Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Senne v. Kansas City Royals Baseball Corp.

United States District Court, N.D. California

March 7, 2017

AARON SENNE, et al., Plaintiffs,


          JOSEPH C. SPERO Chief Magistrate Judge


         On July 21, 2016, the Court denied Plaintiffs‘ request for class certification under Rule 23 of the Federal Rules of Civil Procedure and decertified the FLSA collective it had preliminarily certified. See Docket No. 687 ("Class Certification Order" or "July 21 Order"). In the same Order, it granted Defendants‘ request to exclude the testimony of Plaintiffs‘ expert, Dr. J. Michael Dennis, under Rule 702 of the Federal Rules of Evidence and Daubert. Plaintiffs brought a Motion for Leave to File a Motion for Reconsideration ("Motion for Leave") on August 4, 2016. The Court granted in part and denied in part the Motion for Leave on August 19, 2016, allowing Plaintiffs to "file a renewed motion . . . for class certification under Rule 23 in which Plaintiffs will propose narrower classes and address the concerns articulated by the Court in its July 21 Order, including those related to the survey conducted by their expert and the expert opinions that were based on the survey." Docket No. 710 ("August 19 Order") at 1. Under the August 19 Order, Plaintiffs were also permitted to "seek (re)certification of narrower FLSA classes than the ones the Court decertified in its July 21 Order." Id.

         Presently before the Court are the following motions ("Motions"): 1) Plaintiffs‘ Motion for Reconsideration Regarding Class and Collective Certification ("Motion for Reconsideration"); 2) Motion to Intervene by Shane Opitz, Corey Jones, Brian Hunter, Kyle Johnson, and Aaron Dott; 3) Defendants‘ Motion to Exclude the Declaration and Testimony of J. Michael Dennis, Ph.D. ("Motion to Exclude"); and 4) Defendants‘ Motion for Leave to File Sur-Reply. A hearing on the Motions was held on December 2, 2016 at 9:30 a.m. The Court‘s rulings are set forth below.[1]


         A. The Class Certification Order

         In their original class certification motion, Plaintiffs asked the Court to certify under Rule 23(b)(3), or in the alternative, Rule 23(b)(2), classes consisting of "[a]ll 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 applicable statutory period. See Motion to Certify Class, Docket No. 496. These classes asserted wage and hour claims under the laws of eight different states based on a variety of activities the putative class members perform throughout the year, including spring training, extended spring training, the championship season, instructional leagues, and winter conditioning. Class Certification Order at 3-4, 7-9. To show that their claims were amenable to class treatment, Plaintiffs offered a declaration by their expert, Dr. J. Michael Dennis, describing a survey questionnaire ("Pilot Survey") he conducted to show that it would be possible to conduct a "main survey" ("Main Survey") that would produce reliable results and would address the issues in this case through common proof. See Declaration of J. Michael Dennis, Ph.D. in Support of Plaintiffs‘ Motion for Class Certification, Docket No. 498 ("March 3, 2016 Dennis Decl.").

         Defendants argued, inter alia, that the classes should not be certified under Rule 23 because the experiences of the putative class members varied widely. See generally, Defendants‘ Opposition to Plaintiffs‘ Motion for Class Certification Under Federal Rule of Civil Procedure 23, Docket No. 628. Similarly, they argued that the FLSA collective should be decertified because the named Plaintiffs were not similarly situated, either to each other or the opt-in plaintiffs. See generally, Motion to Decertify the Fair Labor Standards Act Collective, Docket No. 495. Finally, Defendants sought to exclude the testimony of Plaintiffs‘ expert, Dr. Dennis, on the grounds that it was unreliable, and to exclude the testimony of Plaintiffs‘ damages expert, Dr. Kriegler, to the extent he relied on Dr. Dennis‘s survey results. See 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, Docket No. 632.

         The Court agreed with Defendants that the classes, as proposed, could not be certified under Rule 23. First, it found that one of the requirements of Rule 23(a), ascertainability, was not satisfied because of the "problems associated with determining membership in the State Classes based on winter training." Class Certification Order at 59. These problems arose from the wide variations as to the types of activities in which the players engaged to meet their winter conditioning obligations, the fact that many players performed these activities in more than one state, the absence of official records documenting these activities, and the difficulty players would likely have remembering the details relating to their winter conditioning activities, including, in some cases, the state or states where they performed them. Id.

         The Court went on to hold that Plaintiffs‘ proposed classes did not meet the requirements of Rule 23(b)(3) because of the highly individualized inquiries that would have been required to evaluate the claims of the class members. Id. at 81. The Court pointed to variation in the types of activities in which the minor leaguers engage, finding that these variations were "particularly striking as to winter training." Id. The Court also pointed to variations as to the hours and activities of minor league players during the championship season and variations with respect to salaries, bonuses and other forms of compensation. Id. at 81-82. The Court found that these variations went not only to damages but also liability, reasoning that "[c]lass members can demonstrate minimum wage and overtime violations only by demonstrating that their rate of pay fell below the minimum wage rate and that they worked the requisite number of hours to be entitled to overtime pay, both of which will turn on the number of hours of compensable work they performed and the amount of compensation they received for that work." Id. at 82.

