United States District Court, N.D. California
ORDER RE: 1) MOTION FOR CLASS CERTIFICATION; 2)
MOTION TO DECERTIFY THE FAIR LABOR STANDARDS ACT COLLECTIVE
ACTION; AND 3) MOTION TO EXCLUDE PLAINTIFFS’ EXPERT
DECLARATION AND TESTIMONY RE: DOCKET NOS. 495, 496,
C. SPERO, Chief Magistrate Judge
putative class action, Plaintiffs are minor league baseball
players who assert claims under the Fair Labor Standards Act
("FLSA"), 29 U.S.C. §§ 201 et
seq., and the wage and hour laws of various states,
against Major League Baseball ("MLB"), Commissioner
of Baseball Bud Selig, and many of the franchises that are
MLB members. Presently before the Court are the following
motions: 1) Plaintiffs' Motion for Class Certification
("Rule 23 Motion"); 2) Defendants' Motion to
Decertify the Fair Labor Standards Act Collective
("Motion to Decertify"); and 3) Motion to Exclude
Plaintiffs' Expert Declarations and Testimony of J.
Michael Dennis, Ph.D and Brian Kriegler, Ph.D Filed in
Support of Plaintiffs' Motion for Class Certification
("Motion to Exclude"). The Court held a hearing on
the Motions on July 8, 2016 at 9:30 a.m. For the reasons
stated below, the Court DENIES the Rule 23 Motion, GRANTS the
FLSA Decertification Motion, and GRANTS in part and DENIES in
part the Motion to Exclude.
February 7, 2014, Aaron Senne, Michael Liberto, and Oliver
Odle filed the initial complaint in this action against MLB,
Commissioner Selig and three MLB franchises. See
Docket No. 1. Subsequently, they amended their complaint to
name all 30 MLB franchises as Defendants. Docket Nos. 19, 57.
Additional Plaintiffs also joined the action. Id. On
October 10, 2014, the Court consolidated Case No. C-14-3289
with this action and appointed Korein Tillery, LLC and
Pearson, Simon & Warshaw, LLP as Interim Co-Lead Counsel
over the actions. Docket No. 236.
20, 2015, Plaintiffs filed the Second Consolidated Amended
Complaint for Violations of Federal and State Wage and Hours
Laws ("SCAC"), which is the operative complaint in
this action. See Docket No. 382. On the same date,
the undersigned ruled on challenges to personal jurisdiction
by eleven MLB Clubs ("the Personal Jurisdiction
Defendants"). See Order re Motions to Dismiss
and Motions to Transfer, Docket No. 379 ("Personal
Jurisdiction Order"). The Court found that the
activities of three of the Clubs - the New York Yankees, the
Pittsburgh Pirates and the Detroit Tigers - were sufficient
to establish the existence of personal jurisdiction over them
in California and dismissed the remaining eight Personal
Jurisdiction Defendants for lack of personal jurisdiction. In
particular, the Court dismissed the following Clubs for lack
of jurisdiction: 1) the Atlanta Braves; 2) the Chicago White
Sox; 3) the Tampa Bay Rays; 4) the Washington Nationals; 5)
the Philadelphia Phillies; 6) the Boston Red Sox; 7) the
Baltimore Orioles; and 8) the Cleveland
Court conditionally certified Plaintiffs' proposed
collective under the FLSA on October 20, 2015, defining the
collective as follows:
All minor league baseball players employed by MLB or any MLB
franchise under the Minor League Uniform Player Contract who
worked or work as minor league players at any time since
February 7, 2011, but who had no service time in the major
leagues at the time of performing work as a minor leaguer.
Docket No. 446. Subsequently, notice was sent to the minor
league players allowing them to opt in to the collective by
February 11, 2016. According to Plaintiffs, over 2, 200 minor
leaguers opted into the FLSA collective by the deadline.
See Docket No. 500 (Simon Decl.) ¶ 12.
now ask the Court to certify their state law wage and hour
claims under Rule 23 of the Federal Rules of Civil Procedure.
In particular, they seek to certify classes under the laws of
Arizona, California, Florida, North Carolina, New York,
Pennsylvania, Maryland and Oregon of all persons who under a
Minor League Uniform Player Contract, work or worked for MLB
or any MLB franchise as a minor league baseball player within
the relevant state at any time during the statutory period
for each state. Rule 23 Class Certification Motion at i.
in turn, ask the Court to decertify the FLSA collective on
the grounds that the Plaintiffs are not similarly situated
and the defenses Defendants plan to assert will require too
many individualized inquiries to allow for class treatment of
Plaintiffs' claims. Defendants also ask the Court to
exclude the expert declarations and testimony of Drs. J.
Michael Dennis and Brian Kriegler under Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993) and Rule 702 of the Federal Rules of Evidence.
The Rule 23 Motion
Proposed Class Definitions and Representatives
ask the Court to certify eight classes (collectively,
"the State Classes") to pursue claims under the
laws of California, Florida, Arizona, North Carolina, New
York, Pennsylvania, Maryland and Oregon. Notice of Motion and
Motion at i. Plaintiffs propose that each class consist of:
All persons who under a Minor League Uniform Player Contract,
work or worked for MLB or any MLB franchise as a minor league
baseball player within the relevant state at any time [during
the statutory period for each state]. Excluded from the class
are those players who had service time on a major league
player contract at the time of performing work as a minor
Id. Plaintiffs also propose a waiting time
subclass for the California class defined as follows:
The California Class shall include a waiting time subclass
for alleged penalties under California Labor Code § 203
for the withholding of wages after employment ceases. It will
consist of the class representatives and members of the
California Class whose employment relationship with a
Defendant has ceased or will cease since February 7, 2010.
Proposed Order at 1.
propose that the following named Plaintiffs be appointed as
• California Class: Aaron Meade, Oliver Odle,
Kyle Woodruff, Kyle Nicholson, Brandon Henderson, Craig
Bennigson, Ryan Kiel, Jake Kahaulelio, Justin Murray, Dustin
Pease, Mitch Hilligoss, Joseph Newby, Joel Weeks, Matt Daly,
Kris Watts, Nick Giarraputo, David Quinowski, Brandon
Pinckney, Lauren Gagnier, and Grant Duff
• Florida Class: Ryan Khoury, Brandon
Henderson, Ryan Kiel, Jake Kahaulelio, Jon Gaston, Tim
Pahuta, Matt Daly, Aaron Senne, Brad Stone, Mitch Hilligoss,
Jake Opitz, Ryan Hutson, Les Smith, Matt Frevert, Roberto
Ortiz, Brett Newsome, Kris Watts, Nick Giarraputo, David
Quinowski, Brandon Pinckney, Lauren Gagnier, Jeff Nadeau,
Grant Duff, and Aaron Dott.
• Arizona Class: Aaron Meade, Jon Gaston,
Oliver Odle, Kyle Woodruff, Craig Bennigson, Matt Lawson,
Ryan Kiel, Justin Murray, Dustin Pease, Michael Liberto, Jake
Opitz, Joseph Newby, Mitch Hilligoss, Kris Watts, Roberto
Ortiz, Daniel Britt, Joel Weeks, Gaspar Santiago, David
Quinowski, and Nick Giarraputo.
• North Carolina Class: Craig Bennigson and
• New York Class: Ryan Khoury, Jon Gaston, Matt
Daly, Aaron Senne, Kris Watts, Nick Giarraputo, and Aaron
• Pennsylvania Class: Tim Pahuta, Kris Watts,
and Lauren Gagnier.
• Maryland Class: Roberto Ortiz and Brett
• Oregon Class: Joel Weeks, Gaspar Santiago,
and David Quinowski.
Proposed Order at 2-3.
to Plaintiffs, they will be able to prove both liability and
damages on a classwide basis because MLB and its franchises
have implemented uniform contracts, policies and Major League
rules "to ensure similar conditions of employment"
and the legal issues in the case can be "distilled to a
few common issues." Rule 23 Motion at 2, 11. In support
of Plaintiffs' contention that they are subject to
uniform contracts, policies and rules, they point to the
• Recruiting, Drafting and Hiring Under the
Major League Rules (“MLRs”): According
to Plaintiffs, the MLRs "govern the recruitment,
drafting, hiring, pay, and employment of minor leaguers and
the structure of the entire minor league system." Motion
at 2. Plaintiffs cite to MLR 4, entitled "First Year
Player Draft, " which "governs the process that MLB
franchises must follow when hiring amateur players as minor
leaguers." Id. at 3 (citing Declaration of
Garrett R. Broshuis in Support of Plaintiffs' Motion for
Class Certification ("Broshuis Rule 23 Motion
Decl."), Ex. B (MLRs)). They also point to MLR 3(b)(2),
which requires that all minor leaguers sign a Uniform Player
Contract ("UPC") in order to "preserve morale
among Minor League Players and produce the similarity of
conditions necessary for keen competition." Id.
