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Stephen Morris and Kelly Mcdaniel, On Behalf of Themselves and v. Ernst & Young

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


January 25, 2013

STEPHEN MORRIS AND KELLY MCDANIEL, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
ERNST & YOUNG, LLP, AND ERNST & YOUNG U.S., LLP, DEFENDANTS.

H. TIM HOFFMAN, (State Bar No. 49141) ROSS L. LIBENSON, (State Bar No. 181912) HOFFMAN LIBENSON SAUNDERS & BARBA 180 Grand Avenue, Suite 1550 3 Oakland, CA 94612 Telephone: (510) 763-5700 Facsimile: (510) 835-1311 Counsel for Plaintiffs 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: 310-229-1000 Facsimile: 310-229-1001 Attorneys for Defendants

[Assigned for all purposes to Judge Ronald M. Whyte] SECOND STIPULATION AND [PROPOSED] ORDER TO EXCEED APPLICABLE PAGE LIMIT FOR MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY PROCEEDINGS AND COMPEL ARBITRATION BRIEFING Date: February 15, 2013 Time: 9:00 a.m. Ctrm: 6 2 limit for the opposition and reply briefing to the Defendants' MOTION TO DISMISS, OR IN THE 3

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

To Dismiss, Or In The Alternative, Stay Proceedings and Compel Arbitration Briefing (the 6 WHEREAS the Court denied without prejudice to re-file the Stipulation for failure to include in 8 the Stipulation the reasons, consistent with Civil Local Rule 7-11(a), for seeking to exceed the page 9 limits (Dkt. No. 46). 10 11 page limit up to an additional ten (10) pages includes a significant and extensive judicial history 12 interpreting the very arbitration agreement at issue that was not addressed in Defendants' motion. This 13 includes, Plaintiffs maintain, finding the subject agreement unenforceable in circumstances which 14 while different in some respects are sufficiently similar to control the result here. Hence, the need for 15 additional pages to address the numerous issues include the following reasons: 16 WHEREAS the parties have met and conferred and agreed to each exceed the applicable page ALTERNATIVE, STAY PROCEEDINGS AND COMPEL ARBITRATION by ten (10) pages. 4 "Stipulation") was filed on January 23, 2013 (Dkt. No. 43). 7 WHEREAS Plaintiffs believe the reasons necessary to submit a memorandum exceeding the 1. First, the agreement Defendants seek to enforce does not provide for shifting of costs and expense, or in other words allow for arbitrator discretion, where the relevant statutes unconditionally require costs and expenses to be shifted to the employer. See, Sutherland v. Ernst & Young LLP, 768 F.Supp.2d 547 (S.D.N.Y. 2011) ("Sutherland I"); Sutherland v. Ernst & Young LLP, 2012 U.S. Dist. LEXIS 5024 (S.D.N.Y. January 13, 2012) ("Sutherland II");

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

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

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

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

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

Reconsideration (Ho Dkt. No. 302, October 19, 2011). Whether such wavier applies to all putative class members, or at least to those, like Mr. Morris, who specifically identified his

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

first impression;

3. Third, the cost of proceeding in individual arbitration proceedings under the arbitration agreements at issue here have been found to be so high that individual arbitration would not allow the participants to "effectively vindicate their statutory rights." See Sutherland I and Sutherland II. Where arbitration must be conducted on an individual basis, but class proceedings in Court would allow those statutory rights to be vindicated.See also, Italian Colors Rest. v. Am. Express Travel Related Servs. Co. (In re Am. Express Merchs. Litig.), 667 F.3d 204 (2d Cir. 2012)("Amex III"), Nat'l Supermarkets Assoc. v. Am. Express Travel Related Servs. Co. (In re Am. Express Merchants' Litig.), 634 F.3d 187, 2011 U.S. App. LEXIS 4507 (2d Cir., 2011)("Amex II"), and In re Am. Express Merchs. Litig., 554 F.3d 300 (2d Cir. 2009)("Amex I")(collectively hereinafter the "Amex Trilogy"); Coneff v. AT&T Corp., 673 F.3d 1155, 1159 (9th Cir. Wash. 2012);

4. Fourth, Plaintiffs maintain the findings in Sutherland II could be collateral estoppel; 5. Fifth, Plaintiffs maintain the National Labor Relations Board holding in D.R. Horton, Inc. v. Cuda, NLRB Case No. 12-CA-25764, 357 NLRB No. 184, (Jan. 3, 2012) that a class/collective action waiver imposed in an agreement required as a condition of employment to be a violation of Section 7 of the National Labor Relations Act and a violation of the Norris LaGuardia Act deserves deference. Accordingly, Plaintiffs need to address those issues; and 6. Sixth, the Plaintiffs will seek to address the issue of waiver not only as a choice of law issue as touched upon in Ho v. Ernst & Young, LLP, 2011 U.S. Dist. LEXIS 106658 (N.D. Cal. Sept. 20, 2011), but also the separate issue of waiver by moving to compel arbitration only after seeking to transfer this matter from a sister court and then seeking to relate the matter to other cases.

WHEREAS, Defendants do not oppose Plaintiffs' request for additional pages, but seek an 2 equal extension for the reply in the event the Court grants Plaintiffs' request. 3

THEREFORE IT IS HEREBY STIPULATED by and between the parties hereto through their respective undersigned counsel that:

1. Plaintiffs shall have up to thirty-five (35) pages for their Memorandum of Points and Authorities In Opposition to Defendant's Motion To Dismiss, Or In the Alternative, Stay Proceedings 7 and Compel Arbitration; and 8

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 10

Defendant's Motion To Dismiss, Or In the Alternative, Stay Proceedings and Compel Arbitration. 11

Dated: January 24, 2013 _________/s Ross L. Libenson_______________ 12 Ross L. Libenson HOFFMAN LIBENSON SAUNDERS & BARBA Attorney for Plaintiffs Dated: January 24, 2013 ___________/s Gregory W. Knopp____________ 15 GREGORY W. KNOPP AKIN GUMP STRAUSS HAUER & ELD LLP Attorney for Defendant \ (This stipulation has been approved by Gregory W. Knopp) 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. 21 22

ORDER

PURSUANT TO STIPULATION IT IS SO ORDERED. 24 25

United States District Judge

20130125

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