         The individualized choice-of-law determinations that would be required to address the claims of the putative class members were also a source of significant concern to the Court. Id. at 86-87. Again, the Court found that winter training was particularly problematic as players are permitted to perform their conditioning wherever they choose and the evidence shows that many players perform their conditioning in more than one state. Id. The Court also found that individualized inquiries related to the seasonal amusement and recreational establishment defenses and the creative professionals exemption would "increase the likelihood that class treatment of Plaintiffs‘ claims will be overwhelmed by the individual inquiries." Id. at 84-86. The Court noted as to both of these defenses, however, that they would not be sufficient, on their own, to warrant denial of class certification. Id.

         In the end, the Court concluded that the variations were too significant to meet the predominance requirements of Rule 23(b)(3) and that the survey results on which Plaintiffs intended to rely constituted an impermissible attempt to "paper over significant material variations that make application of the survey results to the class as a whole improper." Id. at 91. In reaching this conclusion, the Court rejected Plaintiffs‘ reliance on Tyson Foods v. Bouaphakeo, 136 S.Ct. 1036, 1045 (2016), in which the Supreme Court found, applying the rule of its seminal Mt. Clemens decision, that the plaintiffs could demonstrate their work based on representative evidence sufficient to support a "just and reasonable inference" where the employer had not kept adequate records of their work. Id. at 88. The undersigned found that "[a]llowing Plaintiffs to rely on the survey evidence obtained by Dr. Dennis (whether the Pilot Survey or the future survey he planned to conduct using the same methodology) would be inappropriate under the circumstances here because doing so would enlarge the rights of Plaintiffs and deprive Defendants of the right to litigate the individual issues discussed above." Id. at 91.

         With respect to Plaintiffs‘ request that the Court certify the same proposed classes under Rule 23(b)(2), the Court found that Plaintiffs did not have standing to pursue injunctive relief claims under Rule 23(b)(2) because none of the named Plaintiffs was a current minor leaguers and therefore, Plaintiffs could not demonstrate a likelihood of future harm. Class Certification Order at 92-93. The Court further found that "the absence of any current minor league players among named Plaintiffs reflects that any interest they may have in obtaining injunctive relief for future players is incidental to their request for money damages." Id. at 93.

         The Court also decertified the FLSA collective that it had previously certified, finding that the collective members were not "similarly situated" because of the many individualized inquiries that would be required to resolve those claims. Id. at 95.

         Finally, on Defendants‘ motion to exclude, the Court found that some of the problems identified by Defendants with respect to Dr. Dennis‘s Pilot Survey, including alleged coverage error and non-response bias, were "exaggerated or remediable." Id. at 97-99. On the other hand, the Court was "troubled by the format of [a] question flagged by" Defendants‘ expert, Dr. Ericksen, that asked respondents to "go through a difficult series of questions to come up with an answer, " possibly leading them to "satisfice" or give "best guesses." Id. at 99. Specifically, Dr. Ericksen pointed to a question that asked respondents to provide the total amount of time they spent on a variety of activities for each of the four weeks of spring training. Id. (citing Ericksen Decl. ¶¶ 36-38). The Court found that the "satisficing" problem was compounded by: 1) the fact that all of the respondents of the Pilot Survey had opted in to the FLSA class, giving them a vested interest in the results of the survey; and 2) the likelihood of recall bias, given that respondents were asked to remember mundane events that occurred more than a year earlier and often several years earlier, such as when they arrived at and left the stadium each day. Id. at 100-101.

         As a consequence, the Court held that Dr. Dennis‘s Pilot Survey (as well as Dr. Kriegler‘s expert report to the extent he relied on Dr. Dennis‘s opinions) was not sufficiently reliable to meet the requirements of Daubert and Rule 702 of the Federal Rules of Evidence. Id. at 103. In particular, the Court concluded that "both the methodology and the results of the Pilot Survey [conducted by Dr. Dennis and offered in support of Plaintiffs‘ request for class certification] are unreliable and . . . any future survey that applies a similar methodology is likely to yield unreliable results as well, especially in light of the problems . . . as to its failure to adequately ensure objectivity and its reliance on the players‘ ability to recall details of activities and events that occurred many months (and often years) ago." Id.

