exempting from

5 overtime all assistant managers). No individualized inquiry

6 is necessary to determine whether Bashas’ wage scales violate

7 federal law.

8

While not alone dispositive, the difference in scale

9 between Dukes further underscores why Dukes does not preclude

10 a finding of commonality here. Dukes was “one of the most

11 expansive class actions ever[,]” comprised of approximately

12 1.5 million members. Dukes, 131 S.Ct. at 2547. Moreover,

13 the Dukes plaintiffs “held a multitude of different jobs, at

14 different levels of Wal–Mart’s hierarchy, for variable

15 lengths of time, in 3,400 stores, sprinkled across 50 states,

16 with a kaleidoscope of supervisors (male and female), subject

17 to a variety of regional policies that all differed.” Id.

18 (internal quotation marks and citation omitted).

19 Additionally, the plaintiffs in Dukes were challenging

20 “literally millions of employment decisions.” Id. at 2552,

21 2556 n. 9. Given this factual scenario, the court agrees

22 with Judge Sand’s astute observation in Chen-Oster v. 23 Goldman, Sachs & Co., 2012 WL 2912741 (S.D.Cal. July 17,

24 2012): 25 26 27 28

The Supreme Court suggested (when not explicitly stating) that the sheer size of the class and the vast number and diffusion of challenged employment decisions was key to the commonality decision. This makes a great deal of sense when the purpose of the commonality enquiry is to identify ‘some glue holding the

- 30 -

1

alleged reasons for all of [the

challenged] employment decisions together.’

2

3 Id. at *3 (quoting Dukes, 131 S.Ct. at 2552 (emphasis

4 omitted)).

5

The present case is vastly different. There are not

6 millions of potential plaintiffs here. Nor are the

7 plaintiffs scattered across the nation; they all work or

8 worked at Arizona Food City stores. And, they are not

9 challenging “millions of employment decisions;” rather, at

10 this point, they are only challenging Bashas’ decision to pay

11 its employees pursuant to its two-tiered wage scales. These

12 factual distinctions reinforce this court’s conclusion that

13 plaintiffs have met their burden of showing commonality as to

14 the equal pay claim.

15

3. Typicality15

16

Next, plaintiffs must show that “the claims or defenses

17 of the representative parties [are] typical of the claims or

18 defenses of the class.” Fed. R. Civ. P. 23(a)(3). Bashas’

19 argues that the claims of named plaintiffs Estrada and

20 Martinez are not typical of those of the putative class

21 because there is no evidence of a shared “common

22 experience[.]” Bashas’ Response to Motion for Class

23

24

15

In Parra I, this court addressed typicality, but only with

respect to the working conditions claim. Indeed, after finding a lack of

25 commonality as to the equal pay claim, the court explicitly noted that it
had “not reached the other requirements for class certification on this

26 [equal pay] issue, and express[ed] no opinion on whether Plaintiffs could
satisfy” the requirements of typicality and adequacy as to that claim.

27 Parra I, 2005 WL 6182338, at *16, n. 30 (emphasis added). Moreover, given
the Ninth Circuit’s remand, as earlier noted, “for consideration of the

28

remaining class certification factors[,]” undeniably the issue of whether, inter alia, plaintiffs have shown typicality as to their pay claim is

properly before the court now.

- 31 -

1 Certification (“Def.’s Resp. MCC”) (Doc. 190) at 45:9. As

2 to plaintiff Martinez alone, Bashas’ argues that because she

3 works as a Food City Tortilla Ria Clerk, and that position

4 has “no comparable position in Bashas’ or A.J.’s stores[,]”16

5 her pay claim is “unique to her,” and thus not typical for

6 Rule 23(a)(3) purposes. Id. at 59:21 (footnote omitted); and

7 61:12. Bashas’ also argues that because plaintiff Martinez

8 did not exhaust her administrative remedies, that is a

9 defense unique to her, thus precluding a finding that she is 10 a typical class representative.17 The court will address the

11 arguments pertaining solely to plaintiff Martinez first.

12

a. Aurelia Martinez

13

14

16

Some preliminary clarification is necessary. Bashas’, like the

plaintiffs, declares that plaintiff Martinez has worked in “one position,

15 tortilleria [sic] clerk, since 1991.” Def.’s Resp. MCC (Doc. 190) at

59:18-21 (emphasis in original) (citation omitted); Plaintiffs’ Motion for

16 Class Certification (“Pls.’ MCC”) (Doc. 159) at 14:23, ¶ 12 (citation

omitted) (“Aurelia Martinez has been employed as a tortilleria [sic] clerk

17 at a Food City store in Phoenix since July 1991.”) The record belies this

statement, revealing that Ms. Martinez worked both as a Tortilla Ria Clerk

18 and as Tortilla Machine Operator. This is noteworthy because a basic

tenet of Bashas’ argument that plaintiff Martinez’s pay claim is atypical

19 is that she works, and has always worked, as a Tortilla Ria Clerk.

From Bashas’ Payroll Status Authorization form, it appears, however,

20 that in roughly mid-September 2001 Ms. Martinez was promoted to a Tortilla
Machine Operator. Martinez Decl’n (Doc. 163), exh. A thereto. Regardless

21 of the exact date of Ms. Martinez’s promotion, a Bashas’ Performance
Evaluation form shows that she held that position at least from January,

22 2001 to January, 2002. Id. , exh. B thereto. So although there is
uncertainty on this record as to exactly when Ms. Martinez first became

23 employed as a Tortilla Ria Clerk, and when she became a Tortilla Machine
Operator, clearly she held both positions at different times during the

24 class period. However, because the parties’ are focusing exclusively upon
Ms. Martinez’s status as a Tortilla Ria Clerk, so, too, will the court.

25

17

Like commonality, typicality “tend[s]to merge with the adequacy-

26

of-representation requirement[.]” Dukes , 131 S.Ct. at 2551 n. 5. So although Bashas’ presents these arguments when discussing adequacy, the

27

court will address them now – in the context of typicality. Cf. Ellis I, 657 F.3d at 974 (citation omitted) (vacating “ruling as to ‘typicality’

28

. . . because the district court failed to consider the effect that defenses unique to the named Plaintiffs’ claims have on that questions[]”).

- 32 -

1

An integral part of Bashas’ exhaustion argument is that

2 because Ms. Martinez’s pay claim is unique, plaintiff

3 Estrada’s Equal Employment Opportunity Commission (“EEOC”)

4 charge, among others, did not provide Bashas’ with adequate

5 notice of her pay claim. So before considering Bashas’

6 exhaustion argument per se, the court first must decide

7 whether plaintiff Martinez’s pay claim is unique.

8

i. “Tortilla Ria Clerk”18

9

Bashas’ argues that plaintiff Martinez’s pay claim is

10 “unique to her[]” because she works as a Food City Tortilla

11 Ria Clerk, and that position has “no comparable position in 12 Bashas’ or A.J.’s stores.”19 Def.’s Resp. MCC (Doc. 190) at

13 61:12; and 59:21 (footnote omitted). Disagreeing,

14 plaintiffs assert that a Tortilla Ria Clerk is the

15

16

17

18

This designation is taken directly from Bashas’ wage scales.

See, e.g., Def.’s exh. 1 (Proulx Aff.), exh. G thereto at BA 04350.

18

19

Some preliminary clarification is necessary. Bashas’, like the

19 plaintiffs, declares that plaintiff Martinez has worked in “one position,

tortilleria [sic] clerk, since 1991.” Def.’s Resp. MCC (Doc. 190) at

20 59:18-21 (emphasis in original) (citation omitted); Pls.’ MCC (Doc. 159) at

14:23, ¶ 12 (citation omitted) (“Aurelia Martinez has been employed as a

21 tortilleria [sic] clerk at a Food City store in Phoenix since July 1991.”)

The record belies this statement, revealing that Ms. Martinez worked both

22 as a Tortilla Ria Clerk and as Tortilla Machine Operator. This is

noteworthy because a basic tenet of Bashas’ argument that plaintiff

23 Martinez’s pay claim is atypical is that she works, and has always worked,
as a Tortilla Ria Clerk.

24

From Bashas’ Payroll Status Authorization form, it appears, however,

that in roughly mid-September 2001 Ms. Martinez was promoted to a Tortilla

25 Machine Operator. Martinez Decl’n (Doc. 163), exh. A thereto. Regardless
of the exact date of Ms. Martinez’s promotion, a Bashas’ Performance

26 Evaluation form shows that she held that position at least from January,
2001 to January, 2002. Id. , exh. B thereto. So although there is

27 uncertainty on this record as to exactly when Ms. Martinez first became
employed as a Tortilla Ria Clerk, and when she became a Tortilla Machine

28

Operator, clearly she held both positions at different times during the class period. However, because the parties’ are focusing exclusively upon

Ms. Martinez’s status as a Tortilla Ria Clerk, so, too, will the court.

- 33 -

1 “equivalent” of a Donut Fryer,20 and thus, plaintiff

2 Martinez’s pay claim is typical of the putative class

3 members. Pls.’ Reply (Doc. 207) at 27:9 (citation omitted).

4

In resolving this dispute, the court is fully aware of

5 its earlier comment that “[w]ithout further information[]” it

6 could not “determine whether Martinez’s position [as a

7 Tortilla Ria Clerk] has a comparable counterpart in

8 Defendant’s other stores.” Parra I, 2005 WL 6182338, at *18.

9 The court immediately noted, however, that “[r]egardless,

10 Martinez claims she has suffered from the same alleged

11 disparate working conditions as the proposed class members.”

12 Id. (emphasis added). So “[w]hile close,” this court found

13 that Ms. Martinez sufficiently satisfie[d] the typicality

14 requirement of Rule 23(a)(3) on that issue[,]” i.e. the

15 working conditions claim. Id. (emphasis added).

16

In Parra I, this court was able to decide the typicality

17 issue as to Ms. Martinez’s working conditions claim without

18 resolving whether a Food City Tortilla Ria Clerk has a

19 “comparable counterpart” in A.J.’s or Bashas’ stores.

20 Therefore, the court’s earlier quoted comment is, at most,

21 non-authoritative dictum, allowing it to visit that issue

22 against the backdrop of plaintiff Martinez’s pay claim.

23

Probing more deeply into the record, as part of its

24

25

20

More recently, plaintiffs took the position that Martinez’s

26 “position as a tortilla clerk is equivalent to a higher paid position,
donut fryer, in the Bashas’ stores.” Pls.’ Supp. Br. (Doc. 302) at 20:3-4

27 (emphasis added) (citations and footnote omitted). Plaintiffs’ cites do
not support that proposition, however. Moreover, as Bashas’ pay scales,

28

among other things, reveal, and as plaintiffs argue above, Bashas’ places Tortillaria Clerks and Donut Fryers in the same wage bracket, undermining

this assertion that Donut Fryers are in a “higher paid position.”

- 34 -

1 obligation to rigorously analyze whether the prerequisites of

2 Rule 23(a) have been met, convinces this court that plaintiff

3 Martinez’s pay claim is typical of those of the putative

4 class. Most significantly, Bashas’ own pay scales do not

5 differentiate between “Tortilla Ria Clerk[s] & Donut

6 Fryer[s]” [.]” See, e.g., Larkin Decl’n (Doc. 161), exh. 13

7 thereto at BA 00196; exh. 14 thereto at BA 00206. Even if

8 the duties differ, Bashas’ repeatedly classifies a Tortilla

9 Ria Clerk and a Donut Fryer together in one, single category

10 for wage purposes. See Bashas’ exh. 1 (Proulx Aff.), exh. G

11 thereto at BA 04350;, exh. H thereto at BA 04340; exh. I

12 thereto at BA 04321; exh. J thereto at BA 04283; exh. K

13 thereto at 2; exh. L thereto at BA 04256 - 04258; exh. M 14 thereto at BA 08281 - 0828_;21 BA 08293; BA 08295. This joint

15 designation is not a one-time aberration. The joint

16 designation for “Tortillaria Clerk, [and] Donut Fryer” is

17 found elsewhere, on “Bashas’ Wage and Employee Benefit

18 Program[.]” Larkin Supp. Decl’n (Doc. 196), exh. 10 thereto

19 at BA 04231.

20

Tortillaria Clerk and Donut Fryer are not the only joint

21 designations for wage purposes. Bashas’ also jointly places

22 a “Lead Deli Clerk[]” and a “Cappuccino Manager” – two

23 positions which on the face of it seem to have little in

24 common - into one wage category. See id., exh. 10 thereto at

25 BA 04231. Thus, there are certain job positions which, for

26 whatever reasons, Bashas’ deems so closely analogous to

27 warrant placing them in the same wage category.

28

Had Bashas’ wanted to distinguish between Tortillaria

21

The Bates stamp number is obstructed onthe copy provided to the court.

- 35 -

1 Clerks and Donut Fryers, it could have, as it did for

2 Tortilla Production Supervisors and Tortilla Machine

3 Operators. Those are separate job listings, with separate

4 wages; and, for the most part, employees in those positions

5 are paid more than employees in the Tortilla Ria Clerk and

6 Donut Fryer category. See e.g., exh. 10 thereto at BA 04234.

7 The fact remains, however, that Bashas’ did not make any

8 distinction in terms of wages with respect to those two

9 positions.

10

For these reasons, based upon the record as presently

11 constituted, to the extent Ms. Martinez is premising her

12 equal pay claim upon her tenure as a Food City Tortilla Ria

13 Clerk, her pay claim is typical of the pay claims of the

14 putative class. In reaching this conclusion the court has,

15 as it must, focused on the nature of the claim or defense of

16 the class representative, and not to the specific facts from

17 which it arose or the relief sought.” See Ellis I, 657 F.3d

18 at 984 (internal citation and quotation marks omitted)

19 (emphasis added). That is because “[d]iffering factual

20 scenarios resulting in a claim of the same nature as other

21 class members does not defeat typicality.” Id. at 985, n. 9

22 (citation omitted). Having found that plaintiff Martinez’s 23 pay claim is typical of those of the class, the next issue is

24 whether, as Bashas’ argues, her failure to exhaust her

25

26

27

28

- 36 -

1 administrative remedies is a unique defense which would

2 defeat typicality.

3

ii. Exhaustion of Administrative Remedies

4

A plaintiff must file a timely charge of discrimination

5 with the EEOC as a prerequisite to bringing a Title VII

6 action. 42 U.S.C. § 2000e-5(e). There is no dispute that

7 Plaintiff Estrada filed such a charge and exhausted his

8 administrative remedies, see Bashas’ exh. 40, and that

9 plaintiff Martinez did not. Bashas’ argues that plaintiff

10 Martinez’s failure to exhaust her administrative remedies is

11 a “defense unique” to her, which bars her from serving as a

12 class representative as to any Title VII claims. Def.’s Resp. 13 MCC (Doc. 190) at 58:21, n. 39.22

14

Accurately reciting that notice is the underlying purpose

15 of Title VII’s exhaustion requirement, see B.K.B. v. Maui 16 Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002), plaintiffs

17 invoke the “single filing” or “piggyback” rule. Under that

18 exception to exhaustion, “an individual who has not filed an

19 administrative charge can ‘piggyback’ on an EEOC complaint 20 filed by another person who is similarly situated.”23

21

22

22

Section 1981 does not contain a similar exhaustion requirement.

Therefore, Bashas’ failure to exhaust argument is limited to plaintiffs’

23 Title VII claims.

24

23

In Parra I , when discussing typicality as to the

working

conditions claim, this court mentioned in passing that although Ms.

25 Martinez had not exhausted her administrative remedies, she “may
‘piggyback’ onto Estrada’s efforts and go forth with her Title VII claim.”

26 Parra I, 2005 WL 6182338, at *17 (citing Albemarle Paper Co. v. Moody, 422
U.S. 405, 414 n. 8, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975)). On its face,

27 that quote might appear to be dispositive of the exhaustion argument
herein. However, it is not.

28

There are two reasons for addressing the exhaustion argument anew at

this juncture. First, in Parra I, this court expressly declined toreach the

issue of typicality as t o the equal pay claim. See n. 15 supra . Second,

although this court is not alone in citing footnote 8 in Albemarle for the

- 37 -

1 E.E.O.C. v. Giumarra Vineyards Corp., 2010 WL 3220387, at *4

2 (E.D.Cal. Aug. 13, 2010) (footnote and citation omitted).

3 Plaintiffs contend that Ms. Martinez is similarly situated to

4 “[s]everal [unspecified] members of the proposed class [who]

5 filed EEOC charges against [Bashas’] all alleging class

6 discrimination.” Pls.’ Reply (Doc. 207) at 25:7-9.

7 Plaintiffs thus reason that as a result of those EEOC

8 charges, Bashas’ had “notice of the ‘substantive claims being

9 brought against [it] [and] of the number and generic

10 identities of the potential plaintiffs who may participate in

11 the judgment.’” Id. at 25:9-12 (quoting American Pipe &

12 Construction Co. v. Utah, 414 U.S. 538, 555, 94 S.Ct. 756, 38

13 L.Ed.2d 713 (1974)). Given that purported notice, plaintiffs

14 argue that Ms. Martinez’s failure to exhaust her

15 administrative remedies is not a defense unique to her.

16 Named plaintiff Martinez thus meets Rule 23(a)(3)’s

17 typicality requirement irrespective of her failure to exhaust

18 her administrative remedies, plaintiffs reason.

19

Bashas’ retorts that the other EEOC charges did not

20 provide the requisite notice because those charges “were not

21 detailed, did not give [it] notice of the claims of the other

22

23
proposition that unnamed class members need not file charges for Title VII

24 suits to proceed, see , e.g., Dukes v. Wal-Mart Stores, Inc. , 2002 WL
32769185, at *7 n. 4 (N.D.Cal. Sept. 9, 2002) (“Wal-Mart Stores ”), a close

25 reading of Albemarle reveals that it does not speak direc tly to the issue

squarely before the court now: whether a named plaintiff who has no

t

26

exhausted her representative

administrative remedies under Rule 23(a)(4).

can, nonetheless, be an adequate Rather, footnote 8 answers in the

27

affirmative the issue of whether “ backpay even without exhaustion of administrative

may be awarded on procedures by the

a class basis unnamed class

28

members.” added).

See Albemarle, 422 U.S. at 414 n. 8, 95 S.Ct. 2362 (emphasis

- 38 -

1 class members, and in particular, could not have possibly

2 given [it] notice of Martinez’ claims, because of their

3 uniqueness.” Def.’s Resp. MCC (Doc. 190) at 58, n. 39:26-27

4 (citation omitted). Bashas’ argument lacks both legal and

5 factual support.

6

In arguing that exhaustion of administrative remedies is

7 an essential predicate to serving as a class representative,

8 Bashas’ relies upon this single sentence from Inda v. United

9 Air Lines, Inc., 565 F.2d 554 (9th Cir. 1977):

10

“[I]f one brings suits on his own behalf,

or as a named plaintiff on behalf of a

11

class, he must have secured a right to sue

by timely following the procedures set

12

forth in Title VII.”

13 Id. at 559. Plaintiffs counter that Gibson v. Local 40, 14 Supercargoes & Checkers, 543 F.2d 1259 (9th Cir. 1976),

15 “foreclose[s]” Bashas’ Inda based argument. Pls.’ Reply MCC

16 (Doc. 207) at 24:9. In Gibson, noting that only one

17 plaintiff had filed an EEOC charge, the Ninth Circuit

18 observed, “[t]his does not preclude representation of the

19 class by the other named plaintiffs or relief for the class.”

20 Gibson, 543 F.2d at 1266 n. 13 (emphasis added) (citing

21 Franks v. Bowman Transp. Co., 424 U.S. 747, 771, 96 S.Ct.

22 1251, 1267, 47 L.Ed.2d 444 (1976); Albemarle, 422 U.S. at 414

23 n.8, 95 S.Ct. 2362)).

24

As plaintiffs strongly imply, Inda does not govern here,

25 but, then again, neither does Gibson. Plaintiffs fault 26 Bashas’ for relying upon Inda, which it characterizes as 27 “dictum[,]” and because since 1977, when Inda was decided, 28 “[n]o Ninth Circuit case . . . has read Inda to impose . . .

- 39 -

1 a requirement[]” that each named plaintiff must exhaust their

2 administrative remedies to serve as a class representative.

3 See Pls.’ Reply (Doc. 207) at 24:24-25. Somewhat ironically,

4 plaintiffs’ reliance upon Gibson is misplaced for nearly

5 identical reasons. The portion of Gibson upon which

6 plaintiffs are relying also is dictum. And, in the 37

7 years since Gibson, it has never been read to support the

8 view that a named plaintiff need not exhaust their 9 administrative remedies.24 Thus, there is no credence to

10 plaintiffs’ argument that Gibson “forecloses” Bashas’.

11

Bashas’ reliance upon Inda is equally unavailing. In the

12 past 36 years, the Ninth Circuit has never invoked Inda to

13 require each named plaintiff to individually exhaust their

14 administrative remedies. More importantly,“to the extent

15 [the] language [quoted above] in Inda is not dicta, it has

16 been restricted to its facts where a plaintiff sought to rely

17 on an administrative charge of an individual employee in a

18 separate action, and where the EEOC charge did not give

19 sufficient notice that other similarly-situated persons would

20 also be affected.” E.E.O.C. v. Cal. Psychiatric Transitions,

21 Inc., 644 F.Supp.2d 1249, 1265 n. 11 (E.D.Cal. 2009)

22

24

This is not surprising given the Gibson Court’s reference to

23 Franks and Albemarle . Those two Supreme Court cases considered whether

unnamed plaintiffs can recover under Title VII; bothfound that they could.

24 Albemarle, 422 U.S. at 414 n. 8,

95 S.Ct. 2362 (“reject[ing] th[]e

contention[] . . . that no backpay can be awarded to those unnamed parties

25 in the plaintiff class who have not themselves filed charges with the

EEOC[]”); Franks, 424 U.S. 771, 96 S.Ct. 1251 (unnamed class members who

26 had been d iscriminated against by their employer, but who had not filed

administrative charges with the EEOC, were not precluded from relief in the

27 form of retroactive seniority). Neither of those decisions supports the

view expressed in Gibson , however, and upon which plaintiffs so heavily

28 rely, that an unnamed plaintiff, who has not filed a n EEOC charge, may

serve as class representative.

- 40 -

1 (citations omitted). More recently, citing to those two

2 district court decisions, the Ninth Circuit left no doubt

3 that “Inda should be limited to its specific facts – where a

4 plaintiff sought to rely on an administrative charge . . . of

5 an individual employee in a separate action.” Harris v.

6 County of Orange, 682 F.3d 1126, 1136-1137 (9th Cir. 2012)

7 (citations omitted). That express limitation on Inda

8 eviscerates Bashas’ argument, premised solely on Inda, that

9 Ms. Martinez is not an adequate class representative because

10 she did not exhaust her administrative remedies under Title

11 VII.

12

The Ninth Circuit’s Harris decision has relevancy here

13 beyond rejecting Inda’s restrictive interpretation of the

14 single filing rule. The Harris plaintiffs filed a class

15 action on behalf of thousands of Retirees alleging that the

16 “County’s restructuring of its retiree medical program[,]”

17 violated, inter alia, their constitutional rights and the

18 Fair Employment and Housing Act (“FEHA”). Harris, 682 F.3d

19 at 1130. One of the class representatives had timely filed

20 an administrative charge, but it “did not state that it was

21 ‘on behalf of’ other class members.” Id. at 1131.

22 Therefore, the district court found that the Retirees did not 23 exhaust their administrative remedies under the FEHA.25 On

24 appeal, “[t]he Retirees argue[d] that the single filing rule

25 permit[ted] them to ‘piggyback’ on the timely filed

26 administrative complaint . . . of one of the named

27

28

25

Given the absence of relevan t authority regarding the

applicability of the single filing rule in FEHA actions, the court looked

to Title VII cases, among others. Harris, 682 F.3d at 1136.

- 41 -

1 plaintiffs.” Id. at 1135.

2

Agreeing, the Ninth Circuit reiterated that the “single

3 filing rule is based on the observation that it would be

4 duplicative and wasteful for complainants with similar

5 grievances to have to file identical notices of intent to sue

6 with a governmental agency.” Id. at 1136 (citing Bean v.

7 Crocker Nat’l Bank, 600 F.2d 754, 760 n. 15 (9th Cir. 1979));

8 see also Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095,

9 1110 (10th Cir. 2001) (“The policy behind the single filing

10 rule is that it would be wasteful, if not vain, for numerous

11 employees, all with the same grievance, to have to process

12 many identical complaints with the EEOC.”) Consequently, even

13 though the Harris administrative complaint did not indicate

14 that it was a “class action” or “‘on behalf of others

15 similarly situated[,]’” nonetheless, the Court found it was

16 “sufficient to establish exhaustion of administrative

17 remedies for all class members.” Id. at 1136 and 1137

18 (footnote omitted). That is because the other named

19 plaintiffs, who had not filed administrative complaints were

20 “part of the same action asserted by” the plaintiff who had

21 timely filed such a complaint. Id. at 1137.

22

Here, as fully discussed herein, Ms. Martinez is “part of

23 the same action asserted” by Mr. Estrada who did timely file

24 an EEOC charge. Furthermore, in sharp contrast to the

25 defendant employer in Harris, Bashas’ had explicit, 26 unequivocal notice of the existence of other similarly 27 situated class members, such as Ms. Martinez. Bashas’ had 28 such notice because Mr. Estrada unambiguously declared that

- 42 -

1 he was “bring[ing] this charge on behalf of [him]self and

2 similarly situated Hispanic employees who [sic] [he]

3 believe[s] receive less pay and poorer assignments than

4 American-born, white employees.” Def.’s Resp. MCC (Doc.

5 190), exh. 40 thereto. Not only that, arguably Bashas’ had

6 additional notice because “[a]t least eight class charges of

7 race and national discrimination have been filed against [it]

8 by current proposed plaintiffs and class member witnesses in

9 this action.” Pls.’ Reply to Def.s’ Resp. to Mot. for Leave

10 to File First Amended Complaint (Doc. 103) at 5:10-12. Thus,

11 if, as in Harris, the single filing rule can be applied

12 although the administrative complaint was silent as to

13 whether it was a class action or was being brought on behalf

14 of others similarly situated, surely Ms. Martinez can rely

15 upon that rule given that Mr. Estrada’s EEOC charge was

16 unequivocal and explicit on that point.

17

Wal-Mart Stores, further bolsters a finding that Ms.

18 Martinez may “piggy-back” onto the EEOC charge of Mr.

19 Estrada and others to establish exhaustion of her

20 administrative remedies. There, the plaintiffs sought leave

21 to amend to add two plaintiffs who had never filed EEOC

22 charges. The moving plaintiffs were relying upon the EEOC 23 charge of a named representative who had “filed charges on

24 her own behalf as well as for others similarly situated.” 25 Wal-Mart Stores, 2002 WL 32769185, at *5. Previously, 26 however, that named plaintiff was dismissed for failure to 27 meet Title VII’s venue requirements and she became a putative 28 class member. Among other reasons, including the Supreme

- 43 -

1 Court’s recognition that “EEOC charge-filing requirements are

2 . . . equitable in nature,” and because “notice was afforded

3 to Wal-Mart in accordance with the policy goals of Title

4 VII,” the Wal-Mart Stores court found “that all named

5 plaintiffs in a Title VII class action need not individually

6 exhaust EEOC charge-filing requirements prior to joining a

7 class action.” Id. at *7 (emphasis added). The court

8 further reasoned that “the policy underpinnings of Title VII

9 and the single filing rule set forth in Albermarle – notice

10 to the defendant – is fully satisfied where at least one

11 plaintiff has filed a charge of discrimination alleging broad

12 class claims; and (2) requiring additional identical filing

13 serves no purpose other than to ensure duplicative

14 administrative proceedings.” Id. (citation and footnote

15 omitted). The court thus held that “a proposed named

16 plaintiff may rely on the administrative compliance of

17 otherwise compliant fellow named representatives.” Id.

18

As can be seen, “the analytical touchstone of the single

19 filing rule is whether the company had adequate notice of the

20 grievance to provide a basis for conciliation.” Giumarra

21 Vineyards, 2010 WL 3220387, at *8. “A charge will be

22 adequate to support piggybacking under the single filing rule 23 if it contains sufficient information to notify prospective

24 defendants of their potential liability and permit the EEOC 25 to attempt informal conciliation of the claims before a 26 lawsuit is filed.” Cal. Psychiatric Transitions, 644 27 F.Supp.2d at 1265 (citation omitted). However,“[t]he 28 parties’ claims need not be factually identical to those

- 44 -

1 timely filed, but instead need to be [of] sufficient

2 similarity as to prevent frustration of Title VII policies.”

3 Id. at 1266 (citation omitted). The single filing rule thus

4 intends to “give effect to the remedial purposes of [Title

5 VII] and to not exclude other suitable plaintiffs from [a

6 Title VII] class action simply because they have not

7 performed the useless act of filing a charge.” Giumarra

8 Vineyards, 2010 WL 3220387, at *4 (internal quotation marks

9 and citation omitted).

10

“[L]ook[ing] to the predicate or ‘actually filed’ EEOC

11 charge[]” of Mr. Estrada, id. (footnote and citations

12 omitted), it is apparent that that charge gave Bashas’ the

13 requisite notice. After identifying himself as “Hispanic[,]”

14 Mr. Estrada’s charge informed Bashas’, inter alia, of the

15 nature of his pay claim:

16

While employed by Bashas’, Inc. I

believe that I have been discriminated

17

against based upon my national origin and

race with respect to pay[.]

18 Although the job I perform at Food

19

City is substantially the same job

as the work performed by my counterparts

20

at Bashas’, I am paid less on an hourly

basis than the similarly situated employees

21

at Bashas’. It is my belief and understanding

that most of the employees at Bashas’ are

22

American born and Caucasian. I believe I

am paid less because of my national origin,

23

Mexican, and my race, Hispanic.

24

Def.’s Resp. MCC (Doc. 190), exh. 40. Further, Mr.

25 Estrada explicitly states that he was bringing his EEOC

26 charge “on behalf of [him]self and similarly situated

27 Hispanic employees who[m] [he] believe[s] receive less pay

28 and poorer assignments than American-born, white employees.”

- 45 -

1 Id.

2

Similarly, the FAC alleges that Ms. Martinez, like Mr.

3 Estrada, is a Hispanic hourly Food City employee, who was

4 paid less than her Caucasian counterparts at Bashas’ and

5 A.J.’s. FAC (Doc. 116) at 3, ¶ 8. In light of the

6 foregoing, Bashas’ argument that it lacked notice of Ms.

7 Martinez’s pay claim is wholly unavailing. Further, for

8 substantially the same reasons outlined in section A(3)(a)(i)

9 above, Ms. Martinez’s pay claim is not so unique from those

10 of Mr. Estrada so that it can be said that Bashas’ lacked

11 notice of her pay claim on that basis. Hence, the asserted

12 “uniqueness” of Ms. Martinez’s pay claim does not vitiate

13 that notice.

14

Taking another but equally unpersuasive tack, Bashas’

15 contends that “[i]f Estrada (the only other named Plaintiff

16 now suing on behalf of the class) is dismissed from the case

17 or deemed inappropriate as class representative, Martinez

18 could not take his place.” Def.’s Resp. MCC (Doc. 190) at

19 57:19-21 (citation omitted). Plaintiffs respond that even if

20 Mr. Estrada cannot serve as a class representative, that

21 would not “negate notice.” Pls.’ Reply (Doc. 207) at 25:21-

22 22 (citation omitted). Hence, there is no basis for barring

23 Ms. Martinez from serving as class representative even if,

24 ultimately, Mr. Estrada cannot.

25

Plaintiffs have the sounder argument. In the first

26 place, Bashas’ primary authority, Robinson v. Sheriff of Cook

27 County, 167 F.3d 1155 (7th Cir. 1999), as well as the two

28

- 46 -

1 cases to which it cites,26 are out of Circuit non-binding

2 precedent. Second, all three cases are factually

3 distinguishable, further diminishing their precedential

4 value.27 In Robinson, also a Title VII action, the defendant

5 challenged Mr. Robinson’s suitability as a class

6 representative relying upon evidence of “his very poor

7 employment record[.]” Robinson, 167 F.3d at 1156. On that

8 basis, the district court rejected Robinson as the class

9 representative, but allowed another individual “to join the

10 suit as a plaintiff and take Robinson’s place as class

11 representative.” Robinson, 167 F.3d at 1158; and 1156. When

12 it was later discovered that that second individual had not

13 filed an EEOC charge, the district court dismissed her claim

14 and “disqualified her from serving as Robinson’s successor as

15 class representative. “ Id. at 1156. The district court

16 proceeded with the original named plaintiff’s individual

17

18

26

Wakeen v. Hoffman House, Inc., 724 F.2d 1238 (7th Cir. 1983); and

Griffin v. Dugger, 823 F.2d 1476 (11th Cir. 1987).

19

27

Wakeen involved a very different situation than the present case.

In Wakeen, the Seventh Circuit held “that a class member who does not meet
20 the procedural prerequisites for waging a Title VII suit may not use the

guise of a motion to intervene to take over as

the sole class

21 representative for someone who initiates but is not legitimately able to

continue a class action.” Wakeen, 724 F.2d at 1246. In fact, in Byas v.
22 Union Pacific R.R. Co. , 2007 WL 10 21976 (S.D.Ill. 2007), in a case not

unlike the present one, the court held that “[t]he narrow holding ofWakeen
23 does not apply in the instant case, where there are threenamed plaintiffs,

one of whom has satisfied EEOC filing requirements.” Id. at *3 (emphasis
24 added).

Griffin is likewise readily distinguishable from the present case.
25 There, the Eleventh Circuit held that an intervening plaintiff could not

invoke the single filing rule because he was “not sufficiently similarly
26 situated[]” to the plaintiff who had timely filed an adequate EEOC

complaint. Griffin , 823 F.2d at 1493. As discussed above, plaintiff

27 Martinez’s pay claim is sufficiently similar to plaintiff Estrada’s.

Moreover, unlike in Griffin , plaintiff Martinez is not seeking

28 intervention.

- 47 -

1 claim, dismissing it after a bench trial.

2

On appeal, the plaintiffs argued, inter alia, that the

3 class should have been certified with both of them as “class

4 representatives irrespective of the deficiencies in their

5 claims[.]” Id. at 1157. Affirming denial of the class

6 certification, the Robinson Court found dispositive the fact

7 that because Robinson had been rejected as the class

8 representative, “there was no class action when [the second

9 individual] was added to the suit.” Id. at 1158. Expanding

10 upon that reason, then Chief Judge Posner wrote:

11

There was no class representative who

had dropped the baton for her to pick up;

12

Robinson had never been approved as

the class representative. [The second

13

individual’s] suitability as class

representative had thus to be

14

determined independently of him.

15 Id. Bashas’ asserts that Ms. “Martinez would fail [such] an

16 independent evaluation of her suitability to be class

17 representative and should not be approved as one.” Def.’s

18 Resp. MCC (Doc. 190) at 58:11-12 (footnote omitted).

19

To support this assertion, Bashas’ seizes upon the

20 following language from Robinson:

21

In effect the appeal asks us to graft

[the original class representative’s]

22

timely filing with the EEOC onto

[the successor’s] untimely but not-yet-

23

shown-to-be-unmeritorious discrimination

case to create a composite plaintiff to

24

represent the class of blacks denied

employment by the defendant. We cannot

25

find any basis in law or good sense for

such ghastly surgery. Neither plaintiff

26

is a suitable class representative, and

zero plus zero is zero.

27

28 Id. at 58:2-5 (quoting Robinson, 167 F.3d at 1157) (other

- 48 -

1 citations omitted). Because Robinson is readily

2 distinguishable, it does nothing to advance Bashas’ argument,

3 however.

4

The above quote was made in the context of “a named

5 plaintiff whose claims were particularly deficient-in fact,

6 they had been dismissed-and who was attempting to represent a

7 class of people with potentially plausible claims.” Norris-

8 Wilson v. Delta-T Group, Inc., 270 F.R.D. 596, 605 (S.D.Cal.

9 2010) (emphasis in original). That is not the situation

10 here. There has been no showing at this juncture that Ms.

11 Martinez’s pay claim is “particularly deficient[.]” See id.

12 What is more, Robinson supports the view that “[a] plaintiff

13 should not be disqualified as a class representative simply

14 because the “defendant may have good defenses” against that

15 plaintiff.” Perez v. State Farm Mut. Auto. Ins. Co., 2011 WL

16 8601203, at *2 (N.D.Cal. Dec. 7, 2011) (quoting

17 Norris–Wilson, 270 F.R.D. at 605 (quoting in turn Robinson,

18 167 F.3d at 1158) (emphasis in original). Nor should a named

19 plaintiff be “disqualified as class representative if [s]he

20 may fail to prove h[er] case[.]” Robinson, 167 F.3d at 1158

21 (citation omitted) (emphasis in original). As the Robinson

22 Court made clear, “[o]nly if a plaintiff’s ‘claim is a clear 23 loser at the time [she] asks to be made class representative’

24 should she be disqualified, because in that case, approving 25 her ‘as class representative can only hurt the class.’” 26 Perez, 2011 WL 8601203, at *2 (quoting Robinson, 167 F.3d at 27 1158) (emphasis in original)). There has been no such 28 showing here.

- 49 -

1

Thus, the primary purpose of filing an EEOC charge --

2 notice -- was afforded to Bashas’, even though named

3 plaintiff Martinez did not herself file such a charge. Mr.

4 Estrada’s EEOC charge, and others, “contain[ed] sufficient

5 information to notify [Bashas’] of [its] potential liability

6 and permit the EEOC to attempt informal conciliation of the

7 claims before a lawsuit is filed.” See Cal. Psychiatric

8 Transitions, 644 F.Supp.2d at 1265 (citation omitted).

9 Therefore, because “the purposes behind the filing

10 requirement [we]re satisfied” in this case, “no injustice or

11 contravention of congressional intent occurs by allowing [Ms.

12 Martinez] [to] piggyback[]’” on Mr. Estrada’s charge. See

13 Giumarra Vineyards, 2010 WL 3220387, at *5 (quoting Thiessen,

14 267 F.3d at 1110). In fact, because Mr. Estrada’s EEOC

15 charge and others, see Def.’s Resp. MCC (Doc. 190), exh. 40

16 thereto, gave Bashas’ notice of the pay claim against it, Ms.

17 Martinez was not required to perform the “useless act” of

18 filing her own separate charge. Giumarra Vineyards, 2010 WL

19 3220387, at *4 (“An act of filing an EEOC charge is deemed

20 ‘useless’ in situations in which the employer is already on

21 notice that Plaintiffs may file discrimination claims, thus

22 negating the need for additional filings.”) (internal

23 quotation marks and citation omitted). As discussed above,

24 plaintiff Martinez can avail herself of the single filing

25 rule and piggyback on the EEOC charges of other plaintiffs, 26 such as Mr. Estrada.28

27

28

This does not foreclose the possibility that if, at a later

28 juncture, plaintiff Martinez’s ability to represent the class is “found

wanting, the court may seek a substitute representative or decertify the

class.” See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 416, 100 S.Ct.

- 50 -

1

Accordingly, because plaintiff Martinez’s pay claim is

2 not subject to the defense of failure to exhaust her

3 administrative remedies, that defense “cannot be a reason for

4 finding that the typicality requirement is not satisfied.”

5 See Evon, 688 F.3d at 1030 (because defendant did “not

6 qualify for the bona fide error defense as a matter of law,

7 . . . whether [plaintiff’s] claim is subject to this

8 affirmative defense cannot be a reason for finding that the

9 typicality requirement is not satisfied[]”). For that same

10 reason, there is no “danger that absent class members will

11 suffer” because plaintiff Martinez “is preoccupied with [a]

12 defense[] unique to [her].’” See Ellis I, 657 F.3d at 984

13 (quoting Hanon, 976 F.2d at 508 (other quotation marks and

14 citation omitted). Finally, based upon the rulings herein,

15 there also is no danger that plaintiff Martinez’s failure to

16 exhaust her administrative remedies will “create a

17 distraction that will become a ‘major focus of the

18 litigation.’” See Ellis II, 285 F.R.D. at 534. In short,

19 neither plaintiff Martinez’s pay claim nor her failure to

20 exhaust her administrative remedies are barriers to a finding

21 of typicality. The issue still remains, though, as to

22 whether plaintiffs Estrada and Martinez can meet Rule 23 23(a)(3)’s typicality standard given what Bashas’ describes

24 as the lack of evidence of a shared “common experience[.]” 25 See Def.’s Resp. MCC (Doc. 190) at 45:9. 26 . . .

27

28 1202, 63 L.Ed.2d 479 (1980) (citations omitted) (“If the named plaintiff’s
own claim becomes moot after certification, the court can re-examine his
ability to represent the interest of the class members.”)

- 51 -

1

b. Gonzalo Estrada and Aurliea Martinez

2

Typicality, like commonality, “serve[s] as [a]

3 guidepost[] for determining whether under the particular

4 circumstances maintenance of a class action is economical and

5 whether the named plaintiff’s claim and the class claims are

6 so interrelated that the interests of the class members will

7 be fairly and adequately protected in their absence.” Dukes,

8 131 S.Ct. at 2511, n. 5 (quoting Falcon, 457 U.S. at 157, n.

9 13, 102 S.Ct. 2364). “The test of typicality is whether

10 other members have the same or similar injury, whether the

11 action is based on conduct which is not unique to the named

12 plaintiffs, and whether other class members have been injured

13 by the same course of conduct.” Ellis I, 657 F.3d at 984

14 (internal citation and quotation marks omitted). Put

15 differently, under Rule 23(a)(3)’s “permissive standards,

16 representative claims are ‘typical’ if they are reasonably

17 co-extensive with those of absent class members; they need

18 not be substantially identical.” Hanlon v. Chrysler Corp., 19 150 F.3d 1011, 1026 (9th Cir. 1998).

20

That test for typicality is easily met here, despite

21 Bashas’ contrary protestations. Plaintiff Estrada is a

22 Hispanic former hourly Food City employee, and plaintiff 23 Martinez is a Hispanic current Food City hourly employee.29

24

29

Ms. Martinez’s declaration is from 2004. Not having been advised

25 to the contrary, the court presumes she is still a Food City employee. At

the same time, however, t he court is well aware that “[c]lass
26 certification is not immutable, and class representative status could be

withdrawn or modified if at any time the representatives could no longer

27 protect the interests of the class.” Cummings v. Connell, 316 F.3d 886, 896

(9th Cir. 2003) (citation omitted); see also Lopez v. San Francisco Unified

28 School District, 2003 WL 26114018, at *2 (N.D.Cal. Sept.8, 2003) (citation

omitted) (“[T]he Court has a duty throughout the litigation to stringently

examine the adequacy of class representatives.”)

- 52 -

1 Both allege that they were paid less than their Caucasian

2 counterparts at A.J.’s and Bashas’ for performing the same

3 work. See FAC (Doc. 116) at ¶ 8; and Def.’s Resp. MCC (Doc.

4 190), exh. 40 (Estrada EEOC charge) thereto. The putative

5 class, comprised of “all past, present and future Latino

6 employees of” defendant alleges that same, identical injury.

7 See FAC (Doc. 116) at 3:19-20, ¶ 10. Further, as discussed

8 with respect to commonality, this lawsuit is “based on

9 conduct which is not unique to the named plaintiffs” –

10 Bashas’ wage scales. See Ellis I, 657 F.3d at 984 (internal

11 quotation marks and citation omitted). Lastly, “other class

12 members have been injured by” those wage scales because, as

13 Bashas’ conceded, under its wage scales “Hispanic employee 14 hourly rates were lower in similar jobs[,]”30 at least “during

15 the period 1998-2000[.]” See Parra II, 536 F.3d at 979.

16 Thus, as just shown, Bashas’ contention that the alleged

17 discrimination has not “‘manifested itself . . . in the same

18 general fashion[]’” borders on the frivolous insofar as the

19 equal pay claim is concerned. See Def.’s Resp. MCC (Doc.

20 190) at 45:9; and 45:26-27 (quoting Falcon, 457 U.S. at 159

21 n. 15, 102 S.Ct. 2364) (emphasis added by Bashas’).

22

An additional basis for finding typicality in this action

23 is that the named plaintiffs’ pay claims “rest on legal 24 theories that apply to all putative class members.” See Wood

25

26

30

As previously discussed, this is one of three concessions which

27 the Ninth Circuit found highly pertinent with respect to commonality.

