District Court evaluates proper class notice in Adoma v. University of Phoenix, Inc.

United States Senior District Court Judge Lawrence K. Karlton (Eastern District of California) examined the contents of a class notice proposed by the plaintiff in Adoma v. University of Phoenix, Inc., 2010 WL 4054109 (E.D. Cal. Oct. 15, 2010).  The lawsuit alleges state law wage & hour claims, including allegations of off-the-clock work and break violations.  The Court certified the class.  The plaintiff moved for approval of a proposed Class Notice.  The Court's Order provides a good discussion of the appropriate contents in a class notice.

District Court denies motion to stay proceedings and compel arbitration while Concepcion is pending

United States District Court Judge Ronald M. Whyte (Northern District of California) denied a motion to compel arbitration, dismiss claims, or stay the matter.  Weisblatt v. Apple, Inc., 2010 WL 4071147 (N.D. Cal. Oct. 18, 2010).  The suit concerns the change away from the unlimited data plan associated with the Apple 3G-enabled iPad.  AT&T Mobility LLC moved to compel arbitration and to dismiss all claims against it.  In the alternative, AT&T Mobility moved for a stay pending a Supreme Court decision in AT&T Mobility LLC v. Concepcion, --- U.S. ----, 130 S.Ct. 3322, 176 L.Ed.2d 1218 (2010) (No. 09-893).  Defendant Apple joined in the motion to stay.

The Court denied the motion, without prejudice, saying:

Given the likelihood that the Supreme Court will speak directly to the class action waiver issue in Concepcion, compelling arbitration at this point would be unwarranted. Even though plaintiffs' arguments regarding the unconscionability of the class action waiver may have less merit under New York law, a Supreme Court decision in Concepcion is still likely to simplify the issue. Accordingly, ATTM's motion to compel arbitration is denied without prejudice.

Slip op., at 3.  The Court went on to hold:

On balance, the court finds that a stay is unwarranted. That said, the claims with respect to ATTM will likely be affected by the Supreme Court's decision in Concepcion.  Accordingly, it makes little sense to begin discovery with respect to the claims focused on ATTM. Also, the court at this time declines to decide whether plaintiff Hanna's iPhone 3GS arbitration agreement now applies to his iPad dispute. In any event, Concepcion is likely to clarify the enforceability of the iPhone 3GS arbitration agreement as well as the iPad arbitration agreement.

Slip op., at 4.  The Court then limited discovery to written discovery against Apple.

California Supreme Court activity for the week of October 18, 2010

The California Supreme Court held its (usually) weekly conference on October 20, 2010. Notable results include: 

• On a Petition for Review, review was denied in Morgan v. United Retail (July 13, 2010) [obligations under Labor Code section 226], covered previously here.
• On a Petition for Review, review was granted in Aryeh v. Cannon Business Solutions (June 22, 2010).  In Aryeh, the plaintiff argued that a continuing violation theory applied to his UCL claim, extending the period during which he could bring a claim.  The Court of Appeal rejected that argument. 

Adobe announces Acrobat X and related service enhancements

Earlier today Adobe announced the soon-to-be-released Acrobat X family of products.  Having seen a demonstration of some pre-release features, I can say that Acrobat X looks like it will accomplish several important things from the standpoint of legal practitioners.  For example, the automation tools will increase the ease with which attorneys and support staff process documents.  PDF Portfolios receive several enhancements, including the ability to control the order of documents in the PDF Portfolio (if you haven't used this feature, it is essentially using the PDF as a wrapper around a number of different document types - the documents are packaged much like an electronic binder, complete with a cover page and designer color schemes).

Acrobat.com will add an explicit tool to do what I've been manually using it for since Acrobat.com first went live.  The SendNow tool will allow users to send large files that might not successfully move through e-mail systems.  The SendNow tool will provide delivery receipts, a helpful addition for document delivery.

Personally, I am also interested in the prospect of SharePoint integration.  Combined with improvements to SharePoint functions and improved SharePoint features available through Office 2010, SharePoint might make a very serviceable substitute for the pricey document management services that target the legal industry.