         B. The August 4, 2016 Dennis Declaration

         In support of their Motion for Reconsideration, Plaintiffs filed a new declaration by Dr. Dennis in which he responded to the concerns expressed by the Court in its July 21, 2016 Order and described the "findings, methodology and results" of the Main Survey. Declaration of J. Michael Dennis Ph.D., Docket No. 696 ("August 4, 2016 Dennis Decl."). According to Plaintiffs, the Main Survey and Dr. Dennis‘s opinions in the August 4, 2016 Declaration "lay to rest" the Court‘s concerns regarding the Pilot Survey. Motion for Leave at 2.

         In the Main Survey, Dr. Dennis collected responses from 720 Minor Leaguers between July 9, 2016 and July 27, 2016. August 4, 2016 Dennis Decl. ¶ 3. According to Dr. Dennis, he took numerous measures to improve the methodology of the Main Survey, using lessons he had learned from the Pilot Survey, "including conducting cognitive interviews with actual English-and Spanish-speaking minor league players, sampling Non Opt-in class members for the main survey, creating a study website for respondents to use to access the survey, translating the survey into Spanish language, and setting up an outbound telephone campaign to support survey participation." Id. These measures were, among other things, intended to avoid self-interest bias, recall bias or non-response bias in the Main Survey results and/or allow Dr. Dennis to determine whether the survey results were affected by any of these forms of bias. See generally id. ¶¶ 3-12. Dr. Dennis concluded that the results of the Main Survey are a reliable measure of the hours worked by minor league players and that they are not infected by any of these forms of bias. Id. ¶¶ 7, 9, 47.

         On the question of self-interest bias, Dr. Dennis points to the fact that non opt-in minor leaguers made up 87.2% of the 7, 762 randomly sampled class members selected to receive the survey and that the majority of those who responded (66%) were non opt-ins. See id. ¶¶ 4, 41. In addition, to the extent that the percentage of opt-ins who responded relative to non opt-ins resulted in over-representation of the opt-ins, Dr. Dennis performed a statistical adjustment so that the opt-ins in the survey would represent the same share of the survey results as they do the total class, that is, 15%. Id. ¶¶ 18, 46. The high proportion of non opt-in survey respondents reduces the likelihood of self-interest bias, according to Dr. Dennis, because "[n]on Opt-ins have the lowest potential for self-interest bias as evidenced by their not having joined the lawsuit. Although they may be aware of the lawsuit, they have not expressed interest in joining or participating in the litigation." Id. ¶¶ 4, 13. At the same time, Dr. Dennis opines that "reliable surveys can be done with respondents who are also plaintiffs in a lawsuit." Id. ¶ 12. He cites The Reference Manual on Scientific Evidence (3d Edition) ("the Reference Guide") as the "authoritative guide to the acceptable use of scientific evidence in litigation, " noting that the Reference Guide "cites employee surveys as an example of litigation surveys conducted with the ‗appropriate universe‘ and again in the context of survey questionnaire design (p. 389)."

         Dr. Dennis also took measures to avoid recall bias in the Main Survey. Id. ¶ 4. First, he added "aided prompt" survey questions to "improve the accuracy of respondents‘ recall of time spent on baseball related activities." Id. ¶¶ 4, 33-38. He explains that these questions are designed to "cue" the respondent to trigger recall of past events, a technique that has been found to be effective in the literature on survey research methods in helping a respondent to recall events more accurately. Id. The aided recall questions used in the Main Survey related to housing, roommate status and transportation were asked in connection with each year in which the respondent participated in baseball-related activities. Id. ¶ 35. According to Dr. Dennis, the eight cognitive interviews he conducted led him to conclude that these aided prompt questions "were effective in stimulating the respondents to think about the reference period (i.e., the year that the baseball activity took place)." Id. ¶ 44.

         Dr. Dennis further states that he reduced the potential for recall bias by adjusting the spring training questions in the Main Survey. Id. ¶ 37. These questions had been flagged by Dr. Ericksen (and the Court) as being overly burdensome to the extent they asked players to recall the number of hours they worked for each week in which they participated in spring training. See Class Certification Order at 99 (citing Ericksen Decl. ¶¶ 36-38). In the Main Survey, Dr. Dennis instead asked players to answer questions about the times they arrived at and left the ballpark on game days and non-game days. August 4, 2016 Dennis Decl. ¶ 37. Dr. Dennis states, "[b]ecause the main survey questions asked the respondent to recall routines and daily schedules instead of an abstract number of hours worked in a week, the spring training questions then mirrored the structure of the other non-off-season questions that also place less recall burden on the respondents." Id. In support of this conclusion, he cites survey research literature that has found that "[w]ith respect to routine tasks, . . . recall is likely to be more accurate for situations that occur more regularly." Id. ¶ 31. He also points to deposition testimony and schedules produced by Defendants that he contends establish that the work of minor league players "tends to be predictable and based on routines, particularly for spring training, extended spring training, the regular season, and fall instructionals." Id. ¶ 32.

