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Thursday, April 29, 2010

State Bar Suspends Attorney for Improper Communications with Represented Parties

The State Bar of California recently suspended an attorney who directed his client's direct settlement negotiations with the plaintiffs in a wage and hour case. Unfortunately, we have seen quite a bit of this type of activity in the last two years. I am posting this report as a cautionary tale for any attorneys who may be tempted to engage in such tactics. This report appeared originally in California Lawyer magazine (
Suspended: Jonathan Wesley Birdt, State Bar #183908, Los Angeles (October 6, 2009).

Birdt, 39, was suspended for 30 days and placed on two years of probation for communicating with a represented party and engaging in acts of moral turpitude, dishonesty, or corruption.

In 2004 Birdt worked for a law firm that defended a company in a suit filed by nine employees for wage-and-hour violations. In July 2005 the company’s director of operations met with Birdt to discuss the case. During the meeting, Birdt said he could not speak directly with the plaintiffs, but the director could do so and would be paid to convince each of the plaintiffs to settle the case. He also requested that the director have each plaintiff sign a release prepared by Birdt. Four of the plaintiffs signed releases. Birdt did not have authority from the plaintiffs’ attorney to enter into a settlement with the company.

The next month the plaintiffs’ attorney filed an ex parte application for an order to stop Birdt from communicating further with the plaintiffs. Birdt filed an opposition, including his declaration that the director negotiated directly with the plaintiffs without his involvement in the settlement process. The State Bar found that Birdt made misleading statements to the court, and by doing so engaged in acts of moral turpitude, dishonesty, or corruption.

In aggravation, the misconduct caused significant harm to the public and to the administration of justice. In mitigation, Birdt cooperated with the State Bar by entering into a stipulation.

The order took effect November 5, 2009.

Wednesday, April 28, 2010

United States Supreme Court Issues Class Arbitration Ruling

The United States Supreme Court yesterday issued its decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., --- S.Ct. ---, 2010 WL 1655826 (U.S. April 27, 2010). In a case involving large shipping companies and their commercial customers, the Court held that an arbitrator does not have discretion to impose class arbitration where the parties to the arbitration agreement stipulate that the agreement is "silent" as to whether class arbitration is allowed.

Writing for a five-to-three majority (Justice Sotomayor did not take part), Justice Alioto emphasized the contractual nature of arbitration, beginning by noting that "the [Federal Arbitration Act ("FAA"). 9 U.S.C. Section 1, et seq.] imposes certain rules of fundamental importance, including the basic precept that arbitration “is a matter of consent, not coercion..." and "as with any other contract, the parties' intentions control." Slip op. at 11.
From these principles, it follows that a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so. In this case, however, the arbitration panel imposed class arbitration even though the parties concurred that they had reached "no agreement" on that issue...
An implicit agreement to authorize class-action arbitration, however, is not a term that the arbitrator may infer solely from the fact of the parties' agreement to arbitrate. This is so because class-action arbitration changes the nature of arbitration to such a degree that it cannot be presumed the parties consented to it by simply agreeing to submit their disputes to an arbitrator.
Slip op. at 13.

The Court concluded: "[W]e see the question as being whether the parties agreed to authorize class arbitration. Here, where the parties stipulated that there was 'no agreement' on this question, it follows that the parties cannot be compelled to submit their dispute to class arbitration."

In her dissent, Justice Ginsburg wrote:
The Court errs in addressing an issue not ripe for judicial review. Compounding that error, the Court substitutes its judgment for that of the decisionmakers chosen by the parties. I would dismiss the petition as improvidently granted. Were I to reach the merits, I would adhere to the strict limitations the Federal Arbitration Act (FAA) 9 U.S.C. Section 1 et seq., places on judicial review of arbitral awards. Section 10. Accordingly, I would affirm the judgment of the Second Circuit, which rejected petitioners' plea for vacation of the arbitrators' decision.
Slip op. at 15.

