Finally a legal blog that isn't a snooze-fest: Law and the Multiverse

It has been some time since I last mentioned a new legal blog.  I think that's mostly because I tend to black out while reading about legal topics, awakening later with a keyboard imprint on my forehead and no recollection of what happened.  Luckily, I found one that is unusual enough that I made it through several posts still coherent enough to write about it.

Law and the Multiverse tackles the topics nobody else would, like how to insure against destruction by supervillians, whether RICO can be used against the Legion of Doom, and what happens when a murder victim comes back to life.

Thanks to Mike Braun for the tip to the New York Times story.

Alvarez v. T-Mobile USA, Inc. stayed pending Concepcion

United States District Court Judge William B. Shubb (Eastern District of California) stayed a consumer class action pending against T-Mobile USA, Inc. until a decision is rendered in AT&T Mobility LLC v. Concepcion, --- U.S. ----, 130 S.Ct. 3322 (2010).  Alvarez v. T-Mobile USA, Inc. (E.D. Cal. December 7, 2010).  As with all cell phone companies bent on world domination and ultimate evil, T-Mobile's consumer contract includes an arbitration provision with a class action waiver.

Court certifies wage statement, late pay claims for 20,000 seasonal tax preparers working for H & R Block in California

United States District Court Judge Susan Illston (Northern District of California) certified a class action alleging violation of Labor Code §§ 203, 226 and 2699.   Lemus v. H&R Block Enterprises, LLC (N.D. Cal. December 7, 2010).  It appears from the decision that the case was trimmed down from a broader set of claims; a Fourth Amended Complaint was filed by stipulation of the parties after the motion for certification was filed.  The Court's fairly simple discussion suggests that the Court viewed these statutory violations as well-suited to class treatment.  It is interesting to see that, thus far, most plaintiffs are apparently avoiding the uncertainty of pursuing a representative action under PAGA by simply certifying that claim along with other claims.

Mileage reimbursement class certified in part; class definition corrected by Court

United States District Court Judge Susan Illston (Northern District of California) certified in part a class action alleging the failure to reimburse work-related mileage expenses.  Wilson v. Kiewit Pacific Co. (N.D. Cal. December 6, 2010).  As an initial matter, the Court refused to certify a class of "all" employees, noting that it was overbroad:

As an initial matter, plaintiff cannot seek to certify a class of “all current and former” California employees of defendant from July 6, 2006 to present. Motion at 3; Reply at 3-4. On its face, that definition is impermissibly overbroad as it includes employees who never incurred unreimbursed business mileage expenses under California law.

Slip op., at 3.  Next, the Court observed that the plaintiff did not submit evidence demonstrating that the Northern California district was operated under the same policies as the Southern California District.  The Court found the plaintiff inadequate to represent the Northern California District employees on the basis of thin evidence of any uniform policy that was actionable.

With respect to the Southern California District, the Court agreed with the defendant that the plaintiff's proposed class definition was problematic, but not for the reason argued:

The Court agrees that there is a problem with the way plaintiff has proposed to define this particular subclass, but not the ascertainability problem defendant asserts. Instead, plaintiff's proposed definition-all Southern California district employees who drove their non-company owned vehicles “over” 25/35 miles-would seem to include only those who received some reimbursement under defendant's policy and not those employees who drove under 25/35 miles but were nonetheless owed reimbursement for non-commute time under plaintiff's theories. The Court doubts plaintiff intended to exclude those employees from the proposed class.

Slip op., at 7.  The Court then revised the class definition, declaring it ascertainable and better defined:

All of defendant's past and present non-union employees working in the Southern California district at any time from July 6, 2005 to present who were not reimbursed for non-commute mileage expenses incurred in using personal vehicles to travel to off-site meetings or trainings.

Slip op., at 7.  This, in particular is very helpful to litigants.  It demonstrates an engaged Court that has provided a concrete example of how to refine and improve a class definition.

The Court found unpersuasive the defendant's argument that some class members had individual deals in place to get company cars.  The Court finished by offering some comments about the obligation to supplement witness lists provided with initial disclosures, finding that those concerns were not at issue due to the rapidly shifting nature of the plaintiff's claims.

"The government may not compel a commercial ISP to turn over the contents of a subscriber's e-mails without first obtaining a warrant based on probable cause."

On December 14, 2010, the U.S. Court of Appeals for the Sixth Circuit held, in United States of America v. Steven Warshak (6th Cir. December 14, 2010), that the" government may not compel a commercial ISP to turn over the contents of a subscriber's emails without first obtaining a warrant based on probable cause."  Slip op., at 23.  The Court actually found that the e-mail of today is entitled to the same protection as the postal mail of days long past.  Score one for the protection of constitutional rights.  Don't get the wrong idea though; Steven Warshak and the other defendants are not good citizens.  Lot's of mail and wire fraud convictions were affirmed.