However, because Rule 23(a)’s commonality and typicality requirement s

28 “‘tend to merge[,]’” Dukes, 131 S.Ct. at 2551 (quoting Falcon, 457 U.S. at

157 n. 13, 102 S.Ct. 2364)), this concession also hea vily bears on the

typicality inquiry.

- 53 -

1 V. Betlach, 286 F.R.D. 444, 448 (D.Ariz. 2012) (citing Cohen 2 v. Chicago Title Ins. Co., 242 F.R.D. 295, 299 (E.D.Pa. 2007) 3 (“[E]ven relatively pronounced factual differences will 4 generally not preclude a finding of typicality where there is 5 a strong similarity of legal theories.’”) (citation omitted); 6 Mitchell–Tracey v. United Gen. Title Ins. Co., 237 F.R.D. 7 551, 558 (D.Md. 2006) (“‘[W]hile claims of particular 8 individuals may vary in detail from one to another, the 9 collective claims focus on particular policies applicable to 10 each class member thereby satisfying the typicality 11 requirement of Rule 23(a).’”) (other citation and footnote 12 omitted). Because the named plaintiffs’ pay claims rest on 13 the same legal theories, and because those claims are 14 reasonably co-extensive with the absent class members, they 15 have cleared the typicality hurdle. See Gong-Chun v. Aetna 16 Inc., 2012 WL 2872788, at *8 (E.D.Cal. July 12, 2012) 17 (typicality shown where “Plaintiffs’ claims are ‘co18 extensive’ with the other Class Members, as Plaintiffs and 19 the absent Class Members were all Defendants' employees who 20 were paid under the same pay practices and worked under the 21 same company-wide employment policies[]”); see also Marin v. 22 Evans, 2008 WL 2937424, at *4 (E.D. Wash. July 23, 2008) 23 (finding typicality where the “named Plaintiffs were 24 employees of [defendant company], and their claim is that 25 they were allegedly injured by the Illegal Hiring Scheme by 26 reduction in pay, which is typical of the claims that would 27 be asserted by all members of the purported class[]”). 28 . . .
- 54 -

1

4. Adequacy

2

The last Rule 23(a) hurdle plaintiffs must clear is

3 subsection four, which provides that “the representative

4 parties will fairly and adequately protect the interests of

5 the class.”31 Fed.R.Civ.P. 23(a)(4). This requirement

6 “satisf[ies] due process concerns[]” in that “absent class

7 members must be afforded adequate representation before entry

8 of a judgment which binds them.” Hanlon, 150 F.3d at 1020

9 (citing Hansberry v. Lee, 311 U.S. 32, 42-43, 61 S.Ct. 115,

10 85 L.Ed. 22 (1940)). The adequacy-of-representation

11 requirement “also raises concerns about the competency of

12 class counsel and conflicts of interest.” See Dukes, 131

13 S.Ct. at 2551 n. 5 (citation and internal quotation marks

14 omitted). Therefore, “[a]dequate representation depends on,

15 among other factors, an absence of antagonism between

16 representatives and absentees, and a sharing of interest

17 between representatives and absentees.” Ellis I, 657 F.3d at

18 985 (citation omitted). Consequently, “[t]o determine

19 whether named plaintiffs will adequately represent a class,

20 courts must resolve two questions: ‘(1) do the named

21 plaintiffs and their counsel have any conflicts of interest

22 with other class members and (2) will the named plaintiffs

23 and their counsel prosecute the action vigorously on behalf

24

25

31

“Since the revision of Rule 23 in December 2003, the adequacy of

class counsel is now evaluated pursuant to Rule 23(g). ‘Rule 23(a)(4) will

26 continue to call for scrutiny of the proposed class representative, while

this subdivision will guide the court in assessing proposed class counsel

27 as part of the class certification process.’” Parra I, 2005 WL 6182338, at

*18 n. 33 (quoting Fed.R.Civ.P. 23 Advisory Committee note).

28

- 55 -

1 of the class?’” Id. (quoting Hanlon, 150 F.3d at 1020).

2 Here, as explained below, the court answers the first

3 question in the negative, and the second, in the affirmative.

4 As a result, it finds that named plaintiffs Estrada and

5 Martinez are adequate class representatives with respect to

6 the pay claim.

7

Plaintiffs Estrada and Martinez maintain that they are

8 adequate class representatives because they are “able and

9 willing to represent the class[,]” and they have the “same”

10 interests as those of the potential class members in that

11 they are seeking to prove, inter alia, that Bashas’ “pay

12 policies . . . discriminate against Hispanic[] workers.”

13 Pls.’ MCC (Doc. 159) at 22:10-13 (citations and footnote

14 omitted). Essentially, Bashas’ counters that the named

15 plaintiffs do not have the same interests as the putative

16 class because they are “puppets” of the United Food and

17 Commercial Workers Union (“the Union”), having “private

18 ulterior motives[.]” Def.’s Resp. MCC (Doc. 190) at 48:1-2l;

19 47:7 (emphasis omitted).

20

This ulterior motives argument can be resolved with

21 dispatch because this court already addressed it in Parra I,

22 albeit in the context of the working conditions claim. The 23 differing nature of the claim does not change the result

24 though. The record is the same; the arguments are the same; 25 and the court’s view is the same. It is “not convinced that 26 the named plaintiffs are inadequate due to [Bashas’] 27 allegations of ulterior motives.” Parra I, 2005 6182338, at 28 *18. It is necessary, though, to address Bashas’ remaining

- 56 -

1 challenges, not specifically addressed in Parra I, as to the

2 adequacy of named plaintiffs Estrada and Martinez to serve as

3 class representatives.

4

a. Gonzalo Estrada

5

i. “Individual Claim”

6

Bashas’ claims that plaintiff Estrada is not an adequate

7 class representative because he has “no individual claim fit

8 to pursue[.] Def.’s Resp. MCC (Doc. 190) at 56:6. This

9 court’s finding in Parra I that plaintiff Estrada

10 “articulated [a] claim for pay disparity” undercuts that

11 assertion. See Parra I, 2005 WL 6182338, at *17.

12

There is likewise no merit to Bashas’ claim that Mr.

13 Estrada is not an adequate class representative because “he

14 is involved in this suit, not for what happened to him, but

15 for what happened to others.” Def.’s Resp. MCC (Doc. 190) at

16 54:10-11. The basis for this assertion is the following

17 snippet from Mr. Estrada’s deposition:

18

Q. And in this lawsuit you’re not

involved in it because of what

19

happened to you?

20

A. No.

21

Q. You’re standing up for other employees?

22

A. Yes.

23 Id. at 54:12-16 (citing exh. 11 thereto 54:4-8) (footnote

24 omitted). If anything, it strikes the court that a

25 willingness to “stand[] up for other employees” is further

26 indicia that plaintiff Estrada is a proper class

27 representative. See id. This is especially so given that Mr. 28 Estrada, like Ms. Martinez, has declared his “ability and

- 57 -

1 willingness to represent the class.” See Parra I, 2005 WL

2 6182338, at *18 (citations omitted). Taking the record as a

3 whole, the court finds unconvincing Bashas’ argument that

4 plaintiff Estrada is not an adequate class representative

5 because he is not asserting an individual claim.

6

ii. Former Employee

7

Bashas’ also endeavors to show that Mr. Estrada and the

8 potential class members do not have a shared interest because

9 he is a former Food City employee whose circumstances are

10 “vastly different” than those of the putative class. Def.’s

11 Resp. MCC (Doc. 190) at 54:27, n. 38. One such difference is 12 Mr. Estrada’s lack of “interest in returning to Food City,”32

13 which Bashas’ argues renders “moot . . . the issue of

14 injunctive relief[.]” Id. Disregarding the nature of the

15 relief sought, plaintiffs respond that “[f]ormer employees may

16 represent current employees in a class action[.]” Pls.’ Reply

17 (Doc. 207) at 24:1 (citations omitted).

18

These arguments are imported directly from the 2004 class

19 certification motion.33 Both the law, and the plaintiffs’

20

32

To support this assertion, Bashas’ is relyin g upon an excerpt

21 from Mr. Estrada’s deposition. See Def.’s Resp. MCC (Doc. 190) at 54:26

(citing “Estrada Depo p. 44 ll. 10-12"). There is no reason to doubt the
22 veracity of that statement. At the same time though, there is no way to

ascertain its accuracy because the excerpts provided in connection with the
23 supplemental briefs did not include that page. That is also the case for

the remaining excerpts from Mr. Estrada’s deposition which Bashas’ cites in
24 footnote 38 of its response to the motion for class certification. Such

inadvertent omissions are always bothersome, but they were all the more so
25 here where the combined briefs and record are in the range of 3,000 pages.

26

33

Devoting its post-Dukes briefs exclusively to commonality and

27 typicality, Bashas’ omitted any discussion of adequacy. In their post-

Dukes supplemental brief, plaintiffs direct the court to their “original

28 briefing” as to adequacy, among other things. See Pls.’ Supp. Br. (Doc.

302) at 19:25-26. Therefore, because on remand this court must consider

whether each of the threshold Rule 23(a ) requirements is met as to the

- 58 -

1 position along with it, have changed since that time however.

2 In 2004, plaintiffs were relying upon Rule 23(b)(2)34 as the

3 basis for class certification of both the equal pay and

4 working conditions claims. In fact, in Parra I, this court

5 certified a class under that Rule only as to working

6 conditions. In the intervening years, in Dukes the Supreme

7 Court unanimously held that “individualized monetary claims 8 belong in Rule 23(b)(3)”35 – not in Rule 23(b)(2). See

9 Dukes, 131 S.Ct. at 2558. Consequently, in light of Dukes,

10 now plaintiffs are seeking class certification of the equal

11 pay claim strictly on the basis of Rule 23(b)(3).

12

That shift takes the issue of injunctive relief

13

14 equal pay claim, necessarily it hasresorted to the parties’ original, pre-

15 Dukes’ arguments.

16

34

That Rule provides:

17

A class action may be maintained if Rule 23(a) is satisfied and if: . . .

18

the party opposing the class has acted

19

or refused to act on grounds that apply generally to the class, so that final

injunctive relief or corresponding

20

declaratory relief is appropriate respecting

the class as a whole[.]
21

Fed.R.Civ.P. 23(b)(2).
22

35

In relevant part, that Rule reads as follows:

23

A class action may be maintained if

24

Rule 23(a) is satisfied and if:

25

the court finds that the questions

of law or fact common to class members

26

predominate over any questions

affecting only individual members, and

27

that a class action is superior to

other available methods for fairly

28

and efficiently adjudicating the controversy.

Fed.R.Civ.P. 23(b)(3).

- 59 -

1 completely out of the equation insofar as the pay claim is

2 concerned. Not only that, if ultimately plaintiffs were to

3 prevail on their pay claim, Mr. Estrada, as well as other

4 putative class members (current and former hourly Food City

5 employees), would be entitled to recover monetary damages,

6 despite the fact they are no longer employed there. See

7 Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81, 87

8 (S.D.N.Y. 2001) (in analyzing adequacy, finding that

9 “[b]ecause this is a suit primarily for money damages stemming

10 from past actions, it is not relevant that only one of the

11 named Plaintiffs is still employed as a delivery person[]”).

12 The Supreme Court in Dukes recognized as much, stressing that

13 “if a backpay action were properly certified for class

14 treatment under (b)(3), the ability to litigate a plaintiff’s

15 backpay claim as part of the class would not turn on the

16 irrelevant question whether []he is still employed at [the

17 defendant store].” Dukes, 131 S.Ct. at 2560 (emphasis in

18 original). Thus, plaintiff Estrada’s former employee status

19 does not weaken a finding that he is an adequate class

20 representative insofar as the plaintiffs are seeking monetary 21 damages for their equal pay claim.36

22

The same is true with respect to Bashas’ litany of the

23

24

36

By curtailing the relief which they are seeking as to their pay

claim, plaintiffs have negated altogether Bashas’ argument that as a former
25 employee Mr. Estrada is an inadequate class representative because he lacks

a shared interest with the class as to injunctive relief. If plaintiffs

26 were still seeking such relief, the result would be different, seeEllis I,

657 F.3d at 986 (vacating district court’s finding that the former

27 employees could adequately represent that class because they had “n

o

incentive to pursue injunctive relief[,]” and hence they did not “share an

28 interest with class members whose primary goal [wa]s to obtain injunctive

relief[]” under Rule 23(b)(2)), but the fact remains that they are not.

Plaintiffs’ equal pay claim seeks only monetary damages.

- 60 -

1 other “vastly different circumstances” which allegedly are

2 indicative of a conflict of interest, such that Mr. Estrada

3 would not adequately represent the class. See Def.’s Resp.

4 MCC (Doc. 190) at 54, n. 38. Bashas’ does not explain, and

5 the court fails to see how, Estrada’s termination, his

6 supposed lack of interest in working at A.J.’s or Bashas’, or,

7 in the grocery industry generally, and his doubling in pay,37

8 render him an inadequate class representative. Moreover,

9 plaintiff Estrada is seeking the same relief as the putative

10 class – monetary damages. His claimed injury also is the same

11 as the putative class – as a Hispanic Food City hourly

12 employee, allegedly he received less pay than his Caucasian

13 counterparts at A.J.’s and Bashas’. Consequently, not only is

14 there a “sharing of interest” between plaintiff Estrada and

15 the potential class members, but there is an “absence of

16 antagonism between” them. See Ellis I, 657 F.3d at 985

17 (citation omitted). Accordingly, plaintiff Estrada is an

18 adequate class representative pursuant to Rule 23(a)(4),

19 insofar as the pay claim is concerned.

20 . . . 21

b. Aurelia Martinez

22

37

Observing that plaintiff Estrada’s pay “nearly doubled,” Bashas’

23 strongly implies that that factor militates against a findingthat he is an

adequate representative. See Def.’s Resp. MCC (Doc. 190) at 54:24, n. 38

24 (citing “Estrada Depo p. 7 l.21 - p.

8 ll.14"). This is one of the

deposition excerpts, mentioned earlier, which was not provided to the

25 court. In this instance, however, based upon Mr. Estrada’s declaration,

the court was able to easily corroborate that his pay did nearly double

26 during his tenure at Food City. See Estrada Decl’n (Doc. 176) at 3:7-14,

¶ 8. At the end of the day that is immaterial though if, as plaintiffs

27 allege, Mr. Es trada’s Caucasian counterparts at Bashas’ and A.J.’s were

paid more for doing the same or similar work. Therefore, this asser ted

28 doubling of pay does not mean that Estrada would b e an inadequate class
representative.

- 61 -

1

Bashas’ advances two other equally unpersuasive theories

2 as to why Ms. Martinez in particular is not an adequate class

3 representative. The first is that allegedly her claims are

4 weak, and the second is her credibility.

5

i. Strength of Claims

6

Bashas’ disputes the legitimacy and sufficiency of Ms.

7 Martinez’s claims because in June 1999, when she and her

8 husband filed for bankruptcy, she did not list her potential

9 claims in this lawsuit as a contingent and unliquidated claim

10 on their Schedule B form. Ms. Martinez signed the declaration

11 accompanying that Schedule under penalty of perjury. See

12 Def.’s Resp. MCC (Doc. 190) at 62:9-10. Further, between

13 October, 2002, when Ms. Martinez and her husband were

14 discharged in bankruptcy, and the April 4, 2002, commencement

15 of this action, Bashas’ points out that Ms. Martinez did not

16 amend Schedule B to include any potential claims herein.

17 These omissions, Bashas’ contends, “suggest[] either that (1) 18 [Ms. Martinez] has no legitimate claims, or (2) she knew that

19 any potential claim had no value.” Id. at 61:15-16; 62:18-20.

20 The court declines to make either inferential leap, especially

21 when there is no factual or legal basis for so doing.

22

Ms. Martinez did not become a named plaintiff until more

23 than four and a half years after she and her husband filed for

24 bankruptcy. Therefore, the court agrees with plaintiffs that

25 it is not surprising that Ms. Martinez did not mention this

26 lawsuit during the bankruptcy. Furthermore, during the six

27 month overlap of the pendency of this action and the Martinez

28 bankruptcy, Ms. Martinez’s involvement in this action was

peripheral. She was simply a member of a proposed, but

- 62 -

1 uncertified, class. Until a decision on class certification,

2 including the scope of the class, Ms. Martinez had no way of

3 knowing whether she would actually become a class member. In

4 fact, the possibility of Ms. Martinez becoming a named

5 plaintiff did not occur until December 4, 2003, more than a

6 year after the bankruptcy discharge, upon the filing of a

7 motion to amend the complaint to include Ms. Martinez as a

8 named plaintiff. And, it was not until March 11, 2004, that

9 the FAC, adding Ms. Martinez as a named plaintiff, actually

10 was filed. This particular factual situation does not give

11 this court any reason to doubt the adequacy of Ms. Martinez as

12 a class representative.

13

Continuing to question the strength of Ms. Martinez’s

14 claims, because she did not disclose them during her

15 bankruptcy, Bashas’ argues that such “[w]eakness or

16 illegitimacy in a proposed class representative’s case is an

17 “‘independent reason to doubt the adequacy of [her]

18 representation.’” Def.’s Resp. MCC (Doc. 190) at 63:7-8

19 (quoting Robinson, 167 F.3d at 1157) (other citations

20 omitted). This argument is unpersuasive.

21

In the first place, this court agrees that “[t]he

22 adequacy prong of Rule 23(a) isn't the place to try to 23 litigate the merits of a case.” Norris-Wilson, 270 F.R.D. at

24 605-06. “In fact, ‘nothing in either the language or history 25 of Rule 23 . . . gives a court any authority to conduct a 26 preliminary inquiry into the merits of a suit in order to 27 determine whether it may be maintained as a class action.’”

28

- 63 -

1 Id. (quoting United Steel Workers, 593 F.3d at 808

2 (alterations in original) (other citations omitted).

3

Second, Bashas’ main authority, Robinson, is non-binding

4 Seventh Circuit precedent and distinguishable in one very

5 critical respect. There, a correction officer applicant

6 brought a Title VII putative class action. Challenging that

7 applicant’s adequacy as a class representative, the defendant

8 employer came forth with evidence showing that that applicant

9 “had been turned down because of his very poor employment

10 record, which among other things contained an unexplained 27-

11 month gap between jobs.” Robinson, 163 F.3d at 1156. Due to

12 that employment history, the district court denied class

13 representative status to that applicant. Holding, inter alia,

14 that class certification was properly denied, the Robinson

15 Court reasoned:

16

[I]f when class certification is

sought it is already apparent --

17

as it was here because of Robinson’s

employment history as shown on the

18

application that he submitted to

the Sheriff’s office -- that the class

19

representative’s claim is extremely

weak, this is an independent reason to

20

doubt the adequacy of his representation.

21 Id. at 1157 (citations omitted). The Court further reasoned,

22 that if a named plaintiff’s “claim is a clear loser at the 23 time he asks to be made class representative, then approving

24 him as a class representative can only hurt the class.” Id.

25 at 1158 (emphasis in original).

26

In sharp contrast to Robinson, the asserted weakness in

27 Ms. Martinez’s claims –- her failure to disclose them during

28 bankruptcy -- has nothing whatsoever to do with the merits.

- 64 -

1 According to Bashas’, Ms. Martinez’s claims herein are weak

2 because she did not disclose them during bankruptcy. Bashas’

3 does not assert, and it would be hard-pressed to, that Ms.

4 Martinez’s pay claim is “extremely weak,” much less a “clear

5 loser” on the merits. Thus, Ms. Martinez’s failure to

6 disclose her potential claims is not “an independent reason to

7 doubt the adequacy of her representation.” See Robinson, 167

8 F.3d at 1156 (citations omitted).

9

ii. Credibility

10

Emphasizing that Ms. Martinez signed the declaration

11 accompanying the Schedule B Form under penalty of perjury,

12 Bashas’ strongly implies that Ms. Martinez has credibility

13 issues which impact her adequacy as a class representative.

14 “[C]redibility is a relevant consideration with respect to the

15 adequacy analysis[.]” Keegan, 2012 WL 2250040, at *14

16 (internal quotation marks and citations omitted). At the same

17 time, however, “credibility problems must relate to issues

18 directly relevant to the litigation or there are confirmed

19 examples of dishonesty, such as a criminal conviction for

20 fraud.” Id. (internal quotation marks and citations omitted).

21 Thus, even if the court were to find, which it does not, that

22 Ms. Martinez’s credibility is at issue because she did not 23 disclose this lawsuit during bankruptcy, such credibility

24 issue would not impact her ability to serve as a class

25 representative.

26

To this point, the focus has been upon the first prong of

27 adequacy – the absence of antagonism and sharing of interests

28 between the named plaintiffs and the absentee class members.

- 65 -

1 As the foregoing discussion shows, there has been no showing

2 that either plaintiffs Estrada or Martinez have any conflicts

3 with putative class members. That is only the first prong of

4 the adequacy test, however. As to the second, “will the named

5 plaintiffs and their counsel prosecute the action vigorously

6 on behalf of the class[,]” Ellis I, 657 F.3d at 985 (internal

7 quotation marks and citation omitted), in Parra I this court

8 found that they would by implication. See Parra I, 2005 WL

9 6182338, at *20 - *22. To be sure, at that time, the court

10 was discussing appointment of class counsel pursuant to

11 Fed.R.Civ.P. 23(g), and not adequacy under Rule 23(a)(4).

12 There is no reason to revisit the issue of whether class

13 counsel will vigorously prosecute this action, however,

14 because Bashas’ has not raised any other issues in that regard

15 beyond those raised and resolved in Parra I.

16

Additionally, “[i]n assessing whether class

17 representatives and their counsel will vigorously prosecute a

18 class action litigation, courts may consider the actual

19 progress of the proceedings to that point.” Buckland v. Maxim

20 Healthcare Services, Inc., 2012 WL 3705263, at *6 (C.D.Cal.

21 Aug. 27, 2012) (internal quotation marks and citation

22 omitted). Although this action has not progressed beyond the 23 class certification stage, it is not due to the failure of

24 plaintiffs’ counsel to vigorously prosecute this action. In 25 fact, their continued involvement at every step of this rather 26 complicated and protracted litigation, makes it abundantly 27 clear that despite the passage of time, they remain willing 28 and able to vigorously prosecute this action.

- 66 -

1 In short, as with the other Rule 23(a) requirements, the court

2 finds that the adequacy requirement has been satisfied.

3 Having shown that all four elements of Rule 23(a) are met as

4 to the pay claim, the next issue is whether this action

5 “fit[s] into one of the three categories described in

6 subdivision (b)[]” of Rule 23. Shady Grove Orthopedic

7 Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 130 S.Ct.

8 1431, 1437, 176 L.Ed.2d 311 (2010) (internal quotation marks

9 omitted)).

10

B. Fed.R.Civ.P. 23(b)(3)

11

As previously discussed, after Dukes, plaintiffs are

12 seeking class certification of their pay claim solely pursuant

13 to Rule 23(b)(3). That Rule, “as an adventuresome innovation,

14 is designed for situations in which class-action treatment is

15 not as clearly called for.” Comcast, 133 S.Ct. at 1432

16 (internal quotation marks and citations omitted). “That

17 explains Congress’s addition of procedural safeguards for

18 (b)(3) class members beyond those provided for (b)(1) or

19 (b)(2) class members (e.g., an opportunity to opt out), and

20 the court’s duty to take a “‘close look’” at whether common

21 questions predominate over individual ones.” Id. (quoting

22 Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct. 23 2231, 138 L.Ed.2d 689 (1997)).

24

Certification pursuant to Rule 23(b)(3) “is appropriate

25 ‘whenever the actual interests of the parties can be served

26 best by settling their differences in a single action.’”

27 Hanlon, 150 F.3d at 1022 (quoting 7A Charles Alan Wright,

28 Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure

- 67 -

1 § 1777 (2d ed.1986) (“Wright & Miller”). The “only

2 prerequisites” for certification under Rule 23(b)(3) “are that

3 ‘the questions of law or fact common to class members

4 predominate over any questions affecting only individual class

5 members, and that a class action is superior to other

6 available methods for fairly and efficiently adjudicating the

7 controversy.’” Dukes, 131 S.Ct. at 2558 (quoting

8 Fed.R.Civ.P.23(b)(3)). The questions of predominance and

9 superiority “are interrelated because ‘[i]mplicit in the

10 satisfaction of the predominance test is the notion that the

11 adjudication of common issues will help achieve judicial

12 economy.’” York v. Starbucks Corp., 2011 WL 8199987, at *31

13 (C.D.Cal. Nov. 23, 2011) (quoting, inter alia, Valentino v. 14 Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996)).

15

1. Predominance

16

“[T]here is substantial overlap between” the test for

17 commonality under Rule 23(a)(2) and the predominance test

18 under 23(b)(3). Wollin v. Jaguar Land Rover North America 19 LLC, 617 F.3d 1168, 1172 (9th Cir. 2010). However, “[i]f

20 anything, Rule 23(b)(3)’s predominance criterion is even more

21 demanding than Rule 23(a).” Comcast, 133 S.Ct. at 1432

22 (citing Amchem, 521 U.S. 591, 623-24, 117 S.Ct. 2231).

23 Consequently, “the presence of commonality alone is not

24 sufficient to fulfill Rule 23(b)(3).” Hanlon, 150 F.3d at

25 1022. The predominance inquiry “trains on legal or factual 26 questions that qualify each class member’s case as a genuine 27 controversy.” Amchem, 521 U.S. at 625, 117 S.Ct. 2231. In 28 contrast to Rule 23(a)(2), “[t]he predominance analysis under

- 68 -

1 Rule 23(b)(3) focuses on the relationship between the common

2 and individual issues in the case and tests whether proposed

3 classes are sufficiently cohesive to warrant adjudication by

4 representation.” Wang, 709 F.3d at 835 (internal quotation

5 marks and citation omitted). As the Supreme Court recently

6 emphasized in Amgen, “Rule 23(b)(3) requires a showing that

7 questions common to the class predominate, not that those

8 questions will be answered, on the merits, in favor of the

9 class.” Amgen, 133 S.Ct. at 1191 (emphasis in original).

10 Hence, “the office of a Rule 23(b)(3) certification ruling is

11 not to adjudicate the case; rather, it is to select the

12 metho[d] best suited to adjudication of the controversy fairly

13 and efficiently.” Id. (internal quotation marks omitted).

14

The Ninth Circuit recognizes that “‘there is clear

15 justification for handling the dispute on a representative

16 rather than an individual basis’ if ‘common questions present

17 a significant aspect of the case and they can be resolved for

18 all members of the class in a single adjudication[.]’” Mazza,

19 666 F.3d at 589 (quoting, inter alia, Hanlon, 150 F.3d at

20 1022). In contrast, “‘if the main issues in a case require

21 the separate adjudication of each class member’s individual

22 claim or defense, . . . , a Rule 23(b)(3) action would be

23 inappropriate.’” Keegan, 284 F.R.D. at 256 (quoting, inter

24 alia, Zinser v. Accufix Research Institute, Inc., 253 F.3d 25 1180, 1186 (9th Cir.), amended by 273 F.3d 1266 (9th Cir. 26 2001)). “This is because, inter alia, the economy and 27 efficiency of class action treatment are lost and the need for 28 judicial supervision and the risk of confusion are

- 69 -

1 magnified.’” Id. (quoting Zinser, 253 F.3d at 1186). “Courts

2 must thus separate the issues subject to ‘generalized proof’

3 from those subject to ‘individualized proof’ to determine

4 whether plaintiffs have satisfied the predominance

5 requirement.” Ellis II, 285 F.R.D. at 537 (citation omitted).

6

The predominance analysis “‘begins . . . with the

7 elements of the underlying cause of action.’” Stearns, 655

8 F.3d at 1020 (quoting Erica P. John Fund, Inc., v. Halliburton

9 Co., 563 U.S. ––––, ––––, 131 S.Ct. 2179, 2184, 180 L.Ed.2d 24

10 (2011)). Here, plaintiffs are alleging that “Bashas’ two-

11 tiered wage policy constitutes disparate treatment and/or has

12 had a disparate impact on Hispanic Food City workers in

13 violation of Title VII and Section 1981.” Pls.’ Supp. Br.

14 (Doc. 302) at 21:3-5. Resolution of that “central liability

15 issue[] . . . involves no individual questions[,]” plaintiffs

16 argue. Id. at 21:2-3; 21:5 (emphasis in original).

17 Plaintiffs further argue that the “only individual

18 determination to be made” –- the amount of back pay –- “does

19 not defeat class certification.” Id. at 21:6; 22:1 (citing

20 Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1089 21 (9th Cir. 2010)). And, as plaintiffs are quick to point out,

22 the Ninth Circuit in Parra II rejected Bashas’ argument that

23 “[t]he claimed difficulties in the calculations of damages, as

24 they affected the various class members . . . preclude[d]

25 class certification.” Parra II, 536 F.3d at 979. What is 26 more, just recently, the Ninth Circuit reaffirmed its long27 held view that “‘[t]he amount of damages is invariably an 28 individual question and does not defeat

- 70 -

1 class action treatment.’” Leyva v. Medline Industries Inc.,

2 2013 WL 2306567, at *3 (9th Cir. May 28, 2013) (quoting

3 Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975) (other

4 citation omitted).

5

Perhaps because the Supreme Court in Dukes clarified that

6 “individualized monetary claims[,]” such as plaintiffs’ back

7 pay claims herein, “belong in Rule 23(b)(3)[,]” Dukes, 131

8 S.Ct. at 2558, Bashas’ agrees that individual damage issues

9 alone do not defeat class certification under that Rule. See

10 Stearns, 655 F.3d at 1026 (citing Yokoyama, 594 F.3d at 1094)

11 (“We have held that the mere fact that there might be

12 differences in damage calculations is not sufficient to defeat

13 class certification.”) Nonetheless, Bashas’ insists that

14 plaintiffs have not established predominance because

15 “[q]uestions regarding liability would require . . . highly

16 fact-specific inquiries regarding whether or not the

17 Plaintiffs’ alleged discriminatory pay . . . w[as] the result

18 of discrimination or some other, non-discriminatory factor.”

19 Def.’s Supp. Br. (Doc. 301) at 19:26-20:1. This argument is

20 based upon two faulty assumptions – one pertaining to the

21 nature of plaintiffs’ pay claim and the other to the proof in

22 that regard.

23

Although plaintiffs have explicitly renounced their

24 Subjective Placement claim, Bashas’ still insists that

25 plaintiffs’ pay claim involves “subjective decision-making[]” 26 where “individual store managers, acting at their own 27 discretion, decided where to place employees on the wage 28 scale.” Def.’s Resp. (Doc. 304) at 7:19 (citations omitted);

- 71 -

1 6:22-23 (emphasis added). From Bashas’ standpoint, the

2 exercise of that discretion “set the employees’ wage history

3 in motion, and it is a key issue in this case.” Id. at 6:23-

4 25. Characterizing plaintiffs’ pay claim in that way, Bashas’

5 posits that defending such a claim would involve assessing

6 “numerous . . . subjective decisions regarding placement of

7 members, in the proposed class, on the pay scales.” Id. at

8 8:13-15. Such an assessment is incompatible with a finding of

9 predominance in Bashas’ view.

10

Perhaps Bashas’ argument would have some validity if

11 plaintiffs were still pursuing their Subjective Placement

12 claim, but they are not. At the risk of repetition,

13 plaintiffs’ pay claim is based strictly on Bashas’ wage

14 scales, and is independent of their foregone Subjective

15 Placement claim. Thus, the ostensibly individualized nature

16 of that Subjective Placement claim is not germane to the issue

17 of whether common issues predominate with respect to

18 plaintiffs’ pay claim, predicated solely upon Bashas’ wage

19 scales.

20

The second faulty assumption under which Bashas’ is

21 operating is that “[p]laintiffs have not produced any actual 22 evidence that Bashas’ operated under a single, common policy 23 of discrimination.” Def.’s Supp. Br. (Doc. 301) at 20:2-3.

24 As discussed with respect to commonality, plaintiffs have 25 identified a specific employment policy, i.e., Bashas’ wage 26 scales, which have caused a pay disparity. See Ellis II, 285 27 F.R.D. at 538 (finding predominance where “[p]laintiffs . . . 28 presented significant proof that Costco operates under a

- 72 -

1 common, nationwide promotion system for [certain] positions

2 and have identified specific employment practices that have

3 caused a disparity in promotions[]”). Further, because

4 plaintiffs contend that Bashas’ wage scales are

5 “discriminatory, both under a disparate treatment and a

6 disparate impact theory[,] . . . [r]esolution of Plaintiffs’

7 challenge to those [wage scales] will resolve significant

8 issues with respect to the class as a whole and this dwarfs

9 the individualized issues[.]” See id. (citing Stinson v. City

10 of New York, 282 F.R.D. 360, 382 (S.D.N.Y. 2012) (“‘Class-wide

11 issues predominate if resolution of some of the legal or

12 factual questions that qualify each class member’s case as a

13 genuine controversy can be achieved through generalized proof,

14 and if these particular issues are more substantial than the

15 issues subject only to individualized proof.’”) (quoting Moore

16 v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002)).

17

More closely considering plaintiffs’ specific theories of

18 liability, disparate treatment and disparate impact, yields

19 the same result. On that point, the court finds persuasive

20 the reasoning in Ellis II. There, with respect to the

21 disparate treatment claim, the court explained:

22

whether Defendant has engaged in a

pattern or practice of discrimination

23

such that all class members are entitled

to a presumption of discrimination under

24

the Teamsters method of proof38 is a common

25

38

“As the Supreme Court reaffirmed in Dukes, pattern-or-practice

26 cases alleging disparate treatment under Title VII typically follow a

bifurcated, burden-shifting structure laid out by Int’l Broth. of Teamsters

27 v. United States, 431 U.S. 324 (1977):

28

We have established a procedure for trying

pattern-or-practice cases that gives effect to

[Title VII's] statutory requirements. When the

- 73 -

1

issue subject to classwide resolution. This

‘pattern and practice question predominates

2

because it has a direct impact on every

class member’s effort to establish liability

3

and on every class member’s entitlement

to . . . monetary relief.’ Ingram v. The

4

Coca–Cola Co., 200 F.R.D. 685, 699

(N.D.Ga. 2001) (certifying (b)(3) class of

5

plaintiffs alleging a pattern or practice

of race discrimination in employment under

6

Teamsters framework); see also Williams

v. Mohawk Indus., Inc., 568 F.3d 1350,

7

1357 (11th Cir. 2009) (“Common issues of fact

and law predominate if they ha[ve] a direct

8

impact on every class member’s effort to

establish liability and on every class

9

member’s entitlement to injunctive

and monetary relief.”) (internal citations

10

and quotation marks omitted).

11 Ellis II, 285 F.R.D. at 538 (footnote added). The Ellis II

12 court similarly explained as to plaintiffs’ disparate impact

13 claim:

14

whether Defendant’s facially neutral

policies and practices have a disparate

15

impact on class members, and whether those

practices are nonetheless justified by

16

business necessity, are similarly

issues best addressed with respect to

17

the entire class. . . . Adjudicating these

issues on a classwide basis is necessary before

18

any individualized proceeding can occur.

19 Id. (citations and footnote omitted). Adopting that

20 rationale, the court finds that the common questions regarding

21 liability as to the pay claim are “a significant aspect of

22

23

plaintiff seeks individual relief such as

reinstatement or backpay after establishing a pattern

24

or practice of discrimination, a district court

must usually conduct additional proceedings . . .

25

to determine the scope of individual relief. . . .

At this phase, the burden of proof will shift to the

26

company, but it will have the right to raise any

individual affirmative defenses it may have, and to

27

demonstrate that the individual applicant was

denied an employment opportunity for lawful reasons. . . .

28

Ellis II, 285 F.R.D. at 505 (quoting Dukes , 131 S.Ct. at 2552 n. 7)

(internal quotations and citations omitted).

- 74 -

1 th[is] case and they can be resolved for all members of the

2 class in a single adjudication[.]” See Mazza, 666 F.3d at 589

3 (internal quotation marks and citations omitted).

4

Before addressing superiority, the court also must

5 consider whether plaintiffs’ damages can be determined on a

6 classwide basis. See Comcast, 133 S.Ct. at 1432 (“the proper

7 standard for evaluating certification” requires a showing

8 “that damages are capable of measurement on a classwide

9 basis[]”). In Comcast, an antitrust action, the district

10 court accepted one of plaintiffs’ four theories of antitrust

11 impact, but rejected the other three theories. Despite that

12 limitation, the plaintiffs relied on a regression model that

13 “did not isolate damages resulting from any one theory of

14 antitrust impact.” Comcast, 133 S.Ct. at 1431).

15

Both the district court and the Third Circuit declined to

16 entertain the defense argument challenging plaintiffs’

17 regression model because “those arguments would also be

18 pertinent to the merits determination[.]” Id. at 1433.

19 Finding “[t]hat reasoning to flatly contradict[]” prior

20 Supreme Court precedent, and Dukes in particular, the Court

21 reversed the class certification order. Id. (citation

22 omitted). In reversing, the Comcast Court chastised the Third 23 Circuit for “simply conclud[ing] that respondents provided a

24 method to measure and quantify damages on a classwide basis,”

25 without deciding whether the methodology [was] a just and

26 reasonable inference or speculative.” Id. (internal quotation

27 marks and citation omitted)

28

In the present case, unlike Comcast, plaintiffs’

- 75 -

1 methodology (although not fully developed39) for calculating

2 back pay demonstrates that such damages are “capable of

3 measurement on a classwide basis. See Comcast, 133 S.Ct. at

4 1433. “Here, unlike Comcast, if putative class members prove

5 [Bashas’] liability, damages will be calculated based on the

6 wages each employee lost due to [Bashas’] unlawful practices.”

7 See Leyva, 2013 WL 2306567, at *3. If Bashas’ is found

8 liable, it strikes the court, as the plaintiffs urge, that the

9 back pay determination “is a purely mechanical process[.]”

10 Pls.’ Supp. Br. (Doc. 302) at 21:7. Furthermore, through a

11 computer program, and relying upon “objective factors” such as

12 “the individual employee payroll record (dates of employment

13 job position, hours worked) and the wage scale,” which is part

14 of the record, the plaintiffs will be able to calculate back

15 pay losses for “each eligible class member[.]” Id. at 21:15-

16 18. Under this projected scenario, there is no concern, as

17 there was in Comcast, that “[q]uestions of individual damages

18 calculations will inevitably overwhelm questions common to the

19 class[]”. See Comcast, 133 S.Ct. at 1433. In addition, also

20 in sharp contrast to Comcast, at least at this point,

21 plaintiffs’ methodology for calculating back pay correlates

22 the “legal theory of the harmful event” with “the economic

23 impact of that event. See id. at 1435 (internal quotation 24 marks, emphasis and citation omitted). Having found

25

39

Plaintiffs “anticipate having an expert witness present” their

26 backpay “analysis[,]” consisting of “a mathematical calculation conducted

for each eligible class member to determine individual back pay losses.”

27 Pls.’ Supp. Br. (Doc. 302) at 21:17-19 (emphasis in original). The court

cannot fault plaintiffs for not having provided such an analysis in

28 conjunction with their prior filings, as they did not have thebenefit, nor

could they have anticipated at that time, the Supreme Court’s March 27,

2013 Comcast decision.

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1 predominance, it is necessary to consider superiority, the

2 second Rule 23(b)(3) element.

3

2. Superiority

4

“‘[T]he purpose of the superiority requirement is to

5 assure that the class action is the most efficient and

6 effective means of resolving the controversy.’” Wolin v.

7 Jaguar Land Rover North America, LLC, 617 F.3d 1168, 1175 (9th

8 Cir. 2010) (quoting Wright & Miller, § 1779 at 174); see also

9 Valentino v. Carter–Wallace, Inc., 97 F.3d 1227, 1234 (9th

10 Cir. 1996) (Superiority tests whether “class litigation of

11 common issues will reduce litigation costs and promote greater

12 efficiency.”) “The superiority inquiry under Rule 23(b)(3)

13 requires determination of whether the objectives of the

14 particular class action procedure will be achieved in the

15 particular case.” Hanlon, 150 F.3d at 1023 (citation

16 omitted). In turn, that inquiry “necessarily involves a

17 comparative evaluation of alternative mechanisms of dispute

18 resolution.” Id. The Ninth Circuit recognizes that

19 “[d]istrict courts are in the best position to consider the

20 most fair and efficient procedure for conducting any given

21 litigation, . . . , and so must be given wide discretion to

22 evaluate superiority[.]” Bateman, 623 F.3d at 712 (internal

23 quotation marks and citations omitted).

24

Plaintiffs offer two reasons as to why “[c]lass

25 treatment is clearly the superior method for adjudicating the 26 pay claims.” Pls.’ Supp. (Doc. 302) at 22:20. First, class 27 certification would be less costly and more efficient. 28 Second, most of the putative class members “lack the

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1 resources” to fund this litigation, and so would be “deterred

2 or prevented” from pursuing their discrimination claims. Id.

3 at 22:25-26.

4

Conversely, Bashas’ asserts that plaintiffs have not

5 shown superiority because, first of all, there are only a

6 “limited number of allegedly affected named plaintiffs and

7 class members[.]” Def.’s Supp. Br. (Doc. 301) at 20:11-12.

8 Supposedly, superiority also cannot be shown because putative

9 class members “retain[] a strong incentive to bring their

10 claims individually[.]” Id. at 20:13-14. Finally, harkening

11 back to its familiar refrain that this lawsuit involves

12 “thousands of highly-individualized factual inquiries[,]”

13 Bashas’ contends that is another reason why Rule 23(b)(3)

14 certification is “inappropriate.” Id. at 20:18-19.

15

Class action in accordance with Rule 23(b)(3) is the

16 superior method of adjudicating plaintiffs’ claims, despite

17 what Bashas’ argues. Without class certification, as

18 plaintiffs accurately point out, each individual employee will

19 have to separately “prove . . . that [Bashas’] maintained a

20 two-tiered wage policy, that the policy . . .

21 disproportionately impacted Hispanic Food City employees,

22 and/or that the policy constituted disparate treatment based 23 upon national origin.” Pls.’ Supp. (Doc. 302) at 22:21-25.

24 Plainly, “[i]t is far more efficient to litigate” these 25 fundamental liability issues “on a classwide basis rather than 26 in thousands of individual and overlapping lawsuits.” See 27 Wolin, 617 F.3d at 1176 (Rule 23(b)(3) class certification 28 proper in an “automobile-wear” case alleging “single,

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1 defective alignment geometry[]” where “issues common to all

2 class members . . . can be litigated together[]”); see also

3 Jordan v. Paul Financial, LLC, 285 F.R.D. 435, 467 (N.D.Cal.

4 2012) (internal quotation marks and citation omitted) (“[A]

5 single action would be superior to maintaining a multiplicity

6 of individual actions involving similar legal and factual

7 issues.”) As the Ninth Circuit reasoned in Wolin, “[f]orcing

8 individual[s] . . . to litigate their cases, particularly

9 where common issues predominate for the proposed class, is an

10 inferior method of adjudication.” Wolin, 617 F.3d at 1176.

11

Further, in the present case, much like Wolin, “[p]roposed

12 class members face the option of participating in this class

13 action, or filing hundreds of individual lawsuits that could

14 involve duplicating discovery and costs that [potentially]

15 exceed the extent of proposed class members’ individual

16 injuries.” See id. Avoiding that latter scenario is the

17 precise reason for Rule 23(b)(3) class certification. See

18 Amchem, 521 U.S. at 615, 117 S.Ct. 2231 (quoting Advisory

19 Committee’s Notes on Rule 23(b)(3)) (that Rule is intended “to

20 cover cases ‘in which a class action would achieve economies

21 of time, effort, and expense, and promote . . . uniformity of

22 decision as to persons similarly situated, without sacrificing 23 procedural fairness or bringing about other undesirable

24 results.’”); see also York, 2011 WL 8199987, at *33 (citations 25 omitted)(“Typically, a class action is superior if the case 26 presents a large volume of individual claims that could strain 27 judicial resources if tried separately and if each potential 28 plaintiff's recovery may not justify the cost of individual

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1 litigation.”) Indeed, the Ninth Circuit has consistently held

2 that “[w]here recovery on an individual basis would be dwarfed

3 by the cost of litigating on an individual basis, this factor

4 weighs in favor of class certification.” Wolin, 617 F.3d at

5 1175 (citing Zinser, 253 F.3d at 1189; Hanlon, 150 F.3d at

6 1023).

