David Ribot et al v. Farmers Insurance Group et al, No. 2:2011cv02404 - Document 222 (C.D. Cal. 2013)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR CLASS CERTIFICATION AND MOTION FOR CONDITIONAL CERTIFICATION 127 , 135 by Judge Dean D. Pregerson . (lc) . Modified on 7/18/2013 (lc).
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David Ribot et al v. Farmers Insurance Group et al Doc. 222 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 DAVID RIBOT, PERRY HALL, JR., DEBORAH MILLS, ANTHONY BUTLER, JENNIFER BUTLER, JONATHAN LUNA and LOIS BARNES, individually, and on behalf of all others similarly situated, 15 16 17 18 19 Plaintiffs, v. FARMERS INSURANCE GROUP, FARMERS INSURANCE EXCHANGE, 21st CENTURY INSURANCE COMPANY and AIG INSURANCE SERVICE, INC., 20 21 22 Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 11-02404 DDP (FMOx) ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR CLASS CERTIFICATION AND MOTION FOR CONDITIONAL CERTIFICATION [Dkt. Nos. 127 & 135] Presently before the court are Plaintiff David Ribot, Perry 23 Hall, Jr., Deborah Mills, Anthony Butler, Jennifer Butler, Jonathan 24 Luna, and Lois Barnes (collectively “Plaintiffs”)’s Motion for 25 Class Certification Pursuant to Federal Rule of Civil Procedure 23 26 (“Class Certification Motion”) and Motion for Conditional 27 Certification Under 29 U.S.C. 216(b) (“Conditional Certification 28 Motion”). Having considered the parties’ submissions and Dockets.Justia.com 1 supplemental briefing and heard oral argument, the court adopts the 2 following order. 3 I. BACKGROUND 4 Plaintiffs are current and former employees of Farmers 5 Insurance and Twenty-First Century Insurance Company1 who worked as 6 “Customer Service Representatives” (“CSRs”) in call centers, called 7 ServicePoints and Help Points, in California, Oregon, Kansas, 8 Texas, and Michigan. (Second Amended Complaint (“SAC”) ¶¶ 1.4-1.5.) 9 Plaintiffs’ “principal job duty” was “to handle in-bound telephone 10 calls from insurance agents and policyholders, to answer questions 11 concerning home and automobile insurance policies, provide agents 12 with technical support, underwriting advice, and assistance with 13 billing and customer service to policy holders.” 14 Plaintiffs allege that they were “required to arrive approximately 15 15 minutes before their scheduled shift in order to boot up their 16 computers, load programs, log on to the telephone system, review 17 emails and other essential work activities.” 18 also allege that they performed post-shift duties, “including 19 customer service calls that extend beyond the end of their shift 20 and the tasks associated with shutting down their computer 21 systems,” for which they were not compensated. 22 (Id. ¶ 6.3.) (Id. ¶ 1.7.) They (Id.) Plaintiffs filed their original Complaint on March 22, 2011. 23 In July 2011, Plaintiffs learned of an investigation by the 24 Department of Labor Wage and Hour Division (“DOL”) into similar 25 allegations at facilities in Oklahoma, Kansas, Oregon, Michigan, 26 and Texas. Farmers and the DOL settled those claims on June 15, 27 28 1 Acquired by Farmers in 2009. 2 1 2011. 2 indicate that Farmers changed its policy, requiring employees to 3 log into the phone prior to booting up the computer and other 4 activities. 5 was in compliance at ServicePoint locations by February 1, 2010, 6 and at HelpPoint locations by May 10, 2010. 7 II. CLASS CERTIFICATION 8 (Mot., Exhs. 1-3, FLSA Narratives.) (See, e.g., Exh. 3 at 5.) The DOL reports The DOL found that Farmers Plaintiffs seek certification of five state law class actions 9 to recover unpaid wages, overtime compensation, liquidated damages, 10 attorneys’ fees, and costs on behalf of current and former Customer 11 Service Representatives (“CSRs”) who are alleged to have been 12 required to perform off-the-clock work. 13 Farmers or 21st Century Insurance facilities in one of five states 14 (California, Kansas, Texas, Michigan, Oregon). Each class comprises 15 A. Legal Standard 16 The party seeking class certification bears the burden of 17 showing that each of the four requirements of Rule 23(a) and at 18 least one of the requirements of Rule 23(b) are met. 19 Dataprods. Corp., 976 F.2d 497, 508-09 (9th Cir. 1992). 20 sets forth four prerequisites for class certification: See Hanon v. Rule 23(a) 21 (1) the class is so numerous that joinder of all members is 22 impracticable; (2) there are questions of law or fact 23 common to the class; (3) the claims or defenses of the 24 representative 25 defenses of the class; and (4) the representative parties 26 will fairly and adequately protect the interests of the 27 class. parties are typical 28 3 of the claims or 1 Fed. R. Civ. P. 23(a); Hanon, 976 F.2d at 508. These four 2 requirements are often referred to as numerosity, commonality, 3 typicality, and adequacy. 4 Falcon, 457 U.S. 147, 156 (1982). 5 a class action, the question is not whether the plaintiff or 6 plaintiffs have stated a cause of action or will prevail on the 7 merits, but rather whether the requirements of Rule 23 are met.” 8 Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (internal 9 quotation marks and citation omitted). See Gen. Tel. Co. of Southwest v. “In determining the propriety of This court, therefore, 10 considers the merits of the underlying claim to the extent that the 11 merits overlap with the Rule 23(a) requirements, but will not 12 conduct a “mini-trial” or determine at this stage whether 13 Plaintiffs could actually prevail. 14 Corp., 657 F.3d 970, 981, 983 n.8 (9th Cir. 2011). 15 B. Discussion 1. Ascertainability 16 17 Ellis v. Costco Wholesale “Although there is no explicit requirement concerning the 18 class definition in FRCP 23, courts have held that the class must 19 be adequately defined and clearly ascertainable before a class 20 action may proceed.” 21 516, 523 (C.D. Cal. 2011)(internal citations and quotation marks 22 omitted). 23 the class is definite enough so that it is administratively 24 feasible for the court to ascertain whether an individual is a 25 member.” 26 319 (C.D.Cal. 1998). 27 28 Pryor v. Aerotek Scientific, LLC, 278 F.R.D. “[A] class will be found to exist if the description of O'Connor v. Boeing North American, Inc., 184 F.R.D. 311, Defendants assert that the class is not ascertainable because the class definitions contain “representative job titles” rather 4 1 than a fixed set of positions or job descriptions. 2 Cert. at 28; for class definitions, see Class Cert. Motion, Exh. 3 44.) 4 contradict Plaintiffs’ papers where the putative class is defined 5 as including employees with “customer facing job positions” whose 6 “central job duty was to take inbound telephone calls from 7 Defendants’ policyholders and agents.” 8 9 (Opp. to Class They also assert that these “representative job titles” (Class Cert. Motion at 13.) The court finds that identifying the class members by their function rather than their position or title does not make it 10 infeasible to determine which employees are class members. For 11 purposes of clarity, the court modifies each class definition to 12 include the more specific description of the job function, as 13 follows: 14 All persons who are, or have been, employed by Farmers 15 Services, LLC., and/or Farmers Insurance Exchange in the 16 State of [state name] as call center employees who 17 performed the job duties of a “Customer Service 18 Representative” or a similar customer-facing job position 19 with the central duty of taking inbound telephone calls 20 from policyholders and agents, during the time period 21 between [date] and [date]. 22 23 (Emphasis indicates the court’s modifications.) 2. Overbreadth a. Start date of class period 24 25 Defendants also assert that the class is overbroad because it 26 includes members whose claims are barred by state statutes of 27 limitations. 28 four year statute of limitations. For instance, the claims under California law have a Cal. Bus. & Prof. Code § 17208. 