Case 3:14-cv-00608-JCS Document 719 Filed 09/14/16 Page 1 of 11

1 STEPHEN M. TILLERY (pro hac vice)

stillery@koreintillery.com
2 GARRETT R. BROSHUIS (pro hac vice)
gbroshuis@koreintillery.com
3 AARON M. ZIGLER (pro hac vice)
azigler@koreintillery.com
4 ROBERT KING (pro hac vice)
rking@koreintillery.com
5 KOREIN TILLERY, LLC
505 North 7th Street, Suite 3600
6 St. Louis, MO 63101
Telephone: (314) 241-4844
7 Facsimile: (314) 241-3525
8 GEORGE A. ZELCS (pro hac vice)
gzelcs@koreintillery.com
9 KOREIN TILLERY, LLC
205 North Michigan, Suite 1950
10 Chicago, IL 60601
Telephone: (312) 641-9750
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BRUCE L. SIMON (Bar No. 96241)
bsimon@pswlaw.com
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BENJAMIN E. SHIFTAN (Bar No. 265767)
bshiftan@pswlaw.com
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PEARSON, SIMON & WARSHAW, LLP
14 44 Montgomery Street, Suite 2450
San Francisco, CA 94104
15 Telephone: (415) 433-9000
Facsimile: (415) 433-9008
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DANIEL L. WARSHAW (Bar No. 185365)

dwarshaw@pswlaw.com
BOBBY POUYA (Bar No. 245527)
bpouya@pswlaw.com
PEARSON, SIMON & WARSHAW, LLP
15165 Ventura Boulevard, Suite 400
Sherman Oaks, California 91403
Telephone: (818) 788-8300
Facsimile: (818) 788-8104

17 Plaintiffs Interim Co-Lead Class Counsel

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

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AARON SENNE, et al., Individually and on

21 Behalf of All Those Similarly Situated;
Plaintiffs,

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CASE NO. 3:14-cv-00608-JCS (consolidated

with 3:14-cv-03289-JCS)
CLASS ACTION

vs.

24 OFFICE OF THE COMMISSIONER OF

BASEBALL, an unincorporated association
25 doing business as MAJOR LEAGUE
BASEBALL; et al.;
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Defendants.
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NOTICE OF MOTION AND MOTION TO

INTERVENE; MEMORANDUM IN SUPPORT
Hearing date: Dec. 2, 2016
Hearing Time: 9:30 a.m.
Courtroom: G, 15th Floor
Judge: Honorable Joseph C. Spero

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NOTICE OF MOTION AND MOTION

Please take notice that Shane Opitz, Corey Jones, Brian Hunter, Kyle Johnson, and Aaron

3 Dott (the intervenors) will and hereby do move to intervene in this case. They ask that this motion
4 be heard on December 2, 2016 at 9:30 a.m., or at the earliest date that the Court deems this motion
5 suitable for resolution with or without oral argument at the Courts discretion, (L.R. 7-1(b)), in
6 Courtroom G, 15th Floor of the U.S. District Court for the Northern District of California, San
7 Francisco Division, before the Honorable Joseph C. Spero.
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This motion is made pursuant to Federal Rule of Civil Procedure 24. The intervenors have a

9 right to intervene since they meet the requirements of Rule 24(a); alternatively, they ask the Court to
10 permissively allow them to intervene under Rule 24(b). This motion is based upon this Notice of
11 Motion, the accompanying Memorandum of Points and Authorities, the accompanying supportive
12 declarations and exhibits, the records on file in this action, and upon additional evidence and
13 argument as may be presented at or before the hearing on this Motion.
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MEMORANDUM OF POINTS AND AUTHORITIES

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Rule 24 was enacted to provide a right to interveneto ensure that the voices of non-parties

3 with interests in the case are heard, and to ensure an efficient means of doing so. When a case
4 implicates a non-partys legal rights, the non-party should be given a chance to intervene. This is
5 particularly true when the non-party brings something unique to the lawsuit that is not fully
6 represented by the existing parties.
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It is common for putative class members to intervene in class actions, and the current juncture

8 of the case is ripe for it. Before July 21, 2016, the interests of absent class members were fully
9 protected by the class representatives in this lawsuit. On that date, however, the Court decertified the
10 FLSA collective and denied a motion for class certification. As the Supreme Court has stated, the
11 class members are now left with the choice of filing individual actions or intervening in the current
12 suit. Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 354 (1983). These five class members have chosen
13 the latter option.
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Four of the proposed intervenors are current minor leaguers, who desire to intervene in this

