a California-centric collection of comments and resources about complex litigation and class action practice
The Rutter Group will be offering a seminar in March on the newest developments in 17200 (and CLRA) practice. Live programs will be held on March 3, 2009 in San Francisco and March 5, 2009 in Los Angeles. Other locations will offer video replays later in March. All programs are from 6:00 p.m. to 9:15 p.m. New case discussions will include, among others, Meyer v. Sprint Spectrum L.P. For more information, visit www.RutterGroup.com.
Sprenger ◊ Lang, a Martindale-Hubbell AV® rated national plaintiffs’ class action law firm, seeks a plaintiffs’ lawyer to start-up and lead a Los Angeles, CA office.
If you are an entrepreneurial plaintiffs’ lawyer with an interest in raising your profile by working with or for Sprenger + Lang, we have an opportunity for you to start-up and lead our Los Angeles, CA office. With offices in Washington D.C., Minneapolis, and Chicago, Sprenger + Lang is a nationally recognized law firm representing plaintiffs in employment and consumer class action litigation.
If you follow class action litigation in California, you may be familiar with Sprenger + Lang’s pending age discrimination class actions on behalf of television writers against virtually every major player in the television industry. You may also be familiar with our class action on behalf of California consumers against DirecTV for early termination fees and other illegal business practices. Attorneys around the country know us for having the first sexual harassment class certified, Jenson v. Eveleth Taconite Co., which inspired the feature film “North Country” and was detailed in the book "Class Action: The Story of Lois Jenson and the Landmark Case That Changed Sexual Harassment Law."
Sprenger + Lang has a long history of prevailing in groundbreaking employment law class actions against major corporations. Sprenger + Lang is now bringing this tradition of cutting-edge work to its consumer practice and has brought consumer classes against DirecTV, Qwest, Homecomings Financial Network, and the U.S. Department of Education.
For more information on who we are, visit http://www.sprengerlang.com/meet-us/groundbreaking-work/.
An attorney able to start-up and lead our LA office with an understanding of the business of contingency fee law firms and a willingness to prosecute class actions. An attorney who recently (i.e., in the last 3-5 years) established or joined a successful plaintiff’s practice with a rising profile but with an interest in raising his or her profile higher by working with or for a national plaintiffs’ class action law firm.
An attorney who has practiced complex, plaintiffs’ litigation for at least five (5) years with the ability to make immediate contributions to class action cases. The attorney must be experienced in all facets of discovery and possess superior research, analytical, and writing skills while meeting internal deadlines.
Candidates with less than ten (10) years’ experience should also meet at least one employment and one academic criterion listed below:
Employment
At least two years with a national plaintiffs’ firm.
A one or two year clerkship (not an internship) with a federal district court or court of appeals judge, not a state court judge or a federal bankruptcy or magistrate judge.
Academic
- Tier one law school and:
Law review/journal; and/or
Summa or magna cum laude or equivalent.
- Tier two or three law school and:
Law review/journal; and
Summa or magna cum laude or equivalent.
The Ideal Candidate
In addition to the Essential Criteria, The Ideal Candidate would:
Practice in Los Angeles, CA.
Practice in one or more of the following areas:
Consumer Fraud/Protection.
Civil Rights Law.
Employment Law.
Employee Benefits – ERISA.
Investor Fraud/Protection.
Securities Fraud/Protection.
Compensation depends on the candidate and the legal entity the firm creates in CA.
To learn more about this opportunity, please contact me.
Douglas Olson
Business & Operations Manager
Sprenger + Lang PLLC
Direct/ 612-486-1840
eMail/ dolson@sprengerlang.com
www.sprengerlang.com
Certification Mark Reference: "CV, BV and AV are registered certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedures, standards and policies."
Rating Explanation: Martindale-Hubbell is the facilitator of a peer review rating process. Ratings reflect the confidential opinions of members of the Bar and the Judiciary. Martindale-Hubbell Ratings fall into two categories - legal ability and general ethical standards.
What must a creditor do when notified of a dispute by a Credit Reporting Agency (CRA)? Under the Fair Credit Reporting Act (FCRA), the creditor is obligated to conduct “an investigation with respect to the disputed information.” 15 U.S.C. § 1681s-2(b)(1)(A). But does that investigation have to be “reasonable?” In a case involving a complicated dispute about credit card charges, the Ninth Circuit, in Gorman v. Wolpoff & Abramson, said that such investigations must be reasonable, following the Fourth Circuit.
