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Case No. 17-CV-00062-LHK 

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

RODERICK MAGADIA,

Plaintiff,

v.

WAL-MART ASSOCIATES, INC., et al.,

Defendants.

Case No. 17-CV-00062-LHK 

ORDER DENYING MOTION TO 

DECERTIFY MEAL PERIOD CLASS

Re: Dkt. No. 132

Plaintiff Roderick Magadia (“Plaintiff”) brings a class action against Defendants Wal-Mart 

Stores, Inc. and Wal-Mart Associates, Inc. (collectively, “Wal-Mart”) that alleges that Wal-Mart 

denies its employees adequate meal period premiums in violation of California Labor Code § 

226.7. In January 2018, the Court certified three classes: the meal period class, the 

OVERTIME/INCT wage statement class, and the final wage statement class. Now, Wal-Mart 

moves to decertify the meal period class. Having considered the parties’ submissions, the relevant 

law, and the record in this case, the Court hereby DENIES Wal-Mart’s motion to decertify the 

meal period class. 

I. BACKGROUND

A. Factual Background
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Wal-Mart is a national retailer with locations throughout the United States. ECF No. 84

(“Class Cert. Order”). Plaintiff worked as a non-exempt employee at a Wal-Mart store in San 

Jose, California from June 17, 2008 to September 16, 2016. Id. 

The California Labor Code provides that when an employer fails to provide a meal period 

to an employee “in accordance with [California] law,” the employer must pay the employee “one 

additional hour of pay at the employee’s regular rate of compensation.” Cal. Lab. Code § 

226.7(c). That additional hour of pay is referred to as a “meal period premium.” Under California 

law, “[a]n employer may not employ an employee for a work period of more than five hours per 

day without providing the employee with a meal period of not less than 30 minutes.” Cal. Lab. 

Code § 512(a).1 Although Wal-Mart pays an employee a meal period premium whenever WalMart fails to provide a meal period within the first five hours of the employee’s work day, Plaintiff 

contends that Wal-Mart’s meal period premiums are inadequate under California Labor Code § 

226.7(c). Opp. at 6. 

In order to provide compliant meal periods, Wal-Mart has a policy of providing employees 

a 30-minute meal period within the employee’s first five work hours. ECF No. 137-4, Ex. A, 

Deposition of Todd Stokes (“Stokes Dep.”) at 35. Wal-Mart maintains an Exception Management 

System (“EMS”) that generates a “meal exception” notification each time an employee takes a late 

meal period or fails to take a meal period. Id. at 44. Then, Wal-Mart automatically pays the

employee an additional hour of pay at the employee’s base rate of pay. Id.; see also ECF No. 132-

1, Ex. B., Deposition of Victoria Moore (“Moore Dep.”) at 21–24 (“The way the system works is 

that if there’s a meal exception in the system, there’s a premium with it.”). 

Later, a Wal-Mart human resources (“HR”) official or manager logs into the EMS 

database, reviews any meal exception notifications, and meets with the employee to determine 

why the exception occurred. Moore Dep. at 21, 26. In general, that meeting must occur within 14 

 

1 Not relevant here, the statute further provides that “if the total work period per day of the 

employee is no more than six hours, the meal period may be waived by mutual consent of both the 

employer and employee.” Cal. Lab. Code § 512(a). 
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days of the meal exception. Id. at 23. In most cases, the HR official or manager then completes a 

California Rest Break/Meal Period Investigation Worksheet (“Investigation Worksheet”). Id. at 

42; accord ECF No. 143-1, Declaration of Victoria Moore (“Moore Decl.”), ¶ 3. 

“Investigating managers” must complete Step 1 and Step 2 of the Investigation Worksheet. 

