BREAKING NEWS: Petition for Review granted in Brinker Restaurant v. Superior Court (Hohmbaum)

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Greatsealcal100The Supreme Court has just GRANTED the Petition for Review in Brinker Restaurant Corporation, et al. v. Superior Court (Hohnbaum).  View the Supreme Court docket here.  Aside from Justice Werdegar, who was absent and did not participate, all other justices voted in favor of the Petition.  As I obliquely suggested in this post, so much for Brinker Restaurant Corporation's prediction that this matter would quietly return to the Superior Court after turning wage & hour class action precedent on its head.

UPDATE:  This post has been marked as "featured" so as to appear first on the home page of this blog while interest in this news remains high.

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Governor Schwarzenegger issues veto of e-discovery reform bill, AB 926

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Last week, California Governor Arnold Schwarzenegger issued a veto of the much anticipated e-discovery reform bill, AB 926, despite the passage of the bill without a single "no" vote (I didn't check, but maybe somebody voted "present").  After the Governor issued similar vetoes for over 300 bills, it has been speculated that the vetoes are intended to encourage the legislature to pass a budget that deals with the deficit problem in California (as an aside, if we tied every legilator's ability to run for any state office or receive any pay or benefits to the passage of a [projected] balanced State budget, what are the odds that we'd have a balanced budget every year?).  (Cheryl Miller, Schwarzenegger's Veto: A Raw Deal for E-Discovery? (October 3, 2008) www.law.com.)  The new rules tracked the federal rules and would spell out how and when records from fax machines, computer databases, e-mails and cell phones should be exchanged in litigation. They also set up procedures for settling disputes over data that one party contends are trade secrets or privileged attorney work-product.  Legislators promise to reintroduce the bill when the Governor isn't as cranky.

[Via ElectronicDiscovery]

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Apple and AT&T continue to receive class action grief over iPhone 3G

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The benefit of having one's own blog is the ability to choose the content.  I happen to have an iPhone 3G.  I was one of those thralls to commerce that actually stood in line (admittedly, a short line) to get the Jesus Phone version 2.0.  That's why I am interested in all the class actions that have been filed against Apple and AT&T over the phone's performance and design.

After the iPhone 3G was released, there was a substantial bit of consumer grumbling that AT&T's faster 3G network was not univerally available.  On August 19, 2008, Alabama resident Jessica Alena Smith filed the first know class action complaint yesterday against Apple, "alleging that the new iPhone's 3G performance and reliability has been subpar, despite the claims made by Apple's aggressive marketing campaign."  (Jacqui Cheng, AT&T hit with yet another iPhone 3G lawsuit (August 20, 2008) www.arstechnica.com.)  Around the beginning of September, a second class action lawsuit was filed against Apple and AT&T.  ABC News reported:  "The main issue is that AT&T's 3G network isn't strong enough to support the millions of people who are iPhone 3G users," Michael Rott, a partner with the San Diego-based law firm Hiden, Rott & Oertle, LLP, told ABCNews.com. "Apple violated [California law] by misrepresenting the actual speed and performance of its 8G and 16G models."  (Ki Mae Heussner, IPhone 3G Draws Second Class Action Suit (September 4, 2008) abcnews.go.com.)

A third class action suit was filed in New Jersey.  A fourth, filed this week, alleges that the iPhone does not live up to Apple's and AT&T's claims of speed and performance and that the rear plastic housing in the iPhone 3G is defective, resulting in hairline cracks.  (Chris Foresman, iPhone 3G lawsuit blames Apple, AT&T for cracks, slow speed (September 23, 2008) www.arstechnica.com.)

I don't want to write off these class actions at such and early stage, but it seems to me that connectivity issues will vary widely by location, rendering class treatment over large geographic areas challenging at a minimum.  My ancecdotal experience is that the two software updates issued by Apple both improved the performance of the phone, including its 3G connectivity performance.  And while everyone is lamenting AT&T's terrible 3G coverage, I'm writing this post after connecting with my AT&T 3G modem when my cable internet was having issues tonight.  My iPhone works fine on 3G here, it works fine on 3G in Las Vegas, and it works fine on 3G in New Orleans.  Basically, the iPhone 3G is awesome (unless you have fat fingers, in which case you should look elsewhere and save yourself the pain of typing on a virtual keyboard).

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Media coverage of Martinez, et al. v. Regents of t...

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Martinez, et al. v. Regents of the University of California, et al. (September 15, 2008, Third Appellate District) is starting to generate a fair bit of press/media coverage:

This is just a sample of the dialog and reporting that are developing right now; more commentary will surely follow.

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CAOC Board of Governors elections begin today

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In between flying back and forth across the country for depositions, I took some time out to exercise my right to vote.  It wasn't as exciting as, say, secretly casting a vote for hottest VP candidate in history.  No, nothing that interesting.  I was voting online in CAOC's Board of Governors election.  But this relatively mundane event took on greater personal significance for me this year, as I happen to be one of the candidates in the Los Angeles district (lucky me - I am in one of a handful of contested districts).  If you are a CAOC member and haven't voted yet, remember: "a vote for me is a vote for change."  This is quite literally true, since I've never served on CAOC's Board of Governors before.

Together, we can make a difference.

Help me shake things up.

I'll fight for you!

Continuing Legal Education for everyone!

I'm just testing out some powerful campaign slogans.

I approve this message (because I wrote it).

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Sometimes "complex litigation" is about the complexity of the legal issues and not just the size of the pile of dollars

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Greatsealcal100Most cases described as "complex litigation" involve some combination of numerous parties or very large amounts of money.  Sometimes, though, "complex litigation" is primarily about the difficult nature of legal issues or the passion with which opposing parties vie over a difficult policy having wide-reaching consequences.  Jonathan L. v. Superior Court (August 8, 2008) is one one such case.

