REDACTED VERSION OF DOCUMENT(S) SOUGHT TO BE …...STEVE RABIN and JOHN CHAPMAN, on behalf of themselves, and all others similarly situated, Plaintiffs, v. PRICEWATERHOUSECOOPERS LLP,

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

NOTICE OF MOT. AND MOT. FOR CONDITIONAL CERTIFICATION

CASE NO. 16-CV-02276-JST

Jahan C. Sagafi (Cal. Bar No. 224887) Cristina Schrum-Herrera (Cal. Bar No. 315319) OUTTEN & GOLDEN LLP One Embarcadero Center, 38th Floor San Francisco, CA 94111 Telephone: (415) 638-8800 Facsimile: (415) 638-8810 E-mail: [email protected] : [email protected]

Adam T. Klein (admitted pro hac vice) Melissa L. Stewart (admitted pro hac vice) Daniel Stromberg (admitted pro hac vice) OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Telephone: (212) 245-1000 Facsimile: (646) 509-2060 E-mail: [email protected]: [email protected]: [email protected]

Additional counsel on next page.

Daniel Kohrman (admitted pro hac vice) Laurie McCann (admitted pro hac vice) Dara Smith (admitted pro hac vice) AARP FOUNDATION LITIGATION 601 E. Street, N.W. Washington, D.C. 20049 Telephone: (202) 434-2060 Facsimile: (202) 434-2082 E-mail: [email protected]: [email protected]: [email protected]

Lucy B. Bansal (admitted pro hac vice) OUTTEN & GOLDEN LLP 601 Massachusetts Avenue NW, Second Floor West Washington, D.C. 20001 Telephone: (202) 847-4400 Facsimile: (202) 847-4410 E-mail: [email protected]

Attorneys for Plaintiffs and Proposed Class and Collective Members

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

STEVE RABIN and JOHN CHAPMAN, on behalf of themselves, and all others similarly situated,

Plaintiffs,

v.

PRICEWATERHOUSECOOPERS LLP,

Defendant.

Case No. 16-cv-02276-JST

PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND ISSUANCE OF COURT-AUTHORIZED NOTICE PURSUANT TO 29 U.S.C. § 216(b)

Date: March 1, 2018 Time: 2:00 p.m. Courtroom: 9, 19th Floor Judge: The Honorable Jon S. Tigar

REDACTED VERSION OF DOCUMENT(S) SOUGHT TO BE SEALED

Case 3:16-cv-02276-JST Document 198 Filed 12/21/17 Page 1 of 33

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

1 NOTICE OF MOT. AND MOT. FOR CONDITIONAL CERTIFICATION


Jennifer L. Liu (Cal. Bar No. 279370) THE LIU LAW FIRM, P.C. 1170 Market Street, Suite 700 San Francisco, CA 94102 Telephone: (415) 896-4260 Facsimile: (415) 231-0011 E-mail: [email protected]


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



NOTICE OF MOTION AND MOTION

PLEASE TAKE NOTICE that, on March 1, 2018, at 2:00 p.m., in Courtroom 9 of this

Court, located at 450 Golden Gate Avenue, 19th floor, San Francisco, California, before the

Honorable Jon S. Tigar, Plaintiffs Steve Rabin and John Chapman hereby do and will move the

Court for an order conditionally certifying the proposed collective pursuant to Section 216(b) of

the Fair Labor Standards Act and Section 626(b) of the Age Discrimination in Employment Act

(“ADEA”). As discussed in the following memorandum in support of the motion, this motion is

made on the grounds that Plaintiffs’ allegations and the evidence in the record to date sufficiently

show that Plaintiffs are similarly situated to the members of the potential collective, warranting

the issuance of notice so that potential collective members may learn of their rights and decide

whether to join the lawsuit. This motion is based on this notice of motion and motion; the

memorandum in support of the motion; the accompanying Declaration of Jahan C. Sagafi and the

exhibits attached thereto; all matters of which the Court may take notice; and any oral or

documentary evidence presented at the hearing on the motion.

For the reasons set forth below, Plaintiffs respectfully seek an order: (1) conditionally

certifying the proposed collective; (2) approving Plaintiffs’ proposed notice and distribution plan;

and (3) requiring Defendant PricewaterhouseCoopers LLP (“PwC”) to produce the collective

member data discussed in the memorandum in support of the motion.


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

i NOTICE OF MOT. AND MOT. FOR CONDITIONAL CERTIFICATION


TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1

FACTUAL BACKGROUND ......................................................................................................... 2

I. The Parties ........................................................................................................................... 2

A. Defendant ................................................................................................................ 2

B. Plaintiffs Rabin and Chapman ................................................................................ 3

C. Collective Members ................................................................................................ 4

II. PwC Maintains a Culture of Age Bias. ............................................................................... 5

A. PwC Prefers Millennial Workers. ........................................................................... 5

B. PwC Disfavors Older Applicants. ........................................................................... 7

C. PwC Steers Older Applicants to Non-Career Path Jobs. ........................................ 8

III. PwC’s Hiring Policies and Practices for Associates Are Uniform. .................................... 9

A. PwC Hires Associates to Work at Its Offices Nationwide. ..................................... 9

B. PwC Centrally Controls the Hiring of Associates................................................. 10

1. Corporate-Level Employees Set and Enforce Policies and Procedures. ... 10

2. PwC Centrally Manages Sourcing for Associate Applicants. ................... 11

a. PwC Primarily Recruits and Hires Associates Through the Campus Track. ............................................................................................ 11

b. PwC Fills Its Remaining Openings Through the “Experienced” Track. ............................................................................................ 12

3. Recruiters Develop a Pipeline of Candidates and Screen Candidates. ..... 13

4. PwC Has a Standardized Interview Process.............................................. 14

IV. PwC’s Challenged Policies and Practices Result in Older Applicants Being Hired Less Often Than Younger Applicants, at a Statistically Significant Level. .............................. 15

A. PwC Consistently Denies Older Applicants Employment at a Rate Significantly Above That of Younger Applicants. ..................................................................... 15

B. Even Within Campus Hiring, Younger Applicants Have an Edge Over Older Applicants. ............................................................................................................ 16

C. The Vendor-Generated Date of Birth Data Are Reliable. ..................................... 17

ARGUMENT ................................................................................................................................ 18

I. Collective Certification Advances the ADEA’s Remedial Goals. .................................... 18

II. Plaintiffs Exceed Their Low Burden on This Motion. ...................................................... 18

A. Courts Routinely Certify Collectives Under the First-Stage Standard. ................ 18

B. Plaintiffs’ Showing Provides a Reasonable Basis for the Collective Claims. ...... 20


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

ii NOTICE OF MOT. AND MOT. FOR CONDITIONAL CERTIFICATION


III. The Court Should Approve Plaintiffs’ Proposed Notice Plan. ......................................... 21

CONCLUSION ............................................................................................................................. 24


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

iii NOTICE OF MOT. AND MOT. FOR CONDITIONAL CERTIFICATION


TABLE OF AUTHORITIES

CASES PAGE(S)

Alvarez v. Farmers Ins. Exch., No. 14 Civ. 574, 2014 WL 4685031 (N.D. Cal. Sept. 19, 2014) .......................................22, 24

Bean v. Crocker Nat’l Bank, 600 F.2d 754 (9th Cir. 1979) .....................................................................................................18

Cancilla v. Ecolab, Inc., No. 12 Civ. 03001, 2014 WL 11171549 (N.D. Cal. Apr. 3, 2014) ...........................................23

Carlson v. Leprino Foods Co., No. 05 Civ. 798, 2006 WL 2375046 (W.D. Mich. Aug. 15, 2006) ..........................................23

Castaneda v. Partida, 430 U.S. 482 (1977) ..................................................................................................................15

Church v. Consol. Freightways, Inc., 137 F.R.D. 294 (N.D. Cal. 1991) ..............................................................................................19

