Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 1 of 44 PageID #:5874 1 TRANSCRIBED FROM DIGITAL RECORDING 2 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 1 BRIAN LUCAS, et al., ) ) Plaintiffs, ) ) vs. ) ) GOLD STANDARD BAKING, INC., et al., ) ) Defendants. ) No. 13 C 1524 Chicago, Illinois October 8, 2014 11:14 A.M. TRANSCRIPT OF PROCEEDINGS - Motion Hearing BEFORE THE HONORABLE YOUNG B. KIM, Magistrate Judge APPEARANCES: For the Plaintiffs: WORKERS' LAW OFFICE PC 401 South LaSalle Street Suite 1400 Chicago, Illinois 60605 BY: MR. CHRISTOPHER J. WILLIAMS COHEN MILSTEIN SELLERS & TOLL, PLLC 1100 New York Avenue West Tower, Suite 500 Washington, DC 20005 BY: MR. PETER ROMER-FRIEDMAN MS. SHAYLYN CAPRI COCHRAN (Appearing by phone) 19 20 21 22 23 24 25 PAMELA S. WARREN, CSR, RPR Official Court Reporter 219 South Dearborn Street Room 1928 Chicago, Illinois 60604 (312) 294-8907 NOTE: Please notify of correct speaker identification. FAILURE TO SPEAK DIRECTLY INTO THE MICROPHONE MAKES PORTIONS UNINTELLIGIBLE. Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 2 of 44 PageID #:5875 1 APPEARANCES (Continued:) 2 For Defendant Gold Standard: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 For Defendant MVP: 2 HANNAFAN & HANNAFAN LTD One East Wacker Drive Suite 2800 Chicago, Illinois 60601 BY: MR. BLAKE T. HANNAFAN KOREY COTTER HEATHER & RICHARDSON, LLC 20 South Clark Street Suite 500 Chicago, Illinois 60603 BY: MR. ELLIOT S. RICHARDSON MS. BRITNEY ZILZ Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 3 of 44 PageID #:5876 1 2 3 (Proceedings held in open court:) THE CLERK: 13 C 1524, Lucas, et al., versus Gold Standard Banking, Inc., et al. 4 MR. RICHARDSON: Good morning, your Honor. 5 THE COURT: Good morning. 6 MR. WILLIAMS: Good morning, your Honor. Chris 7 8 9 10 11 12 13 Williams here on behalf of the plaintiff. And I think Mr. Romer-Friedman is on the line and Ms. Cochran. MR. ROMER-FRIEDMAN: Good morning, your Honor. Peter Romer-Friedman for the plaintiff. MS. COCHRAN: Good morning, your Honor. Shaylyn Cochran for plaintiff. 14 THE COURT: All right. Good morning. 15 MR. HANNAFAN: Good morning, your Honor. Blake 16 17 18 3 Hannafan on behalf of Gold Standard Baking. MR. RICHARDSON: Good morning, again. Elliot Richardson and Brittany Zilz on behalf of PSG. 19 THE COURT: Ms. Vucko is on leave? 20 MR. HANNAFAN: She -- yeah, she had her baby. 21 THE COURT: Oh, that's great. 22 MR. HANNAFAN: So she -- she's off for -- for quite 23 some time, I think. 24 THE COURT: Boy or girl? 25 MR. HANNAFAN: Little girl. It's a she. Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 4 of 44 PageID #:5877 4 1 THE COURT: You know her name? 2 MR. HANNAFAN: You know what, I knew you were going to 3 4 5 6 ask me that -(Laughter.) MR. HANNAFAN: -- coming over here, and I'm like, I can't -- I think it's like Celia. 7 MR. WILLIAMS: (Unintelligible). 8 THE COURT: All right. Okay. 9 MR. HANNAFAN: So, yeah. 10 THE COURT: That's great. 11 MR. HANNAFAN: She's doing -- she's doing well. 12 THE COURT: Wonderful. So let's start. 13 Go ahead and deal with the motion that's pending. And 14 this is plaintiffs's motion for leave to contact putative class 15 members and to direct MVP to produce additional information on 16 putative class members. 17 So in the motion plaintiff -- plaintiffs are seeking 18 two different things. One, leave of Court to contact class 19 members; two, additional contact information by way of phone 20 numbers, as well as e-mail addresses, if there are any 21 available. 22 But I'd like to start, so -- I'd like to start with 23 the leave part first. Although discovery has been quite 24 extensive, the theories of liability are quite simple. One 25 theory is that GSB blatantly directed MVP, sorry, we don't want Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 5 of 44 PageID #:5878 1 2 5 any back employees, do not bother sending them to us. The second theory is by way of MVP promoting its 3 services and advertising it -- it's practice of advertising has 4 a disparate impact and adversely impacts African Americans. 5 6 7 Those are the two theories of liability as I understand them, right? MR. WILLIAMS: Well, it's also -- it's 8 (unintelligible) assignment, and it's steering individuals away 9 from Gold Standard Banking is at issue. 10 11 And if -- if I may, I brought the transcript from Judge Ellis where this whole issue was argued. 12 THE COURT: Okay. 13 MR. WILLIAMS: And what Judge Ellis said, starting 14 15 16 17 18 with Mr. Hannafan, the problem here is that its claims -THE COURT: Well, hold on a second. Let me -- first get the date of the transcript. MR. WILLIAMS: I'm sorry. Yeah, let me -- let me give you that. We're talking about the February 11th, 2014 -- 19 THE COURT: Uh-huh. 20 MR. WILLIAMS: -- hearing transcript of proceedings 21 Before the Honorable Sara L. Ellis. 22 THE COURT: Okay. 23 MR. WILLIAMS: And I'm -- I'm reading page 11, 24 25 starting at line 6. And if I may go to page 12, line 22, that's where Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 6 of 44 PageID #:5879 6 1 Judge Ellis characterizes our argument, which I think she does 2 quite well -- 3 THE COURT: Okay. 4 MR. WILLIAMS: -- in response to Mr. Hannafan. 5 So Mr. Hannafan says, the problem here is that his 6 clients have said they come in, and they came in and 7 specifically asked for Gold Standard. He can't have it both 8 ways. 9 The other issue, though, your Honor, is African 10 Americans could come in and they could be, again, assume 11 they're eligible -- eligible to go to Gold Standard, that they 12 don't have a criminal background, or, you know, something that 13 would prevent them from working in the baking company. But 14 they're assigned to work at another client of MVP, Company ABC. 15 And instead of GSB, they're sent to Company ABC. 16 Again, I don't see how that can fit into this class. 17 If you know they're assigned a job, they weren't discriminated 18 against. 19 The Court: Here is his argument -- 20 And Mr. Hannafan says, these are the problems we end 21 22 up with. And then the Court, again, here is his argument. All 23 right. It's that -- and I'm not making an evaluation and 24 deciding on the merits of the argument, I'm just telling you 25 what the argument is. His argument is that Gold Standard says Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 7 of 44 PageID #:5880 7 1 to MVP, we don't want any African Americans in our bakery. So 2 when you get people, we want Latino workers. If there's an 3 opening at Company ABC and an opening at GSB, then I want you 4 to send the African Americans to ABC Company, and we'll take 5 the Latino workers. That's his argument. 6 And what he's saying is that even though the African 7 American workers had a job because they went to ABC, they 8 suffered discrimination because they were never given the 9 opportunity to work at GSB instead of ABC. That's his 10 argument. I'm not telling you it's a good argument or a bad 11 argument. 12 Mr. Hannafan, I understand. 13 The Court, that's the argument. So as the plaintiff, 14 he gets to frame his argument. And then we'll see if there is, 15 one, evidence to support it and; two, whether it's legally 16 valid, and, you know, we'll decide it on summary judgment, but 17 that's the argument as it stands. 