ORDER RE: 1) MOTION FOR CLASS CERTIFICATION; 2) MOTION TO DECERTIFY THE FAIR LABOR STANDARDS ACT COLLECTIVE ACTION; AND 3) MOTION TO EXCLUDE PLAINTIFFS’ EXPERT DECLARATION AND TESTIMONY
I. INTRODUCTION
In this putative class action, Plaintiffs are minor league baseball players who assert
II. PROCEDURAL BACKGROUND
On February 7, 2014, Aaron Senne, Michael Liberto, and Oliver Odie filed the initial complaint in this action against MLB, Commissioner Selig and three MLB franchises.
On May 20, 2015, Plaintiffs filed the Second Consolidated Amended Complaint for Violations of Federal and State Wage and Hours Laws (“SCAC”), which is the operative complaint in this action. See Docket No. 382. On the same date, the undersigned ruled on challenges to personal jurisdiction by eleven MLB Clubs (“the Personal Jurisdiction Defendants”). See Order re Motions to Dismiss and Motions to Transfer, Docket No. 379 (“Personal Jurisdiction Order”). The Court found that the activities of three of the Clubs — the New York Yankees, the Pittsburgh Pirates and the Detroit Tigers — were sufficient to establish the existence of personal jurisdiction over them in California and dismissed the remaining eight Personal Jurisdiction Defendants for lack of personal jurisdiction. In particular, the Court dismissed the following Clubs for lack of jurisdiction: 1) the Atlanta Braves; 2) the Chicago White Sox; 3) the Tampa Bay Rays; 4) the Washington Nationals; 5) the Philadelphia Phillies; 6) the Boston Red Sox; 7) the Baltimore Orioles; and 8) the Cleveland Indians.
The Court conditionally certified Plaintiffs’ proposed collective under the FLSA on October 20, 2015, defining the collective as follows:
Ml minor league baseball players employed by MLB or any MLB franchise under the Minor League Uniform Player Contract who worked or work as minor league players at any time since February 7, 2011, but who had no service time in the major leagues at the time of performing work as a minor leaguer.
Docket No. 446. Subsequently, notice was sent to the minor league players allowing them to opt in to the collective by February 11, 2016. According to Plaintiffs, over 2,200 minor leaguers opted into the FLSA collective by the deadline. See Docket No. 500 (Simon Deck) ¶ 12.
Plaintiffs now ask the Court to certify their state law wage and hour claims under Rule 23 of the Federal Rules of Civil Procedure. In particular, they seek to certify classes under the laws of Arizona, California, Florida, North Carolina, New York, Pennsylvania, Maryland and Oregon of all persons who under a Minor League Uniform Player Contract, work or worked for MLB or any
Defendants, in turn, ask the Court to de-certify the FLSA collective on the grounds that the Plaintiffs are not similarly situated and the defenses Defendants plan to assert will require too many individualized inquiries to allow for class treatment of Plaintiffs’ claims. Defendants also ask the Court to exclude the expert declarations and testimony of Drs. J. Michael Dennis and Brian Kriegler under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
III. THE MOTIONS
A. The Rule 23 Motion
1. Plaintiffs’ Motion
a. Proposed Class Definitions and Representatives
Plaintiffs ask the Court to certify eight classes (collectively, “the State Classes”) to pursue claims under the laws of California, Florida, Arizona, North Carolina, New York, Pennsylvania, Maryland and Oregon. Notice of Motion and Motion at i. Plaintiffs propose that each class consist of:
All persons who under a Minor League Uniform Player Contract, work or worked for MLB or any MLB franchise as a minor league baseball player within the relevant state at any time [during the statutory period for each state]. Excluded from the class are those players who had service time on a major league player contract at the time of performing work as a minor leaguer.
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The California Class shall include a waiting time subclass for alleged penalties under California Labor Code § 203 for the withholding of wages after employment ceases. It will consist of the class representatives and members of the California Class whose employment relationship with a Defendant has ceased or will cease since February 7, 2010.
Proposed Order at 1.
Plaintiffs propose that the following named Plaintiffs be appointed as class representatives:
• California Class: Aaron Meade, Oliver Odie, Kyle Woodruff, Kyle Nicholson, Brandon Henderson, Craig Bennigson, Ryan Kiel, Jake Kahaulelio, Justin Murray, Dustin Pease, Mitch Hilligoss, Joseph Newby, Joel Weeks, Matt Daly, Kris Watts, Nick Giarraputo, David Qui-nowski, Brandon Pinckney, Lauren Gag-nier, and Grant Duff.
• Florida Class: Ryan Khoury, Brandon Henderson, Ryan Kiel, Jake Kahaulelio, Jon Gaston, Tim Pahuta, Matt Daly, Aaron Senne, Brad Stone, Mitch Hilli-goss, Jake Opitz, Ryan Hutson, Les Smith, Matt Frevert, Roberto Ortiz, Brett Newsome, Kris Watts, Nick Giar-raputo, David Quinowski, Brandon Pinckney, Lauren Gagnier, Jeff Nadeau, Grant Duff, and Aaron Dott.
• Arizona Class: Aaron Meade, Jon Ga-ston, Oliver Odie, Kyle Woodruff, Craig Bennigson, Matt Lawson, Ryan Kiel, Justin Murray, Dustin Pease, Michael Liberto, Jake Opitz, Joseph Newby, Mitch Hilligoss, Kris Watts, Roberto Ortiz, Daniel Britt, Joel Weeks, Gaspar*532 Santiago, David Quinowski, and Nick Gi-arraputo.
• North Carolina Class: Craig Bennigson and Aaron Senne.
• New York Class: Ryan Khoury, Jon Gaston, Matt Daly, Aaron Senne, Kris Watts, Nick Giarraputo, and Aaron Dott.
• Pennsylvania Class: Tim Pahuta, Kris Watts, and Lauren Gagnier.
• Maryland Class: Roberto Ortiz and Brett Newsome.
• Oregon Class: Joel Weeks, Gaspar Santiago, and David Quinowski.
Proposed Order at 2-3.
b. Factual Background
According to Plaintiffs, they will be able to prove both liability and damages on a class-wide basis because MLB and its franchises have implemented uniform contracts, policies and Major League rules “to ensure similar conditions of employment” and the legal issues in the ease can be “distilled to a few common issues.” Rule 23 Motion at 2, 11. In support of Plaintiffs’ contention that they are subject to uniform contracts, policies and rules, they point to the following evidence:
• Recruiting, Drafting and Hiring Under the Major League Rules (“MLRs”): According to Plaintiffs, the MLRs “govern the recruitment, drafting, hiring, pay, and employment of minor leaguers and the structure of the entire minor league system.” Motion at 2. Plaintiffs cite to MLR 4, entitled “First Year Player Draft,” which “governs the process that MLB franchises must follow when hiring amateur players as minor leag-uers.” Id at 3 (citing Declaration of Garrett R. Broshuis in Support of Plaintiffs’ Motion for Class Certification (“Broshuis Rule 23 Motion Deck”), Ex. B (MLRs)). They also point to MLR 3(b)(2), which requires that all minor leaguers sign a Uniform Player Contract (“UPC”) in order to “preserve morale among Minor League Players and produce the similarity of conditions necessary for keen competition.” Id. The form UPC is attached to the MLRs as Attachment 3; Plaintiffs note that under MLR 3 the “MLB franchises cannot deviate from the form UPC” and contend that the evidence shows that the franchises do, in fact, use this form UPC when employing minor leaguers. Id. at 3 (citing Broshuis Rule 23 Motion Deck, Ex. B (MLRs) and D (sample UPCs for all of the MLB franchises)). Plaintiffs note that under MLR 3(b)(2), the initial term of the UPC for all minor leaguers is seven championship seasons and that a minor leaguer cannot work for another franchise until that term expires or he is released or traded. Id (citing Broshuis Rule 23 Motion Deck, Ex. B (MLRs)). Plaintiffs also point to MLR 56(g), providing that the “MLB franchises — not the minor league affiliates — determine where to assign the players to work and select the coaches and managers that oversee the players.” Id Finally, Plaintiffs cite to MLR 57, which “establishes rules governing the minor league playing schedule and for minor league travel during the championship season.” Id.
• Pay Practices under the MLRs and UPC: Plaintiffs contend MLB and the franchises follow uniform pay practices as to all minor leaguers pursuant to the MLRs and UPC. Rule 23 Motion at 3-5. In particular, under a provision of the UPC (MLR Attachment 3) entitled “Payment,” minor leaguers receive salary payments only during the “actual championship playing season” but their “duties and obligations under [the UPC] continue in full force and effect throughout the calendar year.” Broshuis Rule 23 Motion Deck, Ex. B (MLRs), Attachment 3 ¶ VIIB. Paragraph VIIB of the UPC also provides that minor leaguers are to be paid in “two (2) semi-monthly installments on the 15th day and last day of the month after the beginning of the Club’s championship playing season or such later date as Player reports for championship season play.” Id Plaintiffs also point to MLR 3(c)(2), providing that all first year minor leaguers earn the same wage rate. Broshuis Rule 23 Motion Deck, Ex. B (MLRs), MLR*533 3(c)(2)(B) (“The salary in each Minor League Uniform Player Contract between an independent Minor League Club and a first-year player shall be the amount established by the Minor League Association for each Minor League Classification or League.”). Plaintiffs also contend the evidence in this case shows that the policies set forth in the MLRs and UPC are uniformly implemented. Rule 23 Motion at 4. In particular, they offer documents and deposition testimony indicating that the initial salary rate for all minor league players is $1,100 per month and that MLB franchises use “non-negotiable salary scales that establish the monthly wages for subsequent years under the initial UPC.” Id. at 4-5 (citing Broshuis Rule 23 Motion Decl., Ex. F). Further, all minor leaguers sign an Addendum C to the UPC setting out their pay rate prior to spring training, Plaintiffs contend. Id. at 5 (citing Broshuis Rule 23 Motion Decl., Ex. G (sample Addendum Cs for the MLB franchises). Plaintiffs also submit declarations by the named Plaintiffs stating that they were paid only during the championship season and were not paid during spring training, instructional leagues, winter workouts or for other mandatory work performed outside of the championship season. Id. (citing Plaintiff Declarations5 ). They note that the UPC does not permit overtime pay and also offer interrogatory responses by MLB and its franchises that minor leaguers are never paid overtime. Id. at 5 (citing Broshuis Rule 23 Motion Deck, Ex. H (Defendants’ answers to requests for admissions admitting that they do not provide overtime pay)).
*534 • Conditions of Work: Plaintiffs contend minor leaguers follow a “well-established” annual calendar with respect to player development, attending spring training from early March to early April, playing in the championship season from April until September, participating in instructional leagues from mid-September to mid-October and performing training and work-outs during the off-season. Rule 23 Motion at 5 (citing Bro-shuis Rule 23 Motion Decl., Exs. I (sample spring training schedules), J (testimony regarding in-season schedules and routines), K (sample instructional league schedules) and U (sample off-season training programs)). According to Plaintiffs, the similarities in work conditions extend “both vertically and horizontally,” that is, the work routine is similar at all levels of the minor league organizational structure and across all franchises. Id. at 6. They offer the following evidence of similar work conditions as to spring training, extended spring training, the championship season, instructional leagues and winter training:
Spring Training: Plaintiffs offer sample schedules to show that all MLB franchises have spring training in either Florida or Arizona, typically beginning in early March and ending in early April, just before the championship season. Id. at 6 (citing Broshuis Rule 23 Motion Deck, Ex. I (sample spring training schedules)). They also cite player declarations and deposition testimony of Defendants’ witnesses addressing spring training routines in support of the assertion that “[mjinor league players usually work seven days per week during spring training.” Id. (citing Plaintiff Declarations; Broshuis Rule 23 Motion Deck, Exs. I (sample spring training schedules) & 0 (deposition testimony of Defendants’ witnesses)). Plaintiffs further point to this evidence in support of the contention that during spring training, all minor leaguers go to the sports complexes to perform required baseball-related work routines that includes stretching, throwing, running, hitting and fielding. Id. at 6-7. Plaintiffs contend that while the “practice drills may change from day to day, the work routines are standardized and remain similar from team to team. Id. (citing Plaintiff Declarations; Broshuis Rule 23 Motion Deck, Exs. I (sample spring training schedules) & 0 (deposition testimony of Defendants’ witnesses)). Plaintiffs assert the evidence shows that work days become longer for all minor leaguers once spring training games commence, with minor leaguers arriving earlier in the morning to complete them work-out routine before the 1 pm game, which typically lasts three hours. Id. According to Plaintiffs, throughout spring training all minor leaguers also participate in strength and conditioning workouts that are scheduled by a strength and conditioning coordinator. Id. All of this evidence shows that minor leaguers work long hours for no pay during spring training, Plaintiffs assert. Id.
This conclusion finds further support, according to Plaintiffs, in a pilot survey conducted by their expert, J. Michael Dennis, to assess minor leaguers’ work patterns. Id. (citing Declaration of J. Michael Dennis, Ph.D in Support of Plaintiffs’ Motion for Class Certification (“Dennis Deck”), Ex. E (pilot survey results). Dr. Dennis found that “out of the 195 minor leaguers surveyed, nearly 85% stated that they were expected to work more than 40 hours per week during spring training, and over 30% stated that they were expected to work more than 55 hours per week.” Id. (citing Dennis Deck, Ex. E).
Extended spring training: Plaintiffs point to deposition testimony of a minor league player for the Los Angeles Angels, Bobby Seales, who testified that extended spring training is simply “an extension of spring training for those players who do not make full-season affiliates.” Id. at 7-8 (citing Broshuis Rule 23 Motion Deck, Ex. P (Scales Dep.) at 34). According to Plaintiffs, the evidence shows that extended spring training lasts from early April until June and*535 that the work performed during extended spring training is similar to the work performed during spring training. Id. (citing Broshuis Rule 23 Motion Deck, Ex. Q (compilation of schedules and testimony relating to extended spring training)).
The championship season: Plaintiffs also present evidence they contend shows that minor leaguers perform similar work during the championship season and that they work “exhaustive workweeks” without overtime pay. Id. at 8-10. They contend the work includes games seven days per week with only “a couple off days scheduled each month.” Id. at 8 (citing Declaration of Brian Kriegler, Ph.D. in Support of Plaintiffs’ Motion for Class Certification (“Kriegler Rule 23 Deck”) ¶ 17). Plaintiffs’ expert, Brian Kriegler, notes that there are organizational schedules available that show the actual game locations and times for each championship game for all levels from Rookie level to the major league club. Kriegler Rule 23 Deck ¶ 22.
Plaintiffs point to evidence that most games start at 7 pm and last two and a half to three hours (again, the actual times of all games are available, Plaintiffs contend). Rule 23 Motion at 9 (citing Kriegler Rule 23 Deck ¶ 18; Broshuis Rule 23 Deck, Ex. J (deposition excerpts describing in-season routines)). They assert the players arrive at the stadium hours before the game, citing Dr. Dennis’s survey (discussed above) reflecting that 90% of minor leaguers arrive at the stadium by 2 pm for an evening game. Id. (citing Plaintiff Declarations; Dennis Deck, Ex. E). They describe a regular routine that includes pre-game warmups, stretches, drills and batting practice, pre-and post-game meetings, weight lifting and training room activities, and travel on a team bus for away games. Id. at 8-10 (citing Broshuis Rule 23 Motion Deck, Exs. J (deposition excerpts describing in-season routines), R (sample in-season schedules and itineraries), & S (evidence addressing travel requirements)). Plaintiffs also contend the travel time for minor leaguers to away games is “extensive,” citing their expert, Dr. Kriegler. Id. at 10. Plaintiffs state that Dr. Kriegler has “developed a methodology for calculating the travel time for each minor league road trip.” Id. (citing Kriegler Rule 23 Deck ¶¶ 19-20).
Instructional Leagues: Plaintiffs offer evidence that many players also participate in instructional leagues in the fall, from mid-September to mid-October, held at the MLB complexes in Florida and Arizona. Id. at 10 (citing Broshuis Rule 23 Motion Deck, Ex. K (compilation of game schedules, daily schedules and testimony relating to instructional leagues)). According to Plaintiffs, the evidence shows that the work performed at the instructional leagues is similar to spring training, with players engaging in meetings, stretching, drills, batting practice and games (including travel to away games), and that players usually perform work six days a week during instructional leagues. Id. Plaintiffs note that like spring training, minor leaguers are not paid any wages for their participation in the instructional leagues. Id.
Winter Training: Finally, Plaintiffs contend the evidence shows that players perform similar off-season conditioning work in the winter, using strength and conditioning manuals developed by the MLB franchises’ strength and conditioning coordinators. Id. at 10-11 (citing Bro-shuis Rule 23 Motion Deck, Exs. U (examples of strength and conditioning manuals) &V (testimony describing strength and conditioning)). Plaintiffs cite evidence that the franchises follow up with the players, requiring them to maintain logs reflecting their strength and conditioning work and keeping track of their progress. Id. at 11 (citing Plaintiff Declarations; Broshuis Rule 23 Motion Deck, Exs. U & V)). Plaintiffs also assert that the players perform other “baseball-related work” during the winter training period, including throwing, hitting and fielding. Id.
Plaintiffs assert that in light of Defendants’ uniform policies and practices and the common conditions of work for minor league players, their claims can be tried in a single trial. Id. at 11. First, they contend their claims can be “distilled” to three main issues: 1) whether they should be paid for work performed outside of the championship season; 2) whether they are entitled to overtime pay; and 3) whether they are entitled to requisite minimum wages during the championship season. Id. A preliminary inquiry as to all of these issues is whether MLB and the franchises “employ” the minor league players, Plaintiffs assert. Id. Plaintiffs contend they will be able to address this question on a classwide basis using the testimony of the named Plaintiffs and employees of MLB and the franchises, documentary evidence from MLB and the franchises such as policies, payroll information and schedules, and expert testimony. Id. at 12.
