Morris v. Ernst & Young, LLP et al

Filing 48

Order by Hon. Ronald M. Whyte granting 47 Stipulation and extending briefing deadlines (Opposition due 1/28/13; Reply due 2/4/13) (rmwlc1, COURT STAFF) (Filed on 1/25/2013)

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H. TIM HOFFMAN, (State Bar No. 49141)
ROSS L. LIBENSON, (State Bar No. 181912)
HOFFMAN LIBENSON SAUNDERS & BARBA
180 Grand Avenue, Suite 1550
Oakland, CA 94612
Telephone: [phone]
Facsimile: [phone]

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Counsel for Plaintiffs

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GREGORY W. KNOPP (SBN 237615)
CHRISTOPHER PETERSEN (SBN 260631)
AKIN GUMP STRAUSS HAUER & FELD LLP
2029 Century Park East, Suite 2400
Los Angeles, CA 90067-3012
Telephone: [phone]
Facsimile: 310-229-1001

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Attorneys for Defendants

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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STEPHEN MORRIS and KELLY
McDANIEL, on behalf of themselves and all
others similarly situated,

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Case No. 12-cv-04964-RMW (HRL)
[Assigned for all purposes to Judge Ronald M.
Whyte]

Plaintiffs,
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v.
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ERNST & YOUNG, LLP, and ERNST &
YOUNG U.S., LLP,
Defendants.

SECOND STIPULATION AND
[PROPOSED] ORDER TO EXCEED
APPLICABLE PAGE LIMIT FOR
MOTION TO DISMISS, OR IN THE
ALTERNATIVE, STAY PROCEEDINGS
AND COMPEL ARBITRATION
BRIEFING

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Date: February 15, 2013

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Time: 9:00 a.m.

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Ctrm: 6

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SECOND STIPULATION AND [PROPOSED] ORDER TO EXCEED APPLICABLE PAGE LIMIT FOR MOTION TO DISMISS, OR
IN THE ALTERNATIVE, STAY PROCEEDINGS AND COMPEL ARBITRATION BRIEFING
Case No. 12-cv-04964-RMW (HRL)

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WHEREAS the parties have met and conferred and agreed to each exceed the applicable page

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limit for the opposition and reply briefing to the Defendants’ MOTION TO DISMISS, OR IN THE

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ALTERNATIVE, STAY PROCEEDINGS AND COMPEL ARBITRATION by ten (10) pages.

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WHEREAS a Stipulation and [Proposed] Order To Exceed Applicable Page Limit For Motion

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To Dismiss, Or In The Alternative, Stay Proceedings and Compel Arbitration Briefing (the

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“Stipulation”) was filed on January 23, 2013 (Dkt. No. 43).

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WHEREAS the Court denied without prejudice to re-file the Stipulation for failure to include in

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the Stipulation the reasons, consistent with Civil Local Rule 7-11(a), for seeking to exceed the page

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limits (Dkt. No. 46).

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WHEREAS Plaintiffs believe the reasons necessary to submit a memorandum exceeding the

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page limit up to an additional ten (10) pages includes a significant and extensive judicial history

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interpreting the very arbitration agreement at issue that was not addressed in Defendants’ motion. This

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includes, Plaintiffs maintain, finding the subject agreement unenforceable in circumstances which

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while different in some respects are sufficiently similar to control the result here. Hence, the need for

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additional pages to address the numerous issues include the following reasons:

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1. First, the agreement Defendants seek to enforce does not provide for shifting of costs and

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expense, or in other words allow for arbitrator discretion, where the relevant statutes

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unconditionally require costs and expenses to be shifted to the employer. See, Sutherland

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v. Ernst & Young LLP, 768 F.Supp.2d 547 (S.D.N.Y. 2011) (“Sutherland I”); Sutherland v.

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Ernst & Young LLP, 2012 U.S. Dist. LEXIS 5024 (S.D.N.Y. January 13, 2012) (“Sutherland

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II”);

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2. Second, the history includes this Court’s finding of waiver by Defendant of a claim to

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arbitration in Ho v. Ernst & Young, LLP, a putative class action in which both Plaintiffs

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were putative class members and which Plaintiff Morris participated, inter alia, by giving a

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declaration and sitting for a deposition. See, Ho v. Ernst & Young, LLP, 2011 U.S. Dist.

