Google offers e-discovery resources (this time as a Defendant)

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Complex litigation is a matter of degree.  A matter can be complex because of the number of parties (e.g., construction defect cases), procedural intricacies (e.g., class actions) or the novelty of legal issues involved.  But sometimes a matter becomes complex just because two juggernauts are litigating over stakes so large that everything in their litigation is larger than life - litigation on steroids.

The complex nature of an action isn't always self-evident; however, one occasionally encounters a lawsuit where the briefest summary of the action is enough to indicate that the matter will probably be complex:

“Plaintiffs in these related lawsuits (the “Viacom action” and the “Premier League class action”) claim to own the copyrights in specified television programs, motion pictures, music recordings, and other entertainment programs. They allege violations of the Copyright Act of 1976 (17 U.S.C. § 101 et seq.) by defendants YouTube and Google Inc., who own and operate the video-sharing website known as “YouTube.com”.

(Slip op., at pp. 1-2, footnote omitted.)  In the Viacom action, the Plaintiffs moved to compel Google (and its business YouTube) to produce electronic information that shocks the conscience in its scope and grandeur:

“Plaintiffs move jointly pursuant to Fed. R. Civ. P. 37 to compel YouTube and Google to produce certain electronically stored information and documents, including a critical trade secret: the computer source code which controls both the YouTube.com search function and Google’s internet search tool “Google.com”.

(Slip op., at p. 4.)  In addition to requesting Google's heart on a platter (its search code), which, according to submitted evidence "is the product of over a thousand person-years of work," the Viacom Plaintiffs sought other, highly confidential trade secret information from Google, including:

  • The computer source code for a newly invented “Video ID” program wherein copyright owners to furnish YouTube with video reference samples from which YouTube can use its proprietary search code to locate video clips in its library that have characteristics sufficiently matching those of the samples as to suggest infringement. 
  • Copies of all videos that were once available for public viewing on YouTube.com but later removed for any reason. 
  • The “User” and “Mono” databases that contain information about each video available in YouTube’s collection, including its user-supplied title and keywords, public comments from others about it, whether it has been flagged as inappropriate by others (for copyright infringement or for other improprieties such as obscenity) and the reason it was flagged, whether an administrative action was taken in response to a complaint about it, whether the user who posted it was terminated for copyright infringement, and the username of the user who posted it. 
  • The schemas for the “Google Advertising” and “Google Video Content” databases. (A schema is an electronic index that shows how the data in a database are organized by listing the database’s fields and tables, but not its underlying data. 
  • Copies of all videos designated as private by YouTube users. 
  • And, perhaps most significantly, Defendants’ “Logging” database, that contains, for each instance a video is watched, the unique “login ID” of the user who watched it, the time when the user started to watch the video, the internet protocol address other devices connected to the internet use to identify the user’s computer (“IP address”), and the identifier for the video.

The Court granted significant portions of the motion to compel:

“(1) The cross-motion for a protective order barring disclosure of the source code for the YouTube.com search function is granted, and the motion to compel production of that search code is denied;

(2) The motion to compel production of the source code for the Video ID program is denied;

(3) The motion to compel production of all removed videos is granted;

(4) The motion to compel production of all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website is granted;

(5) The motion to compel production of those data fields which defendants have agreed to produce for works-in-suit, for all videos that have been posted to the YouTube website is denied;

(6) The motion to compel production of the schema for the Google Advertising database is denied;

(7) The motion to compel production of the schema for the Google Video Content database is granted; and

(8) The motion to compel production of the private videos and data related to them is denied at this time except to the extent it seeks production of specified non-content data about such videos.

(Slip op., at pp. 24-25.)

