Upcoming seminar for young attorneys

On June 25, 2011, I will be speaking at a seminar entitled "Basic Training For Young Lawyers," presented by Attorney Boot Camp, an educational provider created to "1) help young attorneys bridge the gap from a legal education to practical legal skills and 2) to provide all attorneys with specialized training seminars on a wide variety of subjects."

The semindar details are as follows:

• Date: June 25, 2011
• Time: 8:30 a.m. to 5 p.m.
• Location: Southwestern Law School, 3050 Wilshire Blvd., Los Angeles, CA 90010
• MCLE: 6 hours, including 1 hour of Ethics

For more on their seminars, visit Attorney Boot Camp.

Ninth Circuit discusses individual privacy interests in FOIA context

While not directly applicable to class member identity discovery, the Ninth Circuit recently provided some guidance about individual privacy interests and how they are weighed against a countervailing set of interests to keep them confidential.  Prudential Locations LLC v. U.S. Department of Housing and Urban Development (9th Cir. June 9, 2011) involved a Freedom of Information Act request for identification of various informants that advised the U.S. Department of Housing and Urban Development (“HUD”) about their suspicions that Prudential Locations LLC was violating the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601-2617, which was passed, in part, to “eliminat[e] . . . kickbacks or referral fees that tend to increase unnecessarily the costs of certain settlement services.” 12 U.S.C. § 2601(b)(2).

The Court described the process of review as one in which the Court must first identify a non-trivial privacy interest.  If such an interest is identified, the Court must then “balance the privacy interest protected by the exemption[ ] against the public interest in government openness that would be served by disclosure.”  Finally, the Court said that it must evaluate the likelihood that a privacy invastion would occur.  The Court concluded that HUD had failed to provide the trial court with sufficient information to rule on the request and remanded to give HUD an opportunity to do so.

While not precisely analagous to the test applied when discovery of class member identity is sought, this opinion at least suggests the type of analysis that must occur then balancing an asserted privacy interest in identity and contact information with the strong right to discover that information.

All credit cards issued for consumer credit purposes are protected under Civil Code section 1747.08, even if sometimes used for business purposes

Pineda v. Williams-Sonoma Stores, Inc., 51 Cal. 4th 524 (2011) added some clarity to the types of personal identification information protected from collection by merchants.  As it turns out, section 1747.08 of the Song-Beverly Credit Card Act of 1971 (SBCCA) (Civ. Code, § 1747 et seq.) even precludes collection of zipcodes.  But Pineda didn't answer every unresolved question related to SBCCA-based claims.  In Archer v. United Rentals, Inc. (May 19, 2011), the Court of Appeal considered several issues surrounding the SBCCA, described as follows:

This appeal presents these significant issues: (1) Have plaintiffs established standing to pursue a UCL claim by demonstrating they "suffered injury in fact and . . . lost money or property as a result of the unfair competition" (Bus. & Prof. Code, § 17204); (2) does the privacy protection of Civil Code section 1747.08 cover the use of a business credit card; (3) does such protection extend to a cardholder who uses a personal credit card regardless of whether such use is "primarily" or "occasionally" for business purposes; and (4) is class certification foreclosed by the unreasonableness of ascertaining class membership?

Slip op., at 2.  The Court of Appeal answered "no" to the first two questions, but reversed the trial court on the third when the Court concluded that a personal credit card was protected under the SBCCA, regardless of how often it was used for business purposes.  Having ruled as it did on the third issue, the Court then remanded for reconsideration of the ascertainability question, since the trial court's orginal ruling turned on the need to evaluate the frequency with which a credit card was used for business purposes.

The Court relied upon Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011) when it concluded that violation of SBCCA, alone, was insufficient to establish the requisite injury under the UCL.

Today, June 13, 2011, the Court issued a modification to its Order.  The modification adds a paragraph on the issue of standing to appeal:

Defendants contend plaintiffs lack standing to appeal the order denying class certification because they are not aggrieved by the trial court’s rulings in that they each were awarded $250 and “they should have moved for the substitution of new class representatives who do, in fact, have standing to appeal.” We disagree because plaintiffs were denied certification of their class claims. Issues regarding proper class representatives are for the trial court to address on remand. (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1351, fn. 35.)

June 13, 2011 slip op., at 1.

