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Gomez v. J. Jacobo Farm Labor Contractor, Inc.

United States District Court, E.D. California

November 5, 2019

MARISOL GOMEZ and IGNACIO OSORIO, Plaintiffs,
v.
J. JACOBO FARM LABOR CONTRACTOR, INC. Defendant.

          ORDER GRANTING, IN PART, AND DENYING, IN PART, PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (DOC. NOS. 108, 108-1)

         I. Introduction

         In this lawsuit a farm labor contractor is being sued by two of its employees for violating California's wage-and-hour laws and the federal Migrant and Seasonal Agricultural Workers Protection Act of 1983 (“MAWPA”). The two employees are Plaintiffs Marisol Gomez and Ignacio Osorio (collectively “Plaintiffs”). The farm labor contractor is Defendant J. Jacobo Farm Labor Contractor, Inc., which is not to be confused with Javier Jacobo, who is the president of J. Jacobo Farm Labor Contractor Inc. For clarity, the Court will refer to J. Jacobo Farm Labor Contractor, Inc. as “Defendant, ” whereas the Court will refer to Javier Jacobo by his full name.

         Before the Court is Plaintiffs' motion for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. See Doc. No. 108. For the reasons discussed herein, Plaintiffs' certification motion will be granted, in part, and denied, in part.

         II. Facts

         According to the Court's review of the parties' briefs, exhibits, and prior filings on the docket, the facts for purposes of adjudicating the certification motion are as follows. See In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 313 (3d Cir. 2008) (“Although the district court's findings for the purpose of class certification are conclusive on that topic, they do not bind the fact-finder on the merits.”) (emphasis added).

         Defendant is a farm labor contractor. This means that Defendant employs farm workers to work on farms that are owned by third-parties. The president of Defendant is Javier Jacobo.

         At least 3, 267 employees were employed by Defendant between December 20, 2011, and January 6, 2018. During that time, Defendant sent employees to work on seventy-seven different farms, although it is not clear to the Court which employees worked at each of the seventy-seven farms. On average, each of the 3, 267 employees worked at 2.35 farms during the employee's course of employment with Defendant. The number of employees that worked at each of the farms varied from farm to farm. For example, two employees worked at the Bobby Salazars farm, eighty-four employees worked at the Hagopian Farms, one hundred seventy-seven employees worked at the Raghibir Bath farm, and four hundred ten employees worked at the Raymoles Dinuba Duke farm. Some of the employees worked as field workers. Some field workers did pruning, thinning, and picking; some picked grapes and olives; and some worked with blueberries.

         Defendant placed each employee into one of its multiple work “crews.” The work crews were led by a foreperson. Some forepersons took instructions from Defendant. Some employees worked with foreperson Baltazar Gonzalez, and some employees worked with Pedro Cisneros, and some employees do not remember which foreperson they worked with.[1] Beyond that, it is unclear to the Court the number of crews used by Defendant, the number and identities of Defendant's other forepersons, and the number and (with a few exceptions) identities of employees assigned to each crew and foreperson. It is also unclear to the Court whether and to what extent the employees transferred from crew to crew during the course of their employment.

         Some forepersons did not strictly regulate when or how often or for how long the employees could take breaks. These forepersons allowed the employees in their crew to decide when to take breaks and the length of the breaks. For example, Plaintiff Marisol Gomez testified in her deposition that her foreperson told her to take breaks whenever she felt heat exhaustion or sick, and her foreperson never told her to not take breaks. See Doc. Nos. 91-2, 109-1. Gomez affirmed in her deposition that she was permitted to take breaks at work “at any time.” Doc. No. 91-2 at 24. Similarly, Plaintiff Ignacio Osorio testified in his deposition that he knew that lunch breaks were available to him and he was permitted to take rest breaks. See Doc. No. 110-2. The testimony from Osorio and Gomez harmonizes with the testimony of Javier Jacobo, the president of Defendant, who declared that Defendant “instructs it employees that they may take rest breaks whenever they would like and that they may take meal breaks whenever they would like.” Doc. No. 91-6.

