1 - OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JESSICA GESSELE, ASHLEY ORTIZ, 

NICOLE GESSELE, TRICIA 

TETRAULT, and CHRISTINA 

MAULDIN, on behalf of themselves and 

all others similarly situated,

Plaintiffs,

v.

JACK IN THE BOX, INC., a corporation 

of Delaware,

Defendant.

No. 3:14-CV-01092-HZ

 

OPINION & ORDER 

Jon M. Egan

240 6th Street

Lake Oswego, OR 97034-2931

(503) 697-3427

Jim W. Vogele

812 N.W. 17th Avenue

Portland, OR 97209

(503) 779-5415 

Attorney for Plaintiffs

Douglas S. Parker

David P. R. Symes

LITTLER MENDELSON, P.C.

1300 S.W. 5th Avenue

Suite 2050

Portland, OR 97201

(503) 221-0309

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Ian Maher

LITTLER MENDELSON, P.C.

633 West 5th Street

Los Angeles, CA 90071

(213) 443-4300 

Attorneys for Defendant

HERNÁNDEZ, District Judge:

This matter comes before the Court on Defendant’s Motion to Decertify Shoe Deduction 

Claim. For the reasons that follow, the Court denies Defendant’s Motion. 

BACKGROUND

Because the parties are familiar with the facts underlying this action, the Court sets out 

only the facts that are relevant to the pending Motion.

Until September 30, 2011, Defendant Jack in the Box, Inc., owned and operated several 

restaurants in Oregon. From May 2006 through September 2011 Defendant sold its Oregon 

restaurants to various franchise operators as follows:

May 1, 2006: 6 restaurants

March 29, 2010: 21 restaurants

March 7, 2011: 13 restaurants

September 30, 2011: 3 restaurants

After September 30, 2011, Defendant did not own or operate any restaurants in Oregon and did 

not have any Oregon employees. The last Jack in the Box restaurant in Oregon owned by 

Defendant at which any of the named Plaintiffs worked was sold to a franchisee on March 29, 

2010.

Plaintiffs were employed by Defendant in its Oregon restaurants at various times. 

Plaintiffs received their final paychecks from Defendant on the following dates:

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Tricia Tetrault: July 11, 2008

Ashley Ortiz: December 26, 2008

Nicole Gessele: March 20, 2009

Jessica Gessele: November 23, 2009

Christina Mauldin: March 30, 2010.

On August 13, 2010, Jessica Gessele, Ashley Ortiz, Nicole Gessele, and Tricia 

Tetrault, on behalf of all those similarly situated, filed a putative class-action Complaint in this 

Court against Defendant Jack in the Box (Gessele I, Case No. 3:10- CV-00960-BR)1 for 

violation of the minimum-wage and overtime provisions of the Fair Labor Standards Act 

(FLSA), 29 U.S.C. § 201, et seq., and various Oregon wage-and-hour laws. 

On May 16, 2011, Jessica Gessele, Ashley Ortiz, Nicole Gessele, and Tricia Tetrault 

filed a First Amended Complaint in Gessele I in which they added Christina Mauldin as a named 

Plaintiff.

After resolving various motions on May 15, 2014, Judge Anna Brown entered a 

Judgment dismissing Gessele I without prejudice.

On June 10, 2014, Jessica Gessele, Ashley Ortiz, Nicole Gessele, Tricia Tetrault, 

Christina Mauldin, and Jason Diaz filed a putative class action against Jack in the Box in 

Multnomah County Circuit Court (Gessele II) in which they alleged claims for violation of 

Oregon’s wage-and-hour laws, violation of the FLSA, breach of fiduciary duty, and equitable 

and quasi-contractual claims for return of money.

On July 9, 2014, Defendant removed Gessele II to this Court on the ground of federalquestion jurisdiction based on Plaintiffs’ FLSA claims and/or jurisdiction under the Class Action 

1 In Gessele I Ashley Ortiz proceeded as Ashley Gessele and Christina Mauldin 

proceeded as Christina Luchau.

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Fairness Act, 28 U.S.C. § 1332(d)(2).

On July 16, 2014, Defendant filed an Answer to Plaintiffs’ Complaint in which it 

asserted sixteen affirmative defenses including authorized deductions, benefit to employees, and 

valid deduction.

On March 2, 2017, Plaintiffs filed a Motion for Rule 23(b)(3) Class Certification. 

On June 12, 2017, Judge Brown issued an Opinion and Order in which, among other 

things, she granted Plaintiff’s Motion to Certify the Shoe Class.

On May 3, 2019, Defendant filed five Motions for Summary Judgment.