Privacy concerns have been front and center since the issuance of the Order.  (See, e.g., Rob Pegoraro, Court Invites Viacom to Violate YouTube Users' Privacy (July 7, 2008) www.washingtonpost.com; Kenneth Li and Eric Auchard, Court order on YouTube user data fans privacy fears (July 4, 2008) www.reuters.com.)  In theory, data about IP addresses would allow a reconstruction of the history of video viewing at each computer on the Internet.  In practice this would be more difficult in many (but not all) instances, since most Internet users have dynamic IP addresses (IP addresses that change), at least at home.

Complex?  Undoubtedly.  Any discovery Order that requires the production of terabytes of data is sufficient to define an action as complex.  But Google isn't known to be bashful, so the fireworks may have just begun.

The full Order is embedded below:

 

You can also download the Order directly.

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COMPLEX TECH: Windows Live Writer is an impressive blogging tool worth testing

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While listening to one of the many podcasts I subscribe too, I hear a recommendation for the Microsoft blogging tool, Windows Live Writer.  The recommendation was from Paul Thurrott, of SuperSite for Windows fame, so I took the suggestion seriously and downloaded the tool.  The one word review: amazing.

What's the relevance to complex litigation practice?  Technology-assisted efficiency.  If you are reading this site, you know that technology is one dividing line between success and failure in modern law firms.  Within the huge topic of technology are the many sub-parts:  practice management tools, document management tools, billing programs, contact management programs, and so forth.

Marketing by law firms is now stepping across that digital divide, creating another segment of "haves" and "have nots."  The "haves" understand that an Internet presence is critical.  A subset of those understand that a web site, alone, is insufficient, because relevant, frequently refreshed content is king in the eyes of Google (and what Google decrees, the rest of the search Internet follows).  Hence, blogs.  Blogs are one publishing platform and paradigm that encourages frequent, topical content publication.

Having decided to blog, attorneys can still benefit from efficiency tools.  That's where Windows Live Writer joins the mix.  Windows Live Writer is a local application that is dedicated to content creation for blogs.  When you first install Windows Live Writer, and assuming you have an existing blog, it asks for the url of the blog and your logon information.  The software quickly analyzes the blog, the service it resides on, and its settings.  It then downloads all of the customized settings into Windows Live Writer.  In my case, it correctly detected my blogging service (TypePad), my customized styles settings, and my customized categories.  Once the analysis is complete, you can then compose posts, complete with the blog's customized settings in place, save drafts of a post, and upload the post when finished (or save drafts to finish later).

Windows Live Writer works with Microsoft Spaces, Sharepoint, Blogger, TypePad, LiveJournal, Movable Type, WordPress, Community Server, dasBlog and Radio Userland, among others.  The beauty of this niche application is that it does what it sets out to do incredibly well, without getting in the way of itself.  The User Interface is clean and intuitive.  You can even add more than one blog to the program - a boon if, for example, you manage multiple blogs.

For those users suffering misery with the TypePad editor update, this may be a truly welcome relief.

Download Windows Live Writer at the Windows Live site.

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The Complex Litigator reached the 100 post milestone

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100postsbadge125 The Complex Litigator turns 100 today, just in time to celebrate our nation's birth.  But in all seriousness, thanks to everyone that has supported this new blog, visited this blog, commented about it, complimented it, and passed it on to colleagues.  I may catch my breath over the long, holiday weekend, then it's right back on the road to 200.

Roughly 6700 visits in first three months isn't half bad, if I do say so myself (and I do).  But The Complex Litigator won't let its guard down.  I'll continue to watch for new case law relevant to class actions and complex litigation.  I'm working on a major post concerning the changing of the guard at major complex litigation "big law" firms.  I'll continue to review major pieces of software that can assist in a complex litigation/class action practice - Acrobat 9 is next on deck.  And I'll continue to test "web 2.0" services that might be a good fit in a modern practice.

