Ortiz et al v. Home Depot U.S.A., Inc

Filing 71

ORDER re 65 Stipulation filed by Home Depot U.S.A., Inc. Signed by Judge Lucy H. Koh on 9/1/2011. (lhklc1, COURT STAFF) (Filed on 9/1/2011)

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DONALD LIVINGSTON
WILLIAM ALLEN (Admitted Pro Hac Vice)
AKIN GUMP STRAUSS HAUER & FELD LLP
1333 New Hampshire Avenue, N.W.
Washington, D.C. 20036
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

TERESA W. GHALI (SBN 252961)
AKIN GUMP STRAUSS HAUER & FELD LLP
580 California Street, Suite 1500
San Francisco, CA 94104
Tel: [phone]
Fax: [phone]
Email: [e-mail]

Attorneys for Defendant
HOME DEPOT U.S.A., INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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GABRIEL ORTIZ, ANDREW GONZALES,
LANDON MICKEY MILLER, AND JOE
HUYNH, on behalf of themselves and all
others similarly situated,

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Plaintiffs,
v.

Case No. C 09-03485 LHK
STIPULATED REQUEST FOR
EXTENSION OF TIME TO FILE
CLASS ACTION SETTLEMENT
AGREEMENT; [PROPOSED] ORDER
[Fed. R. Civ. P. 26(f), Civ. L.R. 6-1(b), 6-2,
7-12.]

HOME DEPOT U.S.A., INC.,
The Honorable Lucy H. Koh

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Defendant.
After two mediation sessions before the Honorable Edward A. Infante (ret.), and significant
efforts and negotiations following those sessions, the parties reached an agreement on material terms,
including provisions for class-wide equitable relief, monetary relief to the putative class members and
named plaintiffs, and reasonable attorneys’ fees and costs, subject to reaching a final agreement on all
language of a class action settlement agreement. See Declaration of William F. Allen, ¶ 2. On July 7,
2011, the parties filed a notice of settlement and jointly requested a stay of the pre-trial scheduling
order to permit the parties time to draft a formal class action settlement agreement and the motion
papers to present to present to the Court in connection with a motion for preliminary approval of the
proposed agreement. See dkt. no. 63; Allen decl. at ¶ 3. On July 7, the Court stayed the pre-trial
schedule and ordered the parties to file a motion for preliminary approval by August 31, 2011, or

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STIPULATED REQUEST FOR EXTENSION OF TIME TO FILE CLASS ACTION SETTLEMENT
AGREEMENT
Case No. C 09-03485 LHK

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prepare to file their class certification briefing on an expedited basis. See dkt. no. 64; Allen decl. at ¶

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4.

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Since the Court’s July 7, 2011 order, the parties have worked diligently to finalize the

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settlement agreement, draft the class notice, and draft the motion for preliminary approval. The parties

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have exchanged several drafts and held frequent discussions regarding the structure and terms of the

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settlement agreement, which is 29 pages long and proposes Rule 23(b)(2) and Rule 23(b)(3) classes.

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See Allen decl. at ¶ 5. The parties have also considered the impact of the Supreme Court’s recent

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decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, ___ U.S. ___ (June 20, 2011). See id. The

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full written agreement has been reviewed by defendant’s counsel and is pending final review by Home

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Depot’s Office of General Counsel. Defendant expects final review and approval to be completed by

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no later than Wednesday, September 7, 2011. See id. at ¶ 6.

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Plaintiffs intend to file their motion for preliminary approval (which defendant’s counsel has

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reviewed) on August 31, 2011 without a copy of the agreement. Plaintiffs will not be able to file the

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signed settlement agreement on the same day as the motion because the full written agreement is still

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pending final review by Home Depot’s Office of General Counsel. Accordingly, in accordance with

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Civil Local Rules 6-1(b) and 6-2(a), the parties request a brief extension to supplement the motion for

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preliminary approval by filing the actual signed settlement agreement on or before September 7, 2011.

