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CASE NO. 5:17-CV-00062-LHK 

DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR DECERTIFICATION 

Aaron T. Winn (SBN 229763) 

Jennifer A. Kearns (SBN 125588) 

DUANE MORRIS LLP

750 B Street, Suite 2900 

San Diego, CA 92101-4681 

Telephone: 619.744.2200 

E-mail: atwinn@duanemorris.com 

E-mail: jkearns@duanemorris.com 

Allegra A. Jones (SBN 236518) 

DUANE MORRIS LLP

Spear Tower, One Market Plaza, Suite 2200 

San Francisco, CA 94105-1127 

Telephone: 415.957.3000 

E-mail: aajones@duanemorris.com 

Attorneys for Defendants 

Wal-Mart Associates, Inc. & Wal-Mart Stores, Inc. 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

RODERICK MAGADIA, individually and on

behalf of all those similarly situated, 

Plaintiff, 

v. 

WAL-MART ASSOCIATES, INC., a 

Delaware corporation; WAL-MART 

STORES, INC., a Delaware corporation; 

and DOES 1 through 50, inclusive, 

Defendants. 

Case No.: 5:17-cv-00062-LHK 

DEFENDANTS’ NOTICE OF 

MOTION AND MOTION FOR 

DECERTIFICATION OF THE MEAL

PERIOD CLASS; MEMORANDUM 

OF POINTS AND AUTHORITIES IN 

SUPPORT THEREOF

Date: December 20, 2018 

Time: 1:30 p.m. 

Courtroom: 8, 4th Floor 

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1 CASE NO. 5:17-CV-00062-LHK 

DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR DECERTIFICATION 

TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD: 

PLEASE TAKE NOTICE that on December 20, 2018 at 1:30 p.m., before the 

Honorable Lucy H. Koh, District Judge in Courtroom 8 – 4th Floor of the United States 

District Court for the Northern District of California, San Jose Division, located at 280 

S. First Street, San Jose, California 95113, defendants Wal-Mart Associates, Inc. and 

Wal-Mart Stores, Inc. will and hereby do move this Court for an Order decertifying the 

Meal Period Class. 

The motion is based upon the accompanying Memorandum of Points and 

Authorities, the declarations and exhibits accompanying this motion, the pleadings, 

orders, and other records on file with the Court, and any other matters that the parties 

may submit or the Court may deem appropriate. 

Dated: July 26, 2018 DUANE MORRIS LLP

By:/s/Aaron T. Winn 

Aaron T. Winn 

Jennifer A. Kearns 

Allegra A. Jones 

Attorneys for Defendants 

Wal-Mart Associates, Inc. and 

Wal-Mart Stores, Inc. 

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i CASE NO. 5:17-CV-00062-LHK 

DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR DECERTIFICATION 

TABLE OF CONTENTS 

Page 

INTRODUCTION ........................................................................................................... 1 

FACTUAL AND PROCEDURAL BACKGROUND ...................................................... 2 

A. The Court certifies the Meal Period Premium Class.............................. 2 

B. Post-certification discovery ...................................................................... 3 

1. Walmart’s 30(b)(6) witness explains that the meal period 

investigation process does not confirm whether a meal period 

premium was legally owed. ............................................................ 3 

2. The 50-store sampling of meal period investigation 

worksheets. ..................................................................................... 6 

ARGUMENT ................................................................................................................... 6 

A. When assessing a motion for decertification, the burden remains on 

the plaintiff to satisfy the requirements of Rule 23. .............................. 6 

B. Determining who was legally entitled to a meal period premium 

will require intensive individualized inquiries that will swamp the 

proceedings. .............................................................................................. 7 

1. Walmart’s meal period investigation process does not 

attempt to resolve any discrepancies regarding an employee’s 

allegations or otherwise confirm (or reject) the associate’s 

explanation for the exception. ........................................................ 8 

2. Meal period investigation data cannot serve as the basis for 

making any reliable determination regarding who was 

legally entitled to a meal period premium. ................................... 9 

3. Because Walmart’s documents cannot easily identify who 

was legally entitled to a meal period premium, this case is no 

different than other meal break cases in which class 

certification is improper. .............................................................. 13 

CONCLUSION ............................................................................................................. 14 

 

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ii CASE NO. 5:17-CV-00062-LHK

DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR DECERTIFICATION 

TABLE OF AUTHORITIES 

Page No(s). 

