a California-centric collection of comments and resources about complex litigation and class action practice
With traffic to the California Courts website so heavy that a temporary mirror site was added, the long wait for the Brinker opinion in now over. I can't write extensive comments now, but a quick skim suggests to me that the opinion falls somewhere in the middle of what the respective sides hoped to see happen.
In case my opinion isn't entirely clear, SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act) are junk. The laws display a catastrophic ignorance about how the Internet actually works, are so poorly written as to invite abuse, will most certainly be abused (based on how the MPAA and RIAA have conducted themselves in the past), and will move the United States uncomfortably down the road towards a fragmented, censored Internet.
If you aren't all that technical and want an idea of what's wrong with these laws, reddit has a good post on the topic.
Oral argument was finally held in Brinker last week. Wagering on appellate court outcomes after listening to oral arguments is not a smart use of gambling funds in most instances, and it seems dangerous here as well. But most assessments of the argument seem to agree on two things. First, the consensus is that the Justices appeared to direct a more critical set of questions to plaintiffs' counsel, Kimberly Kralowec, on the issue of whether employers must "ensure" that meal periods are taken, rather than simply "provide" employees with an opportunity to take a meal period. Second, on the issue of when a meal must occur, at least Justice Liu appeared to take exception with an interpretation that would allow an employer to schedule meal period after more than five hours of work.
Here are a few examples of coverage of or opinions about the oral argument:
In something approximating 90 days we will finally know the answer to this great mystery.
There we have it. Brinker is set for argument on Tuesday, November 8, 2011, at 9:00 a.m., in San Francisco. I have to wonder if this will amount to less of a bombshell now that the class action practitioners of the world are intensely focused on how Concepcion will impact wage & hour class actions generally. But we've waited so long for answers to the many questions raised by Brinker that we deserve an answer. Thank goodness I don't have to make a Brinker-Watch 2012 graphic.
According to press reports, the legislature's court budget cuts of $150 million for operations and $310 million in court construction funding have increased after Governor Jerry Brown used line item veto power to slash another $22 million from California trial court operations and security. Underfunding at this level is unconstitutional. The judiciary is a co-equal, constitutional branch of government. It cannot function correctly at this funding level. The Legislature and Governor do not suffer equivalent operational impairment from the budget cuts they impose elsewhere. Only the judicial branch must suplicate, hat in hand, for enough money to do the people's work.
The past three years account for a 30% general funding cut for California's Courts. I don't think their obligations decreased by 30%. If anything, a difficult economy creates more litigation events.
I wrote about this previously here and copied a Daily Journal article on the subject here.
The Complex Litigator is now listed on Alltop, in the legal news section. Alltop is the magazine newsrack for the Internet. Here's how Alltop describes its purpose:
The purpose of Alltop is to help you answer the question, “What’s happening?” in “all the topics” that interest you. You may wonder how Alltop is different from a search engine. A search engine is good to answer a question like, “How many people live in China?” However, it has a much harder time answering the question, “What’s happening in China?” That’s the kind of question that we answer.
Alltop is a unique way to view current events or issues of current interest in any particular field. I recommend skimming the legal news section from time to time, to spot trends if nothing else.
So...cool.
The California Supreme Court held its (usually) weekly conference on May 18, 2011. Notable results include:
From Sentator Franken's official site:
After consumers were dealt a blow today when the Supreme Court ruled that companies can ban class action suits in contracts, U.S. Sens. Al Franken (D-Minn.) and Richard Blumenthal (D-Conn.) and Rep. Hank Johnson (D-Ga.) said today they plan to introduce legislation next week that would restore consumers' rights to seek justice in the courts. Their bill, called the Arbitration Fairness Act, would eliminate forced arbitration clauses in employment, consumer, and civil rights cases, and would allow consumers and workers to choose arbitration after a dispute occurred.
Many businesses rely on mandatory and binding pre-dispute arbitration agreements that force consumers and employees to settle any dispute with a company providing products or services without the benefit of legal recourse.
"This ruling is another example of the Supreme Court favoring corporations over consumers," said Sen. Franken. "The Arbitration Fairness Act would help rectify the Court's most recent wrong by restoring consumer rights. Consumers play an important role in holding corporations accountable, and this legislation will ensure that consumers in Minnesota and nationwide can continue to play this crucial role."