Thanks for visiting and all the support,

H. Scott Leviant
The Complex Litigator

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Class action counsel must be as diligent reviewing potential conflicts as their defense counterparts

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Defense counsel are well acquainted with the concept of conflicts checks at the outset of a matter.  Most defense firms with more than a handful of attorneys have electronic systems in place that track all past representations for the purposes of assessing potential conflicts when a matter is first offered to a firm.  Plaintiff-side practitioners, at least in my observations, are less rigorous about conflict checks, due, in part, to the infrequency with which conflicts arise in a predominantly plaintiff-side practice.  While the infrequency of conflicts allows for laxity without consequence in most cases, when conflicts do surface, the results can be painful.

For example, in Baas, et al. v. Dollar Tree Stores, Inc., (N.D. Cal. Case No. 07-03108 JSW), plaintiffs' counsel undertook to represent two hourly employees in a putative class actions against Dollar Tree Stores, Inc. (“Dollar Tree”), contending that Dollar Tree altered the time records of its employees and, thus, failed to compensate employees for all of the time that they actually worked.  Plaintiffs moved for class certification.  The Court denied the motion on the sole ground that a conflict of interest by counsel prevented them from adequately representing the class.

Rule 23(a)(4) requires that "the representative parties will fairly and adequately protect the interests of the class."  (Fed. R. Civ. P. 23(a)(4).)  Adequacy of representation is a two-part analysis, which asks "(1) Do the representative plaintiffs and their counsel have any conflicts of interest with other class members, and (2) will the representative plaintiffs and their counsel prosecute the action vigorously on behalf of the class?"  (Staton v. Boeing Co. (9th Cir. 2003) 327 F.3d 938, 957.)  In Baas v. Dollar Tree, the first question was answered "yes," leading the Court to conclude in its April 1, 2008 Order that counsel could not adequately represent their clients.  The Court explained the source of the conflict:

“Dollar Tree argues that Plaintiffs’ counsel’s representation of John Hansen (“Hansen”), the manager of the store in which named Plaintiffs Baas and Lofquist used to work, in another lawsuit against Dollar Tree creates a conflict of interest. “The responsibility of class counsel to absent class members whose control over their attorneys is limited does not permit even the appearance of divided loyalties of counsel.” Kayes v. Pacific Lumber Co., 51 F.3d 1449, 1465 (9th Cir. 1995) (quoting Sullivan v. Chase Inv. Serv. of Boston, Inc., 79 F.R.D. 246, 258 (N.D. Cal. 1978)). As the court explained in Kayes, “[t]he ‘appearance’ of divided loyalties refers to differing and potentially conflicting interests and is not limited to instances manifesting such conflict.” Id.

(Opinion, at p. 3.)  After setting forth various rules of professional conduct, the Court explained where the conflicts could materialize in the dual representations:

“Here, Plaintiffs’ counsel’s client Hansen is a witness in this matter. Lofquist testified in her deposition that Hansen was aware that she worked off the clock in his presence and that Hansen encouraged her to do so. (Declaration of Beth Hirsch (“Hirsch Decl.”), Ex. F at 247:4-248:17. Hansen testified that Lofquist was paid for the time she worked and that he never asked anyone to come in and work off the clock. (Hirsch Decl., Ex. D at 547:23-548:16). He further testified that he knew it was against Dollar Tree’s policy to misrepresent the time employees worked or took breaks. (Id. at 648:13-17). To reconcile the testimony of Hansen and Lofquist, Plaintiffs’ counsel will either need to portray Hansen as a liar or as a manager who knowingly violated his company’s policies. Plaintiffs counter that Plaintiffs’ and Hansen’s claims and class actions are distinct and do not conflict with one another. Plaintiffs further argue that because Hansen is merely involved as a witness in this matter, he is not placed in any jeopardy of being liable. Plaintiffs thus focus on the existence or absence of any conflicts between the two cases and fail to address the duty of loyalty Plaintiffs’ counsel owe to all their clients.