Coates v. Farmers Grp., Inc., No. 15 Civ. 1913, 2015 WL 8477918 (N.D. Cal. Dec. 9, 2015) ..............................................21

Culver v. Bell & Loffland, 146 F.2d 29 (9th Cir. 1944) .......................................................................................................18

Deatrick v. Securitas Sec. Servs. USA, Inc., No. 13 Civ. 5016, 2014 WL 5358723 (N.D. Cal. Oct. 20, 2014) ..................................... passim

Equal Emp’t. Opportunity Comm’n v. Rodriguez, No. 93 Civ. 5049, 1994 WL 714003 (E.D. Cal. Nov. 16, 1994) ..............................................15

Flores v. Velocity Exp., Inc., No. 12 Civ. 5790, 2013 WL 2468362 (N.D. Cal. June 7, 2013) ........................................19, 23

Gay v. Waiters’ & Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531 (9th Cir. 1982) .....................................................................................................15

Gee v. Suntrust Mortg., Inc., No. 10 Civ. 1509, 2011 WL 722111 (N.D. Cal. Feb. 18, 2011) ...............................................23

Harris v. Vector Mktg. Corp., 716 F. Supp. 2d 835 (N.D. Cal. 2010) ......................................................................................23

Hazelwood Sch. Dist. v. U.S., 433 U.S. 299 (1977) ..................................................................................................................15


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

iv NOTICE OF MOT. AND MOT. FOR CONDITIONAL CERTIFICATION


Heath v. Google Inc., 215 F. Supp. 3d 844 (N.D. Cal. 2016) ................................................................................19, 20

Hoffmann–LaRoche v. Sperling, 493 U.S. 165 (1989) ..................................................................................................................21

Jones v. JGC Dallas LLC, No. 11 Civ. 2743, 2012 WL 6928101 (N.D. Tex. Nov. 29, 2012) ...........................................23

K.H. v. Sec’y of the Dep’t of Homeland Sec., No. 15 Civ. 2740, 2016 WL 3879246 (N.D. Cal. July 18, 2016) .......................................19, 20

Kesley v. Entm’t U.S.A. Inc., 67 F. Supp. 3d 1061 (D. Ariz. 2014) .........................................................................................23

Kress v. PricewaterhouseCoopers, LLP, 263 F.R.D. 623 (E.D. Cal. 2009) ..............................................................................................18

Lewis v. Wells Fargo & Co., 669 F. Supp. 2d 1124 (N.D. Cal. 2009) ........................................................................18, 22, 24

Luque v. AT & T Corp., No. 09 Civ. 5885, 2010 WL 4807088 (N.D. Cal. Nov. 19, 2010) ............................................20

Margulies v. Tri-Cty. Metro. Transp. Dist. of Oregon, No. 13 Civ. 475, 2013 WL 5593040 (D. Or. Oct. 10, 2013) ....................................................22

Mark v. Gawker Media LLC, No. 13 Civ. 4347, 2014 WL 5557489 (S.D.N.Y. Nov. 3, 2014) ..............................................23

Morton v. Valley Farm Transp., Inc., No. 06 Civ. 2933, 2007 WL 1113999 (N.D. Cal. Apr. 13, 2007) .......................................19, 21

Otey v. CrowdFlower, Inc., No. 12 Civ. 5524, 2013 WL 1915680 (N.D. Cal. May 8, 2013) ..............................................18

Paige v. California, 233 F. App’x 646 (9th Cir. 2007) .............................................................................................15

Ramirez v. Ghilotti Bros. Inc., 941 F. Supp. 2d 1197 (N.D. Cal. 2013) ..............................................................................20, 24

Sanchez v. Sephora USA, Inc., No. 11 Civ. 03396, 2012 WL 2945753 (N.D. Cal. July 18, 2012) .....................................20, 23

Villa v. United Site Servs. of California, Inc., No. 12 Civ. 318, 2012 WL 5503550 (N.D. Cal. Nov. 13, 2012) ..............................................20

Walton v. AT&T Servs., Inc., No 15 Civ. 3653 (N.D. Cal. Sept. 15, 2016) .............................................................................22


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

v NOTICE OF MOT. AND MOT. FOR CONDITIONAL CERTIFICATION


Woods v. Vector Mktg. Corp., No. 14 Civ. 0264, 2015 WL 1198593 (N.D. Cal. Mar. 16, 2015) ...........................................22

Zaborowski v. MHN Gov’t Servs., Inc., No. 12 Civ. 5109 (N.D. Cal. May 23, 2013) .............................................................................23

STATUTES

29 U.S.C. § 626(b) ..........................................................................................................................18

Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. ................................................2


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



MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

This case challenges Defendant PwC’s alleged policy or practice of giving preference to

job applicants under age 40 for its Associate, Experienced Associate, and Senior Associate

accounting positions,1 and passing over equally or more qualified applicants aged 40 and over.

This Motion seeks certification of a nationwide ADEA collective, as set forth in the paragraphs

and pages below.

The experiences of Plaintiffs Steve Rabin and John Chapman are illustrative of the

circumstances of other PwC applicants who seek to allege ADEA violations through this action.

They both earned accounting degrees and gained impressive professional experience before

applying to PwC. They approached PwC hoping to embark on a new career. They were willing

to start anew, asking only a fair chance to prove their value.

After PwC rejected their repeated applications and made statements suggestive of bias

against older workers, Mr. Rabin and Mr. Chapman independently investigated PwC’s recruiting

and hiring practices. They concluded that PwC appears to disfavor older workers by focusing its

recruiting efforts on college campuses, mainly hiring workers who apply directly from college,

disproportionately hiring younger workers, and fostering an age-conscious workplace in which

youth is highly valued and older workers are considered a bad “fit.”

Discovery has yielded basic data and documents that validate Plaintiffs’ concerns, and

confirm that conditional certification is appropriate, so that potential collective members can

decide for themselves whether to pursue these claims alongside Plaintiffs. Specifically,

documents show that, across the firm, PwC tends to deem applicants aged 40 and older to be too

“old” or and “non-traditional” to be hired. Older applicants describe a consistent pattern of being

overlooked and rejected despite having the necessary qualifications. And PwC’s hiring data show

statistically significant disparities in the rates of hire for older applicants for each of the three

Covered Positions and in each of the two relevant lines of service.

1 Plaintiffs refer to these positions throughout this motion as the “Covered Positions.”


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



Through this motion, Plaintiffs seek to send notice of the lawsuit to others aged 40 and

over who applied for and were denied (or attempted to apply for) Covered Positions in PwC’s

Assurance and Tax lines of service pursuant to Section 216(b) of the Fair Labor Standards Act,

the provision authorizing collective adjudication of claims under the ADEA. Plaintiffs’ testimony

and the testimony of 28 other unsuccessful older applicants, together with PwC’s own documents

and hiring data, comfortably satisfy Plaintiffs’ modest burden to show that they and potential

collective members are “similarly situated” with respect to these ADEA allegations.

FACTUAL BACKGROUND

I. The Parties

A. Defendant

PwC is a global accounting and auditing firm with revenues of $37.7 billion for fiscal year

2017.2 It is a major employer, with 82 offices in the United States and more than 70,000

employees in the Americas.3

PwC’s hiring and recruiting practices have systematically favored younger applicants at

the expense of older candidates. The underrepresentation of workers over age 40 is stark. In a

2013 study of its workforce, PwC boasted that two-thirds of its employees were in their 20s and

early 30s, and of that group, 75% were hired directly out of college.4 PwC also estimated that by

2016, almost 80% of its workforce would be “Millennials” – those born between 1980 and 1995.5

By contrast, the median age of accountants and auditors in the United States is 46, and only

approximately 30% are Millennials.6

Because PwC is a gateway employer in the accounting industry, its hiring practices have a

significant impact on older workers seeking to join the profession. In addition, because

experience with a “Big 4” accounting firm such as PwC opens the door to future business

2 See Ex. 93 (PwC’s Global Annual Review 2017). All exhibits referenced herein are attached to the Declaration of Jahan C. Sagafi (“Sagafi Decl.”). 3 Ex. 94 (PwC office locations in the United States of America, by state); Ex. 95 (PwC’s Global Annual Review 2017, People). 4 Ex. 32 (PwC’s NextGen: A global generational study), PWC_00018981, 83. 5 Id. at PWC_00018983. 6 Bureau of Labor Statistics, Labor Force Statistics from the Current Population Survey, https://www.bls.gov/cps/cpsaat18b.htm (last modified Feb. 8, 2017).