"Powerful companies who take advantage of ordinary consumers must be held accountable," said Sen. Blumenthal. "Today's misguided Supreme Court ruling is a setback for millions of Americans, denying injured consumers access to justice. The Arbitration Fairness Act would reverse this decision and restore the long-held rights of consumers to hold corporations accountable for their misdeeds."
"Forced arbitration agreements undermine our indelible Constitutional right to trial by jury, benefiting powerful businesses at the expense of American consumers and workers," said Rep. Johnson. "Americans with few choices in the marketplace may unknowingly cede their rights when they enter contracts to buy a home or a cell phone, place a loved one in a nursing home, or start a new job. We must fight to defend our rights and re-empower consumers."
In Concepcion v. AT&T, consumers brought a claim against AT&T for false advertising. However, because the value of their case was only $30, their case was consolidated into a class action. AT&T sought to block the lawsuit by pointing to the mandatory arbitration clause in the service contract but lower courts applying state law rightly invalidated the arbitration clause because it banned class actions entirely.
In today's 5-4 decision, the Supreme Court overturned these lower court decisions which sought to protect consumers. The majority of the Court held that the Federal Arbitration Act barred state courts from protecting consumers from these arbitration clauses. The effect of this decision essentially insulates companies from liability when they defraud a large number of customers of a relatively small amount of money.
A longtime advocate for consumers and workers in cases of forced arbitration, in 2009 Sen. Franken passed legislation with bipartisan support that restricts funding to defense contractors who commit employees to mandatory binding arbitration in the case of sexual assault and other civil rights violations. Congressman Johnson, a longtime champion of workers and consumer rights, first introduced the Arbitration Fairness Act in 2007.
"Murder will out, certain, it will not fail." –Geoffrey Chaucer
Sorry to have been remiss in my posts recently, but a move to a new home has been far longer and far more painful than anticipated. That doesn't mean that I'm not paying attention to current events; I just haven't had time to write about them.
One current event that has been on my radar involves Microsoft's new mobile phone operating system, creatively called Windows Phone 7. I was very excited by the previews I saw. I dumped my iPhone for one of these phones on release day. The operating system is, in my opinion, much more elegant than the iPhone OS. I still like it. One problem: the phone updates that Microsoft promised to release before the end of 2010 still aren't here. Whose to blame? Microsoft? The various carriers? Handset manufacturers? The truth will out, as they say.
Microsoft was painfully silent about what was happening. It didn't say anything about what was happening or where the blame who Then the Interwebs began to pound away (e.g., this post on the Windows Team Blog and this AT&T discussion thread on Facebook, and, yes, I gave both of them a hard time). Then Microsoft announced that all was well with the "NoDo" update and announced its release. Problem is, nobody was receiving updates...at least on AT&T. Then some industrious snooper found a page on microsoft.com that clears things up a bit - the Where's My Phone Update page. Notice (if you care) how the AT&T phones are all in the "testing" phase, while other phones have update delivery scheduled. I call horse hockey on AT&T. It isn't "testing" this update. The update was done in December. I believe that I am officially being jerked around.
Very poor form, AT&T. You deserve all the contempt you receive on this issue. So do you, Microsoft, for being such wimps about a project that you can't afford to let flop out the gate. One might even say that I might not have purchased the phone or would have paid less for it had I known the truth about how updates would (or would not) work to add missing features in a timely manner and fix bugs. I feel like I am the target of unfair competition...
Ars Technica has some excellent coverage of the silent goliaths in a post from earlier today.
On January 26, 2011, the Supreme Court held a weekly conference. Of particular note was the "GRANTED and Held" Order in the matter of Hernandez v. Chipotle Mexican Grill, Inc. Hernandez was striking for how vehemently it ignored Jaimez when it chose to follow the most anti-employee decisions of various federal courts and then enunciate a meal period standard that is the functional equivalent of the standard applicable to rest breaks. See prior blog post here. Maybe it means nothing at all other than the Supreme Court doesn't want published meal period cases floating around while Brinker is pending. Or maybe the Supreme Court is close to the finish line on Brinker and views Hernandez as inconsistent with its intended holdings.
I wasn't prepared at the time, but now I am ready with my Brinker-Watch 2011 tile. Look for this tile to alert you to breaking Brinker news. After all, it's just about time for the Supreme Court to announce its March calendar...
The Complex Litigator reports on developments in related areas of class action and complex litigation. It is a resource for legal professionals to use as a tool for examining different viewpoints related to changing legal precedent. H. Scott Leviant is the editor-in-chief and primary author of The Complex Litigator.
