Senne v. MLB - Plaintiff's Motion For Reconsideration Regarding Class and Collective Certification (Sept. 14, 2016)

Case 3:14-cv-00608-JCS Document 720 Filed 09/14/16 Page 1 of 34
1 STEPHEN M. TILLERY (pro hac vice)

stillery@koreintillery.com
2 ROBERT L. KING (pro hac vice)
rking@koreintillery.com
3 GARRETT R. BROSHUIS (pro hac vice)
gbroshuis@koreintillery.com
4 AARON M. ZIGLER (pro hac vice)
azigler@koreintillery.com
5 KOREIN TILLERY, LLC
505 North 7th Street, Suite 3600
6 St. Louis, MO 63101
Telephone: (314) 241-4844
7 Facsimile: (314) 241-3525
8 GEORGE A. ZELCS (pro hac vice)
gzelcs@koreintillery.com
9 KOREIN TILLERY, LLC
205 North Michigan, Suite 1950
10 Chicago, IL 60601
Telephone: (312) 641-9750
11
BRUCE L. SIMON (Bar No. 96241)
bsimon@pswlaw.com
12
BENJAMIN E. SHIFTAN (Bar No. 265767)
bshiftan@pswlaw.com
13
PEARSON, SIMON & WARSHAW, LLP
14 44 Montgomery Street, Suite 2450
San Francisco, CA 94104
15 Telephone: (415) 433-9000
Facsimile: (415) 433-9008
16
DANIEL L. WARSHAW (Bar No. 185365)

dwarshaw@pswlaw.com
BOBBY POUYA (Bar No. 245527)
bpouya@pswlaw.com
15165 Ventura Boulevard, Suite 400
Sherman Oaks, California 91403
Telephone: (818) 788-8300
Facsimile: (818) 788-8104
17 Plaintiffs Interim Co-Lead Class Counsel

18
19
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION
20
AARON SENNE, et al., Individually and on

21 Behalf of All Those Similarly Situated;
Plaintiffs,
22
23
vs.
24 OFFICE OF THE COMMISSIONER OF

BASEBALL, an unincorporated association
25 doing business as MAJOR LEAGUE
BASEBALL; et al.;
26
Defendants.
27
28
CASE NO. 3:14-cv-00608-JCS

(consolidated with 3:14-cv-03289-JCS)
CLASS ACTION
NOTICE OF MOTION AND MOTION
FOR RECONSIDERATION REGARDING
CLASS AND COLLECTIVE
CERTIFICATION
Hearing date: Dec. 2, 2016
Hearing Time: 9:30 a.m.
Courtroom: G, 15th Floor
Judge: Honorable Joseph C. Spero
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
MOTION FOR RECONSIDERATION REGARDING CLASS AND COLLECTIVE CERTIFICATION
NOTICE OF MOTION AND MOTION
1
2
Please take notice that Plaintiffs move the Court for an order granting Plaintiffs Motion for
3 Reconsideration Regarding Class and Collective Certification. This motion will be heard on December
4 2, 2016, at 9:30 a.m., by the Honorable Joseph C. Spero of the U.S. District Court of the Northern
5 District of California, San Francisco Division, located at 450 Golden Gate Avenue, San Francisco,
6 California, Courtroom G, 15th Floor.
7
Plaintiffs make this motion pursuant to the Courts inherent procedural power to reconsider,
8 rescind, or modify an interlocutory order for cause seen by it to be sufficient. City of Los Angeles v.
9 Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (quoting Melancon v. Texaco, Inc., 659 F.2d
10 551, 553 (5th Cir. 1981)) (emphasis added); see also id. (quoting Toole v. Baxter Healthcare Corp., 235 F.3d
11 1307, 1315 (11th Cir. 2000)) (the district court has plenary power over [an interlocutory order] and
12 this power to reconsider, revise, alter or amend the interlocutory order is not subject to the limitations
13 of Rule 59).
14
Plaintiffs seek certification of the following Classes pursuant to Federal Rule of Civil
15 Procedure 23(b)(3):
16
17
18
19
20
21
22
23
Florida Class: Any person who, while signed to a Minor League Uniform Player
Contract, participated in spring training, instructional leagues, or extended spring
training in Florida on or after February 7, 2009, and had not signed a Major
League Uniform Player Contract before then.
Arizona Class: Any person who, while signed to a Minor League Uniform Player
Contract, participated in spring training, instructional leagues, or extended spring
training in Arizona on or after February 7, 2011, and had not signed a Major
League Uniform Player Contract before then.
California Class: Any person who, while signed to a Minor League Uniform Player
Contract, participated in the California League on or after February 7, 2010, and
had not signed a Major League Uniform Player Contract before then.
24
25
26
California Waiting Time Subclass: Any California Class Member who played in the
California League since February 7, 2010, but who is no longer employed by
MLB or its franchises as a minor league player.
27
28
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3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
1
2
3
4
Plaintiffs also seek certification of the following Rule 23(b)(2) Class:

Any person who is a) signed to a Minor League Uniform Player Contract, b) has
never signed a Major League Player Contract, and c) participates in spring
training, instructional leagues, or extended spring training in Florida or Arizona.
Plaintiffs also seek certification of the following Minor League FLSA Collective pursuant to
5 Section 216 of the Fair Labor Standards Act:

6
7
8
9
Any person who, while signed to a Minor League Uniform Player Contract,
participated in the California League, or in spring training, instructional leagues,
or extended spring training, on or after February 7, 2011, and who had not signed
a Major League Uniform Player Contract before then.
Excluded from all Classes and the Collective are Defendants and their officers, directors, and
10 successors; any person who has (or during the class period had) a controlling interest in Defendants;
11 any judge presiding over this action and members of the immediate family of any such judge; and
12 counsel for Plaintiffs. Also excluded from the Rule 23(b)(3) Classes are all persons who submit a
13 timely request for exclusion.
14
This motion is based upon this Notice of Motion, the accompanying Memorandum of Points
15 and Authorities, all previously filed supportive declarations and exhibits, the records on file in this
16 action, and upon additional argument as may be presented at or before the hearing on this Motion.
17 DATED: September 14, 2016
Respectfully submitted,
18
19
20
21
22
/s/ Stephen M. Tillery

Bruce L. Simon
Daniel L. Warshaw
Bobby Pouya
Benjamin E. Shiftan
25
KOREIN TILLERY, LLC

Stephen M. Tillery
Robert L. King
George A. Zelcs
Aaron M. Zigler
Garrett R. Broshuis
26
Plaintiffs Interim Co-Lead Class Counsel
23
24
27
28
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3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
TABLE OF CONTENTS
2 NOTICE OF MOTION AND MOTION ....................................................................................................... i

3 TABLE OF AUTHORITIES............................................................................................................................iii
4 MEMORANDUM OF POINTS & AUTHORITIES ...................................................................................1
5 ARGUMENT........................................................................................................................................................3
6
I.
7
8
9
COMMON QUESTIONS PREDOMINATE FOR EACH OF THE

PROPOSED RULE 23(b)(3) CLASSES. ..............................................................................3
A.
Choice-of-Law Issues Do Not Give Rise to Class-Defeating

Individualized Inquiries. ..............................................................................................3
B.
Whether Class Members Performed Work Is A Question Capable of

Classwide Resolution That Will Resolve A Central Issue In One
Stroke. ............................................................................................................................6
C.
The Length Of A Minor League Workday Is A Predominating,

Common Question. .....................................................................................................7
10
11
12
13
1.
Under the Continuous Workday Doctrine, the

length of a workdayfrom whistle to whistle
is a predominating common question.....................................................7
2.
Statistical evidence may be used to show an average

time employees worked .................................................................................8
14
15
16
D.
17
18
19
Plaintiffs Survey Is Admissible For Estimating The Hours Class

Members Worked...................................................................................................... 10
1.
Plaintiffs survey evidence is admissible under Ninth

Circuit law .................................................................................................... 10
2.
The final survey undermines Defendants criticisms

of the pilot survey ....................................................................................... 11
3.
Plaintiffs evidence permits a just and reasonable

inference about when team activities began ............................................ 14
20
21
22
II.
DIFFERENCES IN COMPENSATION DO NOT GIVE RISE TO

CERTIFICATION-DEFEATING INDIVIDUALIZED ISSUES. ............................ 17
III.
RESOLUTION OF THE ONLY TWO AFFIRMATIVE DEFENSES

AVAILABLE TO DEFENDANTS WILL NOT GIVE RISE TO
CERTIFICATION-DEFEATING INDIVIDUALIZED INQUIRIES. .................... 19
23
24
25
26
27
28
A.
The seasonal amusement and recreational establishment defense

presents predominating, common questions. ....................................................... 19
B.
The creative professionals exemption defense presents predominating,

common questions. ................................................................................................... 20
ii
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
1
2
IV.
PLAINTIFFS HAVE SATISFIED ALL OF RULE 23(a)S

REQUIREMENTS. ............................................................................................................... 21
V.
THE COURT SHOULD CERTIFY A RULE 23(b)(2) SUBCLASS

OF CURRENT PLAYERS. ................................................................................................. 22
VI.
IN THE ALTERNATIVE TO A RULE 23(b)(3) CLASS, THE

COURT SHOULD CERTIFY A RULE 23(c)(4) CLASS............................................... 24
VII.
A NARROWED FLSA COLLECTIVE SHOULD BE RE-CERTIFIED. ................ 25
3
4
5
6
CONCLUSION ................................................................................................................................................. 25
7
8
TABLE OF AUTHORITIES
9
Page(s)
10
11
12
13
14
Cases
Abadeer v. Tyson Foods, Inc.,
975 F. Supp. 2d 890 (M.D. Tenn. 2013) ......................................................................................8
Abdulina v. Eberls Temp. Servs., Inc.,
79 F. Supp. 3d 1201 (D. Colo. 2015) ...........................................................................................5
15 Adams v. Catrambone,
359 F.3d 858 (7th Cir. 2004) ....................................................................................................4, 5
16
Aho v. AmeriCredit Fin. Servs., Inc.,
17
277 F.R.D. 609 (S.D. Cal. 2011) ................................................................................................23
18
Alvarez v. IBP, Inc.,

