1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA
7 JAYSON HUNTSMAN, Case No. 19-cv-00083-PJH 8 Plaintiff,
9 v. ORDER GRANTING MOTION FOR CLASS CERTIFICATION AND 10 SOUTHWEST AIRLINES CO., DENYING MOTION TO FILE UNDER SEAL 11 Defendant. Re: Dkt. No. 78, 84 12
13 14 Plaintiff Jayson Huntsman’s (“plaintiff”) motion for class certification came on for 15 hearing before this court on January 28, 2021. Plaintiff appeared through his counsel, 16 Michael Scimone. Defendant Southwest Airlines Co. (“Southwest” or “defendant”) 17 appeared through its counsel, Brian Berry. Having read the papers filed by the parties 18 and carefully considered their arguments and the relevant legal authority, and good 19 cause appearing, the court hereby GRANTS the motion, for the following reasons. 20 BACKGROUND 21 On January 7, 2019, plaintiff filed a putative class action complaint (“Compl.”) 22 alleging a single cause of action against Southwest for a violation of the Uniformed 23 Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. 24 § 4301 et seq. Dkt. 1. In particular, plaintiff alleges that defendant violated title 38 U.S.C. 25 § 4316(b), by failing to pay its employees when they take short-term military leave, while 26 paying workers when they take comparable forms of leave, such as for jury duty leave, 27 bereavement leave, and sick leave. Compl. ¶¶ 3–4. 1 2020 and during that period he took short-term military leave from Southwest to fulfill his 2 military duty obligations. Id. ¶ 9. Huntsman seeks to represent a national class defined 3 as:
4 current or former employees of Southwest Airlines Co. who, during their employment with Southwest at any time from 5 October 10, 2004 through the date of judgment in this action, have taken short-term military leave from their employment with 6 Southwest (i.e., military leave that lasted 14 days or fewer) and were subject to a [collective bargaining agreement (“CBA”)], 7 except for employees subject to the agreement between Southwest and Transport Workers Union Local 550 covering 8 meteorologists. 9 Mtn. at 2 (footnote omitted). 10 Southwest organizes its employees in six separate work groups that are 11 represented by eleven different unions and have different CBAs governing the terms of 12 employment. The approximate composition and union representation of each work group 13 is as follows: 14 Work Group Job Titles Number of Unions 15 employees 16 Flight Ops Pilots 9,100 SWAPA Flight Instructors 95 SAPIA, TWU 17 Local 557 18 Flight Simulator 45 IBT Local 19 Technicians 19 In Flight Flight Attendants 15,775 TWU Local 556 20 Customer Support & Customer 2,860 IAM District Services Representatives 142 21 Source of Support 22 Representatives Ground Ops Customer Service 4,000 23 Agents Ramp Agents 18,000 TWU Local 24 555 Operations Agents 25 Provisioning Agents 26 Freight Agents 27 Tech Ops Appearance 200 AMFA Facilities Maintenance 40 1 Technicians 2 Mechanics & related 2,400 Employees 3 Material Specialists 300 IBT Local (f/k/a Stock Clerks) 19 4 Network Operations Dispatchers 390 SAEA, TWU Center Local 550 5 Meteorologists 10 TWU Local 6 550 Non-Contract 10,000 N/A (policy 7 handbook) 8 Declaration of Michael J. Scimone (“Scimone Decl.”), Dkt. 79, ¶ 12. Southwest employs 9 approximately 63,215 workers, of which 53,205 are subject to a CBA. Id. ¶ 14. The 10 10,010 non-contract employees and the meteorologists are not members of the proposed 11 class. Separately, over 8,000 of Southwest’s employees have served or are actively 12 serving in the U.S. military. Compl. ¶ 12; Dkt. 28 (“Answer”) ¶ 12. 13 Plaintiff alleges (and defendant admits) that it does not provide a paid leave 14 benefit for employees who take short-term military leave to perform military service. 15 Compl. ¶¶ 2, 26, 32–33, 36, 49; Answer ¶¶ 2, 26, 32–33, 36, 49. This policy applies to all 16 Southwest employees, regardless of work group, job title, or union representation. Mtn. 17 at 4 n.9. Plaintiff now moves for certification of the proposed class. 18 DISCUSSION 19 A. Legal Standard 20 To maintain a class action, a proposed class must satisfy Rule 23(a)’s numerosity, 21 commonality, typicality, and adequacy of representation requirements. Fed. R. Civ. 22 P. 23(a). If all four prerequisites of Rule 23(a) are satisfied, the court then determines 23 whether to certify the class under one of the three subsections of Rule 23(b), which 24 requires plaintiff to show: (1) a risk of substantial prejudice from separate actions, (2) that 25 declaratory or injunctive relief benefitting the class as a whole would be appropriate, or 26 (3) that common questions of law or fact common to the class predominate and that a 27 class action is superior to other methods available for adjudicating the controversy at 1 The party seeking class certification bears the burden of proof in demonstrating 2 that he has satisfied all four Rule 23(a) requirements and that his action falls within one of 3 the three types of actions permitted under Rule 23(b). Zinser v. Accufix Research Inst., 4 Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). “Before certifying a class, the trial court must 5 conduct a rigorous analysis to determine whether the party seeking certification has met 6 the prerequisites of Rule 23.” Mazza v. Am. Honda Motor Co. Inc., 666 F.3d 581, 588 7 (9th Cir. 2012). To the extent there are “any factual disputes necessary to determine” a 8 Rule 23 criterion, a district court is required to resolve them. Ellis v. Costco Wholesale, 9 657 F.3d 970, 983 (9th Cir. 2011) (“[T]he district court was required to resolve any factual 10 disputes necessary to determine whether there was a common pattern and practice that 11 could affect the class as a whole. If there is no evidence that the entire class was subject 12 to the same allegedly discriminatory practice, there is no question common to the 13 class.”). 14 B. Analysis 15 1. Rule 23(a) 16 a. Numerosity 17 Rule 23(a)(1) requires that a proposed class be so numerous that joinder of all 18 members is impracticable. Fed. R. Civ. P. 23(a)(1). While there is no fixed number that 19 satisfies the numerosity requirement, courts often find that a group greater than 40 20 members meets such requirement. Californians for Disability Rights, Inc. v. Cal. Dep’t of 21 Transp., 249 F.R.D. 334, 346 (N.D. Cal. 2008); Hernandez v. Cnty. of Monterey, 305 22 F.R.D. 132, 152–53 (N.D. Cal. 2015) (“A class or subclass with more than 40 members 23 ‘raises a presumption of impracticability based on numbers alone.’” (citation omitted)). A 24 court may make “common-sense assumptions and reasonable inferences” when 25 analyzing numerosity. West v. Cal. Servs. Bureau, Inc., 323 F.R.D. 295, 303 (N.D. Cal. 26 2017) (citing The Civil Rights Educ. & Enforcement Ctr. v. RLJ Lodging Trust, 2016 WL 27 314400, at *6 (N.D. Cal. Jan. 25, 2016)). 1 Plaintiff derived this number by dividing the 8,000 Southwest employees who have 2 served or are actively serving in the military by the total number of Southwest employees, 3 63,215, to determine that approximately 12.66 percent of all Southwest employees have 4 served or are serving in the military. Scimone Decl. ¶ 15. Plaintiff then multiplied the 5 12.66 percent by the total number of individuals subject to a covered CBA, 53,205, which 6 results in an estimated 6,733 individuals. Id. 7 Significantly, defendant does not contest plaintiff’s numerosity contention and, in 8 approving a settlement agreement between this same plaintiff and defendant resolving 9 similar USERRA claims, Judge Donato noted that the settlement class numbered some 10 1,999 class members and potential class members. Huntsman v. Southwest Airlines Co. 11 (“Huntsman I”), No. 17-cv-3972-JD, Dkt. 57 at 4 (N.D. Cal. Oct. 4, 2019). That class 12 included only pilots who took short-term military leave so the class in this case, 13 comprising not just pilots but other work groups, is necessarily greater.1 14 The court finds that plaintiff meets the numerosity requirement. 15 b. Commonality 16 Rule 23(a)(2) requires questions of law or fact common to the class. Fed. R. Civ. 17 P. 23(a)(2). Under this requirement, plaintiff must “demonstrate that the class members 18 have suffered the same injury,” not merely violations of “the same provision of law.” Wal- 19 Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011). Given that, plaintiff’s claims 20 “must depend upon a common contention” such that “determination of [their] truth or 21 falsity will resolve an issue that is central to the validity of each one of the claims in one 22 stroke.” Id. “What matters to class certification . . . is not the raising of common 23 questions—even in droves—but rather the capacity of a classwide proceeding to 24 generate common answers apt to drive the resolution of the litigation.” Id. (citation 25