18 In terms of discovery, and this is before, the 19 referral to this Court, that's what you need to focus on. Who 20 are the people that came to MVP? Where did they go? And which 21 are the, you know, times or instances where Gold Standard 22 Baking was not taking people because those people would not be 23 part of the class. That would be kind of the world of 24 discovery that you'll be looking into going forward. 25 So it -- it includes -- and, again, I -- I want to Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 8 of 44 PageID #:5881 8 1 emphasize something here. We're not saying these thousand 2 people have a class, we're saying these thousand people are the 3 only ones that MVP kept records of because other people came in 4 and were never sent anywhere. And, although plaintiffs dispute 5 this, plaintiffs say they filled out a pre-application, a 6 contact sheet, they were told they would be called for work, 7 they filled a sign-in sheet, they told them where they came in, 8 MVP says those records don't exist or never existed. 9 So we're saying these thousand people are the only 10 likely African Americans who -- who sought assignments at MVP, 11 and in some cases went to Company ABC, just as Judge Ellis 12 indicated. But they were never sent to Gold Standard Baking. 13 That these would be part of the class, that in 14 addition to that part of the class, would be people like the 15 plaintiffs who went in and did not seek that work. 16 And I will say, because yesterday when we did a 37.2 17 call, counsel for MVP raised the issue that -- that we, 18 plaintiffs, are now changing track and trying to do something 19 different, and it's absolutely not true. In fact, as you know, 20 we brought similar cases against a total of five staffing 21 agencies, three companies, because for -- and there are three 22 common plaintiffs in those cases. They're additional in 23 another case. But in those cases, Mr. Lucas himself was 24 assigned by another staffing agency to a company other than the 25 defendant company. Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 9 of 44 PageID #:5882 1 9 So clearly we -- we're not -- we're not inventing the 2 standard to assign claim at this late stage. We brought it 3 knowing that Mr. Lucas was assigned by a staffing agency to a 4 Company ABC other than the defendant company. And we don't 5 have those facts here, but just because defendants are raising 6 the issue that we're now trying to change our allegations and 7 change our theory, it doesn't fit the facts. We brought these 8 claims at essentially the same time, and -- and in that case, 9 as well as in the other case, another individual was assigned 10 to Company ABC but not the defendant Company. 11 So our -- our allegations have always been that the 12 staffing agency is steering individuals away from the Defendant 13 Company. And we plead in the alternative, because the 14 defendant Company requested it or because it -- it has a 15 disparate impact and that it -- it tends to lower labor costs 16 because you have people who are not going to complain about 17 unsafe working conditions, unfair wage practices, and other 18 things. 19 So we have never deviated from that theory that 20 there's a discriminatory practice at the -- at the level of the 21 staffing agency to steer African Americans away from the 22 defendant Company. 23 And Judge Ellis said, this is the scope of discovery. 24 And so these people that -- a thousand people, approximately, 25 that we identified and -- and only those people because they Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 10 of 44 PageID #:5883 10 1 don't -- they don't have pre-ops with the addresses of -- of 2 people who applied and were not assigned, but these thousand 3 people are in the scope of discovery that Judge Ellis defined. 4 MR. RICHARDSON: May I? 5 THE COURT: I -- 6 MR. WILLIAMS: I could pass it up if -- I know I read 7 8 a lot. THE COURT: I -- but I'm not sure that I agree with 9 you that you always took the position that despite what GSB -- 10 GSB may have said or did, that MVP on its own has some kind of 11 practice to steer certain types of employees to certain types 12 of employers. 13 MR. WILLIAMS: Judge Chang spoke to this back in July 14 of 2013 or August of 2013 when he was ruling on their motion to 15 dismiss. And he said, plaintiffs are alleging that there was a 16 neutral policy -- because they were trying to dismiss this 17 disparate impact claim. There was a neutral policy, and that 18 that neutral policy was to tamp down labor costs by hiring 19 immigrant workers as opposed to U.S. born workers who -- who 20 had applied, including African Americans. Judge Chang denied 21 their motion to dismiss on that issue, and -- and that was in, 22 I think it was, August 21st of 2013 or some point in August of 23 2013. I have that transcript as well. 24 25 THE COURT: Well, this discussion is academic because you -- as the plaintiff -- as the plaintiffs they have the Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 11 of 44 PageID #:5884 11 1 2 right to control the allegations. But the reason why I started on this road of trying to 3 figure out the theories is to figure out, okay, what discovery 4 do you need from the putative class members? That's what 5 I'm -- that's what I'm interested in. So let -- so if you -- 6 if you say that's your theory, that's your theory. 7 8 9 MR. WILLIAMS: So these individuals would be part of the class is -- under or theory. THE COURT: I understand that. 10 MR. WILLIAMS: Yeah. 11 THE COURT: But what is that you're looking for from 12 13 these thousand people? MR. WILLIAMS: What -- we're looking for their 14 experience when they went and sought work. What they 15 experienced in -- and also, they -- they've raised issues, and 16 we established numerosity. We established that -- that 17 these -- that some class members went on days when there was 18 work available or would have been available and otherwise 19 eligible to work at GSB. 20 So these individuals -- what -- what Mr. Hannafan was 21 arguing is, look, they got a job, so, they, therefore, couldn't 22 have been discriminated against. What we're saying is, yeah, 23 they may have gotten a job for three days this week, but then 24 they were unemployed for the next month and -- and there were 25 workers going to GSB. Why would they never call? Why were Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 12 of 44 PageID #:5885 12 1 2 they never sent down to GSB? MR. ROMER-FRIEDMAN: Your Honor, this is Peter 3 Romer-Friedman for the plaintiffs. If -- if I may just add one 4 quick point. 