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Senne v. Kansas City Royals baseball Corp.

United States District Court, N.D. California

July 21, 2016

AARON SENNE, et al., Plaintiffs,
v.
KANSAS CITY ROYALS BASEBALL CORP., et al., Defendants.

          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, 632

          JOSEPH C. SPERO, Chief Magistrate Judge

         I. INTRODUCTION

         In this 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.[1]

         II. PROCEDURAL BACKGROUND

         On 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.[2] 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.

         On May 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 Indians.[3]

         The 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.

         Plaintiffs 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.

         Defendants, 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.

         III. THE MOTIONS

         A. The Rule 23 Motion

         1. Plaintiffs’ Motion

         a. Proposed Class Definitions and Representatives

         Plaintiffs 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 leaguer.

Id.[4] 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.

         Plaintiffs propose that the following named Plaintiffs be appointed as class representatives:

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 Aaron Senne.
New York Class: Ryan Khoury, Jon Gaston, Matt Daly, Aaron Senne, Kris Watts, Nick Giarraputo, and Aaron Dott.
Pennsylvania Class: Tim Pahuta, Kris Watts, and Lauren Gagnier.
Maryland Class: Roberto Ortiz and Brett Newsome.
Oregon Class: Joel Weeks, Gaspar Santiago, and David Quinowski.

Proposed Order at 2-3.

         b. Factual Background

         According 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 following evidence:

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 or League.").
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[5]). 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. Id.
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 training)).
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.

         c. Plaintiffs' Proposed Trial Plan

         Plaintiffs 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.

         Plaintiffs 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.

         d. Application of Rule 23 Requirements

         Turning 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.

         The 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)).

         Plaintiffs 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)).

         Plaintiffs 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)).

         Plaintiffs 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).

         In the 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 above.
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 assert. Id.
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.

         Plaintiffs 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. Id.

         Plaintiffs 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.

         California 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.

         Finally, 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. Id.

         Plaintiffs 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 37-38.

         As an 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).

         e. Class Notice

         Plaintiffs 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. Id.

         2. Defendants’ Opposition

         In 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.

         a. Factual Background[6]

         According 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).

         Defendants 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.

         b. Rule 23(a) Requirements

         Defendants 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.

         i. Ascertainability

         Defendants 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. 2014)).

         Defendants 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 review." Id.

         Defendants 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 training." Id.

         Defendants 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.

         Second, 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.[7] 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.

         ii. Typicality

         According 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.

         Defendants 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").

         Finally, 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.

         iii. Commonality

         Defendants 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.

         With 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." Id.

         Similarly, 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)).

         Defendants 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.

         iv. Adequacy

         Defendants 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)).

         c. Rule 23(b)(3)

         Defendants 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)).

         Another 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.

         Defendants 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.

         Defendants 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.

         The 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)).

         To 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." Id.

         Moreover, 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.

         Defendants 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.

         d. Rule 23(b)(2)

         Defendants 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.

         Furthermore, 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.

         e. Article III Standing

         Finally, Defendants contend the Court must address the threshold issue of Article III standing before it decides the question of certification.[8] 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.

         3. Plaintiffs’ Reply

         Plaintiffs 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." Id.

         First, 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 ...


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