Federal Cases 

Brum v. MarketSource, Inc.

No. 2:17-cv-241-JAM-EFB, 2017 WL 2633414 (E.D. Cal. June 16, 2017) ................ 1 

Gen. Tel. Co. of Sw. v. Falcon

457 U.S. 147 (1982) ..................................................................................................... 6 

Gonzalez v. Officemax N. Am.

No. CV 07-04839 JVS MLGX, 2012 WL 5473764, at *2 (C.D. Cal. Nov. 

5, 2012) ........................................................................................................................ 7 

Li v. A Perfect Franchise, Inc.

No. 5:10-CV-01189-LHK, 2011 WL 4635198 (N.D. Cal. Oct. 5, 2011) .............. 10, 13 

Marlo v. United Parcel Serv., Inc.

639 F.3d 942 (9th Cir. 2011) ....................................................................................... 6 

Ochoa v. McDonald’s Corp.

No. 3:14-CV-02098-JD, 2016 WL 3648550 (N.D. Cal. July 7, 2016) ....................... 13 

Ries v. Ariz. Beverages USA LLC

No. 10-01139 RS, 2013 WL 1287416 (N.D. Cal. Mar. 28, 2013) ................................ 6 

Wilson v. TE Connectivity Networks, Inc.

No. 14-CV-04872-EDL, 2017 WL 1758048 (N.D. Cal. Feb. 9, 2017) ....................... 13 

State Statutes 

Labor Code section 226.7 ................................................................................................. 1 

Rules 

Fed. R. Civ. P. 23(b)(3) .................................................................................................. 6-7

Fed. R. Civ. P. 23(c)(1)(C) ................................................................................................. 6

Suspects 

Labor Code ........................................................................................................................ 1 

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1 CASE NO. 5:17-CV-00062-LHK 

DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR DECERTIFICATION 

INTRODUCTION 

 Plaintiff’s Meal Period Premium claim challenges the rate at which Walmart 

pays its meal period premiums.1 But before getting to that question, “Plaintiff must 

establish that Walmart was legally obligated to pay a meal period premium.” (See 

Class Certification Order, ECF No. 84 at 13.) This would not be difficult, Plaintiff’s 

counsel argued when seeking certification, because Walmart investigates each meal 

period exception (i.e., a late, short or missed meal). (Plaintiff’s Reply, ECF No. 79 at 9-

10.) These investigation documents, Plaintiff argued, would allow the Court to readily 

identify which associates were legally entitled to a meal period premium. Id. Based on 

this assumption, the Court certified the Meal Period Premium Class. (Class 

Certification Order, ECF No. 84 at 12-16, 22.) 

 To test the theory that the investigation documents would be a reliable tool for 

determining who was entitled to a meal period premium, the parties pulled meal period 

investigation worksheets from 50 California Walmart stores. (Declaration of Aaron 

Winn (“Winn Decl.”), ¶3.) These documents show that the meal period investigation 

process is not a reliable and accurate tool for identifying who was legally entitled to a 

meal period premium. 

 In fact, for several meal period exceptions, there is no corresponding 

investigation worksheet. (Declaration of Todd Stokes (“Stokes Decl.”), ¶ 7.) When 

there is a worksheet, it sometimes fails to identify any reason for the meal period 

exception. (Stokes Decl., ¶ 4 (Exs. 1, 2, 3), ¶ 5.) When there is a worksheet, and it does

include the associate’s explanation, the explanation is sometimes so short, muddled, or 

oblique that it would be extremely difficult (if not impossible) to readily determine 

 

1 As outlined in Walmart’s concurrently filed motion for summary judgment, Walmart’s 

practices comply with Labor Code section 226.7 because the “regular rate of 

compensation,” as used in section 226.7, is different than the “regular rate of pay,” 

which is used elsewhere in the Labor Code. See e.g., Brum v. MarketSource, Inc., No. 

2:17-cv-241-JAM-EFB, 2017 WL 2633414 (E.D. Cal. June 16, 2017) (rejecting challenge 

to meal period premium rate because “the legislature’s choice to use the word 

‘compensation’ instead of ‘pay’ [is] meaningful”). 

