                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

FOWLER PACKING COMPANY, INC.;             No. 16-16236
GERAWAN FARMING, INC.,
             Plaintiffs-Appellants,          D.C. No.
                                          1:16-cv-00106-
                  v.                        DAD-SAB

DAVID M. LANIER, in his official
capacity as Secretary of the                OPINION
California Labor and Workforce
Development Agency; CHRISTINE
BAKER, in her official capacity as the
Director of the Department of
Industrial Relations; JULIE A. SU, in
her official capacity as California
Labor Commissioner,
                Defendants-Appellees.

      Appeal from the United States District Court
         for the Eastern District of California
       Dale A. Drozd, District Judge, Presiding

       Argued and Submitted November 16, 2016
               San Francisco, California

                Filed December 20, 2016

     Before: Ronald M. Gould, Richard R. Clifton,
          and Paul J. Watford, Circuit Judges.

                Opinion by Judge Gould
2               FOWLER PACKING CO. V. LANIER

                            SUMMARY*


                             Civil Rights

    The panel provided reasoning for its order filed on
December 9, 2016, which affirmed in part and reversed in
part the district court’s dismissal of a complaint against
California officials alleging that certain “carve-out”
provisions in California Assembly Bill (AB) 1513 violated
the Equal Protection Clause and the Bill of Attainder Clause.

     California passed Assembly Bill 1513 in response to state
appellate court decisions that exposed employers to
significant and unexpected minimum wage liability. This law
created a “safe harbor” that gave employers an affirmative
defense against the new claims so long as the employer made
back payments under certain conditions. The legislation,
however, also included specific “carve-outs” that were crafted
such that three or four employers, including plaintiffs, would
be precluded from using the safe harbor in then-pending
litigation against them.

    The panel held that accepting plaintiffs’ allegations as
true, the only conceivable explanation for AB 1513’s carve-
outs was that they were necessary to procure the United Farm
Workers’ support in passing the legislation. The panel held
that because this justification would not survive even rational
basis scrutiny, plaintiffs’ complaint plausibly stated a claim
that the cut-out provisions violated the Equal Protection


    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              FOWLER PACKING CO. V. LANIER                   3

Clause. The panel remanded the case to the district court for
further proceedings with respect to the equal protection claim.

    The panel further held that AB 1513’s carve-outs did not
impose punishment upon plaintiffs. Because punishment is
a necessary element of a bill of attainder, the district court
properly dismissed this claim.


                         COUNSEL

David A. Schwarz (argued) and Michael D. Harbour, Irell &
Manella LLP, Los Angeles, California, for Plaintiffs-
Appellants.

Thomas Patton (argued), Deputy Attorney General; Mark R.
Beckington, Supervising Deputy Attorney General; Douglas
J. Woods, Senior Assistant Attorney General; Kamala D.
Harris, Attorney General; Office of the Attorney General,
Sacramento, California; for Defendants-Appellees.

Damien M. Schiff and Wencong Fa, Pacific Legal
Foundation, Sacramento, California, for Amici Curiae
Western Growers, California Fresh Fruit Association,
African-American Farmers of California, California Farm
Bureau Federation, Fresno County Farm Bureau, and Nisei
Farmers League.
4             FOWLER PACKING CO. V. LANIER

                         OPINION

GOULD, Circuit Judge:

    In response to recent state appellate court decisions that
exposed employers to significant and unexpected minimum
wage liability, California passed Assembly Bill 1513 (AB
1513). This law created a “safe harbor” that gave employers
an affirmative defense against the new claims so long as the
employer made back payments under certain conditions. AB
1513 allowed the employers to avoid the costs and statutory
penalties that they would otherwise face as a result of
underpayment litigation. The legislation, however, also
included specific “carve-outs” that were crafted such that
three or four employers would be precluded from using the
safe harbor in then-pending litigation against them. Plaintiffs
Fowler Packing Company, Inc. (Fowler) and Gerawan
Farming, Inc. (Gerawan), assert that the legislature added
these carve-outs to AB 1513 to obtain the necessary support
of a labor union. Plaintiffs brought suit against Defendants,
who are California officials, asserting that the carve-outs
violated the Bill of Attainder Clause and the Equal Protection
Clause of the United States Constitution, as well as Article
IV, Section 16 of the California Constitution. The district
court dismissed their complaint as to all claims. Plaintiffs
appeal the dismissal of their federal constitutional claims
only.

