Center for Independent Living, Inc. et al v. Wal-Mart Stores, Inc.

Filing 42

ORDER granting 41 STIPULATION FOR ADDITIONAL STAY WHILE PURSUING RESOLUTION filed by Wal-Mart Stores, Inc.. Status Report due by 12/5/2015. Signed by Judge Charles R. Breyer on 9/4/2014. (beS, COURT STAFF) (Filed on 9/4/2014)

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Robert A. Naeve (State Bar No. 106095)
[e-mail]
Steven M. Zadravecz (State Bar No. 185676)
[e-mail]
Mark E. Earnest (CA State Bar No. 253490)
[e-mail]
JONES DAY
3161 Michelson Drive, Suite 800
Irvine, CA 92612.4408
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
WAL-MART STORES, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CENTER FOR INDEPENDENT LIVING,
INC., JANET BROWN, and LISA
KILGORE on behalf of themselves and all
others similarly situated,

Lead Case No. C 12-3885 CRB
STIPULATION FOR ADDITIONAL STAY
WHILE PURSUING RESOLUTION AND
ORDER THEREON

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Plaintiffs,

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Judge: Hon. Charles R. Breyer

v.
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WAL-MART STORES, INC.,
Defendant.

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GEORGE PARTIDA, on behalf of himself
and all others similarly situated,

Consolidated Case No. C 13-00305 YGR

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Plaintiff,
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v.
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WAL-MART STORES, INC.,
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Defendant.
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Plaintiffs Center for Independent Living, Inc., Janet Brown, and Lisa Kilgore

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(collectively, the “CIL Plaintiffs”), on the one hand, and defendant Wal-Mart Stores, Inc. (“Wal-

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Mart”), on the other hand, enter into this Stipulation with reference to the following facts:

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STIPULATION CV 12-3885 CRB

RECITALS
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A.

Inc. and Center for Independent Living, Inc., et al. v. Wal-Mart Stores, Inc. – consolidated for all
purposes. (Docket No. 28.) The Court also granted the motion brought by counsel for the CIL
Plaintiffs to be appointed interim class counsel pursuant to Federal Rule of Civil Procedure 23(g).
(Docket No. 27.) In the order appointing interim class counsel, this Court gave counsel for the
CIL Plaintiffs the authority to “[e]nter[] into stipulations, with opposing counsel, necessary for
the conduct of the litigation” and designate “which attorneys may appear at settlement
negotiations on behalf of the putative class and conducting settlement negotiations with
defendant” on behalf of the CIL Plaintiffs and plaintiff Partida. (Id.)

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B.

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On April 25, 2013, to accommodate the parties’ mediation schedule, this Court

agreed to modify its prior November 2012 order by continuing the deadline for the parties to
attend mediation to June 7, 2013 and to report on the results of the mediation to June 14, 2013.
(Docket No. 30.)

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On April 3, 2013, this Court ordered the two cases – Partida v. Wal-Mart Stores,

C.

On June 7, 2013, the parties attended a full day of mediation before mediator

David Rotman in San Francisco, California. The mediation was fruitful and the parties made
significant progress toward resolution. To further efforts at resolution, the parties agreed to
consider and evaluate detachable Point of Sale (“POS”) devices that could be tethered to the front
checkout aisles at a height more readily accessible to Plaintiffs, and which comply with all
industry guidelines and are acceptable to Wal-Mart. The parties also agreed to stay litigation and
focus their actions on addressing the contingencies and conditions to facilitate a settlement in this
case.
D.

Since the parties’ mediation in June 2013, and consistent with the parties’

continuing settlement negotiations and stipulations, this Court has granted several requests to stay
this litigation, including continuing and then vacating the Case Management Conference during
the stay. (Docket Nos. 32, 34, 36, 38.) This ongoing stay has allowed the parties to make
significant progress toward a resolution of this matter and to explore options related to POS

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STIPULATION CV 12-3885 CRB

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devices that are agreeable to all parties. For the Court’s convenience, we detail below some of

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the efforts and progress made over the past year.