5 As we -- as we pointed out in -- in the motion, the 6 Supreme Court recently in the Walmart case reiterated, as the 7 Supreme Court had previous done in (unintelligible) that 8 anecdotal evidence from class members is often an important 9 part of establishing liability classwide. Now obviously 10 statistical evidence may be a driving force, but anecdotal 11 evidence is what brings it to life. 12 And because the defendants here did not keep 13 information, contact information for all the people who 14 applied, we think most of the people who applied for work 15 through MVP, the thousand plus people -- thousand -- 10 16 thousand -- 1049 people, most of whom were never assigned to -- 17 to GSB, represent people who can testify about every aspect of 18 the experience of African American laborers who tried to get -- 19 who sought work under the class -- the class definition defines 20 it -- from MVP and were otherwise eligible to work for an 21 assignment to GSB. 22 So that's everything from, you know, what they saw and 23 witnessed from the time they entered the door, to what they 24 were told by MVP and -- and how they interacted with them. You 25 know, for instance someone who -- who, let's say, got several Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 13 of 44 PageID #:5886 13 1 assignments to different companies beside GSB, can -- can 2 testify to the fact that they were never informed that they 3 could -- could work for GSB or that there was an assignment 4 there for them, you know, to receive. 5 There are -- there are just going to be a myriad of 6 different stories, but they'll have -- what -- what we think 7 they'll have in common is that they are African American and 8 they were never offered the opportunity to work for GSB and 9 that the circumstances kind of underlying that -- that 10 11 experience. And, you know, this is why in Gulf -- I think in Gulf 12 Oil, the Supreme Court made clear that plaintiffs's counsel 13 have -- have (unintelligible) responsibility and a right to 14 reach out to the class members because their voices need to be 15 heard. While they're not named parties, and we call them 16 absent class members, their voices are not meant to be absent 17 from the -- the discussion as to classwide liability. 18 If we were going to have a trial, as we're preparing 19 for, we need to be able to bring those voices to life through, 20 you know, declarations and class certification, and then 21 ultimately bring some of them in to testify about what they 22 experienced at trial. Otherwise the statistics are just 23 statistics on a page, and they don't come to life for the jury. 24 So it's critically important. And, you know, we would 25 do this -- you know, we were counsel in the Walmart case, we're Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 14 of 44 PageID #:5887 14 1 still counsel in the Walmart counsel that went before the 2 Supreme Court. And in many other Title VII cases, whether it's 3 race or gender discrimination, we always use anecdotal evidence 4 from absent class members to bring to life those statistics and 5 experiences so that the decision-maker, the fact-finder can 6 decide what actually happened, was this really, you know, what 7 the -- the expert is saying that there's no -- no possibility, 8 a statistical possibility, that these were -- these decisions 9 were made without discrimination or is this just an oversight 10 or a non-discriminatory decision that is, you know, due to 11 chance. 12 THE COURT: I'm still trying to understand. I mean, I 13 get the importance of anecdotal evidence, but it all depends on 14 the theories of liability. But given the theories in this 15 particular case, what can the class, the putative class 16 members, add to the theories? 17 MR. WILLIAMS: When -- when -- 18 THE COURT: Give me one example. 19 MR. WILLIAMS: Okay. One thing, just to talk about 20 numerosity. 21 THE COURT: Okay. Let's -- 22 MR. WILLIAMS: So and -- 23 THE COURT: That part I can understand -- 24 MR. WILLIAMS: Well -- 25 THE COURT: -- because even though we've identified Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 15 of 44 PageID #:5888 15 1 potentially 1049 African Americans, we still don't know whether 2 they are in fact African Americans. So I can understand having 3 to reach out to them and verify the racial background. 4 MR. WILLIAMS: So that's one aspect of it. 5 THE COURT: Okay. 6 MR. WILLIAMS: But as -- as Judge Ellis points out, I 7 mean, there are -- there's a possibility that some of those 8 people work 40 hours a week at Company ABC and so would not 9 have (unintelligible) and who were otherwise eligible to work 10 at GSB. And that's -- that's part of what they're saying is 11 that these -- Mr. Hannafan was saying he was hired at ABC, 12 therefore, he couldn't have worked at GSB. He couldn't have 13 been eligible. 14 So what they -- what they can establish is that, no, I 15 was employed for some period of time at Company ABC and maybe 16 Company XYZ as well, but I -- there were days on which I was 17 available to work, and I was -- was otherwise eligible. 18 The other thing is defendants are going to raise and 19 have raised that -- that they had some kind of system of 20 deciding who to send and who not to send. It's not -- 21 THE COURT: All right. Let me stop you and just kind 22 of try to say -- try to rephrase. So part of the anecdotal -- 23 well, by -- by interviewing some of the putative class members, 24 you might be able to establish that they did not work 40 hours 25 per work, that there were in fact sometimes available to work Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 16 of 44 PageID #:5889 16 1 at a different place of employment if assigned. 2 MR. WILLIAMS: Yes. 3 THE COURT: All right. And -- okay. Go on. 4 MR. WILLIAMS: Another main thing that Mr. Romer- 5 Friedman pointed out, what jobs were they informed of that they 6 could work on? Were they -- were they informed of only Company 7 ABC and XYZ, and were they never told about Company GSB that -- 8 that was a possibility? 9 10 THE COURT: But -- but see, that's the thing, how does that fit into your theories? 11 MR. WILLIAMS: Because that's -- that's MVP steering 12 individuals away, African American individuals away from GSB. 13 What they were asked for would go to the question of were they 14 treated differently than -- than Latino applicants when -- at 15 the time that they applied or the time that they sought 16 assignment and began to work. 17 THE COURT: See, this -- you make it sound like 18 steering African Americans away from GSB is separate and apart 19 from your allegation that GSB directed MVP to refrain from 20 sending African Americans. 21 MR. WILLIAMS: We -- 22 THE COURT: If that's your theory, that's your theory, 23 I suppose. But what is in fact the incentive for MV -- MVP to 24 do that? 25 MR. WILLIAMS: Lower cost. Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 17 of 44 PageID #:5890 17 1 THE COURT: But it's not as if they didn't have 2 African -- African Americans within its labor pool. You know, 3 it's another thing -- if in fact MVP didn't have any -- you 4 know what, I don't need to go into this debate because that's 5 not for me to decide. 6 MR. WILLIAMS: In addition, what we see is it's one 7 out of 17, Judge, (unintelligible) send some to Company ABC. 8 So it's not as if they were sending fifty fifty, even though 9 the location of their office is -- is probably closer to fifty 10 fifty and that's in terms of -- 11 MR. ROMER-FRIEDMAN: And -- 12 MR. WILLIAMS: -- population. 13 MR. ROMER-FRIEDMAN: Right. 14 THE COURT: All right. Let me -- 15 MR. ROMER-FRIEDMAN: And, your Honor -- 16 THE COURT: -- give Mr. Richardson an opportunity to 17 18 19 say something before he blows up. MR. RICHARDSON: Before I jump out. (Laughter.) 