Plaintiffs explain that they intend to rely on two experts at trial, Dr. Kriegler and Dr. Dennis. Dr. Kriegler, a statistician, will offer a damages model that includes “a comprehensive estimate of hours worked for each minor leaguer for each work week.” Id. (citing Kriegler Rule 23 Decl. ¶¶ 17-19). According to Plaintiffs, Dr. Kriegler’s estimate is based on reasonable estimates of travel time for “every in-season minor league trip since 2008,” and calculations relating to the duration of each game, supplemented by representative evidence obtained by Dr, Dennis of hours worked in spring training, the championship season and the off-season. Id. Dr. Dennis has already performed a pilot survey based on the responses of 195 minor leaguers who “spanned all MLB franchises.” Id. Dr. Dennis opines that “[t]he pilot sui-vey proves that a reliable statistical survey addressing the issues in this litigation is feasible.” Id. (quoting Dennis Deck ¶44). Dr, Kriegler opines that the pilot survey shows that the future information obtained by Dr, Dennis can be “readily incorporated” into his damages model. Id. at 13 (citing Kriegler Rule 23 Deck ¶ 32). Plaintiffs contend the methodology of their experts is consistent with the statistical methods that have been approved in other wage and hour class actions and will “ensure sufficient due process while simultaneously allowing claims to be prosecuted in an efficient and representative manner.” Id. at 14. They believe that bifurcation of the trial will not be necessary because liability and damages can be proved simultaneously through common evidence. Id.
d. Application of Rule 23 Requirements
Turning to the Rule 23 inquiry, Plaintiffs contend the proposed classes should be certified because they satisfy the four requirements of Rule 23(a) (numerosity, commonality, typicality ■ and adequacy of representation), as well as the requirements of both Rule 23(b)(2) (where the party opposing the class has acted or refused to act on grounds that apply generally to the class) and 23(b)(3) (where common issues predominate and the class mechanism is superior to individual actions). Id. at 15.
The numerosity requirement is satisfied, Plaintiffs contend, because for each of the State Classes there are multiple minor league teams (ten in California, thirty in Florida, thirteen in Arizona, nine in North Carolina, eleven in New York, eight in Pennsylvania, five in Maryland and two in Oregon), each of which has an active roster that is permitted to have between twenty-five and thirty-five minor league players on it. Id. at 16 (citing Declaration of Peter Woodfork in Support of Defendants’ Motion to Transfer Action to the Middle District of Florida [Docket No. 118-1] (“Woodfork Deck”), Ex, A). The number of class members is therefore large enough that “joinder of all members is impracticable.” Id. (citing Fed. R. Civ. P. 23(a)). Plaintiffs further contend the classes are ascertainable because the class definition is clear and objective. Id. (citing Mullins v. Direct Digital, LLC,
Plaintiffs contend their claims meet the typicality requirement as well, noting the permissive nature of this requirement, which requires only that the claims of the named plaintiffs be “reasonably coextensive” with the claims of the absent class members rath
Plaintiffs contend the adequacy requirement is met because there are no conflicts of interest between the class representatives and the absent class members and because class counsel is qualified and capable and will vigorously prosecute the class’s interests. Id. at 17-18 (citing Hanlon,
Plaintiffs also argue that the class members’ claims satisfy the commonality requirement of Rule 23(a)(2) and the more stringent predominance requirement of Rule 23(b)(3). Id. at 18-37. Commonality, according to Plaintiffs, is satisfied when an issue “is susceptible to generalized, classwide proof’ or “if the same evidence will suffice for each member to make a prima facie showing of that issue.” Id. at 19 (quoting Kristensen v. Credit Payment Servs.,
In the wage and hour context, an employer’s policies will often drive the resolution of the plaintiffs’ claims such that the commonality and predominance requirements are met, Plaintiffs assert, even where the employer seeks to assert a defense based on the (varying) job duties of the class members. Id. at 20-21 (citing Abdullah,
• The employment relationship: Plaintiffs assert there are two common questions relating to the employment relationship that are implicated by their claims:
1) whether the minor leaguers are employed by the MLB franchises; and 2) whether MLB and the franchises jointly employ the minor leaguers. Id. With respect to the first question, Plaintiffs argue that the standards used by all of the relevant states are similar and draw upon the FLSA, requiring the court to look at the “circumstances of the whole activity,” focusing on the economic reality of the situation. Id. at 23 (citing Rutherford Food Corp. v. McComb,331 U.S. 722 , 730,67 S.Ct. 1473 ,91 L.Ed. 1772 (1947); Goldberg v. Whitaker House Coop., Inc.,366 U.S. 28 , 33,81 S.Ct. 933 ,6 L.Ed.2d 100 (1961)). Given that the circumstances of employment of the class members are largely dictated by the UPC and the MLRs, as well as other rules and policies promulgated by MLB relating to the minor leaguers, this issue can be addressed on a classwide basis, according to Plaintiffs. Plaintiffs note that Defendants are likely to assert that this issue involves individualized inquiries because it is governed by the “primary beneficiary test” articulated in Walling v. Portland Terminal,330 U.S. 148 ,67 S.Ct. 639 ,91 L.Ed. 809 (1947) but that that test does not apply here because in this case “there is a traditional employment relationship with an employment agreement calling for compensation.” Id. at 23 n. 84 (citing Alamo Found. v. Sec’y of Labor,471 U.S. 290 , 301,105 S.Ct. 1953 ,85 L.Ed.2d 278 (1985)). Plaintiffs also assert that the joint employment inquiry will turn on common issues as all of the states apply a multifactor test which looks to similar factors, such as the power to hire and fire workers, supervision and control of work schedules and conditions of employment, control over the rate and method of employment and maintenance of employment records. Id. at 24 (citing Bonnette v. Cal. Health & Welfare Agency,704 F.2d 1465 , 1470 (9th Cir.1983); Martinez v. Combs,49 Cal.4th 35 , 59,109 Cal.Rptr.3d 514 ,231 P.3d 259 (2010), as modified (June 9, 2010); Torres v. Air to Ground Servs., Inc.,300 F.R.D. 386 , 395 (C.D.Cal.2014)). Again, these factors will center on the same evidence for all minor leaguers, Plaintiffs contend, because of MLB’s uniform practices, discussed above.
• Unpaid work performed outside the championship season: Plaintiffs contend them claim for unpaid work outside the championship season turns on common issues because all of the states at issue require employers to pay a minimum wage for all hours worked, whereas under the Defendants’ uniform policy the minor league players are required to perform extensive work outside of the championship season, including spring training, instructional leagues and off-season training, without compensation. Id. at 25. The claim is comparable to an off-the-clock claim, Plaintiffs contend, and therefore they will need to prove three elements: 1) the employee performed work for which he did not receive compensation; 2) the defendants knew or should have known plaintiff performed the work; and 3) the defendant “stood idly by.” Id. (citing Jimenez,765 F.3d at 1165 ). According to Plaintiffs, “the core facts governing this analysis will be the same for all class members.” Id. As to spring training, Plaintiffs note that this work occurred only in Florida and Arizona and therefore the common question for all minor leaguers will be whether the work is compensable under Florida and Arizona law. Id. at 26. As to off-season training, Plaintiffs contend that this analysis also can be performed on a classwide basis because all of the relevant states’ laws provide that work performed remotely is compensable if the employer “knows or has reason to believe that the work is being performed.” Id. (quoting 29 C.F.R. § 785.11). Plaintiffs note that the laws of the states at issue do “not distinguish between work performed at the job site ver*539 sus work performed away from the job site.” Id n. 92. The common and predominating question, then, will be whether the minor leaguers’ activities outside of the championship season are compensable work, according to Plaintiffs.
• Failure to pay overtime wages: Plaintiffs assert that they are entitled to overtime wages under the laws of all of the relevant states except Arizona and Florida and that this claim will be based on Defendants’ uniform policy of never paying overtime, combined with the “extensive evidence — in the form of documents, declarations, depositions and expert analyses — demonstrating] that minor leaguers routinely work more than 40 hours per week, especially during the [championship] season.” Id. at 27. Plaintiffs also contend MLB’s “failure to keep time records for work performed cannot defeat commonality and predominance” in light of the rule of Anderson v. Mt. Clemens Pottery Co.,328 U.S. 680 , 687,66 S.Ct. 1187 ,90 L.Ed. 1515 (1946), that estimates and representative evidence may be used where an employer has not kept adequate records of hours worked. Plaintiffs assert that they will be able to provide such evidence, citing the methodology developed by their expert, Dr. Kriegler, who they say has “devised a reliable, common method for estimating each class member’s hours worked for each pay period.” Id. at 28. In particular, using the databases he has developed of actual game times during the championship season and travel time for each road trip taken, in combination with estimates of hours worked for each minor leaguer developed on the basis of surveys, schedules and roster moves, Dr. Kriegler will be able to “determine whether an overtime violation occurred for each class member for each class period,” Plaintiffs assert. Id.
• Other issues that present common questions: In addition to the “core questions” discussed above, Plaintiffs contend their claims raise other common issues including whether travel time on the team bus is compensable, whether the “creative professionals” and “amusement exemptions” that exist in most of the relevant states apply, whether certain states’ itemized wage statement rules have been violated and whether those who have performed work in California are entitled to waiting time penalties. Id. at 28-32.
Plaintiffs also address each of the relevant states’ laws to show that common issues predominate for all of the proposed classes. Id. at 32-37. With respect to the Arizona Class, Plaintiffs contend Arizona is the site of work by minor leaguers throughout the year and that Defendants do not assert any affirmative defenses. Id. at 33. Arizona also does not have an overtime law, according to Plaintiffs. Id Consequently, Plaintiffs assert, the analysis will come down to the “core classwide issues discussed above,” namely, must minor leaguers be paid for work performed outside the championship season, is travel time com-pensable, and must minor leaguers be paid minimum wages during the championship season. Id. According to Plaintiffs, the first question is “binary” and will turn on whether the Defendants “employ” the minor leaguers (a question that will be resolved on the basis of MLB’s uniform policies and contracts) and whether the activities of the minor leaguers outside of the championship season constitutes “work” (which will be based on the similar activities of the minor leaguers). Thus, this issue can be resolved on a class-wide basis, Plaintiffs contend. Id. Plaintiffs assert that the second question is also binary; that is, travel time is either compensable or it is not. Id. As to this question too, the common MLB policies requiring minor leag-uers to travel with their teammates will be the focus of the analysis, according to Plaintiffs. Id. at 33-34. Finally, Plaintiffs assert that the third question — whether the wage rate of the minor leaguers working in Arizona fell below the minimum wage — is capable of classwide resolution. Id. at 34. In particular, Plaintiffs point to the methodology developed by Dr. Kriegler, using the estimates of Dr. Dennis, for determining which minor leaguers’ wages fell below the minimum during the championship season. Id.
Plaintiffs also assert that common issues predominate as to the California and Oregon classes. Id. at 35. As to these states, they contend, there will be the same common issues as for the Arizona Class, namely,
California and Oregon also have overtime laws and the claims the California and Oregon Classes assert under these laws also turn on a “significant common issue that furthers the predominance of common issues over individual ones,” according to Plaintiffs. Id. In particular, all of the class members will rely on Defendants’ policy of never paying overtime, no matter how many hours the minor leaguers work. Id. at 36. They will also rely on the survey data and the reasonable estimates of their experts showing that they routinely work more than 40 hours in a week. Id. Finally, Dr. Kriegler will use payroll data to calculate each class member’s overtime rate and overtime damages. Id. Thus, Plaintiffs’ contend, common questions predominate over any individualized inquiries as to the California and Oregon Classes.
Finally, Plaintiffs argue that common issues predominate as to the claims of the classes proposed for the remaining states (New York, North Carolina, Florida, Maryland and Pennsylvania). These states recognize both the creative professionals and the amusement exemptions. In addition, all of these states except Florida have overtime laws. Thus, the same common issues that predominate as to the California and Oregon Classes also will predominate here, Plaintiffs contend. Id. at 36. In addition, the applicability of the amusement exemption will turn on common issues, Plaintiffs assert. Id. First, the Court will have to identify the appropriate “establishment,” which will affect all class members, Plaintiffs assert. Id. Next, the Court will have to determine whether each such establish is an “amusement” establishment for the purposes of the exemption. Id. This latter determination will “affect large numbers of minor leaguers” and therefore also involves common issues, Plaintiffs assert. Id.
Plaintiffs argue that the superiority requirement of Rule 23(b)(3) is also satisfied, citing the following factors that they contend make class treatment appropriate: 1) the absence of evidence that class members have an interest in individually prosecuting their claims and the disincentives to bringing such actions, including the fear of reprisals, the relatively low amount of individual damages awards, and the high cost of prosecuting claims individually; 2) the fact that there are no overlapping suits pending in any court (other than the one that was consolidated with this action); 3) the familiarity of this Court with the facts and legal issues, making it desirable to concentrate the litigation in this forum; 4) the fact that class treatment is manageable because counsel for both sides have extensive experience in litigating class actions, the class size is not too large to handle, and Plaintiffs’ experts have developed mechanisms such as survey, documentary evidence and representative testimony to “resolve the action efficiently for all class members while preserving procedural fairness.” Id. at 37-38.
As an alternative basis for certifying the class, Plaintiffs rely on Rule 23(b)(2) (instead
e. Class Notice
Plaintiffs ask the Court to authorize notice to the Rule 23 classes using the same approach to notice that was used for the FLSA collective. Id. at 39. In particular, Plaintiffs ask that class members be given direct notice based on information obtained from Defendants’ records, that they be given 90 days to “exercise their rights,” and that a 30-day reminder notice be sent to class members. Id.
2. Defendants’ Opposition
In their Opposition brief, Defendants contend Plaintiffs have failed satisfy all of the requirements of Rule 23(a) and that they also have not demonstrated that either Rule 23(b)(2) or (b)(3) applies. Rule 23 Opposition at 1-3. Defendants further assert that all of the proposed classes lack Article III standing. Id. at 3. According to Defendants, in order for Article III standing to exist, “for each claim and defendant in a class action, there must be at least one class representative who was injured by that defendant in that state.” Id. at 3. Because all of the proposed classes assert claims against the 22 Club Defendants, Defendants contend, there must be at least one class representative for each proposed class who played baseball for each Club Defendant in that state — a requirement that Plaintiffs have not met. Id.
a. Factual Background
According to Defendants, named Plaintiffs are former minor league players who played with one or more of the 30 MLB Clubs (22 of which remain as Defendants in this action, hereinafter the “22 Club Defendants” or “Club Defendants”). Id. at 3. All of the players “negotiated] and agree[d] to contract terms with the Club that drafted them,” “signed a [UPC] with that Club and subsequently reported to one of 180 affiliates located in 44 states to play baseball during the championship season.” Id. at 4. Defendants contend the players “often played for multiple teams based in multiple states during the statutory period, and engaged in diverse activities (games, training, and so on) in literally dozens of locations over the course of their careers.” Id. at 1. Some of this information is reflected in the “transaction history” that is maintained for each minor leaguer, which lists the dates he signed contracts, dates of transfers from various affiliates and dates he was put on the “disabled list,” among other things. Id. at 4 (citing Declaration of Elise Bloom in Support of Defendants’ Opposition to Plaintiffs’ Motion for Class Certification Under Federal Rule of Civil Procedure 23 (“Bloom Rule 23 Opposition Deck”), Ex. 80 (sample transaction history, entitled “Player History,” for named Plaintiff Kristopher Watts)). Defendants contend the activities of the players varied widely because each Club and its affiliates “administered its own policies and schedules, typically at the discretion
Defendants contend that “because the baseball year is broken into so many different activities and seasons, each of which takes place at different locations (which differ for each minor leaguer), each putative class member participated in different baseball activities in a different constellation of states, and therefore under the aegis of many different state laws.” Id. at 4-5. In this context, they assert, the members of each of the State Classes will include any player who performed any activity in the state during the statutory period, “no matter how fleeting or minimal,” and players could qualify as members of multiple State Classes to the extent they conducted their activities in more than one of the relevant states. Id. at 5 (citing Bloom Rule 23 Opposition Deck, Ex, 4 (chart created by Defendants for each State Class reflecting Class representatives’ contacts with the states they purport to represent (“State Contacts Chart”))). Defendants note that although Plaintiffs have asked the Court to approve the appointment of 36 of the 43 named Plaintiffs as class representatives, none of the state classes proposed by Plaintiffs has a class representative for each of the 22 Club Defendants. Id.
b. Rule 23(a) Requirements
Defendants assert that Plaintiffs’ proposed classes do not satisfy the requirements of Rule 23(a) because the classes are not ascertainable, the claims of the proposed class representative are not typical of those of the absent class members, the issues in the case do not meet the commonality requirement, and the class representatives and their counsel will not adequately represent the interests of the class. Id. at 6-22.
i. Ascertainability
Defendants contend a class may only be certified if its “precise membership can currently be ascertained by reference to ‘objective criteria.’ ” Id. at 6 (citing In re Clorox Consumer Litig.,
Defendants argue that the roster moves are reflected in the players’ transaction histories and these would have to be reviewed, line-by-line, for each of thousands of players for each year during the statutory period in order to determine the State Classes for which the player is qualified. Id. at 8. “The payroll data is no better,” Defendants assert, because each Club’s payroll data “comes in different forms [and therefore].. .to sort through each Club’s unique payroll data as to each class member will similarly mandate an unfeasibly individualized and complex review.” Id. Defendants argue further that these records are not sufficient to ascertain class membership because they reflect only the locations where the players played during the championship season, not where they engaged in other activities during the off-season. Id. In fact, Defendants contend, as to off-season training, “the Court will never have a way to assess where class members engaged in off-season training.” Id.
