Free Case Management Statement - District Court of California - California

Case 5:07-cv-03156-JW

Document 23

Filed 11/09/2007

Page 1 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Bingham McCutchen LLP WENDY M. LAZERSON (SBN 97285) CAROLYN B. HALL (SBN 212311) 1900 University Avenue East Palo Alto, CA 94303-2223 Telephone: 650.849.4400 Facsimile: 650.849.4800 Attorneys for Defendants Bimbo Bakeries USA, Inc. and George Weston Bakeries, Inc.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

THOMAS LEONARD, et al., Plaintiffs, v. BIMBO BAKERIES USA, INC., et al., Defendants.

No. C 05-00829 JW (HRL) SECOND CASE MANAGEMENT STATEMENT OF DEFENDANTS BIMBO BAKERIES USA, INC. AND GEORGE WESTON BAKERIES, INC.; DECLARATION OF BETSY CARROLL Date: Time: Place: Judge: November 19, 2007 9:00 a.m. Department 8 Hon. James Ware

And Related Action KATHLEEN MORRISON, et al., Plaintiffs, v. BIMBO BAKERIES USA, INC., et al., Defendants. No. C 07-03156 JW

Pursuant to Local Rule 16-9, Defendant Bimbo Bakeries USA, Inc. ("BBU") hereby submits its Case Management Statement in the above-entitled actions.
A/72311860.2/3003187-0000313787

SECOND CASE MANAGEMENT STATEMENT OF DEFENDANTS BIMBO BAKERIES USA, INC. AND GEORGE WESTON BAKERIES, INC. C 05-00829 JW (HRL)

Case 5:07-cv-03156-JW

Document 23

Filed 11/09/2007

Page 2 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1.

Jurisdiction and Service

The basis for the court's subject matter jurisdiction over Plaintiffs' claims is subject matter jurisdiction of the claims under the Fair Labor Standards Act, and diversity jurisdiction under the Class Action Fairness Act. There are no issues regarding personal jurisdiction or venue. Defendants have already generally appeared and have never challenged venue. As to parties to be served, Bestfoods Baking Company, Inc. is named as an employer in the Collective Bargaining Agreement ("CBA"). The parties have not been able to resolve the status of this named Defendant. Plaintiffs claim to have served an entity called "Bestfoods Baking Company" through COURT Corporation in Chicago, Illinois; however, defense counsel has advised Plaintiffs' counsel that to their knowledge Defendant BBU is not related to that entity nor, to BBU's knowledge, has that entity ever employed these RSRs. BBU has no position on Plaintiffs' attempts to serve or involve Bestfoods as it does not represent Bestfoods and believes there is no relationship to that party and this lawsuit nor has it seen a proof of service upon Bestfoods. However, there is an indemnification agreement between BBU and George Weston Bakeries, Inc. ("George Weston"), with regard to the types of claims set forth in this suit. Defendants believe that George Weston should be dismissed from this lawsuit and have asked that George Weston be dismissed from this suit in view of the indemnification agreement. 2. Facts a. Brief Chronology BBU is a wholesale baking business with a multi-regional distribution of baked goods throughout the United States. Plaintiffs are current or former employees of BBU, employed as commissioned driver salesmen commonly known in the baking industry as route sales representatives ("RSRs"). The RSRs' employment at BBU is governed by a CBA, with each sales/delivery route bid for on the basis of seniority under the terms of the applicable CBA. The CBA to the Leonard Plaintiffs addresses all of the terms and conditions of employment. The employment of Plaintiffs in the related Morrison action is governed by a different CBA, which //
A/72311860.2/3003187-0000313787

2

SECOND CASE MANAGEMENT STATEMENT OF DEFENDANTS BIMBO BAKERIES USA, INC. AND GEORGE WESTON BAKERIES, INC. C 05-00829 JW (HRL)

