Ellis v. Costco Wholesale Corporation

Filing 702

STIPULATION AND ORDER re 701 Regarding Communications With Class Members filed by Shirley "Rae" Ellis, Leah Horstman. Signed by Judge Edward M. Chen on 11/27/12. (bpf, COURT STAFF) (Filed on 11/27/2012)

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THE IMPACT FUND
Brad Seligman (SBN: 83838)
Jocelyn D. Larkin (SBN: 110817)
125 University Avenue
Berkeley, Ca 94710
Telephone: [phone]
Facsimile: [phone]
[e-mail]

SEYFARTH SHAW LLP
Kenwood C. Youmans (SBN: 68258)
David D. Kadue (SBN: 113578)
2029 Century Park East, Suite 3500
Los Angeles, California 90067-2901
Telephone: [phone]
Facsimile: [phone]
[e-mail]

LEWIS, FEINBERG, LEE,
RENAKER & JACKSON, P.C.
Bill Lann Lee (SBN: 108452)
Lindsay Nako (SBN: 239090)
476 9th Street
Oakland, CA 94607
Telephone: [phone]
Facsimile: [phone]
[e-mail]

SEYFARTH SHAW LLP
Gerald L. Maatman (Admitted Pro Hac Vice)
Annette Tyman (Admitted Pro Hac Vice)
131 South Dearborn Street
Chicago, Illinois 60603
Telephone: [phone]
Facsimile: [phone]
[e-mail]
SEYFARTH SHAW LLP
Thomas J. Wybenga (Admitted Pro Hac Vice)
c/o Costco Wholesale Corporation
999 Lake Drive
Issaquah, WA 98027-5367
Telephone: [phone]
Facsimile: [phone]
[e-mail]

[Additional Counsel Listed on
Signature Page]

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Attorneys for Plaintiffs and Certified Classes

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Attorneys for Defendant Costco Wholesale
Corporation

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SHIRLEY "RAE" ELLIS, et al.,

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Plaintiffs,
v.
COSTCO WHOLESALE CORPORATION
Defendant.

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Case No. C04 3341 EMC
STIPULATION AND PROPOSED
ORDER REGARDING
COMMUNICATIONS WITH CLASS
MEMBERS

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STIP. AND ORDER RE: CLASS COMMUNICATIONS
Case No.: C04 3341 EMC

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RECITALS
A. On September 25, 2012, the Court certified two classes in this case defined as follows:

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Injunctive Relief Class:

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All women who are currently employed or who will be employed at any Costco
warehouse in the U.S. who have been or will be subject to Costco’s system for promotion
to Assistant General Manager and/or General Manager positions.

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Monetary Relief Class:

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All women who have been employed at any Costco warehouse store in the U.S. since
January 3, 2002 who have been subject to Costco’s system for promotion to Assistant
General Manager and/or General Manager positions.

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B. The Court will soon direct the parties to send an approved form of class notice to the

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members of the classes, which will inform them about the case and advise them of their right
to exclude themselves from the Monetary Relief Class.

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C. As used in this stipulation, Class Member refers to a member of either or both classes.

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D. As used in this stipulation, the Opt-Out Period refers to the period from now until the time

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that a Class Member has to request exclusion from one or both Classes ends.
E. As used in this stipulation, Class Counsel refers to the attorneys appointed to represent the
Classes in the September 25, 2012 Certification Order.

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F. The Court has the authority under Federal Rule of Civil Procedure 23(d) to enter orders to
regulate communications with Class Members.
STIPULATION

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The parties stipulate as follows:

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1. This stipulation, if entered as an order of the Court, replaces the Stipulation and Order
Regarding Class Definition, Class Notice and for Regulation of Costco’s
Communications, entered by the Court on May 31, 2007.

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STIP. AND ORDER RE: CLASS COMMUNICATIONS
Case No.: C04 3341 EMC

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2. No attorney acting on behalf of Costco may communicate with any Class Member during

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the Opt-Out period or thereafter, if the Class Member is represented by Plaintiffs’

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Counsel, about her individual claim or her decision whether to participate in the case,

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without the permission of Class Counsel, which will not be unreasonably withheld.

