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1255293.1 PLTFS’ MTN FOR CLASS CERT PURSUANT TO R. 23 CASE NO. 13-0119 BLF

Kelly M. Dermody (Cal. Bar No. 171716)Daniel M. Hutchinson (Cal. Bar No. 239458) Anne B. Shaver (Cal. Bar No. 255928) Marc A. Pilotin (Cal. Bar No. 266369) LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-Mail: [email protected] E-Mail: [email protected] E-Mail: [email protected] E-Mail: [email protected] Jahan C. Sagafi (Cal. Bar No. 224887) OUTTEN & GOLDEN LLP One Embarcadero Center, 38th Floor San Francisco, CA 94111 Telephone: (415) 638-8800 Facsimile: (415) 638-8810 E-Mail: [email protected] Adam T. Klein (admitted pro hac vice) Juno Turner (admitted pro hac vice) OUTTEN & GOLDEN LLP 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005 E-Mail: [email protected] E-Mail: [email protected] Attorneys for Plaintiffs and Proposed Class Members

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

ERIC BENEDICT, RICHARD BOWDERS, KILRICANOS VIEIRA, and DAVID MUSTAIN on behalf of themselves and classes of those similarly situated,

Plaintiffs,

v.

HEWLETT-PACKARD COMPANY,

Defendant.

Case No. C 13-0119 BLF

PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION PURSUANT TO RULE 23

Date: July 30, 2015 Time: 9:00 a.m. Judge: Hon. Beth Labson Freeman Crtrm: 3, 5th Floor

Case5:13-cv-00119-BLF Document315 Filed05/18/15 Page1 of 31

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TABLE OF CONTENTS

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NOTICE OF MOTION AND MOTION ........................................................................................ 1

STATEMENT OF ISSUES TO BE DECIDED ............................................................................. 2

MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 2

I. BACKGROUND .................................................................................................... 4

A. Plaintiffs Are Former TSCs Who Assert Claims under California, Colorado, and Massachusetts Law. ............................................................. 4

B. HP’s Job Architecture Policy Delineates the Primary Job Duties of Technical Solutions Consultants. ................................................................ 5

C. Class Members Work In Organizations That Provide Technical Support for HP Hardware and Software Products. ..................................... 8

II. ARGUMENT ........................................................................................................ 12

A. Legal Standard for Class Certification ...................................................... 12

B. Rule 23(a)(1): Numerosity is Satisfied Because There Are Sufficiently Numerous Class Members Such that Joinder is Impracticable. ............................................................................................ 12

C. Rule 23(a)(2): Commonality is Satisfied Because There Are Questions of Law and Fact Common to Members of the Proposed Classes. ...................................................................................................... 14

D. Rule 23(a)(3): Typicality is Satisfied Because Plaintiffs’ Claims are Reasonably Co-Extensive with Those of the Absent Class Members. ................................................................................................... 17

E. Rule 23(a)(4), (g): Plaintiffs and Their Counsel will Fairly and Vigorously Represent the Interests of the State Classes. .......................... 17

F. Rule 23(b)(3): Plaintiffs Satisfy the Predominance and Superiority Requirements............................................................................................. 18

III. CONCLUSION ..................................................................................................... 25


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TABLE OF AUTHORITIES

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Cases

Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184 (2013) ......................................................................................................... 12, 18

Benton v. Telecom Network Specialists, Inc., 220 Cal.App.4th 701 (2013) ...................................................................................................... 22

Bowerman v. Field Asset Servs., Inc., No. 13-CV-00057-WHO, 2015 WL 1321883 (N.D. Cal. Mar. 24, 2015) ........................................................................... 15

Boyd v. Bank of Am. Corp., 300 F.R.D. 431 (C.D. Cal. 2014) ................................................................................... 22, 23, 25

Bradley v. Networkers Int’l, LLC, 211 Cal. App. 4th 1129 (2012) ............................................................................................ 16, 22

Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004 (2012) ............................................................................................................. 16

Brown v. Hain Celestial Grp., Inc., No. C 11-03082 LB, 2014 WL 6483216 (N.D. Cal. Nov. 18, 2014) ........................................................................... 17

Californians for Disability Rights, Inc. v. Cal. Dep’t of Transp., 249 F.R.D. 334 (N.D. Cal. 2008) ............................................................................................... 17

Damassia v. Duane Reade, Inc., 250 F.R.D. 152 (S.D.N.Y. 2008) ................................................................................... 19, 22, 23

Delagarza v. Tesoro Refining & Mktg. Co., No. C–09–5803 EMC, 2011 WL 4017967 (N.D. Cal. Sept. 8, 2011) ............................................................................ 18

DuFour v. BE LLC, 291 F.R.D. 413 (N.D. Cal. 2013) ............................................................................................... 13

Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011)...................................................................................................... 17

Gentry v. Superior Court, 42 Cal. 4th 443 (2007) ............................................................................................................... 13

Greko v. Diesel U.S.A., Inc., 277 F.R.D. 419 (N.D. Cal. 2011) ............................................................................................... 15

Grenawalt v. AT&T Mobility, No. 11 Civ. 2664 (ALC), 2014 WL 4832318 (S.D.N.Y. Sept. 29, 2014) ........................................................................... 16

Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998)........................................................................................ 17, 18, 24

In re Cirrus Logic Secs., 155 F.R.D. 654 (N.D. Cal. 1994) ............................................................................................... 12

In re Rubber Chems. Antitrust Litig., 232 F.R.D. 346 (N.D. Cal. 2005) ......................................................................................... 12, 13


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TABLE OF AUTHORITIES (continued)

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In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953 (9th Cir. 2009)................................................................................................ 19, 23

Jimenez v. Allstate Ins. Co., 765 F.3d 1161 (9th Cir. 2014).................................................................................................... 14

Marilley v. Bonham, No. C-11-02418-DMR, 2012 WL 851182 (N.D. Cal. Mar. 13, 2012) ............................................................................. 13

Mazza v. Am. Honda Motor Company, Inc., 666 F.3d 581 (9th Cir. 2012)...................................................................................................... 14

Morrison v. Ocean State Jobbers, Inc., 290 F.R.D. 347 (D. Conn. 2013) ................................................................................................ 19

Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) ....................................................................................................... 23

Nat’l Ass’n of Radiation Survivors v. Walters, 111 F.R.D. 595 (N.D. Cal. 1986) ............................................................................................... 13

Nelson v. Avon Prods., Inc., No. 13–cv–02276–BLF, 2015 WL 1778326 (N.D. Cal. Apr. 17, 2015) .................................................................... passim

O’Brien v. Encotech Const. Servs., Inc., / 203 F.R.D. 346 (N.D. Ill. 2001) ........................................................................................... 13, 14

Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014)...................................................................................................... 14

Perez v. Allstate Ins. Co., No 11-CV-1812 (JFB)(AKT), 2014 WL 4635745 (E.D.N.Y. Sept. 16, 2014) ............................................................... 16, 19, 22

Ries v. Ariz. Beverages USA, 287 F.R.D. 523 (N.D. Cal. 2012) ............................................................................................... 17

Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474 (E.D. Cal. 2006) ............................................................................................... 14

Sav-On Drug Stores v. Superior Court, 34 Cal. 4th 319 (2004) ............................................................................................................... 25

Tierno v. Rite Aid Corp., No. C 05-02520 TEH, 2006 WL 2535056 (N.D. Cal. Aug. 31, 2006) ........................................................................... 25

Torres v. Mercer Canyons, Inc., No. 1:14–cv–03032–SAB, 2015 WL 1641519 (E.D. Wash. Apr. 8, 2015) .......................................................................... 13

United Steel, Paper & Forestry, Rubber, Mfg. Energy v. ConocoPhillips Co., 593 F.3d 802 (9th Cir. 2010)...................................................................................................... 12

Vasquez v. Coast Valley Roofing, Inc., 670 F. Supp. 2d 1114 (E.D. Cal. 2009) ..................................................................................... 13

Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935 (9th Cir. 2009)................................................................................... 19, 22, 23, 25


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Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) ............................................................................................................... 14

Wang v. Chinese Daily News, Inc., 737 F.3d 538 (9th Cir. 2013)...................................................................................................... 18

Wang v. Chinese Daily News, Inc., No. 2:04-cv-01498-CBM(AJWx), 2014 WL 1712180 (C.D. Cal. Apr. 15, 2014) ..................................................................... 16, 22

Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168 (9th Cir. 2010).................................................................................................... 17

Youngblood v. Family Dollar Stores, Inc., No. 09 Civ. 3176, 2011 WL 4597555 (S.D.N.Y. Oct. 4, 2011) .............................................................................. 23

Rules

Fed. R. Civ. P. 23(a) ....................................................................................................................... 12

Fed. R. Civ. P. 23(a)(2) .................................................................................................................. 14

Fed. R. Civ. P. 23(a)(4) .................................................................................................................. 18

Fed. R. Civ. P. 23(b)(3) ...................................................................................................... 12, 18, 24

Fed. R. Civ. P. 23(g) ...................................................................................................................... 18

Regulations

29 C.F.R. § 541.200 ......................................................................................................................... 2

454 Mass. Code Regs. § 27.03(3) .................................................................................................... 2

7 Colo. Code Regs. § 1103-1(5) ...................................................................................................... 2

8 Cal. Code. Regs. § 11040(1)(A)(2)(a)(i) ....................................................................................... 2

8 Cal. Code. Regs. § 11040(1)(A)(3)(h)(i)-(iii) ............................................................................... 3


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1255293.1 -1- PLTFS’ MTN FOR CLASS CERT PURSUANT TO R. 23 CASE NO. 13-0119 BLF

NOTICE OF MOTION AND MOTION

PLEASE TAKE NOTICE that, on July 30, 2015 at 9:00 a.m., before the Honorable Beth

Labson Freeman in Courtroom 3 of the U.S. District Court for the Northern District of California

– San Jose Division, Plaintiffs Eric Benedict, Kilricanos Vieira, and David Mustain (collectively,

“Plaintiffs”) will move for an order certifying this case as a class action.

Pursuant to Federal Rule of Civil Procedure (“Rule”) 23, Plaintiffs move for certification

of the classes below (“State Classes”), or such other classes or subclasses that may be

appropriate:

California Class: All persons employed in California as a Technical Solutions Consultant I, II, or III by HP’s (1) Enterprise Group, Customer Solutions Center; (2) HP Software Support Delivery / IMBU Support; and/or (3) HP Software Enterprise Security Products organization at any time between January 10, 2009 and the present who was designated an “Individual Contributor” and was classified as exempt from the overtime pay requirements of California.

Colorado Class: All persons employed in Colorado as a Technical Solutions Consultant I, II, or III by HP’s (1) Enterprise Group, Customer Solutions Center; (2) HP Software Support Delivery / IMBU Support; and/or (3) HP Software Enterprise Security Products organization at any time between January 10, 2010 and the present who was designated an “Individual Contributor” and was classified as exempt from the overtime pay requirements of Colorado.

Massachusetts Class: All persons employed in Massachusetts as a Technical Solutions Consultant I, II, or III by HP’s (1) Enterprise Group, Customer Solutions Center; (2) HP Software Support Delivery / IMBU Support; and/or (3) HP Software Enterprise Security Products organization at any time between January 10, 2010 and the present who was designated an “Individual Contributor” and was classified as exempt from the overtime pay requirements of Massachusetts.1

Plaintiffs also move the Court to appoint Mr. Benedict as class representative for the California

Class, Mr. Mustain as class representative for the Colorado Class, and Mr. Vieira as class

representative for the Massachusetts Class. Finally, Plaintiffs move for the appointment of Lieff

Cabraser Heimann & Bernstein, LLP (“LCHB”) and Outten & Golden LLP (“O&G”), as Class

Counsel.

1 Prior to 2012, the Customer Solutions Center was divided into two groups: GCE and TC&E. In 2012, these groups were combined to form the Customer Solutions Center. The class definition includes Technical Solutions Consultants I, II, or III in the GCE and TC&E groups from 2009 (California) or 2010 (Colorado and Massachusetts) through 2012, and in the Customer Solutions Center from 2012 to the present.


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1255293.1 - 2 - PLTFS’ MTN FOR CLASS CERT PURSUANT TO R. 23 CASE NO. 13-0119 BLF

This motion is made pursuant to Rule 23 and is based on this Notice of Motion and

Motion; the supporting Memorandum of Points and Authorities; the accompanying declarations

of Kelly M. Dermody (“Dermody Decl.”); Jahan C. Sagafi (“Sagafi Decl.”); Marc A. Pilotin

(“Pilotin Decl.”); Eric Benedict (“Benedict Decl.”); David Mustain (“Mustain Decl.”); Kilricanos

Vieira (“Vieira Decl.”); the 15 declarations of members of the State Classes, presented in the

compendium of Class Member Declarations;2 and any papers filed in response, the argument of

counsel, and all papers and records on file in this matter.

STATEMENT OF ISSUES TO BE DECIDED

The issues to be decided are:

1. Whether the Court should certify the proposed State Classes identified above pursuant to Rule 23; 2. Whether the Court should appoint Mr. Benedict as the California Class representative, Mr. Mustain as the Colorado Class representative, and Mr. Vieira as the Massachusetts Class representative; and 3. Whether the Court should appoint LCHB and O&G as Class Counsel.

MEMORANDUM OF POINTS AND AUTHORITIES

Plaintiffs Eric Benedict, David Mustain, and Kilricanos Vieira are former Technical

Solutions Consultants (“TSCs”) who worked for HP in California, Colorado, and Massachusetts

respectively. They seek overtime pay and other relief for themselves and other TSCs, whom HP

has uniformly classified as exempt from overtime pay requirements.

Employees may be exempt from state overtime pay requirements pursuant to one or more

exemptions, such as the “administrative employee exemption” or the “computer professional

employee exemption.”3 Regardless of which exemption HP may assert here, the legal issue of

2 For ease of reference throughout this brief, all Class Member declarations, other than those of the named Plaintiffs, are referred to as “Decl. #,” where “#” refers to the corresponding tab number in the concurrently filed compendium of Class Member Declarations. 3 Each state’s administrative employee exemption is substantially similar for purposes of this Motion. For instance, each requires a purportedly exempt employee to perform work “directly related to management policies or general business operations.” 8 Cal. Code. Regs. § 11040(1)(A)(2)(a)(i); 7 Colo. Code Regs. § 1103-1(5); 454 Mass. Code Regs. § 27.03(3) (adopting meaning of “administrative” employee under 29 C.F.R. § 541.200). California law also contains a computer professional employee exemption, which requires an employee to engage primarily in work “that is intellectual or creative and that requires the exercise of discretion and independent judgment” and at least one of the following: “[t]he application of systems analysis


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whether an employee properly falls within the exemption depends on what an employee does –

e.g., her primary job duties. See, e.g., Nelson v. Avon Prods., Inc., No. 13–cv–02276–BLF, 2015

WL 1778326, at *9-10 (N.D. Cal. Apr. 17, 2015) (Freeman, J.). Certification of a class of

employees alleging misclassification is appropriate if the Court can determine, for the class as a

whole based on common evidence, what class members do. Id. Plaintiffs make that showing

here.

Previously, the Court4 found that evidence suggested that TSCs “share common work

duties,” and therefore conditionally certified this case as a Fair Labor Standards Act (“FLSA”)

collective action. Order Granting Pls.’ Mot. for Cond’l FLSA Coll. Action Cert. (“FLSA Order”)

at 16:19-20 (ECF #175). Based on the limited discovery available at that time, the Court found

that, under HP’s Job Architecture Policy, employees are categorized into job titles based on their primary job duties and employees with the same job title perform the same general job tasks as identified in a standardized job description.

Id. at 15:16-18 (emphases added). The Policy, the Court explained, provides that “employees

performing the same work are assigned the same job title, as the system requires managers to

assign job titles based on the nature of the job.” Id. at 6:22-24. These facts, among others, led the

Court to hold that TSCs are similarly situated for purposes of the FLSA.

The additional common evidence that Plaintiffs now present shows that TSCs perform the

same primary duties, rendering this case appropriate for certification under Rule 23. As HP’s

Rule 30(b)(6) witnesses testified and Class Member declarations confirm, TSCs within the State

Classes are quintessential “help desk” employees, serving as the first contact HP customers have

with HP’s technical support. Various HP process documents, technical documents, service level

agreements (“SLAs”), and other instructions define what a TSC does. Those documents and

techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications,” “[t]he design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications,” or “the documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.” 8 Cal. Code. Regs. § 11040(1)(A)(3)(h)(i)-(iii). 4 References to “the Court” encompass actions taken by Judge Koh, to whom this case was previously assigned.


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agreements likewise structure and restrict a TSC’s role. For instance, when a customer’s problem

reveals a bug in the coding of an HP product, TSCs are required to elevate the problem promptly

to those in the Engineering or “R&D” department, people outside the State Classes.

Given this evidence common to all Class Members, which reinforces the Court’s previous

findings that TSCs perform the same work, class certification under Rule 23 is appropriate. For

these reasons and those stated below, the Court should certify the State Classes, appoint Plaintiffs

as class representatives, and appoint LCHB and O&G as Class Counsel.

I. BACKGROUND

A. Plaintiffs Are Former TSCs Who Assert Claims under California, Colorado, and Massachusetts Law.

Mr. Benedict and Mr. Vieira are former TSC IIIs. Benedict Decl. ¶¶ 2-3; Vieira Decl.

¶¶ 2-3. Mr. Mustain is a former TSC II. Mustain Decl. ¶¶ 2-3.

Mr. Benedict filed this action on January 10, 2013, seeking to represent a nationwide

collective action of employees under the FLSA and a California class of employees under

California law. (ECF #1.) He asserts claims for unpaid overtime, waiting time penalties, failure

to maintain adequate and accurate wage statements, failure to provide meal and rest breaks, and

violations of California’s Unfair Competition Law (“UCL”).

On May 31, 2013, Plaintiffs filed their First Amended Complaint, adding Mr. Vieira as a

named plaintiff and claims on his behalf and on behalf of a proposed Massachusetts class under

that state’s wage and hour laws.5 (ECF #64.) Mr. Vieira asserts claims for unpaid overtime and

HP’s failure to maintain adequate and accurate wage statements.

On July 11, 2014, Plaintiffs filed their Second Amended Complaint, adding Mr. Mustain

as a named plaintiff and claims on his behalf and on behalf of a proposed Colorado class under

that state’s wage and hour laws. (ECF #258.) Mr. Mustain asserts claims for unpaid overtime

and HP’s failure to maintain adequate and accurate wage statements.

5 Although the First Amended Complaint also included Richard Bowders as a named plaintiff and claims on his behalf and on behalf of a proposed Maryland class under that state’s wage and hour laws, Plaintiffs do not seek certification of such a class at this time.


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B. HP’s Job Architecture Policy Delineates the Primary Job Duties of Technical Solutions Consultants.

As noted above, the Court conditionally certified this case as a collective action under the

FLSA, holding that TSCs are similarly situated. The Court made two findings relevant to

Plaintiffs’ current motion. First, the Court found that TSCs are “uniformly subjected to the same

policy that classifies them as exempt under FLSA.” FLSA Order at 14:18-19. Second, the Court

found that TSCs “share similar job duties.” Id. at 16:17-19.

The Court’s conclusions were based in part on HP’s Job Architecture (“JA”) Policy,

which HP defines as a common system to “classify employees using a global hierarchy of jobs.”

Pilotin Decl., Ex. 16 at HP00001263; id., Ex. 3 (Albert Depo.) at 86:25 (describing Job

Architecture as a “common system”). HP adopted the JA Policy so that it could apply “a more

standardized approach” to organizing its employees. Albert Depo. at 85:12-13; see also id. at

86:13-14 (noting JA Policy was adopted to “better manage our employees and treat them on a

consistent basis”); id. at 143:8-11 (noting JA Policy’s focus “was to add consistency, was to add

structure to what we had, was to add simplicity and just make it a little bit more streamlined and

easier to manage the workforce”). As Plaintiffs describe below, this policy provides common

evidence supporting certification under Rule 23.

1. HP’s Job Architecture Policy applies companywide and categorizes employees based on their job duties.

As the Court found previously, the JA Policy mandates that “employees performing the

same work are assigned the same job title, as the system requires managers to assign job titles

based on the nature of the job.” FLSA Order at 6:22-24; Albert Depo at 99:1-4 (“[T]he

architecture was designed so that you map the employees based upon the content of the work that

they’re performing.”); id. at 138:25-139:3 (explaining job title assignment focuses “on what is the

content of that job, and therefore . . . the responsibilities that that person is going to be assigned

to”); id. at 140:8-10 (explaining that managers categorize “employees into the architecture based

upon the work that they are performing”). The Policy ensures that, “no matter where the work is

6 Unless otherwise stated, citations to exhibits refer to exhibits of the Pilotin Declaration.


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happening . . . if the work is similar,” employees have the same job title. Albert Depo. at 96:7-10.

This is because the Policy makes clear that “JA decisions are based on the job not the person.”

Ex. 2 at HP00002350.

The JA Policy begins at a high level of classification, categorizing employees into various

groups and subgroups that ultimately culminate in a specific Job Title. Ex. 1 at HP00001263 (JA

Policy is intended “to manage and sustain the structure of the company workforce by organizing

and classifying work into globally consistent job levels.”). At the highest level, jobs are

methodically categorized based on “Job Functions,” which are then “subdivided into Job Families

based on type of work.” Ex. 2 at HP00002344; see also FLSA Order at 5:19-20. In turn, Job

Families are subdivided into “Global Job Levels.” Ex. 2 at HP00002347; Ex. 1 at HP00001264.

The Job Level defines “job responsibilities & requirements” and determines whether an employee

is classified as exempt from overtime pay. Ex. 2 at HP00002339-40; Albert Depo. at 123:4-11

(explaining how Job Levels determine exemption status); see also FLSA Order at 6:12-13.

HP classifies its employees into one of three categories, each of which has its separate set

of Job Levels: “Individual Contributor,” “Supervisor/Manager,” or “Executive.” Ex. 1 at

HP00001264-65. In contrast to Managers, Individual Contributors do not manage other

employees and do not have “hire/fire authority [or] responsibility for performance management or

salary decisions.” Albert Depo. at 95:25-96:2; see also Ex. 1 at HP00001264 (defining an

“Individual contributor” as “roles where no direct people management responsibilities exist”); Ex.

4 (Ortolani Depo.) at 42:25-43:7 (distinguishing an “individual contributor” as a “nonleader”

from a leader, who is “[s]omeone who is responsible for managing or leading employees”).

Within the Individual Contributor category, there are five standard Job Levels: Entry,

Intermediate, Specialist, Expert, and Master. Ex. 2 at HP00002340. Individual Contributors in

these Job Levels are uniformly classified as exempt from overtime pay in the United States. Ex. 2

at HP00002340; Ex. 1 at HP00001264.

An HP employee’s Job Title reflects the Job Function, Job Family, and Job Level into

which she is classified. Ex. 2 at HP00002346; see also Albert Depo. at 97:10-14 (explaining that

employees are “mapped” by “identifying the appropriate job function, the appropriate family, and


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then the appropriate level, based upon the content of work that that employee is performing and

the level of work that that employee is performing”). Each Job Title has a standardized job

description, which identifies “the responsibilities and requirements associated with a particular

job title.” Ex. 2 at HP00002348. As HP’s Rule 30(b)(6) designee explained, a Job Title’s job

description explains the “[p]rimary” or “key” duties “that you would expect a particular job to

have.” Albert Depo. at 134:4-5, 19-21 (stating that “primary” and “key” are used

“interchangeably”); id. at 88:25-89:3 (“If I’m a TC1, the job description clearly outlines for me

what a TC1 is, in terms of the roles and responsibilities, the knowledge, scope and impact.”).

Employees in a particular Job Title perform the work set forth in the job description applicable to

all employees in that Job Title. Id. at 162:13-14; FLSA Order at 7:9-12.

If an employee’s job duties change, she is “re-mapped” (i.e., reassigned) to a new Job

Title that better reflects her responsibilities. Albert Depo. at 161:13-17 (“So if a . . . particular

individual employee’s responsibilities have changed, then the expectation of the company is that

the manager would map the employee to a job that represents what he or she is doing.”); id. at

98:11 (explaining that if employees’ responsibilities changed, one “would . . . remap them to

reflect that change in responsibilities”); FLSA Order at 7:12-13.

