Law review article contends that puntive damage claims have been precluded in class actions

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Inferential preclusion of punitive damage claims in many class actions is the premise of a forthcoming Law Review article by Professor Sheila Scheuerman of the Charleston College of Law. (Scheuerman, Sheila B., Two Worlds Collide: How the Supreme Court's Recent Punitive Damages Decisions Affect Class Actions (2008, forthcoming) Baylor Law Review, available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1127691.) Although self-described as an alternative assessment of the impact of recent Supreme Court punitive damage decisions, the article ultimately echoes the refrain advanced by, among others, members of the defense bar immediately following the United States Supreme Court’s decision in Philip Morris USA v. Williams, 127 S.Ct. 1057 (2007).

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Showing laudable common sense in Bufil v. Dollar Financial Group, Inc., a California Court of Appeal limits Alvarez v. May Dept. Stores Co.

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Greatsealcal100I must confess that, of all decisions for which I may take blame or credit, Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223 sticks in my craw as the most abhorrent and most memorable (by a slight margin).  Not that I didn't give Alvarez my all; I have no shame there.  But I lost the appeal.  Then my Petition for Review was denied by the California Supreme Court (though Justice Kennard was of the opinion that it should have been granted), and I even went so far as to file a Petition for Writ of Certiorari with the United States Supreme Court.  It was, of course, denied.  The oral argument in the Court of Appeal lasted something like 45 minutes (it went way over the allowed time), and about 40 minutes of it were non-stop questions from all three justices.  It was brutal, educational, and intensely disappointing.  Mostly disappointing.

Enter Bufil v. Dollar Financial Group, Inc. (April 17, 2008, ord. pub. May 13, 2008), issued by the First Appellate District, Division Four.  The introduction to the opinion summarizes the legal terrain:

“On the heels of the denial of class certification against employer and respondent Dollar Financial Group, Inc. (Dollar), in a suit alleging violation of meal and rest break labor laws, appellant Caren Bufil pursued class certification in a new suit which significantly narrowed the class definition. Relying on the doctrine of collateral estoppel, the trial court granted judgment on the pleadings in favor of Dollar. Also relying on this doctrine as well as traditional concerns relevant to the issue of certification, the court denied Bufil’s motion for class certification. We reverse.

(Slip op., at p. 1.) 

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COMPLEX TECH: Update on IronKey USB Security and Encryption Tool

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Ironkey_logo_web225A couple of days ago, I posted information about the IronKey USB key, a great solution for data encryption.  At the end of my post, I also mentioned the fact that my request for law firm specific information had not received a response.  I first want to note that I have since learned that my inquiry (1) didn't go to the right person, and (2) wasn't sent through the expected channel.  As soon as IronKey's team learned about my request for information through my post on this blog, I received a courteous and prompt response to my inquiry (to the extent they could do so without violating client confidences, an issue they apparently take as seriously as do lawyers).

I can report that several "BigLaw" firms have already deployed the IronKey to their attorneys.  Without knowing the identities of the firms, it is still safe to say that large firms reside at the conservative end of the spectrum.  If the IronKey won over the IT departments of some big firms, it should be able to impress everyone.  The IronKey just strikes me as a solution that is almost customized for the needs of law firms.

I also need to mention the fact that IronKey offers an managed enterprise solution that is particularly useful for larger deployments of IronKey USB devices.  The managed enterprise service provides an Administrator IronKey that allows recovery of forgotten passwords.  When the Administrator IronKey and one of the deployed keys are both attached to a computer, the Administrator can access a secure site to "reset" the password on the otherwise useless IronKey.

I don't usually get too excited by new technology tools, because, from my perspective, there is always something more they can do.  It's easy to be an armchair critic.  But here, it's hard to see where IronKey missed the boat with this device.

I strongly suggest that you at least take a look at the Ironkey.  Considering everything under the hood, it is very reasonably priced, and IronKey offers some additional features that I didn't cover in my prior post.

