The Complex Litigator is now on Alltop

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The Complex Litigator is now listed on Alltop, in the legal news section.  Alltop is the magazine newsrack for the Internet.  Here's how Alltop describes its purpose:

The purpose of Alltop is to help you answer the question, “What’s happening?” in “all the topics” that interest you. You may wonder how Alltop is different from a search engine. A search engine is good to answer a question like, “How many people live in China?” However, it has a much harder time answering the question, “What’s happening in China?” That’s the kind of question that we answer.

Alltop is a unique way to view current events or issues of current interest in any particular field.  I recommend skimming the legal news section from time to time, to spot trends if nothing else.

So...cool.

Breaking News: Walmart Stores, Inc. v. Dukes decided by Supreme Court; Reversed

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I'll preface this brief post by noting that I have not had a chance to read the entire opinion, but the opnion in Walmart Stores, Inc. v. Dukes (June 20, 2011) was released this morning by the United States Supreme Court.  The Court reversed the Ninth Circuit and the District Court, finding that the matter was not suitable for class certification.  The core majority was authored by Justice SCALIA. ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined in that opinion, and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined as to Parts I and III.  Justice GINSBURG authored an opinion concurring in part and dissenting in part.  BREYER, SOTOMAYOR, and KAGAN joined in Justice GINSBURG'S opinion.

Some key aspects of the holding are:

  • Proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart engages in a pattern or practice of discrimination. The crux of a Title VII inquiry is “the reason for a particular employment decision,” Cooper v. Federal Reserve Bank of Richmond, 467 U. S. 867, 876, and respondents wish to sue for millions of employment decisions at once. Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members’ claims will produce a common answer to the crucial discrimination question.
  • General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, describes the proper approach to commonality. On the facts of this case, the conceptual gap between an individual’s discrimination claim and “the existence of a class of persons who have suffered the same injury,” id., at 157–158, must be bridged by “[s]ignificant proof that an employer operated under a general policy of discrimination,” id., at 159, n. 15. Such proof was absent here.
  • Claims for monetary relief may not be certified under Rule 23(b)(2), at least where the monetary relief is not incidental to the requested injunctive or declaratory relief.
  • The mere “predominance” of a proper (b)(2) injunctive claim does nothing to justify eliminating Rule 23(b)(3)’s procedural protections, and creates incentives for class representatives to place at risk potentially valid monetary relief claims.

Justice Ginsburg is concerned that the majority imported too much of the "predominance" analysis into the Rule 23(a) requirement that common questions of law or fact must exist:

The Court’s emphasis on differences between class members mimics the Rule 23(b)(3) inquiry into whether common questions “predominate” over individual issues. And by asking whether the individual differences “impede” common adjudication, ante, at 10 (internal quotation marks omitted), the Court duplicates 23(b)(3)’s question whether “a class action is superior” to other modes of adjudication.

Slip op., Ginsburg concurring and dissenting, at 9.  Otherwise, Ginsburg agrees that the class should not have been certified under Rule 23(b)(2) but would  have saved the issue of whether certification was appropriate under Rule 23(b)(3) for the District Court on remand.

The opinion looks as though it will prove to have the greatest impact on cases of this type.  While the Rule 23(a) construction seems to be inconsistent with well-settled standards, the balance of the opinion was predictable, given the massive size of the class.

Court of Appeal finds no privacy interest in residential address

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I'm playing catch-up again, which explains the date on this post vis-a-vis the date on the opinion I want to mention.  In Folgelstrom v. Lamps Plus, Inc. (pub. ord. May 20, 2011, mod. June 7, 2011), the Court of Appeal (Second Appellate District, Division Five) reviewed a judgment entered following a successful demurrer to a complaint principally challenging the collection of customer zip codes during credit card transactions.  The super easy part of the decision was the portion where the Court said, "Based on the holding of Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524 (Pineda), we reverse the judgment and order the trial court to overrule the demurrer to plaintiff's cause of action alleging a violation of the SongBeverly Credit Card Act of 1971 (Credit Card Act) (Civ. Code, § 1747 et seq.)."  Easy.

That's not the interesting part.  That's the part where the plaintiff lucked out.  The interesting part comes when the Court discusses the causes of action that didn't pass muster: invasion of common law and constitutional rights to privacy, and violation of Business and Professions Code section 17200, the Unfair Competition Law (UCL).  Discussing the privacy interest in a residential address, the Court said:

Plaintiff offers no explanation of why we should find a privacy interest in plaintiff's address based on the Supreme Court's conclusion that performing a bodily function under the watchful eye of strangers implicates a privacy interest.

Slip op., at 4-5, referencing Hill v. National Collegiate Athletic Assn., 7 Cal. 4th 1 (1994).  Just another arrow in the quiver when arguing about whether a plaintiff is entitled to discovery of contact information for putative class members.

Upcoming seminar for young attorneys

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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

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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

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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

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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

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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

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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.

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

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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.