United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT'S MOTION FOR
DECERTIFICATION; TERMINATING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT AGAINST THE CERTIFIED CLASS AS MOOT; DENYING
PLAINTIFF'S MOTION TO MODIFY CLASS DEFINITION [RE: ECF
60; 51; 71]
LAB SON FREEMAN UNITED STATES DISTRICT JUDGE
matter is a wage and hour class action against the well-known
outdoor lifestyle brand Eddie Bauer
(“Defendant”), alleging that the company failed
to compensate its hourly employees for time spent undergoing
off-the-clock “exit inspections” of
employees' personal belongings before leaving the store.
Plaintiff, Stephanie Heredia, worked as a sales associate at
an Eddie Bauer retail store in Gilroy, California from
November 2013 to March 2016. During that time, she alleges
that she was required to undergo inspections of her personal
belongings-otherwise known as “bag checks” or
“security inspections”-whenever she left the
store. On January 10, 2018, the Court certified a class of
“[a]ll current and former non-exempt retail store
employees who were employed by Defendant in the State of
California at any time from September 28, 2012, through the
present.” Order Granting Plaintiff's Motion for
Class Certification (“Cert. Order”) at 19, ECF
the Court are three related motions: (1) Defendant's
Motion for Summary Judgment Against the Certified Class (ECF
51), (2) Defendant's Motion for Decertification (ECF 60),
and (3) Plaintiff's Motion to Modify Class Definition
(ECF 71). The Court heard oral arguments on Defendant's
Motion for Summary Judgment on September 12, 2019. The Court
also held a hearing on Defendant's Motion for
Decertification on December 5, 2019. The Court finds
Plaintiff's Motion to Modify Class Definition appropriate
for disposition without oral argument. See Civ. L.R.
7-1(b). Accordingly, the hearing set for January 23, 2020 is
reasons stated in Section II below, the Court GRANTS
Defendant's Motion for Decertification. With the class
decertified, Defendant's Motion for Summary Judgment
Against the Certified Class is TERMINATED AS MOOT.
Additionally, Plaintiff's Motion to Modify Class
Definition is DENIED for the reasons stated in Section IV
Eddie Bauer's retail stores carry a variety of
merchandise that is susceptible to theft, Eddie Bauer
requires all of its retail employees to submit to a security
inspection before exiting the store, whether the
employee's departure is for a meal break, rest break, or
to leave at the end of a shift. See Keith Long
Deposition (“Long Dep.”) 53:9-15, 55:18-56:2,
65:14-66:7, ECF 29-4, Exh. 4. At Eddie Bauer, this security
inspection is known as “Personal Property Inspection
Policy, ” and applies to all retail employees who carry
a bag or container that could be used to conceal company
merchandise. See Long Dep. 55:18-56:2, 58:1-15; Exh.
7 (Store Associate Resource Guide, updated August 2016); Exh.
8 (SOP regarding Package/Personal Property Checks, dated
November 10, 2016), ECF 29-4. In relevant parts, the written
All associates must have their handbags, packages,
briefcases, backpacks and other parcels, inspected by a
member of store management whenever they leave the store.
Package checks are also completed for breaks and meal
periods, or whenever associates leave the store for any
Dep., Exh. 8. It is undisputed that Eddie Bauer's written
policies are silent on whether the employees must clock out
before or after undergoing the required security inspections.
See Defendant's Motion for Decertification
(“Decert. Mot.”) at 2, ECF 60-1; Opposition to
Motion for Decertification (“Decert. Opp'n”)
at 1, ECF 65. The parties dispute, however, whether in
practice, Eddie Bauer employees undergo inspection while off
the clock. See Decert. Mot. at 1-2; Decert.