On May 24, 2019, Plaintiffs filed ten Motions for Partial Summary Judgment including 

the following:

1. Motion for Partial Summary Judgment on the Issue of Prima Facie Liability on 

Their Shoe Claims

2. Motion for Partial Summary Judgment on Jack in the Box’s Third Affirmative 

Defense (Authorized Deductions)

3. Motion for Partial Summary Judgment on Jack in the Box’s Fourth Affirmative 

Defense (Benefit to Employees)

4. Motion for Partial Summary Judgment on Jack in the Box’s Fifth Affirmative 

Defense (Valid Deduction).

On November 13, 2019, Judge Brown issued an Opinion and Order in which she 

denied Plaintiff’s Motion for Partial Summary Judgment on the Issue of Prima Facie Liability on

Their Shoe Claims and granted in part and denied in part Plaintiffs’ Motion for Partial Summary 

Judgment on Jack in the Box’s Third Affirmative Defense (Authorized Deductions), Plaintiffs’ 

Motion for Partial Summary Judgment on Jack in the Box’s Fourth Affirmative Defense (Benefit 

to Employees), and Plaintiffs’ Motion for Partial Summary Judgment on Jack in the Box’s Fifth 

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Affirmative Defense (Valid Deduction).

On January 21, 2021, Gessele II was reassigned to this Court.

On July 27, 2021, Defendant filed a Motion to Decertify Shoe Deduction Claim in 

which it moves to decertify the Rule 23 shoe deduction class.

STANDARDS

“Parties seeking class certification bear the burden of demonstrating that they have met 

each of the four requirements of Federal Rule of Civil Procedure 23(a) and at least one of the 

requirements of Rule 23(b).” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979-80 (9th Cir. 

2011)(citation omitted). Rule 23(a) requires a party seeking class certification to establish:

(1) that the class is so large that joinder of all members is impracticable 

(numerosity); (2) that there are one or more questions of law or fact 

common to the class (commonality); (3) that the named parties' claims are 

typical of the class (typicality); and (4) that the class representatives will 

fairly and adequately protect the interests of other members of the class 

(adequacy of representation). 

Id. at 980 (citing Fed. R. Civ. P. 23(a)). “Federal Rule of Civil Procedure 23 . . . requires that 

‘questions of law or fact common to class members predominate’ over individualized issues.” 

Goldman Sachs Grp., Inc. v. Arkansas Tchr. Ret. Sys., 141 S. Ct. 1951, 1959 (2021)(quoting Fed. 

R. Civ. P. 23(b)(3)). Judge Brown certified shoe class pursuant to Rule 23(b)(3), which provides 

a “class action may be maintained if Rule 23(a) is satisfied” and “the court finds that the 

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.”

“Rule 23 does not set forth a mere pleading standard. A party seeking class 

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certification must affirmatively demonstrate his compliance with the Rule - that is, he must be 

prepared to prove that there are in fact sufficiently numerous parties, common questions of law 

or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011)(emphasis in original). 

Certification of a class “is proper only if the trial court is satisfied, after a rigorous analysis, that 

the prerequisites of Rule 23(a) have been satisfied.” Id. (quotation omitted).

“A district court may decertify a class at any time.” Rodriguez v. W. Publ’g Corp., 563 

F.3d 948, 966 (9th Cir. 2009)(citing 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.”). “[A] district court's order respecting class status is 

not final or irrevocable, but rather, it is inherently tentative.” Officers for Justice v. Civil Serv. 

Comm'n, 688 F.2d 615, 633 (9th Cir.1982). See also Patel v. Facebook, Inc., 932 F.3d 1264, 

1276 (9th Cir. 2019)(“if future decisions or circumstances” warrant, the “district court can 

decertify the class”). The burden remains on the plaintiffs to demonstrate that the requirements 

of Rules 23(a) and (b) are satisfied at all times before final judgment. Marlo v. United Parcel 

Serv., Inc., 639 F.3d 942, 947 (9th Cir. 2011)(The district court did not err when it decertified the 

class and “placed the burden on [the plaintiff] to demonstrate that Rule 23’s class-certification 

requirements had been met.”). 

SHOE DEDUCTION CLAIM PRIOR RULINGS

I. Shoe Class Background Information

During the period at issue Defendant required employees to wear closed-toe, non-slip 

shoes. Beginning in early 2003 Defendant required its employees to purchase non-slip shoes 

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from Shoes for Crews or another company.2 Defendant’s stores also have slip guards that 

employees can wear over their shoes when they forget to wear non-slip shoes or while they are 

waiting for their non-slip shoes to arrive. Employees, however, must eventually purchase their 

own non-slip shoes. Employees may either buy the non-slip shoes directly from Shoes for Crews 

or buy them through a payroll deduction. When employees buy the shoes through a payroll 

deduction, Defendant purchases the shoes from Shoes for Crews and deducts the price of the 

shoes from the employee’s wages. 

