Class action news of note: Tobacco II arguments leaves everyone guessing, and more

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This past week, the California Supreme Court heard oral argument in the Tobacco II cases.  Extensive coverage of the oral argument is available from the UCL Practitioner in this post.  The obligatory reading of tea leaves has, in this instance, revealed little.  For examle, Mike McKee, writing for The Records, said, "Just a few weeks ago, the California Supreme Court ruled that lawsuits under the Consumer Legal Remedies Act can only be filed by individuals who suffer real damage from unlawful business practices. But during oral arguments on Tuesday it wasn't clear where the court stood on applying that same rule to every participant of class actions filed under the state's Unfair Competition Law."  (Mike McKee, Calif. Justices Air Standing for UCL Class Actions Against Tobacco Industry (March 4, 2009) www.law.com.)  Having watched the argument myself, I agree that it was hard to discern much from the Justices.  The cynic in me always assumes that the creep of Proposition 64 will keep on spreading its tendrils, but the argument itself gives me little actual evidence to support that guess.

Meanwhile, the significance of the Ninth Circuit's decision in Davis v. HSBC Bank Nevada, N.A., et al. (February 26, 2009) reached the legal media:  "In a blow to plaintiffs class action lawyers, the 9th U.S. Circuit Court of Appeals has made it tougher to hold that a national company is a 'citizen' of California merely based on the disproportionate size of the state's population."  (Pamela A. MacLean, 9th Circuit Deals a Blow to Plaintiffs Lawyers in 'Principal Place of Business' Test (March 9, 2009) www.law.com.)  Not that Tosco actually held that a state's population size governed corporate citizenship, but the remainder of the article is accurate.  This blog noted the decision in this short post.

Finally, while a bit late to the party, another ISP and the defunct Adzilla were sued for deep packet inspection for the purposes of obtaining the advertising holy grail: complete knowledge of each consumer's behaviors and preferences.  (Ryan Singel, Another ISP Ad Snooper Hit With Lawsuit (March 3, 2009) www.wired.com.)  I've already expressed my contempt for this behavior by ISPs.  Luckily, these projects appear dead in the United States.  But don't count on them staying down forever.

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Are meal period premiums part of the "regular rate" in FLSA cases? One District Court says, "No."

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In a LinexLegal.com news article entitled Must Employers Include Meal-Period Premium Payments in the "Regular Rate" Used to Compute the Overtime Owed to Their Employees?, it is reported that, on February 25, 2009, Judge Saundra B. Armstrong of the U.S. District Court for the Northern District of California held that meal-period premiums mandated by California Labor Code Section 226.7 need not be included in the "regular rate" for purposes of calculating an employee's overtime compensation under the federal Fair Labor Standards Act (FLSA), 29 U.S.C. para 201 et seq.   The ruling was issued in the context of a putative state-wide class-action in Rubin v. Wal-Mart Stores, Inc., No. CV 08-4214.

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BREAKING NEWS: Supreme Court finds no pre-emption in Wyeth v. Levine

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More commentary on thus opinion will follow (it will, in fact, be discussed everywhere), but it suffices to say that this was one of the foundational set pieces in the attack on consumer class actions.

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in brief: UCL Practitioner's post on Kwikset v. Superior Court (Benson) is a must-read

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If you happen to read the UCL Practitioner with any regularity, you know that Kimberly Kralowec is as cool a customer as they come.  That's why I pay careful attention when she let's loose in prose on any appellate decision touching on the UCL and related False Advertising Law.  Her post earlier today on the recent Court of Appeal decision in Kwikset Corp. v. Superior Court (Benson) (Feb. 25, 2009) (Fourth Appellate District, Division Three) is the most critical commentary that I can recall reading (but that criticism is well-justified, I think).  I've commented previously about my own concern that Division Three of the Fourth Appellate District has moved out of step with California's policies that favor consumer protection and resolution of issues with the class action device.  But the most recent Kwikset decision is little more than judicial legislation.  Be sure to check out what the UCL Practitioner has to say about Kwikset.