20 THE COURT: Go ahead. 21 MR. RICHARDSON: Your Honor, we've -- we've got to 22 take this back to -- to Judge Ellis. I mean, frankly, the -- 23 the class is spiraling out of control. 24 25 We don't know -- first of all, the first -- I appreciate everything that you just said, and I'm going to add Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 18 of 44 PageID #:5891 18 1 to it. Okay? The three individuals who are class 2 representatives in this case do not represent the thousand 3 people that they're looking for right now as putative class 4 members. All three of the people who are class representatives 5 in this case undeniably were not hired by MVP. I mean, that's 6 the allegations. They've come in, two out of three of them, 7 and testified to that because their theory all along has been, 8 listen, we don't advertise in African American neighborhoods, 9 so there's a disparate impact. 10 And, two, we -- when people come in and apply, we 11 steer people away. Right? They come in, they want to fill out 12 an application to get hired by GSB, and we say, sorry, no 13 application, no job. These thousand people that -- that the 14 plaintiffs want to contact have all been hired by MVP. They're 15 in MVP's system. 16 The new claim or the claim that seems to apply to 17 these thousand people are that, yeah, they were in the system, 18 but they weren't assigned to a particular place. Well, if 19 that's the theory, I don't even think it's viable theory. So 20 if this what they framed at this point, we're going to file a 21 motion to dismiss some sort of failure to assign people in a 22 system to not go to other people. The problem is they don't 23 even have the appropriate class members to get that done. 24 Now, you know, we can read Judge Ellis's transcripts. 25 There's a lot of them. And Judge Chang said a lot of things a Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 19 of 44 PageID #:5892 19 1 year and a half ago. I would dispute the characterizations 2 that Mr. Williams states about those transcripts. But we 3 intend on filing a motion to deny class certification and to 4 clarify the class. Because if they're seeking -- if they're 5 seeking discovery in front of you on -- and we have done 6 extensive discovery on, okay, what happened when people came 7 in, right? What happened when people came in and said, we want 8 to go to GSB? The allegations are MVP said, we've got no jobs 9 for you. Failure to hire. I get it. Okay? I don't agree 10 11 with it, but I get it. If it's we've got all the statistical evidence, and 12 you guys -- you guys advertised in the Hispanic papers, and you 13 didn't advertise in the Tribune in Austin, South Austin, I get 14 it. I don't agree with it, but I get it. 15 This new claim that, hey, there's this pool -- see, 16 their problem -- they're going to have trouble with numerosity 17 and with commonality for the people that just came in. That's 18 why -- there's a cease and desist order that's already been 19 entered in this case because they were handing out fliers 20 trying to get African Americans to go in and apply to GSB. 21 So now they're looking for this thousand people, 22 African Americans who are in the system, and saying, hey, these 23 guys were in the system, but they weren't sent out to GSB, but 24 they may have been sent out to other places. 25 I don't think it's a claim. That's number one. We Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 20 of 44 PageID #:5893 20 1 want to file a motion to dismiss that claim. They have no 2 contractual relationship, number one. We don't think it's a 3 constitutional claim. 4 Number two, now the class is all over the place. I 5 mean, and Mr. Romer-Friedman, you know, will order the 6 transcript. His discussion about all the specific variables, I 7 mean, it's good for us, about all the different things that 8 happened. This person came in. This person is in the system. 9 This person comes in and never gets sent out to a job. This 10 guy isn't allowed to fill out an application. You can't have a 11 classwide certification for all of these different 12 circumstances. 13 So I think the next step is we're ready to file a 14 motion in front of Judge Ellis. We're going to have it filed 15 on Monday to certify -- I'm sorry -- to clarify the class or to 16 deny class certification. And I think that's appropriate 17 before we're ordered to give out the information of a thousand 18 people and allow them to contact a thousand people who have 19 never claimed they were discriminated against because they were 20 hired by MVP. They're in MVP's system. 21 A lot of them are being sent out to MVP -- I'm sorry, 22 to -- to places, some of which are probably being signed to 23 GSB. They're not class members right now. 24 25 So I would ask the Court to allow us to have these issues, instead of reading transcripts of what Judge Ellis said Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 21 of 44 PageID #:5894 21 1 about class -- the class definition, we need a real class 2 definition here. 3 4 THE COURT: Well, your -- but your argument goes to whether the plaintiffs are proper class representatives. 5 MR. RICHARDSON: It's one of the arguments, yeah. 6 THE COURT: Because these plaintiffs were never hired 7 8 9 10 11 by MVP. MR. RICHARDSON: Right. So these folks are coming in saying that the -THE COURT: So MVP actually has some -- so do we even have a record of the plaintiffs applying for a job with MVP? 12 MR. RICHARDSON: Lots of people come in to MVP. So, 13 like I said, if that's their claim, that's a different thing. 14 Lots of people come in to MVP. Until you get sent out to do an 15 orientation -- so here's what happens, okay? I think it's 16 important to state what happens so you can understand it. 17 People line up in the morning to come in and get sent 18 out for jobs. We've taken the depositions of the plaintiffs. 19 They've already testified that they were not number one in 20 line. Many times they were towards the back of the line. 21 Okay? And they come in at 4:00 o'clock in the morning. They 22 stand in line to get sent out for jobs, and then they put their 23 names down. 24 25 If you don't get to those people on a given day, then those folks who put their names down, there's no record of Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 22 of 44 PageID #:5895 22 1 them. Okay? So the only way that you get a record of somebody 2 is if they come in and they say, okay, we're going to assign 3 them to GSB. We're going to hire them or we're going to assign 4 them to -- to any of the other numerous -- obviously from their 5 motion, we know 18,000 workers are getting sent -- you know, 72 6 percent of the people, African American, Caucasian or Hispanic 7 are not getting sent to GSB so they're going to other places. 8 Once they're sent out, they fill out an application. 