Nitsch v. Dreamworks Animation SKG Inc. et al

Filing 270

Questions Regarding Motion for Class Certification. Signed by Judge Lucy H. Koh on April 29, 2016. (lhklc1, COURT STAFF) (Filed on 4/29/2016)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

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ROBERT A. NITSCH, et al.,

United States District Court
Northern District of California

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Plaintiffs,

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v.

Case No. 14-CV-04062-LHK
QUESTIONS REGARDING MOTION
FOR CLASS CERTIFICATION

DREAMWORKS ANIMATION SKG INC.,
et al.,
Defendants.

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By Wednesday, May 4, 2016 at 10 a.m., the parties shall file responses concisely
answering the below questions. Plaintiffs’ response shall not exceed three pages. Defendants’
response shall not exceed five pages.

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Questions for Plaintiffs

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

How many putative class members are there?



Plaintiffs cite the Ninth Circuit’s Williams and Cameron cases for the point that a statute of
limitations defense does not defeat class certification. Are Plaintiffs aware of any case in
which the Ninth Circuit has considered the more specific question of whether a claim
broadly requiring proof of fraudulent concealment may be certified as a class action?



Plaintiffs’ proposed class definition has expanded from the SAC to include plaintiffs from
2001-2003. Do Plaintiffs dispute that, absent fraudulent concealment, those claims are
equally time barred as the claims from 2004 onwards?

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o Do Plaintiffs dispute that the new plaintiffs for 2001-2003 must satisfy the test for
relation back to the original complaint to be properly added?

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

What percentage of the class earned statistically significantly less than the but-for
compensation predicted by Dr. Ashenfelter?



What are the confidence intervals on the percentage of under-compensation for each year
of the alleged conspiracy?
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Case No. 14-CV-04062-LHK
QUESTIONS REGARDING MOTION FOR CLASS CERTIFICATION

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Questions for Defendants


Do Defendants dispute that DreamWorks improperly included independent contractors in
the data initially provided to Dr. Ashenfelter?

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

Have the Defendants verified that none of the other Defendants included independent
contractors in the data provided to Dr. Ashenfelter?

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

Defendants argue in their opposition brief that Dr. Ashenfelter’s selection of job titles for
inclusion in the class is unreliable because it relied upon an algorithm. See Corrected Opp.
at 12. In support of this argument, Defendants cite to the expert report of Dr. Keeley.
However, Dr. Keeley argues in his expert report that Dr. Ashenfelter’s selection of job
titles is unreliable because it did not rely exclusively upon an algorithm but instead relied
upon Dr. Ashenfelter’s judgment. Keeley Report ¶¶ 34-36. Is the Defendants’ argument
that Dr. Ashenfelter’s selection is unreliable because it relied upon an algorithm, or that
Dr. Ashenfelter’s selection is unreliable because it did not rely upon an algorithm?



Do Defendants dispute that Dr. Keeley omitted fixed effects in his calculation of but-for
pay under Dr. Ashenfelter’s model? If Dr. Keeley did omit fixed effects, does Dr. Keeley
contend this was proper?



Do Defendants dispute that Dr. Keeley failed to account for the “smearing factor” in his
calculation of but-for pay under Dr. Ashenfelter’s model? If Dr. Keeley did not account for
the “smearing factor,” does Dr. Keeley contend this was proper?



Do Defendants dispute that Dr. Keeley used the standard error for model estimation
instead of the standard error for prediction in Exhibit 14 of Dr. Keeley’s report? If Dr.
Keeley did use the standard error for model estimation, does Dr. Keeley contend this was
proper?



The first element of fraudulent concealment is the concealment or affirmative misleading
prong. Do the Defendants dispute that the Plaintiffs intend to show concealment using
common proof not specific to each plaintiff?

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

Are Defendants aware of any case in which the Ninth Circuit has held that predominance
cannot be found if the class must establish fraudulent concealment to prevail?

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

It is unclear from Defendants’ declarations how many potential class members are subject
to a release or an arbitration agreement. For example, the Lucasfilm declaration gives a
number for employees who have signed severance agreements, but it does not indicate
whether all the employees who signed severance agreements are putative class members.
Do Defendants have an estimate of the number of total class members who have a release
or arbitration agreement with at least one of the Defendants?



From the declarations, it appears that only DreamWorks and the Sony entities are asserting
the existence of arbitration agreements with some class members. Is that correct?

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: April 29, 2016
______________________________________
LUCY H. KOH
United States District Judge
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Case No. 14-CV-04062-LHK
QUESTIONS REGARDING MOTION FOR CLASS CERTIFICATION