Brinker Watch 2010 - Version 2

In March of this year, I observed that Brinker Restaurant v. Superior Court (Hohnbaum) was fully briefed back in October 2009.  At that time, I moved the over-under on an Opinion release date from August 2010 to October 2010.  I regret to inform anyone with office pools that I must now make a second, larger move of the line and set the over-under at February 2011.

The problem arises because the Supreme Court is done hearing cases for Summer 2010.  As you can see here, July and August will have no case arguments.  September is the earliest that Brinker could be placed on an oral argument calendar.  For purposes of wagering only (which I fully support but will not participate in), I'm guessing that the argument occurs in November, resulting in a February 2011 opinion release target date.

Martinez v. Combs receives thorough treatment from The California Wage and Hour Law Blog

The California Supreme Court, in Martinez v. Combs (May 20, 2010) (reposted to correct formatting error), addressed a topic that should prove to be of long-lasting significance.  The opinion addresses the weighty question of who is and is not an "employee" under California wage law.

The California Wage Wage and Hour Law Blog, authored by Steven G. Pearl, includes a thorough post discussing this holding, including this important observation:

[T]he Wage Orders set forth a multi-pronged, disjunctive definition of employment: an employer is one who, directly or indirectly, or through an agent or any other person, engages, suffers, or permits any person to work, or exercises control over the wages, hours, or working conditions of any person. Slip op. at 25-26. The “engage, suffer, or permit” component of the definition does not require a common law “master and servant” relationship, but is broad enough to cover “irregular working arrangements the proprietor of a business might otherwise disavow with impunity.” Slip op. at 25. Further, “phrased as it is in the alternative (i.e., wages, hours, or working conditions”), the language of the IWC's 'employer' definition has the obvious utility of reaching situations in which multiple entities control different aspects of the employment relationship, as when one entity, which hires and pays workers, places them with other entities that supervise the work.” Slip op. at 26-27. Finally, the IWC’s “employer” definition is intended to distinguish state law from the federal FLSA.

This is a monumental clarification of the breadth of the definition of employment when wage laws are at issue.  The opinion also provides a mighty boost to the authority of the IWC.

For more, visit the blog or see today's Daily Journal for a revised version of the same article.

Refusing to produce documents? Not priceless.

The correct answer, at least for yesterday, is $25,000. I normally don't write, even obliquely, about cases that I am actively litigating, but I felt like I should bend the rule this one time. A trial court granted $25,000 in monetary sanctions for a defendant's failure to comply with a discovery order. I'm trying to be a "glass is a little over half full" kind of guy. I asked for $45,000.

Video available from Federalist Society program on Business & Professions Code section 17200

On May 19, 2010, I participated in a panel discussion presented by the Federalist Society.  The theme of the panel discussion was "California's 17200 -- Its Use and Abuse."  The panelists were:

• Jeremy B. Rosen, partner, Horvitz & Levy
• William L. Stern, partner, Morrison Foerster
• Shaun Martin, Shaun Martin, Professor, University of San Diego School of Law, and,
• me

The Hon Michael Orfield (Ret.), served as the panel moderator.

Video of the panel discussion is now available on youtube here.

It was an entertaining discussion.  There was some irony in the fact that the defense-oriented panelists argued for more government enforcement and the plaintiff-oriented panelists argued for less government enforcement and more private-sector regulatory enforcement.  Fun times.

With Apple's position clear, Adobe delivers Acrobat Reader to Android platform even as Android pulls even with iPhone OS

While Apple attempts to use its clout in the mobile web marketplace to kill Flash, the potential heir to the mobile throne, Google, has opted for the open route and, thus far, has encouraged Adobe to join the party.  Last week, at Google I/O, Adobe demonstrated a beta version of Flash 10.1 running on the Android mobile device operating system.  But Adobe had a few more Android tricks up its sleeve.

On May 21, 2010, Adobe announced that Adobe Reader is now available in the Android application marketplace.  First release features, according to Adobe, include:

Adobe Reader for Android offers multi-touch gestures, like pinch-and-zoom, as well as double-tap-zoom, flick-scrolling and panning. We've also added a "reflow" mode, which will take text-heavy documents with wide margins, and automatically wrap the content for easy viewing on smaller screens. 