Defendants further challenge the ascer-tainability of class membership on the basis that the class definitions are unclear and overbroad. Id. at 9-12. First, they point to
' Second, Defendants argue that the classes are overbroad because they “include class members who have no cognizable wage-and-hour claims against their Club under that state’s law.” Id. at 10 (citing Tietsworth v. Sears, Roebuck & Co., No. 5:09-cv-00288-JF,
ii. Typicality
According to Defendants, the typicality requirement cannot be met if the class representative had no dealings with the Defendants against whom the class asserts claims. Id. (citing Mazur v. eBay, Inc.,
Defendants also argue that the claims of the classes may not be typical of the class representatives because many of the proposed class representatives played for Clubs that have been dismissed as defendants; as a consequence, these class representatives’ claims will fail if Plaintiffs do not establish that the Clubs and MLB had a joint employment relationship. Id. at 14. The class representatives who fall in this category are: Arizona Class Representative Nick Giarraputo (played “exclusively for a Dismissed Club while in Arizona”); Florida Class representatives Ryan Khoury, Brett Newsome, Roberto Ortiz, Tim Pahuta, Brandon Pinckney, and David Quinowski (played “exclusively for Dismissed Clubs while in Florida”); New York Class representatives Ryan Khoury and Kris Watts (played “exclusively for Dismissed Clubs while in New York”); Maryland Class representatives Brett Newsome and Roberto Ortiz (played “exclusively for Dismissed Clubs”); and Pennsylvania Class Representative Tim' Pahuta (played “exclusively got a Dismissed Club while in Pennsylvania”).
Finally, Defendants argue that the claims of the classes don’t satisfy the typicality requirement because the claims of the class representatives are based on “activities they allegedly performed in that particular state that are not typical of the activities performed by the class members whom they seek to represent.” Id. at 15.
iii. Commonality
Defendants argue that the commonality requirement is not met because Plaintiffs have not offered “‘significant proof that a resolution of the legal issues in the case shall be performed ‘in one stroke.’” Id. at 15 (quoting Wal-Mart Stores, Inc. v. Dukes,
With respect to the primary beneficiary test, Defendants argue that the Court will be required to “analyze the job duties and work performed by class members” to determine if they were apprentices or trainees and that this analysis cannot be conducted on a class-wide basis under the facts here. Id. at 17 (quoting Brady v. Deloitte & Touche LLP, No. C 08-177 SI,
Similarly, as to the question of whether MLB is a joint employer, Defendants argue, the Court will be required to conduct a “highly individualized, fact-specific” analysis that will render class treatment inappropriate. Id. at 19 (citing Maddock v. KB Homes, Inc.,
Defendants also dispute Plaintiffs’ assertion that there are “common resolutions to the key issues in this case simply because minor leaguers all signed UPCs.” Id. at 20 (citing Rule 23 Motion at 23). The UPC only sets the players’ “base salary, that is, only for their first championship season,” Defendants assert. Id. (emphasis in original). It does not dictate the bonus each player receives, college scholarship benefits or participation in an incentive bonus plan. Id. Rather, Defendants assert, “[t]hese and all aspects of player compensation (aside from first-year championship base salary) are determined between players and their individual Clubs.” Id. (citing Motion to Decertify at 7-10; SCAC at 307 (UPC)). According to Defendants, “the disparate policies and practices of each Club further preclude a finding of commonality.” Id. at 21.
iv. Adequacy
Defendants argue that the adequacy requirement is not met because the class representatives have engaged in misconduct in connection with their declarations, with some signing false and misleading declarations and others signing declarations they did not prepare or review. Id. at 21-22 (citing Bloom Rule 23 Opposition Deck, Ex. 2). Class counsel has also engaged in conduct that undermines their adequacy, Defendants contend. Id. In particular, Defendants assert that Mr. Broshuis “engaged in what appears to be solicitation of Named Plaintiffs.” Id. Defendants also contend counsel filed and refiled declarations they knew or should have known were false and relied on stock, boilerplate declarations. Id. This conduct does not satisfy the adequacy requirement, Defendants assert. Id. (citing Bodner v. Oreck Direct, LLC, No. C 06-4756 MHP,
c. Rule 23(b)(3)
Defendants argue that the predominance requirement of Rule 23(b)(3), which is more stringent than the commonality requirement of Rule 23(a), also is not satisfied because individualized inquiries will overwhelm any common issues. Id. at 23-38. First, as discussed above, Defendants assert that in order to determine liability, the Court will have to conduct an individualized analysis of the types of activities the class members engaged in to determine if they constituted compensable work, and the compensation each class member received. Id. (citing Levi-
Another question that will require individualized inquiries, according to Defendants, is how much time players engaged in each activity. Id. This question will go to liability on the overtime claims and will differ for each player depending on “a number of factors, including the activities in which they participated and the Club or affiliate for whom they played.” Id. Defendants argue that in characterizing them claims as “off-the-cloek,” Plaintiffs overlook the fact that courts have held that such claims cannot be addressed on a elasswide basis. Id. at 26 (citing Lou v. Ma Labs., Inc., No. C 12-05409 WHA,
Defendants also assert that individualized inquiries will have to be conducted to determine which players were payed minimum wages under the relevant states’ laws and which were not. Id, at 26-28. They point to large variations among the players as to the size of their signing bonuses, citing as examples the bonuses paid to (now dismissed) named Plaintiff Matt Lewis ($100,000) and putative class member Yoan Moneada ($31,-500,000). Id. at 27 (citing Bloom Rule 23 Opposition Deck, Ex. 40 & ¶ 88). They also point to the monthly salary negotiated by named Plaintiff David Quinowski as a free agent ($10,000/month). Id. (citing Motion to Decertify at 9 (citing Quinowski Dep. at 145-46)). In addition, they assert, some class members received various forms of additional compensation outside of the championship
Defendants also argue that the defenses they assert against Plaintiffs’ claims will require individualized inquiries that will overwhelm any common issues. Id. at 28-29. These defenses include the various creative professional and seasonal amusement exemptions recognized (in varying forms) under many of the relevant states’ laws. Id. 28. As to the creative professional exemption, Defendants argue, the Court will have to conduct individualized inquiries as to the players’ “primary duties” and “salary threshold.” Id. at 29. Similarly, they contend, the seasonal amusement exemption would require the Court to address the operating time and receipts of each “establishment” where players performed compensable work, applying a variety of state law standards, for each year in the class period, in order to determine whether the exemption applied. Id.
The difficulty of addressing the individualized issues discussed above would be multiplied by the choice-of-law analyses that the Court would have to conduct, Defendants argue. Id. at 29-31. In particular, they contend, the Court would have to “grapple with choice-of-law across a multitude of states to determine which state’s law applies to the alleged work at issue.” Id. at 29. Further, they assert, “in the event that a state law other than the state law of the subclass applies to certain alleged work, administration of the class becomes impracticable.” Id. at 30. Defendants argue that Plaintiffs have entirely ignored the fact that each player performed work in a number of different states, thus requiring an individual choice-of-law analysis for each player. Id. According to Defendants, the necessity to conduct such an analysis makes it impossible for Plaintiffs to satisfy the predominance requirement. Id. (citing Williams v. Oberon Media, Inc., No. CV 09-8764-JFW AGRX,
To illustrate the magnitude of the choice-of-law problem, Defendants point to California’s three-part test for determining whose laws should apply (which focuses on how the laws of the competing jurisdictions differ, whether both states have an interest in applying their respective laws, and which states’ interest would be more impaired if its laws were not applied), arguing that the application of this standard would have to be conducted for each non-forum state with an interest in the application of its laws and for each claim. Id. (citing Williams,
Moreover, Defendants assert, even if the court can “hypothetically discern which laws apply to which claims, Plaintiffs have also failed to establish how a jury in a ‘single trial’ can possibly conceptualize the variations
Defendants argue that manageability problems alone preclude certification and characterize Plaintiffs’ proposed trial plan as merely an attempt to “paper over” these problems. Id. at 33. Plaintiffs’ proposal is insufficient, Defendants assert, because it makes no attempt to account for the resolution of the many individualized issues discussed above. Id. Defendants argue that extrapolating from the testimony of the 43 named Plaintiffs is not a viable option to resolve these issues because these players have “wildly variable testimony as to crucial legal questions in this case..., in light of the various activities in which they partook, the benefits they and the Defendants reaped from those activities, and the time they spent engaging in those activities.” Id. at 33-34 (citing Bloom Rule 23 Opposition Deck, Ex. 3 (chart prepared by Defendants listing alleged “Variations Exemplified by Deposition Testimony”); Beauperthuy v. 24 Hour Fitness USA Inc.,
d. Rule 23(b)(2)
Defendants argue that Plaintiffs’ alternative ground for certification, under Rule23(b)(2), also has no merit. Id. at 38. That section allows a class to be certified where class members seek common injunc-tive relief and money damages are only “incidental” to their claim, Defendants assert. Id. Further, only a current employee has standing to pursue injunctive relief, according to Defendants. Id. Here, however, the class does not include any current players and the requested injunctive relief (a declaration requiring that Defendants pay all statutorily required wages) “amounts to a request for monetary damages.” Under these circumstances, the request for money damages is not “incidental” to the claim for injunctive relief, Defendants contend. Id. Furthermore, none of the classes has standing to pursue injunctive relief. Id. Therefore, Defendants assert, Rule 23(b)(2) does not provide a basis for certification. Id.
e. Article III Standing
Finally, Defendants contend the Court must address the threshold issue of Article III standing before it decides the question of certification.
3. Plaintiffs’ Reply
Plaintiffs reject Defendants’ assertions that “minor league baseball is wholly different from one minor league affiliate to another,” pointing out that the purpose of the farm system, as stated in MLR 3(b), was to imbue “a similarity of conditions” for all minor leag-uers. Reply at 1. In fact, Plaintiffs contend, the evidence shows that “Plaintiffs and class members suffered the same types of injuries, as a result of common employment policies, while performing similar work during similar work periods.” Id. Thus, they contend, “[i]n one fell swoop, the Court can finally determine the legality of the practices for all minor leaguers, making class resolution of this matter the best means of resolution for all parties.” Id.
First, Plaintiffs reiterate their assertion that Rule 23’s commonality and predominance requirements are met, arguing that their claims raise not only common questions but also common answers. Id. at 2. Plaintiffs reject Defendants’ assertion that their trial plan is deficient, arguing that their approach finds support in the Supreme Court’s recent decision, Tyson Foods v. Bouaphakeo, — U.S. —,
Plaintiffs argue that Defendants mischar-acterize their claims when they assert that the claims involve “no uniform policy.” Id. at 5. In fact, they contend, their core claims “arise from uniform, classwide policies” that are susceptible to classwide proof. Id. In particular, they contend that their claims are based on: 1) a “core commonality” that “unpaid work [is] paid outside the championship season”; 2) Defendants’ admitted, uniform policy of not paying overtime to minor leag-uers; and 3) their failure to pay minimum wage in many instances, which can be evaluated based on the analysis of Dr. Kriegler, Plaintiffs’ expert. Id. at 5-6.
Plaintiffs argue that the existence of an employment relationship with both the Clubs and MLB will also turn on common evidence relating to the economic realities of the players’ relationship with Defendants. Id. at 6. Plaintiffs reject Defendants’ assertion that the “primary benefit doctrine” of Walling applies here, arguing that that case expressly “limited its holding to persons ‘without any express or implied compensation agreement'” in contrast to the facts here. Id. (quoting
Plaintiffs also reject Defendants’ argument that the variations as to signing bonuses, college scholarship plans, and incentive bonus plans raise individual issues. Id. at 7. Rather, Plaintiffs assert, these payments “yield another classwide question,” namely, whether they constitute wages. Id. Plaintiffs also note that these payments are subject to “stock language” contained in Addendum B of the UPC and therefore, that their terms and conditions are uniform. Id. The nature of the work performed by minor leaguers also does not require individual inquiries, Plaintiffs assert, because “vast evidence” indicates that the core activities in which they engage are “quite similar.” Id. at 8. Moreover, the defenses Defendants assert also raise common issues, Plaintiffs contend. Id. at 9. For example, the creative professionals exemption “will be assessed by looking at the core duties of all minor leaguers and Defendants’ pay practices.” Id. Thus, no individual inquiries will be necessary, Plaintiffs contend. Id. Similarly, the amusement exemption will not
Plaintiffs reject Defendants’ contention that choice-of-law issues preclude certification. Id. at 10. They assert that the states’ laws are “quite similar” and that in the few areas where there are variations, these differences are manageable. Id. As to choosing which of the eight states’ laws will apply, the “mechanics will be simple,” they say. Id. In particular, they contend the following approach will work:
For spring training, extended spring training, and instructional leagues, either Ati-zona or Florida law will apply (depending on where the MLB franchise has its facility). The in-season work will be tied to the affiliate at which a minor leaguer is assigned; if a player is assigned to the San Jose Giants, for example, then California law will apply. See Cotter v. Lyft, Inc.,60 F.Supp.3d 1059 , 1063 (N.D.Cal.2014) (law of state where work primarily performed applies). During the off-season training period, the law of the state in which the minor leaguer resides will apply.
Id. Plaintiffs explain further, “[i]f a minor leaguer resides in California during that time, then California law will apply. If he lives in a state such as Idaho, however, then no Rule 23 class in this action would cover that off-season training work because Plaintiffs have not asserted Idaho claims.” Id. n. 23.
Plaintiffs argue that Defendants are incorrect in asserting that the classes do not satisfy the typicality requirement of Rule 23(a). Id. at 11. According to Plaintiffs, the class members suffered similar injuries as a result of similar conduct that constituted a common, concerted scheme, and this is sufficient to satisfy the typicality requirement. Id. Plaintiffs reject the argument that some class representatives’ claims are atypical because they worked for Dismissed Clubs and therefore only have claims against MLB. Id. at 12. Because all class members are asserting claims against MLB, Plaintiffs contend, these class representatives satisfy the typicality requirement. Plaintiffs also reject Defendants’ related assertion that Plaintiffs lack standing because each State Class does not have a class representative for each Club. Id. Plaintiffs argue that the Court has already held that the standing question will not be resolved until after the class certification stage of the case. Id. If the classes are certified, Plaintiffs assert, the standing inquiry will take into account not only class representatives but also class members. Id. (citing In re I.Q. Carrier, Inc.,
According to Plaintiffs, the adequacy requirement is also satisfied. With respect to Defendants’ allegations that many of the proposed class representatives are ignorant of the basic facts of the case, Plaintiffs argue that the class representative does not need to “know every detail of the case but instead must simply be ‘familiar with the basic elements of her claim, and will be deemed inadequate only if she is startlingly unfamiliar with the ease.’ ” Id. (quoting Californians for Disability Rights, Inc. v. Cal. Dep’t of Transp.,
Plaintiffs also reject Defendants’ assertion that the classes are not ascertainable. Plaintiffs argue that the class need not be “so ascertainable that every potential member can be identified at the commencement of the action.” Id. at 14 (quoting O’Connor v. Boeing N. Am., Inc.,
Finally, Plaintiffs contend Rule 23(b)(2) is satisfied because one of the primary objectives of this action is to obtain injunctive relief forcing Defendants to change them compensation practices. Id To the extent the Court may find that the injunctive relief claim requires named Plaintiffs who are current players, Plaintiffs request leave to amend to add such players, citing this Court’s decision allowing a similar amendment in Villalpando v. Exel Direct Inc., No. 12-cv-04137 JCS,
B. The Motion to Decertify
1. Defendants’ Motion
Defendants’ motion to decertify the FLSA collective mirrors their Opposition to Plaintiffs’ Rule 23 Motion in many respects. Broadly speaking, Defendants argue that the FLSA collective should be decertified for the same reason Plaintiffs’ Rule 23 Motion should be denied, namely, that the “experience of each player varied widely based not only on which one (or more) of the 30 Major League Clubs for which he aspired to play, but even further based on playing for one (or more) of the Clubs’ 180 minor league affiliates, whose hundreds of different managers, coaches, and trainers not only determine, but also oversee, players’ daily activities.” Motion to Decertify at 1. Defendants contend that while the “cookie-cutter” declarations supplied earlier in the case may have been sufficient to warrant preliminary certification, these declarations have proven to be “misleading at best and false at worst.” Id. at 1-2, Defendants argue that given the more stringent standard that applies at the second stage of the FLSA certification process, and in light of the “voluminous evidence adduced,” “it is clear that Plaintiffs cannot prove that they are similarly situated, either to each other or to all opfc-in plaintiffs.” Id. at 2.
In their overview of the relevant evidence, Defendants contend Plaintiffs have a “shared dream of eventually playing in the Major Leagues” but otherwise have “varied experiences.” Id. at 2. In particular, Defendants contend Plaintiffs are not similarly situated as to the question of whether they are employees, their wages earned, or the hours they allegedly worked throughout the year. Id. at 4-19. As to the question of whether Plaintiffs are employees, Defendants contend the “primary beneficiary” test applies, which involves consideration of “whether Defendants received an immediate advantage from the activities performed by plaintiffs, whether plaintiffs expected to receive compensation, whether they expected to be hired by Major League Clubs, and whether their participation in the training activities offered to them resulted in the displacement of any Major League Players who would have otherwise been afforded those training opportunities.” Id, at 4.
