Will the Ninth Circuit affirm nationwide certification of state law claims?

In the matter of Mazza, et al v. American Honda Motor Company, the Ninth Circuit will hear oral argument on June 9, 2010, at 9:30 a.m., in Pasadena, California.  Defendant's Rule 23 Petition was granted after the District Court certified UCL and CLRA claims on a nationwide basis.  The District Court's extensive discussion of choice-of-law analysis may be the primary focus.  The outcome may prove to be significant for the many Toyota acceleration cases assigned to Judge Selna in the same Central District from which Mazza was issued.  I would like to attend and provide a detailed account of the argument, but my schedule may not permit it.  If I cannot attend, I will try to arrange for someone to report in my absence.

Coming soon: Posts on Dukes v. Wal-Mart and Stolt-Nielsen S.A. v. AnimalFeeds International Corp

The blockbusters are coming fast and furious.  Too fast, in fact, to have comprehensive, same-day posts up.  Longer posts on Dukes v. Wal-Mart and Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (Supreme Court ruling on class arbitration issue) will be up in the next few days.

California Supreme Court activity for the week of April 26, 2010

The California Supreme Court held its (usually) weekly conference today.  Notable results include:

• A Petition for Review was granted in Pellegrino v. Robert Half International, Inc. (February 25, 2010) (G039985), (reversed trial court order decertifying class after applying Tobacco II) - discussed on this blog here.  The matter will be HELD pending resolution of the lead case, Harris v. Superior Court (Liberty Mutual), Case No. S156555.  The issue for review is the applicability of the administrative overtime exemption to claims adjusters.  The second opinion in Pellegrino does not appear to be under review, based upon the Supreme Court docket.
• A Petition for Review and depublication was denied in Pipefitters Local No. 636 Defined Benefit Plan v. Oakley, Inc., 180 Cal. App. 4th 1542 (Jan. 13, 2010) (held: if plaintiffs claim that their lawsuit was the catalyst to action by the defendant, the pre-lawsuit notification requirement applies not only when fees are sought under Code of Civil Procedure section 1021.5, pursuant to Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553 (2004), but also to fee requests under the common-law substantial benefit doctrine).  The decision is consistent with Abouab v. City and County of San Francisco, 141 Cal. App. 4th 643 (2006).
• A Petition for Review was denied in Arce v. Kaiser Foundation Health Plan, Inc., 181 Cal. App. 4th 471 (January 27, 2010) (held: community of interest adequately alleged in putative class action such that defendant's demurrer should have been denied) - discussed on this blog here.

How-to: Fix PDF files that are rejected by the Central District filing system because of links or "code"

The United States District Court for the Central District of California has a very special online document filing system.  And I do mean special.  If you have experienced this filing system, you may have had an attempted filing rejected by the CM/ECF system because of "code" in the PDF.  This will not happen if a PDF document is generated by simple scanning.  I am only discussing an issue that occurs when PDF documents are generated directly from some other application.

There are many solutions to this problem, but I want to offer one that I find to be fast and reliable.  You could just print and scan the document causing problems, but for large documents, this defeats the size advantage of generating directly on your system.  For a very large document the scanning solution is a poor alternative.  A suitable option would digitally transform the document to eliminate the "code" in the PDF (probably some javascript) but keep the document size reasonable.

The solution: use Microsoft's XPS Document Writer.  The Microsoft XPS Document Writer (MXDW) is a print-to-file driver that enables any application to create XML Paper Specification (XPS) Document files on versions of Windows staring with Windows XP SP2.  If you are interested, information about the specification can be found here.