26 1 It is not clear that the actual number of class members will reach 6,733 individuals because the 8,000 employees who have served or are actively serving in the military 27 likely includes veterans, i.e., those who have served, and did not take military leave. 1 omitted); see also Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (“‘An 2 individual question is one where members of a proposed class will need to present 3 evidence that varies from member to member,’ while a common question is one where 4 ‘the same evidence will suffice for each member to make a prima facie showing [or] the 5 issue is susceptible to generalized, class-wide proof.’” (alteration in original) (citation 6 omitted)). 7 To that end, the Ninth Circuit has explained that, under the commonality 8 requirement, “plaintiffs need not show that every question in the case, or even a 9 preponderance of questions, is capable of classwide resolution. So long as there is even 10 a single common question, a would-be class can satisfy the commonality requirements of 11 Rule 23(a)(2).” Wang v. Chinese Daily News, Inc., 737 F.3d 538, 544 (9th Cir. 2013). 12 “Whether a question will drive the resolution of the litigation necessarily depends on the 13 nature of the underlying legal claims that the class members have raised.” Jimenez v. 14 Allstate Ins. Co., 765 F.3d 1161, 1165 (9th Cir. 2014) (citation omitted). 15 Starting with the underlying legal claims, plaintiff’s claim arises under 38 U.S.C. 16 § 4316(b)(1), which provides:
17 [A] person who is absent from a position of employment by reason of service in the uniformed services shall be— . . . 18 entitled to such other rights and benefits not determined by seniority as are generally provided by the employer of the 19 person to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, 20 agreement, policy, practice, or plan in effect at the commencement of such service or established while such 21 person performs such service. 22 38 U.S.C. § 4316(b)(1). The U.S. Department of Labor’s (“DOL”) has promulgated 23 regulations implementing USERRA that explain that employees on military leave must be 24 given “the most favorable treatment accorded to any comparable form of leave.” 20 25 C.F.R. § 1002.150(b). The regulation also provides three non-exclusive factors to 26 consider whether two forms of leave are comparable:
27 In order to determine whether any two types of leave are leave will not be “comparable” to an extended leave for service 1 in the uniformed service. In addition to comparing the duration of the absences, other factors such as the purpose of the leave 2 and the ability of the employee to choose when to take the leave should also be considered. 3 4 Id. (emphasis added). 5 Turning to plaintiff’s commonality arguments, he advances five common questions 6 of law or fact. The first question is whether paid leave is a “right and benefit” that must be 7 provided equally under USERRA § 4316(b). Mtn. at 8. In response, defendant argues 8 that this question has no bearing on the commonality analysis because it is a pure 9 question of law that affects all employers equally and has already been answered by the 10 court. Opp. at 10. 11 Rule 23(a)(2)’s commonality requirement applies to both questions of law and 12 questions of fact. Defendant has not cited any authority for the proposition that a pure 13 question of law that affects all employers subject to USERRA somehow precludes the 14 question from being common to all class members. In considering a class certification 15 motion in a case with similar factual and legal allegations, the district court in Clarkson v. 16 Alaska Airlines, Inc., 2020 WL 4495278, at *4 (E.D. Wash. Aug. 4, 2020), found the same 17 legal issue, i.e., “whether paid leave is one of the ‘rights and benefits’ that must be 18 provided equally to employee on military leave under USERRA” was common to all class 19 members and that finding alone satisfied Rule 23(a)(2). Nor is the court persuaded that a 20 finding made before final judgment in the case removes it from consideration at the class 21 certification stage. Other courts have indicated that an issue that has been “conceded or 22 otherwise resolved does not mean that it ceases to be an ‘issue’ for the purposes of the 23 predominance analysis.” In re Nassau Cnty. Strip Search Cases, 461 F.3d 219, 228 (2d 24 Cir. 2006) (citing Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 25 2000)). That a resolved issue can still impact the predominance analysis implies that it 26 also can be a common issue. 27 Plaintiff’s second common question is whether short-term military leave is 1 two facts that demonstrate a uniform employment practice. Southwest offers the same 2 paid jury, bereavement, and sick leave benefits to all class members regardless of work 3 group or job title and it does not provide paid military leave to any class member. In 4 opposition, defendant advances three arguments against plaintiff’s second common 5 question. 6 i. Whether Plaintiff’s Definition of “Short-Term” Military 7 Leave is Common 8 First, defendant argues that plaintiff’s definition of “short-term” military leave is not 9 common across the class, its work groups, or throughout the proposed class period. 10 Opp. at 5. For example, by its agreement with the pilot union, Southwest published a 11 military handbook in November 2014, Declaration of Brian D. Berry (“Berry Decl.”), Ex. 3 12 to Ex. E, Dkt. 85-5, at 76,2 that defined short term military leave as service in the 13 uniformed service for less than thirty-one days, id., Ex. E, Dkt. 85-5, at 53:7–54:7; id., Ex. 14 4 to Ex. E, Dkt. 85-5, at 82 (Flight Operations Military Handbook). Southwest did not 15 begin coding short-term as fourteen days for pilots until November 2016. Id., Ex. E, Dkt. 16 85-5, at 53:7–56:4. Additionally, the customer sales & support representative work group 17 only uses a single code for military leave of any duration with no distinction between 18 short-term and long-term military leave. Id., Ex. G, Dkt. 85-5, at 29:21–30:22. The same 19 is true for flight instructors. Id., Ex. J, Dkt. 86, at pp. 56–57, 46:14–47:25. Dispatchers 20 code military leave over 30 days as extended military leave without distinguishing short- 21 term as 14 or fewer days. Id., Ex. L, Dkt. 86, at pp. 99–100, 38:20–39:2. Because 22 “short-term military leave” lacks a common definition across work groups and over time, 23 defendant argues there is no commonality of class members’ claims. Opp. at 6. 