According to Defendants, “the minor leagues exist for the purpose of enhancing the skills and opportunities of minor league players with the ultimate goal of helping them develop into Major League Players, although only a small fraction of minor league players actually reach their goal of playing in the Major Leagues.” Id. Thus, the Professional Baseball Agreement (“PBA”), which is incorporated into the UPC, states that the “purpose of the minor leagues is to ‘[pjrovide an environment for athletes to develop their potential as Major League players and to become role models for our society
Defendants also quote the following testimony they contend demonstrates that the experiences of the players varied as to the training activities offered to them:
• Minicamps: Kiel Dep. at 292 (“[Y]ou want to be seen [at minicamp] so that a lot of these coordinators who may.. .have not seen when you got drafted or through your first season would at least see you working hard and trying to... get better.”); Daly Dep. at 139-140 (considered it “an honor to be selected” to attend and thought it would “improve [his] skills”). Cf. Meade Dep. at 142 (“Well, did I feel like I was any better when I left mini camp — or when I left Instructs than I was when I was in college? No.”).
• Extended Spring Training: Opitz Dep. at 265 (“improved as a player as a result of participating in extended spring training”); Hilligoss Dep. at 186 (purpose was “to keep getting me healthier [following injury] and to see live pitching.,. .The more you play, the more.. .it becomes normal”); Duff Dep. at 203 (attended because he “[w]asn’t good enough to make it to the team above... .It was essentially a way to.. .continue preparing for your opportunity.”). Cf. Frevert Dep. at 218 (“There was a lot of basic instruction going on that I felt like I had previously learned in college that for some of us down there in extended spring training program didn’t need to be going over. It was somewhat remedial.”).
• Instruction from Coaches and Trainers: Santiago Dep. at 208-209 (throwing ability and control improved based on training received from minor league coaches and trainers); Pahuta Dep. at 231 (coaches helped him improve in fielding and hitting for power); McAtee Dep. at 272-273 (regained control in pitching with help of a new pitching coach). Cf. Smith Dep. at 106-107, 107 (did not improve as a result of coaching; “one of them told me one thing, the other one told me the other”); Newby Dep. at 98 (no college or minor league coaches stood out as especially helpful).
• Off-Season Training: Bennigson Dep. at 298 (was healthier and stronger due to offseason weights program); Gagnier Dep, at 105 (exercises in the off-season pitcher’s manual were “beneficial to staying in shape”); Santiago Dep. at 195 (engaging in offseason conditioning would “probably get a better chance of playing in the next level”). Cf. Henderson Dep. at 181 (Twins benefited from his off-season training because they “received a better baseball player that could produce on the field”); L, Davis Dep. at 235-236 (Nationals gave him training manual so he could get “how they pretty much want me to be when I come back”); Aguilar Dep. at 197-198, 210-211 (training helped him with “maintaining [his] weight, keeping [his] body fat down,” but he would not be “in tiptop shape” if he adhered to training manual).
Id. at 6,
With respect to variations in compensation and hours worked, Defendants acknowledge that the UPC sets a uniform base salary, but assert that this is “a small fraction of players’ total possible compensation.” Id. at 7. Other than the base salary, Defendants contend, all other aspects of players’ compensation “are determined between players and their individual Clubs.” Id. Defendants assert that the players’ testimony confirms that many of them negotiated with the Clubs as to signing bonuses, benefits under the College Scholarship Plan, and participation in the Incentive Bonus Plan — even though the players stated in their declarations that they were made to sign their contracts without negotiation. Id.
Defendants also assert that “Plaintiffs are not similarly situated for the additional reason that the collective includes players who were on a Major League 40-man roster and therefore represented by a union, the Major League Baseball Players Association. Accordingly, the compensation these players received while they were members of the union was determined in collective bargaining.” Id, In addition, Defendants contend that after their first year, players’ salaries are determined by the individual Clubs rather than MLB, “based on factors of their choosing.” Id. (citing Vuch Dep. at 198-199 (testifying about what factors the Cardinals consider when setting salaries); Chattin Dep. at 222-223 (testifying that Marlins use their own salary scale that is not based on MLB recommendations); Broadway Dep. at 307 (testifying that Pirates use their own salary scale)). Furthermore, some players are “free agents” who negotiate their base salaries and bonuses individually, with the assistance of player agents. Id. at 9, According to Defendants, “[a]s of the time that plaintiffs filed their motion for notice to the class, the Clubs had negotiated a total of 5,820 contracts with 2,960 different minor league free agents since 2011.” Id. (citing Declaration of Peter Wood-fork in Support of Defendants’ Opposition to Plaintiffs’ Motion for Notice to the Class and Conditional Certification Pursuant to the Fair Labor Standards Act, Docket No. 430-15 (“Woodfork Conditional Certification Deck”) ¶ 5).
As a consequence of these variations, Defendants argue, players’ base salaries “varied widely.” Id. at 9 (citing Quinowski Dep. at 145-146 (negotiated a salary of $10,000/ month); L. Davis Dep. (salary increased to collectively-bargained amount of $5,327.87/ month when he was placed on Nationals 40-man roster); Aguilar Dep. at 86, 91 (salary rose fi’om $1,500/month to collectively-bargained amount of $5,327.87/month when placed on Brewers 40-man roster)).
Defendants assert that the schedules and training activities of the class members, like their compensation, also varied widely depending on numerous factors. Id. at 10. They cite evidence that players’ managers have discretion as to whether the players are required to perform “early work,” “whether to hold batting practice or take infield/outfield before a game, which activities to schedule as part of pregame warmups, and what time players take the field.” Id. (citing Gwynn Dep. at 204; Broadway Dep. at 231, 237; Turner Dep. at 169; D. Davis Dep. at 176-177; Harper Dep. at 110-111)). According to Defendants, hours varied depending on their
Defendants also argue that there were variations in the Plaintiffs’ hours depending on the activities they “voluntarily chose to do ‘off the clock’ and according to their personal preferences, rendering their schedules wholly unique from one player to the next and one day to the next.” Id. at 12 (citing deposition testimony of Justin Murray at 180-181, Michael Liberto at 136-137, Matt Lawson at 150-152, and Leonard Davis at 220-221, addressing their reasons for arriving at the stadium early or staying after practices or games). According to Defendants, the differences in Plaintiffs’ hours “preclude arriving at a common answer to the ultimate questions of whether plaintiffs were employees, whether they were performing compensable work, and whether they were paid the minimum wage.” Id.
During the off-season as well, the activities of the players varied significantly, “both from person to person and from year to year,” Defendants contend. Id. at 13. According to Defendants, some players attended mini-camps before spring training, others did not; some attended extended spring training, others did not; some participated in instructional leagues, others did not. Id. These variations “create an impossible mixture of potential answers to the threshold questions of plaintiffs’ employment status, hours worked, and whether they were compensated properly for these hours.” Id. at 13-14. Further, they contend, this problem is amplified by “the underlying diversity of each player’s experience within these activities (as described by plaintiffs and Club personnel alike), which further influences and personalizes the answers to these same threshold questions.” Id. at 14. For example, “different Clubs organize different numbers of minicamps in a given year, and do so for their own, discrete purposes,” Defendants contend. Id. (citing Meade Dep. at 90-92; Britt Dep. at 110; Diggs Dep. at 3, 76). Extended spring training is similarly varied. Id. at 14-15 (citing Lieppman Dep. at 257-258, testifying that several different types of players participate in extended spring training for different purposes). The same is true for instructional leagues, Defendants assert. Id. at 15 (citing Royals Decl. ¶ 13 (Docket No. 430-14); Rockies Decl. ¶ 14 (Docket No. 430-14); Broadway Dep. at 219-220; Diggs Dep. at 222; Harper Dep. at 139; Sharp Dep. at 235-236; Owen Dep. at 66). Finally, Defendants argue that the activities conducted at spring training also vary widely “based on factors such as Club, position, manager/coach discretion, and player choice.” Id. (citing Pahuta Dep. at 153-156; Hilligoss Dep. at 171; Kiel Dep. at 297; Owen Dep. at 148; Broadway Dep. at 218).
Off-season training and conditioning activities performed by the players are also widely divergent, according to Defendants. Id. at 16. Defendants assert that “[o]ff-season training activities were performed at locations of their choice, at any time of day they wished, and for any number of hours, based on each player’s individual, independent judgment.” Id. Defendants contend that the players’ testimony differed as to whether this training was mandatory or merely advisable, whether they were required to perform specific training activities or merely had to be sure they stayed in shape, and whether the Clubs kept track of their activities through contacts with the Club, submission of written logs or in-person visits. Id. at 16-17 (citing Nadeau Dep. at 248-249; Murray Dep. at 266-267; Gaston Dep. at 264; Khoury Dep. at 162-163; Murray Dep. at 266-267, 273; Meade Dep. at 173; Henderson Dep. at 167-168; Weeks Dep. at 228-229; Kiel Dep. at 231-232; Diggs Dep. at 244:12-15; Duff Dep. at 250; Kahaulelio Dep. at 110:3-15; Weeks Dep. at 170; Kiel Dep. at 231-232). The types of activities the players performed and the numbers of hours spent on them also varied widely, Defendants assert. Id. at 17-18 (citing Meade Dep. at 169; Daly Dep. at 151-152; Lawson Dep. at
The players’ testimony also differs, according to Defendants, as to whether they went “above and beyond” the training that was recommended by their Club and whether they believe they should be compensated for this extra training. Id. at 17 (citing Odie Dep. at 207; Aguilar Dep. at 178, 197-198; Britt Dep. at 218; Hutson Dep. at 224-225; Opitz Dep. at 323). Defendants also assert that some players seek compensation for voluntary recreational activities on the basis that they “conferred some physical benefit.” Id. at 18 (citing Aguilar Dep. at 176-177, 202 (paddle boarding in Hawaii); McAtee Dep. at 236-237 (hiking a mountain with his wife while on vacation); Gaston Dep. at 287 (participating in jiu jitsu and CrossFit); Odie Dep. at 213 (“throwing batting practice to high school kids”); Watts Dep. at 309-311 (hiking, golfing, spinning classes and swimming)). Other players seek compensation for physical therapy or rehabilitation during the off-season, Defendants assert. Id. (citing Nicholson Dep. at 297-301; Pahuta Dep. at 87-88; Gagnier Dep. at 112-114; Santiago Dep. at 188). And Defendants point to two plaintiffs who allegedly seek compensation for off-season training they performed while free agents, when they were not under contract with any Club. Id. at 18-19 (citing L. Davis Dep. at 232-233, 254-256,264; Pinckney Dep. at 234).
Based on the evidence discussed above, Defendants assert that Plaintiffs cannot meet their burden for proceeding on a collective basis under the FLSA even if the declarations supplied by Plaintiffs might have been sufficient to warrant conditional certification under the more lenient standard that governs that inquiry. Id. at 19-20. First, they argue that Plaintiffs are not similarly situated with respect to the threshold legal issue of whether they are “employees” within the meaning of the FLSA. Id. at 21-26. As in them opposition to the Rule 23 Motion, Defendants assert that this inquiry will be governed by Walling and the “primary beneficiary” test, and that application of this test will require individualized inquiries. Id. at 21-24. Similarly, Defendants argue that the question of whether MLB was their joint employer will require highly individualized inquiries and therefore is inappropriate for elasswide treatment. Id. at 24-26 (citing Pfohl v. Farmers Ins. Grp., No. CV 03-3080 DT (RCx),
Defendants further assert that Plaintiffs cannot proceed on a collective basis on their FLSA claims because of the “disparate factual and employment settings of the individual plaintiffs.” Id. at 27. Defendants reject Plaintiffs’ contention that the UPC and MLB Rules constitute a common policy or scheme that violates the FLSA. Id. Instead, Defendants contend, players’ compensation is a result of negotiations with the Clubs based on a variety of factors, including a “player’s potential, health, level of advancement, number of years of experience, and accomplishments during the season.” Id. at 28. Moreover, they contend, Plaintiffs’ characterization of the UPC and MLB Rules as “overarching policies” also “undermines their argument that the collective should remain certified, as courts recognize that “[a]n allegation of an ‘overarching’ policy is generally insufficient; plaintiffs must produce ‘substantial evidence’ of a ‘single decision, policy or plan.’ ” Id. (citing Reed v. Cty. of Orange,
Defendants cite off-season training, hours spent “rehabilitating” or recovering from injury, and travel time as examples of activities that would require extensive individual
Defendants argue that another factor that is considered in determining whether class treatment is appropriate under the FLSA— whether the defendants assert defenses that would require individualized proof — -also favors decertification. Id. at 35. In particular, Defendants argue that the seasonal amusement or recreational establishment exemption and the creative professional exemption will require individualized inquiries, just as they argued in their Opposition to the Rule 23 Motion. Id. at 36-37. They also argue that their statute of limitations defenses will require the Court to examine each individual Club to determine whether it acted in good faith. Id. at 35.
Finally, Defendants contend fairness and procedural considei'ations require that the collective be decertified. Id. at 37-40. First, Defendants argue that Plaintiffs have not offered a viable plan for trying the issues raised in this case on a collective basis and therefore, the interests of Plaintiffs and Defendants will be prejudiced if the Court does not decertify the collective. Id. at 38. Further, Defendants contend, it would be unfair to permit Plaintiffs to attempt to prove their claims on the basis of representative testimony and evidence given the dramatic differences in circumstances as to activities and compensation between class members. Id. at 40.
2, Plaintiffs’ Opposition
In their Opposition to the Motion to Decer-tify (“Decertification Opposition”), Plaintiffs reject Defendants’ “attempt to disavow” what Plaintiffs contend is a “common scheme [] whereby they do not pay minor leaguers for work performed outside the championship season, do not pay minor leaguers any overtime wages for work in excess of forty hours per week, and do not pay minor leaguers minimum wages for all hours worked during the championship season.” Decertification Opposition at 1-2. As in their Rule 23 Motion, Plaintiffs point to the UPC and the MLRs as evidence of this common scheme, and argue that because Plaintiffs challenge the legality of the policies set forth in them, this ease is “suitable for collective treatment” under the FLSA. Id. at 1.
Plaintiffs contend that all of the factors courts consider at the second stage of the FLSA certification project — “the disparate factual and employment settings of the individual plaintiffs,” “the various defenses available to the defendants with respect to the individual plaintiffs,” and “fairness and procedural considerations” — point in favor of allowing them to proceed with them claims on a classwide basis. Id. at 13-40. First, Plaintiffs contend the evidence shows Defendants have common policies as to three core issues in the case: failure to pay wages outside the championship season, failure to pay overtime wages, and failure to pay minimum wages for all hours worked during the championship season. Id. at 16-21. Plaintiffs reject Defendants’ reliance on alleged differences in the amount paid to players in wages and bonuses during the championship season as a basis for decertification. Id. at 21-25. Plaintiffs contend the variations in wages have no bearing at all on them claim for failure to pay wages except during the championship season be
With respect to their claim for overtime wages, Plaintiffs argue that the variations in wage rates will simply mean that the overtime rate (which is calculated at a rate of one and one half times the employee’s regular rate of pay for all hours worked over 40 hours per week) will vary for the purposes of determining damages. Id. Variations in damages, however, do not warrant decertification, Plaintiffs contend. Id. (citingGilmer v. Alameda-Contra Costa Transit Dist.,
To the extent Defendants contend the wage variations require decertification because they implicate issues of liability, Plaintiffs argue that Defendants’ position is “factually flawed because all minor leaguers suffered.. .damages for unpaid work outside the championship season regardless of their wages during the championship season.” Id. at 23. They also argue that Defendants’ position is “legally flawed because there is no requirement that all class members suffered an injury to maintain a class action.” Id. (citing Parko v. Shell Oil Co.,
Plaintiffs argue that variations in incentives and signing bonuses — like variations in wage rates — also do not justify decertification. Id. at 23. First, Plaintiffs assert, while the FLSA requires that some bonuses must be counted as part of an employee’s regular rate of pay for the purposes of determining whether they are entitled to minimum wage and overtime, this rule does not apply to “payments to an employee which are not made as compensation for his hours of employment.” Id. (quoting 29 U.S.C. § 207(e)(2); Minizza v. Stone Container Corp. Corrugated Container Div. East Plant,
Whether the bonus and incentive payments are or are not a part of the class members’ salaries, however, Plaintiffs argue that they “can be adjudicated on a classwide basis.”
Next, Plaintiffs address Defendants’ arguments that the collective should be decerti-fied because: 1) the employment status of the
With respect to employment status, Plaintiffs contend the relevant test is the “economic realities” test rather than the “primary benefit” test, as Defendants assert. Id. at 25-26 (citing Boucher v. Shaw,
Plaintiffs also argue that Defendants’ challenge to them reliance on survey and representative evidence in support of decertification runs counter to the FLSA’s requirement that “[e]very employer.. .shall make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other conditions and practices of employment.” Id. at 31 (citing 29 U.S.C. § 211(c)). Citing the Supreme Court’s decision in TysonFoods, Inc. v. Bouaphakeo, Plaintiffs assert that where, as here, an employer fails to keep records of work performed, employees are entitled to prove their hours worked using representative estimates and expert evidence. Id. at 31-32 (citing — U.S. —,
Plaintiffs reject Defendants’ assertion that the collective should be decertified because the members played for affiliates that are located in many different states. Id. at 33. According to Plaintiffs, so long as all of the members of the collective were subject to common employment policies, it makes no difference that they played in different states or are under the supervision of different managers. Id. at 33-35. Thus, they contend, nationwide collectives are commonly certified under the FLSA. Id. (citing Falcon v. Starbucks Corp.,
Plaintiffs argue that the affirmative defenses asserted by Defendants also do not warrant decertification of the collective. Id. gt 35-38. The FLSA statute of limitations defense, requiring a determination of whether Defendants acted in good faith, does not require individualized inquiries, Plaintiffs assert, because it turns on the conduct of Defendants, not the individual Plaintiffs. Id. at 36. The relevant conduct is common to all of the collective, according to Plaintiffs. Id. The amusement and recreational establishment exemption under the FLSA also does not require individual inquiries, Plaintiffs argue; rather, the Court will be able to determine whether the various establishments qualify for the exemption based on common evidence. Id. Plaintiffs further contend that the relevant “establishment” for the purposes of this exemption is the corporate headquarters rather than the various stadiums where games were played. Id. (citing 29 C.F.R. § 779.309).