7

Neither the supposedly “limited number” of potential class

8 members, or their assertedly “strong incentive” to

9 individually pursue their claims persuades the court that Rule

10 23(b)(3) is not the proper vehicle for plaintiffs to litigate

11 their claims. See Def.’s Supp. Br. (Doc. 301) at 20:11; and at

12 20:13. Bashas’ initial argument against a finding of

13 superiority is that there are a “limited number” of putative

14 class members. Id. at 20:11. Bashas’ failure to elucidate on

15 that point is troubling given its prior assertion that

16 plaintiffs are “seek[ing] to certify a class of at least

17 10,000[.]” Id. at 11:16. Moreover, that ten thousand figure

18 hardly seems “limited,” especially considering that it is

19 based upon a “very modest assumption” of industry-wide

20 “turnover rates[.]” Id. at 11:17-18. Bashas’ cannot have it

21 both ways; it cannot argue, in essence, that the class is too

22 large for commonality purposes, but not for superiority.

23

Additionally, in holding that numerosity had been shown

24 here, this court previously found, and Bashas’ did not 25 dispute, that the putative class has “thousands of members[.]” 26 See Parra I, 2005 WL 6182338, at *14 (citing Mot. (Doc. 159) 27 at 18 [(“Bashas’ has employed between 3000 and 4440 Hispanic 28 workers in hourly positions in the Food City stores in each

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1 year since 2000.)”]; Decl’n Drogin (Doc. 160) at Exhbt. 1.)

2 Hence, the number of potential class members does not render

3 Rule 23(b)(3) certification improper.

4

Likewise, the court is not convinced by Bashas’

5 “incentive” argument. Def.’s Supp. Br. (Doc. 301) at 20:13.

6 Bashas’ postulates that plaintiffs have not shown superiority

7 because the putative class members “retain[] a strong

8 incentive to bring their claims individually,” otherwise, they

9 “risk being precluded from asserting individual claims for 10 compensatory damages of up to $300,000,40 limited by the

11 applicable statutory cap, if they choose to ‘tie their fates

12 to the class representatives.’” Id. at 20:13-17 (quoting

13 Dukes, 131 S.Ct. at 2559). Once again, Bashas’ overlooks a

14 critical distinction between Dukes and the present case.

15

The concern in Dukes was that the strategy of including

16 only backpay claims “created the possibility . . . that

17 individual class members’ compensatory-damages claims would be

18 precluded by litigation they had no power to hold themselves

19 apart from.” Dukes, 131 S.Ct. at 2559 (emphasis in original).

20 The Court explained:

21

If it were determined, for example, that

a particular class member is not entitled

22

to backpay because her denial of increased

pay or a promotion was not the product

23

of discrimination, that employee might

be collaterally estopped from independently

24

seeking compensatory damages based on

that same denial. That possibility underscores

25

the need for plaintiffs with individual

monetary claims to decide for themselves

26

27

40

Section 1981a(b)(3) imposes a statutory limitation on, amon g

other types of damages, compensatory and punitive damages in Title VII

28 suits against employers with more than 500 employees. Hemmings v.

Tidyman’s Inc., 285 F.3d 1174, 1200 (9th Cir. 2002); 42 U.S.C.

§ 1981a(b)(3)(D).

- 81 -

1

whether to tie their fates to the

class representatives’ or go it alone-a

2

choice Rule 23(b)(2) does not ensure that they

have.

3

4 Id. (italicized emphasis in original) (bold emphasis added).

5 Those concerns are absent here. Unlike a Rule 23(b)(2) class,

6 which is mandatory, a Rule 23(b)(3) class contains an opt-out

7 provision. See Fed.R.Civ.P. 23(c)(2)(B)(v). That latter Rule

8 is the sole basis for certifying plaintiffs’ pay claim.

9 Therefore, as a result of Rule 23(b)(3)’s opt-out mechanism,

10 there is no risk, as there was in Dukes, where certification

11 was sought pursuant to Rule 23(b)(2), of depriving a putative

12 class member in this case of the opportunity of proceeding

13 with his or her own individual monetary claims.

14

Lastly, Bashas’ argument that a class action is not a

15 superior method of adjudicating the pay claims because it

16 “would require thousands of highly-individualized factual

17 inquiries,” rings hollow given the nature of those claims and

18 the relief sought, as previously discussed. See Def.’s Supp.

19 Br. (Doc. 301) at 20:18-19. Consequently, for the reasons

20 just discussed, the court finds that certification of a class

21 pursuant to Fed.R.Civ.P. 23(b)(3) with respect to plaintiffs’

22 pay claim satisfies the most fundamental test for superiority 23 -– “maintenance of this litigation as a class action is

24 efficient and . . . it is fair.” See Wolin, 617 F.3d at 1175-

25 76.

26

C. Fed.R.Civ.P. 23(b)(3)(A)-(D)

27

An examination of predominance and superiority involves

28 additional considerations. “In evaluating predominance and

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1 superiority, the Court must consider: (1) the extent and

2 nature of any pending litigation commenced by or against the

3 class involving the same issues; (2) the interest of

4 individuals within the class in controlling their own

5 litigation; (3) the convenience and desirability of

6 concentrating the litigation in a particular forum; and (4)

7 the manageability of the class action.”41 Beck-Ellman v. Kaz

8 USA, Inc., 283 F.R.D. 558, 567 (S.D.Cal. 2012)(citing

9 Fed.R.Civ.P. 23(b)(3)(A)–(D); Amchem, 521 U.S. at 615-16, 117

10 S.Ct. 2231)) (emphasis added). These factors “‘require[] the

11 court to focus on the efficiency and economy elements of the

12 class action so that cases allowed under subdivision (b)(3)

13 are those that can be adjudicated most profitably on a

14 representative basis.’” Zinser, 253 F.3d at 1190 (quoting 7A

15 Wright & Miller, § 1780 at 562). The application of four

16 enumerated factors, which the parties largely ignored,

17

18

41

The Ninth Circuit in Bateman, was confronted with the issue of

19

whether Rule 23(b) “authorizes a court to consider whether certifying a class would result in disproportionate damages.” Bateman, 623 F.3d at 713.

Because Rule 23(b)(3) “provide[d] little, if any guidance, on” that issue,
20 the Court recognized the propriety of expanding the inquiry thereunder to

include factors not listed in Rule 23(b)(3)(A)-(D):
21

Superiority must be looked at from the point of

22

view (1) of the judicial system, (2) of the

potential class members, (3) of the present plaintiff,

23

(4) of the attorneys for the litigants, (5) of

the public at large and (6) of the defendant. The

24

listing is not necessarily in order of importance

of the respective interests. Superiority must also

25

be looked at from the point of view of the issues.

26 Id. (quotation marks and citations omitted). Here, there is no need for the
court to delve into those non-lis ted factors because, first of all, a
27 consideration of those factors is discretionary, not mandatory. See id.
(emphasis added) (“A court may consider, other, non-listed factors[]” in
28 deciding whether to certify a class under Rule 23(b)(3).) Second, in
contrast to Bateman, the listed Rule 23(b)(3) factors encompass the concerns
relevant here to class certification thereunder.

- 83 -

1 buttresses the finding that Rule 23(b)(3)’s predominance and

2 superiority requirements are met here.

3

The first factor considers the interest of each member in

4 “individually controlling the prosecution or defense of

5 separate actions[.]” Fed.R.Civ.P. 23(b)(3)(A). Given the

6 “common questions affecting the class as a whole at the

7 liability stages of this matter, and given [the putative]

8 class members’ ability to opt out [,]” the putative class

9 members in the present case “have a diminished interest in

10 individually controlling the common portions of this action.”

11 See Ellis II, 285 F.R.D. at 539-540.

12

Further, “[w]here damages suffered by each putative class

13 member are not large, this factor weighs in favor of

14 certifying a class action.” Zinser, 253 F.3d at 1190

15 (citation omitted). That is because the policy “at the very

16 core of the class action mechanism is to overcome the problem

17 that small recoveries do not provide the incentive” for

18 individuals to bring claims. Amchem Prods., 521 U.S. at 617.

19 Here, the FAC does not allege the specific amount of damages

20 sought, and the plaintiffs have given no indication as to

21 whether those damages are sizeable or not. In Parra II, the

22 Ninth Circuit estimated that the “hourly disparities 23 translate[d] to annual salary differences of around $300 per

24 year to almost $6,000 per year.” See Parra II, 536 F.3d at

25 977. Recoveries in that range are relatively modest. For

26 both of these reasons, the first factor weighs in favor of

27 class certification.

28

The second factor is “the extent and nature of any

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1 litigation concerning the controversy already begun by or

2 against class members[.]” Fed.R.Civ.P. 23(b)(3)(B).

3 Arguably, E.E.O.C. v. Bashas’, Inc., No. CIV 09-0209 PHX RCB,

4 wherein the EEOC is seeking to enforce an administrative

5 subpoena against Bashas’, fits the definition of such

6 litigation. The EEOC’s subpoena, the enforcement of which

7 Bashas’ has vigorously challenged, is “part of the EEOC’s

8 “ongoing investigation into whether Bashas’ has engaged in

9 discrimination against its Hispanic employees on the basis of

10 national origin with respect to wages and promotions.”

11 E.E.O.C. v. Bashas’, Inc., 828 F.Supp.2d 1056, 1059 (D.Ariz.

12 2011) (internal quotation marks and citation omitted).

13

The parties are fully aware of that action as they have

14 participated either directly or indirectly in that litigation.

15 For now, the details are not important; suffice it to say

16 that that case is pending in the Ninth Circuit Court of

17 Appeals. Given that Bashas’ EEOC action is in its relative

18 infancy, and the court would have to speculate as to how that

19 action might, at some future date, impact the present case, it

20 finds that the second factor also weighs in favor of class

21 certification.

22

The third factor, “the desirability or undesirability of

23 concentrating the litigation of the claims in the particular

24 forum[,]” also augurs in favor of class certification. See 25 Fed.R.Civ.P. 23(b)(3)(C). “Here, there is no reason to believe 26 that concentrating this action in this Court is undesirable,” 27 especially because “the proposed []class is composed of only 28 [Arizona] . . . employees.” See York, 2011 WL 8199987, at

- 85 -

1 *33.

2

The fourth and final factor considers “the likely

3 difficulties in managing a class action.” Fed.R.Civ.P.

4 23(b)(3)(D). This factor looks to whether “the complexities

5 of class action treatment outweigh the benefits of considering

6 common issues in one trial[.]” Zinser, 253 F.3d at 1192

7 (citations omitted). If they do, “class action treatment is

8 not the superior method of adjudication.” Id. (internal

9 quotation marks and citations omitted). This balancing test

10 “encompasses the whole range of practical problems that may

11 render the class format inappropriate for a particular suit.”

12 Eisen v. Carlisle & Jacqueline, 417 U.S. 156, 164, 94 S.Ct.

13 2140, 40 L.Ed.2d 732 (1974).

14

At this juncture, and without the parties’ input, it is

15 difficult to conceive how the complexities of class

16 certification here would outweigh the benefits. Cf. In re:

17 Visa Check/MasterMoney Antitrust Litigation, 280 F.3d 124, 140 18 (2nd Cir. 2001) (Sotomayor, J.) (“[F]ailure to certify an

19 action under Rule 23(b)(3) on the sole ground that it would be

20 unmanageable is disfavored, and should be the exception rather

21 than the rule.”) The court thus finds that this factor, too,

22 favors class certification pursuant to Rule 23(b)(3). If at

23 some point the pay claim does become unmanageable as a class

24 action, which the court does not anticipate, the court

25 “retains the flexibility to address problems with a certified

26 class as they arise, including the ability to decertify.”

27 United Steel Workers, 593 F.3d at 807.

28

Overall, based upon the foregoing, the court finds that

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1 the named plaintiffs’ pay claim is properly certified pursuant

2 to Rule 23(b)(3). The court’s analysis does not end here,

3 however, because although it previously certified plaintiffs’

4 working condition claim, the propriety of that certification

5 has become an issue after Dukes.

6 II. Working Conditions Claim42

7

Rule 23(b)(2) provides in relevant part that if the

8 elements of Rule 23(a) are met, and if “the party opposing the

9 class has acted or refused to act on grounds that apply

10 generally to the class, so that final injunctive relief or

11 corresponding declaratory relief is appropriate respecting the

12 class as a whole[,] [a] class may be maintained[.]” Fed. R.

13 Civ. P. 23(b)(2). Pursuant to that Rule, in Parra I, this

14 court certified a class as to working conditions comprised of:

15

All Hispanic workers employed by defendant in

an hourly position at any Food City retail store

16

since April 4, 1998, who have been or may be subject

to the challenged disparate working conditions.

17

18 Parra I, 2005 WL 6182338, at *22. Bashas’ appealed only the

19 denial of class certification as to the pay claim, leaving

20 undisturbed the certification of the working conditions claim.

21

A. Decertification

22

Now, based upon Dukes’ “newly clarified commonality

23

24

42

Plaintiffs imply that Bashas’ disregarded this court’s order by

25 addressing the working conditions claim in its supplemental briefs. While
setting the post-Dukes briefing schedule, however, Bashas’ explicitly

26

inquired as to the propriety of “rais[ing] the issue of reconsideration of [this court’s prior] certification of [the] store conditions” claim, or

27

whether the court wanted that issue addressed separately. Tr. (June 27, 2011) at 10:42:09 a.m. - 10:42:16 a.m. The court responded that it would

28

not “preclude” Bashas’ from raising that claim in the supplemental briefs. Tr. (June 27, 2011) at 10:42:26 - 10:42: 26 a.m. Consequently, the issue

of the continued certification of the working conditions claim is properly

before the court.

- 87 -

1 standard,” Def.’s Resp. (Doc. 304) at 6:1-2, Bashas’ “requests

2 that the Court reconsider . . . and deny” class certification

3 of the working conditions claim. Def.’s Supp. Br. (Doc. 301)

4 at 20:22-23. Bashas’ response more accurately requests “de-

5 certif[ication]” of the working conditions claim, however, as

6 will soon become evident. Def.’s Resp. (Doc. 304) at 8:20

7 (emphasis added).

8

Interpreting Bashas’ request as strictly one for

9 reconsideration, plaintiffs argue that it is “untimely[.]”

10 Pls.’ Reply (Doc. 303) at 10:10. There are two prongs to this

11 argument. Neither is meritorious. First, plaintiffs note

12 that Bashas’ did not appeal class certification of the working

13 conditions claim pursuant to Fed.R.Civ.P. 23(f). That Rule

14 allows a party, within 14 days after entry of the class

15 certification order, to file with the court of appeals a

16 petition for permission to appeal the granting or denying of

17 class certification. The filing of a Rule 26(f) petition is

18 separate and distinct from filing a reconsideration or

19 decertification motion, however. Therefore, although Bashas’

20 did not avail itself of Rule 23(f), it does not follow, as

21 plaintiffs’ so strongly imply, that Bashas’ current request is

22 untimely.

23

Second, plaintiffs baldly assert that Bashas’ “did not

24 . . . timely” move “for reconsideration[.]” Id. at 10:7. Even

25 if the court were to agree,43 it would not preclude Bashas’

26

27

43

LRCiv 7.2(g)(2) provides that “[a]bsent good cause shown, any

motion for reconsideration shall be filed no later than fourteen (14) days

28

after the date of the filing of the Order that is the subject of the motion.” LRCiv 7.2(g)(2). Bashas’ did not seek reconsideration within 14

days after the filing of Parra I , and evidently that is the basis for

plaintiffs’ untimeliness argument. Of course, such an argument presumes

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1 from requesting decertification now. Bashas’ request is

2 timely given the considerable latitude a district court has to

3 revisit the class certification issue. “A district court may

4 decertify a class at any time.” Rodriguez v. West Publ’g

5 Corp., 563 F.3d 948, 966 (9th Cir. 2009)(emphasis added)

6 (citing Falcon, 457 U.S. at 160, 102 S.Ct. 2364) Federal Rule

7 of Civil Procedure 23(c)(1)(C) embodies that latitude: “An

8 order that grants or denies class certification may be altered

9 or amended before final judgment.” Fed.R.Civ.P. 23(c)(1)(C).

10 Such an order is, therefore, “inherently tentative.” Coopers &

11 Lybrand v. Livesay, 437 U.S. 463, 469 n. 11, 98 S.Ct. 2454, 57

12 L.Ed.2d 351 (1978). Thus, “[a] district court retains the

13 flexibility to address problems with a certified class as they

14 arise, including the ability to decertify.” United Steel

15 Workers, 593 F.3d at 809 (emphasis added).

16

This flexibility extends “‘[e]ven after a certification

17 order is entered[.]’” Id. (quoting Falcon, 457 U.S. at 160,

18 102 S.Ct. 2364) (other citations omitted). Thus, “Rule 23

19 provides district courts with broad authority at various

20 stages in the litigation to revisit class certification

21 determinations and to redefine or decertify classes as

22 appropriate.” Wang, 709 F.3d at 836 (citing Armstrong v. 23 Davis, 275 F.3d 849, 871 n. 28 (9th Cir. 2001), abrogated on

24 other grounds by Johnson v. California, 543 U.S. 499, 504–05,

25

26 the absence of “good cause.” In all likelihood, such a presumption is not

27

warranted here, however, because Dukes was decided more than five years after Parra I. And, LRCiv 7.2(g)(1) allows for the possibility of

28

reconsideration, inter alia, based upon a showing of “new . . . legal authority that could not have been brought to [the court’s] attention

earlier.”

So even if the court were to treat Bashas’ motion as one for

reconsideration, a strong argument could be made that it is untimely.

- 89 -

1 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005)) (emphasis added).

2 Indeed, somewhat presciently, relying upon Armstrong, Parra I

3 recognized that flexibility. See Parra I, 2005 WL 6182338, at

4 *14. The passage of time, therefore, is not a barrier to

5 Bashas’ request for decertification of the working conditions

6 class, post-Dukes, as the foregoing shows.

7

The parties fundamentally disagree as to whether Dukes

8 affects certification of that class. Plaintiffs argue that

9 Dukes “has no impact[,] Pls.’ Supp. Brief (Doc. 302) at 24:28,

10 whereas Bashas’ contends that plaintiffs should not be allowed

11 to “maintain” their working conditions claim because

12 commonality, as articulated in Dukes, is missing here.

13 Def.’s Supp. Br. (Doc. 301) at 15:22.

14

B. Standing

15

The court is not at liberty to address that conflict

16 without resolving the prefatory issue of standing, although

17 the parties did not. See Pier 1 Imports (U.S.) Inc., 631 F.3d 18 939, 954 (9th Cir. 2011) (internal quotation marks and

19 citations omitted) (“[F]ederal courts are required sua sponte

20 to examine jurisdictional issues such as standing.”) “Mindful

21 that ‘Rule 23’s requirements must be interpreted in keeping

22 with Article III constraints[]’” the court must determine

23 whether named plaintiffs, Estrada and Martinez have standing

24 to bring the working conditions claim. See Evans v. Linden

25 Research, Inc., 2012 WL 5877579, at *6 (N.D.Cal. Nov. 20, 26 2012) (quoting Amchem, 521 U.S. at 613, 117 S.Ct. 2231); and 27 In re Abbott Labs. Norvir Antitrust Litig., 2007 WL 1689899, 28 at *2 (N.D.Cal. June 11, 2007) (“[I]t is ‘well-settled that

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1 prior to the certification of a class, and technically

2 speaking before undertaking any formal typicality or

3 commonality review, the district court must determine that at

4 least one named class representative has Article III standing

5 to raise each class subclaim.’”) (quoting Wooden v. Bd. of

6 Regents of Univ. Sys. of Georgia, 247 F.3d 1262, 1287–88 (11th

7 Cir. 2001)).

8

Standing is an issue because, as plaintiffs stress, they

9 are seeking “only injunctive relief” in connection with their

10 working conditions claim, Pls.’ Supp. Br. (Doc. 302) at 25:20

11 (emphasis in original); but, plaintiff Estrada, as a former 12 Food City employee,44 lacks standing to sue for injunctive

13 relief against his former employer. See Walsh v. Nevada Dept. 14 of Human Resources, 471 F.3d 1033, 1036, 1037 (9th Cir. 2006)

15 (former employee, who gave no indication in the complaint that

16 she was interested in returning to work for her former

17 employer, did not have standing to request injunctive relief

18 to force that former employer to “adopt and enforce lawful

19 policies regarding discrimination based on disability[]”); see 20 also Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045 (9th

21 Cir. 1999) (“Unless the named plaintiffs are themselves

22

23

44

There is a discrepancy between the FAC and plaintiff Estrada’s

24

declaration in support of class certification in terms of his employment status. The FAC, filed March 11, 2004, alleges that plaintiff Estrada “is

25

employed by . . . Bashas’ at a Food City Store.” FAC (Doc. 116) at 3:4-5, ¶ 7 (emphasis added). Estrada’s declaration filed September 27, 2004,

26

explicitly declares, however, that he “worked at the Food City store . . . from April 1999 until July 2002.” Estrada Decl’n (Doc. 176) at 1:23-24,

27

¶ 1 (emphasis added). Given that unequivocal declaration, presumably the FAC inadvertently alleges that Mr. Estrada was employed at a Food City

28

store in March, 2004. Thus, especially given that in Parra I this court relied upon that declaration for Estrada’s employment status, and that

finding has never been challenged, the court will continue to treat him as

a former Food City employee. See Parra I, 2005 WL 6182338, at *17.

- 91 -

1 entitled to seek injunctive relief, they may not represent a

2 class seeking that relief.”).

3

Plaintiff Estrada’s lack of standing does not foreclose

4 plaintiffs from pursuing their working conditions claim, so

5 long as plaintiff Martinez has standing. See Stearns, 655

6 F.3d at 1021 (internal quotation marks and citations omitted)

7 (“In a class action, standing is satisfied if at least one

8 named plaintiff meets the requirements.”); see also Ellis I,

9 657 F.3d at 979 (“Because only one named Plaintiff must meet

10 the standing requirements, the district court did not err in

11 finding that Plaintiffs have standing.”) Again presuming that

12 she still is a Food City hourly employee, plaintiff Martinez

13 has standing to represent the Rule 23(b)(2) injunctive relief

14 class as to working conditions. See Ellis I, 657 F.3d at 987

15 (“[O]nly current employees have standing to seek injunctive

16 relief.” Ellis I, 657 F.3d at 988 (citing Dukes, 131 S.Ct. at 17 2559–60)).45

18

C. Governing Legal Standards

19

Having found that one named plaintiff – Aurelia Martinez –

20 has standing as to the working conditions claim, the court can

21 now turn to the issue of possible decertification of that claim

22

23

45

In contrast to standing, Title VII exhaustionis a pre-condition

24

to bringing suit, and not jurisdictional. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (although

25

Title VII requires that plaintiffs timely exhaust administrative remedies, “filing a timely charge of discrimination with the EEOC is not a

26

jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and

27

equitable tolling[]”). For th at reason, and because the parties did not raise the issue of exhaustion with respect to theworking conditions claim,

28

the court declines to address it sua sponte. See Mounts v. California , 2009 WL 1084214, at *4 (E.D.Cal. April 22, 2009) (“The court is unaware of

any authority that suggests that it has a sua sponte duty to address the

issue of failure to plead exhaustion of administrative remedies.”)

- 92 -

1 post-Dukes. Decertification “is committed to the sound 2 discretion of the district court.” West World Travel, Inc. v. 3 AMR Corp., 2005 WL 6523266, at *3 (C.D.Cal. Feb. 24, 2005) 4 (citation omitted), aff’d in part and rev’d in part on 5 different grounds, 265 Fed. Appx. 472 (9th Cir. 2008). “[A] 6 district court reevaluating the basis for certification may 7 consider its previous substantive rulings in the context of the 8 history of the case, and may consider the nature and range of 9 proof necessary to establish the class-wide allegations.” Cruz 10 v. Dollar Tree Stores, Inc., 2011 WL 2682967, at *3 (N.D.Cal. 11 July 8, 2011) (internal quotation marks and citation omitted). 12 Likewise, “district courts retain the authority to amend or 13 decertify a class if, based on information not available or 14 circumstances not anticipated when the class was certified, the 15 court finds that either is warranted.” Dukes II, 603 F.3d at 16 580 n. 4, rev’d on other grounds, Dukes, 131 S.Ct. 2541). 17 Thus, “‘[e]ven after a certification order is entered, the 18 judge remains free to modify it in the light of subsequent 19 developments in the litigation[,]’” United Steel Workers, 593 20 F.3d at 809 (quoting Falcon, 457 U.S. at 160) (other citations 21 omitted), including “changes in the law that make it no longer 22 proper for a class to be maintained.” Estrella, 2012 WL 23 214856, at *5 (internal quotation marks and citations omitted); 24 see also Brady v. Deloitte & Touche LLP, 2012 WL 1059694, at 25 *4-*8 (granting motion to decertify a class because the 26 plaintiffs did “not show[] that the requirements of Rule 27 23(b)(3) [we]re met[]” after intervening Ninth Circuit and 28 Dukes decisions).
- 93 -

1

“In considering the appropriateness of decertification,

2 the standard of review is the same as a motion for class

3 certification: whether the Rule 23 requirements are met.”

4 Brady, 2012 WL 1059694, at *5 (N.D.Cal. March 27, 2012)

5 (citation omitted). In Marlo v. United Parcel Serv., Inc.,

6 639 F.3d 942 (9th Cir. 2011), the Ninth Circuit found that on

7 defendant’s decertification motion “[t]he district court . . .

8 properly placed the burden on [the plaintiff] to demonstrate

9 that Rule 23's class-certification requirements had been met.”

10 Id. at 947-948. Thus, in contrast to the standard motion

11 procedure where “the proponent of a motion bears the initial

12 burden of showing that the motion should be granted, the Ninth

13 Circuit rule is that the party resisting the motion bears the

14 burden of showing that the motion should not be granted.”

15 Campbell v. PricewaterhouseCoopers, LLP, 287 F.R.D. 615, 619 16 (E.D.Cal. 2012) (citing Marlo., 639 F.3d at 947.46 That means

17 that here, the plaintiffs retain the burden of “showing that

18 class certification is still warranted[.]” Id.

19

As previously discussed, this court, along with many

20 others, is of the view that the Supreme Court’s Dukes decision

21

22

46

Pre-Marlo, courts had held “that a party seekingdecertification

of a class should bear the burden of demonstrating that the elements of

23

Rule 23 have not been established.” See , e.g., Slaven v. BP America, Inc., 190 F.R.D. 649, 651 (C.D.Cal. 2000) (emphasis in original); Gonzales

24

v. Arrow Fin. Servs. LLC, 489 F.Supp.2d 1140, 1153 (S.D.Cal. 2007). Even post-Marlo, some courts have continued to allocate the burden in that way.

25

See, e.g., Dalton v. Lee Publications, Inc., 2013 WL 2181219, at *3 (S.D.Cal. May 20, 2013) (citations omitted); Cole v. CRST, Inc., 2012 WL

26

4479237, at *3 (C.D.Cal. Sept. 27, 2012); Estrella v. Freedom Financial Network, LLC, 2012 WL 214856, at *4 (N.D.Cal. Jan. 24, 2012). Given the

27

Ninth Circuit’s unequivocal holding in Marlo, however, this court agrees that to the extent courts have found that on a motion to decertify, it is

28

the defendant’s burden to “demonstrat[e] that the elements of Rule 23 have not been established[,] . . . these cases are no longer good law.” Negrete

v. Allianz Life Ins. Co. of N.Am., 287 F.R.D. 590, 598 n. 1 (S.D.Cal. 2012)

(internal quotation marks and citation omitted).

- 94 -

1 changed the legal landscape with respect to Rule 23(a)(2)’s

2 commonality requirement. That change, which could not have

3 been anticipated when the working conditions class was

4 certified in 2005, is more than ample justification for

5 considering whether the working conditions class still can be

6 maintained in light of Dukes.

7

D. Commonality

8

Plaintiffs assert that “certification of the working

9 conditions claim remains proper[]” because in Parra I this

10 court “identified a discriminatory practice[,]” which “meets

11 the standards for Rule 23(a) commonality.” Pls.’ Supp. Br.

12 (Doc. 302) at 25:16-17. Disagreeing Bashas’ asserts that 13 plaintiffs have failed to “identify a specific policy or

14 practice[,]” much less one that “could have caused [the]

15 challenged working conditions. Def.’s Supp. Br. (Doc. 301) at

16 14:21-22; and Def.’s Resp. (Doc. 304) at 5:16 (emphasis in

17 original).

18

The sole legal basis for plaintiffs’ argument that they

19 have identified a discriminatory practice is the following

20 excerpt from Parra I:

21

[P]laintiffs claim that [Bashas’] acted in

a discriminatory manner by maintaining

22

disparate working conditions in their stores.

Unlike the numerous claims of discrimination

23

articulated by the plaintiffs in Monreal,

Plaintiffs here allege one main claim

24

of a discriminatory practice or policy.

Although the facts of each individual complaint

25

may differ according to where and in what

position the class member worked, viewed

26

together they form a general claim that

[Bashas’] holds a discriminatory policy or

27

practice in relation to working conditions

offered in its Food City stores.

28

Id. at 25:7-8 (quoting Parra I, 2005 WL 6182338, at *20

- 95 -

1 (emphasis added by plaintiffs); see also Pls.’ Reply (Doc. 303)

2 at 9:24 (same). Significantly, plaintiffs do not attempt to

3 explain how the quoted rationale applies to the issue of Rule

4 23(a)(2) commonality, especially after Dukes. Likewise,

5 Bashas’ response did not address plaintiffs’ reliance upon this

6 aspect of Parra I.

7

In any event, plaintiffs are disregarding the context of

8 the quoted rationale. At that point in Parra I, the issue was 9 not Rule 23(a)(2) commonality,47 as it is now. Instead, the

10 issue was the certifiability of the working conditions claim 11 pursuant to Rule 23(b)(2).48 That Rule focuses on the relief

12 sought, and more particularly, the availability of injunctive

13 or declaratory relief to the class as a whole. “The key to the

14 (b)(2) class is the indivisible nature of the injunctive or

15 declaratory remedy warranted — the notion that the conduct is

16 such that it can be enjoined or declared unlawful only as to

17 all of the class members or as to none of them.” Dukes, 131

18 S.Ct. at 2557 (internal quotation marks and citation omitted)

19 (emphasis added). It strikes the court, however, that

20 indivisibility of the relief sought is a separate issue from

21 whether plaintiffs’ working conditions claim satisfies Rule

22

23

47

Tellingly, despite the explicit finding in Parra I that “on the

24

issue of working conditions, the proposed class shares sufficient commonality to satisfy the minimal requirements of Rule 23(a)(2)[,]”

25

plaintiffs did not even mention, much less rely upon, that finding to establish commonality after Dukes. See Parra I, 2005 WL 6182338, at *16.

26

The court is compelled to agree with plaintiffs’ concession, albeit implicit, that the Parra I commonality finding could not withstand scrutiny

27 in light of Dukes.

28

48

Seeming to recognize that distinction, plaintiffs’ reply argues

that “this court properly certified the working conditions claimunder Rule

23(b)(2)[.]” Pls.’ Reply (Doc. 303) at 6:18 (emphasis omitted) (italicized

emphasis added). But again, that is not the issue now.

- 96 -

1 23(a)(2)’s commonality requirement, particularly in the wake of

2 Dukes.

3

To be sure, “it is sufficient to meet the requirements of

4 Rule 23(b)(2) that class members complain of a pattern or

5 practice that is generally applicable to the class as a whole.” 6 Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010)

7 (internal quotation marks and citations omitted). By the same

8 token, however, plaintiffs did not offer any legal support, and

9 research did not reveal any, to support the view that just

10 because Rule 23(b)(2) has been satisfied, so, too, has Rule

11 23(a)(2)’s commonality requirement. Therefore, the court is

12 not convinced that its Rule 23(b)(2) rationale in Parra I,

13 standing alone, supports a finding that plaintiffs have

14 satisfied Dukes’ commonality standards. Accordingly,

15 plaintiffs have not met their burden of “affirmatively

16 demonstrating” their compliance with Rule 23(a)(2), Dukes, 131

17 S.Ct. at 2551, and, concomitantly, that the working conditions

18 class still should be certified.

19

There are two other deficits in plaintiffs’ attempt to

20 show commonality which are particularly noteworthy after

21 Dukes, as Bashas’ points out. The first is plaintiffs’

22 failure to show that their working conditions claim

23 “depend[s] upon a common contention . . . that is capable of

24 classwide resolution[.]” See Dukes, 131 S.Ct. at 2551.

25 Unlike plaintiffs’ equal pay claim where, as discussed

26 herein, “examination of all the putative class members’

27 claims for relief will produce a common answer to the crucial

28 question why was I disfavored[,]” plaintiffs have not made a

similar showing as to their working conditions claim. See

- 97 -

1 id. at 2552 (emphasis in original). In originally moving

2 for class certification, plaintiffs did list a number of

3 alleged common issues of law and fact. See Pls.’ MCC (Doc.

4 159) at 19:22-21:12. But, in contrast to their pay claim,

5 plaintiffs have not explained how continued class

6 certification of the working conditions claim has “the

7 capacity . . . to generate common answers apt to drive the

8 resolution of th[is] litigation.” See Dukes, 131 S.Ct. at

9 2551 (internal quotation marks and citation omitted)

10 (emphasis in original).

11

That omission is intertwined with the second weakness in

12 plaintiffs’ commonality proof – the insufficiency of their

13 anecdotal evidence. The Dukes Court held that “significant

14 proof that Wal-Mart operated under a general policy of

15 discrimination” was entirely absent; and hence, plaintiffs

16 did not establish commonality. Dukes, 131 S.Ct. at 2553

17 (internal quotation marks omitted). In Dukes, plaintiffs

18 attempted to “identif[y] a common mode of exercising

19 discretion that pervade[d] the entire company” by relying

20 upon, inter alia, anecdotal evidence. Dukes, 131 S.Ct. at

21 2555-56. There, the anecdotes amassed (“120 affidavits

22 reporting experiences of discrimination – about 1 for every 23 12,500 class members – relating to only 235 out of Wal-Mart’s

24 3,4000 stores”) were relatively small given the class size 25 (1.5 million). Further, although the plaintiffs alleged that 26 Wal-Mart discriminated nation-wide, “more than half of the” 27 anecdotes were “concentrated in only six States. . . ; half 28 of all States ha[d] only one or two anecdotes; and 14 States

- 98 -

1 ha[d] no anecdotes about Wal-Mart’s operations at all.” Id.

2 at 2556 (citation omitted). The Dukes Court thus held that

3 “[e]ven if every single one of th[o]se accounts [wa]s true,

4 that would not demonstrate that the entire company operate[s]

5 under a general policy of discrimination, . . . which is what

6 respondents must show to certify a companywide class.” Id.

7 (internal quotation marks, citation and footnote omitted).

8

The anecdotal evidence in the present case is similarly

9 weak. In 2004, Food City had 58 stores. Def.’s exh. 1

10 (Proulx Aff.) at 3, ¶ 8. Yet, plaintiffs are relying upon

11 only 11 declarations from putative class members, and two

12 other declarations. Those declarations, from current and

13 former Food City employees, describe purportedly substandard

14 working conditions in at most nine of the 58, or 15.5%, of

15 Food City stores. Moreover, four of those declarations

16 pertain to Food City store 59 which is “now closed.” Def.’s

17 Supp. Br. (Doc. 301) at 6:25 (emphasis omitted). The thrust

18 of those declarations is that Food City stores have issues

19 with rodents, roaches, and poorly maintained equipment and

20 work areas. As in Dukes, however, even assuming the

21 veracity of all 13 of those accounts, “that would not

22 demonstrate that [Bashas’] operate[s] under a general policy 23 of discrimination” with respect to working conditions at its

24 Food City stores. See Dukes, 131 S.Ct. at 2556 (internal

25 quotation marks and citation omitted).

26

Besides the relatively few proffered declarations,

27 evidence is lacking “that the entire class was subject to

28 the same allegedly discriminatory practice[.]” Ellis I, 657

- 99 -

1 F.3d at 983 (emphasis added). Such evidence is lacking, in

2 part, because the record includes more than 80

3 countervailing declarations from Food City employees, many of

4 them Hispanic, from at least 33 different stores. See

5 generally Def.’s Resp. MCC (Doc. 190), exh. 50-135 thereto.

6 This broader spectrum of proof readily shows that not all

7 Food City stores are as plaintiffs depict through their few

8 selective declarations.

9

This is not surprising given the acquisition history of

10 the Food City stores. As delineated in the affidavit of

11 Michael Proulx, Bashas’ Executive Vice President and Chief

12 Operating Officer, Def.’s Resp. MCC (Doc. 190), exh. 3

13 thereto at 4:17-18, in the decade between 1994 and 2004,

14 Bashas’ rapidly “expanded[,] . . . , most notably in the Food

15 City format[.]” Id., exh. 1 thereto (Proulx Aff.) at 2, ¶ 8.

16 For example, in 1996, Bashas’ acquired 16 Mega Foods stores,

17 twelve of which eventually became Food City stores. Id. at

18 4, ¶ 11. “Those stores were in vastly varying conditions.”

19 Id. at 4, ¶ 12. “Some . . . were relatively new and in good

20 condition.” Id. “Others were older stores that had

21 significant facility issues.” Id. That was also the

22 situation when “[a]round 2001, Bashas’ purchased some ABCO 23 stores, some of which were converted to Bashas’ stores and

24 some of which were converted to Food City stores.” Id. at 4,

25 ¶ 14. “Again, these stores were in a variety of different

26 conditions, ranging from being in good shape to needing much

27 improvement.” Id.

28

This acquisition history is significant because, inter

- 100 -

1 alia, it further demonstrates the lack of a common answer to

2 the question of why was I disfavored as to working

3 conditions. Plaintiffs’ meager anecdotal evidence,

4 especially when read in the context of the acquisition

5 history of Food City stores, “is too weak to raise any

6 inference that” the working conditions at all Food City

7 stores were substandard because those stores employ a higher

8 percentage of Hispanics than do A.J.’s and Bashas’. See

9 Dukes, 131 S.Ct. at 2556. In short, plaintiffs have not,

10 as they must post-Dukes, shown that “there was ‘significant

11 proof that [Bashas] operated under a general policy of

12 discrimination[]’” with respect to working conditions that

13 could “affect the class as a whole.” Ellis I, 657 F.3d at

14 983 (quoting Dukes, 131 S.Ct. at 2553. Accordingly,

15 because it cannot survive Dukes, the court decertifies the

16 working conditions class previously certified in Parra I.

17

In sum, for all of the reasons set forth herein, the

18 court grants plaintiffs’ motion for class certification as

19 to the pay claim for monetary damages pursuant to

20 Fed.R.Civ.P. 23(b)(3), on behalf of current and former

21 employees. Named plaintiffs Gonzalo Estrada and Aurelia

22 Martinez shall serve as the class representatives for that 23 class. The court decertifies the working conditions class

24 previously certified in Parra I, however.

25 III. Rule 23(f)

26

Presumably, Bashas’ is continuing to “request[]” that

27 upon class certification, this court “recommend the

28 acceptance of a Rule 23(f) appeal.” See Def.’s Resp. MCC

- 101 -

1 (Doc. 190) at 82:14 (emphasis added). That Rule states, in

2 relevant part, that “[a] court of appeals may permit an

3 appeal from an order granting or denying class-action

4 certification under this rule if a petition for permission

5 to appeal is filed with the circuit clerk within 14 days

6 after the order is entered.” Fed.R.Civ.P. 23(f) (emphasis

7 added). Given the unequivocal language of that Rule, this

8 court disagrees with Bashas’ reading thereof. The authority

9 to permit an appeal from an order denying or granting of

10 class certification lies with the court of appeals – not

11 with the district court. It is equally clear that Rule

12 23(f) does not contemplate a recommendation of such an

13 appeal, as Bashas’ urges. The court thus denies Bashas’

14 request that this court recommend to the Ninth Circuit that

15 it accept an immediate appeal of the class certification

16 decision herein.

17

Relatedly, the court likewise presumes that Bashas’

18 continues to seek a stay “pending Ninth Circuit action.”

19 Def.’s Resp. MCC (Doc. 190) at 82:15. This court does

20 retain jurisdiction to stay its own order pending appeal.

21 See Fed.R.App.P. 8(a). However, Bashas’ has not explicitly

22 moved for such relief, and has not addressed the four-factor

23 balancing test which this Circuit applies in evaluating

24 whether to issue a stay. See Leiva-Perez v. Holder, 640 25 F.3d 962, 964 (9th Cir. 2011). Thus, to the extent Bashas’ 26 motion can be read as seeking a stay pending appeal, the 27 court denies such relief. 28 . . .

- 102 -

1

Conclusion

2

Accordingly, the court hereby ORDERS that Plaintiffs’

3 Motion for Class Certification (Doc. 159) is GRANTED to the

4 extent they are seeking certification of a class with

5 respect to pay pursuant to Fed.R.Civ.P. 23(b)(3). In that

6 regard, the court certifies a class as follows:

7

All Hispanic workers currently and formerly

employed by defendant Bashas’ Inc. in an hourly

8

position at any Food city retail store since

April 4, 1998, who have been subject to the

9

challenged pay policies and practices.

10

IT IS FURTHER ORDERED that the working conditions claim

11 is DECERTIFIED; and

12

IT IS FINALLY ORDERED that in conformity with

13 Fed.R.Civ. P. 23(c)(2)(B), within thirty (30) days of the

14 date of entry of this order, the parties shall submit

15 jointly an agreed upon form of notice, a joint proposal for

16 dissemination of the notice, and the time-line for opting

17 out of the action. Plaintiffs must bear the costs of the

18 notice, which shall include mailing by first-class mail.

19

DATED this 31th day of May, 2013.

20

21

22

23

24

25

26 27 Copies to all counsel of record

28

- 103 -

 
 Case 2:02-cv-00591-RCB Document 110 Filed 02/23/04 Page 1 of 15
I ~ILEO _LODGED!
- RECEIVED -COPY

1

FEB 2 3 2004

.

2

CLERK U S DISTRICT COURT ,

DIS ICT OF ARIZONA

3

BY

OEFU'V 1

''---'

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE DISTRICT OF ARIZONA

9

10

11

12 Jose Parra and Gonzalo Estrada,
13
Plaintiff, 14
Vs. 15
Bashas • , Inc . , 16
Defendant. 17

No. CIV 02-591-PHX RCB
0 RDER

18

Various motions are currently pending before the court in this

19 case. On December 4, 2003, Plaintiffs Jose Parra and Gonzalo

20 Estrada ("Plaintiffs••) filed a motion for leave to file a first

21 amended complaint. Motion (doc. 73). On December 16, 2003,

22 Plaintiffs filed a motion to compel. Doc. 85-1. In addition to

23 its motion to compel, Plaintiffs have moved the court for an award

24 of attorney's fees and costs incurred in bringing their motion to

25 compel. Doc. 85-2. On January 7, 2004, Defendant Bashas•, Inc.,

26 ("Bashas'") filed a response to Plaintiffs• motion to compel, as

27 well as a motion for a protective order as to certain of the

28 information Plaintiffs seek for the court to compel. Doc. 107.

Case 2:02-cv-00591-RCB Document 110 Filed 02/23/04 Page 2 of 15

1 Finally, on December 22, 2003, Plaintiffs filed a motion for an

2 extension of the scheduling order in this case. Doc. 89.

3

The foregoing motions have been fully briefed and were argued

4 orally on February 9, 2004. The court, having taken these matters

5 under advisement at that time, now rules.

6

I. Motion to Compel and Cross-Motion for a Protective Order

7

The court first considers Plaintiffs' motion to compel and

8 Bashas' cross-motion for a protective order. The matters at issue

9 in these motions include (1) Bashas' personnel database (the

10 "Infinium" database), and (2) various financial records. The court

11 will address the more contentious issue first: the financial

12 records.

13

a. Financial Records

14

Plaintiffs have moved the court to compel certain financial

15 records which Bashas' considers to be highly confidential. 1

16 Plaintiffs argue that these financial records must be produced in

17

18

1 At pages 2-3 of Bashas' response, it sets forth the various

specific financial records sought by Plaintiffs. Response (doc.

19 107). These include:

20

(1) profit-and-loss statements for the three Bashas' store

formats (Food City, Bashas', and AJ's) from the time of the

21

store's opening (or, for Food City stores acquired by

Bashas', from the time of the store's acquisition) to the

22

present;

(2) labor budgets for the three formats for the time period

23

January 1998 - December 2002;

24

(3) documents related to comparisons of department-specific and/or store-wide profits and losses of the three formats;

25

and,

(4) documents in the nature of wholesale/retail price books

26

for produce, bakery and meat department products, as well

as any other departments, used in the three formats between

27

January 1998 through December 2002.

