Trevino Opposition To Class Cert

Case 1:18-cv-00120-DAD-BAM Document 119 Filed 01/13/20 Page 1 of 31
1 MICHELE L. MARYOTT, SBN 191993

[email protected]
2 ASHLEY ALLYN, SBN 254559
[email protected]
3 GIBSON, DUNN & CRUTCHER LLP
3161 Michelson Drive
4 Irvine, CA 92612-4412
Telephone: 949.451.3800 | Facsimile: 949.451.4220
5 JASON C. SCHWARTZ (admitted pro hac vice)
[email protected]
1050 Connecticut Avenue, N.W.
7 Washington, DC 20036-5306
Telephone: 202.955.8500 | Facsimile: 202.467.0539
8
KATHERINE V.A. SMITH, SBN 247866
9 [email protected]
HELEN AVUNJIAN, SBN 300284
10 [email protected]
GIBSON, DUNN & CRUTCHER LLP
11 333 South Grand Avenue
Los Angeles, CA 90071-3197
12 Telephone: 213.229.7000 | Facsimile: 213.229.7520
Attorneys for Defendants GOLDEN STATE FC LLC
13 (now known as AMAZON.COM SERVICES LLC),
AMAZON.COM, INC. and AMAZON FULFILLMENT
14 SERVICES, INC. (now known as AMAZON.COM
SERVICES LLC)
15
16 UNITED STATES DISTRICT COURT

17 EASTERN DISTRICT OF CALIFORNIA
18 FRESNO DIVISION
19 JUAN TREVINO, CHRISTOPHER WARD, LEAD CASE NO. 1:18-cv-00120-DAD (BAM)
LINDA QUINTEROS, ROMEO PALMA, Member Case No: 1:18-cv-00121-DAD-BAM
20 BRITTANY HAGMAN, ALBERTO Member Case No: 1:18-cv-00567-DAD-BAM
GIANINI, and JUAN C. AVALOS, on behalf Member Case No: 1:18-cv-01176-DAD-BAM
21 of themselves and all others similarly situated, Member Case No: 1:17-cv-01300-DAD-BAM
22 Plaintiffs, DEFENDANTS’ OPPOSITION TO
PLAINTIFFS’ MOTION FOR CLASS
23 v. CERTIFICATION
24 GOLDEN STATE FC LLC, a Delaware Hearing:
Limited Liability Company; AMAZON.COM Date: February 21, 2020
25 INC., a Delaware Corporation, AMAZON Time: 9:00 AM
FULFILLMENT CENTERS, INC. a Delaware Place: Courtroom 8
26 Corporation, and Does 1 through 10, inclusive, Judge: Magistrate Judge Barbara A. McAuliffe
27 Defendants.
28
DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MO-
Gibson, Dunn &
Crutcher LLP
TION FOR CLASS CERTIFICATION –
1:18-CV-00120-DAD (BAM)
1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION .................................................................................................................... 1
4 II. RELEVANT FACTUAL BACKGROUND ............................................................................. 3
5 A. Security Screening Practices (Classes 1 to 4) ............................................................... 3
6 B. Clocking In and Clocking Out (Classes 5 and 7) .......................................................... 6
7 C. Meal and Rest Break Practices (Classes 3 through 7) .................................................. 8
8 D. Wage Statements (Class 8)............................................................................................ 9
9 III. LEGAL STANDARD ............................................................................................................. 10
10 IV. ARGUMENT .......................................................................................................................... 10
11 A. Plaintiffs Have Failed to Prove That Either the Commonality or Predominance

Requirements Are Met for the Security Screening Classes ........................................ 10
12
B. Whether Rounded Time Is Compensable “Time Worked” And Entitles Certain
13 Associates to a Third Rest Break Cannot Be Established on a Classwide Basis ........ 16
14 C. Plaintiffs’ Second Meal Break Waiver Class Requires Individualized Inquiries ....... 20
15 D. Whether Wage-Statement Class Members Can “Promptly and Easily”

Determine the Total Hours Worked and Suffered an Actual Injury Requires
16 Individualized Inquiries .............................................................................................. 21
17 E. Plaintiffs’ Derivative Claims Should Not Be Certified............................................... 24
18 F. Plaintiffs Offer No Method of Manageably Trying the Individualized Issues ........... 24
19 V. CONCLUSION ....................................................................................................................... 25
20
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23
24
25
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27
28
i DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MO-
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1 TABLE OF AUTHORITIES
2 Page(s)
3
Cases
4
Allchin v. Volume Servs., Inc.,
5 2017 WL 3337141 (S.D. Cal. Aug. 4, 2017) ..................................................................................24
6 Am. Express Co. v. Italian Colors Rest.,
7 570 U.S. 228 (2013) ..........................................................................................................................3
8 Augustus v. ABM Security Servs., Inc.,

2 Cal. 5th 257 (2016) ......................................................................................................................15
9
Badie v. Bank of Am.,
10 67 Cal. App. 4th 779 (1998) ...........................................................................................................20
11 Bono Enters., Inc. v. Bradshaw,
12 32 Cal. App. 4th 968 (1995) ...........................................................................................................15
13 Brinker Rest. Corp. v. Superior Court,

53 Cal. 4th 1004 (2012) ..................................................................................................................14
14
Ceja-Corona v. CVS Pharmacy, Inc.,
15 2015 WL 222500 (E.D. Cal. Jan. 14, 2015)....................................................................................15
16 Cervantez v. Celestica Corp.,
253 F.R.D. 562 (C.D. Cal. 2008) ....................................................................................................15
17
18 Comcast Corp. v. Behrend,

569 U.S. 27 (2013) ....................................................................................................................10, 25
19
Cordoba v. DIRECTV, LLC,
20 942 F.3d 1259 (11th Cir. 2019).......................................................................................................23
21 Cornn v. United Parcel Serv., Inc.,
2005 WL 2072091 (N.D. Cal. Aug. 26, 2005)................................................................................16
22
Duran v. U.S. Bank Nat'l Assn.,
23
59 Cal. 4th 1 (2014) ..................................................................................................................24, 25
24
Ellis v. Costco Wholesale Corp.,
25 657 F.3d 970 (9th Cir. 2011)...........................................................................................................25
26 Ferreras v. American Airlines, Inc.,

2019 WL 7161214 (3d Cir. Dec. 24, 2019) ....................................................................................19
27
Forrand v. Fed. Exp. Corp.,
28
2013 WL 1793951 (C.D. Cal. Apr. 25, 2013) ................................................................................20
ii DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MO-
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TABLE OF AUTHORITIES
1 (continued)
2 Page(s)
3 Green v. Fed. Exp. Corp.,

614 F. App’x 905 (9th Cir. 2015) ...................................................................................................20
4
Heredia v. Eddie Bauer LLC,
5 2018 WL 369032 (N.D. Cal. Jan. 10, 2018) ...................................................................................15
6
Lampe v. Queen of the Valley Med. Ctr.,
7 19 Cal. App. 5th 832 (2018) ...........................................................................................................21
8 Mazza v. Am. Honda Motor Co.,

666 F.3d 581 (9th Cir. 2012).....................................................................................................15, 23
9
McKenzie v. Federal Express Corp.,
10 765 F. Supp. 2d 1222 (C.D. Cal. 2011) ..........................................................................................22
11
Mejia v. DHL Express (USA), Inc.,
12 2016 WL 9450680 (C.D. Cal. Feb. 25, 2016) .................................................................................17
13 Moore v. Ulta Salon, Cosmetics & Fragrance, Inc.,

311 F.R.D. 590 (C.D. Cal. 2015) ....................................................................................................15
14
Morillion v. Royal Packing Co.,
15 22 Cal. 4th 575 (2000) ........................................................................................................10, 13, 20
16 Otsuka v. Polo Ralph Lauren Corp.,
17 251 F.R.D. 439 (N.D. Cal. 2008) ....................................................................................................15
18 Overton v. Walt Disney Co.,

136 Cal. App. 4th 263 (2006) .........................................................................................................13
19
Pelz v. Abercrombie & Fitch Stores, Inc.,
20 2015 WL 12712298 (C.D. Cal. June 4, 2015) ................................................................................15
21 Pryor v. Aerotek Scientific, LLC,
278 F.R.D. 516 (C.D. Cal. 2011) ....................................................................................................19
22
23 Purnell v. Sunrise Senior Living Mgmt., Inc.,

2012 WL 1951487 (C.D. Cal. Feb. 27, 2012) .................................................................................12
24
Quinlan v. Macy’s Corp. Servs., Inc.,
25 2013 WL 11091572 (C.D. Cal. Aug. 22, 2013) ..............................................................................16
26 Raines v. Coastal Pac. Food Distribs., Inc.,
23 Cal. App. 5th 667 (2018) ...........................................................................................................22
27
28 Ritenour v. Carrington Mortg. Servs.,

2018 WL 5858658 (C.D. Cal. Sept. 12, 2018)................................................................................23
iii DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MO-
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TABLE OF AUTHORITIES
1 (continued)
2 Page(s)
3 Rodriguez v. Taco Bell Corp.,

896 F.3d 952 (9th Cir. 2018).....................................................................................................10, 13
4
Sali v. Corona Reg’l Med. Ctr.,
5 909 F.3d 996 (9th Cir. 2018)...........................................................................................................25
6
Scott-George v. PVH Corp.,
7 2016 WL 3959999 (E.D. Cal. July 22, 2016) .................................................................................13
8 See’s Candy Shops, Inc. v. Superior Court,

210 Cal. App. 4th 889 (2012) .........................................................................................................17
9
Shiferaw v. Sunrise Senior Living Mgmt., Inc.,
10 2014 WL 12585796 (C.D. Cal. June 11, 2014) ..................................................................12, 19, 20
11
Spokeo, Inc. v. Robins,
12 136 S. Ct. 1540 (2016) ....................................................................................................................23
13 Tompkins v. 23andMe, Inc.,