See ECF No. 132-2, Ex. 1 (Investigation Worksheet from California Wal-Mart store). At Step 1, 

the investigating manager must “[a]sk the associate and note in their words the reason a timely, 

full, uninterrupted rest break or meal period was not taken.” Id. At Step 2, the investigating 

manager must “[s]elect the description . . . that best illustrates the reason” for the meal period 

exception. Id. There are two possible descriptions, either “Associate alleges they voluntarily 

failed to take a timely, full, uninterrupted . . . meal period” or “Associate alleges they involuntarily 

failed” to take a meal period. Id. In addition, the investigating manager must select an EMS code. 

If the meal period exception was voluntary, the investigating manager selects either “Associate 

Initiated Customer Support” or “Associate Initiated Without Management Approval.” Id. If the 

meal period exception was involuntary, the investigating manager selects the EMS code “Manager 

Directed – No Coverage/For Customer Support.” Id.; see also Moore Decl. ¶ 8. Either the 

investigating manager or an HR official then enters the relevant code into the EMS database. 

Moore Dep. at 68. 

In addition, Wal-Mart in some circumstances conducts a “wage and hour investigation,” 

which is “handled by someone outside the facility or in partnership with the facility.” Id. at 62. 

According to the Investigation Worksheet, an investigating manager should initiate that wage and 

hour investigation “[i]f the associate alleges interference with ability to take a rest break or meal 

period.” ECF No. 132-2, Ex. 1. In other circumstances, Wal-Mart will investigate exceptions 

coded as “Manager Directed” at the “market level.” Moore Dep. at 125:4–10. Wal-Mart inputs 

the results of that “market level” investigation into the EMS database. Moore Decl. ¶ 6. 

Regardless of the result of any investigation, Wal-Mart does not revoke or withhold the payment 

of a meal period premium. Moore Dep. at 62:7–9 (“The investigation process is totally separate 

from the meal exception in the system and the meal premium that’s been paid . . . or that will be 
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paid.”). 

B. Procedural History

Plaintiff filed this putative class action in the Superior Court for the County of Santa Clara 

on December 2, 2016. See ECF No. 1-1 (“Compl.”). Plaintiff’s complaint alleges causes of action 

for (1) violation of California Labor Code §§ 226.7 and 512; (2) violation of California Labor 

Code § 226(a); (3) violation of the Private Attorney Generals Act, Cal. Lab. Code § 2698, et seq.; 

and (4) violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq.

Id. On January 5, 2017, Wal-Mart removed the action to this Court and alleged jurisdiction under 

the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2). See ECF No. 1. On February 2, 2017, 

Wal-Mart filed an answer to Plaintiff’s complaint. ECF No. 19. 

On October 19, 2017, Plaintiff moved for class certification. ECF No. 60. On November 

20, 2017, Wal-Mart filed its opposition. ECF No. 75. On December 18, 2017, Plaintiff filed his 

reply. ECF No. 79. 

On January 9, 2018, the Court granted Plaintiff’s motion for class certification. Class Cert. 

Order. The Court certified three classes:

Meal Period Regular Rate Class: All current and former California non-exempt 

retail store employees of Wal-Mart who received non-discretionary remuneration, 

including “MYSHARE INCT,” and was paid any meal period premium payments in 

the same period that the non-discretionary remuneration was earned, at any time 

between December 2, 2012, through the present.

OVERTIME/INCT Wage Statement Class: All current and former California nonexempt employees of Wal-Mart who received “OVERTIME/INCT,” at any time 

between December 2, 2015, through the present.

Final Wage Statement Class: All former non-exempt employees who worked for 

Wal-Mart in the State of California and whose employment terminated (whether 

voluntarily or involuntarily) at any time from December 2, 2015 to the present.

Id. at 22.

On January 26, 2018, Wal-Mart filed a petition with the Ninth Circuit for permission to 

appeal the Court’s class certification order. ECF No. 89. On February 22, 2018, the Ninth Circuit 

denied Wal-Mart’s petition. ECF No. 94. 
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On October 30, 2017, Plaintiff moved for partial summary judgment on Plaintiff’s claim 

under California’s Private Attorneys General Act (“PAGA”), Cal. Lab. Code §§ 2698–2699.5. 