5 1 The action was filed on March 22, 2011, so the class period would 2 ordinarily begin no earlier than March 22, 2007. 3 California class period is defined as beginning on July 22, 2005. 4 (Class Cert. Mot., Exh. 44.) 5 arrived at this class period by adding on a 19-month tolling period 6 based on the DOL-Farmers Tolling Agreement. 7 32.) 8 However, the Defendants speculate that Plaintiffs (Martoccia Decl., Exh. i. DOL-Farmers Tolling Agreement 9 The Tolling Agreement states that the “Secretary or affected 10 employees may ultimately bring legal proceedings under the Act,” 11 but that in order to allow time for settlement discussions, “the 12 Firm agrees not to raise this tolling period in any other defense 13 raised by the Firm (including laches) that otherwise would be 14 available to the Firm concerning the timeliness of any legal 15 proceedings that may be brought against the Firm.” 16 Decl. Exh. 32.) 17 (Martoccia Defendants argue that the Tolling Agreement “tolls only the 18 DOL’s ability to commence an action pending the resolution of the 19 DOL investigation” and that because putative class members are “not 20 parties to the agreement,” it does not apply to suits initiated by 21 them. 22 agreement does not apply to state law claims because it does not 23 mention such claims. (Id.) 24 (Opp. at 29 n. 108.) They also argue that the tolling Plaintiffs assert that according to its plain language, the 25 Tolling Agreement bars Farmers from asserting any statute of 26 limitations argument, no matter the cause of action or the party 27 asserting that cause of action. 28 6 1 The court finds that the Tolling Agreement is reasonably 2 interpreted as applying only to claims under the FLSA, not to state 3 law claims. 4 frames the purpose of the Agreement by stating that “[t]he 5 Secretary or affected employees may ultimately bring legal 6 proceedings under the Act. 7 limitations . . . may bar the assertion of certain rights under the 8 Act . . .” (Martoccia Decl., Exh. 32 at FIE001163 (emphasis 9 added).) The Tolling Agreement mentions only FLSA claims. It However, the running of the statute of Additionally, paragraph 5 states that “The Firm agrees 10 that this Agreement . . . may be introduced into evidence as proof 11 of the tolling agreed to herein, in all legal proceedings that may 12 be brought pursuant to Sections 16(b), 16(c), and/or 17 of the 13 Act.” (Id. at FIE001164.) ii. Conclusion on class period start date 14 15 Because the statute of limitations is tolled only for claims 16 under the FLSA, the putative class, which is asserting only state 17 law claims, cannot benefit from it. 18 date of all classes should reflect the relevant state law statute 19 of limitations without including any tolling on the basis of the 20 DOL-Farmers Tolling Agreement.2 b. End date of class period 21 22 For this reason, the start Defendants also assert that the class period is overbroad 23 because of the modification of phone login procedures at 24 ServicePoint contact centers after February 1, 2010, and at 25 HelpPoint contact centers after May 10, 2010. According to the 26 27 28 2 This modification of class start dates does not affect any other potential claims to tolling that class members might ultimately assert, apart from the DOL-Farmers Tolling Agreement. 7 1 DOL, these changes brought Farmers into compliance; Plaintiffs do 2 not contest that the violations related to pre-shift work ceased 3 with the modification of the log-in procedures. 4 Cert at 29.) 5 court finds that Plaintiffs have presented a common question of law 6 and fact only as to their claims regarding pre-shift work. 7 class is accordingly limited to the period prior to the change in 8 policy regarding log-on procedures, namely February 1, 2010, at 9 ServicePoint contact centers and May 10, 2010, at HelpPoint contact 10 (Opp. to Class As discussed in sections II.B.4.b.iii-iv below, the The centers. 3. Numerosity 11 To meet the requirements of Rule 23(a), Plaintiffs must first 12 13 demonstrate that “the class is so numerous that joinder of all 14 members is impracticable.” 15 typically find the numerosity requirement satisfied when a class 16 includes 40 or more members. 17 646, 651 (9th Cir. 2010). Fed. R. Civ. P. 23(a)(1). Courts will See Rannis v. Recchia, 380 Fed. Appx. Plaintiffs’ evidence of numerosity is the FLSA Narrative 18 19 Report, which identified 1,288 affected employees in Kansas, 446 in 20 Oregon, 650 in Michigan, and 557 in Texas. 21 also provide deposition testimony on the number of customer service 22 representatives at various facilities. 23 36:2-36-17; A. Butler Depo 43:10-17; J. Butler Depo 33:8-11; 24 Salgado Depo. 25:12-15; Peters Depo. 37:23-38:10; Ribot Depo. 39:1- 25 5.) 26 evidence that each state class meets the numerosity requirement. 27 The court disagrees. 28 not establish the exact size of the class but does establish that (Exh. 3, 5-6.) They (See Thomas Dep. 25:4-8, Defendants argue that Plaintiff have not presented any Plaintiffs have presented evidence that does 8 1 each subclass contains a large number of members, and Defendants 2 have presented no evidence suggesting otherwise. 3 size of the class is unknown but general knowledge and common sense 4 indicate that it is large, the numerosity requirement is 5 satisfied.” 6 (C.D. Cal. 1982). 7 Orantes-Hernandez v. Smith, 541 F. Supp. 351, 370 The court finds that the numerosity requirement is satisfied. 4. Commonality 8 9 “Where the exact Second, Plaintiff must demonstrate that “there are questions 10 of law or fact common to the class.” 11 “Rule 23(a)(2) has been construed permissively. 12 fact and law need not be common to satisfy the rule. 13 of shared legal issues with divergent factual predicates is 14 sufficient . . . .” 15 (9th Cir. 1998). 16 do,” so long as that question has the capacity to generate a common 17 answer “apt to drive the resolution of the litigation.” 18 Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551, 2556 (2011) (internal 19 quotation marks omitted). 20 Fed. R. Civ. P. 23(a)(2). All questions of The existence Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 Indeed, “[e]ven a single [common] question will Wal-Mart Defendants challenge Plaintiffs’ showing of commonality on the 21 grounds that they have not offered any evidence to support their 22 specific state law causes of action; they have not shown a common 23 policy to require off-the-clock work; and they have not offered a 24 viable method of demonstrating class-wide injury based on common 25 proof. 26 27 28 a. State Law Causes of Action Defendants argue that Plaintiffs have not offered any evidence to support their causes of action under state law, which include 9 1 failure to pay minimum wage, failure to compensate for overtime, 2 breach of contract, quantum meruit, failure to provide adequate 3 wage statements, and failure to pay all wages owed upon 4 termination. 5 that Plaintiffs have failed to show how they can establish the 6 elements of each state law claim on a classwide basis. 7 respect to breach of contact, for instance, Defendants assert that 8 Plaintiffs do not set forth the terms of any contracts, explain how 9 they were breached, or explain how to adjudicate such a cause of 10 11 (Opp. to Class Cert. at 13-18.) action on a classwide basis. Defendants assert With (Id. at 15.) Plaintiffs contend that they do not need to present such 12 evidence at this time. 13 have presented evidence of common questions of law and fact 14 centering on the issue of why customer service representatives were 15 not paid for work they did before and after their shifts. 16 Resolving these common questions will be the basis for determining 17 whether there were violations of state laws during the merits 18 phase. 19 determination of damages, which does not in itself defeat class 20 certification even if it is not susceptible to class treatment. 