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A second round of thanks to all blog visitors and supporting blogs

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It took about 30 days to reach the 1,500 visit mark.  The next 1,500 visits took about 15 days.  I attribute much of the daily visit growth to the support of a number of very successful blogs, including Wage Law, UCL Practitioner, The California Blog of Appeal, ClassActionBlawg.com, and California Punitive Damages.  Other sites, like Overlawyered.com, also directed quite a bit of traffic here to read specific posts.  Justia.com pushed a fair bit of traffic here as well.  Thanks to everyone, and if I didn't list your blog as a source of referrrals, it isn't because I don't appreciate it, it is because I'm out of time to post right now.

Thank you for your support and consideration,

H. Scott Leviant, on behalf of The Complex Litigator

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In Antelope Valley Press v. Poizner, the Borello “right to control” and related factors were again applied to find an employer-employee relationship

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Greatsealcal100Because employers reap substantial savings when independent contractors can satisfy the needs of a business in place of employees, there is a financial incentive to misclassify employees as independent contractors. Decisional authority agrees that, due to the “infinite variety of service arrangements,” it is difficult to formulate a single test or standard that can determine whether an individual should be classified as an employee or an independent contractor. (S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350 [256 Cal.Rptr. 543].)

In Borello, the California Supreme Court collected its decisions on the determination of an employment relationship. Borello held that “ ‘[t]he principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired....’ ” (Borello, at p. 350.) Borello then discussed “secondary” indicia of the nature of the service relationship. First, Borello said that “ ‘[s]trong evidence in support of an employment relationship is the right to discharge at will, without cause.’ ” (Ibid.) Borello then summarized other “secondary” indicia of employment status:

Additional factors have been derived principally from the Restatement Second of Agency. These include (a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee.

(Borello, at p. 351.) Since Borello, defendants have chafed at reliance upon Borello outside of the worker’s compensation context. Those challenges have uniformly been rejected:

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COMPLEX TECH: The Ironkey USB key delivers unprecedented security for critical data

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Ironkey_logo_web225Recently, The Complex Litigator discussed the topic of data encryption to protect confidential client data.  Now, as part of the ongoing COMPLEX TECH series, The Complex Litigator will cover various data encryption solutions.  In this post, I will profile what appears to be nothing more that a slightly-larger-than-normal USB key, the Ironkey.

"Ironkey" is appropriate for a number of reasons.  First, the IronKey is designed so that it cannot be physically tampered with or disassembled by a determined hacker.  The IronKey is encased in a rugged metal housing, not plastic. It is one of the strongest USB devices you can buy.  The interior of the IronKey is filled solid with an epoxy-based potting compound. This seals in all the components and prevents the IronKey from being crushed, even under extremely high pressure. The process of trying to remove encrypted data from the flash chips would be extremely difficult, time-consuming and almost certainly destroy the chips and connections inside. Such an attempt would cause permanent, noticeable damage.

The IronKey has tested, passed, and exceeded military waterproof standards (MIL-STD-810F).  The Ironkey can survive a swim in the pool or a trip through the washing machine.

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Utilizing the rarely seen "defendant class" approach, a Mother's Day class action is filed against ungrateful children

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In honor of Mother's Day, The Complex Litigator has tracked down something special.  According to a press release on PR*Urgent, a press release service, "[a] special Mother’s Day class action suit has been filed against ungrateful children everywhere. . . ."  (See, Mother’s Day Class Action Suit Against Ungrateful Children (May 9, 2008) www.prurgent.com.)  Although not mention in the press release, the fact that this class action has been brought against "ungrateful children everywhere" suggests that, in addition to a conventional plaintiff class of mothers, the creative counsel that devised this action must have a defendant class in mind as well.  Of particular interest will be the method by which notice is provided to the defendant class if the action is certified.  Perhaps via printed notice on the side of Happy Meals.  That would be the functional equivalent of individual notice.

Additional facts are included in the complaint:

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To improve legal writing, dump the nominalizations

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At Legalwriting.net, Wayne Schiess discusses the abuse heaped upon the English language when lawyers use nouns that wanted to be verbs.  What are "nouns that wanted to be verbs?"  Wayne explains:

Nouns that wanted to be verbs go by many names: nominalizations, hidden verbs, buried verbs. I've even heard them called smothered verbs. What you call them is not important. What is important is that you learn to recognize when you've got nouns that could be verbs and train yourself to return them to their preferred state.