24 In reply, plaintiff argues that Southwest’s argument regarding a common definition 25 of “short-term” is actually a merits issue that speaks to how he framed his USERRA 26 claim, that is, whether he can challenge only Southwest’s failure to pay for short-term 27 1 military leave as opposed to all military leave. Reply at 2. 2 The court begins with the observation that, if plaintiff had placed no limitation on 3 his class definition of military leave, then comparing duration of leave would be a 4 relatively straightforward exercise. In a case cited by defendant, a district court 5 compared the average length for military leave, on the one hand, and sick leave and jury 6 duty leave, on the other and determined for purposes of summary judgment that the 7 leave duration was not comparable. See Hoefert v. Am. Airlines, Inc., 438 F. Supp. 3d 8 724, 739–41 (N.D. Tex. 2020). This illustrates that plaintiff could present common 9 evidence by compiling the total average military leave duration of any length and 10 comparing it with the total average sick, jury duty, and bereavement leave of any 11 duration. 12 The parties dispute whether there is sufficient evidence available such that plaintiff 13 can further narrow his definition of military leave to short-term military leave and in this 14 respect, the answer is not particularly clear. For example, plaintiff cites evidence that the 15 pilots, flight attendants, and ground ops and tech ops work groups all code short-term 16 military leave as 14 or fewer days. Dkt. 79-4 at 54:25–55:2–6 (pilots); Dkt. 79-5 at 75:6–8 17 (flight attendants); 79-2 at 74:3–18 (ground ops and tech ops). Added together, these 18 work groups comprise 49,815 employees out of a total 53,205 employees who are 19 covered by a CBA or approximately 94 percent of potential class members. At the 20 hearing, however, counsel for defendant pointed out that this seemingly high percentage 21 is deceptive because the definition was not in place for the entire class period. As stated 22 in the opposition, Southwest did not begin coding “short-term” military leave as 14 days 23 or fewer for pilots until 2016. Opp. at 5. 24 It is not clear at this stage whether the evidentiary issues raised by defendant with 25 regard to how Southwest codes its military leave for each work group will undermine 26 plaintiff’s ability to generate common answers apt to drive resolution of the litigation. 27 Assuming that Southwest did not code short-term military leave for pilots as 14 or fewer 1 2016, then that lack of evidence may complicate plaintiff’s claim on the merits because 2 he will not be able to compare short-term military leave to other similar types of leave. 3 E.g., Reply at 4 & n.9 (proposing to compare short-term military leave with short-term sick 4 leave). But, plaintiff will still be able to compare the average duration of military leave to 5 the average duration of other types of leave and that comparison will drive resolution of 6 whether or not the types of leaves are comparable. 7 ii. Whether Different CBA Rules Governing Employee 8 Scheduling Defeats Commonality 9 Second, defendant explains that it treats an employee’s absence from work as a 10 “leave” only if the absence conflicts with the employee’s work schedule. Opp. at 6. 11 Because the various CBAs governing the work groups have different levels of control and 12 flexibility over scheduling, defendant contends there is no common evidence concerning 13 an employee’s ability to take leave. Id. For example, pilots have a monthly bidding 14 process based on seniority. Berry Decl., Ex. A, Dkt. 84-9, at 59:25–60:5. Once a 15 monthly schedule is assigned, pilots can trade flights with other pilots, with some 16 restrictions. Id., Ex. A, Dkt. 84-9 at 61:17–63:4; 71:7–11. Conversely, non-pilots have 17 different CBAs and less flexible levels of control over work schedules. Opp. at 7. For 18 example, dispatchers bid on work schedules annually and have a repeating cycle of days 19 on and off. Berry Decl., Ex. L, Dkt. 86, at pp. 93–94, at 21:16–22:25; id., Ex. 3 to Ex. L, 20 Dkt. 86, at 111–12, 116–22. 21 The regulation implementing USERRA provides that one factor to consider is “the 22 ability of the employee to choose when to take the leave.” 20 C.F.R. § 1002.150(b). The 23 parties differ on whether the ability to choose refers to the event causing the leave itself, 24 e.g., an employee usually chooses when to take vacation leave but does not choose 25 when he or she gets sick, or to the ability of an employee to arrange and rearrange his or 26 her work schedule around the event causing the leave such that the employer counts the 27 absence as leave. 1 Waltermyer v. Aluminum Co. of America, 804 F.2d 821, 825 (3d. Cir. 1986), the Third 2 Circuit held that employees on military leave were entitled to holiday pay because the 3 employees’ union contract provided for holiday pay for employees performing jury duty, 4 testifying in court, and taking sick leave. In discussing the ability of the employees’ ability 5 to choose, the court recognized that employees “whose absence during the holiday week 6 is involuntary and through no fault of their own receive holiday pay. . . . In those instances 7 the government compels the employees’ attendance and the worker, presumably, does 8 not choose when to comply with this obligation.” Id. The court then compared those 9 absences to military training, stating “[p]articlarly important is the fact that the guardsmen 10 have no individual voice in selecting the weeks they will be on active duty. Military 11 superiors set the time for training which is both compulsory and short.” Id. 12 Waltermyer’s discussion of voluntariness indicates that the appropriate measure of 13 voluntariness is whether the employee has control over the absence. Indeed, in the final 14 rule promulgating 20 C.F.R. § 1002.150(b), DOL summarized Waltermyer as follows: “the 15 court found that because military leave was similarly involuntary, it was comparable to 16 other types of involuntary absences from work and should be afforded the holiday pay.” 17 Uniformed Services Employment and Reemployment Rights Act of 1994, As Amended, 18 70 Fed. Reg. 75,246, 75,264 (Dec. 19, 2005). Thus, in comparing the ability of the 19 employee to choose when to take the leave, the appropriate focus is whether the 20 absence is voluntary or involuntary, not the level of control an employee has selecting his 21 or her work schedule. 22 Defendant also argues an employee’s ability to choose when to take leave impacts 23 the duration factor. Opp. at 6. For example, a pilot and a mechanic who both serve in 24 the military for seven days likely will take military leave of different durations because the 25 pilot has much more flexibility in choosing his or her work schedule compared to the 26 mechanic. 27 USERRA requires employers to provide “such other rights and benefits not 1 employees having similar seniority, status, and pay who are on furlough or leave of 2 absence under a contract, agreement, policy, practice, or plan . . . .” 38 U.S.C. 3 § 4316(b)(1)(B) (emphasis added); see also 20 C.F.R. § 1002.150(a) (“The non-seniority 4 rights and benefits to which an employee is entitled during a period of service are those 5 that the employer provides to similarly situated employees by an employment contract, 6 agreement, policy, practice, or plan in effect at the employee's workplace.” (emphasis 7 added)). As plaintiff’s counsel admitted at the hearing, USERRA requires pilots to be 8 compared against other pilots, flight attendants would be compared against flight 9 attendants, and so on. 10 With that merits-focused consideration in mind, the duration of short-term military 11 leave compared to other forms of paid leave is susceptible to common proof. As 12 discussed above, plaintiff can compute and compare the average duration of leaves for 13 similarly situated employees. While that may later dictate the need for subclasses, it 14 does not defeat a finding of commonality. 