Shoes for Crews provided Defendant with a $2 rebate for every pair of shoes sold to 

one of Defendant’s employees. Defendant, however, did not pass on the $2 rebate to its 

employees. 

Defendant asserts that when it began requiring employees to purchase non-slip shoes 

from Shoes for Crews, Defendant required employees to do so through a paper order form that 

included an authorization that stated:

Shoes for Crews ® Voluntary Shoe Purchase Agreement

I do hereby authorize the Company to deduct the balance owed on my 

shoe purchase following the Payroll Department’s receipt of the Shoes for 

Crews invoice. If I terminate my position prior to the Shoes for Crews 

purchase being paid in full, I authorize the Company to deduct the unpaid 

balance from my final paycheck. I understand it is my responsibility to 

return shoes to the Shoes for Crews warehouse if a shoe size change or 

refund is desired. THIS IS A VOLUNTARY PROGRAM AND IS NOT A 

CONDITION OF EMPLOYMENT WITH THE COMPANY.

Decl. of Douglas Parker in Supp. of Def.’s Opp. to Pls.’ Mot. for Class Cert. (“Parker Decl.”), 

ECF 129, Ex. M at 19. Plaintiffs dispute that employees consistently used the written order form 

2 There is a dispute of fact as to whether employees were required to purchase non-slip 

shoes only from Shoes for Crews, but that dispute is not relevant to the current Motion.

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that included the written authorization. In addition, at some point telephone ordering of Shoes for 

Crews “became an option,” and the telephone ordering option did not include the authorization 

statement that was part of the paper order system. Parker Decl., Ex. W (“Pettijohn Dep.”) 57:7. 

Further, it is undisputed that Defendant destroyed various written company records, including the 

shoe-deduction authorization forms, whenever it sold its Oregon stores to franchisees. As a result 

“[n]othing is around from [Defendant] at any of the [Oregon stores]. All paperwork has been 

destroyed from the franchise transition.” Parker Decl., Ex. J (“Tennant Dep.”) 233:8-10. 

Defendant’s paper files were not digitized and sent to corporate, rather “[o]n the day of the 

[franchise] transitions we were directed to ensure that company things from the store were 

thrown out, as far as email programs and such, wiping those clean, to make sure there was no 

information that should be given to the franchisee.” Id. at 233:19-24. On February 7, 2011, 

however, Defendant instituted a new shoe purchase deduction program in which employee 

payroll authorizations began to be performed electronically and Defendant represents that the 

electronic authorizations “have been preserved since that time.” Decl. of James Stubblefield in 

Supp. Def’s Resp. to Pls.’ Mot. for Spoliation Sanctions, Gessele I, ¶ 8, ECF 228. As a result, 

there is no paper or electronic record of employees’ authorizations for shoe-purchase deductions 

before February 7, 2011.

II. Judge Brown’s Class Action Rulings

In their Motion for Rule 23(b)(3) Class Certification Plaintiffs sought, among other 

things, to certify the shoe class, which consists of Defendant’s Oregon employees who had a 

deduction from a paycheck to pay for non-slip shoes during the relevant period. Defendant did 

not dispute that the proposed shoe class satisfied the numerosity requirement of Rule 23(a). 

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Defendant, however, asserted Plaintiffs did not establish either the commonality or typicality 

requirements of Rule 23(a). Specifically, Defendant asserted in order to determine liability for 

shoe deductions, the Court would have to conduct an individualized inquiry for each employee 

as to whether: (1) the employee authorized shoe deductions using the shoe order form, (2) the 

deductions were for the employee’s benefit, and (3) the deductions took an employee below 

minimum wage or the required overtime rate.

In the June 12, 2017 Opinion and Order granting Plaintiffs’ Motion to Certify, Judge 

Brown noted that whether individual employees authorized shoe deductions using the shoe order 

form was an affirmative defense that applied to the merits of individual putative Plaintiffs’ 

claims. Judge Brown noted Plaintiffs’ allegations of spoliation by Defendant as to shoeauthorization forms also applied to the merits of Plaintiffs’ claim. Judge Brown, therefore, 

concluded those inquiries were not directly relevant to class-certification analysis. Judge Brown 

also concluded the question whether the shoe deductions were for the employees’ benefit 

pursuant Oregon Revised Statute § 652.610(3)(b) applied to the merits of Plaintiffs’ shoe claims 

and, therefore, was not directly relevant to the class-certification analysis. Ultimately, Judge 

Brown concluded Plaintiffs satisfied the requirements of Rule 23(a) with respect to the shoe 

class, that the questions of law or fact common to shoe class members predominated over any 

questions that only affect individual members, and that a class action was the best way to 

adjudicate the controversy fairly and efficiently. Judge Brown, however, specifically noted the 

Court could revise the shoe class if necessary after the parties litigated the merits of the 

spoliation and employee benefit issues. Accordingly, Judge Brown granted Plaintiffs’ Motion to 

Certify as to the shoe class, but indicated certification could be revisited in the future if 

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necessary. 