ECF No. 67. On January 16, 2018, Wal-Mart filed its opposition. ECF No. 86. On February 5, 

2018, Plaintiff filed his reply. ECF No. 91. On May 11, 2018, the Court granted Plaintiff’s motion 

for partial summary judgment on Plaintiff’s PAGA claim. ECF No. 121. On June 25, 2018, the 

Court denied Wal-Mart’s request for leave to file a motion for reconsideration. ECF No. 130.

On July 26, 2018, Wal-Mart moved for partial summary judgment on Plaintiff’s three 

remaining claims. ECF No. 131. On August 16, 2018, Plaintiff filed his opposition. ECF No. 

139. On August 23, 2018, Wal-Mart filed its reply. ECF No. 142. On September 27, 2018, the 

Court denied Wal-Mart’s motion for partial summary judgment. ECF No. 157. 

On July 26, 2018, Wal-Mart moved for decertification of the meal period class. ECF No. 

132 (“Mot.”). On August 16, 2018, Plaintiff filed his opposition. ECF No. 138 (“Opp.”). On 

August 23, 2018, Wal-Mart filed its reply. ECF No. 143 (“Reply”). 

On August 23, 2018, the parties filed a joint discovery letter brief, in which Plaintiff 

moved to strike corrections to the deposition of Wal-Mart’s 30(b)(6) witness, Victoria Moore. 

ECF No. 141. On September 6, 2018, Magistrate Judge Nathanael Cousins denied Plaintiff’s 

motion to strike the deposition corrections. ECF No. 149. Then, on October 1, 2018, Plaintiff 

filed objections to evidence offered in support of Wal-Mart’s reply brief. ECF No. 159. On 

October 9, 2018, Wal-Mart filed a response to Plaintiff’s objections. ECF No. 163. 

II. LEGAL STANDARD

“Even after a certification order is entered, the [Court] remains free to modify it in the light 

of subsequent developments in the litigation.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 

(1982); see also Fed. R. Civ. P. 23(c)(1)(C) (“An order that grants or denies class certification 

may be altered or amended before final judgment.”); Wang v. Chinese Daily News, Inc., 737 F.3d 

538, 546 (9th Cir. 2013) (“Rule 23 provides district courts with broad authority at various stages 

in the litigation to revisit class certification determinations.”). On a motion for decertification, 

Plaintiff continues to “bear[] the burden of demonstrating that the requirements of Rules 23(a) and 
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(b) are met.’” Marlo v. United Parcel Serv., Inc., 639 F.3d 942, 947 (9th Cir. 2011) (internal 

quotation marks omitted). 

Federal Rule of Civil Procedure 23, which governs class certification, has two sets of 

distinct requirements that a plaintiff must establish before the Court may certify a class. Plaintiff

must satisfy all of the requirements of Rule 23(a) and at least one of the prongs of Rule 23(b).

Under Rule 23(a), the Court may certify a class only where “(1) the class is so numerous 

that joinder of all members is impracticable; (2) there are questions of law or fact 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 

class.” Fed. R. Civ. P. 23(a). Courts refer to these four requirements, which all must be satisfied 

to maintain a class action, as “numerosity, commonality, typicality and adequacy of 

representation.” Mazza v. Am. Honda Motor Co., 666 F.3d 581, 588 (9th Cir. 2012). 

In addition to meeting the requirements of Rule 23(a), the Court must also find that 

Plaintiff has satisfied “through evidentiary proof” one of the three subsections of Rule 23(b). 

Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013); see also Sali v. Corona Reg’l Med. Ctr., 889 

F.3d 623, 631 (9th Cir. 2018) (“Inadmissibility alone is not a proper basis to reject evidence 

submitted in support of class certification.”). As relevant here, the Court may certify a Rule 

23(b)(3) class if it finds that “questions of law or fact common to class members predominate over 

any questions affecting only individual members, and that a class action is superior to other 

available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P.