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



opportunities, PwC deprives older workers of current employment as well as opportunities to

advance in the industry down the road.7

B. Plaintiffs Rabin and Chapman

Plaintiffs Rabin and John Chapman applied several times to Covered Positions at PwC

when they were over the age of 40. They allege that PwC unlawfully failed to hire them despite

their qualifications.

During the early 2000s, Mr. Chapman worked for over a decade as an accountant and

bookkeeper. In 2012, at age 44, he enrolled in a master’s program in accounting at the University

of Missouri.8 Mr. Chapman excelled in school, graduating cum laude with a 3.52 GPA.9

Beginning in 2013, when he was still in school, Mr. Chapman applied to numerous Associate and

Experienced Associate positions with PwC.10 During an interview for one of these positions, a

PwC employee asked whether he would have a problem working for younger people.11

Preliminary discovery reveals that PwC employees described Mr. Chapman as “very smart” and a

“pretty strong” candidate,12 but also that they made coded references to his age (calling him “non-

traditional”), said that they “d[id]n’t want to lead him on given his maturity,”13 and ultimately

rejected him for not being the right “fit.”14

7 Ex. 142 (Rabin Decl.) ¶¶ 17-18; Ex. 127 (Chapman Decl.) ¶¶ 14-15; Ex. 123 (Bankston Decl.) ¶ 12; Ex. 144 (Tiruneh Decl.) ¶ 10; Ex. 139 (Narey Decl.) ¶ 11; Ex. 148 (Wooten Decl.) ¶ 12; Ex. 122 (Akuete Decl.) ¶ 15; Ex. 124 (Barnhart Decl.) ¶ 13; Ex. 140 (Painter Decl.) ¶ 17; Ex. 141 (Penso Decl.) ¶ 14; Ex. 149 (Zatek Decl.) ¶¶ 11-12; Ex. 147 (Woolbright Decl.) ¶ 13; Ex. 146 (Wells Decl.) ¶ 12; Ex. 129 (Griffith Decl.) ¶¶ 14-16; Ex. 137 (Lane-Pryce Decl.) ¶ 16; Ex. 131 (Hearn Decl.) ¶¶ 17-20 ; Ex. 132 (Huffman Decl.) ¶¶ 12-13; Ex. 134 (Jackson Decl.) ¶ 12; Ex. 125 (Brown Decl.) ¶ 13; Ex. 135 (Kelly Decl.) ¶¶ 12-14; Ex. 136 (King Decl.) ¶¶ 16-20; Ex. 126 (Cairns Decl.) ¶ 10; Ex. 144 (Tiruneh Decl.) ¶¶ 9-10; Ex. 145 (Treinen Decl.) ¶¶ 10-11; Ex. 138 (Maciel Decl.) ¶¶ 15-17; Ex. 121 (Ahn Decl.) ¶ 9; Ex. 143 (Rhodes Decl.) ¶¶ 10-12; Ex. 128 (Guerguerian Decl.) ¶ 11. 8 Ex. 127 (Chapman Decl.) ¶¶ 5-6. 9 Id. ¶ 6. 10 Id. ¶ 4. 11 Id. ¶ 9. 12 Ex. 79 (Email dated Dec. 9, 2014), PWC_00004022; Ex. 78 (Email dated Oct. 31, 2014), PWC_00001538. 13 Ex. 66 (Email dated Sept. 9, 2012), PWC_00001516. 14 Ex. 79 (Email dated Dec. 9, 2014), PWC_00004022; Ex. 78 (Email dated Nov. 11, 2014), PWC_00001538; Ex. 67 (Email dated Sept. 10, 2012), PWC_00001517.


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



In the late 1990s, when many technology jobs were being outsourced overseas, Mr. Rabin

decided to switch from his career in the technology sector and embark on a second career in

accounting.15 Beginning in the early 2000s, and continuing for over a decade, Mr. Rabin applied

to numerous positions with PwC.16 During this period, he graduated with distinction from the

Keller School of Management at DeVry University with an MBA and a concentration in

Accounting, started his own accounting practice, performed tax, accounting, and audit services

for multiple organizations, and obtained his Certified Public Accountant (“CPA”) licenses from

Illinois in 2005 and California in 2006.17 When he interviewed with PwC in October 2013, one

of his PwC interviewers said: “The people in the cubicles are much younger than you. How

would you fit in? Would you be able to work for a younger manager or director?”18 Despite his

qualifications and experience, PwC did not hire Mr. Rabin.19

C. Collective Members

Although notice has not gone out, 23 individuals have opted in, and 28 collective

members and potential collective members submitted declarations in support of this motion,

describing their experiences.20 These individuals applied to Covered Positions in PwC’s Tax and

Assurance lines of service at PwC’s offices nationwide,21 and were qualified for the positions to

15 Ex. 142 (Rabin Decl.) ¶ 4. 16 Id. ¶¶ 7-14. 17 Id. ¶¶ 5-6. 18 Id. ¶ 10. 19 Id. ¶ 7. 20 Sagafi Decl. ¶¶ 125-55. 21 Ex. 127 (Chapman Decl.) ¶ 4 (applied to positions nationwide); Ex. 142 (Rabin Decl.) ¶ 8 (California); Ex. 149 (Zatek Decl.) ¶ 4 (Pennsylvania); Ex. 145 (Treinen Decl.) ¶ 2 (Oregon); Ex. 136 (King Decl.) ¶ 3 (California); Ex. 131 (Hearn Decl.) ¶ 4 (Texas); Ex. 121 (Ahn Decl.) ¶ 3 (Virginia, District of Columbia); Ex. 141 (Penso Decl.) ¶¶ 4-5 (New Jersey, New York); Ex. 129 (Griffith Decl.) ¶ 3 (West Virginia, Texas, Florida); Ex. 139 (Narey Decl.) ¶ 5 (129 locations); Ex. 122 (Akuete Decl.) ¶ 3 (District of Columbia, New York, Florida, Georgia); Ex. 123 (Bankston Decl.) ¶ 7 (nationwide); Ex. 125 (Brown Decl.) ¶ 3 (South Carolina); Ex. 132 (Huffman Decl.) ¶ 3 (California); Ex. 133 (Iio Decl.) ¶ 4 (Texas); Ex. 134 (Jackson Decl.) ¶ 3 (California); Ex. 135 (Kelly Decl.) ¶ 3 (California, Texas); Ex. 137 (Lane-Pryce Decl.) ¶ 3 (New York, Georgia); Ex. 144 (Tiruneh Decl.) ¶ 3 (multiple locations); Ex. 146 (Wells Decl.) ¶ 3 (Oregon); Ex. 148 (Wooten Decl.) ¶ 3 (California, Georgia); Ex. 126 (Cairns Decl.) ¶ 3 (California); Ex. 143 (Rhodes Decl.) ¶ 5 (California); Ex. 124 (Barnhart Decl.) ¶ 4 (Oregon); Ex. 140 (Painter Decl.) ¶ 3 (nationwide); Ex. 147 (Woolbright Decl.) ¶ 3 (Virginia, South Carolina); Ex. 130 (Halliday Decl.) ¶ 4 (Florida, Colorado); Ex. 128 (Guerguerian Decl.) ¶ 3 (Michigan).