         Dr. Dennis also notes that because the Main Survey was conducted in July 2016, the most recent "survey modules included the 2016 reference year for both spring training and extended spring training, placing a lower recall burden on the respondents for those that participated in 2016." Id. ¶ 38. According to Dr. Dennis, "[s]ince 36% of respondents indicated they had participated in spring training earlier in 2016 and another 15% participated in 2015, a majority of the main survey respondents were recalling events that occurred as little as three to 16 months ago." Id.

         Dr. Dennis analyzed the results of the Main Survey to determine whether they were affected by self-interest bias or recall bias by identifying a "Control Group" of respondents for whom there was the lowest potential for these types of bias. Id. ¶¶ 5, 13-21. The Control Group consisted of respondents who met two criteria: 1) they had not opted in to the FLSA collective; and 2) they participated recently in baseball activity - either in 2015 or 2016. Id. He compared the survey results for the Control Group to the results based on all of the interviews and found that they were very similar, leading him to conclude that self-interest bias and recall error had little impact on the results. Id. ¶ 6. In particular, he found that the average hours worked for the Control Group was 17 minutes less than the hours worked estimate for the total sample. Id. According to Dr. Dennis, the difference was only 6 minutes for regular season hours at the ballpark for non-playing day away games and 9 minutes for home game days. Id. Even if this discrepancy were considered unacceptably high, the damages expert could use the data from the Control Group to avoid any self-interest or recall bias, Dr. Dennis opines. Id. at 21.

         Dr. Dennis also conducted a non-response analysis to ensure that there was no error in the Main Survey caused by low response rate. Id. ¶¶ 9, 22-25. He cites the Reference Guide in support of the opinion that "while ‗surveys may achieve reasonable estimates even with relatively low response rates, ‘ even surveys with high response rates still need to [be] examined since they ‗may seriously underrepresent‘ some portions of the population." Id. ¶ 8 (citation omitted). Dr. Dennis conducted his non-response analysis by using administrative data he obtained from to compare respondents and non-respondents with respect to age, the year they last played in the minor leagues for a major league team, and fielding position. Id. He also reviewed the database to ensure that there were at least ten completed interviews for each MLB franchise. Id. ¶ 9. Based on his analysis, Dr. Dennis concluded that "error was not introduced via nonresponse." Id.

         Dr. Dennis conducted two tests to validate the Main Survey data. Id. ¶ 26. First, he looked at a set of 85 documents, many of which are daily itineraries produced by Defendants, that contained information about start and end times, with about half referring to game days and half to non-game days. Id. From these documents Dr. Dennis "ascertained when the first and last activities of the particular workday were scheduled to occur, both for ‗anyone‘ and ‗everyone.‘" Id. Based on his analysis of these documents, Dr. Dennis concluded that the "documents align with the survey results." Id. ¶ 27. He explains his conclusion as follows:

Looking at game days, the data obtained from the validating documents do not include game durations or travel times to away games. Without including this time for game durations or travel, the average time spent performing activities on a spring training game day amounts to between 4.13 and 5.76 hours. . . . Given that deposition testimony indicates that the duration of a spring game is close to three hours, the documents therefore show that the average workday for a spring game day would be between roughly 7 and 8.5 hours, not including travel. The survey data indicated that respondents spent between 7.91 and 8.76 hours at the workplace on spring game days (depending on whether it was a home game or away game). This data therefore validates the survey results.


         Dr. Dennis acknowledges that "[o]n some measures, the survey data is somewhat higher than the data extracted from the validating documents." Id. In particular, the documents "yield a lower average number of hours than the survey data" for non-game-days during spring training and extended spring training." Id. He opines that this may be because the documents "do not include time spent changing into uniforms, time spent performing extra work, and often do not include time spent performing strength workouts." Id. He further suggests that "it is possible that minor leaguers perform more of this extra work and strength conditioning on non-game-days during these periods, which would explain the differences in the data." Id.

         Because fewer daily itineraries were produced for the championship season, Dr. Dennis conducted another validation test for that period. Id. ¶ 29. In particular, he "looked at the deposition testimony from Defendants‘ own witnesses to validate the survey data for the championship season." Id. According to Dr. Dennis, "[t]hese witnesses testified that players generally arrived to work between 3 and 4.5 hours before a night game, depending on whether the game was home or away." Id. While these estimates would "yield a smaller number of hours than the survey data yields, " Dr. Dennis opined, the difference would not be substantial. Id. Dr. Dennis suggests that "[a] conservative measure of the survey data, such as the tenth percentile, could be used if needed to more than account for any differences." Id.

         In sum, Dr. Dennis concludes that the Main Survey was conducted using a methodology that is consistent with generally accepted methods for survey research and that its results are reliable. Id. ¶ 47.