Opp'n at 1-2.
time the Court certified the class, only two depositions had
been conducted: (1) Heredia and (2) Eddie Bauer's FRCP
30(b)(6) witness, Keith Long, who was designated to testify
to topics related to Eddie Bauer's security inspection
policies. Cert. Order at 2. Evidence submitted for the motion
to certify the class showed that Heredia worked as a sales
associate at Eddie Bauer's Gilroy store from November
2013 to March 26, 2016. See Declaration of Stephanie
Heredia (“Heredia Decl.”) ¶ 2, ECF 29-4,
Exh. 5. During her deposition, Heredia explained that she
always clocked out before waiting for a manager to become
available to perform the security check and then undergoing
the inspection. Heredia Deposition (“Heredia
Dep.”) 74:19-22; 118:24-119:3, ECF 29-4, Exh. 3.
According to Heredia, “[e]verbody waited until after
they clocked out” to have their bags checked. Heredia
Dep. 46:19-22. Heredia testified that her managers instructed
her to clock out and wait at the front of the store before
the manager would conduct a bag check. Heredia Decl. ¶
5; see also Heredia Dep. 55:11-17, 123:22-25,
126:6-13. On the other hand, Long testified during his
deposition that it is Eddie Bauer's policy to train
managers to conduct personal property checks while employees
are still clocked in. Long Dep. 77:14-20.
on this limited record, in January 2018, the Court certified
a class of “All current and former non-exempt retail
store employees who were employed by Defendant in the State
of California at any time from September 28, 2012, through
the present.” Cert. Order at 19. The Court found that
at least two common questions exist: (1) whether Eddie
Bauer's policy and practice was to mandate that security
checks be performed off-the-clock; and, if so, (2) whether
time spent by employees off-the-clock for security checks
should be deemed as hours worked and thus compensated as
wages. Id. at 10. The Court came to that conclusion
because (1) the evidence showed that Eddie Bauer's
written policy applies to all non-exempt employees, (2)
Heredia demonstrated the existence of a uniform policy
applying to all employees in California, and (3) Eddie Bauer
offered no evidence regarding the actual practice at the
various stores regarding on-the-clock or off-the-clock bag
checks. Id. at 12-14.
thereafter, Eddie Bauer filed a motion for reconsideration.
ECF 36. The Court denied the motion and rejected Eddie
Bauer's arguments that some class members did not share
Heredia's injury because Eddie Bauer had presented the
Court with “no evidence of any of these
‘on-the-clock' employees.” ECF 37 at 4, 7-8.
The Court further noted that “[s]hould Eddie Bauer
acquire such evidence of class members who were subject to
bag checks before they clocked out, it could present their
experiences to the Court in a motion to decertify the
class.” Id. at 8.
record has significantly developed since then. First, Eddie
Bauer's expert, Robert W. Crandall, conducted a
“time and motion” study that included video
observation of store operations for 114 full days, totaling
over 1, 482 hours in 7 Eddie Bauer California stores (50% of
the Eddie Bauer stores in California). Declaration of Robert
W. Crandall Regarding “Time and Motion” Study
(“Crandall Decl.”) ¶¶ 90; 58, Dkt. No.
51-3. Of the 620 exits captured, 137 exits captured all
aspects of the exit inspection-waiting time, bag check,
visual inspection, other time, and clocking out. Id.
¶¶ 94-100. Of those 137 fully-observed exits, 80.3%
were on the clock and 19.7% were off the clock. Id.
¶¶ 95-96. Of the 620 exits captured by the Crandall
Study, 273 exits captured some aspects of the exit
inspection. Id. ¶¶ 101-108. Based on the
273 exits where some aspects of the exit inspection were
observed in the study, 172 exits-or 63.0%-showed that the
employees had no waiting time, no bag check, and no visual
inspection because the employee left the store without
carrying a bag or other item subject to inspection.
