District Court Magistrate Judge grants motion to compel deposition of withdrawing named plaintiff who was not a putative class member

United States Magistrate Judge Suzanne H. Segal (Central District of California) granted defedants' motion to compel the deposition of a named plaintiff that had filed a motion for voluntary dismissal and was not a putative class member.  Dysthe, et al. v. Basic Research, L.L.C., et al., ___ F.R.D. ___, 2011 WL 1350409 (C.D. Cal. Apr. 8, 2011).  The named plaintiffs Shalena Dysthe, Eric Hall and Chaunte Weiss filed a class action complaint alleging that various defendants made purportedly false claims concerning the efficacy of Relacore weight-loss products.  [I am shocked, shocked to hear of false claims related to the efficacy of a weight-loss product.]  When the defendants sought to schedule depositions, they were notified that Hall intended to dismiss his claims with prejudice.  The defendants responded that they would stipulate to the dismissal after the deposition.  Motions ensued.  Defendants argued that Hall's testimony was still relevant to certification.  Plaintiffs argued that Hall wouldn't even be a class member when his claims were dismissed with prejudice.

The Court explained, "Generally, to depose putative or absent class members, a party must show that 'discovery is both necessary and for a purpose other than taking undue advantage of class members.'"  Slip op., at 3.  Then the Court observed that, because Hall had not been dismissed, the showing required for discovery from putative class members was not applicable; Hall was still a party.  Even when dismissed, the Court found that Hall's testimony regarding his experience with Relacore would be highly relevant.

District Court grants motion to deny class certification where plaintiff not a victim of the alleged FDCPA violation

United States District Court Judge M. James Lorenz (Southern District of California) granted a defense motion to deny class certification.  Mansfield v. Midland Funding, LLC, 2011 WL 1212939 (S.D. Cal. Mar. 30, 2011).  Plaintiff, on behalf of a putative class, alleged that defendants were routinely filing and assisting in the litigation of lawsuits to collect time-barred consumer credit card debt incurred primarily for personal, family or household purposes, in violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq.  If true, that is very shady conduct.  But wait!  We have a problem:

Midland's claim against Mansfield was timely as determined by the Arizona state court. That judgment as not been challenged. Because Midland's claim against Mansfield was found to be timely, the action was not filed on a time-barred debt and plaintiff has not suffered an injury in fact or an injury based on defendants' filing of their action against him in the Arizona court. Without a claim, Mansfield may not represent others who could have such a claim.

Slip op., at 3.  The Court looked no further at certification requisites, given that the threshold issue of standing could not be satisfied.

California Courts website may be redirecting to new site now

I just attempted to view www.courtinfo.ca.gov and was redirected to www.courts.ca.gov.  It is possible that dns setting are being updated now.  However, opinions are still displaying from courtinfo.ca.gov, so I don't know what will happen when the full transition is completed.  If everything at courtinfo.ca.gov redirects to courts.ca.gov, links on this site to slip opininos may end up broken.  But you weren't relying on slip opnions for more than a few weeks at most, were you?

If AT&T won't update Windows Phone 7 phones, you can do it yourself

Not that I'd ever advocate circumventing a mobile carrier because, unlike virtually every other mobile carrier on the planet, it won't release operating system updates for Windows Phone 7 (yes, AT&T, you are that carrier), but there is now a handy tool that let's you do just that.

Windows Phone Secrets has a story on this simple do-it-yourself utility.  Chris Walsh wrote the program that allows the update in spite of a recalcitrant carrer and provide the utility at his blog.  Simple Mobile Review provides a documented, step-by-step guide to using the utility.

Conspiracy theories already exist, but the utility Chris wrote was only possible after Microsoft released a support tool for Windows Phone 7.  Maybe it was coincidental that the tool allowed easy bypass of a non-cooperative carrier.  Or maybe Microsoft put a tool out there knowing precisely what could be done with it.  Seems a bit much to say that it was lucky coincidence that a tool capable of circumventing carrier update blocks was so easy to use for that purpose that it took all of one day to write the program to implement it for that purpose.  But I'm no programmer, so how would I know? 

I consider this (and by "this," I mean jabbing a stick in AT&T's eye) to be part of my role as a pro-consumer advocate.  But these tips are about self-empowerment.

Update on 2011-04-05 05:43 by The Complex Litigator

I have it on exceeeeedingly good authority that this update method works flawlessly.  Yay!  The chevronWP7.Updater is currently offline.  Awwww.  It may just be that the developer is revising the utility.  Or maybe some thugs in ties and suits (wait, that's me...rats), errr, some esteemed legal counsel for some offended entity issued the good ol' cease and desist (redundant) demand.  Anyhow, it works, and it's out there.  So long as the Microsoft utility can pull updates directly, this may prove to be the ultimate carrier workaround.

