a California-centric collection of comments and resources about complex litigation and class action practice
Episode 32 of the Class Re-Action Podcast is now out. We discuss Magadia v. Wal-Mart Associates, Inc. (9th Cir. May 28, 2021). And I try to get Linh to let me explain California’s wage & hour laws to employers, but she doesn’t let me.
Episode 31 of the Class Re-Action Podcast is now out. We discuss Donohue v. AMN Services, LLC (February 25, 2021). And Killer Robot Dogs. And my eventual Evil Mastermind lair in a secret glacier base.
I though I would call this one out just because UCL cases don’t usually arrive so contemporaneously with current events. In Murphy v. Twitter, Inc. (Jan. 22, 2021), the Court of Appeal (First Appellate District, Division One) examined claims, including a UCL claim, that Twitter violated users’ rights by permanently suspending accounts.
Without getting deep into the discussion provided by the Court, it should not be surprising that the Court found that Section 230 of the Communications Decency Act of 1996 provided broad immunity for Twitter’s editorial functions. Of course, this just highlights the incongruity of how Section 230 works, since its passage was predicated on the promise by large tech companies that they would not behave like traditional publishers in exchange for the grant of immunity for what users post on their platforms. Right now, Twitter (and Facebook, and others) get immunity that other publishers do not AND they are restricting content on a viewpoint basis.
Interestingly, and with an astounding bit of hubris, Twitter argued that the Plaintiff’s claims violated the First Amendment. The Court declined to address the constitutional question when Section 230 was sufficient to resolve the case in the Court’s view. I just think that’s pretty ballsy of Twitter to throw the First Amendment argument out there when it denies that users have any such rights (and there is a good argument that it is wrong about that, now that it has decided to act as a partisan favoring one political party over another).
As opinions go these days, the California Supreme Court’s opinion in Vasquez v. Jan-Pro Franchising International, Inc. (Jan. 14, 2021) is a short one, at about 16 pages of actual text. It is also a unanimous opinion. The Ninth Circuit asked the Supreme Court to answer whether the Court’s decision in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 (Dynamex) applies retroactively. The California Supreme Court concluded that it was retroactive in application:
In concluding that the standard set forth in Dynamex applies retroactively — that is, to all cases not yet final as of the date our decision in Dynamex became final — we rely primarily on the fact that Dynamex addressed an issue of first impression. It did not change a settled rule on which the parties below had relied. No decision of this court prior to Dynamex had determined how the “suffer or permit to work” definition in California’s wage orders should be applied in distinguishing employees from independent contractors. Particularly because we had not previously issued a definitive ruling on the issue addressed in Dynamex, we see no reason to depart from the general rule that judicial decisions are given retroactive effect.
Slip op., at 2. Read the decision if you want to know all about the general rule of retroactive effect and issues of first impression.
Tomorrow, in VAZQUEZ (GERARDO) et al. v. JAN-PRO FRANCHISING INTERNATIONAL, INC., Supreme Court Case No. S258191 ((9th Cir. No. 17-16096; 939 F.3d 1045; N.D. of Cal. No. 3:16-cv-05961-WHA), the California Supreme Court will answer the following question for the Ninth Circuit: Does the decision in Dynamex Operations West Inc. v. Superior Court (2018) 4 Cal.5th 903, apply retroactively?
Surprise! The Ninth Circuit is willing to protect the Constitution from the totalitarian forces of darkness. In Calvary Chapel Dayton Valley v. Sisolak (9th Cir. Dec. 15, 2020), the Ninth Circuit told Nevada’s Governor that his imperial tendencies have to yield to the Constitution when strict scrutiny is applied to an order that discriminates specifically against churches. Something of a beat down in the lecture delivered to his wanna-be highness.
I’m really tired of the relentless power grab with no end in sight. Two weeks to “bend the curve” is on its way to one year of “do whatever I say even when I don’t do it myself.” Is the Wuhan coronavirus (it came from China) a tough respiratory virus? Sure. Does that mean we suspend life? No. Life does not come with a guarantee of perfect safety, and we don’t conduct ourselves like we believe that in a wide array of activities. We drive. People die every day in car crashes. Every year people die from flu virus complications in the tens of thousands. We’ve never shut things down for any of that. But THIS time, it’s different.
So here’s my question that I have yet to get a clear answer from anywhere. What’s your exchange rate on lives ruined to delay one coronavirus case? People have lost businesses; they’ve bankrupted themselves trying to preserve what they’ve built. How many of those personal and business failures are you willing to trade to claim that you “saved” one life from coronavirus (I say “saved” because that “saved” person could fall ill next week or next month, despite all the closures, and mask mandates, and everything else)? Would you be willing to financially ruin 100 people to “save” one life? How about 1,000? 10,000? Would you claim that you are willing to financially ruin 100,000,000 people in the U.S. if it would save one extra life? If “yes” to that, why do you allow people to drive? About 10 people die each day, on average, in car crashes in California (in normal traffic times). Would you be willing to order everyone to stay home and lose their jobs and businesses to stop that? If “no,” why not? If you are a pansy-assed chicken that suddenly decided that we need perfect safety from a disease, why don’t you demand the same from all risks?
I know. I won’t get a cogent answer to this hypocrisy from anyone. I’ll be insulted and told that I am a death monger who’s against “Science!” But I won’t get a real answer.
It’s the big 30! Episode 30 of the Class Re-Action podcast is now out. We’re going to have to claim to be on Episode 29 for the next 10 Episodes, however. This one is a little longer than we planned, but it’s good stuff.
Hear the wonders of our pontification of what happened with arbitration agreements in two recent decisions right here, in Episode 29 of the Class Re-Action podcast. After you listen, be sure to leave a comment about how unbelievably exciting the episode was, as well as your favorite flavor of Icee.
Hot off the presses, Episode 28 of the Class Re-Action podcast is here…for all your insomnia needs.
Hope you enjoyed your Fourth of July.
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.