Interestingly, the majority notes that the respondent "made three arguments in support of construing the arbitration clause to permit class arbitration:"
The parties' arbitration clause should be construed to allow class arbitration because (a) the clause is silent on the issue of class treatment and, without express prohibition, class arbitration is permitted under Bazzle ; (b) the clause should be construed to permit class arbitration as a matter of public policy ; and (c) the clause would be unconscionable and unenforceable if it forbade class arbitration.
The majority addresses the first and second of these issues, disagreeing with the respondent, but does not address the third issue: whether arbitration agreements that are silent on class arbitration -- and therefor forbid class arbitration -- are unconscionable. I would expect to see plaintiffs' attorneys raise this argument under Armendariz and Gentry.

9th Circuit Holds that CAFA Cases Remain in District Court after Denial of Class Cert.

In United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC v. Shell Oil Co., --- F.3d --- (9th Cir., Apr. 21, 2010), a union and two employees filed a putative class action against three employers in state court, alleging violation of California's wage and hour laws and the Unfair Competition Law (UCL). The employers removed the action pursuant to the Class Action Fairness Act (CAFA). After denying the plaintiffs' motion for class certification, the district court remanded the case to state court. The employers appealed, and the Ninth Circuit reversed:
Defendants removed this putative class action from state court pursuant to the Class Action Fairness Act of 2005 (CAFA),FN1 28 U.S.C. §§ 1332(d), 1453. After denying class certification, the district court concluded that it no longer had jurisdiction and remanded the case to state court. We accepted defendants' appeal to consider whether the denial of class certification divests federal courts of jurisdiction over cases removed under § 1332(d). Today we join the Seventh and Eleventh Circuits in holding that it does not. If the putative class action was properly removed to begin with, the subsequent denial of Rule 23 class certification does not divest the district court of jurisdiction. The case remains removed and is not to be remanded to state court.

U.S. Supreme Court Issues Attorney Fee Decision

The United States Supreme Court has issued a decision addressing an attorney fee award in a section 1983 civil rights action. In Perdue v. Kenny A. ex rel Winn, 130 S.Ct. 1662 (2010), the claimants filed suit against state and local agencies and individuals, alleging that foster child services were inadequate. Following entry of a consent decree, the claimants sought to recover their attorney fees and costs. The District Court denied the request for an award of fees under the common fund doctrine, calculated a lodestar of $6 million, and awarded a $4.5 million enhancement based, inter alia, on the quality of the representation provided by the claimants' attorneys and the results obtained. Both sides appealed, the Eleventh Circuit Court of Appeals affirmed, and the Supreme Court granted certiorari.

Justice Alito wrote the 5-4 majority opinion, which held:
[T]he "lodestar," i.e., the number of hours worked multiplied by the prevailing hourly rates, may be increased due to superior performance and results. We have stated in previous cases that such an increase is permitted in extraordinary circumstances, and we reaffirm that rule. But as we have also said in prior cases, there is a strong presumption that the lodestar is sufficient; factors subsumed in the lodestar calculation cannot be used as a ground for increasing an award above the lodestar; and a party seeking fees has the burden of identifying a factor that the lodestar does not adequately take into account and proving with specificity that an enhanced fee is justified. Because the District Court did not apply these standards, we reverse the decision below and remand for further proceedings consistent with this opinion.
Id. at 1669.

In dissent, Justice Breyer wrote that he agreed that "an increase to the lodestar due to superior performance and results is permitted in extraordinary circumstances.” Id. at 1683. However, the dissent would not have considered the question decided by the majority, that is, whether the District Court abused its discretion in awarding a 1.75 multiplier on the reduced lodestar in this action. Id. at 1678.

Interestingly, although the dissent examines the course of the litigation to support its conclusion that the attorneys in this case achieved "superior performance and results," neither the majority nor the dissent paid much attention to the following premise, which is prominent in California law:
A lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions. If he is paid no more, competent counsel will be reluctant to accept fee award cases.
Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1133. California law thus seems to differ significantly from federal law on this issue.