From the testimony in the record, it appears as Plaintiffs’ counsel will either have to cross-examine Hansen and impeach his credibility, or “soft-pedal” their examination of Hansen to the detriment of their representation of the class members in this action. Even if this conflict of interest could be waived, Plaintiffs’ counsel would need to obtain waivers from every class member, which, as a practical matter, they cannot do from the absent class members. Therefore, the Court concludes that Plaintiffs have not demonstrated their counsel would adequately represent the class as required by Rule 23(a)(4). Failure to satisfy any one of Rule 23’s requirement precludes class certification. Rutledge v. Electric Hose & Rubber, Co., 511 F.2d 668, 673 (9th Cir. 1975); see also Sipper v. Capital One Bank, 2002 WL 398769, *4 (C.D.Cal. Feb. 28, 2002) (denying motion for class certification based on plaintiffs’ counsel’s conflict of interest). Accordingly, the Court denies Plaintiffs’ motion for class certification.

(Opinion, at p. 5.)  In a nutshell, plaintiffs' counsel reached one rung too far and were cut off at the knees for it.  Had they fully explored the potential for conflict at the outset of the second case, they may have concluded that a referral of the case to another firm was the better course of action.

The full opinion is included below:

Read this document on Scribd: 2008-04-01 Order Dollar Tree

Here is a link to the Order for visitors without flash:  April 1, 2008 Order Denying Certification.

UPDATE:  A reader informs me that the Acrobat.com widget is not functioning correctly.  I've had some problems with it myself in getting this post up.  It is possible that the pdf file contains some sort of error.  If I can't get it fixed, I may have to see if iPaper works any better with this file.

UPDATE 2:  It appears that Acrobat.com is experiencing some problem today.  I am presenting the Order through Scribd.

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LexMontior highlights elements of the ongoing, online dialog about the law

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The beauty of the internet resides in the ongoing evolution (or revolution) in the way that information is collected, distilled and presented.  A number of websites index legal subject matter blogs.  (See, e.g., Justia.com, the ABAJournal Blog index, and Blawg.com.)  LexMonitor offers a new twist on the idea of a blawg index.  Rather than simply indexing all law blogs, LexMonitor collects content from the blogosphere and attempts to present and catetorize it in ways that will help visitors follow discussions, concepts or authors of interest.  From the site:

“LexMonitor is a free daily review of law blogs and journals highlighting prominent legal discussion and the lawyers and other professionals participating in this conversation.

Pulling from nearly 2,000 sources and 5,000 professional authors, LexMonitor will shine a light on the ongoing conversation among thought leaders in the law for the benefit of the legal profession and the public at large.

LexMonitor is not a destination site where "you’ll read a newspaper," if you will. We want to make content from the legal blogosphere more accessible, meaningful, and valuable by highlighting discussion, blogs, tags, and authors you may wish to follow.

LexMonitor is owned & operated by LexBlog, Inc., which provides a turnkey blog solution to professional services businesses, primarily law firms.  However, LexMonitor includes legal blogs that contributed to the online dicusssion of legal issues,irrespective of whether LexBlog's blogging solution is used on the blog.

The Complex Litigator thanks LexMonitor for including this blog in the the LexMonitor review.  You can view The Complex Litigator on LexMonitor.

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COMPLEX TECH: Scribd's iPaper competes directly with Adobe's Acrobat.com

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In a recent post about e-Discovery issues and text messages, I used the Acrobat.com embedded flash widget to allow visitors to read an Opinion by a District Court without the need to fire up Acrobat or download a file.  Acrobat.com now has a competitor of sorts in the field of flash-embedded documents, compliments of Scribd.  Scribd is "a Silicon Valley startup creating technology that makes it easy to share documents online."  In February of this year, Scribd launched iPaper, a flash-based tool for presenting documents on the web.  Scribd offers the iPaper format through its the Scribd service, which, among other things, lets users:

