Patel v. Nike Retail Services, Inc. et al

Filing 107

JOINT STIPULATION AND ORDER RE #106 Determination of Number of "Aggrieved Employees" for PAGA Claims. Signed by Judge Richard Seeborg on 11/7/17. (cl, COURT STAFF) (Filed on 11/7/2017)

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SEYFARTH SHAW LLP
Jon D. Meer (SBN 144389)
E-mail: [e-mail]
Sheryl L. Skibbe (SBN 199441)
E-mail: [e-mail]
Michael Afar (SBN 298990)
E-mail: [e-mail]
2029 Century Park East, Suite 3500
Los Angeles, California 90067-3021
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
NIKE RETAIL SERVICES, INC.

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BLUMENTHAL, NORDREHAUG & BHOWMIK
Norman B. Blumenthal (State Bar #068687)
Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066)
Piya Mukherjee (State Bar #274217)
2255 Calle Clara
La Jolla, CA 92037
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PAYAL PATEL, an individual, on behalf of
herself, on behalf of all persons similarly situated,
and as the representative of the State of California,
Plaintiff,

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v.

Case No. 3:14-cv-04781-RS
Assigned to the Hon. Richard Seeborg
JOINT STIPULATION AND [PROPOSED]
ORDER REGARDING DETERMINATION
OF NUMBER OF “AGGRIEVED
EMPLOYEES” FOR PAGA CLAIMS

NIKE RETAIL SERVICES, INC., a Corporation;
and DOES 1 through 50, inclusive,

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Defendant.
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Complaint Filed:

November 25, 2013

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JOINT STIPULATION AND [PROPOSED] ORDER REGARDING
DETERMINATION OF NUMBER OF “AGGRIEVED EMPLOYEES” FOR PAGA CLAIMS
CASE NO. 3:14-CV-04781-RS
41641771v.2

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Plaintiff Payal Patel (“Plaintiff”) and Defendant Nike Retail Services, Inc. (“Nike”) hereby

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submit this Joint Stipulation Regarding Determination Of Number Of “Aggrieved Employees” For

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PAGA Claims.

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RECITALS
1.

WHEREAS, on August 24, 2017, Nike filed a Motion To Strike Any Representative

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PAGA Action Allegations In The Complaint Or, Alternatively, For Judgment On The Pleadings As To

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The Representative PAGA Action (Dkt. No. 99);

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2.

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(Dkt. No. 102);

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3.

WHEREAS, on September 28, 2017, the Court held a hearing on Nike’s pending motion

WHEREAS, Nike contends that there are approximately 101 Assistant Head Coaches in

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the representative PAGA action, and Plaintiff contends that there are as few as three Assistant Head

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Coaches in the representative PAGA action;

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4.

WHEREAS, at the hearing on Nike’s pending motion, the Court ordered the Parties to

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“meet[] and confer[] and find out whether or not there is a path forward vis-a-vis each other on exchange

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of information for purposes of … giving [the Court] an answer” regarding the number of potentially

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“aggrieved employees” subject to Plaintiff’s representative PAGA claims; and

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5.

WHEREAS, counsel for the Parties have met and conferred, and have agreed to use

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electronic scheduling data, instead of daily zone charts, to show the scheduled days and approximate

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scheduled hours for Assistant Head Coaches during the applicable PAGA period. The electronic

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scheduling data is the same type of scheduling information available in the zone charts. Defendant

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agrees not to later object to Plaintiff’s use of the electronic scheduling data on the grounds that the zone

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chart data is more accurate and reliable.

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JOINT STIPULATION

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NOW, THEREFORE, the Parties stipulate as follows:

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1.

Nike shall produce electronic scheduling data showing the scheduled days and scheduled

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hours for all Assistant Head Coaches during the applicable PAGA period of November 25, 2012 until

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the present, with the exclusion of the 15 Assistant Head Coaches who submitted declarations stating that

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JOINT STIPULATION AND [PROPOSED] ORDER REGARDING
DETERMINATION OF NUMBER OF “AGGRIEVED EMPLOYEES” FOR PAGA CLAIMS
CASE NO. 3:14-CV-04781-RS
41641771v.2

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they never worked overtime during the PAGA period. Other declarations may be used for other

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purposes.

