Risinger v. SOC LLC et al

Filing 281

ORDER that Plaintiff's motion for clarification ECF No. 246 is granted; parties are instructed to include the Reclassified Guards on the class list and give the Reclassified Guards notice of this action; Plaintiff's motion to sea l ECF No. 247 is granted; Defendant's first motion to strike ECF No. 243 is denied as moot; Defendant's second motion to strike ECF No. 268 is granted in part and denied in part, without prejudice to reargument at trial. Signed by Judge Miranda M. Du on 9/5/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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KARL E. RISINGER,

Case No. 2:12-cv-00063-MMD-PAL
Plaintiff,

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ORDER

v.
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SOC LLC, et al.,
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Defendants.
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I.

SUMMARY

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This is a class action involving a dispute over the terms of employment for armed

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guards hired to work in Iraq. Before the Court is Plaintiff Karl. E. Risinger’s Motion for

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Clarification Regarding Class Definition (“Motion for Clarification”) (ECF No. 246). The

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Court has reviewed Defendants SOC LLC, SOC-SMG, Inc., and Day & Zimmermann,

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Inc.’s (collectively, “Defendants”) response (ECF No. 254), and Plaintiff’s reply (ECF No.

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256).

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Additionally before the Court are two of Defendants’ motions: (1) Motion to Strike

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Expert Testimony of William Buckley Regarding Asserted Damages for Persons Outside

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the Class (“First Motion to Strike”) (ECF No. 243); and (2) Motion to Strike Expert

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Testimony of William Buckley under Daubert and Fed. R. Evid. 702 (“Second Motion to

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Strike”) (ECF No. 268). The Court has reviewed Plaintiff’s responses (ECF Nos. 252, 279),

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and Defendants’ replies (ECF Nos. 256, 280) relating to these two motions.

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For the following reasons, the Court grants Plaintiff’s Motion for Clarification, denies

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Defendants’ First Motion to Strike as moot, and grants in part and denies in part

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Defendants’ Second Motion to Strike.

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II.

BACKGROUND
The Court incorporates herein the facts as described in previous orders. (ECF Nos.

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155, 263.)

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III.

PLAINTIFF’S MOTION FOR CLARIFICATION (ECF NO. 246)

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The Court certified a class consisting “of armed guards who worked for SOC in Iraq

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between 2006 and 2012.” (ECF No. 254 at 7 (citing ECF No. 155 at 19, 27).) In his Motion

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for Clarification, Plaintiff seeks an order clarifying that “armed guards” encompasses

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individuals Plaintiff refers to as “Reclassified Guards.” (ECF No. 246 at 3.) Reclassified

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Guards held job titles other than “Guard” during their employment with Defendants

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because Defendants changed their job title and/or salaries upon, or shortly after, their

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arrival in Iraq. (Id. at 2.) Nevertheless, Plaintiff argues, these individuals are “armed

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guards” within the meaning of the Class definition because they “were recruited as armed

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guards, received the same representations as the other Class members, were hired as

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armed guards, signed the standardized armed contracts, performed armed guard duties

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and had the same 72-hour work restriction under the TWISS-II contract.” (Id.)

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Defendants argue (1) that Plaintiff’s request is untimely as he already agreed to a

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class list that excluded the Reclassified Guards; (2) that granting Plaintiff’s request would

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violate the Reclassified Guards’ due process rights; (3) that the Rule 23 certification

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requirements are not satisfied for a class that includes the Reclassified Guards; and (4)

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that Plaintiff’s alternative request for a subclass of Reclassified Guards is precluded

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because Plaintiff is not a Reclassified Guard himself. (ECF No. 254 at 13-21.)

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Plaintiff disputes Defendants’ first point—that Plaintiff already agreed to a class list

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that excluded the Reclassified Guards—on the ground that Plaintiff’s agreement was

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based on misleading representations by Defendants. (ECF No. 259 at 7.) According to

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Plaintiff, Defendants represented that the class list included all individuals who were hired
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or employed as guards and that the Reclassified Guards entered into non-Guard

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employment contracts. (Id.) Plaintiff agrees that individuals are not part of the class if they

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entered into non-Guard employment contracts or entered employment contracts offering

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annual salaries greater than $65,000. (Id. at 8.) However, Plaintiff contends that the

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Reclassified Guards entered the same employment agreement as other members of the

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Class and never signed new contracts when Defendants changed their titles and/or

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salaries. (Id.)