2. Technical Solutions Consultants are non-managers whom HP uniformly classifies as exempt.

Under the JA Policy, all TSCs fall under the “Services” Job Function and the “Customer

Solutions Center – Technical” Job Family. Ex. 5 at HP00000001; Ex. 6 at HP00008435; FLSA

Order at 5:22-6:2. The State Classes include only TSC Is, TSC IIs, and TSC IIIs. The JA Policy

provides that employees with these titles are Individual Contributors who fall within the Entry,

Intermediate, and Specialist Job Levels, respectively. Ex. 6 at HP00008435 (showing Job Levels

for TSC I-III). These Job Levels are the three lowest in the Individual Contributor category;

those TSCs in the Expert and Master Job Levels are not included in the State Classes. Ex. 2 at

HP00002340; Ex. 6 at HP00008435. The JA Policy uniformly classifies TSC Is, IIs, and IIIs as

exempt. Ex. 2 at HP00002340.


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As noted above, the JA job description for TSCs defines their primary job duties. Albert

Depo. at 134:4-5, 19-21; see generally Ex. 5 at HP00000001-2. The job description explains that

employees in the TSC I, II, and III positions share the following responsibilities, among others:

• “Successfully resolve technical issues (hardware and software) from incoming internal or external businesses and end user’s contacts and proactive notification systems.”

• “Respond to service, product, technical, and customer-relations questions on subjects such as features, specifications, and repairs on current and discontinued products, parts, and options, based on customer entitlement[.]”

• Work with customers “to avoid or reduce problem occurrence.”

Id. As explained further below, HP’s Rule 30(b)(6) witnesses’ testimony and the declarations of

Class Members submitted herewith confirm that these are TSCs’ primary job duties.

By HP’s own job descriptions, a TSC I, II, or III is not defined to be a “trusted advisor for

peers and customers alike” or a “subject matter expert.” See Ex. 5 at HP0000004. They are not

required to have a four-year college education. See id. at HP0000003. Moreover, to perform

their roles, they need no more than three years of “experience in relevant technologies and

customer environments.” See id. at HP0000003.

C. Class Members Work In Organizations That Provide Technical Support for HP Hardware and Software Products.

The State Classes include only TSCs who were or are employed by one of three HP

organizations providing technical support for HP products: (1) HP Enterprise Group, Customer

Solutions Center (“Enterprise Group”); (2) HP Software: Support Delivery / IMBU Support

(“HPSW Support”); or (3) HP Software: Enterprise Security Products (“ESP”). TSC Is, IIs, and

IIIs in these organizations are the quintessential help desk employees, whose classification as

properly exempt or non-exempt may be determined with common proof.

According to HP’s Rule 30(b)(6) designees, each of these organizations provide support

for HP products, with the Enterprise Group principally supporting HP hardware and, as their

names suggest, the HP Software organizations supporting HP software. Ex. 7 (HPSW 30(b)(6)

Depo.) at 11:18-12:4 (explaining that HPSW Support supports software products); Ex. 8 (Enter.


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30(b)(6) Depo.) at 99:3-23 (explaining that Enterprise Group supports hardware); Ex. 9 (ESP

30(b)(6) Depo.) at 23:10-14 (discussing ESP’s position under umbrella of HP Software). Each of

these organizations follows the JA Policy. HPSW 30(b)(6) Depo. at 58:20-23; Enter. 30(b)(6)

Depo. at 54:17-55:4; ESP 30(b)(6) Depo. at 32:17-19. Consistent with that Policy, these

organizations designate individuals who perform technical troubleshooting as TSCs. HPSW

30(b)(6) Depo. at 46:24-25; Enter. 30(b)(6) Depo. at 55:5-56:12, 57:11-59:5, 65:2-24; ESP

30(b)(6) Depo. at 29:8-12; 40:2-14; 41:25-42:6. Importantly, these organizations—and, by

extension, the TSCs who work in them—do not design, develop, or engineer the HP products

they support.7 Nor do these organizations consult with customers to develop or customize their

computer systems.8 Rather, TSCs in each of these organizations all do the same thing: they

perform “break fix” work to resolve HP’s customers’ problems through a regimented

troubleshooting process.9

7 HPSW 30(b)(6) Depo. at 147:22-148:19, 153:14-16, 154:21-25 (explaining that R&D is outside of the HPSW Support organization and “they are the developers, the writers of the products”); Enter. 30(b)(6) Depo. at 44:6-47:5, 65:21-24; 105:21-106:3 (explaining that TSCs fall in three tiers of customer support, and escalate to a separate R&D group and that TSC’s primary job duty is customer support break/fix work); ESP 30(b)(6) Depo. at 45:20-25 (explaining that R&D, which is separate from the support team, includes the “people who develop the code [and] who write the software product itself”), 50:6-20, 53:22-23 (explaining that TSCs “would file the bugs . . . with the FastTrack team,” which “is an R&D team that do not have the technical consulting job families or titles”); Benedict Decl. ¶¶ 14-15; Mustain Decl. ¶¶ 14-15; Vieira Decl. ¶¶ 14-15; Decl. 1 ¶¶ 13-15; Decl. 2 ¶¶ 14-15; Decl. 3 ¶¶ 14-15; Decl. 4 ¶¶ 14-16; Decl. 5 ¶¶ 14-15;; Decl. 6 ¶¶ 13-15; Decl. 7 ¶¶ 14-15; Decl. 8 ¶¶ 15-16; Decl. 9 ¶¶ 14-15 Decl. 10 ¶¶ 14-15; Decl. 11 ¶¶ 14-15; Decl. 12 ¶¶ 16-18; Decl. 13 ¶¶ 13-15; Decl. 14 ¶¶ 15-16; Decl. 15 ¶¶ 14-15. 8 E.g., HPSW 30(b)(6) Depo. at 54:12-25 (explaining that those in Professional Services, outside HPSW Support, “do client consultancy work”); Enter. 30(b)(6) Depo. at 36:7-16 (distinguishing between support and consulting); ESP 30(b)(6) Depo. at 29:3-19 (distinguishing between “Professional Services” and ESP, noting that “Professional Services” does not have TSCs). Benedict Decl. ¶ 9; Mustain Decl. ¶ 9; Vieira Decl. ¶ 9; Decl. 1 ¶ 9; Decl. 2 ¶ 9; Decl. 3 ¶ 9; Decl. 4 ¶ 10; Decl. 5 ¶ 9; Decl. 6 ¶ 9; Decl. 7 ¶ 9; Decl. 8 ¶ 10; Decl. 9 ¶ 9; Decl. 10 ¶ 9; Decl. 11 ¶ 9; Decl. 12 ¶ 9; Decl. 13 ¶ 9; Decl. 14 ¶ 9; Decl. 15 ¶ 9; 9 See, e.g., HPSW 30(b)(6) Depo. at 76:5-77:7, 114:9-15 (a TSC serves as “a technical engineer that provides support for . . . customers” in HPSW Support, which “primarily deal[s] with a break fix situation”); Enter. 30(b)(6) Depo. at 105:21-106:3 (confirming that the Customer Solutions Center performs “Break Fix support”); ESP 30(b)(6) Depo. at 42:1-6 (noting that TSCs “primary responsibility is to provide the support function to our customers, “ which includes “fielding customers’ . . . problems, issues, bugs, bug reports, et cetera”); Benedict Decl. ¶¶ 6, 10-13; Mustain Decl. ¶¶ 6, 10-13; Vieira Decl. ¶¶ 6, 10-13; Decl. 1 ¶¶ 6, 10-13; Decl. 2 ¶¶ 6, 10-13; Decl. 3 ¶¶ 6, 10-13; Decl. 4 ¶¶ 7, 11-14; Decl. 5 ¶¶ 6, 10-13; Decl. 6 ¶¶ 6,10-13; Decl. 7 ¶¶ 6, 10-13; Decl. 8 ¶¶ 7, 11-14; Decl. 9 ¶¶ 6, 10-13; Decl. 10 ¶¶ 6, 10-13; Decl. 11 ¶¶ 6, 10-13; Decl. 12 ¶¶ 6, 10-16; Decl. 13 ¶¶ 6, 10-15; Decl. 14 ¶¶ 6, 10, 12-15; Decl. 15 ¶¶ 6, 10-13.


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TSCs in these organizations follow detailed procedures in responding to customer

requests. After a customer contacts HP about a problem with their hardware or software, a ticket

or case is opened in HP’s “SPARKS” or “OPT” system.10 The TSC then attempts to resolve the

problem, following strict HP procedural guidelines. For example, the Enterprise Group process

documents instruct TSCs on how to calculate and reset the request date and time within a ticket,

so that it reflects the Service Level Agreement with the client. See Ex. 11. Similarly, there are

guidelines for what to do if a customer rejects phone call monitoring, or setting a customer’s hold

expectations. See Ex. 22; Enter. 30(b)(6) Depo. at 86:12-17 (confirming these processes are

handled by TSCs in GCE). TSCs in ESP follow similarly regimented procedural guidelines

governing every aspect of their day to day work. For example, if they determine that the software

contains a bug, they are to file a ticket in the JIRA system to alert the Engineering team to address

pursuant to very detailed step-by-step instructions called “How to File a BUG/FT in JIRA.” Ex.

12. If a ticket in the SPARKS system needs to be corrected or updated, there is a written

procedure for that, too. Ex. 13. For HPSW Support, there are many similar process documents,

including one on “how to handle callbacks” (HPSW 30(b)(6) Depo at 110:3-4; Ex. 14), and

another identifying the steps a TSC performs when he or she receives a case (HPSW 30(b)(6)

Depo. at 100:7-9; Ex. 15), and one providing “a process overview on how to close an incident . . .

in SPARKS” (HPSW 30(b)(6)Depo. at 162:22-25; Ex. 16). Even the amount of time TSCs have

to respond to customers and elevate cases is predetermined, depending on the severity of the

incident.11

10 HPSW 30(b)(6) Depo. at 91:16-92:4 (explaining how incoming incidents are created, noting that “a case gets logged in SPARKS”); Enter. 30(b)(6) Depo. at 74:1-21 (explaining that “One Page Tool [OPT] is the tool that my employees in Global Support Delivery use to record case information”); ESP 30(b)(6) Depo. at 95:15-18 (explaining that a “technical support consultant opens a SPARKS ticket” after “a customer calls in with a new problem”); Ex. 10 at HP00245522 (HPSW Support process document explaining incident creation); Ex. 17 at HP00332107 (Enterprise Group “Case Documentation Guidelines,” stating that “CSC Frontline L1 Engineers are required to document all calls/cases where they provided phone support to the customer and immediately after the first call is logged in OPT where they provided a solution”); Benedict Decl. ¶ 11; Mustain Decl. ¶ 11; Vieira Decl. ¶ 11; Decl. 1 ¶ 11; Decl. 2 ¶ 11; Decl. 3 ¶ 11; Decl. 4 ¶ 12; Decl. 6 ¶ 11; Decl. 7 ¶ 11; Decl. 8 ¶ 12; Decl. 9 ¶ 11; Decl. 10 ¶ 12; Decl. 11 ¶ 11; Decl. 12 ¶ 11; Decl. 13 ¶ 11; Decl. 14 ¶ 12; Decl. 15 ¶ 11; 11 HPSW 30(b)(6) Depo. at 103:8-19 (explaining that customer’s contract defines time to respond to customer); Enter. 30(b)(6) Depo at 76:22-80:8, Ex. 24 (instructional matrix for determining


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Further, in attempting to resolve a customer’s problem, the TSC relies on internal HP

knowledge bases (e.g., “iROCK,” or “SAW,”), case notes in prior tickets, and/or external search

engines (e.g., Google).12 Once the TSC searches for and identifies a technical solution for the

customer’s problem, she either sends the document providing the fix instructions to the customer,

or logs onto the customer’s machine remotely and implements the fix herself.13 The ticket is then

resolved, and TSCs are required to note the resolution in HP’s ticketing system so that the ticket

will be a resource if another customer experiences the same problem in the future.14 If the TSC

cannot promptly locate a fix for the problem, she must elevate the case to the next support level.15

TSCs are uniformly circumscribed to this limited troubleshooting role. They do not

develop software or hardware, write code, or create fixes for bugs in the hardware or software

being supported. See, supra, nn.7-8. Nor do they consult with customers regarding how their

severity of customer incident); ESP 30(b)(6) Depo. at 96:24-97:8 (explaining time-to-respond requirements under SLAs); Benedict Decl. ¶ 11; Mustain Decl. ¶ 11; Vieira Decl. ¶ 11; Decl. 1 ¶ 11; Decl. 2 ¶ 11; Decl. 3 ¶ 11; Decl. 4 ¶ 12; Decl. 6 ¶ 11; Decl. 7 ¶ 11; Decl. 8 ¶ 12; Decl. 9 ¶ 11; Decl. 10 ¶ 11; Decl. 11 ¶ 11; Decl. 12 ¶ 12; Decl. 13 ¶ 10; Decl. 14 ¶ 12; Decl. 15 ¶ 11. 12 HPSW 30(b)(6) Depo. at 123:19-124:3 (explaining that TSCs check knowledge base first when attempting to resolve a problem); Enter. 30(b)(6) Depo. at 81:5-7 (“[Y]ou go to the knowledge database to look up whether it has a correlation to the problem you’re trying to solve”); ESP 30(b)(6) Depo. at 67:20-25 (explaining iRock is a “document repository for a lot of the knowledge within the ESP org”); Ex. 18 at HP00245485 (HPSW Support document detailing process to “[s]earch the Knowledge Base for every case”); Ex. 20 at HP00227225 (“iROCK- SE Training and Overview” informs TSCs that iROCK contains “FAQ content dating back years, procedures, and training manuals”); Benedict Decl. ¶¶ 10-13; Mustain Decl. ¶¶ 10-13; Vieira Decl. ¶¶ 10-13; Decl. 1 ¶¶ 10-13; Decl. 2 ¶¶ 10-13; Decl. 3 ¶¶ 10-12; Decl. 4 ¶¶ 11-13; Decl. 5 ¶¶ 10-12; Decl. 6 ¶¶ 10-12; Decl. 7 ¶¶ 10-13; Decl. 8 ¶¶ 11-13; Decl. 9 ¶¶ 10-12; Decl. 10 ¶¶ 10-13; Decl. 11 ¶¶ 10-13; Decl. 12 ¶¶ 10-14; Decl. 13 ¶¶ 10-13; Decl. 14 ¶¶ 10-13; Decl. 15 ¶¶ 10-12. 13 Benedict Decl. ¶ 12; Mustain Decl. ¶ 12; Vieira Decl. ¶ 12; Decl. 1 ¶ 12; Decl. 2 ¶ 12; Decl. 3 ¶ 12; Decl. 4 ¶ 13; Decl. 6 ¶ 12; Decl. 7 ¶ 12; Decl. 8 ¶ 13; Decl. 9 ¶ 12; Decl. 10 ¶ 12; Decl. 11 ¶ 12. 14 Ex. 19 at HP00332824 (instructions on how to link articles from the Enterprise Group’s knowledge base or SAW repository to OPT tickets, to facilitate “the systematic capture and reuse of knowledge gained through customer interactions during the support event.”); Mustain Decl. ¶ 11; Vieira Decl. ¶ 11; Decl. 1 ¶ 11; Decl. 2 ¶ 11; Decl. 3 ¶ 11; Decl. 4 ¶ 12; Decl. 5 ¶ 12; Decl. 6 ¶ 11; Decl. 7 ¶ 11; Decl. 8 ¶ 12; Decl. 9 ¶ 11; Decl. 10 ¶ 11; Decl. 11 ¶ 11; Decl. 12 ¶ 12; Decl. 13 ¶ 12; Decl. 14 ¶¶ 10, 12; Decl. 15 ¶ 11. 15 HPSW 30(b)(6) Depo. at 95:3-96:8 (explaining use of different support levels); Enter. 30(b)(6) Depo. at 44:6-45:4 (explaining progression of cases through levels of support); ESP 30(b)(6) Depo. at 46:2-7; 47:18-50:5 (same); Ex. 23 at HP00204733 (ESP support model); Benedict Decl. ¶ 13; Mustain Decl. ¶ 13; Vieira Decl. ¶ 13; Decl. 1 ¶ 13; Decl. 2 ¶ 13; Decl. 3 ¶ 13; Decl. 4 ¶ 14; Decl. 5 ¶ 13; Decl. 6 ¶ 13; Decl. 7 ¶ 13; Decl. 8 ¶ 14; Decl. 9 ¶ 13; Decl. 10 ¶ 13; Decl. 11 ¶ 13; Decl. 12 ¶ 14; Decl. 13 ¶ 13; Decl. 14 ¶ 14; Decl. 15 ¶ 13.


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computer systems should be designed. Id. Such work is done by other groups, all of which are

outside of the support organizations at issue. Id.

II. ARGUMENT

A. Legal Standard for Class Certification

Class certification is appropriate if: “(1) the class is so numerous that joinder of all

members is impracticable; (2) there are questions of law or fact common to the class; (3) the

claims or defenses of the representative parties are typical of the claims or defenses of the class;

and (4) the representative parties will fairly and adequately protect the interests of the class.”

Fed. R. Civ. P. 23(a); see also Nelson, 2015 WL 1778326, at *4 (explaining requirements of Rule

23(a)). For a class seeking damages, there must also be questions of law or fact common to class

members that predominate over any questions affecting only individual members, and the class

action must be superior to other available methods for fairly and efficiently adjudicating the

controversy. Fed. R. Civ. P. 23(b)(3).

In determining whether a class should be certified “the question is not whether the

plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether

the requirements of Rule 23 are met.” United Steel, Paper & Forestry, Rubber, Mfg. Energy v.

ConocoPhillips Co., 593 F.3d 802, 808 (9th Cir. 2010). “Merits questions may be considered to

the extent—but only to the extent—that they are relevant to determining whether the Rule 23

prerequisites for class certification are satisfied.” Amgen Inc. v. Conn. Ret. Plans & Trust Funds,

133 S. Ct. 1184, 1195 (2013) (citations omitted); Nelson, 2015 WL 1778326, at *5 (same).

B. Rule 23(a)(1): Numerosity is Satisfied Because There Are Sufficiently Numerous Class Members Such that Joinder is Impracticable.

Rule 23(a)(1) requires class members to be “so numerous that joinder of all members is

impracticable.” There is not “a specific number of class members required for numerosity.” In re

Rubber Chems. Antitrust Litig., 232 F.R.D. 346, 350 (N.D. Cal. 2005) (Jenkins, J.). While the

requirement is presumptively met when there are 40 or more class members, courts have certified

classes with as few as 14 class members. See, e.g., In re Cirrus Logic Secs., 155 F.R.D. 654, 656

(N.D. Cal. 1994); see also Nelson, 2015 WL 1778326, at *5 (“Courts have repeatedly held that


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classes comprised of ‘more than forty’ members presumptively satisfy the numerosity

requirement.”) (citing DuFour v. BE LLC, 291 F.R.D. 413, 417 (N.D. Cal. 2013)).

“A court may make common sense assumptions to support a finding that joinder would be

impracticable.” In re Rubber Chems., 232 F.R.D. at 350. Factors a court may consider with

respect to numerosity include “the geographical diversity of class members, the ability of

individual members to institute separate suits, and the nature of the underlying action and the

relief sought.” Nat’l Ass’n of Radiation Survivors v. Walters, 111 F.R.D. 595, 599 (N.D. Cal.

1986) (citations omitted) (Patel, J.); see also Vasquez v. Coast Valley Roofing, Inc., 670 F. Supp.

2d 1114, 1121 (E.D. Cal. 2009) (same). Whether joinder is impracticable depends on the “facts

and circumstances of each case.” Marilley v. Bonham, No. C-11-02418-DMR, 2012 WL 851182,

at *3 (N.D. Cal. Mar. 13, 2012) (Ryu, M.J.); Torres v. Mercer Canyons, Inc., No. 1:14–cv–

03032–SAB, 2015 WL 1641519, at *3 (E.D. Wash. Apr. 8, 2015) (same).

According to HP’s data, the California, Colorado, and Massachusetts classes have 213,

147, and 43 members respectively. Pilotin Decl. ¶¶ 4(a)-4(c). Because membership in each State

Class exceeds 40, each of them presumptively satisfy numerosity. See, e.g., Nelson, 2015 WL

1778326, at *5 (observing presumption of numerosity when class membership exceeds forty)

(citation omitted).

Further, common sense shows that joinder is impracticable as to each of the State Classes.

First, it is unlikely that individual employees will institute separate suits. As federal and state

courts alike recognize, fear of retaliation severely curtails the likelihood individual employees

will institute separate law suits, making employment class actions valuable. See, e.g., Gentry v.

Superior Court, 42 Cal. 4th 443, 460 (2007) (noting that “federal courts have widely recognized

that fear of retaliation for individual suits against an employer is a justification for class

certification in the arena of employment litigation”) (citing cases); see also O’Brien v. Encotech

Const. Servs., Inc., 203 F.R.D. 346, 351 (N.D. Ill. 2001) (finding numerosity met by 30-person

class seeking overtime because “a very important concern is the fear of retaliation for individual

employees required to file individual claims”). Here, this fear is amplified when many Class

Members are current HP employees. See also Romero v. Producers Dairy Foods, Inc., 235


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F.R.D. 474, 485 (E.D. Cal. 2006) (noting that “numerosity requirement is more readily met where

a class contains employees suing their present employer”). Second, individual employees are not

likely to sue to recover overtime in light of the time and financial burdens litigation places on

litigants. Finally, Class Members may be geographically dispersed: it is not apparent that all

Class Members still reside in the states in which they were once employed. And, even if they did

and even if they elected to sue, it would be inefficient for a multitude of lawsuits to be prosecuted

throughout these states. See, e.g., O’Brien, 203 F.R.D. at 350 (“Were plaintiffs to file multiple

claims under multiple laws in multiple fora, precious judicial resources would be wasted on

duplicative lawsuits.”).

C. Rule 23(a)(2): Commonality is Satisfied Because There Are Questions of Law and Fact Common to Members of the Proposed Classes.

Federal Rule of Civil Procedure 23(a)(2) requires that “questions of law or fact common

to the class” exist. “[C]ommonality requires that 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 in one stroke.” Jimenez v. Allstate Ins. Co., 765 F.3d 1161,

1165 (9th Cir. 2014) (citations and internal quotation marks omitted).

Commonality imposes only a “limited burden.” Mazza v. Am. Honda Motor Company,

Inc., 666 F.3d 581, 589 (9th Cir. 2012). So “long as there is even a single common question, a

would-be class can satisfy” commonality. Parsons v. Ryan, 754 F.3d 657, 675 (9th Cir. 2014)

(citation and internal quotation marks omitted). To determine whether commonality is met, a

court must consider “the nature of the underlying claims.” Parsons, 754 F.3d at 676 (citations

omitted).

As explained further below, Plaintiffs present multiple common questions that can be

resolved by common proof, thereby “generat[ing] common answers” that will “drive the

resolution of the litigation.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011)

(internal quotation and citation omitted).


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1. Class claims for overtime pay, waiting-time penalties, and inadequate wage statements entail common questions of fact and law.

Under the laws of their respective states, the State Classes assert claims for HP’s failure to

provide overtime pay, for waiting-time penalties, and for HP’s failure to maintain adequate wage

statements. These claims pose common legal questions, including (1) whether any applicable

state overtime exemption applies to TSCs, and (2) whether HP failed to maintain adequate time

records for Class Members. Likewise, the claims pose common factual questions central to these

claims, including

(1) whether HP uniformly classifies TSCs as exempt from overtime pay requirements, so as to deprive them of overtime pay;

(2) whether TSCs’ duties and responsibilities involve work related to HP’s management policies or HP’s general business operations;

(3) whether TSCs customarily and regularly exercise discretion and independent judgment;

(4) with respect to the California Class, whether TSCs determine hardware, software, or system functional specifications;

(5) with respect to the California Class whether TSCs design, develop, document, analyze, create, test, or modify computer systems or programs based on and related to user or system design specifications; and

(6) with respect to the California Class, whether TSCs document, test, create, or modify computer programs related to the design of software or hardware for computer operating systems.

Because common evidence shows that TSCs have the same primary job duties and are subject to

HP’s uniform JA Policy, these questions can be resolved through a classwide proceeding.

These various, significant common legal and factual questions more than sufficiently

satisfy commonality. Courts routinely hold that commonality exists in overtime misclassification

cases where the plaintiff simply alleges that that all subject employees faced a common wrong by

being “misclassified as exempt.” Greko v. Diesel U.S.A., Inc., 277 F.R.D. 419, 426 (N.D. Cal.