840 F.3d 1016 (9th Cir. 2016).........................................................................................................22
14
Tyson Foods, Inc. v. Bouaphakeo,
15 136 S. Ct. 1036 (2016) .............................................................................................................23, 25
16 Vasquez v. First Student, Inc.,
17 2015 WL 1125643 (C.D. Cal. Mar. 12, 2015) ................................................................................24
18 Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) ..............................................................................................................3, 10, 25
19
Zinser v. Accufix Research Inst., Inc.,
20 253 F.3d 1180 (9th Cir. 2001).........................................................................................................10
21 Statutes
22 Cal. Lab. Code § 226 ......................................................................................................................21, 23
23
Cal. Lab. Code § 226(e)(2)(B) ..............................................................................................................21
24
Cal. Lab. Code § 512 ............................................................................................................................21
25
Rules
26
Fed. R. Civ. P. 23(b)(3)(D) ...................................................................................................................24
27
28
iv DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MO-
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1 I. INTRODUCTION
2 Plaintiffs move for certification of eleven sprawling classes covering over 200,000 current and
3 former employees who worked in over fifty facilities of various types throughout California and who
4 assert a hodgepodge of factually and legally distinct claims. Plaintiffs ask this Court to do the impos-
5 sible: adjudicate multiple individualized liability questions on a classwide basis without any classwide
6 proof or plan for providing such proof. Despite having the burden to prove that the requirements of
7 Rule 23 are satisfied, Plaintiffs’ motion is notable for what it omits. Plaintiffs have not submitted a
8 single absent class member declaration, and instead rely on assumptions and extrapolations from the
9 named Plaintiffs’ own idiosyncratic experiences at Amazon. Their expert’s damages model is similarly
10 based on speculative leaps, not actual evidence. And Plaintiffs’ trial plan fails to even acknowledge,
11 let alone grapple with, the individualized liability issues and defenses implicated by Plaintiffs’ claims.
12 Even though Amazon does not have the burden to show that class certification is improper, it
13 has done the work that Plaintiffs failed to do and gathered voluminous actual evidence of the disparate
14 experiences of putative class members. Specifically, Amazon is submitting concurrently with this op-
15 position 92 declarations from putative class members who had vastly different work experiences at 13
16 worksites throughout California. Amazon is also submitting expert analyses of time punch and entry
17 and exit swipe records, which show that the time between clocking out and exiting the facility varied
18 widely and did not depend on the existence of any exit screening, and that the majority of associates at
19 least occasionally left the facilities during meal and rest breaks. Additional evidence includes live
20 observations confirming that many associates did not even break stride during exit screening and spent
21 time engaging in personal activities while inside Amazon facilities, including while clocked in.
22 When all the evidence is considered, it is apparent that Plaintiffs have not proven and cannot
23 prove that any questions relating to exit security screening, meal and rest breaks, rounding, and wage
24 statements can be properly resolved in a classwide trial, particularly given the size and scope of the
25 proposed classes here. Nor do they even attempt to explain how the numerous individualized questions
26 implicated by their claims and proposed classes could be manageably adjudicated together. Certifying
27 a class in the face of these failures will result in classes filled with associates whose claims and injuries
28 are too dissimilar to be resolved in one stroke. Worse still, thousands of uninjured persons would be
1 DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MO-
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1 swept within these classes, raising the prospect of unjustified windfalls in contravention of Article III.
2 Each of Plaintiffs’ proposed class claims turn on individualized liability questions. While the
3 claims premised on Amazon’s use of exit screenings require an assessment of whether the time spent
4 in such screenings constitutes compensable work, the putative class was not subjected to uniform
5 screenings. In fact, some facilities had no screenings at all, and those that did have screenings did not
6 conduct them uniformly. These differences are compounded by employees’ personal choices regarding
7 their activities after clocking out but before exiting or what items to wear or carry, if any. For many,
8 the “screening” consisted of nothing more than walking through a metal detector without breaking
9 stride. Because there is no uniform form of screening across dozens of California facilities, it is not
10 possible to resolve on a classwide basis whether time spent in such screening is compensable.
11 Plaintiffs also seek to certify classes based on their contention that Amazon’s rounding policy
12 deprived them of pay for the handful of minutes between clocking in and shift start, or between shift
13 end and clocking out. But whether this time was compensable cannot be assessed on a classwide basis
14 either. Plaintiffs appear to assume that any activities engaged in during that time constituted “work,”
15 but there is no basis for that assumption: associates engaged in a variety of non-compensable activities
16 during those minutes, as the dozens of associate declarations and direct observations show, such as
17 socializing, visiting the breakroom, or eating. Indeed, many associates testified they could not work
18 before their shift start even if they wanted to. Moreover, whether associates “gained” or “lost” time
19 from rounding varies by associate, because some associates “gained time” when they waited until the
20 end of the rounding period to clock in or stopped work early at the end of their shift.
21 Plaintiffs’ wage-statement class is likewise based on erroneous assumptions meant to obscure
22 the individualized nature of the claim. Plaintiffs ask the Court to presume that every putative class
23 member suffered an injury if they had a wage statement that lacked a “total hours worked” line item.
24 But Plaintiffs overlook the fact that the supposedly missing line item appeared on thousands of wage
25 statements provided to associates in the proposed class, and that associates who received statements
26 without the “total hours worked” line item could have determined their total hours worked through
27 simple arithmetic, negating any presumption of injury. Thus, whether associates suffered an actual
28 injury is an inherently individualized question turning on what harm, if any, they suffered.
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1 Plaintiffs’ second meal break claims cannot be resolved on a classwide basis either. Plaintiffs’
2 contention that the second meal break waivers are “ambiguous” and “unintelligible” is not only devoid
3 of any explanation or example, it is countered by testimony that many associates understood the waiv-
4 ers and knew that they could revoke at any time. Several named Plaintiffs even admitted that the only
5 “confusion” they experienced was forgetting that they signed the waiver. In any event, whether an
6 associate voluntarily waived a given meal period on a particular day requires an individualized inquiry
7 into the associate and the shift in question, as well as the particular form of waiver in effect at that time.
8 In short, Plaintiffs have not proven that the “stringent requirements for certification,” which “in
9 practice exclude most claims,” are met here. Am. Express Co. v. Italian Colors Rest., 570 U.S. 228,
10 234 (2013). Instead, they have improperly treated Rule 23 as a “mere pleading standard.” Wal-Mart
11 Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). The Court should deny certification as to all classes.
12 II. RELEVANT FACTUAL BACKGROUND1
13 A. Security Screening Practices (Classes 1 to 4)
14 Four of Plaintiffs’ proposed classes are based on the allegation that Amazon uses “uniform exit
15 screening security procedures.” Mot. at 2. The evidence shows, however, that there is nothing uniform.
16 Some, but not all, of Amazon’s California facilities include exit screenings, in the form of metal
17 detectors located at the exits of the building. Declaration of Cody Carr (“Carr Decl.”) ¶ 3; Ex. D, Carr
18 Tr. 24:23–25:5, 30:21–25, 132:16–19. Fulfillment Centers—where associates handle, package, and
19 fulfill customer orders—use exit screening to deter theft. Ex. D, Carr Tr. 10:12–20; Carr Decl. ¶ 4.
20 Sort Centers—where the packages from Fulfillment Centers are then routed to customers, Ex. D, Carr
21 Tr. 10:12–20—vary in whether they use exit screening. Ex. 86, Wendell Decl. ¶ 16; Ex. D, Carr Tr.
22 16:6–8, 40:4–13. Delivery Stations—which facilitate the distribution of packages to customers, Ex. D,
23 Carr Tr. 12:21–25—do not have exit screening at all. Ex. 75, Salas Decl. ¶ 17; Ex. D, Carr Tr. 14:3–
24
1
25 Lettered exhibits, expert declarations, and deposition transcripts are exhibits to the Declaration of
Katherine V.A. Smith in Support of Amazon’s Opposition. Declarations of putative class members are
26 exhibits to the Compendium of Declarations of Putative Class Members in Support of Amazon’s Op-
position, and all numbered exhibits are to exhibits attached to the Compendium. For the Court’s con-
27 venience, and in accordance with Federal Rule of Evidence 1006, Amazon has provided summaries of
key excerpts of putative class member declarations as Exhibits BB through II to the Smith Declaration.
28
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1 5. With the exception of Amazon Air2, associates are not screened entering buildings. Carr Decl. ¶ 3.
2 Even among those facilities with exit screening, “[n]o building is identical” and no “security
3 screening looks [a]like.” Ex. D, Carr Tr. 101:7–23. The screening experience varies based on, among
4 other factors, the kind of screening line, the time of the year, and the choices associates make, as asso-
5 ciates can expedite or avoid entirely the screening process by leaving their personal belongings in lock-
6 ers inside the facility but outside the screening area. Ex. G, Trevino Tr. 158:12–159:21; Ex. 73, Rocha
7 Decl. ¶ 14; Ex. 47, Ibarra Decl. ¶ 6; Ex. 34, Dinh Decl. ¶ 25. The lockers, available at all facilities with
8 screening, allow associates to avoid bringing in items that would need to be searched upon exiting.
9 Carr Decl. ¶ 6.
10 At facilities with exit screening, the screening occurs in the ordinary path of travel between the
11 work floor and the exit. Ex. 86, Wendell Decl. ¶ 16; Carr Decl. ¶ 4. The number of lanes and metal
12 detectors ranges from two to ten, depending on facility size, and can significantly affect the rate at
13 which associates pass through screening. Carr Decl. ¶ 5; Ex. F, Gianini Tr. 77:20–78:23; Ex. G, Tre-
14 vino Tr. 103:6–16; Ex. 68, Penner Decl. ¶¶ 22–23. Some facilities have different kinds of lanes: some
15 for associates carrying bags or metal, see, e.g., Ex. 80, Terry Decl. ¶ 27, others that are “express” and
16 permit associates without items to “walk through” unimpeded. Ex. D, Carr Tr. 46:24–48:13. Further,
17 at various times during the class period, the metal detectors at some facilities were deactivated, result-
18 ing in no screening at all. Ex. 46, Hernandez Decl. ¶ 14; Carr Decl. ¶ 3; Ex. 86, Wendell Decl. ¶ 16.
19 Many associates walk through exit screenings without having to stop, Ex. 85, Velazquez Decl.
20 ¶ 30, or “even really slowing down,” Ex. 54, Lopez Decl. ¶ 21; see also, e.g., Ex. 47, Ibarra Decl. ¶ 23;
21 Ex. 7, Baca Decl. ¶ 9; Ex. 16, Calderon Decl. ¶ 14; Ex. 32, DeLaCerda Decl. ¶ 14; Ex. 36, Dunn Decl.
22 ¶ 30. Associates describe going through security as “pretty easy”—just “walking through the metal
23 detectors in a single file without stopping.” Ex. 1, Aceves Decl. ¶ 32. Associates are not required to
24 bring anything into the facility; any personal items are for their convenience. Carr Decl. ¶ 6. Even
25 associates who bring keys or a water bottle “can walk straight through security,” Ex. 11, Bhardwaj
26 Decl. ¶ 13; see also Ex. 37, Flores Decl. ¶ 20; Ex. 48, Jensen Decl. ¶ 27, as can associates not using the
27
2
28 FAA regulations mandate entrance and exit screening at Amazon Air facilities. Carr Decl. ¶ 3.