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Setting aside whether Defendants misrepresented material information regarding

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the class list, the Court certified a class consisting “of armed guards who worked for SOC

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in Iraq between 2006 and 2012.” (ECF No. 254 at 7 (citing ECF No. 155 at 19, 27).) In the

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context of that order, the word “guards” carries its ordinary, everyday meaning. It does not

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refer specifically to individuals whose titles in Defendants’ personnel files happened to be

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“Guard.” (See id. at 14.) Moreover, the Court certified the class to efficiently resolve

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common questions of fact and law: “whether SOC promised recruits a 72-hour workweek

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in order to induce them to accept a job offer, whether SOC knew that guards would in fact

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be required to consistently work longer hours due to a preventable understaffing practice,

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and whether class members are entitled to damages for regularly working beyond 72

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hours.” (ECF No. 155 at 22.) The claims of the Reclassified Guards turn on the answers

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to these very same questions. Accordingly, the Court clarifies that Reclassified Guards

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are members of the class.

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Defendants have not persuaded the Court that Plaintiff’s request is untimely.

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Defendants’ characterization of Plaintiff’s request as untimely is pegged to Plaintiff’s

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agreement “months ago” to the class list. (See ECF No. 254 at 13.) However, Plaintiff’s

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agreement was apparently based on a misunderstanding between counsel. Consequently,

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Plaintiff’s agreement cannot serve as the point at which some time limit for seeking

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clarification began to run.

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Defendants further argue that granting Plaintiff’s motion will violate the Reclassified

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Guards’ due process rights. (ECF No. 254 at 17.) Defendants contend that granting
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Plaintiff’s motion will require the Court to “decertify the existing class, recertify a new one,

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and approve a notice plan and opt-out period to protect the new members’ due process

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rights.” (Id.) Plaintiff counters that the existing class action notice may be distributed to the

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Reclassified Guards with a new opt-out period. (ECF No. 259 at 6.) Plaintiff represents

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that providing this additional notice will not delay this matter any further because a trial

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date has not yet been set. (Id.) The Court agrees with Plaintiff that the Reclassified Guards’

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due process rights will be adequately protected by distributing the existing class action

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notice to the Reclassified Guards with a revised opt-out period.

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Defendants make further arguments based on their perception of Plaintiff’s filing as

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a motion to amend the class. (See ECF No. 254 at 13 (arguing that there are no new

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factual or legal developments to ground amendment and that Plaintiff has had ample time

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and opportunity to discover facts that would ground amendment); id. at 17-19 (arguing that

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Plaintiff has not satisfied Rule 23 with respect to the Reclassified Guards).) The Court will

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not consider these arguments because the Court agrees with Plaintiff that the motion is

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one for clarification rather than amendment. In addition, Defendants’ argument regarding

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Plaintiff’s request for a subclass (id. at 19-21) is moot in light of the foregoing analysis.
Accordingly, the Court will grant Plaintiff’s Motion for Clarification.

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IV.

DEFENDANTS’ FIRST MOTION TO STRIKE (ECF NO. 243)

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Plaintiff seeks to introduce the expert testimony of William Buckley at trial regarding

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the class’s damages. In their First Motion to Strike, Defendants seek to strike the portions

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of Mr. Buckley’s report that opine on liability and damages regarding the Reclassified

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Guards. (ECF No. 243 at 5.) The Court will deny Defendants’ motion as moot in light of

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the Court’s ruling that the class includes the Reclassified Guards.

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V.

DEFENDANTS’ SECOND MOTION TO STRIKE (ECF NO. 268)

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Mr. Buckley’s testimony is based on the results of a survey that he and class

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counsel sent to 935 individuals on a class list provided by Defendants (that does not

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include the Reclassified Guards). (ECF No. 268 at 9; ECF No. 279 at 24.) The survey

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asked for “(1) name of respondent, (2) dates of employment, (3) time spent at each base
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while in Iraq, (4) acknowledgement of whether respondent was ever required to work 7-

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days per week, (5) an estimate of what percent of the time with SOC that respondent

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worked 7-days per week, (6) acknowledgment of whether respondent ever worked greater

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than 12-hours per day, (7) an estimate of percent of shifts respondent worked more than

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12-hours in a day, and (8) for the days greater than 12-hours an estimate of the amount

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of time actually worked, i.e. length of the workday.” (ECF No. 268-7 at 7-8.) Mr. Buckley

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and class counsel received about 159 responses. (ECF No. 268 at 9; ECF No. 268-7 at

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8.) In their Second Motion to Strike, Defendants seek to strike the entirety of William

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Buckley’s expert report for failure to comply with the requirements of Fed. R. Evid. 702.