21 See Yokoyama v. Midland Nat. Life Ins. Co., 594 F.3d 1087, 1089 22 (9th Cir. 2010)(internal quotation marks and citation omitted)(“The 23 potential existence of individualized damage assessments . . . does 24 not detract from the action's suitability for class certification. 25 Our court long ago observed that the amount of damages is 26 invariably an individual question and does not defeat class action 27 treatment.”). (Reply to Class Cert. at 6.) They claim to They compare the determination on state law claims to 28 10 1 The court agrees with Plaintiffs that if they establish a 2 common question of fact as to pre-shift and/or other off-the-clock 3 work, the issue of whether those facts ultimately violate state 4 laws can be determined at a later phase and is comparable to a 5 damages calculation, which does not defeat class treatment even if 6 it involves individual calculations. b. Common Policy 7 8 Defendants assert that Plaintiffs have not provided proof of a 9 common policy of requiring off-the-clock work, and that they cannot 10 make such a showing because Defendants have always prohibited off- 11 the-clock work.3 12 have provided proof of a number of common policies relevant to the 13 alleged off-the-clock work requirement. 14 each purported policy separately. The court shall address i. Instructions from supervisors 15 16 Plaintiffs respond that, to the contrary, they Plaintiffs have presented substantial deposition testimony to 17 the effect that supervisors instructed customer service 18 representatives that they needed to be ready to work by the time 19 their shift started, implying or explicitly stating that employees 20 needed to arrive early to perform preliminary tasks. 21 Exh. 28, Lampton Depo., 47:18-20 (“You were just told if – if you 22 were not ready and working by 8:00, that there was a possibility 23 that you could be written up, counseled.”); id. 83:10-11 (a manager 24 repeatedly “said that policy was everybody was to be at their desk See, e.g., 25 26 27 28 3 Defendants refer generally to employee handbooks without point to specific sections, citing Andernacht Decl., Exh. A; Booth Decl., Exh. C; and Lingo Decl., Exh. D. The court declines to scour the 50-70 page handbooks for passages where off-the-clock work is prohibited. 11 1 ready to work at their scheduled time.”); Exh. 38, Ernst Depo., 2 123:25-124:7 (it was verbally communicated that employees needed to 3 be ready to answer calls at the beginning of their shift); Exh. 29, 4 A. Butler Depo., 92:9-92:21; 146:20-24 (“So if a customer service 5 representative did not arrive early enough to perform the pre-shift 6 tasks before their scheduled shift they were ‘talked to’ by 7 management instead of ‘admonished’”); Exh. 36, Mills Depo., 89:24- 8 90:17 (“So when the 8:00 o’clock time came, or whatever time you’re 9 supposed to time in, you can get into the computer – not get into 10 it, but be able to navigate it to get all ready to go . . .”); Exh. 11 32, Thomas Depo., 34:3-11 (“We were told that we need to be ready 12 for work at our scheduled time, we need to be on the phone at that 13 time . . . . At one point we were told that we needed to come in 14 earlier so that we could log on and be on our phone at our 15 scheduled time.”); Exh. 37, Peters Depo., 33:24-34:1 (“[T]hey 16 advised us that we need to be up and going by our time – when our 17 time starts. 18 Luna Depo., 60:7-8 (“[W]e were told to show up 10 to 15 minutes 19 prior to our shift starting.”). 20 2-3 nn. 3-6.) 21 Be willing – able to take a call.”); and Exh. 35, (See also Reply to Class Cert. at This testimony from multiple facilities is sufficient evidence 22 that supervisors instructed employees to arrive early to perform 23 functions necessary to being ready to work at their designated 24 shift time. 25 ii. Schedule adherence 26 Plaintiffs argue that “CSRs were presented with a no-win 27 situation: comply with Defendants’ policy to perform pre-shift work 28 every day while off-the-clock, or start working at their scheduled 12 1 time, but be considered out-of-adherence, tardy, and be unable to 2 effectively perform their duties.” 3 Plaintiffs point to the “schedule adherence” metric used in 4 employee performance evaluations. 5 availability to take calls while logged into the system. A CSR is 6 out of adherence if she is logged in but unavailable to take calls, 7 as indicated by a code she enters into the phone. One employee 8 explained schedule adherence as follows: 9 (Class Cert. Mot. at 9.) Adherence measures a CSR’s Farmers scheduled you to be in different work modes 10 throughout the workday such as “available,” “lunch,” or 11 “meeting.” 12 up with the work mode that was scheduled for you, you’d 13 be considered “out of adherence,” which would negatively 14 impact your performance scores. 15 If you were in a work mode that did not match Farmers scheduled you to be in “available” mode at 16 the start of your shift or very soon thereafter. 17 However, once you clicked “available,” you would almost 18 immediately start receiving calls from customers. 19 you started receiving calls without first having all of 20 your programs up and running, you wouldn’t be prepared 21 with the tools needed to effectively help the customer in 22 a timely manner. . . . 23 So, if The only other option you had at the start of your 24 shift was to use “aux” mode while you waited for your 25 programs to finish loading. 26 calls while being in “aux,” so it hurt your adherence 27 score throughout the day like “after call work,” you 28 13 However, you couldn’t take 1 didn’t want to use “aux” mode each and every morning that 2 you reported to work. 3 4 Gordon Decl. ¶¶ 8-10. Schedule adherence appears as a metric in performance 5 evaluations. 6 from 2007) at FAR000019 (“Adherence is an area in which you need to 7 address and make significant improvements, as you are currently at 8 74.93%. 9 this metric.”) See, e.g., Exh. 4 (Perry Hall’s year end assessment Our goal, as you know, is 85%. Please focus on improving Performance reports indicate the importance of 10 adherence in personnel evaluations. 11 Assessment of Jonathan Luna, FAR 000053 (“[Y]our schedule adherence 12 July - Oct. is 82.36%. 13 schedule goal. 14 levels is contingent on the appropriate forecasting of staffing. 15 Adherence to schedule means you are available to handle our 16 customers calls which contributes to our ability to forecast 17 accurately to meet our service level goals and limit abandoned 18 calls.”) 19 See, e.g., Exh. 5, Year End You are not meeting the adherence to Our ability to handle calls and meet our service Plaintiffs argue that the adherence to schedule metric was 20 part of the policy to require pre- and post-shift work. 21 arrived at 8:00 a.m. for an 8:00 a.m. shift and immediately logged 22 into the phone prior to booting up the computer, she would also 23 have to indicate that she was not able to accept incoming calls by 24 entering a code. 25 adherence; she would be considered to be out of adherence for the 26 10 to 15 minutes during which she was preparing her computer to 27 handle calls. 28 with Defendants’ policy to perform pre-shift work every day while If a CSR This time would count toward her schedule “CSRs were presented with a no-win situation: comply 14 1 off-the-clock, or start working at their scheduled time, but be 2 considered out-of-adherence, tardy, and be unable to effectively 3 perform their duties.” 4 (Class Cert. Mot. at 9.) Defendants respond that schedule adherence could not have been 5 a pressure on employees to work off the clock because the target 6 adherence rate was only 85%, giving full-time employees 7 approximately 75 minutes per day of time during which they could be 8 out of adherence. 9 was not 85% but 90%, citing Jennifer Butler’s performance report Plaintiffs assert that the target adherence rate 10 (Reply re Cond’l Cert at 9; Exh. 11 at TWE000041)(“Jennifer, your 11 adherence stands at 91.48% and you are exceeding your expectations 12 in this area. 13 first entered the unit. 14 excessively. 