9 At that point, they're given an orientation, and they're 10 entered into the system. If you don't get a job that day, you 11 come back the next morning if you want to, and you try to get 12 there early and you stand in line. 13 THE COURT: But this all happens in a short period of 14 time before they're actually sent out for their first 15 assignment that particular day? 16 MR. RICHARDSON: Yeah. What happens is if there's an 17 emergency, they can do an orientation on the spot. Okay? So, 18 for instance, let's use GSB as an example. Okay? If there -- 19 if there's a shortfall, if somebody hasn't -- you can't work 20 unless you're orientated. Ummm -- 21 THE COURT: So let's start here. 22 MR. RICHARDSON: Yeah. 23 THE COURT: Because I think it's important for me to 24 understand this. I'm out of a job. I hear about MVP. I get 25 to the office at 4:00 A.M. I'm standing in line with the rest Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 23 of 44 PageID #:5896 23 1 of the folks. 2 MR. RICHARDSON: You sign up. 3 THE COURT: I've never been to MVP before. 4 MS. ZILZ: They don't have sign-in sheets anymore. 5 THE COURT: I've never been to MVP before. Doors 6 open. I walk in. Now I'm interfacing with somebody from MVP. 7 Then what happens? 8 MR. RICHARDSON: Apparently there's not sign-up sheets 9 anymore, there's just a line. 10 THE COURT: Okay. 11 MR. RICHARDSON: Okay? No, no, no. 12 Yeah, thank you. Okay. 13 THE COURT: So I'm in line. 14 MR. RICHARDSON: You're in line. 15 THE COURT: Now I get to -- up to the receptionist 16 desk or whatever the case may be. 17 MR. RICHARDSON: Right. 18 THE COURT: What happens then? 19 MR. RICHARDSON: If there's jobs open by the time you 20 get up to the receptionist desk -- 21 THE COURT: Yes, let's say there are jobs open. 22 MR. RICHARDSON: Okay. So let's say you're going to 23 Company ABC -- 24 THE COURT: Okay. 25 MR. RICHARDSON: -- because we've used that. Okay? Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 24 of 44 PageID #:5897 24 1 2 Then you'll be sent to Company ABC that day, okay, perhaps. At Company ABC they'll do an or- -- 3 THE COURT: But let's just stick with this. Before I 4 am actually sent out to ABC, what happens in that particular 5 office? 6 MR. RICHARDSON: You fill out an application. 7 THE COURT: Okay. 8 MR. RICHARDSON: Okay? You fill out an application, 9 and you turn in the application. 10 Now -- 11 THE COURT: Can I be turned down at that point after I 12 13 fill out the application? MR. RICHARDSON: You know, I think only if there's 14 something on the application that would warrant you being 15 turned down. So -- or if there was some reason. I could get 16 that answer for you. I -- I think once -- 17 THE COURT: All right. Let's say -- 18 MR. RICHARDSON: Okay. 19 THE COURT: -- there aren't any problems. 20 MR. RICHARDSON: There aren't any problems. 21 THE COURT: I fill out of the application. 22 MR. RICHARDSON: Okay. Then you get sent out to 23 Company ABC. Okay? Now there may be somebody at Company ABC 24 on site on certain days. Okay? And you might get -- if they 25 think they're going to have a big group of people that day who Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 25 of 44 PageID #:5898 25 1 need to get hired, who will do a mass orientation that day 2 before people are sent out to the job. Okay? So you may have 3 somebody do the orientation there, right there, for five or six 4 different people or you may be sent -- and this is my 5 understanding from talking to them -- or you may be sent 6 directly to the company and then have the orientation done at 7 the company. 8 THE COURT: Okay. So now I work at ABC for that day. 9 MR. RICHARDSON: Yes. 10 THE COURT: And that was my assignment for that day. 11 MR. RICHARDSON: Yep. 12 THE COURT: Now do I have come back the following 13 morning -- 14 MR. RICHARDSON: No. 15 THE COURT: -- at 4:00 A.M.? 16 MR. RICHARDSON: No. 17 THE COURT: What happens then? 18 MR. RICHARDSON: What -- that -- they either tell you 19 you're coming back. I mean, a lot of these positions are -- 20 are longer, temporary employment positions. So most people 21 once they get hired, are hired for a significant period of 22 time. 23 24 25 THE COURT: So the folks who are actually waiting in line are first-timers. MR. RICHARDSON: Yes. Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 26 of 44 PageID #:5899 26 1 MS. ZILZ: Sometimes. 2 MR. RICHARDSON: Sometimes. 3 Well, go ahead and answer if you know the answer. 4 Sorry. 5 THE COURT: Ms. Zilz. 6 MS. ZILZ: So what happens, your Honor, is usually if 7 you're sent out on assignment, they'll either -- either tell 8 you that you're coming back the next day and keep telling you 9 that you're coming back until they no longer need the job 10 assignment or the temporary position, or you'll call in 11 directly to Company ABC saying, hey, am I coming back today to 12 our onsite supervisor at that location. 13 If the temporary position ends, then the temporary 14 laborer would, again, go back to the office and seek a new 15 assignment with the dispatch office. 16 THE COURT: So if I'm -- once I am done with the 17 assignment at ABC, I have to come back and wait in line to get 18 another assignment. 19 MS. ZILZ: You could potentially also call in, your 20 Honor, depending on what time it is, if there's things 21 available. 22 THE COURT: So if I have an application already on 23 file with the company, now I have the privilege or the option 24 of having -- option of calling in as opposed to waiting in 25 line. Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 27 of 44 PageID #:5900 27 1 MS. ZILZ: Your Honor, I think it really depends on 2 the individual circumstances. This is part of the issues that 3 we've been raising with the individualized issues when it's 4 being sent out, all that stuff. 5 Because, like I said, these are temporary work 6 assignments generally. They -- they are longer term for the 7 most part, from my understanding. So we do have temporary 8 employees who are on job assignments for two years. But 9 occasionally those positions do end or they don't like the work 10 assignment that they're given, and they want to seek a work 11 assignment at a new company. 12 THE COURT: Okay. 13 MS. ZILZ: So they would have to, again, go to the 14 15 dispatch office in some way, shape or form. THE COURT: All right. This is a little bit more than 16 a bargained for this morning. But let me ask Mr. Williams to 17 respond to the assertion that these -- these plaintiffs may not 18 be proper class representatives for the theories that they have 19 put forward. 20 MR. WILLIAMS: Right. We understand. 21 So, first of all, my mind is blown here that 22 Mr. Richardson says they come in and they fill out -- they sign 23 in on a sheet and then says there are no records of them. 24 Well, the sign-in sheet is a record, and we sent a preservation 25 letter a couple years ago -- Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 28 of 44 PageID #:5901 28 1 2 THE COURT: Well, apparently that's not the case though. 3 MS. ZILZ: Yeah. 4 THE COURT: Ms. Zilz -- 5 MS. ZILZ: And my -- my client has signed an affidavit 6 to that effect -- 7 MR. WILLIAMS: No, it's -- what Ms. Zilz said -- 8 MS. ZILZ: -- that they do not use sign-in sheets, so 9 -- 10 THE COURT: I'm sorry? 11 MS. ZILZ: My client has signed an affidavit of -- on 12 the fact that they do not do sign-in sheets any longer. They 13 used to when they had larger crowds coming in, big groups of 14 people, people would sign up and those sheets -- the 15 dispatchers only used them for that date, so they -- 16 THE COURT: Okay. 17 MS. ZILZ: -- don't have those records. 