         It is not clear to the Court the number and identities of the forepersons who instructed their employees to take meal breaks and/or rest breaks whenever they wanted. Similarly, it is not clear to the Court the number and identities of the forepersons, if any, who precluded their employees from taking meal breaks and/or rest breaks whenever they wanted or, alternatively, precluded their employees from taking meal breaks and/or rest breaks altogether.

         With respect to meal breaks, some employees - and likely most employees - were provided with thirty-minute lunch breaks. It is true that some employees declared - in boilerplate or “cookie-cutter” declarations[2] - that they “do not recall” having a thirty-minute meal break “scheduled” into their shift, including during the first five hours of their shift. See, e.g., Doc. Nos. 108-7, 108-8, 108-9. Ignacio Osorio was one such employee who made such a declaration. See Doc. No. 108-6. But some employees, including Osorio himself and Marisol Gomez, knew that thirty-minute lunch breaks were available to them, and these employees regularly took the provided lunch breaks. For example, despite Osorio's declaration suggesting otherwise, Osorio testified in his deposition that he knew that thirty-minute lunch breaks were available to him and his fellow employees. See Doc. No. 110-2. Osorio testified that the lunch breaks were available at “noon” or “noontime, ” and Osorio referred to these lunch breaks as “noontime breaks.” Id. Osorio testified that “it was an obligation to take a lunch break” and “it is an order you have to take the 30 minutes.” Id. More specifically, Osorio testified that the foreperson would tell the employees, “Everybody go out” to take the lunch break. Id. Similarly, Gomez testified in her deposition that thirty-minute lunch breaks were provided to her and her fellow employees. Gomez testified that her foreperson “always” told her to take lunch breaks. Doc. No. 109-1. Gomez testified that she would “always” take her lunch break at 10:00 a.m. Doc. No. 91-2 at 67. Gomez testified that all employees in her crew took lunch breaks every day. Id. at 70. Gomez testified that she could take lunch breaks if she wanted to. This testimony from Gomez and Osorio harmonizes with the declaration of Javier Jacobo, who declared that Defendant “instructs it employees that they may take rest breaks whenever they would like and that they may take meal breaks whenever they would like.” Doc. No. 91-6.

         Some employees believed that they could elect to take or not take their lunch break. Some - and likely most - employees always elected to take their lunch breaks, see Doc. No. 91-2 at 70 (Marisol Gomez testifying that “all” employees in her crew took lunch breaks “every day”), whereas other employees elected to not take their lunch breaks. Some employees could leave the farm during their lunch break to get food if they had enough time to do so. Some employees would use the entire thirty-minute allotment of time on their lunch break, whereas other employees would elect to spend only twenty or twenty-five minutes on their lunch break. For example, some employees would eat quickly so that they could get back to work and make more money, and some employees believed that it was their decision whether to cut their lunch break short to go back to work.

         To the extent that an employee was not provided with or not permitted to take a thirty-minute lunch break, the failure to provide or permit the lunch break was due to the employee's particular foreperson or other unique variables, see, e.g., Doc. No. 110-2 (deposition of Ignacio Osorio) (“Q. During the time that you worked for Jacobo you were still given a half-hour break for lunch, weren't you? A. So if it's by contract or piecework - we have the right to take the breaks. It depended a lot on if we were getting out earlier, if we were staying late, it depended on the season, a lot depended on the climate.”), but the failure was not due to Defendant's company-wide policies. Similarly, the timing of the employee's lunch break - i.e., when the lunch break occurred during the shift - appears to have been determined to some extent by unique variables, including the particular foreperson. For example, Osorio testified in his deposition that the timing of the lunch break “depends” because “each crew leader has a different schedule.” Id.

