AT&T finally allows (err, finishes testing) updates for two of its Windows Phone 7 handsets

The Windows Phone 7 update debacle is crawling to its final resting place (at least for the current set of updates...for some U.S. customers...on AT&T).  As of April 19, 2011, Microsoft was allowed by AT&T to deliver updates to Samsung Focus and LG Quantum owners (but not the HTC Surround).  Microsoft engaged in some speculation about whether the carrier-specific updates could be received by phones that had been updated though "hacker" means, such as the ChevronWP7.Updater technique delivered by Chris Walsh (who was, allegedly, told by Microsoft that his update method would prevent phones from receiving future updates), when it suggested to the public (contrary to what it told Walsh) that such updating techniques might block future updates.  As an aside, Chris became a verb when phone treated to his update tool were characterized as "Walshed."

Well, I can now confirm that the fears of brickdom were greatly overstated.  My Samsung Focus, which was somehow updated (Walshed) with the ChevronWP7.Updater tool (I am shocked, shocked to learn of "hacker" updates on my phone), recevied and applied the carrier-specific and OEM firmware updates through the normal channel yesterday.  The AT&T address book tool was installed.  The Focus-specific firmware was also updated.

As far as the potential of Windows Phone 7 for the legal set, this OS will need the "Fall" update, called "Mango," before it will have all the tools in place that most attorneys/IT departments/corporations would want for a wide deployment.  New development tools are about to be released, with access to a huge number of new APIs.  Major software developers should be able to deliver much improved productivity tools with the Mango release this fall.  What I can't wait to...read about...is whether the ChevronWP7.Updater tool that evidently worked very well for the current round of updates will be able to pull the Mango update as soon as it is ready.  This would allow phone owners to bypass the many months of "testing" that AT&T will perform.  That's right - I can't wait to read about that.

Supreme Court activity for the week of April 18, 2011

The California Supreme Court held its (usually) weekly conference on April 20, 2011.  Notable results include:

• On a petition for review, review was denied in MKJA, Inc. v. 123 Fit Franchising, LLC (January 4, 2011) (arbitration issues), covered previously on this blog here.
• On a petition for review, review was denied in Telscape Communications v. Superior Court (Gallardo) (March 7, 2011)

McDonald's sued to stop it from offering toys in Happy Meals; Opponents of personal responsibility celebrate

According to Reuters, the Center for Science in the Public Interest is representing a mother of two in a suit agasint McDonald's.  The suit alleges violation of California consumer protection laws.  McDonald's removed the suit to the United States District Court for the Northern District of California.

I have a kid.  I sometimes let her eat McDonald's.  I could say no to a request to eat there.  That's my choice.  But if McDonald's axes Happy Meal toys to deal with these claims, then I will have less choice, thanks to people that think they can do a better job than I can of raising my child.  Have we completely lost our minds?  Plenty of companies do actual, real, bad things.  We just dilute attention from real misconduct when we shove responsibility for our sloth and inattention onto businesses.  Underpaying employees: bad.  Undisclosed toxins in food or medication: bad.  Defrauding investors: bad.  Kids eating too much junk food: lack of parental discipline (unless the children are out buying their own food, in which case it is a lack of parental oversight).

In Mora, et al., v. Big Lots Stores, Court affirms denial of certification in manager misclassification case

I've comment previously that misclassification cases (especially in the retail and restaurant sectors) appear to be an increasingly difficult sell.  See post regarding Arenas v. El Torito Restaurants, Inc., 183 Cal. App. 4th 723 (2010).  Since then, I haven't seen anything to change my opinion that the tide has shifted from the Sav-on high water mark.  Yesterday, in Mora, et al. v. Big Lots Stores (April 18, 2011), the Court of Appeal (Second Appellate District, Division Seven) affirmed a trial court order denying certification of a class of Big Lots store managers alleged to have been misclassified as exempt from overtime pay and other labor code obligations.

The Court summarized the two ends of the legal spectrum defining the legal criteria applied to certification:

As the Supreme Court held in Sav-On, supra, 34 Cal.4th at page 326, the central issue in a class certification motion is whether the questions that will arise in the action are common or individual, not the plaintiffs' likelihood of success on the merits of their claims. (Accord, Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1531 ["trial court must evaluate whether the theory of recovery advanced by the plaintiff is likely to prove amenable to class treatment"].) The putative class representatives contend the trial court disregarded this standard, improperly focusing on the potential conflicting issues of fact that may arise on an individual basis rather than the common questions presented by their theory of recovery. To the contrary, the court employed the correct analysis and concluded the theory of recovery advanced—operational standardization imposed by Big Lots—was not supported by substantial evidence and thus not amenable to class treatment. No legal error was committed: "[A] class action will not be permitted if each member is required to 'litigate substantial and numerous factually unique questions' before a recovery may be allowed. . . . '[I]f a class action "will splinter into individual trials," common questions do not predominate and litigation of the action in the class format is inappropriate.'" (Arenas v. El Torito Restaurants, Inc. (2010) 183 Cal.App.4th 723, 732 [affirming order denying certification on misclassification allegations where trial court found tasks performed by restaurant managers and time devoted to each task varied widely from restaurant to restaurant].)

Slip op., at 12.  The Court noted that the outcome was much like Arenas and Dunbar v. Albertson’s, Inc., 141 Cal. App. 4th 1422 (2006).

The outcome was driven by the standard of review.  The Court emphasized on several occasions that it couldn't second guess the trial court's decision to credit Big Lots' evidence over the plaintiffs' evidence:

In essentially rejecting the putative class representatives' evidentiary submission, the court observed that for more than half of the declarants the percentage of time estimated to have been spent on non-managerial, non-exempt duties was different from the estimates given in deposition testimony or statements to third party prospective employers.

Slip op., at 14, n. 10.  The trial court also credited the very individualized manager declarations submitted by Big Lots over the declarations from the plaintiffs.  The Court of Appeal found that that trial court did not abuse its discretion because substantial evidence supported the trial court's conclusion.  This is the anti-Sav-on.

Seymore v. Metson Marine opinion amended after rehearing

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

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"

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

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?