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(ECF No. 268 at 11.)

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A.

LEGAL STANDARD

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“A witness who is qualified as an expert by knowledge, skill, experience, training,

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or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific,

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technical, or other specialized knowledge will help the trier of fact to understand the

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evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or

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data; (c) the testimony is the product of reliable principles and methods; and (d) the expert

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has reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702.

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The Supreme Court provided additional guidance on Rule 702 and its application

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in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v.

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Carmichael, 526 U.S. 137 (1999). In Daubert, the Court held that scientific testimony must

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be reliable and relevant to be admissible. Daubert, 509 U.S. at 589. Kumho Tire clarified

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that Daubert’s principles also apply to technical and specialized knowledge. See Kumho,

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526 U.S. at 141. The trial court has “considerable leeway” in deciding how to determine

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the reliability of an expert’s testimony and whether the testimony is in fact reliable. Id. at

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152. The “test of reliability is ‘flexible,’ and Daubert’s list of specific factors neither

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necessarily nor exclusively applies to all experts or in every case.” Id. at 141.

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The Ninth Circuit has emphasized that “Rule 702 is applied consistent with the

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liberal thrust of the Federal Rules and their general approach of relaxing the traditional
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barriers to opinion testimony.” Jinro Am. Inc. v. Secure Invs., Inc., 266 F.3d 993, 1004 (9th

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Cir.), opinion amended on denial of reh’g, 272 F.3d 1289 (9th Cir. 2001) (citations and

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internal quotation marks omitted). “An expert witness—unlike other witnesses—is

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permitted wide latitude to offer opinions, including those that are not based on firsthand

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knowledge or observation, so long as the expert’s opinion has a reliable basis in the

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knowledge and experience of his discipline.” Id. (citations and internal quotation marks

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omitted). Shaky but admissible evidence should not be excluded but instead attacked by

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cross-examination, contrary evidence, and attention to the burden of proof. Primiano v.

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Cook, 598 F.3d 558, 564 (9th Cir.), as amended (Apr. 27, 2010).

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B.

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Defendants argue that Mr. Buckley’s report should be stricken because it is not the

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product of a qualified expert in survey design and statistical analysis; it relies on insufficient

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data because the surveys introduce egregious bias and ambiguity; and it does not comport

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with statistical principles. (ECF No. 268 at 11.)

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DISCUSSION

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Qualifications

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Defendants argue that Mr. Buckley is not qualified to provide expert testimony on

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“survey design and sampling” because Mr. Buckley does not have any educational or

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professional background in survey design or sampling. (Id.) In support of their argument,

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Defendants cite to a recent case in which Mr. Buckley was not qualified as an expert, Wolf

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v. Hewlett Packard Co., No. 5:15-cv-01221-BRO-GJS (C.D. Cal. September 1, 2016). (Id.)

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In his deposition in that case, Mr. Buckley responded in the negative when asked whether

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he had an educational or professional background in survey design or sampling. (Id.)

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Defendants contend that Mr. Buckley never designed a survey as an expert until this

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matter, has not taken any classes on survey design or sampling, and does not understand

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basic concepts of survey research or statistical extrapolation. (Id. at 12-15.)

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Plaintiff argues that Mr. Buckley has been offered as a “damages expert”—not an

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expert in “survey design and sampling”—and that Mr. Buckley is qualified as such. (ECF

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No. 279 at 11.) Plaintiff further argues that the questionnaire Mr. Buckley used “was not a
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scientific survey requiring specialized expertise in survey design or sampling, as the

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Questionnaire was sent to all Class members seeking information regarding their own

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personal work experience, as opposed to a consumer research study.” (Id.) In support of

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Mr. Buckley’s quantitative expertise and experience, Plaintiff cites to Mr. Buckley’s more

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than thirty years’ experience providing financial analysis and quantitative support in

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litigation; his MBA in finance; his graduate-level coursework, including marketing classes

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in survey design and utilizing survey data; his experience as an adjunct professor teaching

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financial analysis to professionals; and his on-the-job training and experience with

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questionnaires, surveys, sample statistics, wage-and-hour class work, and calculating

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damages. (Id.)