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1 express lane, Ex. 35, Dominguez Decl. ¶ 18 (walks though security “without even really slowing down
2 all that much as there is never a line”). Some associates recalled “rare times” when “it can take up to
3 two minutes to get through security,” Ex. 37, Flores Decl. ¶ 21, and named Plaintiff Ward claimed
4 there were two instances where it “took about 15 minutes.” Ex. H, Ward Tr. 110:18–112:12.
5 Moreover, the screening experience could vary based on where the employee is working in the
6 facility; Plaintiff Avalos admitted he was able to walk straight through security if he was working near
7 the entrance when his shift ended. Ex. I, Avalos Tr. 79:21–80:10. It could also vary by time of year,
8 especially because some facilities would modify their practices at busier times to avoid delays. Dec-
9 laration of Jimmy Oholt ¶ 7. This would include “flushing” the lanes, allowing large numbers of asso-
10 ciates to pass through and not stop even if the metal detector was triggered. Id.
11 Some associates undergo additional screening when they set off the metal detector. But even
12 they report that it takes between 20 seconds and “a minute or so.” Ex. 66, Neely Decl. ¶ 30; Ex. 58,
13 Magallanes Decl. ¶ 32; Ex. 54, Lopez Decl. ¶ 21. Screenings can also be more extensive for associates
14 who choose to bring personal belongings to their work area, rather than using the lockers or leaving
15 items in their cars, but even then, the screening can vary by the type of item. For example, associates
16 carrying a clear container, such as a water bottle, can “walk straight through security” without stopping,
17 Ex. 11, Bhardwaj Decl. ¶ 13, and without “open[ing] and show[ing]” its contents, Ex. D, Carr Tr.
18 103:8–23. Associates carrying other items, such as a large bag or keys, can be subject to a longer
19 security screening. Ex. 52, Kendall Decl. ¶ 27.
20 Amazon’s expert, Dr. Michael Ward, analyzed associate swipe data from entering and exiting
21 the facility and time-clock records and observed wide variations in the time taken to exit. He noted
22 that “sometimes employees clock out and exit the facility within the same minute while on other days”
23 employees in the same facility could take “several minutes” between clock out and exit. Ex. A, Expert
24 Report of Michael P. Ward (“Ward Rep.”) at 3. “Different employees have different patterns—some
25 have intervals that are typically much longer than others even within the same facility.” Id. Dr. Ward
26 analyzed the time between clocking out and exiting facilities across the entire proposed class and found
27 that, over the period from July 12, 2013 to August 11, 2019, 89.5% of all associates had a “minimum
28 exit interval time . . . less than one minute.” Id. at 6–7, 9. Dr. Ward confirmed from this analysis that
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1 security screenings did not delay associates in leaving the facilities: “the median exit time interval. . .
2 is shorter than the median entry interval time over all employees” (when associates do not pass through
3 security), finding that “[t]he interval times upon exit appear to be unrelated to whether the facility has
4 been identified as one with a metal detector in use as employees exit the facility.” Id. at 3, 7. “[N]o
5 conclusions can be drawn from these medians without understanding [the] individual[’]s activities as
6 they enter or leave the facility that account for the observed interval.” Id. at 7. Thus, the records say
7 nothing about what associates were doing during this time, making individual questioning necessary.
8 Through an analysis of live observations and surveillance footage of a randomized selection of
9 associates undergoing exit screening, Amazon’s expert, Elizabeth Arnold, confirmed not only that the
10 time in screening varies widely by individual, but that many associates move directly through the metal
11 detectors without slowing down. Ex. B, Expert Report of Elizabeth Arnold (“Arnold Rep.”) ¶ 131(g).
12 Indeed, some were even observed entering and exiting the facility “multiple times during the same
13 break.” Id. ¶ 133. Associates were observed engaging in purely voluntary activities that slowed their
14 movement though the screening area, such as stopping to speak with co-workers. Id. ¶ 131(g). And
15 Ms. Arnold observed that the time for associates to pass through metal detectors at facilities that employ
16 them was similar to the observed time for employees to leave facilities without active metal detectors
17 or other forms of security screening. Id. ¶¶ 113 n. 41, 115, 119, 127, 129, 131(g). Associates did
18 various things after security but prior to exiting, including socializing, sitting, using the restroom, or
19 waiting for a friend. See Ex. 70, Reed Decl. ¶ 15; Ex. 72, Robles Decl. ¶ 14; Ex. 55, Lord Decl. ¶ 14.
20 B. Clocking In and Clocking Out (Classes 5 and 7)
21 Plaintiffs also seek to certify a class of associates “subject to a rounding practice that resulted
22 in them being paid less than they would have received had no such rounding practice been utilized for
23 such employees,” as well as a class of those “scheduled to work a 10-hour shift [who] worked more
24 than 10 hours” who were not provided with a third break because of Amazon’s rounding policy, which
25 did not account for the possibility that “time class members spent in the secured facility prior to clock-
26 ing-in and after clocking-out constituted ‘hours worked.’” Mot. at 14–16.
27 Plaintiffs fail to explain that the rounding practice is the result of Amazon’s neutral five-minute
28 grace period, which allows associates flexibility by rounding

