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)

Download PDF
1 2 3 4 5 6 7 SEYFARTH SHAW LLP Jon D. Meer (SBN 144389) E-mail: jmeer@seyfarth.com Sheryl L. Skibbe (SBN 199441) E-mail: sskibbe@seyfarth.com Michael Afar (SBN 298990) E-mail: mafar@seyfarth.com 2029 Century Park East, Suite 3500 Los Angeles, California 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 Attorneys for Defendant NIKE RETAIL SERVICES, INC. 8 9 10 11 12 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: (858)551-1223 Facsimile: (858) 551-1232 13 Attorneys for Plaintiff 14 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA 17 18 19 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, 20 21 22 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, 23 Defendant. 24 Complaint Filed: November 25, 2013 25 26 27 28 JOINT STIPULATION AND [PROPOSED] ORDER REGARDING DETERMINATION OF NUMBER OF “AGGRIEVED EMPLOYEES” FOR PAGA CLAIMS CASE NO. 3:14-CV-04781-RS 41641771v.2 1 Plaintiff Payal Patel (“Plaintiff”) and Defendant Nike Retail Services, Inc. (“Nike”) hereby 2 submit this Joint Stipulation Regarding Determination Of Number Of “Aggrieved Employees” For 3 PAGA Claims. 4 5 RECITALS 1. WHEREAS, on August 24, 2017, Nike filed a Motion To Strike Any Representative 6 PAGA Action Allegations In The Complaint Or, Alternatively, For Judgment On The Pleadings As To 7 The Representative PAGA Action (Dkt. No. 99); 8 2. 9 (Dkt. No. 102); 10 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 11 the representative PAGA action, and Plaintiff contends that there are as few as three Assistant Head 12 Coaches in the representative PAGA action; 13 4. WHEREAS, at the hearing on Nike’s pending motion, the Court ordered the Parties to 14 “meet[] and confer[] and find out whether or not there is a path forward vis-a-vis each other on exchange 15 of information for purposes of … giving [the Court] an answer” regarding the number of potentially 16 “aggrieved employees” subject to Plaintiff’s representative PAGA claims; and 17 5. WHEREAS, counsel for the Parties have met and conferred, and have agreed to use 18 electronic scheduling data, instead of daily zone charts, to show the scheduled days and approximate 19 scheduled hours for Assistant Head Coaches during the applicable PAGA period. The electronic 20 scheduling data is the same type of scheduling information available in the zone charts. Defendant 21 agrees not to later object to Plaintiff’s use of the electronic scheduling data on the grounds that the zone 22 chart data is more accurate and reliable. 23 JOINT STIPULATION 24 NOW, THEREFORE, the Parties stipulate as follows: 25 1. Nike shall produce electronic scheduling data showing the scheduled days and scheduled 26 hours for all Assistant Head Coaches during the applicable PAGA period of November 25, 2012 until 27 the present, with the exclusion of the 15 Assistant Head Coaches who submitted declarations stating that 28 1 JOINT STIPULATION AND [PROPOSED] ORDER REGARDING DETERMINATION OF NUMBER OF “AGGRIEVED EMPLOYEES” FOR PAGA CLAIMS CASE NO. 3:14-CV-04781-RS 41641771v.2 1 they never worked overtime during the PAGA period. Other declarations may be used for other 2 purposes. 3 2. Since Assistant Head Coaches do not clock in and out during their shifts, the Parties 4 agree that there are no other categories of documents that are more accurate in showing the actual hours 5 worked and actual days worked by Assistant Head Coaches than the electronic scheduling data. 6 7 8 9 10 11 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 12 to the electronic scheduling data produced by Nike, in order to determine which Assistant Head Coaches 13 sent an email following eight hours of scheduled work and are, therefore, potentially “aggrieved 14 employees.” 15 6. Plaintiff’s expert shall prepare a report detailing the number of Assistant Head Coaches 16 who are “aggrieved employees.” This report is to be prepared and produced to Nike no later than 60 17 days following the production of electronic scheduling data. Plaintiff’s expert’s report shall contain the 18 name of each “aggrieved” Assistant Head Coach, as well as each date and time, for each employee, 19 where a daily recap email was sent following eight hours of scheduled work. 20 21 22 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 23 employees” as determined by Plaintiff’s expert. Nike, however, will not object regarding the number of 24 potentially “aggrieved employees” on the basis that the zone charts contained data which were more 25 accurate and reliable than the data contained in the electronic scheduling data. Alternatively, Nike may 26 stipulate to the number of potentially “aggrieved employees” as determined by Plaintiff’s expert. 27 9. 