15 lawsuit as named plaintiffs and injunctive class representatives. These current minor leaguers bring
16 something to the lawsuit that, according to the Court, no other class representative currently
17 possesses: standing to pursue injunctive class claims under Rule 23(b)(2). Another proposed
18 intervenor is a former player who worked in the Tampa Bay Rays organization. He seeks to replace
19 Matt Gorgen, who was recently dismissed from the case, as a class representative.
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These individuals have a right to intervene under Rule 24. They have moved in a timely

21 fashion upon learning that class certification was denied; they have legal interests that may be
22 impaired by the proceedings; and they bring forth interests that may not be adequately represented by
23 current class representatives. Under these circumstances, they must be permitted to intervene under
24 Rule 24(a). If the Court determines that they do not have an absolute right to intervene, however,
25 then these minor leaguers respectfully ask that the Court exercise its discretion to allow them to
26 permissively intervene under Rule 24(b).
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BRIEF BACKGROUND

Plaintiffs originally filed this class action lawsuit on February 7, 2014 seeking certification of

3 the collective under the Fair Labor Standards Act (FLSA) and state classes under Rule 23. The
4 operative Second Consolidated Amended Complaint (SCAC) was filed on May 20, 2015. Dkt. 382.
5 On October 20, 2015, the Court conditionally certified a proposed FLSA collective of minor leaguers.
6 Dkt. 446. Notice was sent to putative members of the collective, and over 2,200 joined. See Dkt. 687,
7 at 3. The intervenors were among the opt-ins.
Defendants were permitted to seek discovery from a sample of those opt-ins. Dkt. 488. They

9 selected Aaron Dott as one of the opt-ins to participate in discovery, and he responded to written
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10 discovery and sat for a deposition.

On July 6, 2016, the Court dismissed two named plaintiffs, Matt Gorgen and Matt Lewis,

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12 from the action. Dkt. 682. In their motion for class certification, Plaintiffs informed the Court of their
13 intent to add Aaron Dott as a class representative to replace Matt Gorgen. See Dkt. 687, at 11 (citing
14 to Plaintiffs Rule 23 Motion at 17, n.75).
On July 21, 2016, the Court denied Plaintiffs motion for class certification and decertified the

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16 FLSA collective. Dkt. 687. The Court found that Rule 23(a)s commonality requirement had been
17 met, but ruled that common issues did not predominate under Rule 23(b)(3). Id. The Court also found
18 that the named Plaintiffs in the SCAC lacked standing to pursue an injunctive class under Rule
19 23(b)(2), primarily because they did not show a likelihood of future harm. Id. at 92-93.
Plaintiffs next filed a motion for leave to move for reconsideration, (Dkt. 694), and the Court

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21 is permitting Plaintiffs to further brief the class certification and FLSA issues. (Dkt. 710).
ARGUMENT

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As the Supreme Court has stated, class members may intervene as plaintiffs in the pending

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24 action following the denial of class certification. Crown, Cork & Seal Co., 462 U.S. at 354. Further,
25 the weight of existing authority indicates a motion to intervene is the proper procedure to follow for
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See Broshuis Declaration in Support of Motion to Intervene, 2.

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1 a class member who wishes to join a lawsuit as a representative plaintiff. Munoz v. PHH Corp., No.
2 1:08-CV-0759-AWI-BAM, 2013 WL 3935054, at *5 (E.D. Cal. July 29, 2013). Intervention can be
3 permitted as a matter of right under Rule 24(a) or permissively pursuant to the Courts discretion
4 under Rule 24(b). As detailed below, the intervenors satisfy the requirements for both forms of
5 intervention, and their motion should be granted.
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I.

The intervenors have the right to intervene under Rule 24(a).

Rule 24(a) mandates the following:

On timely motion, the court must permit anyone to intervene who(2) claims an
interest relating to the property or transaction that is the subject of the action, and is
so situated that disposing of the action may as a practical matter impair or impede the
movants ability to protect its interest, unless existing parties adequately represent that
interest.