         With respect to rest breaks, some employees were provided with and permitted to take rest breaks throughout their shift. It is true that one employee, Antonio Mejia, declared that “[i]t was the practice of [Defendant] to not permit workers to take 10 minute rest breaks, ” Doc. No. 108-14, but Mejia's declaration is contradicted by significant evidence showing that many employees were permitted to take rest breaks during their shifts and did, in fact, take rest breaks. For example, in Mejia's own declaration, Mejia admits that he and his fellow employees took rest breaks. Id. (“We were not separately paid for the rest breaks that we took during the course of the work day.”). Similarly, Ignacio Osorio testified in his deposition that he was allowed to take breaks and, in fact, took ten-minute rest breaks, including a rest break at around 8:30 a.m. or 9:00 a.m. in the morning and a rest break after lunch at around 2:00 p.m. or 2:30 p.m. See Doc. No. 110-2. Additionally, as previously noted, Marisol Gomez testified in her deposition that her foreperson told her to take breaks whenever she felt heat exhaustion, sick, or “anytime” she wanted to take a break. Doc. Nos. 91-2, 109-1. Gomez testified that her foreperson never told her to not take breaks, and Gomez testified that employees were told “right from the beginning when they give us the classes” to take breaks. Id. Gomez testified that many employees chose to take breaks, whereas other employees chose to not take breaks so that they could keep working and making more money. Some crews were told by their foreperson that the crew would finish its work faster if the employees did not take breaks. See Doc. No. 108-14.

         To the extent that an employee was not provided with or permitted to take a rest break or did not take an available rest break, such was due to the employee's particular foreperson or the employee's particular preferences, but it was not due to Defendant's company-wide policies.

         With respect to the length of the employees' shifts, the lengths of the shifts varied. Sometimes some employees worked shifts lasting longer than six hours, and sometimes some employees worked shifts lasting longer than ten hours, and sometimes some employees worked closer to eight-hour or nine-hour shifts. Some employees finished their shifts at different times depending on the day. For example, some days some employees would start their shift at 6:00 a.m. and other days at 7 a.m., and then some days the shift would finish at 4:00 p.m. and other days at 5:00 p.m. Some days some employees were sent home at 1:30 p.m. or 2:00 p.m. because it was too hot outside to continue working. Some employees do not recall a shift going past 4:00 p.m. in 2015. Some employees would go home after their shift ended but then sneak back onto the farm later in the day or evening to work more to make more money, although this was prohibited by the crew leaders. The foregoing variety of shift-times and shift-lengths was due, to a significant extent, by unique variables, including the preferences of the particular foreperson, the crop season, and the weather.

         With respect to pay, Defendant paid some of its employees on a piece-rate basis. Of Defendant's 3, 267 employees, 2, 868 employees (or 87.8%) were paid on a piece-rate basis at some point during their employment. The pay was made by check. Defendant issued at least 18, 376 paychecks to the 3, 267 employees between December 20, 2011, and January 6, 2018. Of those paychecks, 12, 398 paychecks (or 67.5%) indicated that they were for piece-rate work. Of the 12, 398 paychecks that indicated that they were for piece-rate work, 9, 488 paychecks (or 76.5%) did not include payment for rest breaks. The 9, 488 piece-rate checks that did not include payment for rest breaks were paid to 2, 320 (or 80.1%) of the 2, 868 piece-rate employees. Those 2, 320 employees worked at 59 (or 76%) of the 77 farms.

         Some but not all employees were retroactively paid by Defendant by check for previously unpaid break and non-productive time. Approximately 409 employees received minimum wage “true-ups.” It appears that Defendant has payment records identifying the employees who were given retroactive “safe harbor” payments and minimum wage true-ups.

         With respect to wage statements, Defendant provided its employees with wage statements. Some employees' wage statements failed to include information about rest periods, rest payments, payments for other non-productive time, Defendant's address (other than Defendant's P.O. box), and the address of the farms where the employees performed their work. There is no indication that Defendant's system or practices for wage statements differed from employee to employee or from crew to crew. This is to say, Defendant universally applied the same system and practices for wage statements to all employees.

         With respect to Defendant's payroll records and system, Defendant kept payroll records for its employees. Defendant used a software called Datatech to process and maintain payroll records. Defendant recorded in Datatech the payments and paychecks that Defendant made to its employees. Defendant recorded in Datatech whether payments to employees were for piece-rate work. Defendant recorded in Datatech the farms where each employee worked within a pay period. Defendant recorded in Datatech some rest break information of its employees. For example, Datatech information reveals that of the 18, 376 paychecks issued to the 3, 267 employees between December 20, 2011, and January 6, 2018, 2, 910 paychecks (or 23%) contained rest break pay whereas the other 9, 488 paychecks (or 76.5%) did not include any rest break pay. Defendant did not record in Datatech any meal period information of its employees. Information within Datatech indicates that Defendant made safe harbor payments to some, but not all, employees.