The form UPC is attached to the MLRs as Attachment 3;
Plaintiffs note that under MLR 3 the "MLB franchises
cannot deviate from the form UPC" and contend that the
evidence shows that the franchises do, in fact, use this form
UPC when employing minor leaguers. Id. at 3 (citing
Broshuis Rule 23 Motion Decl., Ex. B (MLRs) and D (sample
UPCs for all of the MLB franchises)). Plaintiffs note that
under MLR 3(b)(2), the initial term of the UPC for all minor
leaguers is seven championship seasons and that a minor
leaguer cannot work for another franchise until that term
expires or he is released or traded. Id. (citing
Broshuis Rule 23 Motion Decl., Ex. B (MLRs)). Plaintiffs also
point to MLR 56(g), providing that the "MLB franchises -
not the minor league affiliates - determine where to assign
the players to work and select the coaches and managers that
oversee the players." Id. Finally, Plaintiffs
cite to MLR 57, which "establishes rules governing the
minor league playing schedule and for minor league travel
during the championship season." Id.
• Pay Practices under the MLRs and UPC:
Plaintiffs contend MLB and the franchises follow uniform pay
practices as to all minor leaguers pursuant to the MLRs and
UPC. Rule 23 Motion at 3-5. In particular, under a provision
of the UPC (MLR Attachment 3) entitled "Payment, "
minor leaguers receive salary payments only during the
"actual championship playing season" but their
"duties and obligations under [the UPC] continue in full
force and effect throughout the calendar year." Broshuis
Rule 23 Motion Decl., Ex. B (MLRs), Attachment 3 ¶ VIIB.
Paragraph VIIB of the UPC also provides that minor leaguers
are to be paid in "two (2) semi-monthly installments on
the 15th day and last day of the month after the beginning of
the Club‘s championship playing season or such later
date as Player reports for championship season play."
Id. Plaintiffs also point to MLR 3(c)(2), providing
that all first year minor leaguers earn the same wage rate.
Broshuis Rule 23 Motion Decl., Ex. B (MLRs), MLR 3(c)(2)(B)
("The salary in each Minor League Uniform Player
Contract between an independent Minor League Club and a
first-year player shall be the amount established by the
Minor League Association for each Minor League Classification
Plaintiffs also contend the evidence in this case shows that
the policies set forth in the MLRs and UPC are uniformly
implemented. Rule 23 Motion at 4. In particular, they offer
documents and deposition testimony indicating that the
initial salary rate for all minor league players is $1, 100
per month and that MLB franchises use "non-negotiable
salary scales that establish the monthly wages for subsequent
years under the initial UPC." Id. at 4-5
(citing Broshuis Rule 23 Motion Decl., Ex. F). Further, all
minor leaguers sign an Addendum C to the UPC setting out
their pay rate prior to spring training, Plaintiffs contend.
Id. at 5 (citing Broshuis Rule 23 Motion Decl., Ex.
G (sample Addendum Cs for the MLB franchises). Plaintiffs
also submit declarations by the named Plaintiffs stating that
they were paid only during the championship season and were
not paid during spring training, instructional leagues,
winter workouts or for other mandatory work performed outside
of the championship season. Id. (citing Plaintiff
Declarations). They note that the UPC does not permit
overtime pay and also offer interrogatory responses by MLB
and its franchises that minor leaguers are never paid
overtime. Id. at 5 (citing Broshuis Rule 23 Motion
Decl., Ex. H (Defendants' answers to requests for
admissions admitting that they do not provide overtime pay)).
• Conditions of Work: Plaintiffs
contend minor leaguers follow a "well-established"
annual calendar with respect to player development, attending
spring training from early March to early April, playing in
the championship season from April until September,
participating in instructional leagues from mid-September to
mid-October and performing training and work-outs during the
off-season. Rule 23 Motion at 5 (citing Broshuis Rule 23
Motion Decl., Exs. I (sample spring training schedules), J
(testimony regarding in-season schedules and routines), K
(sample instructional league schedules) and U (sample
off-season training programs)). According to Plaintiffs, the
similarities in work conditions extend "both vertically
and horizontally, " that is, the work routine is similar
at all levels of the minor league organizational structure
and across all franchises. Id. at 6. They offer the
following evidence of similar work conditions as to spring
training, extended spring training, the championship season,
instructional leagues and winter training:
Spring Training: Plaintiffs offer sample schedules
to show that all MLB franchises have spring training in
either Florida or Arizona, typically beginning in early March
and ending in early April, just before the championship
season. Id. at 6 (citing Broshuis Rule 23 Motion
Decl., Ex. I (sample spring training schedules)). They also
cite player declarations and deposition testimony of
Defendants' witnesses addressing spring training routines
in support of the assertion that "[m]inor league players
usually work seven days per week during spring
training." Id. (citing Plaintiff Declarations;
Broshuis Rule 23 Motion Decl., Exs. I (sample spring training
schedules) & O (deposition testimony of Defendants'
witnesses)). Plaintiffs further point to this evidence in
support of the contention that during spring training, all
minor leaguers go to the sports complexes to perform required
baseball-related work routines that includes stretching,
throwing, running, hitting and fielding. Id. at 6-7.
Plaintiffs contend that while the "practice drills may
change from day to day, the work routines are standardized
and remain similar from team to team. Id. (citing
Plaintiff Declarations; Broshuis Rule 23 Motion Decl., Exs. I
(sample spring training schedules) & O (deposition
testimony of Defendants' witnesses)). Plaintiffs assert
the evidence shows that work days become longer for all minor
leaguers once spring training games commence, with minor
leaguers arriving earlier in the morning to complete their
work-out routine before the 1 pm game, which typically lasts
three hours. Id. According to Plaintiffs, throughout
spring training all minor leaguers also participate in
strength and conditioning workouts that are scheduled by a
strength and conditioning coordinator. Id. All of
this evidence shows that minor leaguers work long hours for
no pay during spring training, Plaintiffs assert.
This conclusion finds further support, according to
Plaintiffs, in a pilot survey conducted by their expert, J.
Michael Dennis, to assess minor leaguers' work patterns.
Id. (citing Declaration of J. Michael Dennis, Ph.D
in Support of Plaintiffs' Motion for Class Certification
("Dennis Decl."), Ex. E (pilot survey results). Dr.
Dennis found that "out of the 195 minor leaguers
surveyed, nearly 85% stated that they were expected to work
more than 40 hours per week during spring training, and over
30% stated that they were expected to work more than 55 hours
per week." Id. (citing Dennis Decl., Ex. E).
Extended spring training: Plaintiffs point to
deposition testimony of a minor league player for the Los
Angeles Angels, Bobby Scales, who testified that extended
spring training is simply "an extension of spring
training for those players who do not make full-season
affiliates." Id. at 7-8 (citing Broshuis Rule
23 Motion Decl., Ex. P (Scales Dep.) at 34). According to
Plaintiffs, the evidence shows that extended spring training
lasts from early April until June and that the work performed
during extended spring training is similar to the work
performed during spring training. Id. (citing
Broshuis Rule 23 Motion Decl., Ex. Q (compilation of
schedules and testimony relating to extended spring
The championship season: Plaintiffs also present
evidence they contend shows that minor leaguers perform
similar work during the championship season and that they
work "exhaustive workweeks" without overtime pay.
Id. at 8-10. They contend the work includes games
seven days per week with only "a couple off days
scheduled each month." Id. at 8 (citing
Declaration of Brian Kriegler, Ph.D. in Support of
Plaintiffs' Motion for Class Certification
("Kriegler Rule 23 Decl.") ¶ 17).
Plaintiffs' expert, Brian Kriegler, notes that there are
organizational schedules available that show the actual game
locations and times for each championship game for all levels
from Rookie level to the major league club. Kriegler Rule 23
Decl. ¶ 22.
Plaintiffs point to evidence that most games start at 7 pm
and last two and a half to three hours (again, the actual
times of all games are available, Plaintiffs contend). Rule
23 Motion at 9 (citing Kriegler Rule 23 Decl. ¶ 18;
Broshuis Rule 23 Decl., Ex. J (deposition excerpts describing
in-season routines)). They assert the players arrive at the
stadium hours before the game, citing Dr. Dennis‘s
survey (discussed above) reflecting that 90% of minor
leaguers arrive at the stadium by 2 pm for an evening game.
Id. (citing Plaintiff Declarations; Dennis Decl.,
Ex. E). They describe a regular routine that includes
pre-game warm-ups, stretches, drills and batting practice,
pre-and post-game meetings, weight lifting and training room
activities, and travel on a team bus for away games.
Id. at 8-10 (citing Broshuis Rule 23 Motion Decl.,
Exs. J (deposition excerpts describing in-season routines), R
(sample in-season schedules and itineraries), & S
(evidence addressing travel requirements)). Plaintiffs also
contend the travel time for minor leaguers to away games is
"extensive, " citing their expert, Dr. Kriegler.