If you can't find it at the original source, search for ChevronWP7.Updater at places like XDAdevelopers.  It's only a matter of time before a mirror springs up.

District Court holds defendant to four corners of complaint when granting motion to remand

United States District Court Judge William Alsup (Northern District of California) granted a motion by plaintiff Pineda to remand a class action back to the California Superior Court from whence it came.  Pineda v. Bank of America, N.A., 2011 WL 1134467 (N.D. Cal. Mar. 28, 2011).  "Wait, isn't that case name very similar to a recent decision from the California Supreme Court regarding statutes of limitation in Labor Code section 203 cases?"  So right you are.  That's why this isn't a garden-variety remand order.  In this case, the defendant argued that it analyzed the complaint back in 2007 and concluded that the amount in controversy should have been calculated on the basis of a one-year statute of limitation.  But when the California Supreme Court held otherwise, Bank of America claimed that it learned for the first time that the case was removable.  Judge Alsup rejected that argument, observing that the parties agreed that the complaint alleged a four-year statute of limitation, and under that four-year statute, the amount in controversy exceeded $5 million.  The time to remove expired back in 2007, when the defendant was in possession of a complaint that, within its four corners, alleged an amount in controvery high enough to invoke CAFA jursidiction.

And, as I noted when reporting on Pineda previously, this matter is handled by Gregory Karasik at Spiro Moss.

Adobe Acrobat X Review Part 1: Overview and Feel/Appearance Changes

I've been meaning to deliver a comprehensive review of Acrobat X for about three months now.  It's not that I don't like the product; it is an exceptional piece of productivity software.  Rather, life has been in the way.  Between an absurd amount of work to do and moving into a new home and a six year old daughter that demanded the scraps of time between working and packing and moving, well, something had to give.  But this review has been slowly taking shape, in scraps of sections and screenshots, until it was close enough to done that I could see the light at the end of the tunnel.  So, much delayed, here is my comprehensive review of Acrobat X, with a strong slant towards the smaller law office.

Overview

As I said about Acrobat 9 when I compared it to Acrobat 8, this is a mature product.  Changes in products with this degree of longevity tend to be, for the most part, evolutionary rather than revolutionary.  Think about Microsoft Word for a minute.  The differences between Word 2010 and Word 2007 are not the giant leaps that happened when Word 2.0 (the first version I used - and how amazing it seemed back then) stepped up to its next version.  The same can be said of Acrobat X, though it includes a few revolutionary suprises amonst the evolutionary improvements.

Acrobat X family includes Acrobat X Pro, Acrobat X Standard, Adobe Reader X, and the Acrobat X Suite (Acrobat X Pro, Adobe Photoshop CS5, Adobe Captivate 5, Adobe Presenter 7, Adobe LiveCycle Designer ES2, and Adobe Media Encoder CS5).  I am going to focus my review on the standalone produce, Acrobat X Pro, and its features, while occasionally identifying features that are not available in the Standard edition (if you are going to buy Acrobat X, just get the Pro edition already - you know you want all the features).

Opinions as to the top new features can vary, depending upon what you do most with Acrobat.  But, generally speaking, the most significant new features in Acroabat X Pro are: 

• Customize PDF Portfolios by selecting from new layouts, visual themes, and color palettes (Arcrobat 9 introduced PDF portfolios, but formatting and ordering of contents was limited)
• Automate multi-step tasks and share with others using the new Action Wizard (save a multi-step document processing macro and share it throughout your firm)
• Enhanced paper-to-digital functionality for scanning and OCR (prior versions had OCR, but the file sizes and accuracy are both improved, as are the capabilities of export tools)
• Integrates with SharePoint (considering how impressive the latest version of SharePoint is a document management solution that anyone can afford, this is a big feature for law firms)
• Streamlined commenting and access to mark-up tools
• Customizable Quick Tools area (make Acrobat X work better for you by placing your frequently used tools right where you need them)
• Experience enhanced PDF viewing with Reading Mode (much like kiosk mode in a browser, the "chrome" is limited and the document is the focus)
• Improved web experience to open and view PDF documents (better solution for converting web sites to pdfs)
• Work with Microsoft Windows 7 and Office 2010 applications
• Send and store large documents using services at Acrobat.com (I've already found SendNow at Acrobat.com to be an efficient tool for sharing very large files; Acrobat X integrates those online features)

Other enhanced feature of great importance in the legal field include: 

• Enhanced removal of metadata
• Better form creation tools
• Enhanced document comparison tool
• Export search results to a PDF or spreadsheet (this is an amazing feature if you want to keep a record of how you found key information in a document set)

While I still maintain that this is an evolutionary update, there are some impressive new features in this edition.