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DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR DECERTIFICATION 

whether there was an actual meal period violation. This is not particularly surprising 

because (1) the worksheet is designed to identify only the associate’s explanation for the 

exception; (2) the worksheet does not ask the manager to investigate or confirm the 

truth of the associate’s allegation; and (3) Walmart does not use the worksheet to 

determine whether an exception triggered a legal obligation to pay a premium.

 Because the meal period investigation worksheets do not confirm whether an 

associate was legally entitled to a meal period premium, the “coding” of the worksheets 

in the Exception Management System (EMS) is equally unhelpful for determining 

actual meal period violations. For example, some meal period exceptions were coded as 

“Manager Directed” even when the associate’s explanation—e.g., “I lost track of time”—

does not remotely suggest a “Manager Directed” event. (Stokes Decl., ¶ 4 (Ex. 4), ¶ 5.) 

In short, post-certification discovery shows that Walmart’s investigation records cannot 

be used to readily or reliably identify who was legally entitled to a meal period 

premium. As a result, the Court should decertify the Meal Period Premium Class. 

FACTUAL AND PROCEDURAL BACKGROUND 

A. The Court certifies the Meal Period Premium Class. 

Plaintiff’s reply brief in support of their class certification motion argued that 

the Court could easily use Walmart’s own records to determine who was legally 

entitled to a meal period premium because Walmart supposedly investigates and 

documents “every single meal period violation.” (ECF No. 79 at 9.) As a result, 

Plaintiff explained that he would simply “accept the truth of Defendants’ meal period 

reports and limit the meal period premium rate claim to only those violations which 

Defendants confirmed.” (Id.) 

Based on Plaintiff’s theory, the Court certified the Meal Period Premium Class. 

(ECF No. 84 at 12-16, 22.) The Court defined the Meal Period Premium Class as all 

current and former hourly California Walmart retail employees who were paid any 

meal period premium [regardless of the reason] in the same period that they received a 

non-discretionary bonus. (Id. at 22.) 

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DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR DECERTIFICATION 

B. Post-certification discovery 

After the Court’s certification order, the parties conducted extensive discovery. 

Among other things, Plaintiff took a 30(b)(6) deposition regarding Walmart’s meal 

period investigation process and identified 50 California Walmart stores from which 

the parties pulled all relevant meal period investigation worksheets—the documents, 

Plaintiff argued, would allow the Court to easily determine which associates were 

legally entitled to a meal period premium. 

1. Walmart’s 30(b)(6) witness explains that the meal period 

investigation process does not confirm whether a meal 

period premium was legally owed. 

Prior to class certification, Plaintiff’s counsel deposed Walmart’s Regional HR 

Director Todd Stokes. He was not designated as a 30(b)(6) witness for purposes of meal 

period investigations, and during his deposition, Walmart’s counsel repeatedly objected 

that questions regarding the meal period investigation process exceeded the scope of 

the 30(b)(6) notice. Counsel explained that Stokes “is not prepared to testify on behalf 

of Walmart policy regarding [the meal period investigation process].” (Winn Decl. Ex. 

A, Stokes Dep., at 44:4-48:9.) And Stokes explained: “I don’t know the actual, full 

process to speak fully on that.” (Winn Decl. Ex. A, Stokes Dep., at 45:8-22.) 

Despite Stokes’ lack of familiarity with the investigation process, Plaintiff’s 

counsel used his testimony in their reply brief to support their theory that determining 

who was legally entitled to a meal period premium would be easy because Walmart 

investigates each meal period exception. 

After the Court granted class certification, Plaintiff noticed a separate 30(b)(6) 

deposition regarding Walmart’s meal period investigation topics. This was necessary, 

of course, because Stokes was not familiar with the meal period investigation process 

and was not designated as a 30(b)(6) witness to discuss meal period investigations. 

The 30(b)(6) deposition regarding meal period investigations occurred on June 28, 

2018. Walmart’s 30(b)(6) designee was Victoria Moore. 

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4 CASE NO. 5:17-CV-00062-LHK

DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR DECERTIFICATION 

Throughout Moore’s deposition, Plaintiff’s counsel confused and/or conflated 

several different internal procedures that relate to Walmart’s meal period policy.2 But 

to the extent the questioning allowed her to do so, Moore explained that Walmart’s 

managers are expected to use a meal period investigation worksheet to document the 

associate’s reason for the exception and then to enter worksheet data into Walmart’s 

Exception Management System (EMS). (Winn Decl. Ex. B, Moore Dep. at 21:25-26:14; 

105:13-109:19.) The process that leads to the EMS data is not designed to determine 

whether an associate is actually entitled to receive a meal period premium. (Winn 

Decl. Ex. B, Moore Dep., at 21:25-26:14; 53:25-54:11.) Rather, Walmart pays California 

associates a meal period premium regardless of whether the associate completes the 

worksheet and regardless of the reasons (if any) an associate provides for the meal 

period exception. (Winn Decl. Ex. B, Moore Dep., at 21:25-26:14; 53:25-55:1.) 