2011) (Seeborg, J.); Bowerman v. Field Asset Servs., Inc., No. 13-CV-00057-WHO, 2015 WL

1321883, at *14 (N.D. Cal. Mar. 24, 2015) (finding commonality met because the “key legal

issue underlying this case is whether putative class members were misclassified under California


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law as independent contractors instead of employees”) (Orrick, J.); see also Grenawalt v. AT&T

Mobility, No. 11 Civ. 2664 (ALC), 2014 WL 4832318, at *4 (S.D.N.Y. Sept. 29, 2014) (holding

commonality met because of allegation that employer “perpetrated a common wrong against them

in misclassifying them as independent contractors and failing to pay them overtime and regular

wages in connection with their work”) (citing cases); Perez v. Allstate Ins. Co., No 11-CV-1812

(JFB)(AKT), 2014 WL 4635745, at *15 (E.D.N.Y. Sept. 16, 2014) (holding commonality met

based on question of whether class members “are properly exempt from the overtime

requirements of” state law); Bradley v. Networkers Int’l, LLC, 211 Cal. App. 4th 1129, 1143

(2012) (“‘[c]laims alleging that a uniform policy consistently applied to a group of employees is

in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for

class treatment’”) (quoting Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1033 (2012)).

2. The proposed California Class’s additional claims for missed meal and rest breaks and unfair competition raise common questions of fact and law.

In addition, the proposed California Class also asserts claims for missed meal and rest

breaks and unfair competition. These claims pose common legal questions, including (1) whether

HP violated California’s UCL by violating California’s labor laws and (2) whether HP complied

with California’s requirement to provide meal and rest breaks. There are additional common

factual questions that pertain specifically to the proposed California Class, including (1) whether

HP lacks a policy relieving TSCs of all duties so they may take the requisite meal and rest breaks

and (2) whether HP failed to pay for missed meal and rest breaks. See Bradley, 211 Cal. App. 4th

at 1150 (holding common question predominated where plaintiffs “challeng[ed] the fact that the

employer’s lack of a policy violated the law”) (emphasis in original); see also Wang v. Chinese

Daily News, Inc., No. 2:04-cv-01498-CBM(AJWx), 2014 WL 1712180, at *7 (C.D. Cal. Apr. 15,

2014) (“[C]urrent California and federal law affirm that [the defendant’s] uncontested lack of any

meal or break policy is strong evidence favoring class certification in this matter.”)


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D. Rule 23(a)(3): Typicality is Satisfied Because Plaintiffs’ Claims are Reasonably Co-Extensive with Those of the Absent Class Members.

To satisfy typicality, Plaintiffs’ claims must be “reasonably co-extensive with those of

absent class members; they need not be substantially identical.” Hanlon v. Chrysler Corp., 150

F.3d 1011, 1020 (9th Cir. 1998). “The test of typicality is whether other members have the same

or similar injury, whether the action is based on conduct which is not unique to the named

plaintiffs, and whether other class members have been injured by the same course of conduct.”

Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010) (citation and

internal quotation marks omitted). This is a permissive standard. Nelson, 2015 WL 1778326, at

*7 (citing Ries v. Ariz. Beverages USA, 287 F.R.D. 523, 539 (N.D. Cal. 2012)).

Each Plaintiff was a TSC who received no overtime pay while he was employed as a TSC

by HP, and each Plaintiff has wage and hour claims that are typical of the absent Class Members.

Those claims stem from the same conduct: HP’s policies requiring TSC I, II, or IIIs to perform

non-exempt work, while uniformly misclassifying them as exempt from overtime pay

requirements. Typicality is therefore met.

E. Rule 23(a)(4), (g): Plaintiffs and Their Counsel will Fairly and Vigorously Represent the Interests of the State Classes.

The adequacy determination requires answering “two questions: ‘(1) do the named

plaintiffs and their counsel have any conflicts of interest with other class members and (2) will

the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?’”

Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985 (9th Cir. 2011) (citation omitted). “Adequate

representation depends on, among other factors, an absence of antagonism between

representatives and absentees, and a sharing of interest between representatives and absentees.”

Id. (citation omitted). “Adequate representation is usually presumed in the absence of contrary

evidence.” Californians for Disability Rights, Inc. v. Cal. Dep’t of Transp., 249 F.R.D. 334, 349

(N.D. Cal. 2008) (Armstrong, J.) (citations omitted); Brown v. Hain Celestial Grp., Inc., No. C

11-03082 LB, 2014 WL 6483216, at *14 (N.D. Cal. Nov. 18, 2014) (same) (Beeler, J.).


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Plaintiffs readily satisfy the adequacy requirement. They share the same grievances

against HP as the absent Class Members and have the same interests as the absent Class Members

in obtaining redress from HP. They will vigorously prosecute this action to recover overtime pay

and related relief from HP.

Class Counsel likewise will vigorously prosecute this action on Plaintiffs’ and Class

Members’ behalf, thereby satisfying the requirements of Rule 23(a)(4) and 23(g). Class Counsel

investigated this case and filed the original complaint Mr. Benedict’s behalf. Dermody Decl. ¶ 6.

Both firms have substantial experience in class actions, including wage and hour class actions.

Dermody Decl. ¶¶ 4-5, Ex. A; Sagafi Decl. ¶¶ 4-5. Moreover, both firms have been appointed

lead counsel in numerous such cases. Dermody Decl. ¶ 5; Sagafi Decl. ¶ 5. Both firms will

commit the necessary resources to vindicate Plaintiffs’ and Class Members’ rights. Dermody

Decl. ¶ 8; Sagafi Decl. ¶ 6.

F. Rule 23(b)(3): Plaintiffs Satisfy the Predominance and Superiority Requirements.

1. Common questions of law and fact predominate.

Federal Rule of Civil Procedure 23(b)(3) requires that “questions of law or fact common

to class members predominate over any questions affecting only individual members[.]” This

analysis “focuses on the relationship between the common and individual issues in the case and

tests whether proposed classes are sufficiently cohesive to warrant adjudication by

representation.” Wang v. Chinese Daily News, Inc., 737 F.3d 538, 545 (9th Cir. 2013) (citations

and internal quotation marks omitted). “When common questions present a significant aspect of

the case and they can be resolved for all members of the class in a single adjudication, there is

‘clear justification’ for certifying a class action.” Nelson, 2015 WL 1778326, at *9 (quoting

Hanlon, 150 F.3d at 1022). Importantly, predominance does not require “that each element of [a

plaintiff’s] claim is susceptible to classwide proof.” Amgen, 133 S. Ct. at 1196 (citation and

internal brackets and quotation marks omitted). Courts have “held that common questions

predominated even though certain class members’ circumstances varied and some of the

defendant’s practices would have to be proven by anecdotal testimony.” Delagarza v. Tesoro


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Refining & Mktg. Co., No. C–09–5803 EMC, 2011 WL 4017967, at *12 (N.D. Cal. Sept. 8, 2011)

(Chen, J.) (citation omitted).

In a misclassification action like this one, the “balance between individual and common

issues” hinges on the existence of “comprehensive uniform policies detailing the job duties and

responsibilities of employees [which] carry great weight for certification purposes.” In re Wells

Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953, 958-59 (9th Cir. 2009) (citing Damassia

v. Duane Reade, Inc., 250 F.R.D. 152, 160 (S.D.N.Y. 2008); see also Perez, 2014 WL 4635745,

at *7 (“[U]niform corporate procedures and policies are unquestionably probative of . . . actual

duties.”) (citations and internal quotation marks omitted). “Such centralized rules, to the extent

they reflect the realities of the workplace, suggest a uniformity among employees that is

susceptible to common proof.” Wells Fargo, 571 F.3d at 958-59. Predominance can be met

where, as here, “the employer exercised some level of centralized control in the form of

standardized hierarchy, standardized corporate policies and procedures governing employees,

uniform training programs, and other factors susceptible to common proof.” Vinole v.

Countrywide Home Loans, Inc., 571 F.3d 935, 946 (9th Cir. 2009) (citing cases). “[U]niformity

in work duties and experience . . . diminish the need for individualized inquiry.” Id. at 947

(quoting affirmed lower court opinion).

Here, there are various types of undisputed common evidence showing that common

questions predominate over individual inquiries. First, HP uniformly classifies TSCs as exempt.

See Ex. 2 at HP00002340. As the Ninth Circuit instructed in Wells Fargo, “an exemption policy

is a permissible factor for consideration under Rule 23(b)(3).” 571 F.3d at 957. This is because

“[a]n internal policy that treats all employees alike for exemption purposes suggests that the

employer believes some degree of homogeneity exists among the employees.” Id.; see also

Morrison v. Ocean State Jobbers, Inc., 290 F.R.D. 347, 359 (D. Conn. 2013) (noting that

defendant’s blanket exemption “decision to classify all [employees] as exempt is relevant to

deciding whether the Massachusetts plaintiff's jobs were similar in ways material to the

establishment of the exemption criteria”) (citation and internal quotation marks omitted).


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However, HP’s exemption policy is not the only common evidence binding Class Members

together.

Second, HP’s JA Policy defines and constrains what TSCs do. As explained above, the

JA Policy provides a hierarchical classification system that gives employees a job title based on

“what he or she is doing.” E.g., Albert Depo. at 161:16-17; see generally, supra, § I.B.1. In other

words, employees are classified as TSCs because they all do the same thing. What TSCs do is

encapsulated by the uniform job description the JA Policy provides, which summarizes the

“[p]rimary or “key duties that you would expect a [TSC] to have.” Albert Depo. at 134:4-5, 19-

21; id. at 132:20-22 (noting that job description “identif[ies] the most critical responsibilities, the

top five critical responsibilities”). For TSCs, these primary duties revolve around “resolv[ing]

technical issues” and answering customer questions. Ex. 5 at HP00000001. The JA Policy

likewise defines the level of expertise and “impact” TSCs in the State Classes have: they are not

high-level advisors or “subject matter expert[s].” Id. at HP00000004. This is important because

it further limits what TSCs in the State Classes do: by operation of the JA Policy, if the TSCs in

the State Classes were high-level advisors or subject-matter experts, or if they acquired such

responsibilities over time, they would be re-classified as a TSC IV or V, and therefore excluded

from the case. Albert Depo. at 161:13-17 (explaining that, if a “particular individual employee’s

responsibilities have changed,” he or she will be placed into a new job title); id. at 163:1-4

(explaining that “a manager is going to appropriately classify an employee based upon the type of

work they were doing and the level of work that they’re doing.”). Thus, the JA Policy is common

evidence of who TSCs are and what they do.

Third, the functions of the organizations in which Class Members work constitutes

common evidence of what TSCs do. HP structured its business units based on their functions.

Ex. 1 at HP00001263-64. As Rule 30(b)(6) witnesses testified, Class Members in the

organizations at issue here perform solely “help desk” responsibilities, supporting—but not

developing, engineering, or consulting with HP customers about—HP products. But if a

customer’s case raises a technical flaw in one of HP’s products, requiring re-programming the

product or addressing other issues under the hood, that is not a problem that a TSC in the


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Enterprise Group, HPSW Support, or ESP handles. See, supra, nn.7, 9. Likewise, if a customer’s

case raises an issue regarding what system may be appropriate for that customer’s needs, that is

not addressed by a TSC in the State Classes. See, supra, n.8. In such cases, the TSC must refer

the case to other HP employees outside of these organizations. See, supra, nn.7, 8.

Fourth, to perform their support work for these organizations, TSCs uniformly follow the

same processes. See, supra, nn.10-11. HP’s process and technical documents thus present

common proof of TSCs’ jobs. These documents detail the processes, procedures, and steps TSCs

follow in supporting HP’s customers. E.g., HPSW 30(b)(6) Depo. at 162:22-25 (explaining

“process overview”); Enter. Group 30(b)(6) Depo. at 76:22-80:8; ESP 30(b)(6) Depo. at 58:11-12

(explaining “procedure document”). These standardized documents, as an HP Rule 30(b)(6)

witness explained, are used “for our business consistency” and they show “how our business

works at the end of the day.” HPSW 30(b)(6) Depo. at 86:21-22, 86:10-11; see also id. at 80:5

(“It’s a way of documenting the process.”). Indeed, this consistency is important to HP and its

marketing. HP uses its documented standardized processes to obtain certification from industry

groups such as the Technical Services Institute Association (“TSIA”). Id. at 85:24-86:15; see

also Ex. 21 at HP00229973-74 (stating that TSIA “honors companies whose knowledge

management strategy includes repeatable, effective processes for capturing, publishing, and

maintaining content in order to solve customer problems in a consistent and efficient manner”)

(emphases added). Such a certification constitutes “recognition of [HP’s] operational or business

excellence” and “creates sales opportunities” for HP. HPSW 30(b)(6) Depo at 167:17-168:5.

Fifth, the declarations of the named Plaintiffs and 15 Class Members corroborate the

documentary evidence and HP’s Rule 30(b)(6) witnesses’ testimony. The declarations, taken

together, reveal that Class Members perform the same job, demonstrating that HP’s JA Policy—

by design—has successfully categorized employees doing the same work into the same job title.

Finally, with respect to the proposed California Class, HP’s lack of policy providing

TSC’s with meal and rest breaks is common evidence for the class’s meal-and-rest break claim

under the California Labor Code. As California courts have held, class certification is appropriate

where an employer fails “to adopt a policy authorizing and permitting meal and rest breaks to its


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technicians.” Benton v. Telecom Network Specialists, Inc., 220 Cal.App.4th 701, 726 (2013); see

also Bradley, 211 Cal. App. 4th at 1149; Wang, 2014 WL 1712180, at *7.

Such common evidence answers the question of what TSCs do, a central issue in this case

for the State Classes as a whole. Courts routinely hold that Rule 23(b)(3) is met when presented

with this kind of common evidence. See, e.g., Vinole, 571 F.3d at 947; Nelson, 2015 WL

1778326, at *9; Perez, 2014 WL 4635745, at *20 (predominance met where the primary job

duties of [class members] are largely similar for purposes of the . . . exemption determination”);

Damassia, 250 F.R.D. at 159-61; Boyd v. Bank of Am. Corp., 300 F.R.D. 431, 443 (C.D. Cal.

2014).

The Court’s recent decision in Nelson is instructive. There, the Court found

predominance met based on “common proof that relies in no small part on the nature of [the

employees’] duties.” Nelson, 2015 WL 1778326, at *9. While the defendant insisted that “a

determination of liability by the Court requires individualized inquiries regarding how DSMs

actually perform their job duties,” the Court nevertheless certified the class, reasoning that

“plaintiffs can still certify a class when they show uniformity in work duties and experiences that

would diminish the need for individualized inquiry.” Id. at *9-10 (citation and internal quotation

marks omitted). Similarly here, Plaintiffs present common proof—via standardized corporate

policies and procedures governing employees’ work, as well as the consistent testimony of Class

Members—of what TSCs do.

Boyd is another recent overtime misclassification case that also supports class certification

here. There, as in Nelson, predominance was satisfied because, among other things, the “job

descriptions of [the employees] are standardized nationwide,” the “[employees] receive their

assignments through the same computer program . . . and they may not pick and choose those

assignments,” the defendant “has standardized compensation policies that apply to all

[employees],” and the defendant “promulgated several detailed guidelines to direct the conduct of

[the employees].” 300 F.R.D. at 442-43 (citations and internal quotation marks omitted). As this

Court did in Nelson, the Boyd court recognized that, while “[s]everal individual inquiries still

remain,” a “close look” revealed “that common questions predominate over individual ones.” Id.


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at 443 (citations and internal quotation marks omitted). The same facts supporting predominance

Boyd exist here. TSCs work pursuant to a standardized job description that identifies their

primary duties, their assignments are assigned through and recorded in centralized ticketing

systems, they are uniformly classified as exempt, and they follow standardized, documented

processes from centralized repositories that HP uses to obtain highly-marketable certifications.

Finally, Damassia, which the Ninth Circuit cited with approval in Wells Fargo and

Vinole, likewise supports a finding of predominance. There, the district court held predominance

was satisfied in part because “the duties and responsibilities of assistant managers are ‘centrally

derived.’” 250 F.R.D. at 159 (citation omitted). The court noted that where “there is evidence

that the duties of the job are largely defined by comprehensive corporate procedures and policies,

district courts have routinely certified classes of employees challenging their classification as

exempt, despite arguments about ‘individualized’ differences in job responsibilities.” Id. at 160

(citing cases). That is precisely what HP’s JA Policy does here. As in Damassia, HP’s JA Policy

centrally defines TSCs’ job duties and responsibilities. HP’s Rule 30(b)(6) witnesses’ testimony

and Class Members’ declarations confirm the effectiveness of the JA Policy, showing that TSCs

perform the same work.

To the extent that HP can point to any individualized issues between Class Members, they

are not of “such a magnitude as to cause individual issues to predominate.” Damassia, 250

F.R.D. at 160. Any differences it may cite now did not influence its decision to classify all TSCs

as exempt, regardless of the business unit in which they work. See Youngblood v. Family Dollar

Stores, Inc., No. 09 Civ. 3176, 2011 WL 4597555, at *5 (S.D.N.Y. Oct. 4, 2011) (giving little

weight to differences among class members cited by the defendant where such differences were

not considered in classifying the class members as exempt); Myers v. Hertz Corp., 624 F.3d 537,

549 (2d Cir. 2010) (“[A] blanket [classification] policy . . . suggests the employer believes some

degree of homogeneity exists among the employees, and is thus in a general way relevant to the

[predominance] inquiry . . . .”) (citation and internal quotation marks omitted).


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2. A class action is the superior method to adjudicate proposed class members’ claims.

Rule 23(b)(3) also requires a showing that “a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy.” This requires the Court to

determine “‘whether the objectives of the particular class action procedure will be achieved in the

particular case.’” Nelson, 2015 WL 1778326, at *10 (quoting Hanlon, 150 F.3d at 1023). In

making this determination, a court may consider

(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.

Fed. R. Civ. P. 23(b)(3).

Here, these factors favor a superiority finding. First, Class Members likely have little

interest in individually controlling the prosecution of separate actions. As already explained,

because of the burdens of litigation and fears of retaliation, individual employees are unlikely to

sue on their own. The Court previously held such retaliation concerns to support a finding of

superiority. Nelson, 2015 WL 1778326, at *10 (explaining that class action was superior because

“[a]llowing Plaintiffs to proceed in a representative capacity ensures that all class members will

receive their day in court without requiring current employees . . . to risk their employment to

receive that right”).

Second, Plaintiffs are unaware of any litigation with respect to recovering overtime pay

for TSCs in California, Colorado, or Massachusetts.

Third, it is highly desirable to have the Class Members’ claims adjudicated in this court.

HP is headquartered within the District and maintains substantial operations here. In addition,

many Class Members work in or near the District. In fact, the largest concentration of Class

Members is in California.


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Finally, classwide resolution of Class Members’ claims will be manageable. The central

issue of liability will hinge on the factfinder’s evaluation of the several categories of common

proof outlined above, along with representative testimony regarding Class Members’ daily duties.

In Tierno v. Rite Aid Corp., which the Ninth Circuit cited approvingly in Vinole, the court

rejected the notion that “an overtime [misclassification] class action would necessarily

‘degenerate into a multitude of mini-trials.’” No. C 05-02520 TEH, 2006 WL 2535056, at *11

(N.D. Cal. Aug. 31, 2006) (citing Sav-On Drug Stores v. Superior Court, 34 Cal. 4th 319, 332

(2004)) (Henderson, J.). The court observed:

[C]ourts in overtime cases such as this may properly couple uniform findings on common issues regarding the proper classification of the position at issue with innovative procedural tools that can efficiently resolve individual questions regarding eligibility and damages. Such tools include administrative miniproceedings, special master hearings, and specially fashioned formulas or surveys.

Id.; see also Boyd., 300 F.R.D. at 444 (same). The same holds true here.

III. CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Motion for Class

Certification be granted, with Mr. Benedict, Mr. Mustain, and Mr. Vieira serving as California,

Colorado, and Massachusetts class representatives, respectively, and LCHB and O&G appointed

as Class Counsel.

Dated: May 7, 2015 Respectfully submitted,

LIEFF CABRASER HEIMANN & BERNSTEIN, LLP By: /s/ Kelly M. Dermody Kelly M. Dermody Kelly M. Dermody (Cal. Bar No. 171716) Daniel M. Hutchinson (Cal. Bar No. 239458) Anne B. Shaver (Cal. Bar No. 255928) Marc A. Pilotin (Cal. Bar No. 266369) LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-Mail: [email protected]


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E-Mail: [email protected] E-Mail: [email protected] E-Mail: [email protected]

Jahan C. Sagafi (Cal. Bar No. 224887) OUTTEN & GOLDEN LLP One Embarcadero Center, 38th Floor San Francisco, CA 94111 Telephone: (415) 638-8800 Facsimile: (415) 638-8810 E-Mail: jsagafi@ outtengolden.com Adam T. Klein (admitted pro hac vice) Juno Turner (admitted pro hac vice) OUTTEN & GOLDEN LLP 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005 E-Mail: [email protected] E-Mail: [email protected] Attorneys for Plaintiffs and proposed Class Members


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HP’S OPP’N TO MOT. FOR CLASS CERTIFICATION

Case No.: C13-0119-BLF

Wendy M. Lazerson, SBN 97285 [email protected] Caryn F. Horner, SBN 273500 [email protected] SIDLEY AUSTIN LLP 1001 Page Mill Road Building 1 Palo Alto, California 94304 Telephone: (650) 565-7000 Facsimile: (650) 565-7100 Max C. Fischer, SBN 226003 [email protected] David R. Carpenter, SBN 230299 [email protected] SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 Los Angeles, California 90013-1010 Telephone: (213) 896-6000 Facsimile: (213) 896-6600 Attorneys for Defendant and Counterclaimant Hewlett-Packard Company


SAN JOSE DIVISION


Plaintiffs,

v. HEWLETT-PACKARD COMPANY,

Defendant.

)))))))))))))

Case No. C13-0119-BLF DEFENDANT HEWLETT-PACKARD COMPANY’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Date: July 30, 2015 Time: 9:00 a.m. Courtroom: 3 Judge: Hon. Beth Labson Freeman

ERIC BENEDICT,

Counterdefendant,

v. HEWLETT-PACKARD COMPANY,

Counterclaimant.