Case 5:07-cv-03156-JW

Document 23

Filed 11/09/2007

Page 3 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

applies in Southern California. That CBA also addresses all of the terms and conditions of employment. Plaintiffs in the Leonard action filed a complaint against Bestfoods Baking Company, Inc. ("Bestfoods") and Bimbo Bakeries USA, Inc. ("BBU") on February 25, 2005 alleging both a class action for state wage and hour claims and a collective action for alleged violation of federal wage and hour laws. George Weston, a wholesale baking company, the western division of which was acquired by BBU, received the complaint, and George Weston tendered the complaint to BBU. Defendants BBU and George Weston have answered the complaint, but Bestfoods, which to BBU's knowledge does not employ RSRs and is not connected with the answering parties, nor represented by their counsel has not responded. The answering Defendants deny all of the material allegations in the Complaint and set forth numerous affirmative defenses. Defendants do not believe there is factual or legal merit to any of the asserted claims. Defendants have abided by both state and federal law in all aspects of the RSRs' employment and this will become evident as the lawsuit progresses. Defendants emphatically disagree with Plaintiffs' characterization that the RSRs "are not paid for sales." The RSRs are paid primarily on commissions they earn through selling product to the stores on their routes and the primary job responsibility of the RSRs is to sell. Moreover, Defendants emphatically deny (and the RSRs' own admissions contradict) Plaintiffs' contention that the RSRs uniformly work nine to 11 hours per day and work without breaks. BBU contends that the overwhelming evidence is to the contrary and the RSRs (and counsel for them) have admitted that the RSRs can and do take meal breaks and rest breaks. The Court ruled on cross motions for summary judgment and/or partial summary judgment filed by the parties, denying Plaintiffs' motion. As to BBU's motion for summary judgment in the Leonard action, the Court ruled on September 28, 2007, that Plaintiffs' FLSA minimum wage and FLSA recordkeeping claims have no merit and should be dismissed. The court also ruled that Plaintiffs' FLSA overtime claims have no merit for the period prior to August 10, 2005, but that Plaintiffs' FLSA overtime claims for the period after August 10, 2005 survive Defendants' motion for summary judgment and remain in the case so that the fact finder can hear evidence on the weight of vehicles driven by the RSRs. The Court also granted summary judgment, dismissing the named Plaintiffs' California state overtime and minimum A/72311860.2/3003187-0000313787 3
SECOND CASE MANAGEMENT STATEMENT OF DEFENDANTS BIMBO BAKERIES USA, INC. AND GEORGE WESTON BAKERIES, INC. C 05-00829 JW (HRL)

Case 5:07-cv-03156-JW

Document 23

Filed 11/09/2007

Page 4 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

wage claims. Proposed class members' California overtime and minimum wage claims should fail for the same reasons, as the law applies to them as well. Plaintiffs in the Morrison action are also former RSRs employed by Defendants in California. The Morrison Plaintiffs, apparently unaware of the Leonard action pending in this Court, filed their Complaint in Orange County Superior Court on December 29, 2006, alleging overtime, meal and rest period, wage statement, and related claims. As with Leonard, the answering Defendants deny all of the material allegations in the Complaint and set forth numerous affirmative defenses. Defendants do not believe there is factual or legal merit to any of the asserted claims for the same reasons as apply to the Leonard Plaintiffs. Defendants have abided by both state and federal law in all aspects of the RSRs' employment and this will become evident as the lawsuit progresses. BBU removed the Morrison case to the United States District Court for the Central District of California, and then moved to stay, dismiss, or transfer the case on the grounds that it is duplicative of Leonard. The Court transferred Morrison to the Northern District, and on September 28, 2007, in the same order granting in part BBU's summary judgment motion in Leonard, the Court deemed Morrison related to Leonard. In that order, the Court denied without prejudice BBU's request to consolidate the two actions, pending further discussion at the upcoming Case Management Conference. b. Principal Factual Issues in Dispute a. Whether Plaintiffs and the proposed class members were properly

compensated under applicable state and federal law. The Court's order granting in part Defendants' summary judgment motion on Plaintiffs' California overtime and minimum wage claims applies only to the six named Leonard Plaintiffs. However, proposed class members' California state claims will fail for the same reasons as the named Plaintiffs' claims have failed. b. Whether Plaintiffs and the members of the conditionally certified

collective action qualify for the Motor Carrier Act exemption such that they are exempt employees pursuant to section 13(b)(1) of the Fair Labor Standards Act ("FLSA") for the period from August 10, 2005 onward.
A/72311860.2/3003187-0000313787