Moore also explained that the purpose of the meal period investigation process is 

limited to creating visibility into risk indicators for meal exceptions. (Winn Decl. Ex. 

B, Moore Dep., at 53:25-55:14; 57:12-58:20). It is not designed to confirm whether a 

meal period premium was legally owed or to verify whether the associate’s story was 

true: 

Q. . . . Is there a report that we could pull from the exception 

management system which has the conclusion after the investigation which 

confirms the reason code? If it’s a valid reason code, is there a report that would 

be run that says “These reason codes have been confirmed”? 

A. There’s no confirmation. The step that you say -- the step that you 

outline around confirmation, that step is not part of the process.

(Winn Decl. Ex. B, Moore Dep., at 124:17-125:3) (emphasis added) (objection omitted).) 

Rather, as the meal period investigation worksheet makes clear, the 

investigation process focuses on documenting the associate’s reason for the exception. 

 

2 Plaintiff’s counsel also conflated the process in their class certification briefing, as the 

Court noted in its Order: “Plaintiff appears to conflate the Meal Exception Reports 

with the records that are generated by Wal-Mart’s investigations into every reported 

meal exception. . . . [T]hese are two different things.” (ECF No. 84 at 14 n.1.) 

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(Winn Decl. Ex. B, Moore Dep., at 21:25-26:14; 105:13-109:19; Stokes Decl., ¶ 4, Exs. 1-

24) 

The first page of the two-page investigation worksheet directs the manager at 

Step 1 to “[a]sk the associate and note in their words the reason a timely, full, 

uninterrupted rest break or meal period was not taken.” (See, e.g., Stokes Decl., ¶ 4, 

Ex. 4.) The worksheet does not ask the manager to evaluate the associate’s story, opine 

as to its credibility, or take any other action to “confirm” the associate’s allegation. 

The second page asks the manager at Step 2 to identify whether the associate 

alleges that he or she “voluntarily failed” or “involuntarily failed” to take a proper meal 

break. (Stokes Decl., ¶ 4, Ex. 4.) As with Step 1, the investigation worksheet does not 

ask or expect the manager to confirm or evaluate the associate’s allegation; it merely 

asks the manager to document the allegation. The manager is then asked to remind 

the associate of Walmart’s meal period policies and to provide appropriate coaching. 

(Stokes Decl., ¶ 4, Ex. 4.) 

The manager or a personnel associate (HR) then records in the EMS that the 

associate completed the meal period investigation worksheet. (Winn Decl. Ex. B, 

Moore Dep., at 68:15-70:7; 108:22-109:19.) This is done by matching, as closely as 

possible, the associate’s allegations to one of the broad pre-populated EMS “reasons” 

codes. (Winn Decl. Ex. B, Moore Dep., at 68:15-70:7). But when an associate alleges an 

involuntary meal period exception, the worksheet directs the investigating manager to 

select “Manager Directed – No Coverage/For Customer Support” regardless of the 

actual reason the associate gives for the meal exception. (Winn Decl. Ex. B, Moore Dep., 

at 105:13-109:19; Stokes Decl., ¶ 4, Ex. 4.) The worksheet does not direct the 

investigating manager to enter into the EMS the Step 1 reason the associate gave for 

the meal exception. (Winn Decl. Ex. B, Moore Dep., at 105:13-109:19; Stokes Decl., ¶ 4 

(Ex. 4), ¶ 8.) 

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2. The 50-store sampling of meal period investigation 

worksheets. 

