California Supreme Court agreed to hear certified question about employer exit searches in Frlekin v. Apple

The California Supreme Court has agreed to weigh in on the issue of whether time spent on security searches is compensable.  Here is the Court's description of the issue:

Frlekin v. Apple, Inc., S243805. (9th Cir. No. 15-17382; ___ F.3d ___, 2017 WL 3723235; Northern District of California; Nos. C 13-03451 WHA, No. C 13-03775 WHA, C 13-04727 WHA.) 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: “Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages or bags voluntarily brought to work purely for personal convenience by employees compensable as ‘hours worked’ within the meaning of California Industrial Welfare Commission Wage Order No. 7?”

Justice Chin was recused and did not participate in the decision.  Between this and other issues currently before the California Supreme Court, we will see more changes in wage and hour litigation in the next few years.

Source: http://www.courts.ca.gov/documents/ws09181...

Sullivan v. Oracle Corporation addresses how California law applies to nonresident employees working both in and outside California

Today, the California Supreme Court issued an Opinion following its acceptance of questions about the construction of California law from the United States Court of Appeals for the Ninth Circuit.  In Sullivan v. Oracle Corporation (June 30, 2011), the Court addressed (1) whether the Labor Code's overtime provisions apply to plaintiffs' claims for compensation for work performed in this state [with the ancillary question of whether the same claims can serve as predicates for claims under California's unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.)], and (2) whether the plaintiffs' claims for overtime compensation under the federal Fair Labor Standards Act of 1938 (FLSA) (29 U.S.C. § 201 et seq.; see id., § 207(a)) for work performed in other states can serve as predicates for UCL claims.

The Court responded "yes" to the first question group, and "no" to the second.

On the first issue, the Court said:  "The California Labor Code does apply to overtime work performed in California for a California-based employer by out-of-state plaintiffs in the circumstances of this case, such that overtime pay is required for work in excess of eight hours per day or in excess of forty hours per week. (See Sullivan III, supra, 557 F.3d 979, 983.)"  (Slip op., at 18.)

On the related UCL question, the Court said: "Business and Professions Code section 17200 does apply to the overtime work described in question one. (See Sullivan III, supra, 557 F.3d 979, 983.)"  Slip op., at 19.)

The full answer to the last issues was:  "Business and Professions Code section 17200 does not apply to overtime work performed outside California for a California-based employer by out-of-state plaintiffs in the circumstances of this case based solely on the employer's failure to comply with the overtime provisions of the FLSA."  (Slip op., at 23.)

The Opinion was issued by a unanimous Court.

Ninth Circuit discusses individual privacy interests in FOIA context

While not directly applicable to class member identity discovery, the Ninth Circuit recently provided some guidance about individual privacy interests and how they are weighed against a countervailing set of interests to keep them confidential.  Prudential Locations LLC v. U.S. Department of Housing and Urban Development (9th Cir. June 9, 2011) involved a Freedom of Information Act request for identification of various informants that advised the U.S. Department of Housing and Urban Development (“HUD”) about their suspicions that Prudential Locations LLC was violating the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601-2617, which was passed, in part, to “eliminat[e] . . . kickbacks or referral fees that tend to increase unnecessarily the costs of certain settlement services.” 12 U.S.C. § 2601(b)(2).

The Court described the process of review as one in which the Court must first identify a non-trivial privacy interest.  If such an interest is identified, the Court must then “balance the privacy interest protected by the exemption[ ] against the public interest in government openness that would be served by disclosure.”  Finally, the Court said that it must evaluate the likelihood that a privacy invastion would occur.  The Court concluded that HUD had failed to provide the trial court with sufficient information to rule on the request and remanded to give HUD an opportunity to do so.

While not precisely analagous to the test applied when discovery of class member identity is sought, this opinion at least suggests the type of analysis that must occur then balancing an asserted privacy interest in identity and contact information with the strong right to discover that information.

An objector has no standing to challenge a class action fee award where he has no financial interest in the award and fails to show harm as a result of the award

In Glasser v. Volkswagon of American, Inc. (9th Cir. May 17, 2011), the Ninth Circuit considered objector-appellant David Murray's contention that the district court erred when it awarded attorneys’ fees and costs to plaintiff-appellee Jacob Glasser.  Glasser challenged the inadequacy of disclosures by Volkswagon about the limited availability of "smart keys" for certain Audi and Volkswagon vehicles.  Soon after the case was filed, the parties initiated settlement discussions.  As part of those discussions, Glasser evidently learned that replacement key technology was available through independent dealers and agreed that Volkswagon had not fixed the price of replacement keys.  Volkswagon agreed to make additional disclosures about "smart keys," but no monetary benefit was obtained for the class.

The trial court approved a settlement in which the class was notified of the agreement to make new disclosures and Volkswagon's agreement to either pay an agreed-upon amount of attorney's fees or let the trial court decide fees if the parties did not reach agreement on that issue.  Murry filed an objection to the settlement.  The district court awarded plaintiff attorney's fees in the amount of $417,663.75, costs and expenses in the amount of $16,614.40, and an incentive award to Glasser in the amount of $2,500.

The Court began with a discussion of Article III standing.  The Court observed that fees paid from common funds confer standing on objectors because the fees reduce the fund:

When attorneys’ fees are paid out of a common fund, from which both the class recovery and the fee award are paid, a class member who participates in the settlement generally has standing to challenge the fee award because any reduction in the fee award results in an increase to the class recovery.

Slip op., at 6356.  But the Court then concluded that Murray failed to satisfy his obligation to establish Article III standing:

Murray does not contend that Plaintiff’s counsel colluded with VW to orchestrate an excessively high fee award in exchange for an unfair settlement for the class. Had he alleged as much, he may have been able to meet the requirements of Article III standing under a “constructive common fund theory.” See Lobatz, 222 F.3d at 1147. However, Murray has expressly disclaimed recovery under a “constructive common fund” theory. Instead, he argues Plaintiff’s claims were entirely meritless from the beginning of the lawsuit. Further, he claims only that an excess fee award will cause VW to pass along the cost to its shareholders and customers, and that he may somehow benefit as a consumer from any savings that may result from the denial or reduction of the award.

Slip op., at 6537.  The appeal was then dismissed for lack of standing.  Oops.  I suppose an assertion of a "constructive common fund" theory will become the new standard refrain for objectors, particularly in consumer class actions.