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



which they applied,22 yet PwC rejected them.23

II. PwC Maintains a Culture of Age Bias.

PwC describes itself in age-conscious terms: it believes that “generational issues” have a

“significant impact on [its] business strategy.”24

A. PwC Prefers Millennial Workers.

PwC publicly touts its preference for Millennial (or “Gen Y”) workers,25 whom it

identifies as currently aged 21-37.26 PwC recruiters and management refer affectionately to

22 Ex. 142 (Rabin Decl.) ¶¶ 5-6; Ex. 127 (Chapman Decl.) ¶ 6; Ex. 140 (Painter Decl.) ¶¶ 5-11 (veteran with 40 years of accounting experience); Ex. 129 (Griffith Decl.) ¶¶ 4, 6-11 (40+ year old applicant with excellent academic credentials); Ex. 130 (Halliday Decl.) ¶¶ 6-8 (50+ year old applicant with 24+ years of experience and a master’s in accountancy); Ex. 137 (Lane-Pryce Decl.) ¶¶ 4, 5-8 (40+ year old applicant with several years of relevant experience); Ex. 145 (Treinen Decl.) ¶¶ 5-7 (accounting degree, graduate-level tax work, 18 years of business experience); Ex. 136 (King Decl.) ¶¶ 5-9 (master’s in accounting and accounting experience); Ex. 146 (Wells Decl.) ¶¶ 5-7 (7+ years of accounting experience and master’s degree in Economics); Ex. 121 (Ahn Decl.) ¶¶ 5-6 (degree in Accounting and prior internship with PwC); Ex. 122 (Akuete Decl.) ¶¶ 5-9; Ex. 123 (Bankston Decl.) ¶¶ 3-6; Ex. 125 (Brown Decl.) ¶¶ 6-8; Ex. 132 (Huffman Decl.) ¶¶ 5-7; Ex. 133 (Iio Decl.) ¶¶ 6-8; Ex. 134 (Jackson Decl.) ¶¶ 5-7; Ex. 135 (Kelly Decl.) ¶¶ 5-7; Ex. 144 (Tiruneh Decl.) ¶¶ 4-6; Ex. 148 (Wooten Decl.) ¶¶ 5-7; Ex. 139 (Narey Decl.) ¶¶ 3-6; Ex. 126 (Cairns Decl.) ¶¶ 5-6; Ex. 143 (Rhodes Decl.) ¶¶ 6-8; Ex. 149 (Zatek Decl. ) ¶¶ 6-7; Ex. 147 (Woolbright Decl.) ¶¶ 5-7; Ex. 141 (Penso Decl.) ¶¶ 7-8; Ex. 138 (Maciel Decl.) ¶¶ 13-14; Ex. 131 (Hearn Decl.) ¶¶ 6-9; Ex. 128 (Guerguerian Decl.) ¶¶ 5-6. 23 See Ex. 127 (Chapman Decl.) ¶ 12 (PwC hired several cum laude graduates like him, who were younger); Ex. 124 (Barnhart Decl.) ¶ 11 (same for younger classmates with worse academic performance); Ex. 141 (Penso Decl.) ¶ 12 (younger co-worker); Ex. 132 (Huffman Decl.) ¶ 11 (several of his colleagues who were in their 20s); Ex. 134 (Jackson Decl.) ¶ 11 (younger classmates); Ex. 138 (Maciel Decl.) ¶ 8 (PwC recruiter told him that he “was better off not applying because PwC was looking for younger students”); Ex. 136 (King Decl.) ¶ 14 (PwC employee told candidate that her chances of getting a job at PwC were “slim at best, because PwC prefers to recruit straight from college”); Ex. 146 (Wells Decl.) ¶ 11 (told by former PwC employee that “PwC mostly hires recent college graduates”); Ex. 123 (Bankston Decl.) ¶ 11 (recruiter told applicant that “PwC was limiting the number of candidates it would hire from the experienced pool”). 24 Ex. 31 (Our People Strategy), PWC_00012482. 25 Bob Moritz, The U.S. Chairman of PwC on Keeping Millennials Engaged, https://hbr.org/2014/11/the-us-chairman-of-pwc-on-keeping-millennials-engaged (Nov. 2014) (“PwC’s workforce is strikingly young: Because we recruit approximately 8,000 graduates annually from college and university campuses, two-thirds of our people are in their twenties and early thirties. We’ve always employed large numbers of young people.”); Ex. 106 (Wall Street Journal, July 11, 2011), PWC_00039506 (“We have adapted both how we recruit and how we work with people once they join us to suit the millennial generation.”). 26 Ex. 31 (Our People Strategy), PWC_00012482 (in 2011, PwC defined Gen Y as “aged 15 to 31”).



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



B. PwC Disfavors Older Applicants.

PwC’s age-conscious culture is also apparent in the way its employees interact with older

applicants. PwC recruiters and management: (1) describe candidates as “old;”34 (2) make thinly

veiled references to applicants’ age (for example, calling them “non-traditional” or the wrong

“fit”);35 (3) invoke negative stereotypes about older workers (for example, that older workers are

unwilling to work long hours or learn new technology);36 (4) ask older candidates whether they

are comfortable working with younger co-workers;37 and (5) subtly discourage older workers at

recruiting events.38

34 Ex. 81 (Email dated Feb. 23, 2015), PWC_ 00755102 (describing applicants as “too old”); Ex. 59 (Emails dated Sept. 15 and 22, 2010), PWC_00753799-800 (describing candidate as “older” and rejecting him because he was not the right “fit”). 35 Ex. 66 (Email dated Sept. 9, 2012), PWC_00001516 (“non-traditional student” and recruiter does not “want to lead him on given his maturity”); Ex. 79 (Email dated Dec. 9, 2014), PWC_00004022 (“Very smart guy, but not a good fit for our group.”); Ex. 67 (Email dated Sept. 10, 2012), PWC_00001517 (not the right “fit”); Ex. 65 (Emails dated Nov. 23 and Dec. 5, 2011), PWC_00390210-11 (describing rejected candidate as “more mature than most of our new associates” and “nice guy” but not the right “cultural fit”); Ex. 69 (Email dated Sept. 24, 2012), PWC_00754801 (describing candidate as “non-traditional” because he graduated eight years prior and had multiple years of work experience); Ex. 64 (Email dated June 14 and July 13, 2011), PWC_00754813, 754819 (describing candidate who had prior career in finance before studying accounting as “non-traditional” and declining to hire him because he was not the right “fit”); Ex. 70 (Email dated Jan. 16, 2013), PWC_00754703 (describing candidate who went back to school for a second career and has a family as “very non-traditional”); Ex. 7 (FTN Status Follow Up), PWC_000001461 at 1, 3 (spreadsheet describing candidates’ experience as “dated”); Ex. 131 (Hearn Decl.) ¶ 12 (PwC employee described Hearn’s background as “too far dated”); Ex. 11 (Angel Complaint), PWC_00001158 (“comments” made by PwC employee during interview led 43-year old applicant to believe that she was rejected because the interviewer thought she “was too old for the position”); Ex. 140 (Painter Decl.) ¶ 15 (former PwC employee told applicant that PwC generally does not hire workers with “too much experience”). 36 Ex. 33 ( Complaint), PWC_00016758 (“I have been led to believe that PwC does not hire college students over the age of 40” because “it believes that these applicants cannot work longer hours as the younger applicants do”); Ex. 136 (King Decl.) ¶ 13 (PwC employee assumed that PwC’s long working hours would not be a good fit for 40+ year old candidate); Ex. 147 (Woolbright Decl.) ¶ 9 (interviewer made a point of explaining that applicant would be required to learn new systems); see also Ex. 34 (Millennials at work), PWC_00018374 (describing “Baby Boomer” generation as “soon to retire”). 37 Ex. 142 (Rabin Decl.) ¶ 10; Ex. 127 (Chapman Decl.) ¶ 9; Ex. (Hearn Decl.) ¶ 11. 38 Ex. 130 (Halliday Decl.) ¶ 10 (ignored at campus recruiting events); Ex. 124 (Barnhart Decl.) ¶ 6 (same); Ex. 10 (Maciel Decl.) ¶ 10 (same); Ex. 125 (Brown Decl.) ¶ 12 (ignored at group interview); Ex. 147 (Woolbright Decl.) ¶ 9 (interviewers appeared uninterested).