Feel and Appearance Changes

It looks to me like Adobe decided to incorporate appearance elements throughout its product line, much like Microsoft has done with the Ribbon in its Office applications.  The Acrobat X Pro interface now makes use of a tools area that is not unlike the tools panels familiar for years to Photoshop product users.  You need to see the clean new interface to understand, but, if you read this review without access to a full browser, the idea is that frequently used options are available in a Tools/Comment/Share panel on the right side of the Acrobat interface, but the panel gets out of your way when you don't need it.  Here is a screen shot of Acrobat X in its basic configuration:

Screenshot 1

Note the "Tools" "Comment" and "Share" text above and on the right of the document.  When you select one of the "links," for lack of a better term, a variety of tools appear in a panel on the right side of the document:

Screenshot 2

In this example, the panel has opened to the "Action Wizard," which includes preset actions and a tool for creating your own actions.  [Note:  "Actions" are like macros.  You could, for example, create an action that applies a customized bates label to documents.]  The tools you see in the panel on the right can also be accessed through menu controls.  Whatever works best for you is the way you should use the program; there is no one right method for accessing features.

Returning, for a moment, to my comment about a unifying design theme in Adobe programs, take a look at this screenshot from Photoshop Elements 8:

Screenshot 3

A graphics creation and editing program will have very different features from Acrobat, but the common design cues are unmistakeable.  I consider this to be a major plus.  When programs place the same types of tools in the same places, it makes it that much easier to pick up a new program and hit the ground running.  It makes the software more approachable, and I think that Adobe has, over the last two versions of Acrobat, stepped back from a features-only focus to a broader viewpoint where user experience is as important as the obligatory list of new and upgraded features.

Certainly, the presence of the "Share" panel in Acrobat X (and in Photoshop, for that matter) highlights the increasing recognition that "cloud-based" services will soon match or surpass the desktop computer in importance.  SendNow is integrated in Acrobat X, but so is SharePoint access.

Acrobat X is a better looking, easier-to-operate update to the mainstay in electronic document creation.  Acrobat X is a worthwhile upgrade from Acrobat 9 and a must-have upgrade if you are using any earlier version of Acrobat.

The next Part of this review will dive into some of the key features that should interest attorneys.  When the review is complete, I will creat a Table of Contents post that links back to each review part.

Rest break and wage statement claims denied certification; Court appears to confuse PAGA requirements with other civil claims

United States District Court Judge Susan Illston (Northern District of California) denied certification in a suit by security guards alleging, among other things, failure to provide adequate rest breaks and failure to provide adequate wage statements.  Temple v. Guardsmark LLC, 2011 WL 723611 (N.D.Cal. Feb 22, 2011).  The rest break analysis was not particularly controversial.  The Order suggests that the defendant had a facially lawful policy and a large number of declarants supporting its practices.  The Court also agreed with defendant's observation that "even if plaintiffs have isolated one general question of whether the narrow California-specific policy displaced the general, national always-on-duty [policy], that question does not have a common answer."  Slip op., at 6.

The problematic portion of the Opinion concerns the wage statement claim.  There is no mention anywhere that the wage statement claim is purely derivative of a PAGA claim.  But the Court seems to impose an administrative exhaustion claim on Labor Code section 226:

California Labor Code Section 226(a) requires wage statements to show “all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.” California law also requires that employees be paid double their regular rate of pay for every hour worked over twelve hours in a single day. Cal. Labor Code § 510. Finally, California requires that an “aggrieved employee or representative ... give written notice by certified mail to the Labor and Workforce Development Agency and the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation,” before bringing a civil action based on violation of Section 226(a) of the Labor Code.  Cal. Labor Code §§ 2699.3, 2699.5.

Slip op., at 7.  It is settled law in California that PAGA did not displace any civil actions that could have been brought prior to its passage.  And there is no reason to conclude that PAGA requires LWDA exhaustion for anything other than PAGA claims.  It is unclear from the Order why this issue is discussed in this way.  It may be that the plaintiff attempted to circumvent a statute of limitations issue by claiming that a PAGA claim for other violations gave sufficient notice of the wage statement claim to permit relation back to the filing of an earlier complaint.  Whatever the case, the Order is dangerously unclear and incorrectly suggests an exhaustion requirement under 226 that does not exist.