Class-based equitable tolling does not extend period for filing under Government Claims Act

In an interesting twist to class action equitable tolling, the Court of Appeal (Fourth Appellate District, Division One), in California Restaurant Management Systems v. The City of San Diego (June 1, 2011), examined "whether the 'equitable tolling' principles outlined in American Pipe & Construction Co. v. Utah (1974) 414 U.S. 538 (American Pipe) and Crown, Cork & Seal Co., Inc. v. Parker (1983) 462 U.S. 345 (Crown Cork) apply to extend the period within which a claim must be filed under the Government Claims Act (Gov. Code, § 810 et seq.)."  Slip op., at 2.  The issue arose after it was learned that San Diego had overcharged several classes of customers using the City's wastewater system.  A residential customer timely filed a governmental claim seeking a refund on behalf of residential customers who were overcharged and, after the claim was denied, filed a proposed class action lawsuit on behalf of that class of customers.  After that action was settled and dismissed, California Restaurant Management Systems (CRMS) filed its own governmental claim and then filed a putative class action on behalf of restaurant owners.  The City moved for summary judgment, contending CRMS's governmental claim was not timely filed, mandating dismissal of CRMS's proposed class action lawsuit. CRMS opposed the summary judgment motion, arguing the pendency of the first action tolled all limitations periods, including the period for filing a governmental claim. The trial court disagreed, and entered judgment in favor of City.

While the Court supplied an extensive background discussion of Government Claims Act requirements and equitable tolling, the ultimate basis for its decision was simply stated: "We conclude a prior class action does not equitably toll or satisfy the governmental claims requirement for claimants not within the class description contained in a timely-filed governmental claim on which the prior class action was predicated."  Slip op., at 18.  The first action described the claiming class as "residential" customers.  This eliminated the possibility that commercial customers could claim to have placed the City on notice of their claims.  The Court declined to extend the class claim filing exception recognized in City of San Jose v. Superior Court, 12 Cal. 3d 447 (1974).

Not too late to register for Bridgeport's Mid Year Wage & Hour Litigation Conference

Bridgeport is holding its Mid Year Wage & Hour Litigation Conference on June 3, 2011, in San Diego, California, at the Westin San Diego Hotel.  I will be speaking with Julie Trotter, of Call & Jensen, about the impact of Concepcion on the employment law practice area.  View the full program agenda here.

Concepcion has no application in many employment cases

About a week ago, on behalf of Consumer Attorneys of California ("CAOC"), I filed an amicus curiae brief in support of the plaintiff in Brown v. Ralphs Grocery Company.  In Brown, after oral argument, the Court of Appeal requested supplemental briefs on the question of whether AT&T Mobility LLC v. Concepcion (April 27, 2011) precludes the Gentry v. Superior Court (2007) 42 Cal.4th 443 defense to certain arbitration agreements.  After determining that the parties had not already addressed the issues, CAOC presented several bases for rejecting the contention that Concepcion overruled Gentry, including the fact that a bar on class actions violates the National Labor Relations Act's protection of concerted action by employees to improve their wages and working conditions.  You can view the brief viat the Spiro Moss website here.

Other attorneys at Spiro Moss contributed to the brief, including Dennis F. Moss (who conceived of the argument involving the NLRA), Gregory N. Karasik, and J. Mark Moore.  David M. Arbogast of Arbogast & Berns LLP also contributed to CAOC's brief.

Update on 2011-06-30 19:36 by The Complex Litigator

An error in the post title was corrected.

Adobe Acrobat X Review Part 2 – Feature Focus: Portfolios and Redaction Tools (Updated)

In Part 1 of my Acrobat X review, I provided an overview of changes to Acrobat X and described changes to the look and feel of the Acrobat X family of products.  But no list of new features will matter unless those new features matter to you.  With that in mind, I want to dive into a few of the new and enhanced features of Acrobat X that are likely to be of use in the legal setting.

PDF Portfolios

Adobe introduced “PDF Portfolios” in Acrobat 9.  Acrobat X enhances the PDF Portfolio concept in crucial ways, filling some gaps from the first version of the tool and fixing a key issue that prevented me from making more than passing use of the PDF Portfolio tool.

If you haven’t seen a PDF Portfolio, think of it as a wrapper, much like a zip file, but with interactive properties.  When you assemble a PDF Portfolio, you can include multiple files, of different file types, inside the Portfolio.  Once created, the PDF Portfolio is more like an electronic binder that can hold Microsoft Office files, pdfs, flash videos, graphic file formats, and, interestingly, folders and web pages, among other types of supported content.