15 iii. Whether CBA-Specific Terms for Sick Leave Accrual 16 Defeats Commonality 17 Third, defendant asserts that paid sick leave is an accrual-based benefit with 18 different accrual rates and caps on accrual determined by the different covered CBAs. 19 Opp. at 9. Because of these differences in sick leave accrual, defendant contends that 20 there cannot be a common answer to whether paid sick leave is comparable to military 21 leave. Id. at 10. Plaintiff responds that all class members have received paid sick leave, 22 regardless of work group, throughout the entire class period. Reply at 5. According to 23 plaintiff, the comparability factors can be evaluated with common evidence such as 24 payroll data, corporate documents, and testimony. Id. 25 Defendant’s argument is not persuasive for a few reasons. First, as it details in 26 the opposition, Southwest’s sick leave policies are common to all employees within each 27 work group, which would permit comparison across similarly situated employees. 1 based. See 38 U.S.C. § 4303(2). Whether that leave accrues upon employment, in the 2 case of military leave, or after working a certain period of time, in the case of sick leave, 3 does not impact how Southwest accounts for leave that has already occurred. That is, 4 Southwest has already recorded the instances of sick leave, which can be averaged and 5 then compared to military leave. It may be the accrual rates and caps on sick leave 6 mean that Southwest employees took less sick leave than if Southwest did not restrict 7 sick leave, but that simply means the average sick leave is shorter in duration, a fact that 8 may benefit defendant in the duration comparison. 9 Third, the fact that sick leave accrues after the period of work can also be viewed 10 as a merits question speaking to the purpose of the leave. For example, in Hoefert, 438 11 F. Supp. 3d at 739, the court compared sick leave to military leave and noted that “the 12 purposes are different because military absences are forward looking, whereas sick leave 13 is backward looking.” While military leave “is provided as the need arises,” sick leave “is 14 provided (accrues or is earned) based on past days worked.” Id. Similarly, in Duffer v. 15 United Continental Holdings, Inc., 173 F. Supp. 3d 689, 705 (N.D. Ill. 2016), the district 16 court indicated that sick leave had a different purpose than military leave, the former was 17 “compensation for past work.” 18 iv. Commonality Conclusion 19 Plaintiffs remaining three questions do not meet the commonality requirement 20 because they either parrot USERRA or address an affirmative defense that does not 21 speak to whether the class members have suffered the same injury. See Dukes, 564 22 U.S. at 349–50 (“Any competently crafted class complaint literally raises common 23 questions. . . . Is that an unlawful employment practice? What remedies should we get? 24 Reciting these questions is not sufficient to obtain class certification.” (quotation marks 25 and citations omitted)). 26 Nonetheless, plaintiff has identified two common questions that are likely to drive 27 resolution of the litigation. The first is a pure question of law. The second is a question 1 the duration question may not be common. Nonetheless, in Dukes, id. at 355, the 2 Supreme Court has indicated that “a uniform employment practice” can “provide the 3 commonality needed for a class action.” In this case, Southwest maintains uniform 4 practices for each work group because it provides paid leave for certain types of leave 5 and denies paid leave for military leave. 6 Accordingly, plaintiff meets the commonality requirement of Rule 23(a)(2). 7 c. Typicality 8 Rule 23(a)(3) requires that the claims of the named plaintiff be typical of those of 9 the proposed class. Fed. R. Civ. P. 23(a)(3). “The test for typicality ‘is whether other 10 members have the same or similar injury, whether the action is based on conduct which 11 is not unique to the named plaintiffs, and whether other class members have been injured 12 by the same course of conduct.’” Sandoval v. Cnty. of Sonoma, 912 F.3d 509, 518 (9th 13 Cir. 2018) (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)). 14 “Typicality refers to the nature of the claim or defense of the class representative, and not 15 to the specific facts from which it arose or the relief sought.” Hanon, 976 F.2d at 508 16 (citation omitted). 17 It is evident that the nature of Huntsman’s claim is the same as any other class 18 member because each class member has been denied payment for short-term military 19 leave. Similar to class members, Huntsman alleges that he “has routinely taken short- 20 term military leave,” Compl. ¶ 9, and Southwest does not pay employees who have taken 21 short-term military leave, id. ¶ 2. 22 Defendant argues that plaintiff’s claim is barred by res judicata because he could 23 have raised this same claim in Huntsman I but failed to do so. Opp. at 11–13. 24 Defendant’s argument is not to the contrary for two reasons. First, defendant has not 25 established that res judicata, if successful, would even reach plaintiff’s claims. Claim 26 preclusion requires “(1) an identity of claims, (2) a final judgment on the merits, and (3) 27 privity between parties.” Howard v. City of Coos Bay, 871 F.3d 1032, 1039 (9th Cir. 1 F.3d 1064, 1077 (9th Cir. 2003)). “[T]he claim preclusion ‘inquiry is modified in cases 2 where the earlier action was dismissed in accordance with a release or other settlement 3 agreement.’” Wojciechowski v. Kohlberg Ventures, LLC, 923 F.3d 685, 689 (9th Cir. 4 2019) (quoting U.S. ex rel. May v. Purdue Pharma L.P., 737 F.3d 908, 913 (4th Cir. 5 2013)). In such cases, “[a] settlement can limit the scope of the preclusive effect of a 6 dismissal with prejudice by its terms.” Id. (quoting U.S. ex rel. Barajas v. Northrop Corp., 7 147 F.3d 905, 911 (9th Cir. 1998)). 8 In the first case between Huntsman and Southwest, Huntsman I, No. 17-cv-3972- 9 JD (N.D. Cal.), the parties entered into a settlement agreement and the terms of that 10 settlement agreement determine whether plaintiff released his subsequent claim in this 11 case. That settlement agreement only released claims that “(1) arise from or relate to the 12 accrual of Sick Leave during periods of Short-Term Military Leave . . . , or (2) arise from 13 or relate to employee or employer contributions to Class Members’ 401(k) accounts.” 14 Supplemental Declaration of Michael Scimone (“Scimone Supp. Decl.”), Dkt. 91-4, Ex. 3, 15 § XIV. In contrast, plaintiff’s claim here is that Southwest failed to pay employee wages 16 and/or salaries during periods of short-term military leave. Compl. ¶ 33. It is plausible 17 that there is no overlap between the settlement agreement and plaintiff’s claims such that 18 the present USERRA claim was not released in the prior action, though the court makes 19 no finding on the merits of defendant’s res judicata affirmative defense as it goes to the 20 merits of plaintiff’s claim. 21 Second, even if defendant’s res judicata defense applies, that would not 22 necessarily defeat certification. As stated by the Ninth Circuit, “[d]efenses unique to a 23 class representative counsel against class certification only where they ‘threaten to 24 become the focus of the litigation.’” Rodriguez v. Hayes, 591 F.3d 1105, 1124 (9th Cir. 25 2010) (quoting Hanon, 976 F.2d at 508). It is not clear at this stage whether this defense 26 is likely to become the focus of the litigation, but given the narrow scope of the settlement 27 agreement, defendant has not demonstrated that the res judicata defense necessitates a 1 234, 247 (N.D. Cal. 2020) (determining that affirmative defenses required more factual 2 and legal development before finding they threatened to become focus of litigation). 