Id. at 10. Plaintiffs state that Dr. Kriegler has
"developed a methodology for calculating the travel time
for each minor league road trip." Id. (citing
Kriegler Rule 23 Decl. ¶¶ 19-20).
Instructional Leagues: Plaintiffs offer evidence
that many players also participate in instructional leagues
in the fall, from mid-September to mid-October, held at the
MLB complexes in Florida and Arizona. Id. at 10
(citing Broshuis Rule 23 Motion Decl., Ex. K (compilation of
game schedules, daily schedules and testimony relating to
instructional leagues)). According to Plaintiffs, the
evidence shows that the work performed at the instructional
leagues is similar to spring training, with players engaging
in meetings, stretching, drills, batting practice and games
(including travel to away games), and that players usually
perform work six days a week during instructional leagues.
Id. Plaintiffs note that like spring training, minor
leaguers are not paid any wages for their participation in
the instructional leagues. Id.
Winter Training: Finally, Plaintiffs contend the
evidence shows that players perform similar off-season
conditioning work in the winter, using strength and
conditioning manuals developed by the MLB franchises'
strength and conditioning coordinators. Id. at 10-11
(citing Broshuis Rule 23 Motion Decl., Exs. U (examples of
strength and conditioning manuals) &V (testimony
describing strength and conditioning)). Plaintiffs cite
evidence that the franchises follow up with the players,
requiring them to maintain logs reflecting their strength and
conditioning work and keeping track of their progress.
Id. at 11 (citing Plaintiff Declarations; Broshuis
Rule 23 Motion Decl., Exs. U & V)). Plaintiffs also
assert that the players perform other "baseball-related
work" during the winter training period, including
throwing, hitting and fielding. Id.
Plaintiffs' Proposed Trial Plan
assert that in light of Defendants' uniform policies and
practices and the common conditions of work for minor league
players, their claims can be tried in a single trial.
Id. at 11. First, they contend their claims can be
"distilled" to three main issues: 1) whether they
should be paid for work performed outside of the championship
season; 2) whether they are entitled to overtime pay; and 3)
whether they are entitled to requisite minimum wages during
the championship season. Id. A preliminary inquiry
as to all of these issues is whether MLB and the franchises
"employ" the minor league players, Plaintiffs
assert. Id. Plaintiffs contend they will be able to
address this question on a classwide basis using the
testimony of the named Plaintiffs and employees of MLB and
the franchises, documentary evidence from MLB and the
franchises such as policies, payroll information and
schedules, and expert testimony. Id. at 12.
explain that they intend to rely on two experts at trial, Dr.
Kriegler and Dr. Dennis. Dr. Kriegler, a statistician, will
offer a damages model that includes "a comprehensive
estimate of hours worked for each minor leaguer for each work
week." Id. (citing Kriegler Rule 23 Decl.
¶¶ 17-19). According to Plaintiffs, Dr.
Kriegler‘s estimate is based on reasonable estimates of
travel time for "every in-season minor league trip since
2008, " and calculations relating to the duration of
each game, supplemented by representative evidence obtained
by Dr. Dennis of hours worked in spring training, the
championship season and the off-season. Id. Dr.
Dennis has already performed a pilot survey based on the
responses of 195 minor leaguers who "spanned all MLB
franchises." Id. Dr. Dennis opines that
"[t]he pilot survey proves that a reliable statistical
survey addressing the issues in this litigation is
feasible." Id. (quoting Dennis Decl. ¶
44). Dr. Kriegler opines that the pilot survey shows that the
future information obtained by Dr. Dennis can be
"readily incorporated" into his damages model.
Id. at 13 (citing Kriegler Rule 23 Decl. ¶ 32).
Plaintiffs contend the methodology of their experts is
consistent with the statistical methods that have been
approved in other wage and hour class actions and will
"ensure sufficient due process while simultaneously
allowing claims to be prosecuted in an efficient and
representative manner." Id. at 14. They believe
that bifurcation of the trial will not be necessary because
liability and damages can be proved simultaneously through
common evidence. Id.
Application of Rule 23 Requirements
to the Rule 23 inquiry, Plaintiffs contend the proposed
classes should be certified because they satisfy the four
requirements of Rule 23(a) (numerosity, commonality,
typicality and adequacy of representation), as well as the
requirements of both Rule 23(b)(2) (where the party opposing
the class has acted or refused to act on grounds that apply
generally to the class) and 23(b)(3) (where common issues
predominate and the class mechanism is superior to individual
actions). Id. at 15.
numerosity requirement is satisfied, Plaintiffs contend,
because for each of the State Classes there are multiple
minor league teams (ten in California, thirty in Florida,
thirteen in Arizona, nine in North Carolina, eleven in New
York, eight in Pennsylvania, five in Maryland and two in
Oregon), each of which has an active roster that is permitted
to have between twenty-five and thirty-five minor league
players on it. Id. at 16 (citing Declaration of
Peter Woodfork in Support of Defendants' Motion to
Transfer Action to the Middle District of Florida [Docket No.
118-1] ("Woodfork Decl."), Ex. A). The number of
class members is therefore large enough that "joinder of
all members is impracticable." Id. (citing
Fed.R.Civ.P. 23(a)). Plaintiffs further contend the classes
are ascertainable because the class definition is clear and
objective. Id. (citing Mullins v. Direct
Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015);
Ries v. Ariz. Beverages USA LLC, 287 F.R.D. 523, 535
(N.D. Cal. 2012)).
contend their claims meet the typicality requirement as well,
noting the permissive nature of this requirement, which
requires only that the claims of the named plaintiffs be
"reasonably coextensive" with the claims of the
absent class members rather than "substantially
identical." Id. (quoting Parsons v.
Ryan, 754 F.3d 657, 685 (9th Cir. 2014)). According to
Plaintiffs, the typicality requirement is met here because
the named Plaintiffs, like the absent class members, were
subject to the same MLB policies governing how they entered
the minor league system, the conditions of their employment
and the payment of their salaries. Id. at 17.
Consequently, Plaintiffs assert, the representative
plaintiffs and class members suffered similar injuries
arising out of Defendants' failure to pay them for work
outside of the championship season and failure to pay
overtime, giving rise to substantially identical claims.
Id. Plaintiffs seek appointment of thirty-six of the
named Plaintiffs as class representatives; they do not seek
appointment of Plaintiffs Matt Gorgen and Matt Lewis, who
were dismissed from the action in a separate Order.
See Docket No. 682. Plaintiffs state that they
intend to ask the Court for leave to amend their complaint to
add Aaron Dott as a class representative for the Florida and
New York classes. Rule 23 Motion at 17 n. 75. Plaintiffs
contend the "broad composition of the 36 class
representatives, who represent every MLB franchise and every
level of minor league baseball, vitiates any potential
concerns regarding purported differences among class
members." Id. (citing Hanlon v. Chrysler
Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)).
contend the adequacy requirement is met because there are no
conflicts of interest between the class representatives and
the absent class members and because class counsel is
qualified and capable and will vigorously prosecute the
class‘s interests. Id. at 17-18 (citing
Hanlon, 150 F.3d at 1020; Evon v. Law Offices of
Sidney Mickell, 688 F.3d 1015, 1031 (9th Cir. 2012)).
also argue that the class members' claims satisfy the
commonality requirement of Rule 23(a)(2) and the more
stringent predominance requirement of Rule 23(b)(3).
Id. at 18-37. Commonality, according to Plaintiffs,
is satisfied when an issue "is susceptible to
generalized, classwide proof" or "if the same
evidence will suffice for each member to make a prima facie
showing of that issue." Id. at 19 (quoting
Kristensen v. Credit Payment Servs., 12 F.Supp.3d
1292, 1306 (D. Nev. 2014) (citing Newberg on Class
Actions § 4:50 (5th ed.)). On the other hand, an
individualized issue is one where "members of a proposed
class will need to present evidence that varies from member
to member." Id. (quoting Kristensen,
12 F.Supp.3d at 1306). Plaintiffs assert that so long as
class members suffer the same type of injury,
commonality is satisfied even if the magnitude of the injury
varies. Id. (citing Jimenez v. Allstate Ins.
Co., 765 F.3d 1161, 1167 (9th Cir. 2014)). To
demonstrate predominance, they contend, a further showing is
necessary demonstrating that the "proposed class is
'sufficiently cohesive to warrant adjudication by
representation.‘" Id. (quoting
Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952,
964 (9th Cir. 2013) (quoting Wang v. China Daily News,
Inc., 737 F.3d 538, 545 (9th Cir. 2013)). This analysis
focuses on the relationship between the common issues and the
individual issues, according to Plaintiffs, and is a
"qualitative" analysis based on efficiency and
economy of litigation. Id. at 20 (citing Butler
v. Sears, Roebuck & Co., 727 F.3d 796, 800 (7th Cir.
2013); Abdullah, 731 F.3d at 963-64; Gunnells v.
Healthplan Servs., Inc., 348 F.3d 417, 429 (4th Cir.