         With respect to a timekeeping system, Defendant did not maintain a timekeeping system whereby employees could clock in and out for work periods, meal periods, and rest periods. Jacobo did not keep any documents related to employee time cards, employee work schedules, and employee rest break schedules.

         The original complaint against Defendant was filed in September 2015 by Marisol Gomez, but not Ignacio Osorio. The complaint was amended in August 2018 to add Osorio as a named plaintiff. The first amended complaint, which is the operative complaint, pleads the following nine causes of action against Defendant:

         1) MAWPA violations: Defendant violated its employees' rights under MAWPA, 29 U.S.C. § 1801 et seq., by:

a. providing false and misleading information regarding terms and conditions of employment;
b. violating the terms of Plaintiffs' working arrangements; c. failing to pay wages when due; and d. failing to provide accurate itemized written statements.

         2) Minimum wages: Defendant failed to pay minimum wages to its employees in violation of Cal. Lab. Code §§ 510, 1194, 1194.2, 1197, and California Industrial Welfare Commission (“IWC”) Wage Order Nos. 8, 13, 14, Cal. Code Regs. tit. 8, §§ 11080, 11130, 11140.

         3) Overtime wages: Defendant failed to pay overtime wages to its employees in violation of Cal. Lab. Code §§ 510, 1194, 1194.2, and IWC Wage Orders Nos. 8, 13, 14.

         4) Meal periods: Defendant failed to provide timely meal periods to its employees or pay additional time to its employees in lieu of providing meal periods in violation of Cal. Lab. Code §§ 226.7, 512, and IWC Wage Orders 8, 13, 14.

         5) Rest periods: Defendant failed to provide timely and complete rest periods to its employees or pay additional wages to its employees in lieu of providing rest periods in violation of Cal. Lab. Code §§ 226.7, 512, and IWC Wage Orders 8, 13, 14

         6) Wages upon termination or resignation: Defendant failed to pay wages to its terminated or resigned employees in violation of Cal. Lab. Code §§ 201, 202, and 203.

         7) Itemized wage statements: Defendant failed to issue properly itemized wage statements to its employees in violation of Cal. Lab. Code §§ 226(B), 1174, 1175.

         8) Unfair business competition: Defendant engaged in unfair business competition in violation of Cal. Bus. & Prof. Code §§ 17200 et seq. by engaging in the foregoing wage-and-hour violations.

         9) PAGA relief for California Labor Code violations: Due to Defendant's foregoing violations of the California Labor Code, the employees are entitled to relief pursuant to California's Private Attorneys General Act of 2004 (“PAGA”), Cal. Lab. Code §§ 2698 et seq.

         In November 2018, a paralegal working for Defendant's counsel visited the “PAGA search database” on the website of the State of California Department of Industrial Relations. Doc. No. 109-2. The paralegal, Patricia Morrison, searched for PAGA claims filed against Defendant, but Morrison saw no search results or records on the website indicating that a PAGA claim had been filed against Defendant. Similarly, Morrison searched for PAGA claims filed by Plaintiffs, but Morrison saw no search results or records on the website indicating that a PAGA claim had been filed by the Plaintiffs.