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11 Courts should construe Rule 24(a) liberally in favor of potential intervenors, and should be guided
12 by practicalitiesnot technicalities. Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 818 (9th Cir.
13 2001). As articulated in Berg, the Ninth Circuit uses a four-part test to evaluate motions under Rule
14 24(a):
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(1) the application for intervention must be timely; (2) the applicant must have a
significantly protectable interest relating to the property or transaction that is the
subject of the action; (3) the applicant must be so situated that the disposition of the
action may, as a practical matter, impair or impede the applicants ability to protect
that interest; and (4) the applicants interest must not be adequately represented by the
existing parties in the lawsuit.
Id. The intervenors meet all four requirements.

Timeliness. The first requirement is that the motion be timely. Timeliness is a flexible
concept, United States v. Alisal Water Corp., 370 F.3d 915, 921 (9th Cir. 2004), but courts are guided by
three considerations: (1) the stage of the proceeding; (2) the prejudice to other parties; and (3) the
reason for and length of the delay. United States v. State of Or., 745 F.2d 550, 552 (9th Cir. 1984). Mere
lapse of time alone is not determinative. Id. In motions to intervene by putative class members in a
class action, timeliness is measured in relation to when the proposed intervenor became aware that his
interests would no longer be protected by the named class representatives. Hill v. W. Elec. Co., 672
F.2d 381, 386 (4th Cir. 1982).

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It is appropriate at this stage of the proceedings for the intervenors to intervene. Until the

2 Court issued its July 21 order, there was no reason for them to seek to intervene. They had already
3 joined the FLSA Collective, so their claims under federal law were protected. And as members of the
4 putative class action, their Rule 23 claims were also being prosecuted.
The Courts July 21 order changed the posture of the proceedings. Because the Court

6 decertified the FLSA Collective and denied class certification, it is likely that the opt-ins and class
7 members claims are no longer protected. The intervenors seek to intervene less than two months
8 after this important decision. Thus, they have not delayed given the stage of the proceedings.
Not only has there been no delay, but there is no prejudice to Defendantswhich is the

10 most important consideration of timeliness. State of Or., 745 F.2d at 552. Prejudice is measured by
11 the harm that arises from late intervention as opposed to early intervention. Munoz, 2013 WL
12 3935054, at *8. No new legal theories are being presented, so the scope of the case will not change.
13 See Home Builders Assn of N. Cal. v. U.S. Fish & Wildlife Serv., No. CIV.S-05-629 LKK/GGH, 2006 WL
14 1455430, at *3 (E.D. Cal. May 24, 2006) (no prejudice results when intervenors make the same
15 fundamental arguments). Any further discovery burdens will be minimal. Aaron Dott has already
16 responded to written discovery and had his deposition taken. At the time of his deposition,
17 Defendants were aware that Plaintiffs intended to add Mr. Dott as a representative. Mr. Dott thus sat
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18 for a full seven-hour deposition and was questioned regarding his adequacy as a class representative.

19 The other intervenors will need to respond to discovery, but now that the trial date has been
20 continued, there is ample time for them to do so. And in the absence of intervention, they would be
21 permitted to file their own separate suits, which would lead to the need for this discovery anyway. It is
22 far more efficient for this discovery to fold into the existing progress already achieved in this case. See
23 Kamakahi v. Am. Socy for Reprod. Med., No. 11-CV-01781-JCS, 2015 WL 1926312, at *4 (N.D. Cal. Apr.
24 27, 2015) (Spero, J.) (The actual work that will need to be done as a result of intervention is almost
25 entirely the same work that would have been required if Proposed Intervenors had intervened earlier,
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Broshuis Declaration in Support of Motion to Intervene, 2.

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1 or even if they had been parties from the outset: Defendants will need to take Proposed Intervenors
2 depositions and perhaps conduct other discovery limited to their personal capacity to serve as Rule
3 23(b)(2) subclass representatives.).
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Significantly protectable interest. The intervenor must also have a significantly protectable

5 interest in the action. This is a practical, threshold inquiry, and [n]o specific legal or equitable
6 interest is needed. Berg, 268 F.3d at 818. The requirement is generally satisfied when the asserted
7 interest is protectable under some law and the claims at issue relate to that interest. Id.
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A class member has a significantly protectable interest in a class action. Glass v. UBS Fin. Servs.,