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1 Ex. X at 3. This
2 practice “account[s] for short periods of nonwork activities[] that associates may attend to at the be-
3 ginning or end of their shift,” such that “time clocked in within five minutes of shift start and end time
4 is rounded forwards or backwards.” Ex. C, Frauson Tr. 16:9–17; 16:25–17:9.
5 Associates differ in how they use the rounded time at the start of their shift from day to day,
6 sometimes clocking in a few minutes before their shift begins if they happened to arrive early, or a few
7 minutes past their shift start time because they are running a little late. See Ex. 73, Rocha Decl. ¶ 8
8 (clocking in fives minute late); Ex. 76, Shaikh Decl. ¶ 8 (same); Ex. 92, Zarate Decl. ¶ 6 (clocking in
9 four minutes late). Dr. Ward’s expert report confirms that, although some associates entered the facility
10 and went through the turnstiles “several minutes” before their shift, others “arrive much closer to their
11 start time” and others arrive after their shift start time. Ward Rep. at 4. Associates who enter the
12 facility before their shift start time were observed spending that time engaging in personal activities,
13 like socializing and using the restroom or break room. Arnold Rep. ¶¶ 89–90. Even after clocking in,
14 some associates go to the breakroom to stow personal items, socialize, or grab a cup of coffee. See Ex.
15 92, Zarate Decl. ¶¶ 7–8; Ex. 47, Ibarra Decl. ¶ 9; Ex. 62, Montes Decl. ¶ 9; Ex. 57, Macias Decl. ¶¶ 5–
16 6; Arnold Rep. ¶ 96. Associates also reported using the restroom, drinking, chatting with co-workers
17 about non-work related issues, eating, and using cell phones after clocking in. Arnold Rep. ¶ 95. Sig-
18 nificantly, associates testify that they cannot begin work until after the stand-up meeting at shift start
19 because the conveyor belts only begin moving after the meeting, Ex. 37, Flores Decl. ¶ 12, or they do
20 not receive their assignment for the day, or receive their scanner, until the stand-up, Ex. 84, Vazquez
21 Decl. ¶ 6; Ex. 81, Tilley Decl. ¶¶ 5–6.
22 Associates have the same flexibility when clocking out at the end of their shift, sometimes
23 punching out a few minutes prior to, or a few minutes after, their shift end. See Ex. 27, Cordova Decl.
24 ¶ 12 (clocking out five minutes early); Ex. 47, Ibarra Decl. ¶ 10 (same); Ex. 54, Lopez Decl. ¶ 10
25 (stopping work a few minutes early but clocking out at her shift-end time). After stopping work, but
26 before clocking out, associates “talk with co-workers, use the restroom, or stop by the break room.”
27 Ex. 64, Moya Decl. ¶ 15. Some associates stopped work more than five minutes before the end of their
28 shift, often leaving their workstation and waiting near the time clocks to punch out as soon as the clock
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1 hit five minutes prior to the end of their shift. See Ex. 8, Bahena Decl. ¶ 12; Ex. 38, Flores Decl. ¶ 13.
2 Associates also socialized and used the restroom or breakroom after stopping work but before clocking
3 out. See Ex. 15, Butler Decl. ¶ 11; Ex. 34, Dinh Decl. ¶ 10; Ex. 82, Tinoco Decl. ¶ 12.
4 C. Meal and Rest Break Practices (Classes 3 through 7)
5 Plaintiffs also seek to certify multiple classes based on meal and rest break practices, but these,
6 too, vary by facility, shift, and associate preferences.
7 Amazon provides all associates “a minimum ten-minute break for every four hours worked, or
8 major fraction thereof.” Ex. Y at 2. In practice though, Amazon schedules 15-minute rest breaks for
9 California associates—five minutes more than required by state law. Ex. D, Carr Tr. 67:7–9. The
10 timing of breaks varies depending “on the building and the department.” Id. at 63:6–13. Associates
11 may take breaks wherever they wish, and often leave the facilities during rest breaks to get some fresh
12 air, retrieve items from their vehicles, or use their cell phones. See Ex. E, Palma Tr. 98:22–99:4; Ex.
13 73, Rocha Decl. ¶ 12; Ex. 92, Zarate Decl. ¶ 12; Ex. 61, Mitchell Decl. ¶ 12; Ex. 63, Mosley Decl. ¶
14 12; Ex. 41, Garay Decl. ¶ 12; Ex. 18, Castelan Decl. ¶¶ 21–22; Arnold Rep. ¶ 101. Dr. Ward’s expert
15 analysis of swipe data and punch records shows that 58.8% of associates exited the facility at least once
16 for “at least a full 30 minutes during their meal break,” 73.7% exited at least once “for at least 10
17 minutes” for a rest break, and 82.3% exited at least once for a minimum of 7 minutes for a rest break.
18 Ward Rep. at 8–9. Associates sometimes take longer than 15 minutes on breaks without repercussions.
19 Ex. 18, Castelan Decl. ¶¶ 18–22 (18–19 minute breaks); Arnold Rep. ¶ 100. Associates scheduled for
20 shifts exceeding 10 hours are provided with a third rest break. Ex. D, Carr Tr. 88:13–25.
21 Associates are also provided with an unpaid 30-minute, uninterrupted meal period no later than
22 five hours into their shifts. Id. at 67:13–18; Ex. Y at 1. Associates clock out for meal breaks, cannot
23 clock back in until 30 minutes have passed, and have a three-minute grace period to clock back in. Ex.
24 D, Carr Tr. 67:13–68:6; Ex. C, Frauson Tr. 20:1–17. As with rest breaks, associates can and frequently
25 do leave the facility during their meal breaks. Ex. H, Ward Tr. 200:11–17; Ex. 53, Kiehle Decl. ¶¶ 12–
26 15; Arnold Rep. ¶ 101. Although Amazon maintains well-stocked breakrooms with food, beverage,
27 and entertainment options, which many (including the named Plaintiffs) chose to use, Ex. E, Palma Tr.
28 94:14–21, some associates prefer to eat in their car or go out to lunch. See Ex. 43, Gonzalez Decl. ¶¶
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1 19, 21; Ex. 53, Kiehle Decl. ¶¶ 12–15; Ex. 74, Rodriguez Decl. ¶ 25; Ex. 81, Tilley Decl. ¶ 12; Ex. 85,
2 Velazquez Decl. ¶ 23; Ex. 91, Zamarron Decl. ¶ 20; Ex. 48, Jensen Decl. ¶ 20; Ex. 69, Pratt Decl. ¶ 13;
3 Ex. 7, Baca Decl. ¶ 9; see also Ex. Y at 2. For example, one associate testified he selectively “eat[s]
4 in [the] car on cooler days.” Ex. 71, Risse Decl. ¶ 15. Another associate “get[s] money from [her] car,
5 come[s] back inside to buy food from the main breakroom, and go[es] back to [her] car to eat and use
6 [her] phone.” Ex. 63, Mosley Decl. ¶¶ 13–14. Ms. Arnold also identified associates who like to leave
7 the facilities during meal breaks, including one associate who eats lunch at home. Arnold Rep. ¶ 111.
8 When authorized by California law, Amazon permits associates to voluntarily waive meal pe-
9 riods by executing a waiver. Ex. C, Frauson Tr. 22:5–8; Ex. D, Carr Tr. 86:10–87:19. Many do so,
10 because they “prefer to go home early.” Ex. 47, Ibarra Decl. ¶ 20; see also Ex. 91, Zamarron Decl. ¶
11 23; Ex. 83, Valencia Decl. ¶ 23; Ex. 27, Cordova Decl. ¶ 22; Ex. 51, Kaur Decl. ¶ 21. Before 2015,
12 waivers were “managed locally at the site level” and varied by site. Ex. C, Frauson Tr. 24:10–14, 25:3–
13 8. During the class period, at least five different versions of a meal period waiver were executed by
14 associates. Frauson Decl. ¶ 3, Ex. Z. Since approximately 2015, associates have been presented with
15 an electronic meal period waiver form during onboarding. Ex. C, Frauson Tr. 23:11–24:9. They are
16 informed that the execution of the waiver is entirely voluntary and they can withdraw it at any time or
17 decline to execute it altogether. See Ex. 54, Lopez Decl. ¶ 19; Ex. 68, Penner Decl. ¶ 19; Ex. 19,
18 Cathcart Decl. ¶ 23; Ex. AA at 1–2; Frauson Decl. ¶ 4. Associates may change their election by con-
19 tacting H.R. staff, Frauson Decl. ¶ 4; Ex. C, Frauson Tr. 30:4–7, 31:2–7, 35:13–36:22, and may deviate
20 from that selection during any given shift, Ex. C, Frauson Tr. 31:10–32:8; Ex. Z at 2; Carr Decl. ¶ 7.
21 D. Wage Statements (Class 8)
22 Amazon’s payroll processing vendor, ADP, provides all associates with wage statements. Ex.
23 C, Frauson Tr. 39:11–40:15. During the class period, Amazon issued many different versions of wage
24 statements. Osborne Decl. ¶ 3. Some included a line item of “Reg Ot Dt,” with the total of regular,
25 overtime, and double time hours worked in the pay period. Id. Others did not include this item. Id.
26 Some included line items listing regular, overtime, and double time hours worked. Id. ¶ 4. Beginning
27 on January 1, 2019, all wage statements displayed a line item listing the total hours worked. Id. ¶ 5.
28
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1 III. LEGAL STANDARD
2 To certify a class, “the trial court must conduct a ‘rigorous analysis’ to determine whether the
3 party seeking certification has met the prerequisites of Rule 23.” Zinser v. Accufix Research Inst., Inc.,
4 253 F.3d 1180, 1186 (9th Cir. 2001). Plaintiffs must prove that there “‘are in fact sufficiently numerous
5 parties, common questions of law or fact,’ typicality of claims or defenses, and adequacy of represen-
6 tation, as required by Rule 23(a).” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Dukes,
7 564 U.S. at 350). Rule 23(b)(3) further requires proof that “questions of law or fact common to class
8 members predominate over any questions affecting only individual members,” and that a class action
9 is superior to other available methods for fairly and efficiently adjudicating the controversy. Id. at 34.
10 IV. ARGUMENT
11 A. Plaintiffs Have Failed to Prove That Either the Commonality or Predominance Require-
ments Are Met for the Security Screening Classes
12
Plaintiffs’ proposed exit screening classes (classes 1 through 4) are premised on the erroneous
13
assumption that the existence of any screening—regardless of the restrictions it imposes—renders all
14
time spent going through screening compensable and invalidates all meal and rest breaks. Mot. at 5–
15
14. That assumption ignores that the central issue is whether Amazon’s security screening actually
16
resulted in employer control such that it constituted compensable “hours worked” or an impermissible
17
restriction on break time. See Morillion v. Royal Packing Co., 22 Cal. 4th 575, 585–86 (2000); Rodri-
18
guez v. Taco Bell Corp., 896 F.3d 952, 957 (9th Cir. 2018). If an associate is not under Amazon’s
19
control during screening—i.e., where the “screening” entailed nothing more than striding through a
20
metal detector—then that associate has no valid claim for either unpaid time or non-provision of valid
21
breaks. The problem for Plaintiffs is that this key liability question cannot be answered “in one stroke”
22
for all putative class members because the screenings varied immensely across the proposed classes
23
and thus, commonality and predominance cannot be established. Dukes, 564 U.S. at 350. For the exit
24
screening classes to be certified, the Court must assume that exit screenings categorically and uniformly
25
“control” associates, no matter how brief the screenings are (or whether the screening took no time at
26
all), or what antecedent choices an associate makes that may cause the screenings to take longer than
27
they otherwise would. The evidence does not bear out this assumption.
28
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1 As noted, not every California facility had security screening in place for the entire class period,
2 see supra at 4, which alone contradicts Plaintiffs’ unsupported assertion that security screening was a
3 “uniform” Amazon policy. Mot. at 5. And for those facilities that had screening procedures, the
4 screening varied substantially depending on the number of lanes, the facility’s layout, the procedures
5 during busy periods, and whether metal detectors were turned on, which makes it impossible to deter-
6 mine whether such screening entailed sufficient “control” on a classwide basis. See supra at 4–5.
7 Associates report varying experiences with security screening. Many walk through a metal
8 detector “as fast as [they] can walk,” Ex. 64, Moya Decl. ¶ 9, “without even having to stop,” Ex. 78,
9 Sims Decl. ¶ 23; Ex. 48, Jensen Decl. ¶ 27, without “slow[ing] down,” Ex. 22, Centeno Decl. ¶ 24, and
10 without experiencing “any delay,” Ex. 84, Vazquez Decl. ¶ 12. One associate, for example, walked
11 through security without slowing down “[for a] rest break, lunch break, or end of shift.” Ex. 22, Cen-
12 teno Decl. ¶ 24. Similarly, despite “never us[ing] the express lane,” another associate reported being
13 “able to walk through [security] without even really slowing down all that much.” Ex. 35, Dominguez
14 Decl. ¶ 18. Others said security would take “only a few seconds,” or that they would slow down only
15 if “there is a slow poke in front of” them. Ex. 54, Lopez Decl. ¶¶ 16, 21; Ex. 43, Gonzalez Decl. ¶ 24;
16 Ex. 10, Bhagal Decl. ¶¶ 15, 28; Ex. 82, Tinoco Decl. ¶ 18. At other facilities, it could take “up to two
17 minutes to get through security,” Ex. 37, Flores Decl. ¶¶ 21–22, or “20 seconds or so” to get through
18 secondary screening, if any, Ex. 58, Magallanes Decl. ¶ 32.
19 Associate experiences with security vary even within the same facility. One associate at SMF1,
20 for example, reported that security takes 15 to 90 seconds, while another stated that it takes “only . . .
21 a few seconds,” and a third stated that he “can walk through security without stopping.” Ex. 52, Kendall
22 Decl. ¶ 27; Ex. 87, Wiley Decl. ¶ 24; Ex. 77, Shoka Decl. ¶ 16. A fourth stated that he “barely even
23 slow[s] down when . . . walk[ing] through” security. Ex. 66, Neely Decl. ¶ 29. In other facilities, such
24 as ONT2, Plaintiff Gianini claimed that the security lanes could be congested and take “a minute and
25 a half to two and a half minutes” during the busy season, but there would be no line during other times
26 of the year. Ex. F, Gianini Tr. 80:6–25. Indeed, Plaintiff Avalos testified that his own experience with
27 security could vary from walking right through to spending five minutes in line, depending on various
28 conditions, including where he was in the facility when his shift ended. Ex. I, Avalos Tr. 78:10–81:4.
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1 Dr. Ward’s and Ms. Arnold’s expert reports support associate testimony that they were not
2 meaningfully delayed by security screenings, so much so that some associates were observed entering
3 and exiting the facility multiple times during the same break. See supra at 5–6. Because associates
4 spend less time between clocking out and leaving the building at the end of their shifts than they do
5 between entering and clocking in at the start of their shift (when there is no security screening) “no
6 conclusions can be drawn . . . without understanding [the] individuals’ activities as they . . . leave the
7 facility that account for the observed interval.” See supra at 6. Dr. Ward’s report also found that the
8 differences among facilities and individuals in median exit interval time “are highly statistically sig-
9 nificant[,] rejecting the hypothesis that individual employee difference could simply be the result of
10 chance” and concluding that “nothing in the[] data . . . can provide an explanation for these differ-
11 ences.” Ward Rep. at 5–7. Such evidence of statistical variation demonstrates that commonality cannot
12 be established. See Shiferaw v. Sunrise Senior Living Mgmt., Inc., 2014 WL 12585796, at *15 (C.D.
13 Cal. June 11, 2014); Purnell v. Sunrise Senior Living Mgmt., Inc., 2012 WL 1951487, at *7 (C.D. Cal.
14 Feb. 27, 2012). Virtually all associates at least occasionally were able to exit with no delay—from July
15 2013 to August 2019, 89.5% of employees had a minimum exit interval time less than one minute
16 between clocking out and swiping out of the facility, including the time necessary to walk from the
17 time clocks to the building exits. See supra at 5–6. This minimal interval time is further supported by
18 associate testimony. For example, one associate reported that “[w]alking out from the time clocks to
19 out the front of the building only takes around 30 seconds.” Ex. 86, Wendell Decl. ¶ 11. To the extent
20 that exiting sometimes took longer, the individual behaviors that account for those differences cannot
21 be determined from the data. Ward Rep. at 7. Delay can be attributed to personal decisions to engage
22 in activities like “sit[ting] for a few minutes,” “us[ing] the restroom,” “sit[ting] and talk[ing] with some
23 co-workers for a few minutes,” or “wait[ing] for a friend . . . before leaving.” Ex. 70, Reed Decl. ¶ 15;
24 Ex. 72, Robles Decl. ¶ 14; Ex. 55, Lord Decl. ¶ 14; see also Arnold Rep. ¶ 116. Determining the
25 individual behaviors would require an associate-by-associate inquiry.
26 Moreover, whether associates experience a delay as a result of security depends on their own
27 choices about what to bring to their work area. Because associates are not required to bring any items
28 into the facility to perform their work and are offered free use of lockers to store their personal items
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1 before entering security, any delay they face as a result of choosing to bring items into the work area
2 is fully within their control. See supra at 4. This matters because whether an associate had a choice in
3 dictating the amount of time spent in the screen is highly relevant to, if not dispositive of, the control
4 inquiry. See Taco Bell, 896 F.3d at 956–57; Morillion, 22 Cal. 4th at 587; Overton v. Walt Disney Co.,
5 136 Cal. App. 4th 263, 271 (2006) (holding that time spent riding an optional shuttle was not compen-
6 sable because not required by the employer). Employees “are not subject to the control of [their] em-
7 ployer” when they “exercise an option offered by their employer,” Scott-George v. PVH Corp., 2016
8 WL 3959999, at *8 (E.D. Cal. July 22, 2016). As the Ninth Circuit explained in Taco Bell, there is a
9 distinction between policies where “[e]mployees ha[ve] no choice” and employer-provided services
10 that “employees could choose, but were not required to take advantage of.” 896 F.3d at 957. “[C]om-
11 pensation [is] not required” for the latter. Id. For that reason, the Ninth Circuit concluded that a policy
12 requiring an employee who chose to purchase a discounted meal to consume it on the store premises
13 did not violate California law. Id. at 956–57. Likewise, in Scott-George, the court granted summary
14 judgment to an employer that used bag security checks, but (like Amazon) did not require employees
15 to bring bags to work. 2016 WL 3959999, at *9. In sum, Amazon need not compensate associates
16 who choose to bring personal items into work for time spent in security screening. And identifying
17 whether individuals spent time in screenings due to their voluntary choice is an individualized inquiry
18 not suitable for classwide resolution. See, e.g., Ex. 52, Kendall Decl. ¶ 27; Ex. 16, Calderon Decl. ¶ 23.
19 The evidence likewise shows that whether Amazon exercised control over associates during
20 their meal and rest breaks as a result of screenings cannot be answered on a classwide basis. Dr. Ward’s
21 report shows that associates take fully compliant meal and rest breaks after passing through screening.
22 Ward Rep. at 3, 7–8. Almost all employees exited the facility at least once during lunch, and more
23 than half of the employees in the data have exited the facility for “a full 30 minutes” during at least one
24 of their meal breaks. Id. at 8. The same is true for rest breaks: 73.7% of employees exit the facility
25 “for at least 10 minutes at some point, 82.3% exit for 7 minutes or more and 92.4% have exited at some
26 point during their employment.” Id. at 8–9. Similarly, Ms. Arnold observed associates exiting facilities
27 for full meal and rest break periods, including at least one associate who regularly goes home for lunch.
28 See supra at 6. That data corroborates anecdotal testimony from associates who, for example, admitted
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1 to “18 or 19 minute” rest breaks and “longer than 30 minutes for lunch” outside. Ex. 18, Castelan Decl.
2 ¶¶ 19–21, 26–27. Other associates chose instead to take their full meal and rest breaks without exiting
3 the building. One associate explained he may “get breakfast in the Main Breakroom [during rest
4 breaks]” and to do that he “ha[s] to go through security, but it’s not a problem at all during . . . rest
5 break or other times.” Ex. 1, Aceves Decl. ¶¶ 20–21. Another associate takes breaks in “the locker
6 room at the [facility] entrance.” Ex. 91, Zamarron Decl. ¶ 14. Some associates took meal and rest
7 breaks within the facility without even having to go through security screening. Plaintiff Palma ex-
8 plained taking meal and rest breaks in the internal break rooms and only passing through security upon
9 exiting the facility, Ex. E, Palma Tr. 70:18-71:24, while another associate described “us[ing] an internal
10 breakroom . . . so [they] never go through security for [a] rest break.” Ex. 4, Angeles Decl. ¶ 18.
11 Even if associates were delayed while leaving the facility on a meal or rest break, there is no
12 way to determine, on a classwide basis, whether they were truly subject to Amazon’s control during
13 any part of their time spent on break due to security screening. All California law requires is that non-
14 exempt employees be provided with 10-minute duty-free rest breaks and 30-minute uninterrupted,
15 duty-free meal breaks. See Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1028–30 (2012).
16 Amazon complies with those mandates by authorizing 15 minutes for rest breaks, Ex. D, Carr Tr. 67:7–
17 9, and 30 minutes for meal breaks (with a 3-minute grace period), relieving associates of their work
18 duties, and not restricting whether those breaks can be taken outside of the facility. See supra at 8.
19 Thus, even if associates were subject to brief delays while leaving the facility for breaks, individualized
20 questions about which employees did not in fact receive a full meal or rest break, or were genuinely
21 limited in what they could do for their breaks, predominate over any common questions. See, e.g., Ex.
22 45, Gutierrez Decl. ¶ 17 (delay due to putting “lunch through the scanner”).
23 Plaintiffs may argue that these various differences are relevant only to the amount of damages,
24 not liability. That is wrong—these are core questions of liability. If associates pass through the metal
25 detectors as if they were a doorway, or if they could pass through unimpeded by leaving personal items
26 in lockers or in their vehicles, Amazon—under Morillion and Taco Bell—is not liable at all to those