28 To the extent the scheduling data is also used to calculate PAGA civil penalties, Nike will 2 JOINT STIPULATION AND [PROPOSED] ORDER REGARDING DETERMINATION OF NUMBER OF “AGGRIEVED EMPLOYEES” FOR PAGA CLAIMS CASE NO. 3:14-CV-04781-RS 41641771v.2 1 not object to the use of the scheduling data on the grounds that the zone charts contained scheduling data 2 which was more accurate and reliable than the data contained in the electronic scheduling data. 3 10. The Parties will subsequently file a Stipulation and [Proposed] Order stating: (i) the 4 agreed-upon number of potential “aggrieved employees”; or (ii) if the Parties do not agree on the 5 number of potential “aggrieved employees,” the Parties’ respective positions regarding the number of 6 potential “aggrieved employees.” The Court will be able to rely on this Stipulation when analyzing the 7 number of potential “aggrieved employees” and for purposes of ruling on a subsequent Motion To Strike 8 Any Representative PAGA Action Allegations In The Complaint Or, Alternatively, For Judgment On 9 The Pleadings As To The Representative PAGA Action, to be filed by Nike. 10 11. Should the Parties fail to reach a Stipulation on the number of “aggrieved employees” 11 following the production of electronic scheduling data and the expert report, the Parties shall request a 12 case management conference for final determination by the Court. 13 12. 14 IT IS SO STIPULATED. 15 The case management conference set for November 9, 2017 shall be vacated. DATED: November 6, 2017 16 By: /s/ Michael Afar Jon D. Meer Sheryl L. Skibbe Michael Afar Attorneys for Defendant NIKE RETAIL SERVICES, INC. 17 18 19 20 SEYFARTH SHAW LLP DATED: November 6, 2017 21 BLUMENTHAL, NORDREHAUG & BHOWMIK By: /s/ Molly DeSario Norman B. Blumenthal Kyle R. Nordrehaug Aparajit Bhowmik Molly DeSario Attorneys for Plaintiff PAYAL PATEL 22 23 24 25 26 27 28 3 JOINT STIPULATION AND [PROPOSED] ORDER REGARDING DETERMINATION OF NUMBER OF “AGGRIEVED EMPLOYEES” FOR PAGA CLAIMS CASE NO. 3:14-CV-04781-RS 41641771v.2 1 [PROPOSED] ORDER 2 Based on the stipulation of the Parties, IT IS HEREBY ORDERED as follows: 3 1. Nike shall produce electronic scheduling data showing the scheduled days and scheduled 4 hours for all Assistant Head Coaches during the applicable PAGA period of November 25, 2012 until 5 the present, with the exclusion of the 15 Assistant Head Coaches who submitted declarations stating that 6 they never worked overtime during the PAGA period. Other declarations may be used for other 7 purposes. 8 2. 9 10 11 12 13 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 14 determine the potential number of “aggrieved employees” who could be included as part of Plaintiff’s 15 PAGA claims, and that there shall be no additional production of daily zone charts. 16 5. Plaintiff’s expert shall review the daily recap emails produced by Nike and compare them 17 to the electronic scheduling data produced by Nike, in order to determine which Assistant Head Coaches 18 sent an email following eight hours of scheduled work and are, therefore, potentially “aggrieved 19 employees.” 20 6. Plaintiff’s expert shall prepare a report detailing the number of Assistant Head Coaches 21 who are “aggrieved employees.” This report is to be prepared and produced to Nike no later than 60 22 days following the production of electronic scheduling data. Plaintiff’s expert’s report shall contain the 23 name of each “aggrieved” Assistant Head Coach, as well as each date and time, for each employee, 24 where a daily recap email was sent following eight hours of scheduled work. 25 26 27 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 28 [PROPOSED] ORDER REGARDING DETERMINATION OF NUMBER OF “AGGRIEVED EMPLOYEES” FOR PAGA CLAIMS CASE NO. 3:14-CV-04781-RS 41641771v.2 1 employees” as determined by Plaintiff’s expert. Nike, however, will not object regarding the number of 2 potentially “aggrieved employees” on the basis that the zone charts contained data which were more 3 accurate and reliable than the data contained in the electronic scheduling data. Alternatively, Nike may 4 stipulate to the number of potentially “aggrieved employees” as determined by Plaintiff’s expert. 5 9. To the extent the scheduling data is also used to calculate PAGA civil penalties, Nike will 6 not object to the use of the scheduling data on the grounds that the zone charts contained scheduling data 7 which was more accurate and reliable than the data contained in the electronic scheduling data. 8 9 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 10 number of potential “aggrieved employees,” the Parties’ respective positions regarding the number of 11 potential “aggrieved employees.” The Court will be able to rely on this Stipulation when analyzing the 12 number of potential “aggrieved employees” and for purposes of ruling on a subsequent Motion To Strike 13 Any Representative PAGA Action Allegations In The Complaint Or, Alternatively, For Judgment On 14 The Pleadings As To The Representative PAGA Action, to be filed by Nike. 15 11. Should the Parties fail to reach a Stipulation on the number of “aggrieved employees” 16 following the production of electronic scheduling data and the expert report, the Parties shall request a 17 case management conference for final determination by the Court. 18 12. The case management conference set for November 9, 2017 shall be vacated. 19 IT IS SO ORDERED. 20 21 11/7/17 DATED: _____________ 22 23 24 25 SIGNED: ___________________________________ Hon. Richard Seeborg Judge for the United States District Court for the Northern District of California 26 27 28 [PROPOSED] ORDER REGARDING DETERMINATION OF NUMBER OF “AGGRIEVED EMPLOYEES” FOR PAGA CLAIMS CASE NO. 3:14-CV-04781-RS 41641771v.2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?