28 // 4
SECOND CASE MANAGEMENT STATEMENT OF DEFENDANTS BIMBO BAKERIES USA, INC. AND GEORGE WESTON BAKERIES, INC. C 05-00829 JW (HRL)

Case 5:07-cv-03156-JW

Document 23

Filed 11/09/2007

Page 5 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 did so.

c.

Whether Plaintiffs and the members of the conditionally certified

collective action are exempt outside salespersons pursuant to section 13(a)(1) of the FLSA. d. Whether the proposed class members are exempt from the overtime

compensation and meal and rest period requirements contained in the California Labor Code and in the wage orders of the Industrial Wage Commission (the Court's order granting in part Defendants' summary judgment motion on Plaintiffs' California overtime claims applies only to the six named Leonard Plaintiffs. However, proposed class members' California state overtime claims will fail for the same reasons as the named Plaintiffs' claims have failed). e. Whether, if Defendants were required to provide meal periods, Defendants

f.

Whether the proposed class members were not paid for all their work, i.e.

whether they worked "off the clock" in violation of California law (Plaintiffs' minimum wage claim has already been dismissed as to the named Plaintiffs and should fail for the same reasons for proposed class members). g. Whether Plaintiffs and the proposed class members received accurate

itemized wage statements as required under the California Labor Code. h. Whether, if Plaintiffs and the proposed class members did not receive

accurate itemized wage statements, they suffered any injury. i. Whether Plaintiffs and the proposed class members received payment of

all wages due upon termination of employment. j. Whether Plaintiffs and the proposed class members have similar job

requirements, conditions and pay provisions such that a collective action is warranted. k. Whether, under Fed. R. Civ. Proc. 23(a), the alleged class is so numerous

that joinder of all members would be impracticable. l. Whether, under Fed. R. Civ. Proc. 23(a), there are questions of law or fact

common to the alleged class. // //
A/72311860.2/3003187-0000313787

5

SECOND CASE MANAGEMENT STATEMENT OF DEFENDANTS BIMBO BAKERIES USA, INC. AND GEORGE WESTON BAKERIES, INC. C 05-00829 JW (HRL)

Case 5:07-cv-03156-JW

Document 23

Filed 11/09/2007

Page 6 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was violated. was violated. violated.

m.

Whether, under Fed. R. Civ. Proc. 23(b)(3), any such common questions

of law or fact common to the alleged class predominate over individualized issues and whether a class action would be the superior method for adjudication of this dispute. n. Whether, under Fed. R. Civ. Proc. 23(a), Plaintiffs' claims are typical of

the claims of the proposed class. o. Whether, under Fed. R. Civ. Proc. 23(a), the representative parties will

fairly and adequately protect the interests of the alleged class. p. Whether Plaintiffs can meet the alternative requirements for certification

under Fed. R. Civ. Proc. 23(b). 3. a. Legal Issues Whether Plaintiffs and the proposed class members are exempt from the

overtime provisions of the FLSA for the period from August 10, 2005 onward under either the Motor Carrier exemption or the outside sales exemption. b. Whether the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., was

c. d.

Whether there was any willful violation by defendants of the FLSA. Whether Plaintiffs and the proposed class members are subject to the

California outside sales exemption. e. exception to overtime. f. If the proposed class members are not exempt from overtime, the proper Whether the proposed class members are subject to the California CBA

calculation of overtime pay, based not just on hourly straight time but also on bonus earnings. g. Whether the proposed class members were properly compensated for all

time worked under California law. h. Whether any wage order of the California Industrial Welfare Commission

i.