27 associates for time spent in the screening or for their otherwise compliant meal and rest breaks. In
28 other words, associates such as Rocha, Velazquez, Jensen, and Ibarra, whose “screening” experience
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1 consisted of walking toward the exit through a metal detector without stopping, are not only entitled to
2 zero damages, but cannot press a claim at all for either unpaid time or having been provided with a
3 “controlled” break. Ex. 73, Rocha Decl. ¶ 14; Ex. 85, Velazquez Decl. ¶ 30; Ex. 48, Jensen Decl. ¶ 27;
4 Ex. 47, Ibarra Decl. ¶ 23. That fundamental flaw cannot be waved away as a “damages issue,” nor can
5 a class containing such individuals be certified because these individuals do not have Article III stand-
6 ing. Mazza v. Am. Honda Motor Co., 666 F.3d 581, 594 (9th Cir. 2012).
7 Plaintiffs’ cited cases are inapposite because they involve long periods of time spent in uniform
8 security checks. For example, in Ceja-Corona v. CVS Pharmacy, Inc., 2015 WL 222500 (E.D. Cal.
9 Jan. 14, 2015), employees were required to spend between 15 and 20 minutes in security screening
10 before and after every single shift. Id. at *1–2. Other cases involve similarly long and uniform delays.
11 See Heredia v. Eddie Bauer LLC, 2018 WL 369032, at *3 (N.D. Cal. Jan. 10, 2018) (exit security took
12 “significantly longer” than one minute “because of the time spent waiting for a manager”); Pelz v.
13 Abercrombie & Fitch Stores, Inc., 2015 WL 12712298, at *3 (C.D. Cal. June 4, 2015) (30 minutes);
14 Moore v. Ulta Salon, Cosmetics & Fragrance, Inc., 311 F.R.D. 590, 598 (C.D. Cal. 2015) (5-30
15 minutes); Cervantez v. Celestica Corp., 253 F.R.D. 562, 571 (C.D. Cal. 2008) (15 minutes); Otsuka v.
16 Polo Ralph Lauren Corp., 251 F.R.D. 439, 442–43 (N.D. Cal. 2008) (10-15 minutes). None suggest
17 that control can be found on a classwide basis where, as here, security practices varied substantially.
18 Plaintiffs likewise cite Bono Enters., Inc. v. Bradshaw, 32 Cal. App. 4th 968 (1995) and Au-
19 gustus v. ABM Security Servs., Inc., 2 Cal. 5th 257 (2016), for the proposition that associates were
20 “restrained” from leaving the facility without Amazon’s permission and were thus not “free from [Am-
21 azon’s] control” during meal and rest periods. Mot. at 10–11, 13–14. But unlike in Bono, where
22 employees were generally required to remain at the worksite during meal breaks, 32 Cal. App. 4th at
23 968–72, Amazon associates are free to and routinely do leave the premises during their meal breaks for
24 up to 30 minutes (and sometimes even longer), with minimal time walking through exit screening. To
25 the extent some felt compelled to remain in the building and claim they were “subject to [Amazon’s]
26 control” while on their breaks, that is an individualized issue ill-suited for class certification. Id. at
27 974–75. Similarly, unlike the security guards in Augustus who were not fully relieved of their duties,
28 2 Cal. 5th at 264, 269, Amazon provides longer rest breaks than required by California law, and those
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1 duty-free breaks can be and are taken outside the facility for at least 10 minutes, with minimal if any
2 delay due to screening. As with meal breaks, Plaintiffs have failed to provide any proof that Amazon
3 had a uniformly applied policy or practice of controlling class members during breaks.
4 Under such circumstances, courts routinely decline to grant class certification of similar claims.
5 For example, in Quinlan v. Macy’s Corp. Servs., Inc., 2013 WL 11091572 (C.D. Cal. Aug. 22, 2013),
6 the court denied certification of a class of employees who were subject to off-the-clock searches. Plain-
7 tiffs had not satisfied the commonality requirement because stores “implement[ed] different strategies,”
8 altered their strategies “depending on the time of day, day of the week, [and] level of traffic,” and some
9 stores had no searches at all. Id. at *4. Similarly, in Cornn v. United Parcel Serv., Inc., 2005 WL
10 2072091 (N.D. Cal. Aug. 26, 2005), the court refused to certify a class of employees claiming they
11 were not compensated for the time they spent “changing into their uniforms, shining their shoes, gath-
12 ering supplies, and [punching in].” Id. at *2. The court found that there was no uniform policy and
13 “individual questions predominat[ed] over whether time spent on these activities should be counted as
14 hours worked and, if so, how much time, if any, was spent on these activities and improperly excluded.”
15 Id. These difficulties are equally present here, as screening varied between and within facilities and it
16 is not possible to determine, in one stroke, whether Amazon is liable to all associates.
17 The overwhelming evidence shows there is no uniform screening policy that can be analyzed
18 on a classwide basis, and thus, no way to establish commonality or predominance. Where an associate
19 can walk through exit screening unencumbered—as if through a doorway—there is no control. And
20 where an associate claims delay due to their own choices about what items to bring into work, or what
21 activities to engage in, Amazon is not liable. Amazon also is not liable to associates who enjoyed fully
22 compliant meal and rest breaks outside the facility, or who could do so but chose to take breaks inside.
23 Thus, whether Amazon is liable to all associates who went through exit screening—the nuances of
24 which Plaintiffs fail to acknowledge, much less explain—is not suitable for classwide resolution.
25 B. Whether Rounded Time Is Compensable “Time Worked” And Entitles Certain Associ-
ates to a Third Rest Break Cannot Be Established on a Classwide Basis
26
Plaintiffs’ rounding classes (classes 5 and 7) rely on the assumption that Amazon’s “uniform
27
rounding policy” resulted in associates being “routinely underpaid,” and deprived of a third rest break
28
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1 when their shift exceeded 10 hours. Mot. at 14–16. But the existence of “a rounding policy says
2 nothing about” Amazon’s liability, Mejia v. DHL Express (USA), Inc., 2016 WL 9450680, at *5–6
3 (C.D. Cal. Feb. 25, 2016), because Amazon is liable only if its policy consistently deprives employees
4 of pay for “time they have actually worked.” See’s Candy Shops, Inc. v. Superior Court, 210 Cal. App.
5 4th 889, 907 (2012) (emphasis added). Thus, proving the existence of an unlawful rounding policy
6 requires “foundational evidence” that employees were actually working when they were clocked in and
7 were not being paid due to rounding. Id. at 907–08.
8 Plaintiffs have offered no evidence—much less classwide evidence—to show that associates
9 were categorically “controlled” during the rounded time periods, or that they “actually worked more
10 than 10 hours” without being provided a third rest break as a result of Amazon’s rounding policy. Mot.
11 at 16. Plaintiffs acknowledge that Amazon rounds time punches up and down, which allows associates
12 to both punch in late and punch out early. Mot. at 2; Ex. X at 3. While associates have the option to
13 clock in five minutes before their shift or clock out five minutes after, not all did so, none were required
14 to, and some did the opposite. Dr. Ward’s report found “statistically significant differences in the
15 median time spent” between entry and clock-in and clock-out and exit. Ward Rep. at 6–7. Associates
16 frequently clock in a few minutes early “to socialize with people in the breakroom and maybe get a cup
17 of coffee,” Ex. 92, Zarate Decl. ¶¶ 7–8, to “grab a snack, or use the restroom,” Ex. 47, Ibarra Decl. ¶
18 9, or to “hang out with [] coworkers until [the] stand-up [meeting] begins,” Ex. 67, Negrete-Gonzalez
19 Decl. ¶¶ 18–19. Some associates choose to wait to use a particular time clock, which “[s]ometimes
20 [has] a crowd around it, because everyone likes to use that one even though there are empty ones less
21 than 20 feet away.” Ex. 74, Rodriguez Decl. ¶ 8. One associate had the option of using several time
22 clocks throughout the building, “many” of which were located “right near the entrance and near the
23 various break rooms,” but instead chose to use one “at the back of the building and close to the [break-
24 room] where [she] like[d] to take [her] breaks” to clock in. Ex. 19, Cathcart Decl. ¶ 11. Others testified
25 that they used the five-minute rounded grace period to clock in late without consequence. Ex. 73,
26 Rocha Decl. ¶ 8; Ex. 92, Zarate Decl. ¶ 6 (“typically clock[s] in after [his] 6:30 a.m. shift start time”
27 and “it is not a big deal”); Ex. 18, Castelan Decl. ¶ 9 (despite “arriv[ing] . . . early” for his 7:30 a.m.
28 shift, one associate likes to “sit in [his] car until 7:34 a.m.”). One associate clocked in seven minutes
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1 late without repercussion. Ex. 9, Bermudez Decl. ¶ 7. And Ms. Arnold observed associates engaging
2 in personal activities after clocking in but before beginning work. See supra at 7.
3 Even if there were some uniformity in clocking practices, “control” still cannot be found on a
4 classwide basis. Many associates reported they could not begin work before their shift because each
5 day starts with a “stand up” meeting—when many associates receive their work assignments and after
6 which the conveyor belts begin moving. See supra at 7. Thus, to the extent the associates are clocking
7 in before shift start, they are doing so not to work, but for their own convenience or preference. Asso-
8 ciates also engage in personal activities throughout their shifts and outside of breaks. See Ex. 8, Bahena
9 Decl. ¶ 25; Ex. 14, Brown Decl. ¶ 21; Ex. 26, Clemans Decl. ¶ 13; Ex. 2, Alcala Decl. ¶¶ 17, 24
10 (“walk[s] to the nearest breakroom a minute or two before” her rest break begins). Ms. Arnold’s anal-
11 ysis observed associates drinking, chatting with co-workers about non-work related issues, and using
12 cell phones outside of break times and while clocked in. See supra at 7–8.
13 Associate experiences at the end of shifts likewise vary. Associates are “free to talk with co-
14 workers, use the restroom, or stop by the break room before clocking out.” Ex. 64, Moya Decl. ¶ 16;
15 see also Ex. 15, Butler Decl. ¶ 11; Ex. 67, Negrete-Gonzales Decl. ¶ 10. Associates engage in a variety
16 of non-work activities, such as socializing, visiting the breakroom, and walking to the time clocks after
17 they stopped work but before clocking out. See supra at 7–8. Some associates stop working up to ten
18 minutes before the end of their shift for various personal reasons without discipline. See Ex. 5, Arana
19 Decl. ¶ 18; Ex. 38, Flores Decl. ¶ 13; Ex. 8, Bahena Decl. ¶ 12; Ex. 77, Shoka Decl. ¶ 10. For example,
20 one associate testified that, although his shift ends at 11:00 a.m., he stops work at 10:52 or 10:53 and
21 that “[m]anagement does not discourage this.” Ex. 89, Worrell Decl. ¶ 14. One associate who clocked
22 out six minutes after his shift ended—a minute outside the grace period—testified that he only works
23 until his exact shift end time but uses the restroom on his way out “so that [he] can get the overtime
24 pay.” Ex. 18, Castelan Decl. ¶ 16. Another associate testified that she “almost always leaves early”
25 because she punches in for her shift a few minutes early. Ex. 4, Angeles Decl. ¶ 14. Others testified
26 that they work right up until their shift-end time, but how long it takes to get to a time clock varies
27 depending on where they are working in the facility. See Ex. 37, Flores Decl. ¶¶ 13–14; Ex. 91, Za-
28 marron Decl. ¶ 13; Ex. 63, Mosley Decl. ¶ 10; Ex. 55, Lord Decl. ¶¶ 12–13. One associate testified
Gibson, Dunn &
Crutcher LLP
1:18-CV-00120-DAD (BAM)
1 that his shift ends at 7:30 p.m., and that he “usually [] stop[s] working and leave[s] [his] station at that
2 time” but that “it takes [] one or two minutes to get to the front of the building,” so he clocks out
3 “around 7:31 or 7:32 p.m.” Ex. 76, Shaikh Decl. ¶ 10; see also Ex. 51, Kaur Decl. ¶ 12 (while her shift
4 ends at 5:30 p.m., she leaves her station at 5:28 p.m. and “typically clock[s] out at 5:31 p.m. or 5:32
5 p.m.”). And, while associates also have the option of using time clocks “closer to the exit to clock
6 out,” one associate “prefer[red] to clock out at the time clocks closer to [her] workstation.” Ex. 19,
7 Cathcart Decl. ¶ 16.
8 District courts within this Circuit regularly deny certification of classes that require similar in-
9 dividualized inquiries. In Pryor v. Aerotek Scientific, LLC, 278 F.R.D. 516 (C.D. Cal. 2011), for ex-
10 ample, the court concluded that individual questions predominated where the evidence showed that
11 associates would log in to their work computers before shift start, but then spend that time eating or
12 socializing. Id. at 535–36. Likewise, in Shiferaw v. Sunrise Senior Living Management, Inc., 2014
13 WL 12585796, at *9–11 (C.D. Cal. June 11, 2014), the court denied certification of a rounding class
14 where employees reportedly clocked in early, but spent that time talking to co-workers, drinking coffee,
15 talking on the phone, or simply “waiting for their shifts to start.” And in Ferreras v. American Airlines,
16 Inc., 2019 WL 7161214, at *1 (3d Cir. Dec. 24, 2019), the Third Circuit reversed certification of an
17 off-the-clock class that alleged the defendant’s timekeeping system paid them only based on their work
18 schedule, even if they clocked in and worked additional time outside of their shifts. The court found
19 that commonality was not satisfied under Dukes because punch records alone reveal “nothing about
20 [the] actual common work habits,” and whether an employee was working off-the-clock would require
21 “an individualized inquiry as to when and to what extent that happened.” Id. at *5–6. Here, Amazon
22 has offered evidence that associates often engaged in non-compensable activities while clocked in at
23 the start and end of shifts, and determining whether associates were working during the rounded grace
24 period requires individualized inquiries, defeating commonality and predominance. See supra at 6–8.
25 Plaintiffs rely solely upon their expert’s analysis of time records to support their position that
26 associates were required to work off the clock. Mot. at 14–15. But “time entries by themselves do not
27 demonstrate that [employees] must be paid for the time spent between the time punch and the em-
28 ployee’s scheduled start time,” because they fail to establish the critical fact of what the employee was
Gibson, Dunn &
Crutcher LLP
1:18-CV-00120-DAD (BAM)
1 actually doing during that time. Shiferaw, 2014 WL 12585796, at *9–11. Testimony from Amazon
2 associates makes it clear that such records provide no meaningful insight into how associates spent
3 time on the clock, and establishes substantial variation as to the activities associates engaged in during
4 the rounding period—determining whether that time is compensable requires individualized inquiries.
5 See, e.g., Ex. 84, Vazquez Decl. ¶ 6; Ex. 64, Moya Decl. ¶ 16. Thus, their expert’s analysis is “far from
6 dispositive.” Forrand v. Fed. Exp. Corp., 2013 WL 1793951, at *3 (C.D. Cal. Apr. 25, 2013).
7 In sum, Plaintiffs have not proven that Amazon prevents associates from using the rounded
8 time “for their own purposes.” Morillion, 22 Cal. 4th at 586. “Absent [such] a policy,” Plaintiffs
9 cannot establish classwide control or a policy of failing to provide a third rest break due to that control,
10 or certify the rounding classes. Green v. Fed. Exp. Corp., 614 F. App’x 905, 906–08 (9th Cir. 2015).
11 C. Plaintiffs’ Second Meal Break Waiver Class Requires Individualized Inquiries
12 Plaintiffs’ second meal period waiver class (class 6) alleges that all of Amazon’s waiver forms
13 are “invalid and unenforceable” because they are “ambiguous and self-contradictory.” Mot. at 15. But
14 whether a waiver is “ambiguous” requires an individualized assessment of the waiver and each associ-
15 ate’s interpretation and understanding of it. Badie v. Bank of Am., 67 Cal. App. 4th 779, 798 (1998).
16 Plaintiffs therefore cannot establish commonality and predominance.
17 Many associates have declared that they understood the waiver and knew they were waiving
18 their right to a second meal period by signing it. One associate, for example, stated that she “understood
19 that [she] would be entitled to a second meal period if [she] worked a [10-12 hour] shift,” but that she
20 “preferred to either work during that time to make money or simply go home earlier.” Ex. 91, Zamarron
21 Decl. ¶ 23; see also Ex. 19, Cathcart Decl. ¶ 23 (same); Ex. 27, Cordova Decl. ¶ 22 (same). Named
22 Plaintiff Palma testified that he “read [the waiver] and questioned it before [he] signed it,” an HR
23 representative answered his questions, and he “felt satisfied with the HR individual’s answer” before
24 agreeing to waive his second meal period. Ex. E, Palma Tr. 37:6–38:19. Indeed, many associates hired
25 around the same time as several named Plaintiffs also testified that they (i) recalled completing a meal
26 period waiver during onboarding, (ii) understood it, (iii) knew it was voluntary, and (iv) assented to
27 waive their meal period when permissible because they “prefer to go home early” instead. See Ex. 27,
28 Cordova Decl. ¶ 22; Ex. 75, Salas Decl. ¶ 15; Ex. 47, Ibarra Decl. ¶ 20; Ex. 91, Zamarron Decl. ¶ 23;
Gibson, Dunn &
Crutcher LLP
1:18-CV-00120-DAD (BAM)
1 Ex. 83, Valencia Decl. ¶ 23; Ex. 50, Kaur Decl. ¶ 20; Exs. U–W. To the extent others did not—like
2 Plaintiff Trevino, who submitted a declaration claiming that “the form [was] confusing,” Dkt. 98-17 ¶
3 7, but admitted during his deposition that he signed the waiver, read it before signing, and could revoke
4 it at any time, Ex. G, Trevino Tr. 144:20–146:24, or Plaintiff Avalos, who submitted a declaration
5 stating he did not “understand” the form, Dkt. 98-13 ¶ 7, but agreed in deposition that he simply did
6 not remember signing the form, Ex. I, Avalos Tr. 38:17–39:17—that is an individualized issue, which
7 would vary based on each particular associate’s understanding of the specific form they signed.
8 Because California law requires only “mutual consent”—not a writing—to waive a meal period,
9 determining whether consent was given would necessitate individualized, associate-by-associate and
10 shift-by-shift inquiries. See Cal. Lab. Code § 512. And determining the validity of a waiver is only
11 the first step in establishing liability; Plaintiffs must also show that they can prove on a classwide basis
12 who was entitled to, but did not receive, a second meal break—which Plaintiffs do not even attempt to
13 do. These individualized issues preclude certification, as they did in Lampe v. Queen of the Valley
14 Med. Ctr., 19 Cal. App. 5th 832, 840 (2018), which affirmed the denial of class certification because,
15 as is true here, liability “depended on the department the employee worked in, the shift she or he had,
16 whether a meal waiver had been signed, and the circumstances leading up to any meal waiver.”
17 D. Whether Wage-Statement Class Members Can “Promptly and Easily” Determine the
Total Hours Worked and Suffered an Actual Injury Requires Individualized Inquiries
18
Plaintiffs’ bid to certify a wage-statement class (class 8) rests on their false presumption that
19
every class member suffered an injury because some wage statements did not include a “total hours
20
worked” line item. But many associates did receive wage statements including this line item, and those
21
who received wage statements without a “total hours” worked” line item could have determined their
22
total hours worked through simple arithmetic. Thus, assessing whether someone suffered an injury
23
sufficient to satisfy either Labor Code section 226 or Article III requires an individualized inquiry.
24
Labor Code section 226 presumes injury only if an employer fails to provide a wage statement
25
containing the required information and the employee cannot “promptly and easily” determine from
26
the wage statement, as relevant here, the total hours worked. Cal. Lab. Code § 226(e)(2)(B). That
27
28
Gibson, Dunn &
Crutcher LLP
1:18-CV-00120-DAD (BAM)
1 presumption is rebutted if the missing item “can be ‘promptly and easily’ determined by simple arith-
2 metic.” Raines v. Coastal Pac. Food Distribs., Inc., 23 Cal. App. 5th 667, 676–77 (2018).3 In Raines,
3 the Court of Appeal concluded that an employee’s overtime rate could be determined “by simple arith-
4 metic” where the “mathematical operation” “can be easily performed by . . . a calculator.” Id. at 677.
5 The same is true here: associates whose wage statements did not include a “total hours worked” line—
6 including the named Plaintiffs—could use simple arithmetic to determine the total hours worked. For
7 example, one of Plaintiff Hagman’s wage statements lists 47.55 “Regular” hours worked and 0.10
8 “Overtime” hours. See Ex. L. The total hours worked for that pay period were 47.65 hours (47.55 +
9 0.10), which can be easily determined without reference to other documents.
10 Plaintiffs contend that the math is not “simple” because of the “shift pay” line items, which they
11 believe would be double-counted. Mot. at 17–18. But it is clear that the hours under a “shift pay”
12 entry correspond to the hours worked under that particular shift type. “Shift Pay D/T” and “Double
13 Time” both list 2.6 hours. “Shift Pay O/T” likewise corresponds to 11.53 hours—the number of over-
14 time hours. See Dkt. 98-17 at 9. Associates familiar with shift pay premiums would know not to
15 “double count” these hours due to the clear association between the shift pay line and the actual hours
16 worked for that shift type. Myra Gutierrez, for example, testified that she was familiar with shift dif-
17 ferential payments “because [she] work[s] the night shift, [and] receive[s] a differential payment on
18 top of the normal hourly wage for each hour” worked. Ex. 45, Gutierrez Decl. ¶ 23. Some sites train
19 associates on the shift differential payments for “those who work unfavorable shifts.” Ex. AA at 3.
20 Simple arithmetic would also reveal the total hours on Plaintiff Avalos’s wage statement:
21
22
23
24
25
26
3
27 Because courts look to “intermediate appellate court decisions” in the absence of California Supreme
Court guidance, Tompkins v. 23andMe, Inc., 840 F.3d 1016, 1023 (9th Cir. 2016), Raines controls over
28 McKenzie v. Federal Express Corp., 765 F. Supp. 2d 1222 (C.D. Cal. 2011), a case Plaintiffs cite.