339 F.3d 894 (9th Cir. 2003) ....................................................................................................6, 7
19
20 Amgen Inc. v. Conn. Ret. Plans & Trust Funds,
133 S. Ct. 1184 (2013) ...............................................................................................................14
21
Anderson v. Mt. Clemens Pottery Co.,
22
328 U.S. 680 (1946) ...................................................................................................9, 10, 16, 17
23
Bigham v. McCall Serv. Stations, Inc.,

637 S.W.2d 227 (Mo. Ct. App. 1982) ..........................................................................................5
24
25 Cameron v. E.M. Adams & Co.,
547 F.2d 473 (9th Cir. 1976) ......................................................................................................21
26
City of Los Angeles v. Santa Monica Baykeeper,
27
254 F.3d 882 (9th Cir. 2001) ........................................................................................................ i
28
iii
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
1 Clicks Billiards, Inc. v. Sixshooters, Inc.,

251 F.3d 1252 (9th Cir. 2001) ....................................................................................................11
2
Cordes & Co. Fin. Servs. v. A.G. Edwards & Sons, Inc.,
3
502 F.3d 91 (2d Cir. 2007) .........................................................................................................24
4
Cotter v. Lyft, Inc.,

60 F. Supp. 3d 1059 (N.D. Cal. 2014) .........................................................................................4
5
6 Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579 (1993). ..................................................................................................................11
7
Ellis v. Costco Wholesale Corp.,
8
285 F.R.D. 492 (N.D. Cal. 2012) ...............................................................................................23
9 Fortune Dynamic, Inc. v. Victorias Secret Stores Brand Mgmt., Inc.,
618 F.3d 1025 (9th Cir. 2010) ..............................................................................................10, 11
10
11 Hanon v. Dataproducts Corp.,
976 F.2d 497 (9th Cir. 1992) ......................................................................................................21
12
Harris v. Vector Mktg. Corp.,
13
753 F. Supp. 2d 996 (N.D. Cal. 2010) .......................................................................................25
14 IBP, Inc. v. Alvarez,
546 U.S. 21 (2005) ...............................................................................................................6, 7, 8
15
16 Jimenez v. Servicios Agricolas Mex, Inc.,
742 F. Supp. 2d 1078 (D. Ariz. 2010) ..........................................................................................4
17
Johnson v. Big Lots Stores, Inc.,
18
No. CIV.A. 04-3201, 2008 WL 1930681 (E.D. La. Apr. 29, 2008) ..........................................13
19 Johnson v. Nextel Commcns Inc.,
780 F.3d 128 (2d Cir. 2015) .........................................................................................................5
20
21 Kamakahi v. Am. Socy for Reprod. Med.,
305 F.R.D. 164 (N.D. Cal. 2015) (Spero, J.)..............................................................................24
22
Killian v. McCulloch,
23
873 F. Supp. 938 (E.D. Pa. 1995), aff'd sub nom. Stadler v. McCulloch,
82 F.3d 406 (3d Cir. 1996) ...........................................................................................................5
24
Lillehagen v. Alorica, Inc.,
25
No. SACV 13-0092-DOC, 2014 WL 6989230 (C.D. Cal. Dec. 10, 2014) ..................................8
26
Mazza v. Am. Honda Motor Co.,

666 F.3d 581 (9th Cir. 2012) ........................................................................................................5
27
28
iv
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
1 Mejdrech v. Met-Coil Sys. Corp.,

319 F.3d 910 (7th Cir. 2003) ......................................................................................................24
2
Melancon v. Texaco, Inc.,
3
659 F.2d 551 (5th Cir. 1981) ........................................................................................................ i
4
Minns v. Advanced Clinical Employment Staffing LLC,

No. 13-CV-03249-SI, 2015 WL 3491505 (N.D. Cal. June 2, 2015) ...................................18, 21
5
6 Mitchell v. Abercrombie & Fitch,
No. C2-04-306, 2005 WL 1159412 (S.D. Ohio May 17, 2005) ....................................................5
7
Morillion v. Royal Packing Co.,
8
995 P.2d 139 (Cal. 2000) .............................................................................................................6
9 Mulford v. Computer Leasing, Inc.,
759 A.2d 887 (N.J. Law. Div. 1999) ............................................................................................5
10
In re NCAA Student-Athlete Name & Likeness Licensing Litig.,
11
No. C 09-1967 CW, 2013 WL 5979327 (N.D. Cal. Nov. 8, 2013) ...........................................23
12
ONeill v. Mermaid Touring Inc.,
968 F. Supp. 2d 572 (S.D.N.Y. 2013) ..........................................................................................5
13
14 Parsons v. Ryan,
754 F.3d 657 (9th Cir. 2014) ......................................................................................................21
15
Priyanto v. M/S AMSTERDAM,
16
No. CV 07-3811AHMJTLX, 2009 WL 175739 (C.D. Cal. Jan. 23, 2009) .............................4, 5
17
Risinger v. SOC LLC,
936 F. Supp. 2d 1235 (D. Nev. 2013) ..........................................................................................5
18
19 Rodriguez v. Hayes,
591 F.3d 1105 (9th Cir. 2010) ....................................................................................................22
20
Smilow v. Sw. Bell Mobile Sys., Inc.,
21
323 F.3d 32 (1st Cir. 2003) ........................................................................................................21
22
Sullivan v. Oracle Corp.,

254 P.3d 237 (Cal. 2011) .............................................................................................................4
23
24 Toole v. Baxter Healthcare Corp.,
235 F.3d 1307 (11th Cir. 2000) .................................................................................................... i
25
Torres v. Mercer Canyons Inc.,
26
No. 15-35615, 2016 WL 4537378 (9th Cir. Aug. 31, 2016) .............................................. passim
27 Tyson Foods, Inc. v. Bouaphakeo,
136 S. Ct. 1036 (2016) ....................................................................................................... passim
28
v
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
1 Ubaldi v. SLM Corp.,

No. 11-01320 EDL, 2014 WL 1266783 (N.D. Cal. Mar. 24, 2014) ..........................................20
2
Valentino v. Carter-Wallace, Inc.,
3
97 F.3d 1227 (9th Cir. 1996) ......................................................................................................24
4
Vaquero v. Ashley Furniture Indus., Inc.,

824 F.3d 1150 (9th Cir. 2016) ....................................................................................................18
5
6 Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338 (2011) ...........................................................................................................6, 7, 23
7
Wendt v. Host Intl, Inc.,
8
125 F.3d 806 (9th Cir. 1997) ......................................................................................................10
9 Statutes
10
11
29 U.S.C. 213(a)(3) .......................................................................................................................19

Fla. Stat. 448.110(3) ..................................................................................................................6, 19
12
Other Authorities
13
29 C.F.R. 541.300 .........................................................................................................................20
14
15
16
29 C.F.R. 541.302 .........................................................................................................................20

29 C.F.R. 778.223 ...........................................................................................................................8
17 29 C.F.R. 785.18 .............................................................................................................................8

18 29 C.F.R. 790.6 ...............................................................................................................................7
19 Ariz. Admin. Code R20-5-1202(9) .................................................................................................6
20 DOL Opinion Letter Fair Labor Standards Act (FLSA),
December 2, 1996, 1996 WL 1005233 ........................................................................................8
21
Manual of Complex Litigation 11.493 (4th ed. 2004) ....................................................................9
22
Newberg on Class Actions 4:50 (5th ed.) .....................................................................................18
23
24
25
26
27
28
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3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
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MEMORANDUM OF POINTS & AUTHORITIES

Plaintiffs original class certification proposal included work that class members performed
3 individually during the winter offseason at home throughout most (if not all) fifty states. It also
4 included claims under the wage laws of eight states for work class members performed during the
5 championship playing season while frequently criss-crossing state lines for away games. In a lengthy
6 opinion, the Court concluded that [t]he difficulties in managing this putative class action required
7 denial of certification: too many individualized issues will have to be adjudicated because of the
8 variations among the players, [and] the choice-of-law issues that will have to be addressed. Dkt. 687
9 at 92.
10
Plaintiffs now propose a streamlined class structure that resolves the issues the Court
11 identified. Plaintiffs no longer seek certification of claims for winter offseason work. Plaintiffs only
12 seek certification of claims for work performed during the championship season in the California
13 League, which involves no interstate travel. Plaintiffs seek certification of two classes for training
14 season work, the Arizona and Florida Classes. For all classes, all of the work at issue was performed in
15 one state and occurred for weeks or months at a time. This radically simplifies the choice-of-law
16 analysis, because there is no rational dispute that for weeks- or months-long stretches of work, the law
17 of the state where that work was performed applies. Arizona law thus applies to the training season
18 work performed in Arizona, and Florida law applies to the training season work performed in Florida.
19 Similarly, California law applies to the work performed in the California League.
20
Plaintiffs proposed Classes not only eliminate choice-of-law issues, they also eliminate
21 concerns about the variations in the work class members performed. The three proposed classes are
22 focused exclusively on work class members performed as teams at team complexes, under the direct
23 control and supervision of Defendants. Because of that team focus, individualized inquiries into the
24 activity-by-activity course of a class members workday are unnecessary. Instead, the relevant question
25 is a common one: when did the teams workday begin and end? This whistle to whistle measure of
26 the workday is based on well established law known as the continuous workday doctrine. Under
27 that doctrine, the workday is not the sum of discrete parts, and all activities occurring during a
28 workday are compensable.
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3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
When it denied certification, the Court also ruled that Plaintiffs proffered survey evidence
2 offered to show part of the average length of a minor league workdaywas inadmissible due to
3 perceived self-interest and recall biases. As the Court is already aware, the final survey results show
4 that these perceived deficiencies were more hypothetical than real. Furthermore, self-interest and
5 recall bias go to the weight of survey evidence, not its admissibility. Plaintiffs survey evidence should
6 therefore be considered as part of the predominance prong of the certification analysis.
7
The Court also denied certification of a (b)(2) injunctive and declaratory relief class because
8 none of the named plaintiffs were current minor league players. Since that ruling, four current players
9 have come forward and seek to intervene in the litigation to serve as class representatives. (Dkt. 719).
10 The Court should grant them leave to intervene and appoint them representatives of the proposed
11 (b)(2) class.
12
Finally, Plaintiffs have streamlined the FLSA Collective consistent with the ways in which they
13 have restructured the Rule 23 classes. Plaintiffs no longer seek certification of claims for winter
14 offseason work, and the collective is limited to training season claims and California League claims.
15
It requires no more than back-of-the-napkin calculations to appreciate the serious nature of
16 Plaintiffs and class members claims. Under uniform, MLB-dictated wage policies, players do not
17 receive salaries outside the championship season and every first year player earns $1,100 per month
18 only during the championship season. Even assuming the shortest, four-week month and a 40-hour
19 week, $1,100 for 160 hours of work comes to a paltry $6.88 per hourand $0 per hour during the
20 training seasons. Each year, thousands of minor league players subsist on wages that fall below the
21 federal poverty line as a result of Defendants uniform wage-and-hour violations. Defendants deny
22 minor league players minimum and overtime wages on a league-wide basis. If players cannot fight that
23 wrong on a league-wide basisas a classthe reality is this injustice will likely continue in perpetuity
24 as it has for decades. More than 2,200 opt-ins and thousands of absent class members ask this Court
25 not to let that happen.
26
27
28
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3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
ARGUMENT
1
2
I.
COMMON QUESTIONS PREDOMINATE FOR EACH OF THE PROPOSED