28

- 2-

Case 2:02-cv-00591-RCB Document 110 Filed 02/23/04 Page 3 of 15

1 order for them to test the validity of Bashas' defense to their
2 claims that the predominantly Hispanic workers, who worked at Food

3 City stores, were2 paid less than their predominantly Caucasian

4 counterparts who worked at Bashas' and AJ's stores. Motion (doc.

5 85) at 4.

6

Specifically, Plaintiffs claim that various Bashas' executives

7 testified in their depositions that Food City employees were paid

8 less than Bashas' and AJ's employees "due to [the] comparative

9 profit and sales performance of each store format." Id. In

10 addition, they claim that Bashas' executives have testified that a

11 particular store's labor budget is tied directly to the sales

12 performance of that store. Id. at 5.

13

In other words, Plaintiffs contend that, as they interpret the

14 deposition testimony of Bashas' executives, the Food City employees

15 were paid less than Bashas' and AJ's employees due to the lower

16 profitability of those stores. Id. As a result, Plaintiffs claim

17 that they need discovery of Bashas' financial records in order to

18 test the validity of its defense to their charge of discrimination.

19 In this regard, Plaintiffs cite various portions of Bashas'

20 executives' testimony, including a statement of Thomas Swanson,

21 Vice President and Director of Operations for Food City, which

22 states:

23

24

2 The court purposely uses the past tense in reference to the fact that Food City employees "were" paid less than their

25 counterparts at Bashas' other formats because Plaintiffs recognize that, at some point after Bashas' acquisition of 22 Southwest

26 Supermarkets in November 2001, it equalized the pay scales of Food
City workers with those of the other Bashas' formats. Apparently,

27 the discrimination claims related to an unequal pay span from the

point that Bashas' acquired the Food City stores, up to the time the 28 pay scales were equalized.

- 3-

Case 2:02-cv-00591-RCB Document 110 Filed 02/23/04 Page 4 of 15

1

Q. Why would the Bashas' cashier, given the same

seniority, be making more than the Food City cashier?

2

A. Once again, as I said before, Food City is a

3

different format. Its got different margins. If you

look back over the last - since the inception of Food

4

City, we've bought a couple different little stores here

and there, and then we bought a couple of decent-sized

5

chains that, basically, were bought out of bankruptcy.

Chains that could no longer financially operate. When

6

you do that, it takes time for a store to turn around. It

takes time for stores to get back on their feet. It

7

takes money to upgrade stores. So that's one factor.

The other factor is, at Food City all throughout, and

8

even today, there is still lower margins in a Food City

than there is in a conventional supermarket.

9

10 Id. at 5. Plaintiffs focus on other similar language, referring to

11 "margins," in order to argue that store profits were considered

12 when deciding employee wages. Id.

13

Bashas' is adamant, however, that profitability is not at the

14 heart of its defense to Plaintiffs' wage-discrimination claims.

15 Response (doc. 107) at 3. Bashas' claims that it has never been

16 its position that Food City employees were paid less than other

17 Bashas' employees due to lower profitability at Food City stores. 18 Id. at 3-4. Rather, Bashas' insists that Plaintiffs have

19 misconstrued its executives' deposition testimony in order to make

20 it look as though the financial records are a necessary part of its

21 defense, when in fact, Plaintiffs seek these records for purposes

22 unrelated to this litigation3 • Id. at 11. Bashas' expresses

23

24

3 In this regard, Bashas' argues:

25

The financial records plaintiffs seek are highly

confidential. Bashas• competitors in the Phoenix grocery

26

market would undoubtedly benefit from knowledge of these

precise financials, as would the Union. . . . Indeed, the

27

information sought is so irrelevant and, so beside the

point, the only purpose in seeking the financial

28

underpinnings of the company is something other than the

-4-

Case 2:02-cv-00591-RCB Document 110 Filed 02/23/04 Page 5 of 15

1 vehement opposition to the disclosure of these financial records,

2 which it considers to be highly sensitive. Id.

3

Bashas' argues that its executives did not assert that Food

4 City employees were paid less due to the lower profitability of

5 those stores. Id. at 4. Rather, it claims that these executives

6 "testified similarly that wage scales at Food City were set

7 according to market demand, to compete for employees with similar

8 grocers, including smaller independent neighborhood grocers and

9 warehouse format chains.

Id. at 4. In other words, they

10 claim that since Food City was a small, independent grocer when it

11 was first acquired, it did not compete with the larger chain

12 grocery stores, which paid more, for employees. Id.

13

Bashas' further argues that Food City has misconstrued

14 testimony related to "margins." Bashas' claims that such testimony

15 does not refer to profit margins at all. Id. at 6. Rather, it

16 contends that Food City wages were put in line with other "price

17 impact formats" - meaning stores that strive to offer the lowest

18 prices on every item every day. Id. Margins, they argue, refer to

19 the cost at which the store acquires a particular product

20 subtracted from the amount that product is sold for. At oral

21 argument, the example was suggested that a six pack of Coke would

22 cost more at AJ's than at Food City even though (since both as

23 Bashas' chains) they cost the same for Bashas' to acquire. Since 24 Food City strives to offer the lowest price on every product (as 25 opposed to offering multiple services, such as the wine steward

26
27 thus unstated basis for need for the information.
28 Id. at 11.

-5-

Case 2:02-cv-00591-RCB Document 110 Filed 02/23/04 Page 6 of 15

1 provided by an AJ's store), their "margins" are lower- but this

2 does not necessarily mean that their overall profitability is

3 lower.

4

The court recognizes the distinction between the "margins"

5 argued by both parties; furthermore, the court recognizes that

6 Bashas' is adamant that profitability is not at the heart of its

7 defense. Nevertheless, while Bashas' certainly has made its point

8 with regard to this issue, the court does not believe that

9 distinction resolves the issue.

10

The court's analysis must be governed by the standard of Rule

11 26(b), FED.R.Crv.P., which provides:

12

(1) Parties may obtain discovery regarding any matter,

not privileged, that is relevant to the claim or defense

13

of any party . . . Relevant information need not be

admissible at trial if the discovery appears reasonably

14

calculated to lead to the discovery of admissible

evidence.

15

16 Id. In other words, the information sought need not be admissible

17 in order to be discoverable; the discovery request need only be

18 reasonably calculated to lead to the discovery of admissible

19 evidence. Id. In this regard, the court finds that - though a

20 distinction has been made with regard to the precise defense raised

21 by Bashas' - it has nevertheless raised a defense to Plaintiffs'

22 claims which is integrally related to the finances of the company.

23 It has argued that wage scales at Food City stores were influenced

24 by the purchase price of products compared to their sales prices.

25 The court cannot escape the conclusion that an examination of the

26 financial records sought appears reasonably calculated to lead to

27 the discovery of admissible evidence in this case.

28

Furthermore, the court notes that the primary objection to the

-6-

Case 2:02-cv-00591-RCB Document 110 Filed 02/23/04 Page 7 of 15

1 production of the information sought is due to its sensitive

2 nature, and the concern that it will be used for purposes unrelated

3 to the present litigation. At oral argument, Bashas' argued that

4 the information could be intentionally, or even negligently,

5 conveyed to persons or groups which could use it, at worst, in a

6 nefarious manner, or at best, for purposes unrelated to this case.

7 While this concern is legitimate for such sensitive information, it

8 is one which the court believes can be successfully resolved

9 without withholding the information from Plaintiffs altogether. As

10 a result, the court will order that the documents sought be

11 produced; however, it will do so under very strict confines.

12

The court will order that Bashas' produce the financial

13 records sought (as reviewed in footnote 1, supra) subject to the

14 existing confidentiality order in this case (doc. 71), as well as

15 the following additional conditions. First, in order to ensure

16 that the risk of erroneous dissemination of the information remain

17 de minimus, the documents must be produced only to Plaintiffs'

18 counsel of record in this case. No other attorneys in their firm,

19 or support staff of any kind, including paralegals, clerical or

20 secretarial staff or assistants may obtain access to the documents

21 without further order of the court.

22

Further, with regard to experts, the court will allow that the

23 documents be provided to Plaintiffs' designated expert witness(es)

24 with a need to have the information; however, such expert(s) shall

25 not be permitted to allow any of their support staff, including

26 administrative, clerical or secretarial assistants, to access the

27 information without further order of the court. In addition, such

28 expert(s) shall be required to execute Exhibit A to the

- 7-

Case 2:02-cv-00591-RCB Document 110 Filed 02/23/04 Page 8 of 15

1 confidentiality order, entitled "Agreement to be Bound by

2 Confidentiality Order." Doc. 71, at p. 8.

3

b. Infinium Database

4

On February 4, 2003, Plaintiffs served their First Request for

5 Production of Documents, which included five requests to which

6 Bashas' "Infinium" personnel database would be responsive. Motion

7 (doc. 85) at 7. This database purportedly contains wage, job

8 classification, date of hire, and racial classification data for

9 all of Defendants Food City, Bashas', and AJ's employees. Id. at

10 8. Plaintiffs argue that, upon receipt of the information in the

11 database, their experts can evaluate the historical experience of

12 employees, comparing the wages of Mexican and Mexican-American

13 employees with those of Caucasian employees throughout the class

14 period. Id. at 8. They further argue that, without this database,

15 they would be forced to rely on other documents which they claim

16 are not adequate. Id.

17

While Bashas' has apparently resisted the disclosure of this

18 database for the ten months prior to the filing of the present

19 motion, the parties appear to have narrowed their dispute on this

20 point. In its response (doc. 107, at 16), as well as at oral

21 argument, Bashas' offered to provide an electronic copy of its

22 Infinium database to Plaintiffs; however, it would remove all

23 employee social security numbers and addresses from the version

24 provided to Plaintiffs.

25

In its response, Bashas' argues that it must delete the social

26 security and address information from the electronic copy provided

27 to Plaintiffs for two reasons. Response (doc. 107) at 16.

28 Specifically, it argues that erasing this information will (1)

-8-

Case 2:02-cv-00591-RCB Document 110 Filed 02/23/04 Page 9 of 15

1 protect the employees' privacy, and (2) avoid providing the same
2 law firm which also represents certain unions in their attempts to
3 unionize Bashas' employees with employee names and addresses that

4 can be used as contact information in their ongoing efforts to

5 unionize Bashas'. Id.

6

The court agrees that there is no basis for providing the

7 employee's social security information; indeed, Plaintiffs do not

8 object to the deletion of this information. Social security

9 numbers, therefore, may be deleted from the electronic copy

10 provided.

11

The employees' addresses issue is a closer call. Plaintiffs

12 complain that without the addresses, they will be unable to contact

13 employees who they would seek to contact in connection with this

14 litigation. At oral argument, Bashas' indicated that it would 15 provide contact information for any specific Bashas' employee(s)

16 which Plaintiffs indicate they would like to contact. Plaintiffs 17 have objected to Bashas' offer, arguing that it would be burdensome

18 for them to request information of Bashas' counsel with regard to

19 every employee they might wish to contact.

20

The court is persuaded that Bashas' compromise offer presents

21 an unworkable scenario. As a result, it will require that the
22 database be provided with only the social security numbers removed. 23 However, the court is also aware of Bashas' concerns about employee
24 address information being used for purposes outside the scope of 25 this litigation. As a result, the court will require that the

26 database contain data relevant only to those employees who are 27 potential class members, but that any data related to employees who 28 serve in managerial or supervisory roles may be removed.

- 9-

Case 2:02-cv-00591-RCB Document 110 Filed 02/23/04 Page 10 of 15

1

In addition to the foregoing, the court will order that

2 Plaintiffs may not, at any time either during or after this

3 litigation, use the information contained in this database for any

4 purpose other than as may be necessary in connection with this

5 lawsuit, without further order of the court. Finally, the court

6 will order that (as with the financial records discussed above) ,

7 the database may be provided only to Plaintiffs' counsel of record

8 in this case. Plaintiffs' counsel may provide the information to

9 its designated expert(s) with a need to access such information.

10 No other individuals, including Plaintiffs' or their expert(s')

11 support staff, may access this database. Plaintiffs' expert(s)

12 shall access the database only after it has executed Exhibit A to

13 the confidentiality order. Doc. 71, at p. 8.

14

c. Costs and Attorney's Fees

15

Plaintiffs have moved the court for an award of costs and

16 attorney's fees in the amount of $6,077.50 for its efforts in

17 bringing the present motion to compel. Motion (doc. 85) at 10.

18 Specifically, Plaintiffs argue that under Rule 37, FED.R.Crv.P.,

19 where a motion to compel is granted, the court shall award fees in

20 connection with bringing the motion. Id.

21

The court will deny Plaintiffs' motion to compel summarily.

22 As is obvious from the foregoing discussion, Bashas' has responded

23 to the motion to compel by filing a motion (for a protective order,

24 doc. 101) of its own. The court finds that the motion for a

25 protective order was filed in good faith, and that there was a

26 reasonable basis for objecting to the production of the information

27 the court is compelling in this order. In addition, the court has

28 provided strict regulations on the productions it has ordered. As

- 10-

Case 2:02-cv-00591-RCB Document 110 Filed 02/23/04 Page 11 of 15

1 a result, the court has not granted the motion to compel outright;

2 it has placed significant conditions on the production of the

3 documents it is compelling. There is no basis for sanctions in

4 connection with this order.

5

II. Motion to Amend Complaint

6

Plaintiffs have filed a motion to amend their complaint in

7 order to add a new Plaintiff (and proposed class representative)

8 named Aurelia Martinez. Motion (doc. 73) at 3. If the court so

9 permits, Martinez would become a third Plaintiff in this case,

10 together with Jose Parra and Gonzalo Estrada. Plaintiffs cite Rule

11 15(a), FED.R.Crv.P., which states that where a party seeks leave of

12 court to amend its complaint, "leave shall be freely given when

13 justice to requires." Id. With regard to this standard, the

14 United States Supreme Court has stated:

15

If the underlying facts or circumstances relied upon by a

plaintiff may be a proper subject of relief, he ought to

16

be afforded an opportunity to test his claim on the

merits. In the absence of any apparent or declared

17

reason - such as undue delay, bad faith or dilatory

motive on the part of the movant, repeated failure to

18

cure deficiencies by amendments previously allowed, undue

prejudice to the opposing party by virtue of allowance of

19

the amendment, futility of amendment, etc. - the leave

sought should, as the rules require, be •freely given. •

20

21 Foman v. Davis, 371 U.S. 178, 182 (1962). Plaintiffs urge that in

22 the present case, justice requires that amendment of the complaint

23 be permitted.

24

Bashas• argues that it will be unfairly prejudiced by the

25 proposed amendment as it is filed "with undue delay, in bad faith,

26 and Defendant will be unfairly prejudiced" by the amendment.

27 Response (doc. 99) at 1. They further argue that the proposed

28 amendment will be futile. Id. at 1-2. Specifically, Bashas• notes

- 11 -

Case 2:02-cv-00591-RCB Document 110 Filed 02/23/04 Page 12 of 15

1 that Plaintiffs only now, two years after this case commenced, seek

2 to amend their complaint out of fear that Bashas' will launch a

3 personal attack on Jose Parra, using his criminal record, as well

4 as prior testimony he gave before the National Labor Relations

5 Board, to undermine his credibility. Id. at 2.

6

Bashas' contends that Plaintiffs should have anticipated

7 scrutiny of Parra's suitability as a named class representative in

8 this action, and that it (Bashas') would be unfairly prejudiced by

9 the addition of a new Plaintiff which would have to be scrutinized

10 as well. Id. at pp. 2, 10. Bashas' is particularly concerned that

11 discovery in this case will be significantly extended if a new

12 plaintiff is permitted to be added at this time. Id. at 10.

13

In addition to the foregoing, Bashas' contends that

14 Plaintiffs' proposed amendment would be futile in light of the fact

15 that Martinez works in the "tortilleria" department of Food City, a

16 department which has no counterpart in Bashas' or AJ's store

17 formats. Id. at 10-11. As a result, because of her unique

18 position in Food City, Martinez allegedly would not be able to

19 adequately represent all Hispanic Food City employees in this Title

20 VII action. Id. As a result, she cannot be considered an adequate

21 class representative even if she is added as a plaintiff in this

22 case.

23

The court finds the latter argument, as to futility, to be an

24 issue which goes to the substantive merits of the class

25 certification motion and is not properly raised at this time. With

26 regard to Bashas' concerns about the need to engage in additional

27 discovery at this time, and the significant delays that could cause

28 in this litigation, these issues present a closer call.

- 12-

Case 2:02-cv-00591-RCB Document 110 Filed 02/23/04 Page 13 of 15

1

The court notes that Rule 15(a) is interpreted with

2 significant liberality, and that Bashas' has not met its burden to

3 show undue prejudice by the amendment in this case. This finding

4 warrants permission to amend the complaint. Nevertheless, the

5 court finds that, in fairness, measures should be taken to reduce

6 the burden and/or prejudice that may result (even though it is not

7 sufficient to deny the motion to amend) to Bashas' as a result of

8 this order.

9

The court will order that Plaintiffs may amend their complaint

10 to add Aurelia Martinez as a new plaintiff in this case. The court

11 will further order, however, that only Bashas' will be permitted to

12 depose Martinez, and that it (Bashas') will be permitted to take

13 such additional discovery as may be necessary due to Martinez'

14 inclusion as a proposed class representative. Furthermore, in

15 order to reduce the potential that this order will unduly delay the

16 present litigation, the foregoing additional discovery must be

17 completed within ninety (90) days of the date of this order, on

18 condition that if either party believes this time period to be

19 insufficient, it may move for an extension of this time within

20 thirty (30) days of the date of this order.

21

III. Motion for Extension of Discovery

22

The court finds that the discovery deadlines in this case must

23 be extended in light of the foregoing orders. As a result, the

24 court will modify the current scheduling order in the following

25 manner:

26 1.
27

Defendants shall produce the documents which this court has compelled above (in section I) within ten (10) judicial days of the date of this order.

28 2. Both parties shall notice all remaining non-expert

- 13-

Case 2:02-cv-00591-RCB Document 110 Filed 02/23/04 Page 14 of 15

1
2
3.
3
4
4.
5
6
7
5. 8
9
10
6 . 11

depositions within thirty (30) calendar days of Defendant's production pursuant to this order.
All non-expert depositions shall be complete within twenty-five (25) calendar days of the date by which such depositions must be noticed.
Plaintiffs will identify their expert(s) by name and shall also provide the report, pursuant to Rule 26(a) (2), FED.R.Crv.P., of such expert(s) within forty-five (45) days of the date by which all non-expert depositions must be complete.
Defendants will identify their expert(s) by name and shall also provide the report, pursuant to Rule 26(a) (2), of such expert(s) within forty-five (45) days of the completion of the time by which Plaintiff's must identify and provide the reports of their expert(s).
At this time, the parties' may only designate experts who will testify relative to the class certification issue.

12 7 . No rebuttal experts shall be named without leave of the court.

13 8.
14 15
9 .
16
17

Plaintiffs' identified expert(s) shall be made available for deposition beginning seven calendar days after the date by which Plaintiff must provide to Defendant the report of its expert (s) .
Defendant's identified expert(s) shall be made available for deposition beginning seven calendar days after the date by which Defendant must provide to Plaintiffs the report of its expert (s) .

18 10. All depositions of both parties' identified expert witnesses

shall be completed no later than thirty (30) calendar days

19

after the date by which each party shall have identified (and

provided the report of) their respective expert(s).

20

11. Plaintiffs shall file their motion for class certification

21

within thirty (30) calendar days of the date by which the

depositions of both parties' expert witnesses must be

22

completed.

23 12. The delivery of all documents pursuant to this order shall be

by hand-delivery or fax so as to avoid the time extension of

24

Rule 6, FED.R.Crv.P.

25

IT IS ORDERED that Plaintiffs' motion for leave to file their

26 first amended complaint (doc. 73) is GRANTED.

27

IT IS FURTHER ORDERED that Plaintiffs' motion to compel (doc.

28 85-1) is GRANTED subject to the restrictions outlined in this

- 14-

Case 2:02-cv-00591-RCB Document 110 Filed 02/23/04 Page 15 of 15

1 order.

2

IT IS FURTHER ORDERED that Bashas• motion for a protective

3 order (doc. 101) is DENIED.

4

IT IS FURTHER ORDERED that Plaintiffs• motion for sanctions

5 (doc. 85-2) is DENIED.

6

IT IS FURTHER ORDERED that Plaintiffs• motion for an extension

7 of the scheduling order in this case (doc. 89) is GRANTED in

8 accordance with the terms of this order.

9

DATED this c ~0 day of February, 2004.

10

11

12

Robert

13

Senior

District Judge

14 Copies to counsel of record.

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 15 -

 
 1 Andrew 1. Kahn (SBN 015835)

Elizabeth A. Lawrence CA #111781

2 DAVIS, COWELL & BOWE, LLP 3 100 Van Ness Avenue, 20th Floor

San Francisco, California 94102

4 Phone:

(415) 626-1880

5 Fax:

(415) 676-2860

'~ FICErr-- =IOUGED
~ RECEIVED _ COpy

6 Attorneys for Plaintiffs 7

8

9

IN THE UNITED STATES DISTRICT COURT

10

DISTRICT OF ARIZONA

11 12 JOSE PARRA and GONZALO ESTRADA,

0591

13

14

15

v.

16 BASHAS', INC.

Plaintiffs,

COMPLAINT [CLASS ACTION] DEMAND FOR JURY TRIAL

17

Defendant.

. 18 ------------------------------/

19 INTRODUCTION
20 1. Bashas' Inc. operates several types of grocery stores throughout the State of
21
Arizona. The stores operated under the names of A.J.'s Fine Foods and Bashas' employ 22
predominantly Caucasian, American-born employees. The stores operated under the 23
name Food City employ predominantly Latino employees, who are paid less by Bashas' 24
than the Caucasian employees at A.1.'s Fine Foods and Bashas' for performing the same 25
work. In addition, these Latino employees at Food City are required to work under 26

COMPLAINT

Page 1

1 conditions that are typically less safe and less hygienic than the conditions found at A.J.'s

2 Fine Foods and Bashas'. This disparate treatment is the result of purposeful

3 discrimination.

4

2. This class action is accordingly brought by present and former Latino

5 Bashas' employees on behalf of themselves and all other similarly situated Latino

6 employees who have been subjected to Bashas' continuing policies and practices of race

7 and national origin discrimination. Plaintiffs, and the class that they represent, charge

8 that Bashas' discriminates against its Latino employees by paying Caucasian employees

9 more and denying Latino employees equal job assignments, promotions, training and

10 compensation and by requiring its Latino employees to work in conditions which are

11 physically less desirable and more dangerous.

12

3. This action seeks an end to Bashas' discriminatory practices, make whole

13 relief for the class, and punitive damages.

14

15

JURISDICTION AND VENUE

16

4. Plaintiffs' claims arise under Title VII of the Civil Rights Act of 1964, 42

17 U.S.c. §§2000e, et seq. and under the Civil Rights Act of 1866, as amended, 42 U.S.C. §

18 1981. This Court has jurisdiction over this matter pursuant to 42 U.S.C. § 1981 and

19 §2000e5(f), 28 U.S.C. §§ 1331 and 1343(a)(4).

20

5. Venue is proper in this district pursuant to 42 U.S.C. §2000e5(f) and 28

21 U.S.C. §1391(b) and (c). Plaintiffs' claims arose in the District of Arizona. Members of

22 the Plaintiffs' class reside in the State of Arizona. Defendant is an Arizona corporation.

23 The acts complained of herein occurred in this District and gave rise to the claims alleged.

24 III

25 III

26 III

COMPLAINT

Page 2

1

PARTIES

2

6. Plaintiff Jose Parra is a Latino, born in the United States. He is employed

3 by Defendant Bashas' at a Food City store.

4

7. Plaintiff Gonzalo Estrada is a Latino, born in Mexico. He is employed by

5 defendant Bashas' at a Food City store.

6

8. Defendant Bashas', Inc. is an Arizona corporation with stores throughout

7 the State of Arizona as well as in the states of New Mexico and California. Its corporate

8 headquarters is located in Chandler, Arizona. It operates stores under the names Bashas',

9 AJ's Fine Foods, Food City, Bashas' Mercado and Eddies Country Store.

10

11

CLASS ALLEGATIONS

12

9. Plaintiffs bring this action pursuant to Rule 23 of the Federal Rules of Civil

13 Procedure on behalf of a class of all past, present and future Latino employees of Bashas',

14 Inc. in the State of Arizona. Plaintiffs are members of the class they seek to represent.

15

10. The members of the class are sufficiently numerous that joinder of all

16 members is impracticable.

17

11. There are questions of law and fact common to the class, and these

18 questions predominate over individual questions. Such questions include, without

19 limitation, whether defendant's common operating practices and procedures discriminate

20 against its Latino employees; whether defendant's policies have an adverse impact upon

21 the class and, if so, whether said impact can be justified by business necessity; whether

22 defendant has a policy and practice of retaliating against class members who object to or

23 oppose unlawful employment practices; and whether injunctive and other equitable

24 remedies and punitive damage relief for the class is warranted.

25

12. The claims alleged by the Plaintiffs are typical of the claims of the class.

26 III

COMPLAINT

Page 3

1

13. The named Plaintiffs will fairly and adequately represent and protect the

2 interests of the class.

3

14. This action is properly maintainable under both Federal Rules of Civil

4 Procedure Rule 23(b)(2) and (3) because Defendant has acted or refused to act on grounds

5 generally applicable to the class, thereby making appropriate final injunctive relief or

6 corresponding declarative relief with respect to the class as a whole; and because

7 questions of law and fact common to the class predominate over any questions affecting

8 only individual members, and a class action is superior to other available methods for the

9 fair and efficient adjudication of this case. This action is also properly maintainable

10 under Rule 23(c)(4)(A) for all class issues alleged herein.

11

12

FIRST CLAIM FOR RELIEF (TITLE VII)

13

15. Defendant Bashas', Inc. operates approximately 100 retail grocery stores in

14 the State of Arizona. Those stores are operated under'the names Bashas', Food City, AJ's.

15 Fine Foods, Bashas' Mercado and Eddies' Country Store. All of its employment and

16 personnel policies are established by Defendant Bashas', Inc.'s headquarters in Chandler,

17 Arizona.

18

16. The job duties performed by Plaintiffs and members of their class at

19 Defendant's Food City stores are substantially similar to the job duties performed by

20 Defendant's employees at its Bashas' stores. However, Plaintiffs and the class they

21 represent are paid less on an hourly basis than the similarly situated employees at the

22 Bashas' stores. Plaintiffs are informed and believe that most of the employees at the

23 Bashas' stores are American born and Caucasian while most of the employees, including

24 Plaintiffs, employed at the Food City stores are of non-American national origin and/or of

25 the Latino race. Plaintiffs are informed and believe that they and the class they represent

26 III

COMPLAINT

Page 4

"

1 are paid less than similarly situated employees at Bashas' stores because of their national

2 origin and race.

3

17. Other terms and conditions of employment, including hygiene and the

4 quality of tools and materials provided to employees at the Food City stores, are inferior

5 to the terms and conditions of employment of the similarly situated employees of Bashas'

6 stores. Plaintiffs are informed and believe that these differences of terms and conditions

7 of employment are due to their national origin and race.

8

18. On or about September 26,2001, Plaintiff Jose Parra filed a Charge of

9 Discrimination with the United States Equal Employment Opportunity Commission. On

10 or about November 12,2001 Plaintiff Gonzalo Estrada filed a Charge of Discrimination

11 with the United States Equal Employment Opportunity Commission.

12

19. On or about February 27, 2002, Plaintiffs and each of them were sent a

13 Notice of Right to Sue from the United States Equal Employment Opportunity

14 Commission.

15

20. The conduct described above violates Title VII of the Civil Rights Act of

16 1964,42 U.S.C. §§2000(e), et. seq.

17

21. Defendant Bashas', Inc. has intentionally discriminated against the class and

18 its members and maintained a system for assigning work in its various retail stores that

19 discriminates against employees of non-American national origin and Latino race by

20 paying them less than similarly situated American-born Caucasian employees and

21 requiring them to work under terms and conditions which are inferior to the terms and

22 conditions of similarly situated American-born Caucasian employees of said Defendant.

23

22. Defendant Bashas', Inc. discriminatory practices described above have

24 deprived Plaintiffs and all other persons similarly situated of compensation to which they

25 are entitled, resulting in loss of past and future wages and other job benefits.

26 III

COMPLAINT

Page 5

...

1

23. Defendant has systematically retaliated against employees of non-American

2 national origin and Latino race who have complained about discrimination and unfair

3 treatment.

4

24. Defendant's discriminatory practices described above have resulted in the

5 loss of past and future wages and other job benefits for members of the class.

6

25. Plaintiffs and the class they represent have no plain, adequate or complete

7 remedy at law to redress the wrongs alleged herein and the injunctive relief sought in this

8 action is the only means of securing complete and adequate relief. Plaintiff and the class

9 they represent are now suffering and will continue to suffer irreparable harm from

10 Defendant's discriminatory acts and omissions.

11

26. The actions of Defendant as described hereinbefore have caused and

12 continue to cause Plaintiffs and members of the class they represent substantial losses of

13 earnings and benefits, in amount to be determined according to proof.

14

27. Defendant has acted or failed to act as alleged above intentionally and with

15 malice or reckless indifference to the rights of Plaintiffs and the members of the class

16 they represent. Plaintiffs and members of the class they represent are entitled to recover

17 punitive damages in an amount to be determined according to proof.

18

19

SECOND CLAIM FOR RELIEF (42 U.S.C. § 1981)

20

28. Plaintiffs incorporate herein paragraphs 1 through 27 of the foregoing.

21

29. Defendant has intentionally discriminated against Plaintiffs and their class

22 on the basis of their race in violation of 42 U.S.c. § 1981.

23

24

PRAYER FOR RELIEF

25

WHEREFORE, Plaintiffs and the class they represent pray for relief as follows:

26 III

COMPLAINT

Page 6

1

1. That this case be certified as a class action on behalf of the proposed class

2 of plaintiffs and that Plaintiffs be designated as representatives of the class and their

3 counsel designated counsel for the class;

4

2. That Plaintiffs and the class they represent recover from Defendant all

5 damages received or suffered as a result of Defendant's conduct, including back pay, front

6 pay, general and special damages for lost compensation and job benefits they would have

7 received but for the discriminatory practices of Defendant;

8

3. That Plaintiffs and the class they represent recover from Defendant

9 exemplary and punitive damages in an amount commensurate with Defendant's ability to

10 pay and to deter future conduct;

11

4. That a preliminary and permanent injunction be issued from the Court

12 against Defendant and its directors, officers, owners, agents, successors and employees,

13 representatives and any and all persons acting in concert with them from engaging in each

14 of the unlawful practices, policies, customs and uses set forth hereinbefore;

15

5. That the Court issue a declaratory judgment that the practices complained

16 of in this Complaint are unlawful and violate Title 42 U.S.C. § 1981 and §2000(e) et.

17 seq.;

18

6. That the Court order an adjustment of the wage rates and benefits for

19 Plaintiffs and the class that they represent to rates and benefits to which they would be

20 entitled but for Defendant's discriminatory practices.

21

7. That Defendant be enjoined from maintaining less favorable working

22 conditions and terms and conditions of employment for Plaintiffs and the members of the

23 class they represent;

24

8. That Plaintiffs recover from Defendant their costs of suit herein, including

25 reasonable attorneys fees, to the extent allowable by law;

26 III

COMPLAINT

Page 7

1

9. That Plaintiffs recover from Defendant pre-judgment interest and post-

2 judgment interest as provided by law; and

3

10. That Plaintiffs recover from Defendant such other and further legal and

4 equitable relief as the Court deems necessary, just and proper under the circumstances.

5 Dated: April 2, 2002

DAVIS, COWELL & BOWE, LLP

6 7

BY~~~~/~~_'~~~'~_~'~_V_/.. __ __ _

Andrew J. Kahn

8

Elizabeth A. Lawrence

9

Attorneys for Plaintiffs

10 DEMAND FOR JURy TRIAL
11

12 Plaintiffs demand trial by jury of their claim for relief herein.
13

14 Dated: April 2, 2002 15 16 17 18

DAVIS, COWELL & BOWE, LLP
__ BY__~.~{:~;·.~·I ~~~~L~~=-~~'/<-~".~.____ Andrew J. Kahn Elizabeth A. Lawrence Attorneys for Plaintiffs

19

20

21

22

23

24 25

24/C:lDocumentsldocumOllts\eallraz\bashas' complaint.wpd 411/2002109:59:24

26

COMPLAINT

Page 8

 
 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Gonzalo Estrada and Aurelia Martinez, on No. CV-02-00591-PHX-RCB

10 bsiemhiallafrlyofsittuhaetmeds,e1lves and all individuals

O R D E R

11 Plaintiffs,

12

v. 13

14 Bashas' Incorporated,

15

Defendant.

16

Introduction

17

Currently pending before the court is a motion for reconsideration by defendant

18 Bashas’ Incorporated (Doc. 309). Bashas’ is seeking to have this court reconsider its

19 order in Parra v. Bashas’, Inc., 291 F.R.D. 360 (D.Ariz. 2013), granting plaintiffs’ motion

20 for class certification with respect to their pay claim. For the reasons set forth herein, the

21 court denies defendant Bashas’ motion.

22

Background

23

Pursuant to Fed.R.Civ.P. 23(b)(3), this court certified a class, defining it as

24 follows: 25 26

All Hispanic workers currently and formerly employed by defendant Bashas' Inc. in an hourly position at any Food [C]ity retail store since April 4, 1998, who have

27

28

1

“Originally, Jose Parra also was a named plaintiff, but he has since withdrawn, although

he remains a member of the putative class.” Parra, 291 F.R.D. at 365 n. 3 (citation omitted).

Accordingly, the court is omitting Mr. Parra from the caption.

1

been subject to the challenged pay policies and practices.

2 Id. at 403. Assuming familiarity with the detailed analysis in Parra, and the protracted

3 history of the issue of class certification in this case, the court will proceed directly to an

4 analysis of Bashas’ motion to reconsider.

5

Discussion

6 I. Standard of Review

7

Initially, Bashas’ did not indicate the basis for its reconsideration motion.

8 Nonetheless, it was clear to the plaintiffs, as it is to the court, that 7.2(g)(1) is the basis

9 for this motion. Bashas’ acknowledges as much in its reply, contending that

10 reconsideration is “warranted” because the “plain requirements of LR Civ. 7.2(g)” are

11 met in this case. Reply (Doc. 314) at 1:25-26.

12

As pertinent here, in accordance with LR Civ. 7.2(g)(1), “[t]he Court will

13 ordinarily deny a motion for reconsideration . . . absent a showing of manifest error[.]”

14 LR Civ. 7.2(g)(1). The term “manifest error” is “an error that is plain and indisputable,

15 and that amounts to a complete disregard of the controlling law or the credible evidence

16 in the record.” Black's Law Dictionary 622 (9th ed. 2009) (“Black’s”). Rule 7.2(g)(1)

17 also requires, inter alia, that motions thereunder “point out with specificity the matters

18 that the movant believes were overlooked or misapprehended by the Court[.]” LR Civ.

19 7.2(g)(1). Additionally, Rule 7.2(g)(1) prohibits “repeat[ing] any oral or written

20 argument made by the movant in . . . opposition to the motion that resulted in the Order.”

21 Id. Lastly, Rule 7.2(g)(1) grants courts the discretion to deny a motion for

22 reconsideration for failure to comply therewith.

23

In addition to complying with LR Civ. 7.2(g)(1), a party moving for

24 reconsideration must take into account the narrow scope of such a motion.

25 “[D]issatisfaction or disagreement is not a proper basis for reconsideration[.]” Ellsworth

26 v. Prison Health Services Inc., 2013 WL 1149937, at *2 (D.Ariz. March 20, 2013)

27 (internal quotation marks and citations omitted); see also Dennis v. Ayers, 2008 WL

28 1989304, at *1 (N.D.Cal. May 6, 2008) (Petitioner's disagreement “with the Court's prior

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1 resolution of the claim . . . is, of course, [an] insufficient [basis] for . . . grant[ing] a

2 motion for reconsideration.”) Likewise, a motion for reconsideration may not be used to

3 “ask[] this court to rethink what [it] . . . already thought through, rightly or wrongly.”

4 Morgal v. Maricopa County Bd. of Sup’rs, 2012 WL 2368478, at *1 (D.Ariz. June 21,

5 2012) (internal quotation marks and citations omitted). Reconsideration motions “are

6 not the place for parties to make new arguments not raised in their original briefs.”

7 Motorola, Inc. v. J.B. Rodgers Mech. Contractors, 215 F.R.D. 581, 582 (D.Ariz. 2003) 8 (citing Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th
9 Cir. 1988)). Thus, as is evident, “‘[m]otions for reconsideration are disfavored and should 10 be granted only in rare circumstances.’” Ellsworth, 2013 WL 1149937, at *1 (quoting 11 Morgal, 2012 WL 2368478, at *1 (other quotation marks and citation omitted). It is 12 against this legal backdrop that the court will consider Bashas’ reconsideration motion.2

13

14

2

Before doing so, however, there is one preliminary issue arising from Bashas’ reliance

15

upon portions of deposition testimony, which it acknowledges were not part of its opposition to class certification. See Reply (Doc. 314) at 6:25-28, n. 2. Bashas’ is relying upon those deposition excerpts to

16

argue that it is “entitled to a trial on each of the pay equalization measures [it] took over a several-year period.” Reply (Doc. 314) at 6:1 (emphasis omitted).

17

Bashas’ contends that it is entitled to supplement the record in that regard because “on remand

18

from the Ninth Circuit[]” the plaintiffs modified their class definition. Id. at 6:26-27, n. 2. Actually, the plaintiffs modified their class definition, not “on remand,” but, rather, when they decided not to pursue

19

“on appeal” the “so-called [] Subject Placement claim[.]” See Parra, 291 F.R.D. at 373 (internal
quotation marks and citation omitted).

20

Of arguably more import is the fact that United States v. $405,089.23 U.S. Currency, 122 F.3d

21

1285 (9th Cir. 1997), Bashas’ sole legal authority for allowing it to supplement the record, is wholly distinguishable. Based upon evidence obtained after the institution of that action, the district court found

22

that the Government had established probable cause for the forfeiture of the targeted assets. Finding to the contrary, the Ninth Circuit reversed. Instead of remanding with instructions to grant summary

23

judgment in favor of the claimants, the Ninth Circuit instructed the district court to give the Government an opportunity to supplement the record. Id. at 1291-1292.

24

The Ninth Circuit did so for two reasons. First, after the district court had granted summary

25

judgment in the Government’s favor, there was an intervening Ninth Circuit decision making clear that in this Circuit the Government is prevented from relying upon evidence obtained after the institution of

26

forfeiture proceedings to support a probable cause finding. Second, the Ninth Circuit relied upon the Government’s representations that it possessed evidence obtained prior to the institution of that forfeiture

27

proceeding to establish the necessary probable cause. It is patently obvious that neither of those relatively unique circumstances is present here. Thus, $405,089.23 U.S. Currency does not provide a

28

basis for allowing Bashas’ to supplement the record at this late stage. This is all the more so given the possible prejudice to plaintiffs which would occur by allowing Bashas’ to supplement the record in its

reply. Accordingly, the court is not considering the three exhibits attached to Bashas’ reply.

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1 II. Analysis

2

Bashas’ diffuse approach makes it difficult to ascertain the precise grounds which

3 it claims warrant reconsideration. What is readily ascertainable though is that Bashas’

4 has not met the demanding standards necessary to warrant granting the extraordinary

5 remedy of reconsideration. See 11 C. Wright & A. Miller, Federal Practice and

6 Procedure § 2810.1 (2d ed.1995) (The granting of a motion for reconsideration “is an

7 extraordinary remedy which should be used sparingly.”)

8

Despite LR Civ. 7.2(g)(1)’s prohibition against repetitive arguments, at the outset

9 Bashas’ essentially concedes that it is repeating its argument that there are facts in dispute

10 precluding a finding of class-wide liability. See Mot. (Doc. 309) at 1:20-21 (“As Bashas’

11 explained in its prior briefs, there are facts in dispute, which preclude deciding liability

12 on a class-wide basis.”) This is not the only argument which is repetitive, and hence is an

13 improper basis for reconsideration. Bashas’ motion and reply include a litany of other

14 arguments which are all too familiar to this court.

15

Just as it did in opposing class certification, Bashas’ argues that “individual issues

16 predominate over any common ones.” Compare Mot. (Doc. 309) at 4:21-22 (emphasis

17 omitted) with Resp. to Mot. for Class Certification (Doc. 190) at 72-76; and Supp.

18 Opening Br. (Doc. 301) at 19:9-20. Of course, after a fairly in-depth analysis, this court

19 found to the contrary. See Parra, 291 F.R.D. at 390-393. Continuing to maintain that

20 individual issues predominate, Bashas’ reiterates that some unspecified class members

21 were not harmed by its two-tiered wage scale. More specifically, Bashas’, as it did previously, asserts that “there were Food City employees in job categories which had
22 23 higher wage rates than those paid to their counterparts at Bashas’.” Compare Mot. (Doc.
309) at 1:24-26 (emphasis in original) with Supp. Opening Br. (Doc. 301) at 4:10-11 24
(emphasis added) (“Some Food City pay rates were the same or actually higher than 25
those used at Bashas’ or A.J.’s stores.”); id. at 14:1-3 (emphasis added) (“The reality is 26 that there were differences in pay scales between formats, and some Food City employees 27 (Hispanic or not) fared better than their A.J.’s and Bashas’ counterparts while others did 28 not.”)

- 4 -

1

Additionally, Bashas’ continues to argue that because its wage scales were

2 equalized over time, there will need to be separate liability trials for “many” of the pay

3 steps. See Mot. (Doc. 309) at 6:6. This, too, is an argument which has previously been

4 made to this court, and hence is not a proper basis for seeking reconsideration. See

5 Supp. Opening Br. (Doc. 301) at 5:20-22; and at 5: 8-9 (“[T]o determine whether – and to

6 what extent -- any Food City employees was paid less than a counterpart at Bashas’ or

7 A.J.’s, assuming such a counterpart existed, would turn on these assorted individual

8 variables[,]” including “the equalization of pay rates for different positions occur[ring] at

9 different paces[.]”).

10

Bashas’ argument that manager discretion may have favored Hispanics is yet

11 another example of Bashas’ repeating a previously made argument. Compare Mot. (Doc.

12 309) at 2:24-28 (“[D]epending on what a particular store manager values in a new

13 employee . . . , a Food City employee could have been placed higher on the pay scale

14 than he would have been placed had he applied at a Bashas’ store run by a different

15 manager with different priorities and different (and evolving) needs.”) with Supp.

16 Opening Br. (Doc. 301) at 14:6-7 (“[I]n some instances, employees may have benefited

17 from this discretionary practice while, in others, they may have not[.]”) As an aside, the

18 court observes, as the plaintiffs note, that the record evidence is that “[i]n every year

19 studied, Hispanics are paid less than whites assigned to the same position at the time of

20 hire and the differences are statistically significant in every year, except 1999.” Rebuttal

21 Report of Dr. Richard Drogin, Ph.D. (Sept. 3, 2004) at 2, ¶ 6 (emphasis added). Thus, not only is Bashas’ asserting an improper basis for reconsideration, but the record as
22 presently constituted substantively undermines its manager discretion argument.
23 The foregoing arguments are by no means the only repetitious arguments made by
24 Bashas’, but they are illustrative and highlight Bashas’ dissatisfaction or disagreement
25 with Parra, 291 F.R.D. 360. Such repetitious arguments also readily show that essentially
26 Bashas’ is asking this court to rethink Parra. Neither is a proper basis for a motion to 27 reconsider, however. See discussion supra at 2-3.

28

Especially because Bashas’ motion and reply are rife with repetitive arguments,

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1 the court would be well within its discretion in denying reconsideration on that basis

2 alone, as LR Civ. 7.2(g)(1) contemplates. There is another equally compelling reason for

3 denying reconsideration, however: Bashas’ has not shown manifest error so as to warrant

4 reconsideration pursuant to LR Civ. 7.2(g)(1). It is not enough to simply incant the

5 phrase “manifest error.” See Mot. (Doc. 309) at 1:17. Bashas’ must identify each such

6 error and explain how it is “plain and indisputable[,] . . . amount[ing] to a complete

7 disregard of the controlling law or the credible evidence in the record.” See Black’s.