23(b)(3). On the whole, “a court’s class-certification analysis must be ‘rigorous’ and may ‘entail 

some overlap with the merits of the plaintiff’s underlying claim.’” Amgen Inc. v. Conn. Ret. Plans 

& Trust Funds, 568 U.S. 455, 465–66 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 

338, 351 (2011)). Nevertheless, “Rule 23 grants courts no license to engage in free-ranging merits 

inquiries at the certification stage.” Id. at 466. “Merits questions may be considered to the 

extent—but only to the extent—that they are relevant to determining whether the Rule 23 

prerequisites for class certification are satisfied.” Id. Within the framework of Rule 23, the Court 
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ultimately has broad discretion over whether to certify or decertify a class. United Steel Workers 

Int’l Union v. ConocoPhillips Co., 593 F.3d 802, 809–10 (9th Cir. 2010).

III. DISCUSSION

On January 9, 2018, the Court certified the meal period class. Class Cert. Order at 12–16. 

Wal-Mart argued that Plaintiff had not met Rule 23(b)(3)’s predominance requirement because 

Wal-Mart’s payment of a meal period premium is not connected to whether the receiving

employee was legally entitled to a meal period premium. See id. at 13. That is because Wal-Mart 

automatically pays an employee a meal period premium when a meal period exception occurs

regardless of the reason for the exception. However, the Court held that the Court could use WalMart’s own Investigation Worksheets to evaluate Wal-Mart’s liability. Id. at 14. The Court relied 

on the testimony of Wal-Mart’s “regional HR director” Todd Stokes, who explained that the 

Investigation Worksheets “document why each meal exception happened.” Id. at 15. As a result, 

the Court concluded, those records “‘can be used to extrapolate’ whether each meal period 

premium that was paid to a class member was prompted by an actual failure by Wal-Mart to 

provide a compliant meal period.” Id. (citing Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 

966 (9th Cir. 2013)). Thus, the Court certified the meal period class under Rule 23(b)(3). 

After certification, the parties continued discovery, which included the collection of all 

relevant meal period Investigation Worksheets from 50 California Wal-Mart stores. ECF No. 132-

1 (“Winn Decl.”), ¶ 3. Wal-Mart also produced a spreadsheet containing its Meal Exception 

Reports, which includes 443,681 meal period exceptions. ECF No. 161 ¶ 5. Wal-Mart noticed 

Victoria Moore as a 30(b)(6) witness to testify about Wal-Mart’s meal period investigations. 

Moore Dep. at 1. Although the parties do not specify the total number of Investigation 

Worksheets the parties collected, Wal-Mart completes an Investigation Worksheet for almost all 

meal period exceptions. Moore Decl. ¶ 3 (stating that Wal-Mart completes an Investigation 

Worksheet “[u]nless the reason the associate provides for the exception is a mere timekeeping 

error (and sometimes even in those cases)”). 

In its motion for decertification, Wal-Mart contends that Wal-Mart’s investigations of meal 
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period exceptions are “focused on documenting associate allegations,” not on determining “who is 

legally entitled to a meal premium.” Mot. at 6. Wal-Mart also contends that Investigation 

Worksheets produced in discovery show that the Investigation Worksheets “are not reliable for 

purposes of determining whether [Wal-Mart] prevented an associate from taking a proper meal 

period.” Id. at 9. Wal-Mart thus contends that “individualized inquiries” will predominate over 

common questions and that class certification under Rule 23(b)(3) is not warranted. Id. at 13. 

In opposition, Plaintiff argues that Wal-Mart’s own testimony establishes that Wal-Mart

conducts “significant and detailed investigations” of meal period exceptions and logs the results. 

Opp. at 5. Plaintiff also contends that Wal-Mart may not “discredit [its] own documents” with a

sample of 24 Investigation Worksheets out of 443,681 meal period exceptions. Id. 