RULE 23(b)(3) CLASSES.
Since the Courts July 21 ruling, the Ninth Circuit decided an important wage and hour class
5 action that presents issues strikingly similar to several issues here. Torres v. Mercer Canyons Inc., No. 156 35615, 2016 WL 4537378 (9th Cir. Aug. 31, 2016). As court explained in Torres, [t]he Rule 23(b)(3)
7 predominance inquiry asks the court to make a global determination of whether common questions
8 prevail over individualized ones. Id. at *5. Predominance is not, however, a matter of nose-counting.
9 Rather, more important questions apt to drive the resolution of the litigation are given more weight in
10 the predominance analysis over individualized questions which are of considerably less significance to
11 the claims of the class. Id. (citation omitted).
12
The presence of individualized issues does not defeat certification unless they genuinely
13 swamp common predominating issues. As set forth in detail below, the narrowed classes Plaintiffs
14 propose, post-class certification evidence, and the applicable case law resolve each of the issues
15 identified by the Court as affecting predominance in this case.
16
A. Choice-of-Law Issues Do Not Give Rise to Class-Defeating Individualized Inquiries.
17
Although choice-of-law questions primarily implicated the offseason work that class members
18 performed at home, the Court was also concerned about how those questions would affect
19 championship season claims (such as the interplay among multiple states laws when a team goes on
20 road trips across state lines). Plaintiffs revised class proposal eliminates these concerns. Winter
21 offseason claims are not included in the proposed classes, and the only championship season claims at
22 issue are those of class members who participated in the California League, which, as the name
23 suggests, takes place entirely within California. Similarly, training season work takes place exclusively
24 at Defendants complexes in either Arizona or Florida.
25
These work periods do not involve transitory forays across state lines. The California League,
26 spring training, extended spring training, and instructional leagues each involves extended work
27 periods lasting weeks or months within a single state. Spring training and instructional leagues last
28
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1
1 about four weeks each, and extended spring training lasts over two months. The California League
2 lasts five months and takes place at ten stadiums in California.

Given the current class proposal, little or no choice-of-law analysis is necessary. A court
4 conducts a conflict of laws analysis only where the laws of multiple states could conceivably apply to
5 the same claim. Where only one states law applies, no such analysis is necessary. Cotter v. Lyft, Inc.,
6 60 F. Supp. 3d 1059, 1061 (N.D. Cal. 2014). With respect to each class, all of the work that every class
7 member performed for membership in the class occurred in a single state. Moreover, all of the work
8 periods at issue lasted weeks or months. There should no longer be any genuine question about which
9 law applies.
To the extent Defendants still object to certification on choice-of-law grounds, the analysis is
10
11 vastly simplified. Californias choice-of-law rules govern, and their proper application in the wage-and12 hour context is clear. In Sullivan v. Oracle Corp., 254 P.3d 237 (Cal. 2011), the question was whether
13 California law applied to the wage claims of workers from other states who had performed short
14 periods of work in California. The court held that the policy underlying the statute was to regulate
15 work performed in California; to exclude nonresidents would encourag[e] employers to import
16 unprotected workers from other states. Id. at 242. In Sullivan, as here, employees spent entire days
2
17 and weeks working in California, so California law applied. Id. at 243.
The Sullivan rule is universal. Courts interpreting other states wage laws have focused on
18
19 the situs of an employees work in determining if a wage law applies, not where managerial decisions,
20 actions, or inactions occur. Priyanto v. M/S AMSTERDAM, No. CV 07-3811AHMJTLX, 2009 WL
21 175739, at *7 (C.D. Cal. Jan. 23, 2009); see also Adams v. Catrambone, 359 F.3d 858, 86364 (7th Cir.
22 2004) (focusing on where work was performed, not where the employee resides). Literally legions of
23
24
25
See Broshuis Motion for Leave Decl., Ex. B, Dkt. 695-7377 (collecting excerpts of Rule 30(b)(6)
26 testimony discussing lengths of spring training, extended spring training, and instructional leagues
taking place at Florida and Arizona worksites).
27 2
For a fuller discussion of California choice of law principles and Sullivan, see Plaintiffs Motion for
28 Leave to Move for Reconsideration. Dkt. 694 at 78.
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3
1 cases have held that the law of the state where work is performed is the law that applies.
To defeat class certification, Defendants would need to identify material conflicts that give rise
3 to individualized inquiries that overwhelm common questions. Just because two or more states are
4 involved does not itself indicate that there is a conflict of law problem. Mazza v. Am. Honda Motor
5 Co., 666 F.3d 581, 590 (9th Cir. 2012). A problem only arises if differences in state law are material,
6 id., and still, material conflicts only matter if they give rise to individual inquiries that overwhelm
7 common questions. Johnson v. Nextel Commcns Inc., 780 F.3d 128, 141 (2d Cir. 2015). Conjuring up a
8 few examples (like a players temporary assignment to the California League) does not overwhelm
9 predominating, common questions because more important questions apt to drive the resolution of
10 the litigation are given more weight in the predominance analysis. Torres, 2016 WL 4537378, at *5.
11
Plaintiffs proposed classes present no complex choice-of-law problems, much less any
4
12 certification-defeating problems. Arizona law applies to the work performed in Arizona during
13 training seasons; Florida law applies to the work performed in Florida during training seasons; and
14 California law applies to work performed in California during the California league. Any potential
15 choice-of-law issues are manageable and do not defeat predominance.
16
3
See Jimenez v. Servicios Agricolas Mex, Inc., 742 F. Supp. 2d 1078, 1099 (D. Ariz. 2010) (collecting cases
17 and noting that [o]ther courts have similarly concluded that the place where the work takes place is
the critical issue.); see also Adams, 359 F.3d at 86364 (under Illinois law, focusing on where work
18 was performed instead of the state where the employee resides); ONeill v. Mermaid Touring Inc., 968 F.
Supp. 2d 572, 57879 (S.D.N.Y. 2013) (New York law does not apply to work performed outside
19 New York because [t]he crucial issue is where the employee is laboring, not where he or she is
domiciled); Priyanto, 2009 WL 175739, at *7 (C.D. Cal. Jan. 23, 2009) (focusing on site where work
20 performed); Killian v. McCulloch, 873 F. Supp. 938, 942 (E.D. Pa. 1995), aff'd sub nom. Stadler v.
McCulloch, 82 F.3d 406 (3d Cir. 1996) (under Pennsylvania law, focusing on where work performed);
21 Mulford v. Computer Leasing, Inc., 759 A.2d 887, 891 (N.J. Law. Div. 1999) (under New Jersey law,
focusing on where employees worked); Bigham v. McCall Serv. Stations, Inc., 637 S.W.2d 227, 23132
22 (Mo. Ct. App. 1982) (Missouri lawnot Kansasapplied to work performed in Missouri); Risinger v.
SOC LLC, 936 F. Supp. 2d 1235, 124950 (D. Nev. 2013) (Nevada law does not apply to work
23 performed outside Nevada); Abdulina v. Eberls Temp. Servs., Inc., 79 F. Supp. 3d 1201, 120506 (D.
Colo. 2015) (Colorado law does not apply to work performed outside Colorado); Mitchell v. Abercrombie
24 & Fitch, No. C2-04-306, 2005 WL 1159412, at *4 (S.D. Ohio May 17, 2005) (Ohio law does not apply
to work performed outside Ohio).
25
4
If the Court has any lingering concern that choice of law issues still lurk in instances where a player
26 from another state is temporarily assigned to the California League (say for one game), a temporal
27 component could be added to the subclass definition. For example, the definition could be modified
to include only players who were assigned to the California League for at least a specified number of
28 days. Plaintiffs have not proposed such a limit because of the dearth of authority supporting one.
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
B. Whether Class Members Performed Work Is A Question Capable of Classwide

Resolution That Will Resolve A Central Issue In One Stroke.
Whether participation in spring training, extended spring training, instructional leagues or the
4 California League constitutes work are issues capable of classwide resolution, and regardless of
5 what the answers are, they will resolve an issue that is central to the validity of each one of the claims
6 in one stroke. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).
Work, the Supreme Court has long noted, is physical or mental exertion (whether
8 burdensome or not) controlled or required by the employer and pursued necessarily and primarily for
9 the benefit of the employer. Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir. 2003), affd, 546 U.S. 21
10 (2005). And even exertion [is] not in fact necessary for an activity to constitute work because an
11 employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to
12 happen. Alvarez, 546 U.S. at 25. The definitions of work under Arizona, California and Florida law
13 are all at least as broad the federal definition.5
All of the claims of the narrowed classes will rise or fall under this broad definition of work.
14
15 They can be resolved in one stroke on a classwide basis because they are now limited to the work
16 class members performed as teams under the control of the employer at team complexes. Plaintiffs no
17 longer seek recovery for offseason training, which class members performed outside of Defendants
18 direct supervision. Moreover, variances in the work activities class members performed in team
19 settings are immaterial given the broad definition of work: sitting on the bench during a game
20 waiting to play is as much compensable work as taking the field for all nine innings.
Moreover, whether playing Minor League baseball constitutes work is the central legal
21
22 question for the claims of every one of the proposed classes, and it is one that Defendants vigorously
23 dispute. It is therefore a predominant common question that will generate common answers apt to
24
Under Arizona law, work hours include all time during which an employee is on duty or at a
25 prescribed work place and all time the employee is suffered or permitted to work. Ariz. Admin. Code
R20-5-1202(9). Under California law, hours worked includes all time the employee is permitted to
26 work, whether required or not, and all time subject to the control of the employer. Morillion v. Royal
27 Packing Co., 995 P.2d 139, 143 (Cal. 2000). Thus, an employee who is subject to an employers
control does not have to be working during that time to be compensated. Id. The definition of
28 work in Florida tracks federal law. Fla. Stat. 448.110(3).
6
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
1 drive the resolution of the litigation. Dukes, 564 U.S. at 350. Resolution of those questions in the
2 affirmative will at least establish a prima facie case of Defendants liability for minimum wage damages
3 for training season claims, when no wages are paid. (And an affirmative answer on the Arizona claims
4 would be conclusive because Defendants have no affirmative defenses under Arizona law.)
5
6
C. The Length Of A Minor League Workday Is A Predominating, Common Question.