(Wayne Schiess, When verbs become nouns (May 9, 2008) www.utexas.edu/law/faculty/wschiess/legalwriting/.)  Wayne then provides examples of nominalizations in common legal use:

For example, this sentence contains two nouns that wanted to be verbs:

  • My expectation was that counsel would make an objection.

If we return these nouns to their verb forms, the sentence improves:

  • I expected counsel to object.

(Ibid.)  The best part of the article is the list of common nominalizations.  Take a look at the list and check off all the ones that you think you've used in your own writing.  It's painful to see how predictable we are as writers.

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CAOC and CAALA present Class Action Seminar: Secrets From the Bench and Bar

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On May 21, 2008, at the CAALA Offices, 800 W. 6th Street, Suite 700, Los Angeles, California, Consumer Attorneys of California (CAOC) Class Action Section and Consumer Attorneys Association of Los Angeles (CAALA) will present a seminar entitled "Class Action Seminar: Secrets from the Bench and Bar."  The program should have a lot to offer:

Welcome and Introduction
Co-Moderator: Paul R. Kiesel Kiesel, Boucher & Larson, LLP, Beverly Hills
Co-Moderator: Brian S. Kabateck Kabateck Brown Kellner, LLP, Los Angeles

How To Make An Impact From A Research Attorney's Perspective
Jason E. Barsanti (State) Arias, Ozzello & Gignac, LLP, Los Angeles
Kevin McReynolds (Federal) U.S. District Court, Central District

Want Your Settlement Approved? Hon. Carolyn B. Kuhl (State) Los Angeles Superior Court, Central Civil West
Hon. George P. Schiavelli (Federal) U.S. District Court, Central District

How To Manage Your Class Action
Jeff S. Westerman Milberg LLP, Los Angeles

Winning Writs
David M. Arbogast Arbogast & Berns LLP, Los Angeles

Winning Appeals
Gretchen M. Nelson Kreindler & Kreindler, LLP, Los Angeles

Access To Justice – Class Action Preservation Project
Gerson H. Smoger President-Elect, Public Justice

(See, CAOC Seminar Information page.)  The only part of this seminar that I don't get is where they came up with that Barsanti fellow.  Who is this guy?  Oh, yes, he's in that office next to mine.  I remember now.  Seriously, congratulations to Mr. Barsanti.

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When legislators decide to "fix" things, the remedy is often worse than the ailment

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Paul KarlsgodtClassActionBlawg.com has a short post, entitled "Congressmen seek investigation on practices of class action lawyers: A good use of taxpayer dollars," that says a lot.  Referring to a CFO.com news story, ClassActionBlawg.com offers a modest proposal to the legislators that want to put the entire class action system under the microscope, all on account of recent media coverage of a few bad apples (Lerach, et al.).  (See, Plourd, On the Hill, Trying to Put Plaintiffs' Bar on the Defensive (May 6, 2008) www.cfo.com.)

The post on ClassActionBlawg.com is short, so I repeat the core of it here:

Certainly, there have been some high-profile abuses among members of the plaintiffs’ class action bar recently. But these are examples of individual arrogance and greed, not evidence of an epidemic in need of a Congressional investigation–especially in light of the myriad other things Congress could be doing these days. The acts of a few bad apples shouldn’t ruin the bunch.

Among other things, Boehner and Smith seek “[r]eforms that Congress can make to rid the judicial system of [class action] abuses.” If you really want to spend government money to prevent class action abuse, here’ s a modest proposal from a class action defense lawyer’s perspective: try better funding for the courts. If there were more, better-paid judges available to give the time and thoughtful analysis needed in carrying out their function as gatekeepers rather than simply doing whatever they can to manage their overflowing dockets, maybe there wouldn’t be any incentive to pursue frivolous class actions and abusive tactics. Just an idea.

It is worth emphasizing that Paul Karlsgodt practices primarily on the defense side of class actions.  The class action device isn't "broken" because of few bad actors.  Every profession has them.  Let's entrust our court system to talented jurists that are appropriately compensated.  Let's give them the resources they need to do their job in an orderly manner, and let's give them facilities that aren't crumbling and overcrowded.  The Complex Litigator seconds ClassActionBlawg.com's proposal.

[Via ClassActionBlawg.com]

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