Dismissing the contention that the absence of the word “reasonable” authorizes unreasonable investigations, the Court said:
“ This court has not addressed MBNA’s contention about the FCRA’s investigation requirement. But, MBNA made — and lost — the same argument before the Fourth Circuit. Johnson v. MBNA Am. Bank, NA, 357 F.3d 426, 429-31 (4th Cir. 2004). Concluding that the statute includes a requirement that a furnisher’s investigation not be unreasonable, the Fourth Circuit first noted that the plain meaning of the term “investigation” is a “ ‘detailed inquiry or systematic examination,’ ” which necessarily “requires some degree of careful inquiry.” Id. at 430 (quoting Am. Heritage Dictionary 920 (4th ed. 2000)). Second, the Fourth Circuit reasoned that because the purpose of the provision is “to give consumers a means to dispute — and, ultimately, correct — inaccurate information on their credit reports,” id. at 430-31, a “superficial, unreasonable inquir[y]” would hardly satisfy Congress’ objective. Id. at 431. The Seventh Circuit, without discussing the issue, has also found an implicit reasonableness requirement. See Westra v. Credit Control of Pinellas, 409 F.3d 825, 827 (7th Cir. 2005) (“Whether a defendant’s investigation [pursuant to § 1681s-2(b)(1)(A)] is reasonable is a factual question normally reserved for trial.”); see also Johnson, 357 F.3d at 430 n.2 (“[D]istrict courts that have considered the issue have consistently recognized that the creditor’s investigation must be a reasonable one.” (citing cases)).
(Slip op., at pp. 277-278.) The Ninth Circuit found this reasoning more than sufficient. The Court went on to evaluate the reasonableness of a number of investigations by the creditor, finding them to be reasonable on the offered facts.
The Court then flirted with a pre-emption issue related to state law claims arising out of credit reporting: “The preemption question presents a difficult issue of first impression.” (Slip op., at p. 296.) But after building the suspense with a discussion of district courts in "disarray" on the issue, the Court concluded that an insufficiency of evidence would preclude a libel claim by the debtor, rendering a decision on the pre-emption claim unnecessary. The wind-up was good; the Court had me ready to learn how they were going to untangle the statutory interpretation issue that confounded district courts on the pre-emption question.
This is post is much less about complex litigation than it is about my respect for Division Seven of the Second District Court of Appeal and the great job done by Professor Shaun Martin at his blog, California Appellate Report. I can't do justice to the story any better than Professor Martin does, so read about Sanai v. Saltz at California Appellate Report and have some courage that we still have judges that do what the law requires, even when it probably hurts.
It's been a while since I suggested some additional law-related blogs for your consideration. Here are two that are worth a look:
Lawyerist: Dedicated predominantly to identifying technology to help the small firm stay nimble and keep up with biglaw.
Caveat Emptor: Law, politics and news from a consumer advocate's point of view.
Take a look and see what you think. Don't forget that RSS feeds can deliver most blogs to your e-mail inbox, RSS reader or browser.
As I play weekend catch-up and work through the list of items to consider for posting, I saw a Ninth Circuit case that I saved for its technology angle. Periodically, the Ninth Circuit gets a tricky question of first impression about California law. When the answer to the question could prove significant, the Ninth Circuit will occasionally certify a question to the California Supreme Court, in the hope that the California Supreme Court will bail them out and take the question. In Kleffman v. Vonage Holdings, the Ninth Circuit certified this question:
“Does sending unsolicited commercial e-mail advertisements from multiple domain names for the purpose of bypassing spam filters constitute falsified, misrepresented, or forged header information under Cal. Bus. & Prof. Code § 17529.5(a)(2)?
Yes. Why yes? Because there isn't any spam out there that isn't faking its header information. Perhaps an overstatement, but so close to true that the differential is insignificant. The fact that spam comes from multiple domain names is just an additional irritation. Somebody oughta' file a class action...
TypePad is currently beta testing a new commenting system called TypePad Connect. This comment system will allow for threaded comments, cross-blog commenting, limited html code in comments, and associated pictures of the comment author (if a profile is established).
Because TypePad Connect is in beta, the comments here may end up getting hosed. Or I may lose the ability to delete the occasional spam post that people try to slip into posts without my noticing. Or it may work wonderfully. The point is, we're going out on the bleeding edge here, and someone might get hurt. Not that this will matter much in practice; lawyers and other readers of law blogs appear to comment less than readers of any other type of blog
UPDATE: So far so good. Comments are still on posts, and they are styled in the new format. Also, please be aware that the comment system is driven (I believe) by javascript. Your browser setting may influence what you see, particularly if you are running something like NoScript in Firefox.