2003)). Further, the focus of the inquiry is on liability,
not damages, Plaintiffs contend. Id. (citing
Gunnells, 348 F.3d at 429; Jimenez, 765
F.3d at 1167).
wage and hour context, an employer‘s policies will
often drive the resolution of the plaintiffs' claims such
that the commonality and predominance requirements are met,
Plaintiffs assert, even where the employer seeks to assert a
defense based on the (varying) job duties of the class
members. Id. at 20-21 (citing Abdullah, 731
F.3d at 963). That is true here, they argue, because
"the key questions at issue . . . will be resolved by
examining common policies, meaning that the claims 'will
prevail or fall in unison.‘" Id. at 21
(quoting Amgen, Inc. v. Conn. Ret. Plans & Tr.
Funds, 133 S.Ct. 1184, 1191 (2013)). In particular,
Plaintiffs contend they assert "three overarching claims
against Defendants: 1) the failure to pay wages for work
performed outside the championship season; 2) the failure to
pay overtime wages; and 3) the failure to pay the minimum
wage when wages are actually paid." Id. These
three claims will be resolved on a classwide basis, they
contend, "as will the overarching element of liability:
whether an employment relationship exists." Id.
at 22. They point to the following issues they contend
present common, predominating questions:
• The employment relationship: Plaintiffs
assert there are two common questions relating to the
employment relationship that are implicated by their claims:
1) whether the minor leaguers are employed by the MLB
franchises; and 2) whether MLB and the franchises
jointly employ the minor leaguers. Id. With
respect to the first question, Plaintiffs argue that the
standards used by all of the relevant states are similar and
draw upon the FLSA, requiring the court to look at the
"circumstances of the whole activity, " focusing on
the economic reality of the situation. Id. at 23
(citing Rutherford Food Corp. v.
McComb, 331 U.S. 722, 730 (1947); Goldberg v.
Whitaker House Coop., Inc., 366 U.S. 28, 33 (1961)).
Given that the circumstances of employment of the class
members are largely dictated by the UPC and the MLRs, as well
as other rules and policies promulgated by MLB relating to
the minor leaguers, this issue can be addressed on a
classwide basis, according to Plaintiffs. Plaintiffs note
that Defendants are likely to assert that this issue involves
individualized inquiries because it is governed by the
"primary beneficiary test" articulated in
Walling v. Portland Terminal, 330 U.S. 148 (1947)
but that that test does not apply here because in this case
"there is a traditional employment relationship with an
employment agreement calling for compensation."
Id. at 23 n. 84 (citing Alamo
Found v. Sec’y of Labor, 471 U.S. 290, 301
(1985)). Plaintiffs also assert that the joint employment
inquiry will turn on common issues as all of the states apply
a multifactor test which looks to similar factors, such as
the power to hire and fire workers, supervision and control
of work schedules and conditions of employment, control over
the rate and method of employment and maintenance of
employment records. Id. at 24 (citing Bonnette
v. Cal Health & Welfare Agency, 704 F.2d 1465, 1470
(9th Cir. 1983); Martinez v. Combs, 49
Cal.4th 35, 59 (2010), as modified (June 9, 2010);
Torres v. Air to Ground Servs., Inc., 300 F.R.D.
386, 395 (CD. Cal. 2014)). Again, these factors will center
on the same evidence for all minor leaguers, Plaintiffs
contend, because of MLB‘s uniform practices, discussed
• Unpaid work performed outside the championship
season: Plaintiffs contend their claim for unpaid work
outside the championship season turns on common issues
because all of the states at issue require employers to pay a
minimum wage for all hours worked, whereas under the
Defendants' uniform policy the minor league players are
required to perform extensive work outside of the
championship season, including spring training, instructional
leagues and off-season training, without compensation.
Id. at 25. The claim is comparable to an
off-the-clock claim, Plaintiffs contend, and therefore they
will need to prove three elements: 1) the employee performed
work for which he did not receive compensation; 2) the
defendants knew or should have known plaintiff performed the
work; and 3) the defendant "stood idly by."
Id. (citing Jimenez, 765 F.3d at 1165).
According to Plaintiffs, "the core facts governing this
analysis will be the same for all class members."
Id. As to spring training, Plaintiffs note that this
work occurred only in Florida and Arizona and therefore the
common question for all minor leaguers will be whether the
work is compensable under Florida and Arizona law.
Id. at 26. As to off-season training, Plaintiffs
contend that this analysis also can be performed on a
classwide basis because all of the relevant states' laws
provide that work performed remotely is compensable if the
employer "knows or has reason to believe that the work
is being performed." Id. (quoting 29 C.F.R.
§ 785.11). Plaintiffs note that the laws of the states
at issue do "not distinguish between work performed at
the job site versus work performed away from the job
site." Id. n. 92. The common and predominating
question, then, will be whether the minor leaguers'
activities outside of the championship season are compensable
work, according to Plaintiffs.
• Failure to pay overtime wages: Plaintiffs
assert that they are entitled to overtime wages under the
laws of all of the relevant states except Arizona and Florida
and that this claim will be based on Defendants' uniform
policy of never paying overtime, combined with the
"extensive evidence - in the form of documents,
declarations, depositions and expert analyses -
demonstrat[ing] that minor leaguers routinely work more than
40 hours per week, especially during the [championship]
season." Id. at 27. Plaintiffs also contend
MLB‘s "failure to keep time records for work
performed cannot defeat commonality and predominance" in
light of the rule of Anderson v. Mt. Clemens Pottery
Co., 328 U.S. 680, 687 (1946), that estimates and
representative evidence may be used where an employer has not
kept adequate records of hours worked. Plaintiffs assert that
they will be able to provide such evidence, citing the
methodology developed by their expert, Dr. Kriegler, who they
say has "devised a reliable, common method for
estimating each class member‘s hours worked for each
pay period." Id. at 28. In particular, using
the databases he has developed of actual game times during
the championship season and travel time for each road trip
taken, in combination with estimates of hours worked for each
minor leaguer developed on the basis of surveys, schedules
and roster moves, Dr. Kriegler will be able to
"determine whether an overtime violation occurred for
each class member for each class period, " Plaintiffs
• Other issues that present common questions:
In addition to the "core questions" discussed
above, Plaintiffs contend their claims raise other common
issues including whether travel time on the team bus is
compensable, whether the "creative professionals"
and "amusement exemptions" that exist in most of
the relevant states apply, whether certain states'
itemized wage statement rules have been violated and whether
those who have performed work in California are entitled to
waiting time penalties. Id. at 28-32.
also address each of the relevant states' laws to show
that common issues predominate for all of the proposed
classes. Id. at 32-37. With respect to the Arizona
Class, Plaintiffs contend Arizona is the site of work by
minor leaguers throughout the year and that Defendants do not
assert any affirmative defenses. Id. at 33. Arizona
also does not have an overtime law, according to Plaintiffs.
Id. Consequently, Plaintiffs assert, the analysis
will come down to the "core classwide issues discussed
above, " namely, must minor leaguers be paid for work
performed outside the championship season, is travel time
compensable, and must minor leaguers be paid minimum wages
during the championship season. Id. According to
Plaintiffs, the first question is "binary" and will
turn on whether the Defendants "employ" the minor
leaguers (a question that will be resolved on the basis of
MLB‘s uniform policies and contracts) and whether the
activities of the minor leaguers outside of the championship
season constitutes "work" (which will be based on
the similar activities of the minor leaguers). Thus, this
issue can be resolved on a classwide basis, Plaintiffs
contend. Id. Plaintiffs assert that the second
question is also binary; that is, travel time is either
compensable or it is not. Id. As to this question
too, the common MLB policies requiring minor leaguers to
travel with their teammates will be the focus of the
analysis, according to Plaintiffs. Id. at 33-34.
Finally, Plaintiffs assert that the third question - whether
the wage rate of the minor leaguers working in Arizona fell
below the minimum wage - is capable of classwide resolution.
Id. at 34. In particular, Plaintiffs point to the
methodology developed by Dr. Kriegler, using the estimates of
Dr. Dennis, for determining which minor leaguers' wages
fell below the minimum during the championship season.
also assert that common issues predominate as to the
California and Oregon classes. Id. at 35. As to
these states, they contend, there will be the same common
issues as for the Arizona Class, namely, compensability of
work performed outside of the championship season,
compensability of travel time, and whether wages fall below
the minimum. Id. In addition, Plaintiffs argue,
there will be common issues that flow from the creative
professionals exemption, which, in contrast to Arizona,
applies in California and Oregon (though the amusement
exemption does not). Id. The creative professionals
exemption has a "duties" component and a salary
component, Plaintiffs contend. Id. The duties
component will turn on whether the similar activities of
minor leaguers - "throwing, running, fielding, and other
physical activities - qualify as the type of work envisioned
in the exemption." Id. Plaintiffs contend the
duties component will not require an individualized
inquiry as to the specific duties of each class member.