)))))))))


dbrown08

Text Box

REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED

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i HP’S OPP’N TO MTN. FOR CLASS CERTIFICATION


TABLE OF CONTENTS

Page(s)

I. INTRODUCTION .............................................................................................................. 1

II. BACKGROUND ................................................................................................................ 2

A. The Parties and this Litigation ................................................................................ 2

B. HP’s Job Architecture Provides High-Level, General Guidance But Does Not Dictate Actual Job Duties ................................................................................ 4

C. Roles and Duties Vary Among and Within Groups ................................................ 6

1. Putative Class Members (“TSCs”) in HPSW ............................................. 6

2. TSCs in Enterprise Group Technology Services (“EG TS”) ...................... 8

3. There Are No Uniform Procedures Dictating the Substance of Employees’ Work ..................................................................................... 10

III. LEGAL STANDARDS .................................................................................................... 12

A. Class Certification Standards ................................................................................ 12

B. The Underlying State Law Exemptions ................................................................ 13

IV. ARGUMENT .................................................................................................................... 16

A. Courts Have Frequently Denied Class Treatment of Technology Worker Misclassification Claims, Despite a Common Job Title ....................................... 16

B. The Record Here Shows That the Job Code Does Not Dictate Employees’ Actual Duties, Making Individualized Inquiries Necessary and Defeating Predominance ........................................................................................................ 18

1. The Job Architecture Is Not Any Significant Form of Common Proof .......................................................................................................... 18

2. Individual Inquiries Are Necessary into Each TSC’s Mixture of Tasks and to Determine What Constitutes the TSC’s Primary Duty ........ 19

C. Plaintiffs’ “Processes” and “Procedures” Evidence Is Not Sufficient to Show Misclassification on a Classwide Basis, Without Needing Individual Inquiries ................................................................................................................ 21

D. Certification Should Be Denied As to Each State Class For Additional Reasons ................................................................................................................. 23

1. Massachusetts ........................................................................................... 23

2. California .................................................................................................. 24


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ii HP’S OPP’N TO MTN. FOR CLASS CERTIFICATION


3. Colorado .................................................................................................... 25

E. Plaintiffs Also Fail to Establish Superiority ......................................................... 25

V. CONCLUSION ................................................................................................................. 25


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iii HP’S OPP’N TO MTN. FOR CLASS CERTIFICATION



Page(s)

Cases

Aburto v. Verizon Cal., No. CV-11-03683, 2012 WL 10381 (C.D. Cal. Jan. 3, 2012) ..................................................... 18

Alakozai v. Chase Inv. Servs. Corp., No. CV 11-09178, 2014 WL 5660697 (C.D. Cal. Oct. 6, 2014) ................................................. 24

Badella v. Deniro Mktg LLC, No. C 10-03908, 2011 WL 5358400 (N.D. Cal. Nov. 4, 2011) ................................................... 25

Bernard v. Group Pub., Inc., 970 F. Supp. 2d 1206 (D. Colo. Sept. 13, 2013) .......................................................................... 16

Blake v. Hewlett-Packard Co., No. 11-CV-592, 2013 WL 3753965 (S.D. Tex. July 11, 2013) ................................................... 18

Boyd v. Bank of Am. Corp., 300 F.R.D. 431 (C.D. Cal. 2014) ........................................................................................... 22, 23

Cholakyan v. Mercedes-Benz, USA, LLC, 281 F.R.D. 534 (C.D. Cal. 2012) ................................................................................................. 24

Clarke v. JPMorgan Chase Bank, N.A., No. 08 Civ. 2400, 2010 WL 1379778 (S.D.N.Y. Mar. 26, 2010) ............................................... 16

Combs v. Skyriver Commc’ns, 159 Cal. App. 4th 1242 (2008) .............................................................................................. 14, 15

Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) ........................................................................................................... 13, 21

Cruz v. Lawson Software, Inc., 764 F. Supp. 2d 1050 (D. Min n. 2011) ..................................................................... 15, 18, 22, 23

Curry v. Matividad Medical Center, No. 11-cv-4662, 2013 WL 2338110 (N.D. Cal. May 28, 2013) .................................................. 15

Dailey v. Sears, Roebuck & Co., 214 Cal. App. 4th 974 (2013) ...................................................................................................... 24

Damassia v. Duane Reade, Inc., 250 F.R.D. 152 (S.D.N.Y. 2008) ................................................................................................. 21

Dunbar v. Albertson’s, Inc., 141 Cal. App. 4th 1422 (2006) .................................................................................................... 21


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iv HP’S OPP’N TO MTN. FOR CLASS CERTIFICATION


Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) ................................................................................................. 12, 13

Espinoza v. Domino’s Pizza, LLC, No. EDCV 07-1601, 2009 WL 882845 (C.D. Cal. Feb. 18, 2009) ............................................. 21

In re Farmers Ins. Exch., 481 F.3d 1119 (9th Cir. 2006) ..................................................................................................... 22

Gales v. Winco Food, No. C-09-05813, 2011 WL 3794887 (N.D. Cal. Aug. 26, 2011) ................................................ 18

Hamilton v. Genesis Logistics, Inc., No. CV13-01848, 2014 WL 4187941 (C.D. Cal. Aug. 22, 2014) ............................................... 18

Hanon v. Dataprods., 976 F.2d 497 (9th Cir. 1992) ................................................................................................. 13, 24

Harris v. Superior Court, 53 Cal. 4th 170 ............................................................................................................................. 14

Heffelfinger v. Elec. Data Sys. Corp., No. CV 07-101, Dkt. #166 (C.D. Cal. Feb. 26, 2013) ................................................................. 18

Hill v. R&L Carriers, Inc., 690 F. Supp. 2d 1001 (N.D. Cal. 2010) ....................................................................................... 15

In re Farmers Ins. Exch. Claims Reps.’ Overtime Pay Litig., No. MDL 1439, 2003 WL 23669376 (D. Or. May 19, 2003) ......................................................................................... 13

Jovel v. Boiron, Inc., No. 11-cv-10803, 2014 WL 1027874 (C.D. Cal. Feb. 27, 2014) ................................................ 24

Kennedy v. Commonwealth Edison Col., 410 F. 3d 365 (7th Cir. 2005) ...................................................................................................... 22

Koppinger v. Am. Interiors, Inc., 295 F. Supp. 2d 797 (N.D. Ohio Dec. 5, 2003) ........................................................................... 16

Marlo v. United Parcel Serv., Inc., 639 F.3d 942 (9th Cir. 2011) ................................................................................................ passim

Nelson v. Avon Products, No. 13-cv-02276, 2015 WL 1778326 (N.D. Cal. Apr. 17, 2015) ................................................ 21

Novak v. Boeing, No. SACV09-01011, 2011 WL 7627789 (C.D. Cal. Dec. 19, 2011) .................................... 18, 20

Orphanos v. Charles Indus., Ltd., No. 95 C 4039, 1996 WL 437380 (N.D. Ill. 1996) ...................................................................... 16


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v HP’S OPP’N TO MTN. FOR CLASS CERTIFICATION


Pellerin v. Xspedius Mgmt.Co., 432 F. Supp. 2d 657 (E.D. La. 2006) ........................................................................................... 16

Reyes v. Snowcap Creamery, Inc., No. 11-CV-02755, 2013 WL 4229835 (D. Colo. Aug. 14, 2013) ............................................... 13

Rosenberg v. Renal Advantage, Inc., No 11-CV-2152 2013 WL 3205426 (S.D. Cal. June 24, 2013) ................................................... 18

Santiago v. Amdocs, Inc., No. C 10-4317, 2013 WL 5444324 (N.D. Cal. Sept. 30, 2013) .................................. 2, 17, 18, 20

Silverman v. SmithKline Beecham Corp., No. cv06-7272, 2007 WL 6344674 (C.D. Cal. Oct. 15, 2007) .................................................... 21

Sirko v. Int’l Bus. Mach. Corp., No. CV 13-03192, 2014 WL 4452699 (C.D. Cal. Sept. 3, 2014) ................................ 2, 17, 18, 20

Sutton-Price v. Daugherty Sys., Inc., No. 11-cv-1943, 2013 WL 3324364 (E.D. Mo. July 1, 2013) ..................................................... 18

Valles v. Int’l Bus. Mach. Corp., No. SACV 09-202, 2010 WL 9434915 (C.D. Cal. May 6, 2010) ............................................... 15

Vasquez v. First Student, Inc., No. 14-CV-06760, 2015 WL 1125643 (C.D. Cal. Mar. 12, 2015) .................................. 19, 22, 24

Vinole v. Countrywide Home Loans, 571 F.3d 935 (2009) ............................................................................................................... 13, 15

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) ........................................................................................................... 12, 13

Weigele v. FedEx Ground Package Sys., Inc., 267 F.R.D. 614 (S.D. Cal. 2010) ................................................................................................. 13

In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953 (9th Cir. 2009) ................................................................................................. 16, 19

Williams v. Lockheed Martin, No. 09-CV-1669, 2011 WL 2200631 (S.D. Cal. June 2, 2011)................................................... 18

Young v. Cerner Corp., No. 06-321, 2007 WL 2463205 (W.D. Mo. Aug. 28, 2007) ....................................................... 16

Zinser v. Accufix Research Inst., 253 F.3d 1180 (9th Cir. 2001) ............................................................................................... 13, 25


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vi HP’S OPP’N TO MTN. FOR CLASS CERTIFICATION


State Statutes and Regulations

Cal. Lab. Code § 515.5 ................................................................................................................ 14, 15

8 Cal. Code Reg. § 11040(1)(A)(2)(f) ............................................................................................... 15

8 Cal. Code Regs. § 11040(2) ...................................................................................................... 13, 14

7 Col. Code Regs. 1103-1:5 ............................................................................................................... 13

Mass Gen. Laws ch. 151, § 1A(3) ..................................................................................................... 13

454 Mass. Code Regs. § 2.02(3) ........................................................................................................ 13

Federal Regulations

29 C.F.R. § 541.200 ........................................................................................................................... 14

29 C.F.R. § 541.201 ........................................................................................................................... 14

29 C.F.R. § 541.202 ..................................................................................................................... 14, 15

29 C.F.R. § 541.400 ........................................................................................................................... 14

29 C.F.R. § 541.700 ........................................................................................................................... 15

29 C.F.R. § 541.704 ............................................................................................................... 15, 22, 23

29 C.F.R. § 541.708 ........................................................................................................................... 15


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1 HP’S OPP’N TO MTN. FOR CLASS CERTIFICATION


I. INTRODUCTION

Hewlett-Packard Company (“HP”) is a leading provider of advanced servers, storage,

networking, converged infrastructure, and enterprise software products that companies and

governments rely on to operate their core business functions. The technologies that HP sells, and

that the putative class supports, include for example,

. The complexity and diversity of HP’s technologies

and customer needs translate into a broad array of specialized work groups and specific and distinct

roles, responsibilities, and duties for members of the putative class.

Plaintiffs’ theory is that putative class members are all “quintessential ‘help desk’ employees,

serving as the first contact HP customers have with HP’s technical support,” who “all do the same

thing” performing a “limited troubleshooting role” pursuant to “regimented procedural guidelines.”

Mot. 3, 8-10. These are hollow assertions. Plaintiffs have not met their burden under Rule 23 to

show a form of common proof that, at trial and consistent with HP’s due process rights, could

adjudicate their theory on a classwide basis without the need for individual inquiries.

Plaintiffs’ principal source of purported “classwide evidence” is the class’s shared job code –

Technology Solutions Consultant I-III – and a generic job description under HP’s “Job

Architecture.” Plaintiffs do not argue that the job description proves misclassification, and indeed, it

evidences exempt work. Plaintiffs, instead, contend that all putative class members (“TSCs”) are in

a “limited troubleshooting role.” But the record shows otherwise. Some TSCs play a proactive role

planning and advising customers on upgrades and ongoing operations. Others do handle support

cases, but there are differences among all of them. Some may be “the first contact HP customers

have,” and others are in an “elevated” or “backline” role handling unique and complex cases that

others cannot solve, or are dedicated representatives for premier customers, like

. Ultimately, the specific work each TSC performs, and the levels of independent

judgment and discretion each exercises, is affected by many factors: the team and manager, the

products and customer environments on which the TSC works, and the TSC’s own training,


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experience, and skill, among other factors. The declarations and testimony HP presents here detail

that variation and contrast sharply with the self-serving, cookie-cutter declarations from Plaintiffs.

On this record, a shared job code does not eliminate the need for individual inquiries into

each TSC’s actual duties, and how the TSC’s specific combination of work lines up against the

elements of the administrative and computer professional exemptions. This precludes Plaintiffs

from meeting Rule 23’s requirements of predominance and superiority, see, e.g., Marlo v. United

Parcel Serv., Inc., 639 F.3d 942, 948 (9th Cir. 2011), just as in other cases alleging misclassification

of technology workers, where courts rejected class certification, notwithstanding a shared job code.

See, e.g., Sirko v. Int’l Bus. Mach. Corp., No. CV 13-03192, 2014 WL 4452699 (C.D. Cal. Sept. 3,

2014); Santiago v. Amdocs, Inc., No. C 10-4317, 2013 WL 5444324 (N.D. Cal. Sept. 30, 2013).

Plaintiffs also argue that TSCs’ work is uniformly circumscribed by alleged “common

processes” and technical documents. Plaintiffs have failed to identify any such “common processes”

or other common method of proof, let alone a trial plan, that would permit classwide adjudication

consistent with Rule 23 and due process. The “process” documents Plaintiffs cite neither apply

classwide nor purport to dictate the substance of employees’ work, and could not adjudicate TSCs’

exempt status in one fell swoop. See Marlo, 639 F.3d at 948. Instead, each employee’s specific

facts must be reviewed to adjudicate their self-serving characterizations as non-exempt “help desk”

employees performing routinized tasks. This lack of predominance and superiority – as well as

unique facts making each class representative atypical – requires denying the Motion.

II. BACKGROUND

A. The Parties and this Litigation

HP sells a wide range of services and “enterprise” technology products that entities use to

organize and run their business operations. See generally Ex. 1 (Albert) at 35:17-60:8.1 HP’s

Software Group (“HPSW”) markets 141 different product suites with functions including operations

management software (monitors and reports on the performance of networks, servers, and storage);

information management software (“big data” analytics), application lifecycle software (software

1 Exhibit (“Ex.”) cites are to HP’s Appendix of Exhibits and reference the name of the deponent. Last names otherwise refer to declarations in HP’s Compendium of Declarations.


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that manages software), and enterprise security software. Davis ¶¶ 4-5; Clemons ¶ 3. HP’s

Enterprise Group (“EG”) sells servers, storage, network, and converged infrastructure systems, along

with associated operating systems and software. Kumar ¶ 4. HP’s customers range from small-and-

midsize businesses to financial institutions, telecommunications providers, hospitals, airlines,

manufacturers, government agencies, and other technology companies. See id. ¶5; Davis ¶ 6;

Clemons ¶ 3. Customers invest millions of dollars on HP products to achieve a return on investment

by optimizing their IT systems and running their business operations more efficiently. Id.

HP’s customers generally have their own sophisticated IT departments, which are responsible

for the day-to-day administration and troubleshooting of HP products within their environments, and

which have access to the product manuals and other technical documents. Kumar ¶ 6; Clemons ¶ 4;

Davis ¶ 6. The “help desk” is on the customer side. HP support teams are engaged when customers’

engineers, network managers, and system administrators cannot resolve an issue; even HP’s

“frontline” support engineers are providing “backline” service, advising customers’ IT teams on

handling issues from an administrator standpoint. Id.; see also Ex. 2 (Kumar) at 104:3-105:15

(customer IT group is like the “general practitioner” seen first; HP support is the “cardiologist”).

Plaintiffs Eric Benedict, Kilricanos Vieira, and David Mustain are former HP employees who

worked as TSCs supporting different HP products, each alleging that HP misclassified them as

exempt from overtime under federal and state law (California, Massachusetts, and Colorado,

respectively). Plaintiffs originally sought to represent a nationwide FLSA collective and Rule 23

state classes of employees across all of HP’s business organizations and multiple job families, not

just TSCs. On February 13, 2014, Judge Koh granted conditional certification of Plaintiffs’

proposed FLSA class based on the “lenient” “notice-stage standard.” Dkt. No. 175. Yet, Plaintiffs

backtracked from their position, already conceding that the FLSA collective action was grossly

overbroad and that the evidence presented to Judge Koh would be insufficient under Rule 23. They

now limit their proposed Rule 23 classes to the TSC job family, and only TSCs who fall into certain

of HP’s organizations: (1) EG Technology Services/Global Customer Experience; (2) HPSW

Global Support Delivery and IM Support (“HPSW Support”); and (3) HPSW Enterprise Security

Products. Even this last ditch effort to salvage a class, however, encompasses employees on a wide


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variety of teams. There are 404 putative class members, who collectively have had 149 different

managers, and annual salaries ranging from just under to nearly $ Rowe ¶¶ 3-4.

Plaintiffs submitted certain Rule 30(b)(6) testimony, a handful of documents drawn from

large document repositories, and declarations from themselves and 15 FLSA opt-in plaintiffs – four

of whom have withdrawn their declarations. Dkt. Nos. 305, 309. HP submits declarations from 19

putative class members and 7 leaders/managers, and the deposition testimony of Plaintiffs and the

opt-in declarants, all of which shows significant variation in job roles across and within businesses.

B. HP’s Job Architecture Provides High-Level, General Guidance But Does Not Dictate Actual Job Duties

Like many companies of its size, HP has adopted a “Job Architecture” “framework” to help

organize its workforce. See Pl. Exs. 1-2. When a new employee joins HP, through direct hire or

acquisition of a company, the employee is “mapped” to a Job Architecture job code based on what

the manager thinks is the “best fit” for the expected quality and nature of work. Ex. 1 (Albert) at

97:8-98:15; see also id. at 86:22-87:01, 89:20-90:10, 100:12-101:14 (discussing other purposes).

Job Codes are associated with a “job description template” that describes “the general nature

of the responsibilities” for the position. Pilotin Decl. Ex. 1 ¶ 2.0 (“Pl. Ex.”). Within the U.S., the

TSC position is an FLSA exempt job code because the general expectations align to exempt work.2

For example, a TSC III “[a]pplies developed subject matter knowledge to solve common and

complex business issues” and “[e]xercises independent judgment within generally defined policies

and practices to identify and select a solution.” Pl. Ex. 5 (emphasis added). Responsibilities are

broadly described to include, among other things: “[s]uccesfully resolve technical issues (hardware

and software);” “[r]espond to service, product, technical, and customer-relations questions on

subjects such as features, specifications, and repairs;” “[p]roactively assist internal or external

businesses;” “[a]bility to act as a team or project leader providing direction to team activities and

facilitates … team decision-making process;” “[r]epresent and participate on an HP team” to

customers, vendors, and at industry conferences; “[p]artners frequently with the Sales Pursuit team.”

2 Within the same set of job families there are exempt and non-exempt job codes, and HP relies on its managers to determine whether employees should be “mapped” to an exempt or non-exempt Job Code. See Pl. Ex. 2, at HP0002340; Pl. Ex. 6, at HP00008436; Albert Dep. 161:11-164:20.


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Id. The job description expressly states that it “describe[s] the general nature and level of work

only,” and the duties listed are not exhaustive. Pl. Ex. 5, at 5; see also Ex. 1 (Albert) 134:3-8,

137:17-138:5 (HR job descriptions written “at a general level;” managers assign “individual roles”).

Ultimately, the idea of the Job Architecture is that if employees are performing similar work

at a similar level of responsibility, then, conceptually, they could map to the same job code. The

reverse, however, is not true: just because employees share a job code, they do not necessarily have

the same duties or roles. HP’s Rule 30(b)(6) witnesses confirm that, for their organizations, the Job

Architecture does not dictate actual job duties: “These are HR general definitions of a job level and

family that are not directly applicable to the actual role and role responsibility itself. Very high-level

language here that helps to describe it from an HR perspective, but not really how we define the job

… in the business itself.” Ex. 3 (Triolo) at 42:12-22; see also id. at 41:8-16 (“These are really wide

categories that are executed by a lot of different people.”); Ex. 4 (Davis) at 42:18-45:17, 58:20-23

(Job Architecture “guidelines” do not define duties “at the engineer level”); Kumar ¶¶ 7-10.3

HP’s businesses and teams in fact articulate more specific job roles and hiring criteria. See,

e.g., Pl. Ex. 2, at HP00002352; Gorden ¶¶ 4-7; Clemons ¶¶ 15-18; Kumar ¶ 8. Plaintiff Benedict

conceded in deposition that a job posting for a Senior Technical Support Engineer (TSC III) position

in EG included responsibilities different from his. Ex. 5 (Benedict) at 127:3-129:5, 135:21-136:13

& Dep. Ex. 12; Dkt. No. 154 ¶ 5. Plaintiffs claim that, under the Job Architecture, TSCs I-III have

minimal education and experience, but the education and training of putative class members varies:

some have only an associate’s degree, while others have bachelors of science or master’s degrees,

technical certifications, and decades of experience.4 Similarly, while Plaintiffs contend that TSCs I-

III cannot be considered “subject matter experts” (Mot. 8), Plaintiff Mustain and others in fact were.

See, e.g., Ex. 11(Mustain) at 39:5-41:10; Ex. 9 (O’Toole) at 147:17-22; Saechao ¶ 4; Jagannath ¶ 9.

3 Ex. 6 (Bargainer) at 63:2-18, 71:16-24 (Job Architecture has “a high level generic description” for each job code,” but “[w]e don’t manage at the job code level”); Ex. 7 (Paier) at 58:21-60:11 (Job codes defined only at a “high level” and are used based on manager’s discretion and interpretation). 4 See, e.g., Burkholder ¶ 2; Gyambavantha ¶ 2; Grinnell ¶ 2; Jaroszynski ¶ 2; Frenna ¶ 2; Stokes ¶ 2; McKenna ¶ 2; Multhauf ¶2; Ex. 8 (Kennedy) at 165:10-18, 33:4-7, 140: 4-9; Ex. 9 (O’Toole) at 40:11-16. But see Ex. 10 (Shropshire) at 16:13-17:2, 109:18-111:7.


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C. Roles and Duties Vary Among and Within Groups

1. Putative Class Members (“TSCs”) in HPSW

In HPSW, under the general umbrella of the TSC job code, TSCs can have multiple distinct

job roles, several of which are not even within the reactive “troubleshooting” paradigm described in

Plaintiffs’ Motion. See Clemons ¶¶ 14-18 & Exs. A-C; Gorden ¶¶ 4-6 & Exs. A, B.

Technical Account Managers (“TAMs”) play a primarily proactive role and are a focal point

representative for premier customers. See Clemons ¶ 17 & Ex. A; Gorden ¶ 6. TAMs meet with

their clients regularly and develop an operational profile and support plan based on in-depth

knowledge of the customer’s IT environment and business objectives, and how the HP software is

customized for them. Id. TAMs develop plans for upgrades and proactive maintenance, and provide

recommendations on system improvements. See id.; see also Gill ¶¶ 4-7, 15; Gyambavantha ¶¶ 4-

12. TAMs generally do not handle support cases themselves; they monitor support cases handled by

others, track trends, manage customer “escalations” (when a customer expresses dissatisfaction with

progress on a case or wants additional resources), and respond to customer satisfaction surveys. Id.

They also seek out sales opportunities and partner with Sales. Id.

For ArcSight specifically, TSCs may also be “Customer Advocates” (“CAs”), which is a

non-technical, administrative role. Gorden ¶ 7 & Ex. B. CAs’ duties include assigning inbound

support calls to the engineers, managing the queue, and developing team trainings and process

materials. Id. Opt-in Whitney Ihling, for example, was a Senior CA who authored her team’s

Return Merchandise Authorization (“RMA”) process for handling defective equipment. Ex. 12

(Ihling) at 31:7-13, 34:20-25, 40:16-21, 58:16-25, 64:18-22 & Ex. 13 (Ihling Dep. Ex. 7); see also

Ex. 14 (Levin) at 18:8-17, 21:20-22:1, 39:9-40:17, 68:16-70:24.

Opt-in Clinton Mills, as a TSC II, was in yet a different role as a “Duty Manager” (“DM”) on

the HPSW Worldwide Escalations Team, handling customer “escalations” and disputes on cases

without a dedicated resource. See Clemons ¶¶ 29-32. Mills also did reporting and analyses on

escalation trends to make recommendations to HPSW Support management. See id. ¶ 32.

Even among “support engineers” (those who handle support cases), HPSW has different

roles, such as “Account Support Engineers” (“ASE”) and “Named Account Support Engineer”


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(“NASE”). Clemons ¶¶ 15-16 & Exs. B-C. ASEs are veteran engineers with extended training in

certain products suites, who are reserved for customers paying for enhanced service. Clemons ¶ 16;

Gyambavantha ¶ 14. For further enhanced service, NASEs are a dedicated resource, responsible for

a deeper understanding of the customer’s environment, building the customer relationship, and

planning and resolving the most unique and complex cases. See Clemons ¶ 16; Jagannath ¶11.

The record confirms that work experiences diverge. Plaintiff Benedict, as a TSC III, worked

on the ArcSight product and, in his eleven months at HP, was a Tier 1 engineer – i.e., the

first TSE to respond to a case. With over 25 years of experience in the computer field and

programming languages, he was hired at a salary of over per year, yet Benedict denies any

analytical duties, alleging his job was to “cut and paste” Google post solutions to customers. See Ex.

5 (Benedict) at 155:24-157:3, 200:14-201:2, 209:4-15, 264:7-15, 317:19-318:12, 443:6-20.

Whether or not one finds Benedict’s testimony credible, it is different from that of Peter

Halton who, like Benedict, is an ArcSight TSC III, but works as a “Tier 2” engineer and generally

receives a case after a Tier 1 engineer has been unable to solve it. Halton ¶¶ 4-5. Halton works on

the more complex product and has handled cases for, e.g., the

and, recently, has been a NASE for the account. Id. ¶¶ 3-4, 7, 9. In contrast to

what Benedict claims, Halton’s cases are rarely solved through “cut and paste” solutions; rather, he

has to use investigative techniques, including reviewing system “log” files and the customer’s

environment, such as firewall settings, Linux configurations, disc space and memory, among others.