15 your adherence, and once this was brought to your attention, you 16 worked diligently and decrease[d] your not ready time immediately. 17 Recently, your not ready time has increased. 18 aware and said that you would work to decrease your not ready time 19 so that you continue to exceed your expectations in this area. 20 understand the importance of adhering to schedule, which positively 21 impacts your adherence. 22 to meet our unit goal of 90% daily.”) We discussed the importance of adherence when you I noticed that you were not ready We discussed that your not ready [status] impacts You have been made You It’s nice to know that you focus and work 23 Defendants are correct that being out of adherence for 10 to 24 15 minutes would not in itself result in an employee being unable 25 to meet the 85-90% adherence target. 26 such as bathroom breaks also entered into the calculation of 27 28 15 However, other activities 1 adherence.4 2 evaluation, employees were praised in their performance evaluations 3 for exceeding adherence goals, and increased adherence rates appear 4 to lead to a more positive performance report. 5 as much as possible is expressed in the performance reports.5 6 Particularly when taken in conjunction with instructions from 7 supervisors, the schedule adherence policy thus can be considered 8 to be part of a policy to encourage pre-shift work. 9 Furthermore, as seen in Jennifer Butler’s performance Pressure to adhere Defendants also assert that employees were not deemed out of 10 adherence while loading computer programs after logging into the 11 phones. 12 which states: “At the start of their shift CSA’s must hard log into 13 the phone before booting up the PC. 14 should log out of the phone and log into CTI. 15 the CSA’s arrival time for attendance purposes. 16 up process the CSA is considered in adherence when logged into the 17 phone and not logged into CTI.” 18 FIE000480.) 19 changes had been made as a result of the DOL investigation, and 20 there is no indication that it was the previous policy. They cite the “2011 Guidelines for Schedule Adherence” Once the PC is ready the CSA This process records During the start (Andernacht Decl., Exh. B at However, this policy addresses the system after To the 21 22 23 24 25 4 Plaintiffs claim that employees are considered out of adherence if they took phone calls past their shift, when calls spilled into their lunch breaks, when they needed to enter notes after a phone call finished, “and so on,” but the footnotes supporting these claims are empty (Reply to Class Cert. at 12 nn. 35-36) or do not support the claim they are making (id. n. 34). 5 26 27 28 Defendants argue that the pressure of performance reports raises an individualized question because it is a subjective feeling that an employee may or may not have. (Opp. at 22.) The performance reports, however, are using “objective” criteria, and feeling pressure to meet criteria in performance evaluations is not subjective. 16 1 contrary, Defendants indicate that the phone log-in policy was 2 changed in 2010. iii. Timekeeping system 3 4 a. Policy 5 Plaintiffs argue that it was a Farmers’ policy to modify 6 timecards to reflect scheduled shifts rather than actual time 7 worked: “Should a discrepancy be found between what the CSR entered 8 as the time that they actually worked and what Defendants told them 9 they worked - as reflected in clock-in times and the hours they 10 were scheduled to work - the gatekeeper [i.e. the supervisor who 11 approved the timecards] was required to reject the timecard and 12 instruct the CSR to make ‘corrections,’ that is, inaccurately 13 record the time that they actually worked.” (Mot. at 7, and n. 22.) 14 They present a complex set of evidence purportedly supporting this 15 assertion. 16 for Timecard Processing which advises supervisors to compare 17 timecards to the “Supervisor Timecard File” and to the login/logout 18 time in the phone system, Avaya, and to reject incorrect timecards. 19 (Exh. 16 at FAR000144, FAR000148, and FAR000149.) 20 For instance, they point to Procedural Documentation Plaintiffs read these and other handbooks as requiring 21 supervisors to force employees’ timecards into the shifts for which 22 the employees were scheduled, as opposed to the time they actually 23 worked. 24 amount to such a policy. 25 of how timekeeping worked at Farmers such that the court would be 26 in a position to interpret the requirements of the handbook. 27 Defendants did not challenge Plaintiffs’ characterization of the 28 timekeeping system except to say Farmers’ policy was that “the It is not clear to the court that these handbooks in fact Neither party has given a clear picture 17 1 electronic time card must show the specific time the employee 2 starts work, the lunch period, and the time of leaving.” 3 Exh. 13, Employee Manual at FIE00836.) 4 (Mot., The court is not convinced that Plaintiffs have presented 5 clear evidence of a policy of changing timecards to reflect the 6 time employees were scheduled to work instead of the time they 7 actually worked. 8 9 Even assuming that Plaintiffs have established such a policy, the court must consider whether individualized questions 10 predominate over class questions. The court finds that 11 individualized questions predominate and that therefore the 12 question of the timekeeping policy is not suitable for class 13 treatment. 14 As discussed above, Farmers’ handbooks and policy documents do 15 not present a clear picture of the timekeeping policy. In 16 addition, Plaintiffs’ deposition testimony on the timekeeping 17 system is ambiguous. 18 claim that supervisors required employees to modify their 19 timecards. 20 clock out at 5:00, but if I was caught into a call that threw me to 21 5:10, then I would, yes. 22 then we were – I was supposed to send this email to our supervisor 23 to let her know that I – you know, that I was caught into a call 24 and that’s the reason why I was – that I stayed until 5:10.”); and 25 Exh. 37, Peters Depo., 31:17-32:15 (“If the time that you logged in 26 on the phone did not match the time that was on the green screens 27 or vice-versa, they would reject it and talk to you and see what 28 was going on, why it wasn’t matching up.”).) On the one hand, the testimony supports a (See, e.g., Salgado Depo, 59:3-22 (“Well, I had to I would – we would clock out at 5:00, and 18 However, it does not 1 appear to be the case that employees were never compensated for 2 post-shift work due to the timekeeping policy. 3 (Peters testified that he revised his timecard to reflect that he 4 had worked an additional 30 minutes after the end of a shift and 5 the change was approved by his supervisor and he was paid). See id. 33:8-19 6 Additionally, the deposition testimony raises the question of 7 whether timecard modification was required only to comply with the 8 rounding policy and was primarily used to correct discrepancies 9 shorter than seven minutes, or whether discrepancies of longer 10 11 periods were also required to be corrected. Furthermore, Plaintiffs have failed to offer a method of 12 common proof to demonstrate class-wide injury. In re Graphics 13 Processing Units Antitrust Litigation, 272 F.R.D. 489, 497 (N.D. 14 Cal. 2008)(plaintiffs have the burden under Rule 23 “to provide a 15 viable method of demonstrating class-wide injury based on common 16 proof.”). Plaintiffs propose the following methodology: 17 Following certification of the action, and prior to 18 trial, class counsel will work with appropriate experts 19 in the fields of statistical analysis and economics to 20 determine an appropriate methodology for determining the 21 average number of hours worked by the class members, most 22 probably broken down to a daily average, which would then 23 be utilized by the economist expert to extrapolate total 24 damages for the entire class. 25 depositions, surveys, or some other methodology, the goal 26 would be to offer proof on a class wide basis such that 27 the global exposure of the defendant would be fairly 28 19 Whether done by sample 1 arrived at, with the issue of distribution left to the 2 class counsel and its experts. 