Id. The salaries component will also turn on a
common issue according to Plaintiffs, namely, whether the
payments made to the minor leaguers can be considered a
salary (which is characterized by payments of the same amount
for all months in which any work was performed). Id.
The common evidence cited by Plaintiffs to show that the
minor leaguers are not paid a "salary" is the
evidence that they are paid only during the championship
season and not during other months, even though they are
required to perform work throughout the year. Id.
and Oregon also have overtime laws and the claims the
California and Oregon Classes assert under these laws also
turn on a "significant common issue that furthers the
predominance of common issues over individual ones, "
according to Plaintiffs. Id. In particular, all of
the class members will rely on Defendants' policy of
never paying overtime, no matter how many hours the minor
leaguers work. Id. at 36. They will also rely on the
survey data and the reasonable estimates of their experts
showing that they routinely work more than 40 hours in a
week. Id. Finally, Dr. Kriegler will use payroll
data to calculate each class member‘s overtime rate and
overtime damages. Id. Thus, Plaintiffs' contend,
common questions predominate over any individualized
inquiries as to the California and Oregon Classes.
Plaintiffs argue that common issues predominate as to the
claims of the classes proposed for the remaining states (New
York, North Carolina, Florida, Maryland and Pennsylvania).
These states recognize both the creative professionals and
the amusement exemptions. In addition, all of these states
except Florida have overtime laws. Thus, the same common
issues that predominate as to the California and Oregon
Classes also will predominate here, Plaintiffs contend.
Id. at 36. In addition, the applicability of the
amusement exemption will turn on common issues, Plaintiffs
assert. Id. First, the Court will have to identify
the appropriate "establishment, " which will affect
all class members, Plaintiffs assert. Id. Next, the
Court will have to determine whether each such establish is
an "amusement" establishment for the purposes of
the exemption. Id. This latter determination will
"affect large numbers of minor leaguers" and
therefore also involves common issues, Plaintiffs assert.
argue that the superiority requirement of Rule 23(b)(3) is
also satisfied, citing the following factors that they
contend make class treatment appropriate: 1) the absence of
evidence that class members have an interest in individually
prosecuting their claims and the disincentives to bringing
such actions, including the fear of reprisals, the relatively
low amount of individual damages awards, and the high cost of
prosecuting claims individually; 2) the fact that there are
no overlapping suits pending in any court (other than the one
that was consolidated with this action); 3) the familiarity
of this Court with the facts and legal issues, making it
desirable to concentrate the litigation in this forum; 4) the
fact that class treatment is manageable because counsel for
both sides have extensive experience in litigating class
actions, the class size is not too large to handle, and
Plaintiffs' experts have developed mechanisms such as
survey, documentary evidence and representative testimony to
"resolve the action efficiently for all class members
while preserving procedural fairness." Id. at
alternative basis for certifying the class, Plaintiffs rely
on Rule 23(b)(2) (instead of Rule 23(b)(3)), which applies
where a defendant has "acted or refused to act on
grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole."
Id. at 38 (quoting Fed.R.Civ.P. 23(b)(2)). According
to Plaintiffs, under Rule 23(b)(2), a class may be certified
regardless of whether common issues predominate and this
section does not require that all members must have suffered
identical injuries. Id. (citing Parsons v.
Ryan, 754 F.3d 657, 688 (9th Cir. 2014)). Instead, a
class may be certified under Rule 23(b)(2) where "an
injunction would offer all class members 'uniform
relief' from the harm." Id. (quoting In
re NCAA Student-Athlete Name & Likeness Licensing
Litig., No. C-09-1967 CW, 2013 WL 5979327, at *7 (N.D.
Cal. Nov. 8, 2013) (quoting Rodriguez v. Hayes, 591
F.3d 1105, 1125 (9th Cir. 2010))). That is the situation
here, Plaintiffs contend, as they seek "to enjoin MLB
from continuing to perpetuate the ongoing wage-and-hour
violations affecting all minor leaguers, including the
failure to pay wages for work performed outside the season,
the failure to provide overtime pay, and the failure to pay
the minimum wage." Id. at 38-39. Therefore,
they assert, the proposed classes should be certified under
Rule 23(b)(2) as well as 23(b)(3).
ask the Court to authorize notice to the Rule 23 classes
using the same approach to notice that was used for the FLSA
collective. Id. at 39. In particular, Plaintiffs ask
that class members be given direct notice based on
information obtained from Defendants' records, that they
be given 90 days to "exercise their rights, " and
that a 30-day reminder notice be sent to class members.
their Opposition brief, Defendants contend Plaintiffs have
failed satisfy all of the requirements of Rule 23(a) and that
they also have not demonstrated that either Rule 23(b)(2) or
(b)(3) applies. Rule 23 Opposition at 1-3. Defendants further
assert that all of the proposed classes lack Article III
standing. Id. at 3. According to Defendants, in
order for Article III standing to exist, "for each claim
and defendant in a class action, there must be at least one
class representative who was injured by that defendant in
that state." Id. at 3. Because all of the
proposed classes assert claims against the 22 Club
Defendants, Defendants contend, there must be at least one
class representative for each proposed class who played
baseball for each Club Defendant in that state - a
requirement that Plaintiffs have not met. Id.
to Defendants, named Plaintiffs are former minor league
players who played with one or more of the 30 MLB Clubs (22
of which remain as Defendants in this action, hereinafter the
"22 Club Defendants" or "Club
Defendants"). Id. at 3. All of the players
"negotiat[ed] and agree[d] to contract terms with the
Club that drafted them, " "signed a [UPC] with that
Club and subsequently reported to one of 180 affiliates
located in 44 states to play baseball during the championship
season." Id. at 4. Defendants contend the
players "often played for multiple teams based in
multiple states during the statutory period, and engaged in
diverse activities (games, training, and so on) in literally
dozens of locations over the course of their careers."
Id. at 1. Some of this information is reflected in
the "transaction history" that is maintained for
each minor leaguer, which lists the dates he signed
contracts, dates of transfers from various affiliates and
dates he was put on the "disabled list, " among
other things. Id. at 4 (citing Declaration of Elise
Bloom in Support of Defendants' Opposition to
Plaintiffs' Motion for Class Certification Under Federal
Rule of Civil Procedure 23 ("Bloom Rule 23 Opposition
Decl."), Ex. 80 (sample transaction history, entitled
"Player History, " for named Plaintiff Kristopher
Watts)). Defendants contend the activities of the players
varied widely because each Club and its affiliates
"administered its own policies and schedules, typically
at the discretion of the Clubs' many minor league
managers, coaches and trainers, and each player often had
discretion to decide whether or not (and for how long) to
engage in particular activities." Id. (citing
Motion to Decertify at 4-6).
contend that "because the baseball year is broken into
so many different activities and seasons, each of which takes
place at different locations (which differ for each minor
leaguer), each putative class member participated in
different baseball activities in a different constellation of
states, and therefore under the aegis of many different state
laws." Id. at 4-5. In this context, they
assert, the members of each of the State Classes will include
any player who performed any activity in the state during the
statutory period, "no matter how fleeting or minimal,
" and players could qualify as members of multiple State
Classes to the extent they conducted their activities in more
than one of the relevant states. Id. at 5 (citing
Bloom Rule 23 Opposition Decl., Ex. 4 (chart created by
Defendants for each State Class reflecting Class
representatives' contacts with the states they purport to
represent ("State Contacts Chart"))). Defendants
note that although Plaintiffs have asked the Court to approve
the appointment of 36 of the 43 named Plaintiffs as class
representatives, none of the state classes proposed by
Plaintiffs has a class representative for each of
the 22 Club Defendants. Id.
assert that Plaintiffs' proposed classes do not satisfy
the requirements of Rule 23(a) because the classes are not
ascertainable, the claims of the proposed class
representative are not typical of those of the absent class
members, the issues in the case do not meet the commonality
requirement, and the class representatives and their counsel
will not adequately represent the interests of the class.
Id. at 6-22.
contend a class may only be certified if its "precise
membership can currently be ascertained by reference
to 'objective criteria.‘" Id. at 6
(citing In re Clorox Consumer Litig., 301 F.R.D.
436, 440 (N.D. Cal. 2014); Xavier v. Philip Morris USA
Inc., 787 F.Supp.2d 1075, 1088-90 (N.D. Cal. 2011))
(emphasis in original). According to Defendants, a class is
ascertainable only if the method of determining its members
is "administratively feasible and [does] not involve
individualized analyses of class members." Id.
(citing Martin v. Pac. Parking Sys. Inc., 583 F.
App‘x 803, 804 (9th Cir. 2014), cert denied,
135 S.Ct. 962 (2015)). That standard is not satisfied by the
State Classes proposed by Plaintiffs, Defendants assert.