II. Judge Brown’s Rulings on Summary Judgment

A. Basis of Plaintiffs’ Shoe Claims

In their shoe claims Plaintiffs allege Defendant unlawfully deducted money 

from the paychecks of Plaintiffs and other Oregon employees for non-slip shoes. Defendant 

asserted in its third affirmative defense that Plaintiffs’ shoe claims fail “because Plaintiffs 

authorized any and all payroll deductions for employee shoe purchases.” Def.’s Answer at ¶ 78, 

ECF 5. Defendant asserted in its fourth affirmative defense that Plaintiffs’ shoe claims fail 

“because payroll deductions for shoe purchases were for Plaintiffs’ benefit” and in its fifth 

affirmative defense that Plaintiffs’ shoe claims fail “because payroll deductions for shoe 

purchases were compliant with ORS 652.610(3).” Def.’s Answer at ¶¶ 79, 80.

In their Motion for Partial Summary Judgment on the Issue of Prima Facie 

Liability on Their Shoe Claims Plaintiffs asserted Defendant wrongfully deducted the cost of 

non-slip shoes from Plaintiffs and other Oregon employees because non-slip shoes were part of 

the employees’ uniform and/or were another “item required by the employer to be worn . . . by 

the employee as a condition of employment.” Or. Admin. R. 839-020-0020(7). 

In their Motions for Partial Summary Judgment on Defendant’s third, fourth, 

and fifth affirmative defenses Plaintiffs asserted the shoe deductions were not for the private 

benefit of employees within the meaning of Oregon Revised Statute § 653.035(1), that the nonslip shoes were not for the benefit of employees within the meaning of O.R.S. 652.610(3)(b), that 

Defendant did not establish the shoe deductions were voluntarily authorized in writing, and that 

Defendant did not establish it was not the ultimate recipient of the money withheld.

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B. Deductions from Employees’ Wages Permitted under Oregon Law

Oregon Administrative Rules 839-020-0020(3) and (7) provide:

Employers may not deduct the cost of any of the following items 

from [an employee’s] minimum wage:

* * *

(3) Uniforms, including but not limited to, garments such 

as suits, dresses, aprons, and all other garments whatsoever 

as worn by the employees as a condition of employment. 

* * *

(7) Any other item required by the employer to be worn or 

used by the employee as a condition of employment.

Employers, however, may deduct from an employee’s minimum wage “[t]he fair market value of 

. . . facilities or services furnished by the employer to the employee for the private benefit of the 

employee.” O.R.S. 653.035(1)(emphasis added). Private benefit is defined in Oregon 

Administrative Rule 839–020–0025(7): 

[F]acilities or services are furnished for the private benefit of the 

employee when such . . . . facilities or services are not required by 

the employer. For purposes of this rule, lodging or other facilities 

or services are required by the employer when:

(a) Acceptance of the lodging or other facilities is a condition of 

the employee's employment; or

* * *

(c) The acceptance of the lodging or other facilities or services is 

involuntary or coerced.

O.R.S. 652.610(3) contains other exceptions to the rule that employers may 

not deduct certain items from employees’ minimum wages as follows:

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(3) An employer may not withhold, deduct or divert any portion of 

an employee's wages unless:

* * *

(b) The deductions are voluntarily authorized in writing by 

the employee, are for the employee's benefit and are 

recorded in the employer's books;3

(c) The employee has voluntarily signed an authorization 

for a deduction for any other item, provided that the 

ultimate recipient of the money withheld is not the 

employer and that the deduction is recorded in the 

employer's books.

C. Uniforms and/or Items Required by Defendant to be Worn as a 

Condition of Employment

 Plaintiffs asserted at summary judgment that non-slip shoes were part of the 

employees’ uniform or another “item required by [Defendant] to be worn . . . as a condition of 

employment,” and, therefore, Defendant was not permitted to deduct payments for non-slip 

shoes from the paychecks of Plaintiffs and other Oregon employees. Defendant asserted non-slip 

shoes were not part of their employees’ uniform within the meaning of O.A.R. 839-020-0020(3).