3 Decl. John D. Sloan, Jr., ¶ 2. Given the conflicting testimony on 4 whether Plaintiffs were compensated when they worked beyond their 5 scheduled times, this methodology for obtaining common proof is not 6 sufficiently specific to convince the court that individual issues 7 do not predominate. iv. Rounding 8 9 Prior to January 1, 2011, Farmers rounded time on timecards to 10 the nearest 15-minute increment: if any employee worked seven 11 minutes past the end of her shift, she would not be paid for that 12 time as it was not a “pay impacting” occurrence. 13 Plaintiffs claim that this practice deprived them of their pay 14 because “Defendants never took any steps to determine if the 15 rounding rule fairly compensated employees,” despite their own 16 policy requiring quarterly audits to “check for any violations of 17 state or federal regulations including labor law” 18 n.36. (citing Exh. 17 FAR001040-001308).) 19 present evidence of a detrimental effect on employees because 20 “Defendants have not yet produced time keeping records for a 21 representative sample of the CSRs and Plaintiffs are still engaged 22 in discovering the analytical data necessary to determine if this 23 policy resulted in systematic under compensation of CSRs.” 24 (Mot. at 10.) (Mot. at 10 Plaintiffs do not (Id.) Defendants assert that rounding is lawful and that their 25 practice of rounding was neutral. 26 not demonstrated that this rounding practice resulted in off-the- 27 clock work. 28 the detriment of employees is a merits question, and that They claim that Plaintiffs have Plaintiffs respond that whether the system worked to 20 1 Defendants do not dispute that they used a system of rounding, and 2 do not know whether they audited the rounding system. 3 13.) (Reply at 4 Plaintiffs’ only evidence on this point is the lack of audits 5 of the rounding system undertaken by Defendants, despite their own 6 auditing policies. 7 Defendants’ lack of auditing of the rounding system on its own is 8 not a sufficient factual basis on which to establish a policy of 9 not properly compensating employees. Since rounding is a lawful practice, The court finds that 10 Plaintiffs have not presented sufficient evidence on this issue to 11 establish unlawful rounding as a common issue suitable for class 12 treatment. v. Conclusion on Commonality 13 14 The court finds that Plaintiffs have established common 15 questions of law and fact with respect to their pre-shift work, but 16 not with respect to other off-the-clock work or to Farmers’ 17 rounding policy. 18 19 5. Typicality Rule 23(a) also requires Plaintiffs to demonstrate that “the 20 claims or defenses of the representative parties are typical of the 21 claims or defenses of the class.” 22 “[R]epresentative claims are ‘typical’ if they are reasonably 23 co-extensive with those of absent class members; they need not be 24 substantially identical.” 25 Fed. R. Civ. P. 23(a)(3). Hanlon, 150 F.3d at 1020. Defendants argue that Plaintiffs’ claim that they worked off 26 the clock is not typical. They point to deposition testimony from 27 putative class members stating that they were not required to work 28 off the clock. The court has already discussed this issue with 21 1 respect to commonality and found that Plaintiffs have established a 2 common question of fact as to whether there was a policy of off- 3 the-clock work. 4 The typicality inquiry centers on the question of whether the 5 representative parties have typical claims and defenses. 6 respect to that question, Defendants’ main objections are, first, 7 that the named Plaintiffs did not work at all of the facilities 8 from which the putative classes are drawn and, second, that two of 9 the named Plaintiffs, Deborah Mills and Rita Dunken, are not 10 adequate. 11 With Plaintiffs have met the typicality requirements. i. Facilities 12 13 For the reasons explained below, the court finds that Defendants point out that the named Plaintiffs did not work at 14 all the branch facilities from which the putative class will be 15 drawn, and argue that they are not typical because they do not have 16 knowledge of the policies of the other Farmers branches. 17 finds that Plaintiffs have presented sufficient evidence that the 18 policies at issue were in effect at all Farmers call centers. 19 various locations, designated as Help Points or ServicePoints, 20 appear to be governed by Farmers-wide policies and to use the same 21 hardware and software systems regardless of the location. 22 offices of the same company are likely to have the same policies, 23 and Defendants have presented no indication that they used 24 different software or had different hardware, for instance. 25 named Plaintiff can therefore be typical of the class she seeks to 26 represent even if she works at a different branch of the same 27 company. 28 Litig., 527 F. Supp. 2d 1053, 1063-64 (N.D. Cal. 2007) (holding The court The Branch A See, e.g., In re Wells Fargo Home Mortg. Overtime Pay 22 1 that named plaintiffs were typical of class members working at 2 other locations "to the extent that they are subject to the uniform 3 compensation and employment policies that Wells Fargo applies to 4 all HMCs" and to the extent that “the absent class members shared 5 the same job title and were subject to the same policies at 6 issue."). ii. 7 a. Deborah Mills 8 9 Typicality of Mills and Dunken Defendants assert that Mills is not typical of the putative 10 class because she was employed only for four months and only as a 11 trainee. 12 differences between a trainee position and a regular position that 13 would suggest that her injury is not typical of a class member. 14 Like other class members, she would have been subject to a policy 15 of requiring off-the-clock work and would have suffered the same 16 injury as a result. 17 by her trainee status or her relatively brief period of employment. The court finds that Defendants have not indicated any b. Rita Dunken 18 19 Her typicality does not appear to be impaired Defendants assert that Dunken is not an adequate class 20 representative because she worked as a claims associate, and thus 21 answering calls was not her primary job responsibility. 22 Swopes ¶¶ (“Rita Dunken . . . [was a] claims associate[] who, among 23 other job responsibilities, handled incoming calls to the branch 24 claims office in Tigard. 25 who simply wanted to be transferred to the claims representative 26 who was handling their claim. 27 insurance agents with questions about claims made by policyholders 28 that they serviced. (Decl. Most of these calls were from customers They would also receive calls from In addition to answering such telephone calls, 23 1 Ms. Dunken . . . had other tasks, such as handling incoming mail, 2 assisting with mailings, following up on uncashed checks, and 3 assisting with duties at the reception desk. 4 ten claims associates reporting to me at any given time, and only 5 some of them would handle incoming calls as part of their main job 6 duties.”).) 7 There were at most Plaintiffs have presented evidence that Dunken was one of the 8 claims associates whose primary job duty was answering calls. 9 (Exh. 8, Dunken Performance Management Form (“Your main job is to 10 answer the calls for the call center is to provide excellent 11 customer service on each and every call you take. 12 make sure you assist with their concerns and treat them as number 13 one. . . . Due to your main responsibility as answering calls daily 14 for Oregon and Washington, you are now limited to new job 15 responsibilities . . .).) 16 evidence to suggest, for instance, that Dunken used different 17 computer software or was otherwise subject to procedures different 18 from the employees she is seeking to represent, beyond some 19 variation in her job responsibilities. 