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2.

Since Assistant Head Coaches do not clock in and out during their shifts, the Parties

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agree that there are no other categories of documents that are more accurate in showing the actual hours

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worked and actual days worked by Assistant Head Coaches than the electronic scheduling data.

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3.

Nike shall produce the electronic scheduling data within 30 days from the date of the

Court’s order on this joint stipulation.
4.

The Parties agree that no further discovery by Plaintiff shall be needed or requested to

determine the potential number of “aggrieved employees” who could be included as part of Plaintiff’s
PAGA claims, and that there shall be no additional production of daily zone charts.
5.

Plaintiff’s expert shall review the daily recap emails produced by Nike and compare them

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to the electronic scheduling data produced by Nike, in order to determine which Assistant Head Coaches

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sent an email following eight hours of scheduled work and are, therefore, potentially “aggrieved

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employees.”

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6.

Plaintiff’s expert shall prepare a report detailing the number of Assistant Head Coaches

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who are “aggrieved employees.” This report is to be prepared and produced to Nike no later than 60

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days following the production of electronic scheduling data. Plaintiff’s expert’s report shall contain the

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name of each “aggrieved” Assistant Head Coach, as well as each date and time, for each employee,

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where a daily recap email was sent following eight hours of scheduled work.

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7.

If Nike requests, Plaintiff’s expert shall be available for deposition within 30 days

following the date of production of the expert report.
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Nike may thereafter raise any objections regarding the number of potentially “aggrieved

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employees” as determined by Plaintiff’s expert. Nike, however, will not object regarding the number of

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potentially “aggrieved employees” on the basis that the zone charts contained data which were more

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accurate and reliable than the data contained in the electronic scheduling data. Alternatively, Nike may

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stipulate to the number of potentially “aggrieved employees” as determined by Plaintiff’s expert.

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9.

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To the extent the scheduling data is also used to calculate PAGA civil penalties, Nike will
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JOINT STIPULATION AND [PROPOSED] ORDER REGARDING
DETERMINATION OF NUMBER OF “AGGRIEVED EMPLOYEES” FOR PAGA CLAIMS
CASE NO. 3:14-CV-04781-RS

41641771v.2

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not object to the use of the scheduling data on the grounds that the zone charts contained scheduling data

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which was more accurate and reliable than the data contained in the electronic scheduling data.

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10.

The Parties will subsequently file a Stipulation and [Proposed] Order stating: (i) the

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agreed-upon number of potential “aggrieved employees”; or (ii) if the Parties do not agree on the

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number of potential “aggrieved employees,” the Parties’ respective positions regarding the number of

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potential “aggrieved employees.” The Court will be able to rely on this Stipulation when analyzing the

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number of potential “aggrieved employees” and for purposes of ruling on a subsequent Motion To Strike

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Any Representative PAGA Action Allegations In The Complaint Or, Alternatively, For Judgment On

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The Pleadings As To The Representative PAGA Action, to be filed by Nike.

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11.

Should the Parties fail to reach a Stipulation on the number of “aggrieved employees”

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following the production of electronic scheduling data and the expert report, the Parties shall request a

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case management conference for final determination by the Court.

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12.

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IT IS SO STIPULATED.

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The case management conference set for November 9, 2017 shall be vacated.

DATED: November 6, 2017

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By: /s/ Michael Afar
Jon D. Meer
Sheryl L. Skibbe
Michael Afar
Attorneys for Defendant
NIKE RETAIL SERVICES, INC.

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SEYFARTH SHAW LLP

DATED: November 6, 2017

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BLUMENTHAL, NORDREHAUG & BHOWMIK
By: /s/ Molly DeSario
Norman B. Blumenthal
Kyle R. Nordrehaug
Aparajit Bhowmik
Molly DeSario
Attorneys for Plaintiff
PAYAL PATEL

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JOINT STIPULATION AND [PROPOSED] ORDER REGARDING
DETERMINATION OF NUMBER OF “AGGRIEVED EMPLOYEES” FOR PAGA CLAIMS
CASE NO. 3:14-CV-04781-RS
41641771v.2

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[PROPOSED] ORDER

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Based on the stipulation of the Parties, IT IS HEREBY ORDERED as follows:

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1.

