Carter et al v. XPO Logistics, Inc.

Filing 171

ORDER granting (170 in 3:16-cv-01231-WHO) STIPULATION TO REVISE THE CLASS CERTIFICATION SCHEDULE AND REQUEST FOR CASE MANAGEMENT CONFERENCE. Case Management Statement due by 11/6/2018. Case Management Conference set for 11/13/2018 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Signed by Judge William H. Orrick on 08/30/2018. (jmdS, COURT STAFF) (Filed on 8/30/2018)

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Beth Ross, SBN 141337
Jennifer Keating, SBN 250857
Amy Endo, SBN 272998
LEONARD CARDER, LLP
1330 Broadway, Suite 1450
Oakland, CA 94612
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

David Mara, SBN 230498
Jamie Serb, SBN 289601
William Turley, SBN 122408
THE TURLEY LAW FIRM, APLC
7428 Trade Street
San Diego, CA 92121
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

Attorneys for Plaintiffs
RON CARTER, et al.

Attorneys for Plaintiffs
KEVIN KRAMER, et al.

Matthew R. Bainer Bar No. 220972
THE BAINER LAW FIRM
1901 Harrison Street, Suite 1100
Oakland, CA 94612
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Plaintiff
HECTOR IBANEZ
Thomas W. Falvey, SBN65744
Michael H. Boyamian, SBN 256107
Armand R. Kizirian, SBN 293992
LAW OFFICES OF THOMAS W. FALVEY
550 North Brand Blvd., Suite 1500
Glendale, CA 91203
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

Joseph M. Lovretovich, SBN 73403
David F. Tibor, SBN 230563
JML LAW, APLC
21052 Oxnard Street
Woodland Hills, CA 91367
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
RAMON GARCIA, et al.
Fraser A. McAlpine, CA Bar No. 248554
JACKSON LEWIS P.C.
50 California Street, 9th Floor
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
[e-mail]

Attorneys for Plaintiffs
RAMON GARCIA, et al.

Attorneys for Defendant
XPO LAST MILE, INC.

Adam L. Lounsbury, VA Bar No. 89847
JACKSON LEWIS P.C.
701 East Byrd Street, 17th Floor
Richmond, VA 23219
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Appearing Pro Hac Vice
Attorneys for Defendant XPO LAST MILE, INC.

Case No. 3:16-cv-01231-WHO
STIPULATION AND ORDER TO REVISE THE CLASS CERTIFICATION SCHEDULE AND
REQUEST FOR CASE MANAGEMENT CONFERENCE

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RON CARTER, JUAN ESTRADA,
JERRY GREEN, BURL MALMGREN,
BILL McDONALD, and JOEL MORALES,
on behalf of themselves and others similarly
situated,

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STIPULATION AND ORDER TO REVISE
THE CLASS CERTIFICATION
SCHEDULE AND REQUEST FOR CASE
MANAGEMENT CONFERENCE

Plaintiffs,

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Case No. 3:16-cv-01231-WHO

v.

Amended Complaint Filed: June 9, 2016
Judge: Hon. William H. Orrick

XPO LAST MILE, INC. and DOES 1
through 10, inclusive,

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Defendants.

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RAMON GARCIA, an individual, VICTOR
RAMIREZ, an individual; ADRIAN
VALENTE, an individual; MARIO PINON,
an individual; MYNOR CABRERA, an
individual; Individually, and on Behalf of All
Similarly Situated Individuals,

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Case No. 3:16-cv-04440-WHO
Action Filed: July 1, 2016
Date Removed: August 5, 2016
Judge: Hon. William H. Orrick

Plaintiffs,
v.
MACY’S WEST STORES, INC., an Ohio
corporation; JOSEPH ELETTO TRANSFER,
INC., a New York corporation; XPO
LOGISTICS, LLC, and Ohio corporation; and
DOES 1 through 25, Inclusive,

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Defendants.

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KEVIN KRAMER on behalf of himself, all
others similarly situated, and on behalf of the
general public,
Plaintiffs,

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Case No. 3:16-cv-07039-WHO
Consolidated with 3:17-cv-04009-JSC

v.
XPO LOGISTICS, INC.; and DOES 1 – 100,

Action Filed: September 22, 2016
Date Removed: December 8, 2016
Judge: Hon. William H. Orrick

Defendants.
Case No. 3:16-cv-01231-WHO
STIPULATION AND ORDER TO REVISE THE CLASS CERTIFICATION SCHEDULE AND
REQUEST FOR CASE MANAGEMENT CONFERENCE

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HECTOR IBANEZ on behalf of himself, all
others similarly situated, and on behalf of the
general public
Plaintiffs,

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v.

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This Document Relates To:
Kramer, 3:16-cv-07039-WHO;
Ibanez, 3:17-cv-04009-JSC;
Carter, 3:16-cv-01231-WHO;
Garcia, 3:16-cv-04440-WHO

XPO LAST MILE, INC.; and DOES 1 – 100,
Defendants.