Just as no individualized inquiries are necessary for determining what constitutes work, no
7 individualized inquiries are necessary to determine how much time class members spent working. First, it
8 is now settled law that in cases where the employer has failed to keep time records, plaintiffs may
9 present classwide proof of the average amount of time employees spent working. Tyson Foods, Inc. v.
10 Bouaphakeo, 136 S. Ct. 1036 (2016). Determining an average is, by definition, not an individualized,
11 class-member-by-class-member task. Second, when the question is the length of a workday, the
12 inquiry is simplified by the continuous workday doctrine according to which an employees
13 workday is the period from the first work activity until the last. Under this rule, courts are not
14 required to retrace an employees day, activity-by-activity, because work time is continuous, not the
15 sum of discrete periods.
16
17
1. Under the Continuous Workday Doctrine, the length of a workdayfrom

whistle to whistleis a predominating common question.
18
For almost seventy years, the length of an American workday has been measured under the
19 so-called continuous workday doctrine. Under this rule, a workday is generally defined as the
20 period between the commencement and completion on the same workday of an employees principal
21 activity or activities. IBP, Inc. v. Alvarez, 546 U.S. 21, 28 (2005). In other words, a workday is roughly
22 the period from whistle to whistle. Id. at 36. Application of the doctrine eliminates any need for an
23 activity-by-activity retracing of an employees workday because work time [is] continuous, not the
24 sum of discrete periods. Alvarez, 339 F.3d at 907. The doctrine is a recognition that, once the
25 workday begins, requiring an employees presence at work makes that time compensable, even if no
26 exertion at all is required.
27
Under decades-old Department of Labor regulations, the workday includes all time within
28 that period whether or not the employee engages in work throughout all of that period. 29 C.F.R.
7
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
1 790.6. An employer must compensate its employees for: (a) All time during which an employee is
2 required to be on duty or to be on the employers premises or at a prescribed workplace and (b) all
3 time during which an employee is suffered or permitted to work whether or not he is required to do
4 so. 29 C.F.R. 778.223. Even rest periods within the workday have long been deemed compensable.
5 29 C.F.R. 785.18; see also Lillehagen v. Alorica, Inc., No. SACV 13-0092-DOC, 2014 WL 6989230, at *5
6 (C.D. Cal. Dec. 10, 2014) (evaluating rest periods and denying a motion to decertify a class). As the
7 Department has also explained:
Employees have always taken short work breaks, with pay, for a myriad of nonwork purposesa visit to the bathroom, a drink of coffee, a call to check the
9
children, attending to a medical necessity, a cigarette break, etc. The Department
has
consistently held for over 46 years that such breaks are hours worked under
10
the FLSA, without evaluating the relative merits of an employees activities.
11 DOL Opinion Letter Fair Labor Standards Act (FLSA), December 2, 1996, 1996 WL 1005233, at *1.
8
12
As discussed earlier, Arizona, California and Florida law define work at least as broadly as
13 federal law. Thus, there can be little doubt that the continuous workday doctrine applies, and
14 Defendants have not (yet) contended otherwise. Application of the continuous workday doctrine
15 means that it does not matter what specific activities class members performed during the workday or
16 whether they took short breaks. Alvarez, 546 U.S. at 28 (time spent walking after principal activity was
17 compensable); Abadeer v. Tyson Foods, Inc., 975 F. Supp. 2d 890, 904 (M.D. Tenn. 2013) (all activities
18 compensable after workday began).
19
Because the focus here is on team activities and team work periods, the present case is no
20 different than that of a group of automobile assembly line workers who, together start the workday at
21 8 a.m. and end it together at 5 p.m. Even though those workers are engaged in highly diversified
22 activitiessome install engine parts, some install transmissions, some install interior partsthose
23 variances would not defeat certification. And even though there would inevitably be outliers who
24 arrive early or show up late for any number of reasons, those variances would also not defeat a
25 classwide showing of an average, whistle-to-whistle, and continuous workday.
26
2. Statistical evidence may be used to show an average time employees worked.
27
Defendants admit they did not keep time records. As this Court recognized, where the
28 employers records are inaccurate or inadequate and the employee cannot offer convincing substitutes
8
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
1 an employee has carried out his burden if he proves that he has in fact performed work for which
2 he was improperly compensated and if he produces sufficient evidence to show the amount and
3 extent of that work as a matter of just and reasonable inference. Dkt. 687 at 88 (quoting Anderson v.
4 Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946)). [O]nce the employees work is demonstrated by
5 just and reasonable inference, if the employer fails to come forward with evidence of the precise
6 amount of work performed or with evidence to negative the reasonableness of the inference to be
7 drawn from the employees evidence , the court may then award damages to the employee, even
8 though the result be only approximate. Id.
9
In Tyson, the Supreme Court went a step further by holding that a plaintiffs use of a
10 representative sample to fill an evidentiary gap created by the employers failure to keep adequate
11 records is a permissible means of prov[ing] the hours he or she worked in a wage-and-hour class
12 action. 136 S. Ct. 1036 at 1047. In many cases, a representative sample is the only practicable means
13 to collect and present relevant data establishing a defendants liability. Id. at 1046 (quoting Manual of
14 Complex Litigation 11.493 at 102 (4th ed. 2004)). Indeed, the central holding of Tyson is that statistical
15 evidence is a permissible means of establishing the average time that class members worked in a wage16 and-hour class action. Id. at 1047. Rather than absolving the employees from proving individual
17 injury, the representative evidence here was a permissible means of making that very showing. Id.
18
The convergence of the holdings of Alvarez (the continuous workday doctrine), Mt. Clemens
19 and Tyson lead inexorably to the conclusion that Plaintiffs in the present case can satisfy (indeed,
20 already have satisfied) their burden of providing a reasonable estimate of the length of the average
21 workday for each work period as a just and reasonable inference. The available class-wide
22 evidenceboth the survey evidence and other evidence, such as game and training schedules
23 provide an evidentiary foundation for the average time actually worked by each employee, Tyson,
24 136 S. Ct. at 1040, even though the result be only approximate. Mt. Clemens, 328 U.S. at 688. As the
25 Supreme Court observed in Mt. Clemens, The employer cannot be heard to complain that the
26 damages lack the exactness and precision of measurement that would be possible had he kept [time]
27 records . The uncertainty lies only in the amount of damages arising from the statutory violation by
28 the employer. 328 U.S. at 688. In such a case it would be a perversion of fundamental principles of
9
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
1 justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any
2 amend for his acts. Id.
3
4
D. Plaintiffs Survey Is Admissible For Estimating The Hours Class Members Worked.
Like the employees in Tyson, Plaintiffs here sought to introduce a representative sample to fill
5 [the] evidentiary gap created by the employer[s] failure to keep adequate records. Tyson, 136 S. Ct. at
6 1047. Plaintiffs proposed to survey class members to provide a representative estimate of the average
7 hours class members worked during portions of each phase of the team year. It was never Plaintiffs
8 intent to rely exclusively on survey evidence. In conjunction with the statistical evidence, Plaintiffs
9 intend to rely on documentary evidence, such as game schedules for the championship season and the
10 training seasons. See Declaration of Brian Kriegler, Ph.D. in Support of Plaintiffs Motion for Class
11 Certification (Dkt. 497) (Kriegler Decl.) ( 14-33). Moreover, Plaintiffs model is not a simplistic,
12 one-size-fits-all endeavor; it takes into account differences in seasons (such as spring training and
13 championship season), and within those different periods, differences between home and away games,
14 as well as day and night games. Id. It also takes into account the actual, recorded duration of games
15 during the season, and conservatively estimates the length of (intrastate) road trips. Id. The survey,
16 together with the other kinds of evidence just mentioned, are probative of the average length of each
17 Minor League workday for each class member. Id.
18
Defendants criticized Plaintiffs pilot survey on myriad grounds, three of which the Court
19 agreed with. One was the format of the question flagged by Dr. Ericksen, a question which asked
20 respondents to provide the total amount of time they spent on a variety of activities for each of the
21 four weeks of spring training. Dkt. 687 at 99. The Courts other two concerns were the survey
22 respondents recall ability and self-interest bias. For these reasons, the Court not only ruled Plaintiffs
23 pilot survey inadmissible, but also any future survey because it would likely yield unreliable
24 results as well. Id. at 103. Plaintiffs respectfully request the Court to revisit this issue.
25
1. Plaintiffs survey evidence is admissible under Ninth Circuit law.
26
The Ninth Circuit has long held that survey evidence should be admitted as long as [it is]
27 conducted according to accepted principles and [is] relevant. Fortune Dynamic, Inc. v. Victorias Secret
28 Stores Brand Mgmt., Inc., 618 F.3d 1025, 1036 (9th Cir. 2010) (quoting Wendt v. Host Intl, Inc., 125 F.3d
10
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
1 806, 814 (9th Cir. 1997)). It has also made clear that technical inadequacies in a survey, including the
2 format of the questions or the manner in which it was taken, bear on the weight of the evidence, not its
3 admissibility. Id. (emphasis added). Treatment of surveys is a two-step process. First, is the survey
4 admissible? That is, is there a proper foundation for admissibility, and is it relevant and conducted
5 according to accepted principles? Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1263 (9th Cir.
6 2001). Once the survey is admitted, however, follow-on issues of methodology, survey design,
7 reliability, the experience and reputation of the expert, critique of conclusions, and the like go to the
8 weight of the survey rather than its admissibility. These are issues for a jury . Id. (citation omitted).
9
Even a survey [that] has a number of shortcomings, such as failing to replicate real world
10 conditions, being suggestive, and produc[ing] counterintuitive results is admissible because