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to file the settlement agreement until September 7, 2011. Plaintiffs have contacted the Court’s clerk

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and requested that the scheduled September 29, 2011 status conference be converted to a hearing on

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the unopposed motion for preliminary approval. The requested brief extension should not require

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rescheduling of that hearing, and will not alter the date of any other hearing or proceeding on the

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Court’s calendar. Id. at ¶ 7; see Civ. Local R. 6-1(b).

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On January 26, 2011, the Court issued a scheduling order modifying the pretrial schedule

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originally set by the Honorable James Ware in his order of February 25, 2010. Dkt. no. 50. In addition

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to the January 26, 2011 Case Management Order and the July 7, 2011 Stay Order, the following time

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modifications have been made by the Court, upon motion or by stipulation: (1) plaintiffs’ motion for

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continuance of Case Management Conference (see dkt. no. 10); (2) stipulation to extension of time for

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Defendant to file answer to amended complaint (see dkt. no. 13); (3) stipulation to extend time for
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STIPULATED REQUEST FOR EXTENSION OF TIME TO FILE CLASS ACTION SETTLEMENT
AGREEMENT
Case No. C 09-03485 LHK

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mediation (see dkt. no. 36); (4) stipulation to extend time for taking Rule 30(b)(6) deposition (see dkt.

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No. 36); and (5) stipulation to extend time for expert disclosures pertaining to class certification (see

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dkt. No. 58). See Allen decl. at ¶ 8.

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A declaration from defendant’s counsel William F. Allen in support of this stipulated request is
enclosed. See Civ. Local R. 6-2(a).

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Dated: August 31, 2011.

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THE LEGAL AID SOCIETY-EMPLOYMENT
LAW CENTER
SCHNEIDER WALLACE
COTTRELL BRAYTON
KONECKY LLP

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/s/ Jinny Kim
JINNY KIM

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Attorneys for Plaintiffs
Gabriel Ortiz, Andrew Gonzales, Landon Mickey
Miller, and Joe Huynh

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Dated: August 31, 2011.

AKIN GUMP STRAUSS HAUER & FELD LLP

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/s/ Teresa W. Ghali
TERESA W. GHALI

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Attorneys for Defendant
HOME DEPOT U.S.A., INC.

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STIPULATED REQUEST FOR EXTENSION OF TIME TO FILE CLASS ACTION SETTLEMENT
AGREEMENT
Case No. C 09-03485 LHK

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ECF CERTIFICATION
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Pursuant to General Order No. 45 X. (B), I attest that concurrence in the filing of this
document has been obtained from Jinny Kim.

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Dated: August 31, 2011.
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/s/ Teresa W. Ghali
TERESA W. GHALI

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STIPULATED REQUEST FOR EXTENSION OF TIME TO FILE CLASS ACTION SETTLEMENT
AGREEMENT
Case No. C 09-03485 LHK

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DECLARATION OF WILLIAM F. ALLEN

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I, William F. Allen, declare,

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1.

I am an attorney in good standing admitted pro hac vice to practice in the Northern

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District of California and am attorney of record for defendant Home Depot U.S.A., Inc. in Ortiz v.

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Home Depot U.S.A., Inc., Case No. C 09-03485 LHK (N.D. Cal.). I make this declaration based on my

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own personal knowledge and, if called to do so, could and would competently so testify in court.

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2.

After two mediation sessions before the Honorable Edward A. Infante (ret.), and

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significant efforts and negotiations following those sessions, the parties reached an agreement on

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material terms, including provisions for class-wide equitable relief, monetary relief to the putative

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class members and named plaintiffs, and reasonable attorneys’ fees and costs, subject to reaching a

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final agreement on all language of a class action settlement agreement.

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3.

On July 7, 2011, the parties filed a notice of settlement and jointly requested a stay of

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the pre-trial scheduling order to permit the parties time to draft a formal class action settlement

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agreement and the motion papers to present to present to the Court in connection with a motion for

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preliminary approval of the proposed agreement. See dkt. no. 63.

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4.