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



III. PwC’s Hiring Policies and Practices for Associates Are Uniform.

A. PwC Hires Associates to Work at Its Offices Nationwide.

PwC hires candidates to work in the Covered Positions in the Tax and Assurance “lines of

service” (“LOS”) at its offices nationwide. The Tax and Assurance LOS help PwC’s corporate

clients manage their financial and legal obligations by providing tax, audit, regulatory

compliance, and risk management services.44

Associates in each LOS perform work for PwC’s clients – from its offices or directly at

client sites – under the supervision of PwC managers and directors.45 Associates work for clients

in various sectors of the economy, such as financial services, health industries, and consumer

markets.46

To qualify for an Associate position, applicants generally must have a bachelor’s degree, a

commitment to obtain a CPA license, and little to no prior experience (0-1 year for Associates).47

Generally applicants for Experienced Associate and Senior Associate positions must have similar

qualifications, including a CPA license or a commitment to obtain one, with some additional

experience (1-2 years for Experienced Associates,48 and 2-4 years for Senior Associates).49 The

positions serve as launching pads for advancement to more senior roles at PwC, including

44 Ex. 98 (PwC, Global Tax); Ex. 99 (PwC, Audit and Assurance Services). 45 Ex. 92 (PwC, Meet Adgar) (“One of the main roles of a senior is to bridge the work done at the associate level, review the work, and effectively maintain the project and communicate the results to the manager/director.”); Ex. 92 (PwC, Meet Jordan) (“The associate and I will meet with the director on the engagement to discuss the potential tax issues identified during our tax due diligence review”); Ex. 92 (PwC, Meet Liz) (“As a senior associate, I review the associates’ work and then pass the workplan on to my manager for further review.”). 46 Ex. 5 (Def.’s Obj. and Resps. to Pls.’ Third Set of Interrogs.), at 10-11. 47 See, e.g., Ex. 110 (Assurance Associate), PWC_00415692; Ex. 108 (Tax Associate); Ex. 111 (Tax Associate). 48 See, e.g., Ex. 109 (Experienced Associate), PWC_00377813; Ex. 113 (Experienced Associate); Ex. 115 (Experienced Associate); Ex. 116 (Experienced Associate); Ex. 112 (Experienced Associate). 49 See, e.g., Ex. 114 (Senior Associate); Ex. 117 (Senior Associate); Ex. 118 (Senior Associate); Ex. 119 (Senior Associate); Ex. 120 (Senior Associate).


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



Manager, Director, and Partner positions,50 and in the accounting industry more broadly.51

B. PwC Centrally Controls the Hiring of Associates.

1. Corporate-Level Employees Set and Enforce Policies and Procedures.

PwC applies a “consistent approach” to hiring, driven by its “Sourcing Center of

Excellence.”52 Within that Center is the Sourcing Leadership Team, which has companywide

authority to develop the policies and procedures that govern each step of the hiring process –

sourcing, screening, interviewing, and hiring.53 The Team ensures that PwC’s policies “are

carried out as prescribed” throughout the country,54 and supervises Market Sourcing Leaders55 in

different geographies and hiring tracks, who help “oversee[] the implementation of the Firm’s

recruiting strategies.”56 In turn, Market Sourcing Leaders supervise, manage, and train

recruiters,57 who carry out the day-to-day hiring work according to PwC’s policies and

50 Ex. 5 (Def.’s Obj. and Resps. to Pls.’ Third Set of Interrogs.), at 10-11. 51 Ex. 110 (Assurance Associate), PWC_00415692 (Associate position is the “first step to a rewarding career”); Ex. 109 (Experienced Associate), PWC_00377812 (Becoming an associate allows you to “capture opportunities to advance your career and fulfill your potential”). 52 Ex. 25 (PwC Talent Selection Process - Overview), PWC_00006862, 6870. 53 Ex. 25 (PwC Talent Selection Process - Overview), PWC_00006870 (“The Sourcing Leadership Team, working with the lines of service, help develop the strategy, direction and general policies surrounding the recruitment of new staff[.]”); Ex. 24 (Module 2 - Relationship Management), PWC_000006832 (“The Sourcing Center of Excellence (COE) is a national team that oversees all sourcing initiatives and national programs[.]”). In or around August 2016, PwC retitled this group as the National Team, housed within the retitled Talent Acquisition Team, but the structure and of the group remained largely the same and the group retained its original responsibilities, while also adding marketing and onboarding. See Ex. 85 (Email dated Aug. 2, 2016), PWC_00025404-07; compare Ex. 21 (US Sourcing and Contractors), PWC_00006290-6302 (dated Feb. 20, 2013), with Ex. 8 (US Talent Acquisition Team), PWC_00000512-525 (dated Sept. 2016). 54 Ex. 25 (PwC Talent Selection Process - Overview), PWC_00006870. 55 PwC apparently changed the title of this position in or around April 2017, from Market Sourcing Leader to Campus Recruiting Lead, but the structure and responsibilities remains largely the same. See Ex. 18 (Role Change Highlights - Talent ID Campus Recruiting Lead (4E)), PWC_00005981-82. 56 Ex. 25 (Talent Selection Process - Overview), PWC_00006870. There are nine markets (Bay Area & Northwest, Southwest, Greater Texas, Central, Midwest, Southeast, Mid-Atlantic, Northeast, and New York Metro). Ex. 17 (Talent Identification Recruiting Team), PWC_00005966; Ex. 8 (US Talent Acquisition Team), PWC_00000513-25. 57 Ex. 25 (Talent Selection Process - Overview), PWC_00006870; Ex. 18 (Role Change Highlights - Talent ID Campus Recruiting Lead (4E)), PWC_00005981. PWC apparently changed the title of this position in or around April 2017, from Campus Recruiting Manager to






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



IV. PwC’s Challenged Policies and Practices Result in Older Applicants Being Hired Less Often Than Younger Applicants, at a Statistically Significant Level.

Dr. David Neumark, a labor economist and professor of Economics at the University of

California-Irvine, analyzed preliminary hiring data from PwC’s applicant database, combined

with date of birth data generated by third-party vendors.

Dr. Neumark found “very strong statistical deviations from age-neutrality in hiring” and

concluded that this evidence is “strongly consistent with discrimination in favor of younger

applicants” and “against older applicants.”88 The evidence of discrimination is consistent across

campus and experienced track hiring, and across hiring for full-time Associate, Experienced

Associate, and Senior Associate positions.89 The hiring differences for each of Dr. Neumark’s

five analyses meet the threshold of 2-3 standard deviations that courts accept as evidence of

discrimination.90

A. PwC Consistently Denies Older Applicants Employment at a Rate Significantly Above That of Younger Applicants.

Dr. Neumark’s analysis confirms that PwC’s recruiting and hiring practices successfully

implement its across-the-board preference for younger applicants. Over a three-and-a-half year

period,91 PwC hired younger applicants more than six times as often as older applicants (with

offer rates of 17.6% for younger workers and rates of just 2.8% for older workers, a difference of

over 36 standard deviations); in other words, younger applicants are 538% more successful than

88 See Ex. 6 (Neumark Report) ¶¶ 5, 14, 21. 89 Id. ¶ 5. 90 See Equal Emp’t. Opportunity Comm’n v. Rodriguez, No. 93 Civ. 5049, 1994 WL 714003, at *29 (E.D. Cal. Nov. 16, 1994) (discussing precedent set forth in Castaneda v. Partida, 430 U.S. 482, 496 n.17 (1977), Hazelwood Sch. Dist. v. U.S., 433 U.S. 299, 307, 308 n.14 (1977), and Gay v. Waiters’ & Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531, 551 (9th Cir. 1982), concluding that a disparity greater than two or three standard deviations supports an inference of discrimination); see also Castaneda, 430 U.S. at 501 (disparity greater than two or three standard deviations “sufficient to demonstrate a prima facie case of intentional discrimination”); Paige v. California, 233 F. App’x 646, 648 n.2 (9th Cir. 2007) (disparity of 1.96 standard deviations sufficient to support inference of discrimination in disparate impact case). 91 Ex. 6 (Neumark Report) ¶ 5 (applicant data covered the period of August 1, 2013, to June 30, 2017, measured by application date).