    We have jurisdiction to review the district court’s order
under 28 U.S.C. § 1291. We hold that Plaintiffs’ complaint
states a plausible claim for relief under the Equal Protection
Clause, but fails to state a plausible claim that AB 1513’s
carve-outs amount to a bill of attainder. The panel has
previously filed an order on December 9, 2016, stating:
             FOWLER PACKING CO. V. LANIER                   5

       We conclude that the district court correctly
       dismissed the bill of attainder claim, but
       erroneously dismissed the equal protection
       claim. We therefore AFFIRM in part and
       REVERSE in part, and REMAND the case
       to the district court for further proceedings
       with respect to the equal protection claim
       only. A written opinion giving the court’s
       reasoning will follow in due course.

       The time for filing any petition for rehearing
       or petition for rehearing en banc shall be
       extended and shall not begin to run until the
       court has filed its written opinion giving its
       reasoning.

We now in this opinion provide our reasoning and note that
the time for filing any petition for rehearing or rehearing en
banc shall run from the filed date of this opinion.

                              I

    Plaintiffs’ complaint asserts the following facts. Fowler
and Gerawan are California corporations engaged in the
agriculture business that pay some of their employees on a
“piece-rate” basis. Piece-rate payment is a system in which
employees are compensated according to tasks completed
rather than hours worked. Relying on the then-prevailing
interpretation of federal minimum wage statutes, Plaintiffs
ensured they met California minimum wage laws by
averaging their piece-rate employees’ payment during a fixed
period of time and supplementing any deficiency below the
applicable state minimum wage. In 2013, two California
Court of Appeal decisions, Gonzalez v. Downtown LA
6            FOWLER PACKING CO. V. LANIER

Motors, LP, 215 Cal. App. 4th 36 (2013), and Bluford v.
Safeway Stores, Inc., 216 Cal. App. 4th 864 (2013), held that
piece-rate workers must also be paid for each hour of
“nonproductive time”—time in which a worker was at work
but not completing a task—and for rest, recovery, and meal
periods. According to Plaintiffs’ complaint, these decisions
exposed many employers, including Plaintiffs, to
unanticipated and potentially crippling class litigation.

    In response, California enacted Assembly Bill 1513 (AB
1513) on October 10, 2015, which codified the holdings in
Gonzalez and Bluford. Cal. Lab. Code § 226.2(a). To protect
California businesses from unforeseen liability arising from
Gonzalez and Bluford, however, AB 1513 also created a “safe
harbor” that provided employers with an affirmative defense
against claims alleging failure to pay previously for
nonproductive work time. Cal. Lab. Code § 226.2(b).
Employers can use the safe harbor so long as they pay, no
later than December 15, 2016, any minimum wage
deficiencies occurring between July 1, 2012, and December
31, 2015. Cal. Lab. Code § 226.2(b)(1)(A).

    But another provision of AB 1513, set forth in Cal. Lab.
Code § 226.2(g), makes certain defendants facing
nonproductive work time claims ineligible for the safe harbor.
One of these “carve-outs” makes a defendant ineligible if
facing:

       [c]laims based on the failure to provide paid
       rest or recovery periods or pay for other
       nonproductive time for which all of the
       following are true:
              FOWLER PACKING CO. V. LANIER                     7

            (A)     The claim was asserted in a court
                    pleading filed prior to March 1,
                    2014, or was asserted in an
                    amendment to a claim that relates
                    back to a court pleading filed prior
                    to March 1, 2014, and the
                    amendment or permission for
                    amendment was filed prior to July
                    1, 2015.

            (B)     The claim was asserted against a
                    defendant named with specificity
                    and joined as a defendant, other
                    than as an unnamed (DOE)
                    defendant . . . in the pleading
                    referred to in subparagraph (A), or
                    another pleading or amendment
                    filed in the same action prior to
                    January 1, 2015.