Why not just covert all your files to pdfs and then combine them into one giant pdf?  There are actually many reasons why using a PDF Portfolio can prove to be a superior alternative to merging multiple files into a single PDF: 

• You can add or remove whole files easily, without having to find and select the specific pages that come from one file.
• You can preview files without having to open them in their original, native applications.  In other words, you or your recipient can view a word document or an excel spreadsheet without ever having to leave Acrobat.
• You can change individual files within the PDF Portfolio without affecting the other files. For example, you could renumber pages in one document without renumbering other documents in the PDF Portfolio. You can also edit other file types in their native applications from within a PDF Portfolio.  Changes you make are saved to the file within the PDF Portfolio.
• You can sort component files with the help of user-created categories.  These categories can be changed, removed, or hidden.  Once you’ve created categories, sorting is as simple as clicking on a column name to sort the list, just like you would do in Explorer.  [More on a sorting-related enhancement below.]
• You can print all the PDFs in a PDF Portfolio, or selected certain PDFs.
• Search one or all files in a PDF Portfolio, including different file types incorporated as component files.
• Add non-PDF files to a PDF Portfolio without converting them to PDF.
• The original source files added to a PDF Portfolio are not changed when you create a PDF Portfolio. Changes you make to the component files within a PDF Portfolio do not alter the original files. You can move a PDF Portfolio without any risk of losing its components.
• Include the same file in multiple PDF Portfolios.

PDF Portfolios have a number of use cases that should be of interest to the legal profession.  In my case, I have used PDF Portfolios to create mediation briefs with exhibits.  I have prepared mediation briefs that incorporate as many as 30 attached exhibits, all wrapped into a PDF Portfolio.  At least for Mediators that are tech-fans, this was easier and less expensive than sending everything to a printer for binding.  But when I created PDF Portfolios in Acrobat 9, I found that I had to use a file-naming trick to organize the files in my Portfolio.  Acrobat 9 did not allow you to control the order of files in a PDF Portfolio; they were alphabetical, using alpha-numeric rules.  To sort the exhibits to my mediation briefs, I had to use a two or three digit number with the exhibits to get them to sort right (e.g., “Tab 01 – Name1” “Tab 02 – Name2,” etc.).  If I used a single digit for “Tab 1,” it didn’t sort correctly when I made it up to “Tab 11.”

Acrobat X fixed that difficult limitation.  Now drag-and-drop organizing is available.  This makes the PDF Portfolio so much more flexible.  Now you can create a Mediation brief, a client document package, or an evidence repository, complete with customized tags for sorting and a comment field for annotations.  You could actually use a Portfolio as a “hot documents” binder that you update as a case moves along.

The interface, like the rest of the program, is clean and attractive: 

Screenshot 1

Acrobat X also includes a number of additional tools for layouts, themes, backgrounds and colors.  A Portfolio can be branded with a firm’s identity colors and logo (but don’t overdo it; heavy-handed branding makes my head hurt): 

Screenshot 2

The PDF Portfolio tool is now a feature with some punch, thanks, in no small part, to the small but crucial addition of drag-and-drop sorting to organize the PDF Portfolio.

Redaction Tools

You’ve probably heard the stories about firms filing “redacted” documents with courts, only to become front page legal news when someone discovered that the “redaction” was an easily removed black box over the sensitive information.  And despite those stories, I still encounter law firms that don’t understand how to use the redaction tools in Acrobat.  For example, opposing counsel in a case that I am currently working on revealed personal contact information because of an incorrect redaction.  Things like this should no longer be happening.

While redaction was available in Acrobat 9, the redaction and security tools are enhanced in Acrobat X.

Among the new features in Acrobat X Pro is the ability to customize the appearance of text or images marked for redaction. You can change the fill color and the opacity at the bottom of the window to personalize how redaction marks appear before they are applied.  I find this enhancement helpful when reviewing a long document for redaction.  A fill color makes an unapplied redaction stand out until you are ready to apply it.

You can also repeat a redaction mark across multiple pages when, for example, a number or e-mail address repeats across pages.  Just mark the first instance, right-click and select “Repeat” to apply the same redaction to additional pages.

Acrobat X has also improved its ability to find and permanently remove metadata, annotations, attachments, form fields, layers, and bookmarks.  The Remove Hidden Information feature can now find content including JavaScript, links, and overlapping images and shapes.  I haven’t tested this yet, but this enhanced tool might help when a pdf is rejected by an electronic filing system, such as the painful system used by the U.S. District Court for the Central District of California.