8 Bashas’ has not done that.

9

Although Bashas’ claims that Parra contains “at least two manifest errors[,]” it

10 only explicitly identifies one. See Mot. (Doc. 309) at 1:17. In its reply Bashas’ declares:

11 “This alone is manifest error: [This] Court[] assume[d] that, where a pay step at Food

12 City is lower than the same pay step at Bashas’, more Hispanic employees occupy that

13 pay step at Food City than White employees.” Reply (Doc. 314) at 5:14-16 (citation

14 omitted). Even assuming arguendo that the court explicitly or implicitly made such an

15 assumption (which it did not), Bashas’ has not explained how that assumption “amounts

16 to a complete disregard of the controlling law or the credible evidence in the record.”

17 See Black’s (emphasis added). Furthermore, the foregoing does not, as Bashas’

18 presupposes, equate to an assumption that the plaintiffs established a prima facie case of

19 disparate impact. That determination must await another day.

20

Additionally, it appears as though Bashas’ also is claiming that the “finding [in

21 Parra, 291 F.R.D. 360] that the pay scales at Bashas’ and A.J.’s stores were higher than

those at Food City[]” was manifest error. See Mot. (Doc. 309) at 1:26-27 (internal

22

quotation marks omitted). This is because Bashas’ asserts that that “finding . . . is not

23

true for the entire class[]” in that there were “Food City employees who earned more than

24

their counterparts at Bashas’ stores[.]” Id. at 1:27-2:1. Those employees, Bashas’

25

argues, “cannot recover damages” in that “they actually benefitted from the pay scales.”

26 Id. at 2:1-2.

27

Bashas’ has not met its burden of showing that that finding constitutes manifest

28 error. First, that finding is based upon one of “‘three significant . . . conce[ssions]’” by

- 6 -

1 Bashas’. Parra v. Bashas’ Inc., 291 F.R.D. 360, 374 (D.Ariz. 2013) (quoting Parra v.

2 Bashas’ Inc., 536 F.3d 975, 979 (9th Cir. 2008) (other citation omitted). More

3 specifically, this court recited that “the pay scales at Bashas’ and A.J.’s stores were

4 higher than those at Food City during the period 1998-2000[.]” Id. (emphasis added).

5 It is difficult if not impossible to see how a previous concession by Bashas’, adopted by

6 the Ninth Circuit and this court, can support a finding of manifest error, i.e., a complete

7 disregard of the credible evidence.

8

Second, Bashas’ has not shown a complete disregard of the controlling law on this

9 point. The court did not hold, as Bashas’ implies, that class members who were not

10 actually harmed or did not sustain an actual injury can recover monetary damages. This

11 court simply held that the plaintiffs had “provide[d] the ‘convincing proof of a

12 companywide discriminatory pay . . . policy’ missing from Dukes[]” to support a finding

13 of commonality. Parra, 291 F.R.D. at 374 (quoting Wal-Mart Stores, Inc. v. Dukes, 564

14 U.S. ----, ----, 131 S.Ct. 2541, 2556, 180 L.Ed.2d 374 (2011)).

15

Bashas’ other reconsideration theories likewise are unavailing. In its reply,

16 Bashas’ clarifies that its first “dispositive” reconsideration argument is that the

17 “[p]laintiffs have not established a prima facie case of discrimination with respect to any

18 of the proposed class members[.]” Reply (Doc. 314) at 1:16-18. Bashas’ does not

19 correlate this argument to its motion for reconsideration though. It does not, for example,

20 explain how plaintiffs’ alleged shortcomings in proof translate to manifest error, or 21 otherwise justify reconsideration here, and the court declines to speculate.
Suffice it to say that neither of the cases to which Bashas’ cites, Moran v. Selig, 22
447 F.3d 748 (9th Cir. 2006) (disparate treatment), and Garcia v. Spun Steak Co., 998 23 F.2d 1480 (9th Cir. 1993) (disparate impact), stand for the proposition that at the class 24
certification stage it is incumbent upon the plaintiffs in the first instance to make a prima 25
facie showing of discrimination stage. Rather, in both of those cases, the courts were 26 examining the sufficiency of plaintiffs’ prima facie proof at the summary judgment stage. 27 Consequently, neither Moran nor Garcia advance Bashas’ reconsideration argument on

28 this issue.

- 7 -

1

Further, and in keeping with the controlling law, in Parra this court expressly

2 declined to “‘turn the[] class certification proceedings into a dress rehearsal for the trial

3 on the merits.’” Parra, 291 F.R.D. at 368 (quoting Messner v. Northshore University

4 HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012) (citations omitted)). That “prohibition

5 on requiring Plaintiffs to establish their claims at the class certification stage was . . .

6 reinforced by the Supreme Court in Amgen Inc. v. Connecticut Retirement Plans and

7 Trust Funds, --- U.S. ---, 133 S.Ct. 1184, 185 L.Ed.2d 308 (2013).” Parsons v. Ryan, 289

8 F.R.D. 513, 516 (D.Ariz. 2013). There, as this court pointed out in Parra, the Supreme

9 Court “cautioned that ‘Rule 23 grants no license to engage in free-ranging merits inquires

10 at the certification stage.’” Parra, 291 F.R.D. at 368 (quoting Amgen, 133 S.Ct. at 1194-

11 95) (other citation omitted); see also Smith v. Microsoft Corp., 2014 WL 323683, at *2 12 (S.D.Cal. Jan. 28, 2014) (quoting Staton v. Boeing Co., 327 F.3d 938, 954 (9th Cir. 2003)

13 (citations and internal quotation marks omitted)) (“‘Although some inquiry into the

14 substance of a case may be necessary[,]’ however, ‘it is improper to advance a decision

15 on the merits to the class certification stage.’”) In part, that is because, as this court also

16 previously recognized, “‘Rule 23(b)(3) requires a showing that questions common to the

17 class predominate, not that those questions will be answered, on the merits, in favor of

18 the class.’” Id. (quoting Amgen, 133 S.Ct. at 1191) (emphasis in original). Thus, “it

19 remains relatively clear that an ultimate adjudication on the merits of plaintiffs’ claims is

20 inappropriate, and that any inquiry into the merits must be strictly limited to determining

21 whether plaintiff’s allegations satisfy Rule 23.” See Herrera v. Service Employees

Intern. Union Local 87, 2013 WL 1320443, at *2 (N.D.Cal. April 1, 2013) (citing Ellis v. 22
Costco Wholesale Corp., 657 F.3d 970, 983 n. 8 (9th Cir. 2011)). Seemingly, Bashas’ is

23

overlooking the purpose of a Rule 23(b)(3) certification. It is “‘not to adjudicate the case;

24

rather, it is to select the metho[d] best suited to adjudication of the controversy fairly and

25 efficiently.’” Parra, 291 F.R.D. at 390 (quoting Amgen, 133 S.Ct. at 1191) (internal

26 quotation marks omitted).

27

Consistent with the foregoing, in Parra this court did not delve into whether the

28 plaintiffs made a prima facie showing of discrimination, an inquiry Bashas’ strongly

- 8 -

1 implies this court should have undertaken in Parra. Moreover, despite what the parties

2 seem to believe, nothing in Parra, 291 F.R.D. 360, excuses the plaintiffs from having to

3 establish a prima facie case of discrimination. And, at least with respect to the disparate

4 impact claim,3 the plaintiffs must prove such charge by a preponderance of the evidence.

5 See Paige v. California, 291 F.3d 1141, 1145 n. 4 (9th Cir. 2002) (citations omitted). At

6 this point, however, “‘[n]either the possibility that [the] plaintiff[s] will be unable to

7 prove [their] allegations, nor the possibility that the later course of the suit might

8 unforeseeably prove the original decision to certify the class wrong, is a basis for’”

9 reconsidering the decision “‘to certify a class which apparently satisfies the Rule.’” See

10 Wolin v. Jaguar Land Rover North America, LLC, 617 F.3d 1168, 1173 (9th Cir. 2010) 11 (quoting Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975)).

12

Before concluding, the court must address the pending stipulation (Doc. 316),

13 wherein the parties stipulate to amend the class definition. In light of that stipulation, the

14 class definition is hereby amended and is defined as follows:

15

All Hispanic workers currently and formerly employed by defendant Bashas’ in an hourly position at any Food City

16

retail store between April 4, 1998 and July 1, 2007, who have

17

been subject to the challenged pay policies and practices. The Class does not include any member who worked for Food City for less

18

than eight (8) hours during the Class Period or any person who

19

was first hired for an hourly position at Food City after January 2, 2005.

20

Conclusion

21

To conclude, the court hereby ORDERS that:

22

(1) Bashas’ Motion for Reconsideration of Order Certifying Class on Plaintiffs’

23 Pay Claim (Doc. 309) is DENIED;

24

(2) Pursuant to the parties’ stipulation (Doc. 316), the class definition is

25 AMENDED and the class is defined as set forth above; and

26

(3) Within fourteen (14) days from the date of entry of this Order, in conformity

27 with Fed.R.Civ. P. 23(c)(2)(B), the parties shall submit jointly an agreed upon form of

28

3

It appears to the court, as it does to Bashas’, that at this juncture, the plaintiffs’ only

remaining theory of discrimination is disparate impact.

- 9 -

1 notice, incorporating the amended class definition set forth above, a joint proposal for

2 dissemination of the notice, and the time-line for opting out of the action. The plaintiffs

3 must bear the costs of the notice, which shall include mailing by first-class mail.

4

Dated this 31st day of March, 2014.

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 Case 2:02-cv-00591-DJH Document 327 Filed 08/27/14 Page 1 of 21

1 Jocelyn D. Larkin, Pro Hac Vice jlarkin@impactfund.org
2 THE IMPACT FUND 125 University Avenue, Suite 102
3 Berkeley, CA 94710 4 Telephone: (510) 845-3473
Facsimile: (510) 845-3654
5

Elizabeth A. Lawrence, AZ SBN 021537 6 eal@dcbsf.com
7 DAVIS, COWELL & BOWE, LLP 595 Market Street, Suite 1400
8 San Francisco, CA 94105

9

Telephone: Facsimile:

(415) 597-7200 (415) 597-7201

10

11 Attorneys for Plaintiffs and the Certified Class

12

13

UNITED STATES DISTRICT COURT

14

DISTRICT OF ARIZONA

15
16 GONZALO ESTRADA; AURELIA MARTINEZ, on behalf of themselves and all
17 individuals similarly situated,

18
19
v.
20
21 BASHAS’, INC.,

Plaintiffs,

22

Defendant

23

Case No. CIV 02-0591- DJH
MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT, FOR APPROVAL OF CLASS NOTICE AND NOTICE PLAN, AND FOR SETTING OF FINAL APPROVAL SCHEDULE
HEARING REQUESTED

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Case 2:02-cv-00591-DJH Document 327 Filed 08/27/14 Page 2 of 21

TABLE OF CONTENTS
1

2 I. INTRODUCTION 3 II. CASE BACKGROUND ................................................................................................ 1
4
A. Relevant Factual Allegations ............................................................................... 1
5
B. Procedural Background ........................................................................................ 3
6
7 III. SETTLEMENT HISTORY AND TERMS ................................................................... 6

8

A. Settlement Negotiations ........................................................................................ 6

9

B. The Terms of the Proposed Settlement ................................................................ 7

10
IV. ARGUMENT ............................................................................................................... 10
11

A. Legal Standards for Preliminary Settlement Approval...................................... 10
12

13

B. The Proposed Settlement Falls Within the Range of Possible Approval, Does Not

14

Grant Preferential Treatment to Segments of the Class, and Shows No Obvious

15

Deficiencies ........................................................................................................ 11

16

C. The Proposed Settlement Was the Product of Serious, Informed, Non-Collusive

17

Negotiations by Experienced Counsel ............................................................... 13

18

D. The Proposed Settlement is Reasonable in Light of the Risks, Expense, and Delay

19

Inherent in Continued Litigation ........................................................................ 14

20
V. THE PROPOSED NOTICE AND NOTICE PLAN SHOULD BE APPROVED ...... 14
21

22 VI. THE COURT SHOULD SET A FINAL APPROVAL SCHEDULE ......................... 15

23 VII.CONCLUSION ............................................................................................................ 16

24

25

26

27

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TABLE OF AUTHORITIES
1
2 Cases 3 Carter v. Anderson Merchandisers, LP, 4 2010 WL 1946784 (N.D. Cal. May 11, 2010).................................................................. 13 5 Churchill Vill., LLC v. Gen. Elec., 6 361 F.3d 566 (9th Cir. 2004) ............................................................................................ 14 7 Class Plaintiffs v. City of Seattle, 8 955 F.2d 1268 (9th Cir. 1992) .......................................................................................... 10 9 Estrada v. Bashas’ Inc., 10 2014 WL 1319189 (D. Ariz. Apr. 1, 2014) .........................................................................6 11 Hanlon v. Chrysler Corp., 12 150 F.3d 1011 (9th Cir. 1998) .......................................................................................... 10 13 Horton v. USAA Cas. Ins. Co., 14 266 F.R.D. 360 (D. Ariz. 2009) ........................................................................................ 11 15 In re Nasdaq Mkt.-Makers Antitrust Litig., 16 176 F.R.D. 99 (S.D.N.Y. 1997) ........................................................................................ 11 17 Nachshin v. AOL, LLC, 18 663 F.3d 1034 (9th Cir. 2011) .......................................................................................... 12 19 Officers for Justice v. Civil Serv. Comm’n of San Francisco, 20 688 F.2d 615 (9th Cir. 1982) ............................................................................................ 11 21 Parra v. Bashas, Inc., 22 2005 WL 6182338 (D. Ariz. Aug. 29, 2005)................................................................ 2,3,4 23 Parra v. Bashas’ Inc., 24 536 F.3d 975 (9th Cir. 2008) ........................................................................................ 2,3,5 25 Parra v. Bashas’ Inc.,

26 291 F.R.D. 360 (D. Ariz. 2013) ....................................................................................... 1,5

27

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Case 2:02-cv-00591-DJH Document 327 Filed 08/27/14 Page 4 of 21

1 Satchell v. Fed. Express Corp.,

2 2007 WL 1114010 (N.D. Cal. Apr. 13, 2007) .................................................................. 15

3 Tijero v. Aaron Bros., Inc.,

4 2013 WL 60464 (N.D. Cal. Jan. 2, 2013)......................................................................... 12

5 Vasquez v. Coast Valley Roofing, Inc.,

6 670 F. Supp. 2d 1114 (E.D. Cal. 2009) ............................................................................ 14

7 Vizcaino v. Microsoft Corp.,

8 290 F.3d 1043 (9th Cir. 2002) .......................................................................................... 13

9
Rules
10

11 Fed. R. Civ. P. 23(e)....................................................................................................... 10,13

12 Fed. R. Civ. P. 23(e)(1).................................................................................................. 15,17

13 Manual for Complex Litigation (Fourth)

14 § 21.632, 21.634............................................................................................................... 13

15

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1 I.

INTRODUCTION

This employment discrimination class action, filed in April 2002, alleges that
2

defendant Bashas’ Inc. violated Title VII and Section 1981 when it used lower pay scales to
3

pay its Hispanic Food City hourly workers from 1998 to 2007. (ECF No. 1 ¶¶ 4, 16, 28.) In
4
May 2013, after many years of litigation, this Court granted certification of a class of over
5
12,000 Hispanic Food City workers challenging the discriminatory pay policy. Parra v.
6
Bashas’ Inc. (Bashas’ III), 291 F.R.D. 360, 403 (D. Ariz. 2013).1
7
The parties have now reached a settlement of the case. Plaintiffs submit the proposed
8
settlement for this Court’s preliminary approval as required by Federal Rule of Civil
9 Procedure Rule 23(e).2 Plaintiffs further request by this motion that the Court approve the

10
class notice and notice plan, and set a schedule for the final approval hearing.

11

II. CASE BACKGROUND 12

A. Relevant Factual Allegations
13

14

Defendant operates approximately 130 grocery stores in Arizona under three trade

15 names. “Bashas’” grocery stores provide a conventional supermarket format. “A.J.’s Fine

16 Foods” are gourmet stores with an extensive wine collection and specialty goods and

17 services. (ECF No. 301 at 3.) The “Food City” stores cater to Hispanic customers.

18

Although each store format is marketed toward a different audience, Plaintiffs allege

19 that the hourly job positions available at each location are virtually identical. For example,

20 each store, regardless of format, has grocery clerks, bakery clerks, produce clerks, and meat

21 cutters. Moreover, “the job requirements for the employees at the stores are practically 22 indistinguishable,” whether the employee works at A.J.’s Fine Foods, Bashas’, or Food City. 23 Parra v. Bashas’ Inc. (Bashas’ II), 536 F.3d 975, 977 (9th Cir. 2008).

24 1 In 2014, the Court re-named the case, originally known as Parra v. Bashas’ Inc., to reflect 25 the identity of the lead named Plaintiff, Gonzalo Estrada. (ECF No. 317 at 1.)

26 2 Plaintiffs have requested a hearing on the motion for preliminary approval because the case 27 was recently reassigned to this Court, which is not familiar with the history of the case.

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1

While the jobs responsibilities are consistent across store formats, the employee

2 demographics are not. The Bashas’ and A.J.’s Fine Foods stores are staffed predominantly

3 by white employees, while the Food City employees are disproportionately Hispanic. Id.

4 During the relevant class period, Hispanic workers comprised approximately 75 percent of

5 the hourly workforce in Food City stores, but only about 15 percent of the Bashas’ and A.J.’s

6 Fine Foods hourly workforce. Id.

7

This case challenges a pay policy under which Food City workers were paid less than

8 workers at Bashas’ and A.J.’s Fine Foods, as documented in the company’s written pay

9 scales. The company president personally set, reviewed, and modified the company’s

10 written pay scales every year. Each hourly job on the scales was divided into pay steps,

11 which corresponded to the number of hours worked in the job classification. There was a

12 pay rate set for each job step. Defendant used these written pay scales to set pay for its

13 hourly workers. See Parra v. Bashas, Inc. (Bashas’ I), 2005 WL 6182338, at *1 (D. Ariz.

14 Aug. 29, 2005). From at least 1998 until at least 2003, Bashas’ used separate pay scales for

15 the three store formats. Bashas’ II, 536 F.3d at 979.

16

The pay scale that Defendant used for Food City set lower wages for many of Food

17 City’s predominantly Hispanic workers than for their counterparts in the same positions at 18 Bashas’ and A.J.’s Fine Foods.3 Id. When the first Food City opened in 1994, Defendant

placed the Food City employees on a lower pay scale than the scale used at Bashas’ stores.
19

Bashas’ I, 2005 WL 6182338, at *2. As the Food City line expanded, Defendant converted
20

some existing Bashas’ stores into Food City stores. See id. at *1. When such conversions
21
occurred, Defendant continued to pay the incumbent employees the Bashas’ pay rates, but
22
new employees, who were primarily Hispanic, were paid at the lower Food City scale. Id.
23
In 2001, the employer began to raise some of the pay steps for Food City workers to
24
bring them in line with workers at the Bashas’ and A.J’s stores. See id., at *2. In 2002,
25

26 3 Not every job at Food City had a lower pay scale. For example, in all formats, courtesy 27 clerks (i.e. baggers) were paid minimum wage. (ECF No. 228.)

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1 additional pay rates were raised but the pay scales remained lower at Food City for numerous

2 jobs or pay steps within jobs. By 2003, the written pay scales were equalized for most, but

3 not all, jobs at Food City. Bashas’ II, 536 F.3d at 977. For those employees whose pay rates

4 were raised, the pay scale adjustments affected only future paychecks, and did not address

5 past under-compensation. Id.

6

Despite the phased-in modification of the policy, approximately 2200 Hispanic Food

7 City employees held jobs that still were subject to the lower pay scale in 2001. In 2002, the

8 number of lower-paid Hispanic Food City workers was still more than 840. By 2003, more

9 than 750 Hispanic workers were still paid based upon lower pay rates than their counterparts

10 at Bashas’. (ECF No. 228, Exs. 1-9) (2001 - 2003 Pay Scale Differences). Those disparities

11 continued into 2004, and were not entirely eliminated until 2007.

12

The result of these pay disparities was significant. For example, in 1999, an

13 experienced (Step 4) grocery clerk at Food City was paid $.82 less per hour than a Step 4

14 grocery clerk with the same experience at Bashas’ or A.J.’s. (ECF No. 161, Ex. 12) (1999

15 Pay Scales). Over the period of a year, this amounted to a difference of $1640 for a full-time

16 worker (assuming 2,000 hours worked per year). See Bashas’ II, 536 F.3d at 977 (“The[]

17 hourly disparities translate to annual salary differences of around $300 per year to almost

18 $6,000 per year.”).

19

B. Procedural Background

20

Plaintiff José Parra filed a charge of discrimination with the Equal Employment

21 Opportunity Commission in September 2001, on behalf of himself and all other similarly

22

23

24

25

26

27

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1 situated Hispanic Food City workers.4 (See ECF No. 1 ¶ 18.) Plaintiff Gonzalo Estrada filed 2 a class charge with the EEOC in November 2001.5 (See id.)

3

Parra and Estrada filed this class action on April 4, 2002. Id. Plaintiffs filed a first

4 amended complaint, adding Aurelia Martinez as a named plaintiff, on March 11, 2004.6

5 (ECF No. 116.) The amended complaint alleged that Defendant’s pay policies and practices

6 discriminated against Hispanic Food City workers in violation of Section 1981 and Title VII

7 of the Civil Rights Act of 1964. (Id. ¶¶ 4, 17.) The amended complaint also alleged that

8 Food City workers were subject to working conditions that were inferior to those provided to

9 their counterparts in the other formats. (Id. ¶ 18.) Plaintiffs challenged these policies and

10 practices under both the disparate treatment and disparate impact theories.

11

Plaintiffs moved for class certification in September 2004. (ECF No. 159.) Plaintiffs

12 sought to certify two claims: unequal pay and disparate working conditions. In 2005, the

13 Court certified a class challenging disparate working conditions. Bashas’ I, 2005 WL

14 6182338, at *20. The Court declined to certify the unequal pay claim, concluding that since

15 the pay scales were “now almost identical,” Rule 23(a)(2) commonality was lacking among

16 class members. Id. at *16. Plaintiffs filed a motion for reconsideration, which the Court

17 denied on March 29, 2006. (ECF Nos. 225, 234.)

18

Plaintiffs obtained interlocutory review of the class certification order. On July 29,

2008, the Ninth Circuit reversed, holding that the district court had “abused its discretion in
19

failing to find commonality existed in the original class definition.” Bashas’ II, 536 F.3d at
20

21
4 Plaintiff José Parra was a journeyman meat cutter for Food City beginning in 1996. (ECF 22 No. 168 ¶ 3.) Parra ultimately chose not to serve as a named Plaintiff in the case.

23 5 Estrada was employed from April 1999 to July 2002 in a Food City store as a deli clerk

24 and later in the meat department. (ECF No. 176 ¶ 1.) He learned in 2001 that his pay was less than comparable employees at Bashas’. (Id. ¶ 9.)
25

26 6 Plaintiff Aurelia Martinez was employed at Food City between July 1991 and January 2012, and worked as a tortilleria clerk. (See ECF No. 163 ¶ 2; Declaration of Martinez in
27 Support of Motion for Service Awards ¶ 4, filed concurrently.)

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1 979. Concluding that Plaintiffs had satisfied Rule 23(a)(2), the Court of Appeals remanded

2 for “consideration of the remaining class certification factors in accordance with this

3 opinion.” Id. at 980.

4

The Ninth Circuit then remanded the case to this Court.7 However, this Court did not

5 decide the issue for several years, due to two external proceedings. First, Bashas’ filed a

6 voluntary Chapter 11 bankruptcy petition in July 2009, which resulted in an automatic stay

7 of the proceedings until August 2010. (ECF Nos. 288, 293.) Second, in December 2010, the

8 Court deferred resolution of the remanded certification motion pending the Supreme Court’s

9 decision in Wal-Mart Stores, Inc. v. Dukes. (ECF No. 295 at 2.)

10

The Supreme Court decided Wal-Mart on June 20, 2011. 131 S. Ct. 2541 (2011). At

11 this Court’s direction, the parties then filed supplemental briefs explaining the impact of the

12 Wal-Mart decision in September 2011. (ECF Nos. 301, 302, 303, 304.) In May 2013, the

13 Court issued an order certifying Plaintiffs’ pay claim pursuant to Rule 23(b)(3) and

14 decertifying Plaintiffs’ working conditions claim. Bashas’ III, 291 F.R.D. at 403. Judge

15 Broomfield wrote a thorough 103-page order concluding that the unequal pay claim could be

16 certified even under the more challenging framework set forth in Wal-Mart. Id. at 373-76. 17 The Court noted that Bashas’ could not “now distance itself from three significant 18 concessions it made earlier in this litigation”—namely, that:

19

(1) Food City Stores have a higher percentage of Hispanic employees compared to

Bashas’ or A.J.’s stores, (2) the pay scales at Bashas’ and A.J.’s stores were

20

higher than those at Food City during the period 1998-2000, and (3) Hispanic

21

employee hourly rates were lower in similar jobs.

Bashas’ III, 291 F.R.D. at 374 (internal quotation marks, citations, and alterations omitted).
22

The Court concluded that “Bashas’ wage scales, in combination with these concessions,
23

provide the ‘convincing proof of a companywide discriminatory pay . . . policy’ missing
24

from [Wal-Mart].” Id. (quoting Wal-Mart, 131 S. Ct. at 2556).
25

26 7 Bashas’ filed a petition for a writ of certiorari with the United States Supreme Court, 27 which the Court denied on January 26, 2009. (See ECF No. 276.)

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1

The Court concluded that the working conditions claim could not be certified after

2 Wal-Mart because (1) “in contrast to their pay claim, plaintiffs have not explained how

3 continued class certification of the working conditions claim has ‘the capacity to generate

4 common answers apt to drive the resolution of this litigation,’” id. at 401 (quoting Wal-Mart,

5 131 S. Ct. at 2551 (internal alteration omitted)), and (2) Plaintiffs’ anecdotal evidence on this

6 claim was insufficient to satisfy Wal-Mart, id. at 401-02. In June 2013, Bashas’ filed a

7 motion for reconsideration, which the Court denied in April 2014. (ECF Nos. 309, 317); see

8 also Estrada v. Bashas’ Inc., 2014 WL 1319189, at *6 (D. Ariz. Apr. 1, 2014).

9

The certified class is defined as follows:

10

All Hispanic workers currently and formerly employed by defendant Bashas’ in an

hourly position at any Food City retail store between April 4, 1998 and July 1, 2007,

11

who have been subject to the challenged pay policies and practices. The Class does

12

not include any member who worked for Food City for less than eight (8) hours

during the Class Period or any person who was first hired for an hourly position at

13

Food City after January 2, 2005.

14 Id.8 The court approved class notice on May 2, 2014. (ECF No. 320.)

15 III. SETTLEMENT HISTORY AND TERMS

16
A. Settlement Negotiations

17

The parties attempted to settle this case in March 2010, while the company was still in

18 Chapter 11 bankruptcy. The mediation was unsuccessful. Larkin Decl. ¶ 5.

19

Following the Court’s order denying reconsideration of its class certification order in

20 April 2014, the parties agreed to undertake another effort to settle the case. Larkin Decl. ¶ 6.

21 Several factors encouraged settlement efforts. First, the certification order had finally

22 resolved that the equal pay claim would be part of the case. Second, since Bashas’ had

23 phased out the differential pay scales in 2007, injunctive relief was no longer necessary for

24 that claim, and the extent of Bashas’ potential back pay liability to the class was fixed (with

25

26 8 There are currently approximately 12,000 class members. However, at least 20% of the class worked in positions in which there was no difference in the pay scales. Larkin Decl. ¶
27 14.

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1 only interest and attorneys’ fees continuing to accrue). Third, since the Court decertified the

2 working conditions claim, the parties no longer had to agree on complex and potentially

3 expensive injunctive relief for that claim. Id. ¶ 7. The parties jointly requested a stay of the

4 Court’s order directing the mailing of class notice to allow time to explore settlement; the

5 Court granted the stay. (ECF Nos. 321, 322.)

6

On June 24, 2014, the parties attended a formal mediation session with Tod F.

7 Schleier, a respected and experienced local mediator. Larkin Decl. ¶ 10. The negotiations

8 were conducted at arms’ length, and the parties focused on resolving class relief before

9 addressing relief for the named Plaintiffs or attorneys’ fees. Id. ¶ 11. The mediation was

10 successful, and the parties signed a memorandum of understanding, setting forth the essential

11 terms of the agreement. Id.

12

B. The Terms of the Proposed Settlement

13

The key settlement terms are summarized below. (The full settlement agreement is

14 Exhibit 1 to the Declaration of Jocelyn D. Larkin in support of this motion.)

15

Settlement Class Definition – The settlement class definition is the same as the class

16 definition approved by the Court in connection with class certification. Larkin Decl., Ex. 1

17 (“Agreement”) §§ 1.2.4.1; 2.5.

18

Gross Settlement Fund – Bashas’ will pay $6.5 million to resolve claims for class

19 damages, administrative expenses, service awards to the named plaintiffs Gonzalo Estrada

20 and Aurelia Martinez, and attorneys’ fees and costs. Id. § 3.1. Bashas’ will deposit the full

21 amount in a Qualified Settlement Fund (or an escrow account if the Court has not yet ruled

22 on final approval) on February 16, 2015. Id. § 3.2. There is no reversion of any funds to the

23 employer. Id. § 3.5.

24

Administrative Cost Fund – From the Gross Settlement Fund, the agreement allocates

25 $400,000 as an Administrative Cost Fund. Id. §§ 5.6, 5.8. The parties negotiated this

26 amount because locating class members in this case presents unique challenges, resulting

27 from the very long duration of the case. The class period opens in 1998 and, according to

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1 Bashas’, approximately 90% of the class members are no longer employed at Food City. It

2 is likely that some class members will have moved from the address that they used while

3 employed at Food City. It is also likely that some class members have moved or returned to

4 Mexico or other countries in Central America. Moreover, mailing claim checks to class

5 members in Mexico requires several additional administrative steps to ensure that they are

6 received. A final challenge is that many class members are monolingual Spanish speakers,

7 requiring all communications to be in both English and Spanish. After considering these

8 challenges and researching options for distributing checks in Mexico, Plaintiffs earmarked

9 this sum as the amount necessary to ensure that as many class members as possible are

10 located and that they receive their claim share. Larkin Decl. ¶ 13.

11

Distribution Plan – The Net Settlement Fund represents the amount available for

12 distribution to class members who meet the eligibility requirements.9 Agreement §§ 2.21,

13 4.2.1. The agreement provides that shares will be calculated using the employer’s payroll

14 records; class members will not be required to submit any additional paperwork or

15 documentation. See id. § 4.1.

16

An individual’s share of the settlement will be calculated based upon the difference

17 between his or her actual hours worked and hourly rates received at Food City, with the same

18 number of hours at the hourly rates paid at Bashas’ and A.J.’s Fine Foods for the same time

period. Id. Five percent (5%) simple interest will be added to the wage loss to reach an
19

Individual Loss Calculation. Id. § 4.1.1.6. Using all Individual Loss Calculations, pro rata
20

shares of the Net Settlement Fund will be calculated. Id. § 4.1.1.8. The agreement includes
21
a mechanism by which a class member who does not qualify for a settlement share may
22
dispute that determination. Id. § 4.2.3.
23

24 9 A Settlement Class Member is eligible for a share of the Net Settlement Fund if he or she: 1) is Hispanic; 2) was hired by Bashas’ before January 2, 2005; 3) worked at a Food City
25 store for more than eight hours during the Class Period; and 4) worked in an hourly job
26 position for which the pay scale was lower at Food City than at Bashas’ and/or A.J.’s Fine Foods during any part of the Class Period. Agreement § 4.2.1. He or she must also have an
27 Individual Loss Calculation larger than zero. Id. § 4.2.2.

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1

The Class Administrator will, after making required tax withholdings, mail checks

2 and tax forms to eligible class members entitled to an Individual Settlement Share.10 Id. §

3 4.3. Class members will have 180 days to cash the check. Id. § 4.3.4. The Class

4 Administrator will trace and re-mail any checks returned as undeliverable. Id. § 8.3.5. Class

5 members who are not entitled to an Individual Settlement Share because they had no wage

6 loss will receive a letter explaining why they are not receiving a check. Id. § 4.35.

7

Contingent Second Distribution and Cy Pres – After the first distribution, the parties

8 will confer with the Class Administrator to determine the feasibility of a supplemental

9 distribution of any Residual Settlement Funds, taking into account such factors as the

10 administrative costs of a second distribution, the average size of second distribution checks,

11 and the likelihood that the second checks will be cashed. Id. § 4.4.2. The parties may also

12 consider using the residual funds for more advanced methods for tracing lost class members.

13 Id. § 4.4.2.5.

14

After efforts to distribute the settlement funds as described above are completed, any

15 remainder, including any funds remaining in the Administrative Costs Fund, will be paid to

16 the University of Arizona Law School Immigrant Workers’ Clinic, the ASU Alumni Law

17 Group, and Community Legal Services of Arizona. Id. §§ 3.5, 4.4.5.

18

Service Awards to Named Plaintiffs – Named Plaintiffs Gonzalo Estrada and Aurelia

Martinez are entitled to a share of the Settlement Fund, calculated in the same manner as
19

other class members. Id. § 9.1. In addition, the named Plaintiffs may apply for a service
20

payment of up to $10,000 to compensate them for the services that they provided to the class
21
over the past decade, to be paid from the Gross Settlement Fund. Id. § 9.2. The named
22
Plaintiffs have filed that application and have confirmed that their support of this settlement
23
is not contingent upon the service award. See Declarations of Martinez and Estrada in
24
Support of Motion for Service Awards, filed concurrently.
25

26

27 10 Bashas’ is required to pay the employer’s share of payroll taxes. Agreement § 6.6.

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1

Attorneys’ Fees and Costs – Under the agreement, Plaintiffs may apply to the Court

2 for an award of reasonable attorneys’ fees and costs to be paid from the Settlement Fund. Id.

3 §10.1. Approval of the class settlement is not conditioned on the award of attorneys’ fees

4 and costs; the attorneys’ fees provisions are expressly severable from the remaining

5 provisions. Id. §10.2. Concurrent with this motion, Plaintiffs have filed a motion for an

6 award of attorneys’ fees and costs.

7

Release of Claims – As part of the agreement, the named Plaintiffs and the settlement

8 class members will release the claims for relief alleged in the case. Id. §7.

IV. ARGUMENT
9

10

A. Legal Standards for Preliminary Settlement Approval

11

Strong judicial policy favors settlements, “particularly where complex class action

12 litigation is concerned.” Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir.

13 1992). Under Rule 23(e) of the Federal Rules of Civil Procedure, “[t]he claims, issues, or

14 defenses of a certified class may be settled . . . only with the court’s approval.” Fed. R. Civ.

15 P. 23(e). Review of a class settlement proceeds in two steps. First, “counsel submit the

16 proposed terms of settlement and the judge makes a preliminary fairness evaluation.”

17 Manual for Complex Litigation (Fourth) § 21.632. Second, after notice is given to the class,

18 the court holds a final fairness hearing. Id. § 21.634.

19

Any proposed settlement must be “fundamentally fair, adequate, and reasonable.”

20 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). In assessing a proposed

21 settlement at the final fairness hearing, the district court must balance various factors,

22 including: (1) the strength of the plaintiffs’ case; (2) the risk, expense, complexity, and

23 likely duration of further litigation; (3) the risk of maintaining class action status throughout

24 the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the 25 stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a

26

27

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1 governmental participant; and (8) the reaction of the class members to the proposed 2 settlement. Id.11

3

At the preliminary approval stage, however, the Court must only “consider whether

4 the proposed settlement ‘appears to be the product of serious, informed, non-collusive

5 negotiations, has no obvious-deficiency, does not improperly grant preferential treatment to

6 class representatives or segments of the class and falls within the range of possible

7 approval.’” Horton v. USAA Cas. Ins. Co., 266 F.R.D. 360, 363 (D. Ariz. 2009) (quoting In 8 re Nasdaq Mkt.-Makers Antitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y. 1997)). The 9 settlement in this case meets that standard.

10

B. The Proposed Settlement Falls Within the Range of Possible Approval, Does

Not Grant Preferential Treatment to Segments of the Class, and Shows No

11

Obvious Deficiencies

12

The terms of the proposed settlement are highly favorable to the class and strongly
13

support preliminary approval. Larkin Decl. ¶ 15.
14
 Most fundamentally, the monetary settlement fund will compensate class members
15
for a large percent of their wage losses and accrued interest resulting from the
16
differential pay scales. Larkin Decl. ¶ 16. While Plaintiffs had developed
17
different methods for analyzing class member wage loss and accrued interest, they
18
believe the most likely result at trial (if they proved liability) would have been
19
damages plus pre-judgment interest between $5 and $6 million. In this case, the
20
amount available for distribution to the class after fees, costs, and administrative
21
expenses is approximately $4.275 million, or 71 - 85% of the class losses. Id.
22
 The formula for determining a class member’s share is identical for all class
23
members and is calculated based upon their actual losses. As a result, the
24
distribution plan does not favor one segment of the class over another. Larkin
25
26 11 “It is the settlement taken as a whole, rather than the individual component parts, that must be examined for overall fairness.” Hanlon, 150 F.3d at 1026 (citing Officers for Justice v.
27 Civil Serv. Comm’n of San Francisco, 688 F.2d 615, 628 (9th Cir. 1982)).

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1

Decl. ¶ 17. Cf. Tijero v. Aaron Bros., Inc., 2013 WL 60464, at *10 (N.D. Cal. Jan.

2

2, 2013) (preliminary approval denied in part because plaintiffs failed to

3

demonstrate that settlement did not provide “preferential treatment to certain

4

segments of the class”).12

5

 The process for distributing the fund will maximize the likelihood that class

6

members will receive their share of the fund. Class members need not provide

7

documentation or submit a complicated claim form. The shares are determined

8

based upon the employer’s payroll records. The settlement allocates ample funds

9

to locate class members who may have moved within the United States or out of

10

the country. Larkin Decl. ¶ 18.

11

 A contingent second distribution will ensure that, as much as is practically

12

possible, settlement funds will go to class members. Larkin Decl. ¶ 19.

13

 Any residual funds will not revert to the employer, but will instead be distributed

14

cy pres to the University of Arizona Law School Immigrant Workers’ Clinic, the

15

ASU Alumni Law Group, and Community Legal Services of Arizona. Larkin

16

Decl. ¶¶ 20, 21. The proposed cy pres recipients bear a “driving nexus” to the

17

underlying cause of action and share the same geographic service area as the case.

18

Nachshin v. AOL, LLC, 663 F.3d 1034, 1038 (9th Cir. 2011); see also id. at 1039

(distribution must be guided by the objectives of the underlying statute and the
19

interests of the class members, and must not benefit a group too remote from the
20

class).
21
 The request for attorneys’ fees is consistent with the 25% common fund
22

benchmark in the Ninth Circuit and particularly reasonable in light of the very
23
long duration of the contentious litigation. See, e.g. Vizcaino v. Microsoft Corp.,
24

25 12 The size of an individual’s share will depend on the position he or she held, the difference

26 in the pay scale for that position, and the number of hours worked in the position. For class members with a loss, the awards will range from less than $50 to several thousand dollars.
27 Larkin Decl. ¶ 17.

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1

290 F.3d 1043, 1048-50 (9th Cir. 2002). The class settlement is not conditioned

2

on an award of attorneys’ fees. Agreement § 10.2. Plaintiffs’ request for

3

attorneys’ fees and costs is addressed in detail in a separate motion.

4

 The scope of the class release is limited to the claims raised in the case. Larkin

5

Decl. ¶ 23. Cf. Kakani v. Oracle Corp., 2007 WL 1793774, at *6 (N.D. Cal. June

6

19, 2007).

7

 The named Plaintiffs fully support the proposed settlement. See Declarations of

8

Martinez and Estrada in Support of Motion for Service Awards.

9 Taken together, the settlement provides the certified class with a fair resolution of its claims.

10

C. The Proposed Settlement was the Product of Serious, Informed, Non-

Collusive Negotiations by Experienced Counsel
11

12

The process through which the proposed settlement was reached also favors

13 preliminary approval. The settlement was negotiated at arm’s length by experienced

14 counsel, with the assistance of an independent mediator, after extensive formal and informal

15 discovery.

16

Plaintiffs were represented by Jocelyn D. Larkin and Elizabeth Lawrence, who are

17 experts in complex employment litigation. See Larkin and Lawrence Decls. in Support of

18 Motion for an Award of Attorneys’ Fees and Costs (Larkin Decl. ¶¶ 5 - 18; Lawrence Decl.

19 ¶¶ 5 - 9). Their settlement positions were informed by extensive information gathered

20 through discovery and motion practice. Lawrence Decl. ¶¶ 25 – 29 (summarizing discovery

21 history). Class Counsel also had the benefit of extensive analysis of the employer’s payroll

22 data, conducted by their retained statistician, Dr. Richard Drogin. Id. ¶ 32; see Vasquez v.

23 Coast Valley Roofing, Inc., 670 F. Supp. 2d 1114, 1125 (E.D. Cal. 2009) (granting

24 preliminary approval where the parties “conducted extensive investigation and discovery

25 allowing them to assess the strengths and weaknesses of the case”).

26

The parties reached the proposed settlement after a full-day mediation with Tod

27 Schleier, a well-respected neutral mediator with extensive employment law experience.

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1 “‘The assistance of an experienced mediator in the settlement process confirms that the

2 settlement is non-collusive.’” Carter v. Anderson Merchandisers, LP, 2010 WL 1946784, at

3 *7 (C.D. Cal. May 11, 2010) (quoting Satchell v. Fed. Express Corp., 2007 WL 1114010, at

4 *4 (N.D. Cal. Apr. 13, 2007)).

5

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

6

Delay Inherent in Continued Litigation

7

While Plaintiffs feel that they have a very strong case and are likely to win at trial,

8 further delay associated with pre-trial litigation, trial, and another appeal poses the greatest

9 risk to the class. First, with each passing year, class members become increasingly difficult

10 to locate. In addition, the employer operates in a highly competitive industry and was in

11 Chapter 11 bankruptcy less than five years ago. As a result, Plaintiffs cannot assume the

12 long-term solvency of the defendant. Finally, because the disputed pay scales are no longer

13 in effect, past wage losses are fixed. Continuing litigation would result in higher attorneys’

14 fees and expense while bringing little additional benefit to the class, especially in light of the

15 risk of losing entirely. Larkin Decl. ¶ 24. Given that the settlement provides a large measure

16 of the outcome achievable with a liability determination, it is the judgment of Class Counsel

17 that settlement is appropriate. Id.

18 V.
19

THE PROPOSED NOTICE AND NOTICE PLAN SHOULD BE APPROVED The Court should also approve the proposed notice and notice plan. Under Rule 23 of

20 the Federal Rules of Civil Procedure, the Court must “direct notice in a reasonable manner to

21 all class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). Notice is

22 satisfactory if it “generally describes the terms of the settlement in sufficient detail to alert

23 those with adverse viewpoints to investigate and to come forward and be heard.” Churchill

24 Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004) (internal quotation marks

25 omitted).

26

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Mem of P&A ISO Preliminary Approval

Case No. CIV 02-0591- DJH

Case 2:02-cv-00591-DJH Document 327 Filed 08/27/14 Page 19 of 21

1

The proposed notice and notice plan are satisfactory. Under the proposed settlement

2 agreement, the Class Administrator will mail a notice packet to class members by First Class

3 U.S. Mail. Agreement § 8.3.3. All notice materials will be in both English and Spanish. Id.

4 § 5.3. The administrator will take reasonable steps to determine the most recent address of

5 each class member. Id. § 8.3. The proposed Notice, attached as Exhibit 2 to the Declaration

6 of Jocelyn D. Larkin, describes: (1) the nature of the action; (2) the identities of class

7 counsel; (3) the terms of the proposed settlement; (4) the relief to which the class members

8 will be entitled; (5) how administrative costs, attorneys’ fees, and potential service payments

9 will be handled; (6) the procedures and deadline for submitting objections, and/or requests to 10 opt-out; and (7) the date, time, and place of the final approval hearing.13 Under the proposed

11 notice plan, class members will have 120 days to opt out or submit objections. Agreement

12 §§ 8.3.7, 8.3.8.