3 The court finds that plaintiff’s claim is typical of the proposed class’s claims. 4 d. Adequacy 5 Rule 23(a)(4) requires that the representative party will fairly and adequately 6 protect the interests of the class. Fed. R. Civ. P. 23(a)(4). The Ninth Circuit has set forth 7 a two-part test for this requirement: “(1) do the named plaintiffs and their counsel have 8 any conflicts of interest with other class members and (2) will the named plaintiffs and 9 their counsel prosecute the action vigorously on behalf of the class?” Staton v. Boeing 10 Co., 327 F.3d 938, 957 (9th Cir. 2003). 11 Additionally, Rule 23(g) requires that a district court appoint class counsel for any 12 class that is certified and further lists the following four factors relevant to such 13 appointment: (1) the work counsel has done in identifying or investigating potential claims 14 in the action; (2) counsel’s experience in handling class actions or other complex litigation 15 and the type of claims in the litigation; (3) counsel’s knowledge of the applicable law; and 16 (4) the resources that counsel will commit to representing the class. Fed. R. Civ. P. 17 23(g). A court may also consider the proposed counsel’s professional qualifications, skill, 18 and experience, as well as such counsel’s performance in the action itself. In re Emulex 19 Corp., 210 F.R.D. 717, 720 (C.D. Cal. 2002) (citations omitted). 20 With respect to plaintiff’s adequacy to serve as class representative, defendant 21 argues that he is not adequate because he lacks knowledge of the terms of CBAs for the 22 non-pilot work groups. Opp. at 14. According to defendant, plaintiff admitted that he has 23 no knowledge about how schedules work for the other work groups, the terms of the 24 other CBAs, whether other work groups distinguish between “short-term” and “long-term” 25 military leave, or whether other work groups have similar handbooks as pilots. Id. 26 Defendant’s argument that plaintiff lacks the requisite knowledge to represent 27 other class members is not persuasive. The facts here are easily distinguishable from 1 plaintiff demonstrated “an alarming unfamiliarity with the suit,” or McPhail v. First 2 Command Financial Planning, Inc., 247 F.R.D. 598, 612 (S.D. Cal. 2007), where one 3 plaintiff “never recalled seeing the First Amended Complaint” and “did not recognize the 4 names of her attorneys or their respective law firms,” and the other plaintiff was deployed 5 overseas and never sat for a deposition. Plaintiff testified that he is “comfortable 6 representing any individual . . . who’s taken short-term military leave for Southwest 7 Airlines,” because he is “familiar with USERRA.” Scimone Supp. Decl., Ex. 2 at 106:11– 8 21. Indeed, plaintiff Huntsman is familiar with the broad contours of a USERRA claim 9 because he previously was class representative in a prior USERRA case against 10 Southwest. See Huntsman I, No. 17-cv-3972-JD. 11 Defendant does not oppose the second prong of the Rule 23(a)(4) analysis, that 12 is, whether plaintiff and his counsel will vigorously prosecute this action on behalf of the 13 class. Nor does defendant oppose plaintiff’s choice for co-lead class counsel. Co-lead 14 class counsel, Outten & Golden LLP and Block & Leviton LLP, have experience in and 15 knowledge regarding litigating employment class action cases. Scimone Decl. ¶¶ 4–10; 16 Declaration of R. Joseph Barton, Dkt. 80; Declaration of Peter Romer-Friedman, Dkt. 81; 17 Declaration of Thomas G. Jarrard, Dkt. 82; Declaration of Matthew Crotty, Dkt. 83. Their 18 performance in this action to date has been sufficient, including successfully litigating a 19 motion to transfer venue and a motion for judgment on the pleadings. 20 Thus, plaintiff meets the adequacy prong of Rule 23(a) and co-lead class counsel 21 meet the Rule 23(g) requirements. 22 2. Rule 23(b)(3) 23 Once a plaintiff satisfies Rule 23(a), he or she may maintain a class action under 24 Rule 23(b)(3) if the court finds that “the questions of law or fact common to class 25 members predominate over any questions affecting only individual members,” and “a 26 class action is superior to other available methods for fairly and efficiently adjudicating 27 the controversy.” Fed. R. Civ. P. 23(b)(3). 1 a. Predominance 2 “The predominance inquiry under Rule 23(b)(3) tests whether proposed classes 3 are sufficiently cohesive to warrant adjudication by representation.” In re Hyundai & Kia 4 Fuel Economy Litig., 926 F.3d 539, 557 (9th Cir. 2019) (quoting Amchem Prods., Inc. v. 5 Windsor, 521 U.S. 591, 623 (1997)). “It presumes that the existence of common issues 6 of fact or law have been established pursuant to Rule 23(a)(2), and focuses on whether 7 the common questions present a significant aspect of the case and they can be resolved 8 for all members of the class in a single adjudication.” Id. “[I]f so, there is clear 9 justification for handling the dispute on a representative rather than on an individual 10 basis.” Id. 11 The predominance analysis is “far more demanding than Rule 23(a)’s commonality 12 requirement.” Amchem Prods., 521 U.S. at 623–24. But the rule “does not require a 13 plaintiff seeking class certification to prove that each element of their claim is susceptible 14 to classwide proof,” so long as one or more common questions predominate. Castillo v. 15 Bank of Am., NA, 980 F.3d 723, 730 (9th Cir. 2020) (quoting Amgen Inc. v. Conn. Ret. 16 Plans & Tr. Funds, 568 U.S. 455, 469 (2013)). 17 “Considering whether ‘questions of law or fact common to class members 18 predominate’ begins, of course, with the elements of the underlying cause of action.” 19 Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011) (quoting Fed. R. 20 Civ. P. 23(b)(3)). In this case, plaintiff alleges a single cause of action for violation of title 21 38 U.S.C. § 4316(b)(1). Compl. ¶¶ 46–53. In alleging a section 4316(b)(1) violation, a 22 plaintiff must show the following elements: (1) that he or she is absent from a position of 23 employment; (2) that absence is by reason of service in the uniformed services; and (3) 24 that he or she was denied other rights and benefits not determined by seniority and 25 generally provided by the employer to other employees who are furloughed or on a leave 26 of absence and who have similar seniority, status, and pay. The two common issues 27 identified by plaintiff address two aspects of the third element: whether paid leave is a 1 paid leave. 2 The Ninth Circuit has held that “predominance in employment cases is rarely 3 defeated on the grounds of differences among employees so long as liability arises from 4 a common practice or policy of an employer.” Senne v. Kansas City Royals Baseball 5 Corp., 934 F.3d 918, 938 (9th Cir. 2019) (quoting 7 Newberg on Class Actions § 23:33 6 (5th ed. 2012)). “Although the existence of blanket corporate policies is not a guarantee 7 that predominance will be satisfied, such policies ‘often bear heavily on questions of 8 predominance and superiority’.” Id. (quoting In re Wells Fargo Home Mortg. Overtime 9 Pay Litig., 571 F.3d 953, 958 (9th Cir. 2009)). The comparability analysis required by 10 USERRA implicates Southwest’s policies, which uniformly deny paid military leave to its 11 various work groups and uniformly pay them for other types of leave. 