For the reasons below, the Court DENIES Wal-Mart’s motion for decertification. The 

Court determined in its class certification order that with respect to Wal-Mart’s liability to class 

members, common questions predominated over individualized inquiries because Wal-Mart’s own 

records “document why each meal exception happened.” Class Cert. Order at 14–15. The 

evidence submitted with the instant motion continues to demonstrate that Wal-Mart’s own 

records—specifically, the EMS codes generated after a meal period exception investigation—

enable the Court to evaluate Wal-Mart’s liability to class members “on a class-wide basis,” which 

warrants certification. Abdullah, 731 F.3d at 964. 

A. Legal Standard 

“The Rule 23(b)(3) predominance inquiry” is meant to “tes[t] whether proposed classes are 

sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 

521 U.S. 591, 623 (1997). The Ninth Circuit has held that “there is clear justification for handling 

the dispute on a representative rather than an individual basis” if “common questions present a 

significant aspect of the case and they can be resolved for all members of the class in a single 

adjudication.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998). As the U.S.

Supreme Court recently explained, “[t]he predominance inquiry asks whether the common,

aggregation-enabling, issues in the case are more prevalent or important than the non-common,
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aggregation-defeating, individual issues.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036,

1045 (2016) (quoting 2 William Rubenstein, Newberg on Class Actions, § 4:49 at 196–97 (5th ed.

2012)). “When ‘one or more of the central issues in the action are common to the class and can be

said to predominate, the action may be considered proper under Rule 23(b)(3) even though other

important matters will have to be tried separately, such as damages or some affirmative defenses

peculiar to some individual class members.’” Id. (quoting 7AA Charles Wright et al., Federal

Practice and Procedure § 1778 (3d ed. 2005)). At the class certification stage, a plaintiff “need 

not, at that threshold, prove that the predominating question will be answered in their favor.” 

Amgen, 568 U.S. at 468. With these principles in mind, the Court turns to Wal-Mart’s motion.

B. Analysis 

Plaintiff’s meal period claim is brought under California Labor Code § 226.7, which an 

employer satisfies if the employer “relieves its employees of all duty, relinquishes control over 

their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute 

break, and does not impede or discourage them from doing so.” Brinker Rest. Corp. v. Superior 

Court, 53 Cal. 4th 1004, 1040 (2012); see also Boyd v. Bank of Am. Corp., 109 F. Supp. 3d 1273, 

1305 (C.D. Cal. 2015) (explaining that a violation of § 226.7 occurs when “an employer pressured 

or coerced plaintiff to skip otherwise provided meal breaks”); Rodriguez v. Taco Bell Corp., 896 

F.3d 952, 956 (9th Cir. 2018) (“The California Supreme Court’s decision in Brinker provides the 

authoritative standard to be applied.”). Thus, whether Wal-Mart offered its employees “a 

reasonable opportunity to take an uninterrupted 30-minute break, and [did] not impede or 

discourage them from doing so” is a legal question common to all class members. Brinker, 43 

Cal. 4th at 1040. In the class certification order, the Court concluded that because Wal-Mart

investigates and documents why each meal exception happened, “it would not be difficult to 

determine [Wal-Mart’s] liability to individual plaintiffs.” Class Cert. Order at 15 (citing Abdullah, 

731 F.3d at 966). 

1. Investigation Worksheets and EMS Codes

In this motion, Wal-Mart contends that Wal-Mart’s Investigation Worksheets and the EMS 
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codes Wal-Mart uses to categorize meal period exceptions are not reliable tools to resolve WalMart’s liability to class members because “the process that leads to the EMS coding of meal 

period exceptions is focused on documenting associate allegations and identifying potential risks,”

rather than on identifying whether the allegation is true. Mot. at 6–7. Wal-Mart also provides 

evidence showing that in some cases, the EMS code in Wal-Mart’s EMS database does not reflect 

the reason for the exception that was listed on the corresponding Investigation Worksheet. Mot. at 

9–13. In Wal-Mart’s view, that evidence illustrates why the EMS codes are unreliable indicators 

of Wal-Mart’s liability and why individualized inquiries are necessary to determine why each 

meal period exception occurred. Id. 