11 these criticisms, valid as they may be, go to issues of methodology, survey design, reliability, ... [and]
12 critique of conclusions, and therefore go to the weight of the survey rather than its admissibility.
13 Fortune Dynamic, 618 F.3d at 103738 (quoting Clicks Billiards, 251 F.3d at 1263). Vigorous cross14 examination, presentation of contrary evidence, and careful instruction on the burden of proof are the
15 traditional and appropriate means of attacking shaky but admissible evidence. Id. at 1038 (quoting
16 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993)). These conventional devices, rather than
17 wholesale exclusion are the appropriate safeguards where the basis of scientific testimony meets
18 the standards of Rule 702. Daubert, 509 U.S. at 596. Moreover, in a wage-and-hour class action,
19 [o]nce a district court finds [such representative] evidence to be admissible, its persuasiveness is
20 the near-exclusive province of the jury. Tyson, 136 S. Ct. at 1049. The District Court could have
21 denied class certification on this ground only if it concluded that no reasonable juror could have believed that the
22 employees spent roughly equal time working. Id. (emphasis added). For these reasons, Plaintiffs request the
23 Court to reconsider its exclusion of Plaintiffs survey evidence.
24
2. The final survey undermines Defendants criticisms of the pilot survey.
25
In addition to the legal reasons for reconsidering the Courts exclusion of Plaintiffs survey
26 evidence, the final survey and its results undermine Defendants challenges (which, as just discussed,
27 go only to the weight of the evidence). First, the format of questions was reframed to break
28
11
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
6
1 [questions] down into more bite-size questions, which should lay those concerns to rest. Second,
2 the survey was conducted by an independent expert and did not disclose either the purpose of the
7
3 survey or on whose behalf it was conducted, which alleviates self-interest concerns.
In addition, the survey results permit an assessment of self-interest bias through comparison
5 of the responses of FLSA opt-in members and absent Rule 23 class members (who have not yet
6 received class notice of the suit or their potential inclusion in it). Similarly, the effect of recall bias is
7 measurable through comparison of answers from respondents who played last year and those who
8 played more than a year ago. Differences in average estimates are trivial, regardless of how long ago
9 respondents last played and regardless of the likelihood of self-interest.
The average difference in the length of a workday as estimated by respondents recalling last
10
11 years work activities versus all respondents (which includes respondents recalling their work activities
12 two or more years ago) was a mere 15 minutes. Dennis Decl., Attach. 2, Table 1D, Dkt. 696-02. Even
13 more telling, with respect to the one activity all respondents performed far more than any other
14 playing baseball games during the championship seasonthe average recall difference was even
15 smaller: 5 minutes for day away games; 8 minutes for day home games; 14 minutes for night away
16 games; and 8 minutes for night home games. Id. These differences are very comparable to those in
17 both Mt. Clemens and Tyson. As the Supreme Court noted in Tyson, [t]he variance in walking time
18 among workers [in Mt. Clemens] was alleged to be upwards of 10 minutes a day, which is roughly
19 consistent with the variances in donning and doffing times here. 136 S. Ct. at 1047. Even if these
20 negligible differences were assumed to result from recall bias (a question of persuasiveness for the
21 jury), they can still be easily accounted for by using only the data from the most recent recall periods.
Similarly, the final results provide an informed basis not only for gauging self-interest bias, but
22
23 also providing means to correct for it, if necessary, when calculating damages. The average difference
24 in the length of the workday estimate between opt-ins and all respondents (which includes non-opt25 ins) was just 3.6 minutes. Dennis Decl., Attach. 2, Table 1F, Dkt. 696-02. Even assuming that self26
See Dkt. 687 at 99; Dennis Decl. in Support of Motion for Leave to Move for Reconsideration
27 (Dennis Decl.), Dkt. 696, at 4, 33, 37.
28
See generally Dennis Decl., Dkt. 696, 39 (discussing branding of the survey with a logo).
12
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
8
1 interest accounts for these minimal differences, it can now be accounted for by various means. See
2 Johnson v. Big Lots Stores, Inc., No. CIV.A. 04-3201, 2008 WL 1930681, at *7 (E.D. La. Apr. 29, 2008)
3 (admitting a survey of FLSA opt-ins because statistical experts frequently employ surveys in which
4 respondents have a potential interest in the outcome of the survey. Potential bias by the survey
5 respondents may affect the ultimate weight that should be accorded to [experts] opinion, but it does
6 not render his study unreliable.).
Dr. Dennis also compared the survey results to other evidence of work schedules during
8 spring training, extended spring training, instructional leagues, and the championship season. Dennis
9 Decl., 2629, Dkt. 696. For instance, daily schedules for 2015 spring training game days show the
10 most common required start time for all players was around 9 a.m.or 4 hours before the games
11 start timeand that early work frequently began around 8 a.m. See id., Attach. 3. Combining those
12 times with estimated game times provides an average workday of around 78.5 hours. These times
13 correspond well to survey results, which show average work routines on spring game days of 7.91
14 8.76 hours. Id. 27.
Schedules for 2015 instructional leagues are similar. Again, the most common start time for all
15
16 players was between 8:30 and 9:30, with early work beginning between 7:30 and 8:00. Games usually
17 took place at either 12:30 or 1:00. See id., Attach. 3, Dkt. 696-03. Combining those times with game
18 times produces an estimated average workday of around 78 hours. The average survey estimate was
19 between 7.16 and 7.90 hours (depending on whether the game was at home or away). Id., Attach. 2
20 (Weighted chart), Dkt. 696-02.
For the championship season, Defendants testimony also parallels survey results. According
21
22 to that testimony, players usually arrived to work around 4 hours before home night games, and 34
23 hours before away night games. Id. 29 and Attach. 4, Dkt. 696, 696-04. These estimates are in line
24 with survey results, which showed non-game work durations of 4.51 to 5.57 hours (depending on
9
25 whether the game was away or at home). Id., Attach. 2 (weighted chart), Dkt. 696-02.
26
8
27
For example, Plaintiffs economist could use only the tenth percentile (i.e., the lowest 10% of time
estimates) for calculating damages. Or opt-in responses could be excluded from damages calculations.
28
These durations from the survey included both pregame durations and postgame durations (unlike
13
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
1
2
3. Plaintiffs evidence permits a just and reasonable inference about when team
activities began.
The restructured class proposal also addresses the Courts concern that the variations among
4 class members as to the types of activities in which they engaged and the time spent performing those
5 activities make this case distinguishable from Tyson Foods. Dkt. 687 at 91. With a renewed focus
6 exclusively on team work periods, this case is like Tyson in a crucial respect: workdays started and
7 ended at roughly the same times for class members each day, just as donning and doffing times were
8 similar in Tyson. Variations in the kinds of work activities in which class members engaged at team
9 practices are rendered irrelevant by the continuous workday doctrine. Plaintiffs readily acknowledge
10 that a pitchers workday activities differed from an outfielders or shortstops, but despite those
11 differences, they were both entitled to be compensated from whistle to whistle. The question is
12 whether that whistle to whistle time can be roughly approximated for all class members.
13
In addressing that question, it is essential to bear in mind what Plaintiffs burden is at this
14 stage of the proceedingsor more importantly, what it is not. At the certification stage, whether class
15 members in fact spent roughly equal time working is not at issue. Indeed, a court may deny class
16 certification on this ground only if it concluded that no reasonable juror could have believed that the
17 employees spent roughly equal time working. Tyson, 136 S. Ct. at 1049. Whether class members
18 actually spent equal time working is a merits question, and an evaluation of the probable outcome on
19 the merits is not properly part of the certification decision. Amgen Inc. v. Conn. Ret. Plans & Trust
20 Funds, 133 S. Ct. 1184, 1195 (2013) (quoting 2003 Advisory Committees note). Rule 23 grants courts
21 no license to engage in free-ranging merits inquiries at the certification stage. Id. at 119495. That
22 said, the answer is yes: whistle to whistle time can be roughly approximated for all class members.
23
Plaintiffs have presented evidence that the team workdays are similar across clubs. Several
24 deponents who have worked for multiple team organizationsincluding Defendants witnesses
25 testified that the work routines are similar from team to team.10 As one plaintiff put it, The only
26
27 the estimates derived from deposition testimony, which included only pregame durations).
10
Scales Dep. Tr. at 11819, Ex. N-1 to Broshuis Class Cert. Decl., Dkt. 552-01 (affirming that the
28 work routine he described applied to all teams he worked for, including the Phillies, Red Sox, Cubs,
14
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
1 differences between all three organizations was the color of the paint on the walls and the names of
2 the coaches. Newby Dep. Tr. at 79, Ex. N-3 to Broshuis Class Cert. Decl., Dkt. 552-03. A
11
3 comparison of daily schedules confirms the similarities in core team routines.
As discussed above, proof of average worktimes is permissible. Beyond that, however, Plaintiffs
5 and their experts propose using a conservative percentile approach with the survey data to eliminate
6 outliers and ensure the focus remains on start times for team activities. For example, the 10th
7 percentile of survey responses (representing the amount of time estimated by at least 90% of survey
8 respondents), aligns with other objective evidence culled from Defendants own documents.
Defense testimony confirms that, in the absence of time records, daily schedules are the best
12
10 evidence of the length of a given workday, though they are admittedly imperfect (e.g., they usually
11 omit activities like weightlifting, early hitting in the cages, extra stretching, and other preliminary or
12 postliminary activities). As a result, reliance on team schedules provides a very conservative estimate
13 focused on required team activities; to the extent Plaintiffs rely on data from schedules, they have
14 focused on the beginning of team activities, such as the team stretch.
As discussed above, Dr. Dennis already performed a comparison of daily schedules and
15
16 survey data for the training seasons. The following table summarizes Plaintiffs comparison of survey
17 results and team daily schedules for the championship season.
18
19
20
21
22
Mets, and Angels); Harper Dep. Tr. 17479, Ex. N-2 to Broshuis Class Cert. Decl., Dkt. 552-02
23 (testifying that work routines for the three MLB organizations for which he coached were similar and
calling them standard).
24 11
Compare, e.g., Ex. I-9 to Broshuis Class Cert. Decl., Dkt. 540-09 (an Astros spring schedule) with Ex.
I-37,
Dkt. 540-37 (a Giants spring schedule); compare also Ex. R-2 to Broshuis Class Cert. Decl., Dkt.
25
556-02 (pre-game work routines for a Phillies affiliate) with Ex. R-23, Dkt. 556-23 (pregame work
26 routine for a Blue Jays affiliate).
12
Seattle Mariners Dep. Tr., at 374:16-20, Ex. A to Broshuis Decl.; Milwaukee Brewers Dep. Tr., at
197:5-10, Ex. B to Broshuis Decl.; Miami Marlins Dep. Tr. (Chattin), at 124:1-7, Ex. C to Broshuis
28 Decl.; Scales Dep. Tr., at 204:6-9, Ex. D to Broshuis Decl.
15
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
27
Hours Before Championship Season Games:

Comparison of Daily Schedule Data and Survey Data
Home Night Games
Number of
Schedules
Reviewed
167
Schedule Data:
Required Pregame
Work (in hours)
3.85
Home Day Games
89
Away Night Games

Away Day Games
Description13
4
5
6
Survey Data: Tenth

Percentile (in hours)
Difference
(Schedules vs. Survey)
4.50
(0.65)
3.38
2.50
0.88
341
3.67
3.50
0.17
86
3.04
2.00
1.04
7 As these comparisons show, using the 10th percentile of survey data corresponds well with objective
8 evidence of scheduled start times. In fact, in most instances, the 10th percentile is slightly lower than
9 average start times according to team schedules.14
Plaintiffs do not suggest that this evidence is as precise or accurate as time records would be,
10
11 but Plaintiffs burden is not that demanding: the employer, having received the benefits of such
12 work, cannot object to the payment for the work on the most accurate basis possible under the
13 circumstances. Mt. Clemens, 328 U.S. at 688. Nor is such a result to be condemned by the rule that
14 precludes the recovery of uncertain and speculative damages. That rule applies only to situations
15 where the fact of damage is itself uncertain. Id. The uncertainty lies only in the amount of damages
16
13
Night games were scheduled to begin at or after 5:00 pm. Day games were scheduled to begin
17 before 5:00 pm. The data from the underlying documents can be found in Broshuis Decl., Exs. G &
H. For home games, hours before the game are the difference between the game start time and the
18 stretch start time. As seen in Exhibit G, the documents for home games often did not include a
stretch time but instead included a time for first scheduled activity to occur. When no stretch time was
19 provided, the average length of a stretch routine was added onto the first required activity (such as
20 batting practice, throwing, or infield/outfield) to obtain an estimated stretch time. For away games,
hours before the game are the difference between the game start time and the last team bus departure
21 time. The averages were then computed by calculating the median hours for each affiliate that had
schedules in the sample and then averaging the medians.
22 14
The one exception is home night games. This is not surprising because players perform more
required
early work before home night games; documents and testimony show that players must
23
arrive well before the team stretch for these activities before home night games. See, e.g., Ex. R-1 to
24 Broshuis Class Cert. Decl., Dkt. 556-01 (showing required report time of 2:00 for 7:00 home games
and early work at 3:15); Ex. R-26 to Broshuis Class Cert. Decl., Dkt. 556-26 at pp. 31-33 (discussing
25 types of mandatory early work that must take place a certain number of times per week before the
required stretch time); Candaele Dep. Tr. at 163:24-164:21, Ex. J-7 to Broshuis Class Cert. Decl., Dkt.
26 541-07 (early work commonly at 2:30 for home night games and other player activities usually
27 beginning by 3:00); Harper Dep. Tr. at 113:3-8, Ex. J-9 to Broshuis Class Cert Decl., Dkt. 541-09
(early work around 2:30 or 3:00 for home night games). The survey data more accurately reflects these
28 work activities because they are typically not included in team schedules.
16
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
1 arising from the statutory violation by the employer. Id. [A]n employee has carried out his burden if
2 he proves that he has in fact performed work for which he was improperly compensated and if he
3 produces sufficient evidence to show the amount and extent of that work as a matter of just and
4 reasonable inference, even though the result be only approximate. Id. at 68788.
Here too, Plaintiffs have presented sufficient evidence to carry their burden. Their statistical
6 evidence is sufficient evidence according to Tyson. In addition, team schedules provide reassurance
7 that the survey results are sufficiently reliable to show the amount and extent of that work as a
8 matter of just and reasonable inference. Because the persuasiveness of that evidence is the near9 exclusive province of the jury, the Court can deny class certification on the insufficiency of this
10 evidence only if it conclude[s] that no reasonable juror could have believed that the employees spent
11 roughly equal time working. Tyson, 136 S. Ct. at 1049. As in Tyson, the record here provides no basis
12 for such a conclusion. Id.
13
14
15
II.
DIFFERENCES IN COMPENSATION DO NOT GIVE RISE TO

CERTIFICATION-DEFEATING INDIVIDUALIZED ISSUES.
Defendants contended, and the Court agreed, that differences in amounts each class member
16 has been compensated go not only to damages but also to liability. Dkt. 687 at 80, 82. The central,
17 predominating liability question, however, is whether Defendants were legally obligated to pay class
18 members minimum or overtime wages, a question Defendants hotly dispute. The only sense in which
19 differences in class member compensation is implicated is, if the answer to the common question is
20 yesDefendants are liable to pay minimum and overtime wagesdetermining specific instances in
21 which Defendants violated that obligation require individual calculations of damages. In instances in
22 which the calculation is zero, the class member is uninjured and thus not entitled to recovery.
23
Since the Courts ruling, the Ninth Circuit has addressed this issue, and it held that
24 circumstances like these do not defeat certification. Torres, 2016 WL 4537378, at *7. Although this
25 Court cast the question as one of liability, the court of appeals viewed it as whether a class may be
26 certified if it contains members who were not injured and have no legal right to any damages, a
27 question the Supreme Court left open in Tyson. 136 S. Ct. at 1049. In Torres, the Ninth Circuit
28 observed that even a well-defined class may inevitably contain some individuals who have suffered
17
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
15
1 no harm as a result of a defendants unlawful conduct. 2016 WL 4537378, at *7. The court
2 expressly rejected the argument that the presence of certain non-injured individuals in the class
3 defeats predominance. Id. In response to the defendants argument that the class [was] too broad
4 because it includes a subset of people not harmed, the court observed: This merely highlights
5 the possibility that an injurious course of conduct may sometimes fail to cause injury to certain class
6 members. However, it fails to reveal a flaw that may defeat predominance . Id.
If the answer to the predominating, common question is that Defendants are liable to class
8 members for minimum wage and overtime compensation, only then does the issue of how much each
9 class member has been compensated (Dkt. at 80) become relevantrelevant to the calculation of
10 damages. In this Circuit, the rule is clear: the need for individual damages calculations does not,
11 alone, defeat class certification. Vaquero v. Ashley Furniture Indus., Inc., 824 F.3d 1150, 1155 (9th Cir.
12 2016). Thus, even if damage calculations reveal the presence of uninjured class members, this is not a
13 flaw that may defeat predominance. Torres, 2016 WL 4537378, at *7.
There is no requirement that employees must be paid identical wages in order for a class to be
14
15 certified. Indeed, differences in wages exist in almost every business, so such a requirement would
16 make it nearly impossible to certify any wage and hour class action. In this case, Plaintiffs will identify
17 the wages earned by individual class members based on Defendants payroll recordsjust as in any
18 other employment class action. See Kriegler Decl. 34-36. These payroll records will allow Plaintiffs
19 to identify which minor leaguers sustained damages. See Torres, 2016 WL 4537378, at *7; Minns v.
20 Advanced Clinical Employment Staffing LLC, No. 13-CV-03249-SI, 2015 WL 3491505, at *8 (N.D. Cal.
21 June 2, 2015) (citing Newberg on Class Actions 4:50 (5th ed.) (common issues predominate when
22 individual factual determinations can be accomplished using computer records)).
23
24
15
This Court reached a similar conclusion, agreeing that a class may be ascertainable even if it
25 include persons who have suffered no injury, Dkt. 687 at 59, and note[d] in particular that it is not
persuaded by Defendants assertion that the State Classes are overbroad because they may include
26 members who have no cognizable wage and hour claim against their Club under that states law. Id.
27 at 61 n.12. The Court also concluded that Rule 23 does not preclude certification of a class that may
contain individuals whose claims ultimately may fail. Id. at 61-62 n.12. Torres makes clear that the
28 same is true with respect to the (b)(3) predominance requirement, as well.
18
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
1 III.
2
RESOLUTION OF THE ONLY TWO AFFIRMATIVE DEFENSES AVAILABLE

