a California-centric collection of comments and resources about complex litigation and class action practice
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:
Mohamed v. Uber Technologies, Inc. (9th Cir. Dec. 21, 2016) isn't the first decision to hold, in the face of a motion to compel arbitration in a wage and hour suit, that (1) PAGA claims should be severed from the rest of the claims and proceed in Court, and (2) the arbitrability of all other claims was for an arbitrator to determine. The Court said:
In Iskanian v. CLS Transp. L.A., LLC, 327 P.3d 129 (Cal. 2014), the California Supreme Court held that where “an employment agreement compels the waiver of representative claims under the PAGA, it is contrary to public policy and unenforceable as a matter of state law.” Id. at 149. We have held that the Federal Arbitration Act does not preempt this rule. Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425, 427 (9th Cir. 2015).
Slip op., at 21.
The California Supreme Court dropped a pretty big opinion in the wage and hour world today, reversing the Court of Appeal in Augustus v. ABM Security Services, Inc. (Dec. 22, 2016). The Supreme Court specifically waded into the topic of rest breaks, and, specifically, whether an "on call" or "on duty" rest break is ever sufficient. Here's the summary:
We granted review to address two related issues: whether employers are required to permit their employees to take off-duty rest periods under Labor Code section 226.7 and Industrial Welfare Commission (IWC) wage order No. 4-2001 (Cal. Code Regs., tit. 8, § 11040 (Wage Order 4)), and whether employers may require their employees to remain "on call" during rest periods. What we conclude is that state law prohibits on-duty and on-call rest periods. During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time. (See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1038-1039 (Brinker).)
Slip op., at 1. While this decision won't directly impact most wage and hour cases, given that it is fairly specific to the sort of job circumstances encountered by employees like security guards, it will put a little bit of weight on the scale when rest break claims are up for settlement or certification.
If I can, I will write more about this decision later, but, for now, the first paragraph pretty much summarizes the result.
Roxborough, Pomerance, Nye & Adreani, Drew E. Pomerance, Michael B Adreani, Marina N. Vitek; The Ehrlich Law Firm, Jeffrey Isaac Ehrlich; Initiative Legal Group, Monica Balderrama, G. Arthur Meneses; Scott Cole & Associates, Scott Edward Cole, Matthew R. Bainer; Law Offices of Alvin L Pittman and Alvin L. Pittman were listed as counsel for Plaintiffs and Respondents. Mr. Pomerance argued for Plaintiff. Well done, Drew!
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?
Very briefly, I direct your attention to Veera v. Banana Repulic, LLC (December 15, 2016), decided by the California Court of Appeal (Second Appellate District, Division Four). In Veera, the Court examined the evidence necessary to create a triable issue of fact as to whether an advertisement of a sale resulted in an actionable economic injury caused by an unfair business practice.
The plaintiffs alleged that signs in Banana Republic store windows advertising a 40 percent off sale were false or misleading because they did not state that the discount applied only to certain items. The plaintiffs introduced evidence indicating that, in reliance on the allegedly false advertising, they were induced to shop at certain Banana Republic stores and selected various items for purchase at the advertised discount. However, as the items were being rung up at the cash register, they were told for the first time that the advertised discount did not apply to their chosen merchandise. The plaintiffs claimed that, after waiting in line to purchase the selected items, and due to frustration and embarrassment, they just bought some of the items they chose even though the discount did not apply. Applying Kwikset, the Court of Appeal concluded that this evidence was sufficient to create a triable issue and defeat summary judgment.
One Justice dissented in the result. The dissent raises the interesting question of whether lost opportunity costs and time are sufficient to create injury under the UCL and/or the FAL.
Appellants were represented by Jones, Bell, Abbott, Fleming & Fitzgerald, William M. Turner, Asha Dhillon; Grignon Law Firm, Anne M. Grignon and Margaret M. Grignon.
This opinion is like Christmas and Hanukkah, sitting in an Easter Basket filled with Valentine's Day treats. And I overlooked it for two weeks! In Lubin v. The Wackenhut Corporation, the Court of Appeal (Second Appellate District, Division Four) gets deep into the wage and hour weeds in 50-page opinion that is overflowing with interesting bits. Here's the summary of how the matter ended up before the Court of Appeal:
Appellants Nivida Lubin, Sylvia M. Maresca, and Kevin Denton (together plaintiffs) filed this action on behalf of themselves and similarly situated persons, alleging defendant and respondent The Wackenhut Corporation (Wackenhut) violated California labor laws by failing to provide employees with off-duty meal and rest breaks and by providing inadequate wage statements. The trial court initially granted plaintiffs’ motion for class certification. However, as the case approached trial, the United States Supreme Court reversed a grant of class certification in Wal-Mart Stores, Inc. v. Dukes (2011) 564 U.S. 338 (Wal-Mart). Relying on Wal-Mart, Wackenhut moved for decertification. The trial court granted the motion.
Slip op., at 2.
I don't have time to try and summarize this monster opinion at the moment, but it is a must read. The Court spends a lot of time explaining why Wal-Mart is not applicable to wage and hour certification questions, notes that the Supreme Court, which decided Wal-Mart, held this year in Tyson Foods, Inc. v. Bouaphakeo, ___ U.S. ___, ___, 136 S.Ct. 1036, 1048 (2016) that statistical evidence is appropriately used in class actions, spends a substantial amount of time applying Brinker and the cases that followed to explain that variations in rates of missed meal and rest breaks, when certified based on an unlawful policy or procedure, is a damages issue, not a predominance question, and lots, lots, more!
Weinberg, Roger & Rosenfeld, Emily P. Rich, Theodore Franklin, Manuel A. Boigues; Posner & Rosen, Howard Z. Rosen, Jason C. Marsili, Brianna M. Primozic; James R. Hawkings, James R. Hawkings, and Gregory E. Mauro, represented the successful Plaintiffs and Appellants on appeal.
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:
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.
Hmmmm. That was unexpected.
In Soto v. Motel 6 Operating, L.P. (Oct. 20, 2016), the Court of Appeal (Fourth Appellate District, Division One) held in a PAGA action that Labor Code § 226(a) "does not require employers to include the monetary value of accrued paid vacation time in employee wage statements unless and until a payment is due at the termination of the employment relationship." Slip op., at 2. The Court easily concluded that the disclosure of such information on wage statements on a regular basis was not required by the current law. Nothing to see here, folks. Move along.
Spencer C. Skeen, Jennifer L. Santa Maria, and Sarah A. Williams of Ogletree, Deakins, Nash, Smoak & Stewart represented Motel 6 Operating, L.P.
If you are an attorney with wage and hour experience and have been practicing for roughly three to six years, you are welcome to reach out to me at Setareh Law Group (contact information available via state bar -- if you can't find that, you shouldn't be sending me anything anyhow). I need an associate to add to my litigation team here. Reading my blog already demonstrates your discerning eye for insightful discourse, so test 1 is complete.
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.
