Seymore v. Metson Marine opinion amended after rehearing

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The Court of Appeal (First Appellate District, Division Three), issued its initial opinon in Seymore v. Metson Marine, Inc. on February 28, 2011).  Today, the Court issued an ameded opinion.  Seymore v. Metson Marine, Inc. (April 15, 2011).  I haven't had a chance to compare the opinions, so I'm not sure whether the opinion changed in any substantive way, or whether the Court simply addressed additional points raised during rehearing.  The opinion is four pages longer; however, the Court's reversal of the trial court remains in place.

Despite daunting facts, Court of Appeal confirms that California class actions are "opt-out" classes

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Use of an opt-in approach for class actions has been rejected as contrary to California law.  Hypertouch Inc. v. Superior Court, 128 Cal. App. 4th 1527 (2005).  In Los Angeles Gay & Lesbian Center v. Superior Court, the rule in Hypertouch was tested with a more challenging set of facts, namely, the need to protect medical privacy rights.  The Court of Appeal (Second Appellate District, Division One) held, in Los Angeles Gay & Lesbian Center v. Superior Court (April 13, 2011), that the opt-out rule stated in Hypertouch is indeed the rule for class notice.  However, the Court fashioned other relief intended to protect the substantial privacy interest in medical information.

This matter was before the Court of Appeal for the second time.  In Bomersheim v. Los Angeles Gay & Lesbian Center, 184 Cal. App. 4th 1471, 1478 (2010) (Bomersheim I), the Court reversed the denial of class certification.  The matter alleged that, from January 1999 to March 2004, the Center administered an incorrect form of penicillin to person with confirmed or suspected cases of syphilis.

Once the matter was certified, the issue of notice became a focus of the litigation.  The Center argued that, due the sensitive nature of medical nature of the claims at issue, the court should utilize an opt-in mechanism.  The trial court held that an opt-out notice was appropriate and the Center filed a petition for a writ of mandate.  The Court heard the matter, saying, "This case presents the novel issue of whether an opt-out class is appropriate under California law where privacy rights and the physician-patient privilege will be severely compromised by the traditional opt-out procedure."  Slip op., at 11.

In concluding that opt-out notices were the only appropriate approach to class action notice proceedings, the Court said:

We recognize the benefits of a class action do not as readily accrue where members must affirmatively join the class. Here, the putative class members are those seeking free medical advice, and only approximately two-thirds of them responded to the Center's explanation of the error in medication and sought free retreatment. It is less likely that such members would affirmatively seek to join a class. Without the mandatory joinder effect of an opt-out class action, the Center will not obtain res judicata effect of a judgment; small individual class plaintiffs will not obtain the benefit of a settlement; and the cost of administering many small actions will not be avoided. Nonetheless, the Center points out that it has been more than six years since the error in medication, and if small class plaintiffs had wanted to come forward and file individual suits, they would have. This fact only underscores the point that the class plaintiffs in this action are likely of limited means and have limited access with which to pursue their claims judicially. A class action in which they automatically become participants benefits them.

Slip op., at 16-17.  However, the Court issued very specific instruction to protect the privacy of class members from disclosure without consent:

To the extent putative class members opt-out of the class, their names, other identifying information, and Medical Information shall not be subject to disclosure and shall remain sealed. With respect to those class members who do not opt-out of the class action, no class members' name, identifying information, or medical information is to be disclosed without that class members' prior authorization. Further, the trial court is to take steps to ensure that the names, identifying information, and medical information of the class members are not subject to disclosure under any circumstances in any public proceeding or public filing.

Slip op., at 24.  The Court limited disclosure of the class list to the third party administrator that would handle mailing of the notice.

Microsoft finally admits that carriers can block updates to Windows Phone 7 without using word "block"

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Not that anyone believed otherwise, but Microsoft admitted this morning at MIX'11 that the update process for Windows Phone 7 can be stifled by mobile carriers.  The Live Blog at Day 2 of MIX'11 in Las Vegas includes comments from a number of reporters that specialize in Microsoft coverage.  My Windows Phone 7 (running the NoDo update on an AT&T phone thanks to the intervening magic of technology pixies) is fantastic, but it's hard to recommend this train wreck to law firms as the mobilie solution for attorneys.  I'll take a wait-and-see-and-don't-hold-my-breath approach as we run through this firedrill again in the fall with the much more substantial "Mango" update.

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

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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

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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

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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

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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.

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

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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

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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

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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.