American Nurses Association v. O'Connell invalidates as illegal a portion of a class action settlement involving rights of students with diabetes

Class actions involving allegations of discrimination regularly include injunctive relief provisions as part of a settlement or judgment.  However, the complexity of these types of actions increases the likelihood that settlement terms will have unintended consequences.  In American Nurses Association v. O'Connell (June 8, 2010), the Court of Appeal (Third Appellate District) reviewed a challenge to terms of a class action settlement between public school students and Jack O'Connell, in his capacity as the Superintendent of Public Schools for California, the Board of Education of California and the individual members of the Board of Education, the California Department of Education (CDE), and two local school districts and their superintendents.  The students alleged defendants violated various federal laws (ADA and others) by failing to ensure the provision of health care services to students with diabetes, including insulin administration, that was necessary to enable those students to obtain free appropriate public education.  The settlement of that action required, among other things, the issuance of an advisory by the CDE about insulin administration.  The advisory took the position that "in order to comply with federal law, California law should be interpreted to allow, if a licensed person is not available or feasible, trained unlicensed school employees to administer insulin during the school day to a student whose Section 504 Plan or IEP requires such insulin administration."  (Slip op., at 3.)

The American Nurses Association and the American Nurses Association/California filed an action against O'Connell as Superintendent of Public Instruction and the CDE challenging section 8 of the advisory, the portion of the legal advisory that permits unlicensed school employees to administer insulin to students with diabetes.  The Nurses Associations alleged that section 8 is inconsistent with the Nursing Practice Act (NPA) (Bus. & Prof. Code, § 2700 et seq.) and is an illegal regulation implemented by the CDE without compliance with the Administrative Procedure Act (APA) (Gov. Code, § 11340 et seq.).

The trial court agreed with the Nurses Associations, ruling that the NPA prohibited the administration of insulin by unlicensed school employees.  The trial court also rejected the argument that California's laws were preempted by federal law.  Finally, the trial court determined that the challenged portion of the legal advisory was an invalid regulation under the APA.  The Court of Appeal affirmed the finding that current California law does not permit the administration of insulin by unlicensed school employees.  Having so ruled, the Court of Appeal did not reach the alternative basis for the trial court's ruling.

The only moral of the story is that you must craft your injunctive relief language with great care.

How-to: Fix PDF files that are rejected by the Central District filing system because of links - The Simple Method

I recently provided a method for dealing with PDFs rejected by the CM/ECF filing system (as it is implemented by the U.S. District Court for the Central District of California).  That method is detailed here.  While that process of exporting a problematic document out to a new document format (XPS) and then back into PDF deals with a number of problems, not everyone will find it to be a comfortable solution.

Here is an alternative method for removing links from a PDF, if you have Acrobat 9:

1. From the Advanced menu, select "Document Processing"
2. Choose the "Remove All Links..." option
3. Do it

That does it.  External hyperlinks distress the CM/ECF system, which, presumably, has been set to search for such links in order to prevent exploits that would lure unsuspecting clerks and judges to malicious websites.

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.