         III. Plaintiffs' Motion for Class Certification

         Plaintiffs move for certification of one “overarching” class and six subclasses, as follows:

Overarching Class: All individuals who have been employed or are currently employed, by Defendant J. Jacobo Farm Labor Contractor Inc. as a non-exempt “field worker” or agricultural laborer who worked at any time from September 30, 2011 to the present.
Piece Rate Rest Period Subclass: All individuals who have been employed, or are currently employed, by Defendant as a non-exempt “field worker” or agricultural worker, who worked on a piece rate basis at any time from March 17, 2011[3] up to the present and were not separately compensated for rest periods during their piece rate shifts.
Meal Period Subclass: All individuals who have been employed, or are currently employed, by Defendant as a non-exempt agricultural worker, any time from September 30, 2011 to the present, for whom a meal period was not recorded.
Inaccurate/Incomplete Wage Statement Subclass: All individuals who have been employed, or are currently employed, by Defendant as a non-exempt “field worker” or agricultural worker, any time from September 30, 2011 to the present, who received a wage statement that: 1) did not have the address of the employer J. Jacobo, 2) did not provide the full name and/or address of the growers for which work was done, and/or 3) due to the violations claimed herein, received an inaccurate itemized wage statement by listing either: a) false gross and net wage earned amounts or 2) failed to provide the amount of hours worked without compensation.
AWPA Subclass: All individuals who have been employed, or are currently employed, by Defendant as a non-exempt “field worker” or agricultural worker, any time from September 30, 2011 up to the present, who, due to the violations claimed herein, were not paid wages due or provided employment consistent with the terms of the employee's “working arrangements.”
Section 17200 Subclass: All individuals who have been employed, or are currently employed, by Defendant as a non-exempt “field worker” or agricultural worker, any time from September 30, 2011 up to the present, who, due to the violations claimed herein, were employed under “unlawful or unfair business acts or practices.”
Final Paycheck Subclass: All individuals who have been employed, or are currently employed, by Defendant as a non-exempt “field worker” or agricultural worker, any time from September 30, 2011 up to the present, who were not paid all wages due when they were laid off, discharged or quit each season as required by the California Labor Code.

         Plaintiffs propose that Ignacio Osorio be appointed as the class representative and Stan Mallison, Hector Martinez, Mario Martinez, and Edgar Aguilasocho be appointed as class counsel.

         IV. Discussion

         1. Legal standard for Rule 23 class certification

         A class action is a procedural mechanism that allows for representative litigation. This means that one or more class members may “litigate on behalf of many absent class members, and those class members are bound by the outcome of the representative's litigation.” Newberg on Class Actions § 1:1 (5th ed.) (citing Supreme Tribe of Ben Hur v. Cauble, 255 U.S. 356, 363 (1921)). Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure, which imposes a two-step process in deciding whether a class may be certified.

         The first step under Rule 23(a) asks whether the moving party demonstrated that the proposed class action satisfies each of the following four requirements:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a)(1)-(4). If the proposed class action satisfies the forgoing four requirements of Rule 23(a), then the second step asks whether the proposed class action satisfies the requirements of Rule 23(b)(1), [4] Rule 23(b)(2), or Rule 23(b)(3). Rule 23(b)(2) requires that “the party opposing the class 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.” Fed.R.Civ.P. 23(b)(2). Rule 23(b)(3) requires that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3).

         The movant bears the burden of affirmatively demonstrating to the district court through evidentiary proof that the proposed class action meets the requirements of Rule 23(a) and Rule 23(b). Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). Federal courts throughout the country require the movant to demonstrate by a preponderance of the evidence that class certification is appropriate. Newberg on Class Actions § 7:21 (5th ed.) (citing cases, including Martin v. Sysco Corporation, 325 F.R.D. 343, 354 (E.D. Cal. 2018) (“While Rule 23 does not specifically address the burden of proof to be applied, courts routinely employ the preponderance of the evidence standard.”)).

         In order to be “satisfied” that the class meets the prerequisites of Rule 23(a) and fits within one of the categories of Rule 23(b), the district court must conduct a “rigorous analysis.” General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982). The rigorous analysis may include “prob[ing] behind the pleadings, ” Comcast Corp., 569 U.S. at 33, and may also “entail overlap with the merits of the plaintiff's underlying claim, ” and this is because the analysis of Rules 23(a) and 23(b) “generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action.” Id. at 34.