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E.

Beginning immediately after the mediation in June 2013, the parties

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communicated consistently with each other, their clients, and several third-party vendors in an

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effort to find a POS device mount that satisfied the parties’ concerns with, among other things,

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accessibility and security. Those efforts included the evaluation of commercially available POS

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mounts that were attached to checkstands and other mounting options that utilize a swinging arm

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that could be positioned at a height more readily accessible to Plaintiffs. Unable to find a

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commercially available mount that satisfied all of the parties’ concerns, in August 2013, Wal-

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Mart worked with a third party to create a novel POS device mount design and prototype.
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The first POS prototype mount that was designed required significant

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modifications before it could even be installed and tested on Wal-Mart’s existing checkstands.

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Indeed, there were a number of issues that foreclosed the possibility of the initially designed POS

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mount as a realistic solution. Wal-Mart communicated consistently about these issues with

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Plaintiffs, and set to work on a new design and prototype. In December 2013, Wal-Mart provided

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Plaintiffs with pictures of a second prototype that the Company had worked to develop. Plaintiffs

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communicated that they were generally pleased with the design of this second prototype. Wal-

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Mart continued to work with a third party to test and refine the second POS prototype, which

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included installing the prototype in a Wal-Mart store in Arkansas for testing. An in-person test of

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the prototype in a store near Plaintiffs was delayed due to calendaring conflicts as well as the

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difficulty associated with uninstalling, shipping, and reinstalling the mount prototype.

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G.

On April 2, 2014, the parties held their first in-person test of the new prototype

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POS device mount at a Wal-Mart store near Plaintiffs’ residences. Plaintiffs were present with

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their attorneys and a disability access expert. Plaintiff’s expressed that the POS prototype mount

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was a significant improvement over prior or alternative mounts and provided much better access

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to mobility impaired customers. Following the inspection, Plaintiffs suggested some minor

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changes to the mount prototype.

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STIPULATION CV 12-3885 CRB

H.

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On May 8, 2014, the parties attended a second in-person test of the updated POS

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mount prototype at a second Wal-Mart store. Plaintiffs again expressed their general acceptance

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and approval of the mount prototype with some suggested modifications.
I.

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On June 3, 2014, this Court granted the parties’ stipulation and extended the stay

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of litigation through September 5, 2014 so the parties could continue exploring resolution options

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(the “June 2014 Order”). (Docket No. 40.) In addition, the Court: (a) confirmed the parties’

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stipulation that all communications between the parties shall be confidential, privileged, and

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protected by Rule 408 of the Federal Rules of Evidence; (b) ordered the parties to file a joint

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status report on or before August 29, 2014; and (c) vacated the Case Management Conference.

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(Id.)
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Since the June 2014 Order, the parties have continued to work diligently to find a

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suitable resolution to this matter. For example, Wal-Mart has confirmed that the prototype mount

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meets data protection, security, and other standards required by the Payment Card Industry. The

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parties have also discussed and agreed that the next step in the resolution process includes beta

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testing the POS prototype mount in select Wal-Mart stores for a period of 60 days. To that end,

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Wal-Mart is in the process of securing the production of approximately 50 prototype mounts for

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installation at front end checkstands in the Wal-Mart stores where the beta test will be conducted.

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This process includes: (a) required internal testing by Consumer Testing Laboratory (“CTL”),

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which testing typically takes 30 business days but CTL has committed to complete its safety

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analysis in 15 business days; (b) the mount fabricator making any final adjustments as suggested

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by CTL, which will require a minimum of 15-30 days, however, if CTL finds significant number

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of exceptions or fails the prototype mount completely, the final adjustments by the fabricator

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could take longer; (c) final approval by CTL after adjustments are complete, requiring 3-5

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business days; and (d) fabrication, production, and installation of the prototype mounts, which is

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estimated at 30 business days. In short, the parties understand that production, shipping, and

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installation of the prototype mounts could itself take up to 90 days or more, but they are working