Whether California Labor Code section 1194, governing overtime wages, 6

A/72311860.2/3003187-0000313787

SECOND CASE MANAGEMENT STATEMENT OF DEFENDANTS BIMBO BAKERIES USA, INC. AND GEORGE WESTON BAKERIES, INC. C 05-00829 JW (HRL)

Case 5:07-cv-03156-JW

Document 23

Filed 11/09/2007

Page 7 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 violated.

j.

Whether California Labor Code section 226, governing itemized wage

statements, was violated. k. Whether California Labor Code section 203, governing payment of wages

upon termination, was violated. l. Whether California Business and Professions Code section 17200 was

m.

Whether Plaintiffs and the proposed class members are entitled to recover

damages, restitution, or other amounts. n. Whether any portion of the claims of Plaintiffs and the proposed class

members claims are barred by any applicable statute of limitations. o. Whether Plaintiffs and the class members have similar job requirements,

conditions and pay provisions such that a collective action is warranted. p. Whether, under Fed. R. Civ. Proc. 23(a), the alleged class is so numerous

that joinder of all members would be impracticable. q. Whether, under Fed. R. Civ. Proc. 23(a), there are questions of law or fact

common to the alleged class. r. Whether, under Fed. R. Civ. Proc. 23(b)(3), any such common questions

of law or fact common to the alleged class predominate over individualized issues and whether a class action would be the superior method for adjudication of this dispute. s. Whether, under Fed. R. Civ. Proc. 23(a), Plaintiffs' claims are typical of

the claims of the proposed class. t. Whether, under Fed. R. Civ. Proc. 23(a), the representative parties will

fairly and adequately protect the interests of the alleged class. u. Whether Plaintiffs can meet the alternative requirements for certification

under Fed. R. Civ. Proc. 23(b). // // //
A/72311860.2/3003187-0000313787

7

SECOND CASE MANAGEMENT STATEMENT OF DEFENDANTS BIMBO BAKERIES USA, INC. AND GEORGE WESTON BAKERIES, INC. C 05-00829 JW (HRL)

Case 5:07-cv-03156-JW

Document 23

Filed 11/09/2007

Page 8 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

4. a.

Motions Motion for Conditional Certification of the FLSA Collective Action:

On December 27, 2005, the Court granted in part Plaintiffs' motion for conditional certification of a FLSA collective action. As part of this order, the Court ordered the parties to file proposed notices to the conditional class. Proposed notices were filed, but the parties were not able to agree on the form of the notice. Then, the parties stipulated to stay the issuance of court-facilitated notice until the Court ruled upon the parties' cross-motions for summary judgment. The Court granted the parties' stipulation on May 8, 2006. Defendants' position is that any proposed notices that were submitted in 2005 are no longer appropriate as a result of the Court's ruling on the parties' cross motions for summary judgment and/or summary judgment. Further, BBU believes that notice at this point would be improper because BBU has strong grounds to move for decertification of the conditionallycertified collective action and to oppose class certification in this matter based upon the predominance of individualized issues and other factors. Otherwise, needless cost and business interruption would ensue. Pending the Court's determination of the certification motions that will be filed, BBU has offered to continue the tolling on the statue of limitations that has been in place. b. Cross-Motions for Summary Judgment: The parties engaged in discovery

and filed cross motions for summary judgment. The Court issued its ruling on the motions for summary judgment September 28, 2007. The Court granted in part BBU's summary judgment motion and denied Plaintiffs' motion. The Court's decision on the motions for summary judgment is as follows: "The Court grants summary judgment with respect to the following claims: "1. "2. "3. Failure to pay minimum wages in violation of the FLSA. Failure to maintain records in violation of the FLSA. Failure to pay overtime in violation of California Labor Code section1194.

"The following claims remain in the action: "1.
A/72311860.2/3003187-0000313787

Failure to provide meal breaks. 8

SECOND CASE MANAGEMENT STATEMENT OF DEFENDANTS BIMBO BAKERIES USA, INC. AND GEORGE WESTON BAKERIES, INC. C 05-00829 JW (HRL)

Case 5:07-cv-03156-JW

Document 23

Filed 11/09/2007

Page 9 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

"2. "3. "4. "5.