So, for the last several years I have used an iPhone as my personal smartphone.  But, with developments like this, and a flood of sweet-looking devices running Android, it's hard not to consider trying the Android ecosystem.  Then again, I'm also intrigued by the potential of Windows Phone 7, so I hope that Adobe has plans to support what looks to be another powerhouse smartphone OS.  Decisions, decisions.

While the Ninth Circuit still hasn't defined "similarly situated" under the FLSA, California's federal courts continue to apply the two-stage process

United States Magistrate Judge Edward M. Chen (Northern District of California) granted plaintiff's motion to conditionally certify a collective action of Sales Representatives working for Defendant Vector Marketing Corporation.  Harris v. Vector Marketing Corp., 2010 WL 1998768 (N.D. Cal. May 18, 2010).  In doing so, Magistrate Judge Chen added his name to the long list of federal courts in California that have adopted a two-step approach for determining whether a class is “similarly situated.” Under this approach, a district court first determines, based on the submitted pleadings and, perhaps, a few declarations, whether the proposed class should be notified of the action.  At the first stage, the determination of whether the putative class members will be similarly situated is made using a "fairly lenient" standard, and typically results in "conditional certification" of a representative class. District courts have held that conditional certification requires only that “ ‘plaintiffs make substantial allegations that the putative class members were subject to a single illegal policy, plan or decision.’ ”

The second-step usually occurs after discovery is complete, at which time the defendants may move to decertify the class.  In the second step, the court makes a factual determination about whether the plaintiffs are similarly situated by weighing such factors as (1) the disparate factual and employment settings of the individual plaintiffs, (2) the various defenses available to the defendant which appeared to be individual to each plaintiff, and (3) fairness and procedural considerations. If the court determines that the plaintiffs are not similarly situated, the court may decertify the class and dismiss the opt-in plaintiffs' action without prejudice. Even when the parties settle, the court must make some final class certification finding before approving a collective action settlement.

In Simpson Strong-Tie Co. Inc. v. Gore, California Supreme Court strengthens protections surrounding attorney speech

The California Supreme Court, in Simpson Strong-Tie Co. Inc. v. Gore (May 17, 2010) explicitly examined the narrow issue of the scope of the commercial speech exemption to the anti-SLAPP statute.  (See Code Civ. Proc., §§ 425.16, 425.17, subd. (c).)  Indirectly, the opinion concerns the scope of protection available to attorney communications directed at potential clients, class members or witnesses.  The issue arose when, in February 2006, plaintiff Simpson Strong-Tie Company, Inc. (Simpson) filed an action for defamation and related claims against defendants Pierce Gore and The Gore Law Firm after publication of a newspaper advertisement placed by Gore a few weeks earlier. The advertisement, directed to owners of wood decks constructed after January 1, 2004, advised readers that “you may have certain legal rights and be entitled to monetary compensation, and repair or replacement of your deck” if the deck was built with galvanized screws manufactured by Simpson or other specified entities, and invited those persons to contact Gore “if you would like an attorney to investigate whether you have a potential claim.”

Gore moved successfully in the superior court to have the entire complaint by Simpson stricken under section 425.16, the anti-SLAPP statute, and the Court of Appeal affirmed.  The Supreme Court affirmed as well, though limiting its review exclusively to the applicability of the commercial speech exemption to the anti-SLAPP statute set forth in section 425.17(c)(1).

The ruling offers additional protection to law firms prosecuting class actions.  A defendant will have little recourse against an advertisement that is crafted to satisfy the analysis supplied in this decision.

Update on 2010-05-20 07:35 by The Complex Litigator

Forgive the (corrected) typo in the title.  Some of those slip through.