California Supreme Court Grants Review in Pellegrino I

A couple of months ago we posted on Pellegrino v. Robert Half Intern., Inc. (February 25, 2010) 182 Cal.App.4th 87, 104 Cal.Rptr.3d 790 ("Pellegrino I"), which held, inter alia, that substantial evidence supported the trial court's finding that the administrative exemption did not apply to the plaintiffs. Our post on Pellegrino I is here.
A unanimous California Supreme Court today granted the employer's petition for review:
The petition for review is granted. Further action in this matter is deferred pending consideration and disposition of a related issue in Harris v. Superior Court (Liberty Mutual), S156555 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 8.520, is deferred pending further order of the court.
Harris has been on our watch list, and our post on it is here. I don't anticipate a substantive decision from the Court on Pellegrino I - since the Court has deferred briefing, I assume it will remand for reconsideration of the exemption issue when it issues Harris - and I will not add it to our Supreme Court watch list. The Supreme Court's docket is here

Dukes v. Wal-Mart: Discussion of Trial Issues and Conclusion

Class Action Can Proceed in a Way That Is Both Manageable and in Accordance with Due Process

The Court next turned its attention to the district court's decision that it could manage the class action trial. The Court did not rule on the district court's trial plan, but held that there are a number of proper ways to try large and complex class actions. The Court then explained the method used in Hilao v. Estate of Marcos, 103 F.3d 767, 782-87 (9th Cir. 1996), to determine the amount of compensatory damages due the plaintiffs in a large class action.

In short, the Court examined the claims filed and ruled out those that it found to be facially invalid. A court-appointed statistical expert advised on a statistically significant sample size. A randomly selected group of that size was deposed under the supervision of a court-appointed special master, who found that a certain number of claims were invalid, and determined the amounts owed to the remainder. The special master then extrapolated an invalidity rate and a total award to the class.

The Court then held a jury trial on damages. The parties presented the special master's findings to the jury, which was authorized to accept, reject, or modify those findings. The plaintiffs' statistical expert testified as to the significance of the sample. The deponents and their witnesses testified. The special master testified as to his findings.
The jury deliberated for five days before reaching a verdict. Contrary to the master’s recommendations, the jury found against only two of the 137 claimants in the random sample. As to the sample claims, the jury generally adopted the master’s recommendations, although it did not follow his recommendations in 46 instances. As to the claims of the remaining class members, the jury adopted the awards recommended by the master. The district court subsequently entered judgment for 135 of the 137 claimants in the sample in the amounts awarded by the jury, and for the remaining plaintiffs . . . in the amounts awarded by the jury, to be divided pro rata.
Slip op. at 92, citing Hilao at 783-84. The Court held that a similar procedure could be used to try the Dukes case and found "no manageability-based reason to find this otherwise-certifiable class unsuited to class certification." Slip op. at 94.

For the reasons set forth above, we hold that the district court acted within its broad discretion in concluding that it would be better to handle some parts of this case as a class action instead of clogging the federal courts with innumerable individual suits litigating the same issues repeatedly. The district court did not abuse its discretion in finding the requirements of Rule 23 satisfied with respect to those Plaintiffs who were still Wal-Mart employees on June 8, 2001, and with respect to claims for injunctive and declaratory relief and back pay. Given the tentative nature of the district court’s trial plan, we decline to address Wal-Mart’s due process and manageability challenges to that plan. We note, however, that the district court has the discretion to modify or decertify the class should it become unmanageable. Although the size of this class action is large, mere size does not render a case unmanageable.

We deny Plaintiffs’ cross-appeal, because the district court did not abuse its discretion when it found that back pay for promotions may be limited to those Plaintiffs for whom proof of qualification and interest exists. Finally, we must reiterate that our findings relate only to class action procedural questions; we neither analyze nor reach the merits of Plaintiffs’ allegations of gender discrimination.
Slip op. at 94-95.