 Judge Brown concluded when an employer requires an employee to wear or 

to use an item as a condition of employment, the employer may not deduct the cost of that item 

from the employees’ minimum wage unless an exception applies. Judge Brown noted it was 

undisputed that Defendant required its employees to wear non-slip shoes (whether from Shoes 

for Crews or another brand). Thus, Judge Brown concluded pursuant to O.A.R. 839-020-0020(7)

that the cost of non-slip shoes (whether from Shoes for Crews or another brand) are an item that 

3 Plaintiffs do not dispute that Defendants recorded the shoe deductions in its books.

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Defendant was not allowed to deduct from Plaintiffs or other Oregon employees unless one of 

the exceptions set out in O.R.S. 653.035 or 652.610(3) applied.

D. Exceptions in O.R.S. 653.035 and 652.610(3)

In its affirmative defenses Defendant asserted that various exceptions to the 

prohibition on employers deducting the cost of uniforms or “other item[s] required by the 

employer to be worn or used by the employee as a condition of employment” applied. 

Specifically, Defendant asserted the non-slip shoes were for the private benefit of its employees 

within the meaning of O.R.S. 653.035(1) and/or Defendant satisfied the requirements of the 

exceptions found in O.R.S. 652.610(3)(b) and (c). 

1. Private Benefit under O.R.S 653.035(1)

Judge Brown concluded the non-slip shoes were not for the 

“private benefit” of employees within the meaning of O.R.S. 653.035(1) as defined in O.A.R. 

839-020-0025. O.R.S. 653.035(1), therefore, did not provide an exception that authorized 

Defendant to withhold payments for non-slip shoes from Plaintiffs and other employees. 

2. Benefit to Employees under O.R.S. 652.610(3)(b)

Judge Brown concluded Defendant established that the shoe 

deduction was for the employees’ benefit within the meaning of O.R.S. 652.610(3)(b). Judge 

Brown, therefore, concluded Defendant satisfied the second of the three requirements for the 

exception for an employee-benefit deduction pursuant to O.R.S. 652.610(3)(b).

3. Written Authorizations Required under O.R.S. 652.610(3)(b)

and (c)

Judge Brown concluded disputes of material fact existed as to 

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whether Defendant obtained written authorizations for the shoe deductions from Plaintiffs and 

other employees that precluded summary judgment on Defendant’s affirmative defenses of

authorized deductions and valid deduction. 

In reaching that conclusion Judge Brown rejected Plaintiffs’ 

spoliation argument. Specifically, Plaintiffs asserted the Court should exercise its inherent power 

to sanction Defendant for failing to preserve the written authorizations because Defendant’s 

actions constituted destruction of material evidence. Plaintiffs requested the Court to assume 

under the circumstances that Defendant did not, in fact, obtain any written authorizations from 

employees to deduct the cost of shoes. Judge Brown noted courts have “‘the inherent 

discretionary power to make appropriate evidentiary rulings in response to the destruction or 

spoliation of relevant evidence’” that “includes the power to sanction the responsible party by 

instructing the jury that it may infer that the spoiled or destroyed evidence would have been

unfavorable to the responsible party.” Med. Lab. Mgmt. Consultants v. Am. Broad. Co., Inc., 306 

F.3d 806, 824 (9th Cir. 2002)(quoting Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993)). 

See also Ingham v. United States, 167 F.3d 1240, 1246 (9th Cir. 1999)(“To be actionable, the 

spoliation of evidence must damage the right of a party to bring an action.”). In this case, 

however, the written authorizations for the shoe deductions that were destroyed would have 

supported Defendant’s affirmative defenses as to its liability for the payroll deductions. Judge 

Brown, therefore, concluded the destruction of any written authorizations harmed Defendant’s 

ability to prove that it complied with the requirements of O.R.S. 652.610(3)(b) and (c). 

Accordingly, Judge Brown concluded the spoliation doctrine was not applicable and declined to 

infer that Defendant never obtained any written authorizations for shoe deductions.

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Judge Brown also noted the record reflected Plaintiffs’ experiences 

with the written authorizations varied widely. For example, Ashley Gessele testified she filled 

out an order form for each pair of shoes she ordered from Shoes for Crews that contained a 

statement authorizing Defendant to deduct the price of the shoes from her paycheck. Nicole 

Gessele testified she ordered shoes from Shoes for Crews from a catalogue that contained an 

order form with the same authorizing language. Nicole Gessele, however, could not remember 

whether she filled out the order form that contained the authorization to deduct the balance from 

her wages or whether she “just called [her order] in over the phone.” Parker Decl., Ex. C 

(“Nicole Gessele Dep.”) 71:9-15. Tricia Tetrault testified she ordered shoes from Shoes for 

Crews through a catalogue that contained an order form authorizing Defendant to deduct the cost 

of the shoes from her wages, but she could not remember whether she had “ever fill[ed] . . . out” 

an order form with the authorization. Parker Decl., Ex. E (“Tetrault Dep.”) 67:14-19. Jessica 

Gessele testified: “I know there [were] order forms available, but nobody ever used them . . . . I 

don’t ever remember filling one out. . . . I never - I personally never have seen anybody use an 

order form, to put it in better words.” Parker Decl., Ex. B (“Jessica Gessele Dep.”) 95:15-22. 

