DOJ switches teams in NLRB v. Murphy Oil

The DOJ announced on Friday, June 16, 2017, that it was reversing its position on the validity of class action waivers in arbitration agreements and would file an amicus brief in support of the employer's position in NLRB v. Murphy Oil.  I get that a change in administration can bring with it a change in policy, but this is unfortunate in that it overtly politicizes a legal analysis that should at least attempt to be a textual analysis that doesn't depend on which way the wind blows.  I suppose Judge Posner has the right of it when he argues that all the supposedly dispassionate judicial reasoning is just a veneer over personal preference and wanting anything as significant as this issue to be decided apolitically is laughably naive.  Still, I think the better approach for the DOJ would have been to undertake the equivalent of a noisy withdrawal, officially retracting its position and choosing to take a neutral position in the case.

Source: http://www.politico.com/story/2017/06/16/j...

Briefs on the merits are available in Troester v. Starbucks

Briefing on the merits is complete in Troester v. Starbucks Corporation (S234969).  The California Supreme Court granted the Ninth Circuit's request to decide an issue of California law.  The issue, taken from the California Supreme Court's Case Summary page is:

Request under California Rules of Court, rule 8.548, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. The question presented is: Does the federal Fair Labor Standard Act's de minimis doctrine, as stated in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946) and Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984), apply to claims for unpaid wages under California Labor Code sections 510, 1194, and 1197?

If you are interested, I've made the Briefs available here.  A new sidebar link will also get you there.

E-DISCOVERY: State-by-state resources to set you in the right direction

Quite some time ago, I covered a few e-discovery resources on this blog.  You can find that old post here.

I'm adding another to that list (additions being long overdue).  This list has an interesting collection of state-by-state links.  It might set you in the right direction if you have to deal with e-discovery in a state in which you don't normally practice:

Electronic Discovery Law Throughout the United States

The California Rules of Court require revision or clarification regarding Motions for Preliminary/Final Approval of class action settlements

The California Rules of Court are just bursting with procedural rules designed to operate in conjunction with the Code of Civil Procedure.  However, while much effort clearly went into ensuring that the Rules work with each other in a smooth fashion, every now and then the Rules conflict with each other.  One area where I find this to be so arises in the context of motion page length when filing motions for preliminary (or final) approval of class action settlements. 

As most civil litigation practitioners in California would know off of the of their head, California Rules of Court, rule 3.1113(d) specifies that motions other than summary judgment or summary adjudication motions can be no longer than 15 pages, with 20 pages permitted for the summary adjudication and judgment motions.  There are no other listed exceptions in that rule. But California Rules of Court, rule 3.764(c) specifies that any motion seeking certification (or decertification) of a class action can be up to 20 pages in length.  Rule 7.764 then says that the remaining provisions of rule 3.1113 apply, apparently meaning that the page limit is intended as an exception to 3.1113.  The confusion arises in what is expected by Court ruling on motions for preliminary (or final) approval of class action settlements.  Those motions are required to discuss the key settlement terms, the settlement process, why the settlement if fair and adequate, and (and here's the rub), why certification of a settlement class is appropriate.  Now, that certification discussion is certainly more streamlined than on contested motion, but Courts still expect at least some discussion of certification requisites.  So, which page limit applies?  Is it 15 pages, or 20 pages, given that motions for preliminary (or final) approval of class action settlements discuss certification of a settlement class?

Morris v. Ernst & Young, LLP update

For those of you who recognized that the Ninth Circuit got it 100% right when it found in Morris v. Ernst & Young, LLP (9th Cir. Aug. 22, 2016) that an arbitration agreement that precludes collective actions violates rights protected by the NLRA, you may wish to know where things stand with that case on further appeal.  Right now, Morris is before the U.S. Supreme Court on a Petition for Writ of Certiorari.  Here is the Docket report:

  • Sep 8 2016:  Petition for a writ of certiorari filed. (Response due October 11, 2016)
  • Sep 21 2016:  Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for petitioners.
  • Sep 29 2016:  Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondents
  • Oct 3 2016: Brief amici curiae of National Association of Manufacturers, et al. filed. VIDED.
  • Oct 3 2016: Brief amicus curiae of Chamber of Commerce of the United States filed.
  • Oct 6 2016: Order extending time to file response to petition to and including November 14, 2016.
  • Oct 7 2016: Brief amicus curiae of International Association of Defense Counsel filed.
  • Oct 10 2016: Brief amicus curiae of Atlantic Legal Foundation filed.
  • Oct 11 2016: Brief amicus curiae of The Employers Group filed.
  • Oct 11 2016: Brief amicus curiae of The Retail Litigation Center, Inc. filed.
  • Oct 11 2016: Brief amicus curiae of The Business Roundtable filed.
  • Oct 11 2016: Brief amicus curiae of New England Legal Foundation filed.
  • Nov 15 2016: Order further extending time to file response to petition to and including November 21, 2016.
  • Nov 21 2016: Brief of respondents Stephen Morris, et al. in opposition filed.

Just look at those busy amicus filers.  I bet all those employers are telling the Supreme Court that the world would end in fire and death if they couldn't block class actions for wage and hour violations with arbitration agreements that employees have to sign to work.