20 primary component of her job does appear to be the primary 21 component of the job of putative class members - answering phone 22 calls - the court finds that Dunken is typical of the class. 23 24 You continue to Defendants have not presented any However, because the 6. Adequacy Finally, Rule 23(a) requires Plaintiff to demonstrate that 25 “the representative parties will fairly and adequately protect the 26 interests of the class.” 27 two questions determines legal adequacy: (1) do the named 28 plaintiffs and their counsel have any conflicts of interest with Fed. R. Civ. P. 23(a)(4). 24 “Resolution of 1 other class members and (2) will the named plaintiffs and their 2 counsel prosecute the action vigorously on behalf of the class?” 3 Hanlon, 150 F.3d at 1020. 4 Defendants argue that Plaintiffs are not adequate because they 5 seek to represent class members at facilities where they never 6 worked and they submitted declarations that contradicted their 7 deposition testimony and were subsequently retracted. 8 do not explain how either of these points renders the Plaintiffs or 9 their counsel inadequate by creating conflicts of interest with Defendants 10 other plaintiffs or by calling into question their commitment to 11 prosecuting the action. 12 the adequacy requirement of Rule 23(a). 13 The court finds that Plaintiffs have met 7. Predominance 14 Under Rule 23(b)(3), a plaintiff seeking to certify a class 15 must show that questions of law or fact common to the members of 16 the class “predominate over any questions affecting only individual 17 members, and that a class action is superior to other available 18 methods for fairly and efficiently adjudicating the controversy.” 19 Fed. R. Civ. P. 23(b)(3). 20 Defendants emphasize the fact that this action contains claims 21 asserted under the laws of five different states and argue that the 22 application of the laws of multiple states make the class 23 unmanageable. 24 Litigation, 264 F.R.D. 531, 537 (N.D. Cal. 2009) for the 25 proposition that “[w]here the laws of various states will govern 26 the class claims, the differing state laws inject significant 27 manageability concerns and can prevent certification of the 28 nationwide class.” They cite In re Charles Schwab Corp. Securities The court notes, first, that Plaintiffs here 25 1 are not seeking to certify a nationwide class, but instead five 2 subclasses, each comprising Plaintiffs of one state. 3 as discussed above, the fundamental question of this case - whether 4 Defendants had a policy of requiring pre-shift work - does not 5 depend on the various state laws that would be used to determine 6 the amount of Defendants’ liability if they were found so liable. 7 Those laws will be relevant in the damages stage and do not mean 8 that individualized questions will predominate in the primary 9 litigation stages. 10 Additionally, The court therefore finds that the requirements of Rule 23(b) 11 have been met. 12 III. CONDITIONAL CERTIFICATION 13 A. Legal Standard 14 Section 206 of Title 29 of the Unites States Code requires 15 that employers pay minimum wages to non-exempt employees. 29 U.S.C. 16 § 206(a). 17 employees overtime. 18 action to recover for failure to make overtime payments or to pay 19 minimum wages “may be maintained against any employer . . . by any 20 one or more employees for and in behalf of himself or themselves 21 and other employees similarly situated.” 22 employees who give their consent in writing – or “opt in” – will be 23 represented parties. 24 commonly referred to as a “collective action.” 25 parties to a collective action are not subject to claim preclusion, 26 giving notice to potential plaintiffs of a collective action has 27 less to do with the due process rights of the potential plaintiffs 28 and more to do with the named plaintiffs’ interest in vigorously Section 207 requires that employers pay non-exempt 29 U.S.C. § 207(a). Id. Pursuant to § 216(b), an 29 U.S.C. § 216(b). Only This form of representative action is 26 “Because non- 1 pursuing the litigation and the district court’s interest in 2 ‘managing collective actions in an orderly fashion.’” McElmurry v. 3 U.S. Bank Nat’l Ass’n, 495 F.3d 1136, 1139 (9th Cir. 2007). 4 District courts have considerable discretion in managing FLSA 5 collective actions, including in determining how and when notice is 6 provided to potential opt-in class members, see Hoffman-La Roche 7 Inc. v. Sperling, 493 U.S. 165, 171-73 (1989), and whether 8 certification of a § 216(b) collective action is appropriate, 9 Leuthold v. Destination America, Inc., 224 F.R.D. 462, 466 (N.D. 10 Cal. 2004). 11 B. Discussion 12 Plaintiffs seek conditional certification of the following 13 class for notice purposes: 14 All current and former customer facing call center 15 employees of Defendants, Farmers Services L.L.C., Farmers 16 Insurance Exchange, and 21st Century Insurance Company, 17 that held or hold the position of “Customer Service 18 Representative,” “Customer Service Associate,” “Customer 19 Service Advocate,” or similar positions between the 20 relevant statutory period, three years preceding the 21 filing of the original complaint and the time additional 22 class members opt-in to the collective action. 23 Excluded from the class are those class members 24 whose overtime claims were settled in the March 14, 2011 25 Farmers-Department of Labor Settlement Agreement for 26 Farmers Services and Farmers Insurance Exchange’s 27 employees at the Overland Park ServicePoint for the time 28 period between January 1, 2009 to January 1, 2010; the 27 1 Olathe HelpPoint for the time period between January 1, 2 2009 to May 10, 2010; the Austin, Texas ServicePoint for 3 the time period between January 1, 2009 to February 1, 4 2010; the Grand Rapids HelpPoints call center for the 5 time period between January 1, 2009 to May 10,2010, and 6 for the Grand Rapids ServicePoint for the time between 7 January 1, 2009 to February 1, 2010. 8 are those whose employment with the Defendants began 9 after January 1, 2011. 10 (Mot. for Cond’l Cert. at 3.) 11 12 Further excluded 1. Standard The parties first dispute the standard that should apply to 13 certification of a collective action here. Section 216(b) provides 14 that a collective action may be maintained where the claimants are 15 “similarly situated.” 16 “similarly situated,” and as far as the Court can tell, both the 17 Supreme Court and the Ninth Circuit have yet to interpret the 18 phrase. 19 certification of a collective action, see generally 7B Charles Alan 20 Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. 21 § 1807, most courts interpreting § 216(b), including those in the 22 Ninth Circuit and in California, have adopted a two-step approach. 23 See, e.g., Wynn v. Nat’l Broad. Co., Inc., 234 F. Supp. 2d 1067, 24 1082 (C.D. Cal. 2002); Leuthold, 224 F.R.D. at 466-67; see also 25 Newberg on Class Actions § 24:3 (4th ed. 2008) (“Most courts have 26 interpreted § 216(b) as requiring an analysis of whether plaintiffs 27 are ‘similarly situated’ at two stages in the litigation: when The statute does not define the term Although courts have taken a few different approaches to 28 28 1 notice to prospective class members is initially sought and then 2 following discovery.”); 7B Wright, Miller & Kane § 1087. 3 At the first stage, the court considers whether to certify a 4 collective action and permit notice to be distributed to putative 5 class members. 6 F.3d 1095, 1102 (10th Cir. 2001). 7 determination tend to require “nothing more than substantial 8 allegations that the putative class members were together the 9 victims of a single decision, policy, or plan.” See Thiessen v. General Electric Capital Corp., 267 Courts making a notice-stage Id. (internal 10 quotation marks omitted). A plaintiff “need not show that his 11 position is or was identical to the putative class members’ 12 positions; a class may be certified under the FLSA if the named 13 plaintiff can show that his position was or is similar to those of 14 the absent members.” 