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3. Costco will not use any instruction, threat, or promise to encourage any Class Member to

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request exclusion, to support Costco’s position in this litigation, or to refuse to

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communicate with Class Counsel.

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4. During the Opt-Out Period, Costco will not disclose to Class Members the number or
identity of Class Members who have or have not opted out, or the number or identity of
those who have agreed to cooperate with Costco in this case.
5. Costco will not disclose to its Assistant Managers, Warehouse General Managers,

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District and Regional Managers and Vice Presidents, Senior Vice Presidents and

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members of the Operations or Executive Committee whether a particular Class Member

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has opted out or not, or whether the class member is cooperating with Costco or Class

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Counsel in this case, except (i) where the status of a Class Member is disclosed in

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preparing Costco’s defense to that Class Member’s claim, to persons necessary to the

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preparation of that defense, (ii) where the status of a Class Member as a witness for

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Costco is disclosed to persons necessary to the preparation of a defense that the Class

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Member would support, or (iii) where the disclosure is otherwise necessary to prepare

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Costco’s defense. As to disclosures within category (iii), Costco’s Counsel will maintain

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a record of such disclosures, including the date and the identity of the Class Member, and

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the identity of the Costco managers to whom such disclosures are made.

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6. The parties will reach agreement as to an internal communication to Costco’s managers

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regarding how to respond to inquiries from Class Members concerning the case

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(Communications Protocol). Should the parties be unable to reach agreement on the

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STIP. AND ORDER RE: CLASS COMMUNICATIONS
Case No.: C04 3341 EMC

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Communications Protocol before the Class Notice is scheduled to be sent, they will

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submit the matter for resolution by the Court.

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7. Costco will provide the Communications Protocol to each Regional and Operations

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Manager, Warehouse Manager and Assistant Warehouse Manager within Costco's U.S.

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warehouse operations. To ensure that newly appointed managers receive this Order,

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every four months Costco shall provide a copy of this Communications Protocol to

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newly-appointed managers.

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8. Costco will provide to Class Counsel any written communication that Costco directs on

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the subject of this case to any group of Costco employees that includes Class Members,

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within three business days of directing the communication.
9. The parties each agree that, during the Opt-Out Period, they will not direct any mass

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communications to the Classes concerning the case. This agreement would not limit the

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right of Class Counsel to communicate with individual Class Members concerning the

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case or their rights.

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IT IS SO STIPULATED.

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DATED: November 20, 2012

THE IMPACT FUND

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By _ _/s/Jocelyn D. Larkin ___________
Jocelyn D. Larkin
Attorneys for Plaintiffs

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DATED: November 20, 2012

SEYFARTH SHAW LLP

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By __/s/ David D. Kadue _______________
_____
David D. Kadue
Attorneys for Defendant
COSTCO WHOLESALE CORPORATION

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STIP. AND ORDER RE: CLASS COMMUNICATIONS
Case No.: C04 3341 EMC

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IT IS SO ORDERED.

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UNIT
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O ORD
IT IS S

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en
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Judg
Judge Edward Chen
United States District Court Judge

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_______________________________

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Dated:

F
D IS T IC T O
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STIP. AND ORDER RE: CLASS COMMUNICATIONS
Case No.: C04 3341 EMC

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Additional Counsel for Plaintiffs:

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LIEFF, CABRASER, HEIMANN
& BERNSTEIN, LLP
Kelly Dermody (SBN: 171716)
Daniel Hutchinson (SBN: 239458)
Embarcadero Center West
275 Battery Street, 30th Floor
San Francisco, Ca 94111-3339
Telephone: [phone]
Facsimile: [phone]
[e-mail]
DAVIS, COWELL & BOWE, LLP
Steve Stemerman (SBN: 067690)
Elizabeth A. Lawrence (SBN: 111781)
595 Market Street, #1400
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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ALTSHULER BERZON LLP
James M. Finberg (SBN: 114850)
177 Post Street, Suite 300
San Francisco, CA 94108
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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Additional Counsel for Defendant
SEYFARTH SHAW LLP
David B. Ross (Admitted Pro Hac Vice)
620 8th Avenue
32nd Floor
New York, New York 10018
[phone]
[e-mail]
15038612v.1

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STIP. AND ORDER RE: CLASS COMMUNICATIONS
Case No.: C04 3341 EMC