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In response to Defendants’ citation to Wolf, Plaintiff asserts that Mr. Buckley’s

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deposition testimony was taken out of context—Mr. Buckley merely testified that he is not

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an expert in survey design or sampling following a line of questioning regarding consumer

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psychology and behavior and conjoint analysis, a survey-based statistical technique not

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at issue in this case. (Id. at 12.) While the court in Wolf found that Mr. Buckley lacked

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“educational or professional background in survey design or sampling,” the court’s ultimate

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finding was that Mr. Buckley “was not qualified to testify as an expert on consumer

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behavior prediction and conjoint analysis.” (ECF No. 268-6 at 11.) Given that these two

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areas of expertise are not at issue in this case, the court’s finding regarding Mr. Buckley’s

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background in survey design and sampling—extraneous to its ultimate finding—is only

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marginally persuasive. Moreover, the court in that case found that Mr. Buckley has a “fairly

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strong statistical background” outside of consumer behavior. (Id.)

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The Court agrees with Plaintiff that Mr. Buckley’s experience shows he has strong

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quantitative skills. (See ECF No. 279 at 11.) While Defendants contend that Mr. Buckley

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is unable to explain core statistical concepts such as what makes a sample representative

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or biased, these are issues to explore on cross-examination. These purported

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insufficiencies bear on the weight of Mr. Buckley’s testimony rather than its admissibility.

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2.

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Survey Design

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Defendants further argue that Mr. Buckley’s testimony is inadmissible because it is

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based on a flawed survey. (ECF No. 268 at 15.) Plaintiff argues that the survey was

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conducted according to generally accepted principles. (ECF No. 279 at 14.)

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Surveys are admissible if they are relevant, conducted according to accepted

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principles, and set upon a proper foundation for admissibility. Clicks Billiards, Inc. v.

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Sixshooters, Inc., 251 F.3d 1252, 1263 (9th Cir. 2001). As long as surveys “‘are conducted

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according to accepted principles,’ survey evidence should ordinarily be found sufficiently

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reliable under [Daubert, 509 U.S. 579].” Southland Sod Farms v. Stover Seed Co., 108

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F.3d 1134, 1143 n.8 (9th Cir. 1997) (quoting E. & J. Gallo Winery v. Gallo Cattle Co., 967

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F.2d 1280, 1292 (9th Cir. 1992)). The proponent bears the burden of showing “that the

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survey was conducted in accordance with generally accepted survey principles and that

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the results were used in a statistically correct manner.” Keith v. Volpe, 858 F.2d 467, 480

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(9th Cir. 1988). In the absence of evidence that the surveys were conducted in accordance

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with generally accepted principles, surveys have been inadmissible when their creators

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were not qualified to design or interpret surveys, Elliott v. Google, Inc., 860 F.3d 1151,

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1160 (9th Cir. 2017); M2 Software, Inc. v. Madacy Entm’t, 421 F.3d 1073, 1087 (9th Cir.

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2005); see also United States v. 0.59 Acres of Land, 109 F.3d 1493, 1496 (9th Cir. 1997)

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(noting that an “unscientific” survey “prepared by a non-witness of unknown qualifications”

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violated Fed. R. Evid. 703 and would not meet the Daubert standards for scientific

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evidence), and when the experts introducing the surveys did not actually conduct them,

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F.T.C. v. Commerce Planet, Inc., 642 F. App’x 680, 682 (9th Cir. 2016).

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“Once

the survey is

admitted,

however,

follow-on

issues

of

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methodology, survey design, reliability, the experience and reputation of the expert,

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critique of conclusions, and the like go to the weight of the survey rather than its

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admissibility.” Clicks Billiards, Inc., 251 F.3d at 1263. “Unlike novel scientific theories, a

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jury should be able to determine whether asserted technical deficiencies undermine a

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survey’s probative value.” Southland Sod Farms, 108 F.3d at 1143 n.8. “Technical
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inadequacies in the survey, including the format of the questions or the manner in which

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it was taken, bear on the weight of the evidence, not its admissibility.” Keith, 858 F.2d at

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480. Thus, even surveys with technical problems such as improper participant pools,

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biased questions, Southland Sod Farms, 108 F.3d at 1143, or flawed coding of responses,

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E. & J. Gallo Winery, 967 F.2d at 1292, are admissible.