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



older applicants.92 Statistically, there is less than a one in a billion chance that this disparity could

result from age-neutral hiring practices.93

The disparities hold for each of the Covered Positions. For Associates, PwC made offers

to 4.5% of older applicants, compared to 29% of younger applicants (a difference of 19 standard

deviations).94 For Experienced Associates, PwC made offers to 0.9% of older applicants,

compared to 6.0% of younger applicants (13 standard deviations).95 For Senior Associates, PwC

made offers to 2.9% of older applicants, compared to 7.7% of younger applicants (12 standard

deviations).96

B. Even Within Campus Hiring, Younger Applicants Have an Edge Over Older Applicants.

PwC’s focus on campus hiring, which excludes many older applicants because they are

less likely to be in college, drives some of the differences in hiring outcomes, because PwC

extends offers at a higher rate to campus track positions compared with experienced track

positions.97 However, Dr. Neumark’s analyses also suggest that the shortfalls derive from a

preference for younger applicants overall, not merely a preference for campus applicants.

Specifically, he tested whether the shortfall is attributable solely to PwC’s emphasis on campus

track hiring, and found that even within the campus track, PwC makes offers to older applicants

on campus far less often than to younger applicants (6.0% versus 31.5% hire rates, a difference of

16 standard deviations).98

The evidence of age bias is also consistent within the experienced track, across the

Covered Positions.99

92 Id. ¶ 14 & Table 1. 93 Id. ¶¶ 14-20. 94 Id. ¶ 18, Table 3. 95 Id. 96 Id. 97 Id. ¶ 17, Table 2 (hiring rates of 31.4% and 6% for younger and older applicants in campus track, respectively, versus hiring rates of 7.6% and 1.8% for younger and older applicants in the experienced track, respectively). 98 Id. ¶ 17, 19, Tables 2, 4. 99 Id. ¶ 20, Table 5.


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



C. The Vendor-Generated Date of Birth Data Are Reliable.

Dr. Neumark’s analyses make use of: (1) date of birth (“DOB”) data provided by third

party vendors TransUnion and Accurint, collected through JND Legal Administration (“JND”),

and (2) DOB data for successful applicants, taken from PwC’s HR database (i.e., actual,

confirmed DOBs to be used as a cross-check, see ECF No. 151).100 Dr. Neumark concluded that

96.7% of the JND-provided years of birth (“YOBs”) were accurate, YOB and month of birth were

accurate 96.0% of the time, and full DOBs were accurate 92.4% of the time.101

TransUnion and Accurint identified DOBs person by person, attempting to match each

applicant’s name, street address, email address, and phone number with corresponding

information from tens of billions of public and private records covering 95% of the U.S.

population.102

To test the accuracy of these DOBs, Dr. Neumark compared 15,046 vendor-generated

YOBs to PwC’s HR data for successful applicants.103 For 14,554 applicants – 96.73% of the

population – the YOB matched exactly.104 Based on this cross-check, Dr. Neumark concluded

that the DOB data for the majority of applicants is likely accurate. Dr. Neumark predicted that

eliminating the small percentage of misclassifications (e.g., young applicants counted as old, or

vice versa), would only increase the strength of the evidence consistent with PwC discriminating

against older applicants.105

100 See ECF Nos. 143, 150, 151 (briefs and Orders regarding use of third-party vendors to identify applicant DOBs for potential collective members and certain comparators and PwC’s production of DOB data for hired applicants). 101 Ex. 6 (Neumark Report), Table A2. 102 See TransUnion, https://www.tlo.com/ (last visited Dec. 6, 2017); LexisNexis: Accurint, http://www.accurint.com/ (last visited Dec. 6, 2017). 103 The parties agreed to run two batches of DOB searches: the first, run by TransUnion, sought DOBs for potential collective members and certain comparators. The second, run by Accurint, sought DOBs for those collective members and comparators for whom TransUnion was unable to make a DOB match. ECF No. 147. Dr. Neumark excluded from his analysis any individual whose DOB did not contain a year. Ex. 6 (Neumark Report) ¶ 7 n. 8. For incomplete DOBs missing either a day or a month, he assumed the 1st for any missing day, and January for any missing month. See id. ¶ 8. 104 Neumark Report ¶ 9, Table A2. 105 Id. ¶ 13.


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



ARGUMENT

I. Collective Certification Advances the ADEA’s Remedial Goals.

The ADEA is “a remedial statute that is to be liberally construed” in light of its “purposes

of prohibiting arbitrary age discrimination and of promoting the employment of older persons

based on their ability rather than age.” Bean v. Crocker Nat’l Bank, 600 F.2d 754, 759 (9th Cir.

1979). These broad remedial purposes are served by permitting “similarly situated” complainants

to join an action under the liberal standard set forth in 29 U.S.C. § 216(b).106 Id.

Collective actions promote justice by “allow[ing] aggrieved employees ‘the advantage of

lower individual costs to vindicate rights by the pooling of resources.’” Deatrick v. Securitas Sec.

Servs. USA, Inc., No. 13 Civ. 5016, 2014 WL 5358723, at *2 (N.D. Cal. Oct. 20, 2014) (Tigar, J.)

(quoting Hoffmann–LaRoche v. Sperling, 493 U.S. 165, 170 (1989)). Collective actions also

promote judicial economy by providing for “the efficient resolution in one proceeding of common

issues of law and fact arising from the same” unlawful activity. Id. (internal quotations and

citation omitted); see also Culver v. Bell & Loffland, 146 F.2d 29, 31 (9th Cir. 1944) (section

216(b) is to be liberally construed to avoid multiplicity of suits on common issues). These

benefits “depend on employees receiving accurate and timely notice concerning the pendency of

the collective action, so that they can make informed decisions about whether to participate.”

Deatrick, 2014 WL 5358723, at *2 (internal quotations and citation omitted); see also Otey v.

CrowdFlower, Inc., No. 12 Civ. 5524, 2013 WL 1915680, at *2 (N.D. Cal. May 8, 2013) (Tigar,

J.) (same).

II. Plaintiffs Exceed Their Low Burden on This Motion.

A. Courts Routinely Certify Collectives Under the First-Stage Standard.

Plaintiffs respectfully ask the Court to certify the following Collective: All individuals

aged 40 and older who, from October 18, 2013 forward, applied or attempted to apply but were

106 The ADEA incorporates the collective action procedures of the Fair Labor Standards Act (“FLSA”), set forth in 29 U.S.C. § 216(b). See 29 U.S.C. § 626(b); Lewis, 669 F. Supp. 2d at 1126 n.1 (“the same rules govern judicial management of collective actions under [the FLSA and ADEA]”); Kress v. PricewaterhouseCoopers, LLP, 263 F.R.D. 623, 626 n.2 (E.D. Cal. 2009) (same).


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



not hired for a full-time Covered Position (Associate, Experienced Associate, and Senior

Associate) in the Tax or Assurance lines of service.