Jessica Gessele explained she would tell her manager which Shoes for Crews shoes she wanted,

and her manager would order them. Later in her employment with Defendant, Jessica Gessele 

ordered shoes for other employees. When she did so, her process was to “ask[] them for their 

Social Security number, and they would write down their Social Security number and the style of 

shoes they want, and I would call it in” to Shoes for Crews. Id. at 96:21-97:1. Christina Mauldin 

testified she did not remember ever filling out an order form for shoes. When she was a team 

leader she would order shoes for other employees as follows: “The employee would write down 

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their Social Security number. And we would just call Shoes for Crews, put in a payroll order. 

They would give them the shoe size and the style number, and they would be shipped to the 

[restaurant].” Parker Decl., Ex. D (“Mauldin Dep.”) at 116:13-17. In addition, managers testified 

to disparate experiences ordering shoes. For example, Jeffrey Tennant testified that “a superior” 

instructed him to have employees fill out the Shoes for Crews order form that included an 

authorization to deduct the cost of the shoes from the employee’s wages. Tennant Dep. 231:6-14. 

Patty Jones stated “[s]ome of my employees, but not all, filled out the order forms and I would 

use that form to order shoes. Usually the graveyard employees filled out the order forms.” Decl. 

of Patty Jones at ¶ 12, ECF 133. Ryan Leach testified he “helped many employees order shoes 

by calling Shoes for Crews if that is the shoe they wanted,” but some “of [his] employees would 

fill out the order form.” Decl. of Ryan Leach at ¶¶ 11-12, ECF 134. Vincent O’Rourke stated 

employees “often filled out the order forms before ordering shoes.” Decl. of Vincent O’Rourke 

at ¶ 8. Jennifer Barker stated that she, a team leader, or an assistant manager “ordered shoes over 

the phone for employees. . . . Occasionally an employee would fill out the order form that came 

with the catalog sent to the restaurant.” Decl. of Jennifer Barker at ¶ 12, ECF 130.

On this record Judge Brown concluded there was a dispute of 

material fact as to whether Plaintiffs and other employees authorized Defendant in writing to 

take the shoe deductions from their paychecks. Accordingly, Judge Brown denied in part 

Plaintiffs’ Motions for Summary Judgment as to Defendant’s third and fifth affirmative defenses 

to the extent that Plaintiffs’ Motions and those affirmative defenses were premised on written 

authorizations required under O.R.S. 652.610(3)(b) and (c).

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4. Ultimate Recipient of the Money Withheld

Plaintiffs asserted at summary judgment that Defendant could not 

establish that it was not the ultimate recipient of at least some of the money withheld from 

employees’ paychecks for shoes purchased from Shoes for Crews in light of the fact that 

Defendant received a $2 per pair rebate from Shoes for Crews. Judge Brown concluded Plaintiffs 

established that Defendant was the “ultimate recipient of . . . money withheld” from its 

employees, and, therefore, that Defendant had not satisfied the second element of O.R.S. 

652.610(3)(c). Accordingly, Judge Brown concluded Defendant did not establish that it was 

permitted to withhold Shoes for Crews payments from its employees pursuant to O.R.S. 

652.610(3)(c).

DEFENDANT’S MOTION TO DECERTIFY SHOE DEDUCTION CLAIM

Defendant moves for an order decertifying Plaintiffs’ shoe deduction claim on the 

basis that Judge Brown’s rulings on summary judgment make clear that class members’ shoe 

deduction claims cannot be resolved without an individualized inquiry into whether each class 

member provided a written authorization for each shoe deduction, which would necessitate 

calling thousands of class members as witnesses. According to Defendant, therefore, common 

questions of fact do not predominate over questions affecting only individual members and the 

shoe claim no longer satisfies the requirements of Rule 23(b)(3).

Plaintiffs oppose Defendant’s motion on the grounds that (1) there has not been any 

change in law or fact to support revisiting certification, (2) affirmative defenses rarely defeat 

certification, (3) the shoe class’s other elements are susceptible to class treatment, (4) secondary 

evidence of the written authorizations is not admissible and cannot create an issue of fact, and (5) 

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the Court can address the written authorization issue through a post-verdict claims process.