  • Upload documents in many different formats, including Adobe PDF, Microsoft Word, Adobe PDF, plain text, HTML, PowerPoint, Excel, OpenOffice, JPEG, and more
  • Embed your documents in a blog, Facebook profile, or other external website with your fonts, images, and formatting fully intact
  • Host a document at Scribd with its own unique URL
  • Use unlimited storage
  • Obtain fast indexing by Google and other major search engines will ensure that content is easily found by just about everyone
  • Keep certain documents private or share with a limited number of authorized persons
  • Automatically convert published content into PDF, Word, and plain text

Scribd is attempting to build a community around document sharing and searching.  Whether that will be successful remains to be seen.  And Acrobat.com offers a number of collaboration and authoring tools not yet found on the Scribd service.  Thus, in all fairness to both companies, Scribd is not precisely a competitor to Acrobat.com.  The direct point of comparison lies in the ability to use flash to embed document images into web pages and upload and store documents for sharing in other ways.  In the meantime, take a look at an e-Discovery Order in the iPaper format:

Read this document on Scribd: 2008 03-20 Order Flagg-v-Detroit-protocol2

Again, if you don't have flash installed, or are viewing this post through a feed, a pda, or another method that does not utilize flash technology, you will not see the embedded object.  For those viewers, here is the direct link to the Order on Scribd's service.

UPDATE:  After checking the appearance of the Order on the blog, I noticed that ads were inserted into the document.  When I created an account on Scribd, I configured the account so that ads would not be inserted into any documents.  While it might be a simple mistake, I would not like to think that my choice for ads was overwritten by Scribd.  I'd be interested in hearing if anyone else using Scribd has noticed this issue.

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Possible sale of private data by TransUnion provides an opportunity for fee credit monitoring

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If you've ever been curious about the many "credit monitoring" services advertised just about everywhere, you now have an opportunity to test one of those services for free as part of a class action settlement.  TransUnion, one of the three dominant credit repositories, was accused of selling consumers' personal data to marketers in violation of federal law.  Sixteen different class-action suits from around the country were consolidated into a single case against TransUnion in U.S. District Court in Chicago.

Under the terms of the settlement reached in the consolidated action, you are eligible for benefits if you opened a credit account (credit cards, student loans, auto loans or mortgages, for example) between Jan. 1, 1987, and May 28, 2008.  About 160 million consumers qualify for benefits under the settlement, which includes:

  • Nine months of free credit-file monitoring if you agree not to sue TransUnion seeking damages. In addition to monitoring—the bureau alerts you by e-mail within 24 hours of any significant change in your credit data—you can also lock your file so lenders, insurance companies and others cannot access your report without permission.  In addition, you can receive "unlimited daily access" to your credit report and TransUnion credit score, plus other credit analysis tools.  TransUnion estimates the retail value of this at $115.50.
  • Six months of free credit monitoring, credit-lock privileges and unlimited access to your credit report and score. This option, valued at $59.75, allows you to receive a possible cash payment out of the $75 million fund if any money is left over after paying lawyers' fees (I repeat, if any money is left over - it will be interesting to see if anything is left over), notification costs and named plaintiffs.
  • Even if you choose to sue the company, you can still receive six months of free credit monitoring.

There really isn't a good reason to pass on this settlement benefit.

UPDATE:  Call it "postus-interruptus," but I left out the last, crucial piece of information, where to submit a claim.   To submit a claim, visit the web site www.listclassaction.com, or call, toll-free, (866) 416-3470.

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Court of Appeal affirms order striking class allegations after defendant moved to bar certification

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Greatsealcal100I clearly recall reading a Daily Journal news article about Judge Sundvold's decision to "strike" class allegations on the defendant's motion, before plaintiffs in the case had filed their motion for class certification.  In fact, in preparing this post, I found a copy of that March 12, 2007 article in a clippings file.  (Don J. DeBenedictis, Precertification, Stores' Lawyers Crush Class, Daily Journal (March 12, 2007).)  The article mentioned that the defendant had been contacting its store managers and obtained "several hundred" declarations from them.  However, the article noted that the plaintiffs were not permitted by the court to contact those managers.  I found the reported discussion very peculiar; it seemed that something had to be missing.  I found it implausible that the Court would "not allow plaintiff to contact those current and former store employees or to see more than 5 percent of the declarations. . . ."  It turns out that the reports were fairly accurate.