         C. The Motion for Reconsideration

         In their Motion for Reconsideration, Plaintiffs ask the Court to certify a set of classes that they contend will address the concerns expressed by the Court in the Class Certification Order. The proposed classes are defined as follows:

Florida Class: Any person who, while signed to a Minor League Uniform Player Contract, participated in spring training, instructional leagues, or extended spring training in Florida on or after February 7, 2009, and had not signed a Major League Uniform Player Contract before then.
Arizona Class: Any person who, while signed to a Minor League Uniform Player Contract, participated in spring training, instructional leagues, or extended spring training in Arizona on or after February 7, 2011, and had not signed a Major League Uniform Player Contract before then.
California Class: Any person who, while signed to a Minor League Uniform Player Contract, participated in the California League on or after February 7, 2010, and had not signed a Major League Uniform Player Contract before then.
California Waiting Time Subclass: Any California Class Member who played in the California League since February 7, 2010, but who is no longer employed by MLB or its franchises as a minor league player.

         Motion for Reconsideration at i-ii. Plaintiffs also propose a separate Rule 23(b)(2) injunctive relief class, defined as follows:

Any person who is a) signed to a Minor League Uniform Player Contract, b) has never signed a Major League Player Contract, and c) participates in spring training, instructional leagues, or extended spring training in Florida or Arizona.

Id. at ii. The proposed class representatives for each of these classes is listed in the Declaration of Garrett Broshuis in Support of Motion to Reconsider Regarding Class Certification ("Broshuis Decl."), Ex. E. Their participation in Arizona and Florida spring training, extended spring training and instructional leagues and in the California League, is set forth in Exhibit F to the Broshuis Declaration.

         Finally, Plaintiffs seek (re)certification of an FLSA collective and propose the following definition:

Any person who, while signed to a Minor League Uniform Player Contract, participated in the California League, or in spring training, instructional leagues, or extended spring training, on or after February 7, 2011, and who had not signed a Major League Uniform Player Contract before then.


         According to Plaintiffs, the "streamlined class structure" that they now propose will eliminate the problems associated with winter conditioning work because they no longer seek certification as to those claims. Id. at 1. Further, with respect to the California Class, Plaintiffs seek certification only as to the California League championship season, which they contend involves no interstate travel. Id. Moreover, Plaintiffs argue, for all the proposed classes the work at issue was performed only in a single state and therefore, the choice-of-law determination will be simplified; in particular, Arizona law will be applied to the training season work performed in Arizona, Florida law will be applied to the training season work performed in Florida, and California law will be applied to work performed in the California League. Id. at 1, 3-5.

         Plaintiffs also argue that their new Rule 23(b)(3) classes "eliminate concerns about the variations in the work class members performed." Id. at 1. This is because the "three proposed classes are focused exclusively on work class members performed as teams at team complexes, under the direct control and supervision of Defendants." Id. This means that an activity-by-activity inquiry will not be necessary and instead, the common question will be, when did the team‘s workday begin and end. Id. at 1, 6-10. This approach is consistent with the "whistle to whistle" measure of the workday that is applied under the "continuous workday" doctrine, Plaintiffs argue. Id. According to Plaintiffs, under this doctrine, all activities that occur during the workday are compensable. Id. They further assert that it is permissible to rely on the Main Survey to establish the average length of the workday and that that survey is sufficiently reliable to meet the requirements of Rule 702 and Daubert. Id. at 11-13. In light of Mt. Clemens and Tyson Foods, they assert, this evidence will allow a jury to draw "just and reasonable" inferences about when the work day began and ended for class members. Id. at 14-17.

         Plaintiffs also argue that differences in compensation among minor league players do not give rise to individualized issues that defeat certification because these variations go to damages rather than liability. Id. at 17-18. Plaintiffs acknowledge that the Court treated these variations as relating to liability in its Class Certification Order but contend that under the Ninth Circuit‘s decision in Torres v. Mercer Canyons, Inc., 835 F.3d 1125 (9th Cir. 2016), which this Court cited elsewhere in its opinion, this issue is more appropriately treated as one going to damages. Id.

         Plaintiffs further contend that the two main affirmative defenses that Defendants assert as to the class claims - the seasonal amusement or recreational establishment defense and the creative professional defense - do not raise sufficient individualized issues or manageability problems to preclude certification of their proposed classes. Id. at 19-21. As to the former, which applies only under Florida law and the FLSA, [2] Plaintiffs address the Court‘s suggestion that it might be "swamped" by the individual inquiries necessary to determine whether a multitude of "establishments" qualified for the exemption. Id. at 19 (citing Class Certification Order at 85). They point out that these inquiries rely on common evidence and therefore are not individualized in the sense that the issue must be addressed on a class-member-by-class-member basis. Id. at 20. In any event, they argue, the number of "establishments" at issue under the narrower class definitions they now propose is significantly reduced because there are "at most 15 facilities in Florida, 15 facilities in Arizona, and 10 facilities in California." Id.