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Advice on getting the most from Acrobat 9 from the Delaware Employment Law Blog

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Compliments of @acrolaw on Twitter, I was directed to an excellent blog post entitled Making the Switch to Digital: Legal Research.  The article, posted by Delaware Employment Law Blog, includes some good advice about getting the most out of your online research and information management with Adobe Acrobat 9.  While I wouldn't necessarily implement all of the tips for myself, there is certainly some value in creating a pdf repository of authority used in research, particularly if you've ever considered creating a fully indexed e-brief.  I've seen one such brief, with each citation linked to accompanying authority, and its a thing of beauty.

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in brief: Ninth Circuit clarifies the Tosco "substantial predominance" test for corporate operations in Davis v. HSBC Bank Nevada, N.A., et al.

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Ninth Circuit SealIf you spend any time litigating class actions, CAFA almost guarantees that some of that time will be spent in federal court. Thus, the citizenship of the defendant(s) is a significant issue. In Davis v. HSBC Bank Nevada, N.A., et al. (February 26, 2009), the Ninth Circuit interpreted and limited the “substantial predominance” analysis for the “principal place of business” test, as it was described in Tosco Corp. v. Communities for a Better Env't, 236 F.3d 495 (9th Cir. 2001). In brief, the Court held that the “substantial predominance” of activities is tested against national activities, not the next largest state, but a per-capita analysis is not required.

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BREAKING NEWS: First appellate construction of Labor Code section 206.5 concludes that it doesn't mean what it seems to say

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Greatsealcal100As predicted in this post, the Fourth Appellate District, Division Three, has issued a published opinion in Chindarah et al. v. Pick Up Stix, Inc. et al (February 26, 2009).  The opinion construes Labor Code section 206.5, concluding that employer-obtained releases of wage claims in dispute were not void by operation of section 206.5.  There is some qualifying language in the opinion worth mentioning, but, that must wait for another day.

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ANNOUNCEMENT: The Complex Litigator will soon be forced to migrate its RSS feed to a new location

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Feedburner, which provides the RSS feed from this blog to many readers, was purchased by Google quite some time ago.  Now, Google is in the process of moving the Feedburner service to its own servers.  The move is voluntary now, but will mandatory very soon.  I have read many reports of problems during the voluntary feed relocation period, which is why I have not yet changed the feed.  However, I believe that time is running out.  If you read this blog from a Feedburner feed, you can subscribe to the feed directly in newer versions of Outlook or various browsers.

UPDATE:  The feed from this site has been moved to Google's servers with no problem so far.  Many other users have reported problems with the move, but in this case it was trouble-free.  However, it isn't clear whether this will disrupt the site feed for subscribers.  If it does, give it a few days to sort itself out.

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California Supreme Court grants itself additional time to consider Petition in Brewer v. Premier Golf Properties

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Greatsealcal100On February 23, 2009, the California Supreme Court extended the time for granting or denying review in Brewer v. Premier Golf Properties (2008) 168 Cal. App. 4th 1243. The Complex Litigator’s initial post about Brewer discusses its holding that punitive damages are unavailable for violations of at least some Labor Code provisions.  The Supreme Court now has to and including April 8, 2009 to grant or deny review.

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in brief: Consumers resist bank changes to terms in credit agreements; JP Morgan Chase named in class action

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On January 28, 2009, consumers filed a class action lawsuit against banks JP Morgan Chase and Chase Manhattan Bank for unilateral changes to terms governing credit card agreements.  This class action appears to be one of the early reactions to a wave of bank-imposed changes to terms governing consumer credit accounts.  (Ron Lieber, Credit Card Companies Go to War Against Losses (January 30, 2009) www.nytimes.com; see also, Eileen Ambrose, Banks playing hardball on credit, leaving consumers feeling blindsided, angry (February 24, 2009) www.baltimoresun.com.)  The banking practices mentioned in these articles are happening at other institutions.  Just as commentators predict a wave of employment litigation, I expect that consumer lending issues will balloon this year.

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