ORDER GRANTING PLAINTIFFS' MOTION TO APPROVE CLASS NOTICE
JEFFREY T. MILLER, District Judge.
On August 28, 2013, Plaintiffs filed a motion for approval of notice to class members of class certification. Dkt. No. 129. Defendant Nordstrom, Inc. ("Nordstrom") opposed Plaintiffs' motion on September 16, 2013. Dkt. No. 135. The court held oral argument on the motion on September 30, 2013. During the hearing, the parties reached agreement on many of the issues raised in the briefing and agreed to meet and confer to resolve several of the remaining issues. However, the court took the following issues under submission: (1) the effect of the June 2011 arbitration agreement on certain class members, and (2) the proper beginning date of the class period relative to whether the Maraventano Plaintiffs may bring a claim for restitution under California's unfair competition law ("UCL"), Cal. Bus. & Prof. Code § 17200 et seq. The parties have lodged a jointly amended class notice that needs only the court's resolution of the two submitted issues in order to be finalized and approved.
The Balasanyan complaint was originally filed in Los Angeles Superior Court on April 5, 2011, then removed to federal court, and later transferred to this district on November 9, 2011. The Maraventano complaint was originally filed in San Diego Superior Court, North County, in October 20, 2010 and was removed to this court on December 28, 2010. On August 12, 2013, the court granted the Plaintiffs' motions for class certification of the proposed California classes and subclass, but denied class certification for the Balasanyan Plaintiffs' proposed nationwide class. In the class certification order, the court provided a detailed description of the facts underlying Plaintiffs' claims and the court's reasons for granting or denying class certification, all of which is incorporated by reference and will not be reiterated here. See Class Cert. Order, Dkt. No. 127.
Federal Rule of Civil Procedure 23(c)(2)(B) governs the mandatory class notice for classes certified under Rule 23(b)(3). Under this provision, "the court must direct to class members the best notice that is practicable under the circumstances." The class notice "must clearly and concisely state in plain, easily understood language: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3)." Fed.R.Civ.P. 23(c)(2)(B). As a general matter, the notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" In re CP Ships Ltd. Securities Litigation , 578 F.3d 1306, 1317 (9th Cir. 2009)(quoting Mullane v. Cent. Hanover Bank & Trust Co. , 339 U.S. 306, 314 (1950)) abrogated on other grounds by Morrison v. Nat'l Australia Bank Ltd. , 130 S.Ct. 2869 (2010)).
I. Impact of the June 2011 Arbitration Agreement on Certain Employees
In the court's class certification order, the court concluded new employees who signed Nordstrom's June 2011 binding Dispute Resolution Agreement ("DRA") upon becoming employed by Nordstrom may be properly excluded from the class. Class Cert. Order at 48 (Dkt. No. 127). However, the court determined that prospective California Class Members who were employed prior to Nordstrom's use of the DRA may not be excluded from the class, nor may the California Class Period be modified to reflect the signing of the DRA, which was an improper communication by Nordstrom with class members. Id.
In its objection to Plaintiffs' proposed class notice, Nordstrom raises the issue of whether draw commission salespeople who worked for Nordstrom prior to June 2011, left Nordstrom's employ, and then were rehired in a draw commission role pursuant to the June 2011 DRA are excluded from the class. Nordstrom argues these employees should not be included in the putative class because they sought reemployment with Nordstrom pursuant to the DRA, a binding agreement to arbitrate all past, present, and future claims. Alternatively, Nordstrom argues the notice should clarify that these employees may not litigate claims accruing after they were rehired subject to the DRA.
In response, Plaintiffs contend employees working as draw commission salespeople prior to the DRA cannot be excluded from the class and relies upon the following language from the court's class certification order: "Prospective California Class Members who were employed prior to Nordstrom's use of the DRA may not be excluded from the class nor may the California Class Period be modified to reflect the signing of the DRA, which was an improper communication." Class Cert. Order at 48. Based on this language, Plaintiffs argue Class Members who were employed as draw commission salespeople prior to Nordstrom's use of the DRA, departed, then returned following the imposition of the DRA, are rightfully included in the Class.
The court is not persuaded by Nordstrom's argument that draw commission salespeople who left the company and were rehired subject to the DRA should be excluded entirely as class members. There is no reasonable basis for excluding the periods of employment prior to the DRA. With regard to the period of employment as a draw commission salesperson after being rehired subject to the DRA, the court concludes the best resolution at this early stage in the litigation is to simply include the following language within the class notice:
In addition, for employees who worked in a draw commission position before June of 2011, separated, and were rehired after June of 2011, the period worked after June of 2011 may be excluded from the class.
This language provides sufficient notice to this particular group of Class Members that claims for time accrued after their rehiring may be excluded, but it does not preclude the possibility of recovery entirely as there may be ...