To support its theory, Wal-Mart cites to three Northern District of California cases in 

which the courts declined to certify meal period exception classes, although none helps Wal-Mart. 

In Ochoa, the plaintiffs attempted to rely on crew member time records as common proof of the 

employer’s liability for missed meal periods. Ochoa v. McDonald’s Corp., No. 14-CV-02098-JD, 

2016 WL 3648550, at *7 (N.D. Cal. July 7, 2016). In Ochoa, United States District Judge James 

Donato rejected that argument because mere time records could only demonstrate whether

employees took meal breaks, not whether the employer had denied the meal breaks. Id.; see also

Washington v. Joe’s Crab Shack, 271 F.R.D. 629, 641 (N.D. Cal. 2010) (rejecting plaintiff’s 

attempt to rely on time records as evidence of employer’s liability because such records “would 

not answer the question why the employees did not take breaks”). 

In Wilson, United States Magistrate Judge Elizabeth D. Laporte denied class certification 

because the evidence rebutted the plaintiff’s sole theory that the defendant employer lacked a 

uniform meal period policy. Wilson v. TE Connectivity Networks, Inc., No. 14-CV-04872-EDL, 

2017 WL 1758048, at *7 (N.D. Cal. Feb. 9, 2017). 

Finally, in Guifu Li, this Court denied certification of a meal period class because absent “a 

uniform lunch policy,” evaluation of the plaintiffs’ claims would “require a heavily factual inquiry 

into the particular circumstances of each putative class member.” Guifu Li v. A Perfect Franchise, 

Inc., No. 10-CV-01189-LHK, 2011 WL 4635198, at *13 (N.D. Cal. Oct. 5, 2011). 
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Wilson and Guifu Li are inapplicable because Plaintiff does not argue that Wal-Mart 

maintained an unlawful uniform lunch policy (or lacked a lawful policy). In fact, the parties agree 

that Wal-Mart maintains a uniform policy of paying any employee who misses a meal period 

premium an additional hour of pay at the employee’s hourly pay rate. ECF No. 157 at 5. 

That leaves Ochoa and Joe’s Crab Shack, which both illustrate why common questions

predominate in the instant case. In both Ochoa and Joe’s Crab Shack, district courts denied class 

certification because the plaintiffs’ time records bore no relationship to the employer’s liability for 

missed meal periods, which meant that individualized inquiries would predominate. Ochoa, 2016 

WL 3648550, at *7; Joe’s Crab Shack, 271 F.R.D. at 641. Here, by contrast, Plaintiff relies on 

Wal-Mart’s own Investigation Worksheets and the resulting EMS codes, which appear to answer 

why class members missed meal periods and thus obviate the need for a “heavily factual inquiry 

into the particular circumstances” of each class member. Guifu Li, 2011 WL 4635198, at *13. 

Wal-Mart’s 30(b)(6) witness Victoria Moore testified that Wal-Mart completes an Investigation 

Worksheet anytime “there was an actual meal period exception.” Moore Dep. at 55:18–19; see

ECF No. 163-3 at 2 (errata to Moore Dep.); Stokes Dep. at 44:11–25 (stating that “an investigation 

. . . is done” after each meal period exception). 

Wal-Mart relies heavily on a declaration that Wal-Mart submitted only with its reply brief, 

in which Moore declared that the Investigation Worksheet merely “documents what the associate 

said” about the reasons for the meal period exception. Moore Decl. ¶ 4.2 Yet Wal-Mart offers no 

reason to suggest that associates provide false reasons for meal period exceptions. Moreover, 

Moore’s own testimony was that an investigating manager is expected “to reconcile any conflicts 

in the facts with respect to a meal exception.” Moore Dep. at 45:1–5. 