The creative professionals exemption also lends itself to classwide treatment, according to Plaintiffs, because the duties component of the analysis will depend on the standard activities of the minor leaguers. Id. The salary component of the analysis is also capable of classwide resolution, Plaintiffs assert. Id. First, to the extent a salary involves payment of the same amount weekly or less frequently regardless of the hours worked, Plaintiffs contend none of the players satisfy this requirement because they are not paid anything at all outside of the championship season. Id. (citing 29 C.F.R. § 541.602). Second, they assert, even if the payments made during the championship season are deemed to be a salary, the question of whether the payments meet the threshold amount of $445/week can be determined on the basis of Defendants’ payroll records and therefore this inquiry does not point in favor of decerti-fication. Id. (citing 29 C.F.R. § 541.600).
Finally, Plaintiffs reject Defendants’ contention that the question of whether they performed compensable work will involve highly individualized inquiries, citing the broad interpretation of the term “work” under the FLSA. Id. at 37-38 (citing 29 C.F.R. §§ 785.7, 785.12, 785.38; IBP, Inc. v. Alvarez,
Finally, Plaintiffs reject Defendants’ assertion that the collective should be decerti-fied on the basis of fairness and procedural concerns. Id. at 38-40. This case involves common issues related to Defendants’ compensation policies and can be proved using elasswide evidence, Plaintiffs contend. Id. at 38. The “only ‘individualized’ issue in this ease centers on the total damages incurred by members of the Minor League Collective,” Plaintiffs assert, but individualized issues relating to damages are not a proper basis for decertification. Id (citing Gilmer v. Alameda-Contra Costa Transit Dist.,
3. Defendants’ Reply
In their Reply brief, Defendants argue that Plaintiffs “fail to adequately address the diverse composition of the collective and the highly individualized inquiries required to resolve the questions they raise.” Decertification Reply at 1. They assert that Plaintiffs have failed to demonstrate that they are similarly situated, rejecting Plaintiffs’ assertion that the economic realities test applies to the question of whether they performed com-pensable work and arguing further that Plaintiffs have not identified a common policy or scheme that violates the FLSA. Id. at 2-8. Plaintiffs also have not offered substantial evidence that they performed similar work, Defendants assert. Id. at 8-10. In addition, Defendants challenge the representative evidence Plaintiffs intend to present as “deeply flawed,” an argument that is also the subject of their separate Motion to Exclude. Id. at 11-13. Because Plaintiffs have not demonstrated that there are common answers to the issues they raise, a collective trial on Plaintiffs’ claims would be unmanageable and prejudicial, Defendants assert. Id. at 13-14. Further, for the reasons stated in the Motion to Decertify, Defendants argue that their defenses require individualized inquiries that make this case unsuitable for class treatment. Id. at 14-15.
C. The Motion to Exclude
1. Defendants’ Motion
In the Motion to Exclude, Defendants ask the Court to exclude the expert opinions offered in the declarations of Plaintiffs’ experts, Michael Dennis, Ph.D. and Brian Krie-gler, Ph.D., filed in support of class certification, on the basis that they are inherently unreliable and use flawed methodologies and therefore do not satisfy the requirements of Rule 702 of the Federal Rules of Evidence or Daubert. Motion to Exclude at 1. Defendants’ challenges focus primarily upon alleged inadequacies relating to the pilot survey conducted by Dr. Dennis (“Pilot Survey” or “Survey”); Defendants contend Dr. Kriegler’s opinions should be excluded because he relied on the Pilot Survey in his damages model. Id.
Defendants, citing the opinions of their own expert, Eugene P. Ericksen, Ph.D,, identify the following alleged shortcomings in the Pilot Survey: 1) the Survey suffers from coverage error; 2) the Survey suffers fi'om non-response bias; 3) the Survey suffers from self-interest bias; 4) the Survey suffers from recall bias and assumes accurate recall by respondents of the Survey; 5) the Survey asks respondents to perform burdensome cognitive tasks, resulting in “satisficing”; and 6) the Survey questions’ response categories influenced respondents’ answers. Id. at 1-2, 8-17; see also Expert Declaration of Eugene P. Ericksen in Support of Defendants’ Opposition to Plaintiffs’ Motion for Class Certification Under Federal Rule of Civil Procedure 23 [Docket No. 630] (“Ericksen Deel,”). They also assert that the Pilot Survey should be excluded as unreliable because even Dr. Dennis does not opine that is reliable, stating only that it “ ‘provides the foundation’ for a future reliable study.” Id. at 7, 20 (citing Dennis Decl. ¶ 44).
Defendants argue further that Dr. Dennis’s Survey is based on assumptions that are contradicted by direct evidence. Id. at 19-20. In particular, they assert that Dr. Dennis assumed that the minor league players are similarly situated when in fact, the players’ testimony shows that they did not spend similar amounts of time on the activities for which they seek compensation. Id. at 20. Defendants further contend the player testimony contradicts Dr. Dennis’s assumption that the players accurately l'ecalled the amount of time they spent on these activities.
For these reasons, Defendants ask the Court to exclude the declarations of both Dr. Dennis and Dr. Kriegler (as well as the underlying Survey results) and preclude them from testifying.
2. Plaintiffs’ Opposition
In their Opposition brief, Plaintiffs reject Defendants’ assertion that the opinions of Drs. Dennis and Kriegler should be excluded, arguing that at this stage of the case Dau-bert requires only that Plaintiffs’ experts demonstrate a sound methodology for conducting a representative survey of hours worked by minor leaguers. Opposition at 1. Plaintiffs contend Defendants apply the wrong standard, treating this pilot study as if it were the final study to be presented at trial. Id. With the proper standard in mind, Plaintiffs contend, Dr. Dennis’s methodology is sound, as was Dr. Kriegler’s reliance on the Pilot Survey in is declaration supporting class certification. Id. at 2-6. They argue further that under Tyson Foods and Mt. Clemens it is reasonable to rely on representative data because Defendants did not maintain adequate records of time worked. Id. at 8-10. Plaintiffs also reject the specific criticisms of Defendants’ expert relating to coverage error, non-response bias, self-interest bias, recall bias, and burdensome questions that result in “satisficing.” Id. at 10-18. Finally, Plaintiffs reject Defendants’ reliance on alleged inconsistencies between the record evidence and the Survey results. Id. at 18-21. According to Plaintiffs, their expert’s Survey, like the study in Tyson Foods, offers a “reliable and admissible methodology for providing estimates of hours worked by class members.” Id. at 19. Similarly, they contend, Dr. Kriegler uses a statistical methodology that is reasonable and conforms with accepted practices in the field. Id. at 21.
3. Defendants’ Reply
Defendants reject Plaintiffs’ assertions that their experts’ declarations satisfy Dau-bert, arguing that even if a “tailored” Dau-bert standard is applied, Plaintiffs have failed to demonstrate that Dr. Dennis’s methodology is sound or that any future study based on a similar survey will be reliable. Reply at 1. To the contrary, they assert, Dr. Dennis’s survey suffers from fundamental flaws that cannot be remedied, namely, the inability of those surveyed to accurately recall the amount of time they spent on the various activities for which they seek compensation and the self-interest that will motivate any minor league player surveyed. Id. Defendants also reject Plaintiffs’ reliance on Tyson Foods, arguing that it “does not provide license to use any sort of representative evidence in all cases” and that it does not permit Plaintiffs to rely on the Dennis survey evidence where both the results and the methodology are “ridden with flaws.” Id.
IV. ANALYSIS
A. The Rule 23 Motion
1. General Legal Standards Governing Class Certification Under Rule 23
A class action may be maintained under Rule 23 of the Federal Rules of Civil Procedure if all of the requirements of Rule 23(a) are satisfied and the plaintiff demonstrates that one of the requirements of Rule 23(b) is met as well. Rule 23(a) requires that a plaintiff seeking to assert claims on behalf of a class demonstrate: (1) numerosity; (2) commonality; (3) typicality; and (4) fair and adequate representation of the interests of the class. Fed. R. Civ. P. 23(a). In addition to the explicit requirements of Rule 23(a), courts have found that “the party seeking class certification must demonstrate that an identifiable and ascertainable class exists.” Mazur v. eBay Inc.,
Rule 23(b)(2) allows a class action to be maintained where “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) allows a class action to be maintained where “the court finds 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). “An individual question is one where ‘members of a proposed class will need to present evidence that varies from member to member,’ while a common question is one where ‘the same evidence will suffice for each member to make a prima facie showing [or] the issue is susceptible to generalized, classwide proof.’” Tyson Foods, Inc. v. Bouaphakeo, — U.S. —,
“At class certification, a court does not accept at face value a plaintiffs theory of the case; the court must engage in a ‘rigorous analysis... [into whether]... the prerequisites of Rule 23(a) have been satisfied,’ and ‘frequently that “rigorous analysis” will entail some overlap with the merits of the plaintiffs underlying claim.’ ” Rodman v. Safeway, Inc., No. 11-CV-03003-JST,
2. Application of Legal Standards
The parties have engaged in extensive discovery in this case and have submitted a great deal of evidence in support of their respective positions. The Court has reviewed all of this evidence in detail. The Court concludes that while Plaintiffs have satisfied many of the requirements of Rule 23 — and might be able to remedy certain problems by narrowing or modifying their class definition — the individualized issues that would need to be addressed if Plaintiffs’ claims went forward on a class basis are insurmountable for the purposes of Rule 23(b)(3). Nor is the Court persuaded that it is appropriate to certify the proposed classes under Rule 23(b)(2) for the reasons set forth below.
a. Numerosity
Rule 23(a)(1) requires that the size of the proposed class be “so numerous that joinder of all the class members is impracticable.” While there is no set number cut-off, the number of individuals who will satisfy the requirements for membership in the proposed classes in this case easily satisfies the numerosity requirement. See Welling v. Alexy,
b. Ascertainability
“A threshold inquiry in determining whether a proposed class is appropriately certified is whether the class is sufficiently definite so as to render it ‘administratively feasible to determine if a given individual is a member of the class.’ ” Joyce v. City & County of San Francisco, No. C-93-4149 DLJ,
First, eourts look to whether the class definition establishes “objective, rather than subjective, criteria” for determining membership. Xavier v. Philip Morris USA Inc.,
A class definition may also fail because membership in the class depends upon a determination of the merits of the plaintiffs claim. For example, in Daniel F. v. Blue Shield of California, one of the reasons the court found that the proposed class definition fell short was that it defined membership in the class with reference to whether an individual had been wrongfully denied insurance coverage for residential treatment in violation of the Mental Health Parity Act.
In other cases, courts have found that a class was not ascertainable even though membership did not turn on any subjective criteria on the basis that determination of who was a member of the class would be “excessively complex,” requiring a highly fact-specific and individualized inquiry. Spencer v. Beavex, Inc., No. 05-CV-1501WQH,
This Court is aware that, in addition to considering the standard “ascertainability” requirements described infra, “some courts also have considered whether the class definition must exclude anyone who does not have a viable claim.” Wright & Miller, 7A Fed. Prac. & Proc. Civ. § 1760 (3d ed.). “In effect, this interpretation means that plaintiffs must plead what effectively is a ‘fail-safe’ class.” Id. But this concept does not appear in the text of Rule 23, and Defendant cites no precedential authority suggesting that this Court is bound to apply it. As noted in Wright & Miller, an en banc panel of the Third Circuit recently addressed “whether.. .[a] class could be properly certified if it contained class members who did not possess a viable claim,” and concluded “that it was not necessary to limit the class to those in states where a viable claim could be brought.” Id. (citing Sullivan v. DB Investments, Inc.,667 F.3d 273 , 304-07 (3d Cir.2011)); see also DG ex rel. Stricklin v. Devaughn,594 F.3d 1188 , 1201 (10th Cir.2010) (“[t]hat a class possibly or even likely includes persons unharmed by a defendant’s conduct should not preclude certification”). Ninth Circuit authority seems to be in accord. See Wolin v. Jaguar Land Rover North America, LLC,617 F.3d 1168 , 1173 (9th Cir.2010) (quoting Blackie v. Barrack,524 F.2d 891 , 901 (9th Cir.1975) (“proof of the manifestation of a defect is not a prerequisite to class certification... ‘[njeither the possibility that a plaintiff will be unable to prove his allegations, nor the possibility that the later course of the suit might unforeseeably prove the original decision to certify the class wrong, is a basis for declining to certify a class which apparently satisfies the Rule.’ ”)
Rodman v. Safeway, Inc., No. 11-CV-03003-JST,
Judge Tigar went on to recognize that “[t]here is a place in the Rule 23 analysis for considering whether a class definition is sufficiently ‘overbroad’ as to preclude certification.” Id. “The fact that a Proposed Class ‘will often include persons who have not been injured by the defendant’s conduct. . .does not preclude class certification,’ but it is also the case that ‘a class should not be certified if it is apparent that it contains a great many persons who have suffered no injury at the hands of the defendant.’ ” Id. (quoting Kohen v. Pac. Inv. Mgmt. Co. LLC,
With these standards in mind, the Court considers whether the State Classes proposed by Plaintiffs are ascertainable. The Court concludes that as currently defined, the classes are not ascertainable because of the problems associated with determining
First, because the class is defined on the basis of whether an individual performed “work” in a particular state, membership in the State Classes will turn on a threshold determination of whether particular activities constituted “work.” As recognized in Daniel F. v. Blue Shield of California, defining a class in a manner that requires that legal determinations be made to ascertain membership can be problematic under Rule 23.
Winter training activities present difficulties comparable to those in Spencer and Xavier. It is undisputed that there are no official records available that document these activities and that the home addresses provided by the players do not necessarily reflect where they conducted their off-season training. As a consequence, determining where the players conducted their off-season training for each of the years within the limitations periods would require highly individualized inquiries and might, ultimately, be impossible as players themselves are unlikely to remember the details of where they engaged in conditioning work, just as the court found in Xavier. This problem is compounded by the fact that the class definitions include the term “work,” which requires a threshold merits inquiry as to the meaning of that term. Defendants offer evidence that the minor league players engaged a wide variety of activities during the off-season to stay in top condition and the degree to which these activities were dictated by the Clubs and/or monitored by them appears to have varied a great deal from Club to Club and from player to player. It would be extremely difficult to draw clear lines regarding the types of activities that would qualify a player for membership in a particular State Class— especially as even the same activity might not always constitute “work,” depending upon whether or not the Club required that activity to be performed.
While Plaintiffs have cited two cases in which the class definitions used the term “work,” both of those cases involved work performed at the employer’s place of business, and there appear to have been no disputes as to the types of activities that constituted “work.” See Rule 23 Reply at 14 n. 32 (citing Dudum v. Carter’s Retail, Inc., No. 14-CV-00988-HSG,
As to the activities performed during the championship season, spring training and instructional leagues, the Court does not find that the inclusion of the term “work” in the class definition presents a serious problem with respect to ascertainability. While it is true that class membership would depend upon certain determinations by the Court as to the types of activities that constitute work, the evidence offered by Plaintiffs suggests that the types of activities that minor league players engage in during spring training, the championship season, and instructional leagues are quite similar. Consequently, it is unlikely that individualized inquiries would be required to determine class membership based on these types of activities.
On the other hand, there appear to be wide variations in the types of activities in which minor league players engaged to meet their winter training obligations, the degree of discretion players had as to how they conducted their winter training and the degree of supervision over the players by the Clubs. As a consequence, to evaluate which of the players’ winter training activities constituted “work” would be much more likely to involve highly individualized inquiries that make the
The difficulties associated with determining what activities constitute “work” in the context of winter training are compounded by the fact that there appear to be no official records documenting these activities. Because it may be impossible to determine from official records the types of conditioning activities in which the players engaged, membership in the State Classes based on winter training would depend largely upon the players’ ability to remember, with a reasonable amount of detail, what they did during the off-season (often for multiple years and for many, several years in the past) to stay fit. As discussed below, in connection with the Motion to Exclude, the Court has grave doubts as to ability of the players to remember in the necessary detail, for many years, these activities.