Id. ¶¶ 14, 17. His work includes, e.g., writing code within the customer’s system to provide

workarounds pending a new product release; conducting root cause analyses for recommendations

on long-term solutions to prevent problems’ reoccurrence; and working in the lab to test different

solutions before making a recommendation to the customer. Id. ¶ 10-11, 13, 20-21. For ,

he also makes proactive recommendations on upgrades and system changes. Id.¶¶ 7, 22.

In a Business Group with over a hundred product families and numerous separately managed

teams, TSCs’ specific duties will depend on the complexity of the products on which they work,

their particular role, and their own experience and skill. Contrary to Plaintiffs’ suggestion that all

putative class members serve “as the first contact HP customers have with HP’s technical support,”


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Level 1 engineers are typically off-shore, and certain product teams use outside contractors for Level

1 and 2 support. See Davis ¶¶ 8-9. Thus, on many teams, putative class members would only be in

an elevated or backline role. Similar to Halton and unlike Benedict, many such TSCs primarily

work on more complex issues without pre-existing answers, and exercise significant judgment in

analyzing and investigating the issue, and creating solutions or making recommendations to the

customer.5 The same employee also may play different roles on different teams or over time.6

2. TSCs in Enterprise Group Technology Services (“EG TS”)

TSCs in EG TS also play a wide variety of roles, such as those who have primarily proactive

roles (called “Remote Support Account Advocate” or “RSAA”) or who provide specialize service to

premier customers. See Richardson ¶¶ 10-13; Miranda ¶¶ 4-7; Stokes ¶¶ 4-6. While Plaintiffs cite

the phrase “break/fix” to describe TSCs’ work, that covers a very broad range of work and does not

imply that the work is routine, mechanical, or limited. Ex. 2 (Kumar) at 106:3; Kumar ¶¶ 11-18.

Many TSCs are on a “Mission Critical” team or regularly handle “mission critical” cases for

premier clients with cutting-edge systems that have heightened performance and availability

requirements. See Richardson ¶¶ 4-8. These are “Mission Critical” systems because any disruption

could cost millions of dollars, impact large sectors of the U.S. population, or even risk lives. See id.;

Inghram ¶¶ 3-7 ( supercomputer used for );

Stokes ¶ 7 (storage infrastructure for ); Ady ¶ 4

(storage for ); Miranda ¶ 4 (storage infrastructure for ); Saechao ¶ 7

( and ); Burkholder ¶ 6 ).

TSCs’ specific duties will depend on the product line, customer environment, mix of issues

they see, and the individual’s experience and ability, and different TSCs describe very different work

experiences. For example, Roberts claims that TSCs on his team took assignments based merely on

5 See Jagannath ¶¶ 3-11; Jaroszynski ¶¶ 4-13; McKenna ¶¶ 4-12; Ex. 15 (Chang) at 29:23-30:2; Ex. 16 (Jessen) at 154:1-2; Ex. 17 (Greenspan) at 88:1-11, 107:11-111:23; Exs. 18-20 [Greenspan Dep. Exs. 6-8]; see also Multhauf ¶¶3-14. 6 See, e.g., Jaroszynski ¶¶ 4-13 (backline but also worked as a “part time” TAM); Jagannath ¶ 11 (NASE for one customer); Ex. 16 (Jessen) at 16:6-17:25, 129:3-8 (higher level role on ” than when moved to , which was more “complex”); Ex. 21 (Austin) at 34:5-36:2; 36:5-11; 52:6-24 (was backline on one product, but “frontline” as a “novice” on another).


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priority in the queue, did not have specialties, and that “by no means were the customers unique”

because “[t]here were a handful of regular scenarios that we would see.” Ex. 22 (Roberts) at 53:16-

54:1, 63:16-25, 65:8-66:5, 153:24-154:4. Opt-in Ken Shropshire, on that same team, denies making

any decisions about how to investigate or solve a case, and instead claims that he simply followed

and then forwarded instructions from higher-tier engineers.7

Many TSCs, however, specialize in more complex products, and choose or are referred the

most complex cases, and they report having to exercise significant judgment in determining how to

identify the problem and develop a solution to address unique features of each client’s environment.

The work these TSCs describe include, for example: investigating the source of issues (whether

with the HP product or arising from changes in the customer’s environment); figuring out how to

quickly resolve high-severity incidents (e.g., outages); developing technical action plans for others to

implement; performing root cause analyses to assess vulnerabilities and avoid problem reoccurrence;

modifying system configurations, and recommending other modifications, purchases, or proactive

improvements; disbursing thousands or millions of dollars in equipment replacement, without

needing manager approval; writing computer program scripts to create workarounds or monitoring

applications, or gather and analyze data; and collaborating with R&D in analyzing issues and

proposing and testing developments.8 For these TSCs, cases may have several possible solutions –

7 See Ex. 10 (Shropshire) at 158:8- 159:3 (claiming he did not investigate problems independently and merely passed along solutions given to him by Level III engineers); id. at 161:24-165:2 (calling himself a mere “conduit”); see also id. at 55:21-56:2, 87:1-6, 112:15-17, 155:12-15 (denying exercising any independent judgment in investigating issues or identifying a solution). 8 See Ady ¶¶ 4-11 (describing most of the above), Burkholder ¶¶7-17 (specializes in complex performance issues; creates data collecting tools and monitoring programs; root cause analyses; consults on configurations and proactive improvements; collaborates with R&D); Clark ¶¶ 4-18 (handles performance issues, “purple” and “red screens of death,” recommends action plans and manages collaboration teams, writes scripts and code to automate processes for testing; recommends system changes; orders replacement parts of substantial value); DiPinto ¶¶8-16 (tests solutions in lab; performs root cause analysis; makes recommendations on best solution for customer’s goals); Frenna ¶¶ 4-18 (has, at times, specialized in “mission critical” cases, does root cause analysis, develops technical action plans, makes recommendations from alternatives, writes computer scripts for testing); Grinnell ¶¶ 7-15, 26 (analyzes network failures, develops workarounds, recommends hardware replacements and other proactive improvements); Inghram ¶¶ 6-10, 15, 17 (end-to-end solutions on 1000+ node cluster platform, developed action plans and coordinated work of outside vendors, collaborated with R&D in analysis and testing); Lewis ¶¶ 5-16 (specializes in complex performance issues, develops workarounds and reconfigurations, may write computer scripts for data collection); Saechao ¶¶ 5-14 (investigates issues in lab, develops workarounds, writes computer


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e.g., different ways to reconfigure the network, or the ability to create a “workaround” versus taking

the system off-line for maintenance – and the TSC must determine the best solution and advise the

customer on the pros and cons of different approaches. See supra n.8; Lowenberg ¶¶ 16-17.

TSCs also have varying responsibilities beyond handling cases. Trevor Clark, as a TSC II,

became a “Team Lead” responsible for performing “deep dive” case reviews on other engineers’

cases, managing customer “escalations,” and assigning cases. Id. ¶¶ 5-6. Plaintiff Mustain, as a

TSC II, also was a “Team Lead” and describes himself as solving cases others could not solve,

having a unique role working with hardware in the lab, and accepting special projects such as

“developing and delivering training to the global support community.” Ex. 11 (Mustain) at 39:8-11;

46:3-11; 186:7-8, 204:18-21, 205:19-20 & Dep. Ex. 42. Other TSCs also report creating or leading

trainings for customers and other engineers and creating or managing internal team processes.9

3. There Are No Uniform Procedures Dictating the Substance of Employees’ Work

While EG TS and HPSW maintain certain high-level processes and best practices, witnesses

agree that there are no uniform, centrally mandated procedures, manuals, or handbooks – across or

within businesses – that dictate the substance of TSCs’ work or provide step-by-step instructions on

how to solve a case.10 Many of the processes or guidelines attached to Plaintiffs’ Motion only

program scripts for testing, makes proactive suggestions); Stokes ¶¶ 7-20 (workarounds and recovery plans; coordinates work of field engineers; discretion to order replacement equipment, including ordering $2.8 million in equipment on just one case); Workman ¶¶ 5-22 (develops workarounds by writing computer scripts or system reconfiguration; advises customers through research on non-HP products; root cause analysis; collaborates with R&D); see also, e.g., Ex. 23 (Vieira) at 107:3-108:7, 174:21-24, 191:5-194:5, 212:12-14, 231:11-22, 244:7-19; Ex. 24 (Ford) at 59: 4-13, 62:21-64:10, 65:7-12, 79:10-80:6, 86:15-88:20; Ex. 8 (Kennedy) at 96:5-15. 9 See Grinnell ¶ 22; Frenna ¶¶ 15, 19, 22-23; Inghram ¶ 14; McKenna ¶¶ 13-16; Workman ¶ 19. For HPSW TSCs, see Jagannath ¶ 10; Jaroszynski ¶ 15; Ex. 17 (Greenspan) at 32:1-33:5, 165:16-167:19 (created secure upload process; mentoring, training); Ex. 16 (Jessen) at 131:2-16, 132:11-15, 134:8-13; Ex. 15 (Chang) at 71:7-19; Ex. 11 (Mustain) at 89:19-92:9, 170:8-15, 202:22-25. 10 See, e.g., Clemons ¶¶ 7-8; Davis ¶7; Gorden ¶¶ 8-12; Kumar ¶¶ 17-20; Frenna ¶ 11; Gill ¶ 13; Halton ¶¶ 18-19; Jagannath ¶ 7; McKenna ¶ 8; Multhauf ¶¶ 9-10; Gyambavantha ¶15; Jaroszynski ¶¶10, 17; Ady ¶¶ 8, 19-20; Burkholder ¶ 14; Clark ¶10; Grinnell ¶ 14; Lewis ¶¶ 11, 23; Lowenberg ¶ 7; Saechao ¶¶8, 19; Stokes ¶¶ 10, 22-24; Ex. 5 (Benedict) at 246:6-247:1 (conceding that there were no “formally documented checklists;” just general steps for handling a case, like being sure to research available resources); Ex. 11 (Mustain) at 84:3-86:7; 137:14-140:9; 146:2-147:3; 151:2-19; 154:2-155:7; 166:13-167:1, 168:11-172:1; Ex.25, 26 [Mustain Dep. Exs. 36, 37-A]; Ex.24 (Ford) 43:4-25, 55:10-25, 132:9-15; Ex. 23 (Vieira) 197:9-14, 200:1-201:19, 204:20-24; Ex. 21 (Austin) at 66:1-18; 121:5-123:19; Ex. 17 (Greenspan) at 75:19-76:11; 155:15-159:22.


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pertain to certain teams or job roles – such as Level 1 Engineers, who are frequently not U.S.-based

employees, Davis ¶¶ 8-9; Kumar ¶ 8 – and thus are inapplicable or not regularly used by TSCs in

other roles or on other teams.11 The elevation process varies from team to team, there are no

uniform predetermined rules for how long an engineer should work a case before elevating it, and

many TSCs report using their own judgment in deciding when to elevate a case, consult with

colleagues, or engage additional resources.12

HP maintains for its customers and engineers “knowledge bases” (“KB”) containing

technical documentation on previously encountered issues. While Plaintiffs allege that their jobs

primarily involve searching the KB for pre-existing instructions (Mot. 11), many TSCs report that

they do not use the KB much at all, because of the uniqueness of their customers’ environments and

cases they handle, and the rapidly changing nature of the technologies. See, e.g., Inghram ¶ 13;

Clark ¶ 14; Halton ¶ 19; Lewis ¶ 13; Multhauf ¶ 10; Saechao; ¶ 11; see also Kumar ¶18 (different

products will have different levels of KB documentation depending on maturity or evolution). Yet

others explain that they use the KB (and other resources) as a research tool, but that (like a lawyer or

doctor) they have to exercise their own judgment in formulating searches and evaluating the results,

and that the KB articles themselves are not sufficient to solve most of their cases.13 The record also

reflects that many TSCs create KB articles, for use by lower-level engineers and customers, or act as

11 See Ex. 24 (Ford) at 153: 18-154:5, 155:22-156:2 (did not use Pl. Exs. 17 or 24 in his work for HP); DiPinto ¶ 21 (Ex. 24 “not relevant to me because I do not create cases or tickets”); McKenna ¶ 17 (has never seen Pl. Ex. 13 and is not relevant to him or team because team does not use the SPARKS ticketing system); Grinnell ¶ 28; Lewis ¶ 23; Saechao ¶ 19; Workman ¶ 24; Jagannath ¶ 12 (never seen Pl. Ex. 10; processes appear to be directed at Service Desk Assistants). 12 See, e.g., Davis ¶ 19; Clemons ¶¶ 27-28; Gorden ¶¶ 8-9, 12; Ex. 2 (Kumar) at 44:6-25; Ex. 15 (Chang) at 62:13-22 (uses judgment on when to elevate); Ex. 23 (Vieira) at 214:13-219:25 (discussing informal, collaborative process to determine elevation); Ex. 11 (Mustain) at 118:25-119:24; 123:15-125:10; Ex. 8 (Kennedy) at 116: 5-118:24; Ex. 24 (Ford) at 38:15-19; Inghram ¶ 10; Grinnell ¶ 6; Frenna ¶ 9; DiPinto ¶¶ 14-15; Clark ¶¶ 20-21; Multhauf ¶ 13. 13 Ex. 11 (Mustain) at 70:22-71:10, 74:24-75:3, 84:8-86:7 (agreeing that “in deciding which knowledge base article solution to apply to a customer’s situation,” he used his “own judgment deciding whether or not a particular solution was appropriate”); Ex. 21 (Austin) at 75:13-17, 80:25-82:5; Ex. 10 (Shropshire) 189:12-14 (admitting Knowledge Base articles “rarely” provided solution); Ex. 15 (Chang) at 88:3-20 (“I use knowledge base and sometimes I just use my critical thinking”); Gill ¶14; Stokes ¶ 23; Ady ¶¶ 13-16; DiPinto ¶ 18; Burkholder ¶ 14; Gyambavantha ¶ 15; Workman ¶ 24; Ex. 24 (Ford) at 154:6-155:2 (would likely have referred to Pl. Ex. 19 on “linking” SAW articles, but it did not instruct him on how to solve technical problem); Grinnell ¶ 28.


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KB “Coach” or reviewer for their team. Pl. Exs. 18, 19; Clark ¶ 14; Inghram ¶13; Lewis ¶ 13; see

also, e.g., Ex. 23 (Vieira) at 94:15-95:18, 201:20-203:1.14

Customer contracts also have Service Level Agreements that vary by contract, but can

include a time for making a “first technical contact” (letting the customer know the case has been

received), depending on the severity and priority level. Davis ¶18; Lowenberg ¶¶8-9. This SLA is

of little relevance to certain TSCs in elevated or backline roles, who generally do not do first

technical contacts. See, e.g., Grinnell ¶28; Lewis ¶23. Moreover, TSCs are the ones responsible for

setting the severity and priority level, based on their assessment of the customer’s system and the

issue, and many TSCs may also negotiate with customers over the expected response time. See Ex.

2 (Kumar) at 78:13-79:1; Richardson ¶¶20-22; Ex. 11 (Mustain) at 92:14-93:9; Stokes ¶ 18; Halton

¶ 5; Ex. 16 (Jessen) at 58:25-60:14. Some TSCs also report being able to deviate from processes to

meet customer needs, and they may be involved in developing team processes. See Ady ¶ 19;

Burkholder ¶ 9; Clemons ¶¶ 24-25; Gill ¶ 8; Kumar ¶ 20; Ex. 16 (Jessen) at 34:14-16; see also supra

n.9.

III. LEGAL STANDARDS

A. Class Certification Standards

Plaintiffs bear the burden of establishing that they meet the requirements of Rule 23 of the

Federal Rules of Civil of Procedure. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011); Ellis v.

Costco Wholesale Corp., 657 F.3d 970, 979-80 (9th Cir. 2011). “Rule 23 does not set forth a mere

pleading standard” and instead requires a “rigorous analysis.” Wal-Mart, 131 S. Ct. at 2551.

Plaintiffs here must show they meet the Rule 23(a) elements – numerosity, commonality, typicality,

and adequacy – and Rule 23(b)(3)’s requirements that (1) common questions of law and fact

predominate, and that (2) a class action is superior to other means for fairly an efficiently

adjudicating the controversy.

14 Ex. 17 (Greenspan) at 32:1-33:5, 165:16-167:19; Jaroszynski ¶ 15; Ex. 16 (Jessen) at 131:2-16, 132:11-14, 134:8-13; Ex. 15 (Chang) at 71:7-19; Ex. 11 (Mustain) at 186:9-11.


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“Commonality” requires an issue in which the “determination of its truth or falsity will

resolve an issue that is central to the validity of each of the claims in one stroke.” Wal-Mart, 131 S.

Ct. at 2551. Rule 23(b)(3)’s predominance inquiry is “even more demanding,” and will not be

satisfied if individual issues “will inevitably overwhelm questions common to class.” Comcast

Corp. v. Behrend, 133 S. Ct. 1426, 1432-33 (2013). “[I]t is not correct to say a district court may

consider the merits to the extent that they overlap with class certification issues; rather, a district

court must consider the merits if they overlap” with these requirements. Ellis, 657 F.3d at 981.

In misclassification cases, Plaintiffs must show how, under the applicable exemptions,

“common proof” could obviate the need for individualized inquiries into employees’ actual work

duties and how they spend their time. See Marlo, 639 F.3d at 948. Predominance will fail when

trial will require “an individualized inquiry into the manner in which each [plaintiff] actually carried

out his or her work,” notwithstanding “the presence of other issues susceptible to common proof.”

Vinole v. Countrywide Home Loans, 571 F.3d 935, 944, 46-48 (2009). Likewise, superiority

requires that a class trial be efficient and manageable and consistent with due process. Zinser v.

Accufix Research Inst., 253 F.3d 1180, 1190-93 (9th Cir. 2001); see also Wal-Mart, 131 S. Ct. at

2561 (“[A] class cannot be certified on the premise that [a defendant] will not be entitled to litigate

its statutory defenses to individual claims.”); Weigele v. FedEx Ground Package Sys., Inc., 267

F.R.D. 614, 623-24 (S.D. Cal. 2010) (decertifying class for failure of predominance and superiority).

B. The Underlying State Law Exemptions

For predominance, courts first examine the substantive issues – here, the underlying state law

exemptions – and then inquire into the proof relevant to each issue. See Hanon v. Dataprods., 976

F.2d 497, 508-09 (9th Cir. 1992). Massachusetts and Colorado each recognize “administrative” and

“professional” exemptions, which are treated as equivalent to federal law.15 California’s

administrative exemption incorporates a prior version of the federal regulations, 8 Cal. Code Regs.

15 See Mass Gen. Laws ch. 151, § 1A(3); 454 Mass. Code Regs. § 2.02(3); 7 Col. Code Regs. 1103-1:5; Reyes v. Snowcap Creamery, Inc., No. 11-CV-02755, 2013 WL 4229835, at *6 (D. Colo. Aug. 14, 2013); In re Farmers Ins. Exch. Claims Reps.’ Overtime Pay Litig., No. MDL 1439, 2003 WL 23669376, at *6 (D. Or. May 19, 2003) (applying Colorado administrative exemption).


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§ 11040(2), and it provides a computer employee exemption, Cal. Lab. Code § 515.5. In their

alleged common issues, Plaintiffs focus only on certain exemption elements and treat the state laws

as similar for this Motion. Mot. 2 n.3, 15. Plaintiffs do not raise any argument as to the “salary

basis” requirements, or certain other elements specific to the California administrative exemption.

Administrative Exemption. The administrative exemption covers work involving “the

performance of office or non-manual work directly related to the management or general business

operations of the employer or the employer’s customers,” and the “exercise of discretion and

independent judgment.” 29 C.F.R. § 541.200(a) (emphasis added); 8 Cal. Code Regs.

§ 11040(2)(a)(i) (same).16 (Plaintiffs’ alleged common issue #2 misstates the exemption.) “Work

directly related to management or general business operations” includes “computer network, internet

and database administration,” among other functions that involve planning, advising management,

and representing the company. See 29 C.F.R. §§ 541.201(b); Combs v. Skyriver Commc’ns, 159 Cal.

App. 4th 1242, 1256, 1264 (2008). “[T]he exercise of discretion and independent judgment involves

the comparison and the evaluation of possible courses of conduct and acting or making a decision

after the various possibilities have been considered.” 29 C.F.R. § 541.202(a). Work must relate to

“matters of significance,” in contrast to being “clerical” or “routine,” or simply involving following

well-established procedures found in manuals or similar sources. 29 C.F.R. § 541.202(b), (e).17

Professional/Computer Exemption. Under the law of all three states, computer work can be

exempt when it involves, among other things, “the design, development, documentation, analysis,

creation, testing or modification of computer systems or programs … based on and related to user or

system design specifications.” 29 C.F.R. § 541.400(b)(2).18

16 For ease of reference, citations above are to the current version of the FLSA regulations. As the Ninth Circuit and California Supreme Court recognize, the current FLSA regulations “were intended to be consistent with the old regulations,” and thus federal case law on the current regulations is instructive for California law. Harris v. Superior Court, 53 Cal. 4th 170, 189 n.8. 17 Work on “matters of significance” includes, among other things, where the employee has the authority to “formulate, affect, interpret, or implement management policies or operating practices,” or where the work “affects business operations to a substantial degree,” and “whether the employee provides consultation or expert advice to management,” and includes making recommendations for actions, even if the recommendations are reviewed at a higher level. Id. § 541.202(b)-(c). 18 For Massachusetts and Colorado, this work would fall under the professional exemption. See supra n.15; 29 C.F.R. § 541.400(a) (“Computer systems analysts, computer programmers, software


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Evaluation of Primary Duties. Insofar as Massachusetts and Colorado follow federal law, the

“primary duty” test takes into account, among other things, the “relative importance of the exempt

duties as compared with other types of duties,” as well as “the amount of time spent performing

exempt work.” 29 C.F.R. § 541.700(a). Under California law, the “primary duty” test turns

principally on the amount of time the employee spends on exempt versus non-exempt work, and this

inquiry must be made on a workweek-by-workweek basis. 8 Cal. Code Reg. § 11040(1)(A)(2)(f);

Marlo, 639 F.3d at 948. An employee whose primary duty is a combination of exempt duties is also

exempt. See 29 C.F.R. § 541.708; Hill v. R&L Carriers, Inc., 690 F. Supp. 2d 1001, 1008 (N.D. Cal.

2010) (considering California law). Applying the exemptions is a “fact-intensive inquiry” that turns

on the employees’ actual work duties. Vinole, 571 F.3d at 945.

Application to Technology Support. Consistent with these regulations, “technical support”

work may or may not qualify as exempt, depending on the employee’s specific duties. Routine end-

user support and maintenance pursuant to detailed, pre-existing instructions – so-called “help desk”

tasks – are non-exempt. See 29 C.F.R. §§ 541.202(e), 541.704. In other contexts, troubleshooting or

technical support has been found to be exempt work. See, e.g., Valles v. Int’l Bus. Mach. Corp., No.

SACV 09-202, 2010 WL 9434915 (C.D. Cal. May 6, 2010) (California administrative exemption

applied to employee who handled infrastructure outages); Combs, 159 Cal. App. 4th at 1247, 1269

(applying exemption when employee spent 60-70% of time “maintaining the well-being of

Skyriver’s network,” including “high-level problem solving and ‘troubleshooting’”). In Cruz v.

Lawson Software, Inc., 764 F. Supp. 2d 1050 (D. Min n. 2011), the court found plaintiffs exempt

under the FLSA where their duties included “fix[ing] problems that other consultants could not

solve,” “training and knowledge transfers,” and providing “subject matter expertise on Lawson’s

product for its client system administrators—how to use and troubleshoot the software from an

administrative standpoint, not from a user standpoint.” Id. at 1069-70; see also Curry v. Matividad

Medical Center, No. 11-cv-4662, 2013 WL 2338110, at *5 (N.D. Cal. May 28, 2013) (describing

“provid[ing] escalation support to helpdesk personnel,” as well as “network analysis, testing,

engineers or other similarly skilled workers ... are eligible for exemption as professionals ….”). California’s free-standing computer exemption also focuses on these duties. Cal. Lab. Code § 515.5.


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configuration, and modification,” as among exempt tasks); Orphanos v. Charles Indus., Ltd., No. 95

C 4039, 1996 WL 437380 (N.D. Ill. 1996) (troubleshooting by “technical support engineer II”

exempt when work went beyond merely applying pre-existing instructions).19

IV. ARGUMENT

This Motion does not require the court to decide what exactly constitutes exempt versus non-

exempt work, but rather what form of proof would be necessary to try this case. If no common proof

is available, and individualized inquires are necessary, the Motion fails under well-settled law.