TO DEFENDANTS WILL NOT GIVE RISE TO CERTIFICATION-DEFEATING
INDIVIDUALIZED INQUIRIES.
As the Court discussed in its July 21 order, Defendants have raised two affirmative defenses:
4 the seasonal amusement and recreational establishment defense and the creative professionals
5 exemption. As with other issues, Plaintiffs narrowed Class and Collective proposal eliminate the
6 Courts manageability concerns with respect to both defenses.
7
8
A. The seasonal amusement and recreational establishment defense presents

predominating, common questions.
As the Court correctly noted, the FLSA provides an exemption from wage requirements for
10 an amusement or recreational establishment that (A) does not operate for more than seven
11 months in any calendar year, or (B) during the preceding calendar year, its average receipts for any six
12 months of such year were not more than 33 1/3 per centum of its average receipts for the other six
13 months of such year. Dkt. 687 at 84 (quoting 29 U.S.C. 213(a)(3)). Florida law provides the same
14 exemption. Fla. Stat. 448.110(3) (adopting federal law). Arizona and California law do not.16 This
15 exemption requires a determination of the relevant establishment(s) and then an examination of
16 whether the period of operation and receipts of the establishment for any given year fall within the
17 requirements of the exemption for any portion of the relevant statutory period. Dkt. 687 at 84.
The Court thought that the number of establishments it would need to examine increases
18
19 the likelihood that class treatment of Plaintiffs claims will be swamped by the individual inquiries
20 related to determining whether each establishment satisfies the requirements of the exemption. Id. at
21 85. However, [f]or purposes of [the (b)(3) predominance] analysis, [a]n individual question is one
22 where members of a proposed class will need to present evidence that varies from member to
23
16
Defendants erroneously claim that California law also provides the exemption. Dkt. 409 at 81. (The
24 Court also stated incorrectly that the exemption is available under California law. Dkt. 687 at 84.).
Defendants cite Californias Industrial Welfare Commission Order No. 10-2001 (available at
25 http://www.dir.ca.gov/IWC/IWCArticle10.pdf), relating to the Amusement and Recreation Industry.
While that wage order regulates the amusement and recreation industry, it does not provide the same
26 kind of amusement and recreational exemption that the FLSA does. Instead, Section 1(A) of the
27 Order provides an exemption from the protections afforded by that Order for persons employed in
administrative, executive, or professional capacitiesin other words, Californias version of the
28 professional exemption (discussed in the next section of text).
19
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
1 member, while a common question is one where the same evidence will suffice for each member to
2 make a prima facie showing [or] the issue is susceptible to generalized, class-wide proof. Torres,
3 2016 WL 4537378, at *5 (emphasis added). Whether Defendants establishments qualify for the
4 exemption is not a certification-defeating individualized issue within the meaning of Rule 23(b)(3). Cf.
5 Ubaldi v. SLM Corp., No. 11-01320 EDL, 2014 WL 1266783, at *12 (N.D. Cal. Mar. 24, 2014)
6 (Determining whether Sallie Mae is a de facto lender does not require an class member-by-class
7 member inquiry, though it may involve a bank-by-bank inquiry.).
8
While the parties dispute what the relevant establishments are, even by Defendants
9 reckoning, the number of sites at issue are not overwhelming. Under the revised class definitions,
10 there are at most 15 facilities in Florida, 15 facilities in Arizona, and 10 facilities in California.
11 Therefore, Defendants seasonal amusement and recreational establishment defense provides no
12 grounds for denying class certification. See Dkt. 687 at 85 (this defense on its own would not warrant
13 denial of class certification).
14
15
16
B. The creative professionals exemption defense presents predominating, common

questions.
Like the seasonal exemption, the creative professionals exemption does not give rise to
17 certification-defeating individualized inquiries. As the Court has noted, the defense has two prongs.
18 First, it applies to employees whose primary duty [is] the performance of work requiring invention,
19 imagination, originality or talent in a recognized field of artistic or creative endeavor as opposed to
20 routine mental, manual, mechanical or physical work. Dkt. 687 at 85 (quoting 29 C.F.R. 541.302).
21 Second, the employee must be [c]ompensated on a salary or fee basis at a rate of not less than $455
22 per week. 29 C.F.R. 541.300.
23
As the Court recognized, Defendants have not pointed to any variations in the duties of the
24 class members that would give rise to individualized issues in determining whether the first prong of
25 the exemption applies. Dkt. 687 at 85. The Court did think, however, that the second prong
26 increases the likelihood that class treatment of Plaintiffs claims will be overwhelmed by the
27 individual inquiries, because determination of whether the exemption applies will require that the
28 compensation paid to each class member is taken into account so that it can be determined whether
20
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
1 the player meets the minimum salary requirement for the exemption. Id. at 86.
2
As discussed earlier, however, the necessity of making individualized factual determinations
3 does not defeat class certification if those determinations are susceptible to generalized proof like
4 employment and payroll records. Minns, 2015 WL 3491505, at *8. (Even this is unnecessary for the
5 training seasons during which Defendants pay no wages; thus, for the Arizona and Florida Classes,
6 Defendants will not be able to satisfy the second, $455/week prong of the test.) [W]here common
7 issues otherwise predominated, courts have usually certified Rule 23(b)(3) classes even though
8 individual issues were present in one or more affirmative defenses. Smilow v. Sw. Bell Mobile Sys., Inc.,
9 323 F.3d 32, 39 (1st Cir. 2003) (collecting cases including Cameron v. E.M. Adams & Co., 547 F.2d 473,
10 478 (9th Cir. 1976)). As the Ninth Circuit recently held in Torres, Predominance is not a matter of
11 nose-counting. Rather, more important questions apt to drive the resolution of the litigation are given
12 more weight in the predominance analysis over individualized questions which are of considerably less
13 significance to the claims of the class. Torres, 2016 WL 4537378, at *5 (citation omitted). For these
14 reasons, the creative professionals exemption defense does not give rise to individualized inquiries
15 that overwhelm the predominating, common questions. See Dkt. 687 at 86 (suggesting this particular
16 defense would not, by itself, warrant denying class certification).
17 IV.
PLAINTIFFS HAVE SATISFIED ALL OF RULE 23(a)S REQUIREMENTS.
18
The Court previously found that Plaintiffs had satisfied all of Rule 23(a)s requirements,
19 except typicality (and adequacy, to the extent it overlapped with the typicality requirement, see Dkt.
20 687 at 72). The Court also concluded that as currently defined, the classes are not ascertainable
21 because of the problems associated with determining membership in the State Classes based on winter
22 training. Dkt. 687 at 59. Because Plaintiffs revised class proposal does not include winter training,
23 there is no remaining issue of ascertainability.
24
Rule 23(a)s typicality standard is a permissive one. Parsons v. Ryan, 754 F.3d 657, 685 (9th
25 Cir. 2014). The test of typicality is whether other members have the same or similar injury, whether
26 the action is based on conduct which is not unique to the named plaintiffs, and whether other class
27 members have been injured by the same course of conduct. Hanon v. Dataproducts Corp., 976 F.2d
28 497, 508 (9th Cir. 1992).
21
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
Plaintiffs restructured classes meet this standard. Plaintiffs and class members have sustained
2 the same or similar injuries, the action is based on conduct which is not unique to the named
3 plaintiffs, and class members have been injured by the same course of conduct. Nothing more is
4 required. For the Courts convenience, Plaintiffs have submitted two detailed tables summarizing
5 which of the named plaintiffs worked in Florida and Arizona during the relevant Class periods, which
6 plaintiffs worked in the California League during the relevant California League Class periods, and
7 which plaintiffs seek to represent the Rule 23(b)(2) class of current players. See Broshuis Decl., Exs. E
8 & F. Thus, the proposed classes satisfy the typicality requirement.
9
V.
10
THE COURT SHOULD CERTIFY A RULE 23(b)(2) SUBCLASS OF CURRENT

PLAYERS.
11
The Court previously refused to grant class certification under Rule 23(b)(2) because there
12 were no current minor league players as class representatives who had standing. Dkt. 687 p. 92-93.
13 Since then four current minor leaguers have moved to intervene and are seeking to become named
14 Plaintiffs and class representatives in the lawsuit. As they explain in their motion to intervene and
15 declarations, their primary goal in intervening is to bring an end to Defendants unlawful wage and
17
16 hour policies and practices through a classwide injunction.
Under Rule 23(b)(2), class certification is appropriate when the party opposing the class has
17
18 acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or
19 corresponding declaratory relief is appropriate respecting the class as a whole. See Rodriguez v. Hayes,
20 591 F.3d 1105, 1125 (9th Cir. 2010) ((b)(2) certification appropriate when class members complain of
21 a pattern or practice that is generally applicable to the class as a whole). For (b)(2) certification
22 purposes, it does not matter if some class members suffered no injury or different injuries from the
23 challenged practice. Id. And unlike (b)(3) classes, questions of trial manageability and judicial
24 economy are irrelevant to 23(b)(2) class actions. Id. Thus, certification of the Rule 23(b)(2) class
17
Jones Decl., Dkt. 719-3, 11; Johnson Decl., Dkt. 719-2, 10; Hunter Decl., Dkt. 719-4, 12;
Opitz Decl., Dkt. 719-5, 12. The Court has already found the current class representatives to be
26 adequate class representatives. Dkt. 687 at 72 (that the adequacy requirement is satisfied). If the
27 Court permits the intervenors to join the litigation, there is no reason to make any different adequacy
finding with respect to them, as they are indeed adequate class representatives who have suffered and
28 continue to suffer injuries typical of those of the Classes. See Broshuis Decl., Ex. F.
22
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
25
1 would be appropriate, even if the Court remains concerned about issues related to predominance
2 under Rule 23(b)(3).
3
Before the Supreme Court decided Dukes, the Ninth Circuit permitted certification of claims
4 for damages, including restitution, under Rule 23(b)(2) if the injunctive or declaratory relief sought
5 predominated over any monetary relief sought. Aho v. AmeriCredit Fin. Servs., Inc., 277 F.R.D. 609,
6 61718 (S.D. Cal. 2011). In Dukes the Court held that claims for monetary relief cannot be certified
7 under (b)(2), at least where the monetary relief is not incidental to the injunctive or declaratory
8 relief. 564 U.S. at 360. The Supreme Court also questioned, but did not decide, whether there are
9 any forms of incidental monetary relief that are consistent with (b)(2) certification. Id. at 366. Here
10 it is unnecessary for this Court to decide whether the monetary relief Plaintiffs seek for the (b)(3)
11 Class and California Waiting Time Subclass is incidental relief because Plaintiffs are not seeking to
12 have those claims certified as part of the separate (b)(2) class.
13
It is permissible to seek both a damages class under Rule 23(b)(3) and a separate injunctive
14 relief class under Rule 23(b)(2). In re NCAA Student-Athlete Name & Likeness Licensing Litig., No. C 0915 1967 CW, 2013 WL 5979327, at *7 (N.D. Cal. Nov. 8, 2013) (Nothing in the federal rules or existing
16 case law prevents them from seeking certification under both of these provisions.). Injunctive relief
17 is sought on behalf of the (b)(2) class, and damages on behalf of the (b)(3) class. See id.; see also Ellis v.
18 Costco Wholesale Corp., 285 F.R.D. 492, 503, 53637 (N.D. Cal. 2012) (certifying (b)(2) and (b)(3)
19 classes); Aho v. AmeriCredit Fin. Servs., Inc., 277 F.R.D. 609, 619, 623 (S.D. Cal. 2011) (same). As noted,
20 treating the (b)(2) claims separately from the damages claims eliminates the need to decide whether
21 damages are incidental to the injunctive relief. See Aho, 277 F.R.D. at 619, 623.
22
The Court has determined the existence of questions common to all class members, such as
23 the legality of Defendants failure to pay wages outside the championship season and failure to pay
24 overtime for work exceeding 40 hours in a workweek. Dkt. 687 at 6263. The adjudication of the
25 legality of these practices will not only resolve a central issue in one stroke, Dukes, 564 U.S. at 350,
26 it will conclusively determine whether the (b)(2) plaintiffs and class members are entitled to the
27 injunctive and declaratory relief they seek, namely an order compelling Defendants to pay current
28 minor leaguers in compliance with applicable state wage laws.
23
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
VI.
IN THE ALTERNATIVE TO A RULE 23(b)(3) CLASS, THE COURT SHOULD