I will be sure to give Acrobat X a test drive when it is available and let you know how quickly you should look to update your stale version of Acrobat.  Here's a hint that doesn't even require a test drive - if you are using Acrobat 7 or below, you must rush to upgrade; if you are using Acrobat 8, you should give some serious thought to upgrading at your earliest convenience.  I'll let you know if you get enough out of the jump from Acrobat 9 to Acrobat X to justify the same recommendation that I give for versions 8 and below.

20th Annual Golden State Antitrust and Unfair Competition Law Institute

On October 21, 2010, the Antitrust section of the State Bar will hold the 20th Annual Golden State Antitrust and Unfair Competition Law Institute.  The full day program will offer concurrent tracks for UCL and Antitrust topics.  I will be moderating the last panel of the day, on UCL Remedies and Defenses.  Anyone not already asleep by then should consume less coffee.  For more information, visit the Golden State Institute page of the State Bar website.

Cappuccitti v. DirecTV, Inc. is vacated; new opinion remands the matter for further proceedings

Cappuccitti v. DirecTV, Inc., No. 09-14107, slip op. (11th Cir. July 19, 2010), held that at least one plaintiff in a class action must meet the amount in controversy requirement of 28 U.S.C. § 1332(a).  Today, the panel said, "Subsequent reflection has led us to conclude that our interpretation was incorrect. Specifically, CAFA’s text does not require at least one plaintiff in a class action to meet the amount in controversy requirement of 28 U.S.C. § 1332(a)."  Slip op., at 2.  Perhaps the initial opinion was trial balloon.  It did not float.

California Supreme Court activity for the week of October 11, 2010

The California Supreme Court held its (usually) weekly conference on October 13, 2010.  Notable results include:

• On a Petition for Review, a grant and hold was issued in Faulkinbury v. Boyd & Associates, Inc. (June 24, 2010), covered previously here.

I previously wrote that the opinion in Faulkinbury offered nothing interesting in my opinion.  The Court of Appeal simply repeated the refrain that the trial court has fairly broad discretion when ruling on a motion for class certification.  However, after Wednesday, Faulkinbury just got more interesting.  The Supreme Court issued its grant and hold pending...wait for it...the outcome in Brinker.  One might surmise that the standard applied by the trial court in Faulkinbury may be materially affected by the outcome of Brinker.  That's interesting.  It suggests that the Supreme Court is thinking about how the certification process will be impacted by its ruling in Brinker.  In fact, the Supreme Court may already have some tentative thoughts about the likelihood of that occurring.  After all, since the trial court denied certification of a meal period claim in Faulkinbury, one could suppose that the Supreme Court is leaning towards a decision in Brinker that would change that result.

District Court denies certification in suit challenging property intrusions by telecommunications company Qwest Communications

United States District Court Judge William B. Schubb (Eastern District of California) denied, for the second time in the suit, a motion for class certification in a suit contesting the use of railroad right-of-ways by Qwest Communications International, Inc. (and other companies) to install fiber optic lines.   Regan v. Qwest Communications Intern., Inc., 2010 WL 3941471 (E.D.Cal. Oct. 5, 2010). The Court found that typicality issues of individual land ownership and the commonality problems relating to the many statutes conveying land in different ways were insurmountable problems.  For example, the Court said the following:

With regard to the miles of right-of-way subject to private conveyances, plaintiffs argue the individual deeds can be placed in groups based on common conveyance language and the court can decide motions for partial summary judgment with respect to each group on the fee versus easement issue. While plaintiffs have submitted a handful of such conveyances from the same railroad route in Kings County, California in order to show that these conveyances can use identical or similar language, (Ex. to Supp. Millea Aff. (Docket No. 193) Ex. B), the court has no evidence that there is a limited range of granting language or that there will be a limited number of potential deed “groups.” See Kirkman v. N.C. R. Co., 220 F.R.D. 40 (M.D.N.C.2004). When the private conveyances number somewhere between five hundred and two thousand, spanning hundreds of miles and multiple railroad routes, plaintiffs' offering is no assurance that interpretation of private deeds is a “common” issue at all.