To test the premise that Walmart’s own documents could be easily used to 

determine who was legally owed a meal period premium, the parties pulled all relevant 

meal period investigation worksheets from 50 California Walmart stores, as selected by 

Plaintiff’s counsel. (Winn Decl., ¶ 3.) The meal period investigation worksheets exist 

only in hardcopy form and are located at the store where the associate works. (Stokes 

Decl. ¶ 3.) As outlined below, this sampling of investigation worksheets shows that the 

investigation process that leads to the EMS coding of meal period exceptions is focused 

on documenting associate allegations and identifying potential risks, but it does not 

determine (and cannot be used to easily or reliably determine) who is legally entitled to 

a meal premium. (See generally Stokes Decl., ¶ 4, Exs. 1-24.) 

ARGUMENT 

A. When assessing a motion for decertification, the burden remains 

on the plaintiff to satisfy the requirements of Rule 23. 

“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.”). 

“On a motion for decertification, the burden remains on the plaintiffs to demonstrate 

‘that the requirements of Rules 23(a) and (b) are met.’” Ries v. Ariz. Beverages USA 

LLC, No. 10-01139 RS, 2013 WL 1287416, at *3 (N.D. Cal. Mar. 28, 2013) (quoting 

Marlo v. United Parcel Serv., Inc., 639 F.3d 942, 947 (9th Cir. 2011)). 

Here, the Court certified the Meal Period Premium Class under Rule 23(b)(3), 

finding that common issues “predominate over any questions affecting only individual 

members, and that a class action is superior to other available methods for the fair and 

efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). When assessing 

predominance, the Court must first examine the substantive issues of Plaintiff’s claim 

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and then inquire into the proof relevant to each issue. Gonzalez v. Officemax N. Am., 

No. CV 07-04839 JVS MLGX, 2012 WL 5473764, at *2 (C.D. Cal. Nov. 5, 2012). If the 

substantive issues require individual proof for each member’s claims, making class 

treatment unmanageable, then class certification is inappropriate. Id., at *6 (noting 

that “[w]ithout a viable method of common proof for evaluating the ability of [9,000] 

class members to take breaks as required by law, the Court will be mired in over 

[9,000] mini-trials regarding individual job duties and expectations,” and stating that 

[t]he difficulties in managing such a wide-ranging factual inquiry persuade the Court 

that class treatment is not a superior method for resolution of the class members’ 

potential [meal break] claims”).

B. Determining who was legally entitled to a meal period premium 

will require intensive individualized inquiries that will swamp 

the proceedings. 

Plaintiff promised the Court that Walmart’s own documents would make it 

simple to determine who was legally entitled to a meal period premium. But postcertification discovery shows that Plaintiff’s promise is illusory. Although Walmart 

asks its associates to provide a reason for meal period exceptions, the investigation 

process that leads to the EMS coding does not confirm whether the allegation is true or 

whether it would reasonably trigger a meal period premium. As a result, Walmart 

does not (and could not) rely on its investigation process to decide whether an associate 

was legally entitled to a meal period premium. Rather, out of an abundance of caution, 

Walmart pays a meal premium to every associate with a meal exception, regardless of 

the reason for the exception, and regardless of whether a meal period investigation is 

even undertaken. And because Walmart does not (and could not reasonably) use the 

meal period investigation process to determine who was legally entitled to a meal 

period, it cannot be used here as a proxy for legally determining liability. 

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1. Walmart’s meal period investigation process does not 

attempt to resolve any discrepancies regarding an 

employee’s allegations or otherwise confirm (or reject) the 

associate’s explanation for the exception. 

The meal period investigation process that leads to the EMS coding is not 

designed to adjudicate conflicting stories regarding meal period exceptions or to make 

determinations regarding the actual reason for a meal period exception. (Winn Decl. 

Ex. B, Moore Dep., at 124:5-125:18.) Instead, the process merely documents (1) the 

associate’s reason (if any) for the exception and (2) the associate’s (not Walmart’s) 

allegation regarding whether the meal exception was voluntary or involuntary. (See, 

e.g., Stokes Decl., ¶ 4, Ex. 4.) There is no part of the meal period investigation process 

that either confirms or rejects the reason the associate provides for the meal exception. 

(Winn Decl. Ex. B, Moore Dep., at 124:5-125:18.) 

Walmart does not instruct managers to conduct a thorough interview of the 

associate to gather details regarding the circumstances that led to the meal exception. 