         “[I]n evaluating a motion for class certification, a district court need only consider material sufficient to form a reasonable judgment on each Rule 23(a) requirement.” Sali v. Corona Reg'l Med. Ctr., 909 F.3d 996, 1005 (9th Cir. 2018) (emphasis added). This means that “a district court is not limited to considering only admissible evidence in evaluating whether Rule 23 's requirements are met.” Id Nonetheless, “the district court need not dispense with the standards of admissibility entirely.” Id at 1006. Rather, the district court should analyze the “persuasiveness” of the evidentiary proof presented at the class certification stage and “may consider whether the plaintiffs proof is, or will likely lead to, admissible evidence.” Id

         In evaluating expert testimony that supports class certification, the “district court should evaluate admissibility under the standard set forth in Daubert. But admissibility must not be dispositive. Instead, an inquiry into the evidence's ultimate admissibility should go to the weight that evidence is given at the class certification stage.” Id (citations omitted). In other words, the court's evaluation of the evidence must focus on the persuasiveness of the evidence, for which admissibility is a factor but is not dispositive. See id; Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011).

         If a court decides to certify a class, the court must issue a certification order. Fed.R.Civ.P. 23(c)(1)(A)-(B). The certification order “must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).” Id

         2.Rule 23(a) requirements

         A. Ascertainable class

         Rule 23 implicitly requires the proposed class to be ascertainable by reference to objective criteria, at least for class certification under Rule 23(b)(3). See Marcus v. BMW of North America, LLC, 687 F.3d 583, 592-93 (3d Cir. 2012); Jones v. ConAgra Foods, Inc., Case No. 12-cv-1633, 2014 WL 2702726, *8 (N.D. Cal. 2014); Lilly v. Jamba Juice Co., 308 F.R.D. 231, 236 (N.D. Cal. 2014); Newberg on Class Actions § 3:1 (5th ed.). While courts have “ascribe[d] widely varied meanings” to the term “ascertainability, ” Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1124 (9th Cir. 2017), there are three linguistic formulations commonly used to express the test for definiteness:

[F]irst, that the class must be “precise, objective, and presently ascertainable”; second, that the class must be “adequately defined and clearly ascertainable”; and third, that the class can be ascertained “by reference to” or “based on” “objective criteria.”

Newberg on Class Actions § 3:3 (5th ed.) (citations omitted). The ascertainability requirement “protects absent plaintiffs in two ways - by enabling notice to be provided where necessary and by defining who is entitled to relief; and a definable class protects defendants by enabling a final judgment that clearly identifies who is bound by it.” Id. at § 3:1. The movant for class certification bears the burden of sufficiently pleading a sufficiently ascertainable class. See Whitaker v. Bennett Law, PLLC, Case No. 13-cv-3145, 2016 WL 4595520, at *1 (S.D. Cal. 2016); Brazil v. Dell Inc., 585 F.Supp.2d 1158, 1167 (N.D. Cal. 2008); Newberg on Class Actions § 3:3 (5th ed.). While the ascertainability requirement provides for an “objectively ascertainable” class, the Ninth Circuit does not require that the proposed class also be “administratively ascertainable.” Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1123-26 (9th Cir. 2017). “Administrative feasibility means that identifying class members is a manageable process that does not require much, if any, individual factual inquiry.” Newberg on Class Actions § 3:3 (5th ed.).

         Here Defendant does not argue that the overarching class is not ascertainable, and the Court concludes that the overarching class is sufficiently ascertainable, with one exception. Plaintiffs' proposed overarching class is defined as follows:

Overarching Class: All individuals who have been employed or are currently employed, by Defendant J. Jacobo Farm Labor Contractor Inc. as a non-exempt “field worker” or agricultural laborer who worked at any time from September 30, 2011 to the present.