PDF Portfolios and enhanced redaction and security tools are two feature sets that law firms should take into account if an upgrade to Acrobat X is under consideration.  Importantly, these two feature sets are only available in Acrobat Pro X and above - two good reasons to spring for Acrobat Pro X.

Update on 2011-05-27 18:29 by The Complex Litigator

I'm having some issues with the commenting module, so I am going to responde to comments here.

You can link to specific pages in other documents in a portfolio. Here is a link to some instructions:

Portfolio Linking Instructions

Basically, you need to open the document that will include hyperlinks from within the Portfolio. Don't preview it - open it. Then use the tools menu to insert a link. Once you see the dialog to confirm the target page, don't click it yet. Instead, open the target document from the Portfolio, scroll to the desired page, and then use the dialog box to confirm the target page.

You can also create your own templates for PDF Portfolios if you don't like the templates provided in Acrobat X.  Feedback to Adobe might also encourage them to create a repository for user-created PDF Portfolio templates.

An objector has no standing to challenge a class action fee award where he has no financial interest in the award and fails to show harm as a result of the award

In Glasser v. Volkswagon of American, Inc. (9th Cir. May 17, 2011), the Ninth Circuit considered objector-appellant David Murray's contention that the district court erred when it awarded attorneys’ fees and costs to plaintiff-appellee Jacob Glasser.  Glasser challenged the inadequacy of disclosures by Volkswagon about the limited availability of "smart keys" for certain Audi and Volkswagon vehicles.  Soon after the case was filed, the parties initiated settlement discussions.  As part of those discussions, Glasser evidently learned that replacement key technology was available through independent dealers and agreed that Volkswagon had not fixed the price of replacement keys.  Volkswagon agreed to make additional disclosures about "smart keys," but no monetary benefit was obtained for the class.

The trial court approved a settlement in which the class was notified of the agreement to make new disclosures and Volkswagon's agreement to either pay an agreed-upon amount of attorney's fees or let the trial court decide fees if the parties did not reach agreement on that issue.  Murry filed an objection to the settlement.  The district court awarded plaintiff attorney's fees in the amount of $417,663.75, costs and expenses in the amount of $16,614.40, and an incentive award to Glasser in the amount of $2,500.

The Court began with a discussion of Article III standing.  The Court observed that fees paid from common funds confer standing on objectors because the fees reduce the fund:

When attorneys’ fees are paid out of a common fund, from which both the class recovery and the fee award are paid, a class member who participates in the settlement generally has standing to challenge the fee award because any reduction in the fee award results in an increase to the class recovery.

Slip op., at 6356.  But the Court then concluded that Murray failed to satisfy his obligation to establish Article III standing:

Murray does not contend that Plaintiff’s counsel colluded with VW to orchestrate an excessively high fee award in exchange for an unfair settlement for the class. Had he alleged as much, he may have been able to meet the requirements of Article III standing under a “constructive common fund theory.” See Lobatz, 222 F.3d at 1147. However, Murray has expressly disclaimed recovery under a “constructive common fund” theory. Instead, he argues Plaintiff’s claims were entirely meritless from the beginning of the lawsuit. Further, he claims only that an excess fee award will cause VW to pass along the cost to its shareholders and customers, and that he may somehow benefit as a consumer from any savings that may result from the denial or reduction of the award.

Slip op., at 6537.  The appeal was then dismissed for lack of standing.  Oops.  I suppose an assertion of a "constructive common fund" theory will become the new standard refrain for objectors, particularly in consumer class actions.

California Supreme Court activity for the week of May 16, 2011

The California Supreme Court held its (usually) weekly conference on May 18, 2011.  Notable results include:

• As has been the practice in all prior published cases on this issue, on a petition for review, review was granted, and the matter held, in Tien v. Tenet Healthcare (February 16, 2011) (affirmed the trial court's order denying class certification of meal period, rest break, and waiting time penalty claims). The opinion spent a substantial amount of time discussing the meal period compliance question under review in Brinker.

California Supreme Court activity for the week of May 9, 2011

The California Supreme Court held its (usually) weekly conference on May 11, 2011.  Notable results include:

• On a petition for review, review was granted, and the matter held, in United Parcel Service Wage And Hour Cases (February 24, 2011) (fees not available to defendant prevailing on Labor Code section 226.7 claims), covered previously on this blog here.  Review was previously granted in a case addressing this issue: Kirby v. Immoos Fire Protection, Inc. (July 27, 2010).
• On a petition for review, review was denied in Price v. Starbucks Corporation (February 17, 2011).