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STIPULATION AND ORDER

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WHEREAS, the parties to Carter v. XPO Logistics, Inc., No. 16-cv-01231-WHO

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(“Carter”), Garcia v. Macy’s West Stores, Inc., et al (“Garcia”), and the consolidated Kramer v.

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XPO Logistics, Inc., No. 16-cv-07039-WHO (“Kramer”) and Ibanez v. XPO Last Mile, Inc., No.

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17-cv-04009-JSC (“Ibanez”) (consolidated matter referred to as “Kramer/Ibanez”), have agreed

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that the class certification schedule should be revised in order to facilitate the parties’ continuing

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effort to mediate this dispute. The parties are seeking this adjustment to the briefing schedule due

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to unanticipated issues experienced in connection with marshalling the data necessary to support a

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complete and accurate damages analysis by the parties. The parties rescheduled the mediation for

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two sessions to be held on October 25, 2018, and November 13, 2018, and jointly request that the

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Court adjust the briefing and hearing schedule to permit the parties to focus on settlement

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discussions before briefing the case for class certification. A discussion of the obstacles and

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proposed scheduling amendment follows.

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On May 30, 2018, the Court entered an Order that set the current certification and motion

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hearing dates.1 That schedule was proposed and agreed by the parties in order to facilitate a

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mediated resolution to this case. At that time, the mediation was scheduled for August 30 and 31,

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2018 in San Francisco. Stipulation and Order, May 30, 2018 (docketed only at Kramer/Ibanez

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ECF No. 65).

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That Order revised the prior schedule that was set March 21, 2018 (Carter ECF No. 165);
(Garcia ECF No. 90); (Kramer/Ibanez ECF No. 63).
Case No. 3:16-cv-01231-WHO
STIPULATION AND ORDER TO REVISE THE CLASS CERTIFICATION SCHEDULE AND
REQUEST FOR CASE MANAGEMENT CONFERENCE

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Following the Order setting the mediation and briefing schedule, the parties set out to

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conduct the damages discovery necessary to support an informed damages discussion at the

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mediation—prior to scheduling the mediation, the parties’ discovery efforts were largely focused

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on issues bearing on class certification. On June 8, 2018, Carter plaintiffs issued a robust request

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for data to support their damages model that would be used to inform their position in settlement

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discussions. This request sought information about class member identities, and various metrics

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that would bear on the days, hours of work, as well as amounts paid to individual carriers and

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amounts those carriers paid out in various expenses. On July16, 2018, Kramer/Ibanez plaintiffs

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issued a separate request for information to support their damages model. This request sought

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information regarding class member identities (and counts), as well as data reflecting hours of

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work and amounts paid to secondary drivers and helpers in the class. Finally, on July 19, 2018, the

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Garcia plaintiffs issued a separate request for information from a third party source that could

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provide information regarding hours of work for each secondary driver or helper working out of

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the Macy’s Union City location during the class period.

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Following the Carter request, XPO LM began to work on a plan to marshal the requested

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data. As is often the case, the initial challenge was to determine what data – housed in a system

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that is not intended to be a used for these purposes – could be extracted and compiled in a useful

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and accessible form. It took several weeks and numerous discussions between counsel, XPO LM

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information technology personnel, and XPO LM’s litigation consultants to establish a basic

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protocol for extracting the information. Once the protocol was established, XPO LM’s information

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technology team then had to develop technical queries that would establish relationships between

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various databases so that the data was useable. That is, the technical team was tasked with creating

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an output that identified the who, where, and when for each and every truck that delivered for one

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of XPO LM’s customers in California on each and every day during the class period (which dates

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back to March 2012 for Carter). The result was an output of 10’s of millions of lines of data.

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After this initial data set was captured, XPO LM began the process of quality testing the
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STIPULATION AND PROPOSED ORDER TO REVISE THE CLASS CERTIFICATION
SCHEDULE AND REQUEST FOR CASE MANAGEMENT CONFERENCE

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data output to evaluate its completeness. On July 27, 2018, while this testing was performed XPO

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LM produced to plaintiffs an initial dataset. Within days, the parties identified massive gaps in the

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data. Some high-level examples of the issues that were identified include:

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

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Certain putative class members’ and related contract carrier information was not
included in the dataset (including some information about named-plaintiffs);

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The dataset that was extracted was not representative of the work performed by

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carriers and was incomplete (as identified by comparison to other records

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exchanged in discovery);

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Settlement data did not match to the data provided by the third party settlement

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company (as identified by a manual comparison of a sample of the data to the

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individual carrier settlement statements);

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

Information regarding contract interstate routes not included in the data;

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Estimated length of day and individualized routed stop data was not linked to the

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delivery team performing the services;
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The route and stop data collected by some of XPO LM’s customers through third

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party software (ex., Decartes, Cheetah, Mobilink) was not represented in the dataset,

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which meant there were informational gaps depending on the profit center.

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Since this first production, XPO LM, its consultants and legal team have been working to

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resolve each issue to ensure that the data upon which all of the parties base a settlement discussion

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is accurate and robust as is available. During this data integrity and troubleshooting phase, the

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parties have regularly communicated about the issues that they have spotted.