(Stokes Decl., ¶ 4, Ex. 4.) Indeed, because the conversation with the associate may 

occur more than a week after the meal period exception, the associate sometimes does 

not recall why the exception occurred. (Stokes Decl., ¶ 4, Ex. 5 (associate said “I don’t 

remember” when asked at Step 1 the reason for not taking a proper meal break).) The 

investigating manager is not instructed to ask the associate follow up questions, 

interview other witnesses, review relevant documents or video footage, reconcile 

conflicting statements or evidence, engage in further fact-finding or otherwise 

challenge what the associate says regarding the reason for the meal exception. (Winn 

Decl. Ex. B, Moore Dep., 60:14-61:20; Stokes Decl., ¶ 4, Ex. 4.) In terms of the 

investigation process that leads to the EMS coding, the investigating manager is a 

mere scribe (and often, not even that, as the associate may personally write the reason 

for the meal exception in his or her own words and handwriting). (Winn Decl. Ex. B, 

Moore Dep., at 42:1-43:8; see also Stokes Decl., ¶ 4, Ex. 4, for an example of a Step 1 

explanation written in the first person, in the associate’s handwriting).) 

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Because Walmart’s meal period investigation process primarily documents an 

associate’s allegations about the reason for a meal exception, the investigating 

manager does not necessarily ask the associate’s supervisor for his or her side of the 

story, even when the associate alleges that he or she “involuntarily failed” to take a 

proper meal period. For example, because Everett Arcement alleged that he 

“involuntarily failed” to take a proper meal break on January 13, 2013, his meal 

exception was coded “Manager Directed” even though his supervisor did not participate 

in the investigation. (See Stokes Decl., ¶ 4, Ex. 6, which shows no Step 3 signature for 

the associate’s supervisor.) That “Manager Directed” was selected without his 

supervisor’s involvement is especially concerning since his Step 1 explanation provides 

no indication that his manager directed him to not take a proper meal period. (Id.) To 

the extent an associate claims that a Walmart supervisor prevented the associate from 

taking a proper meal break, Walmart is entitled to present testimony from the 

supervisor and other evidence to demonstrate that the associate had an opportunity to 

take a proper meal break. Using Walmart’s EMS data to prove Plaintiff’s class claims 

denies Walmart of its right to tell its side of the story, which was not necessarily 

captured by the meal period investigation process. 

Because the investigation process that leads to the EMS coding involves 

documenting associate allegations (in their own words), not engaging in fact-finding 

investigations regarding the circumstances of each meal exception, showing that 

Walmart actually prevented any class member from taking a proper meal break would 

require highly individualized fact-finding to determine why each class member failed to 

take a proper meal period. 

2. Meal period investigation data cannot serve as the basis for 

making any reliable determination regarding who was 

legally entitled to a meal period premium. 

The investigation worksheets produced by Walmart show that the investigations 

are not reliable for purposes of determining whether Walmart prevented an associate 

from taking a proper meal period. Because the investigation worksheets are the only 

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data point for the codes entered into the EMS system, the EMS data is no more reliable 

that the spotty information contained in the worksheets. (Winn Decl. Ex. B, Moore 

Dep., at 68:15-70:7.) Moreover, the investigating managers do not necessarily enter 

the EMS coding themselves. (Winn Decl. Ex. B, Moore Dep., at 68:15-70:7.) When the 

person selecting the EMS coding is not the same person that completed the 

investigation worksheet, there is an additional potential for error or misinterpretation, 

making the EMS data even less reliable than the meal period investigation worksheets 

for the purpose of determining the actual reason for the meal exception. 

 Indeed, the EMS code sometimes bears no relationship to the associate’s 

explanation in Step 1 of the worksheet. (See, e.g., Stokes Decl., ¶ 4 (Exs. 15-18), ¶ 6.) 

For example, a December 2017 meal exception was coded as “Associate Failed to Punch 

– No Timely Adjustment.” (Stokes Decl., ¶ 4 (Ex. 15), ¶ 6.) But at Step 1 of the 

corresponding investigation worksheet, the associate explains that he simply “lost 

track of time.” (Stokes Decl., ¶ 4, Ex. 15.) 

 Another worksheet in which an associate claims he “lost track of time” was coded 

as “Manager Directed.” (Stokes Decl., ¶ 4, Ex. 4.) This alone, according to Plaintiffs, 

legally entitles the associate to a meal period premium. But employers are not liable 

for meal period premiums merely because their employees “lost track of time” and took 

a late lunch. Li v. A Perfect Franchise, Inc., No. 5:10-CV-01189-LHK, 2011 WL 

4635198, at *13 (N.D. Cal. Oct. 5, 2011) (“Case law interpreting the statute has 

established that meal breaks need only be made available to employees, they don’t 

necessarily actually have to be taken”). The chart below summarizes several 

additional examples of meal period exceptions that were coded as “Manager Directed” 

even though the associate’s explanation suggests otherwise. 