15 Supp. 2d 941, 945 (W.D. Ark. 2003). “While the standard for 16 conditional approval at the stage of the litigation is lenient, it 17 does require some evidentiary support. The lack of any evidence of 18 similarity or even other potential class members precludes class 19 certification.” 20 Supp. 2d 1290, 1296 (E.D. Cal. 2008)(emphasis in original); see 21 Bernard v. Household Intern., Inc., 231 F. Supp. 2d 433, 435 (E.D. 22 Va. 2005) (“Mere allegations will not suffice; some factual 23 evidence is necessary.”); Freeman, 256 F. Supp. 2d at 945; Grayson 24 v. K Mart Corp., 79 F.3d 1086, 1097 (11th Cir. 1996) (plaintiffs 25 may meet their burden “by making substantial allegations of class- 26 wide [violations], that is, detailed allegations supported by 27 affidavits which successfully engaged defendants’ affidavits to the 28 contrary” (internal quotation marks omitted)). Freeman v. Wal-Mart Stores, Inc., 256 F. Bishop v. Petro-Chemical Transport, LLC, 582 F. 29 Plaintiffs will be 1 deemed similarly situated “when there is a demonstrated similarity 2 among the individual situations [–] some factual nexus which binds 3 the named plaintiffs and the potential class members together as 4 victims of a particular alleged” policy or practice. 5 Las Vegas Cigar Co., 61 F. Supp. 2d 1129, 1138-39 n.6 (D. Nev. 6 1999) (internal quotation marks omitted). 7 Bonilla v. The second stage often occurs at the conclusion of discovery. 8 At that stage, courts use a stricter standard of “similarly 9 situated” by reviewing several factors, including (1) disparate 10 factual and employment settings of the individual plaintiffs; (2) 11 the various defenses available to the defendant which appear to be 12 individual to each plaintiff; and (3) fairness and procedural 13 considerations. 14 discovery has been completed at the time of class certification, 15 “some courts have skipped the first-step analysis and proceeded 16 directly to the second step.” 17 Angeles, No. CV 07-1680 ABC (PJWx), 2008 WL 2757080 at *4 (C.D. 18 Cal. 2008) (collecting cases); Pfohl v. Farmers Ins. Group, CV 03- 19 3080 DT (Rcx), 2004 WL 554834 at *2-3 (C.D. Cal. 2004). 20 21 Leuthold, 224 F.R.D. at 467. Where significant See Lockhart v. County of Los 2.Application The court has already found that Plaintiffs’ state law claims 22 regarding pre-shift work meet the requirements of Rule 23. 23 underlying factual and legal questions are identical with respect 24 to their FLSA claims, the court finds that even under the more 25 stringent second stage standard, Plaintiffs have met their burden 26 with respect to the pre-shift work. 27 of commonality, there are common questions of fact and law as to 28 Defendants’ policy of requiring pre-shift work which extend across 30 As the As discussed in the analysis 1 the subclasses. 2 demonstrated that individualized issues do not predominate, and 3 that Defendants do not have defenses that are individual to each 4 plaintiff. 5 fair and procedurally efficient in this case. 6 have met the requirements for certification of a collective action 7 with respect to the pre-shift work. 8 9 Also as discussed above, Plaintiffs have Finally, the court finds that a collective action is Thus, Plaintiffs Also as discussed above, Plaintiffs have not established that there was a “single decision, policy, or plan” regarding off-the 10 clock work except with respect to pre-shift log-in and boot-up 11 procedures. 12 conditionally certified only with respect to the pre-shift work. 13 14 The collective action, like the Rule 23 action, is 3. Statute of Limitations Although Plaintiffs’ claims are suitable for treatment as a 15 collective action, there is a question as to whether the putative 16 class has claims that are not barred by the statute of limitations 17 for FLSA claims. 18 two years after the cause of action accrued, or three years for 19 willful violations. 20 action is considered to have commenced on the date when the 21 complaint was filed for named plaintiffs, or, for those people 22 joining the action, on the date on which the person files written 23 consent with the court. 24 The statute of limitations under the FLSA is 29 U.S.C. § 255. In a collective action, the 29 U.S.C. § 256. Here, the original complaint was filed on March 22, 2011. 25 Thus, the statute of limitations for the named plaintiffs extends 26 to March 22, 2008, for willful violations.3 As a result, with no 27 3 28 The court assumes without deciding that Plaintiffs are (continued...) 31 1 tolling, the statute of limitations for FLSA claims regarding 2 willful violations is three years from the filing of the original 3 complaint (March 22, 2011) for the named plaintiffs, and three 4 years from the opting in of the other plaintiffs. 5 Plaintiffs who did not work at one of the facilities covered by the 6 DOL settlement can make claims accrued starting in March 2008 (if 7 the violations were willful) or March 2009 (if they were not 8 willful). 9 The named For parties who have yet to opt in, the statute of limitations 10 typically is dated three years prior to the date of opting in. 11 employees were to opt in on April 1, 2013, they would be eligible 12 only to make claims dating April 1, 2010, or later. 13 Plaintiffs concede that no potential class members who worked at 14 ServicePoints after February 1, 2010, or at Help Points after May 15 10, 2010, are likely to have claims, due to the change in 16 timekeeping and payroll policies. 17 at 8; Exhs. 1-3, FLSA Narratives.) 18 employees would appear to have live claims. 19 20 If In this case, (See Plaintiff’s Supp. Briefing Without tolling, then, no a. Equitable Tolling “Equitable tolling is extended sparingly and only where 21 claimants exercise diligence in preserving their legal rights.” 22 Adams v. Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 542 (N.D. Cal. 23 2007) (citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 24 (1990)). Equitable tolling is appropriate “where the claimant has 25 actively pursued his judicial remedies by filing a defective 26 3 27 28 (...continued) alleging willful violations. The statute of limitations for nonwillful violations is two years. This determination will be made at the merits phase. 32 1 pleading during the statutory period, or where the complainant has 2 been induced or tricked by his adversary's misconduct into allowing 3 the filing deadline to pass.” 4 Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999)(“Equitable 5 tolling applies when the plaintiff is prevented from asserting a 6 claim by wrongful conduct on the part of the defendant, or when 7 extraordinary circumstances beyond the plaintiff's control made it 8 impossible to file a claim on time.”) 9 on fairness to both parties.” 10 Irwin, 498 U.S. at 96. See also “[T]he inquiry should focus Adams, 242 F.R.D. at 543. Here, Plaintiffs argue that the statute of limitations should 11 be tolled for opt-ins to the date of filing of the original 12 Complaint because Defendants “used a motion to dismiss and the 13 discovery process to run out the clock on the putative class 14 members’ claims.” 15 assert that Defendants withheld the class list and other documents, 16 including documents regarding the DOL investigation and all copies 17 of HR manuals. 18 Briefing at 5 n.3, 7.) 19 (Plaintiffs’ Supp. Brief. at 2.) They also (Plaintiffs’ Reply to Defendants’ Supplemental There is mixed authority as to when equitable tolling should 20 be used when defendants withhold a class list. 21 permit discovery of the names and address of potential class 22 members at the conditional certification stage. 23 Inc., 493 U.S. at 170. 24 the class list is not required until an action has been 25 conditionally certified. 26 only required to provide potential plaintiffs’ contact information 27 after conditional certification of the collective class.” 28 242 F.R.D. at 543 (citing Hoffman-La Roche Inc. v. Sperling, 493 District courts may Hoffman-La Roche Courts appear to agree that disclosure of “Under 29 U.S.C. § 216(b), defendant is 33 Adams, 1 U.S. at 170). 