In re BCBG OVERTIME CASES (June 13, 2008) ___ Cal.Rptr.3d ___ is the published opinion of the Court of Appeal (Fourth Appellate District, Division Three) that followed from the Judge Sundvold's Order finding that the matter was unsuitable for class treatment.  The Court of Appeal affirmed the Trial Court's decision.

First, some nomenclature in the underlying case was discussed by the Court of Appeal.  In the Trial Court, the defendant apparently referred to its motion as a "Motion to Strike Class Allegations."  The Court of Appeal discussed the misleading nature of this document title:

“BCBG’s “motion to strike” was not a motion to strike as used during the pleading stage of a lawsuit in both California and federal procedure. (Code Civ. Proc., § 435; Federal Rules Civ. Proc., rule 12(f).) It was a motion seeking to have the class allegations stricken from the complaint by asking the trial court to hold an evidentiary hearing and determine whether Plaintiffs’ proposed class should be certified.  “A motion to strike class allegations is governed by Rule 23, not Rule 12(f). Rule 23 requires that the Court decide the certification issue at the earliest time possible.” (Bennett v. Nucor Corp. (E.D. Ark., July 6, 2005, No. 3:04CV002915WW) [2005 WL 1773948] slip opn., p. 2, fn. 1.)

(Slip op., at p. 6.)

Next, the Court of Appeal examined the procedure utilized by the defendant.  Although defense-initiated motions to deny certification are uncommon, the Court of Appeal concluded that they are permitted:

“Under both California and federal law, either party may initiate the class certification process. In Carabini v. Superior Court (1994) 26 Cal.App.4th 239, a state appellate panel explained the California class certification process: “‘As soon as practical after commencement of a lawsuit that purports to be a class action, a hearing must be held on whether it will be allowed to proceed as such. The hearing may be held either on the motion of the representative to certify the case as a class action; or, on motion by the party opposing the class to dismiss the class action allegations; or, by the court on its own motion . . . .’ [Citations.]” (Carabini v. Superior Court, supra, 26 Cal.App.4th at p. 242.)

(Slip op., at p. 6.)  In upholding the procedure permitted by the Trial Court, the Court of Appeal also cited California Rules of Court, rule 3.767 (formerly Rule 1857, before the excellent idea of rules with decimal points).

In reading the opinion, the Court of Appeal suggests, but does not say, that the plaintiffs may have made a tactical error in the issues raised on appeal.  In particular, the plaintiffs did not appeal the trial court's rulings that prohibited the plaintiffs from discovering the contact information of store managers.  In the text of the opinion, the Court said:

“BCBG’s motion to strike the class allegations was not made before the Plaintiffs had a chance to conduct discovery on class certification issues. Such discovery had been going on for some time, although some of the plaintiffs’ efforts had apparently been thwarted by adverse rulings from the court. The propriety of these rulings is not before us.

(Slip op., at p. 9.)  Then, in a footnote immediately following the text, the Court said:

“We do not know why Plaintiffs have been unable to obtain the contact information for BCBG’s former and current managers. “Contact information regarding the identity of potential class members is generally discoverable, so that the lead plaintiff may learn the names of other persons who might assist in prosecuting the case. (E.g., Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816, 820-821, 836, Budget Finance Plan v. Superior Court (1973) 34 Cal.App.3d 794, 799-800; see Code Civ. Proc., § 2017.010.)” (Pioneer Electronics (USA) Inc. v. Superior Court (2007) 40 Cal.4th 360, 373.) BCBG’s opposition to the request for a precertification notice seems to be based on its assertion that there is nothing improper about its precertification contact with the putative class members.