You should have an XPS Document Writer printer driver on your Windows system if you are using anything later than Windows XP SP2.  If you do not, you can get it here.  You will also need software capable of converting from XPS format to PDF format.  Acrobat software can do this, but I don't know what other PDF creation software can do the trick.  The steps to "fix" the problematic PDF are:

1. Open the problematic PDF in Acrobat.
2. Print the document by choosing "Print" from the "File" menu.   In the print dialog box, choose “Microsoft XPS Document Writer” as your printer.  If you don't have the printer in your choices, install the XPS Essentials Pack linked above.
3. When prompted, save the document.  This is a process similar to “printing” to the Acrobat printer.
4. Close the document in Acrobat.
5. Open the XPS file you just created in Acrobat.  In the open file dialog, you may need to tell Acrobat to show “all files,” not just PDF files.
6. Acrobat will convert the XPS file and display it.
7. Choose Save As and save the converted document.  It will be a PDF, but the "code" and hyperlinks will have been stripped out.

Fixed.  I'm going to start offering tips to fix other stuff, especially in Word.  If you like tips like this, watch for the "How-to" label or Tag.

Wal-Mart ramps up spin control following decision in Dukes v. Wal-Mart Stores, Inc.

Following the decision in Dukes v. Wal-Mart Stores, Inc. (9th Cir. Apr. 26, 2010), Wal-Mart is already in full spin control mode.  In a statement released through PR Newswire, Wal-Mart expressed how happy it was that a class action involving hundreds of thousands of employees would proceed against it:

We are pleased that the court agreed with our position on several critical issues. The court significantly reduced the size of the originally certified class by as much as two-thirds. Finding that the trial court 'abused its discretion,' the appeals court also set aside the ruling on punitive damages.

Perhaps the rosy glow will fade when Wal-Mart realizes that several issues are simply returning to the trial court for further analysis.  For example, punitive damages may very well be certified on terms identical to the original order:  "With respect to the claims for punitive damages, we remand so that the district court may consider whether to certify the class under Rule 23(b)(2) or (b)(3)."  Slip op., at 6147.  Don't say anything to Wal-Mart about this just yet; even Wal-Mart deserves some happiness, no matter how brief.

Breaking News: Ninth Circuit issues en banc decision in Dukes v. Wal-Mart Stores, Inc.

The Ninth Circuit has issued its long-awaited, en banc Opinion in Dukes v. Wal-Mart Stores, Inc. (9th Cir. Apr. 26, 2010).  Of course, I have no idea if you were actually waiting for it, so I am only referring to myself.  As for how long it took to issue the Opinion, it took some time to write an Opinion that is about 136 pages long.  The majority described the holding as follows:

Plaintiffs allege that Wal-Mart, Inc., discriminates against women in violation of Title VII of the Civil Rights Act of 1964. After detailed briefing and hearing, the district court certified a class encompassing all women employed by Wal-Mart at any time after December 26, 1998, and encompassing all Plaintiffs’ claims for injunctive relief, declaratory relief, and back pay, while creating a separate opt-out class encompassing the same employees for punitive damages. We affirm the district court’s certification of a Federal Rule of Civil Procedure 23(b)(2) class of current employees with respect to their claims for injunctive relief, declaratory relief, and back pay. With respect to the claims for punitive damages, we remand so that the district court may consider whether to certify the class under Rule 23(b)(2) or (b)(3). We also remand with respect to the claims of putative class members who no longer worked for Wal-Mart when the complaint was filed so that the district court may consider whether to certify an additional class or classes under Rule 23(b)(3).

Slip op., at 6146-47.  The massive opinion and dissent are simply too long for me to thoroughly cover this morning.  However, Circuit Judge Graber offered this brief comment on the entirety of the opinion:

GRABER, Circuit Judge, concurring: 

The majority and the dissent have written scholarly and complete explanations of their positions. What the length of their opinions may mask is the simplicity of the majority’s unremarkable holding:

Current female employees may maintain a Rule 23(b)(2) class action against their employer, seeking injunctive and declaratory relief and back pay on behalf of all the current female employees, when they challenge as discriminatory the effects of their employer’s company-wide policies.

If the employer had 500 female employees, I doubt that any of my colleagues would question the certification of such a class. Certification does not become an abuse of discretion merely because the class has 500,000 members. I therefore concur fully in the majority opinion.

Slip op., at 6237-38.