Notably, Plaintiffs do not argue that all “technical support” work is categorically non-exempt.

Instead, they claim that the Job Architecture and alleged “regimented” procedures show that TSCs

all “do the same thing.” This is undermined by the testimony of Plaintiffs and opt-in declarants, who

articulate widely varying work experiences. After over two years of discovery, Plaintiffs have not

offered a form of proof that binds the class together in support of their misclassification theory or

that would eliminate the need for individual inquiries into TSCs’ actual duties at trial. In the face of

such variation and absence of common proof, Plaintiffs cannot satisfy the predominance and

superiority requirements of Rule 23, and as to each state class typicality also fails.

A. Courts Have Frequently Denied Class Treatment of Technology Worker Misclassification Claims, Despite a Common Job Title

Plaintiffs principally point to TSCs’ classification with HP’s “Job Architecture,” but while a

common job classification or “blanket exemption policy” may be probative, it is not dispositive

because it “does not eliminate the need to make a factual determination as to whether class members

are actually performing similar duties.” In re Wells Fargo Home Mortg. Overtime Pay Litig., 571

F.3d 953, 959 (9th Cir. 2009) (“courts must still ask where the individual employees actually spent

their time”). “[T]he existence of a policy classifying [a position] as exempt from overtime-pay

19 Other cases are in accord. See, e.g., Bernard v. Group Pub., Inc., 970 F. Supp. 2d 1206 (D. Colo. Sept. 13, 2013) (describing “Tier III” support as among exempt duties); Clarke v. JPMorgan Chase Bank, N.A., No. 08 Civ. 2400, 2010 WL 1379778, *6-7, 17-20 (S.D.N.Y. Mar. 26, 2010) (same); Young v. Cerner Corp., No. 06-321, 2007 WL 2463205, at *4-5 (W.D. Mo. Aug. 28, 2007) (testing and collaboration with R&D); Koppinger v. Am. Interiors, Inc., 295 F. Supp. 2d 797 (N.D. Ohio Dec. 5, 2003) (exercise of judgment and discretion in deciding how to approach and fix problems); Pellerin v. Xspedius Mgmt.Co., 432 F. Supp. 2d 657 (E.D. La. 2006) (exemption applied to employee who “maintained and supported pre-existing software applications”).


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requirements does not necessarily establish that [employees] were misclassified, because the policy

may have accurately classified some employees and misclassified others.” Marlo, 639 F.3d at 948.

Indeed, courts have widely rejected class treatment in misclassification cases like this one, even

when employees shared a job title and were all involved in “technical support.”

In Sirko v. International Business Machines Corp., No. CV 13-03192, 2014 WL 4452699

(C.D. Cal. Sept. 3, 2014), the claims involved employees in the “Technology Services 24A job

family,” who all supported Kaiser Permanente’s technology systems. The court found that,

notwithstanding the existence of a common, “generic” and “high-level” job description, the

employees performed a range of work “with varying levels of importance to the management or

operation of Kaiser’s business,” as relevant to California’s administrative exemption. Id. at *11.

The court highlighted one employee, whose duties were “gathering information about

Kaiser’s information storage needs, determining the best solution to a problem, and planning and

implementing those solutions.” Id. The court observed that such duties “appear less routine and

clerical, and of more importance to the manager or operation of Kaiser’s business,” than another

employee who simply opened tickets and then called others to fix the issue. Id. The court also

found variation on the discretion element, contrasting a programmer who simply followed upgrade

instructions with others who, in responding to outages, “had to use their specialized technical

knowledge of impacted system to identify the problem and figure out the quickest path to recovery.”

Id. at *12. The court observed that “it is far from clear that installation, maintenance, and support

are uniformly non-exempt activities,” when “sometimes those tasks involve a great deal of discretion

and independent judgment and very little supervision,” and the record showed that “even those with

similar job duties could spend different amounts of time on each discrete task.” Id. at *13. The

court thus held that individualized issues would predominate in adjudicating the exemption. Id.

Other cases are in accord. In Santiago v. Amdocs, Inc., No. C 10-4317, 2013 WL 5444324

(N.D. Cal. Sept. 30, 2013), Judge Illston decertified an FLSA collective action and denied Rule 23

certification as to a California class, even though the technical-support employees were “mapped” to

the same job families within a “global job classification system.” Id. at *2-3. The court found such

“generalized commonalities” insufficient given that employees’ “actual job duties” varied and would


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require individual analysis under the exemptions. Id. at *5-6 (quotation omitted). In Novak v.

Boeing, No. SACV09-01011, 2011 WL 7627789 (C.D. Cal. Dec. 19, 2011), the court rejected class

treatment on California claims for “Level 4 Programmer/Analyst” employees, because workers

“perform different amounts of exempt and non-exempt duties, have different levels of supervision,

employ different amounts of independent judgment and discretion, work in different teams and

environments, and have vastly different educational backgrounds.” Id. at *5-6; see also Cruz, 764 F.

Supp. 2d at 1058-64 (decertifying FLSA collective of tech workers with shared job description).20

B. The Record Here Shows That the Job Code Does Not Dictate Employees’ Actual Duties, Making Individualized Inquiries Necessary and Defeating Predominance

For similar reasons, class certification should be denied here for failure of predominance.

1. The Job Architecture Is Not Any Significant Form of Common Proof

On its face, HP’s Job Architecture only provides the kind of general, high-level job

descriptions that courts have found insufficient to advance the Rule 23 inquiry. See Sirko, 2014 WL

4452699, at *11; Santiago, 2013 WL 5444324, at *2-6.21 Even Plaintiffs do not contend that the

TSC job description, in itself, describes non-exempt work or that one could try this case simply by

putting the job description on trial.22 The record also clearly refutes Plaintiffs’ allegation that the

Job Architecture “defines and constrains what TSCs do,” Mot. 19-20, or that simply by virtue of the

TSCs’ job code, one can infer, e.g., that all TSCs have the exact same job duties, or have limited

education or expertise. See supra Part II.B. The broad range of salaries, even among people with

20 See also Sutton-Price v. Daugherty Sys., Inc., No. 11-cv-1943, 2013 WL 3324364, at *4 (E.D. Mo. July 1, 2013) (rejecting FLSA class because “[i]t is not enough” to show that class members “share computer-related duties in a broad sense”); Blake v. Hewlett-Packard Co., No. 11-CV-592 , 2013 WL 3753965, at *11 (S.D. Tex. July 11, 2013) (rejecting FLSA class of HP “IT Support Specialists” because “the work of ‘resolving tickets’ is simply too general to bind the class”); Heffelfinger v. Elec. Data Sys. Corp., No. CV 07-101, Dkt. #166 (C.D. Cal. Feb. 26, 2013) (decertifying California law class of systems engineers/analysts based on variation in job duties). 21 See also, e.g., Rosenberg v. Renal Advantage, Inc., No 11-CV-2152 2013 WL 3205426, at *7-8 (S.D. Cal. June 24, 2013); Aburto v. Verizon Cal., No. CV-11-03683, 2012 WL 10381, at *4 (C.D. Cal. Jan. 3, 2012); Williams v. Lockheed Martin, No. 09-CV-1669, 2011 WL 2200631 (S.D. Cal. June 2, 2011); Gales v. Winco Food, No. C-09-05813, 2011 WL 3794887 (N.D. Cal. Aug. 26, 2011). 22 See Hamilton v. Genesis Logistics, Inc., No. CV13-01848, 2014 WL 4187941, at *7 (C.D. Cal. Aug. 22, 2014) (common job classification “is not common evidence of misclassification in the absence of evidence showing that the policy was wrongful”).


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the same job code, is further evidence that they do not all “have the same job.” See Rowe ¶ 4. The

Job Architecture does not represent a form of proof that, at trial, would lessen the need for individual

inquiries into employees’ actual work. See Marlo, 639 F.3d at 948; Wells Fargo, 571 F.3d at 959.

2. Individual Inquiries Are Necessary into Each TSC’s Mixture of Tasks and to Determine What Constitutes the TSC’s Primary Duty

The record also establishes substantial variation with respect to Plaintiffs’ misclassification

theory – that all TSCs perform a “uniformly circumscribed,” and “limited troubleshooting role”

(Mot. 11) – and as necessary to adjudicate the elements of the respective exemptions.23

First, many TSCs have roles that fall completely outside Plaintiffs’ paradigm of

“troubleshooters” who primarily perform alleged “break/fix” work. Instead, as “RSAAs” or

“TAMs,” they do proactive planning and advising on system modifications and special projects, act

as HP’s lead technical representative to the customer, and frequently partner with sales. See supra at

6, 8. TSCs like opt-ins Clinton Mills (Duty Manager) and Whitney Ihling (Customer Advocate) also

each had distinct roles that did not primarily involve technical “troubleshooting.” See supra at 6.

Second, even among those who handle support cases, there is wide variation in their specific

roles (e.g., Level 1 vs. Level 2 or 3 vs. ASEs vs. NASEs), and in how they carry out their duties, so

as to require individualized inquiries to adjudicate the exemptions and the alleged “common

questions” identified in Plaintiffs motion. See Mot. 15. In particular, the record shows disparate

work experiences going to the elements of administrative exemption: whether work is “directly

related” to management policies or general operations, and whether the employee exercises

independent judgment and discretion. Plaintiffs, like Eric Benedict and opt-in Ken Shropshire,

allege that their work was routine and clerical. But other TSCs report, to varying degrees,

performing potentially administratively exempt tasks, such as: complex problem-solving on critical

or elevated cases; exercising independent judgment and discretion in deciding how to approach an

issue and choosing the best solution from alternatives; doing technical action plans to direct the work

of others; acting as a dedicated representative or trusted advisor to premier customers; authorizing,

23 This variation should preclude a finding even of Rule 23(a) commonality, but this brief focuses on Rule 23(b) predominance and superiority because it is a stricter, superseding standard.


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without manager approval, thousands or even millions of dollars in replacement equipment; and

making recommendations for proactive improvements and purchases. See supra at 9 & n.8.

TSCs also report, to varying degrees, doing work relevant to the computer professional

exemption, such as writing computer scripts (code) to create workarounds or enhancements in the

customer’s environment, or doing analysis and testing for system reconfiguration and modification.

See id.24 Plaintiffs try to distinguish TSCs in the “Support” organizations from employees in R&D

or the sales/“consultancy” teams. Mot. 9, 11-12, 20-21. But (a) Plaintiffs fail to explain why that is

dispositive (i.e., that they can just put the org chart on trial); and (b) the lines are not so absolute,

given that certain TSCs frequently collaborate with R&D on issue analysis and testing, and/or

partner with sales or do special “consultancy” projects. See id.

Third, TSCs may spend significant amount of time on other activities relevant to the

administrative exemption, such as training lower-level or off-shore engineers, developing or

managing internal team processes, and acting as a Team Lead or “Knowledge Base” coach. Even

among TSCs in support engineer roles, some report spending less than 50% of their time handling

support cases, as opposed to other team-related and proactive consulting activities, while others (as

especially relevant to California law) report that their mixture of duties vary week-to-week. See

McKenna ¶¶ 8, 13, 15; Gill ¶ 15; Grinnell ¶ 26; Gyambavantha ¶ 12.

As in Sirko, Santiago, and Novak, the Court today does not decide who or what roles or tasks

are or are not exempt. Rather, the variation in actual job roles duties and time spent on different

activities goes squarely to the elements of the relevant exemptions, and would require individualized

inquiries into what specific tasks a given employee performs, and then a determination of what tasks

or combination of tasks make up the employee’s “primary duty.” Even if certain TSCs, like Eric

Benedict and Ken Shropshire, characterize their work on their teams as rote, there is no way of

adjudicating that without inquiring into their work, and there is no basis to extrapolate their

experience to all TSCs working in different roles on different teams with different technologies.

24 The training and education of the TSCs also varies significantly. See supra at 5 & n.4. This goes to the elements of the exemptions, in that differences in TSCs’ backgrounds can manifest in, e.g., the relative complexity of their cases, the kinds of computer work they perform, and whether they consult on cases as specialists and expert advisors or simply receive cases from a general queue.


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Indeed, the primary-duty evaluation, by itself, “will inevitably overwhelm questions common

to class.” Comcast, 133 S. Ct. at 1432-33. Under Massachusetts and Colorado law, the court must

apply the multi-factored federal test, including the relative importance of different duties within the

context of the specific employee’s mix of tasks. California law requires a workweek-by-workweek

analysis of time spent on different tasks, which necessarily defies class treatment when, as here, the

mix of work varies day-to-day and over time. See Marlo, 639 F.3d at 948 (affirming denial of

certification); Dunbar v. Albertson’s, Inc., 141 Cal. App. 4th 1422 (2006) (decertifying class).

The record here stands in stark contrast to the cases on which Plaintiffs rely. In Nelson v.

Avon Products, No. 13-cv-02276, 2015 WL 1778326 (N.D. Cal. Apr. 17, 2015), the putative class

members all had the same specific job role, and the parties agreed on the discrete set of tasks that

they performed, with the parties each presenting “a single class-wide argument on the merits” as to

whether the employees were exempt. Id. at *3, 7, 9-10; see also, e.g., Damassia v. Duane Reade,

Inc., 250 F.R.D. 152, 159 (S.D.N.Y. 2008) (evidence showed that specific duties and responsibilities

of store managers were centrally derived and uniformly controlled). Here, there is no such

homogeneity. Even if it were true that HP painted with too broad a brush in classifying all putative

class members as exempt, HP “may have accurately classified some employees and misclassified

others,” and Plaintiffs have not shown how they could show misclassification on a classwide basis

through common proof, and without the need for individual inquiries. Marlo, 639 F.3d at 948.

C. Plaintiffs’ “Processes” and “Procedures” Evidence Is Not Sufficient to Show Misclassification on a Classwide Basis, Without Needing Individual Inquiries

Plaintiffs also argue that there are uniform, “regimented” and “strict guidelines” governing

“every aspect of [TSC’s] day-to-day work.” Mot. 9-11, 20. In support of this allegation, they offer a

handful of documents drawn from large document repositories. They also offer vague assertions in

the boilerplate opt-in declarations.25 Here, Plaintiffs must show both that common procedures exist,

and that the procedures replace the need for individual inquiries at trial by showing, in themselves,

25 Courts reject “cookie-cutter” declarations that lack meaningful detail. See Espinoza v. Domino’s Pizza, LLC, No. EDCV 07-1601, 2009 WL 882845, at *13 (C.D. Cal. Feb. 18, 2009); Silverman v. SmithKline Beecham Corp., No. cv06-7272, 2007 WL 6344674, *2 & n.5 (C.D. Cal. Oct. 15, 2007).


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that the employees were misclassified. Marlo, 639 F.3d at 948 (“the fact that [a company] expects

[employees] to follow certain procedures or perform certain tasks” is not itself dispositive of the

exemption inquiry or sufficient to avoid individual inquiries). Plaintiffs have not met the burden.

First, many of Plaintiffs’ exhibits simply identify the existence a case-tracking system, basic

instructions on how to use the tool when opening or closing a case, or high-level work flows or

guidelines in interacting with customers. See Pl. Exs. 10, 12-14, 16-17, 22, 24. Many declarants,

including Plaintiffs’ own opt-ins, report that they either are unaware of these processes, or that the

processes are not applicable to them because, for example, they are not the ones creating cases. See

supra at 11 & n.11. Indeed, none of the declarations identify the documents attached to Plaintiffs’

Motion as ones constraining their duties. Regardless, the documents only refer to use of the tool or

generalized guidelines, not how the employee substantively goes about solving a case. Nor do

Plaintiffs proffer the case-management system to show, for example, that assignments are made in a

uniform fashion (they are not), or that TSCs have identical case loads or all do high-volume/short-

duration case work (they do not). In short, the allege proof is neither common nor material, in sharp

contrast to cases on which Plaintiffs rely. See, e.g., Boyd v. Bank of Am. Corp., 300 F.R.D. 431, 443

(C.D. Cal. 2014) (employees could not choose assignments and had to use same 50-page handbook

detailing how to conduct appraisals, including angles for photos).

Second, Plaintiffs cite exhibits identifying the existence of, and guidelines for using, certain

“Knowledge Base” (“KB”) system. See Mot. 11, 21; Pl. Exs. 18-20. As a matter of law, the “use of

manuals, guidelines or other established procedures” on “highly technical” matters does not preclude

exemption where they “can be understood or interpreted only by those with advanced or specialized

knowledge or skills,” and when the employee still exercises judgment and discretion in how the tool

or resource is used. 29 C.F.R. § 541.704.26 Thus, the mere existence of a KB is not sufficient, and

26 See also In re Farmers Ins. Exch., 481 F.3d 1119, 1124, 1130-31 (9th Cir. 2006) (software loss estimation tool did not preclude administrative exemption, where employee still had to use discretion and judgment in applying software); Kennedy v. Commonwealth Edison Col., 410 F. 3d 365, 374 (7th Cir. 2005) (holding that “work planners” at nuclear power plant – whose job was to come up with solutions to remedy problems at the plant – were exempt, notwithstanding fact that “they look to past work packages for guidance and use a computer to aid their recommendations”); Cruz, 764 F. Supp. 2d at 1068-70 (technology employees exercised independent judgment and discretion, despite existence of manuals, because they needed to deviate from manuals to customize solutions).


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the record reflects material variation in how TSCs use it. Some TSCs claim to rely primarily on pre-

existing solutions. But others use the KB articles rarely or only as a potential research tool to

consider when generating their own solutions; and others frequently write KB articles to transfer

knowledge to customer IT administrators and lower-level engineers. See supra at 11-12 & nn.13-14;

Cruz, 764 F. Supp. 2d at 1069-70. Thus, the independent judgment and discretion inquiry would

require looking separately into how each TSC used the KB articles and the TSC’s role in creating

and transferring knowledge. Moreover, the technical documentation is not common evidence,

because it varies from product to product and issue to issue. The trier of fact would not be able to

adjudicate whether the documentation eliminates discretion under 29 C.F.R. § 541.704 without

actually reviewing, on an individual basis, the documents relevant to each TSC’s cases.

Third, Plaintiffs cite to the “First Technical Contact” SLA, see Mot. 10 & n.11; Pl. Ex. 24,

but they fail to explain why the mere existence of that SLA negates any exemption or further inquiry

into individuals’ work. Indeed, the evidence shows that this SLA (a) does not constrain the solutions

TSCs create; (b) is not uniformly relevant to TSCs (because they do not do the FTC); and (c) TSCs

play varying roles in setting, changing, and negotiating priority levels – just as they may play various

roles in developing or deviating from other internal team procedures. See supra at 12.

All of the above establishes that this case is far more similar to Marlo than Boyd. There is no

common or uniform document that evidences how each class member did or was supposed to do the

substance of his or her work. Plaintiffs want to try this case on the theory that class members’ work

was “routine” and “closely proscribed,” but they have offered no common evidence that would

permit a trier of fact to reach that question. Instead, the trier of fact would have to examine each

class member’s case reports, email correspondence with customers, colleagues, vendors, and

managers, and hear conflicting testimony on the way in which a class member characterizes his or

her own work. For these additional reasons, Plaintiffs have not met their burden under Rule 23.

D. Certification Should Be Denied As to Each State Class For Additional Reasons

1. Massachusetts

In addition to the failure of predominance, Plaintiffs cannot satisfy even the Rule 23(a)

requirements for the Massachusetts class. First, Vieira is subject to a unique defense, which defeats


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typicality and adequacy. See, e.g., Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992);

Cholakyan v. Mercedes-Benz, USA, LLC, 281 F.R.D. 534, 557 (C.D. Cal. 2012) (“[e]ven an arguable

defense peculiar to the named plaintiff … may destroy the required typicality … as well as bring into

question the adequacy of the named plaintiff’s representation”). Prior to this lawsuit being filed,

Vieira received substantial severance pay in exchange for waiving both his substantive state law

claims and his ability to bring a class action. Ex. 23 (Vieira) at 126:10-127:7-15; Ex. 27 (waiver

agreement). There is a substantial risk that Vieira’s claims will be deemed released or barred from

being raised as a class action, leaving the Massachusetts class without a representative. Second,

there are also numerosity and commonality problems. Plaintiffs have not proffered any evidence

specific to Massachusetts TSCs beyond the testimony of Vieira and two others (Kennedy and

O’Toole) who were from the same team. There is no indication of commonality or ability to

represent TSCs in HPSW or other EG TS teams. If Vieira cannot represent, for example, HPSW

TSCs, then the class would fail the numerosity requirement.

2. California

Benedict also is not a typical or adequate representative for California, based on unique

issues going to his integrity and credibility. See, e.g., Jovel v. Boiron, Inc., No. 11-cv-10803, 2014

WL 1027874, at *3 (C.D. Cal. Feb. 27, 2014); Alakozai v. Chase Inv. Servs. Corp., No. CV 11-

09178, 2014 WL 5660697, at *14 (C.D. Cal. Oct. 6, 2014). As the Court is aware, in the days before

his resignation, Benedict surreptitiously imaged his work computer in obvious breach of his HP

confidentiality agreement. See Dkt. #100, 161. Even apart from HP’s counterclaims, serious

questions exist as to why he would image his entire work computer and whether his explanation –

that he simply wanted to keep some personal files – is credible.

Benedict also seeks to certify California meal-and-rest-break claims, which are derivative of

the misclassification claim and properly denied for the reasons above. Moreover, Plaintiffs offer no

evidence that HP systematically denied class members meal and rest periods, and the mere absence

of a written policy, by itself, does not compel certification. See Vasquez v. First Student, Inc., No.

14-CV-06760, 2015 WL 1125643, at *9 (C.D. Cal. Mar. 12, 2015); Dailey v. Sears, Roebuck & Co.,


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214 Cal. App. 4th 974, 1002 (2013). Indeed, California class members testified that they had no

issues taking such breaks. See, e.g., Halton ¶ 27; Gyambavantha ¶ 18; Miranda ¶ 12.

3. Colorado

Mustain too has injected into this case extraneous claims that would distract from any trial,

and thus render him atypical. Prior to leaving HP, Mustain was promoted into a different Job Code

as a Technology Consultant (“TC”) III. Despite abandoning the claims on behalf of other employees

in that job code, Mustain is still purporting to pursue his individual claims for time as a TC III,

contending that his job duties did not change. Ex. 11 (Mustain) at 23:8-11; 60:12-22; 174:22-25.

That theory – that an employee’s actual duties do not necessarily align with the Job Architecture –

runs counter to the premise of Plaintiffs’ class theory, i.e., that the Job Architecture is dispositive.

E. Plaintiffs Also Fail to Establish Superiority

In order to show “superiority” under Rule 23(b)(3), plaintiff must show that a class action

would be superior to individual lawsuits by the putative class Plaintiffs fail to establish the requisite

superiority because each putative class member will need to “litigate numerous and substantial

separate issues to establish his or her right to recover individually.” Zinser , 253 F. 3d at 1192.

Indeed, Plaintiffs have failed (and do not even attempt) to describe their trial plan. See id. at 1189

(noting plaintiffs’ “burden of demonstrating ‘a suitable and realistic plan for trial of the class

claims’” and a court “cannot rely merely on assurances of counsel that any problems with

predominance or superiority can be overcome”); Badella v. Deniro Mktg LLC, No. C 10-03908,

2011 WL 5358400, at *12-13 (N.D. Cal. Nov. 4, 2011) (not superior due to, among other things,

“Plaintiff’s lack of any suggestions, much less a plan,” to manage the case for trial).

V. CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion should be denied.

Dated: June 23, 2015 SIDLEY AUSTIN LLP

By: /s/ Wendy Lazerson Wendy M. Lazerson Attorneys for Defendant and Counterclaim Plaintiff Hewlett-Packard Company


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PLTFS’ REPLY ISO MTN FOR CLASS CERT

PURSUANT TO R. 23 CASE NO. 13-0119 BLF

Kelly M. Dermody (Cal. Bar No. 171716)Daniel M. Hutchinson (Cal. Bar No. 239458) Anne B. Shaver (Cal. Bar No. 255928) Marc A. Pilotin (Cal. Bar No. 266369) LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-Mail: [email protected] E-Mail: [email protected] E-Mail: [email protected] E-Mail: [email protected] Jahan C. Sagafi (Cal. Bar No. 224887) OUTTEN & GOLDEN LLP One Embarcadero Center, 38th Floor San Francisco, CA 94111 Telephone: (415) 638-8800 Facsimile: (415) 638-8810 E-Mail: [email protected] Adam T. Klein (admitted pro hac vice) Juno Turner (admitted pro hac vice) OUTTEN & GOLDEN LLP 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005 E-Mail: [email protected] E-Mail: [email protected] Attorneys for Plaintiffs and Proposed Class Members


SAN JOSE DIVISION


Plaintiffs,

v.