(Slip op., at p. 9, fn. 4.)  Reading these passages, it sounds very much like the Court of Appeal would have welcomed the opportunity to reverse for further discovery that would include depositions of any declarant offered by defendant.  Looking at the Court of Appeal docket, it doesn't appear that any attempt was made to address the Pioneer decision during the appeal, although, given that discovery rulings were apparently not raised in the appeal as discretionarily included issues, any attempt to do so may have been rejected.

While the procedure used here is uncommon, it isn't novel.  The real lesson from this case is to be sure you make your record in the trial court in the unfortunate event that you have to appeal a trial court order - and then be sure you raise the issues on appeal.  I'm not sure that the Court of Appeal would, in good conscience, tolerate a trial court ruling that allowed a defendant to put forth declarations of its own managers to defeat certification while refusing to submit those declarants to cross-examination at deposition.

Class Action Defense Blog has its customary thorough coverage of the decision, as does California Labor and Employment Law Blog.

For flash-enabled visitors, here is the opinion in a form viewable in your browser on this page:

 

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COMPLEX TECH: Adobe's Acrobat 9 looks like it will be a desirable upgrade (or first install) for law firms

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Box_acrobat_9_pro_112x112 I was fortunate enough to receive a preview demonstration of new features in Acrobat 9 that will likely appeal to the legal market (my thanks to Adobe, which was unexpectedly approachable and responsive).  The preview was hosted by none other than Rick Borstein, a Business Development Manager at Adobe and the author of the Acrobat for attorneys tip blog Acrobat for Legal Professionals.  Acrobat defines software that has reached high level of maturity, and the first look was impressive.  If Acrobat 8 was enticing to law firms, Acrobat 9 adds to the attraction.

In the coming weeks, I will be post a review in multiple parts.  There is so much going on in Acrobat 9, that a thorough review would probably include too much information to comfortably digest at one sitting.  But I will mention a smaller new feature that will prove to be very useful for practitioners in the federal courts in California.  Acrobat 9 now includes a tool for splitting a large pdf into segments, using a variety of parameters.  This tool will assist with e-filing, when the document in question is too large to upload as one document.  The pdf splitting tool can split a pdf into segments of specific page lengh or file size.  The subsequent files can include the base file name and an addition piece of text, such as "Part_1".  It's an example of a simple, new tool that meets a very important need in the litigation field.

You'll have to stay tuned for my thoughts on the "big" tools and changes in Acrobat 9.

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Future class action? Dancers in Los Angeles file a wage & hour suit over independent contractor classification

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(Un)covering this story requires some care, as I don't want The Complex Litigator black-listed by content filters, hence the oblique references to follow.

It has been reported on latimes.com and abajournal.com that four dancers of the quasi-prurient-arts variety are suing nightclubs over unpaid wages and tips.  (Normal references omitted; see hyperlinks.)  The dancers are challenging their classification as independent contractors, contending that they are employees, who signed "independent contractor agreements" under duress.

Several thoughts sprang to mind when I read this story.  First, it is unclear from the reporting whether these dancers are so-called "go-go dancers" at mainstream nightclubs (the dancers you might see in clubs dancing in elevated cages as part of the effort at ambience) or are dancers at clubs of the tip-for-tat sort.  Second, this sounds suspiciously like either (1) a wage & hour class action in the works, or (2) an effort to avoid the pitfalls one encounters in wage & hour class actions by attempting to generate interest in a "mass action" of similarly situated dancers.  Either way, the press coverage of the filing will probably generate a significant number of inquiries about how to join the suit.  Third, both articles talk about how the independent contrator "agreements were signed under duress and are therefore void."  This blog has previously covered independent contractors misclassification cases, discussed previously here and here.  The terms of an independent contractor agreement are far down the list of factors examined when attempting to determine whether an employment relationship exists.  And, finally, I just wanted the chance to discuss news about dancers suing for better wages, and now I have.

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