I. Change in Law or Fact

Plaintiffs assert there has not been any change in law or fact to support revisiting 

certification. The Ninth Circuit, however, has made clear that courts “retain[] the flexibility to 

address problems with a certified class as they arise.” United Steel, Paper & Forestry, Rubber, 

Mfg. Energy, Allied Indus. & Serv. Workers Int'l Union, AFL–CIO, CLC v. ConocoPhillips Co., 

593 F.3d 802, 809 (9th Cir. 2010)(quoting Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 

1975)). This is in part because “‘neither the possibility that a plaintiff will be unable to prove his 

allegations, nor the possibility that the later course of the suit might unforeseeably prove the 

original decision to certify the class wrong, is a basis for declining to certify a class which 

apparently satisfies’” the requirements of Rule 23. United Steel, 593 F.3d at 809. At the class 

certification stage the court evaluates only whether the class apparently satisfies the requirements 

of Rule 23(b)(3). See, e.g., Villanueva v. Liberty Acquisitions Serv., LLC, 319 F.R.D. 307, 318 

(D. Or. 2017)(“discussing the merits of a claim or affirmative defense is typically not part of the 

class certification analysis”)(citing Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003)(the court 

should not “advance a decision on the merits to the class certification stage.”)). If after summary 

judgment or other developments in the case it becomes apparent that certification of the class 

may no longer be reasonable, the court retains the flexibility to reevaluate the certification issue. 

Here the record reflects Judge Brown granted Plaintiffs’ Motion to Certify as to the 

shoe class, but specifically indicated the certification issue could be revisited after summary 

judgment if necessary. As noted, at summary judgment Judge Brown concluded the spoliation 

doctrine did not apply to the issue of written authorizations and that disputes of material fact 

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precluded summary judgment as to whether Plaintiffs and other employees provided written 

authorizations for each shoe deduction. The Court concludes that these rulings taken together 

provide a sufficient change in the law or facts of this case to merit the reevaluation of 

certification of the shoe deduction class. 

To the extent that Plaintiffs assert decertification of the shoe class would prejudice all 

of the shoe class members who already “won at least partial summary judgment” on Defendant’s 

third, fourth, and fifth affirmative defenses, the Court does not intend to revisit Judge Brown’s 

rulings related to whether the shoe deductions were for the private benefit of employees under 

O.R.S. 653.035(1) or for the benefit of employees under O.R.S. 652.610(3)(b), the spoliation 

issues, or the conclusion that Defendant was not permitted to withhold shoe deductions from 

employees pursuant to O.R.S. 653.610(3)(c). The sole remaining basis on which Defendant can

establish it properly took shoe deductions from Plaintiffs’ paychecks is pursuant to O.R.S. 

652.610(3)(b). Shoe class members, therefore, are not prejudiced by the decertification of the 

shoe class.

II. Affirmative Defenses Rarely Defeat Certification

Plaintiffs state they do not assert that affirmative defenses are irrelevant to the question 

of class certification, but they point out that affirmative defenses rarely defeat certification. 

Plaintiffs rely on a number of cases in which courts have noted that although “[a]ffirmative 

defenses should be considered in making class certification decisions[,] . . . [c]ourts traditionally 

have been reluctant to deny class action status under Rule 23(b)(3) simply because affirmative 

defenses may be available against individual members.” Villanueva, 319 F.R.D. at 317 (citing 

Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 39 (1st Cir. 2003); Cameron v. E.M. Adams & 

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Co., 547 F.2d 473, 478 (9th Cir. 1976)). The cases Plaintiffs rely on, however, were decided 

before summary judgment or litigation on the merits of the claims or affirmative defenses.

Here Defendants’ affirmative defenses of authorized deduction and valid deduction are 

not theoretical defenses that might apply at some point. Rather, at summary judgment Defendant 

established there is a genuine dispute of material fact as to whether Plaintiffs and other 

employees signed forms authorizing Defendants to take shoe deductions. This question is central 

to Plaintiffs’ shoe deduction claim and the affirmative defenses.

As to Plaintiffs’ assertion that the Court can address any individualized issues 

pertaining to the shoe deduction affirmative defenses at the damages phase, Plaintiff overlooks 

the significance of the written authorizations to the liability issue. Specifically, to the extent 

Plaintiffs and other employees signed written authorizations for shoe deductions, Defendant was 

permitted to take those deductions pursuant to O.R.S. 652.610(3)(b), Defendant is not liable for 

improper deductions, and Plaintiffs are not entitled to damages. The Court, therefore, concludes 

these are the rare circumstances under which an affirmative defense undermines class 

certification.

III. The Shoe Class’s Other Elements

Plaintiffs assert the Court should not decertify the shoe class on the basis that the shoe 

class’s other elements and causes of action are susceptible to class treatment. Specifically, 

Plaintiffs assert even if written authorization for the shoe deductions was an individualized 

inquiry, Defendant’s affirmative defenses of valid and authorized deductions under O.R.S. 