12 Defendant advances three arguments against predominance. First, Southwest 13 argues that it has a laches defense against plaintiff and class members that have slept on 14 their rights. Opp. at 15. Second, individual inquiries into each employee’s military 15 service dates will predominate. Id. at 18. Third, plaintiff has failed to provide a damages 16 model because he has testified that military leave records are flawed and inaccurate. Id. 17 at 20–21. The court discusses each in turn. 18 i. Laches 19 According to defendant, laches involves an individualized inquiry into whether a 20 plaintiff or putative class member had notice that his or her rights were purportedly 21 violated, and those individualized inquiries defeat predominance. Opp. at 16. “‘Laches is 22 an equitable time limitation on a party’s right to bring suit,’ resting on the maxim that ‘one 23 who seeks the help of a court of equity must not sleep on his rights.’” Jarrow Formulas, 24 Inc. v. Nutrition Now, Inc., 304 F.3d 829, 835 (9th Cir. 2002) (citations omitted). To 25 establish a laches defense, a defendant must prove “unreasonable delay by the plaintiff 26 and prejudice to itself.” Couveau v. Am. Airlines, Inc., 218 F.3d 1078, 1083 (9th Cir. 27 2000) (citation omitted). 1 predominance analysis. 2 Newberg, § 4:55. There are two competing considerations. 2 On the one hand, the mere existence of affirmative defenses “does not compel a finding 3 that individual issues predominate over common ones.” Williams v. Sinclair, 529 F.2d 4 1383, 1388 (9th Cir. 1975); see also Senne, 934 F.3d at 938 (“A proposed (b)(3) class 5 may be certified as long as ‘one or more of the central issues in the action are common to 6 the class and can be said to predominate . . . even though other important matters will 7 have to be tried separately, such as damages or some affirmative defenses peculiar to 8 some individual class members.’” (alteration in original) (quoting Tyson Foods, 136 S. Ct. 9 at 1045)). On the other hand, “a class cannot be certified on the premise that [the 10 defendant] will not be entitled to litigate its . . . defenses to individual claims.” Dukes, 564 11 U.S. at 367. 12 Synthesizing these two requirements together, as long as a defendant is able to 13 assert individualized defenses at a later stage, the mere existence of such a defense 14 does not defeat certification. See 2 Newberg, § 4:55; see also Kivett v. Flagstar Bank, 15 333 F.R.D. 500, 506 (N.D. Cal. 2019) (“[C]ourts traditionally have been reluctant to deny 16 class action status under Rule 23(b)(3) simply because affirmative defenses may be 17 available against individual members.” (alteration in original) (quoting Rodman v. 18 Safeway Inc., 2015 WL 2265972, at *3 (N.D. Cal. May 14, 2015)); Nitsch v. Dreamworks 19 Animation SKG Inc., 315 F.R.D. 270, 313 (N.D. Cal. 2016); Herrera v. LCS Fin. Servs. 20 Corp., 274 F.R.D. 666, 681 (N.D. Cal. 2011). 21 The circumstances in which an affirmative defense defeats certification are limited 22 to situations in which the affirmative defenses are unusually important or are coupled with 23 other individual issues. 2 Newberg, § 4:55. This latter consideration was present in the 24 two cases Southwest cites in support of its laches theory where the defendants pleaded 25 several affirmative defenses that could not be adjudicated through common facts or 26 evidence. See Valenzuela v. Union Pac. R.R. Co., 2017 WL 679095, at *14 (D. Ariz. 27 Feb. 21, 2017), In re SFPP Right-of-Way Claims, 2017 WL 2378363, at *17–18 (C.D. 1 This case does not have the same considerations as Valenzuela or In re SFPP 2 because defendant only identifies one potential affirmative defense for the predominance 3 inquiry. Even if defendant had that information available, the district court in Kelly v. City 4 and County of San Francisco, 2005 WL 3113065, at *3 (N.D. Cal. Nov. 21, 2005), 5 recognized that there is “no authority for defendants’ claim that each element of the 6 laches analysis will require a fully individualized inquiry.” Rather, “common evidence 7 will . . . almost certainly be involved in the laches analysis.” Id. 8 In sum, there are sufficient safeguards at later stages of this litigation to permit 9 defendant to assert a laches defense against individual class members and/or plaintiff. 10 See Jimenez, 765 F.3d at 1168 (affirming class certification where “the district court was 11 careful to preserve [the defendant’s] opportunity to raise any individualized defense it 12 might have at the damages phase of the proceeding”). 13 ii. Individual Inquiries into Military Service Dates 14 Defendant states that plaintiff routinely took military leave from Southwest on 15 dates that were not reflected in his military service records. Opp. at 18. In written 16 discovery responses and at his deposition, plaintiff stated that he performed military 17 service on days that were included in Southwest’s leave records but were not reflected in 18 the Air Force’s service records. Id. According to defendant, plaintiff also testified that 19 Southwest’s leave records were “flawed” and “inaccurate.” Id. at 19. Based on these 20 factual issues, defendant argues that individual inquiries into military service dates will 21 predominate. Id. at 18. 22 Southwest’s arguments implicate two separate elements of plaintiff’s USERRA 23 claim. Whether plaintiff actually performed military service on the days he claims speaks 24 to whether plaintiff was “absent from a position of employment by reason of service in the 25 uniformed services.” 38 U.S.C. § 4316(b)(1) (emphasis added). Whether Southwest’s 26 own payroll records are inaccurate or flawed goes to the comparability analysis required 27 by section 4316(b)(1). 1 2018 during which plaintiff took military leave from Southwest and for which the military 2 has no record of plaintiff performing military service. Opp. at 18. According to defendant, 3 this apparent discrepancy undermines plaintiff’s claim that he should be paid for those 4 days he was performing military service. Id. Plaintiff disputes that contention and has 5 proffered various explanations why the military records do not accurately reflect these 6 days. See, e.g., Berry Decl., Ex. C. He also argues that there is no requirement that 7 plaintiffs with USERRA claims must independently verify the accuracy of an employer’s 8 payroll and leave records. Reply at 12. 9 Defendant’s argument is not persuasive because USERRA does not require 10 persons who serve less than 31 days to submit documentation to their employer upon 11 return from a leave of absence. See 38 U.S.C. §§ 4312(e), (f), 4316(e)(2); see also 20 12 C.F.R. § 1002.121 (“Is the employee required to submit documentation to the employer in 13 connection with the application for reemployment? Yes, if the period of service exceeded 14 30 days and if requested by the employer to do so.”). Similarly, the military is generally 15 required to verify an employee’s absence, regardless of duration, due to uniformed 16 service to civilian employers, but only upon the employer’s request. See Dep’t of Def. 17 Instruction 1205.12, at 9, 18 https://www.esgr.mil/Portals/0/Volunteer%20Resources/ombudsman%20services/5%20y 19 ear%20exemption%20USERRA%20policy%20memos/Department%20of%20Defense%2 20 0Instruction%20120512p.pdf?ver=2019-04-19-102455-327 (Feb. 24, 2016). As stated by 21 defendant’s counsel at the hearing, Southwest does not routinely request verification of 22 its employee’s period of military service and only verified in this case because plaintiff 23 sued the company. 