Doc. No. 108-1. The contours of the overarching class are largely ascertainable based on objective criteria, namely, whether someone was employed by Defendant as a field worker or agricultural worker. However, Plaintiffs' proposed end date for the class period - “to the present” - is not ascertainable. “An end date of ‘the present' creates a moving target and presents potential case management problems.” Taylor v. Autozone, Inc., Case No. 10-cv-8125, 2011 WL 2357652, at *1 (D. Ariz. June 14, 2011). By contrast, a “specified end date” promotes the “interests of clarity and finality” and “helps ensure that plaintiff-specific discovery will be completed in a timely manner.” Id.; see also Decastro v. City of New York, No. 16-cv-3850, 2019 WL 4509027, at *7 (S.D.N.Y. Sept. 19, 2019) (redefining unascertainable class period end date as the date the complaint was filed); Hendricks v. Total Quality Logistics, LLC, Case No. 10-cv-649, 2015 WL 13814202, at *4 (S.D. Ohio Mar. 30, 2015) (redefining unascertainable class period end date as the close of discovery date); Hart v. Rick's NY Cabaret Int'l, Inc., Case No. 09-cv-3043, 2013 WL 11272536, at *5 (S.D.N.Y. Nov. 18, 2013) (“At the outset, the Court concludes that it is necessary to set a clear end-date to the class period. The class as certified on December 20, 2010, by the judge then assigned to this case ran from ‘six years prior to the filing of the Complaint to the entry of judgment in this case.' But an open-ended end-date is untenable. It fails to take account of the possibility that material facts might change. And it denies the parties, after the close of fact discovery, a practical vehicle for exploring whether there have been material factual changes. Lack of clarity as to the end date of the class period also has the potential to confuse putative class members as to whether their interests will, or will not, be represented in the pending lawsuit.”) (citing cases in favor of ascertainable class period end date); Hart v. Rick's Cabaret Int'l, Inc., 967 F.Supp.2d 901, 910 (S.D.N.Y. 2013); Jacks v. DirectSat USA, LLC, Case No. 10-cv-1707, 2012 WL 2374444, at *8 (N.D. Ill. June 19, 2012) (redefining unascertainable class period end date as the date complaint was filed); Taylor v. Autozone, Inc., Case No. 10-cv-8125, 2011 WL 2357652, at *1 (D. Ariz. June 14, 2011) (redefining unascertainable class period end date as the date of conditional class certification order); Cruz v. Dollar Tree Stores, Inc., Case No. 07-cv-2050, 2009 WL 1974404, at *2 (N.D. Cal. July 2, 2009) (redefining unascertainable class period end date as the date of certification order).

         To cure the lack of ascertainability with Plaintiffs' proposed class period end date, the end date will be redefined as the date of this certification order. See, e.g., Ansoumana v. Gristede's Operating Corp., 201 F.R.D. 81, 85 n.2 (S.D.N.Y.2001) (“In my discretion, and in the interests of fairness and efficiency of case management, I fix the end date of the class period as the date of this decision.”); see also Taylor v. Autozone, Inc., Case No. 10-cv-8125, 2011 WL 2357652, at *1 (D. Ariz. June 14, 2011) (redefining unascertainable class period end date as date of conditional class certification order).

         As for Plaintiffs' proposed subclasses, the Court views the proposed subclasses as “case management” subclasses under Rule 23(d) that are treated informally and need not independently satisfy the certification requirements of Rules 23(a) and 23(b), including the implied ascertainability requirement. See American Timber & Trading Co. v. First Nat. Bank of Oregon, 690 F.2d 781, 787 n.5 (9th Cir. 1982); see also Newberg on Class Actions §§ 4:80, 7:27, 7:29, 7:32 (5th ed.).

         B. Numerosity and impracticability of joinder

         Pursuant to Rule 23(a)(1), a class action is maintainable only if “the class is so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). Here Defendant does not argue that the proposed overarching class fails to satisfy the numerosity requirement, and the Court concludes that the numerosity requirement is satisfied. The evidence before the Court does not conclusively establish the exact number of members in the proposed overarching class, but knowing the exact number of putative class members is not required. See Arnold Chapman and Paldo Sign & Display Co. v. Wagener Equities Inc., 747 F.3d 489, 492 (7th Cir. 2014) (“[A] class can be certified without determination of its size, so long as it's reasonable to believe it large enough to make joinder impracticable and thus justify a class action suit.”); In re Lithium Ion Batteries Antitrust Litigation, Case No. 13-cv-2420, 2017 WL 1391491, *3 (N.D. Cal. 2017) (quoting Newberg on Class Actions § 3:3 (4th ed.)) (“Where the precise size of the class is unknown, but general ...


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