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Defendants first argue that the survey is inadmissible because it was administered

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by class counsel, not by Mr. Buckley himself. (ECF No. 268 at 16.) Plaintiff counters that

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Mr. Buckley designed all the questions and that counsel simply transcribed them. (ECF

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No. 279 at 19.) Plaintiff additionally argues that class counsel’s involvement was merely

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ministerial (e.g., mailing and collecting the surveys) and does not render the survey

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responses unreliable. (Id.) The Court agrees with Plaintiff that counsel’s involvement in

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mailing and collecting the surveys does not render the data unreliable. Nor does counsel’s

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mere transcription of Mr. Buckley’s survey questions. Mr. Buckley testified that he—not

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class counsel—drafted the questions and that class counsel reviewed the questions and

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put them on a form. (ECF No. 268-2 at 102.) To the extent that class counsel’s involvement

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might have introduced bias, Defendants may choose to attack the survey’s probative value

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on that basis at trial. See Southland Sod Farms, 108 F.3d at 1143.

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Defendants cite several cases in support of their first argument that are

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unpersuasive or distinguishable. Defendants’ citation to Gibson v. County of Riverside,

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181 F. Supp. 2d 1057, 1068 (C.D. Cal. 2002), is unpersuasive because the court based

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its opinion on a Third Circuit case, Pittsburgh Press Club v. United States, 579 F.2d 751,

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758 (3d Cir.1978), that predated the Ninth Circuit’s decision in Southland Sod Farms, 108

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F.3d 1134. In Southland Sod Farms, the Ninth Circuit expressly contemplated “leading

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questions” and determined that such bias bears on “the weight, and not the admissibility,

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of the survey.” 108 F.3d at 1143 (citing E. & J. Gallo Winery, 967 F.2d at 1292). Two other

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cases Defendants cite, Sirko v. Int’l Bus. Machines Corp., No. CV 13-03192 DMG SSX,

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2014 WL 4452699 (C.D. Cal. Sept. 3, 2014), and Marlo v. United Parcel Serv., Inc., 251

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F.R.D. 476, 485 (C.D. Cal. 2008), aff’d, 639 F.3d 942 (9th Cir. 2011), are distinguishable
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because counsel in those cases designed the surveys at issue entirely themselves and

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without the assistance of an expert. Sirko, 2014 WL 4452699, at *4; Marlo, 251 F.R.D. at

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485. Defendants have produced no evidence to rebut Plaintiff’s contention that Mr.

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Buckley designed the survey. Rather, Defendants’ citations to Mr. Buckley’s deposition

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transcript demonstrate that Mr. Buckley orally prescribed the questions to be included in

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the survey, and class counsel wrote them down. (See ECF No. 268 at 16-17; ECF No.

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268-2 at 101-07.) A fourth case Defendants cite, Geo. M. Martin Co. v. All. Mach. Sys.

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Int’l, LLC, No. C 07-00692 WHA, 2008 WL 2008638 (N.D. Cal. May 6, 2008), is

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distinguishable because the survey in that case was “spoon-fed to expert by counsel and

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client.” 2008 WL 2008638, at *1. Class counsel’s transcription of Mr. Buckley’s survey

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questions does not constitute “spoon-feeding” given that Mr. Buckley formulated the

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questions.

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Defendants further argue that the survey is inadmissible because class members

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received the survey with a cover letter that purportedly emphasized the recipients’ financial

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interest in the survey. (ECF No. 268 at 17-18.) Plaintiff argues that the cover letter merely

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informed the respondents of the survey’s purpose. (ECF No. 279 at 19-20.) Plaintiff further

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argues that questions about bias bear on the weight rather than the admissibility of the

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survey. (Id. at 20.) The Court agrees with Plaintiff that the cover letter did not introduce

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undue bias, particularly when the class members were already aware of their financial

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stake in the litigation. Even without the cover letter, respondents would have been aware

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of an incentive to inflate the hours they worked. In addition, even if the cover letter

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introduced bias, the Court agrees with Plaintiff that the issue would bear on the weight

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rather than the admissibility of the survey. See Southland Sod Farms, 108 F.3d at 1143.

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Defendants’ citation to Gibson, 181 F. Supp. 2d 1057, is unpersuasive for the reason

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discussed supra, as is Defendants’ citation to Senne v. Kansas City Royals Baseball

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Corp., 315 F.R.D. 523, 589 (N.D. Cal. 2016), which bases its reasoning on Gibson and

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the Third Circuit case discussed supra, Pittsburgh Press Club, 579 F.2d 751.