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Exhibit No.3 Step 1 Explanation Step 2 Selection(s) EMS “Reason” 

Coding 

Ex. 7 

(Cabrera) 

“MHRM came and toured with 

us and by the time we were done 

I had gone over my 5th hour 

lunch break.” 

Voluntary; “Associate 

Initiated Without 

Management Approval” 

Manager Directed 

– No Coverage/For 

Customer Support 

Ex. 8 

(Cook) 

“I went over my 10th hour. 

Because, it was the last day of 

layaway and no one else was 

here to cover the register. 

Couldn’t leave the customer.” 

Voluntary Manager Directed 

– No Coverage/For 

Customer Support 

Ex. 9 

(Ortega) 

“Preparing for inventory.” Voluntary Manager Directed 

– No Coverage/For 

Customer Support 

Ex. 10 

(Bustamante) 

“Spoke to Edgar last chance & he 

will pay attention to his swipes 

& his time.” 

Voluntary Manager Directed 

– No Coverage/For 

Customer Support 

Ex. 11 

(Mora) 

“Is because I need finish my 

work, and try to don’t do again.” 

None Manager Directed 

– No Coverage/For 

Customer Support 

Ex. 12 

(Reveles) 

“Lost Time. The associate wasn’t 

sure that work with break/meal 

period.” 

None Manager Directed 

– No Coverage/For 

Customer Support 

Ex. 13 

(Wiggins) 

“See ETA & Punch Log” Voluntary; Associate 

Initiated Customer 

Support 

Manager Directed 

– No Coverage/For 

Customer Support 

Ex. 14 

(Rowe) 

“Busy in deli, Talked to assistant 

manager Jeremy about leaving 

early.” 

None Manager Directed 

– No Coverage/For 

Customer Support 

 Inconsistencies between the associate’s explanation and the EMS codes are not 

the only reason these documents cannot be used as a shortcut for determining meal 

period liability. In many other cases, there is no corresponding worksheet at all. 

(Stokes Decl., ¶ 7.) Where there is no corresponding worksheet, it is impossible to 

know whether the associate even alleged that the meal exception was “Manager 

Directed,” let alone whether it was in fact manager directed. 

 

3 See Stokes Decl., ¶ 4, Exs. 7-14. 

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Other worksheets are ambiguous because they are either incomplete or too 

vague to make any determinations about what actually happened. (See e.g., Winn 

Decl. Ex. B, Moore Dep. 128:7-25; 129:1-18; 130:2-132:2; Stokes Decl., ¶ 4, Exs. 1, 2, 3.) 

Plaintiff’s counsel highlighted this very problem during Moore’s deposition. For 

example, after showing Moore an investigation worksheet with a Step 1 explanation of 

“Helping customer on the floor,” counsel asked Moore how that explanation should be 

coded in the EMS system. (Winn Decl. Ex. B, Moore Dep. 127:18-128:6; Winn Decl. Ex. 

C, Moore Dep. Ex. 77.) Moore explained: “I have no way to know how this should be 

coded based solely on that – based solely on the comment written there.” (Winn Decl. 

Ex. B, Moore Dep. 128:4-6.) She also noted that the form was not completed properly: 

“The instructions clearly say to place an X in one of those [boxes in Step 2], but I’m not 

sure what -- it appears the form was not completed according to the instructions on the 

form.” (Winn Decl. Ex. B, Moore Dep., 128:7-25.) 

Plaintiff’s counsel then provided Moore with a second example. It too was 

incomplete. This time, there was no Step 2 selection. (Winn Decl. Ex. B, Moore Dep. 

129:1-18; Winn Decl. Ex. C, Moore Dep. Ex. 77.) 

Plaintiff’s counsel then showed Moore a third worksheet, and asked whether she 

agreed that the worksheet should be coded as “Manager Directed.” Moore explained: 

“I don’t have enough information, and the information on the form isn’t clear. The 

information on the form is inconsistent with the associate’s punches. So at this point, I 

would say I don’t know that anything [regarding this exception] was managerdirected.” (Winn Decl. Ex. B, Moore Dep. 130:2-132:2; Winn Decl. Ex. D, Moore Dep. 