HEWLETT-PACKARD COMPANY,

Defendant.

Case No. C 13-0119 BLF

PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION PURSUANT TO RULE 23

Date: July 30, 2015 Time: 9:00 a.m. Judge: Hon. Beth Labson Freeman Crtrm: 3, 5th Floor


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TABLE OF CONTENTS

Page

1265559.1 - i -

PLTFS’ REPLY ISO MTN FOR CLASS CERT PURSUANT TO R. 23

CASE NO. 13-0119 BLF

I. INTRODUCTION ................................................................................................................. 1

II. ARGUMENT ......................................................................................................................... 2

A. HP’s Employee Declarations Are Unreliable Statements Obtained from Captive, Incumbent Employees under Duress. ............................................................. 2

B. HP Ignores or Mischaracterizes Plaintiffs’ Common Proof, Which Is Consistent with HP’s Employee Declarations. ............................................................. 4

1. HP’s Job Architecture is common proof of TSCs’ primary duties. ..................... 5

2. The uniform process that TSCs follow to troubleshoot customer problems is also common proof of TSCs’ primary job duties. ............................................ 6

3. HP’s declarations from TSCs working in proactive roles are further common evidence that TSCs have the same primary duties. ............................... 8

C. HP Misstates the Law Governing Class Certification................................................. 10

D. The Named Plaintiffs Are Typical and Adequate. ...................................................... 13

1. Plaintiff Viera may represent the Massachusetts class. ..................................... 13

2. Plaintiff Benedict may represent the California class. ....................................... 14

3. Plaintiff Mustain may represent the Colorado class. ......................................... 15

III. CONCLUSION .................................................................................................................... 15


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Page

1265559.1 - ii -



Cases

Alakozai v. Chase Inv. Servs. Corp., No. 11 Civ. 09178, 2014 WL 5660697 (C.D. Cal. Oct. 6, 2014) .............................................. 14

Belt v. Emcare, Inc., 299 F. Supp. 2d 664 (E.D. Tex. 2003) ......................................................................................... 3

Billhofer v. Flamel Techs., S.A., No. 07 Civ. 9920, 2010 WL 3703838 (S.D.N.Y. Sept. 21, 2010) ............................................. 13

Birmingham Steel Corp. v. Tenn. Valley Auth., 353 F.3d 1331 (11th Cir. 2003).................................................................................................. 13

Boyd v. Bank of Am. Corp., 300 F.R.D. 431 (C.D. Cal. 2014) ........................................................................................... 5, 13

Brewer v. Gen. Nutrition Corp., No. 11-CV-3587 YGR, 2014 WL 5877695 (N.D. Cal. Nov. 12, 2014) .................................... 15

Brown v. Nucor Corp., 785 F.3d 895 (4th Cir. 2015)........................................................................................................ 3

Camp v. Alexander, 300 F.R.D. 617 (N.D. Cal. 2014) ................................................................................................. 3

Combs v. Skyriver Commc’ns, Inc., 159 Cal. App. 4th 1242 (Cal. Ct. App. 2008) ............................................................................ 11

Cruz v. Lawson Software, Inc., 764 F. Supp. 2d 1050 (D. Minn. 2011) ...................................................................................... 11

Curry v. Matividad Med. Ctr., No. 11-04662, 2013 WL 2338110 (N.D. Cal. May 28, 2013) ................................................... 11

Hammitt v. Lumber Liquidators, Inc., 19 F. Supp. 3d 989 (S.D. Cal. 2014) .......................................................................................... 14

Harris v. Vector Mktg. Corp., 753 F. Supp. 2d 996 (N.D. Cal. 2010) ....................................................................................... 14

In re Computer Memories Secs. Litig., 111 F.R.D. 675 (N.D. Cal. 1986) ............................................................................................... 14

In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953 (9th Cir. 2009)................................................................................................ 5, 6, 8

Jimenez v. Allstate Ins. Co., No. LA CV10-08486 JAK, 2012 WL 1366052 (C.D. Cal. Apr. 18, 2012), aff'd, 765 F.3d 1161 (9th Cir. 2014), cert. denied, No. 14-910, 2015 WL 355696 (U.S. June 15, 2015) ............................................ 15

Jovel v. Boiron, Inc., No. 11-CV-10803-SVW-SHX, 2014 WL 1027874 (C.D. Cal. Feb. 27, 2014) ......................... 14

Kleiner v. First Nat’l. Bank of Atlanta, 751 F.2d 1193 (11th Cir. 1985).................................................................................................... 3

Krzesniak v. Cendant Corp., No. C 05-05156 MEJ, 2007 WL 1795703 (N.D. Cal. June 20, 2007) ....................................... 15


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Page

1265559.1 - iii - PLTFS’ MTN FOR CLASS CERT PURSUANT TO R. 23 CASE NO. 13-0119 BLF

Marlo v. UPS, 639 F.3d 942 (9th Cir. 2011)...................................................................................................... 11

Mevorah v. Wells Fargo Home Mortg., Inc., No. 05-1175, 2005 WL 4813532 (N.D. Cal. Nov. 17, 2005) ...................................................... 3

Nelson v. Avon Prods., Inc., No. 13–cv–02276–BLF, 2015 WL 1778326 (N.D. Cal. Apr. 17, 2015) ............................... 8, 13

Orphanos v. Charles Indus., No. 95 C 4039, 1996 WL 437380 (N.D. Ill. July 29, 1996) ...................................................... 10

Perez v. Allstate Ins. Co., No. 11-1812, 2014 WL 4635745 (E.D.N.Y. Sept. 16, 2014) ................................................ 8, 15

Santiago v. Amdocs, Inc., No. 10-4317, 2013 WL 5444324 (N.D. Cal. Sept. 30, 2013) .................................................... 11

Satchell v. FedEx Exp., No. 03 Civ. 2659 SI, 2006 WL 3507913 (N.D. Cal. Dec. 5, 2006) ........................................... 15

Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234 (2d Cir. 2011) ....................................................................................................... 13

Sirko v. IBM, No. CV 13–03192 DMG (SSx), 2014 WL 4452699 (C.D. Cal. Sept. 3, 2014) ................... 10, 11

Valles v. IBM, No. 09-202, 2010 WL 9434915 (C.D. Cal. May 6, 2010) ......................................................... 11

Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935 (9th Cir. 2009)........................................................................................................ 2

Statutes

Cal. Lab. Code § 515.5 .................................................................................................................. 12

Mass Gen. Laws ch. 151, § 1A(3) .................................................................................................. 12

Other Authorities

7 C.C.R. § 1103-1(5) ...................................................................................................................... 12

8 Cal Code. Regs. § 11040(2) ........................................................................................................ 12

29 C.F.R. § 541.200 ....................................................................................................................... 12

454 Mass. Code Regs. § 27.03(3) .................................................................................................. 12


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I. INTRODUCTION

HP focuses its opposition almost exclusively on the purported complexity and difficulty of

class members’ work, a merits issue that is not presently before the Court. In so doing, HP misses

the mark, failing to undermine Plaintiffs’ showing that class certification is appropriate.

HP’s opposition is flawed for four primary reasons. First, HP’s opposition rests

substantially on declarations it extracted from current employees. These declarations do little, if

anything, to combat Plaintiffs’ common evidence because, as courts routinely find, such

declarations are unreliable given the coercive nature of the employer-employee relationship.

These declarations are particularly unreliable in light of the circumstances in which they were

obtained. See § II.A.

Second, HP ignores or mischaracterizes Plaintiffs’ common proof that all of the Technical

Solutions Consultants (“TSCs”) in the proposed classes share the same primary job duties. For

instance, HP dismisses Plaintiffs’ reliance on its Job Architecture (“JA”) Policy, notwithstanding

Rule 30(b)(6) testimony that the Policy defines the “[p]rimary” or “key” duties “that you would

expect a particular job to have.” Ex. 1,1 Albert Dep. at 134:4-5, 19-21; see also id. at 99:1-4

(“[T]he architecture was designed so that you map the employees based upon the content of the

work that they’re performing.”). Similarly, HP downplays the common processes comprising

TSC work, which include opening a case ticket, requesting the customer’s log files, researching

internal repositories and the internet for solutions, testing those solutions in a simulated lab

environment, and escalating to R&D. Indeed, HP’s own employee declarations uniformly

describe these processes as their primary job duties. In fact, other than the way HP’s declarants

characterize those duties (e.g., as high-level versus routine), the majority of the declarations are

not materially different from those Plaintiffs submitted in terms of the job they describe.

HP instead highlights declarations from certain class members called Technical Account

Managers (“TAMs”), Remote Support Account Advocates (“RSAAs”), Customer Advocates

(“CAs”), Duty Managers (“DMs”), or Named Account Support Engineers (“NASEs”), insisting

1 Unless otherwise stated, citations to exhibits are to exhibits of the Declaration of Marc A. Pilotin in support of this brief, filed herewith.


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that these class members do substantively different work. But upon closer inspection, these

employees also perform customer support work in much the same way as the other class

members. See § II.B.3. Both the language of their declarations, and their deposition testimony,

confirm that their primary duties fall squarely in the TSC box. Id. Indeed, this was further

underscored in the testimony of the sample of HP declarants who were deposed.2

Third, HP inappropriately directs the Court to inapposite case law addressing the merits of

whether any overtime exemption applies, instead of case law on the propriety of certification

under Rule 23. What matters for purposes of class certification is whether there is common proof

of class members’ primary duties, not whether those duties qualify them for any of the relevant

exemptions to the overtime rules of California, Colorado, or Massachusetts. Consistent with

well-settled law, Plaintiffs’ common proof—echoed by HP’s employee declarations—permits

adjudication on a classwide basis and establishes that a classwide proceeding will be the most

efficient way to adjudicate the claims of these 400 employees.3 Vinole v. Countrywide Home

Loans, Inc., 571 F.3d 935, 947 (9th Cir. 2009) (citing cases).

Finally, the named Plaintiffs are typical of and adequate representatives for the proposed

classes. HP’s potpourri of arguments against them is unfounded.

Plaintiffs move to certify state classes consisting of only one job title, with a uniform

description of duties, a uniform exempt classification, corporate testimony confirming the

common role, and class member testimony evidencing uniform adherence to the same technical

troubleshooting process and common duties across the HP organization. The Court should certify

the proposed classes.

II. ARGUMENT

A. HP’s Employee Declarations Are Unreliable Statements Obtained from Captive, Incumbent Employees under Duress.

Rather than directly contest Plaintiffs’ common proof, HP dedicates its opposition to

2 See, e.g., Ex. 6, Saechao Dep. at 33:18-34:3 (describing TSC III work as “technical troubleshooting”), 35:4-12 (same for TSC II); Ex. 7, Lewis Dep. at 31:2-6 (same for TSC III work); Ex. 8, Grinnell Dep. at 35:1-9 (same for TSC III work), 39:16-20 (same for TSC II). 3 HP does not dispute that Plaintiffs and the proposed classes meet the requirements of Rule 23(a)(1) and (2) (numerosity and commonality). Therefore, the only elements of Rule 23 that are in dispute are (b)(3) (predominance and superiority) and (a)(3)&(4) (adequacy and typicality).


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declarations from current employees about the purported complexity of their work. Such

declarations generally go to the merits of HP’s exemption defenses, which are not at issue at class

certification. However, insofar as the Court considers them here, because all of HP’s employee

declarations are from current employees, the Court should accord them little weight.

Many courts have recognized that employer-solicited declarations are inherently suspect

and unreliable due to the nature of the relationship between an employer and its captive

employees. See Camp v. Alexander, 300 F.R.D. 617, 622 (N.D. Cal. 2014) (noting “courts

have . . . noted the potential for coercion in situations where employers contact putative class

member employees”) (citing cases) (Laporte, M.J.); Mevorah v. Wells Fargo Home Mortg., Inc.,

No. C 05-1175, 2005 WL 4813532, at *4 (N.D. Cal. Nov. 17, 2005) (“‘[W]here the absent class

member and the defendant are involved in an on-going business relationship, such as employer-

employee, any communications are more likely to be coercive.’”) (quoting Belt v. Emcare, Inc.,

299 F. Supp. 2d 664, 668 (E.D. Tex. 2003)) (Patel, J.); see also Brown v. Nucor Corp., 785 F.3d

895, 914 (4th Cir. 2015) (cautioning courts to “proceed with eyes open to the imbalance of power

and competing interests” when assessing the probative value of statements obtained from captive

employees); Kleiner v. First Nat’l Bank of Atl., 751 F.2d 1193, 1202 (11th Cir. 1985) (same).

Here, the risk of coercion is amplified because HP has engaged in multiple rounds of layoffs over

the past several years, during which many class members have lost their jobs. See Alexander

Decl. ¶ 4 (HP has pursued since 2012 a “multi-year restructuring initiative to . . . reduce its

workforce by approximately 27,000 employees”) (ECF #317-4). Such a risk is especially acute

where HP is the sponsor for an employee’s work visa, which is the case for at least one of its

declarants. Jagannath Dep. at 60:8-23.

In addition, when deposing just six of HP’s nineteen employee declarants,4 Plaintiffs

learned the following troubling facts: (1) supervising managers requested that the employee

declarants attend an interview and submit a declaration supporting HP, meaning that the people in

charge of the declarants’ careers would know whether or not they agreed to help the company and

4 Plaintiffs deposed only these declarants due to the limited amount of time they had available before their reply brief deadline, which followed the July 4 holiday weekend.


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expressed a clear preference that they do so;5 (2) employees were told that they could either

participate in the lawsuit with Plaintiffs or talk to HP’s lawyer, but not both (or neither) – in

essence, they had to pick a side, and it was clear which one they were supposed to pick;6 (3)

employees were not given the name or contact information for Plaintiffs’ counsel;7 (4) although

the declarants stated under oath in their declarations that they had seen certain documents

included as exhibits to Plaintiffs’ motion, some declarants had actually never been shown the

class certification exhibits;8 and (5) employees were not told that their rights in this lawsuit could

be affected by their declarations, in further contradiction to the boilerplate language stating the

opposite in the lawyer-drafted declarations.9 Demonstrating HP’s declarants’ unfamiliarity with

their own statements, at least one declarant did not understand the terms used in his declaration to

suggest he performed complex work. Compare Lewis ¶ 14 (describing workaround as part of his

job duties) with Ex. 7, Lewis Dep. at 52:21-22 (testifying that he was not familiar with the term

workaround).

In light of these facts, and the generally suspect nature of employer-solicited declarations,

HP’s declarations are unreliable and do not outweigh the common evidence, outlined below and

in Plaintiffs’ opening brief, demonstrating that TSCs perform the same work. The Court should

consider them of little, if any, evidentiary value.

B. HP Ignores or Mischaracterizes Plaintiffs’ Common Proof, Which Is Consistent with HP’s Employee Declarations.

In choosing to highlight its dubious employee declarations, HP leaves uncontroverted the

common proof Plaintiffs present, including evidence concerning HP’s JA Policy and the uniform

process TSCs follow when performing their jobs. In any event, as explained further below, HP’s

declarations—insofar as the Court lends them any credence—are consistent with Plaintiffs’

5 Ex. 9, DiPinto Dep. at 31:7-15; Ex. 10, Jaroszynski Dep. at 15:17-17:14, 32:21-34:5; Ex. 11, Jagannath Dep. at 39:7-24, 40:25-41:11; Ex. 6, Saechao Dep. at 7:11-22; Ex. 7, Lewis Dep. at 7:7-16; Ex. 8, Grinnell Dep. at 8:13-24, 21:25-22:2 (“I think my manager may be grateful that I'm willing to spend the time giving the statement. . . .”). 6 Ex. 9, DiPinto Dep. at 105:7-106:8, 116:22-25; Ex. 6, Saechao Dep. at 77:5-22. 7 Ex. 10, Jaroszynski Dep. at 91:13-15; Ex. 6, Saechao Dep. at 14:6-11; Ex. 7, Lewis Dep. at 14:16-23; Ex. 8, Grinnell Dep. at 16:18-20. 8 Ex. 7, Lewis Dep. at 24:6-25:4; Ex. 6, Saechao Dep. at 29:2-15. 9 Ex. 11, Jagannath Dep. at 133:15-134:4; Ex. 7, Lewis Dep. at 46:1-47:5.


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common evidence that TSCs share the same primary job duties.

1. HP’s Job Architecture is common proof of TSCs’ primary duties.

As stated above, “a [uniform] exemption policy is a permissible factor for consideration

under Rule 23(b)(3).” In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953, 957

(9th Cir. 2009). But HP’s JA Policy is more than just a uniform exemption policy. According to

corporate representative Michelle Albert, the JA Policy is common evidence of TSCs’ primary

job duties. Ms. Albert testified that “the architecture was designed so that you map the

employees based upon the content of the work that they’re performing,” and managers categorize

employees “into the architecture based upon the work that they are performing.” Ex. 1, Albert

Dep. at 99:1-4; 140:8-10. Her testimony also makes clear that the job description provides a clear

outline of the TSCs’ roles and responsibilities. Id. at 88:25-89:3 (“If I’m a TC1, the job

description clearly outlines for me what a TC1 is, in terms of the roles and responsibilities, the

knowledge, scope and impact.”). That HP is able to define the primary, key duties of class

members at the corporate level is significant proof that their primary duties are common across

the organization. Boyd v. Bank of Am. Corp., 300 F.R.D. 431, 443 (C.D. Cal. 2014) (certifying

class where defendant’s 30(b)(6) representative testified as to class members’ primary duties).

Critically, HP’s own declarants describe duties—such as recommending that a customer replace

hardware,10 or evaluating customer configurations,11 or proactively advising customers on

recommended upgrades and configurations12—that are consistent with the responsibilities

contained in the TSC job description (Ex. 5, highlighted version attached hereto as App’x A), and

therefore support its value as common proof.

HP’s attempt to downplay the significance of its JA Policy, and the TSC job description

promulgated thereto, is disingenuous. In fact, HP underwent an extensive Job Family Alignment

project from 2006 to 2007 that resulted in the current policy and job descriptions. Ex. 1, Albert

10 Ady ¶ 11; Clark ¶ 18; Grinnell ¶ 13; Frenna ¶ 23; Grinnell ¶ 13; Lewis ¶ 9; Stokes ¶ 19. These declarations are contained in HP’s compendium of declarations (ECF #331). 11 Ady ¶ 11; Burkholder ¶¶ 4, 7; Frenna ¶ 11; Grinnell ¶ 9; Inghram ¶ 6; Jagannath ¶ 7; McKenna ¶ 10; Miranda ¶ 6; Saechao ¶ 9; Workman ¶¶ 9-10; Ex. 10, Jaroszynski Dep. at 72:7-73:10. 12 Ady ¶ 11; Burkholder ¶ 9; Clark ¶ 18; Frenna ¶ 17; Gill ¶¶ 5, 11; Grinnell ¶ 15; Gyambavantha ¶ 6; Halton ¶ 22; Inghram ¶ 6; Jagannath ¶ 9; Jaroszyski ¶ 14; Lewis ¶ 15; Miranda ¶ 5; Saechao ¶ 14; Stokes ¶ 5; Workman ¶ 10.


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Dep. at 129:4-131:7. Pursuant to this project, HP “document[ed] the responsibilities and

requirements with each particular job level in the job family” and “worked with subject matter

experts to understand what each job was doing,” including interviewing “individual managers to

get an even deeper understanding of the - let’s say the roles and responsibilities of a TC1 versus a

TC2.” Id. HP’s self-serving manager declarations stating that the JA Policy is merely “HR

jargon” and does not really reflect class members’ job duties are belied by this record. In fact,

such managers, or their peers, are the “subject matter experts” who drafted the job responsibilities

shown above in the first place. Id. at 131:3-7.

The declarations and testimony adduced by Plaintiffs establish that the “centralized rules”

HP’s JA Policy sets forth “reflect the realities of the workplace” and “suggest a uniformity among

employees that is susceptible to common proof.” In re Wells Fargo, 571 F.3d at 958-59.

2. The uniform process that TSCs follow to troubleshoot customer problems is also common proof of TSCs’ primary job duties.

The record is undisputed that TSCs’ primary job duty is to provide troubleshooting and

break/fix support to HP’s customers by following a consistent troubleshooting process, which

includes opening a case ticket, requesting the customer’s log files, researching internal

repositories and the internet for solutions, performing trial and error testing of those solutions in a

simulated lab environment, and escalating problems that they cannot resolve or that require a

change to the underlying product, to R&D. HP’s own declarations and the testimony of its

witnesses are consistent with the testimony of Plaintiffs’ witnesses, confirming the uniformity of

this process:

• Once a ticket is opened or escalated, TSCs review the customer’s log files for information on the problem.13

• To assist in troubleshooting, TSCs search the relevant knowledge base for known

13 Clark ¶ 11; DiPinto ¶¶ 10-11; Grinnell ¶ 10; Halton ¶ 14; Jagannath ¶ 5; Jaroszynski ¶ 9; McKenna ¶ 9; Saechao ¶ 10; Stokes ¶ 15; Workman ¶ 6; see also Ex. 12, Austin Dep. at 58:11-25; Ex. 13, Chang Dep. 64:19-21;115:12-116:11; Ex. 9, DiPinto Dep. at 20:21-21:8, 22:2-23, 86:4-87:10, 91:17-92:22, 94:13-95:1; Ex. 14, Ford Dep. at 103:23-104:9; Ex. 15, Ihling Dep. at 28:19-29:3; Ex. 16, Jessen Dep. at 77:20-78:23; Ex. 17, Kennedy Dep. at 97:23-98-3; Ex. 18, Levin Dep. at 134:18-135:3; Ex. 19, O’Toole Dep. at 95:24-25; Ex. 20, Roberts Dep. at 132:16-23; Ex. 21, Shropshire Dep. at 111:8-18; Ex. 11, Jagannath Dep. at 120:14-22; Ex. 6, Saechao Dep. at 45:18-46:9; Ex. 7, Lewis Dep. at 34:10-24; Ex. 10, Jaroszynski Dep. at 85:12-86:3.