Gibson, Dunn &
Crutcher LLP
1:18-CV-00120-DAD (BAM)
1 Mr. Avalos’s wage statement shows line items for “Regular,” “Overtime,” and “Double Time” hours,
2 followed by line items for each shift pay differential. Ex. S. The hours in the shift pay lines match the
3 hours worked in each category. Adding the hours corresponding to “Regular” (10.78), “Overtime”
4 (8.00), and “Double Time” (2.00), yields 20.78 total hours worked for that pay period. Id. In this case,
5 total hours worked can be readily determined by adding double time, overtime, and regular hours
6 worked using simple addition—less complicated than the division required in Raines.
7 Plaintiffs also ignore that many wage statements issued during the relevant period did explicitly
8 list total hours worked. Amazon issued wage statements with a “Reg Ot Dt” line item, which provided
9 the total hours worked. E.g., Exs. K, N, P–R, T. The self-explanatory title represents the line item
10 total for all hours worked—Regular, OverTime, and Double Time. Id. Amazon also issued wage
11 statements from which an associate could deduce total hours worked (even without the “Reg Ot Dt”
12 entry) when they worked only regular hours for that pay period. E.g., Exs. K, M, O. And as of January
13 1, 2019, all Amazon wage statements display a total hours worked line item. Osborne Decl. ¶ 5.
14 Plaintiffs are thus not entitled to a presumption of injury under section 226. But even if they
15 were, that would not absolve them from proving that all class members were actually injured because
16 Article III “does not give federal courts the power to order relief to any uninjured plaintiff, class action
17 or not.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1053 (2016) (Roberts, C.J., concurring);
18 see also Mazza, 666 F.3d at 594–95; Cordoba v. DIRECTV, LLC, 942 F.3d 1259 (11th Cir. 2019)
19 (vacating class certification order due to need for individualized inquiries regarding whether absent
20 class members had Article III standing). A violation of Labor Code section 226, without more, does
21 not equate to an Article III injury in fact, because such an injury must be “concrete” and “real,” not
22 merely procedural. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548–49 (2016). And here, where the
23 record shows that portions of the putative class fully understood their wage statements and suffered no
24 conceivable injury see Ex. 10, Bhagal Decl. ¶ 30; Ex. 45, Gutierrez Decl. ¶ 23, determining whether
25 any individual suffered an injury would require individualized questioning. Plaintiffs fail to establish
26 commonality and predominance on this claim as well. Cf. Ritenour v. Carrington Mortg. Servs., 2018
27 WL 5858658 (C.D. Cal. Sept. 12, 2018) (denying certification where wage statement claim was not
28 “susceptible to classwide relief” because the employer’s wage statement practice was not unlawful).
Gibson, Dunn &
Crutcher LLP
1:18-CV-00120-DAD (BAM)
1 E. Plaintiffs’ Derivative Claims Should Not Be Certified
2 Plaintiffs also seek certification of three vaguely defined derivative classes (classes 9–11) that
3 endeavor to capture all potential remedies under the assumption that all other classes are certified. Mot.
4 at 19–20. Because Plaintiffs cannot establish that the underlying classes are appropriate for certifica-
5 tion, the Court should deny certification for the derivative classes as well. See, e.g., Allchin v. Volume
6 Servs., Inc., 2017 WL 3337141, at *11 (S.D. Cal. Aug. 4, 2017) (denying certification of derivative
7 claims); Vasquez v. First Student, Inc., 2015 WL 1125643, at *11 (C.D. Cal. Mar. 12, 2015) (similar).
8 F. Plaintiffs Offer No Method of Manageably Trying the Individualized Issues