18 THE COURT: Go ahead. 19 MR. WILLIAMS: I think when she says they no longer 20 use them, so the records -- the old records are -- are 21 obviously very pertinent to this case. 22 23 So, in any case, this is why we're only able to look at this one section of the class, what we allege as the class. 24 And here's -- here's what was testified to is that the 25 individuals go in and they -- and they ask for work. They sign Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 29 of 44 PageID #:5902 29 1 in, and they say, you know, we're here, can we work? And 2 they're told by the dispatchers, there's a desk, and they go up 3 to the counter and the dispatchers say, okay, go sit down. 4 And what -- what the discovery has revealed from GSB 5 is there's a huge amount of e-mail back and forth saying, we 6 need ten workers, we need ten men, we need -- you -- you saw 7 the one about the lights and the (unintelligible). We need 8 these ASAP. 9 So what happens more commonly -- I don't dispute that 10 there are instances where there's a regular group who works, 11 you know, for two to six weeks, a year or something like that. 12 I've seen that. But -- but by and large, what happens in that 13 dispatch office is everybody is told to wait. They're in the 14 labor pool. They come in to seek an assignment and they're now 15 in the labor pool. Whether they worked at Company ABC or not, 16 they're in the labor pool. Then those dispatchers get -- get 17 the e-mails from the onsite dis- -- the MVP dispatcher at GSB 18 and other companies, and -- and they say, okay, we need ten 19 people for GSB now. We need ten men, we need six women. We 20 need heavies. We need lights. We need boxers. 21 They -- they get that e, mail. And then they kick 22 into action and they go out and so people are called. We need 23 you, you, you, and you from the dispatch office. 24 So they're told, wait. If they leave, they're not 25 going to get an assignment during that morning. So they're Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 30 of 44 PageID #:5903 30 1 there, yes, at 4:00 A.M., but they don't leave until probably 2 8:00 or 9:00 o'clock. So they're there. And the experience 3 that our clients had, which would also happen to -- to the guy 4 who went to ABC and now doesn't have a job and he's back there 5 waiting, the experience that they have is at the end of the 6 morning, guess who's -- guess who's left? Guess who's not gone 7 out? And guess who's not been assigned to GSB? 8 9 And -- and the records also show, that the payroll records and everything else also show, that there is a 10 substantial amount of turnover at GSB. There's a substantial 11 amount of one time, we need them now, we need new people, get 12 us some people. There's a substantial amount of evidence for 13 that. 14 So -- so they -- our client were in the labor pool, 15 just like the guy who went to ABC for a week but now doesn't 16 have an assignment. 17 THE COURT: All right. So the 1049 potential class 18 members, while they may have an application on file, while they 19 may have been assigned a position or work by MVP, when it comes 20 to available job at GSB, they are just -- they are similar 21 situated as the plaintiffs because they just don't get called. 22 MR. WILLIAMS: Right. And I just want to add -- 23 THE COURT: That's -- 24 MR. WILLIAMS: -- one other thing that -- 25 MR. RICHARDSON: Wait. Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 31 of 44 PageID #:5904 31 1 MR. WILLIAMS: -- even those who don't get assigned -- 2 sent out, what our client testified to is that he filled out a 3 pre-application, which had his contact information on it, and 4 was told after -- at the end of that day, we'll call if you we 5 have something. 6 7 So what we also know from the emails is that MVP will call from their -- their list of labor (unintelligible). 8 9 THE COURT: So even if -- so your position is even if they are not sent out to a workplace -- 10 MR. WILLIAMS: Right. That they in fact -- 11 THE COURT: -- before they -- 12 MR. WILLIAMS: -- did -- 13 THE COURT: -- before they leave, they fill something 14 15 out. MR. WILLIAMS: When they first get there, they sign 16 in, and that's how they know where they came in in the morning. 17 And I want to know where those sign-in sheets -- I understand 18 they're saying now that it's discontinued, probably as a result 19 of our letter -- but where are those sign-in sheets going back 20 for four years? And then where are the pre-applications where 21 people put their contact information? 22 THE COURT: All right. Let me quickly cover one other 23 issue that I wanted to cover, and then I'll give you an 24 opportunity -- 25 MR. RICHARDSON: Thanks. Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 32 of 44 PageID #:5905 32 1 THE COURT: -- Mr. Richardson. 2 MR. RICHARDSON: We're not -- we're not planning on 3 interviewing all 1049 employees. 4 MR. WILLIAMS: No, what -- what Mr. Romer-Friedman 5 said, I think is inappropriate that we need -- we need to 6 interview some to get the anecdotal evidence (unintelligible). 7 THE COURT: Okay. So here's -- here's my thought. 8 You know, first we need to figure out whether class members, 9 the putative class members -- well, there's a -- there's an 10 argument whether they're -- they're even class members or 11 putative class members in this case -- whether they have 12 something to contribute to the discussions and whether they 13 should be contacted by phone or by email. 14 I do wonder whether there should be some kind of a 15 statistically significant sample for purposes of contacting 16 1049 employees. I mean, instead of just kind of going 17 randomly, oh, I guess we'll just call this person and see -- 18 right? 19 MR. WILLIAMS: Well, I would say a couple of things. 20 MR. ROMER-FRIEDMAN: Your -- your Honor -- 21 MR. WILLIAMS: Go ahead. 22 MR. ROMER-FRIEDMAN: Your Honor, this -- this is Peter 23 24 25 Romer-Friedman for plaintiffs. If I -- I understand your Honor previously you -you've referenced the -- the cost of the sampling. And I Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 33 of 44 PageID #:5906 33 1 think, you know, as the recipient of those 20,000 pages of 2 documents, I think you probably were wise to have, you know, a 3 sample of all those e-mails produced because it -- you know, 4 we're going through it, and I think we're -- we are getting a 5 very good understanding of what the e-mail correspondence was 6 between the defendants. 7 But in this case, I think sample -- there would be a 8 very big concern with sampling. And let me explain way. First 9 off, we would -- you know, we would, as we put in the motion, 10 explain in the motion, we would like to communicate in -- in 11 several different ways or at least, you know, one or two 12 different ways with these putative class members or potential 13 class members to see if they're interested in sticking with us 14 first place. Many of these addresses, as we -- we noted, may 15 not even be accurate. So if we send a letter to a thousand 16 people, 500 of those may come back as, you know, no longer 17 their correct address, and that may not allow -- a lot out 18 already. 