Morris v. Ernst & Young, LLP update

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For those of you who recognized that the Ninth Circuit got it 100% right when it found in Morris v. Ernst & Young, LLP (9th Cir. Aug. 22, 2016) that an arbitration agreement that precludes collective actions violates rights protected by the NLRA, you may wish to know where things stand with that case on further appeal.  Right now, Morris is before the U.S. Supreme Court on a Petition for Writ of Certiorari.  Here is the Docket report:

  • Sep 8 2016:  Petition for a writ of certiorari filed. (Response due October 11, 2016)
  • Sep 21 2016:  Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for petitioners.
  • Sep 29 2016:  Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondents
  • Oct 3 2016: Brief amici curiae of National Association of Manufacturers, et al. filed. VIDED.
  • Oct 3 2016: Brief amicus curiae of Chamber of Commerce of the United States filed.
  • Oct 6 2016: Order extending time to file response to petition to and including November 14, 2016.
  • Oct 7 2016: Brief amicus curiae of International Association of Defense Counsel filed.
  • Oct 10 2016: Brief amicus curiae of Atlantic Legal Foundation filed.
  • Oct 11 2016: Brief amicus curiae of The Employers Group filed.
  • Oct 11 2016: Brief amicus curiae of The Retail Litigation Center, Inc. filed.
  • Oct 11 2016: Brief amicus curiae of The Business Roundtable filed.
  • Oct 11 2016: Brief amicus curiae of New England Legal Foundation filed.
  • Nov 15 2016: Order further extending time to file response to petition to and including November 21, 2016.
  • Nov 21 2016: Brief of respondents Stephen Morris, et al. in opposition filed.

Just look at those busy amicus filers.  I bet all those employers are telling the Supreme Court that the world would end in fire and death if they couldn't block class actions for wage and hour violations with arbitration agreements that employees have to sign to work.

Court of Appeal holds that monetary value of accrued vacation need not appear on wage statements until payment is due

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In Soto v. Motel 6 Operating, L.P. (Oct. 20, 2016), the Court of Appeal (Fourth Appellate District, Division One) held in a PAGA action that Labor Code § 226(a) "does not require employers to include the monetary value of accrued paid vacation time in employee wage statements unless and until a payment is due at the termination of the employment relationship." Slip op., at 2.  The Court easily concluded that the disclosure of such information on wage statements on a regular basis was not required by the current law.  Nothing to see here, folks. Move along.

Spencer C. Skeen, Jennifer L. Santa Maria, and Sarah A. Williams of Ogletree, Deakins, Nash, Smoak & Stewart represented Motel 6 Operating, L.P.

JOB OPPORTUNITY: wage and hour attorneys with roughly three to six years experience

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If you are an attorney with wage and hour experience and have been practicing for roughly three to six years, you are welcome to reach out to me at Setareh Law Group (contact information available via state bar -- if you can't find that, you shouldn't be sending me anything anyhow).  I need an associate to add to my litigation team here.  Reading my blog already demonstrates your discerning eye for insightful discourse, so test 1 is complete.

Last day at Berns Weiss LLP

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Today is my final day at Berns Weiss LLP. Beginning next week, I will return to familiar terrain, once again into the wage & hour breach.  My thanks to Berns Weiss for everything and best wishes to everyone there.

Law-less Friday: San Diego's arbitrary and capricious six-foot rule

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I take my constitutional rights very seriously.  For example, I am more aware of first amendment rights after blogging for so long.  And who hasn't said "thank goodness" for that Fifth Amendment a time or three after a hazy Friday night?  But I've noticed that the contours (oh, the foreshadowing) of rights seem to get tested quite frequently in areas that many consider to be unsavory.  Thus, it is with great sadness that I report to you that in Coe v. City of San Diego (Sept. 28, 2016), the Court of Appeal (Fourth Appellate District, Division One), held that application of San Diego's six-foot rule was not arbitrary and capricious on the facts before it, affirming the revocation of a permit held by appellant Suzanne Coe.  What, you ask, is the six-foot rule?  I am glad you asked.  The six-foot rule states that it is unlawful for a responsible person to allow a nude person within six feet of a patron at a nude entertainment business.  In a nutshell, Coe's establishment violated the six-foot rule habitually since 2006.  San Diego finally pulled the plug, revoking her permit to operate. I am not going to explain operation of the no-touch and no-fondling rules. And I used to think that being a progressive, liberal state meant that everyone gets the freedom to express themselves however they want.

Ninth Circuit begins to define scope of Mazza in Ruiz Torres v. Mercer Canyons Inc.

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In Mazza v. Am. Honda Motor Co., 666 F.3d 581 (9th Cir. 2012), the Ninth Circuit Rule 23 predominance was defeated where many (or even most) class members “were never exposed to the allegedly misleading advertisements” (666 F.3d at 597) because the defendant subjected only a small segment of an expansive class of car buyers to misleading material as part of a “very limited” advertising campaign (id. at 595).  This decision raised questions about how federal courts in the Ninth Circuit would actually evaluate UCL claims when faced with reconciling In re Tobacco II and Mazza.  In Ruiz Torres v. Mercer Canyons Inc. (9th Cir. Aug. 31, 2016), a wage & hour suit in which the District Court certified a class, the Ninth Circuit analyzed Mazza in a manner demonstrating that it may be constrained in its application moving forward.

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In Ebner v. Fresh, Inc., the Ninth Circuit affirms dismissal of a putative consumer class action

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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.

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End the year with Bridgeport's Wage & Hour Litigation Conference

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Bridgeport 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.

Dear Twitter, pull your head out

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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.