STIPULATION FOR ADDITIONAL STAY WHILE PURSUING RESOLUTION AND ORDER THEREON

CHARLES R. BREYER, District Judge.

Plaintiffs Center for Independent Living, Inc., Janet Brown, and Lisa Kilgore (collectively, the "CIL Plaintiffs"), on the one hand, and Defendant Wal-Mart Stores, Inc. ("Wal-Mart" or the "Company"), on the other hand, enter into this Stipulation For Additional Stay While Pursuing Resolution with reference to the following facts:

RECITALS

A. On April 3, 2013, this Court ordered the two cases — Partida v. Wal-Mart Stores, Inc. and Center for Independent Living, Inc., et al. v. Wal-Mart Stores, Inc. — consolidated for all purposes. (Docket No. 28.) The Court also granted the motion brought by counsel for the CIL Plaintiffs to be appointed interim class counsel pursuant to Federal Rule of Civil Procedure 23(g). (Docket No. 27.) In the order appointing interim class counsel, this Court gave counsel for the CIL Plaintiffs the authority to "[e]nter[] into stipulations, with opposing counsel, necessary for the conduct of the litigation" and designate "which attorneys may appear at settlement negotiations on behalf of the putative class and conducting settlement negotiations with defendant" on behalf of the CIL Plaintiffs and plaintiff Partida. (Id.)

B. On April 25, 2013, to accommodate the parties' mediation schedule, this Court agreed to modify its prior November 2012 order by continuing the deadline for the parties to attend mediation to June 7, 2013 and to report on the results of the mediation to June 14, 2013. (Docket No. 30.)

C. On June 7, 2013, the parties attended a full day of mediation before mediator David Rotman in San Francisco, California. The mediation was fruitful and the parties made significant progress toward resolution. To further efforts at resolution, the parties agreed to consider and evaluate detachable Point of Sale ("POS") devices that could be tethered to the front end checkstands at a height more readily accessible to Plaintiffs, and which comply with all industry guidelines and are acceptable to Wal-Mart. The parties also agreed to stay litigation and focus their actions on addressing the contingencies and conditions to facilitate a settlement in this case.

D. Since the parties' mediation in June 2013, and consistent with the parties' continuing settlement negotiations and stipulations, this Court has granted several requests to stay this litigation, including continuing and then vacating the Case Management Conference during the stay. (Docket Nos. 32, 34, 36, 38, 40.) This ongoing stay has allowed the parties to make significant progress toward a resolution of this matter and to explore options related to POS mounting devices that are agreeable to all parties. For the Court's convenience, we detail below some of the efforts and progress made during the stay.

E. Beginning immediately after the mediation in June 2013, the parties communicated consistently with each other, their clients, and several third-party vendors in an effort to find a POS device mount that satisfied the parties' concerns with, among other things, accessibility and security. Those efforts included the evaluation of commercially available POS mounts that were attached to checkstands and other mounting options that utilize a swinging arm that could be positioned at a height more readily accessible to Plaintiffs. Unable to find a commercially available mount that satisfied all of the parties' concerns, Wal-Mart worked with a third party through the end of 2013 to create a novel POS device mount design and fabricating a working prototype.

F. In Spring 2014, the parties held two in-person inspections of the new POS device mount prototype for Plaintiffs near their residences. During the first inspection, on April 2, 2014, Plaintiffs were present with their attorneys and a disability access expert. Plaintiffs expressed that the POS mount prototype was a significant improvement over prior or alternative mounts and provided much better access to mobility impaired customers. Following the inspection, Plaintiffs suggested some minor changes to the mount prototype. On May 8, 2014, the parties attended a follow-up inspection of the updated POS mount prototype at a second Wal-Mart store. Plaintiffs again expressed their general acceptance and approval of the POS mount prototype with some suggested modifications.

G. Throughout the Summer of 2014, the parties worked toward resolution. For example, Wal-Mart confirmed that the POS mount prototype meets data protection, security, and other standards required by the Payment Card Industry. The parties also discussed and agreed on the protocol that would be followed to evaluate the usability of the POS mount prototype, which included beta testing the device in select Wal-Mart stores for a period of approximately 60 days. To that end, Wal-Mart began the process of securing the production of approximately 50 POS mount prototypes for installation at front end checkstands in the Wal-Mart stores where the beta test would be conducted.

H. On September 4, 2014, this Court granted the parties' stipulation and extended the stay of litigation through December 12, 2014 so the parties could continue exploring resolution options (the "September 2014 Order"). (Docket No. 42.) In addition, the Court: (a) confirmed the parties' stipulation that all communications between the parties shall be confidential, privileged, and protected by Rule 408 of the Federal Rules of Evidence; (b) ordered the parties to file a joint status report on or before December 5, 2014; and (c) vacated the Case Management Conference. (Id.)

I. Since the September 2014 Order, the parties worked diligently toward beta testing the POS mount prototype. As detailed by the parties in the September 2014 Stipulation and Order, the first step in the beta testing process was internal testing of the POS mount prototype by Consumer Testing Laboratory ("CTL"), which testing is required before Wal-Mart can roll out a product or device of this kind on a large scale.

J. Unfortunately, the process stopped at the CTL testing phase. That's because, while the POS mount prototype passed many tests, it failed several key tests, which illustrated that the device could not withstand significant and extended usage that is typical in a Wal-Mart store. Wal-Mart communicated the test failures to Plaintiffs as well as the fact that, based on those test failures, Wal-Mart could not move forward with the then-current design concept or the beta testing as proposed in the September 2014 Order.

K. Despite these setbacks, Wal-Mart has continued its efforts to create a POS mounting device. In particular, Wal-Mart engaged another contractor who specializes in designing hinges and with significant effort, that contractor created the designs for an alternative POS mounting prototype. In furtherance of its efforts, at this stage in the process, Wal-Mart's contractors have drafted mock-up design drawings showing the new, alternative POS mounting prototype, as well as the proposed modifications to address the design failures in the first prototype. Wal-Mart anticipates sharing these drawings with Plaintiffs after the parties executed a stipulated protective order. Based on preliminary discussions, the parties believe they can continue to move forward with this new, alternative POS mounting prototype.

L. The parties are committed to moving forward with the full testing of the alternative POS mounting prototype. In this regard, the parties believe that the following steps should take place:

M. As shown above, the parties are committed to moving this matter forward toward resolution and hope to resolve the matter without the need for further formal discovery, motion practice or trial. In furtherance of this goal, the parties are committed to exchange proposals for resolving the remaining class issues in the case during the preparation and roll-out periods of the beta testing program. Accordingly, at this juncture, the parties request an additional 90-day stay in this matter so that they can focus their efforts on continuing to explore avenues for settlement, including the evaluation of the new POS mounting prototype and the remaining settlement issues. The parties do not anticipate that final approval and beta testing of the new POS mount prototype will be completed in this 90-day window, but have agreed that it is in all parties' interests to continue to update the Court on the good progress they are making. The parties agree to submit a formal joint report at the end of any approved stay to apprise the Court of the status of the parties' efforts to resolve the matter.

N. For the reasons outlined above, the parties submit that good cause exists to continue the stay in this case for approximately 90 days, keep off calendar the Case Management Conference and related date to submit a Case Management Conference Report, and set a date for a formal report on the parties' progress toward resolution on or around March 13, 2015.

STIPULATION

Based on the facts stated above and subject to this Court's approval, the parties stipulate as follows:

IT IS SO STIPULATED.

ORDER

The Court has read and considered the parties' Stipulation For Additional Stay While Pursuing Resolution and finds that good cause exists to grant the relief requested.

IT IS SO ORDERED.