Failure to pay wages on ending of employment [Labor Code 203] Failure to provide itemized wage statements. Failure to pay overtime in violation of the FLSA (after August 10, 2005). Violations of California Business and Professions Code section 17200."

The portions of the Court's order granting summary judgment on Plaintiffs' California law claims apply only to the named Plaintiffs. Proposed class members' California overtime and minimum wage claims should fail for the same reasons. c. Motion for Rule 23 Class Certification: BBU plans to file a motion for a

determination that this action is not appropriate for class treatment and a motion seeking to have the conditionally certified collective action decertified. 5. Amendment of Pleadings

Defendants may join the union as an indispensable party. 6. Evidence Preservation

Subject to any well-founded objections, Defendants have produced all nonprivileged documents responsive to Plaintiffs' document requests in this action. A litigation hold has been in place since the action was filed. 7. Disclosures

The parties have disclosed pursuant to Fed. Rule of Civ. Proced. Rule 26. The disclosures should be considered supplemented by the evidence produced by the parties in their motions for summary judgment. The disclosures have been so manifold that description here would be unduly voluminous. 8. Discovery

Defendants have propounded document requests, special interrogatories, and requests for admissions to the named Plaintiffs and the opt-in Plaintiffs. Defendants have deposed the six named Leonard Plaintiffs and five opt-in Plaintiffs. Plaintiffs stipulated to permit Defendants to exceed 10 depositions so that Defendants could depose the fifth opt-in Plaintiff deponent. The parties have not stipulated that Defendants
A/72311860.2/3003187-0000313787

28 // 9
SECOND CASE MANAGEMENT STATEMENT OF DEFENDANTS BIMBO BAKERIES USA, INC. AND GEORGE WESTON BAKERIES, INC. C 05-00829 JW (HRL)

Case 5:07-cv-03156-JW

Document 23

Filed 11/09/2007

Page 10 of 15

1 may take any additional depositions at this point. If the Leonard and Morrison actions are 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 trial. c. Any and all written discovery will be propounded such that a response before trial. b. The expert discovery cutoff in this case shall be fifteen (15) days before consolidated Defendants anticipates that they would need to depose the Morrison Plaintiffs. Plaintiffs took the deposition of BBU pursuant to Fed. R. Civ. Proc. 30(b)(6). Plaintiffs specified approximately 20 deposition topics, for which BBU produced five witnesses. Defendants understand that Plaintiffs believe they may re-depose BBU as a matter of right. Plaintiffs cannot as a matter of right re-depose any witnesses that have already been deposed in this action, including the deposition of BBU pursuant to Rule 30(b)(6), and in any event, discovery in this action is complete or nearly complete. The scope includes all liability and damages issues, as well as issues pertaining to class certification under Rule 23. There is support in the case law for the proposition that a 30(b)(6) deposition may be noticed one and only one time and that Plaintiffs have already served a 30(b)(6) deposition notice specifying many topics, and that BBU produced witnesses in response. Plaintiffs also took the deposition of BBU's Human Relations Manager, Laura Thompson-McCann. Plaintiffs propounded 19 interrogatories to Defendants. Plaintiffs propounded two sets of requests for admissions to Defendants, and several sets of requests for production. Discovery Plan The parties stipulated to the following discovery plan in the parties' initial Joint Case Management Statement and Proposed Order file June 27, 2005: a. The non-expert discovery cutoff in this case shall be thirty (30) days

shall be due on or before the discovery cutoff date. d. If a party chooses to designate for trial any expert witnesses under Fed. R.

Civ. Proc. 26(a)(2), said designation shall be made by sixty (60) days before the date of trial, as it may be continued from time to time. //
A/72311860.2/3003187-0000313787

10

SECOND CASE MANAGEMENT STATEMENT OF DEFENDANTS BIMBO BAKERIES USA, INC. AND GEORGE WESTON BAKERIES, INC. C 05-00829 JW (HRL)

Case 5:07-cv-03156-JW

Document 23

Filed 11/09/2007

Page 11 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

e.