19 And then, you know, lots of people -- you know, some 20 people may want to respond to the letter, but other people 21 won't. And the concern is, let's say, you know, only 5 percent 22 of the people who we send the letter or e-mail to actually 23 respond to us, that severely limits our ability to actually get 24 information from them in the first place. But if you then cut 25 the sample of, you know, the people of who we can contact in, Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 34 of 44 PageID #:5907 34 1 you know, half or a quarter, then we're even more limited by 2 the people -- in terms of the people we can talk to. 3 And I would direct the Court back to the Walmart case 4 where Justice Scalia, writing for the majority of the Court, 5 felt that the anecdotal evidence that we proffered was not 6 sufficient because we didn't have enough actual -- a large 7 enough number of people to testify about their experience 8 relative to the overall numbers within the class. 9 And if the Court were to limit us in contacting, you 10 know, half or a quarter of these people who themselves are only 11 a subset of what we think are the African Americans who MVP 12 hired, then we -- we'd start off with a very small group of 13 people to contact and we may not be able to get what Judge 14 Ellis might find to be, you know, a large enough number of 15 anecdotal -- anecdotes from class members to convince her that 16 there's commonality. 17 So, you know, the -- there's not a burden on the 18 defendants here at all. And, if anything, it would be our cost 19 in terms of our, you know, out-of-pocket expenses and some time 20 of having lawyers or paralegals following up with these 21 individuals. 22 They're not -- I would note, while Mr. Richardson 23 earlier said that the Court issued a cease and desist order, 24 that was about a third-party group that without our instruction 25 issued a flyer that misrep- -- that was alleged to misrepresent Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 35 of 44 PageID #:5908 35 1 things. We would be communicating with people, as we explained 2 in the motion, specifically about asking them to be witnesses 3 in this case, and we would communicate with them all accurate 4 information, you know, about why we're seeking to get -- elicit 5 information from them. And, you know, it's appropriate for us 6 to do that. 7 The defendants themselves in filing that sanctions 8 motion about the cease and desist issue, they actually 9 acknowledged that we -- we have a right to contact class 10 members to find out what they know because they are material 11 witnesses. 12 THE COURT: All right. So here my -- here's how I 13 would like to proceed. At least the information that I have 14 been given in open court, there appears to be some benefit in 15 talking to some of the members. I don't think that the 16 plaintiffs have given me sufficient information about how to go 17 about contacting them, and to have -- to have MVP provide all 18 phone numbers and e-mails for 1049, I'm not sure that that's 19 reasonable the circumstances. 20 I don't know -- I still don't know that there's a plan 21 in place as to how to go about actually surveying. In another 22 case, it was an ERISA class action case, the thought was 23 perhaps to doing a survey questionnaire to be sent out to all 24 potential class members, and then simply getting responses by 25 mail. But I don't -- I didn't see a plan in the motion as to Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 36 of 44 PageID #:5909 36 1 how to go about actually making the contact and how to go about 2 actually getting the answers from these putative class members. 3 But now today, and today I'm hearing another motion 4 that may impact this particular motion, which is that the 5 plaintiffs may not be class representatives. And if that's the 6 case, what's the point of doing -- what's the point of 7 contacting class members for their anecdotal evidence? 8 But, as I indicated, if in fact plaintiffs are saying 9 these 1049 folks may have been in the same situation as -- as 10 them even if they had gotten assignments in the past to other 11 companies, because when you limit it to GSB, they're just as 12 same as they are because they can go to the office at 4:00 13 o'clock in the morning or they can call the office any time 14 they want. They're still not going to get an assignment to 15 GSB, at least based on the theory as to liability. 16 MR. HANNAFAN: I -- 17 MR. WILLIAMS: And -- and -- 18 THE COURT: Hold on. 19 MR. RICHARDSON: As in -- 20 THE COURT: Mr. Richardson. 21 MR. RICHARDSON: Okay. So first of all, we'd like to 22 respond to the motion and -- 23 THE COURT: You'll get that opportunity. 24 MR. HANNAFAN: Yeah -- that they filed. 25 Secondly, you know, I would just -- we're arguing in Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 37 of 44 PageID #:5910 37 1 open court. I would absolutely disagree that the experience, 2 and we'll put it in the motion, is the same. I'm going to read 3 from their motion. In September 12th, 2014, MVP produced a 4 database that contains approximately 18,000 names and addresses 5 of individuals who MVP hired to work for all of its clients, 6 including GSB, from November 2009 through March of -- 7 THE COURT: Yes. 8 MR. RICHARDSON: -- okay. 9 They've had a very different experience as we will put 10 in our motion, than Mr. Vaughans, who came into MVP three 11 times. That's what he testified. I don't want to misstate it. 12 At least under a week on different days. That was his entire 13 experience. Came in said, hey, I want to work for GSB -- I'm 14 sorry -- I want to work for MVP. Send me to GSB. He testifies 15 there were lots of people in line in front of him. He didn't 16 get sent out, and he went home. Very, very different 17 experience. These are not appropriate class members and -- and 18 that's going to be part of our motion in front of Judge Ellis. 19 THE COURT: But here's my question. 20 MR. RICHARDSON: Yeah. 21 THE COURT: How do we structure these motions so that 22 we're not putting the cart before the horse? 23 MR. RICHARDSON: I know. I mean, I think what we -- 24 if I may, I mean, I think what makes the most sense, the case 25 has been pending for some quite some time. We're going to Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 38 of 44 PageID #:5911 38 1 figure out what's going on. I think the first thing to do 2 would be to file a motion to deny class certification or 3 clarify the class. 4 THE COURT: Well, I'm not sure that that's going to 5 work because the plaintiff class is going to argue that we need 6 more information before we can respond to the motion. 7 MR. RICHARDSON: I -- I know, but I think what -- 8 we're going to argue to Judge Ellis that -- that they've had -- 9 they've got lots and lots and lots of information. And, you 10 know, there -- in my humble opinion there comes a time, even -- 11 even the immigrant worker theory, right? So Judge Ellis at 12 some point said, hey, if your theory is less wages because 13 they're hiring immigrant workers, we're filing a Rule 11 motion 14 on that. 15 There's no evidence, not a scintilla of evidence 16 anywhere, that our clients went after immigrant workers, 17 undocumented aliens to bring down the cost of their work force. 