13

Class members will be able to obtain additional information by accessing the case

14 website as well as by calling the Class Administrator, which will have bilingual staff to

15 respond to inquiries. Id. § 5.4.

16 VI. THE COURT SHOULD SET A FINAL APPROVAL SCHEDULE

17

Finally, the Court should set a final approval schedule. The parties propose:

18
Deadline for Class Administrator to mail 28 days after preliminary

19

Class Notice

approval order

20

Deadline for Class Members to postmark 120 days from original mailing

objections or opt-outs

of class notice

21 22

Deadline for Class Counsel to file motion for final settlement approval and to respond
to objections

35 days prior to final approval hearing

23

Hearing on Final Approval, Attorneys’ Fees 180 days after the preliminary

and Costs, and Service Payment Motions approval order

24

25

26 13 Plaintiffs are having a Spanish translation of the Class Action Notice prepared. The translated notice will be submitted prior to the hearing on preliminary approval. Larkin
27 Decl. ¶ 25.

28

15

Mem of P&A ISO Preliminary Approval

Case No. CIV 02-0591- DJH

Case 2:02-cv-00591-DJH Document 327 Filed 08/27/14 Page 20 of 21

1 VII. CONCLUSION
The parties have presented the Court with a very favorable resolution of this
2
long-running litigation. Because the settlement meets the standards for preliminary
3
approval, the Court should approve it, authorize notice to the class, and schedule the
4
final Fairness Hearing.
5
Respectfully submitted,
6

7 Dated: August 27, 2014
8
9
Dated: August 27, 2014
10
11

s/ Jocelyn D. Larkin Jocelyn D. Larkin THE IMPACT FUND
s/Elizabeth A. Lawrence Elizabeth A. Lawrence DAVIS, COWELL & BOWE, LLP

12
Attorneys for Plaintiffs and the Certified Class
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Mem of P&A ISO Preliminary Approval

Case No. CIV 02-0591- DJH

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on August 27, 2014, I electronically transmitted the attached

3 document to the Clerk’s Office using the CM/ECF System for filing and transmittal and a

4 Notice of Electronic Filing was electronically transmitted from the court to the e-mail
5 addresses on file. /s/ Jocelyn D. Larkin
6
Jocelyn D. Larkin
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Case No CIV 02-0591- DJH

 
 Case 2:02-cv-00591-DJH Document 328 Filed 08/27/14 Page 1 of 7

1 Jocelyn D. Larkin, Pro Hac Vice jlarkin@impactfund.org
2 THE IMPACT FUND 125 University Avenue, Suite 102
3 Berkeley, CA 94710 4 Telephone: (510) 845-3473
Facsimile: (510) 845-3654
5

Elizabeth A. Lawrence, AZ SBN 021537 6 eal@dcbsf.com
7 DAVIS, COWELL & BOWE, LLP 595 Market Street, Suite 1400
8 San Francisco, CA 94105

9

Telephone: Facsimile:

(415) 597-7200 (415) 597-7201

10

11 Attorneys for Plaintiffs and the Certified Class

12

13

UNITED STATES DISTRICT COURT

14

DISTRICT OF ARIZONA

15

16 GONZALO ESTRADA; AURELIA MARTINEZ, on behalf of themselves and all
17 individuals similarly situated,

18
19
v.
20
21 BASHAS’, INC.,

Plaintiffs,

22

Defendant

Case No. CIV 02-0591- DJH
DECLARATION OF JOCELYN D. LARKIN IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT, APPROVAL OF CLASS NOTICE AND NOTICE PLAN, AND FOR SETTING OF SCHEDULE FOR FINAL APPROVAL

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Declaration of Jocelyn D. Larkin in Support of Motion for Preliminary Approval
Case No. CIV 02-0591- DJH

Case 2:02-cv-00591-DJH Document 328 Filed 08/27/14 Page 2 of 7

1 I, Jocelyn D. Larkin, declare:

2

1. I am the Executive Director of the Impact Fund, a nonprofit legal foundation

3 that supports complex public interest litigation with grants and training, and as counsel. I am

4 one of the lawyers that this Court appointed as Class Counsel.

5

2. I am a member in good standing of the bar of the State of California, as well as

6 the Northern District of California among many other courts. I was admitted pro hac vice in

7 this action.

8

3. I submit this declaration in support of Plaintiffs’ Motion for Preliminary

9 Approval of Class Action Settlement, for Approval of the Class Notice and Notice Plan, and

10 for Setting of Schedule for Final Approval.

11

4. I have personal knowledge of the facts contained in this declaration and, if

12 called as a witness, am competent to testify to those facts.

13

SETTLEMENT HISTORY AND TERMS

14

5. The parties attempted to settle this case in March 2010, while the company was

15 still in Chapter 11 bankruptcy. The mediation was unsuccessful.

16

6. Following the district court’s order denying reconsideration of its class

17 certification order in April 2014, the parties agreed to undertake another effort to settle the

18 case.

7. Several factors encouraged settlement efforts. First, the certification order had
19

finally resolved that the equal pay claim would be part of the case. Second, since Bashas’
20
had phased out the differential pay scales in 2007, injunctive relief was no longer necessary
21
for that claim, and the extent of Bashas’ potential back pay liability to the class was fixed
22
(with only interest and attorneys’ fees continuing to accrue). Third, since the Court
23
decertified the working conditions claim, the parties no longer had to agree on complex and
24
potentially injunctive relief for that claim.
25

26

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1

Declaration of Jocelyn D. Larkin in Support of Motion for Preliminary Approval

Case No. CIV 02-0591- DJH

Case 2:02-cv-00591-DJH Document 328 Filed 08/27/14 Page 3 of 7

1

8. Both parties had the benefit of extensive formal and informal discovery, which

2 is detailed in the Declaration of Elizabeth Lawrence, submitted in support of the Motion for

3 an Award of Attorneys’ Fees and Costs.

4

9. The parties jointly requested a stay of the court’s order directing the mailing of

5 class notice to allow time to explore settlement; the court granted the stay. (ECF Nos. 321,

6 322.)

7

10. On June 24, 2014, the parties attended a formal mediation session with Tod F.

8 Schleier, a respected and experienced local mediator.

9

11. The negotiations were conducted at arms’ length and the parties focused on

10 resolving class relief before addressing relief for the named plaintiffs or attorneys’ fees. The

11 mediation was successful and the parties signed a memorandum of understanding, setting

12 forth the essential terms of the agreement.

13

12. The proposed settlement agreement is attached to this declaration as Exhibit 1.

14

13. The parties negotiated an Administrative Cost Fund of $400,000 because

15 locating class members in this case presents unique challenges, resulting from the very long

16 duration of the case. The class period opens in 1998 and, according to Bashas’,

17 approximately 90% of the class members are no longer employed at Food City. It is likely

18 that some class members will have moved from the address that they used while employed at

Food City. It is also likely that some class members have moved or returned to Mexico or
19

other countries in Central America. Moreover, mailing claim checks to class members in
20
Mexico require several additional administrative steps to ensure that they are received. A
21
final challenge is that many class members are monolingual Spanish speakers, requiring all
22
communications to be in both English and Spanish. After considering these challenges and
23
researching options for distributing checks in Mexico, Plaintiffs earmarked this sum as the
24
amount necessary to ensure that as many class members as possible are located and that they
25
receive their claim share of the settlement fund.
26

27

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2

Declaration of Jocelyn D. Larkin in Support of Motion for Preliminary Approval

Case No. CIV 02-0591- DJH

Case 2:02-cv-00591-DJH Document 328 Filed 08/27/14 Page 4 of 7

1

14. There are currently approximately 12,000 class members. However, at least

2 20% of the class worked in positions in which there was no difference in the pay scales. For

3 example, courtesy clerks were all paid at minimum wage irrespective of the store format.

4

FAIRNESS OF THE SETTLEMENT

5

15. In my opinion, the proposed settlement is fair, adequate, and reasonable. The

6 proposed settlement has the full support of the Named Plaintiffs as well. The reasons for my

7 opinion are described below.

8

16. The monetary settlement fund will compensate class members for a large

9 proportion of their wage losses and accrued interest resulting from the differential pay scales.

10 While Plaintiffs had developed different methods for analyzing class member wage loss and

11 accrued interest, I believe the most likely result at trial (if we proved liability) would have

12 been damages between $5 and $6 million. The amount available for distribution to the class

13 after fees, costs, service awards and administrative expenses, ($6.5 million less $400,000 for

14 Administrative Costs and approximately $1,822,000 for fees, costs and service awards) is

15 approximately $4.275 million, or 71 - 85% of losses.

16

17. The distribution plan does not favor one segment of the class over another.

17 The formula for determining a class member’s share is identical for all class members and is

18 calculated based upon their actual losses. For class members with a loss, the awards will

range from less than $50 to several thousand dollars.
19

18. The process for distributing the fund will maximize the likelihood that class
20
members will receive their share of the fund. Class members need not provide
21
documentation nor submit a complicated claim form. The shares are determined based upon
22
the employer’s payroll records. The settlement allocates ample funds to locate class
23
members who may have moved within the United States or out of the country.
24
19. A contingent second distribution will ensure that, as much as is practically
25
possible, settlement funds will go to class members.
26

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3

Declaration of Jocelyn D. Larkin in Support of Motion for Preliminary Approval

Case No. CIV 02-0591- DJH

Case 2:02-cv-00591-DJH Document 328 Filed 08/27/14 Page 5 of 7

1

20. Any residual funds will not revert to the employer, but will instead be

2 distributed cy pres in equal shares to:

3

a. the University of Arizona Law School Immigrant Workers’ Clinic,

4

b. Community Legal Services of Arizona, and

5

c. the Arizona State University Alumni Law Group.

6 More information about each organization is set forth in Exhibit 2.

7

21. The proposed cy pres recipients bear a nexus to the underlying cause of action

8 and share the same geographic service area as the case.

9

22. The request for attorneys’ fees is consistent with the 25% common fund

10 benchmark in the Ninth Circuit and is particularly reasonable in light of the very long

11 duration of the contentious litigation and the excellent results obtained. The class settlement

12 is not conditioned on an award of attorneys’ fees.

13

23. The scope of the class release is limited to the claims raised in the case.

14

24. While Plaintiffs feel that they have a very strong case and are likely to win at

15 trial, further delay associated with pre-trial litigation, trial, and another appeal poses the

16 greatest risk to the class. First, with each passing year, class members become increasingly

17 difficult to locate. In addition, the employer operates in a highly competitive industry and

18 was in Chapter 11 bankruptcy less than five years ago. As a result, Plaintiffs cannot assume

the long-term solvency of the defendant. Finally, because the disputed pay scales are no
19

longer in effect, past wage losses are fixed. Continuing litigation would result in higher
20
attorneys’ fees and expense while bringing little additional benefit to the class, especially in
21
light of the risk of losing entirely. Given that the settlement provides a large measure of the
22
outcome achievable with a liability determination, it is my judgment that the settlement is
23
appropriate.
24
25. The proposed Class Notice is attached to this declaration as Exhibit 3. This is
25
the English language version; plaintiffs are having a Spanish translation prepared. The
26

27

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4

Declaration of Jocelyn D. Larkin in Support of Motion for Preliminary Approval

Case No. CIV 02-0591- DJH

Case 2:02-cv-00591-DJH Document 328 Filed 08/27/14 Page 6 of 7

1 translated notice will be submitted prior to the hearing on preliminary approval. The notice

2 provides the substantive information required by Rule 23(e).

3

4

5 I declare under penalty of perjury under the laws of the State of California and the United

6 States that the foregoing is true and correct. Executed this 27th day of August, 2014 in

7 Berkeley, California.

8

9

/s/ Jocelyn D. Larkin

10

Jocelyn D. Larkin

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Declaration of Jocelyn D. Larkin in Support of Motion for Preliminary Approval

Case No. CIV 02-0591- DJH

Case 2:02-cv-00591-DJH Document 328 Filed 08/27/14 Page 7 of 7

1

CERTIFICATE OF SERVICE

2

I hereby certify that on August 27, 2014, I electronically transmitted the attached

3 document to the Clerk’s Office using the CM/ECF System for filing and transmittal and a

4 Notice of Electronic Filing was electronically transmitted from the court to the e-mail
5 addresses on file. /s/ Jocelyn D. Larkin
6
Jocelyn D. Larkin
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Case No CIV 02-0591- DJH

 
 Case 2:02-cv-00591-DJH Document 359 Filed 04/24/15 Page 1 of 5

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 GONZALO ESTRADA; AURELIA MARTINEZ, on behalf of themselves and
10 all individuals similarly situated,

11

Plaintiffs,

No. CV-02-00591-PHX-DJH
ORDER AWARDING ATTORNEYS' FEES AND COSTS

12 v.

13 BASHAS’, INC., 14 15

Defendant.

16

Having reviewed Plaintiffs’ Unopposed Motion for an Award of Attorneys’ Fees

17 and Costs, the accompanying Memorandum of Points and Authorities, the declarations of

18 Elizabeth A. Lawrence, Jocelyn D. Larkin, and Kathryn Honecker, and the arguments of

19 counsel, and Defendant's counsel having advised the Court during the Fairness Hearing

20 that Defendant has no objections to this Order, the Court now FINDS, CONCLUDES,

21 and ORDERS as follows:

22

1. Notice of the requested award of attorneys’ fees and costs was directed to

23 Class Members in a reasonable manner, in compliance with Rule 23(h)(1) of the Federal

24 Rules of Civil Procedure.

25

2. Class Members and any party from whom payment is sought have been

26 given the opportunity to object in compliance with Federal Rule of Civil Procedure

27 23(h)(2).

28

3.

No class member has objected to the requested fees and expenses.

Case 2:02-cv-00591-DJH Document 359 Filed 04/24/15 Page 2 of 5

1

4. Plaintiffs are eligible for and entitled to a fee award. See 42 U.S.C. §

2 1988(b); 42 U.S.C. § 2000e-5(k); Fed. R. Civ. P. 23(h); Prison Legal News v.

3 Schwarzenegger, 608 F.3d 446, 451 (9th Cir. 2010) (explaining that Plaintiffs qualify as a

4 “prevailing party” for purposes of awarding attorneys’ fees if they have obtained “a

5 legally enforceable settlement agreement”).

6

5. The “percentage of the fund” method of calculating fees is appropriate in

7 this common fund case, since “‘the benefit to the class is easily quantified.’” In re Apollo

8 Grp. Inc. Sec. Litig., 2012 WL 1378677, at *6 (D. Ariz. Apr. 20, 2012), appeal dismissed

9 (Oct. 10, 2012) (quoting In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 942

10 (9th Cir. 2011)); see also In re Washington Pub. Power Supply Sys. Sec. Litig., 19 F.3d

11 1291, 1296 (9th Cir. 1994) (giving district courts the discretion to choose between the

12 lodestar and percentage methods of calculating fees in common fund cases).

13

6. Plaintiffs request a fee award of 25 percent of the common fund, which is

14 the “benchmark” fee award in common fund cases in the Ninth Circuit. In re Pac.
15 Enters. Sec. Litig., 47 F.3d 373, 379 (9th Cir. 1995). Having considered “all of the
16 circumstances of the case,” the court concludes that a fee award of 25 percent of the
17 common fund is appropriate in this case. See Vizcaino v. Microsoft Corp., 290 F.3d
18 1043, 1048 (9th Cir. 2002). Plaintiffs have not requested that the court award a higher
19 percentage. The court will not award a lower percentage because the relevant circumstances all show that Plaintiffs’ request is reasonable. See id. at 1048-50; L.R.
20 Civ. 54.2(c)(3).
21 7. First, Class Counsel achieved excellent results for the class. Class Counsel
22 successfully appealed the district court’s denial of class certification, and on remand, they
23 obtained class certification under the challenging standard set forth in Wal-Mart Stores,
24 Inc. v. Dukes, 131 S. Ct. 2541 (2011). Counsel also negotiated and obtained a settlement
25 fund that represents a high percentage of class losses, even after subtracting the proposed
26 fees, costs, service awards, and administrative expenses. See, e.g., de Mira v. Heartland
27 Employment Serv., LLC, 2014 WL 1026282, at *2 (N.D. Cal. Mar. 13, 2014).
28

- 2 -

Case 2:02-cv-00591-DJH Document 359 Filed 04/24/15 Page 3 of 5

1

8. Second, Class Counsel succeeded in the face of enormous risks, including a

2 risky appeal to the Ninth Circuit and the risk of non-payment posed by Defendant’s

3 bankruptcy proceedings mid-way through the litigation. See Parra v. Bashas’, Inc., 536

4 F.3d 975, 979 n.3 (9th Cir. 2008); Covillo v. Specialtys Café, 2014 WL 954516, at *6

5 (N.D. Cal. Mar. 6, 2014).

6

9. Third, Class Counsel demonstrated exceptional skill and quality of work,

7 drawing on decades of civil rights class action experience to succeed on appeal and to

8 obtain a successful settlement. See, e.g., de Mira, 2014 WL 1026282, at *3.

9

10. Fourth, Class Counsel took on an enormous financial burden by litigating

10 this case for more than a decade without payment, and with the understanding that they

11 would not be paid at all if Plaintiffs lost. This court has recognized that the duration of

12 this lawsuit was “not due to the failure of plaintiffs’ counsel to vigorously prosecute this

13 action.” Parra v. Bashas’, Inc., 291 F.R.D. 360, 389 (D. Ariz. 2013) amended in part

14 sub nom. Estrada v. Bashas’ Inc., 2014 WL 1319189 (D. Ariz. Apr. 1, 2014). As a result

15 of the time and resources that Class Counsel invested in this case, they were unable to

16 take on cases they would have otherwise pursued. See, e.g., Craft v. Cnty. of San

17 Bernardino, 624 F. Supp. 2d 1113, 1120 (C.D. Cal. 2008).

18

11. Fifth, Plaintiffs’ request for 25 percent of the common fund falls squarely

19 within the range of acceptable awards for common fund cases in the Ninth Circuit. See,

e.g., In re Apollo Grp. Inc. Sec. Litig., 2012 WL 1378677, at *7; see also Barbosa v. 20
Cargill Meat Solutions Corp., 297 F.R.D. 431, 448 (E.D. Cal. 2013); Vedachalam v. Tata 21
Consultancy Servs., Ltd., 2013 WL 3941319, at *2 & n.1 (N.D. Cal. July 18, 2013). 22
12. The court has conducted a lodestar cross-check to ensure that Plaintiffs’ fee 23
request is reasonable. See In re Apollo Grp. Inc. Sec. Litig., 2012 WL 1378677, at *7; 24
Covillo, 2014 WL 954516, at *6 (explaining that when used as a cross-check, rather than 25
a primary method of setting fees, the lodestar calculation does not require “mathematical 26
precision” (internal quotation marks omitted)). 27
13. The number of hours that Class Counsel spent on this case was reasonable
28 in light of the length and complexity of the litigation and the excellent result obtained.

- 3 -

Case 2:02-cv-00591-DJH Document 359 Filed 04/24/15 Page 4 of 5

1 Class Counsel have eliminated hours spent on the working conditions claim, which was

2 decertified by this Court. Class Counsel have also eliminated hours spent on air travel, as

3 required by L.R. Civ. 54.2(e)(2)(D). Class Counsel have further reasonably accounted

4 for and eliminated excessive, unnecessary or duplicative hours.

5

14. Because Class Counsel have assigned themselves rates based on the

6 Phoenix legal market, which are lower than rates in the San Francisco legal market, this

7 Court need not decide if San Francisco or Phoenix rates are appropriate for calculating

8 the lodestar cross-check in this case. Compare Gates v. Deukmejian, 987 F.2d 1392,

9 1404-05 (9th Cir. 1992) with Prison Legal News, 608 F.3d at 454.

10

15. The rates that Class Counsel used to calculate the lodestar cross-check are

11 reasonable, and are in line with attorneys of comparable skill, experience, and reputation

12 who practice in this district. This conclusion is supported by the Declarations of Jocelyn

13 D. Larkin, Elizabeth A. Lawrence, and Kathryn Honecker.

14

16. The use of current rates to calculate the lodestar cross-check is appropriate

15 here because of the very significant delay in payment. Missouri v. Jenkins by Agyei, 491

16 U.S. 274, 284 (1989).

17

17. The lodestar cross-check results in a fee award that is higher than the fee

18 award Plaintiffs request. The requested fee award therefore “results in a so-called

19 negative multiplier, suggesting that the percentage of the fund is reasonable and fair.”

Covillo, 2014 WL 954516, at *7. 20
18. Class Counsel are entitled to recover their costs. 42 U.S.C. § 1988(b); 42 21
U.S.C. § 2000e-5(k); Fed. R. Civ. P. 23(h). The costs and expenses incurred by Class 22
Counsel are reasonable and are the type that would normally be charged by an attorney to 23
a fee-paying client. See Grove v. Wells Fargo Fin. Cal., Inc., 606 F.3d 577, 580-81 (9th 24
Cir. 2010). 25
19. The total award of $1,625,000 for attorneys’ fees and $178,761.26 for costs 26
is fair and reasonable. 27
Accordingly, IT IS HEREBY ORDERED as follows:
28

- 4 -

Case 2:02-cv-00591-DJH Document 359 Filed 04/24/15 Page 5 of 5

1

Class Counsel are hereby awarded: (1) attorneys’ fees in the amount of

2 $1,625,000; and (2) costs in the amount of $178,761.26. Class Counsel will direct the

3 Class Administrator to pay these amounts from the Qualified Settlement Fund thirty days

4 after this Court’s order on Final Approval of the settlement.

5

Dated this 23rd day of April, 2015.

6

7

8

Honorable Diane J. Humetewa

9

United States District Judge

10

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- 5 -

 
 Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 1 of 29
CLOSED,PROTO,STAY−BK,STD
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:02−cv−00591−DJH

Parra, et al v. Bashas' Inc Assigned to: Judge Diane J Humetewa Demand: $0 Case in other court: Ninth Circuit, 06−16038 Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 04/04/2002 Date Terminated: 04/24/2015 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Jose Parra

represented by Andrew Joseph Kahn Davis Cowell & Bowe LLP 595 Market St Ste 1400 San Francisco, CA 94105 415−597−7200 Fax: 415−597−7201 Email: ajk@dcbsf.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth A Lawrence Davis Cowell & Bowe LLP − San Francisco, CA 595 Market St., Ste. 800 San Francisco, CA 94105 415−597−7200 Fax: 415−597−7201 Email: elawrencedcb@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jocelyn D Larkin Impact Fund 125 University Ave Berkeley, CA 94710 510−845−3473 Fax: 510−845−3654 Email: jlarkin@impactfund.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Gonzalo Estrada

represented by Andrew Joseph Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth A Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jocelyn D Larkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 2 of 29

Defendant Bashas' Incorporated

represented by Raymond Myles Deeny Sherman & Howard LLC − Phoenix, AZ 201 E Washington St., Ste. 800 Phoenix, AZ 85004−2327 602−240−3000 Fax: 602−240−6600 Email: rdeeny@shermanhoward.com TERMINATED: 03/23/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie J Quincy Quarles & Brady LLP − Phoenix, AZ One Renaissance Square 2 N Central Ave. Phoenix, AZ 85004−2391 602−229−5200 Fax: 602−229−5690 Email: stephanie.quincy@quarles.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore A Olsen Sherman & Howard LLC 633 17th St Ste 3000 Denver, CO 80202 303−297−2900 Fax: 303−298−0940 Email: TOlsen@sah.com TERMINATED: 03/23/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas J Kennedy Sherman & Howard LLC − Scottsdale, AZ 7033 E Greenway Pkwy., Ste. 250 Scottsdale, AZ 85254 480−624−2710 Fax: 480−624−2029 Email: tkennedy@shermanhoward.com TERMINATED: 03/23/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas David Janicik Steptoe & Johnson LLP 201 E Washington St Ste 1600 Phoenix, AZ 85004−2382 602−257−5245 Fax: 602−452−0919 Email: djanicik@steptoe.com ATTORNEY TO BE NOTICED

Elizabeth Anne Schallop Call Steptoe & Johnson LLP − Phoenix, AZ Collier Center 201 E Washington St., Ste. 1600 Phoenix, AZ 85004−2382 602−257−5200 Fax: 602−257−5299 Email: bcall@steptoe.com

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 3 of 29

ATTORNEY TO BE NOTICED

Kate Elizabeth Frenzinger Quinlan Law Firm LLC − Phoenix, AZ 3131 E Camelback Rd., Ste. 200 Phoenix, AZ 85016 602−842−5450 Fax: 602−842−9303 Email: kfrenzinger@quinlanfirm.com ATTORNEY TO BE NOTICED

Intervenor
United Food and Commercial Workers Union Region 8

represented by Elizabeth A Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer S Wedel Davis Cowell & Bowe LLP 595 Market St Ste 1400 San Francisco, CA 94105 (415)597−7200 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor
Local 99 United Food and Commercial Workers Union

represented by Elizabeth A Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer S Wedel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor
United Food and Commercial Workers Union

represented by Elizabeth A Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer S Wedel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Aurelia Martinez on behalf of themselves and all individuals similarly situated

represented by Elizabeth A Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jocelyn D Larkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 4 of 29

04/04/2002 04/12/2002 04/25/2002 05/13/2002
06/05/2002
07/23/2002
09/16/2002 09/23/2002
09/23/2002
10/15/2002 11/05/2002 11/20/2002 11/26/2002
02/10/2003 02/10/2003 02/27/2003 03/07/2003 03/10/2003 03/10/2003 03/10/2003 03/10/2003

1 COMPLAINT FILED (former emp) (Entered: 04/09/2002)
2 RETURN OF SERVICE EXECUTED summons/complaint upon dft Bashas' Inc on 4/5/02 (former emp) (Entered: 04/15/2002)
3 ANSWER to complaint [1−1] by dft Bashas' Inc (former emp) (Entered: 04/29/2002)
4 ORDER SETTING RULE 16 SCHEDULING CONFERENCE by Judge Robert C. Broomfield ; prel scheduling conf set for 2:00 9/16/02 (cc: all counsel) (former emp) (ADI−ICMS, ). (Entered: 05/13/2002)
REMARK as to Jose Parra, Gonzalo Estrada re atty Elizabeth A Lawrence Davis Cowell & Bowe LLP 100 Van Ness Ave 20th Floor San Francisco CA 94102 removed from database for noncompliance w/admission deadline of 5/9/02 pty represented by other admitted counsel (BAS) (Entered: 06/05/2002)
5 MINUTE ORDER: preliminary scheduling conference 9/16/02 VACATED and RESET for 2:45pm, 9/23/02 (cc: all counsel) [5−2] (former emp) (Entered: 07/23/2002)
6 JOINT PROPOSED CASE MGT PLAN/REPORT (KMG) (Entered: 09/18/2002)
7 MINUTE ENTRY: before Judge Robert C. Broomfield. Crt Rptr: V. Reger − ECR: Elizabeth Lawrence for Plas; Raymond Deeny/Thomas Kennedy for Dft: preliminary scheduling conference held and a second scheduling conference reset for 2:00pm, 9/15/03 [7−2] (former emp) (Entered: 09/23/2002)
8 SCHEDULING ORDER by Judge Robert C. Broomfield a scheduling conference having been held on 9/23/02 regarding the following deadlines Second Scheduling conf is set for 2:00 p.m. on 9/15/03; Discovery ddl set for 4/30/03; Brief Joint letter to the court concerning status of settlement ddl 4/30/03 (cc: no separate mailing to counsel). (KMG) (ADI−ICMS, ). (Entered: 09/24/2002)
9 NOTICE of compliance of initial disclosure statement pursuant to FRCivP 26(a) by plas Jose Parra, and Gonzalo Estrada (KMG) (Entered: 10/17/2002)
10 NOTICE of compliance of initial disclosure statement pursuant to FRCivP 26(a) by dft Bashas' Inc (former emp) (Entered: 11/06/2002)
11 MOTION for admission pro hac vice as to Theodore Olsen, atty for dft Bashas' Inc [11−1] (former emp) (Entered: 11/21/2002)
12 ORDER by Judge Robert C. Broomfield granting motion for admission pro hac vice as to Theodore Olsen, atty for dft Bashas' Inc [11−1] (cc: all counsel) (former emp) (ADI−ICMS, ). (Entered: 11/26/2002)
13 NOTICE of service of discovery (first request for production of documents to dft) by pla Jose Parra, pla Gonzalo Estrada . (former emp) (Entered: 02/11/2003)
14 NOTICE of service of discovery (first set of interrogatories) by pla Jose Parra, dft Bashas' Inc . (former emp) (Entered: 02/11/2003)
15 NOTICE of service of discovery upon plas by dft Bashas' Inc . (former emp) Modified on 11/15/2004 (Entered: 02/28/2003)
16 NOTICE of service of discovery (first request for production of documents to dft) by plas. (former emp) (Entered: 03/10/2003)
17 NOTICE to dft by plas of service on 3/6/03 of notice of deposition of Tom Swanson (former emp) (Entered: 03/11/2003)
18 NOTICE by plas of service on 3/6/03 to dft OF TAKING DEPO OF Michael Gantt (former emp) (Entered: 03/11/2003)
19 NOTICE by plas of service on 3/6/03 to dft OF TAKING DEPO OF Michael Proulx (former emp) (Entered: 03/11/2003)
20 NOTICE by plas of service on 3/6/03 to dft OF TAKING DEPO OF Basha's Inc (former emp) (Entered: 03/11/2003)

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 5 of 29

03/10/2003 03/10/2003 03/10/2003 03/10/2003 03/10/2003
03/25/2003
04/01/2003 04/04/2003
04/28/2003 05/05/2003 05/12/2003 05/12/2003 05/22/2003 06/13/2003 06/13/2003 07/02/2003
07/11/2003

21 NOTICE of service of discovery (second request for production of documents to dft) by pla Jose Parra, pla Gonzalo Estrada . (former emp) (Entered: 03/11/2003)
22 NOTICE by plas of service on 3/6/03 to dft OF TAKING DEPO OF Basha's Inc, Human Resources (former emp) (Entered: 03/11/2003)
23 NOTICE by plas of service on 3/6/03 to dft OF TAKING DEPO OF Al Ramirez (former emp) (Entered: 03/11/2003)
24 NOTICE by plas of service on 3/6/03 to dft OF TAKING DEPO OF Al Mendoza (former emp) (Entered: 03/11/2003)
25 UNOPPOSED MOTION for extension of time, until 4/9/03 to object or otherwise respond to plas' first set of interrogatories and first request for production of documents by dft Bashas' Inc [25−1] (former emp) Modified on 03/25/2003 (Entered: 03/11/2003)
26 ORDER by Judge Robert C. Broomfield granting motion for extension of time, until 4/9/03 to object or otherwise respond to plas' first set of interrogatories and first request for production of documents by dft Bashas' Inc [25−1] (cc: all counsel) (former emp) (ADI−ICMS, ). (Entered: 03/25/2003)
27 STIPULATION by all parties to modify the scheduling order (completion of discovery 6/16/03...) (former emp) (Entered: 04/02/2003)
28 ORDER by Judge Robert C. Broomfield granting stipulation by all parties to modify the scheduling order ; discovery ddl reset for 6/16/03 ; joint settlement letter to the Court is due 6/16/03 (cc: all counsel) (former emp) (ADI−ICMS, ). (Entered: 04/04/2003)
29 NOTICE of service of discovery by plas. (former emp) (Entered: 04/29/2003)
30 NOTICE by pla Jose Parra, pla Gonzalo Estrada of change of address, 595 Market Street, Ste 1400, San Francisco, CA 94105; Ph: 415−597−7200 (former emp) (Entered: 05/07/2003)
31 NOTICE of service of discovery by pla Jose Parra, pla Gonzalo Estrada . (FMP) (Entered: 05/14/2003)
32 NOTICE of service of discovery by pla Jose Parra, pla Gonzalo Estrada . (FMP) (Entered: 05/14/2003)
33 NOTICE of service of discovery by dft Bashas' Inc . (former emp) (Entered: 05/27/2003)
34 JOINT REPORT on status of settlement discussions (filed by plas) (former emp) (Entered: 06/16/2003)
35 STIPULATION and motion by all parties for extension of discovery and class certification deadlines (filed by plas)(former emp) Modified on 06/17/2003 (Entered: 06/16/2003)
36 ORDER by Judge Robert C. Broomfield granting stipulation and motion by all parties for extension of discovery and class certification deadlines ; discovery ddl reset for 10/31/03 granting the extension of time to file motions relative to class certification to 12/1/03; extending the deadline for disclosure of expert testimony to 9/30/03 for plas experts, 10/31/03 for dfts experts, and 11/28/03 for plas rebuttal experts (cc: all counsel) (former emp) Modified on 07/03/2003 (ADI−ICMS, ). (Entered: 07/02/2003)
37 NOTICEs by dft Bashas' Inc OF TAKING DEPO OF Jose Para, and Gonzalo Estrada on the following date(s): 7/29/03; Gloria Arriaga and Maricruz Rivera on 7/30/03; Juana Urbina & Maria Guitierrez on 7/31/03; Carmen Lopez, Jose Perez Estrada and Rosa Flores on 8/26/03; Mario Gonzalez, Manuel Mori, and Aurelia Martinez on 8/27/03; Jesus Rodriguez, Manuel Talavera & Martin Hernandez on 8/28/03; Bill McDonough, James McLaughlin, P.J. Pedraza on 9/2/03; Michelle Skolmowski, Casey May on 9/3/03; Terry May & Emilou Savage 9/4/03 (former emp) (Entered: 07/14/2003)

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 6 of 29

08/08/2003 08/22/2003 08/22/2003 08/22/2003 08/22/2003 08/22/2003 08/22/2003 08/22/2003 08/22/2003 08/22/2003 08/22/2003 08/22/2003
08/25/2003 09/05/2003 09/10/2003 09/10/2003 09/12/2003 09/12/2003 09/12/2003

38 NOTICE by pla Jose Parra of service of notice of deposition (Al Mendoza) on 8/5/03 on dft's counsel (former emp) (Entered: 08/08/2003)
39 MOTION to quash Subpoena served by Basha's on 8/11/03 by intervenor UFCW Region 8 [39−1] (former emp) (Entered: 08/22/2003)
40 DECLARATION of William T McDonough re motion to quash Subpoena served by Basha's on 8/11/03 by intervenor UFCW Region 8 [39−1] [39−1] by intervenor UFCW Region 8 (former emp) (Entered: 08/22/2003)
41 NOTICE by intervenor UFCW Region 8 of motion to quash subpoena (request for hearing) (former emp) (Entered: 08/22/2003)
42 MOTION to quash subpoena served on it by Bashas's Inc on 8/11/03 by intervenor Local 99 UFCW [42−1] (former emp) (Entered: 08/22/2003)
43 DECLARATION of James McLaughlin re motion to quash subpoena served on it by Bashas's Inc on 8/11/03 by intervenor Local 99 UFCW [42−1] [42−1] by intervenor Local 99 UFCW (former emp) (Entered: 08/22/2003)
44 NOTICE by intervenor Local 99 UFCW of motion to quash subpoena (request for hearing) (former emp) (Entered: 08/22/2003)
45 MOTION to quash subpoena served on it by dft Basha's Inc on 8/11/03 by intervenor AFL−CIO UFCW [45−1] (former emp) (Entered: 08/22/2003)
46 DECLARATION of Douglas Dority re motion to quash subpoena served on it by dft Basha's Inc on 8/11/03 by intervenor AFL−CIO UFCW [45−1] by intervenor AFL−CIO UFCW (former emp) (Entered: 08/22/2003)
47 NOTICE by intervenor AFL−CIO UFCW of motion to quash subpoena (request for hearing) (former emp) (Entered: 08/22/2003)
48 MOTION for extension of scheduling order deadlines (3rd request) by pla Jose Parra, pla Gonzalo Estrada [48−1] , for leave to take more than 10 depositions by pla Jose Parra, pla Gonzalo Estrada [48−2] (former emp) (Entered: 08/22/2003)
49 DECLARATION of Jennifer S Wedel in support of motion for extension of scheduling order deadlines (3rd request) by pla Jose Parra, pla Gonzalo Estrada [48−1], re motion for leave to take more than 10 depositions by pla Jose Parra, pla Estrada [48−2] (former emp) (Entered: 08/22/2003)
50 DECLARATION of Douglas Dority in support of motion to quash subpoena served on it by dft Basha's Inc on 8/11/03 by intervenor AFL−CIO UFCW [45−1] (former emp) (Entered: 08/26/2003)
51 MOTION to extend time to 9/10/03 to respond to motion to quash subpoenas by dft Bashas' Inc [51−1] (DMT) (Entered: 09/08/2003)
52 ORDER by Judge Robert C. Broomfield granting motion to extend time to 9/10/03 to respond to motion to quash subpoenas by dft Bashas' Inc [51−1] (cc: all counsel) (DMT) (ADI−ICMS, ). (Entered: 09/10/2003)
53 MOTION to extend response dates on motion to quash Union subpoenas and motion for extension of scheduling order deadline by dft Bashas' Inc [53−1] (former emp) (Entered: 09/15/2003)
54 RESPONSE by dft Bashas' Inc to motion for extension of scheduling order deadlines (3rd request) by pla Jose Parra, pla Gonzalo Estrada [48−1] (former emp) (Entered: 09/15/2003)
54 JOINDER by dft Bashas' Inc to motion for leave to take more than 10 depositions by pla Jose Parra, pla Gonzalo Estrada [48−2] [48−2] (former emp) (Entered: 09/15/2003)
55 CROSS−MOTION to enforce subpoenas by dft Bashas' Inc [55−1] and RESPONSE to motion to quash subpoena served on it by dft Basha's Inc on 8/11/03 by intervenor AFL−CIO UFCW [45−1] [45−1], motion to quash subpoena served on it by Bashas's Inc on 8/11/03 by intervenor Local 99 UFCW [42−1] [42−1], motion to quash Subpoena served by Basha's on 8/11/03 by intervenor UFCW Region 8 [39−1] [39−1] by dft Bashas' Inc (former emp) (Entered: 09/15/2003)

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 7 of 29

09/15/2003
09/19/2003
09/22/2003 09/22/2003 09/22/2003 09/22/2003 09/24/2003 09/29/2003 09/29/2003 09/29/2003 10/02/2003 10/03/2003 10/06/2003

56 MINUTE ENTRY before Judge Robert C. Broomfield. ECR: Vicki Reger. Appearances: Elizabeth A. Lawrence for the plaintiffs and Stephanie Quincy for the defendant. Second Rule 16 Scheduling Conference held. The Court and counsel discuss current and proposed deadlines. IT IS ORDERED that counsel in good faith agree upon a proposed confidentiality order to be presented to the Court by September 22, 2003. IT IS FURTHER ORDERED that the defendant may have 10 judicial days after the entry of the confidentiality order to respond to the balance of outstanding written discovery. IT IS FURTHER ORDERED that plaintiff shall have 10 judicial days from receipt of the written discovery to notice any additional depositions. IT IS FURTHER ORDERED that each side may take a total of 25 depositions. Counsel may agree upon the times and places of the depositions and failing that, shall notice depositions to include the time to be completed. Both sides must notice any further depositions 30 calendar days from the date the defendant provides notice of the availability of the sought after documents. Depositions should be completed by December 26, 2003 (45 days from the original date of October 31, 2003). The Court imposes the following deadlines: Plaintiff's expert reports shall be filed by December 1, 2003 and defendant's expert reports shall be filed by January 2, 2004. Rebuttal expert reports shall be filed by January 16, 2004. Counsel shall file the class certification motion 45 days after the close of discovery. Plaintiff shall file a response to the Defendant's Motion to Quash by Friday, September 19, 2003. [cc: RCB, all counsel] [56−2] (KSB) (Entered: 09/18/2003)
57 REPLY by intervenor UFCW, intervenor Local 99 UFCW, intervenor UFCW to opposition to motion to quash Subpoena served by Basha's on 8/11/03 by intervenor UFCW Region 8 [39−1], motion to quash subpoena served on it by Bashas's Inc on 8/11/03 by intervenor Local 99 UFCW [42−1], motion to quash subpoena served on it by dft Basha's Inc on 8/11/03 by intervenor AFL−CIO UFCW [45−1] (former emp) (Entered: 09/19/2003)
58 NOTICE by pla OF TAKING DEPO OF Ernest Arivizu on the following date(s): 9/8/03 (former emp) (Entered: 09/23/2003)
59 NOTICE by pla Jose Parra, pla Gonzalo Estrada OF TAKING DEPO OF David Lang on the following date(s): 9/8/03 (former emp) (Entered: 09/23/2003)
60 NOTICE by pla OF TAKING DEPO OF Tony Rinello on the following date(s): 9/8/03 (former emp) (Entered: 09/23/2003)
61 NOTICE by plas OF TAKING DEPO OF Pam Giroux on the following date(s): 9/8/03 (former emp) (Entered: 09/23/2003)
62 JOINT REQUEST (MOTION) for confidential order by all parties [62−1] (former emp) (Entered: 09/25/2003)
63 NOTICE of service of discovery by plas. (former emp) (Entered: 09/29/2003)
64 NOTICE of service of discovery by plas. (former emp) (Entered: 09/29/2003)
65 NOTICE of service of amended initial disclosure statement pursuant to FRCivP 26(a) by pla (former emp) (Entered: 09/29/2003)
66 ORDER by Judge Robert C. Broomfield denying motion to quash subpoena served on it by dft Basha's Inc on 8/11/03 intervenor AFL−CIO UFCW [45−1], [42−1] [39−1] (cc: all counsel) (former emp) (ADI−ICMS, ). (Entered: 10/02/2003)
67 AMENDED NOTICE by dft Bashas' Inc OF TAKING DEPO OF Emmy Lou Savage on the following date(s): 10/7/03, Juana Urbina on 10/9/03, Jesus Rodriguez on 10/9/03, Manuel Talavera on 10/10/03 and Maria Gutierrez on 10/13/03 (former emp) (Entered: 10/06/2003)
68 ORDER by Judge Robert C. Broomfield granting motion for confidential order by all parties [62−1]; the Court is inclined to adpt dft's position on the issued with the definition of the term "confidential information."; the order should contain language which provides a mechanism whereby the parties shall resolve amoung themselves whether a document should be considered confidential; the Court finds that confidential information must be filed under seal;; this court would normally be inclined to require that, to the extent any party seeks to use the confidentiality order in connection with a non−English speaking individual, that party should carry the cost of