Id. ¶ 106.
the parties agreed on a procedure for selecting a
representative sample of class members. See ECF 41
§ IV.A. The class members who were deposed include
current or former Eddie Bauer employees who worked for the
company during every year of the certified class period-2012,
2013, 2014, 2015, 2016, 2017, 2018, and 2019. Declaration of
Michael Afar in Support of Defendant's Motion for
Decertification (“Afar Decl.”) ¶ 8, ECF
60-2. Eddie Bauer's expert, Mr. Crandall, summarized the
deponents' testimony regarding on-the-clock/off-the-clock
inspections in a table reproduced below:
Testimony Regarding Frequency
Of Exit Inspections That Occurred On
On The Clock
Off The Clock
Teresa Kober (Ameluxen)
Declaration of Robert W. Crandall Regarding Class Member
Depositions (“Crandall Supp. Decl.”) ¶ 113,
Table 2, ECF 51-4. Upon analyzing the deposition testimony,
Mr. Crandall concluded that the weighted total of exit
inspections conducted on the clock is 54.2% of all shifts.
Id. ¶ 113.
on this new record, Eddie Bauer has challenged the certified
class in two motions: (1) Motion for Summary Judgment Against
the Certified Class and (2) Motion for Decertification. ECF
51; 60. Heredia opposes both motions and has filed her own
motion seeking to modify the class definition. See
ECF 54; 65; 71.
EDDIE BAUER'S MOTION FOR DECERTIFICATION
Bauer seeks to decertify the class because “the new
evidence shows that there are no common questions or common
answers” regarding off-the-clock security inspections
at its stores. Decert. Mot. at 1. Eddie Bauer relies on its
expert's “time and motion study, ” which
shows that 80.3% of the observed exit inspections occur on
the clock. Id. at 3-5. Eddie Bauer also relies on
the outcome of the stipulated sample of class member
depositions, which showed that 54.2% of the weighted total of
exit inspections occurred on the clock. Id. at 5-8.
provides no arguments as to why the class, as-certified,
should be maintained. See generally Decert.
Opp'n. Instead, Heredia proposes to modify and narrow the
class period to end on December 31, 2016. Decert. Opp'n
at 1. Heredia has also separately filed a motion to modify
the class definition. Motion to Modify Class Definition
(“Mot. to Modify”), ECF 71. Thus, Heredia has
effectively conceded that based on the current record, the
certified class cannot move forward to trial. The Court first
decides whether the certified class should be decertified.
The Court will then address Heredia's proposed class
definition in Section IV below.
after a certification order is entered, the [Court] remains
free to modify it in the light of subsequent developments in
the litigation.” Gen. Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 160 (1982); see also Fed.
R. Civ. P. 23(c)(1)(C) (“An order that grants or denies
class certification may be altered or amended before final
judgment.”). “A district court may exercise its
sound discretion to decertify a class.” Ser Lao v.
H&M Hennes & Mauritz, L.P., No.
5:16-CV-00333-EJD, 2019 WL 7312623, at *2 (N.D. Cal. Dec. 30,
2019). “The standard used by the courts in reviewing a
motion to decertify is the same as the standard when it
considered Plaintiffs' certification motions.”
Ries v. Ariz. Beverages USA LLC, No. 10-01139 RS,
2013 WL 1287416, at *3 (N.D. Cal. Mar. 28, 2013).
Certification orders, however, are not altered
“‘except for good cause,' such as
‘discovery of new facts or changes in the parties or in
the substantive or procedural law.'” Morales,
et al. v. Kraft Foods Grp., Inc., 2017 WL 2598556, at
*20 (C.D. Cal. June 9, 2017) (quoting Ramirez v. Trans
Union, LLC, No. 12-CV-00632-JSC, 2016 WL 6070490, at *2
(N.D. Cal. Oct. 17, 2016)).
23(a) requires that (1) the members of the class must be so
numerous that joinder is impracticable, (2) there must be
questions of law or fact common to the class, (3) the
representative's claims and defenses must be typical of
the class members' claims and defenses, and (4) the
representative must fairly and adequately protect the
interests of the class. The class must also meet one of the
requirements of Rule 23(b). Here, Heredia seeks to maintain
the Class subject to Rule 23(b)(3)'s requirements 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
Court agrees with Eddie Bauer-and Heredia concedes-that the
certified class cannot be maintained based on the current
record, because the class members did not experience a
uniform policy of off-the-clock exit inspections.
No. Uniform Policy to Undergo Exit ...