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problems and solutions.14

• TSCs then test possible solutions in a simulated customer environment, called a “lab”, to make sure they work.15

• If the TSC cannot resolve the problem, they elevate it to the next level of TSC, or, for

Level 3 engineers, to R&D. All problems with the product are referred to R&D.16

HP’s argument that TSCs do not adhere to common processes because some declarants

were unfamiliar with the exhibits to Plaintiffs’ motion misses the point. Even if declarants had

not previously seen these specific process documents—either because they were not in the group

that the document pertained to or, in the case of Plaintiffs’ declarants, because they were versions

created after they left HP—deponents consistently acknowledged the existence of the procedures

identified in the documents.17 Moreover, declarants confirmed at deposition that they adhered to

HP’s procedures when performing the steps set forth above.18 Finally, as noted above, certain of

14 Ady ¶ 13; Burkholder ¶ 18; Clark, ¶ 14; DiPinto ¶ 12; Frenna ¶ 12; Gill ¶ 14; Grinnell ¶ 27; Gyambavantha ¶ 15; Halton ¶¶ 18-19; Jaroszynski ¶ 8; Lewis ¶ 13; Multhauf ¶ 10; Saechao ¶ 11; Stokes ¶ 24; Workman ¶ 23; see also Ex. 12, Austin Dep. at 63:8-15; Ex. 13, Chang Dep. at 60:13, 116:22; Ex. 9, DiPinto Dep. at 61:16-62:8, 102:7-103:4; Ex. 14, Ford Dep. at 34:24-35:11, 42:20-43:1, 61:17-62:1, 71:3-19, 73:11-18; Ex. 15, Ihling Depo. at 28:17-18; Ex. 16, Jessen Dep. at 81:8-20; Ex. 17, Kennedy Dep. at 85:12-22, 121:12-19, 211:2-212:19; Ex. 19, O’Toole Dep. at 224:16-226:5, 94:1-18, 138:1-7, 140:25-141:14; Ex. 21, Shropshire Dep. at 189:9-11, 189:24-190:13, 190:19-191:8, 191:16-21; Ex. 11, Jagannath Dep. at 75:19-76:9, 79:15-80:13, 112:11-17; Ex. 10, Jaroszynski Dep. at 65:21-66:5; Ex. 6, Saechao Dep. at 47:3-48:12 (testifying that he finds answers about half the time either in knowledge base or by Googling it). 15 Burkholder ¶ 7; Clark ¶ 17; DiPinto ¶ 13; Grinnell ¶ 11; Gyambavantha ¶ 15; Halton ¶ 21; Jagannath ¶ 8; Lewis ¶ 14; McKenna ¶ 6; Saechao ¶ 13; Workman ¶ 13; see also Ex. 12, Austin Dep. at 86:19-87:3; Ex. 13, Chang Dep. at 84:24-85:5; Ex. 9, DiPinto Dep. at 25:2-10, 91:17-92:22, 104:4-105:1; Ex. 14, Ford Dep. at 90:8-13; Ex. 11, Jagannath Dep. at 75:19-76:9; Ex. 16, Jessen Dep. at 84:16-85:3; Ex. 19, O’Toole Dep. at 76:22-24; Ex. 6, Saechao Dep. at 49:20-55:15. 16 Clark ¶ 20; DiPinto ¶ 15; Frenna ¶ 9; Gill ¶ 10; Gyambavantha ¶ 15; Halton ¶ 25; Jaroszynski ¶ 13; Lewis ¶ 14; McKenna ¶ 8; Multhauf ¶ 13; Stokes ¶ 6; Workman ¶ 22; see also Ex. 12, Austin Dep. at 107:2-7; Ex. 13, Chang Dep. at 20:2; Ex. 9, DiPinto Dep. at 21:12-16; 71:1-3, 91:17-92:22, 93:25-94:8; Ex. 14, Ford Dep. at 36:7-37:1; Ex. 22, Greenspan Dep. at 117:17-24; Ex. 11, Jagannath Dep. at 77:7-24; Ex. 16, Jessen Dep. at 89:16-90:12, 151:25-152:4; Ex. 17, Kennedy Dep. at 116:5-12, 228:12-24; Ex. 19, O’Toole Dep. at 91:3-92:1, 95:15-96:3, 99:1-100:11, 148:22-25, 222:9-14; Ex. 21, Shropshire Dep. at 19:16-22, 79:6-25, 85:5-13, 112:2-5; 187:16-19; Ex. 6, Saechao Dep. at 54:16-55:15; Ex. 7, Lewis Dep. at 35:16-36:3; Ex. 10, Jaroszynski Dep. at 60:14-63:2, 87:22-89:5 (“Now, if you’re saying to fix the code in our application, I do not touch that code. . . . I don’t have access to that code.”). 17 Ex. 13, Chang Dep. at 107:8-9 (“I haven’t seen the documents, but I follow most of the process mentioned here”); id. at 98:4 -5 (“I haven’t seen this document, but I am aware of some of the contents”); Ex. 14, Ford Dep. at 154:6-19, 155:16-21; Ex. 16, Jessen Dep. at 72:2-11, 73:4-74:2, 74:7-12, 76:11-77:16. 18 Ex. 13 , Chang Dep. at 96:13-14; Ex. 14, Ford Dep. at 34:24-35:11, 36:7-37:1, 40:12-19, 41:2-8, 43:8-15, 44:3-10, 45:5-18, 52:17-53:3, 54:25-55:9, 76:12-25, 175:1-10; Ex. 15, Ihling Dep. at


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HP’s declarants testified that they had actually never been shown the class certification exhibits,

contradicting statements made about these exhibits in their declaration.

In sum, Plaintiffs offer ample common proof of TSCs’ job duties, such that common

issues will predominate over individual ones in the adjudication of Plaintiffs’ claims. See In re

Wells Fargo., 571 F.3d at 958 (“[C]omprehensive uniform policies detailing the job duties and

responsibilities of employees carry great weight for certification purposes.”); Nelson v. Avon

Prods., Inc., No. 13-cv-02276-BLF, 2015 WL 1778326, at *9 (N.D. Cal. Apr. 17, 2015)

(“[P]laintiffs can still certify a class when they show ‘uniformity in work duties and experiences

that would diminish the need for individualized inquiry.’”) (Freeman, J.); Perez v. Allstate Ins.

Co., No. 11-1812, 2014 WL 4635745, *20 (E.D.N.Y. Sept. 16, 2014) (predominance met where

“the primary job duties of [class members] are largely similar for purposes of the . . . exemption

determination.”).

3. HP’s declarations from TSCs working in proactive roles are further common evidence that TSCs have the same primary duties.

Ignoring the record of the extensive efforts HP has dedicated to ensuring that support

employees are given the TSC job title and grouped together—HP argues that class certification

should be denied because some TSCs play a proactive, consulting role. Notwithstanding the

infirmities of HP’s declaration evidence (see § II.A), HP’s declarations from TAMs, RSAAs, and

NASEs constitute additional evidence that TSCs have the same primary duties. The declarations

are similar to the rest of the proposed classes and still fall within the TSC responsibilities

enumerated above.19

46:21-22; Ex. 16, Jessen Dep. at 55:11-20, 56:18-57:8, 60:15-22, 62:11-25, 66:6-24, 67:21-68:13, 78:9-23, 92:18-93:15, 112:10-19, 142:18-24, 143:5-15, 151:6-14, 161:4-22; Ex. 17, Kennedy Dep. at 99:25-100:17, 187:17-25, 189:12-190:2, 190:4-15, 190:22-191:10, 194:2-14, 194:15-195:3, 205:13-206:16, 207:20-208:14, 210:6-20, 211:20-212:1; Ex. 19, O’Toole Dep. at 89:17-24, 154:24-156:13, 162:24-163:6, 164:20-166:5, 168:11-25, 169:18-170:5, 218:10-219:7; Ex. 21, Shropshire Dep. at 19:16-22, 83:19-84:4, 84:14-19, 85:15-86:2, 86:8-18, 99:11-17, 103:15-104:3, 113:11-13, 154:21-155:11, 186:23-187:10, 196:20-197:2, 202:19-25; Ex. 7, Lewis Dep. at 48:1-9; Ex. 8, Grinnell Dep. at 87:11-22. 19 None of HP’s employee declarants state that they were CAs or DMs. The only testimony in the record from such employees comes from Plaintiffs’ witnesses, who testified that their work was to assist customers with technical troubleshooting, or, if it was above their level, to route the ticket to a higher level TSC. Ex. 18, Levin Dep. at 26:2-8 (As a CA, “we were the front line. So we would have clients call in asking [] for technical support. So we would kind of be the baseline as far as. . . yes, that’s something we could answer, or no, that’s a little but more complex so we


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First, these class members, like other TSCs, provide technical support for customers using

HP software or hardware products.20 The fact that some customers paid more for a higher level

of technical support is immaterial, as is the fact that TSCs may be assigned to support just one or

two such high-end customers at a time. It does not change the nature of the work.

Second, these class members help resolve customers’ problems through the

troubleshooting ticket process.21 In other words, these employees are still providing support for

customers through the same channels and procedures as all TSCs; the customer has simply paid

for a dedicated TSC to pay special attention to their issues and make sure their tickets are

processed efficiently and to the their satisfaction.

Third, like the other TSCs, their roles are purely support—they do not develop products,

product upgrades, or fixes for products. They enlist HP’s engineers to perform these tasks.22

In addition, HP is intentionally organized so that Technology Consultants (“TCs”) are

separated from technical support workers. In each organization in which class members work,

there is both a support group and a consulting group: TSCs constitute the support group, while

TCs, a job title not at issue here,23 are in the consulting group. Ex. 2, Triolo Dep. at 29:13-30:14;

Ex. 3, Kumar Dep. at 57:6-14.24 Consistent with this carefully designed corporate organization,

will create a ticket and assign it out[.]”); Ex. 15, Ihling Dep. at 62:14-22 (As a CA, she had a “personal queue . . . for the basic troubleshooting questions that [she] could address,” and she also “assign[ed] out tickets that came in that were beyond [her] technical scope or expertise.”). 20 Gill ¶ 4 (“My work as a TAM is to support specific high-profile customers.”); Gyambavantha ¶ 4 (“After becoming a TAM, I have taken on a proactive role providing dedicated an specialized support for certain premier customers.”); Jaroszynski ¶ 14 (“As a TAM, I provided dedicated engineering support for specific customers . . . .”); Miranda ¶ 4 (As an RSAA, “I was responsible for supporting the customer’s storage infrastructure.”). 21 Gill ¶ 8 (“I do a combination of monitoring support cases and occasionally handling the support cases myself.”); Halton ¶ 5 (“I either receive my cases through an elevation queue, or directly from a premier customer.”); Miranda ¶ 7 (“I monitored the support process and escalations for my accounts, and I helped determine whether any problems required further follow up with the engineers.”); Stokes ¶ 6 (“I monitored the support cases as a liaison for my customer.”). 22 Gill ¶ 10 (“[I]f there is a software bug, I engage the R&D team.”); Gyambavantha ¶ 10 (“In certain support cases, for example where there is a product defect or a bug, I engage the developers on calls with the customer.”); Halton ¶ 11 (it is “our development team” that “make[s] a change or product enhancement in the next version of the product”); Jaroszynski ¶ 13 (“[When] my initial investigation reveals that there is a systematic problem, or bug, in the software itself, [] I refer the issue to HP’s Development department to fix the bug.”). 23 Plaintiffs amended their proposed classes to exclude TCs after discovery revealed these facts. 24 See also Ex. 2, Triolo Dep. at 28:20-29:12 (in HP Software – Enterprise Security Products, “[t]he consulting group has a primary role to advise and consult our customers on utilizing our


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the alleged “consulting” work of the TAMs, RSAAs, and NASEs is limited to supporting the

existing infrastructure, such as recommending upgrades or part replacements. See Gill ¶ 5 (he

“make[s] recommendations on product improvements,” “consult[s] on and plan[s] the

implementation of a new upgraded product,” and “make[s] recommendations on whether

proactive improvements or other changes should be made to the system”); Gyambavantha ¶ 2 (“I

also make recommendations based on the customer’s environment. For example, if there are

updates to a customer’s programs, I will recommend whether or not the upgrade is necessary for

the particular customer.”); Halton ¶ 22 (describing “proactive work in my role as a NASE” and

“mak[ing] suggestions on upgrades and other changes so that the customer’s system works

better”).

Far from a reason to deny class certification, HP’s declarations from these allegedly

unique employees are actually further common proof of TSCs’ common primary duties.

C. HP Misstates the Law Governing Class Certification.

Tellingly, HP’s opposition is thin on Rule 23 jurisprudence, and instead focuses on its

unreliable declaration evidence to describe the purported complexity and difficulty of class

members’ work. However, “[a]t the class certification stage, it is not this Court’s role to

determine whether these IT professionals, individually or as a class, meet the conditions of the

[overtime] exemption[s].” Sirko v. IBM, No. CV 13–03192 DMG (SSx), 2014 WL 4452699, *9

(C.D. Cal. Sept. 3, 2014). Instead, the sole inquiry is whether Plaintiffs and the proposed classes

meet the requirements of Rule 23(a) and (b). Id. Accordingly, much of the case law HP cites is

inapposite because it refers to merits decisions on whether an individual plaintiff met the

requirements of various overtime exemptions. See HP Br. at 15-16 (citing Orphanos v. Charles

Indus., No. 95 C 4039, 1996 WL 437380 (N.D. Ill. July 29, 1996) (granting summary judgment

products” while “[t]he support organization is there to respond to customers’ questions, problems, inquiries about the product, in terms of performance and health”); Ex. 3, Kumar Dep. at 36:7-16; 65:21-24 (in Enterprise Group – Technology Services, “[u]nder Technology Services consulting, you consult on the infrastructure, you advise the customer on how to improve their existing infrastructure or proposed new infrastructure. Under the support model, you support the existing infrastructure,” by “diagnosing and resolving the customer’s problem.”); Ex. 4, Davis Dep. at 114:12-15; 54:5-55:6 (explaining HP Software Support Delivery “primarily deal[s] with a break fix situation, not consultancy on how to alter that product beyond what it was initially intended to do,” which is handled by the consultant team).


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as to individual plaintiff’s overtime claim); Curry v. Matividad Med. Ctr., No. 11-04662, 2013

WL 2338110 (N.D. Cal. May 28, 2013) (same); Valles v. IBM, No. 09-202, 2010 WL 9434915

(C.D. Cal. May 6, 2010) (same); Combs v. Skyriver Commc’ns, Inc., 159 Cal. App. 4th 1242 (Cal.

Ct. App. 2008) (affirming same).

HP’s few Rule 23 decisions are factually distinguishable. In Santiago v. Amdocs, Inc., the

court denied certification to a proposed class of employees in fifty-one different job titles with

“highly divergent job duties” – a fact conceded by the plaintiffs there. No. 10-4317, 2013 WL

5444324, at *4-5 (N.D. Cal. Sept. 30, 2013) (Illston, J.). The Santiago plaintiffs’ evidence

focused primarily on the company’s job classification system. Id. at *1-2. However, unlike here,

that system neither determined the exemption status nor defined job duties for any particular

employee. Id. at *2.

In Sirko, the court likewise denied certification to a much broader class of employees than

is sought here, with no common set of duties. The proposed class fell into two job codes, but the

codes were not specific to a particular function, and included recovery managers, systems

programmers, systems administrators, database administrators, mainframe automation specialists,

software performance engineers, and storage resource managers, among others. Sirko, 2014 WL

4452699, at *1-3. For common evidence of job duties, plaintiffs relied on a survey designed and

implemented by plaintiffs’ counsel, which the court found unreliable, and just three class member

declarations. Id. at *2. The court held that, on this record, common proof did not predominate.

Id. at *13.

Similarly, in Marlo v. UPS, the plaintiff relied on a survey that the court found unreliable

and unrepresentative. 639 F.3d 942, 949 (9th Cir. 2011). The court also held that the plaintiff

could not rely exclusively on a uniform policy classifying employees as exempt, and that the

remainder of the plaintiff’s evidence was “not representative of the class and did not address the

‘primarily engaged’ element of the exemptions.” Id. Finally, Cruz v. Lawson Software, Inc., is

legally distinguishable because the court applied only the standards for FLSA decertification,

which are materially different than Rule 23, and is factually distinguishable because the collective

included three job categories with very different focuses: Business Consultant, Systems


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Consultant, and Technical Consultant. 764 F. Supp. 2d 1050, 1056 (D. Minn. 2011).

As shown above, Plaintiffs’ common proof does not suffer from these same deficiencies.

Plaintiffs do not rely on an untrustworthy survey (or any survey at all), or exclusively on a

uniform exemption policy. Instead, Plaintiffs marshal a broad spectrum of evidence sufficient to

establish the propriety of class certification. Plaintiffs seek certification of a class of employees

in a single job category: TSCs. HP’s JA Policy, its Rule 30(b)(6) witnesses’ testimony, and the

declarations and deposition testimony of class members provide robust common evidence of

TSCs’ job duties. And both parties present class member declarations and witness testimony

showing that TSCs follow the same troubleshooting procedures dictated by HP’s policies, which

are corroborated by documents setting forth those procedures.

This shared evidence pertains directly to the common (and predominate) issue of whether

class members meet the requirements of the exemptions asserted by HP: the administrative and

computer professional exemptions. HP Br. at 14. The wage and hour laws of each of the three

states for which Plaintiffs seek to certify a class recognize similar versions of the administrative

exemption, which requires an analysis of whether employees’ “primary duty consists of the

performance of office or non-manual work directly related to management policies or general

business operations of [the] employer or [the] employer’s customers,” and “require[s] the exercise

of discretion and independent judgment.”25 Similarly, California’s computer software employee

exemption requires an employee to be “primarily engaged” in specific types of tasks.26

With regard to both exemptions, predominance is satisfied where, as here, class members’

25 29 C.F.R. § 541.200; 8 Cal Code. Regs. § 11040(2); Mass Gen. Laws ch. 151, § 1A(3) & 454 Mass. Code Regs. § 27.03(3); 7 C.C.R. § 1103-1(5). 26 These include: (a) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications; (b) the design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; or (c) the documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems. Cal. Lab. Code § 515.5. Colorado and Massachusetts do not provide a computer professional exemption, but instead apply a general “professional” exemption. See 7 C.C.R. § 1103-1(5) (applying to “a salaried individual in a field of endeavor who has knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study”); 454 Mass. Code Regs. § 27.03(3) (providing that “professional person” under Massachusetts law “shall have the same meaning as set forth in 29 CFR Part 541”).


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primary duties can be ascertained via common evidence applicable to the class as a whole. See,

e.g., Nelson, 2015 WL 1778326, at *9-10; Boyd, 300 F.R.D. at 443.

D. The Named Plaintiffs Are Typical and Adequate.

HP’s arguments against the Named Plaintiffs’ typicality and adequacy fall short.

1. Plaintiff Viera may represent the Massachusetts class.

HP argues that Plaintiff Viera is an inadequate class representative because he received

severance pay, purportedly in exchange for, among other things, an agreement to waive his state

law claims and to refrain from bringing a class action. HP Br. at 23-24. This argument fails for

two reasons. First, HP has failed to produce any evidence that Vieira actually entered into an

agreement to waive those rights; there is no signed agreement. Second, a proposed class

representative’s inadequacy is not a proper basis for denial of certification, because the preferred

course is substitution of another class member in the inadequate representative’s place. See, e.g.,

Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 253 (2d Cir. 2011) (“[I]f, for some

reason it is later determined by the court that the representative Plaintiffs are inadequate, the court

could substitute another class plaintiff for the representative plaintiff in question.”); Birmingham

Steel Corp. v. Tenn. Valley Auth., 353 F.3d 1331 (11th Cir. 2003) (holding that courts favor

allowing a reasonable opportunity to substitute an adequate class representative); see also

Billhofer v. Flamel Techs., S.A., No. 07 Civ. 9920, 2010 WL 3703838, at *2 (S.D.N.Y. Sept. 21,

2010) (courts may withdraw and substitute plaintiffs during pendency of class action).

Next, HP argues that Vieira cannot represent the full Massachusetts class of 43 workers,

based on an overly-narrow mischaracterization of his job duties. The testimony of HP’s

declarants across Massachusetts confirms that they share common factual and legal issues

justifying certification. See DiPinto ¶¶ 6, 8. 10-16, 18; Jagannath ¶¶ 5, 8-9; McKenna ¶¶ 6, 9-10,

12. Deposition testimony from two of those declarants reveals significant similarities with the

rest of the proposed classes. Ex. 11, Jagannath Dep. 119:20-120:5, 137:16-138:5; Ex. 9, DiPinto

Dep. 20:21-21:8, 21:18-24, 22:2-23, 25:25-24, 98:25-99:15, 99:23-101:4. Likewise, HP’s

declarants reveal that they, like the other Massachusetts class members, had the primary duty of

monitoring, supporting, and troubleshooting HP software and hardware products for HP’s


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customers. See § II.B.

2. Plaintiff Benedict may represent the California class.

HP also attempts to conjure an adequacy problem from Benedict’s retention of HP

documents after his termination, a harmless and common occurrence among workers who use

employer-owned laptops to work remotely. HP Br. at 24. Although HP uses conjecture to

impugn Benedict’s “integrity and credibility,” there has been no finding that Benedict acted

improperly, and, in fact, he has provided detailed sworn testimony credibly explaining his

conduct and has returned all documents to HP. Ex. 23, July 15, 2013 Benedict Dep. at 13:3-17,

17:5-23, 20:3-12, 53:6-22, 71:10-72:9, 72:20-25, 85:9-20. Even legitimate concerns about

Benedict’s actions “do not automatically render a proposed class representative inadequate.”

Harris v. Vector Mktg. Corp., 753 F. Supp. 2d 996, 1015 (N.D. Cal. 2010) (citation omitted)

(Chen, J.); see also In re Computer Memories Secs. Litig., 111 F.R.D. 675, 682 (N.D. Cal. 1986)

(stating that “questions of personal integrity are but one factor the Court must consider in making

the adequacy determination.”); Jovel v. Boiron, Inc., No. 11-CV-10803-SVW-SHX, 2014 WL

1027874, at *3 (C.D. Cal. Feb. 27, 2014) (“If the credibility issues are only general in nature and

do not relate directly to material issues in the lawsuit, courts will not find a lead plaintiff

inadequate.”). In Jovel, which HP cites, the plaintiff’s conflicting accounts of whether he had

read an allegedly misleading label prior to purchasing a product went to the core of his consumer

claims. Alakozai v. Chase Inv. Servs. Corp., No. 11 Civ. 09178, 2014 WL 5660697 (C.D. Cal.

Oct. 6, 2014), on which HP also relies, is distinguishable. There, the insurance license of one of

the proposed class representatives had been revoked for “‘untrustworthy’ behavior.” Id. at *14.

The court found that this fact “raise[d] concern about his credibility, and consequently, his

adequacy as a Class representative.” Id. There has been no similar determination about

Benedict’s credibility here.

HP is incorrect that additional evidence for the derivative meal and rest break claims is

required. Because they are “derivative of [] misclassification claims,” Hammitt v. Lumber

Liquidators, Inc., 19 F. Supp. 3d 989, 998 (S.D. Cal. 2014), “the determination whether these

claims should be certified for class treatment depends on, and is governed by, the Court's


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determinations with respect to each of these underlying claims.” Jimenez v. Allstate Ins. Co., No.

LA CV10-08486 JAK, 2012 WL 1366052, at *16 (C.D. Cal. Apr. 18, 2012), aff'd, 765 F.3d 1161

(9th Cir. 2014), cert. denied, No. 14-910, 2015 WL 355696 (U.S. June 15, 2015); see also Brewer

v. Gen. Nutrition Corp., No. 11-CV-3587 YGR, 2014 WL 5877695, at *5 (N.D. Cal. Nov. 12,

2014) (same) (Gonzales Rogers, J.).

3. Plaintiff Mustain may represent the Colorado class.

Finally, the fact that Plaintiff Mustain has not abandoned his individual overtime claims

arising out of his time as a TC III has no bearing on his ability to represent a class of TSCs.

Courts routinely certify classes where the class representatives have individual claims in addition

to the class claims they seek to represent. See Perez, 2014 WL 4635745, at *18 (rejecting

argument that plaintiffs were inadequate because “there is no evidence that [named plaintiffs’]

retaliation claims will impair their ability to represent the interests of the . . . Class fairly and

adequately”); Satchell v. FedEx Exp., No. 03 Civ. 2659 SI, 2006 WL 3507913, at *1 (N.D. Cal.

Dec. 5, 2006) (rejecting “defendant's contention that the Court should de-certify the class because

named plaintiffs also allege non-class claims”) (Illston, J.); Krzesniak v. Cendant Corp., No. C

05-05156 MEJ, 2007 WL 1795703, at *9-12 (N.D. Cal. June 20, 2007) (granting class

certification where class representative also pled individual claims) (James, M.J.).

III. CONCLUSION

For the foregoing reasons, as well as the reasons set forth in Plaintiffs’ opening brief,

Plaintiffs respectfully request that the Court certify the proposed classes pursuant to Fed. R. Civ.

P. 23(a) and (b)(3).


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Dated: July 14, 2015 Respectfully submitted, LIEFF CABRASER HEIMANN & BERNSTEIN, LLP By: /s/ Kelly M. Dermody Kelly M. Dermody Kelly M. Dermody (Cal. Bar No. 171716) Daniel M. Hutchinson (Cal. Bar No. 239458) Anne B. Shaver (Cal. Bar No. 255928) Marc A. Pilotin (Cal. Bar No. 266369) LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-Mail: [email protected] E-Mail: [email protected] E-Mail: [email protected] E-Mail: [email protected]

Jahan C. Sagafi (Cal. Bar No. 224887) OUTTEN & GOLDEN LLP One Embarcadero Center, 38th Floor San Francisco, CA 94111 Telephone: (415) 638-8800 Facsimile: (415) 638-8810 E-Mail: [email protected] Adam T. Klein (admitted pro hac vice) Juno Turner (admitted pro hac vice) OUTTEN & GOLDEN LLP 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005 E-Mail: [email protected] E-Mail: [email protected] Attorneys for Plaintiffs and proposed Class Members


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Appendix A Ex. 5 to Pilotin Declaration


Documents

Case5:13-cv-00119-BLF Document315 Filed05/18/15 Page1 of 31 · 2016. 9. 14. · 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1255293.1 PLTFS’ MTN FOR