24 Moreover, defendant has not persuasively demonstrated that plaintiff would need 25 to present evidence that varies from class member to member. Assuming plaintiff had no 26 justification3 for taking military leave from Southwest for the 14 days defendant identified 27 1 in 2017 and 2018, plaintiff’s military service records confirm that he did serve on 47 out of 2 a total 61 days on which he took military leave from Southwest.4 Declaration of John 3 Freed (“Freed Decl.”), Dkt. 84-5, ¶ 2 (explaining that Exhibit 1 includes a chart “that 4 identifies Jayson Huntsman’s military leaves Southwest in 2017 and 2018”); see Dkt. 84- 5 5; Ex. 1 at 4. In other words, the discrepancies identified by defendant amount to twenty- 6 three percent (14 divided by 61) of all military leave days in 2017 and 2018. While not 7 insignificant, a 23 percent error rate—inferred from one data point, i.e., one employee— 8 does not support a conclusion that class members will need to present individualized 9 evidence to support their military service. 10 Defendant’s second argument is that plaintiff has testified that Southwest’s own 11 military leave records are “flawed” and “inaccurate.” Southwest has not demonstrated 12 that plaintiff’s statements, selectively pulled from his deposition testimony, discredits its 13 own payroll records to such an extent that the records are unreliable as common 14 evidence. For example, plaintiff testified that he “performed military duty on days off 15 showing on my SWA records that are not annotated accordingly” and responded in the 16 affirmative to the question: “And so in that regard Southwest’s records are inaccurate? ” 17 Berry Decl., Ex. A, Dkt.84-9, at 257:19–25. These quotes give no indication of how 18 pervasive the potential flaws might be.5 Nor is it clear how pervasive those flaws might 19
20 Southwest. This goes to the merits of plaintiff’s individual claim and the court makes no finding on this issue. 21 4 It is not clear whether the number of unverified days is in fact 14 days. Of the 14 days Southwest identifies in its opposition, Opp. at 18 n.12, three are not marked on its own 22 records as days on which plaintiff took military leave, which instead yields only 11 days. Compare Freed Decl., Ex. 1, Dkt. 84-6 at 4 with Berry Decl., Ex. C, Dkt. 84-11. Whether 23 the true number is 14 days or 11 days does not substantively alter the quantitative element of the analysis. 24 5 Defendant cites Exhibit C to the Berry Declaration where plaintiff has identified instances where his military service record displayed dates that were not recorded on 25 Southwest’s leave record. Defendant has made no attempt to quantify the extent of the supposed inaccuracies and from a brief review of Exhibit C there are a handful of days 26 from June 2012 to May 2020 for which the Air Force has records, but Southwest does not. Berry Decl., Ex. B at 7–13 (Air Force records), Ex. C (plaintiff’s excel chart of 27 discrepancies). There is one exception where a 21-day period of service is missing from 1 be when applied to the class as a whole because defendant only focuses on plaintiff’s 2 records. 3 Southwest records when its employees take leave and those records specify 4 whether that leave is sick, jury duty, bereavement, or military leave. Those records are 5 reliable enough to permit a comparison of the different types of leave on a class-wide 6 basis and the individual issues identified by defendant do not overcome the common 7 issues. If, however, plaintiff were to rely on records other than Southwest’s to prove 8 leave days taken, the court would likely be forced to reconsider this determination. 9 iii. Damages Model 10 Citing plaintiff’s testimony that Southwest and the military’s records are 11 “inaccurate” and “flawed,” defendant argues that plaintiff cannot also claim those records 12 are reliable for calculating damages. Opp. at 21. Defendant also argues this case is 13 similar to others that have denied certification because the plaintiffs in those cases failed 14 to show that the damages stemmed from the defendant’s actions that created the legal 15 liability. Id. In response, plaintiff states that he has described a common methodology to 16 calculate damages based on periods of leave reported in Southwest’s payroll records 17 during the class period. Reply at 13. Plaintiff points out that defendant does not argue 18 that the damages approach is flawed, only that defendant questions the reliability of the 19 records based on the apparent errors in plaintiff’s military service records. Id. 20 Levya v. Medline Industries Inc., 716 F.3d 510 (9th Cir. 2013), guides the 21 damages model analysis in employment cases. There, the Ninth Circuit reversed a 22 denial of class certification where the district court had determined that the damages 23 inquiry would be highly individualized. Id. at 513. On appeal, the Circuit noted that 24 damages determinations are individualized in nearly all wage-and-hour class actions and 25 that “the presence of individualized damages cannot, by itself, defeat class certification 26 under Rule 23(b)(3).” Id. at 513–14. The Levya court acknowledged the principle from 27 the Supreme Court’s decision in Comcast Corp. v. Behrend that the plaintiff must show 1 liability.” Id. at 514 (citing Comcast Corp. v. Behrend, 569 U.S. 27, 38 (2013)). The Ninth 2 Circuit approved a damages model (and distinguished Comcast) where the defendant’s 3 computerized payroll and time-keeping database would enable the court to accurately 4 calculate damages and related penalties for each claim. Id. 5 Here, plaintiff has alleged only one claim for violation of USERRA and if plaintiff is 6 able to prove liability, then such a finding would mean that Southwest was liable for any 7 unpaid military leave. Indeed, plaintiff’s requested relief would include requiring 8 Southwest to pay the compensation that plaintiff and class members should have 9 received for periods of short-term military leave. Compl., Prayer for Relief. Defendant’s 10 computerized payroll information records military leave and serves as a reasonable 11 measure of damages for unpaid military leave. Additionally, defendant’s attempt to 12 undermine the reliability of its own records with plaintiff’s testimony that it solicited, and it 13 injected into this case is unpersuasive. 14 In sum, the common issues identified by plaintiff, whether paid leave is a “right and 15 benefit” under 38 U.S.C. § 4316(b) and whether short-term military leave is comparable 16 to other forms of paid leave, can be resolved on a classwide basis. Because plaintiff’s 17 USERRA claim turns on Southwest’s generally applicable policies, predominance is met. 18 See Senne, 934 F.3d at 938. 19 b. Superiority 20 The superiority prong of Rule 23(b)(3) requires a court to determine “whether the 21 objectives of the particular class action procedure will be achieved in the particular case.” 22 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1023 (9th Cir. 1998), overruled on other 23 grounds by Dukes, 564 U.S. at 338. Rule 23(b)(3) provides four factors to evaluate 24 superiority: (1) the class members’ interests in controlling litigation, (2) the nature and 25 extent of other litigation concerning the same controversy, (3) the desirability of 26 concentrating the litigation of the claims in this forum, and (4) the difficulties of managing 27 the case as a class action. Fed. R. Civ. P. 23(b)(3). 1 As to the first factor, “[w]here recovery on an individual basis would be dwarfed by the 2 cost of litigating on an individual basis, this factor weighs in favor of class certification.” 3 Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010) (citations 4 omitted). This factor is similar to the commonality test; underlying both tests “is a 5 concern for judicial economy.” Id. Plaintiff meets that standard here since the cost of 6 litigating to recover the brief periods of time for which an employee takes short-term 7 military leave (i.e., less than 2 weeks) are substantial relative to the individual relief. 