Sacks v. City of Oakland examines fees under Code of Civil Procedure section 1021.5 and common fund doctrine

For those interested in the extent to which attorney's fees are recoverable under two theories, the common fund doctrine and Code of Civil Procedure § 1021.5, a decision issued today by the Court of Appeal (First Appellate District, Division One) reviews those bases for fee awards.  In Sacks v. City of Oakland (December 10, 2010), the Court of Appeal reviewed a judgment after a bench trial in a mandate action challenging the allocation of and use of tax revenue collected by the City of Oakland pursuant to Measure Y.  The decision is interesting mostly for the fact that it discusses the scenarios under which attorney's fees are either unlikely to be awarded or are entirely unavailable.

In Greenwood v. Compucredit Corp., District Court denies motion to decertify, criticizing Cohen line of cases

United States District Court Judge Claudia Wilken (Northern District of California) denied defendants' motion to decertify a class alleging violations of the federal Credit Repair Organization Act (CROA), 15 U.S.C. § 1679 et seq., and California's Unfair Competition Law (UCL), Cal. Bus. and Prof.Code § 17200 et seq.  Greenwood v. Computcredit Corp., 2010 WL 4807095 (N.D. Cal. Nov. 19, 2010).  The defendant relied, in part, on Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023 (8th Cir.2010).  While my amicus briefing efforts were not successful in Avritt, this Court didn't pull any punches:

The decision in Avritt does not bind this Court, and it is unpersuasive. Avritt acknowledges that federal courts “do not require that each member of a class submit evidence of personal standing.” 615 F.3d at 1034.

Slip op., at 3.  The Court the criticized Avritt on another ground:

Defendants rely on Avritt for the additional argument that the class should be decertified for failure to satisfy Rule 23(b) (3), because of individualized issues of reliance. The present case is factually distinguishable on this point. First, class members in this case by definition have been exposed to Defendants' advertising, unlike the proposed class members in Avritt. The class in this case comprises California residents who were mailed a solicitation by CompuCredit Corporation for the issuance of an Aspire Visa by Columbus Bank and Trust. In Avritt, class members were not required to have received any promotional materials, and the named plaintiffs did not recall receiving any printed sales materials or brochures.

Slip op., at 4.  The Court then took exception with the analysis of Tobacco II supplied by Cohen:

To the extent that the court of appeal's decision in Cohen might be read to require individualized evidence of class members' reliance, it is inconsistent with Tobacco II. The California Court of Appeal made the same point in In re Steroid Hormone Product Cases, 181 Cal.App.4th 145, 158, 104 Cal.Rptr.3d 329 (2010). The court stated:

As Tobacco II made clear, Proposition 64 did not change the substantive law governing UCL claims, other than the standing requirements for the named plaintiffs, and “before Proposition 64, ‘California courts have repeatedly held that relief under the UCL is available without individualized proof of deception, reliance and injury.’ [Citation]” Id. (citing Tobacco II, 46 Cal.4th at 326, 93 Cal.Rptr.3d 559, 207 P.3d 20).

This is a question of the meaning of a California state law, on which the California Supreme Court's decision in Tobacco II is determinative.

Slip op., at 5.  Interesting that a District Court seems more clear on the weight given to California Supreme Court decisions than some Courts of Appeal.

Ninth Circuit defers the submission of Mazza v. American Honda Motor Company, Inc. pending outcome in Wal-Mart Stores, Inc. v. Dukes

In a somewhat dodgy maneuver, the Ninth Circuit, on December 7, 2010, issued an Order deferring submission of Mazza v. American Honda Motor Company, Inc. pending a decision in Wal-Mart Stores, Inc. v. Dukes, 603 F.3d 571 (9th Cir. 2010) (en banc), cert. granted, --- S.Ct. ----, 79 U.S.L.W. 3128 (U.S. Dec. 6, 2010) (No. 10-277).  Huh?  That seems like a stretch, unless you think that Wal-Mart will issue some sort of proclamation about all nationwide class actions, which seems to be far down on the list of likely outcomes.  More about Mazza here and here.

California Supreme Court activity for the week of December 6, 2010

No conference was held this week.

Certiorari granted by United States Supreme Court in Wal-Mart v. Dukes

On December 6, 2010, the United States Supreme Court granted certiorari in what will eventually be known as Wal-Mart v. Dukes.  The Supreme Court limited review to two issues, Question I from the Petition, and a second issue included by the Court.  The Court said:

The petition for a writ of certiorari is granted limited to Question I presented by the petition. In addition to Question I, the parties are directed to brief and argue the following question: "Whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a)."

Question I from the Petition is as follows:

Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)—which by its terms is limited to injunctive or corresponding declaratory relief—and, if so, under what circumstances.

Petition, at i.  The Court declined to hear Question II, which asked, "Whether the certification order conforms to the requirements of Title VII, the Due Process Clause, the Seventh Amendment, the Rules Enabling Act, and Federal Rule of Civil Procedure 23."

This decision could run the gamut from a highly fact-specific outcome, to a treatise on discrimination class actions, to a wholesale commentary on the Rule 23(a) requisites.  Considering the scope of issues covered in the Dukes v. Wal-Mart en banc decision, it's very difficult to handicap this race.