2 allow pre-certification discovery of the class list to allow 3 putative class members to opt in earlier. 4 certification furthers the FLSA's broad remedial goal because the 5 FLSA's limitations period continues to run until the potential 6 class member opts in, giving rise to a need to identify and provide 7 notice to potential class members promptly.” 8 Wolfgang's Steakhouse, Inc., No. 09Civ.1148(LBS), 2010 WL 2362981 9 at *2 (S.D.N.Y. 2010)(internal quotation marks and citations 10 11 However, some courts have found it appropriate to “Encouraging early Whitehorn v. omitted). Other courts have found it appropriate to grant equitable 12 tolling when a class list is not produced upon request. 13 cases, “[a]pplying equitable tolling . . . counters the advantage 14 defendants would otherwise gain by withholding potential 15 plaintiffs’ contact information until the last possible moment. 16 Faultless potential plaintiffs should not be deprived of their 17 legal rights on the basis of a defendant’s delay, calculated or 18 otherwise.” 19 Although the statute does not require production of the class list 20 prior to conditional certification, without equitable tolling 21 defendants have the incentive to delay proceedings and to run the 22 clock as long as possible. 23 the statute of limitations to 30 days after the first request for 24 the production of the class list, the time when Plaintiffs could 25 reasonably have expected to receive the list. 26 Adams, 242 F.R.D. at 543. In such This court agrees. It is therefore more equitable to toll Here, Plaintiffs claim that “Defendants refused to produce a 27 class list from the outset,” referring to the Joint 26f Report, 28 Dkt. No. 48 (Feb. 16, 2012), which said that “Defendants contend 34 1 that the Court should not authorize discovery of putative class 2 members’ names and contact information unless it conditionally 3 certifies a class.” 4 to obtain the names of the potential members of the collective 5 class, presumably based on the authority apparently provided to 6 Plaintiffs indicating that a class list would not be provided until 7 a class obtained conditional certification.4 8 hearing on April 1, 2013, 7-8.) 9 Plaintiffs do not indicate any other attempts (Transcript of Defendants assert that they would be prejudiced by equitable 10 tolling because it would “increase their potential liability beyond 11 what they would normally face under the FLSA.” 12 Supplemental Briefing in Opposition to Plaintiffs’ Motions for 13 Certification at 8.) 14 putative collective action members’ rights under the FLSA. 15 effect of this is to make Defendants potentially liable for a time 16 period longer than the period if there were no tolling. 17 in the court’s view, the result is not an extraordinary expansion 18 of Defendants’ liability under the FLSA but instead the restoration 19 of Plaintiffs’ ability to recover for alleged violations of the 20 FLSA. 21 22 (Defendants’ In the court’s view, tolling preserves The However, b. DOL Tolling Agreement Plaintiffs also assert that all putative collective action 23 members should be able to avail themselves of the DOL Tolling 24 Agreement. 25 Tolling Agreement. Defendants contend that only the DOL may assert the The court finds that the Agreement may be 26 27 4 28 Plaintiffs reported that the case Defendants cited was Mitchell v. Acosta Sales, LLC, CV 11-1796-GAF (Opx), Aug. 29, 2011. 35 1 invoked by both the DOL and employees, but only by those employees 2 who worked at facilities investigated by the DOL. 3 The Agreement specifically refers to the ability of the 4 affected employees to file suit. “The Secretary or affected 5 employees may ultimately bring legal proceedings under the Act.” 6 (Id. at FIE001163 (emphasis added).) 7 states that it may be invoked “in all legal proceedings that may be 8 brought pursuant to Sections 16(b), 16(c), and/or 17 of the Act.” 9 (Id. at FIE001164.) The Agreement also explicitly However, there is no evidence that employees 10 at facilities not investigated by the DOL were contemplated as 11 beneficiaries by either party at the time of the agreement. 12 Extending the settlement agreement to employees not contemplated by 13 the parties as beneficiaries of the settlement would render the 14 settlement agreement overly open-ended and vague and would violate 15 principles of contract interpretation. 16 beneficiary of a contract, the third party must show that the 17 contract reflects the express or implied intention of the parties 18 to the contract to benefit the third party. 19 beneficiary need not be specifically or individually identified in 20 the contract, but must fall within a class clearly intended by the 21 parties to benefit from the contract." Klamath Water Users 22 Protective Ass'n v. Patterson, 204 F.3d 1206, 1211 (9th Cir. 1999) 23 (citation omitted). 24 of the settlement agreement that it was intended to apply to 25 Farmers facilities other than those named. "To sue as a third-party The intended Here, there is no indication in the language 26 C. Conclusion on Conditional Certification 27 For these reasons, the court finds that the FLSA class is 28 suitable for conditional certification. 36 The statute of limitations 1 shall be tolled to 30 days after the date when Plaintiffs first 2 requested the class list, which appears to have been when they 3 served their discovery on January 25, 2012. 4 Defendants’ Supplemental Briefing, 5 n.3, 9.) 5 limitations shall start from February 24, 2012. 6 IV. Conclusion 7 8 9 (Plaintiffs’ Reply to The statute of For the reasons stated above, the court GRANTS certification of the class as here defined: All persons who are, or have been, employed by Farmers 10 Services, LLC., and/or Farmers Insurance Exchange in the 11 State of [state name] as call center employees who 12 performed the job duties of a “Customer Service 13 Representative” or a similar customer-facing job position 14 with the central duty of taking inbound telephone calls 15 from policyholders and agents, during the time period 16 between [start date as determined by state statute of 17 limitations] and [February 1, 2010, at ServicePoint 18 contact centers and May 10, 2010, at HelpPoint contact 19 centers]. 20 For the reasons stated above, the court also conditionally 21 certifies for notice purposes the collective action as here 22 defined: 23 All current and former customer facing call center 24 employees of Defendants, Farmers Services L.L.C., Farmers 25 Insurance Exchange, and 21st Century Insurance Company, 26 that held or hold the position of “Customer Service 27 Representative,” “Customer Service Associate,” “Customer 28 Service Advocate,” or similar positions between the 37 1 relevant statutory period, three years preceding February 2 24, 2012, and the time additional class members opt in to 3 the collective action. 4 Excluded from the class are those class members whose 5 overtime claims were settled in the March 14, 2011 Farmers- 6 Department of Labor Settlement Agreement for Farmers Services 7 and Farmers Insurance Exchange’s employees at the Overland 8 Park ServicePoint for the time period between January 1, 2009 9 to January 1, 2010; the Olathe HelpPoint for the time period 10 between January 1, 2009 to May 10, 2010; the Austin, Texas 11 ServicePoint for the time period between January 1, 2009 to 12 February 1, 2010; the Grand Rapids HelpPoints call center for 13 the time period between January 1, 2009 to May 10,2010, and 14 for the Grand Rapids ServicePoint for the time between January 15 1, 2009 to February 1, 2010. 16 employment with the Defendants began after February 1, 2010, 17 at ServicePoint contact centers and May 10, 2010, at HelpPoint 18 contact centers. Further excluded are those whose 19 20 IT IS SO ORDERED. 21 22 Dated:July 17, 2013 DEAN D. PREGERSON United States District Judge 23 24 25 26 27 28 38
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