652.610(3)(b) has other elements that can be decided on a class-wide basis. Plaintiffs contend, 

for example, that the jury could decide that the shoe deductions were not for the employee’s 

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benefit or that the shoe deductions were not recorded in the employer’s books. Plaintiffs,

however, have never disputed that Defendant recorded employees’ shoe deductions in its payroll 

records. In addition, Judge Brown concluded at summary judgment that the shoe deduction was 

not for the employees’ private benefit under O.R.S. 653.035(1), but it was for the employees’ 

benefit within the meaning of O.R.S. 652.610(3)(b). As noted, the Court declines to revisit Judge 

Brown’s rulings on summary judgment. Accordingly, whether the shoe class remains certified or 

not, the jury will not decide the issue of employee benefit under either O.R.S. 653.035(1) or 

652.610(3)(b). Finally, even if other elements of Plaintiffs’ shoe deduction claim have common 

issues of law or fact, Plaintiffs still have not established that the written authorization element of 

Defendant’s affirmative defenses presents a question common to class members that 

predominates over individualized issues.

IV. Secondary Evidence

Plaintiffs assert the Court should deny Defendant’s Motion to Decertify because 

Defendant has not established that it will be permitted to present secondary evidence to attempt 

to establish that Plaintiffs and other employees signed written authorizations. Specifically, 

Plaintiffs assert Federal Rule of Evidence 1002 provides “[a]n original writing . . . is required in 

order to prove its content.” In addition, Federal Rule of Evidence 1004(a) provides an original 

writing “is not required and other evidence of the content of a writing . . . is admissible if . . . all 

the originals are lost or destroyed, and not by the proponent acting in bad faith.” According to 

Plaintiff, Defendant’s instructions to its restaurant managers to destroy the written authorizations 

during the final franchise transition constitutes bad faith, and, therefore, Defendant may not be 

permitted to introduce evidence of the written authorizations. 

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Plaintiffs, however, do not point to any evidence that Defendant instructed its 

managers to destroy the written authorizations in bad faith. In fact, Defendant’s corporate 

counsel testified in his Declaration that Defendant’s practice during the relevant period was 

when a store was sold to a franchisee, Defendant destroyed all records “that contained nonpublic information pertaining to the company or its employees” stored at that location in order to 

“protect[] [Defendant’s] sensitive and confidential financial information, and [to] protect[] the 

personal identifying information of former Jack in the Box employees.” Stubblefield Decl., 

Gessele I at ¶ 9, ECF 228. Shoe deduction authorizations were not the only records destroyed 

during the transition process. Rather, Defendant also purged documents such as “cash and sales 

sheets, used and unused deposit slips, emergency action plan documents, company specific 

posters, applications/hire paperwork, . . . employee write-ups and other disciplinary records, and 

OSHA compliance documents.” Id. In addition, the evidence reflects throughout the relevant 

period and even before the last of Defendant’s stores were sold to franchisees some store 

managers threw out the written authorizations immediately or discarded them at the end of the 

quarter.

Finally, the Court concludes it would not be reasonable for the Court to infer that 

Defendant’s destruction of the written authorizations was done in bad faith. As noted, the 

evidence of written authorizations would have assisted Defendant’s case. If Defendant had 

retained written authorizations, Defendant would have been able to prove its compliance with 

O.R.S. 652.610(3)(b) clearly at summary judgment.

On this record, the Court concludes Plaintiffs have not established Defendant 

destroyed the written authorizations in bad faith. Accordingly, the Court declines to conclude the 

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shoe class should not be decertified on the basis that Defendant has not established that it will be 

permitted to present secondary evidence to attempt to establish that Plaintiffs and other 

employees signed written authorizations.

V. Subclasses or Post-Verdict Claims Process

Plaintiffs assert the Court should not decertify the shoe class because affirmative 

defenses are “usually dealt with either by the creation of subclasses or through a post-verdict 

claim process.” Pls.’ Resp. at 11 , ECF 263. Plaintiffs fail to specify any particular subclasses or 

to describe any specific post-verdict claim process that they assert would cure the individualized 

inquiry issue. The Court, however, concludes this record supports the possibility of the division 

of named and putative Plaintiffs into two subclasses: those who signed waivers for shoe 

deductions and those who did not. Because it is possible for at least one subclass of Plaintiffs to 

proceed with the shoe deduction claims the Court denies Defendant’s Motion to Decertify Shoe 

Deduction Claim.

CONCLUSION

For these reasons, the Court DENIES Defendant’s Motion to Decertify Shoe 

Deduction Claim [253].

IT IS SO ORDERED.

 

 

MARCO A. HERNÁNDEZ

United States District Judge

DATED this ______ day of December, 2021. 1

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