Tuesday, April 27, 2010

Dukes v. Wal-Mart: Discussion of Rule 23(b)(2) and 23(b)(3)

The Court first discussed "the appropriate standard for determining when monetary relief 'predominates' over declaratory and injunctive relief...." Slip op. at 73. The Court explained:

We have previously joined the Second Circuit in adopting a test that focuses on the plaintiffs’ subjective intent in bringing a lawsuit. See Molski v. Gleich, 318 F.3d 937, 950 (9th Cir. 2003); Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 164 (2d Cir. 2001). In contrast, several other circuits use the “incidental damages standard” that was first enunciated by the Fifth Circuit in Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415-16 (5th Cir. 1998).... Under the Allison approach, monetary relief predominates over other forms of relief “unless it is incidental to requested injunctive or declaratory relief.” See Allison, 151 F.3d at 415.

Ibid. The Court then moved in a new, perhaps surprising direction:

We see no need to employ either approach, which are both, essentially, glosses on the text of the Advisory Committee’s Note’s statement that Rule 23(b)(2) “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Merriam-Webster defines “predominant” as “having superior strength, influence, or authority: prevailing.” Merriam-Webster’s Collegiate Dictionary 978 (11th ed. 2004). To be certified under Rule 23(b)(2), therefore, a class must seek only monetary damages that are not “superior [in] strength, influence, or authority” to injunctive and declaratory relief.

Ibid. This leads the Court to criticize and overrule its opinion in Molski:

An analysis of a plaintiff’s subjective intent in bringing a suit, as required by the standard set forth in Molski, is, at best, an incomplete method for answering this question. By eschewing consideration of the practical impact of a request for monetary relief on the litigation itself, the sole emphasis on the plaintiff’s intent ignores important indicators of the “strength, influence, [and] authority” of a request for specific monetary relief. In short, Molski’s focus on subjective intent and its concomitant failure to consider the pragmatic impact of a request for monetary relief render it fatally flawed.

The Molski approach is troubling for the additional reason that it requires courts to engage in a nebulous and imprecise inquiry into the plaintiffs’ intent in bringing a particular suit. Only in those cases in which a request for injunctive relief is obviously a ruse will this inquiry provide a clear answer. More often than not, we suspect that the answer will be equivocal and, therefore, essentially an entirely discretionary one.

Slip op. at 73-74. But the Court was no more satisfied with the 5th Circuit's approach in Allison:

Although the standard set forth in Allison is an objective one that does consider the practical effect of a request for monetary damages, it suffers from a different deficiency. By requiring monetary relief to be no more than “incidental” to injunctive or declaratory relief, the Allison approach is in direct conflict with the text of the Advisory Committee’s Note, which forbids certification under Rule 23(b)(2) if monetary relief is the “predominant” form of relief. See 151 F.3d at 412-16. “Predominant” is not synonymous with “more than incidental.” As a result, the Allison approach would preclude the certification of some Rule 23(b)(2) classes that the drafters of the Rules intended to allow.

Ibid. The Court then announced the correct standard under Rule 23(b)(2):

In light of the inadequacy of both the Allison and Molski approaches, we adopt instead the standard that Rule 23(b)(2)’s drafters straightforwardly indicated: Rule 23(b)(2) certification is not appropriate where monetary relief is “predominant” over injunctive relief or declaratory relief. To determine whether monetary relief predominates, a district court should consider, on a case-by-case basis, the objective “effect of the relief sought” on the litigation. See Allison, 416 F.3d at 416. Factors such as whether the monetary relief sought determines the key procedures that will be used, whether it introduces new and significant legal and factual issues, whether it requires individualized hearings, and whether its size and nature—as measured by recovery per class member—raise particular due process and manageability concerns would all be relevant, though no single factor would be determinative.