Cal. Lab. Code § 226.2(g)(2). Section 226.2(g)(2) makes
Gerawan ineligible to assert the safe harbor as an affirmative
defense in a class action suit filed against it by the General
Counsel of the United Farm Workers of America (UFW) on
February 3, 2014, Amaro v. Gerawan Farming, Inc., No.
1:14-cv-00147-DAD-SAB (E.D. Cal.). It also would have
precluded Delano Farms Company (Delano), another
agricultural company that is not a party to this litigation, from
asserting the safe harbor as an affirmative defense in a class
action suit filed against it by the UFW, in which the plaintiffs
filed a motion for leave to add nonproductive time allegations
8               FOWLER PACKING CO. V. LANIER

to their complaint on June 22, 2015, Arredondo v. Delano
Farms Company, No. 1:09-cv-01247-MJS (E.D. Cal.).1

    Still another carve-out provision precludes the use of the
safe harbor as an affirmative defense by a defendant facing:

         [c]laims for paid rest or recovery periods or
         pay for other nonproductive time that were
         made in any case filed prior to April 1, 2015,
         when the case contained by that date an
         allegation that the employer has intentionally
         stolen, diminished, or otherwise deprived
         employees of wages through the use of
         fictitious worker names or names of workers
         that were not actually working.

Cal. Lab. Code § 226.2(g)(5). This carve-out prevents
Fowler from asserting the safe harbor as an affirmative
defense in a class action suit filed against it by the UFW on
March 17, 2015, Aldapa v. Fowler Packing Co., Inc., No.
1:15-cv-00420-JAM-SAB (E.D. Cal.).               According to
Plaintiffs, the class actions against Fowler, Gerawan, and
Delano are the only three pending wage and hour class
actions filed by the UFW in seven years before the filing of
Plaintiffs’ complaint.2


    1
      The district court in Arredondo denied the plaintiffs’ motion for
leave to amend on October 22, 2015, twelve days after AB 1513 was
signed into law.
    2
      Defendants note that one other case was pending at the time of AB
1513’s enactment in which nonproductive time allegations were asserted,
Moreno v. Castlerock Farming and Trans., Inc., 1:12-cv-0056-AWI-JTL
(E.D. Cal.), which was filed on April 10, 2012. We take judicial notice of
the fact that this case was filed and that a nonproductive time claim was
                FOWLER PACKING CO. V. LANIER                          9

    Plaintiffs’ complaint also sets forth allegations relating to
AB 1513’s legislative history. According to the complaint,
late in the 2014 legislative term, a bill that established the
safe harbor, but one without any of the carve-outs, was
proposed to the California legislature. That bill was never
formally introduced. On March 5, 2015, an initial version of
AB 1513 was introduced. This initial version did not address
piece-rate compensation or the Gonzalez or Bluford
decisions; it instead addressed an unrelated labor issue. On
August 27, 2015, a new version of AB 1513 was re-
introduced. Bearing no resemblance to its initial version, the
new AB 1513 contained the carve-out provisions challenged
here. The new AB 1513 was a result of “closed negotiations”
between the California Labor and Workforce Development
Agency, labor unions including the UFW, and employer
groups. Assemblymember Das Williams presented the bill to
the legislature with sixteen days left in the 2015 session, a
fact that prompted one Senator to comment that “not only is
the ink wet, there’s no ink on the paper on some of these
issues that have been surfaced that are . . . core, fundamental
issues.” Plaintiffs allege, based on a September 30, 2015,
article published in the Sacramento Bee, which they attached
to their complaint, that the carve-outs were demanded by the
UFW as necessary conditions to obtain UFW’s support for
the safe harbor provision. Plaintiffs also allege that UFW
sought the carve-outs as retribution for Gerawan’s resistance
in contractual negotiations with the union.




alleged. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741,
746 n.6 (9th Cir. 2006). Defendants asserted at oral argument that there
were additional cases that fell within the carve-outs, but they have not
provided the Court with any information about such cases.
10            FOWLER PACKING CO. V. LANIER

    Plaintiffs’ complaint asserts federal constitutional claims,
contending that AB 1513’s carve-outs violate the prohibition
against bills of attainder as well as the Equal Protection
Clause. It also asserts a claim under Article IV, Section 16 of
the California Constitution. The district court dismissed all
three claims with prejudice. It dismissed the California
Constitution claim because the court lacked jurisdiction to
address it. See Pennhurst St. Sch. & Hosp. v. Halderman,
465 U.S. 89, 121 (1984). The district court dismissed the bill
of attainder claim on the grounds that AB 1513’s carve-outs
did not amount to punishment and the legislative record did
not show an intent to punish. And the district court dismissed
the Equal Protection Clause claim on the grounds that the
carve-outs were reasonably related to a legitimate
government interest. Plaintiffs timely appeal the dismissal of
their federal claims only. We therefore address the bill of
attainder and equal protection claims, but need not address
the claim under the California Constitution.