Id. at 6-7. Defendants reject Plaintiffs'
assertion that class membership can be ascertained using
"records 'such as roster moves and payroll
data.‘" Id. at 7 (quoting Rule 23 Motion
at 16). This is because analysis of these records will
require "an enormously fact-intensive analysis for
each class member, which does not satisfy Rule
23." Id. (emphasis in original) (citing
Spencer v. Beavex, Inc., No. 05-cv-1501 WQH (WMC),
2006 WL 6500597, at *9 (S.D. Cal. Dec. 15, 2006);
Martin, 583 Fed. App‘x at 804; Daniel F.
v. Blue Shield of Cal., 305 F.R.D. 115, 125 (N.D. Cal.
argue that the roster moves are reflected in the players'
transaction histories and these would have to be reviewed,
line-by-line, for each of thousands of players for each year
during the statutory period in order to determine the State
Classes for which the player is qualified. Id. at 8.
"The payroll data is no better, " Defendants
assert, because each Club‘s payroll data "comes in
different forms [and therefore] . . . to sort through each
Club‘s unique payroll data as to each class member will
similarly mandate an unfeasibly individualized and complex
argue further that these records are not sufficient to
ascertain class membership because they reflect only the
locations where the players played during the championship
season, not where they engaged in other activities during the
off-season. Id. In fact, Defendants contend, as to
off-season training, "the Court will never have
a way to assess where class members engaged in off-season
further challenge the ascertainability of class membership on
the basis that the class definitions are unclear and
overbroad. Id. at 9-12. First, they point to the
fact that the classes are defined with reference to the
"work" the members allegedly performed in each
state, yet Plaintiffs are unable to offer a clear definition
of what constitutes "work, " according to
Defendants. Id. at 9. Defendants assert that
Plaintiffs' recent decision not to seek compensation for
time spent in mini-camps and at the Arizona Fall League, even
though such activities were alleged in Plaintiffs'
complaint, illustrates that "Plaintiffs themselves
cannot decide what actually constitutes 'work' in the
first place." Id. at 9-10.
Defendants argue that the classes are overbroad because they
"include class members who have no cognizable
wage-and-hour claims against their Club under that
state‘s law." Id. at 10 (citing
Tietsworth v. Sears, Roebuck & Co., No.
5:09-cv-00288-JF (HRL), 2012 WL 1595112, at *14 (N.D. Cal.
May 4, 2012); Astiana v. Ben & Jerry’s
Homemade, Inc., No. C 10-4387 PJH, 2014 WL 60097, at *3
(N.D. Cal. Jan. 7, 2014); Diacakis v. Comcast Corp.,
No. C 11-3002 SBA, 2013 WL 1878921, at *4 (N.D. Cal. May 3,
2013)). In particular, according to Defendants, the State
Classes proposed by Plaintiffs "include individuals who
technically performed some kind of activity in that state,
even though the nature and scope of that activity may be
insufficient [for the individual] to be deemed to have been
'employed' under that state‘s laws."
Id. at 11. Consequently, Defendants contend, the
Court would have to conduct an assessment of "the wide
range of different potentially de minimis
contacts" of the class members with the state to ensure
that each one has standing. Id. Moreover,
they argue, the analysis will be further complicated by the
fact that "the states have different tests to assess
whether their laws apply to out-of-state employees."
Id. at 11 n. 15. And even as to class members who
can state a cognizable claim under the state law of their
class, Defendants assert, there may be another state that has
an overriding interest in the application of its laws to the
class members' claims. Id. Because a class
cannot include members who lack standing, Defendants assert,
the Court will be required to make findings on these issues
for each class member. Id. However, the need to
conduct such individualized inquiries does not comport with
Rule 23, they argue. Id.
to Defendants, the typicality requirement cannot be met if
the class representative had no dealings with the Defendants
against whom the class asserts claims. Id. (citing
Mazur v. eBay, Inc., 257 F.R.D. 563, 569 (N.D. Cal.
2009); La Mar v. H & B Novelty & Loan Co.,
489 F.2d 461, 462 (9th Cir. 1973)). That is the case here,
Defendants assert, because each class is asserting claims
against all 22 Club Defendants but there is not a class
representative who played for each of these Clubs for each of
the State Classes. Id. Therefore, Defendants argue,
all of the State Classes fail to satisfy the typicality
requirement of Rule 23. Id. at 13. Defendants argue
that the typicality requirement isn‘t met for the
additional reason that many of the class representatives
purport to represent State Classes in which they themselves
have no claims - a problem that also goes to adequacy of
representation. Id. (citing Major v. Ocean Spray
Cranberries, Inc., No. 5:12-CV-03067 EJD, 2013 WL
2558125, at *4 (N.D. Cal. June 10, 2013); Williams v.
Oberon Media, Inc., No. CV 09-8764-JFW AGRX, 2010 WL
8453723, at *6 (C.D. Cal. Apr. 19, 2010),
aff’d, 468 F. App‘x 768 (9th Cir.
2012)). They point to Ryan Kiel as "[o]ne of the most
glaring examples" of this problem. Id.
According to Defendants, Kiel purports to represent the
Florida class, even though he is not alleged to have
performed any baseball-related activities in
Florida, in the off-season or otherwise. Id. They
also note that Ryan Khoury, who is proposed as a class
representative for the New York Class, appears to have had no
contacts with New York other than playing an occasional away
game there and thus likely has no claims under New York law.
Id. at 12 n. 19 & 13 n. 22. Defendants also
assert that the claims of Kris Watts, Joseph Newby and Jon
Gaston are atypical of the classes they seek to represent
because they performed no baseball-related activities in the
relevant state within the limitations period. Id.
Other class representatives also may be atypical of the
classes they purport to represent, Defendants argue,
depending on other decisions the Court may make in this case,
such as how much contact with a state is sufficient to
justify a cause of action under that state‘s laws.
Id. at 13 n. 22.
also argue that the claims of the classes may not be typical
of the class representatives because many of the proposed
class representatives played for Clubs that have been
dismissed as defendants; as a consequence, these class
representatives' claims will fail if Plaintiffs do not
establish that the Clubs and MLB had a joint employment
relationship. Id. at 14. The class representatives
who fall in this category are: Arizona Class Representative
Nick Giarraputo (played "exclusively for a Dismissed
Club while in Arizona"); Florida Class representatives
Ryan Khoury, Brett Newsome, Roberto Ortiz, Tim Pahuta,
Brandon Pinckney, and David Quinowski (played
"exclusively for Dismissed Clubs while in
Florida"); New York Class representatives Ryan Khoury
and Kris Watts (played "exclusively for Dismissed Clubs
while in New York"); Maryland Class representatives
Brett Newsome and Roberto Ortiz (played "exclusively for
Dismissed Clubs"); and Pennsylvania Class Representative
Tim Pahuta (played "exclusively got a Dismissed Club
while in Pennsylvania").
Defendants argue that the claims of the classes don‘t
satisfy the typicality requirement because the claims of the
class representatives are based on "activities they
allegedly performed in that particular state that are not
typical of the activities performed by the class members whom
they seek to represent." Id. at 15.
argue that the commonality requirement is not met because
Plaintiffs have not offered "'significant proof'
that a resolution of the legal issues in the case shall be
performed 'in one stroke.‘" Id. at 15
(quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 351 (2011)). According to Defendants, "[t]he key
inquiry under the commonality requirement is whether class
treatment 'will generate common answers apt to
drive the resolution of the litigation.‘"
Id. at 16 (quoting Wal-Mart, 564 U.S. at
350 (emphasis added)). Instead, Defendants contend,
Plaintiffs identify common questions (whether
Defendants failed to pay wages for work performed outside the
championship season, whether Defendants failed to pay
overtime wages, and whether Defendants failed to pay minimum
wage when wages were paid). Id. These questions
cannot be answered on a classwide basis, Defendants contend.
Id. Defendants argue that there is a threshold
question as to each of the three questions posed by
Plaintiffs, namely, whether that player was an
"employee" in the first instance when he performed
the relevant activities. Id. According to
Defendants, that question will turn on application of the
"primary beneficiary test" as well as an analysis
of whether the Clubs and MLB were joint employers and both of
these analyses requires individualized inquiries for each
class member. Id.
respect to the primary beneficiary test, Defendants argue
that the Court will be required to "analyze the job
duties and work performed by class members" to determine
if they were apprentices or trainees and that this analysis
cannot be conducted on a classwide basis under the facts
here. Id. at 17 (quoting Brady v. Deloitte &
Touche LLP, No. C 08-177 SI, 2012 WL 1059694, at *6
(N.D. Cal. Mar. 27, 2012), aff’d sub nom. Brady v.
Deloitte & Touche, 587 F. App‘x 363 (9th Cir.