Under this standard, as discussed more fully below, the district court’s decision to include claims for back pay in a class certified under Rule 23(b)(2) was not an abuse of its discretion. On the other hand, the district court did abuse its discretion by failing to analyze whether certifying Plaintiffs’ punitive damages claims under Rule 23(b)(2) caused monetary damages to predominate, notwithstanding its decision to require notice and an opportunity for Plaintiffs to opt-out of the punitive damages claims.

Slip op. at 75. This may be the most important point of the decision, overruling Molski.

The Court went on to hold that none of the following undermine the plaintiffs' claim that injunctive and declaratory relief predominate: Wal-Mart's statistical evidence; the large size of the class; or plaintiffs' request for back pay (one element of equitable relief available under Title VII). Slip op. at 76-80.

In contrast, the Court held that monetary relief may predominate with respect to plaintiffs' bifurcated request for punitive damages:

To decide whether certification under Rule 23(b)(2) is appropriate, per the standard described in Part II, a district court must squarely face and resolve the question of whether the monetary damages sought by the plaintiff class predominate over the injunctive and declaratory relief. If so, then the court may either deny certification under Rule 23(b)(2) or bifurcate the proceedings by certifying a Rule 23(b)(2) class for equitable relief and a separate Rule 23(b)(3) class for damages.

Slip op. at 81. Accordingly, the Court held that the district court abused its discretion by certifying the punitive damage claim without conducting this analysis and remands this issue to the district court for further review. Slip op. at 82.

On remand, the district court must determine whether certification under Rule 23(b)(2) of the punitive damages claims would cause monetary relief to predominate. As discussed above, the district court should not limit its inquiry to the former Molski factors, but should also consider any other factors relevant to whether monetary relief predominates when determining if certification under Rule 23(b)(2) is appropriate.

Slip op. at 82-82. The Court then discussed four factors "that are relevant to the question whether monetary relief predominates...." I find this part of the decision very interesting and will quote it at length:

First, the inclusion of a punitive damages request means that the key issue in this case, Wal-Mart’s liability, will be decided by a jury, rather than a judge. This significant procedural change weighs in favor of finding that monetary relief would predominate if the punitive damages claims are certified, although it is not dispositive.

Second, Plaintiffs’ request for punitive damages introduces a new and substantial factual issue. To recover punitive damages, Plaintiffs must show not only that Wal-Mart engaged in a pattern or practice of discrimination, but also that it did so “with malice or with reckless indifference to the federally protected rights of” Plaintiffs. 42 U.S.C. § 1981a(b)(1). This additional factual question will likely require the Plaintiffs to introduce significant evidence and legal argument that would not have otherwise been necessary; the need for such extra evidence and argument weighs in favor of a finding that monetary relief predominates.

Third, the size of a potential punitive damages award, measured on an individual basis, could be quite significant. Title VII permits a punitive damage award of up to $300,000 per employee. See id. § 1981a(b)(3). Such a large potential award raises due process and manageability concerns. Although the district court’s decision to provide notice and opt-out to class members alleviates some of these concerns, the size of the potential award per class member in this case militates in favor of a finding that monetary relief predominates, triggering the need for other safeguards applicable when a class is certified under Rule 23(b)(3), rather than Rule 23(b)(2).

Finally, we note that, unlike in other punitive and compensatory damages cases, this case does not require individualized punitive damages determinations. Plaintiffs’ theory of liability is a class-wide theory that is based on a company policy that allegedly affects all class members in a similar way. See Allison, 151 F.3d at 417 (leaving open the possibility that a punitive damage class could be certified under 23(b)(2) where the “plaintiffs challenge broad policies and practices” and “contend that each plaintiff was affected by th[o]se polices and practices in the same way”). While this factor counsels against a finding that punitive damages predominate, it also is not necessarily dispositive.