If a party chooses to designate any rebuttal expert witnesses in response to

the other party's initial expert witness designation, said designation shall be made by thirty (30) days before trial. g. 8.A. The parties have stipulated to a protective order. Consolidation and its Effect on Discovery

Defendants understand that the parties are in agreement that consolidation of Leonard and Morrison is appropriate. If the Court agrees to consolidate the two actions, Defendants object to duplicative discovery; particularly, Defendants believe that Plaintiffs should not be permitted to re-depose any witnesses whom Plaintiffs have already deposed in this action, including the 30(b)(6) deposition of BBU and further, that discovery in this action should be nearly complete. 9. Class Actions

Defendants contend that this action is not well suited as a class action (nor as a FLSA collective action) because Plaintiffs cannot show they can satisfy all of the requirements of Rule 23(a), in particular the showing of commonality required by subsection (2), the showing of typicality required by subsection (3), and the showing of adequacy required by subsection (4). Further, this action is not maintainable under Fed.R.Civ.P. 23(b)(2) because Plaintiffs' primary claim is for damages, and this action is not maintainable under Fed.R.Civ.P. 23(b)(3) because individualized issues predominate over any that might be common to the purported class and therefore class treatment is simply not appropriate. Defendants further contend that the action is not maintainable as a FLSA collective action because the Plaintiffs and the purported class are not similarly-situated. Defendants intend to set forth the factual and legal support for their position in a forthcoming motion for an order that this action may not be certified as a class action and motion for decertification of the conditionally certified collective action. Defendants intend to move for such orders before April 2008. Furthermore, Defendants contend that any notice should be stayed pending the ruling on motions to certify. //
A/72311860.2/3003187-0000313787

11

SECOND CASE MANAGEMENT STATEMENT OF DEFENDANTS BIMBO BAKERIES USA, INC. AND GEORGE WESTON BAKERIES, INC. C 05-00829 JW (HRL)

Case 5:07-cv-03156-JW

Document 23

Filed 11/09/2007

Page 12 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 alleged.

10.

Related Cases

The Court has deemed related the Leonard v. Bimbo Bakeries USA, Inc. and Morrison v. Bimbo Bakeries USA, Inc. actions. 11. Relief

Plaintiffs seek the following relief: a. Unpaid wages at overtime rates for all overtime work, and unpaid wages

for all work for which Plaintiffs allege that they were not paid, including minimum wages, as damages and restitution. b. Waiting time penalties under Labor Code section 203 for all RSRs no

longer in Defendants' employ at the time of judgment, as statutory amounts, wages, and restitution. c. The amounts provided for in Labor Code section 226.7 for failure to

provide meal periods, to be awarded under the statute, and to the extent permitted by law, as restitution. d. The amounts provided for in Labor Code section 226(b) for failure to

provide itemized wage statements, be awarded under the statute, and to the extent permitted by law, as restitution. e. Injunctive relief to prohibit Defendants from engaging in the violations

12.

Settlement and ADR

The parties previously filed a Stipulation and Proposed Order Selecting Early Neutral Evaluation ("ENE") as an ADR process. Defendants' position is that any ADR process should take place after the Court has heard any motions on class and/or collective certification. 13. Consent to Magistrate Judge for all Purposes

Defendants have filed a non-consent to assignment of this case to a United States Magistrate Judge for disposition or trial, and the case has been reassigned to a United States District Judge. //
A/72311860.2/3003187-0000313787

12

SECOND CASE MANAGEMENT STATEMENT OF DEFENDANTS BIMBO BAKERIES USA, INC. AND GEORGE WESTON BAKERIES, INC. C 05-00829 JW (HRL)

Case 5:07-cv-03156-JW

Document 23

Filed 11/09/2007

Page 13 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 trial. before trial.

14.