Nike shall produce electronic scheduling data showing the scheduled days and scheduled

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hours for all Assistant Head Coaches during the applicable PAGA period of November 25, 2012 until

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the present, with the exclusion of the 15 Assistant Head Coaches who submitted declarations stating that

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they never worked overtime during the PAGA period. Other declarations may be used for other

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purposes.

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2.

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Since Assistant Head Coaches do not clock in and out during their shifts, the Parties

agree that there are no other categories of documents that are more accurate in showing the actual hours
worked and actual days worked by Assistant Head Coaches than the electronic scheduling data.
3.

Nike shall produce the electronic scheduling data within 30 days from the date of the

Court’s order on this joint stipulation.
4.

The Parties agree that no further discovery by Plaintiff shall be needed or requested to

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determine the potential number of “aggrieved employees” who could be included as part of Plaintiff’s

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PAGA claims, and that there shall be no additional production of daily zone charts.

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5.

Plaintiff’s expert shall review the daily recap emails produced by Nike and compare them

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to the electronic scheduling data produced by Nike, in order to determine which Assistant Head Coaches

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sent an email following eight hours of scheduled work and are, therefore, potentially “aggrieved

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employees.”

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6.

Plaintiff’s expert shall prepare a report detailing the number of Assistant Head Coaches

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who are “aggrieved employees.” This report is to be prepared and produced to Nike no later than 60

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days following the production of electronic scheduling data. Plaintiff’s expert’s report shall contain the

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name of each “aggrieved” Assistant Head Coach, as well as each date and time, for each employee,

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where a daily recap email was sent following eight hours of scheduled work.

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7.

If Nike requests, Plaintiff’s expert shall be available for deposition within 30 days

following the date of production of the expert report.
8.

Nike may thereafter raise any objections regarding the number of potentially “aggrieved

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[PROPOSED] ORDER REGARDING DETERMINATION OF
NUMBER OF “AGGRIEVED EMPLOYEES” FOR PAGA CLAIMS
CASE NO. 3:14-CV-04781-RS
41641771v.2

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employees” as determined by Plaintiff’s expert. Nike, however, will not object regarding the number of

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potentially “aggrieved employees” on the basis that the zone charts contained data which were more

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accurate and reliable than the data contained in the electronic scheduling data. Alternatively, Nike may

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stipulate to the number of potentially “aggrieved employees” as determined by Plaintiff’s expert.

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9.

To the extent the scheduling data is also used to calculate PAGA civil penalties, Nike will

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not object to the use of the scheduling data on the grounds that the zone charts contained scheduling data

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which was more accurate and reliable than the data contained in the electronic scheduling data.

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10.

The Parties will subsequently file a Stipulation and [Proposed] Order stating: (i) the

agreed-upon number of potential “aggrieved employees”; or (ii) if the Parties do not agree on the

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number of potential “aggrieved employees,” the Parties’ respective positions regarding the number of

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potential “aggrieved employees.” The Court will be able to rely on this Stipulation when analyzing the

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number of potential “aggrieved employees” and for purposes of ruling on a subsequent Motion To Strike

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Any Representative PAGA Action Allegations In The Complaint Or, Alternatively, For Judgment On

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The Pleadings As To The Representative PAGA Action, to be filed by Nike.

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11.

Should the Parties fail to reach a Stipulation on the number of “aggrieved employees”

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following the production of electronic scheduling data and the expert report, the Parties shall request a

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case management conference for final determination by the Court.

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12.

The case management conference set for November 9, 2017 shall be vacated.

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IT IS SO ORDERED.

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11/7/17
DATED: _____________

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SIGNED: ___________________________________
Hon. Richard Seeborg
Judge for the United States District Court
for the Northern District of California

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[PROPOSED] ORDER REGARDING DETERMINATION OF
NUMBER OF “AGGRIEVED EMPLOYEES” FOR PAGA CLAIMS
CASE NO. 3:14-CV-04781-RS
41641771v.2