Watching how they make the sausage...Eastern District set to try Taco Bell wage & hour class actions

Class actions don't make it to trial all that often.  But when they get close, things can get pretty ugly.  In Medlock, et al. v. Taco Bell Corp., et al., the United States District Court for the Eastern District of California (Magistrate Stanley A. Boone presiding) issued an Order on nine motions in limine filed by the Plaintiffs. See 2016 WL 430438 (February 4, 2016).

In Medlock, the Court certified three classes, on claims for meal period violations, rest period violations, and improper time record adjustments.  With trial approaching on February 22, 2016, the Plaintiffs filed nine motions in limine to exclude expert testimony (motions 1 and 2), rates of meal and rest period violation (motion 3), challenges to the authenticity of raw time clock data (motion 4), evidence of job performance or discipline (motion 5), evidence related to elements of class certification (motion 6), evidence of explicit instructions to class members to skip meal or rest periods (motion 7), evidence of the likeability of working at Taco Bell (motion 8), and alterations to the testimony of Taco Bell's Rule 30(b)(6) designee.  The court denied all motions other than motion 6, and that motion was limited to ordering that the defendants could not discuss the Rule 23 elements before the jury.

Considering the evidence the Court described as potentially probative, it appears that the jury will get to hear the kitchen sink of Defendants' reasons why meal and rest periods were missed. 

And yes, I am not dead.

STUPIDERER: Two North Carolina teens hit with child porn charges after consensual sexting

We're well on our way to self extinction by using unnatural selection to make ourselves as dumb as possible. Two teens sending dirty pictures to each other should be a parental matter, not a criminal case with both willing participants getting charged with adult felonies.

Source: Arstechnica

Episode 15 of the Class Re-Action Podcast is now available

We are up to Episode 15 of the Class Re-Action Podcast, available here.  In case you missed the explanation previously, shows will now run between 30 and 45 minutes, due to changes in MCLE requirements.  I'm working on blanket provider status so that each show will qualify as MCLE.  However, nobody wants reading material as homework, so we are going to stay under an hour an avoid that added complication.

Article III federal judge takes prosecutor to task for lying in court

In an article from December 2014, Sidney Powell offers a colorful description of a proceeding in which a federal judge excoriated a federal prosecutor for lying in his courtroom.  Sidney Powell, Judge Kevin Thomas Duffy Blasts Federal Prosecutor For Lying in Court (December 16, 2014)  Sidney Powell worked in the Department of Justice for 10 years and was lead counsel in more than 500 federal appeals. She is the author of Licensed to Lie: Exposing Corruption in the Department of Justice.  Sadly, these sorts of abused of power appear to be increasing in frequency (or the technology age has rendered them easier to detect and widely disseminate).


Addiction in the Legal Profession

The legal profession, as it is currently structured, is rotting at its core. High rates of substance abuse and addiction among lawyers are the symptoms of deeper problems, precipitated by long hours, tight deadlines, and devastating consequences for failure. The statistics on substance abuse by lawyers are grim. However, before tackling the statistics, some definitions are in order:

Drug dependence, also known as addiction, is a chronic disease. It is progressive, and occurs when the body becomes physically dependant upon a drug.  Drug addiction in any form – from cocaine to methamphetamine to prescription pain relievers and stimulants -changes the brain. Individuals who are dependent upon drugs may not be able to control how much they use and continue to use drugs despite serious consequences. 
Drug abuse occurs when a person is not physically dependent upon a drug, but does exhibit problems with a particular drug. Someone who abuses drugs may use too frequently and experience problems due to drug use.

Substance abuse problems within the legal profession likely arise with such high frequency due to an underlying high rate of depression. According to CNN, "Suicide is a hazard so real that it is the third leading cause of death in the profession. By comparison, suicide is only the 10th leading cause of death in the general population." Multiple studies, including one conducted at Johns Hopkins, found that lawyers have the highest rate of depression of any profession. Where there is smoke, there is fire, and where there is severe depression, there is substance abuse.

Consider for a moment how the statistics track. Lawyers suffer depression at roughly three times the rate of the general population and experience substance abuse problems about twice as frequently as the general population. In a study published in the International Journal of Law and Psychiatry it was found that the rate of alcohol abuse for attorneys was 18% compared to 10% in the general population. Benjamin, G.A. H., Darling, E.J., and Sales, B. (1990), The prevalence of depression, alcohol abuse, and cocaine abuse among United States lawyers, International Journal of Law and Psychiatry, 13, 233-246. In a 1990 study conducted by the North Carolina Bar Association, 17% of the 2,600 attorneys surveyed admitted to drinking 3-5 alcoholic beverages per day. In the state of Washington, a study once again found that 18% of the 801 lawyers surveyed were problem drinkers.

And lawyers with substance abuse are also more likely to have an additional psychological disorder beyond substance dependence. In a sample of individuals attending a recovery center specializing in impaired professionals, 60% of attorneys had a co-occurring psychological disorder compared to 46% of healthcare professionals and 28% of nonprofessionals. Of attorneys with a co-occurring disorder, 32% had Major Depression, 14.6% had Bipolar Disorder, and 13.4% had an anxiety disorder. Sweeney, T.J., Myers, D.P., Molea, J. (2004), Treatment for attorneys with substance related and co-occurring psychiatric disorders: demographic and outcomes, 23, 55-64.

Not every depressed person becomes a substance abuser, but depressed individuals are more susceptible to the lure of temporary mood altering substances including alcohol and drugs, and the consequences to lawyers and their clients are substantial. Studies in Canada and in the United States estimate that roughly 60% of discipline prosecutions involve alcoholism or other substance abuse problems. Similarly, something over 60% of all malpractice claims involve substance abuse. Yet another study has suggested that 90% of serious disciplinary matters involve substance abuse. Substance abuse in the legal profession is an incredibly costly problem.

The current structure of the the legal profession is like gasoline on a fire for these serious issues:

  • The average lawyer works 60-80 hours per week;
  • People who work more than 50 hours per week are three times more likely to abuse alcohol;
  • One third of lawyers have been diagnosed with mental disorders (including forms of depression and related mental health conditions);
  • The average rate of depression in U.S. adults is about 7%, but lawyers suffer depression at about three times that rate, or 20%, and law students, according to some studies, suffer depression at about twice that rate, or 40%.
  • 70% of addicted lawyers think they can manage their problem on their own (the ultimate "Type A" personality at work);
  • 40% of lawyers fear that seeking treatment for an abuse problem would hurt their reputation in the legal profession.

Addiction is a tremendously difficult problem to tackle, even with the right support system in place. While there are no easy fixes, the California State Bar offers help through the Lawyer Assistance Program. Confidential support is available. If you are struggling with substance abuse issues in another jurisdiction, many states offer similar assistance through their bar programs.