18 So it's got to end. We got to go in front of Judge Ellis. 19 THE COURT: I apologize for interrupting -- 20 MR. RICHARDSON: I'm sorry. 21 THE COURT: -- but I have to get to a judges's 22 23 meeting. Let me do this. Can you check your calendars and tell 24 me whether you have some time open on Tuesday, October 14th 25 around 2:00 P.M.? Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 39 of 44 PageID #:5912 39 1 MR. HANNAFAN: The 14th, your Honor? 2 THE COURT: Yes. 3 MR. RICHARDSON: Your Honor, I have to turn on my 4 phone -- 5 THE COURT: That's fine. 6 MR. RICHARDSON: -- because I call people from my 7 pocket on a relatively consistent basis. 8 MR. WILLIAMS: I'm available. 9 MR. ROMER-FRIEDMAN: Your Honor, I'm not available. I 10 have a fact-finding conference with the Illinois Department of 11 Human Rights throughout most of that afternoon, and a call with 12 the Southern District of California at about 4:00 in the 13 afternoon. 14 MR. RICHARDSON: I'm still -- 15 MR. WILLIAMS: It wouldn't be the best day for me, 16 17 18 19 your Honor. If there's another day. THE COURT: Okay. How about Wednesday, October 15th at -- let's go to October 16th. 2:00? MR. WILLIAMS: I can't. I've got a deposition of a 20 client. It's a Court ordered dep in state court. 21 THE COURT: All right. Let me see if -- 22 MR. WILLIAMS: I'm sorry, your Honor. 23 THE COURT: I mean, I want to do this sooner rather 24 25 than later. MR. WILLIAMS: Was the -- was the 15th available, your Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 40 of 44 PageID #:5913 40 1 Honor, or not? 2 THE COURT: The 15th is not looking good. 3 MR. HANNAFAN: In the afternoon (unintelligible)? 4 MR. RICHARDSON: We could -- 5 MR. WILLIAMS: Friday, your Honor? 6 MR. RICHARDSON: I can't -- 7 THE COURT: I'm sorry? 8 MR. RICHARDSON: I can't do that Friday, I'm going to 9 be out of town. But I can do the 20th. And by that time we'll 10 have our motions on file in front of Judge Ellis. It might be 11 a better time to come in. 12 13 MR. WILLIAMS: We disagree, because, I think, as this transcript clearly shows, she's (unintelligible). 14 15 THE COURT: Check for me your calendar for this Friday. 16 MR. HANNAFAN: I'm available for this Friday. 17 THE COURT: All day? 18 MR. HANNAFAN: I have (unintelligible) before 19 20 21 22 23 24 25 (unintelligible). MR. RICHARDSON: I am only available probably after 2:30, your Honor, on that day. MR. WILLIAMS: I'm available in the morning. (Laughter.) MR. ROMER-FRIEDMAN: Your Honor, we're available after 2:30 as well. Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 41 of 44 PageID #:5914 41 1 2 THE COURT: Okay. How about October 14th? Now we're back to Tuesday. 8:00 A.M.? 3 MR. RICHARDSON: Yeah. 4 MR. WILLIAMS: I have to change a dentist appointment, 5 but I would -- 6 THE COURT: Oh, no. I don't want you -- 7 MR. WILLIAMS: I would be happy to do so. 8 MR. RICHARDSON: No, that's a good excuse to change a 9 dentist appointment, your Honor. 10 MR. WILLIAMS: Yeah. 11 THE COURT: Are you sure? 12 MR. WILLIAMS: (Unintelligible). 13 MR. ROMER-FRIEDMAN: That works for us, your Honor, 14 8:30 on the 14th? 15 THE COURT: Well, 8:00 o'clock. 16 MR. RICHARDSON: 8:00. 17 MR. WILLIAMS: 8:00 A.M, 9:00 your time. 18 MR. ROMER-FRIEDMAN: 8:00 A.M. 19 THE COURT: So here's what I'd like for defendants to 20 do by then. I want to hear what motions you want to tee up -- 21 MR. RICHARDSON: Okay. 22 THE COURT: -- before Judge Ellis. Then I can get a 23 better sense as to how I should proceed with the pending motion 24 before me in terms of granting leave to contact putative class 25 members and how much contact information should be granted to Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 42 of 44 PageID #:5915 42 1 2 the plaintiff class. MR. RICHARDSON: Your Honor, we were actually planning 3 on getting the motion on file, perhaps by the end of the -- I 4 just don't want to -- would you be insulted if we get it on 5 file before we come in to court? 6 THE COURT: I can't stop you from doing that. 7 MR. RICHARDSON: I mean, we'll wait. 8 THE COURT: I mean, you could -- 9 MR. RICHARDSON: -- if you want us to do. 10 THE COURT: No, no, no. 11 MR. RICHARDSON: Okay. 12 THE COURT: You file what you have to. 13 MR. RICHARDSON: Yeah. 14 THE COURT: I still -- because my -- for me, I need to 15 know what motions are going to be filed -- 16 MR. RICHARDSON: Got it. 17 THE COURT: -- and see whether I should be moving 18 forward with this motion and have you respond or I should put 19 it on hold until I -- until we have a ruling from Judge Ellis. 20 MR. RICHARDSON: Okay. 21 MR. WILLIAMS: And can I ask that we be given a copy 22 of what they're going to give to you in advance so we can 23 prepare? I mean, you know, for example, (unintelligible). 24 25 THE COURT: No, if a copy is available, great, but I'm not looking for that. I just want to know exactly what the Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 43 of 44 PageID #:5916 43 1 motion is going to be, what the issues are in that motion, 2 enough information so that I can get a sense as to how -- 3 whether there's any interplay between this motion and the 4 anticipated motion. Does that make sense? 5 MR. WILLIAMS: I'm just asking for a copy of exactly 6 what you're talking. Not the motion itself, but the -- the 7 list of topics of whatever so we can -- 8 9 THE COURT: No, I didn't expect anyone to be submitting anything. 10 MR. WILLIAMS: Okay. 11 THE COURT: And I expect for us to meet 8:00 12 13 o'clock -MR. RICHARDSON: If we prepare anything, we'll be 14 glad -- we're not going to. But if we did, we'd be glad it to 15 Mr. Williams. 16 THE COURT: Okay. On the 14th. 17 MR. RICHARDSON: Yep. 18 THE COURT: So 14th at 8:00 A.M. 19 So our motion is going to be entered and continued to 20 21 22 October 14th at 8:00 A.M. MR. RICHARDSON: Mr. Hannafan didn't get to talk at all, and -- and I just don't want him to feel bad. 23 THE COURT: Well -- 24 MR. RICHARDSON: Anything? 25 THE COURT: Only because he didn't know the name of Case: 1:13-cv-01524 Document #: 310 Filed: 01/28/15 Page 44 of 44 PageID #:5917 44 1 2 his -- (unintelligible). (Laughter) 3 4 5 6 THE COURT: (Unintelligible) daughters, so maybe next time. MR. HANNAFAN: And I didn't -- and I didn't bring any croissants or Danish for you. 7 THE COURT: Yeah. 8 MR. RICHARDSON: Right. 9 MR. HANNAFAN: Your Honor, I -- 10 THE COURT: Next time. 11 MR. HANNAFAN: I know you have to run, so the only 12 thing I'm going to state, since Mr. Williams often likes to 13 bring a transcript is, I disagree with some of his statements 14 on what our defense was in -- on some of the -- the issues from 15 Judge Ellis's transcript. But -- 16 THE COURT: Okay. All right. 17 MR. HANNAFAN: -- that's it. 18 THE COURT: All right. I'll see you next Tuesday. 19 MR. RICHARDSON: Have a great weekend. 20 21 22 23 24 25 (Which concluded the proceedings.) CERTIFICATE I certify that the foregoing is a correct transcript from the digital recording of proceedings in the above-entitled matter to the best of my ability, given the limitation of using a digital-recording system. / s/ Pamel a S. War r en October 14, 2014 Official Court Reporter Date United States District Court Northern District of Illinois Eastern Division