The Court finds that the question of where minor league players conducted their various winter training activities will involve laborious and highly individualized inquiries. As class membership is based, in part, on the location of the work that each minor league player performed, this is an issue of ascer-tainability. Although Plaintiffs contend the addresses that the minor league players provided to the Clubs for the purposes of receiv-mg communications during the off-season can be used to determine where winter training occurred, Defendants have introduced deposition testimony suggesting that the players did not necessarily reside at these addresses (which were often the addresses of them parents) during the off-season. See, e.g., Bloom Rule 23 Opposition Deck, Ex. 79 (Watts Dep.) at 272 (testifying that he used parents’ address because it was only stable address he had while he was a minor league player but that he did not actually reside at that address during the off-season). Thus, with respect to class membership based on winter training, there will be no simple way to determine who is a member of each of the State Classes. Indeed, such a determination may be next to impossible, making the State Classes, as currently defined, unascertaina-ble.
c. Commonality
The commonality requirement of Rule 23(a)(2) is met where “the class members’ claims ‘depend upon a common contention’ such that ‘determination of its truth or falsity will resolve an issue that is central to the validity of each [claim] with one stroke.’ ” Mazza v. Am. Honda Motor Co.,
The Court finds that Plaintiffs have satisfied the commonality requirement. In particular, they have asserted three core claims that arise from the compensation policies set forth in the UPC and MLRs, namely, failure to pay players a salary outside the championship season, failure to pay overtime, and failure to pay minimum wage during the championship season. Plaintiffs present common evidence to show that all minor league players are subject to these policies and therefore, their legality will raise common questions of law that are likely drive the resolution of the litigation. As discussed below, all of these claims (and many of the defenses Defendants assert against them) also raise individualized issues that present substantial — if not insurmountable — challenges to classwide adjudication. Nonetheless, the Court finds that these claims satisfy the low threshold of Rule 23(a)(2).
d. Typicality
Rule 23(a)(3) requires that “the [legal] claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “Typicality refers to the nature of the claim or defense of the class representative and not on facts surrounding the claim or defense.” Hunt v. Check Recovery Sys., Inc.,
As a general rule, “a plaintiff who has no cause of action against the defendant cannot ‘fairly and adequately protect the interests’ of those who do have such causes of action.. .even though the plaintiff may have suffered an identical injury at the hands of a party other than the defendant and even though his attorney is excellent in every material respect.” La Mar v. H & B Novelty & Loan Co.,
Here, the Court finds that MLB and the franchise Defendants are “juridically related,” because they have come together to form MLB by enacting the MLB constitution and have jointly issued the MLB rules and UPC pursuant to that constitution. Because of these rules and agreements, all of the Defendants in this action are bound to a common course of conduct with respect to the compensation of minor league players. Under these circumstances, the general rule articulated in La Mar does not apply and a class representative’s claims may be typical of the absent class members’ claims even if their claims are asserted against different defendants. Consequently, the Court rejects Defendants’ assertion that in order to satisfy the typicality requirement there must be a class representative for each of the Clubs for each of the state classes.
The Court also is not persuaded by Defendants’ reliance on the fact that some of the class representatives played for dismissed Clubs and therefore, their claims stand or fall on whether MLB is found to be a joint employer (whereas some class members assert claims against both MLB and Clubs that remain as defendants in the action). It is sufficient that all class members assert a claim against MLB based on similar injuries for these class representatives’ claims to satisfy the typicality requirement. See Akaosugi v. Benihana Nat’l Corp.,
Finally, the Court addresses Defendants’ assertion that the class representatives do not satisfy the typicality requirement because many of them are “proffered as Class representatives based on activities they allegedly performed in that particular state that are not typical of the activities performed by the class members whom they seek to represent.” Rule 23 Opposition at 15. Under this theory, a class representative who performed only off-season training in a particular state, for example, will have claims that are not typical of class members who are members of the class based on their activities in that state during the championship season. This criticism carries some weight with the Court.
Although the parties do not appear to have addressed the question, the Court finds that in cases such as this, where the claims can be broken down into various subcategories involving a variety of activities which are likely to raise discrete issues (e.g., the compensability of travel time during the championship season or the types of activities and degree of supervision required to recover for winter training), it is not necessarily reasonable (or even possible) to require that each and every class representative must have engaged in all of the relevant activities that give rise to the claims asserted by the class to satisfy the typicality requirement (though certainly each class representative must have engaged in at least some of the categories of activities that are the sub-
The Court concludes that Plaintiffs have not demonstrated that this requirement is met. As a preliminary matter, Plaintiffs failed to respond to Defendants’ specific challenges as to a number of the class representatives who may or may not have timely claims under the laws of the states for which they seek to represent a class. For example, they have not explained how Ryan Kiel can be an appropriate class representative for the Florida class when he is not alleged to have engaged in any baseball-related activities in Florida and there appears to be no evidence in the record of any such contacts. Nor have they addressed the fact that Ryan Khoury seeks to represent the New York class but apparently has only engaged in baseball-related activities in New York when he traveled to away games; given that Plaintiffs say that in-season activities will be “tied to the affiliate at which the minor-leaguer is assigned,” Rule 23 Reply at 10, and Mr. Khoury was never assigned to an affiliate based in New York, any claims based on his time in New York would presumably be asserted under the law(s) of other states. Similarly, Plaintiffs do not address challenges based on the allegation that some of the proposed class representatives’ claims (those of Kris Watts, Joseph Newby and Jon 6a-ston) would be untimely under the relevant states’ laws because their activities in those states fell outside of the applicable limitations periods. It is well-established that “a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” Gen. Tel Co. of Sw. v. Falcon,
More broadly, the Court is unable to determine whether the proposed class representatives for each state class collectively present claims that are typical of the class. This would require a showing that for each state class, there are class representatives who engaged in all of the various types of activities that will be the subject of that class’s claims and have timely claims under that state’s laws. Based on the current record, Plaintiffs have not demonstrated that the typicality requirement is met.
e. Adequacy
Rule 23(a)(4) requires that the class representatives “fairly and adequately protect the interests of the class.” “Determining whether the representative parties adequately represent a class involves two inquiries: (1) whether the named plaintiff and his or her counsel have any conflicts of interest with other class members and (2) whether the named plaintiff and his or her counsel will act vigorously on behalf of the class.” Calvert v. Red Robin Int'l, Inc., No. C 11-03026 WHA,
As discussed above, Plaintiffs have not established that all of the proposed class representatives can assert claims under the relevant states’ laws. To the extent these individuals may not be members of the classes they seek to represent, they cannot adequately represent those classes. See Diacakis v. Comcast Corp., No. C 11-3002 SBA,
With respect to the class representatives, Defendants allege that they have offered testimony that contradicts their declarations, filed declarations that contain stock language, demonstrated a lack of fundamental knowledge of the claims in the case and, as to a handful of individuals, engaged in affirmative misconduct. See Bloom Rule 23 Opposition Deck, Ex. 2. As a preliminary matter, the Court addresses Plaintiffs’ request that the Court to strike Exhibit 2, along with three other similar exhibits attached to the Bloom declaration on the basis that the charts that they contain are impermissibly argumentative and violate the page limits set forth in the Civil Local Rules. See Rule 23 Reply Brief at 12 n. 26. They cite Think Village-Kiwi, LLC v. Adobe Systems, Inc., in which the court struck an exhibit that consisted of a chart listing all the disputed facts that were alleged to preclude summary judgment, along with an explanation by counsel why each of these facts was not material and therefore did not preclude summary judgment. No. C 08-04166 SI,
Here, Defendants’ charts arguably fail to comply with the page limitations of the Local Rules to the extent that their arguments are set forth in much greater detail in the exhibits than is contained in them briefs. Nonetheless, the Court declines to strike these exhibits. Defendants’ charts are primarily a means of identifying the specific evidence that Defendants contend supports the general arguments set forth in their briefs. Given the challenges of addressing the extensive evidence and multitude of issues that must be resolved at this stage of the case, the Court concludes that it was not unreasonable, at least in principle, to summarize the supporting evidence in this manner. Therefore, the Court declines to strike these exhibits.
While Defendants’ exhibits do not violate the Local Rules, the Court nonetheless finds that the lengthy and detailed allegations attacking the adequacy of the class representatives are largely unfounded and frequently exaggerated. The Court’s conclusions are based on a detailed review of the evidence cited in Exhibit 2 for each and every class representative, although the Court only addresses Defendants’ allegations on a general level here.
The Court is similarly unpersuaded by Defendants’ suggestion that the statements of some of the players in their declarations that MLB “supervised and dictated their duties and responsibilities” were false or unreliable in light of deposition testimony by those same players that they couldn’t remember the names of any MLB executives. See Bloom Decl., Ex. 2 (identifying the following players as having offered such “inconsistent” testimony: Bennigson, Britt, Daly, Duff, Gag-nier, Giarraputo, Henderson, Hilligoss, Ka-haulelio, Khoury, Kiel, Lawson, Liberto, Na-deau, Pinckney, Stone, and Weeks). Plaintiffs have consistently asserted that MLB set the rules and conditions of their employment through the MLRs and the UPC; they have never argued that MLB executives or personnel directly supervised their day-to-day activities. Plaintiffs’ testimony that they could not name any specific MLB personnel is therefore neither surprising nor inconsistent with their declarations.
It is true that Defendants have identified some actual inconsistencies. David Qui-nowski, for example, stated in his declaration that he “believe[d] [his] salary during the championship [season] began [at] less than $1,000/month,” see Docket No. 414-33 ¶ 28, but at his deposition he conceded that his base pay was $1,100/month after he was asked to review the UPC he had signed. See Docket No. 631-38. This sort of inconsistency is not of the magnitude that renders class representatives inadequate, however. Rather, such inconsistencies are appropriate issues for the jury to consider in determining whether Plaintiffs can prove their claims. The Court concludes that the alleged inconsistencies between the players’ declarations and their testimony does not rise to a level that would cast doubt on the adequacy of Plaintiffs or counsel to represent the class.
The Court also rejects Defendants’ reliance on the fact that the proposed class representatives submitted declarations containing stock language. It is no secret that in the class action context declarations, in the first instance, are often drafted by counsel based on conversations with class representatives and often contain stock language. While boilerplate declarations can cast doubt on the adequacy of the class representatives, the declarations here are not so similar as to suggest that the class representatives did not review them or that counsel was remiss in including such stock language. Moreover, the evidence in the record indicates that the class representatives have a basic understanding of the case and have engaged in reasonable efforts in connection with discovery. See Zi-gler Rule 23 Reply Deck, Ex. C [Docket No. 643],
Finally, the Court rejects Defendants’ reliance on the alleged affirmative misconduct of the class representatives. This alleged misconduct takes a variety of forms, with one of the more extreme allegations being that a class representative showed up at his deposition under the influence of drugs and/or repeatedly left the room to take drugs. While such conduct on the part of a class represen
The Court also rejects Defendants’ assertions that Plaintiffs’ counsel cannot adequately represent the class. Plaintiffs’ counsel has already demonstrated that they are experienced in the area of wage and hour class actions and the Court has observed at first-hand that counsel has vigorously represented Plaintiffs’ interests. Nor is the Court impressed by Defendants’ citation of testimony by some named Plaintiffs that they joined the case after receiving telephone calls or emails from Mr. Broshuis. See Rule 23 Opposition at 22 n. 32. Defendants rely on Bodner v. Oreck Direct, LLC, but that case is clearly distinguishable. In Bodner, Judge Patel refused to certify the class based in part on the plaintiffs “overwhelming and undeniable ignorance about the nature” of the case, making it clear that “plaintiffs counsel, and not plaintiff, [was] the driving force” in the action. Bodner v. Oreck Direct, LLC, No. C 06-4756 MHP,
f. Predominance under Rule 23(b)(3)
The predominance test of Rule 23(b)(3) is “far more demanding” than the commonality test under Rule 23(a)(2). Amchem Prods., Inc. v. Windsor,
Defendants point to a series of issues that they contend are not amenable to classwide treatment and will require individualized inquiries. The Court addresses them below,
i. Threshold Question of Whether Plaintiffs are “Employees”
The primary dispute as to whether or not Plaintiffs are employees relates to the applicable test. Defendants contend the primary beneficiary test set forth in Walling v. Portland Terminal Co. applies and that the fact-intensive inquiry that must be conducted in applying this test will require highly individualized inquiries. Plaintiffs argue that Walling does not apply, that the applicable test is the economic realities test that was applied in Tony and Susan Alamo Foundation v. Secretary of Labor,
In Walling, the Supreme Court addressed whether a seven-day training program offered by a railroad company violated the FLSA where trainees received no compensation during the training.
In contrast, in Alamo, the Court found that the FLSA applied to unpaid work by individuals who had been rehabilitated by the defendant, a nonprofit religious foundation, concluding that the holding of Walling did not apply.
In Glatt v. Fox Searchlight Pictures, the Second Circuit addressed the question of when an unpaid intern is entitled to compensation under the FLSA.
The court in Glatt started from the premise that the primary beneficiary test has “three salient features”:
First, it focuses on what the intern receives in exchange for his work. See Portland Terminal,330 U.S. at 152 ,67 S.Ct. 639 (focusing on the trainee’s interests). Second, it also accords courts the flexibility to examine the economic reality as it exists between the intern and the employer. See Barfield v. N.Y.C. Health & Hosps. Corp.,537 F.3d 132 , 141-42 (2d Cir.2008) (employment for FLSA purposes is “a flexible concept to be determined on a case-by-case basis by review of the totality of the circumstances”). Third, it acknowledges that the intern-employer relationship should not be analyzed in the same manner as the standard employer-employee relationship because the intern enters into the relationship with the expectation of receiving educational or vocational benefits that are not necessarily expected with all forms of employment (though such benefits may be a product of experience on the job).
Id. at 536. With these principles in mind, the court went on to articulate a series of considerations that should be weighed and balanced. The factors are as follows:
1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee— and vice versa.
2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
4. The extent to which the internship accommodates the intern’s academic commit*575 ments by corresponding to the academic calendar.
5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.
Id. at 536-537. The court described the test as “flexible” and noted that “because the touchstone of this analysis is the ‘economic reality’ of the relationship... a court may elect in certain cases, including cases that can proceed as collective actions, to consider evidence about an internship program as a whole rather than the experience of a specific intern.” Id. at 537 (citing Barfield,
Courts have applied Walling and the so-called “Glatb factors” to unpaid student interns in a variety of contexts. For example, the Eleventh Circuit in Schumann v. Collier Anesthesia, P.A., applied the Glatb test to students of a for-profit anesthesiology school that required students to perform “clinical work” associated with state licensing requirements to receive their degree.
Berger v. National Collegiate Athletic Association applied Walling in a different context, in which the plaintiffs were members of the track and field team at the University of Pennsylvania who asserted claims under the FLSA and sought to represent a class of student athletes. Case No. 14-cv-1710 WTL, Docket No. 238,
From the cases discussed above, the Court draws several conclusions. First, to the extent that minor league players have always entered into contracts with MLB to receive a salary and other forms of compensation (including bonuses and college scholarship benefits), and that they often negotiate with the Clubs over the terms of their compensation (as Defendants have emphasized), it cannot be denied that minor league players expect to receive — and do in fact receive — compensation in return for playing baseball for the Clubs. This basic fact distinguishes this case from all of the cases discussed above that applied Walling. These are not unpaid interns, students who were receiving clinical training in connection with licensing requirements, or amateur student athletes partici
The Court rejects Defendants’ attempt to distinguish Alamo on the basis that the workers in that case were “entirely dependent” on the defendant whereas the players here are not dependent on MLB and the Clubs. Defendants miss the point. The dependency of the workers in Alamo was cited only to show that they did, in fact, expect some form of compensation in return for their work, notwithstanding their assertions to the contrary. Here, there is little doubt that the players expected to be compensated, as discussed above. Nor is the Court persuaded by Defendants’ assertion that the players did not expect to be compensated because they understood they would not be paid during the off-season. The case law (including Walling) does not suggest that such a narrow focus is permissible.
While the Court concludes that Walling and its progeny are distinguishable, however, it also finds that the distinction the parties have drawn between the “economic reality” test and the “primary beneficiary” test is overdrawn for the purposes of determining whether the Court will be required to conduct individualized inquiries in this case. In fact, the rule announced in Walling is based on what the Court saw to be a particular economic reality, as are the later cases that have applied Walling in a variety of settings. Further, as the court in Glatt acknowledged, even in applying the primary beneficiary test, “a court may elect in certain eases, including cases that can proceed as collective actions, to consider evidence about [the] program as a whole rather than the experience of a specific [plaintiff].”
For these reasons, the Court rejects Defendants’ assertion that the question of whether Plaintiffs were “employees” precludes certification under Rule 23(b)(3) because of the individualized inquiries that would be required to determine whether minor league players are “employees” of MLB and/or the Clubs.
ii. Whether MLB is a “joint employer”
The question of whether a defendant is a “joint employer” under the FLSA is also governed by the “economic reality” of the relationship.
Defendants suggest that the Court will be required to evaluate the existence of a joint employment relationship for each individual player, asserting that there are “thousands of unique joint-employment relationships.” Rule 23 Opposition at 19. Their argument appears to be based on the idea that the degree of supervision exercised by MLB executives over the minor league players may have varied from player to player. In fact, however, Plaintiffs’ joint employer theory is not based on day-to-day supervision of the players by MLB executives and the factors listed above do not require such supervision as a prerequisite for finding a joint employment relationship. Therefore, the Court is not persuaded by this argument.
The Court also rejects Defendants’ reliance on Pfohl v. Farmers Insurance Group, No. C-03-3080 DT,
Consequently, the Court concludes that under Plaintiffs’ theory of the case, the determination of whether MLB was a joint employer will not require extensive individualized inquiries that preclude certification of the Rule 23 classes.
iii. Whether Plaintiffs Are Owed Compensation
Defendants contend the individualized inquiries that will be required to determine which class members are owed compensation, for both unpaid minimum wages and overtime, would overwhelm the litigation because of the wide variations among class members regarding: (1) the types of activities in which they engaged (which would only be compen-sable if they were found to constitute “work”; (2) the time they spent engaged in these activities; and (3) how much each class members has been compensated, which would also require the Court to make determinations about which forms of additional compensation should be considered in determining the class members’ regular wage rate and overtime rate. The Court agrees.