2014)). According to Defendants, the testimony of named
Plaintiffs shows that "players experienced different
benefits (or lack thereof) from different activities in ways
that impact the 'primary beneficiary'
determination." Id. (citing Bloom Rule 23
Opposition Decl., Ex. 4 (State Contacts Chart)). Defendants
dispute Plaintiffs' assertion that Walling and
the primary beneficiary test do not apply because there is a
traditional employment relationship between the players and
the Clubs and/or MLB, arguing Plaintiffs' approach is
"backwards." Id. at 18. They also contend
Plaintiffs' reliance on Alamo Found. v. Secretary of
Labor is misplaced because in that case, the plaintiffs
were "entirely dependent" on the defendant for
their food and shelter and performed uncompensated work for
the defendant from which it derived the majority of its
income. Id. (citing 471 U.S. at 301). In contrast,
Defendants assert, the plaintiffs here chose to
participate in the minor league and saw their participation
as an opportunity for receiving "the highest quality
training in baseball as well as general life skills."
as to the question of whether MLB is a joint employer,
Defendants argue, the Court will be required to conduct a
"highly individualized, fact-specific" analysis
that will render class treatment inappropriate. Id.
at 19 (citing Maddock v. KB Homes, Inc., 248 F.R.D.
229, 246 (C.D. Cal. 2007); Ouedraogo v. A-1 Int’l
Courier Serv., Inc., No. 12-CV-5651 AJN, 2014 WL
4652549, at *7 (S.D.N.Y. Sept. 18, 2014)). This question is
particularly important as to the class representatives who
played for the Dismissed Clubs, Defendants note, as their
claims will stand or fall on whether MLB is found to have
been their employer. Id. Defendants further
challenge Plaintiffs' joint employer theory on the
merits, asserting that "despite Plaintiffs'
boilerplate claims [in the Complaint] to having been
controlled and supervised by MLB . . . Plaintiffs'
depositions revealed that not a single Plaintiff had ever
been supervised by an executive of MLB, nor could some
Plaintiffs even recognize the name of a single MLB executive
whom their lawyers listed in their responses to
interrogatories." Id. (citing Compl.
¶¶ 70, 182; Bloom Rule 23 Opposition Decl., Ex. 2
(comparing testimony of named Plaintiffs in declarations with
deposition testimony on question of MLB supervision)).
also dispute Plaintiffs' assertion that there are
"common resolutions to the key issues in this case
simply because minor leaguers all signed UPCs."
Id. at 20 (citing Rule 23 Motion at 23). The UPC
only sets the players' "base salary, that
is, only for their first championship season, "
Defendants assert. Id. (emphasis in original). It
does not dictate the bonus each player receives, college
scholarship benefits or participation in an incentive bonus
plan. Id. Rather, Defendants assert, "[t]hese
and all aspects of player compensation (aside from first-year
championship base salary) are determined between players
and their individual Clubs." Id. (citing
Motion to Decertify at 7-10; SCAC at 307 (UPC)). According to
Defendants, "the disparate policies and practices of
each Club further preclude a finding of commonality."
Id. at 21.
argue that the adequacy requirement is not met because the
class representatives have engaged in misconduct in
connection with their declarations, with some signing false
and misleading declarations and others signing declarations
they did not prepare or review. Id. at 21-22 (citing
Bloom Rule 23 Opposition Decl., Ex. 2). Class counsel has
also engaged in conduct that undermines their adequacy,
Defendants contend. Id. In particular, Defendants
assert that Mr. Broshuis "engaged in what appears to be
solicitation of Named Plaintiffs." Id.
Defendants also contend counsel filed and refiled
declarations they knew or should have known were false and
relied on stock, boilerplate declarations. Id. This
conduct does not satisfy the adequacy requirement, Defendants
assert. Id. (citing Bodner v. Oreck Direct,
LLC, No. C 06-4756 MHP, 2007 U.S. Dist. LEXIS 30408, at
*5-6 (N.D. Cal. 2007); Evans v. IAC/Interactive
Corp., 244 F.R.D. 568, 578-79 (C.D. Cal. 2007)).
argue that the predominance requirement of Rule 23(b)(3),
which is more stringent than the commonality requirement of
Rule 23(a), also is not satisfied because individualized
inquiries will overwhelm any common issues. Id. at
23-38. First, as discussed above, Defendants assert that in
order to determine liability, the Court will have to conduct
an individualized analysis of the types of activities the
class members engaged in to determine if they constituted
compensable work, and the compensation each class member
received. Id. (citing Levias v. Pac. Mar.
Ass’n, No. 08-cv-1610-JPD, 2010 WL 358499 (W.D.
Wash. Jan. 25, 2010)). With respect to the question of
whether certain types of activities constitute work,
Defendants challenge what they contend is Plaintiffs'
"binary" description of the issue; according to
Defendants, whether or not a certain activity is
"compensable work" is not subject to a simple
"yes" or "no" answer but instead, may
differ from class member to class member. Id. at
24-25. As an example, Defendants compare a player who
performed off-season training according to their Club‘s
manual (which might be found to be compensable work) with one
who did not follow the manual (in which case, the off-season
training would not be compensable work, Defendants assert).
Id. Other examples Defendants cite are players whose
off-season conditioning work was monitored by his Club versus
those whose conditioning was not monitored and those who
submitted work-out logs versus those who did not.
Id. at 23. These variations will be
"amplified" because the State Classes contain
players who played for different Clubs, Defendants assert.
Id. at 25. Further, Defendants argue, courts
"find that individualized issues predominate over common
ones in cases where, as here, managers have discretion to
administer policies, " where "employees have
discretion to choose if or how they comply with those
policies, " and where the policies differ from location
to location. Id. (citing Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 355 (2011); Villa v. United
Site Servs. of Cal., Inc., No. 5:12-CV-00318-LHK, 2012
WL 5503550, at *8 (N.D. Cal. Nov. 13, 2012); Amey v.
Cinemark USA Inc., No. 13-CV-05669-WHO, 2015 WL 2251504,
at *12 (N.D. Cal. May 13, 2015); Bryant v. Serv. Corp.
Int’l., No. C 08-01190 SI, 2011 WL 855815, at *9
(N.D. Cal. Mar. 9, 2011)).
question that will require individualized inquiries,
according to Defendants, is how much time players engaged in
each activity. Id. This question will go to
liability on the overtime claims and will differ for each
player depending on "a number of factors, including the
activities in which they participated and the Club or
affiliate for whom they played." Id. Defendants
argue that in characterizing their claims as
"off-the-clock, " Plaintiffs overlook the fact that
courts have held that such claims cannot be addressed on a
classwide basis. Id. at 26 (citing Lou v. Ma
Labs., Inc., No. C 12-05409 WHA, 2014 WL 68605, at *4
(N.D. Cal. Jan. 8, 2014); Villa, 2012 WL 5503550, at
*12). Defendants also challenge Plaintiffs' assertion
that because they did not keep records of the time spent
engaging in these activities Plaintiffs are entitled to rely
on representative evidence such as survey evidence.
Id. According to Defendants, this argument fails
"[b]ecause Plaintiffs chose to perform activities on
their own time at their own discretion, [and therefore] there
can never be time records for their off-the-clock
claims." Id. Even Plaintiffs themselves do not
remember how much time they spent on these activities,
Defendants contend. Id. They cite as an example an
alleged discrepancy between the declaration and deposition
testimony of Joel Weeks, who stated in his declaration that
he typically arrived six hours before games but testified in
his deposition that when he played with one affiliate he
showed up 20 to 30 minutes before away games. Id.
(comparing Weeks Dep. at 155-56 with Weeks Decl., Docket No.
414-40). Consequently, Defendants argue, "there is
simply no classwide resolution to the question of which
players, if any, are owed minimum wage or overtime, which is
yet another individualized issue that will predominate in
this litigation." Id.
also assert that individualized inquiries will have to be
conducted to determine which players were payed minimum wages
under the relevant states' laws and which were not.
Id. at 26-28. They point to large variations among
the players as to the size of their signing bonuses, citing
as examples the bonuses paid to (now dismissed) named
Plaintiff Matt Lewis ($100, 000) and putative class member
Yoan Moncada ($31, 500, 000). Id. at 27 (citing
Bloom Rule 23 Opposition Decl., Ex. 40 & ¶ 88). They
also point to the monthly salary negotiated by named
Plaintiff David Quinowski as a free agent ($10, 000/month).
Id. (citing Motion to Decertify at 9 (citing
Quinowski Dep. at 145-46)). In addition, they assert, some
class members received various forms of additional
compensation outside of the championship season,
"including but not limited to signing bonuses, incentive
bonuses, college scholarship money, salaries negotiated in
non-first year contracts, salaries from playing in the AFL,
stipends and contractual awards for those who attended Major
League spring training, salaries from extended spring
training depending on the Club, per diems, room and board,
and performance-related bonuses. Id. (citing Smith
Dep. at 182 (compensated for participating in extended spring
training); Duff Dep. at 273 (compensated during 2009 AFL);
Quinowski Dep. at 159-162; 166 (testifying that during the
2012 Major League spring training he was paid $1, 100 a week
for seven weeks); Liberto Dep. at 256 (paid during extended
spring training); Daly Dep. at 183 ($3, 500 bonus for
community service award)). All of this compensation will have
to be considered individually, according to Defendants, in
order for the Court to determine whether the players are
entitled to minimum wage or overtime. Id. at 28.
also argue that the defenses they assert against
Plaintiffs' claims will require individualized inquiries
that will overwhelm any common issues. Id. at 28-29.