Ex. 81.) 

These exchanges highlight the challenges inherent in trying to use the 

worksheet investigation documentation (and corresponding EMS data) for something it 

was never designed to do: determine whether an associate was legally entitled to a 

meal period premium. Because the meal period investigation worksheets are not 

designed to determine whether someone was legally entitled to a meal period premium, 

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and because the EMS coding is not a “confirmation” of any actual violation, none of 

these documents can be used as a proxy to determine liability. This is especially true 

given the fact that the documentation is often ambiguous, incomplete, and/or 

inconsistent. As a result, determining whether any particular associate was actually 

entitled to a meal period premium would require individualized inquiries that go far 

beyond a review of EMS data or the underlying investigation worksheets. 

3. Because Walmart’s documents cannot easily identify who 

was legally entitled to a meal period premium, this case is 

no different than other meal break cases in which class 

certification is improper. 

Without some common policy or practice that prevents class members from 

taking a proper meal period—and there is no such allegation here—meal break claims 

are inherently ill-suited for class treatment. See, e.g., Ochoa v. McDonald’s Corp., No. 

3:14-CV-02098-JD, 2016 WL 3648550, at *6 (N.D. Cal. July 7, 2016) (denying 

certification because plaintiffs “[did] not tender any evidence of a standard policy or 

practice, formal or informal, of denying crew members their meal and rest breaks”); Li, 

2011 WL 4635198, at *13 (“Whether class certification of a meal period claim is 

appropriate depends upon whether the employer has a uniform policy.”). 

This is so because determining why any particular class member did not take a 

compliant meal period, on any particular day, inherently raises a host of individualized 

inquiries. See, e.g., Wilson v. TE Connectivity Networks, Inc., No. 14-CV-04872-EDL, 

2017 WL 1758048, at *7 (N.D. Cal. Feb. 9, 2017) (denying certification of Plaintiff’s 

meal break claims and noting that courts “consistently” deny certification of meal 

break claims because individualized issues often predominate) (collecting cases) 

(citations omitted); Li, 2011 WL 4635198, at *13 (finding that common issues of law or 

fact do not predominate in plaintiffs’ meal break claims because “[a]bsent a uniform 

policy or practice, plaintiffs’ meal break claims will require a heavily factual inquiry 

into the particular circumstances of each putative class member to determine when, if 

ever, they were not permitted to take a meal break”). 

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It is no different here. The variety of reasons for meal exceptions are legion: 

(1) “I can’t remember [why],”4 (2) “[I] had car problems so I didn’t come back,”5 (3) “Was 

training new employee,”6 (4) “@Med Center,”7 (5) “I had bread in [the] oven,”8 and (6) 

“With a shoplifter.”9 Without examining each of these allegations individually, in 

context, there is no way to determine whether any of them give rise to an actual 

violation. And because the meal period premium claim cannot be adjudicated without 

first identifying which class members were legally entitled to a meal period, class 

treatment of the meal period premium claim is improper. 

CONCLUSION 

This Court certified Plaintiff’s meal period premium claim based on Plaintiff’s 

representation that Walmart’s investigation records would allow the Court to readily 

identify which associates were legally entitled to a meal premium. Because discovery 

has now shown that this assumption was incorrect and that determining who is legally 

entitled to a meal period premium will require individualized inquiries that will 

overwhelm any common questions, the Court should decertify the Meal Period 

Premium Class. 

Dated: July 26, 2018 DUANE MORRIS LLP

By:/s/Aaron T. Winn 

Aaron T. Winn 

Jennifer A. Kearns 

Allegra A. Jones 

Attorneys for Defendants 

Wal-Mart Associates, Inc. and 

Wal-Mart Stores, Inc. 

DM1\8885229.1

 

4 (Stokes Decl., ¶ 4, Ex. 19). 

5 (Stokes Decl., ¶ 4, Ex. 20). 

6 (Stokes Decl., ¶ 4, Ex. 21). 

7 (Stokes Decl., ¶ 4, Ex. 22). 

8 (Stokes Decl., ¶ 4, Ex. 23). 

9 (Stokes Decl., ¶ 4, Ex. 24). 

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