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 8 of 29

10/23/2003 10/31/2003 11/04/2003
11/04/2003 12/04/2003 12/04/2003 12/08/2003 12/08/2003 12/08/2003 12/08/2003 12/08/2003 12/08/2003 12/08/2003 12/08/2003 12/08/2003 12/10/2003
12/16/2003 12/16/2003

translating it into English in a written form; plas as a group, will share equally with the dft in the cost of translating the confidentiality order and Exhibit A (cc: all counsel) (former emp) (ADI−ICMS, ). (Entered: 10/06/2003)
69 STIPULATION by all parties for entry of confidential order pursuant to the order of this Court dated 10/1/03 (former emp) (Entered: 10/28/2003)
70 NOTICE of service of first supplemental disclosure statement pursuant to FRCivP 26(a) by dft Bashas' Inc (former emp) (Entered: 11/03/2003)
71 STIPULATION FOR ENTRY OF CONFIDENTIAL ORDER by Judge Robert C. Broomfield : granting stipulation by all parties for entry of confidential order pursuant to the order of this Court dated 10/1/03; (cc: all counsel) (former emp) (ADI−ICMS, ). (Entered: 11/04/2003)
72 NOTICE of service of discovery by dft Bashas' Inc . (former emp) (Entered: 11/05/2003)
73 NOTICE OF MOTION AND MOTION (notice of motion and motion) for leave to file first amended complaint by pla Jose Parra, pla Gonzalo Estrada (no lodged document) [73−1] (former emp) (Entered: 12/08/2003)
74 DECLARATION of Elizabeth A Lawrence re motion for leave to file first amended complaint by pla Jose Parra, pla Gonzalo Estrada [73−1] (former emp) (Entered: 12/08/2003)
75 NOTICE by plas OF TAKING DEPO OF Bashas' Inc on the following date(s): 1/12/04 (LSP) (Entered: 12/10/2003)
76 NOTICE by plas OF TAKING DEPO OF Bashas' Inc on the following date(s): 1/14/04 (LSP) (Entered: 12/10/2003)
77 AMENDED NOTICE by plas OF TAKING DEPO OF Pam Giroux on the following date(s): 1/8/04 (LSP) (Entered: 12/10/2003)
78 AMENDED NOTICE by plas OF TAKING DEPO OF Tony Rinello on the following date(s): 1/7/04 (LSP) (Entered: 12/10/2003)
79 AMENDED NOTICE by plas OF TAKING DEPO OF Ernest Arvizu on the following date(s): 1/8/04 (LSP) (Entered: 12/10/2003)
80 NOTICE by plas OF TAKING DEPO OF Bashas' Inc on the following date(s): 1/9/04 (LSP) (Entered: 12/10/2003)
81 NOTICE by plas OF TAKING DEPO OF Bashas's Inc on the following date(s): 1/13/04 (LSP) (Entered: 12/10/2003)
82 NOTICE by plas OF TAKING DEPO OF Bashas' Inc on the following date(s): 1/14/03 (LSP) (Entered: 12/10/2003)
83 NOTICE by plas OF TAKING DEPO OF David Lang on the following date(s): 1/7/04 (LSP) (Entered: 12/10/2003)
84 MINUTE ENTRY before Judge Robert C. Broomfield. ECR: Vicki Reger. Telephonic Appearances: Elizabeth Lawrence for the plaitiff and Stephanie Quincy for the defendant. Discovery dispute hearing held. The Court notes that the issue regarding searching four email in−boxes has been resolved. The Court requests counsel brief the issue regarding plaintiff's request for profit and loss statements. The briefing schedule shall be followed pursuant to the local rules. The Court DIRECTS counsel to discuss the issue of the personnel database further. Ms. Lawrence indicates she will provide Ms. Quincy with UFCW's records by the end of next week. [cc: RCB] [84−1] re: minute entry [84−1] (KSB) (Entered: 12/11/2003)
85 MOTION to compel production of documents by plas [85−1] , for order for fees and costs incurred ($6,077.50) by plas [85−2] (former emp) (Entered: 12/18/2003)
86 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT by pla Jose Parra, pla Gonzalo Estrada of motion to compel discovery of documents form dft by plas [85−1] [85−1] (former emp) (Entered: 12/18/2003)

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 9 of 29

12/16/2003 12/16/2003 12/22/2003 12/22/2003 12/24/2003 12/29/2003 12/29/2003 12/31/2003 01/06/2004
01/06/2004 01/07/2004 01/07/2004 01/07/2004 01/07/2004 01/07/2004
01/07/2004 01/13/2004
01/13/2004 01/13/2004

87 SEPARATE STATEMENT of discovery requests, responses, and insufficiencies in support of motion to compel production of documents from dfts by plas [85−1] (former emp) (Entered: 12/18/2003)
88 DECLARATION of Elizabeth A Lawrence re motion to compel production of documents from dfts by plas [85−1] by pla Jose Parra, pla Gonzalo Estrada (former emp) (Entered: 12/18/2003)
89 NOTICE OF MOTION AND MOTION for extension of scheduling order #56 by plas [89−1] (former emp) Modified on 01/14/2004 (Entered: 12/30/2003)
90 DECLARATION of Elizabeth a Lawrence in support of motion for extension of scheduling order by plas [89−1] (former emp) (Entered: 12/30/2003)
91 MOTION to extend response dates on motion to compel discovery of documents from dft by dft Bashas' Inc [91−1] (former emp) Modified on 01/14/2004 (Entered: 12/31/2003)
92 Transcript Designation and Ordering Form re pre−trial proceeding held 9/15/03 (former emp) (Entered: 01/02/2004)
93 STIPULATION by all parties for extension of briefing schedule, until 12/30/03, for dft to file its response to pla's motion for leave to amend complaint (former emp) (Entered: 01/02/2004)
94 MOTION to extend time to 1/5/04 for dft to respond to motion for leave to amend complaint and motion to compel disc by dft Bashas' Inc [94−1] (DMT) Modified on 01/14/2004 (Entered: 01/06/2004)
95 ORDER by Judge Robert C. Broomfield granting stipulation by all parties for extension of briefing schedule as follows: to 12/31/03 for dft to file its response to pla's motion for leave to amend complaint and pla's reply to dft's response due 1/14/04. (cc: all counsel) (DMT) (ADI−ICMS, ). (Entered: 01/06/2004)
97 TRANSCRIPT of scheduling conference by Court Reporter: Vicki Reger for the following date(s): 9/15/03 (LSP) (Entered: 01/08/2004)
96 ORDER by Judge Robert C. Broomfield granting motion to extend time to 1/5/04 for dft to respond to motion for leave to amend complaint and motion to compel disc by dft Bashas' Inc [94−1] (cc: all counsel) (DMT) (ADI−ICMS, ). (Entered: 01/07/2004)
98 RESPONSE by dft Bashas' Inc to motion for extension of scheduling order by plas [89−1] (former emp) (Entered: 01/12/2004)
99 RESPONSE by dft Bashas' Inc to motion (notice of motion and motion) for leave to file first amended complaint by pla Jose Parra, pla Gonzalo Estrada (no lodged document) [73−1] (former emp) (Entered: 01/12/2004)
100 ERRATA by dft Bashas' Inc to dfts motions for leave to amend complaint and motion to compel discovery indicating the response date was extended to 1/5/04 (former emp) (Entered: 01/12/2004)
101 CROSS−MOTION for protective order (as to addresses and social security numbers of its employees) by dft Bashas' Inc [101−1] and RESPONSE to motion to compel production of documents by plas [85−1] by dft Bashas' Inc (former emp) (Entered: 01/12/2004)
102 NOTICE by dft Bashas' Inc of non−filing expert report pending plas' filing or decision regarding plas' failure to file (former emp) (Entered: 01/12/2004)
103 REPLY by pla Jose Parra, pla Gonzalo Estrada to response to motion (notice of motion and motion) for leave to file first amended complaint by pla Jose Parra, pla Gonzalo Estrada (no lodged document) [73−1] (former emp) Modified on 01/14/2004 (Entered: 01/14/2004)
104 REPLY by pla Jose Parra, pla Gonzalo Estrada to opposition to motion to compel production of documents by plas [85−1] (former emp) (Entered: 01/14/2004)
105 REPLY by pla Jose Parra, pla Gonzalo Estrada to dft's opposition to motion for extension of scheduling order #56 by plas [89−1] (former emp) (Entered: 01/14/2004)

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 10 of 29

01/21/2004 01/26/2004 01/29/2004 02/09/2004
02/23/2004
03/05/2004 03/05/2004 03/05/2004 03/10/2004
03/10/2004

106 REPLY by dft Bashas' Inc to response to motion for protective order (as to addresses and social security numbers of its employees) by dft Bashas' Inc [101−1] (former emp) (Entered: 01/22/2004)
107 NOTICE of service of 3rd supplemental disclosure statement pursuant to FRCivP 26(a) by dft Bashas' Inc (former emp) (Entered: 01/27/2004)
108 ORDER by Judge Robert C. Broomfield setting motion to compel production of documents by plas [85−1] at 11:00 2/9/04, setting motion for order for fees and costs incurred ($6,077.50) by plas [85−2] at 11:00 2/9/04, setting motion for extension of scheduling order #56 by plas [89−1] at 11:00 2/9/04, setting motion for protective order (as to addresses and social security numbers of its employees) by dft Bashas' Inc [101−1] at 11:00 2/9/04; any party may appear telephonically (cc: all counsel) (former emp) (ADI−ICMS, ). (Entered: 01/29/2004)
109 MINUTE ENTRY before Judge Robert C. Broomfield. ECR: Vicki Reger. Appearances: Elizabeth Lawrence for the plaintiffs and Stephanie Quincy for the defendants. Motions Hearing held. Counsel argue their positions to the Court. IT IS ORDERED taking under advisement the following motions: 1. Defendant's Motion for protective order (as to addresses and social security numbers of its employees) [101−1]. 2. Plaintiff's Motion for extension of scheduling order #56 [89−1]. 3. Plaintiff's Motion to compel production of documents and motion for order for fees and costs incurred ($6,077.50)[85−1, 2]. 4. Plaintiff's Motion for leave to file first amended complaint (no lodged document) [73−1]. [cc: RCB] [109−1] (KSB) (Entered: 02/09/2004)
110 ORDER by Judge Robert C. Broomfield granting motion (notice of motion and motion) for leave to file first amended complaint by pla Jose Parra, pla Gonzalo Estrada [73−1]; granting motion to compel production of documents by plas subject to the restrictions outlined in this order [85−1]; denying motion for protective order (as to addresses and social security numbers of its employees) by dft Bashas' Inc [101−1]; denying motion for order for fees and costs incurred ($6,077.50) by plas [85−2]; granting in accordance with the terms of this order the motion for extension scheduling order #56 by plas [89−1] (cc: all counsel) (former emp) (ADI−ICMS, ). (Entered: 02/23/2004)
111 MINUTE ORDER: The Court Orders setting this matter for Motion Hearing re: Defendant's Motion for Reconsideration [not yet docketed] on Wednesday, March 10, 2004 at 11:00 a.m. before the Honorable Robert C. Broomfield. (cc: RCB, all counsel) [111−1] re: order (minute) [111−1] (KSB) (Entered: 03/05/2004)
112 MOTION for reconsideration of order as to price books by dft Bashas' Inc [112−1] (DMT) (Entered: 03/05/2004)
113 ORDER by Judge Robert C. Broomfield setting motion for reconsideration of order as to price books by dft Bashas' Inc [112−1] at 11:00 3/10/04. Plas may submit a written response to this motion by 3/9/04. If plas file a responsel Bashas' may submit a reply by 3/10/04 9:30. Finally Ordered that a copy of the foregoing briefs if any are filed, shall be served on opposing counsel, as well as court by fax (cc: all counsel) (DMT) (ADI−ICMS, ). (Entered: 03/05/2004)
114 MINUTE ENTRY before Judge Robert C. Broomfield. ECR: Vicki Reger. Appearances: Elizabeth Lawrence (telephonically) for the plaintiffs and Stephanie Quincy for the defendant. Motion Hearing re: Defendant's Motion for Reconsideration held. Counsel make statements to the Court. IT IS ORDERED granting the motion to reconsider in part [112−1] and directing counsel for the defendant to supply the 10 tapes in issue to counsel for the plaintiff as they are made available, which means 8 will be supplied now and 2 once they are received, all of which is subject to the terms and conditions of the prior order previously entered. The Court DIRECTS defense counsel to produce the email tapes sans privilege material by March 19, 2004. The Court notes that defense counsel will make available tomorrow for counsel for the plaintiff the information regarding store by store profibiity, which is covered under the Court's prior order with the confidentiality restrictions. [cc: RCB, all counsel] [114−1] (KSB) (Entered: 03/10/2004)
115 REPLY by dft Bashas' Inc in support of motion for reconsideration of order regarding price books by dft Bashas' Inc [112−1] [112−1] (former emp) (Entered: 03/11/2004)

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 11 of 29

03/11/2004 03/22/2004 03/23/2004 03/23/2004 03/29/2004 03/30/2004 04/06/2004 04/12/2004 04/12/2004 04/13/2004 04/13/2004 04/15/2004 04/19/2004
05/07/2004

116 FIRST AMENDED COMPLAINT by pla Jose Parra, pla Gonzalo Estrada ; jury demand [1−1] ;adding pla Aurelia Martinez (former emp) (Entered: 03/15/2004)
117 MOTION for admission pro hac vice as to Jocelyn D Larkin, atty for pla Jose Parra, pla Gonzalo Estrada, pla Aurelia Martinez [117−1] (former emp) (Entered: 03/23/2004)
Pro Hac Vice $25 Fee Paid as to Jocelyn D Larkin (BAS) (Entered: 03/23/2004)
118 REQUEST (MOTION) for show cause hearing against United Food and Commercial Workers International Union as to their failure to disclose all documents responsive to Bashas' 8/11/03 subpoena, enforced by this Court in an order dated 10/1/03 by dft Bashas' Inc [118−1] (former emp) (Entered: 03/24/2004)
119 NOTICE by pla Jose Parra, pla Gonzalo Estrada OF TAKING DEPO OF Tom Dominic on the following date(s): 4/7/04, Ernest Arviza on 4/8/04, Huck Meegan on 4/8/04, Rob Johnson and Jule Sanford on 4/9/04, David Lang on 4/14/04, and Pam Giroux on 4/15/04 (former emp) (Entered: 03/29/2004)
120 ORDER by Judge Robert C. Broomfield granting motion for admission pro hac vice as to Jocelyn D Larkin, atty for pla Jose Parra, pla Gonzalo Estrada, pla Aurelia Martinez [117−1] (cc: all counsel) (former emp) (ADI−ICMS, ). (Entered: 03/30/2004)
121 NOTICE by pla Jose Parra, pla Gonzalo Estrada OF TAKING DEPO OF Bashas' Inc on the following date(s): 4/27/04 (former emp) (Entered: 04/07/2004)
122 DECLARATION of Christyne Neff re subpoena for records issued by Bashas by intervenor UFCW (copy filed) (former emp) Modified on 04/13/2004 (Entered: 04/13/2004)
123 DECLARATION of Christyne Neff by intervenor UFCW Region 8 re subpoena issued by Bashas' (copy filed) (former emp) (Entered: 04/13/2004)
124 DECLARATION of Christyne Neff, Agent for United Food and Commercial Workers International Union (re subpoena records by Bashas) by plas (former emp) (Entered: 04/13/2004)
125 DECLARATION of Christyne Neff, Agent for United Food & Commercial Workers, Region 8 (as to subpoena for records issued by Bashas) by plas (former emp) (Entered: 04/13/2004)
126 RESPONSE by plas to motion for show cause hearing against United Food and Commercial Workers International Union as to their failure to disclose all documents responsive to Bashas' 8/11/03 subpoena, enforced by this Court in an order dated 10/1/03 by dft Bashas' Inc [118−1] (former emp) (Entered: 04/16/2004)
127 MINUTE ENTRY before Judge Robert C. Broomfield. ECR: Vicki Reger. Telephonic Appearances: Elizabeth Lawrence and Jocelyn Larkin for the plaintiffs. Stephanie Quincy for the defendant. Discovery Dispute Hearing held. The Court DIRECTS the defendant to provide the information they've expressed in ability to provide or an indication that there isn't such information by this Friday, April 23, 2004. The Court leaves the determination of the person or persons to respond to the Rule 30(b)(6) deposition to be made by defendant; however, the Court DIRECTS defendant to make that person available. That person or persons may not be re−asked questions that they have already responded to because if they are already corporate officers they already bind the corporation. However, counsel may inquire at such 30(b)(6) deposition into inconsistencies or differences among prior deponents so as to insure plaintiff knows which of two different positions binds Bashas'. The Court DIRECTS counsel to have the 30(b)(6) deposition completed 20 days after the April 30, 2004 deadline. The Court will not preclude counsel from asking questions on new subject matter, but the Court will not allow counsel to examine the witness further with respect to what the witness has already testified to. [cc: RCB] [127−1] re: minute entry [127−1] (KSB) (Entered: 04/20/2004)
128 NOTICE by dft Bashas' Inc of change of address of counsel Thomas Kennedy, Raymond Deeny and Stephanie Quincy to Sherman & Howard, 1850 N Central, Ste 500, Phoenix, AZ 85004; Ph: 602−636−2008, Fax 602−234−7979 (former emp) (Entered: 05/11/2004)

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 12 of 29

05/10/2004 05/10/2004 05/14/2004
05/24/2004 06/04/2004 06/15/2004 06/16/2004 06/17/2004 06/22/2004 07/01/2004 07/01/2004 07/07/2004 07/07/2004 07/29/2004 08/16/2004 08/16/2004 08/16/2004 08/23/2004 09/07/2004
09/07/2004

129 AMENDED NOTICE by pla Jose Parra, pla Gonzalo Estrada OF TAKING DEPO OF Bashas', Inc on the following date(s): 5/11/04 (former emp) (Entered: 05/13/2004)
130 AMENDED NOTICE by pla Jose Parra, pla Gonzalo Estrada, dft Bashas' Inc OF TAKING DEPO OF Bashas' Inc on the following date(s): 05/11/04 (FMP) (Entered: 05/14/2004)
131 ORDER by Judge Robert C. Broomfield: granting in part and denying in part the motion for show cause hearing against United Food and Commercial Workers International Union as to their failure to disclose all documents responsive to Bashas' 8/11/03 subpoena, enforced by this Court in an order dated 10/1/03 by dft Bashas' Inc [118−1]; it is denied as the Court will not conduct a show cause hearing regarding the matters asserted in Bashas' motion, nor will it find that the International or Regional Unions' responses to the 10/1/03 subpoena are insufficient; the motion is granted to the extent that the court will order the Local Union, within 20 days of the date of this order, to supplement its privilege log in accordance with this order (cc: all counsel) (former emp) (ADI−ICMS, ). (Entered: 05/14/2004)
132 NOTICE of compliance of 5th supplemental disclosure statement pursuant to FRCivP 26(a) by dft Bashas' Inc (LAD) (Entered: 05/25/2004)
133 NOTICE of service of discovery by plas. (LAD) (Entered: 06/04/2004)
134 NOTICE of service of discovery by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez . (LSP) (Entered: 06/16/2004)
135 NOTICE of service of discovery by plas. (LSP) (Entered: 06/18/2004)
136 NOTICE of compliance of sixth supplemental disclosure statement pursuant to FRCivP 26(a) by dft Bashas' Inc (DMT) (Entered: 06/18/2004)
137 MOTION to strike as untimely Plaintiff's Amended Expert Report by dft Bashas' Inc [137−1] (LSP) (Entered: 06/23/2004)
138 NOTICE of service of 7th supplemental disclosure statement pursuant to FRCivP 26(a) by dft Bashas' Inc (former emp) (Entered: 07/02/2004)
139 RESPONSE by pla Jose Parra, pla Gonzalo Estrada to motion to strike as untimely Plaintiff's Amended Expert Report by dft Bashas' Inc [137−1] (former emp) (Entered: 07/02/2004)
140 NOTICE OF WITHDRAWAL by dft Bashas' Inc of motion to strike as untimely Plaintiff's Amended Expert Report by dft Bashas' Inc [137−1] (REW) (Entered: 07/12/2004)
141 NOTICE of service by dft Bashas' Inc OF TAKING DEPO OF Richard Drogin PhD on the following date(s): 7/13/04 at 9:00 am (REW) (Entered: 07/12/2004)
142 NOTICE of service of discovery by dft Bashas' Inc . (LSP) (Entered: 08/02/2004)
143 NOTICE of service of 9th supplemental disclosure statement pursuant to FRCivP 26(a) by dft Bashas' Inc (former emp) (Entered: 08/17/2004)
144 NOTICE by plas of service of subpoena in civil case to Michael P Ward pursuant to Fed.R.Civ.P. 45 (former emp) (Entered: 08/17/2004)
145 NOTICE by pla Jose Parra, pla Gonzalo Estrada of servcie of notice of deposition of Michael P Ward pursuant to Fed.R.Civ.P. 30 (former emp) (Entered: 08/17/2004)
146 NOTICE of Service of Tenth Supplemental Rule 26(a) Disclosure Statement by dft Bashas' Inc (SAT) (Entered: 08/24/2004)
147 MOTION for leave (permission) to to use previously disclosed expert analysis as rebuttal opinion by pla Jose Parra, pla Gonzalo Estrada [147−1] , and to accelerate ruling (for expedited decision) on motion by pla Jose Parra, pla Gonzalo Estrada [147−2] (LSP) (Entered: 09/10/2004)
148 DECLARATION of Jocelyn Larkin in support of motion for leave (permission) to to use previously disclosed expert analysis as rebuttal opinion by pla Jose Parra, pla Gonzalo Estrada [147−1], re motion to accelerate ruling (for expedited decision) on

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 13 of 29

09/10/2004 09/21/2004 09/23/2004 09/27/2004 09/27/2004 09/27/2004 09/27/2004 09/27/2004 09/27/2004 09/27/2004
09/27/2004 09/28/2004 09/30/2004 09/30/2004

motion by pla Jose Parra, pla Gonzalo Estrada [147−2] by pla Jose Parra, pla Gonzalo Estrada (LSP) (Entered: 09/10/2004)
149 ORDER by Judge Robert C. Broomfield denying request for expedited treatment on motion for leave (permission) to use previously−disclosed expert analysis as rebuttal opinion by pla Jose Parra, pla Gonzalo Estrada [147−2]. (cc: all counsel) (LSP) (ADI−ICMS, ). (Entered: 09/10/2004)
150 NOTICE of service of supplemental disclosure statement pursuant to FRCivP 26(a) by pla Jose Parra, pla Gonzalo Estrada, pla Aurelia Martinez (KCS) (Entered: 09/23/2004)
151 MOTION to extend time to file response to Plaintiff's Motion for permission to file rebuttal report by dft Bashas' Inc [151−1] (LSP) (Entered: 09/24/2004)
152 MOTION for appointment of class counsel and memorandum of Points and Authorities in support of Motion by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [152−1] (LSP) Modified on 09/28/2004 (Entered: 09/28/2004)
153 DECLARATION of Jocelyn D. Larkin re motion for appointment of class counsel and memorandum of Points and Authorities in support of Motion by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [152−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) Modified on 09/28/2004 (Entered: 09/28/2004)
154 DECLARATION of Elizabeth A. Lawerence re motion for appointment of class counsel and memorandum of Points and Authorities in support of Motion by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [152−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) Modified on 09/28/2004 (Entered: 09/28/2004)
155 MOTION to exceed the page limit for doc(s) Sealed Motion for Class Certification and Memorandum in support and supporting Declarations by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [155−1] NOTE: Lodged Documents at docket clerk's desk (LSP) (Entered: 09/28/2004)
LODGED Sealed Motion for Class Certification and Memorandum of points and authorities in support of Motion by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 09/28/2004)
LODGED Sealed Declaration of Dr. Richard Drogin, Ph.D and Jocelyn D. Larkin in support of Motion for Class Certification by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 09/28/2004)
LODGED Declaration of Barry S. Jellison, Aurelia H. Martinez, JOse Agapito Perez Estrada, Juana Urbina, Antonieta Acuna, Joanne Huerta, Jose Parra, Terri May, Casey May, Maria Gutierrez, Francisco Javier Lopez Salazar, Carmen Guadalupe Lopez, Kristin L. Martin, Gloria Arriaga, Gonzalo Estrada, and Elizabeth A. Lawrence in support of Plas' Motion for Class Certification by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 09/28/2004)
156 CERTIFICATE of service by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez of Motion for Class Certification, supporting memorandum and declarations, order, Motion for Appointment as Class Counsel, supporting memorandum and declarations, Motion to exceed the page limit, notice and order (LSP) (Entered: 09/28/2004)
157 ORDER by Judge Robert C. Broomfield granting motion to extend time to and including 9/30/04 to file response to Plaintiff's Motion for permission to file rebuttal report by dft Bashas' Inc [151−1]. (cc: all counsel) (LSP) (ADI−ICMS, ). (Entered: 09/28/2004)
158 ORDER by Judge Robert C. Broomfield granting motion to exceed the page limit for doc(s) Sealed Motion for Class Certification and Memorandum in support and supporting Declarations by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [155−1]. (cc: all counsel) (LSP) (ADI−ICMS, ). (Entered: 09/30/2004)
159 SEALED Motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] and memorandum of points and authorities in support of motion (LSP) (Entered: 10/01/2004)

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 14 of 29

09/30/2004 09/30/2004 09/30/2004 09/30/2004 09/30/2004 09/30/2004 09/30/2004 09/30/2004 09/30/2004 09/30/2004 09/30/2004 09/30/2004 09/30/2004 09/30/2004 09/30/2004 09/30/2004 09/30/2004

160 SEALED Document re: Declaration of Dr. Richard Drogin, Ph.D re motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] [159−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 10/01/2004)
161 SEALED Document re: Declaration of Jocelyn D. Larkin re motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 10/01/2004)
162 DECLARATION of Barry S. Jellison re motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 10/01/2004)
163 DECLARATION of Aurelia H. Martinez re motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 10/01/2004)
164 DECLARATION of Jose Agapito Perez Estrada re motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 10/01/2004)
165 DECLARATION of Juana Urbina re motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 10/01/2004)
166 DECLARATION of Antonieta Acuna re motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 10/01/2004)
167 DECLARATION of Joanne Huerta re motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 10/01/2004)
168 DECLARATION of Jose Parra re motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 10/01/2004)
169 DECLARATION of Terri May re motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 10/01/2004)
170 DECLARATION of Casey May re motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 10/01/2004)
171 DECLARATION of Maria Gutierrez re motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 10/01/2004)
172 DECLARATION of Francisco Javier Lopez Salazar re motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 10/01/2004)
173 DECLARATION of Carmen Guadalupe Lopez re motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia [159−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 10/01/2004)
174 DECLARATION of Kristin L. Martin re motion to certify class action; excerpts of NLRB proceedings by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 10/01/2004)
175 DECLARATION of Gloria Arriaga re motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 10/01/2004)
176 DECLARATION of Gonzalo Estrada re motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 10/01/2004)

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 15 of 29

09/30/2004 09/30/2004 10/01/2004 10/12/2004 10/12/2004 10/12/2004 10/12/2004 10/14/2004 10/18/2004
10/19/2004 10/19/2004 11/03/2004 11/08/2004 11/08/2004

177 DECLARATION of Elizabeth A. Lawrence re motion to certify class action (Exhibits: Health and Safety inspections, internal inspections) by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 10/01/2004)
179 CROSS−MOTION to depose expert as to new theory and offer expert report in opposition by dft Bashas' Inc [179−1] and RESPONSE to motion for leave to to use previously disclosed expert analysis as rebuttal opinion by pla Jose Parra, pla Gonzalo Estrada, pla Aurelia Martinez [147−1] by dft Bashas' Inc (LSP) (Entered: 10/01/2004)
178 MINUTE ORDER: IT IS ORDERED setting the motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] at 11:00 a.m. on 1/24/05 (cc: all counsel) [178−1] (TCA) (Entered: 10/01/2004)
180 REPLY by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez to response to motion for leave (permission) to to use previously disclosed expert analysis as rebuttal opinion by pla Jose Parra, pla Gonzalo Estrada [147−1] (LSP) (Entered: 10/13/2004)
180 RESPONSE by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez to cross−motion to depose expert as to new theory and offer expert report in opposition by dft Bashas' Inc [179−1] (LSP) (Entered: 10/13/2004)
181 DECLARATION of Jocelyn Larkin in support of motion for leave (permission) to to use previously disclosed expert analysis as rebuttal opinion by pla Jose Parra, pla Gonzalo Estrada [147−1] by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez (LSP) (Entered: 10/13/2004)
182 MOTION to exceed the page limit for doc(s) Memorandum of Points and Authorities in support of Response to Plas' Motion for Class Certification by dft Bashas' Inc [182−1] NOTE: No lodged document (LSP) (Entered: 10/13/2004)
183 MOTION for issuance of Briefing Schedule re Response to Plaintiffs' Motion for Class Certification by dft Bashas' Inc [183−1] (LSP) (Entered: 10/15/2004)
186 MINUTE ENTRY before Judge Robert C. Broomfield. ECR: Vicki Reger. Appearances: Jocelyn Larkin and Elizabeth Lawrence appearing telephonically for the plaintiffs. Stephanie Quincy appearing telephonically for the defendant. There being no objection, IT IS ORDERED granting Defendant's Motion for Relief from Page Limit for Memorandum of Points and Authorities in Support of Response to Plaintiff's Motion for Class Certification [182−1]. Order to follow. IT IS FURTHER ORDERED granting Defendant's Motion for Issuance of Briefing Schedule re: Response to Plaintiffs' Motion for Class Certification [183−1]. Discussion held. The Court GRANTS defendant an extension of time to respond to the motion for class certification until November 5, 2004. Plaintiff shall reply by November 22, 2004. The Court will consider altering the deadlines, should it be difficult for the parties to meet those deadlines. [cc: RCB, counsel] [186−1] (KSB) (Entered: 10/19/2004)
184 RESPONSE by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez to motion for issuance of Briefing Schedule re Response to Plaintiffs' Motion for Class Certification by dft Bashas' Inc [183−1] (LSP) (Entered: 10/19/2004)
185 ORDER by Judge Robert C. Broomfield granting motion to exceed the page limit for doc(s) Memorandum of Points and Authorities in support of Response to Plas' Motion for Class Certification by dft Bashas' Inc [182−1]. (cc: all counsel) (LSP) (ADI−ICMS, ). (Entered: 10/19/2004)
187 MOTION to extend time one day each for response and reply to motion for class certification by dft Bashas' Inc [187−1] (KCS) (Entered: 11/04/2004)
188 ORDER by Judge Robert C. Broomfield granting motion to extend time one day each for response and reply to motion for class certification by dft Bashas' Inc [187−1] (cc: all counsel) (LAL) (ADI−ICMS, ). (Entered: 11/08/2004)
189 RESPONSE by dft Bashas' Inc to Motion for appointment of class counsel and memorandum of Points and Authorities in support of Motion by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [152−1] (KMG) (Entered: 11/15/2004)

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 16 of 29

11/08/2004 11/08/2004 11/09/2004 11/09/2004
11/23/2004 11/23/2004 11/23/2004
11/23/2004 11/23/2004 11/23/2004 11/23/2004 11/23/2004 11/23/2004 11/23/2004 11/23/2004 11/23/2004 11/30/2004 11/30/2004 11/30/2004 11/30/2004

190 SEALED Response by dft Bashas' Inc to Motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] (KMG) (Entered: 11/15/2004)
191 MOTION to Strike Evidence From plas' Motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by dft Bashas' Inc [191−1] (KMG) (Entered: 11/15/2004)
192 NOTICE OF ERRATA by dft Bashas' Inc to Sealed Response to Motion [190−1] for Class Certification (to include the Exhibits (list)) (KMG) Modified on 11/15/2004 (Entered: 11/15/2004)
193 SEALED NOTICE OF FILING Sealed Exhibits to Sealed Response to Motion [190−1] for Class Certification by dft Bashas' Inc (NOTE: Included with this Notice are 6 Sealed Bulky documents ((Parts 1 of 6, 2 of 6, etc. to be located with bulky documents as docs #193A, #193B, etc.) (KMG) (Entered: 11/15/2004)
194 RESPONSE(Opposition) by plas to motion to Strike Evidence From plas' Motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by dft Bashas' Inc [191−1] (SRB) (Entered: 11/23/2004)
195 REPLY by pla to response to motion for appointment of class counsel and memorandum of Points and Authorities in support of Motion by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [152−1] (SRB) (Entered: 11/23/2004)
196 SUPPLEMENTAL declaration of Jocelyn Larkin by plas in support of motion for appointment of class counsel and memorandum of Points and Authorities in support of Motion by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [152−1] [152−1] (SRB) (Entered: 11/23/2004)
197 MOTION to strike deposition testimony of Paul Joe Pedraza, dfts exhibit 38 by plas [197−1] (SRB) (Entered: 11/23/2004)
198 DECLARATION of Elizabeth A. Lawrence re motion to strike deposition testimony of Paul Joe Pedraza, dfts exhibit 38 by plas [197−1] by plas (SRB) (Entered: 11/23/2004)
199 MOTION to exceed the page limit for doc(s) motion to strike dfts evidence by plas [199−1] (lodged document at docket clerks desk) (SRB) (Entered: 11/23/2004)
LODGED motion to stike by plas (SRB) (Entered: 11/23/2004)
200 MOTION to exceed the page limit for doc(s) reply brief in support of class certification by plas [200−1] (lodged document at docket clerks desk) (SRB) (Entered: 11/23/2004)
LODGED reply brief in support of class certification by plas (SRB) (Entered: 11/23/2004)
201 DECLARATION of Kristin L. Martin in support of motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by plas (SRB) (Entered: 11/23/2004)
202 SEALED Document; supplemental declaration of Jocelyn D. Larkin in support of motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] [159−1] by plas (SRB) (Entered: 11/23/2004)
203 CERTIFICATE by plas of service of documents (SRB) (Entered: 11/23/2004)
204 ORDER by Judge Robert C. Broomfield granting motion to exceed the page limit for doc(s) motion to strike dfts evidence by plas [199−1] lodged document [0−0] terminated (cc: all counsel) (SRB) (ADI−ICMS, ). (Entered: 11/30/2004)
205 MOTION to strike evidence submitted by plas [205−1] (SRB) (Entered: 11/30/2004)
206 ORDER by Judge Robert C. Broomfield granting motion to exceed the page limit for doc(s) reply brief in support of class certification by plas [200−1] lodged document [0−0] terminated (cc: all counsel) (SRB) (ADI−ICMS, ). (Entered: 11/30/2004)
207 SEALED Document reply brief in support of motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by plas (SRB) (Entered:

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 17 of 29

12/03/2004 12/03/2004 12/10/2004 12/15/2004 12/17/2004 12/17/2004 12/21/2004 12/21/2004 12/30/2004 12/30/2004 12/30/2004 12/30/2004 01/18/2005
01/24/2005
01/25/2005 02/09/2005 08/31/2005

11/30/2004)
208 MOTION to withdraw exhibit to motion to strike evidence from pla's motion to certify by dft Bashas' Inc [208−1] (SRB) (Entered: 12/06/2004)
209 REPLY by dft Bashas' Inc to response to motion to Strike Evidence From plas' Motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1] by dft Bashas' Inc [191−1] (SRB) (Entered: 12/06/2004)
210 MOTION to extend time for one week extension to file response to motin to strike testimony by dft Bashas' Inc [210−1] (SRB) (Entered: 12/13/2004)
211 RESPONSE by pla Jose Parra, pla Gonzalo Estrada to motion to extend time for one week extension to file response to motin to strike testimony by dft Bashas' Inc [210−1] (SRB) (Entered: 12/16/2004)
212 RESPONSE by dft Bashas' Inc to motion to strike deposition testimony of Paul Joe Pedraza, dfts exhibit 38 by plas [197−1] (KMG) (Entered: 12/21/2004)
213 RESPONSE by dft Bashas' Inc to motion to strike evidence submitted by plas [205−1] (KMG) (Entered: 12/21/2004)
214 ORDER by Judge Robert C. Broomfield granting motion to extend time until 12/17/04 for dft to file response to to strike testimony [210−1]. Plas to file their reply briefs on 1/3/05. (cc: all counsel) (KMG) (ADI−ICMS, ). (Entered: 12/21/2004)
215 NOTICE by dft Bashas' Inc of filing executed affidavit of W Todd Turner (SRB) (Entered: 12/22/2004)
216 REPLY by plas to response to motion to strike evidence submitted by plas [205−1] (SRB) (Entered: 12/30/2004)
217 DECLARATION of Elizabeth A Lawrence re reply to response to motion [216−1] by plas (SRB) (Entered: 12/30/2004)
218 REPLY by plas to response to motion to strike deposition testimony of Paul Joe Pedraza, dfts exhibit 38 by plas [197−1] (SRB) (Entered: 12/30/2004)
219 DECLARATION of Elizabeth Lawrence re reply to response to motion [218−1] by plas (SRB) (Entered: 12/30/2004)
220 ORDER by Judge Robert C. Broomfield setting motion for leave (permission) to to use previously disclosed expert analysis as rebuttal opinion by pla Jose Parra, pla Gonzalo Estrada [147−1] at 11:00 1/24/05 (cc: all counsel) (SRB) (ADI−ICMS, ). (Entered: 01/18/2005)
222 MINUTE ENTRY before Judge Robert C. Broomfield. Crt Rptr: Sharon Malloque. Appearances: Jocelyn Larkin, Elizabeth Lawrence and Sarah Varela for plaintiffs; Stephanie Quincy and Theodore Olsen for defendants. Also present for defendants: Mike Gault and Mike Proulx. Motion hearing is held. IT IS ORDERED taking under advisement on 1/24/05 the motion for leave (permission) to to use previously expert analysis as rebuttal opinion by pla Jose Parra, pla Gonzalo Estrada [147−1]; the motion to accelerate ruling (for expedited decision) on motion by pla Jose Parra, pla Gonzalo Estrada [147−2]; and the motion to certify class action by plas Jose Parra, Gonzalo Estrada, Aurelia Martinez [159−1]. [cc: RCB] [222−1] (KCB) (Entered: 01/26/2005)
221 SEALED Document re: Notice of filing wage comparison exhibit by dft Bashas' Inc (SRB) (Entered: 01/26/2005)
223 NOTICE of compliance of initial disclosure statement pursuant to FRCivP 26(a) by dft Bashas' Inc (SRB) (Entered: 02/10/2005)
224 ORDER granting 147 Pla's Motion for permission to use previously−disclosed expert analysis as rebuttal opinion. IT IS FURTHER ORDERED granting 152 Pla's Motion for Appointment as Class Counsel. IT IS FURTHER ORDERED granting in part and denying in part 159 Plas' Motion to Certify Class. IT IS FURTHER ORDERED denying 179 Dft's Cross−Motion to depose expert as to new theory and offer expert report in opposition. IT IS FURTHER ORDERED denying 191 Dft's Motion to Strike evidence from Plas' Motion to Certify Class. IT IS FURTHER ORDERED denying

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 18 of 29

08/31/2005 09/15/2005
09/15/2005 09/15/2005 09/16/2005 09/21/2005
10/05/2005
10/12/2005
10/12/2005
10/12/2005
03/30/2006 04/07/2006 04/27/2006 05/10/2006 05/12/2006

197 Plas' Motion to Strike depositon testimony of Paul Joe Pedraza, Exhibit 38. IT IS FURTHER ORDERED granting in part and denying in part 205 Plas' Motion to Strike evidence. Dft's Exhibits 1W, 10, 33, 35, 36 and 46 are STRICKEN. IT IS FURTHER ORDERED finding as moot 208 Dft's Motion to Withdraw exhibit 208 . Signed by Judge Robert C Broomfield on 8/29/05. (LSP) (Entered: 08/31/2005)
Copy of document number 224, mailed to Jocelyn Larkin, Theodore Olsen, Jennifer Wedel on this date. (EAT, ) (Entered: 08/31/2005)
225 MOTION to Supplement Supplemental Motion to Redefine and Limit Requested Class and to Reconsider August 31, 2005 Order by Jose Parra, Gonzalo Estrada, Aurelia Martinez. (Attachments: # 1 Attachment A# 2 Attachment B)(Lawrence, Elizabeth) (Entered: 09/15/2005)
226 Notice re Certificate of Service by Jose Parra, Gonzalo Estrada, Aurelia Martinez Notice of Service of Declaration of Jocelyn D. Larkin Filed Under Seal (Lawrence, Elizabeth) (Entered: 09/15/2005)
228 Sealed Document: Declaration filed by Jose Parra, Gonzalo Estrada, Aurelia Martinez. (LAD, ) (Entered: 09/19/2005)
227 Notice re Manual Filing Notification by Jose Parra, Gonzalo Estrada, Aurelia Martinez Manual Filing Notification of Declaration Under Seal (Lawrence, Elizabeth) (Entered: 09/16/2005)
229 ORDERED that the Court shall permit Defendant Bashas', Inc. to file a response to Plaintiffs' motion. Any such response is due ten days from the date of this order. Signed by Judge Robert C Broomfield on 9/21/05. (RCB)(.pdf document attached) (Entered: 09/21/2005)
230 RESPONSE to Motion re 225 MOTION to Supplement Supplemental Motion to Redefine and Limit Requested Class and to Reconsider August 31, 2005 Order filed by Bashas' Inc. (Attachments: # 1 Exhibit Grosz v. The Boeing Co.# 2 Exhibit Memorandum and Order# 3 Exhibit Order Denying Ps' Mtn for Class Cert)(Quincy, Stephanie) (Entered: 10/05/2005)
231 REPLY to Response to Motion re 225 MOTION to Supplement Supplemental Motion to Redefine and Limit Requested Class and to Reconsider August 31, 2005 Order filed by Jose Parra, Gonzalo Estrada, Aurelia Martinez. (Lawrence, Elizabeth) (Entered: 10/12/2005)
232 MOTION for Leave to File Plaintiffs' Motion for Leave to File a Reply Brief in Support of Supplemental Motion to Redefine and Limit Requested Class and to Reconsider August 31, 2005 Order by Jose Parra, Gonzalo Estrada, Aurelia Martinez. (Lawrence, Elizabeth) (Entered: 10/12/2005)
233 AMENDEDFirst MOTION to Amend/Correct Leave to File Reply Brief in Support of Supplemental Motion to Redefine and Limit Requested Class and to Reconsider August 31, 2005 Order by Jose Parra, Gonzalo Estrada, Aurelia Martinez. (Attachments: # 1 Attachment)(Lawrence, Elizabeth) (Entered: 10/12/2005)
234 IT IS ORDERED denying 225 Plaintiff's Supplemental Motion, granting 233 Plaintiff's Motion for Leave to File Reply Brief. Signed by Judge Robert C Broomfield on 3/29/06. (TLJ) (Entered: 03/30/2006)
235 TRANSCRIPT DESIGNATION AND ORDER FORM by Jose Parra, Gonzalo Estrada, Aurelia Martinez for proceedings held on January 24, 2005 before Judge Robert C. Broomfield. (Lawrence, Elizabeth) (Entered: 04/07/2006)
236 TRANSCRIPT of Motion Hearing Proceedings held on 1/24/05 before Judge Robert C Broomfield. Court Reporter: Vicki Reger. (BAS, ) (Entered: 05/05/2006)
237 NOTICE of Deposition of Zogby International, Inc., filed by Bashas' Inc. (Quincy, Stephanie) (Entered: 05/10/2006)
238 NOTICE of Deposition of UFCW Local 99, filed by Bashas' Inc. (Quincy, Stephanie) (Entered: 05/12/2006)

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 19 of 29

06/07/2006 06/07/2006 06/07/2006 06/22/2006 08/09/2006 10/31/2006 10/31/2006 11/01/2006 11/01/2006 11/01/2006
11/01/2006
11/01/2006 11/02/2006
11/02/2006

239 ORDER of 9th Circuit, Court grants the petition for permission to appeal the District's Court's 8/31/05 order and 3/30/06 order. Within 10 days, petitioners shall perfect the appeal in accordance with FRAP 5(d), appeal case number 06−16038 (REW, ) (Entered: 06/19/2006)
240 NOTICE OF INTERLOCUTORY APPEAL to 9th Circuit as to 234 Order, 224 Order by Jose Parra, Gonzalo Estrada, Aurelia Martinez. Filing fee $ 455, receipt number PHX044750. (no pdf filed, appeal allowed by USCA in order 239 ) (DMT, ) (Entered: 06/22/2006)
CADS Sent re 240 Notice of Appeal − Interlocutory: Civil Appeals Docketing Statement sent to 9th Circuit on this date. (DMT, ) (Entered: 06/22/2006)
241 Notice of Appeal Notification Form; Notice of Appeal and copy of docket sheet transmitted to Ninth Circuit and all parties re 240 Notice of Appeal − Interlocutory (DMT, ) (Entered: 06/22/2006)
242 Appeal Document by Jose Parra Transcript Order Form (Lawrence, Elizabeth) Modified on 11/1/2006 INCORRECT DOCUMENT TYPE SELECTED. ATTORNEY NOTICED TO RE−FILE (REW, ). (Entered: 08/09/2006)
247 ORDER of 9th Circuit, remaining briefing schedule reset. Court records do not currently reflect that the district court has issued the certificate of record. The appellants shall monitor the issuance of the certificate, appeal case number 06−16038, as to 240 Notice of Appeal − Interlocutory (REW, ) (Entered: 10/31/2006)
250 SEALED REPLY to Response to Motion re 243 MOTION filed by Bashas' Inc. (Attachments: # 1 Exhibit)(LSP) (Entered: 11/01/2006)
248 NOTICE TO FILER OF DEFICIENCY re 242 Appeal Document filed by Jose Parra. Description of deficiency: Incorrect Document Type Selected. (REW, ) (Entered: 11/01/2006)
249 TRANSCRIPT DESIGNATION AND ORDER FORM already prepared and on file − for 9th Circuit Appeal by Jose Parra for proceedings held on January 24, 2005 before Judge Broomfield. (Lawrence, Elizabeth) (Entered: 11/01/2006)
251 ORDERED setting a hearing for 11/27/2006 at 2:15 PM before Judge Robert C Broomfield, Courtroom 606, Sandra Day O'Connor United States Courthouse, 401 West Washington, Phoenix, Arizona. The hearing will be held for the limited purpose of determining whether discovery should be imposed in this matter, and if so, in what form, with respect to plaintiff's alleged breach of the court's October 1, 2003, confidentiality order. Signed by Judge Robert C Broomfield on 11/1/06. (RCB)(.pdf document is attached) (Entered: 11/01/2006)
252 ERRATA Exhibit 1 to Declaration of Steven L. Stemerman in Support of Plaintiffs' Opposition to Notice of Violation of Court Order, Docket #246 by Plaintiff Jose Parra. (Lawrence, Elizabeth) Modified on 11/2/2006 (LCF, ). DOCUMENT NOT IN COMPLIANCE WITH L/R's. ATTORNEY NOTICED. DOCUMENT IS UNSIGNED, ATTORNEY NOTICED TO REFILE. INCORRECT PDF ATTACHED. (Entered: 11/01/2006)
253 CERTIFICATE OF RECORD TRANSMITTED TO 9TH CIRCUIT COURT OF APPEALS re 240 Notice of Appeal − Interlocutory (REW, ) (Entered: 11/02/2006)
254 NOTICE TO FILER OF DEFICIENCY re 252 ERRATA, filed by Jose Parra. Description of deficiency: Case number/case caption has been omitted from document. Document is not in compliance with the local rules. Document does not contain a signature. Incorrect PDF document attached. Attorney noticed to refile document. (LCF) (Entered: 11/02/2006)
255 ERRATA re 254 Notice of Filer of Deficiency, Errata: Exhibit 1 to Declaration of Steven L. Stemerman in Support of Plaintiffs' Opposition to Defendant's Notice of Violation of Court Order and Motion for Discovery and Evidentiary Hearing Regarding Violation of Confidential Order by Plaintiff Jose Parra. (Lawrence, Elizabeth) (Entered: 11/02/2006)