9 Inc., No. C-06-4068 MMC, 2007 WL 474936, at *2 (N.D. Cal. Jan. 17, 2007), affd, 331 F. Appx 452
10 (9th Cir. 2009) (As [intervenor] is a member of the Glass class, he has a significant protectable
11 interest relating to the subject of the instant action.); Koike v. Starbucks Corp., 602 F. Supp. 2d 1158,
12 1161 (N.D. Cal. 2009) (Because FRCP 23 provides Nguyen with a procedure for pursuing his claims,
13 the court finds Nguyens interest in the procedural vehicle of a class action to be significantly
14 protectible.). As the Third Circuit has stated,
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In the class action context, the second and third prongs of the Rule 24(a)(2) inquiry
are satisfied by the very nature of Rule 23 representative litigation. Therefore, when
absent class members seek intervention as a matter of right, the gravamen of a courts
analysis must be on the timeliness of the motion to intervene and on the adequacy of
representation.

18 In re Cmty. Bank of N. Virginia, 418 F.3d 277, 314 (3d Cir. 2005).
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Although the Ninth Circuit in Berg made clear that a specific legal interest is not required, there

20 are specific legal interests here: the case implicates the intervenors statutorily protected rights under
21 the FLSA and state laws because their claims overlap with the claims at issue in the case. See Munoz,
22 2013 WL 3935054, at *11-12 (absent class members RESPA claims that overlapped with the class
23 claims provided a significant protectable interest). Moreover, and as discussed more below, the case
24 implicates the intervenors interests in bringing injunctive class claims. Thus, there are significantly
25 protectable interests that directly relate to the core claims of the case.
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Possible impairment of that interest. If an absentee would be substantially affected in a

27 practical sense by the determination made in an action, he should, as a general rule, be entitled to
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1 intervene. Berg, 268 F.3d at 822. It is enough that the interests may be affectedabsolute certainty is
2 not required. Citizens for Balanced Use v. Montana Wilderness Assn, 647 F.3d 893, 900 (9th Cir. 2011).
The interests of the intervenors may be affected in multiple ways. First, there are the possible

4 stare decisis effects on their claims. The Eleventh Circuit has found this alone to be enough to
5 support intervention as a matter of right under nearly identical circumstances. Stone v. First Union Corp.,
6 371 F.3d 1305, 1310 (11th Cir. 2004). In Stone, an age discrimination case, the district court initially
7 certified an opt-in class and later decertified it. Id. at 1307. Opt-ins then sought to intervene, and the
8 Court denied the motion. Id. at 1308. The Eleventh Circuit reversed, holding that they had the right to
9 intervene. The case alleged that a central policy violated age discrimination laws, so the district courts
10 ruling in the case would influence later suits and have significant persuasive effects. Id. at 1310.
11 These effects were sufficiently significant to warrant intervention. Id.; see also Cook v. Boorstin, 763
12 F.2d 1462, 1471 (D.C. Cir. 1985) (overturning denial of right to intervene to absent class members in
13 race discrimination case after class certification denied because they had a right to intervene). The
14 same is true for the intervenors here because the Courts decisions on MLBs uniform policies will
15 certainly influence any later suits that might be brought.
Second, there are possible class action-related decisions that may substantially affect the

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17 intervenors interest. Again, the Third Circuit has held that these interests automatically satisfy this
18 and the previous element of Rule 24(a). In re Cmty. Bank of N. Virginia, 418 F.3d at 314. The primary
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19 objective of the four current players seeking to intervene is to change Defendants unlawful practices.

20 If they are not permitted to intervene, the Court is likely to hold that Plaintiffs will be unable to
21 proceed as a Rule 23(b)(2) class for injunctive relief. And Aaron Dott is seeking to intervene to
22 replace Matt Gorgen, who withdrew from the case. While the intervenors could file their own
23 separate actions, doing so would not just be inefficientit would also impair the intervenors interests
24 in proceeding as a class. And due to minor leaguers fear of reprisal for joining the lawsuit, along with
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See Declaration of Corey Jones in Support of Class Certification and Motion to Intervene, 11;
Declaration of Kyle Johnson in Support of Class Certification and Motion to Intervene, 10;
27 Declaration of Brian Hunter in Support of Class Certification and Motion to Intervene, 12;
Declaration of Shane Opitz in Support of Class Certification and Motion to Intervene, 12.
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1 the relatively small size of the individual claims, it may mean that the claims of many minor leaguers
2 will never be brought. See Munoz, 2013 WL 3935054, at *12 (since many putative class members may
3 not file a suit, denying intervention will impair the interests of [the intervenor] and the class members
4 she seeks to represent).
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Relatedly, the likely running of the statutes of limitation support intervention. While the