In Meyer v. Sprint Spectrum L.P. (January 29, 2009), the California Supreme Court considered a matter, arising under the California Consumer Legal Remedies Act (CLRA; Civ. Code, § 1750 et seq.), in which plaintiffs sued the defendant cellular telephone company, alleging that its arbitration agreement and other remedial provisions were unconscionable. In Meyer, the plaintiffs did not allege that these provisions had been enforced against them or caused them damage. The primary issue considered by Meyer was whether, under these circumstances, a plaintiff may obtain injunctive relief to compel the removal of the allegedly unconscionable provisions under the CLRA. The ancillary issue was whether a plaintiff may obtain declaratory relief pursuant to Code of Civil Procedure section 1060 to declare these provisions unlawful and unenforceable. The Supreme Court concluded that neither form of relief was available to plaintiffs, affirming the decision below.
The Meyer decision has all the hallmarks of a case that will be misused and misunderstood for years to come. Its holding regarding "damages" will be grist for the deceptive briefing mill. One significant point made in the decision, and likely to be ignored when inconvenient for some defendant's demurrer, is that “any damages” can be something other than “actual” or “pecuniary damages”:
“ As to the first argument, plaintiffs contend that the phrase “any damage” is not synonymous with “actual damages,” which generally refers to pecuniary damages. The language of section 1780(a) indicates that plaintiffs are correct. If “any damage” and “actual damages” were synonymous, then it seems likely only the latter phrase would have been used in the first part of subdivision (a). The juxtaposition of the two phrases so close together indicates that the phrases have different meanings. Moreover, the breadth of the phrase “any damage” indicates a category that includes, but is greater than, “actual damages,” i.e. those who are eligible for the remedy of “actual damages” are a subset of those who have suffered “any damage.” Sprint does not dispute this point. It concedes that “any damage” may encompass harms other than pecuniary damages, such as certain types of transaction costs and opportunity costs.
(Slip op., at p. 5, footnote omitted.) Construing Kagan v. Gibraltar Sav. & Loan Assn. (1984) 35 Cal.3d 582 to fit this rubric, the Meyer Court noted that in Kagan, the plaintiff wasn’t charged an improper fee, but did expend time and resources resisting the fee after the financial institution announced its intention to assess the fee. (Slip op., at pp. 8-9.)
The opinion has other interesting holdings. For example, the Meyer Court explicitly declares that the statute of limitation applicable to a CLRA claim is subject to a delayed discovery rule, based on an objective reasonable consumer standard. (Slip op., at p. 12, citing Chamberlain v. Ford Motor Co. (N.D.Cal. 2005) 369 F.Supp.2d 1138, 1148.) The decision also confirms that settling with a plaintiff individually does not undermine a plaintiff’s status as a legitimate class representative.
From the consumer standpoint, Meyer is mixed bag of holdings. But on the damage issue, the UCL Practitioner likely has the right of it when noting that this looks suspiciously like Proposition 64 creep.
Curious about that new-fangled thing called "Twitter." Are you lost when colleagues discuss great "tweets" they read? Then visit kevin.lexblog.com to see some examples of what lawyers are doing with Twitter. Once you know how this social media tool is being used, it's a lot easier to decide if you want to incorporate it into your professional activities. I was on the fence about Twitter for quite some time, but I like the idea of using Twitter as a micro-blogging tool to supplement blog posts, particularly when the information may not rise to the level of something I want to cover in a fully formatted blog post.
There is still time to register for CAOC's 3rd Annual Class Action Seminar: Class Action Hurdles From the Plaintiff's Perspective. Here are the particulars:
When: January 28, 2009 from noon to 5:30 p.m. (registration begins at 11:30 a.m.)
Where: Sir Francis Drake Hotel in San Francisco
Price: $160 for CAOC or SFTLA members or $185 for non-members (for 4 hours' general MCLE credit plus 1 hour of ethics credit)
The moderators for the event are INGRID M. EVANS • Waters & Kraus LLP and DAVID M. ARBOGAST • Arbogast & Berns LLP. KIMBERLY KRALOWEC • Schubert Jonckheer Kolbe & Kralowec LLP (and, of course, www.uclpractitioner.com) will be speaking, as will other prominent members of the Plaintiff's bar. In addition, several judges will provide perspectives from the bench: HON. JEREMY FOGEL • Northern District of California; HON. RICHARD A. KRAMER • SF Superior Court, Complex Division; HON. EMILIE H. ELIAS • LA Superior Court, Complex Division (although it is possible that HON. ANTHONY MOHR • LA Superior Court, Complex Division may fill this spot).
I was considering flying up for this seminar, but a schedule conflict has made that impossible. Don't be like me - go to this seminar.
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.