With respect to the question of what activities constitute compensable work and the amount of time spent on them, Defendants have cited evidence that the minor league players engaged in a wide variety of activities for which they seek compensation and that the time they devoted to different activities varied as well. These variations are particularly striking as to winter training: while all minor league players were required to engage in some sort of conditioning outside the championship season, the policies of the Clubs varied as to how players were expected to meet this obligation, and the players themselves had significant discretion on this question. The players’ testimony reflects wide variations in the types of activities they performed to meet their winter training obligations, the degree to which the Clubs monitored these activities, and the time the players spent on them. Also, some players testified that they engaged in physical therapy and rehabilitation during the off-season because they were recovering from injuries, thus raising another set of questions as to what constitutes compensable work.
During the championship season as well, players’ activities varied depending on a multitude of factors, including the particular priorities of the Club managers and coaches. The players also testified that they sometimes had discretion as to their work schedule, including deciding when they arrived at the stadium before games and when they left after games. Under these circumstances, the Court would have to conduct a multitude of individualized inquiries relating to the types of activities that might have constituted “work” and the circumstances necessary to make these activities compensable under the relevant states’ law. Another set of individualized inquiries arises in connection travel time (for which Plaintiffs seek compensation); the players’ testimony varied significantly on such questions as how much time they spent traveling in any given season, whether they rode on the team bus or were permitted to travel in them own vehicles, and whether travel was more often completed in the course of a single day or required an overnight stay.
Further, the evidence reflects that while the base salary of players was the same during the first championship season, salaries varied significantly in subsequent seasons, when players and teams negotiated their salaries based on factors that varied from team-to-team. The evidence offered by Defendants also shows that other forms of compensation such as bonuses and college scholarship benefits varied significantly from player to player. And while Plaintiffs have emphasized that under the UPC players are not entitled to receive salary payments outside of the championship season, Defendants have presented evidence that players sometimes received stipends and contractual awards for participation in Major League spring training and extended spring training, performance-related bonuses, and salaries from playing in the AFL. While there may be common questions relating to whether these forms of compensation should be considered “wages” under the various states’ laws, if the answer to that question is “yes,” these variations will give rise to the need to conduct additional individualized inquiries relating to Plaintiffs’ claims.
Further, these variations present individualized issues that go not only to damages but also to liability. Class 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 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. The Court concludes that the individualized issues that will arise in connection with adjudicating these questions will be extensive and will make classwide treatment of Plaintiffs’ claims virtually impossible. On this basis alone, the Court concludes that the predominance requirement is not met.
The Court rejects Plaintiffs’ reliance on Abdullah v. U.S. Security Associates, Inc.,
The facts here are distinguishable from Abdullah because Defendants have offered concrete examples supported by specific evidence to show that the types of activities Plaintiffs contend are compensable work, and the circumstances under which they were performed, vary across players, levels and Clubs in ways that are likely to be material to whether they are compensable. These potential variations are summarized in the Bloom Rule 23 Opposition Declaration, Exhibit 3. Among the specific examples Defendants point to are variations as to when players arrived for practice or games and how long they stayed after games, variations in the types of activities in which the players engaged while at the clubhouse (including activities such as showering or icing an injury that may or may not have been required), variations as to participation in “player appearances” to sign autographs, and variations regarding how players traveled to and from away games, whether they were required to ride the team bus and what types of activities they engaged in while on the bus. See id. Consequently, while the court in Abdullah found that the defense at issue at that case was subject to classwide treatment because the employer had not pointed to any variations that were specific and material to the analysis, that is not the case here.
iv. Seasonal Amusement and Recreational Establishment Defenses
Defendants assert defenses based on seasonal amusement and recreational establishment exemptions under the laws of California, Florida, Maryland, New York, North Carolina and Pennsylvania. According to Plaintiffs, California law does not recognize such an exemption. With that exception, however, the parties appear to agree that in all of the states for which the defense is asserted, the exemption is similar to the FLSA amusement exemption and therefore, the question of whether this defense requires individualized inquiries can be assessed with reference to the FLSA exemption. The amusement exemption of the FLSA is set forth in 29 U.S.C. § 213(a)(3), which provides that 29 U.S.C. §§ 206 (minimum wage requirement) and 207 (overtime pay) do not apply with respect to:
any employee employed by an establishment which is an amusement or recreational establishment.. .if (A) it does not operate for more than seven months in any calendar year, or (B) during the preceding calendar year, its average receipts for any six months of such year were not more than 33 1/3 per centum of its average receipts for the other six months of such year....
29 U.S.C. § 213(a)(3). This exemption requires a determination of the relevant establishments) and then an examination of whether the period of operation and receipts of the “establishment” for any given year fall within the requirements of the exemption for any portion of the relevant statutory period.
The need to conduct individualized inquiries on this defense will depend, in part, on the Court’s preliminary determination of whether the relevant establishments are the
v. Creative Professionals Exemption
Defendants assert a defense on the basis of the “creative professionals exemption” under the laws of California, Florida, Maryland, New York, Pennsylvania and Oregon. While neither Defendants nor Plaintiffs have briefed the standards that apply in these states as to this exemption, the parties again look to the FLSA as a point of reference. The FLSA exempts from minimum wage and overtime requirements “creative professionals,” that is, employees whose “primary duty [is] the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor as opposed to routine mental, manual, mechanical or physical work.” 29 C.F.R. § 641.302. To qualify for the exemption, the individual must be [compensated on a salary or fee basis at a rate of not less than $465 per week.” 29 C.F.R. § 541.300.
In general, the determination of an employee’s primary job duties is highly factual and therefore, when there are variations in the job duties of a proposed class, assertion of this sort of exemption will require individualized inquiries that make class treatment inappropriate. See Beauperthuy v. 24 Hour Fitness USA,
vi. Choice of Law Questions
Plaintiffs assert claims under the laws of eight states on behalf of minor league players who conducted baseball-related activities in a multitude of states. They contend the “mechanics” of determining which state’s law applies “will be simple.” Rule 23 Reply at 10. The Court disagrees.
The Court applies California choice of law principles in determining which law to apply to Plaintiffs’ state law claims. See Klaxon Co. v. Stentor Elec. Mfg. Co.,
The problems that may arise in connection with choice of law issues are myriad. For instance, players who travel to other states with more favorable wage and hour laws during the championship season may have an interest in having their time compensated under the laws of the “away” state (especially if they play for an affiliate based in a state other than the eight states in this case and the “away” state is one of the eight). Depending on the circumstances, there may be a reasonable basis for applying the law of that state, in which case Plaintiffs’ proposed approach of applying the law of the state where the affiliate is based would not be in the best interests of those particular class members or consistent with California choice of law rules — even if it would make the choice of law determination more manageable.
The analysis for off-season work (and particularly, winter training) would become even more complicated. Instead of deciding between the laws of the “home” state or the “away” state, the Court might be faced with a player who spent time in multiple states with no clear residence. Again, in addition to the possibility that the laws of some states are likely to be more favorable than those of other states, the players may have interests in seeking application of a certain state’s law because of the fact that they will only be able to recover in this action under the laws of eight states; to the extent they engaged in baseball-related activities in other states, they will be forced to bring a separate action if the laws of those states are found to apply rather than the laws of one of these eight states. Nor is the Court persuaded that it will be able to adopt simple guidelines to deal with these situations without risking the impairment of the rights of both Defendants and the class members themselves. Therefore, the Court concludes that the choice of law problems that would have to be navigated in order to adjudicate the claims of the proposed State Classes present very significant individualized issues that cannot be handled on a classwide basis.
vii. Applicability of Tyson Foods v. Bouaphakeo
Plaintiffs contend they -will be able to prove their claims with common proof by using representative data, namely, a survey that will be conducted by their expert, which will then be used in a damages model constructed by another expert. They rely on the Supreme Court’s recent decision in Tyson Foods v. Bouaphakeo, — U.S. —,
In Tyson Foods, the Supreme Court addresses the use of statistical evidence in the class action context, and in particular, the so-called Mt. Clemens rule, from the Court’s seminal decision in Anderson v. Mt. Clemens Pottery Co.,
The Mt. Clemens rule is not limited to FLSA eases. It has also been invoked in cases involving state law wage and hour claims based on the same reasoning that was applied to FLSA claims in Mt. Clemens, namely, that it would unfairly penalize employees to deny recovery because of the employer’s failure to keep proper records. See, e.g., Melgar v. CSk Auto, Inc., No. 18-CV-03769-EMC,
In Tyson Foods, Inc. v. Bouaphakeo, the Supreme Court reiterated the principle of Mt. Clemens that “when employers violate their statutory duty to keep proper records, and employees thereby have no way to establish the time spent doing uncompensated work, the ‘remedial nature of [the FLSA] and the great public policy which it embodies. . .militate against making’ the burden of proving uncompensated work ‘an impossible hurdle for the employee.’ ”
The Court in Tyson Foods began its analysis by recognizing that “[i]n many cases, a representative sample is the ‘only practicable means to collect and present relevant data’ establishing a defendant’s liability.” Id. at 1046 (quoting Manual of Complex Litigation § 11.493, p. 102 (4th ed. 2004)). It further reasoned that the use of sampling was permissible under the facts of that ease because “the study here could have been sufficient to sustain a jury finding as to hours worked if it were introduced in each employee’s individual action.” Id. at 1048. The Court explained, “[i]n a ease where representative evidence is
Representative evidence that is statistically inadequate or based on implausible assumptions could not lead to a fair or accurate estimate of the uncompensated hours an employee has worked. Petitioner, however, did not raise a challenge to respondents’ experts’ methodology under Dau-bert\ and, as a result, there is no basis in the record to conclude it was legal error to admit that evidence.
Id. at 1048.
In Tyson Foods, the Court distinguished its earlier decision in Wal-Mart Stores, Inc. v. Dukes,
Applying these principles to the situation here, the Court concludes that the variations among class members as to the types of activities in which they engaged and the time spent performing those activities make this case distinguishable from Tyson Foods. Rather than merely filling in “evidentiary gaps” in a situation where all of the employees were similarly affected by a uniform policy, Plaintiffs here are attempting to paper over significant material variations that make application of the survey results to the class as a whole improper. Allowing Plaintiffs to rely on the survey evidence obtained by Dr. Dennis (whether the Pilot Survey or the future survey he plans 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. Further, as discussed below, the Court finds that in this ease, in contrast to Tyson Foods, the experts’ methodology does not satisfy the requirements of Rule 702 and Daubert and that the shortcomings in the Pilot Survey cannot be remedied.
viii. Superiority of Class Action
To satisfy Rule 23(b)(3), Plaintiffs also must demonstrate that “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Rule 23 sets out lists the following factors that Courts should consider in making this determination:
A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
D) the likely difficulties in managing a class action.
The difficulties in managing this putative class action, however, outweigh these factors. As discussed above, too many individualized issues will have to be adjudicated because of the variations among the players, the choice of law issues that will have to be addressed and certain defenses asserted by Defendants to handle Plaintiffs’ claims in a single action,
ix. Conclusion
The Court finds that the individualized inquiries associated with Plaintiffs’ claims will overwhelm the common questions as to all of the State Classes and that the class mechanism is not superior because adjudicating Plaintiffs’ claims on a elasswide basis will not be manageable. Therefore, the Court concludes that the requirements of Rule 23(b)(3) are not met.
g. Rule 23(b)(2)
Under Rule 23(b)(2), class certification is appropriate “ ‘only where the primary relief sought is declaratory or injunc-tive,’ ” Friend v. Hertz Corp., No. C-07-5222 MMC,
As all of the named Plaintiffs here are former minor leaguers, they do not have standing to seek injunctive relief because they have not shown that they suffer any likelihood of future harm from Defendants. In addition, 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.
h. Standing
Defendants contend the Court must address Article III standing as a “threshold issue before ruling on class certification.” Rule 23 Opposition at 38. They make the same arguments they raised in their prior motion to dismiss, Docket No. 410, with the added gloss that Defendants contend the problem is “even more glaring” now because Plaintiffs are seeking to certify eight state classes, each of which must have standing. The Court has already decided that in this case, the question of Article III standing is more appropriately decided after class certification, See Docket No. 420. Accordingly, the Court rejects Defendants’ Article III standing challenge on the basis that it is premature.
B. The Motion to Decertify
1. Legal Standard
Under Section 16 of the FLSA, workers may sue their employers for unpaid wages on them own behalf and on behalf of “other employees similarly situated.” 29 U.S.C. § 216(b). In contrast to classes certified under Rule 23, an employee who wishes to participate in an FLSA collective action must affirmatively opt in by filing a written consent in the court in which the action is brought. Id While plaintiffs seeking to proceed as a collective under the FLSA need not be “identically” situated, they must be similarly situated enough that collective treatment is “the superior way of resolving the controversy.” Beauperthuy v. 24 Hour Fitness USA Inc.,
District courts in the Ninth Circuit apply an “ad hoc, two-tiered approach” in determining whether the plaintiffs are similarly situated. Gerlach v. Wells Fargo & Co., No. 08-0585 CW,
2. Discussion
The analysis of whether Plaintiffs in the FLSA collective are similarly situated largely
Because the Court finds that the collective members are not similarly situated and that adjudicating the FLSA on a collective basis will be unmanageable, the Court DECERTI-FIES the FLSA collective.
C. The Motion to Exclude
1. Legal Standard Under Rule 702 and Daubert
Rule 702 of the Federal Rules of Evidence permits a party to offer the testimony of a “witness who is qualified as an expert by knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. This Rule embodies a “relaxation of the usual requirement of firsthand knowledge,” Daubert,
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. These criteria can be distilled to two overarching considerations: “reliability and relevance.” Ellis v. Costco Wholesale Corp.,
When a parly seeks to exclude expert testimony or reports at the class certification stage, courts apply the Daubert standard to evaluate the challenged evidence. Id. The reliability prong requires the court to “act as a ‘gatekeeper’ to exclude junk science,” and grants the court “broad latitude not only in determining whether an expert’s testimony is reliable, but also in deciding how to determine the testimony’s reliability.” Id. (citing Kumho Tire Co. v. Carmichael,
The relevance prong looks to whether the evidence “fits” the issues to be decided: “scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes,” and “[e]xpert testimony which does not relate to any issue in the ease is not relevant.” Daubert,
2. Alleged Shortcomings of Dr. Dennis’s Methodology
Defendants’ expert identifies numerous problems with Dr. Dennis’s Survey methodology and results. As discussed below, some of these problems are exaggerated or remediable but others are more fundamental and cannot be fixed.
a. Coverage error
In his declaration, Dr. Ericksen criticizes the Pilot Survey on the basis that all of the individuals who responded had opted in to the FLSA class. See Ericksen Decl. ¶¶ 16-18. He contends this makes the results of the Pilot Survey unreliable because minor league playei’s who opted in to the collective may differ from those who did not opt in in significant ways. Id. Dr. Dennis explains that he only limited the individuals he included in the survey to opt-in Plaintiffs because a complete list of class members was not available to him at the time of the Pilot Survey. Supplemental Declaration of J. Michael Dennis in Support of Plaintiffs’ Motion for Class Certification (“Dennis Supp. Decl.”) ¶ 11. Indeed, Dr. Ericksen acknowledges that “in the main survey, Dr. Dennis will add players who have not opted-in to the collective action to his universe.” Ericksen Decl. ¶ 17. Thus, this problem is merely a reflection of the limitations associated with conducting a survey at this stage of the case. There is no reason to believe that a survey conducted at a later stage of the case would suffer from this defect. Therefore, under the tailored Daubert standard discussed above, the Court concludes that the coverage error that Defendants’ expert points to does not warrant excluding the testimony of Dr. Dennis.
b. Non-response bias
Dr. Ericksen criticizes the Pilot Survey on the basis that the response rate was 32.4%, a rate that he contends is low enough to raise the possibility of non-response bias, that is, bias that arises when those who responded to a survey differ from those who did not respond. Ericksen Decl. ¶¶ 10, 20. He speculates that in the case of the Pilot Survey, those who responded may have worked longer hours than those who did not and therefore those individuals were more motivated to participate in the survey. Id ¶ 20. Dr. Ericksen does not offer any evidence of such bias, focusing instead on the fact that Dr. Dennis did not address the possibility of non-response bias in his declaration. Id. ¶ 21. Dr. Dennis, in turn, contends the response rate is relatively high, citing experts in the survey research literature who have opined that surveys with much lower response rates can produce accurate results that do not suffer from non-response bias. Dennis Supp. Deck ¶¶ 17-20. He also outlines a number of measures he plans to take when he conducts the main survey to ensure that the respondents are representative of the class, including sending a pre-notification letter through the U.S. mail, using Spanish-language interviewing, offering the option to complete the survey by telephone and including a longer data collection field period. Id. ¶ 18. Finally, he notes that when the main survey is conducted he will have access to a list of class members for whom administrative information is available, which will allow him to conduct an impartial non-response bias analysis. Id. ¶ 21.
c. Respondents’ burden and “satisficing”
Dr. Ericksen contends the questions on the Pilot Survey required respondents to go through too many mental steps to answer them, pointing to research that has found that participants in surveys tend to give their “best guess” or “satisfice” when survey questions require them to go through a difficult series of questions to come up with an answer. Ericksen Decl. ¶ 34. According to Dr. Ericksen, one of the questions on the Pilot Survey, which 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, is similar to a question that was found to produce just this result in a British study. See id. ¶¶ 36-38. Dr. Dennis responds that he did not receive any complaints from respondents that the survey was too difficult and that in any event, he plans to conduct cognitive interviews to be sure that the questions on the main survey will be easy to understand and answer. Dennis Supp. Decl. ¶¶ 42-45.