8 Neither party has identified other litigation against Southwest on the same issue and this 9 court has already denied defendant’s motion to transfer venue. Finally, neither party has 10 identified any manageability concerns. 11 The court finds plaintiff satisfies the superiority element and further finds that 12 plaintiff meets all the requirements to certify a class. 13 3. Motion to File Under Seal 14 Concurrent with its opposition to the motion for class certification, defendant 15 moves to file certain documents under seal. Dkt. 84. Defendant seeks to seal Exhibits A 16 through C of the Berry Declaration, Dkts. 84-9 to 84-11; a portion of the Freed 17 Declaration along with Exhibits 1 and 2 to that declaration, Dkts. 84-5 to 84-7; and those 18 portions of its opposition brief that refer to material from the aforementioned Berry and 19 Freed Declarations, Dkt. 84-3. Plaintiff designated these materials as “confidential” under 20 the parties’ protective order and has not filed any response or opposition to the motion. 21 Neither party has complied with Civil Local Rule 79-5. Specifically, an 22 administrative motion to file under seal must be accompanied by a declaration 23 establishing that the documents sought to be filed under seal, or portions thereof, are 24 sealable. Civ. L.R. 79-5(d)(1)(A). Defendant did not file such a declaration. Defendant 25 has also failed to indicate, by highlighting or other clear method, the portions of the 26 unredacted opposition brief that have been omitted from the redacted version of the brief. 27 Civ. L.R. 79-5(d)(1)(D). The redacted and unredacted versions of the opposition brief 1 Additionally, where, as here, a submitting party (defendant) seeks to file under 2 seal a document designated as confidential by a designating party (plaintiff) within four 3 days of the filing of the motion to file under seal, the designating party must file a 4 declaration establishing that all of the designated material is sealable. Civ. L.R. 79- 5 5(e)(1). Plaintiff has failed to do so. 6 Turning to the merits of defendant’s motion, there is a general presumption in 7 favor of public access to federal court records. Nixon v. Warner Commc’ns, Inc., 435 8 U.S. 589, 597 (1978). “[T]he proponent of sealing bears the burden with respect to 9 sealing. A failure to meet that burden means that the default posture of public access 10 prevails.” Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1182 (9th Cir. 2006). 11 When a request to seal documents is made in connection with a motion, the court 12 must determine whether the parties are required to overcome that presumption with 13 “compelling reasons” or with “good cause.” A party seeking to seal materials submitted 14 with a motion that is “more than tangentially related to the merits of the case”—regardless 15 whether that motion is “technically dispositive”—must demonstrate that there are 16 compelling reasons to keep the documents under seal. Ctr. for Auto Safety v. Chrysler 17 Grp., LLC, 809 F.3d 1092, 1101–02 (9th Cir. 2016). Conversely, if the motion is only 18 tangentially related to the merits, “a ‘particularized showing,” under the ‘good cause’ 19 standard of Rule 26(c) will ‘suffice[] to warrant preserving the secrecy of sealed discovery 20 material attached to non-dispositive motions.” Kamakana, 447 F.3d at 1180 (alteration in 21 original) (quoting Foltz v. State Farm. Mut. Auto. Ins. Co., 331 F.3d 1122, 1135, 1138 (9th 22 Cir. 2003)). Generally, courts in the Ninth Circuit apply the compelling reasons standard 23 to class certification motions. See A.B. v. Pac. Fertility Ctr., 441 F. Supp. 3d 902, 906 24 (N.D. Cal. 2020); Yan Mei Zheng v. Toyota Motor Corp., 2019 WL 6841324, at *1 (N.D. 25 Cal. Dec. 16, 2019) (collecting cases); Racies v. Quincy Bioscience, LLC, 2017 WL 26 6405612, at *2 (N.D. Cal. Dec. 15, 2017). 27 Here, the information sought to be sealed includes plaintiff’s personal information 1 financial information related to his military service, and other sensitive personal 2 information. Dkt. 84 at 2. Defendant argues that plaintiff has designated these materials 3 as confidential under the parties’ protective order. Of course, such a designation, without 4 more, is insufficient to demonstrate a compelling reason to seal that document. See Civ. 5 L.R. 79-5(d)(1)(A) (“Reference to a stipulation or protective order that allows a party to 6 designate certain documents as confidential is not sufficient to establish that a document, 7 or portions thereof, are sealable.”). 8 Defendant also argues that certain employment records can be sealable. Dkt. 84 9 at 1. The cases defendant cites, e.g., San Diego Trolley, lnc. v. Superior Ct., 87 Cal. 10 App. 4th 1083, 1097 (Ct. App. 2001); Lee v. Pep Boys-Manny Moe & Jack of Cal., 2015 11 WL 9268118, at *4 (N.D. Cal. Dec. 21, 2015), deal with California’s constitutional right to 12 privacy of an employee’s personnel records, which in turn is defined as those files that 13 the employer maintains relating to the employee’s performance or to grievances 14 concerning the employee, Cal. Labor Code § 1198.5. None of the cases cited deal with 15 dates of military service or anything similar. The only plausible material to be sealed 16 relates to plaintiff’s personal financial information, i.e., his IRS form W-2s. See Pension 17 Plan for Pension Tr. Fund for Operating Eng’rs v. Giacalone Elec. Servs., Inc., 2015 WL 18 3956143, at *10 (N.D. Cal. June 29, 2015); In re Wachovia Corp. “Pick-a-Payment” 19 Mortg. Mktg. & Sales Practices Litig., 2014 WL 2905056, at *4–5 (N.D. Cal. June 26, 20 2014). 21 A review of each document to be sealed confirms that, aside from the personal 22 financial information, the material does not meet the compelling reasons standard or is 23 not narrowly tailored. With regard to Exhibit C to the Berry Declaration, the Freed 24 Declaration and Exhibits 1 and 2 to the Freed Declaration, neither defendant nor plaintiff 25 have cited a case or proffered a compelling reason for the proposition that past dates of 26 military service are sealable. With regard to Exhibit A to the Berry Declaration, defendant 27 has made no attempt to narrowly tailor the material to be sealed. See Civ. L.R. 79-5(b). 1 plaintiff’s tax information but does not with regard to his dates of service. The photos 2 taken by plaintiff when he was on an Air Force base may be sealable if they tend to 3 reveal sensitive information, but defendant has not made any particular argument as to 4 the photos. 5 In sum, both the submitting party and the designating party have procedural 6 obligations under the Civil Local Rules with which they have failed to comply. The 7 justification proffered by defendant generally does not meet the compelling reasons 8 standard, except as articulated above. The court is cognizant of the fact that, even 9 though defendant has filed the motion to file under seal, it is plaintiff who has designated 10 this material as confidential. Accordingly, the court will deny the motion without prejudice 11 so that the parties may refile the motion in accordance with the procedural and 12 substantive issues identified above. 13 CONCLUSION 14 For the reasons stated, the court GRANTS plaintiff’s motion for class certification. 15 The court DENIES WITHOUT PREJUDICE defendant’s motion to file under seal. 16 Defendant may refile its motion to file under seal within fourteen days of the date on 17 which this order is filed. 18 IT IS SO ORDERED. 19 Dated: February 3, 2021 20 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 21 United States District Judge 22 23 24 25 26 27