Squarespace soon to lose backup generator power for main data center

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I just received word that Squarespace's backup generator has roughly 4 hours of fuel remaining.  The building housing the main data ceter is flooded and once current fuel stores are used by the generator, no more fuel can be pumped to the generator from the flooded fuel tanks.  Might be a while before The Complex Litigator is back online.

Best wishes to everyone in New York and elsewhere affected by the storm.

Law firm cannot recover fees as prevailing party when represented by Of Counsel

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This isn't really on topic, but it was interesting enough to note.  In Sands & Associates v. Martin Juknavorian (October 10, 2012), the Court of Appeal (Second Appellate District, Divsion One) held that the Of Counsel relationship is sufficiently "close, personal, continuous, and regular" that a firm represented by Of Counsel to the firm cannot recover fees as a prevailing party, even when a prevailing party clause applies to the dispute.

Second Appellate District, Division Eight, not interested in changing opinions post-Brinker

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After the Supreme Court decided Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), a number of cases were remanded to Courts of Appeal for further consideration after Petition grant and hold Orders were issued in those cases.  The Second Appellate District, Division Eight, seems to have a disproportionate share of those cases.  And, generally speaking, Division Eight concluded that Brinker didn't require any change in its analyses:

  • In re Lamps Plus Overtime Cases, 209 Cal. App. 4th 35 (2012)
  • Hernandez v. Chipotle Mexican Grill, Inc., 208 Cal. App. 4th 1487 (2012), as modified (Sept. 25, 2012)
  • Tien v. Tenet Healthcare Corporation (October 4, 2012)

In all fairness to Division Eight, the other Courts of Appeal didn't seem to think that, even though Brinker declared a somewhat different standard than that applied by many Courts of Appeal, the clarified standard, according to the Courts of Appeal, didn't require any material modification to their prior opinions.  Go figure.

Interestingly, the same Division Eight, which never met a meal period it liked, partially reversed a denial of class certification in an unpublished decision, Santos v. Vitas Healthcare Corp. of California, Case No. B222645, 2012 WL 4378175 (Sept. 26, 2012).  The Court relied heavily on Brinker for its discussion of an employer's obligation to pay employees when it knows, or has reason to know, that employees are working overtime or off-the-clock.  Hmmmm.

Statement of issues provided by California Supreme Court in Iskanian v. CLS Transportation

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The Statement of Issues for the Iskanian v. CLS Transportation matter is as follows:

This case presents the following issues: (1) Did AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __ [131 S. Ct. 1740, 179 L.Ed.2d 742] impliedly overrule Gentry v. Superior Court (2007) 42 Cal.4th 443 with respect to contractual class action waivers in the context of non-waivable labor law rights? (2) Does the high court's decision permit arbitration agreements to override the statutory right to bring representative claims under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, 2698 et seq.)? (3) Did defendant waive its right to compel arbitration?

California Supreme Court grants review in Iskanian v. CLS Transportation of Los Angeles

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Hot off the presses, or, more correctly, hot off the e-mail case activity notifcation system, the California Supreme Court has granted the Petition for Review in Iskanian v. CLS Transportation of Los Angeles, Supreme Court Case No. S204032.  Letters in support of a Petition aren't listed on the docket, but I sent in a letter in support of review, focused on the proliferation of poor analysis related to the NLRB's D.R. Horton decision.

The UCL Practitioner reads some tea leaves on arbitration cases before the California Supreme Court

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In all my writing about arbitration cases impacting class actions, I haven't looked at the pattern of Petition acceptance and denial in the California Supreme Court.  The UCL Practitioner has thankfully taken care of that, presenting an interesting theory here.

My compliments to Consumer Attorneys of San Diego

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For what?  For an exceptional class action symposium, that's what.  I appreciated the fact that the program focused on advanced and current topics, and didn't attempt to provide a primer on basic class action litigation.  I also had fun attempting to disabuse my co-panelist of his many strange notions about Concepcion and arbitration clauses, but I think I failed to cure him.

Unconscionability is still alive and well (for now) as Court (4/1) affirms refusal to enforce arbitration clause in Goodridge v. KDF Automotive

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The back and forth of arbitration rulings that dominate the topic of conversation in class actions could make one seasick.  Or at least sick and tired.  The latest contribution to the discussion comes to us compliments of Goodridge v. KDF Automotive Group, Inc. (Ord. pub. Sept. 19, 2012), in which the Court of Appeal (Fourth Appellate District, Division One) affirmed a trial court order denying a motion to compel arbitration.  The trial court concluded that the provision was unconscionable, and thus unenforceable.

There two points of interest here.  First, the Court engaged in a straightforward unconscionability analysis, agreeing with the trial court that the agreement was designed to force car buyers into an inferior forum.  Evidently unconscionability analysis is not as dead as defendant now argue after Concepcion.

Second, the Court noted that "the circumstances (e.g., preprinted contract and arbitration clause) and issues in this case are virtually identical to those in Sanchez v. Valencia Holding Co., LLC (2011) 201 Cal.App.4th 74, review granted Mar. 21, 2012, S199119 (Sanchez)."  As the Court observed, the issues it addressed will likely be decided by the California Supreme Court.