The Court is troubled by the format of the question flagged by Dr. Eiicksen and is not persuaded that the players’ failure to complain about the questions on the Pilot Survey is an indication that they did not take “shortcuts” in answering the question or that respondents in the main study would not do the same if asked questions set forth in a similar format. Presumably, that problem can be minimized by reframing the survey questions and breaking them down into more bite-size questions. The fact that Dr, Dennis was not able to do that on the Pilot survey is not encouraging, however. Further, while this problem on its own probably is not sufficient to render the Pilot Survey or its methodology unreliable, when considered in light of the assumptions about what players will be able to remember (discussed below), the reliability of any survey used to determine the amounts of time the players spent engaging in particular activities is questionable, even assuming the questions can be made simpler to avoid “respondent burden.”
d. Response category bias
Dr. Ericksen points to two related problems with the questions on the Pilot survey:
ambiguity in the questions (e.g., how should respondents interpret the question asking them to estimate the total number of hours they were “expected to be at the MLB franchise’s training complex and stadium for practices”) and response categories providing various ranges of time for respondents to select. Ericksen Decl. ¶¶ 51-55. According to Dr. Ericksen, the survey research literature has shown that where a question is ambiguous, the ranges that are offered as answers can influence the respondent’s response, depending on which end of the range is emphasized in the answer categories. Id. at 52-53. Dr. Ericksen contends that may have happened here, pointing to the fact that over 30 percent of the respondents chose the top category (55 or more hours) as the amount of time they spent each week on spring training activities. Id. ¶ 55.
Dr. Dennis responds that the use of questions with categories from which the respondent can select (rather than open-ended questions where a respondent must write in a number) is an accepted survey technique and that experts in the field have discounted the likelihood of bias associated with using close-ended questions. Id. at 46-48.
As it appears that the use of closed-ended questions is an accepted practice in conducting surveys of this nature, the Court concludes that the use of such questions in the Pilot Survey is not inconsistent with the requirements of Daubert. Nor does it reflect inadequacies as to Dr. Dennis’s methodology.
Dr. Ericksen contends the Pilot Survey suffers from self-interest bias and that the Survey and the methodology used in it are defective to the extent it is assumed that players will be able recall details about the time they spent on various activities. Dr. Ericksen’s criticisms are well taken. As discussed below, the Court finds that the methodology used in conducting the Pilot Survey is fundamentally flawed in these respects and that Plaintiffs have not demonstrated that they can overcome these problems when they conduct the more comprehensive survey that they plan to conduct in preparation for trial.
With respect to self-interest bias, the problem is particularly striking as it relates to the Pilot Survey. Although the Pilot Survey was created by an independent expert, all of the recipients had a vested interest in the results of the survey as they had opted in to the FLSA collective and were told when they were asked to complete the survey that that was the reason they were being asked to participate. See Dennis Decl. ¶ 20; Ericksen Deck 57. This fact alone raises questions about the reliability of the results. See Gibson v. Cty. of Riverside,
While Plaintiffs contend this problem can be minimized when they conduct the main survey, they have not offered a convincing explanation of how this will be achieved. First, while Dr. Dennis contends he will be able to address potential self-interest bias in the main study by comparing the responses of FLSA opt-in plaintiffs with the responses of those who did not opt-in, see Dennis Supp. Deck ¶ 25, that comparison will not be sufficient to evaluate the impact of self-interest bias because all minor league players who played within the applicable limitations periods will likely have a vested interest in the outcome of this action regardless of whether or not they opted in to the FLSA collective.
Second, although Dr. Dennis states that he plans to validate the survey responses using “available administrative records,” he has not pointed to any specific types of records that may be available to show how he will be able to validate the results of the survey. As Defendants did not maintain time records for many of the activities at issue, it is unlikely Dr. Dennis will be able to ensure the reliability of the survey results using this approach. See Ericksen Supp. Deck ¶ 19.
Dr. Dennis counters that surveys that rely on the respondents’ ability to recall past events are widely used and have been found to be reliable. Dennis Supp. Decl. ¶¶ 28-29. However, these surveys appear to use detailed and burdensome “memory aids” that are not practical here, such as asking the participants to recall more recent events or focusing on more salient events than must be remembered by the minor leaguers here. See Ericksen Supp. Deck ¶ 7 & Ex. B. And while Dr. Dennis contends the likely timing of the main survey — after spring training — will facilitate recall because “many respondents will have only to reflect on their experiences in the previous 12 months to report on all three reference periods (off-season work-outs, spring training, and championship season),” see Dennis Supp. Deck ¶40, this assurance does not address the fact that many other players who are likely to respond are no longer playing for a minor league affiliate and therefore will have to recall events that occurred more than a year ago, as was the case with respect to the Pilot Survey. To the extent them memories may be unreliable due to the passage of time, the responses of these players are likely to taint the results of the survey as a whole.
Further, the Court finds unpersuasive Dr. Dennis’s assertion that because baseball is extremely important to the minor league players, they will be able to recall the time they spent on various activities reliably even though months or years have passed since the relevant events. See Dennis Supp. Deck ¶ 34. As Dr. Ericksen explains, while “[p]ar-ticipating in spring training, generally speaking, may be a salient event for some respondents. . .it is highly unlikely that during the course of that spring training, the individual portions of time spent at the stadium and traveling to and from individual games are salient enough to be remembered specifically or even on average.” Ericksen Supp. Deck ¶ 10. Similarly, the players’ participation generally in various baseball-related activities during the championship season and off-season may be of great importance to them, but the specific amounts of time they devoted to them are less likely to be particularly salient. And although Dr. Dennis represents that he intends to use various tools to assist in recall, he has not demonstrated how he will do so as a practical matter. See Dennis Supp. Deck ¶¶ 37-39.
In sum, the Court concludes that both the methodology and the results of the Pilot Survey are unreliable and that any future survey that applies a similar methodology is likely to yield unreliable results as well, especially in light of the problems discussed above 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. Accordingly, the Motion to Exclude is GRANTED as to the Dr. Dennis’s declaration and testimony and as to Dr. Krie-gler’s declaration and testimony to the extent that it relies on Dr. Dennis’s testimony and the Pilot Survey.
For the reasons stated above, the Rule 23 Motion is DENIED. The Motion to Decertify is GRANTED. The Motion to Exclude is GRANTED. The parties are instructed to meet and confer and submit a joint case management statement no later than August 5, 2016. A Case Management Conference will be held on August 19, 2016 at 2:00 p.m.
IT IS SO ORDERED.
Notes
. The parties have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c).
. Throughout this Order the Court, like the parties, uses the terms ‘‘franchise” and "Club” interchangeably.
.Even though these Clubs were dismissed for lack of personal jurisdiction, individuals who played for them are still asserting their wage and hour claims against Defendant MLB.
. The definitions of the eight State Classes are identical except for the start date of the class period. Thus, for each class, the bracketed language in the block quote above is replaced by the words "since [start date for that state] until judgment.” See Proposed Order (Docket No. 536) at 1. The start dates of the specific classes proposed by Plaintiffs are as follows: February 7, 2010 (California, North Carolina); February 7, 2009 (Florida); February 7, 2011 (Arizona, Pennsylva-nía, Maryland); and February 7, 2008 (New York, Oregon). Although Defendants refer to these classes as subclasses, there appears to be no dispute between the parties that each of the proposed State Classes, whether referred to as a class or a subclass, must independently satisfy the requirements of Rule 23. See Fed. R. Civ. P. 23(c)(5) (“When appropriate, a class may be divided into subclasses that are each treated as a class under this rule.”).
. The "Plaintiff Declarations” consist of the following declarations: Declaration of Craig Ben-nigson in Support of Motion to Certify Class [Docket No. 501] (“Bennigson Decl.”); Declaration of Daniel Britt in Support of Motion to Certify Class [Docket No. 502] ("Britt Deck”); Declaration of Matt Daly in Support of Motion to Certify Class [Docket No. 503] ("Daly Deck”); Declaration of Grant Duff in Support of Motion to Certify Class [Docket No. 504] ("Duff Deck”); Declaration of Matt Frevert in Support of Motion to Certify Class [Docket No. 505] ("Frevert Deck”); Declaration of Lauren Gagnier in Support of Motion to Certify Class [Docket No. 577] (“Gagnier Deck”); Declaration of Jon Gaston in Support of Motion to Certify Class [Docket No. 506] ("Gaston Deck”); Declaration of Nick Giar-raputo in Support of Motion to Certify Class [Docket No. 507] ("Giarraputo Deck”); Declaration of Brandon Henderson in Support of Motion to Certify Class [Docket No. 508] ("Henderson Deck”); Declaration of Mitch Hilligoss in Support of Motion to Certify Class [Docket No. 509] ("Hilligoss Deck”); Declaration of Ryan Hutson in Support of Motion to Certify Class [Docket No. 510] ("Hutson Deck”); Declaration of Jake Ka-haulelio in Support of Motion to Certify Class [Docket No. 511] ("Kahaulelio Deck”); Declaration of Ryan Khouiy in Support of Motion to Certify Class [Docket No. 512] (“Khoury Deck”); Declaration of Ryan Kiel in Support of Motion to Certify Class [Docket No. 513] ("Keil Deck”); Declaration of Matt Lawson in Support of Motion to Certify Class [Docket No. 514] ("Lawson Deck”); Declaration of Michael Liberto in Support of Motion to Certify Class [Docket No. 515] ("Liberto Deck”); Declaration of Aaron Meade in Support of Motion to Certify Class [Docket No. 516] ("Meade Deck”); Declaration of Justin Murray in Support of Motion to Certify Class [Docket No. 517] ("Murray Deck”); Declaration of Joseph Newby in Support of Motion to Certify Class [Docket No. 519] ("Newby Deck”); Declaration of Brett Newsome in Support of Motion to Certify Class [Docket No. 520] ("Newsome Deck”); Declaration of Kyle Nicholson in Support of Motion to Certify Class [Docket No. 521] ("Nicholson Deck”); Declaration of Oliver Odie in Support of Motion to Certify Class [Docket No. 522] ("Odie Deck”); Declaration of Jake Opitz in Support of Motion to Certify Class [Docket No. 523] ("Opitz Deck”); Declaration of Roberto Ortiz in Support of Motion to Certify Class [Docket No. 524] (“Ortiz Deck”); Declaration of Tim Pahuta in Support of Motion to Certify Class [Docket No. 525] ("Pahuta Deck”); Declaration of Dustin Pease in Support of Motion to Certify Class [Docket No. 526] ("Pease Deck"); Declaration of Brandon Pinckney in Support of Motion to Certify Class [Docket No. 527] ("Pinckney Deck”); Declaration of David Quinowsld in Support of Motion to Certify Class [Docket No.528] ("Qui-nowski Deck”); Declaration of Gaspar Santiago in Support of Motion to Certify Class [Docket No. 529] ("Santiago Deck”); Declaration of Aaron Senne in Support of Motion to Certify Class [Docket No. 530] ("Senne Deck”); Declaration of Les Smith in Support of Motion to Certify Class [Docket No. 531] (“Smith Deck”); Declaration of Brad Stone in Support of Motion to Certify Class [Docket No. 532] ("Stone Deck”); Declaration of Kris Watts in Support of Motion to Certify Class [Docket No. 533] ("Watts Deck”); Declaration of Joel Weeks in Support of Motion to Certify Class [Docket No. 534] ("Weeks Deck”); Declaration of Kyle Woodruff in Support of Motion to Certify Class [Docket No. 535] ("Woodruff Deck").
. Defendants offer a more detailed factual background in their Motion to Decertify, discussed below, which they incorporate by reference in their Rule 23 Opposition. Defendants provide a summary of those facts in their Rule 23 Opposition. See Rule 23 Opposition at 3.
. According to Defendants, examples of such determinations include the following: "Does a week of conditioning on vacation in a state constitute 'employment’ in that state? Do two weeks at spring training in a state constitute 'employment' in that state? Does a single day at an affiliate in a state during the championship season constitute 'employment' in that state? Does playing an occasional 'away game’ in a state constitute "employment” in that state?”
. Defendants raised the standing issue at the motion to dismiss stage of the case. The Court declined to decide the issue at that point, however, finding that the standing question was more appropriately addressed "after class certification or, where applicable, in the context of the class certification determination.” Docket No. 420.
. In Section III of their Decertification Opposition, Plaintiffs summarize the evidence they contend shows that: 1) the UPC and MLRs establish common policies governing recruitment, drafting, hiring, pay and employment and the structure of the minor league farm system; and 2) minor leaguers perform substantially similar work throughout the year, including spring training, extended spring training, the championship season, instruction leagues and winter training. Id. at 3-11. As this evidence is summarized above, in connection with Plaintiffs' Rule 23 Motion, the Court does not repeat it here. In the same background section of their brief, Plaintiffs reject what they characterize as "ad hominem attacks” on the named Plaintiffs in this action, arguing that Defendants’ allegations of inconsistencies and falsehoods in the players’ declarations are not supported by the deposition testimony Defendants cite in support of their accusations. Id. at 11-13.
. Plaintiffs note as an aside that while Defendants also point to variations relating to the college scholarship plans, they make no attempt to explain how these plans could be considered wages. Id. n. 106.
. The Court uses the term "winter training” to refer only to the strength and conditioning activities performed by the players in the off-season to meet their obligation under the UPC to “keep in first-class condition” throughout the year. It does not use the term to refer to the more formal activities conducted outside of the championship season that are organized by the Clubs, such as instructional leagues, spring training and extended spring training.
. At oral argument, Plaintiffs’ counsel suggested that the problem of ascertaining class membership based on winter training could be avoided by "defining around it,” though no specific modification of the class definition was proposed. Counsel may be correct that it would be possible to remedy the ascertainability problem discussed above by modifying the class definition to exclude winter training work. The Court notes in particular that it is not persuaded by Defendants' assertion that the State Classes are overbroad because they may include members who have no cognizable wage and hour claim against their Club under that state's law. As discussed above, the undersigned agrees with Judge Tigar that Rule 23 does not preclude certification of a class that may contain individuals whose claims ultimately may fail, though a class that contains a "great many” such people is likely overbroad. Rodman v. Safeway, Inc., No. 11-CV-03003-JST,
. At oral argument, Plaintiffs’ counsel suggested that the listing of Ryan Khoury as a class representative — despite the fact that he has no apparent claim under New York law — might be a "scrivener's error” that could be remedied. Had Plaintiffs made a detailed showing that the remaining individuals who have been listed as class representatives satisfy the typicality requirement for each of the State Classes, it might be appropriate to give Plaintiffs an opportunity to fix this problem. As discussed above, however, the Court finds that Plaintiffs have failed to demonstrate typicality as to any of the State Classes and therefore, Plaintiffs would be required to address not just a simple "scrivener's error,” Under these circumstances, the Court declines to afford Plaintiffs another opportunity to make the required showing.
. The Court notes that the tests in both Walling and Alamo apply to claims asserted under the FLSA rather than state law claims. Plaintiffs contend the laws of all of the relevant states, however, are similar to the standards under the FLSA. Rule 23 Motion at 22. Defendants have not challenged Plaintiffs' assertion. Therefore, the Court assumes that all of the states for which a class is proposed apply the same or similar standards as are applied under the FLSA to determine whether an individual is "employed” by the defendant.
. Again, Plaintiffs contend the standard under the FLSA is similar to those applied under the relevant states’ laws, though they acknowledge that California courts apply a slightly different standard. See Rule 23 Motion at 23-24 & n. 85. Defendants do not appear to challenge Plaintiffs' assertion.
. Plaintiffs cite generally to a collection of deposition excerpts by named Plaintiffs that purportedly shows that "a primary objective is to change MLB's practices for future players,” See Reply at 15 n. 37 (citing Zigler Rule 23 Reply Dec!., Ex. C). Even aside from Plaintiffs' lack of standing to seek injunctive relief on behalf of future players, this representation is not supported by the record as a factual matter. Exhibit C contains deposition excerpts for 36 named Plaintiffs. Plaintiffs do not identify any specific testimony that supports the assertion in footnote 37. The Court has reviewed these exceipts and finds no testimony that would support the conclusion that the injunctive relief sought in this case was any named Plaintiff's primary objective or that the monetary relief requested in the case is merely incidental to the injunctive relief. At best, some of the named Plaintiffs testified that changing Defendants’ practices was important to them. See, e.g., Exhibits C-3 (Kiel) at 33, C-4 (Kahaulelio) at 292. Even these Plaintiffs did not address the relative importance to them of the two types of relief and as to Kahaulelio, the deposition excerpt is cut off just before he answers Defense counsel’s question asking him if he was "looking for money” himself. Many of the deposition excerpts do not address the question at all. And some actually support the conclusion that their primary objective was money damages rather than injunctive relief. See, e.g., Ex. C-10 (Hilligoss) at 307 (testifying that objective of lawsuit was to obtain lost wages), Ex. C-15 (Ortiz) (testifying that the lawsuit was about unpaid wages).
. Plaintiffs do not offer any authority that suggests that they have standing to seek injunctive relief but instead ask the Court to allow them to amend the complaint to add current players as named plaintiffs, citing this Court’s recent decision in Villalpando v. Exel permitting the plaintiffs in that case to amend the Complaint to add current employees as named plaintiffs so that claims asserted on behalf of an injunctive relief class could go forward. See No. 12-cv-4137 ICS,
. It has not been suggested that seeking the participation of minor league players who do not have timely claims would solve this problem and it is unlikely that it would; these players would not have a vested interest in the outcome of this litigation but it is unlikely they would be able to reliably recall the amount of time they spent on various baseball-related activities years before participating in the survey.