         With respect to the creative professionals exemption, Plaintiffs argue that neither of the two prongs of the applicable test - the first relating to an individual‘s primary duties and the second setting a minimum compensation requirement of $455/week - requires individualized inquiries. Id. at 20-21. Plaintiffs note that the Court already concluded that there are no individualized inquiries as to the "primary duties" prong of the test but found that the "compensation" prong of the test would require individualized inquiries. Id. Plaintiffs argue that in fact, the second prong of the test also will not require individualized inquiries because there are employment and payroll records that can be used to determine whether any particular class member meets this requirement. Id. at 21 (citing Minns v. Advanced Clinical Employment Staffing LLC, No. 13-CV-03249-SI, 2015 WL 3491505, at *8 (N.D. Cal. June 2, 2015)). Plaintiffs also point out that the Court already found that any individualized inquiries associated with this defense would not, on their own, be sufficient to defeat class certification. Id. (citing Class Certification Order at 86).

         Plaintiffs contend their more narrowly crafted classes also satisfy all of the requirements of Rule 23(a) and solve the ascertainability problem identified by the Court in its Class Certification Order. Id. at 21-22. In particular, Plaintiffs argue that because they are no longer asking to certify any classes to pursue the winter conditioning claims, the problems associated with determining who is a member of the State Classes based on that work is eliminated. Id.

         Plaintiffs also argue that the Court should certify its proposed Rule 23(b)(2) class to pursue injunctive relief. Id. at 22-23. They contend the problem with standing identified by the Court has been remedied by the (requested) intervention of four current minor league players. Id. at 22. They further assert that in order for a Rule 23(b)(2) to be certified, Plaintiffs need only establish that Defendants have "acted or refused to act on grounds that apply generally to the class" and need not demonstrate that they have suffered the same injury. Id. (citing Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010)). Plaintiffs assert this requirement is met, citing Defendants‘ compensation policies, including failure to pay wages outside of the championship season and failure to pay overtime during the championship season. Id. at 23. According to Plaintiffs, "[t]he adjudication of the legality of these practices will not only resolve a central issue ‗in one stroke‘ . . ., it will conclusively determine whether the (b)(2) plaintiffs and class members are entitled to the injunctive and declaratory relief they seek, namely, an order compelling Defendants to pay current minor leaguers in compliance with applicable state wage laws." Id. (citation omitted).

         With respect to the requirement that any monetary relief sought by a Rule 23(b)(2) class must be incidental to the injunctive relief sought by that class, Plaintiffs contend this issue is not a concern because the (b)(2) class they propose is requesting only injunctive relief. Id. at 23 (citing 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)). According to Plaintiffs, courts have found that "[i]t is permissible to seek both a damages class under Rule 23(b)(3) and a separate injunctive relief class under Rule 23(b)(2)" and when such an approach is taken it is not necessary to address whether damages are "incidental" to injunctive relief. Id. (citing 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); Ellis v. Costco Wholesale Corp., 285 F.R.D. 492, 503, 536-37 (N.D. Cal. 2012); Aho v. AmeriCredit Fin. Servs., Inc., 277 F.R.D. 609, 619, 623 (S.D. Cal. 2011)).

         Even if the Court declines to certify Plaintiffs‘ proposed 23(b)(2) and (b)(3) classes, Plaintiffs request that the Court certify a Rule 23(c)(4) class to address common issues, including the following:

• Whether minor leaguers are employees under the wage-and-hour laws, and, relatedly, whether MLB jointly employs them;
• Whether minor leaguers are performing "work" during the training seasons and the championship season;
• Whether the creative artist exemption applies to minor leaguers under Florida and California law;
• Whether the seasonal and amusement exemption applies under Florida law.

Id. at 24-25.

         Finally, Plaintiffs argue that the FLSA collective should be recertified "with the exception that Plaintiffs propose limiting the Collective in the same manner as their proposed narrowing of the Rule 23 classe[s] (ie., eliminating the winter offseason claims and limiting the Collective to minor leaguers who participated in spring training, extended spring training or instructional leagues in Arizona or Florida or who worked in the California League.)." Id. at 25.

         In their Opposition brief, Defendants argue that Plaintiffs‘ proposal does not remedy any of the deficiencies identified by the Court in its Class Certification Order and that Plaintiffs have even introduced new problems relating to certification of their proposed classes. Opposition to Motion for Reconsideration at 1. First, Defendants contend that even the more limited classes proposed by Plaintiffs will require the Court to conduct individualized choice of law inquiries to compare the relative interests of the states that might potentially have an interest in applying their laws, which will depend on the circumstances of each individual player. Id. at 1, 3-9. They reject Plaintiffs‘ assertion that the law of the situs where the relevant work was performed can be applied to each of the three proposed Rule 23(b)(3) classes. Id. at 5.