Slip op., at 7.

Nationwide breach of contract class certified; laws of 48 states at issue

United States District Court Judge Susan Illston (Northern District of California) certified a nationwide class action alleging declaratory relief and breach of contract claims.  In re Conseco Life Ins. Co. LifeTrend Ins. Sales and Marketing Litigation, 2010 WL 3931096 (N.D.Cal. Oct 06, 2010).  Plaintiffs sought certification of a nationwide class, challenging certain life insurance policy changes for policies administered by defendant Conseco Life Insurance Company (“Conseco”).  The Court granted the motion to certify the nationwide class, but denied the motion to certify a California sub-class.

The interesting portion of the discussion focuses on the laws at issue:

Conseco relies heavily on Zinser and In re Paxil in contending that the variations in state law defeat certification. Both of those cases, however, concerned nationwide product liability actions involving significant variations in the state tort laws governing the multiple claims asserted by the plaintiffs. See Zinser, 253 F.3d at 541-42; In re Paxil, 212 F.R.D. at 542-44. Here, by contrast, plaintiffs assert only two claims-breach of contract and declaratory judgment-on behalf of the national class. Conseco has not identified any state-to-state variations in the law governing declaratory judgment, and Conseco overstates the extent of any variations in state contract law, including as to the definition of breach, the existence of causation and damages requirements, and the admissibility of extrinsic evidence.  First, contrary to Conseco's representations, several courts have recognized that the law relating to the element of breach does not vary greatly from state to state. See, e.g., Klay v. Humana, Inc., 382 F.3d 1241, 1262-63 (11th Cir.2004); Leszczynski v. Allianz Ins., 176 F.R.D. 659, 672 (S.D.Fla.1997). Second, plaintiffs have persuasively rebutted Conseco's assertions concerning variations in the causation and damages elements of the contract claim. Finally, the Court agrees with plaintiffs that, as neither party has asserted that the form policy contract contains ambiguous terms (rather, they offer competing interpretations based on the face of the documents), admission of extrinsic evidence should not be necessary to interpret the contractual provisions at issue. Plaintiffs' contractual interpretations may ultimately be rejected at the summary judgment stage or disproved at trial, but they are not patently untenable from the face of the documents, and do not demonstrate a lack of common issues of law.

Slip op., at 6.

The Court rejected the California sub-class, concededly asserted as an alternative pleading, because the fraud theory of liability was inconsistent with the theory underlying the nationwide class claims.

Curious about Pineda v. Bank of America? See how it went for yourself.

Yesterday the California Supreme Court heard oral argument in Pineda v. Bank of America.  Here is a portion of the Court's official extended summary of the case:

Pineda filed suit against Bank of America, alleging a violation of Labor Code section 203, on October 22, 2007 — more than a year after his injury. The Supreme Court is asked to decide whether his suit was timely filed. Pineda argues that a three-year statute of limitations applies to actions under section 203, relying on the following language: “Suit may be filed for these penalties at any time before the expiration of the statute of limitations on an action for the wages from which the penalties arise.” Defendant Bank of America disagrees, interpreting the same language to apply only when a plaintiff sues for both unpaid wages and section 203 penalties. Because Bank of America paid Pineda his final wages, albeit late, and Pineda now seeks only section 203 penalties, Bank of America reasons that a one-year statute of limitations applies and Pineda’s suit is barred as untimely.

The case was argued as part of an educational outreach session.  The Court heard argument in the Court of Appeal Courthouse in Fresno. Hundreds of students from all 9 counties in the Fifth Appellate District were given the opportunity to see the Supreme Court in operation.

You can view the oral argument at The California Channel.  Jump to about the 7:30 mark in the video to find the start of the matter.

Update on 2010-10-06 20:40 by The Complex Litigator

In my haste to publish, I left out one important detail.  My colleague, Greg Karasik, argued the case for Plaintiff Pineda.