Other References

Defendants do not believe that this case is suitable for any references. 15. Narrowing of Issues

The issues in this action have already been narrowed on summary judgment. BBU anticipates that the class certification process will also narrow the issues further. 16. Expedited Schedule

This is not the type of case that can be handled on an expedited basis with streamlined procedures. The discovery and motions leading up to and including the motions for summary judgment consumed two and one half years. 17. a. Scheduling The non-expert discovery cutoff in this case shall be thirty (30) days

b.

The expert discovery cutoff in this case shall be fifteen (15) days before

c.

Any and all written discovery will be propounded such that a response

shall be due on or before the discovery cutoff date. d. If a party chooses to designate for trial any expert witnesses under Fed. R.

Civ. Proc. 26(a)(2), said designation shall be made by sixty (60) days before the date of trial, as it may be continued from time to time. e. If a party chooses to designate any rebuttal expert witnesses in response to

the other party's initial expert witness designation, said designation shall be made by thirty (30) days before trial. f. BBU intends to move for decertification of the conditionally certified

collective action and for an order determining that this action may not be maintained as a class action prior to April 2008. Further, BBU contends that notice should be stayed (subject to a tolling of the statute of limitations) until the certification issues can be decided. g. h. Pre-Trial Conference: September, 2008. Trial: October, 2008. 13

A/72311860.2/3003187-0000313787

SECOND CASE MANAGEMENT STATEMENT OF DEFENDANTS BIMBO BAKERIES USA, INC. AND GEORGE WESTON BAKERIES, INC. C 05-00829 JW (HRL)

Case 5:07-cv-03156-JW

Document 23

Filed 11/09/2007

Page 14 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

18.

Trial

Both sides have requested trial by jury. 19. Disclosure of Non-Party Interested Entities or Persons

Defendants are not aware of any non-party interested entities or persons, although they note the case the Court has already deemed related. DATED: November 9, 2007 Bingham McCutchen LLP

By:

/s/ Wendy M. Lazerson Attorneys for Defendants Bimbo Bakeries USA, Inc. and George Weston Bakeries, Inc.

A/72311860.2/3003187-0000313787

14

SECOND CASE MANAGEMENT STATEMENT OF DEFENDANTS BIMBO BAKERIES USA, INC. AND GEORGE WESTON BAKERIES, INC. C 05-00829 JW (HRL)

Case 5:07-cv-03156-JW

Document 23

Filed 11/09/2007

Page 15 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 trial. d. before trial. c.

PROPOSED CASE MANAGEMENT ORDER IT IS HEREBY ORDERED that the following schedule shall apply to this action: a. The actions Leonard, et al. v. Bimbo Bakeries USA, Inc., et al., Case No.

C 05-00829 JW (HRL) and Morrison, et al. v. Bimbo Bakeries USA, Inc., et al., Case No. No. C 07-03156 JW , shall be consolidated for all purposes. b. The non-expert discovery cutoff in this case shall be thirty (30) days

The expert discovery cutoff in this case shall be fifteen (15) days before

Any and all written discovery will be propounded such that a response

shall be due on or before the discovery cutoff date. e. If a party chooses to designate for trial any expert witnesses under

Fed.R.Civ.P. 26(a)(2), said designation shall be made by sixty (60) days before the date of trial, as it may be continued from time to time. f. If a party chooses to designate any rebuttal expert witnesses in response to

the other party's initial expert witness designation, said designation shall be made by thirty (30) days before trial. g. Motion for class certification, to determine that the action may not be

maintained as a class action, and for decertification of the conditionally certified collective action no later than April, 2008. h. i. Pre-Trial Conference: September ___, 2008. Trial: October ___, 2008.

DATED: _________________, 2007

By: The Honorable James Ware United States District Judge

A/72311860.2/3003187-0000313787

15

SECOND CASE MANAGEMENT STATEMENT OF DEFENDANTS BIMBO BAKERIES USA, INC. AND GEORGE WESTON BAKERIES, INC. C 05-00829 JW (HRL)