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At the beginning of August, only thirty days before the mediation, the parties recognized

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that they would not have enough time to complete the data integrity efforts, to exchange millions of

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lines of data and to develop their damages models in consultation with their experts, in time to have

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a productive mediation at the end of August. Consequently, the parties contacted the mediator to

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identify the next available dates for a two day mediation. In order to obtain earlier dates, the

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STIPULATION AND PROPOSED ORDER TO REVISE THE CLASS CERTIFICATION
SCHEDULE AND REQUEST FOR CASE MANAGEMENT CONFERENCE

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parties offered to be flexible on location of the mediation and agreed that non-contiguous dates

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could be selected if that meant an earlier mediation was possible.

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On August 23, 2018 the parties and mediator Michael Dickstein, Esq., rescheduled the
mediation for October 25, in San Francisco, and November 13 in Toronto.

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According to the current Order, plaintiffs’ motions for class certification are due on October

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2, 2018, defendants’ oppositions are due on December 3, 2018, and plaintiffs’ reply briefs are due

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on December 24, 2018, with a hearing to follow on January 17, 2019. Stipulation and Order, May

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30, 2018 (docketed only at Kramer/Ibanez ECF No. 65).

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NOW THEREFORE, the parties stipulate to and request that the Court order the following
revised certification motion, briefing and hearing dates:

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

Motions for class certification due December 14, 2018;

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

Oppositions are due February 8, 2019;

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

Reply briefs are due March 1, 2019;

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

Hearing is set for April 3, 2019 at 2:00 PM.

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The parties submit that good cause exists to continue the class certification dates. The

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parties have vigorously litigated the case, and, as previously anticipated that a realistic exploration
of settlement will involve the production, review, and analysis of millions of lines of additional

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data. That data has yet to be exchanged. The substantial amount of time needed to prepare the
matter for class certification and Defendant’s opposition thereto would interfere with the parties’

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ability to devote the time needed to prepare the matter for settlement discussions at the scheduled

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mediation. Should the matter not settle at or around the mediation, the class certification motion

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will be filed, according to the proposed schedule outlined above, 30 days after the scheduled two-

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days of mediation. Thus, should the matter not settle at or around the scheduled mediation, the

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matter will immediately proceed towards certification per the above proposed schedule.
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Additionally, the Parties further request the Court set a Case Management Conference to
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STIPULATION AND PROPOSED ORDER TO REVISE THE CLASS CERTIFICATION
SCHEDULE AND REQUEST FOR CASE MANAGEMENT CONFERENCE

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discuss modifications to the case schedule on Thursday, November 15, 2018 or as soon thereafter
as the Court’s calendar will permit.
Respectfully submitted,

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Dated: August 30, 2018

THE TURLEY & MARA LAW FIRM, APLC

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/s/ William Turley
William Turley, Esq.
David Mara, Esq.
Jamie Serb, Esq.
Representing Kramer/Ibanez Plaintiffs

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Dated: August 30, 2018

THE BAINER LAW FIRM

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/s/ Matthew Bainer
Matthew Bainer, Esq.
Representing Kramer/Ibanez Plaintiffs

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Dated: August 30, 2018

LEONARD CARDER

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/s/ Beth Ross
Beth Ross, Esq.
Jennifer Keating, Esq.
Amy Endo, Esq.
Representing Carter Plaintiffs

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Dated: August 30, 2018

LAW OFFICES OF THOMAS W. FALVEY

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/s/ Michael Boyamian
Michael Boyamian, Esq.
Armand Kizirian, Esq.
Representing Garcia Plaintiffs

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Dated: August 30, 2018

JACKSON LEWIS P.C.

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/s/ Fraser A. McAlpine
Fraser A. McAlpine
Adam L. Lounsbury
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STIPULATION AND PROPOSED ORDER TO REVISE THE CLASS CERTIFICATION
SCHEDULE AND REQUEST FOR CASE MANAGEMENT CONFERENCE

Representing Defendants XPO Last Mile, Inc.,
Macy’s West Stores, Inc.
SIGNATURE ATTESTATION Local Rule 5-1(i)(3)

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I Fraser A. McAlpine, attest that each of the other signatories to this document concur in the
filing of this document.

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/s/ Fraser A. McAlpine
Fraser A. McAlpine

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ORDER

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The class certification schedule is amended as follows:
Motions for class certification due December 14, 2018;
Oppositions are due February 8, 2019;
Reply briefs are due March 1, 2019;
Hearing is set for April 3, 2019 at 2:00 PM.
A further CMC is set for Tuesday November 13, 2018 at 2:00 p.m.
IT IS SO ORDERED.

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Dated: August 30, 2018
The Honorable William H. Orrick
UNITED STATES DISTRICT JUDGE

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4853-2001-4192, v. 4

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STIPULATION AND PROPOSED ORDER TO REVISE THE CLASS CERTIFICATION
SCHEDULE AND REQUEST FOR CASE MANAGEMENT CONFERENCE