Slip op. at 83-84. The Court added an interesting note at this point, stating that if certification of the punitive damage claim is not appropriate under Rule 23(b)(2), it still may be appropriate under Rule Rule 23(b)(3) in a hybrid action:

Under this hybrid approach, the highly cohesive Rule 23(b)(2) phase of the proceedings, including liability, can be adjudicated without the costly class notice and opt-out process required under Rule 23(b)(3). In order to protect the due process interests of absent class members, however, notice and opt-out is required for the Rule 23(b)(3) punitive damages proceedings. See Fed. R. Civ. P. 23(c)(2), advisory committee’s note to 2003 amends. (“If a Rule 23(b)(3) class is certified in conjunction with a (b)(2) class, the (c)(2)(B) notice requirements must be satisfied as to the (b)(3) class.” (emphasis added)); Eubanks, 110 F.3d at 96 (“[Hybrid certification] effectively grant[s] (b)(3) protections . . . at the monetary relief stage.”); Diaz v. Hillsborough County Hosp. Auth., 165 F.R.D. 689, 695 (M.D. Fla. 1996) (explaining that in Stage I, the court will resolve liability using Rule 23(b)(2) procedures and, if liability is established, adjudicate damages using “opt out” procedures in Rule 23(b)(3)). This procedure retains the benefits of Rule 23(b)(2) and Rule 23(b)(3) for all parties, and “promotes both ease of administration and the underlying principles of Rule 23.” See Williams v. Local No. 19, Sheet Metal Workers Int’l Ass’n, 59 F.R.D. 49, 56 (E.D. Pa. 1973) (explaining that the liability issue will be litigated first and, if the plaintiffs are successful, notice will be given for the damages proceeding).

Slip op. at 85.

In the last section of the opinion that I'm going to address in this post, the Court held that class certification may not be proper as to class members who were not employed at Wal-Mart as of the date plaintiffs filed their complaint: "those putative class members who were no longer Wal-Mart employees at the time Plaintiffs’ complaint was filed do not have standing to pursue injunctive or declaratory relief." Slip op. at 86. The Court explained further:

However, this does not mean that former employees are ineligible to receive any form of relief. Although women who were not employed by Wal-Mart as of June 8, 2001, the date on which the complaint was filed, do not have standing to seek injunctive or declaratory relief, they may be eligible to receive back pay and punitive damages. The district court may, in its discretion, certify a separate Rule 23(b)(3) class of former employees for back pay and punitive damages.

Slip op. at 86-87. The Court concluded this section as follows:

In summary, we affirm the district court’s certification of a Rule 23(b)(2) class insofar as the class consists of current employees (as of the date the complaint was filed), with respect to claims for injunctive relief, declaratory relief, and back pay. On remand, the district court should analyze whether certification under Rule 23(b)(2) or Rule 23(b)(3) is appropriate for the punitive damages claims and whether an additional class or classes may be appropriate under Rule 23(b)(3) with respect to the claims of former employees. The court may, if appropriate, certify an additional class or classes under Rule 23(b)(3).

Slip op. at 87.

Monday, April 26, 2010

Dukes v. Wal-Mart: Discussion of Rule 23(a) Factors

Having clarified, summarized, and clarified again the Rule 23 standard for class certification (discussed here), the Court next examined whether the plaintiffs met the proper standard in this case. In short, the Court held that they had and affirms class certification in part.

Rule 23(a)(1) - Numerosity: Not a real issue in this one. Slip op. at 43.

Rule 23(a)(2) - Commonality: The Court went through an extensive analysis of the evidence presented below on commonality. The Court noted that the standard is low and is construed permissively. Slip op. at 44-45. The Court then found that the district court was within its discretion to find that the plaintiffs' evidence satisfied this factor. Ibid.