6 intervenors individual claims were tolling during the pendency of the class claims, it is possible that
7 the tolling would not extend to the class claims in a subsequent class action. See Koike, 602 F. Supp. 2d
8 at 1161. This consideration also supports intervention as a matter of right. Id.
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Adequate representation. The burden on proposed intervenors in showing inadequate

10 representation is minimal, and would be satisfied if they could demonstrate that representation of
11 their interests may be inadequate.Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972). It is
12 relevant whether the existing plaintiffs are capable of making the intervenors arguments, and whether
13 the intervenor offers something that would otherwise be neglected. Sagebrush Rebellion, Inc. v. Watt, 713
14 F.2d 525, 528 (9th Cir. 1983).
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The drafters of Rule 24 intended for class members to use intervention to protect interests in

16 class actions under these circumstances. As Rule 24s advisory comments from 1966 state, a member
17 of a class should have the right to intervene in a class action if he can show the inadequacy of the
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18 representation of his interest by the representative parties before the court. In its July 21 Order, the

19 Court determined that the existing class representatives lack standing to pursue claims for injunctive
20 relief under Rule 23(b)(2). Thus, the claims of the current players seeking to intervene are not
21 adequately represented because there are no other current players serving as class representatives.
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Allowing intervention as a matter of right is the most efficient remedy for these concerns and

23 will ensure that these interests are adequately representedand it is far more efficient than the filing
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The comment goes on to state: A class member who claims that his representative does not
25 adequately represent him, and is able to establish that proposition with sufficient probability, should
26 not be put to the risk of having a judgment entered in the action which by its terms extends to him,
and be obliged to test the validity of the judgment as applied to his interest by a later collateral attack.
27 Rather he should, as a general rule, be entitled to intervene in the action. Rule 24 Advisory
Committee Note to the 1966 Amendment.
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1 of new actions. Since the intervenors meet all the requirements of intervention as a matter of right,
2 the Court should grant the motion.
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II.

Alternatively, the intervenors ask to permissively intervene under Rule 24(b).

If the Court does not find Rule 24(a)s requirements met, it should still grant permission to

5 intervene under Rule 24(b). Permissive intervention has three elements: timeliness, commonality, and
6 a basis for jurisdiction. Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 839 (9th Cir. 1996).
This motion is timely for the reasons provided in the preceding section. Commonalities are

8 present because the intervenors have claims that share a common question of law or fact in the
9 main action. See R. 24(b)(1)(B). As the Court previously held, the commonalities include, among other
10 things, the legality of not paying any wages for work performed outside the season, of not paying
11 overtime pay no matter how many hours worked, and of often not paying at least the minimum wage
12 during the season. See Dkt. 687, at 62-63. Lastly, the Court has jurisdiction over the FLSA claims
13 under 28 U.S.C. 1331 and 1337, and supplemental jurisdiction over the state law claims under 28
14 U.S.C. 1367.
Indeed, the procedural posture and stage of proceedings are nearly identical to the Courts

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16 decision to permit intervention in Kamakahi, 2015 WL 1926312, at *4. In that case, the Court denied
17 class certification under Rule 23(b)(2) because the class representatives lacked standing to pursue
18 injunctive relief. Id. at *1. Members of the putative class who had standing to pursue injunctive relief
19 then sought to intervene in order to re-assert a Rule 23(b)(2) class. Id. at *1-2. The Court permitted
20 them to do so, id. at *4, and the Court should do the same for the intervenors here.
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III.

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In accordance with Rule 24(c), a complaint in intervention is included.

In accordance with Rule 24(c), a proposed complaint in intervention is being filed in support

23 of this motion. The complaint in intervention adopts the allegations in the operative complaint in the
24 case, Dkt. 382, and it adds allegations specific to the intervenors.
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CONCLUSION
For the foregoing reasons, the Court should grant the motion to intervene pursuant to Rule

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1 DATED: September 14, 2016

Respectfully submitted,

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/s/ Garrett R. Broshuis

PEARSON, SIMON & WARSHAW LLP
Bruce L. Simon
Daniel L. Warshaw
Bobby Pouya
Benjamin E. Shiftan
KOREIN TILLERY, LLC
Stephen M. Tillery
George A. Zelcs
Aaron M. Zigler
Garrett R. Broshuis
Plaintiffs Interim Co-Lead Class Counsel

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