The “two-step inquiry” in evaluating whether plaintiffs and potential collective members

are “similarly situated” is well-established. See, e.g., Heath v. Google Inc., 215 F. Supp. 3d 844,

850 (N.D. Cal. 2016) (Freeman, J.) (citing cases). At the initial “notice” stage – the stage here –

the burden is low. Because the “sole consequence of conditional certification” is the distribution

of notice to the proposed collective, id. at 850 (quoting Genesis Healthcare Corp. v. Symczyk, 569

U.S. 66, 75 (2013)), and because the beneficial aspects of collective actions depend on collective

members receiving accurate and timely notice, Deatrick, 2014 WL 5358723, at *2, “the standard

for conditional certification is a lenient one that typically results in certification.”107 Heath, 215

F. Supp. 3d at 851; see also Morton v. Valley Farm Transp., Inc., No. 06 Civ. 2933, 2007 WL

1113999, at *2 (N.D. Cal. Apr. 13, 2007) (Illston, J.) (burden is “not heavy”) (internal quotation

and citation omitted).

Conditional certification is appropriate where the plaintiff points to “some identifiable

factual or legal nexus [that] binds together the various claims of the class members in a way that

hearing the claims together promotes judicial efficiency and comports with the broad remedial

policies underlying the [statute].” K.H. v. Sec’y of the Dep’t of Homeland Sec., No. 15 Civ. 2740,

2016 WL 3879246, at *3 (N.D. Cal. July 18, 2016) (Tigar, J.) (citing with approval Wertheim v.

Arizona, No. 92 Civ. 453, 1993 WL 603552, at *1 (D. Ariz. 1993)); Heath, 215 F. Supp. 3d at

851 (same); Morton, 2007 WL 1113999, at *2 (must be a “reasonable basis for their claim of

class-wide” conduct). A plaintiff can do this by advancing “substantial allegations, supported by

107 The collective certification standard “is different, and easier to satisfy, than the requirements for a class action certified under Federal Rule of Civil Procedure 23(b)(3).” K.H., 2016 WL 3879246, at *3 (citing Lewis, 669 F. Supp. 2d at 1127). “[C]ourts have repeatedly rejected attempts . . . to equate FLSA class actions and Rule 23 class actions” because doing so “would effectively ignore Congress’ directive.” Flores v. Velocity Exp., Inc., No. 12 Civ. 5790, 2013 WL 2468362, at *7 (N.D. Cal. June 7, 2013) (Tigar, J.) (quoting Gerlach v. Wells Fargo & Co., No. 05 Civ. 0585, 2006 WL 824652, at *3 (N.D. Cal. Mar. 28, 2006)); see also Church v. Consol. Freightways, Inc., 137 F.R.D. 294, 306 (N.D. Cal. 1991) (requiring ADEA plaintiffs to satisfy Rule 23 “would impede ADEA plaintiffs’ opportunity to proceed collectively and, therefore, is contrary to the broad remedial purposes of prohibiting arbitrary age discrimination”).


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



declarations or discovery,” that he and the potential collective members were the victims of a

“decision, policy, or plan.” Deatrick, 2014 WL 5358723, at *2.

Courts do not evaluate the merits of the claims or defenses at the first stage. The “fact that

a defendant submits competing declarations will not as a general rule preclude conditional

certification,” Heath, 215 F. Supp. 3d at 851-52 (citing cases), and most courts consider only the

plaintiff’s evidence. See Sanchez v. Sephora USA, Inc., No. 11 Civ. 03396, 2012 WL 2945753, at

*4 (N.D. Cal. July 18, 2012) (Armstrong, J.) (“federal courts are in agreement that evidence from

the employer is not germane at the first stage of the certification process, which is focused simply

on whether notice should be disseminated to potential claimants”); Ramirez v. Ghilotti Bros. Inc.,

941 F. Supp. 2d 1197, 1203 (N.D. Cal. 2013) (Breyer, J.) (“courts need not even consider

evidence provided by defendants at this stage”); Luque v. AT & T Corp., No. 09 Civ. 5885, 2010

WL 4807088, at *5 (N.D. Cal. Nov. 19, 2010) (Breyer, J.) (same); cf. Villa v. United Site Servs. of

California, Inc., No. 12 Civ. 318, 2012 WL 5503550, at *13-15 (N.D. Cal. Nov. 13, 2012) (Koh,

J.) (certifying collective based on plaintiff’s allegations and three declarations, and declining to

consider over 200 declarations submitted by defendants, which had little “probative value” and

were gathered under circumstances giving rise to a risk of coercion).

B. Plaintiffs’ Showing Provides a Reasonable Basis for the Collective Claims.

PwC’s documents, together with Plaintiffs’ allegations, witness declarations, and

statistical analysis, “bind[] together” the class members’ claims, making adjudication on a

collective-wide basis appropriate. K.H., 2016 WL 3879246, at *3. These allegations and

evidence support Plaintiffs’ argument that PwC’s policies and practices treat older workers

discriminatorily and have a disparate impact against them. Specifically, Plaintiffs have put

forward more than modest evidence that PwC deliberately recruits and hires Millennials to fill the

Covered Positions to the detriment of older workers. PwC accomplishes this by focusing its

recruiting efforts on college campuses, encouraging younger individuals to apply, discouraging

older applicants and would-be applicants, shunting older applicants to FTN positions with limited

future potential and fewer benefits, and fostering a culture of age bias by targeting Millennial

workers, portraying its workplace as a place where only young people fit in, and denigrating older


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



workers as “non-traditional,” unwilling to work long hours, or the wrong “fit.” Supra Factual

Background § II.

PwC’s data, analyzed by labor economist Dr. Neumark, are consistent with Plaintiffs’

allegations. Dr. Neumark’s analyses present powerful evidence that PwC’s culture of bias and

programmatic efforts to give preference to younger applicants have resulted in statistically

significant disparities in the rates of hire for younger and older applicants for each Covered

Position, in each relevant LOS, and with regard to both campus and experienced track hiring.

Supra Factual Background § IV. The differences that Dr. Neumark observed are statistically

significant and meet the threshold that courts accept as probative evidence of discrimination. See

id. at 16.

Witness testimony also supports the data. Older applicants testified that PwC denied them

jobs in the Covered Positions despite their qualifications, and described various aspects of PwC’s

preference for recruiting, catering to, and hiring younger applicants. Supra Factual Background §

II(A).

This evidence is more than sufficient to provide a “reasonable basis for [Plaintiffs’] claim

of class-wide” unlawful conduct. Morton, 2007 WL 1113999, at *2 (internal quotations omitted);

see Coates v. Farmers Grp., Inc., No. 15 Civ. 1913, 2015 WL 8477918, at *9-10 (N.D. Cal. Dec.

9, 2015) (Koh, J.) (conditionally certifying nationwide class of female attorneys in eleven

different job grades and titles who were subject to common compensation and performance

evaluation policies).

III. The Court Should Approve Plaintiffs’ Proposed Notice Plan.

Plaintiffs’ Notice plan furthers the “legitimate goal of avoiding a multiplicity of

duplicative suits,” Hoffman-La Roche, 493 U.S. at 172, and should be approved.

Plaintiffs’ proposed Notice provides “accurate and timely notice” of the collective action.

Deatrick, 2014 WL 5358723, at *2 (internal quotation marks omitted). Modeled on the Federal

Judicial Center’s model class action notices, it uses neutral, straightforward language to provide

background (clarifying that the Court has not yet ruled on the merits), and it informs potential


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



collective members of their rights and the consequences of joining the lawsuit. See Ex. 1

(Proposed Notice).108

The Notice attaches substantially the same Consent to Join (“CTJ”) form that other

collective members have already used to opt in to the lawsuit. See Ex. 2 (Proposed CTJ).

Plaintiffs propose the standard methods for disseminating notice (mail and email, with a

reminder near the end of the opt-in period) and allowing potential collective members to opt in

(by website, email, mail, and fax).

Courts routinely approve the inclusion of e-mail addresses with other contact information

for notice purposes, in recognition of the growing preference for communication by that method.