Reasonable lodestar hourly rates in the Northern District of California

For those keeping track of such things, United States District Court Judge Marilyn Hall Patel (Northern District of California) found "reasonable attorneys fees based on rates of $650 for partner services, $500 for associate attorney services and $150 for paralegal services. See Suzuki v. Hitachi, 2010 WL 956896 *3 (N.D.Cal. March 12, 2010)."  Faigman v. AT&T Mobility LLC, 2011 WL 672648 (N.D.Cal. Feb 16, 2011).  The opinion also noted that counsel requesting a higher rate should provide information supporting the departure from those presumptively reasonable hourly rates.

In re Baycol Cases I and II provides more guidance on operation of "death knell" doctrine in class action appeals

In California, the right to appeal is generally governed by the “one final judgment” rule, under which most interlocutory orders are not appealable.  (See Code Civ. Proc., § 904.1.)1  But Daar v. Yellow Cab Co.,  67 Cal.2d 695 (1967) concluded that an exception was necessary because orders dismissing all class action claims might in some instances escape review.  The Supreme Court created what is now referred to as the “death knell” doctrine, allowing a party to appeal such class action claim dismissal orders immediately, even though they are not final.  In re Baycol Cases I and II (February 28, 2011) marks the the Supreme Court's return to that docrine.

In 2007, after consolidation with other actions in a Judicial Council Coordinated Proceeding, Plaintiff filed a first amended complaint, adding to the UCL and unjust enrichment claims a claim under the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.). Bayer demurred to both the class allegations and each substantive claim. On April 27, 2007, the trial court sustained the demurrer in its entirety without leave to amend. It thereafter denied Shaw's motion for reconsideration on both class and individual claims and entered a judgment of dismissal. Bayer served a notice of entry of judgment on October 29, 2007, and Shaw filed his notice of appeal on December 20, 2007. The Court of Appeal reversed dismissal of Shaw's individual UCL claim, concluding he should have been granted leave to amend. However, it declined to consider on the merits the appeal of the class claims dismissal and instead dismissed that portion of the appeal. Relying on cases that have held death knell orders terminating class claims are immediately appealable, the Court of Appeal reasoned that, upon entry of the April 27, 2007, order sustaining Bayer's demurrer, the class claims dismissal, unlike the individual claims dismissal, was appealable. Consequently, the December 20, 2007, notice of appeal was, as to the class claims, untimely. (See Cal. Rules of Court, rules 8.104, 8.108(e).)

The Supreme Court reversed, concluding that the preservation of individual claims is an essential prerequisite to application of the death knell doctrine. The doctrine renders appealable only those orders that effectively terminate class claims but permit individual claims to continue. When an order terminates both class and individual claims, there is no need to apply any special exception to the usual one final judgment rule to ensure appellate review of class claims. Instead, routine application of that rule suffices to ensure review while also avoiding a multiplicity of appeals.

Windows Phone 7: What's the deal?

"Murder will out, certain, it will not fail." –Geoffrey Chaucer

Sorry to have been remiss in my posts recently, but a move to a new home has been far longer and far more painful than anticipated.  That doesn't mean that I'm not paying attention to current events; I just haven't had time to write about them.

One current event that has been on my radar involves Microsoft's new mobile phone operating system, creatively called Windows Phone 7.  I was very excited by the previews I saw.  I dumped my iPhone for one of these phones on release day.  The operating system is, in my opinion, much more elegant than the iPhone OS.  I still like it.  One problem: the phone updates that Microsoft promised to release before the end of 2010 still aren't here.  Whose to blame?  Microsoft?  The various carriers?  Handset manufacturers?  The truth will out, as they say.

Microsoft was painfully silent about what was happening.  It didn't say anything about what was happening or where the blame who  Then the Interwebs began to pound away (e.g., this post on the Windows Team Blog and this AT&T discussion thread on Facebook, and, yes, I gave both of them a hard time).  Then Microsoft announced that all was well with the "NoDo" update and announced its release.  Problem is, nobody was receiving updates...at least on AT&T.  Then some industrious snooper found a  page on microsoft.com that clears things up a bit - the Where's My Phone Update page.  Notice (if you care) how the AT&T phones are all in the "testing" phase, while other phones have update delivery scheduled.  I call horse hockey on AT&T.  It isn't "testing" this update.  The update was done in December.  I believe that I am officially being jerked around.

Very poor form, AT&T.  You deserve all the contempt you receive on this issue.  So do you, Microsoft, for being such wimps about a project that you can't afford to let flop out the gate.  One might even say that I might not have purchased the phone or would have paid less for it had I known the truth about how updates would (or would not) work to add missing features in a timely manner and fix bugs. I feel like I am the target of unfair competition...

Update on 2011-03-24 23:21 by The Complex Litigator

Ars Technica has some excellent coverage of the silent goliaths in a post from earlier today.