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 20 of 29

11/03/2006 11/27/2006 11/27/2006
12/21/2006 01/09/2007
02/26/2007 03/16/2007 03/21/2007 03/23/2007 03/29/2007 04/05/2007 04/05/2007 09/26/2008
09/30/2008 11/25/2008 12/01/2008

256 SEALED SUPPLEMENT (Notice) re 250 Reply filed by Bashas' Inc. (LSP) (Entered: 11/06/2006)
257 STIPULATION To Continue Hearing Date on Notice of Violation of Court Order and Motion for Discovery and Hearing by Jose Parra. (Attachments: # 1 Text of Proposed Order)(Lawrence, Elizabeth) (Entered: 11/27/2006)
258 ORDERED granting 257 STIPULATION To Continue Hearing Date on Notice of Violation of Court Order and Motion for Discovery and Hearing. Status Conference is reset to 1/2/2007 at 3:00 PM in Courtroom 606, 401 West Washington Street, Phoenix, AZ 85003 before Judge Robert C Broomfield. Signed by Judge Robert C Broomfield on 11/27/06.(RCB)(.pdf document is attached) (Entered: 11/27/2006)
259 STIPULATION Stipulation to Continue Hearing on Notice of Violation of Court Order and Motion for Discovery and Evidentiary Hearing Regarding Violation of Confidential Order by Jose Parra, Gonzalo Estrada, Aurelia Martinez. (Lawrence, Elizabeth) (Entered: 12/21/2006)
260 Pursuant to the stipulation of parties, the pending hearing on the Notice of Violation of Court Order and Motion for Discovery and Evidentiary Hearing Regarding Violation of Confidential Order set for 1/2/07, is taken off calendar. The parties may seek to reset it after 2/17/07. Signed by Judge Robert C Broomfield on 1/8/07.(RCB)(.pdf document is attached.) (Entered: 01/09/2007)
261 NOTICE of Change of Address by Stephanie J Quincy (Quincy, Stephanie) (Entered: 02/26/2007)
262 NOTICE of Change of Address by Stephanie J Quincy (Quincy, Stephanie) (Entered: 03/16/2007)
263 MOTION to Withdraw as Attorney Motion to Substitute Counsel for Defendant (Sherman & Howard L.L.C.) by Bashas' Inc. (Deeny, Raymond) (Entered: 03/21/2007)
264 ORDER granting 263 Motion to Withdraw as Attorney. Attorneys Theodore A Olsen; Raymond Myles Deeny and Thomas J Kennedy are terminated. Ms Quincy will continue to represent dft. Signed by Judge Robert C Broomfield on 3/22/07.(KMG) (Entered: 03/23/2007)
265 SEALED ORDER denying 243 Motion. Signed by Judge Robert C Broomfield on 3/26/07. (cc: All Cnsl)(MAP) (Entered: 03/29/2007)
Ninth Circuit Case Number 06−16038 (per Ninth Circuit order) for 240 Notice of Appeal − Interlocutory. (REW, ) (Entered: 04/05/2007)
266 ORDER of 9th Circuit, motion to substitute counsel granted; appellee Bashas' is now represented by Stephanie Quincy, appeal case number 06−16038, as to 240 Notice of Appeal − Interlocutory (REW, ) (Entered: 04/05/2007)
267 MANDATE of 9th Circuit (Certified Copy): We REVERSE the district court's finding that Plaintiffs' originally proposed class lacked commonaility under Rule 23(a)(2) and REMAND for consideration of the remaining class certification factors in accordance with this opinion. Case number 06−16038, as to 240 Notice of Appeal − Interlocutory filed by Aurelia Martinez, Jose Parra, Gonzalo Estrada (Attachments: # 1 Order, # 2 Memorandum, # 3 NDA)(DNH) (Entered: 09/26/2008)
268 Appeal Document; Ninth Circuit Bill of Costs, omitted from mandate 267 , re 240 Notice of Appeal − Interlocutory. (LSP) Modified on 9/30/2008, TO INCLUDE ADDITIONAL DOCUMENT LINKAGE, (LSP). (Entered: 09/30/2008)
269 MOTION to Set Status Conference by Plaintiff Jose Parra. (Lawrence, Elizabeth) Modified on 11/26/2008, INCORRECT EVENT TYPE SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM "Request" TO "Motion", (LSP). (Entered: 11/25/2008)
270 MOTION to Stay re Proceedings Pending Petition for Writ of Certiorari or, in the Alternative, Motion to Extend Time to Respond to Plaintiffs' Request to Set Status Conference by Bashas' Inc. (Attachments: # 1 Text of Proposed Order Proposed order granting Motion to Stay Proceedings, # 2 Text of Proposed Order Proposed order denying Motion to Stay Proceedings)(Janicik, Douglas) (Entered: 12/01/2008)

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 21 of 29

12/10/2008 12/17/2008 12/31/2008
01/13/2009 01/21/2009 01/26/2009 02/02/2009
02/06/2009 02/19/2009
02/19/2009 02/25/2009 03/09/2009 03/16/2009

271 RESPONSE in Opposition re 270 MOTION to Stay re Proceedings Pending Petition for Writ of Certiorari or, in the Alternative, Motion to Extend Time to Respond to Plaintiffs' Request to Set Status Conference Opposition to Motion for Stay of Proceedings Pending Petition for Writ of Certiorari filed by Jose Parra, Gonzalo Estrada, Aurelia Martinez. (Lawrence, Elizabeth) (Entered: 12/10/2008)
272 REPLY in Support re 270 MOTION to Stay re Proceedings Pending Petition for Writ of Certiorari or, in the Alternative, Motion to Extend Time to Respond to Plaintiffs' Request to Set Status Conference filed by Bashas' Inc. (Janicik, Douglas) Modified on 12/18/2008 (LAD). DOCUMENT NOT IN COMPLIANCE WITH LRCiv 7.1(c). ATTORNEY NOTICED. (Entered: 12/17/2008)
273 ORDER granting Pla's 269 Request/Motion set set Status Conference, Status Conference shall be held, if at all, on 2/2/2009 at 02:30 PM in Courtroom 606, 401 West Washington Street, Phoenix, AZ 85003 before Judge Robert C Broomfield. Dft's 270 Motion is denied without prejudice to renew insofar as it is seeking a stay, but is granted, as set forth above, to the extent dft is seeking an extension of time in which to respond. Dft has until 01/13/09, by which to file and serve its response to Plas' "Motion to Set Status Conference". Signed by Judge Robert C Broomfield on 12/31/08. (NOTE: SEE ATTACHED PDF FOR FULL DETAILS) (ESL) (Entered: 12/31/2008)
274 RESPONSE to Motion re 269 MOTION for Hearing or Conference Defendant's Response To Request To Set Status Conference filed by Bashas' Inc. (Janicik, Douglas) (Entered: 01/13/2009)
275 Reply in Support of Request to Set Status Conference 269 by Plaintiffs Jose Parra, Gonzalo Estrada, Aurelia Martinez. (Lawrence, Elizabeth) Modified on 1/22/2009 (LAD). DOCKET TEXT MODIFIED TO CORRECT DOCUMENT LINKAGE. (Entered: 01/21/2009)
276 Notice by Jose Parra, Gonzalo Estrada, Aurelia Martinez Notice of Denial of Defendant's Petition for Writ of Certiorari (Larkin, Jocelyn) (Entered: 01/26/2009)
277 Minute Entry. Proceedings held before Judge Robert C Broomfield. Status Conference held on 2/2/2009. Plaintiff orally moves to reopen discovery for limited discovery regarding the pay claim. Court DENIES plaintiff's oral request to reopen discovery for that limited purpose, however, plaintiff's may be entitled to discovery for what they call the merits and what defendant's call damages issues at a later time after the Court determines whether the pay claim should be certified. Court takes under advisement the question of certification of the pay claim on the papers previously submitted. (Court Reporter/ECR Vicki Reger.)(VAR) (Entered: 02/03/2009)
278 TRANSCRIPT DESIGNATION AND ORDER FORM by Bashas' Inc for proceedings held on 2/2/2009 before Judge Broomfield. (Janicik, Douglas) (Entered: 02/06/2009)
279 TRANSCRIPT of Proceedings re: Oral Argument held on 2/2/09 before Judge Robert C Broomfield. Court Reporter: Vicki Reger. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/12/2009. Redacted Transcript Deadline set for 3/23/2009. Release of Transcript Restriction set for 5/20/2009. (BAS, ) (Entered: 02/19/2009)
280 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (BAS, ) (Entered: 02/19/2009)
281 MOTION to Reassign Case DEFENDANTS MOTION TO TRANSFER EEOCS SUBPOENA ENFORCEMENT ACTION by Bashas' Inc. (Attachments: # 1 Exhibit Index of Exhibits, # 2 Exhibit A−H)(Janicik, Douglas) (Entered: 02/25/2009)
282 RESPONSE to Motion re 281 MOTION to Reassign Case DEFENDANTS MOTION TO TRANSFER EEOCS SUBPOENA ENFORCEMENT ACTION Statement of Non−Opposition to Defendant's Motion to Transfer EEOC's Subpoena Enforcement Action filed by Jose Parra, Gonzalo Estrada, Aurelia Martinez. (Lawrence, Elizabeth) (Entered: 03/09/2009)
283 RESPONSE in Opposition re 281 MOTION to Reassign Case DEFENDANTS MOTION TO TRANSFER EEOCS SUBPOENA ENFORCEMENT ACTION filed by

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 22 of 29

03/23/2009 03/26/2009 04/02/2009 04/15/2009 07/16/2009 10/08/2009 10/08/2009
10/08/2009
10/16/2009 09/03/2010 10/06/2010 12/15/2010 06/21/2011
06/21/2011 06/27/2011

Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit)(Weaver, Diana) (Entered: 03/16/2009)
284 MOTION for Extension of Time DEFENDANTS UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE REPLY IN SUPPORT OF MOTION TO TRANSFER EEOCS SUBPOENA ENFORCEMENT ACTION by Bashas' Inc. (Attachments: # 1 Text of Proposed Order)(Janicik, Douglas) (Entered: 03/23/2009)
285 ORDER granting 284 Motion for Extension of Time. Defendant shall file the Reply in support of its Motion to Transfer on or before 4/2/09. Signed by Judge Robert C Broomfield on 3/26/09. (RCB)(.pdf document is attached) (Entered: 03/26/2009)
286 REPLY in Support re 281 MOTION to Reassign Case DEFENDANTS MOTION TO TRANSFER EEOCS SUBPOENA ENFORCEMENT ACTION filed by Bashas' Inc. (Attachments: # 1 Exhibit Index of Exhibits, # 2 Exhibit A and B)(Janicik, Douglas) (Entered: 04/02/2009)
287 ORDER granting Dfts' 281 Motion to Transfer EEOC's Subpoena Enforcement Action, CV09−209−PHX−JAT is granted. A copy of this order shall be provided to United States District Court Judge James A. Teilborg. Signed by Judge Robert C Broomfield on 04/15/09. (ESL) (Entered: 04/15/2009)
288 NOTICE OF FILING BANKRUPTCY Upon the Record as to Defendant Bashas', Inc. by Bashas' Inc (Attachments: # 1 Exhibit A)(Quincy, Stephanie) (Entered: 07/16/2009)
289 MOTION for Protective Order Motion and Memorandum of Points and Authorities to Modify Protective Orders by Gonzalo Estrada, Aurelia Martinez, Jose Parra. (Lawrence, Elizabeth) (Entered: 10/08/2009)
290 Additional Attachments to Main Document re 289 MOTION for Protective Order Motion and Memorandum of Points and Authorities to Modify Protective Orders [Proposed] Order Granting Unopposed Motion to Modify Protective Orders by Plaintiffs Gonzalo Estrada, Aurelia Martinez, Jose Parra. (Lawrence, Elizabeth) (Entered: 10/08/2009)
291 Notice re NOTICE OF NON−OPPOSITION TO PLAINTIFFS MOTION TO MODIFY PROTECTIVE ORDERS by Bashas' Inc re 289 MOTION for Protective Order Motion and Memorandum of Points and Authorities to Modify Protective Orders, 290 Additional Attachments to Main Document, (Quincy, Stephanie) (Entered: 10/08/2009)
292 ORDER granting 289 Motion to Modify Protective Orders. The Stipulated Protective Order filed on October 23, 2003 and Protective Order filed February 23, 2004 in this case shall be modified as indicated in this order. Signed by Judge Robert C Broomfield on 10/15/09. (see order for details)(DMT, ) (Entered: 10/16/2009)
293 NOTICE re to Court by Bashas' Incorporated. (Attachments: # 1 Bankruptcy Order Confirming Plan)(Quincy, Stephanie) (Entered: 09/03/2010)
294 MOTION for Ruling re Plaintiffs' Request for Ruling by Gonzalo Estrada, Aurelia Martinez, Jose Parra. (Lawrence, Elizabeth) (Entered: 10/06/2010)
295 ORDER that Plaintiffs' 294 Motion (request) for Ruling at this time is denied. Signed by Judge Robert C Broomfield on 12/15/10.(ESL) (Entered: 12/15/2010)
296 ORDER counsel to participate in a telephonic conference on Monday, 06/27/11, at 10:30 a.m. to discuss the potential need for additional briefing, as well as the scope of and time frame for such briefing, with respect to the outstanding issue of class certification of the equal pay claim herein. Signed by Judge Robert C Broomfield on 06/21/11. (ESL) (Entered: 06/21/2011)
297 NOTICE of Appearance by Elizabeth Anne Schallop Call on behalf of Bashas' Incorporated (Call, Elizabeth Anne) (Entered: 06/21/2011)
298 Minute Entry. Proceedings held before Judge Robert C Broomfield. Appearance: Elizabeth Lawrence for Plaintiff, telephonically and Elizabeth Call and Stephanie Quincy for Defendant, telephonically. Telephone Conference held on 6/27/2011. IT IS ORDERED simultaneous Opening briefs limited to 25 pages are due within 60 days from 6/27/11 and simultaneous Reply briefs limited to 7 pages are due 15 days from

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 23 of 29

08/25/2011 08/26/2011 09/02/2011 09/02/2011 09/16/2011 09/16/2011 10/21/2011 10/27/2011 12/07/2011 05/31/2013
06/14/2013 06/24/2013

the filing of the latter of the two Opening briefs. (ECRO Vicki Reger.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (VAR) (Entered: 06/27/2011)
299 First MOTION for Extension of Time to File Supplemental Briefs Re Plaintiffs' Motion for Class Certification by Bashas' Incorporated. (Attachments: # 1 Text of Proposed Order)(Quincy, Stephanie) (Entered: 08/25/2011)
300 ORDER GRANTING 299 DEFENDANT'S MOTION FOR EXTENSION TO FILE SUPPLEMENTAL BRIEFS re Plaintiffs' Motion for Class Certification. Supplemental briefs are due on or before 9/2/11. Signed by Judge Robert C Broomfield on 8/26/11.(TLJ) (Entered: 08/26/2011)
301 *Defendant's BRIEF by Bashas' Incorporated (Supplemental Opening Brief) in Opposition to Plaintiffs' Motion for Class Certification. (Quincy, Stephanie) *Modified from "brief−respondent" on 9/2/2011 (ESL). (Entered: 09/02/2011)
302 *Plaintiffs' BRIEF by Gonzalo Estrada, Aurelia Martinez, Jose Parra (Supplemental Brief) re the Impact of Wal Mart v. Dukes on the Certification of the Equal Pay Claim. (Lawrence, Elizabeth) *Entry modified from "brief−petitioner" on 9/2/2011 (ESL). (Entered: 09/02/2011)
303 *Reply re 301 Brief − Respondent Plaintiffs' Reply Brief Regarding The Impact of Wal−Mart Stores v. Dukes on the Certification of the Equal Pay Claim by Plaintiffs Gonzalo Estrada, Aurelia Martinez, Jose Parra. (Lawrence, Elizabeth) *Document not in compliance with LRCiv 7.1(c). Modified on 9/19/2011 (ESL). (Entered: 09/16/2011)
304 RESPONSE re 302 Brief − Petitioner, Bashas' Response to Supplemental Brief Regarding the Impact of Wal−Mart Stores v. Dukes on the Certification of the Equal Pay Claim by Defendant Bashas' Incorporated. (Quincy, Stephanie) (Entered: 09/16/2011)
305 SUPPLEMENT of to Bashas' Supplemental Opening Brief in Opposition to Plaintiffs' Motion for Class Certification re 301 Brief − Respondent by Defendant Bashas' Incorporated. (Attachments: # 1 Exhibit 9th Circuit COA Decision in Ellis v. Costco)(Quincy, Stephanie) (Entered: 10/21/2011)
306 RESPONSE re 305 Supplement, Plaintiffs' Response to Bashas' Supplement by Plaintiffs Gonzalo Estrada, Aurelia Martinez, Jose Parra. (Lawrence, Elizabeth) (Entered: 10/27/2011)
307 *STATEMENT of Statement of Recent Decision by Plaintiffs Gonzalo Estrada, Aurelia Martinez, Jose Parra. (Lawrence, Elizabeth) *Document not in compliance with L.R.Civ 7.1(c); attorney notified on 12/9/2011 (SAT). (Entered: 12/07/2011)
308 ORDER granting 159 Motion for Class Certification to the extent they are seeking certification of a class with respect to pay pursuant to Fed.R.Civ.P. 23(b)(3). In that regard, the court certifies a class as follows: All Hispanic workers currently and formerly employed by defendant Bashas' Inc. in an hourly position at any Food city retail store since April 4, 1998, who have been subject to the challenged pay policies and practices. FURTHER ORDERED that the working conditions claim is DECERTIFIED; and FINALLY ORDERED that in conformity with Fed.R.Civ. P. 23(c)(2)(B), within thirty (30) days of the date of entry of this order, the parties shall submit jointly an agreed upon form of notice, a joint proposal for dissemination of the notice, and the time−line for opting out of the action. Plaintiffs must bear the costs of the notice, which shall include mailing by first−class mail. Signed by Senior Judge Robert C Broomfield on 5/31/13. (MAP) (Entered: 05/31/2013)
309 MOTION for Reconsideration re 308 Order, Certifying Class on Plaintiffs' Pay Claim by Bashas' Incorporated. (Attachments: # 1 Text of Proposed Order)(Quincy, Stephanie) Modified on 4/2/2014 (APJ). (Entered: 06/14/2013)
310 ORDER − In accordance with LRCiv 7.2(g)(2), ORDERED plaintiffs file response to 309 Bashas' Motion for Reconsideration no later than fourteen (14) days from date of entry of this Order. ORDERED a reply, if any, be filed no later than seven (7) days after service of the response. Signed by Senior Judge Robert C Broomfield on 6/21/13. (TLB) (Entered: 06/24/2013)

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 24 of 29

06/26/2013 06/28/2013
07/15/2013
07/29/2013 07/29/2013 07/29/2013 03/31/2014
04/04/2014 04/14/2014 05/02/2014 05/30/2014 06/02/2014 06/04/2014 07/02/2014

311 STIPULATION For Extension of Time re: Motion for Reconsideration & Class Notice Plan by Gonzalo Estrada, Aurelia Martinez, Jose Parra. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Extension of Time re Motion for Reconsideration & Class Notice Plan)(Lawrence, Elizabeth) (Entered: 06/26/2013)
312 ORDER pursuant to 311 Stipulation. ORDERED that Plaintiffs' opposition to Defendant's Motion for Reconsideration for the Class Certification Order is due 7/15/2013. ORDERED that Defendant's reply brief in support of Defendant's Motion for Reconsideration of the Class Certification Order is due on 7/29/2013. The parties' joint submission of a Class Notice, Notice Plan and Timeline is due on 7/29/2013. Signed by Senior Judge Robert C Broomfield on 6/28/2013. (TLB) (Entered: 06/28/2013)
313 RESPONSE in Opposition re 309 MOTION for Reconsideration re 308 Order, Certifying Class on Plaintiffs' Pay Claim filed by Gonzalo Estrada, Aurelia Martinez, Jose Parra, United Food and Commercial Workers Union, United Food and Commercial Workers Union(Region 8), Local 99 United Food and Commercial Workers Union. (Lawrence, Elizabeth) (Entered: 07/15/2013)
314 REPLY to Response to Motion re 309 MOTION for Reconsideration re 308 Order, Certifying Class on Plaintiffs' Pay Claim filed by Bashas' Incorporated. (Attachments: # 1 Exhibit A − D)(Quincy, Stephanie) (Entered: 07/29/2013)
315 STIPULATION Regarding Class Notice by Gonzalo Estrada, Aurelia Martinez, Jose Parra. (Attachments: # 1 Text of Proposed Order)(Lawrence, Elizabeth) (Entered: 07/29/2013)
316 STIPULATION Amending the Class Definition by Gonzalo Estrada, Aurelia Martinez, Jose Parra. (Attachments: # 1 Text of Proposed Order)(Lawrence, Elizabeth) (Entered: 07/29/2013)
317 *ORDER − denying 309 Bashas' Motion for Reconsideration of Order Certifying Class on Plaintiffs' Pay Claim. Pursuant to the parties' stipulation (Doc. 316 ), the class definition is AMENDED and the class is defined as set forth in the attached Order. Within fourteen (14) days from the date of entry of this Order, in conformity with Fed.R.Civ. P. 23(c)(2)(B), the parties shall submit jointly an agreed upon form of notice, incorporating the amended class definition set forth in the attached Order, a joint proposal for dissemination of the notice, and the time−line for opting out of the action. The plaintiffs must bear the costs of the notice, which shall include mailing by first−class mail. Signed by Senior Judge Robert C Broomfield on 3/31/2014.(TLB) *File date modified to 3/31/2014; NEF regenerated on 04/02/2014 (APJ). (Entered: 04/01/2014)
318 STATEMENT of Plaintiffs' Statement Regarding Disparate Treatment Claim re: 317 Order on Motion for Reconsideration by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Larkin, Jocelyn) (Entered: 04/04/2014)
319 STIPULATION Stipulation Regarding Amended Class Notice and Class Notice Plan by Gonzalo Estrada, Aurelia Martinez. (Attachments: # 1 Amended Notice, # 2 Text of Proposed Order)(Larkin, Jocelyn) (Entered: 04/14/2014)
320 ORDER, granting the Parties' Stipulated Request to approve the Amended Class Notice 319 , and exh. 1 thereto, with the additions as detailed in this order. Signed by Senior Judge Stephen M McNamee on 5/2/14. (REW) (Entered: 05/02/2014)
321 Joint MOTION for Extension of Time by Bashas' Incorporated. (Attachments: # 1 Text of Proposed Order)(Quincy, Stephanie) (Entered: 05/30/2014)
322 ORDER granting 321 Joint Stipulated Motion to Extend Deadline. See attached order. Signed by Senior Judge Stephen M McNamee on 6/2/2014.(LMR) (Entered: 06/02/2014)
323 NOTICE of Appearance by Kate Elizabeth Frenzinger on behalf of Bashas' Incorporated. (Frenzinger, Kate) (Entered: 06/04/2014)
324 Minute Order: NOTICE OF REASSIGNMENT. This matter is reassigned to Judge Diane J Humetewa for all further proceedings. All documents filed in this action should bear the initials DJH as part of the complete case number (see revised case

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 25 of 29

07/11/2014 08/27/2014
08/27/2014 08/27/2014
08/27/2014 08/27/2014 08/27/2014 08/27/2014
08/27/2014 08/27/2014 08/27/2014 08/27/2014 08/27/2014

number above). All pending deadlines and hearings are AFFIRMED unless reset by separate order. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (KAR) (Entered: 07/02/2014)
325 NOTICE of Settlement by Bashas' Incorporated. (Quincy, Stephanie) (Entered: 07/11/2014)
326 MOTION Preliminary Approval of Class Action Settlement For Approval of Class Notice and Notice Plan, and For Setting of Schedule for Final Approval Hearing by Gonzalo Estrada, Aurelia Martinez. (Attachments: # 1 Text of Proposed Order)(Larkin, Jocelyn) Modified on 8/28/2014 (REW). Modified on 12/22/2014 to term motion per 344 (SJF). (Entered: 08/27/2014)
327 MEMORANDUM in Support of re: 326 MOTION Preliminary Approval of Class Action Settlement For Approval of Class Notice and Notice Plan, and For Setting of Schedule for Final Approval Hearing by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Larkin, Jocelyn) Modified on 8/28/2014 (REW). (Entered: 08/27/2014)
328 DECLARATION of Jocelyn D. Larkin re: 326 MOTION Preliminary Approval of Class Action Settlement For Approval of Class Notice and Notice Plan, and For Setting of Schedule for Final Approval Hearing by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Larkin, Jocelyn) Modified on 8/28/2014 (REW). (Entered: 08/27/2014)
329 MOTION for Attorney Fees Plaintiffs' Unopposed Motion for an Award of Attorneys' Fees and Costs by Gonzalo Estrada, Aurelia Martinez. (Attachments: # 1 Text of Proposed Order)(Larkin, Jocelyn) (Entered: 08/27/2014)
330 MEMORANDUM in Support of Plaintiffs' Unopposed Motion for an Award of Attorneys' Fees and Costs 329 MOTION for Attorney Fees by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Larkin, Jocelyn) Modified on 8/28/2014 (REW). (Entered: 08/27/2014)
331 DECLARATION of Jocelyn D. Larkin re: 329 MOTION for Attorney Fees and Costs by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D−1, # 5 Exhibit D−2, # 6 Exhibit D−3, # 7 Exhibit D−4)(Larkin, Jocelyn) Modified on 8/28/2014 (REW). (Entered: 08/27/2014)
332 DECLARATION of Elizabeth A. Lawrence re: 329 MOTION for Attorney Fees and Costs by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D−1, # 5 Exhibit D−2, # 6 Exhibit E, # 7 Exhibit F−1, # 8 Exhibit F−2, # 9 Exhibit F−3)(Larkin, Jocelyn) Modified on 8/28/2014 (REW). (Entered: 08/27/2014)
333 DECLARATION of Kathryn Honecker re: 329 MOTION for Attorney Fees and Costs by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Larkin, Jocelyn) Modified on 8/28/2014 (REW). (Entered: 08/27/2014)
334 MOTION Award to Named Plaintiffs of Service Awards Plaintiffs' Unopposed Motion for an Award to Named Plaintiffs of Service Awards by Gonzalo Estrada, Aurelia Martinez. (Attachments: # 1 Text of Proposed Order)(Larkin, Jocelyn) (Entered: 08/27/2014)
335 MEMORANDUM of Points and Authorities in Support of re: 334 Plaintiffs' Unopposed MOTION for an Award to Named Plaintiffs of Service Awards by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Larkin, Jocelyn) Modified on 8/28/2014 (REW). (Entered: 08/27/2014)
336 DECLARATION of Elizabeth A. Lawrence re: 334 Plaintiffs' Unopposed MOTION for an Award to Named Plaintiffs of Service Awards by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Larkin, Jocelyn) Modified on 8/28/2014 (REW). (Entered: 08/27/2014)
337 DECLARATION of Gonzalo Estrada re: 334 Plaintiffs' Unopposed MOTION for an Award to Named Plaintiffs of Service Awards by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Larkin, Jocelyn) Modified on 8/28/2014 (REW). (Entered: 08/27/2014)

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 26 of 29

08/27/2014 10/02/2014 10/06/2014
10/16/2014

338 *DECLARATION of Aurelia Martinez re: 326 MOTION Preliminary Approval of Class Action Settlement and 334 Plaintiffs' Unopposed MOTION for an Award to Named Plaintiffs of Service Awards by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Larkin, Jocelyn) *Modified to add document number/link on 8/28/2014* (REW). (Entered: 08/27/2014)
339 DECLARATION of Jocelyn D. Larkin re: 327 Memorandum, 326 MOTION Preliminary Approval of Class Action Settlement, 328 Declaration Supplemental Declaration of Jocelyn D. Larkin in Support of Motion for Preliminary Approval of Class Settlement, Approval of Class Notice and Notice Plan, and for Setting of Schedule for Final Approval by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Attachments: # 1 Exhibit A)(Larkin, Jocelyn) (Entered: 10/02/2014)
340 ORDER setting a telephonic hearing on the pending Plaintiffs' Motion for Preliminary Approval of Class Settlement, For Approval of Class Notice and Notice Plan, and for Setting of Final Approval Schedule (Doc. 326); Plaintiffs' Unopposed Motion for an Award of Attorneys' Fees and Costs (Doc. 329); and Plaintiffs' Unopposed Motion for an Award to Named Plaintiffs of Service Awards (Doc. 334) for Thursday, October 16, 2014 at 2:00 p.m. before United States District Judge Diane J. Humetewa. Plaintiffs' Counsel shall initiate the conference call. Five (5) minutes before the start of the hearing, the parties are directed to conference on one single, clear telephone line prior to calling the Judges chambers at 602−322−7600. SO ORDERED by Judge Diane J Humetewa on 10/9/2014. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (VPB) (Entered: 10/06/2014)
341 MINUTE ENTRY for proceedings held before Judge Diane J Humetewa: Telephone Conference held on 10/16/2014 re: Preliminary Approval of the Class Settlement; Approval of Class Action and Notice Plan; and Setting of Schedule for Final Approval (Doc. 326). Plaintiffs' counsel shall provide the Court with a Supplemental Declaration re: the proposed Class Administrator by the close of business Friday, October 16, 2014. Defendant's counsel shall advise the Court by the close of business Monday, October 20, 2014, as to objections, if any, to the proposed Class Administrator. Plaintiffs' counsel shall further provide an Amended Class Notice, in English and Spanish, which includes the definition of Hispanic as set forth in the Proposed Class Action Settlement Agreement. Order re: Preliminary Approval to follow submission of the foregoing.

10/17/2014
10/20/2014 10/21/2014

APPEARANCES: Elizabeth Lawrence and Jocelyn Larkin for Plaintiffs. Stephanie Quincy for Defendant. (Court Reporter Linda Schroeder ) Hearing held 1:56 PM to 2:33 PM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (VPB) (Entered: 10/16/2014)
342 DECLARATION of Jocelyn D. Larkin re: 327 Memorandum, 326 MOTION Preliminary Approval of Class Action Settlement, 328 Declaration, 341 Telephone Conference, Common Prompts (Text Only) Second Supplemental Declaration of Jocelyn D. Larkin in Support of Motion for Preliminary Approval of Class Settlement, Approval of Class Notice and Notice Plan, and for Setting of Schedule for Final Approval by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Larkin, Jocelyn) (Entered: 10/17/2014)
343 NOTICE by Bashas' Incorporated Defendant Bashas', Inc.'s Notice of No Objections to Selection of Claims Administrator. (Quincy, Stephanie) (Entered: 10/20/2014)
344 ORDER − PRELIMINARY APPROVAL OF PROPOSED CLASS ACTION SETTLEMENT AGREEMENT − That the proposed Class Action Settlement Agreement and the settlement it embodies are hereby PRELIMINARILY APPROVED. Final approval and entry of this preliminarily approved Class Action Settlement Agreement is subject to the hearing of any objections of class members to the Class Action Settlement Agreement. The Court FINDS and CONCLUDES that the proposed plan for distributing the Notice satisfies the notice requirements of Rule 23, and satisfies all other legal and due process requirements. Accordingly, it is therefore ORDERED: a. The form of the Notice (Doc. 342 −2) is approved. b. The manner of distributing Notice is approved. c. The Notice shall be distributed as set forth in the proposed Class Action Settlement Agreement within 28 days of the date of this Order. The Court will hold a hearing to determine whether to grant final approval of the Settlement Agreement, to hear the application for attorneys fees and costs, and to hear

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 27 of 29

02/02/2015 02/13/2015 03/13/2015
03/13/2015
03/13/2015
03/13/2015 03/13/2015 03/13/2015 03/13/2015 03/23/2015 04/13/2015 04/20/2015

the motion for service payments to the Class Representatives (the "Fairness Hearing") on April 20, 2015, at 2:00 p.m., which is more than 180 days from the date of this Order. Any objection to the Settlement, application for attorneys' fees and costs, or proposed service payments must be postmarked no later than March 17, 2015, which is 120 days from the date that class notice will be mailed. Class Counsel will lodge all objections and comments with the Court prior to the Fairness Hearing. No later than 35 days before the Fairness Hearing, Plaintiffs shall file a motion for final approval of the settlement, in which they may respond to any objections to the Settlement Agreement, application for attorneys' fees and costs, or motion for service payments. Signed by Judge Diane J Humetewa on 10/21/2014. (See Order for full details.) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(KMG) *Modified as to text on 10/22/2014 (KMG). (Entered: 10/21/2014)
345 OBJECTION to Class Action Settlement Agreement re: 344 Order, filed by non−party Jose A Perez Estrada. (1 page) (REW) (Entered: 02/02/2015)
346 ORDER, denying without prejudice to renew Plaintiffs' Unopposed Motion for an Award of Attorneys' Fees and Costs 329 ; denying without prejudice to renew Plaintiffs' Unopposed Motion for an Award to Named Plaintiffs of Service Awards 334 . Signed by Judge Diane J Humetewa on 2/13/15.(REW) (Entered: 02/13/2015)
347 *MOTION for Service Awards for Named Plaintiffs re: 334 MOTION Award to Named Plaintiffs of Service Awards, Plaintiffs' Renewed Motion for an Award to Named Plaintiffs of Service Awards by Gonzalo Estrada, Aurelia Martinez. (Attachments: # 1 Text of Proposed Order)(Larkin, Jocelyn) *Modified to correct document numbers/links on 3/16/2015* (REW). (Entered: 03/13/2015)
348 *MOTION for Attorneys' Fees and Costs re: 346 Order on Motion for Attorney Fees, Plaintiffs' Renewed Motion for an Award of Attorneys' Fees and Costs by Gonzalo Estrada, Aurelia Martinez. (Attachments: # 1 Text of Proposed Order)(Larkin, Jocelyn) *Modified to correct Motion event on 3/16/2015* (REW). (Entered: 03/13/2015)
349 *DECLARATION of Jocelyn D. Larkin re: 348 MOTION Award of Attorneys' Fees and Costs Supplemental Declaration of Jocelyn D. Larkin in Support of Plaintiffs' Unopposed Motion for an Award of Attorneys' Fees and Costs by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Larkin, Jocelyn) *Modified to correct document numbers/links on 3/16/2015* (REW). (Entered: 03/13/2015)
350 MOTION for Final Approval of Class Action Settlement by Gonzalo Estrada, Aurelia Martinez. (Attachments: # 1 Text of Proposed Order)(Larkin, Jocelyn) Modified on 3/16/2015 (REW). (Entered: 03/13/2015)
351 MEMORANDUM in Support re: 350 MOTION Final Approval of Class Action Settlement by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Larkin, Jocelyn) Modified on 3/16/2015 (REW). (Entered: 03/13/2015)
352 DECLARATION of Jocelyn D. Larkin re: 350 MOTION Final Approval of Class Action Settlement, 351 Memorandum by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Larkin, Jocelyn) Modified on 3/16/2015 (REW). (Entered: 03/13/2015)
353 *DECLARATION of Stacy Roe re: 350 MOTION Final Approval of Class Action Settlement, 351 Memorandum by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Larkin, Jocelyn) *Modified to correct document numbers/links on 3/16/2015* (REW). (Entered: 03/13/2015)
354 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Stephanie J Quincy. (Quincy, Stephanie) (Entered: 03/23/2015)
355 DECLARATION of Stacy Roe re: 352 Declaration, 350 MOTION for Final Approval of Class Action Settlement, 353 Declaration, 351 Memorandum Supplemental Declaration of Stacy Roe Regarding Settlement Administration by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Larkin, Jocelyn) (Entered: 04/13/2015)
356 MINUTE ENTRY for proceedings held before Judge Diane J Humetewa: Fairness Hearing held on 4/20/2015. Final approval of class action settlement discussed. Jose Estrada−Perez objector to settlement addresses Court. Counsel for plaintiffs to file Exhibit A by 4/21/2015 as discussed on the record. Parties have no objections to

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 28 of 29

attorney fees, service awards, and form of order.

04/21/2015 04/24/2015 04/24/2015 04/24/2015
12/01/2015 12/01/2015 12/10/2015 12/15/2015

APPEARANCES: Jocelyn Larkin and Elizabeth Lawrence for Plaintiffs.Plaintiffs Gonzalo Estrada and Aurelia Martinez present. Stephanie Quincy for Defendant Bashas'. Gregg Tucek with Bashas' present. Status Conference re: cy pres is set for 12/15/2015 at 10:00 AM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Diane J Humetewa. Parties to file a status report 14 days prior to the hearing. (Court Reporter Linda Schroeder.) Hearing held 2:00 PM to 2:36 PM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA) (Entered: 04/20/2015)
357 DECLARATION of Jocelyn D. Larkin re: 356 In−Court Hearing, Set/Reset Hearings, Common Prompts (Text Only), 350 MOTION for Final Approval of Class Action Settlement Supplemental Declaration of Jocelyn D. Larkin in Support of Plaintiffs' Motion for Final Approval of Class Action Settlement by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Larkin, Jocelyn) (Entered: 04/21/2015)
358 ORDER the 347 Motion for Approval of Service Awards is GRANTED. The Court approves an incentive award of $10,000 each to named Plaintiffs Gonzalo Estrada and Aurelia Martinez. Signed by Judge Diane J Humetewa on 4/23/2015.(LFIG) (Entered: 04/24/2015)
359 ORDER pursuant to Plaintiffs' 348 Motion for Attorney Fees. Class Counsel are hereby awarded: (1) attorneys' fees in the amount of $1,625,000; and (2) costs in the amount of $178,761.26. Class Counsel will direct the Class Administrator to pay these amounts from the Qualified Settlement Fund thirty days after this Court's order on Final Approval of the settlement. Signed by Judge Diane J Humetewa on 4/23/2015.(LFIG) Modified on 5/8/2015 (LFIG). (Entered: 04/24/2015)
360 ORDER APPROVING FINAL CLASS ACTION SETTLEMENT: The Court hereby enters Judgment approving the terms of the Settlement as set forth herein. This document shall constitute a final judgment for purposes of Rule 58 of the Federal Rules of Civil Procedure. The class action claims are DISMISSED WITH PREJUDICE, subject to the Court's retention of jurisdiction to enforce the Settlement Agreement under Section 13 of the Agreement. Signed by Judge Diane J Humetewa on 4/23/2015. (LFIG) (Entered: 04/24/2015)
361 *STATUS REPORT ON CLASS FUND DISTRIBUTION MOTION to Appear by Telephone for 12/15/15 Status Conference; MOTION to Extend First Claims Distribution for 60 Days by Gonzalo Estrada, Aurelia Martinez. (Larkin, Jocelyn) *Modified to add two Motion parts on 12/3/2015* (REW). (Entered: 12/01/2015)
362 DECLARATION of Bruce Holman re: 361 Report − Status REGARDING CLASS FUND DISTRIBUTION by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Larkin, Jocelyn) (Entered: 12/01/2015)
363 ORDER granting the 361 Motion to Appear by Telephone and allowing attorneys Jocelyn D. Larkin and Elizabeth A. Lawrence to appear by telephone at the Status Conference set for December 15, 2015. ORDERED that Ms. Larkin and Ms. Lawrence shall call judicial chambers at 602−322−7600 prior to the hearing to be given a separate phone number to dial for connecting to the conference call bridge. Signed by Judge Diane J Humetewa on 12/10/2015.(LFIG) (Entered: 12/10/2015)
364 MINUTE ENTRY for proceedings held before Judge Diane J Humetewa: Status Conference held on 12/15/2015. The Court grants the request for an extension of the claim distribution period by 60 days (Doc. 361 ). A Status Conference is set for 3/16/2016 at 2:30 PM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Diane J Humetewa. A Status Report is due five (5) days in advance of the Status Conference.

APPEARANCES: Telephonic appearance by Jocelyn Larkin and Elizabeth Lawrence for Plaintiffs. Stephanie Quincy for Defendant. (Court Reporter Linda Schroeder.) Hearing held 10:01 AM to 10:15 AM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (LFIG) (Entered: 12/15/2015)

Case: 2:02-cv-591 As of: 10/27/2017 06:21 AM MST 29 of 29

02/04/2016 03/09/2016 03/09/2016 03/16/2016

365 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Elizabeth A Lawrence. (Lawrence, Elizabeth) (Entered: 02/04/2016)
366 STATUS REPORT ON CLASS FUND DISTRIBUTION by Gonzalo Estrada, Aurelia Martinez. (Larkin, Jocelyn) (Entered: 03/09/2016)
367 DECLARATION of Bruce Holman re: 366 Report − Status by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Larkin, Jocelyn) (Entered: 03/09/2016)
368 MINUTE ENTRY for proceedings held before Judge Diane J Humetewa: Status Conference held on 3/16/2016. Discussion held as to class fund distribution pursuant the the parties' Class Action Settlement Agreement. Plaintiffs make an oral motion for an extension of the distribution period. Order to follow.

03/16/2016
07/13/2016 07/13/2016 07/19/2016

APPEARANCES: Jocelyn Larkin and Elizabeth Lawrence for Plaintiffs. Stephanie Quincy for Defendant (Court Reporter Linda Schroeder.) Hearing held 2:30 PM to 2:46 PM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (LFIG) Modified text on 3/16/2016 (LFIG). (Entered: 03/16/2016)
369 ORDER: IT IS HEREBY ORDERED GRANTING Plaintiffs an additional ninety (90) days from the date of entry of this Order in which to continue their efforts to locate class members who have not cashed their checks. Within thirty (30) days thereafter, the parties shall file a Status Report with the Court, addressing the results of these additional distribution efforts and proposing a time frame for the final distribution of any money remaining in the Net Settlement Fund to the cy pres recipients identified in paragraph 3.5 of the Class Action Settlement Agreement. ORDERED by Judge Diane J Humetewa on 3/16/2016. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (LFIG) (Entered: 03/16/2016)
370 *STATUS REPORT ON CLASS FUND DISTRIBUTION AND PROPOSED TIME FRAME FOR CY PRES DISTRIBUTION by Gonzalo Estrada, Aurelia Martinez and Jose Parra. (Larkin, Jocelyn) *Modified to add Jose Parra as a filer on 7/14/2016 (ATD). (Entered: 07/13/2016)
371 DECLARATION of Bruce Holman re: 370 Report − Status by Plaintiffs Gonzalo Estrada, Aurelia Martinez. (Larkin, Jocelyn) (Entered: 07/13/2016)
372 ORDER that the Court adopts the parties' proposed timeline for final distribution of the $551,612.41 remaining in the Qualified Settlement Fund. Signed by Judge Diane J Humetewa on 7/19/2016. (See Order for details.) (LFIG) (Entered: 07/19/2016)