See, e.g., Alvarez v. Farmers Ins. Exch., No. 14 Civ. 574, 2014 WL 4685031, at *5 (N.D. Cal.

Sept. 19, 2014) (Orrick, J.) (ordering production of e-mail addresses and telephone numbers with

conditional certification); Margulies v. Tri-Cty. Metro. Transp. Dist. of Oregon, No. 13 Civ. 475,

2013 WL 5593040, at *21 (D. Or. Oct. 10, 2013); Lewis v. Wells Fargo & Co., 669 F. Supp. 2d

1124, 1128 (N.D. Cal. 2009) (Wilken, J.).

In addition, consistent with notice best practices, Plaintiffs propose making a website

available through which potential collective members can learn about the case, read the Notice,

and electronically submit a CTJ form, if they so choose. Courts in this District have previously

authorized the use of a website for purposes of facilitating notice and enabling class members to

submit CTJ forms online. See Deatrick, 2014 WL 5358723, at *6 (approving use of website

repository for dissemination of notice forms and online submission with proper verification);

Woods v. Vector Mktg. Corp., No. 14 Civ. 0264, 2015 WL 1198593, at *4 (N.D. Cal. Mar. 16,

2015) (Chen, J.); Walton v. AT&T Servs., Inc., No 15 Civ. 3653 (N.D. Cal. Sept. 15, 2016)

(Chhabria, J.) (“AT&T Order”), ECF. No. 107 (Order Granting in Part Plaintiffs’ Motion for

108 Exhibit 2 is the proposed CTJ, followed by a single page (the backside of the CTJ) allowing collective members to provide contact information so that it is included with their CTJs. Without that backside page, some CTJ forms would likely be sent in without detailed, legible identifying information, thus impeding identification of, and communication with, collective members. Plaintiffs intend to pre-print the mailed CTJs and backside pages with each collective member’s information.


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



Conditional Certification) at 3; Zaborowski v. MHN Gov’t Servs., Inc., No. 12 Civ. 5109 (N.D.

Cal. May 23, 2013), ECF No. 96 at 1.109

Lastly, Plaintiffs propose sending a reminder notice toward the end of the opt-in period.

Courts in this District commonly approve such reminders, as this Court has previously done. See

Ex. 3 (Proposed Reminder Postcard); Deatrick, 2014 WL 5358723, at *5 (ordering issuance of

reminder postcards over defendant’s objection); see also AT&T Order at 3 (approving use of

reminder notice); Harris v. Vector Mktg. Corp., 716 F. Supp. 2d 835, 847 (N.D. Cal. 2010)

(Chen, J.) (rejecting argument that reminder notice is “harassing” or “invasive”); Sanchez, 2012

WL 2945753, at *6 (authorizing reminder notice). In Plaintiffs’ counsel’s experience, potential

collective members sometimes intend to join but fail to do so promptly because of other

obligations, and a reminder regarding the deadline can help them act on their intentions.

For similar reasons, Plaintiffs propose that class members have 90 days during which to

determine whether to join. This notice period is commonly ordered in this District. See Flores,

2013 WL 2468362, at *9-10 (granting 90-day opt-in period and rejecting 45 day period);

Deatrick, 2014 WL 5358723, at *5-6 (90-day opt-in period); Sanchez, 2012 WL 2945753, at *6

(“timeframes of sixty to ninety days appear to have become the presumptive standard in this

District”); Cancilla v. Ecolab, Inc., No. 12 Civ. 03001, 2014 WL 11171549, at *1 (N.D. Cal. Apr.

3, 2014) (Breyer, J.) (same); Gee v. Suntrust Mortg., Inc., No. 10 Civ. 1509, 2011 WL 722111, at

*4 (N.D. Cal. Feb. 18, 2011) (Seeborg, J.) (same). A 90-day period will allow potential collective

members to become informed about the case and raise any questions they may have.

To facilitate notice, Plaintiffs request production of contact information, including mailing

addresses, email addresses, and telephone numbers, for potential collective members. Although

109 See also Kesley v. Entm’t U.S.A. Inc., 67 F. Supp. 3d 1061, 1073 (D. Ariz. 2014) (approving online submission of consent forms); Mark v. Gawker Media LLC, No. 13 Civ. 4347, 2014 WL 5557489, at *1, *3 (S.D.N.Y. Nov. 3, 2014) (granting plaintiff’s request to create two stand-alone websites containing a notice and consent form that let potential plaintiffs submit the consent form electronically); Jones v. JGC Dallas LLC, No. 11 Civ. 2743, 2012 WL 6928101, at *4-5, *8 (N.D. Tex. Nov. 29, 2012), report and recommendation adopted, 2013 WL 271665, at *1 (N.D. Tex. Jan. 23, 2013) (approving online submission of consent forms); Carlson v. Leprino Foods Co., No. 05 Civ. 798, 2006 WL 2375046, at *1-2, *4 (W.D. Mich. Aug. 15, 2006) (approving online submission of consent forms).


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



PwC previously produced this information for applicants who formally applied to Tax and

Assurance through Source1, it has not produced data for candidates who attempted to apply to a

Covered Position by communicating with a PwC recruiter or third-party agency recruiter, but who

did not formally apply in Source1. PwC maintains repositories of information about these

applicants (including a sophisticated database called Smashfly, which replaced Social Source and

individual-recruiter-maintained spreadsheets). Supra Factual Background § III(B)(3); see Lewis,

669 F. Supp. 2d at 1129-30 (ordering production of potential collective members’ email addresses

and telephone numbers); Alvarez, 2014 WL 4685031, at *4-5 (same); Ramirez, 941 F. Supp. 2d at

1211 (same).

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Court enter an order: (1)

conditionally certifying the proposed collective; (2) approving Plaintiffs’ proposed notice and

distribution plan; and (3) requiring PwC to produce the collective member data discussed above.

Dated: December 7, 2017 Respectfully submitted,

By: /s/ Jahan C. Sagafi Jahan C. Sagafi Jahan C. Sagafi (Cal. Bar No. 224887) Cristina Schrum-Herrera (Cal. Bar No. 315319) OUTTEN & GOLDEN LLP One Embarcadero Center, 38th Floor San Francisco, CA 94111 Telephone: (415) 638-8800 Facsimile: (415) 638-8810 E-mail: [email protected] E-mail : [email protected]

Adam T. Klein (admitted pro hac vice) Melissa L. Stewart (admitted pro hac vice) Daniel Stromberg (admitted pro hac vice) OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Telephone: (212) 245-1000 Facsimile: (646) 509-2060 E-mail: [email protected]


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



E-mail: [email protected] E-mail: [email protected] Lucy B. Bansal (admitted pro hac vice) OUTTEN & GOLDEN LLP 601 Massachusetts Avenue NW, Second Floor West Washington, D.C. 20001 Telephone: (202) 847-4400 Facsimile: (202) 847-4410 E-mail: [email protected]

Daniel Kohrman (admitted pro hac vice) Laurie McCann (admitted pro hac vice) Dara Smith (admitted pro hac vice) AARP FOUNDATION LITIGATION 601 E. Street, N.W. Washington, D.C. 20049 Telephone: (202) 434-2060 Facsimile: (202) 434-2082 E-mail: [email protected] E-mail: [email protected] E-mail: [email protected]

Jennifer L. Liu (Cal. Bar No. 279370) THE LIU LAW FIRM, P.C. 1170 Market Street, Suite 700 San Francisco, CA 94102 Telephone: (415) 896-4260 Facsimile: (415) 231-0011 E-mail: [email protected]

Attorneys for Plaintiffs and Proposed Class and Collective Members


Documents

REDACTED VERSION OF DOCUMENT(S) SOUGHT TO BE …...STEVE RABIN and JOHN CHAPMAN, on behalf of themselves, and all others similarly situated, Plaintiffs, v. PRICEWATERHOUSECOOPERS LLP,