 

2 Plaintiff objects to several paragraphs in Moore’s declaration. ECF No. 159. Civil Local Rule 

7-3(d)(1) permits a non-movant to object to new evidence submitted in the non-movant’s reply 

within seven days after the reply is filed. Here, Plaintiff missed that deadline and then some, as he 

filed his objections over a month after Wal-Mart filed its reply brief. Id. Regardless, Plaintiff’s 

objections lack merit because “class-certification-stage proof” is not limited to admissible 

evidence. Sali, 889 F.3d at 631. 
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The investigation following a meal period exception also assigns a reason for each meal 

period exception. See id. at 43:1–2 (Moore explaining that “before we’re doing the investigation, 

we don’t know if it’s a violation or not”). To complete an Investigation Worksheet, a Wal-Mart 

investigating manager interviews the associate that had the meal period exception and selects one 

of three codes on the Investigation Worksheet. ECF No. 132-2, Ex. 1 (example Investigation 

Worksheet). If the meal period exception was voluntary, the investigating manager selects either 

of two codes, “Associate Initiated Without Management Approval” or “Associate Initiated 

Customer Support.” Id. If the meal period exception was involuntary, the investigating manager 

selects the third code, “Manager Directed – No Coverage/For Customer Support.” Id. Wal-Mart 

then enters the relevant code into the EMS database. Moore Dep. at 68. 

When an investigating manager completing the Investigation Worksheet selects the code 

“Manager Directed – No Coverage/For Customer Support,” the investigation “automatically 

escalate[s] to market level,” which means that a person outside the facility investigates the 

exception. Moore Dep. at 109–10. The result of that market-level investigation is then coded into 

the EMS database. Id. at 125.3 

Wal-Mart argues that Wal-Mart’s purpose when investigating meal period exceptions is 

not to determine Wal-Mart’s legal liability, but rather intended to “creat[e] visibility into risk 

indicators for meal exceptions.” Mot. at 4. However, regardless of why Wal-Mart internally 

conducts the investigations, Wal-Mart expects an investigating manager “to determine what 

happened.” Moore Dep. at 45. Wal-Mart further expects that the results of its investigations will 

be “true and accurate.” Moore Dep. at 110. Thus, given Wal-Mart’s uniform approach to 

 

3 Plaintiff also notes that when an associate alleges “interference with ability” to take a meal 

period, the investigating manager is instructed to call Wal-Mart’s wage and hour hotline. See ECF 

No. 132-2, Ex. 1 (Investigation Worksheet). The ensuing wage and hour investigation involves 

multiple steps, including witness interviews and review of video footage. ECF No. 161, 

Declaration of Larry Lee (“Lee Decl.”), Ex. 61 at 5. However, although that “investigation file 

should be maintained in a locked file cabinet in the facility manager’s office,” id. at 7, Moore 

declared that the results are not coded into the EMS database. Moore Decl. ¶¶ 14, 16. Plaintiff 

thus does not appear to attempt to rely on those wage and hour investigation files as common 

proof. See Opp. at 12 (contending that Plaintiff intends to prove Wal-Mart is liable based on EMS 

codes for meal exceptions). 
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Case No. 17-CV-00062-LHK 

ORDER DENYING MOTION TO DECERTIFY MEAL PERIOD CLASS

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determining and logging the reasons for meal period exceptions, “it [will] not be difficult to 

determine [Wal-Mart’s] liability to individual plaintiffs.” Abdullah, 731 F.3d at 966–67. 

Despite that evidence, Wal-Mart attacks the accuracy of its own process with a sample of 

24 Investigation Worksheets, out of 443,681 meal period exceptions, that Wal-Mart contends 

include incident descriptions that are inconsistent with the corresponding codes in Wal-Mart’s 

EMS database. Mot. at 9–13. Wal-Mart also includes approximately 100 additional Investigation 

Worksheets with its reply brief, but does not contend that the corresponding EMS codes are 

inconsistent with any of those Investigation Worksheets. ECF No. 143-2, Ex. B. Wal-Mart 

asserts that some worksheets are “either incomplete or too vague to make any determinations 

about what actually happened.” Mot. at 12 (emphases removed). Thus, Wal-Mart contends, the 

EMS codes do not reflect a reliable “legal conclusion” about Wal-Mart’s liability. Reply at 9.