9 Plaintiffs have failed to offer any solutions to the “likely difficulties in managing” the class
10 action they propose. Fed. R. Civ. P. 23(b)(3)(D). This Court should not simply accept Plaintiffs’
11 “anticipat[ion] [that] the Trial Plan will be modified and supplemented to incorporate recommendations
12 from the Court . . . to provide for . . . resolution of class member claims and Defendants’ defenses.”
13 Dkt. 98-2 at 1; see Duran v. U.S. Bank Nat'l Assn., 59 Cal. 4th 1, 32 (2014) (noting that “trial courts
14 would be well advised to obtain [a trial plan] before deciding to certify a class action”). Even though
15 it is Plaintiffs’ burden to present evidence that this case can be tried as a class action, neither their trial
16 plan nor their expert explains how they intend to manage individualized issues at trial. Their expert,
17 Dr. Brian Kriegler, testified that he had not conducted any analysis as to whether or to what extent
18 Plaintiffs’ claims are susceptible to classwide resolution or the degree to which the data he analyzed
19 varies by individual. Ex. J, Kriegler Tr. 49:25–50:21, 154:11–156:10. Nor did he offer any opinions
20 as to “the liability or the legality of [Amazon’s] practices.” Id. at 49:12–24. Boilerplate assertions that
21 he will eventually provide such opinion testimony, Dkt. 98-2 at 5–6, do not suffice.
22 To the extent Dr. Kriegler offers any plan at all, it consists of numerous speculative leaps, rather
23 than inferences based on the actual evidence. For example, he asserts, in conclusory fashion, that
24 liability and damages for all claims can be established through “daily schedules,” “weekly shift assign-
25 ments,” “time and payroll records, wage statements, scan-in and scan-out data,” “surveillance footage,”
26 “expert testimony,” and “depositions of corporate and percipient witnesses,” Dkt. 98-2 at 1–2, 6, yet
27 Plaintiffs apparently only plan to use these records to “determine whether the off-the-clock work asso-
28 ciated with the security checks should be compensated” and to calculate wage statement penalties, id.
Gibson, Dunn &
Crutcher LLP
1:18-CV-00120-DAD (BAM)
1 at 2—they do not explain how claims regarding rounding, the second meal break waiver, or third rest
2 break classes will be tried. And, in fact, Dr. Kriegler testified that he has not actually seen or analyzed
3 most of the forms of data he hypothesizes may exist and be used in the analyses he proposes. Ex. J,
4 Kriegler Tr. 109:16–20, 132:9–12, 174:11–12. Dr. Kriegler’s damages model is also unworkable to
5 the extent it privileges unrepresentative summary statistics over associate experience. Id. at 71:22–
6 74:20 (proposing to measure damages for rounding claims by using an arbitrary, uniform “summary
7 statistic”). This is exactly the type of “Trial by Formula” rejected by the Supreme Court in Dukes, 564
8 U.S. at 367, and it also violates Comcast because it “fail[s] to measure damages resulting from the
9 particular . . . injury on which [Amazon’s] liability is premised.” Comcast, 569 U.S. at 35.4
10 More troubling, however, is Plaintiffs’ failure to account for Amazon’s individual defenses.
11 Under the Rules Enabling Act and principles of due process, defendants must be allowed to present
12 defenses to individual claims, even if they turn on individualized issues. Dukes, 564 U.S. at 367;
13 Duran, 59 Cal. 4th at 33, 35. Otherwise, Amazon would have “different rights in a class proceeding
14 than [it] could have asserted in an individual action.” Tyson Foods, 136 S. Ct. at 1048; see also Duran,
15 59 Cal. 4th at 28–29, 34–35. The record here shows that Amazon will have numerous individualized
16 defenses to Plaintiffs’ claims, including, among others, (1) whether exit screening consisting of walk-
17 ing without breaking stride constitutes employer control; (2) whether rounded time is time worked; (3)
18 whether various iterations of the second meal period waivers were in fact ambiguous and unintelligible;
19 and (4) whether an employee was able to determine the total hours worked on his wage statement using
20 simple arithmetic. Plaintiffs ignore these obvious defenses entirely, which means that their trial plan—
21 if accepted by the Court—would result in a clear violation of the Rules Enabling Act and due process.
22 V. CONCLUSION
23 The Court should deny certification as to all classes.
24
25 4
Expert witness testimony submitted in support of a class certification motion is subject to the same
26 “rigorous analysis” that applies generally to class certification motions, Ellis v. Costco Wholesale
Corp., 657 F.3d 970, 982 (9th Cir. 2011). Moreover, the Ninth Circuit has held that “in evaluating
27 challenged expert testimony in support of class certification, a district court should evaluate admissi-
bility under the standard set forth in Daubert.” Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996, 1006
28 (9th Cir. 2018). Amazon will separately file a Daubert motion challenging Dr. Kriegler’s testimony.