                               II

    We review the district court’s order dismissing Plaintiffs’
complaint de novo. Brewster v. Sun Trust Mortg., Inc.,
742 F.3d 876, 877 (9th Cir. 2014). We must determine
whether Plaintiffs’ complaint pleads “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 547 (2007). “In doing so, we accept
as true all factual allegations and determine whether they are
sufficient to state a claim for relief; we do not, however,
accept as true allegations that are conclusory. . . . [The
f]actual allegations must be enough to raise a right to relief
above the speculative level.” In re NVIDIA Corp. Sec. Litig.,
768 F.3d 1046, 1051 (9th Cir. 2014) (citation and internal
quotation marks omitted).
              FOWLER PACKING CO. V. LANIER                     11

                               III

   We first consider whether the district court erred in
dismissing Plaintiffs’ claim under the Equal Protection
Clause. We conclude that it did.

    The parties agree, as do we, that AB 1513 implicates no
suspect class or fundamental right. As a result, we scrutinize
the carve-outs using rational basis review. Romero-Ochoa v.
Holder, 712 F.3d 1328, 1331 (9th Cir. 2013). This analysis
asks whether “there is any reasonably conceivable state of
facts that could provide a rational basis for the classification.”
F.C.C. v. Beach Comms., Inc., 508 U.S. 307, 313 (1993).
This inquiry is not a “license for courts to judge the wisdom,
fairness, or logic of legislative choices”; if we find a
“plausible reason[] for [California’s] action, our inquiry is at
an end,” and we must affirm the dismissal of this claim. Id.
at 313–14 (internal quotation marks omitted).

    Plaintiffs argue that AB 1513 fails to satisfy rational basis
review because the only reason the carve-outs were included
in the final bill was to procure the support of the UFW. As
Defendants conceded at oral argument and as we conclude, if
that is the only justification for the carve-outs, that
justification alone does not survive constitutional scrutiny.
Plaintiffs have plausibly alleged that the cut-off dates in
sections (g)(2) and (g)(5) were included in AB 1513 for only
that illegitimate purpose. Each cut-off date corresponds,
within a matter of weeks (or even a matter of days), to the
corresponding filing dates of the cases against Fowler,
Gerawan, and Delano. Accepting Plaintiffs’ allegations as
true, as we must at this stage of the litigation, we can
conceive of no other reason why the California legislature
12               FOWLER PACKING CO. V. LANIER

would choose to carve out these three employers other than
to respond to the demands of a political constituent.3

    We must, however, consider the justifications Defendants
offer. With respect to section (g)(2)(A), Defendants contend
that the government sought to protect expectations developed
as a result of already-pending litigation and to prevent
unlimited relief to employers. We need not question the
legitimacy of such a justification. Although we defer to
legislatures in the necessary process of regulatory line-
drawing, Beach Communications, 508 U.S. at 315–16,
legislatures may not draw lines for the purpose of arbitrarily
excluding individuals, see Merrifield v. Lockyer, 547 F.3d
978, 991–92 (9th Cir. 2008) (holding that a California statute
excluding certain workers from an exemption from licensing
requirements violated the Equal Protection Clause because
the exclusion was not rationally related to a legitimate

     3
       We recognize, as stated in the famous quotation often attributed to
Bismarck, that laws are like sausages, in that it is better not to see them
being made. So too courts rarely inquire into the sausage-making of
political compromise.         Equal protection doctrine reflects this
attitude—outside of the infringement of fundamental rights and suspect
class-based discrimination—by asking us to imagine any conceivable
basis supporting a law, even if not advanced by the government. E.g.,
Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 463 (1988) (in rational
basis review, the court is “not bound by explanations of the statute’s
rationality that may be offered by litigants or other courts”); U.S. R.R. Ret.
Bd. v. Fritz, 449 U.S. 166, 179 (1980) (under the rational basis test,
“[w]here, as here, there are plausible reasons for Congress’ action, our
inquiry is at an end. It is, of course, constitutionally irrelevant whether
this reasoning in fact underlay the legislative decision” (internal quotation
marks omitted)). We accept these principles. But here, we cannot
imagine a plausible legitimate basis for the package of legislative
classifications set by the legislature in AB 1513’s carve-outs, which
requires us to conclude that Plaintiffs have alleged a plausible equal
protection claim.
               FOWLER PACKING CO. V. LANIER                      13

government interest). This is exactly what AB 1513, as
alleged, does to Plaintiffs. Because Plaintiffs have plausibly
alleged that the choice of cut-off dates can only be explained
as a concession to the UFW in exchange for its support for
AB 1513, section (g)(2) does not reasonably further this
suggested justification.