         With respect to the Arizona and Florida Classes, Defendants assert that the players who participate in spring training and instructional leagues typically do not reside in these states and spend only about four weeks there during spring training. Id. at 6. Under these circumstances, they contend, there will be other states that have an interest in applying their law and therefore, a balancing test will have to be applied for each player in the class. Id. at 6-7. Similarly, they assert, there will be choice of law questions requiring individualized inquiries as to the California Class. Id. at 7-9. Defendants contend the application of California law to these class members should not be assumed, given that the majority of MLB Clubs with affiliates in the California League are not based in California and the putative members of this class spend varying amounts of time in the California League - some as little as a single day. Id. at 8. Defendants support their argument with an expert declaration by Mr. Paul K. Meyer, who reviewed and analyzed player transaction records for the 11 MLB Clubs that had a minor league baseball affiliate in the California League between the 2010 and 2015 Championship Seasons. Declaration of Paul K. Meyer in Support of Defendants‘ Opposition to Plaintiffs‘ Renewed Motion for Class and Collective Certification Under Federal Rule of Civil Procedure 23 and the FLSA ("Meyer Decl.") ¶ 11.

         According to Mr. Meyer, he analyzed over 469, 000 data rows of player transaction history information. Id. The "detailed transaction records contain information on the affiliates and/or MLB Clubs to which a player was assigned, including when the player was transferred from one affiliate and/or MLB Club to another." Id. ¶ 12. They also contain information about when a player: 1) signed a Major or Minor League contract; 2) was placed on the disabled list; 3) was placed on rehabilitation assignment; 4) was placed on an inactive list; or 5) was released by a Club. Mr. Meyer found that a total of 2, 113 players were assigned to affiliates in the California League between the 2010 and 2015 championship seasons. Id. ¶ 15. He further found that between 68% and 75% of those players played for affiliates outside of California during the same championship season in which they played for the California League. Id. ¶¶ 16-17. These players spent varying amounts of time playing in California. Id. For example, for the 2010 championship season, Mr. Meyer found a range of between one day and 151 days, with approximately 11% of the 364 players who were assigned to the California League that season spending one week or less playing in California. Id. ¶ 19.

         Mr. Meyer also found that of the players who were assigned to play in the California League and other affiliates outside of California in the same season, over 50% spent more time assigned to affiliates outside of California than they spent assigned to play for the California League. Id. ¶¶ 20-21. He also performed an analysis to determine how many different states putative class members were assigned to during the championship season in addition to the California League, both individually and collectively. Id. ¶¶ 22-24. He found that "many players played in multiple states during the same season" and that between 2010 and 2015 putative class members played for between 27 and 33 different states during the same seasons in which they were assigned to the California League. Id.

         Finally, Mr. Meyer analyzed the transaction histories to determine what percentage of the California League were first-year players. Id. ¶¶ 25-26. He concluded that less than five percent of the California League players were first year players during the period of 2010 and 2015. Id. Based on Mr. Meyer‘s findings Defendants contend "it is clear that there is no basis for the global application of California law" because "[t]he players‘ ephemeral contacts with the state of California must always be balanced against the interests of the other states where they, for example, reside, play, train, and where their MLB Club is located." Opposition at 8-9.

         Next, Defendants argue that Plaintiffs have not addressed the problem that there is a "plethora of individualized issues requiring resolution in order to determine the amount of compensable time." Id. Defendants reject Plaintiffs‘ assertion that they have eliminated this problem by "focus[ing] only on team work periods" and that their Main Survey "provides reliable representative evidence that eliminates the need for player-by-player review." Id. Instead, they argue that individualized liability issues still predominate, despite Plaintiffs‘ reliance on the "continuous workday" doctrine and "representative evidence" that allegedly demonstrates "average" time players spent working based on responses to the Main Survey. Id. at 1-2, 9-16.

         With respect to Plaintiffs‘ reliance on the "continuous workday" doctrine, Defendants contend this theory does not help Plaintiffs because there "is no common continuous workday;" instead, they assert, "[d]etermining what constitutes a ‗continuous workday‘ for a single player depends not only on when the day begins and ends [but] also requires an individualized analysis of what activities are ‗principal‘ and ‗integral and indispensable‘" in order to determine whether they are "compensable at all or part of a continuous workday." Id. at 10 (citing Bryant v. Service Corp. Int'l, No. C 08-01190 SI, 2011 WL 855815 (N.D. Cal. Mar. 9, 2011)).

         Defendants also reject Plaintiffs‘ assertion that they can use the Main Survey results to provide representative evidence of a "common workday for all minor league players." Id. at 11. According to Defendants, even if the Main Survey survived scrutiny under Daubert, it cannot properly be used for this purpose because it does not take into account variations in player circumstances. Id. Defendants argue that the Main Survey does not address "team related activities, " contrary to Plaintiffs‘ assertions, pointing out that it does not ask minor league players about the specific activities in which they engaged while at the ballpark and only asked them to recall their "most often" arrival and departure times. Id. Consequently, they contend, the Main Survey does not provide evidence of "hours worked" at all. Id. at 12. Id. In addition, they argue, relying on "averaging" will result in significantly understating or overstating the players‘ hours because of the variations among players. Id.