Gibson, Dunn &
Crutcher LLP
1:18-CV-00120-DAD (BAM)
1 Dated: January 13, 2020 By: /s/ Katherine V.A. Smith

Katherine V.A. Smith
2
JASON C. SCHWARTZ
3 MICHELE L. MARYOTT
KATHERINE V.A. SMITH
4 ASHLEY ALLYN
HELEN AVUNJIAN
6
Attorneys for Defendants
7 GOLDEN STATE FC LLC (now known as AMA-
ZON.COM SERVICES LLC), AMAZON.COM, INC.
8 and AMAZON FULFILLMENT SERVICES, INC.
(now known as AMAZON.COM SERVICES LLC)
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP
1:18-CV-00120-DAD (BAM)

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Case 1:18-cv-00120-DAD-BAM Document 119 Filed 01/13/20 Page 1 of 31

1 MICHELE L. MARYOTT, SBN 191993

16 UNITED STATES DISTRICT COURT

4 II. RELEVANT FACTUAL BACKGROUND ............................................................................. 3

5 A. Security Screening Practices (Classes 1 to 4) ............................................................... 3

6 B. Clocking In and Clocking Out (Classes 5 and 7) .......................................................... 6

7 C. Meal and Rest Break Practices (Classes 3 through 7) .................................................. 8

8 D. Wage Statements (Class 8)............................................................................................ 9

9 III. LEGAL STANDARD ............................................................................................................. 10

10 IV. ARGUMENT .......................................................................................................................... 10

11 A. Plaintiffs Have Failed to Prove That Either the Commonality or Predominance

15 D. Whether Wage-Statement Class Members Can “Promptly and Easily”

17 E. Plaintiffs’ Derivative Claims Should Not Be Certified............................................... 24

18 F. Plaintiffs Offer No Method of Manageably Trying the Individualized Issues ........... 24

8 Augustus v. ABM Security Servs., Inc.,

13 Brinker Rest. Corp. v. Superior Court,

18 Comcast Corp. v. Behrend,

26 Ferreras v. American Airlines, Inc.,

3 Green v. Fed. Exp. Corp.,

8 Mazza v. Am. Honda Motor Co.,

13 Moore v. Ulta Salon, Cosmetics & Fragrance, Inc.,

18 Overton v. Walt Disney Co.,

23 Purnell v. Sunrise Senior Living Mgmt., Inc.,

28 Ritenour v. Carrington Mortg. Servs.,

3 Rodriguez v. Taco Bell Corp.,

8 See’s Candy Shops, Inc. v. Superior Court,

13 Tompkins v. 23andMe, Inc.,

18 Wal-Mart Stores, Inc. v. Dukes,

21 Plaintiffs’ wage-statement class is likewise based on erroneous assumptions meant to obscure

12 II. RELEVANT FACTUAL BACKGROUND1

13 A. Security Screening Practices (Classes 1 to 4)

4 DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MO-

19 security screening. Ex. 52, Kendall Decl. ¶ 27.

8 Through an analysis of live observations and surveillance footage of a randomized selection of

20 B. Clocking In and Clocking Out (Classes 5 and 7)

26 ing-in and after clocking-out constituted ‘hours worked.’” Mot. at 14–16.

28 grace period, which allows associates flexibility by rounding

4 is rounded forwards or backwards.” Ex. C, Frauson Tr. 16:9–17; 16:25–17:9.

21 Decl. ¶ 6; Ex. 81, Tilley Decl. ¶¶ 5–6.

4 C. Meal and Rest Break Practices (Classes 3 through 7)

6 too, vary by facility, shift, and associate preferences.

21 D. Wage Statements (Class 8)

1 III. LEGAL STANDARD

18 secondary screening, if any, Ex. 58, Magallanes Decl. ¶ 32.

25 individual behaviors would require an associate-by-associate inquiry.

7 were not being paid due to rounding. Id. at 907–08.

7 Cathcart Decl. ¶ 16.

11 C. Plaintiffs’ Second Meal Break Waiver Class Requires Individualized Inquiries

16 Plaintiffs therefore cannot establish commonality and predominance.

9 0.10), which can be easily determined without reference to other documents.

22 DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MO-

1 E. Plaintiffs’ Derivative Claims Should Not Be Certified

8 F. Plaintiffs Offer No Method of Manageably Trying the Individualized Issues

23 The Court should deny certification as to all classes.

25 DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MO-

1 Dated: January 13, 2020 By: /s/ Katherine V.A. Smith

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