    Subsection (g)(2)(B)’s language supports this point. That
subsection limits the section (g)(2) carve-out to only those
claims in which “[t]he claim was asserted against a defendant
named with specificity and joined as a defendant, other than
as an unnamed (DOE) defendant pursuant to Section 474 of
the Code of Civil Procedure, in the pleading referred to in
subparagraph (A), or another pleading or amendment filed in
the same action prior to January 1, 2015.” Cal. Lab. Code
§ 226.2(g)(2)(B). Appellees offer no explanation for this
subsection. They suggest no justification in their briefing and
could not explain the provision when asked about it during
oral argument.4 We also cannot conceive of any legitimate
justification for this perplexing provision, except that it was
tailored to keep other employers from being carved out of the
safe harbor being denied to Fowler, Gerawan, and Delano.

    The justifications Defendants offer in explanation of
section (g)(5) are also insufficient to support dismissal of
Plaintiffs’ equal protection claim. Defendants assert that
damages in “ghost worker” claims are more difficult to
calculate and that the legislature may not have wanted to
extend relief to employers who use ghost workers to engage
in wage theft. But ghost worker claims are completely


    4
     See Oral Arg., Fowler Packing Co., Inc. v. Lanier, No. 16-16236
(November 16, 2016), at 25:22–27:22, https://www.youtube.com/
watch?v=mSn643L1YhA.
14            FOWLER PACKING CO. V. LANIER

irrelevant to AB 1513’s safe harbor, which deals with claims
of underpayment as a result of failing to pay for
nonproductive work time. It would be no less rational to base
the ability of a defendant to use the safe harbor on the
grounds of whether that defendant has ever received a
speeding ticket.

    Moreover, section (g)(5)’s reliance on particular
allegations directed to a completely unrelated claim as the
basis for denying an affirmative defense further supports the
inference that its purpose is to target the class action against
Fowler. We could understand if California wanted to prevent
employers who stole employees’ wages by using ghost
worker manipulation from enjoying the benefits of the safe
harbor in an unrelated claim because they have engaged in
particularly wrongful conduct. But section (g)(5) does no
such thing. It excludes employers from the safe harbor based
on mere allegations made against them, even if those
allegations turn out to be completely frivolous.

    As a final matter, we note that Defendants’ offered
justification does not explain why section (g)(5) uses a cut-off
date different from that used in section (g)(2). Again, we
cannot conceive of a legitimate interest that would explain
this decision.

    Accepting Plaintiffs’ allegations as true, the only
conceivable explanation for AB 1513’s carve-outs is that they
were necessary to procure the UFW’s support in passing that
legislation. Because that justification would not survive even
rational basis scrutiny, we conclude that Plaintiffs’ complaint
plausibly states a claim that those provisions violate the Equal
Protection Clause.
                  FOWLER PACKING CO. V. LANIER                              15

                                      IV

     We next address Plaintiffs’ bill of attainder claim. Article
I, Section 10, Clause 1 of the United States Constitution
provides that, “[n]o State shall . . . . pass any Bill of
Attainder.”5 A bill of attainder is a “law that legislatively
determines guilt and inflicts punishment upon an identifiable
individual without provision of the protections of a judicial
trial.” Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468
(1977). For purposes of this analysis, we assume without
deciding that corporations may seek the protection of the Bill
of Attainder Clauses—a proposition not yet endorsed by this
circuit. See SeaRiver, 309 F.3d at 668 n.3 (assuming without
deciding that the Article I, Section 9 Bill of Attainder Clause
protects corporations).

