a California-centric collection of comments and resources about complex litigation and class action practice
The Ninth Circuit, by virtue of geography, periodically has to rule on claims based upon California's consumer protection laws. In Ebner v. Fresh, Inc. (Sept. 27, 2016), the Ninth Circuit reviewed a District Court's dismissal with prejudice of a putative class action alleging that the defendant deceived consumers about the quantity of lip balm in the defendant's product line.
Read MoreBridgeport will hold its annual Wage & Hour Litigation & Management Conference on December 9, 2016, at the Millennium Biltmore Hotel. Listen to a diverse faculty as they discuss recent, major developments in wage & hour class action litigation, including Spokeo v. Robins, PAGA, and other issues.
I customarily cross-post to Twitter when I write a new post here. That may change soon. The evidence I have examined is strongly suggestive that Twitter engages in viewpoint-based censorship by asserting its "standards" in a very non-uniform manner. Twitter is a private company. They can do this. But I can vote with my feet if Twitter doesn't want to remain neutral in viewpoint suppression. As a blogger, and irrespective of personal views of the speaker, I am sensitive to the long-term, dire consequences that will result if large businesses and/or governments succeed in limiting expression of entire swaths of opinions. I was particularly disturbed when I read that Twitter had blocked the account of Glenn Reynolds, a pioneering law/politics/current events blogger known as Instapundit. He made an ill-considered point in a rather rough way, but, at the same time, individuals advocating the murder of police officers go unpunished. This is unjustifiable if one assumes that Twitter is viewpoint neutral in its censoring.
I don't approve of or condone all of the messages that have resulted in some high-profile account banning of late on Twitter, but the simple fact is that Twitter has permitted far worse commentary to remain on Twitter without consequence. Maybe this behavior explains, in part, why Twitter is likely up for sale.
Law is driven as much by unforeseen consequences as it is by any rational planning. The Labor Code Private Attorneys General Act of 2004 (PAGA) is exhibit one. Over the last five or so years, inexorable advance of the Federal Arbitration Act looked as if it would cut a fatal swath through many class actions. But, somewhat unexpectedly, PAGA has served as a counterpoint in the wage & hour sector. In Perez v. U-Haul Co. of California (Sept. 16, 2016), the Second Appellate District, Division Seven, affirmed the trial Court's ruling that U-Haul could not assert an arbitration agreement to compel the plaintiffs to individually arbitrate whether they qualified as “aggrieved employee[s],” to determine in arbitration whether they had standing to pursue a PAGA claim.
The Court agreed with Williams v. Superior Court, 237 Cal. App. 4th 642 (2015), which also held that California law prohibits the enforcement of an employment agreement provision that requires an employee to individually arbitrate whether he or she qualifies as an “aggrieved employee” under PAGA, and then (if successful) to litigate the remainder of the “representative action in the superior court.” Slip op., at 11-12. The Court concluded by dismissively rejecting the notion that the FAA can apply to claim belonging to a governmental entity or its designated proxy.
Gregg A. Farley, of the Law Offices of Gregg A. Farley, and Sahag Majarian, of the Law Offices of Sahag Majarian, represented Plaintiff and Respondent Sergio Lennin Perez; Larry W. Lee and Nicolas Rosenthal. of the Diversity Law Group, and Sherry Jung, of the Law Offices of Sherry Jung, represented Plaintiff and Respondent Erick Veliz.
The Ninth Circuit tackles a complicated set of arbitration issues in Mohamed v. Uber Technologies, Inc. (9th Cir. Sept. 7, 2016). Among other things, the panel held that the District Court erred when it decided the question of arbitrability, since the question of arbitrability was delegated under the agreement to an arbitrator. But the panel agreed that the defendants could not compel arbitration of the PAGA claim asserted in the case, severing that claim for further proceedings in before the trial court. Finally, the panel agreed that a separate defendant not party to the arbitration agreement could not assert a right to enforce the agreement as an agent of Uber.
The RICO Trend in Class Action Warfare looks at the use of RICO suits against plaintiffs' counsel in mass action and class action filings, concluding that the tactic incorrectly attacks aggregate litigation procedures rather than specific, underlying fraudulent conduct.
I take this opportunity to say I told you so. "We clarify today that when an attorney fee is awarded out of a common fund preserved or recovered by means of litigation (see Serrano III, supra, at p. 35), the award is not per se unreasonable merely because it is calculated as a percentage of the common fund." Laffitte, et al. v. Robert Half International, Inc., et al., at p. 2 (August 11, 2016). See the rest if you have the time, but this should put an end to the spreading nonsense that lodestar is the method for calculating fees in common fund class action settlements.
If you have insomnia or just want to test the lower bounds of your will to live, you can view the text of the proposed rules from the Consumer Financial Protection Bureau (along with about 350 pages of commentary before you actually get to the proposed rules - it's a lot like the longest law review article you've ever read).
Nothing says Cinco de Mayo like arbitration. I have no idea what that means, so don't ask. Anyhow, the Consumer Financial Protection Bureau will propose a regulation today that will ban contract terms that prohibit consumers from filing class action lawsuits. And the Chamber of Commerce is none to happy about this development. You can read the details at politico.com, which posted an opinion piece by Lisa A.Rickard, the president of the U.S. Chamber of Commerce's Institute for Legal Reform and David Hirschmann, the president and CEO of the U.S. Chamber of Commerce's Center for Capital Markets Competitiveness. If you don't have time to read the article, allow me to paraphrase: "Damn trial lawyers! Get off my lawn!"
Every now and then I look at a new appellate decision and experience the shock of reading something that I would have guessed was certain to never come up before seeing it in print. So I was helping my daughter study for a history test the other day. Her fifth grade class was in a chapter about American industrialization and the expansion of the United States to the Pacific (manifest destiny and all that). The war with Mexico received a mention in her study guide, along with a treaty entered into with Mexico at the end of the war, the Treaty of Guadalupe Hidalgo. Trick question: what are the chances that an appellate decision today would rest, in part, on the need to examine the Treaty of Guadalupe Hidalgo? You should say "zero," but, since I asked, you know that's not the answer. The correct answer is, ding ding ding, 100%.
In Friends of Martin's Beach v. Martin's Beach 1 LLC (April 27, 2016) the Court of Appeal (First Appellate District, Division Two) considered issues arising in a dispute between private land owners and the public over an area of inland dry sand at a popular beach. Here is the paragraph that resulted in my double-take:
The case presents a number of intriguing issues, among them the meaning of Article X, section 4 of the California Constitution and its application, if any, to lands for which title is derived from a provisional Mexican land grant confirmed by a federal patent issued in the 19th century. These issues require consideration of a federal statute known as the Act of 1851 and the Treaty of Guadalupe Hidalgo, which that Act implemented. The case also concerns the common law theory of dedication of land to public use and what facts suffice to establish the elements of such a claim. Creating yet additional interest, the State of California and its agencies contend in an amicus brief that they were indispensable parties to this action because it involves California tidelands and that the judgment rendered without them is void.
Slip op., at 1-2. As an aside, if these issues also sound "intriguing" to you, you are officially a law nerd.
Today's lesson: Never say never.
The Complex Litigator reports on developments in related areas of class action and complex litigation. It is a resource for legal professionals to use as a tool for examining different viewpoints related to changing legal precedent. H. Scott Leviant is the editor-in-chief and primary author of The Complex Litigator.