These defenses include the various creative professional and
seasonal amusement exemptions recognized (in varying forms)
under many of the relevant states' laws. Id. 28.
As to the creative professional exemption, Defendants argue,
the Court will have to conduct individualized inquiries as to
the players' "primary duties" and "salary
threshold." Id. at 29. Similarly, they contend,
the seasonal amusement exemption would require the Court to
address the operating time and receipts of each
"establishment" where players performed compensable
work, applying a variety of state law standards, for each
year in the class period, in order to determine whether the
exemption applied. Id.
difficulty of addressing the individualized issues discussed
above would be multiplied by the choice-of-law analyses that
the Court would have to conduct, Defendants argue.
Id. at 29-31. In particular, they contend, the Court
would have to "grapple with choice-of-law across a
multitude of states to determine which state‘s law
applies to the alleged work at issue." Id. at
29. Further, they assert, "in the event that a state law
other than the state law of the subclass applies to certain
alleged work, administration of the class becomes
impracticable." Id. at 30. Defendants
argue that Plaintiffs have entirely ignored the fact that
each player performed work in a number of different states,
thus requiring an individual choice-of-law analysis for each
player. Id. According to Defendants, the necessity
to conduct such an analysis makes it impossible for
Plaintiffs to satisfy the predominance requirement.
Id. (citing Williams v. Oberon Media, Inc.,
No. CV 09-8764-JFW AGRX, 2010 WL 8453723, at *7 (C.D. Cal.
Apr. 19, 2010), aff’d, 468 F. App‘x 768
(9th Cir. 2012); Mazza v. Am. Honda Motor Co., 666
F.3d 581, 591-93 (9th Cir. 2012); Church v. Consol.
Freightways, Inc., No. C-90-2290 DLJ, 1991 WL 284083, at
*12-13 (N.D. Cal. June 14, 1991)).
illustrate the magnitude of the choice-of-law problem,
Defendants point to California‘s three-part test for
determining whose laws should apply (which focuses on how the
laws of the competing jurisdictions differ, whether both
states have an interest in applying their respective laws,
and which states' interest would be more impaired if its
laws were not applied), arguing that the application of this
standard would have to be conducted for each non-forum state
with an interest in the application of its laws and for each
claim. Id. (citing Williams, 2010 WL
8453723, at *9). They offer as an example Ryan Khoury, who is
named as a class representative for the New York Class on the
basis that he played away games there. Id. at 31.
According to Defendants, Khoury played for Red Sox affiliates
located in Maine, Rhode Island, Massachusetts and South
Carolina and therefore, the Court would have to determine
which of these states had the greater interest in having its
laws applied to Khoury‘s claims. Id.
Defendants contend "[t]he permutations and combinations
of these choice-of-law evaluations are mind-bending."
Defendants assert, even if the court can "hypothetically
discern which laws apply to which claims, Plaintiffs have
also failed to establish how a jury in a 'single
trial' can possibly conceptualize the variations amongst
the laws of the eight states governed by the subclasses, and
how they would disparately affect class members."
Id. at 32 (citing Rule 23 Motion at 11; Bryant
v. Serv. Corp. Int’l, No. C 08-01190 SI, 2011 WL
855815, at *6 (N.D. Cal. Mar. 9, 2011)). Nor have Plaintiffs
adequately addressed the variations in the various
states' laws, Defendants argue. Id.
argue that manageability problems alone preclude
certification and characterize Plaintiffs' proposed trial
plan as merely an attempt to "paper over" these
problems. Id. at 33. Plaintiffs' proposal is
insufficient, Defendants assert, because it makes no attempt
to account for the resolution of the many individualized
issues discussed above. Id. Defendants argue that
extrapolating from the testimony of the 43 named Plaintiffs
is not a viable option to resolve these issues because these
players have "wildly variable testimony as to crucial
legal questions in this case . . ., in light of the various
activities in which they partook, the benefits they and the
Defendants reaped from those activities, and the time they
spent engaging in those activities." Id. at
33-34 (citing Bloom Rule 23 Opposition Decl., Ex. 3 (chart
prepared by Defendants listing alleged "Variations
Exemplified by Deposition Testimony"); Beauperthuy
v. 24 Hour Fitness USA, Inc., 772 F.Supp.2d 1111, 1128
(N.D. Cal. 2011); Vinole v. Countrywide Home Loans,
Inc., 571 F.3d 935, 947 (9th Cir. 2009)). Defendants
also argue that the representative evidence Plaintiffs plan
to use, including survey responses, is fatally flawed, as set
forth in Defendants' Motion to Exclude, discussed below.
Id. at 34-38.
argue that Plaintiffs' alternative ground for
certification, under Rule23(b)(2), also has no merit.
Id. at 38. That section allows a class to be
certified where class members seek common injunctive relief
and money damages are only "incidental" to their
claim, Defendants assert. Id. Further, only a
current employee has standing to pursue injunctive relief,
according to Defendants. Id. Here, however, the
class does not include any current players and the requested
injunctive relief (a declaration requiring that Defendants
pay all statutorily required wages) "amounts to a
request for monetary damages." Under these
circumstances, the request for money damages is not
"incidental" to the claim for injunctive relief,
Defendants contend. Id.
none of the classes has standing to pursue injunctive relief.
Id. Therefore, Defendants assert, Rule 23(b)(2) does
not provide a basis for certification. Id.
Article III Standing
Defendants contend the Court must address the threshold issue
of Article III standing before it decides the question of
certification. Id. at 38 (citing Bruce
v. United States, 759 F.2d 755, 757 (9th Cir. 1985);
Burton v. Nationstar Mortg., LLC, No.
1:13-cv-00307-LJO-JLT, 2014 WL 5035163, at *6 (E.D. Cal. Oct.
8, 2014)). According to Defendants, that requirement is only
met in a multi-defendant case where there is at least one
named plaintiff who can assert a claim directly against each
defendant. Id. at 39 (citing Henry v. Circus
Circus Casinos, Inc., 223 F.R.D. 541, 544 (D. Nev.
2004); Perez v. Wells Fargo & Co., No. C 14-0989
PJH, 2015 WL 1887354, at *5 (N.D. Cal. Apr. 24, 2015)).
Further, they assert, each State Class is treated as a
separate lawsuit and therefore Plaintiffs must establish that
each of the State Classes satisfies Article III standing
requirements. Id. (citing Betts v. Reliable
Collection Agency, Ltd., 659 F.2d 1000, 1005 (9th Cir.
1981); Nguyen v. Medora Holdings, LLC, No.
5:14-CV-00618-PSG, 2015 WL 4932836, at *4 (N.D. Cal. Aug. 18,
2015)). It is not sufficient, according to Defendants, that
"amongst all of the class representatives for all of the
subclasses, at least one played for each Club
Defendant." Id. Rather, Defendants contend,
"Plaintiffs must have standing to bring each state law
claim against each Defendant." Id. (citing
In re Adobe Sys., Inc. Privacy Litig., 66 F.Supp.3d
1197, 1218 (N.D. Cal. 2014); Perez, 2015 WL 1887354,
at *5). Because each State Class does not have a named
Plaintiff for each Club named as a defendant, Defendants
assert, the standing requirement is not satisfied as to any
of the classes. Id. at 40.
reject Defendants' assertions that "minor league
baseball is wholly different from one minor league affiliate
to another, " pointing out that the purpose of the farm
system, as stated in MLR 3(b), was to imbue "a
similarity of conditions" for all minor leaguers. Reply
at 1. In fact, Plaintiffs contend, the evidence shows that
"Plaintiffs and class members suffered the same types of
injuries, as a result of common employment policies, while
performing similar work during similar work periods."
Id. Thus, they contend, "[i]n one fell swoop,
the Court can finally determine the legality of the practices
for all minor leaguers, making class resolution of this
matter the best means of resolution for all parties."
Plaintiffs reiterate their assertion that Rule 23‘s
commonality and predominance requirements are met, arguing
that their claims raise not only common questions but also
common answers. Id. at 2. Plaintiffs reject
Defendants' assertion that their trial plan is deficient,
arguing that their approach finds support in the Supreme
Court‘s recent decision, Tyson Foods v.
Bouaphakeo, 136 S.Ct. 1036 (2016), in which the Supreme
Court upheld the use of statistical evidence in a wage and
hour class action where the employer had failed to keep
adequate time records. Plaintiffs argue that Defendants'
reliance on the Wal-Mart case in support of their
assertion that the classes should not be certified is
misplaced because that case is distinguishable from the facts
here. Id. at 4. According to Plaintiffs, in
Wal-Mart the plaintiffs asserted Title VII claims
where "there was no corporate policy and no ...