However, whether those EMS codes reflect a legal conclusion about Wal-Mart’s liability is 

immaterial at the class certification stage, at which the Court is not called upon “to determine 

whether class members could actually prevail on the merits of their claims.” Ellis v. Costco 

Wholesale Corp., 657 F.3d 970, 983 n.8 (9th Cir. 2011). Rather, the purpose of class certification 

is “to select the metho[d] best suited to adjudication of the controversy fairly and efficiently.” 

Amgen, 568 U.S. at 460 (alteration in original) (internal quotation marks omitted). 

Moreover, Wal-Mart provides no support for its suggestion that fewer than 24 examples of 

inconsistencies between EMS codes and Investigation Worksheets, out of 443,681 meal period 

exceptions, show that individualized inquiries predominate. Wal-Mart’s own 30(b)(6) witness 

testified that Wal-Mart investigates almost every meal period exception, codes those results into 

the EMS database, and expects the results to be “true and accurate.” Moore Dep. at 55, 110. 

Thus, Plaintiff has shown that Wal-Mart has already completed individual inquiries into the meal 

period exceptions, and that the EMS codes represent Wal-Mart’s conclusions. 

Here, Plaintiff seeks to rely on the EMS codes that result from Wal-Mart’s investigations, 

not on the associate’s explanation for a meal period exception listed on Step 1 of an Investigation 

Worksheet. See Opp. at 12 (stating that Plaintiff seeks to prove that Wal-Mart is at fault for any 
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ORDER DENYING MOTION TO DECERTIFY MEAL PERIOD CLASS

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meal period exceptions coded Associate Initiated Customer Support or Manager Directed – No 

Coverage/For Customer Support). Thus, Wal-Mart’s suggestion that associate explanations on the 

Investigation Worksheets—which, unlike the EMS codes, are not the end result of Wal-Mart’s 

investigations—are “incomplete” or “vague” is irrelevant. Wal-Mart’s EMS codes enable 

classwide proof of whether or not Wal-Mart was at fault for individual meal period exceptions. 

See Mendez v. C-Two Grp., Inc., No. 13-CV-05914-HSG, 2015 WL 8477487, at *2 (N.D. Cal. 

Dec. 10, 2015) (certifying class under Rule 23(b)(3) where common questions of law were 

“capable of classwide resolution”). 

Of course, Wal-Mart is not precluded from challenging at trial whether Wal-Mart’s records 

actually answer “the predominating question . . . in [Plaintiff’s] favor.” Amgen, 568 U.S. at 468; 

see Williams v. Jani-King of Phila., Inc., 837 F.3d 314, 322 (3d Cir. 2016) (explaining that at the 

class certification stage, the court is called on to determine whether “the common documents . . . 

contain the types of evidence” used to resolve the relevant legal question, not whether those 

documents in fact prove plaintiff’s case). At this stage, Plaintiff has satisfied his burden to show

that Wal-Mart’s EMS codes “facilitate common proof on the otherwise individualized issue[]” of 

Wal-Mart’s liability to class members. In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 

F.3d 953, 959 (9th Cir. 2009). Thus, the Court “conclude[s] that the [class’s] claims will ‘prevail 

or fail in unison,’ as required by Rule 23(b)(3).” Abdullah, 731 F.3d at 967 (quoting Amgen, 568 

U.S. at 460). 

IV. CONCLUSION

For the foregoing reasons, the Court DENIES Wal-Mart’s motion for decertification. 

IT IS SO ORDERED.

Dated: November 13, 2018

______________________________________

LUCY H. KOH

United States District Judge