         Defendants offer two expert declarations that address the variations in responses to the Main Survey, one by Dr. Jonathon Guryan and another by Dr. Denise M. Martin. See Declaration of Jonathon Guryan, Ph.D. in Support of Defendants‘ Opposition to Plaintiffs‘ Renewed Motion for Class and Collective Certification under Rule 23 and the FLDA, Docket No. 749 ("Guryan Decl."); Declaration of Denise N. Martin, Ph.D. in Support of Defendants‘ Opposition to Plaintiffs‘ Renewed Motion for Class and Collective Certification under Rule 23 and the FLSA, Docket No. 750 ("Martin Decl."). Dr. Guryan opines that there is substantial variation among respondents to the Main Survey as to arrival and departure times for each of the types of day at issue (e.g., non-game days, home game days, away game days) and between the hours reported at the 10th percentile and the 90th percentile. Guryan Decl., ¶ 8. He finds that as a result of these variations, reliance on the "average" hours worked could result in significantly overstating or understating the hours worked for a substantial portion of respondents. Id. Dr. Guryan also finds significant differences for hours reported across Clubs and from year to year. Id. Finally, he finds significant variations even among players who played for the same Club in the same year, which he contends renders the Main Survey unreliable for proving classwide damages. Id. ¶¶ 11-16.

         Dr. Martin updates her earlier opinions with regard to whether the results of Dr. Dennis‘s survey (previously, the Pilot Survey, now the Main Survey) can be used in the "formulaic model proposed by Dr. Kriegler to generate a reliable classwide estimate of the number of ‗hours worked‘ . . . and, therefore, allow determination of the extent to which each player was not paid at least the applicable minimum wage and/or worked uncompensated overtime." Martin Decl. ¶ 6. Dr. Martin concludes that they cannot. Id. ¶ 8. First, she agrees with Dr. Ericksen that recall and self-interest bias, combined with respondent burden, will cause the estimate of hours worked derived from the Main Survey to be inflated. Id. ¶ 9. She further opines that variability among responses as to arrival and departure times is a reflection of the discretionary activities in which players engage before and after team-related activities; to the extent the Main Survey results include these activities, "the inclusion of such hours in any formulaic model would inflate the estimate of any ‗hours worked‘ to an unknowable degree." Id. ¶¶ 11, 19-30.

         Dr. Martin also rejects the validation tests conducted by Dr. Dennis as having "no value." Id. ¶ 12. This is because the schedules upon which Dr. Dennis relied were merely "aspirational and do not reflect what happened on a given day, " according to Dr. Martin. Id. In any event, she contends, any test to validate the results of the Main Survey that used the schedules should have compared the survey responses of players on individual teams to see if the players of teams with longer scheduled hours actually reported longer hours. Id. Dr. Martin states that she conducted such an analysis and found no such correlation. Id. ¶¶ 12, 31-39.

         Dr. Martin opines that the unreliability of Dr. Dennis‘s survey would also render any "formulaic damages model" that used these results unreliable and that no such model "could repair the infirmities embodied in the survey responses." Id. ¶ 14, 40-41. She bases this opinion on the fact that the Main Survey "is Plaintiffs‘ proposed source of 100% of the hours for spring training, extended spring training and instructional league, as well as all of the pre- and post-game hours for the Championship season." Id. ¶ 40.

         Next, Dr. Martin challenges Plaintiffs‘ assertion that "standardized ‗working hours‘ during spring training, extended spring training, instructional league and standardized pre- and post-game hours during the championship season were required by the Clubs." Id. ¶ 42. She opines that the Main Survey results do not support this conclusion but instead show "pronounced variability exists in the survey responses regarding hours reportedly spent at the ballpark, even for players on the same team." Id. This variability is indicative of the discretion players have as to their hours, she opines, giving rise to the need to conduct individualized inquiries as to whether the activities they performed at the ballpark were voluntary or required by the Clubs. Id. According to Dr. Martin, reliance on an average or use of 10th percentile data as a measure of hours worked would "mis-estimate liability and damages for many, if not most, individual players." Id. ¶ 43.

         Finally, Dr. Martin opines that the data Dr. Dennis obtained from the Main Survey is distinguishable statistically from the data that was found by the Supreme Court to be acceptable in Tyson Foods v. Bouaphakeo. Id. ¶¶ 45-50. She concedes that she is "not an expert in the Tyson matter" but states that she has "reviewed the reports in that matter, as well as the decision ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.