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Defendants further argue that the survey is inadmissible because the survey

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questions were not pretested and created confusion. (ECF No. 268 at 18.) Plaintiff

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responds that Mr. Buckley did pretest the questions and designed them to avoid confusion.

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(ECF No. 279 at 21.) Plaintiff argues that Buckely pretested the questions by (1) reviewing

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Risinger’s deposition testimony and the affidavits of certain Class members to craft

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questions with similar language that would be used and understood by the Class

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members; (2) reviewing the Class notice for clarity on language regarding the six-twelve

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attribute; and (3) considering hypothetical answers from the respondents to the questions

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for quantitative purposes. (Id. at 20-21.) Plaintiff further argues that the questions were not

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confusing because there were very few unclear responses. (Id. at 21.) Finally, Plaintiff

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argues that Defendants’ criticisms of the questions and any resulting inaccurate data bear

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on the weight rather than the admissibility of the evidence. (Id.) The Court does not find

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Defendants’ argument persuasive. Defendants’ evidence that the survey was confusing is

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trivial—two respondents (of 159) provided data outside the relevant time period, “several”

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respondents included data on their work experiences outside of Iraq, and one respondent

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provided data about his work in jobs other than “Guard.” (ECF No. 268 at 19.) The

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relatively small number of improper responses actually suggests that the survey worked

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fairly well. Moreover, “[t]echnical inadequacies in the survey, including the format of the

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questions or the manner in which it was taken, bear on the weight of the evidence, not its

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admissibility.” Keith, 858 F.2d at 480.

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Defendants further argue that the survey is inadmissible because Mr. Buckley

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admitted that he was “not able to use the best practice approach to the administration.”

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(ECF No. 268 at 20.) Plaintiff argues that Defendants take Mr. Buckley’s deposition

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testimony out of context. (ECF No. 279 at 22.) The Court agrees with Plaintiff. Mr. Buckley

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testified that he believed the “overall accepted survey research methodology” and the

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“elements of best practices in survey methodology” were incorporated into the survey.

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(ECF No. 268-2 at 154, 156.) Mr. Buckley only noted that he was not able to use the best

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approach to the administration of the survey “all the way through,” meaning that he was
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unable to include data from those individuals who did not respond. (See ECF No. 279 at

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22.)
In sum, Defendants have not persuaded the Court that the survey data is

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inadmissible for any of their cited reasons.
3.

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Compliance with Statistical Principles

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Defendants further argue that Mr. Buckley’s opinion is inadmissible because it is

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based on a non-representative sample of the class. (ECF No. 268 at 21.) Defendants

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contend that Mr. Buckley intends to opine on damages for all class members (roughly

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1,000) based on responses to the survey even though he only received 159 responses.

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(Id.) Plaintiff argues that the responses are sufficiently numerous to make generalizations

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about the entire class, even though more than eighty percent of the class’s damages are

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unknown. (See ECF No. 279 at 24-25.)

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The Court finds that Defendants’ argument is persuasive in part. It would be

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inappropriate for Mr. Buckley to testify about class-wide damages based on the responses

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of seventeen percent of the class members because (1) the respondents were not chosen

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by probability sampling and (2) the responses that were received are likely infected with

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self-selection bias. (See ECF No. 268 at 21-22.) However, Defendants have not presented

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any argument that would prevent Mr. Buckley from testifying in a more limited capacity

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about the responses he did receive. Accordingly, the Court will limit Mr. Buckley’s

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testimony to that involving the damages incurred by the 159 individuals who responded

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and not impute their responses to the entire Class, though this limitation is without

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prejudice to reargument at trial.

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VI.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several cases

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not discussed above. The Court has reviewed these arguments and cases and determines

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that they do not warrant discussion as they do not affect the outcome of the parties’

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motions.

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It is therefore ordered that Plaintiff’s motion for clarification (ECF No. 246) is granted

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consistent with this order. The parties are instructed to include the Reclassified Guards on

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the class list and give the Reclassified Guards notice of this action.

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It is further ordered that Plaintiff’s motion to seal (ECF No. 247) is granted.

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It is further ordered that Defendant’s first motion to strike (ECF No. 243) is denied

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as moot.

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It is further ordered that Defendant’s second motion to strike (ECF No. 268) is

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granted in part and denied in part, without prejudice to reargument at trial. Mr. Buckley

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may testify about responses to the survey but will not be permitted to impute those

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responses to the entire class.
DATED THIS 5th day of September 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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