    The Supreme Court has identified three elements of a bill
of attainder claim: “[1] specification of the affected persons,
[2] punishment, and [3] lack of a judicial trial.” Selective
Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S.
841, 847 (1984). “In judging the constitutionality of [the
challenged legislation], we may only look to its terms, to the
intent expressed by [members of the legislature] who voted
[for] its passage, and to the existence or nonexistence of


     5
       We note that much of the relevant case law interpreting the term
“bill of attainder” does so in the context of Article I, Section 9, Clause 3
of the Constitution. That provision prohibits the federal government from
enacting bills of attainder. Plaintiffs assert a violation of Article I, Section
10, Clause 1, which prohibits states from enacting bills of attainder. We
see no reason, however, why the same term should be treated differently
when applied to state legislatures, at least in the context of this case. See
SeaRiver Maritime Fin. Holdings, Inc. v. Mineta, 309 F.3d 622, 672 n.6
(9th Cir. 2002). We refer to these two constitutional provisions together
as the “Bill of Attainder Clauses.”
16            FOWLER PACKING CO. V. LANIER

legitimate explanations for its apparent effect.” SeaRiver,
309 F.3d at 673 (internal quotation marks omitted). We
conclude that AB 1513’s carve-outs do not impose
punishment and we need not address whether they satisfy the
other two elements of a bill of attainder claim.

    The Supreme Court has also identified three “necessary
inquiries” that can indicate whether a law inflicts punishment
for purposes of the Bill of Attainder Clauses: “(1) whether
the challenged statute falls within the historical meaning of
legislative punishment; (2) whether the statute, ‘viewed in
terms of the type and severity of burdens imposed, reasonably
can be said to further nonpunitive legislative purposes’; and
(3) whether the legislative record ‘evinces a congressional
intent to punish.’” Selective Service, 468 U.S. at 852 (quoting
Nixon, 433 U.S. at 473, 475–76, 478). We must consider
these three inquiries together, none of which is by itself
necessary or dispositive. SeaRiver, 309 F.3d at 673. Further,
as case law requires, we must view the law functionally as we
engage in this analysis. E.g., Selective Service, 468 U.S. at
852 (“It is . . . apparent that, though the governing criteria for
an attainder may be readily indicated, ‘each case has turned
on its own highly particularized context.’” (quoting Flemming
v. Nestor, 363 U.S. 603, 616 (1960)). In so doing, we
conclude that the carve-outs do not impose punishment. Any
liability Plaintiffs face in the class action cases being pursued
against them is a result of judicial interpretations of pre-
existing California law, not any action by the legislature
linked to the passage of AB 1513. For that reason, AB 1513
cannot be held to impose punishment.

   First, the carve-outs do not fall within the historical
meaning of legislative punishment, which includes execution,
imprisonment, banishment, punitive confiscation of property,
              FOWLER PACKING CO. V. LANIER                   17

and the prohibition of “participation by individuals or groups
in specific employments or professions.” Selective Service,
468 U.S. at 852; see also id. at 852 n.9 (collecting cases). A
law making a defendant ineligible to assert an affirmative
defense in a civil lawsuit simply does not fit within that
category of legislative action.

    The second inquiry, which “ensure[s] that the [l]egislature
has not created an impermissible penalty not previously held”
to constitute punishment, id. at 853, requires us to engage in
a “functional test” by asking “whether the law under
challenge, viewed in terms of the type and severity of burdens
imposed, reasonably can be said to further nonpunitive
legislative purposes,” Nixon, 433 U.S. at 475–76. As
discussed above, Plaintiffs have plausibly alleged that the
only justification that reasonably explains California’s choice
of cut-off dates is that it capitulated to the political demands
of the UFW. And as Defendants have conceded, that is not
a legitimate government interest. Moreover, section (g)(5)
exempts companies from the safe harbor based on allegations
of unrelated conduct. Because neither section (g)(2) nor
(g)(5) can be said to further a legitimate government interest,
it is at least conceivable that the California legislature
intended to punish Plaintiffs by carving them out of AB
1513’s safe harbor.