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to begin the in-store testing as soon as reasonably possible. Based on the estimates provided

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STIPULATION CV 12-3885 CRB

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above, Wal-Mart presently anticipates beginning the POS prototype mount beta test in the Wal-

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Mart stores listed below as follows:
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Wal-Mart Division 1 Store #5072 located at 19503 Normandie Avenue, Torrance,
California in December 2014 or January 2015;

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Wal-Mart Neighborhood Market Store #5611 located at 3112 Santa Rita Rd.,
Pleasanton, California in December 2014 or January 2015; and

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Another Wal-Mart store scheduled to be remodeled or a new store being prepared

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for grand opening that has not already received the current POS fixture package

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for installation in January 2015.

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K.

As shown above, the parties are committed to moving this matter forward toward

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resolution and hope to resolve the matter without the need for further formal discovery, motion

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practice or trial. In furtherance of this goal, the parties are committed to exchange proposals for

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resolving the remaining class issues in the case during the preparation and roll-out periods of the

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pilot testing program. Plaintiffs are frustrated with the fact that this process has been time-

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consuming and complicated but acknowledge the benefit of having Wal-Mart, in conjunction with

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Plaintiffs, outside vendors and consultants from the industry, take on the challenge of creating

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and developing an innovative new product custom-made to satisfy safety standards, security

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regulations, and Plaintiffs’ demands. Unfortunately, no off-the-shelf product could satisfy the

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broad array of various independent requirements. Accordingly, at this juncture, the parties

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request an additional stay in this matter so that they can focus their efforts on continuing to

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explore avenues for settlement, including the resolution of the remaining class issues. The parties

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do not anticipate that beta testing of the prototype mount will be completed in this window, but

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have agreed that it is in all parties’ interests to continue to update the Court on the good progress

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they are making. The parties agree to submit a formal joint report at the end of any approved stay

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to apprise the Court of the status of the parties’ efforts to resolve the matter.

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L.

For the reasons outlined above, the parties submit that good cause exists to

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continue the stay in this case for approximately 90 days, keep off calendar the Case Management

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Conference and related date to submit a Case Management Conference Report, and set a date for
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STIPULATION CV 12-3885 CRB

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a formal report on the parties’ progress toward resolution on or around January 16, 2015.
STIPULATION

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Based on the facts stated above and subject to this Court’s approval, the parties stipulate

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as follows:
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apprising the Court of the status of the parties’ further settlement discussions, as well

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as any additional efforts to resolve the case during the stay.

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2.

motion practice, shall be stayed until December 12, 2015.

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3.

devices shall be confidential, privileged, and protected by Rule 408 of the Federal

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Rules of Evidence.

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Any and all communications by and between the parties, their attorneys and the
mediator regarding or related to resolution and potential use of detachable POS

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This action (meaning the consolidated cases of Center for Independent Living v. WalMart Stores, Inc. and Partida v. Wal-Mart Stores, Inc.), including all discovery and

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The parties shall file with this Court on or before December 5, 2015 a joint report

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The Case Management Conference shall remain off calendar, and shall be reset by
order of the Court following the parties’ December 5, 2015 joint report on the status of
settlement efforts.

IT IS SO STIPULATED:
Dated: August 29, 2014.

Jones Day
By:/s/Steven M. Zadravecz
Steven M. Zadravecz
Counsel for Defendant
WAL-MART STORES, INC.

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Dated: August 29, 2014.

Disability Rights Advocates
By:/s/Larry Paradis
Larry Paradis
Interim Class Counsel

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STIPULATION CV 12-3885 CRB

ORDER

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The Court has read and considered the parties’ Stipulation For Additional Stay While
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Pursuing Resolution and finds that good cause exists to grant the relief requested.
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IT IS SO ORDERED.
By:

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The Honorable Charles R. Breyer
United States DistrictORDERED
Court Judge
Northern DistrictSOCalifornia
IT IS of

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UNIT
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Dated: September 4, 2014.

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STIPULATION CV 12-3885 CRB