Jonathan L. addresses, in part, whether home schooling is permissible in California.  The details of the Court's analysis are outside the core areas of coverage for this blog.  However, the obviously difficult time the Court of Appeal had with this decision is an opportunity to learn something about what it takes to prevail in such hotly contested waters.  The listing of Amici Curiae spans three pages.  The August 8, 2008 Opinion follows after rehearing was granted by the Court.  Regarding that procedural history, the Court said:  "We filed our original opinion on February 28, 2008, granting the petition on the bases that: (1) California statutory law does not permit home schooling; and (2) this prohibition does not violate the U.S. Constitution."

On rehearing, the Court reversed itself, concluding that home schooling is permissible in California (my daughter is in trouble now).  You don't see u-turns like that happen with any regularity in appellate practice.  If you have any spare time, I suggest that you take a look at the opinion for the insight it offers into a Court struggling to get a very difficult decision right.  In this instance, I think their hard work resulted in the correct outcome.

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Legal Pad reports on California Labor Federation letter to Labor Commissioner

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In a post entitled Bradstreet Riles Labor Unions.  High Court Ahead?, Legal Pad, a legal news blog, reported on the strong reaction from labor unions to Bradstreet's memo declaring Brinker to be "binding precedent."  The Complex Litigator's scoop on the response to Bradstreet's memo was featured prominently in Legal Pad's reporting.

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Study by wage & hour compliance training company finds massive problem with wage & hour compliance

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For what it's worth, in a recent survey of more than 2,000 legal, ethics, and HR professionals, "60 percent of respondents reported that either their employees were not accurately reporting all hours worked, or they didn't know if they were. Additionally, more than 40 percent of respondents were not confident that their employees even knew how to file a wage and hour complaint . . . ." (August 5, 2008 Press Release.)  The catch to this study is that it was conducted by ELT, a company that provides online wage & hour/employment law compliance training.  But while there is at least a bias on the part of ELT, given its line of work, its conclusion is anecdotally supported by the comparatively high percentage of wage & hour class action filings (as against all other types).

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BREAKING NEWS: California Labor Federation confronts Labor Commissioner over bias/haste in issuing Brinker memo

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On July 30, 2008, this blog reported that the DLSE had already updated its enforcement materials in response to Brinker Restaurant Corporation, et al. v. Hohnbaum, et al (July 22, 2008).  The information now coming to light is significantly more troubling than a simple revision of DLSE enforcement materials.  In a July 25, 2008 Memorandum entitled Binding Court Ruling on Meal and Rest Period Requirements, Angela Bradstreet, the Labor Commissioner, described Brinker as a “binding court ruling,” without noting that Brinker is one of two decisions that interpret regulations governing meal breaks (the other being Cicairos v Summit Logistics, Inc. (2005) 133 Cal App.4th 949, which still stands as valid authority).

The California Labor Federation was none too pleased with the July 25, 2008 Memorandum.  In strongly-worded correspondence of July 30, 2008, the California Labor Federation took Ms. Bradstreet to task for what it persuasively described as a biased, pro-employer approach from the very regulatory body charged with enforcing employee-protective laws and regulations.  And by fortunate happenstance, I've stumbled across a copy of that correspondence (with attachments):

The correspondence can also be downloaded in pdf format here.  The letter is definitely worth reading.

Because of the significance of this issue, I intend to set this post so that, for at least the next week, it appears as the first post on The Complex Litigator (assuming nothing else demands top billing in that time).  So be sure to check below to see new posts.

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Brinker Restaurant Corporation, et al. v. Hohnbaum, et al. covered in Daily Journal

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Greatsealcal100Brinker Restaurant Corporation, et al. v. Hohnbaum, et al. (July 22, 2008) keeps on making news.  Yesterday, I attempted to collect as much coverage as I could in one post.  However, Brinker isn't remotely done making news.  In today's edition of the Daily Journal (July 25, 2008), D. Gregory Valenza asks, "Meal and Break Class Actions: On the 'Brink' of Extinction?"  (Subscription required.)  Mr. Valenza's article follows closely on the heels of a July 23, 2008 article by Daily Journal Staff Writer Pat Broderick, which briefly summarized the core of the Brinker decision.

Mr. Valenza's analysis is substantially more thorough than the July 23, 2008 article, but it is, essentially, a further summary of the Court's primary holdings.  While the article discusses several sources of law at issue in the Brinker decision, Mr. Valenza doesn't delve into the competing policies that are suggested but left unresolved by that opinion.  In fact, no commentator has yet addressed the full set of economic incentives at play within and without the Brinker world view of wage & hour class actions.  The Brinker opinion opens the door to this analysis but fails to step through.  Instead, the Court picks one of many economic incentives at work to justify its conclusion:  "It would also create perverse incentives, encouraging employees to violate company meal break policy in order to receive extra compensation under California wage and hour laws."  (Slip op., at p. 44, quoting Brown v. Federal Express Corp. (C.D.Cal. 2008) ___ F.R.D. ___ [2008 WL 906517 at *6].)  In selectively discussing such incentives, the Court overlooks employer economic incentives to cheat the system and employee economic incentives to adhere to a meal break policy where job loss is the consequence for failure to do so.  These incentives are likely far stronger, due to the amounts at issue, than one employee's desire to obtain an extra hour of pay.

If policy considerations are going to drive the judicial determination of the meal and rest break obligations, the Brinker decision must be viewed with some measure of skepticism until the full picture of incentives is faily presented and fully analyzed.

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