How-to: Fix first page pleading alignment problem in MS Word

If you spend any significant amount of time handling pleadings with line numbering on the side, you've probably received a pleading that has a misalignment problem on the first page like so:

The second page aligns just fine, but you can't figure out why you can't get the first page firm name block to align correctly.  This is the goal:

This problem stems from a deeply buried setting in Microsoft Word.  In Word 2007, hit the Office button in the top left corner of the program.  Click on the Word Options button.  Then select the "Advanced" settings panel.  Scroll all the way to the bottom.  In the "Compatibility options" section, expand the "Layout Options" section.  Find the "Don't center 'exact line height' lines" checkbox and put a check in it.  Problem solved.

Why does Word do this?  Pleadings typically used "Exact height" line spacing to fit the 28 lines in on one page.  The spacing is set at a point size increment of somewhere around 12 points for single spacing and 24 for double spaced lines.  The default behavior in Word is to put a line of text in the vertical center of the space allocated for the line.  This causes 24 point spacing lines to have a larger cushion of space at the top than 12 point ("single" spaced) lines.  The attorney name block uses single spaced lines.  The pleading numbering on the side of the page uses 24 point spacing.  This misaligns the pleading numbers from the attorney name.

On the second page, which most frequently begins with a "double" spaced line of text (24 points, for example), the cushioning is the same for the text and the pleading line numbers.  By telling Word not to center "exact line height" lines, all lines of text, whether 12 pt (single) or 24 pt (double) begin at the top of the vertical line spacing allocated to that line of text.  In that case, the pleading numbers and the attorney name at the top of the caption both begin at the top of their respective lines.  One line just has more open space below the text.

In older version of Word, you can find this setting in the Tools > Options menu.

What amazes me the most is that I see this configuration error from big firms and small alike.  I can understand this getting by a small shop, but the big firms all pay the big bucks for dedicated word processing departments.

I will consider Word training sessions if offered a sufficiently outrageous sum of cash.  Say, I bet you have wondered if there is an easy way to generate Tables of Contents and Tables of Authorities.  There is.  I bet you have wondered if there is a way to easily align pleading text up with line numbers after a single-spaced block quote screws it all up.  Yup, there sure is.  Someday I will offer a seminar that shows you how to do all of these things and more. 

AT&T's preemption argument based on Stolt-Nielsen is dead before it hits the floor

United States District Court Judge Claudia Wilken (Northern District of California) has already been gifted with the privilege of considering whether Stolt-Nielsen S. A. et al. v. AnimalFeeds International Corp. (discussed on this blog here) preempts any state law that would preclude enforcement of an arbitration agreement.  McArdle v. AT & T Mobility LLC, 2010 WL 1532334 (N.D.Cal. May 10, 2010).  Judge Wilken took care of that argument in one sharp paragraph:

Defendants assert that Stolt-Nielsen creates a substantial question as to whether the “FAA would preempt any holding that California law precludes enforcement of McArdle's agreement to arbitrate his disputes with” them on an individual basis. Mot. for Leave at 4. The Court disagrees. The issue presented in Stolt-Nielsen was “whether imposing class arbitration on parties whose arbitration clauses are ‘silent’ on that issue is consistent with the Federal Arbitration Act (FAA).” 2010 WL 1655826, at *4. The Supreme Court did not address FAA preemption. Nor did it overrule its precedent upon which the Ninth Circuit relied in Shroyer v. New Cingular Wireless Services, Inc., which held that California law on unconscionability could render an arbitration clause unenforceable, 498 F.3d 976, 986-87 (9th Cir.2007).  Stolt-Nielsen is distinguishable both on the facts and the law and, therefore, does not require this Court to reconsider its order on Defendants' motion to stay this action pending their appeal.

Slip op., at 1.  One interesting bit of information is also included in the Order.  The Ninth Circuit recently held that Shroyer continues to control the issue of unconscionability analysis under California law.  Laster v. AT & T Mobility LLC, 584 F.3d 849 (9th Cir.2009). AT&T filed a petition for certiorari in Laster, upon which they expect the Supreme Court to rule by May 24.  If the Supreme Court takes up Laster, they will be forced to explicitly address carve-outs alluded to by the dissent in Stolt-Nielsen but not addressed by the majority opinion.