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LEXIS 106658 (N.D. Cal. Sept. 20, 2011), Order Denying Motion for Leave to Move For

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Reconsideration (Ho Dkt. No. 302, October 19, 2011). Whether such wavier applies to all
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SECOND STIPULATION AND [PROPOSED] ORDER TO EXCEED APPLICABLE PAGE LIMIT FOR CLASS CERTIFICATION
BRIEFING
Case No. 12-cv-04964-RMW (HRL)

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putative class members, or at least to those, like Mr. Morris, who specifically identified his

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personal dispute with Defendant and was subjected to discovery, apparently is an issue of

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first impression;

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3. Third, the cost of proceeding in individual arbitration proceedings under the arbitration

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agreements at issue here have been found to be so high that individual arbitration would not

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allow the participants to “effectively vindicate their statutory rights.” See Sutherland I

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and Sutherland II. Where arbitration must be conducted on an individual basis, but class

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proceedings in Court would allow those statutory rights to be vindicated. See also, Italian

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Colors Rest. v. Am. Express Travel Related Servs. Co. (In re Am. Express Merchs. Litig.),

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667 F.3d 204 (2d Cir. 2012)(“Amex III”), Nat’l Supermarkets Assoc. v. Am. Express Travel

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Related Servs. Co. (In re Am. Express Merchants’ Litig.), 634 F.3d 187, 2011 U.S. App.

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LEXIS 4507 (2d Cir., 2011)(“Amex II”), and In re Am. Express Merchs. Litig., 554 F.3d 300

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(2d Cir. 2009)(“Amex I”)(collectively hereinafter the “Amex Trilogy”); Coneff v. AT&T

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Corp., 673 F.3d 1155, 1159 (9th Cir. Wash. 2012);

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4. Fourth, Plaintiffs maintain the findings in Sutherland II could be collateral estoppel;

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5. Fifth, Plaintiffs maintain the National Labor Relations Board holding in D.R. Horton, Inc. v.

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Cuda, NLRB Case No. 12-CA-25764, 357 NLRB No. 184, (Jan. 3, 2012) that a

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class/collective action waiver imposed in an agreement required as a condition of

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employment to be a violation of Section 7 of the National Labor Relations Act and a

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violation of the Norris LaGuardia Act deserves deference. Accordingly, Plaintiffs need to

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address those issues; and

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6. Sixth, the Plaintiffs will seek to address the issue of waiver not only as a choice of law issue

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as touched upon in Ho v. Ernst & Young, LLP, 2011 U.S. Dist. LEXIS 106658 (N.D. Cal.

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Sept. 20, 2011), but also the separate issue of waiver by moving to compel arbitration only

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after seeking to transfer this matter from a sister court and then seeking to relate the matter

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to other cases.

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SECOND STIPULATION AND [PROPOSED] ORDER TO EXCEED APPLICABLE PAGE LIMIT FOR CLASS CERTIFICATION
BRIEFING
Case No. 12-cv-04964-RMW (HRL)

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WHEREAS, Defendants do not oppose Plaintiffs’ request for additional pages, but seek an
equal extension for the reply in the event the Court grants Plaintiffs’ request.

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THEREFORE IT IS HEREBY STIPULATED by and between the parties hereto through their

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respective undersigned counsel that:

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1.

Plaintiffs shall have up to thirty-five (35) pages for their Memorandum of Points and

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Authorities In Opposition to Defendant’s Motion To Dismiss, Or In the Alternative, Stay Proceedings

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and Compel Arbitration; and

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2.

Defendants shall have up to twenty-five (25) pages for their Memorandum of Points and

Authorities In Reply to Plaintiffs’ To Memorandum of Points and Authorities In Opposition to
Defendant’s Motion To Dismiss, Or In the Alternative, Stay Proceedings and Compel Arbitration.

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Dated: January 24, 2013

_________/s Ross L. Libenson_______________
Ross L. Libenson
HOFFMAN LIBENSON SAUNDERS & BARBA
Attorney for Plaintiffs

Dated: January 24, 2013

___________/s Gregory W. Knopp____________
GREGORY W. KNOPP
AKIN GUMP STRAUSS HAUER &
FELD LLP
Attorney for Defendant

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(This stipulation has been approved by Gregory W. Knopp)

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Because the court has agreed to extend the filing deadline for the opposition papers to Monday,
January 28, the court likewise extends the filing deadline for the reply papers to Monday, February 4.

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ORDER
PURSUANT TO STIPULATION IT IS SO ORDERED.

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Dated: __January 25________, 2013

__________________________________
United States District Judge

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SECOND STIPULATION AND [PROPOSED] ORDER TO EXCEED APPLICABLE PAGE LIMIT FOR CLASS CERTIFICATION
BRIEFING
Case No. 12-cv-04964-RMW (HRL)