On July 7, the Court stayed the pre-trial schedule and ordered the parties to file a

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motion for preliminary approval by August 31, 2011, or prepare to file their class certification briefing

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on an expedited basis. See dkt. no. 64.

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5.

Since the Court’s July 7, 2011 order, the parties have worked diligently to finalize the

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settlement agreement, draft the class notice, and draft the motion for preliminary approval. The parties

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have exchanged several drafts and held frequent discussions regarding the structure and terms of the

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settlement agreement, which is 29 pages long and proposes Rule 23(b)(2) and Rule 23(b)(3) classes.

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The parties have also considered the impact of the Supreme Court’s recent decision in Wal-Mart Stores,

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Inc. v. Dukes, 131 S.Ct. 2541, ___ U.S. ___ (June 20, 2011).

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6.

The full written agreement has been reviewed by defendant’s counsel and is pending

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final review by Home Depot’s Office of General Counsel. Defendant expects final review and

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approval to be completed by no later than Wednesday, September 7, 2011.

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STIPULATED REQUEST FOR EXTENSION OF TIME TO FILE CLASS ACTION SETTLEMENT
AGREEMENT
Case No. C 09-03485 LHK

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7.

Plaintiffs have informed me that they intend to file their motion for preliminary

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approval, which I have reviewed, on August 31, 2011 without a copy of the settlement agreement.

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Plaintiffs will not be able to file the signed settlement agreement today with the motion because the full

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written agreement is still pending final review by Home Depot’s Office of General Counsel. The

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parties are requesting a brief extension of the deadline to supplement the motion for preliminary

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approval by filing the actual signed settlement agreement on or before September 7, 2011. The

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extension will not alter the date of any hearing or proceeding on the Court’s calendar. Plaintiffs have

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contacted the Court’s clerk and requested that the scheduled September 29, 2011 status conference be

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converted to a hearing on the unopposed motion for preliminary approval. The requested brief

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extension should not require rescheduling of that hearing, and will not alter the date of any other

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hearing or proceeding on the Court’s calendar.

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8.

On January 26, 2011, the Court issued a scheduling order modifying the pretrial

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schedule originally set by the Honorable James Ware in his order of February 25, 2010. Dkt. no. 50.

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In addition to the January 26, 2011 Case Management Order and the July 7, 2011 Stay Order, the

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following time modifications have been made by the Court, upon motion or by stipulation: (1)

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plaintiffs’ motion for continuance of Case Management Conference (see dkt. no. 10); (2) stipulation to

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extension of time for Defendant to file answer to amended complaint (see dkt. no. 13); (3) stipulation

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to extend time for mediation (see dkt. no. 36); (4) stipulation to extend time for taking Rule 30(b)(6)

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deposition (see dkt. No. 36); and (5) stipulation to extend time for expert disclosures pertaining to class

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certification (see dkt. No. 58).

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9.

Plaintiffs’ counsel Jinny Kim has authorized defendant’s counsel to sign the joint

stipulated request on plaintiffs’ behalf.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct. Executed this 31st day of August, 2011, in Washington, DC.
/s/William F. Allen
William F. Allen

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STIPULATED REQUEST FOR EXTENSION OF TIME TO FILE CLASS ACTION SETTLEMENT
AGREEMENT
Case No. C 09-03485 LHK

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The parties stipulate that they are prepared to file a class action settlement agreement in this
action by September 7, 2011.
PURSUANT TO THE PARTIES’ STIPULATED REQUEST FOR AN EXTENSION OF
TIME, AND GOOD CAUSE SHOWN, IT IS SO ORDERED THAT:
Plaintiffs shall file the settlement agreement on or before September 7, 2011.

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IT IS SO ORDERED.

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Dated: September 1, 2011

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_____________________________
THE HON. LUCY H. KOH
United States District Judge

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STIPULATED REQUEST FOR EXTENSION OF TIME TO FILE CLASS ACTION SETTLEMENT
AGREEMENT
Case No. C 09-03485 LHK