I will write more on this Opinion as soon as I am able, but a quick perusal suggests that this decision will have a lasting impact on certification motions in the Ninth Circuit.  Unless the U.S. Supreme Court wants to weigh in on this decision.

Discovery ruling in Currie-White v. Blockbuster, Inc. holds that a protective order is sufficient protection for class member contact information ordered produced

United States Chief Magistrate Judge Maria-Elena James is on a roll with the class member contact information discovery orders.  In Currie-White v. Blockbuster, Inc., 2010 WL 1526314 (N.D.Cal. Apr 15, 2010), Magistrate Judge James Ordered defendant to produce class member contact information, subject to certain modifications to a pre-existing protective order in the case.  The interesting additional tidbit in this case is that it is described as a "class action against Defendant under the Labor Code Private Attorneys General Act of 2004, Cal. Labor Code §§ 2698, et seq."  Moving to certify PAGA-based penalty claims certainly eliminates all the uncertainty about PAGA-based representative actions.

Discovery ruling in McArdle v. AT&T Mobility LLC finds that notice is unnecessary when ordering class member contact information produced

United States Chief Magistrate Judge Maria-Elena James, as if predicting the very contents of my April 21, 2010 Daily Journal article, ordered Defendants AT & T Mobility LLC, New Cingular Wireless PCS LCC, and New Cingular Wireless Services, Inc. to produce the contact information for thousands of customers that had complained after incurring international roaming charges without first issuing a privacy notice.  McArdle v. AT & T Mobility LLC, 2010 WL 1532334 (N.D.Cal. Apr 16, 2010).

Chief Magistrate Judge James said:

As to providing a written notice to the customers, the Court finds such notice unnecessary. First, Pioneer does not impose a notice requirement. Second, notice would make no sense here, as witnesses cannot choose to “opt out” of civil discovery.  Tierno v. Rite Aid Corp., 2008 WL 3287035, at *3 (N.D.Cal.2008). “Generally, witnesses are not permitted to decline to participate in civil discovery, even when the information sought from them is personal or private.” Puerto v. Superior Court, 158 Cal.App.4th at 1242, 1256-57 (2008). The Court notes that the minimal information Plaintiff requests is indeed contemplated under the Federal Rules of Civil Procedure as basic to the discovery process. Specifically, Rule 26(a)(1)(A) requires each party to disclose before formal discovery begins “the names, addresses and telephone numbers of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses.” Here, many of Defendants' complaining customers may be considered percipient witnesses to the relevant issue - international-roaming charges, and could therefore be considered persons having discoverable knowledge and proper subjects of discovery.

Slip op., at 4; see also, Boo-ya, at page bite me.  Defendants were given 14 days to provide the contact information.

“Generally, witnesses are not permitted to decline to participate in civil discovery, even when the information sought from them is personal or private.”  Yes.  Witnesses don't get to opt-out of being witnesses.

in brief: Fees denied to prevailing defendant in Swearingen v. Haas Automation, Inc.

United States District Court Judge Barry Ted Moskowitz (Southern District of California) denied Defendants' motion for an award of attorney's fees after the Defendants obtained a dismissal of plaintiff's Second Amended Complaint.  Swearingen v. Haas Automation, Inc., 2010 WL 1495204 (S.D.Cal. Apr 14, 2010).  The Court held that changes to Penal Code section 502 removed a bilateral fee provision and a claim sounding in tort was outside the attorney fee provision of a lease agreement between the parties.

Daily Journal article on right to discover witness identities in class actions

The April 21, 2010 edition of the Daily Journal includes my article, entitled "Witnesses Cannot Hide," in the Perspective column. It explains that the right to discover putative class member identity in class actions is really the right to discover witness identity in general. Discovery of witnesses is a foundational element of civil discovery rights. The arguments about privacy notices are intended to distract from this core right. The article is posted below with permission of Daily Journal Corp. (2010).

If you have difficulty viewing the flash object, the direct link is here.  I thank the editorial staff of the Daily Journal for providing the posting permission.