American Nurses Association v. O'Connell invalidates as illegal a portion of a class action settlement involving rights of students with diabetes

Class actions involving allegations of discrimination regularly include injunctive relief provisions as part of a settlement or judgment.  However, the complexity of these types of actions increases the likelihood that settlement terms will have unintended consequences.  In American Nurses Association v. O'Connell (June 8, 2010), the Court of Appeal (Third Appellate District) reviewed a challenge to terms of a class action settlement between public school students and Jack O'Connell, in his capacity as the Superintendent of Public Schools for California, the Board of Education of California and the individual members of the Board of Education, the California Department of Education (CDE), and two local school districts and their superintendents.  The students alleged defendants violated various federal laws (ADA and others) by failing to ensure the provision of health care services to students with diabetes, including insulin administration, that was necessary to enable those students to obtain free appropriate public education.  The settlement of that action required, among other things, the issuance of an advisory by the CDE about insulin administration.  The advisory took the position that "in order to comply with federal law, California law should be interpreted to allow, if a licensed person is not available or feasible, trained unlicensed school employees to administer insulin during the school day to a student whose Section 504 Plan or IEP requires such insulin administration."  (Slip op., at 3.)

The American Nurses Association and the American Nurses Association/California filed an action against O'Connell as Superintendent of Public Instruction and the CDE challenging section 8 of the advisory, the portion of the legal advisory that permits unlicensed school employees to administer insulin to students with diabetes.  The Nurses Associations alleged that section 8 is inconsistent with the Nursing Practice Act (NPA) (Bus. & Prof. Code, § 2700 et seq.) and is an illegal regulation implemented by the CDE without compliance with the Administrative Procedure Act (APA) (Gov. Code, § 11340 et seq.).

The trial court agreed with the Nurses Associations, ruling that the NPA prohibited the administration of insulin by unlicensed school employees.  The trial court also rejected the argument that California's laws were preempted by federal law.  Finally, the trial court determined that the challenged portion of the legal advisory was an invalid regulation under the APA.  The Court of Appeal affirmed the finding that current California law does not permit the administration of insulin by unlicensed school employees.  Having so ruled, the Court of Appeal did not reach the alternative basis for the trial court's ruling.

The only moral of the story is that you must craft your injunctive relief language with great care.

Breaking News: Ninth Circuit issues en banc decision in Dukes v. Wal-Mart Stores, Inc.

The Ninth Circuit has issued its long-awaited, en banc Opinion in Dukes v. Wal-Mart Stores, Inc. (9th Cir. Apr. 26, 2010).  Of course, I have no idea if you were actually waiting for it, so I am only referring to myself.  As for how long it took to issue the Opinion, it took some time to write an Opinion that is about 136 pages long.  The majority described the holding as follows:

Plaintiffs allege that Wal-Mart, Inc., discriminates against women in violation of Title VII of the Civil Rights Act of 1964. After detailed briefing and hearing, the district court certified a class encompassing all women employed by Wal-Mart at any time after December 26, 1998, and encompassing all Plaintiffs’ claims for injunctive relief, declaratory relief, and back pay, while creating a separate opt-out class encompassing the same employees for punitive damages. We affirm the district court’s certification of a Federal Rule of Civil Procedure 23(b)(2) class of current employees with respect to their claims for injunctive relief, declaratory relief, and back pay. With respect to the claims for punitive damages, we remand so that the district court may consider whether to certify the class under Rule 23(b)(2) or (b)(3). We also remand with respect to the claims of putative class members who no longer worked for Wal-Mart when the complaint was filed so that the district court may consider whether to certify an additional class or classes under Rule 23(b)(3).

Slip op., at 6146-47.  The massive opinion and dissent are simply too long for me to thoroughly cover this morning.  However, Circuit Judge Graber offered this brief comment on the entirety of the opinion:

GRABER, Circuit Judge, concurring: 

The majority and the dissent have written scholarly and complete explanations of their positions. What the length of their opinions may mask is the simplicity of the majority’s unremarkable holding:

Current female employees may maintain a Rule 23(b)(2) class action against their employer, seeking injunctive and declaratory relief and back pay on behalf of all the current female employees, when they challenge as discriminatory the effects of their employer’s company-wide policies.

If the employer had 500 female employees, I doubt that any of my colleagues would question the certification of such a class. Certification does not become an abuse of discretion merely because the class has 500,000 members. I therefore concur fully in the majority opinion.

Slip op., at 6237-38.

I will write more on this Opinion as soon as I am able, but a quick perusal suggests that this decision will have a lasting impact on certification motions in the Ninth Circuit.  Unless the U.S. Supreme Court wants to weigh in on this decision.

Banks can require U.S. citizens to provide social security numbers on credit card applications, despite accepting alternative forms of identification from foreign nationals

In Howe v. Bank of America N.A., plaintiffs, on behalf of a putative class of “individuals of U.S. national origin and/or ancestry, as well as naturalized individuals,” sued Bank of America and other companies. They alleged that Bank of America and other defendants had discriminated against the class in violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.) by requiring that United States citizens provide a Social Security number to open a particular type of credit card account, while allowing foreign nationals to open such accounts with only alternative forms of identification.  Slip op. at 2.  The trial court sustained the defendants' demurrer.  The Court of Appeal (Fourth Appellate District, Division Three), affirmed, finding that Bank of America's actions were facially reasonable in that they complied with federal minimum identification regulations.