CERTIFY A RULE 23(c)(4) CLASS.
If despite the foregoing, the Court still has misgivings about individualized inquiries
4 overwhelming the common (b)(3) class issues, it should at least certify those common issues for class
5 treatment under Rule 23(c)(4), which provides that an action may be brought or maintained as a class
6 action with respect to particular issues. The Ninth Circuit, and other Circuits, have recognized the
7 propriety of (c)(4) certification. Rule 23 authorizes the district court in appropriate cases to isolate
8 the common issues under Rule 23(c)(4)(A) and proceed with class treatment of these particular
9 issues. Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996); see also Cordes & Co. Fin.
10 Servs. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 109 (2d Cir. 2007) ([I]f the district court concludes
11 that the action ought not to be certified in its entirety because it does not meet the predominance
12 requirement of Rule 23(b)(3), [plaintiffs] may seek certification of a class to litigate the first element of
13 their antitrust claimpursuant to Rule 23(c)(4)(A).); Mejdrech v. Met-Coil Sys. Corp., 319 F.3d 910, 911
14 (7th Cir. 2003) (If there are genuinely common issues, issues identical across all the claimants, issues
15 moreover the accuracy of the resolution of which is unlikely to be enhanced by repeated proceedings,
16 then it makes good sense, especially when the class is large, to resolve those issues in one fell swoop
17 while leaving the remaining, claimant-specific issues to individual follow-on proceedings.).
18
As this Court itself recently recognized, deciding important issues on a classwide basis would
19 be far more efficient for both the parties and the courts than requiring Defendants to litigate the same
20 issue in a multitude of individual cases. Kamakahi v. Am. Socy for Reprod. Med., 305 F.R.D. 164, 193
21 (N.D. Cal. 2015) (Spero, J.). Indeed, the Court has already found that many critical issues in this case
22 are common, including:
23
24
Whether minor leaguers are employees under the wage-and-hour laws, and, relatedly,
whether MLB jointly employs them;
Whether minor leaguers are performing work during the training seasons and the
championship season;
Whether the creative artist exemption applies to minor leaguers under Florida and
California law;
Whether the seasonal and amusement exemption applies under Florida law.
25
26
27
28
24
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
The resolution of these issues for all minor leaguers would significantly simplify future,
2 individual litigation. For instance, if the first two questions are resolved in Plaintiffs favor, all that
3 would remain under Arizona law would be a determination of how many hours a particular minor
4 leaguer worked in Arizona, and how much he should have been paida simple damages calculation.
5 The same is true for California class members, once the Court resolves the creative artist exemption,
6 since, contrary to Defendants assertions, the seasonal and amusement exemption is not a recognized
7 defense under California law. Thus, even if the Court finds (b)(3) predominance still lacking, it should
8 certify these important, common issues under Rule 23(c)(4).
9
10
VII. A NARROWED FLSA COLLECTIVE SHOULD BE RE-CERTIFIED.

The FLSA Collective should be re-certified, with the exception that Plaintiffs propose limiting
11 the Collective in the same manner as their proposed narrowing of the Rule 23 Class (i.e., eliminating
12 the winter offseason claims and limiting the Collective to minor leaguers who participated in spring
13 training, extended spring training or instructional leagues in Arizona or Florida or who worked in the
14 California League). Thus, for all the reasons the Court should now certify the restructured Rule 23
15 class, it should also recertify this narrowed FLSA Collective. See Harris v. Vector Mktg. Corp., 753 F.
16 Supp. 2d 996, 1003 (N.D. Cal. 2010) (recognizing that while the second stage of collective certification
17 is more stringent than conditional certification, it is still different, and easier to satisfy, than the
18 requirements for a class action certified under Federal Rule of Civil Procedure 23(b)(3)).
19
As already discussed at length, Plaintiffs proposed classwide evidence (survey and other
20 evidence) of the average length of a workday and the continuous workday doctrine simplify the
21 analysis of Plaintiffs state law claims. They also simplify analysis of Plaintiffs FLSA claims.
22 Moreover, because federal law governs all claims arising under the FLSA, there is no conflict of law
23 with respect to the FLSA claims. For these reasons and the more lenient standard applied to FLSA
24 certification, the Court should recertify the narrowed FLSA Collective.
25
26
CONCLUSION
For the foregoing reasons, the Court should grant Plaintiffs Motion for Reconsideration.
27
28
25
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)
1 DATED: September 14, 2016
Respectfully submitted,
2
3
4
5
6
7
8
9
10
/s/ Stephen M. Tillery

PEARSON, SIMON & WARSHAW LLP
Bruce L. Simon
Daniel L. Warshaw
Bobby Pouya
Benjamin E. Shiftan
KOREIN TILLERY, LLC
Stephen M. Tillery
Robert L. King
George A. Zelcs
Aaron M. Zigler
Garrett R. Broshuis
Plaintiffs Interim Co-Lead Class Counsel
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
26
3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)

Senne v. MLB - Plaintiff's Motion For Reconsideration Regarding Class and Collective Certification (Sept. 14, 2016)

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Senne v. MLB - Plaintiff's Motion For Reconsideration Regarding Class and Collective Certification (Sept. 14, 2016)

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Case 3:14-cv-00608-JCS Document 720 Filed 09/14/16 Page 1 of 34

1 STEPHEN M. TILLERY (pro hac vice)

DANIEL L. WARSHAW (Bar No. 185365)

17 Plaintiffs Interim Co-Lead Class Counsel

UNITED STATES DISTRICT COURT

AARON SENNE, et al., Individually and on

24 OFFICE OF THE COMMISSIONER OF

CASE NO. 3:14-cv-00608-JCS

MOTION FOR RECONSIDERATION REGARDING CLASS AND COLLECTIVE CERTIFICATION

Case 3:14-cv-00608-JCS Document 720 Filed 09/14/16 Page 2 of 34

NOTICE OF MOTION AND MOTION

3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)

MOTION FOR RECONSIDERATION REGARDING CLASS AND COLLECTIVE CERTIFICATION

Case 3:14-cv-00608-JCS Document 720 Filed 09/14/16 Page 3 of 34

Plaintiffs also seek certification of the following Rule 23(b)(2) Class:

5 Section 216 of the Fair Labor Standards Act:

/s/ Stephen M. Tillery

KOREIN TILLERY, LLC

Plaintiffs Interim Co-Lead Class Counsel

3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)

MOTION FOR RECONSIDERATION REGARDING CLASS AND COLLECTIVE CERTIFICATION

Case 3:14-cv-00608-JCS Document 720 Filed 09/14/16 Page 4 of 34

2 NOTICE OF MOTION AND MOTION ....................................................................................................... i

COMMON QUESTIONS PREDOMINATE FOR EACH OF THE

Choice-of-Law Issues Do Not Give Rise to Class-Defeating

Whether Class Members Performed Work Is A Question Capable of

The Length Of A Minor League Workday Is A Predominating,

Under the Continuous Workday Doctrine, the

Statistical evidence may be used to show an average

Plaintiffs Survey Is Admissible For Estimating The Hours Class

Plaintiffs survey evidence is admissible under Ninth

The final survey undermines Defendants criticisms

Plaintiffs evidence permits a just and reasonable

DIFFERENCES IN COMPENSATION DO NOT GIVE RISE TO

RESOLUTION OF THE ONLY TWO AFFIRMATIVE DEFENSES

The seasonal amusement and recreational establishment defense

The creative professionals exemption defense presents predominating,

3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)

MOTION FOR RECONSIDERATION REGARDING CLASS AND COLLECTIVE CERTIFICATION

Case 3:14-cv-00608-JCS Document 720 Filed 09/14/16 Page 5 of 34

PLAINTIFFS HAVE SATISFIED ALL OF RULE 23(a)S

THE COURT SHOULD CERTIFY A RULE 23(b)(2) SUBCLASS

IN THE ALTERNATIVE TO A RULE 23(b)(3) CLASS, THE

A NARROWED FLSA COLLECTIVE SHOULD BE RE-CERTIFIED. ................ 25

Alvarez v. IBP, Inc.,

Bigham v. McCall Serv. Stations, Inc.,

3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)

MOTION FOR RECONSIDERATION REGARDING CLASS AND COLLECTIVE CERTIFICATION

Case 3:14-cv-00608-JCS Document 720 Filed 09/14/16 Page 6 of 34

1 Clicks Billiards, Inc. v. Sixshooters, Inc.,

Cotter v. Lyft, Inc.,

Mazza v. Am. Honda Motor Co.,

3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)

MOTION FOR RECONSIDERATION REGARDING CLASS AND COLLECTIVE CERTIFICATION

Case 3:14-cv-00608-JCS Document 720 Filed 09/14/16 Page 7 of 34

1 Mejdrech v. Met-Coil Sys. Corp.,

Minns v. Advanced Clinical Employment Staffing LLC,

Sullivan v. Oracle Corp.,

3:14-cv-00608-JCS (with 3:14-cv-03289-JCS)

MOTION FOR RECONSIDERATION REGARDING CLASS AND COLLECTIVE CERTIFICATION

Case 3:14-cv-00608-JCS Document 720 Filed 09/14/16 Page 8 of 34

1 Ubaldi v. SLM Corp.,

Vaquero v. Ashley Furniture Indus., Inc.,