    Third, we consider “whether the legislative record is
probative of nonpunitive intentions or instead evidences
legislative overreaching that enlivens ‘the fear that the
legislature, in seeking to pander to an inflamed popular
constituency,’ found it ‘expedient openly to assume the
mantle of judge—or, worse still, lynch mob.’” SeaRiver, 309
F.3d at 676 (quoting Nixon, 433 U.S. at 480). Outright
statements of punitive intent are not necessary; instead, we
18               FOWLER PACKING CO. V. LANIER

look for evidence permitting an inference of punitive intent.
See Nixon, 433 U.S. at 480 (“We, of course, do not suggest
that such a formal legislative announcement of moral
blameworthiness or punishment is necessary to an unlawful
bill of attainder.”). The only allegations in Plaintiffs’
complaint relevant to this analysis are (1) the last-minute
nature of AB 1513’s enactment and (2) post-enactment
statements purportedly made by Assemblymember Williams.6
With respect to the first, “departure from established
legislative procedures may suggest an improper purpose.”
SeaRiver, 309 F.3d at 677. The fact that Assemblymember
Williams may have introduced AB 1513 only sixteen days
before the end of the session, however, does not appear to be
an unusual path to enactment. Legislative compromise can at
times be hard fought, and it would be unwise to infer bad
intent simply because negotiations were prolonged but
ultimately successful.

    The second set of allegations, the post-enactment
statements purportedly made by Assemblymember Williams,
suggests that the carve-outs were motivated by political
expediency, but not, in our view, an intent to punish.
According to Plaintiffs’ allegations, Assemblymember
Williams stated that the carve-outs were necessary to


     6
       Defendants argue that we may not consider allegations concerning
the post-enactment statements because they are outside the formal
legislative record. Plaintiffs respond that we may consider such
allegations because they are probative of the intent that motivated the
carve-outs. We agree with Plaintiffs that post-enactment statements by the
sponsoring member of the legislature are pertinent to this assessment
because they allow insight into the legislature’s intent. See Nixon,
309 F.3d at 484 (“In judging the constitutionality of the Act, we may . . .
look . . . to the intent expressed by Members of [the legislature] who voted
[for] its passage . . . .”).
              FOWLER PACKING CO. V. LANIER                     19

maintain the support of labor, and that “[f]rom [his]
perspective, if we’re going to create a grand compromise that
helps most growers and helps most workers, you don’t want
to let it get blown up because there’s somebody who’s a
potential bad actor.” These statements support the contention
that the carve-outs served only as a concession to the UFW in
exchange for its support for AB 1513 as a whole. While such
intent does not align with a legitimate justification for a law,
it is distinct from an intent to punish. An intent to punish
must be accompanied by the imposition of some sort of harm
on certain individuals, and the carve-outs do no such thing.
Stated another way, the carve-outs do not punish Plaintiffs;
rather, it is the pre-existing law that creates the monetary
exposures for Plaintiffs to the extent they violated wage laws.
While the novel issue is not clear cut, the weight of precedent
leads us to conclude AB 1513 by its carve-outs imposes no
punishment. This is fatal to Plaintiffs’ bill of attainder claim.
Before AB 1513’s enactment, Plaintiffs faced class action
litigation regarding their purported failure to meet the
minimum wage requirements set by California law. After AB
1513’s enactment, Plaintiffs face the exact same potential
liability. AB 1513 neither changes the law governing
Plaintiffs’ litigation, nor the amount of potential liability they
face.

     Plaintiffs argue that AB 1513 places a “functional
burden” on them because their competitors now avoid costly
litigation and statutory fees using the safe harbor. We first
note that such an argument is much more appropriate in the
context of an equal protection challenge because it challenges
the reason a legislature subjected one group to a particular
policy, but not another. Second, denying certain individuals
a benefit that had not previously existed is not an imposition
of punishment. See Flemming, 363 U.S. at 617. To be sure,
20             FOWLER PACKING CO. V. LANIER

a plaintiff need not be entitled to the benefit denied her by a
bill of attainder. See, e.g., United States v. Brown, 381 U.S.
437 (1965) (holding that a law barring Communist Party
members from offices in labor unions is a bill of attainder).
But the benefit at issue must have been in some way available
to the plaintiff before the enactment of the law being
challenged. Because the safe harbor was never available to
Plaintiffs in the first place, they cannot claim they have been
punished by being excluded from AB 1513’s protections.

    Viewing the effect of AB 1513’s carve-outs functionally,
we conclude AB 1513’s carve-outs do not impose punishment
upon Plaintiffs. Because punishment is a necessary element
of a bill of attainder, the district court properly dismissed this
claim.

                                V

    The district court erred in dismissing Plaintiffs’ equal
protection claim, but correctly dismissed Plaintiffs’ bill of
attainder claim. We AFFIRM in part and REVERSE in
part, and REMAND for further proceedings.

     Each party shall bear its own costs.