The Court first examined plaintiffs' evidence that Wal-Mart had a "common policy of discrimination." The Court reviewed in detail each of the four categories of evidence presented by the plaintiffs on this point:

(1) Factual Evidence.
As factual evidence, Plaintiffs presented evidence of the following: (1) uniform personnel and management structure across stores; (2) Wal-Mart headquarters’s extensive oversight of store operations, company-wide policies governing pay and promotion decisions, and a strong, centralized corporate culture; and (3) consistent gender-related disparities in every domestic region of the company. Such evidence supports Plaintiffs’ contention that Wal-Mart operates a highly centralized company that promotes policies common to all stores and maintains a single system of oversight. Wal-Mart does not challenge this evidence.
Slip op. at 46.

(2) Expert Opinion.
Plaintiffs presented evidence from Dr. William Bielby, a sociologist, to interpret and explain the facts that suggest that Wal-Mart has and promotes a strong corporate culture — a culture that may include gender stereotyping. Dr. Bielby based his opinion on, among other things, Wal-Mart managers’ deposition testimony; organizational charts; correspondence, memos, reports, and presentations relating to personnel policy and practice, diversity, and equal employment opportunity issues; documents describing the culture and history of the company; and a large body of social science research on the impact of organizational policy and practice on workplace bias.
Slip op. at 46. After discussing Dr. Bielby's testimony at some length, the Court then turned to Wal-Mart's criticism of that testimony: that Dr. Bielby "concluded that Wal-Mart is 'vulnerable' to bias or gender stereotyping but failed to identify a specific discriminatory policy at Wal-Mart." The Court held that the district court properly rejected this criticism because the district court's role was not to determine whether Dr. Bielby was correct, but only to determine whether Dr. Bielby's testimony raised common issues sufficient to support class certification:
The court correctly explained that whether the jury was ultimately persuaded by those opinions was a question on the merits. For the class certification, however, Dr. Bielby’s opinions, for which Wal-Mart did not challenge the methodology, raised a question “of corporate uniformity and gender stereotyping that is common to all class members.” Id. We cannot say that considering Dr. Bielby’s opinions in this method was an abuse of discretion.
Slip op. at 48. The Court thus held that the district court did not err in refusing to strike Dr. Bielby's testimony under the Daubert standard. Slip op at 49.
At the class certification stage, it is enough that Dr. Bielby presented scientifically reliable evidence tending to show that a common question of fact — i.e., “Does Wal-Mart’s policy of decentralized, subjective employment decision making operate to discriminate against female employees?”— exists with respect to all members of the class.
Slip op at 50-51.

(3) Statistical Evidence.
Dr. Richard Drogin, Plaintiffs’ statistician, analyzed data at a regional level. He ran separate regression analyses for each of the forty-one regions containing Wal-Mart stores. He concluded that “there are statistically significant disparities between men and women at Wal-Mart in terms of compensation and promotions, that these disparities are wide-spread across regions, and that they can be explained only by gender discrimination.” Dukes, 222 F.R.D. at 154. Dr. Marc Bendick, Plaintiffs’ labor economics expert, conducted a “benchmarking” study comparing Wal-Mart with twenty of its competitors, concluding Wal-Mart promotes a lower percentage of women than its competitors.
Slip op. at 52-53. The Court held that the district court properly analyzed this evidence without making unnecessary and unwarranted decisions on the merits of the case:
Discussing the proper standard for evaluating the statistics, the district court said it rejected a full-blown merits evaluation of the evidence but had to “view[ ] the statistical evidence and testimony through the proper lens of the standards applicable to a class certification motion.” Dukes, 222 F.R.D. at 155. Though noting it would not decide the actual merits of the claims, the court did “delve[ ] into the substance of the expert testimony . . . to the extent necessary to determine if it [wa]s sufficiently probative of an inference of discrimination to create a common question as to the existence of a pattern and practice of gender discrimination at Wal-Mart.” Id. This is the precise inquiry that cases such as IPO have required, and it clearly meets the standard we outline above, particularly given the depth of the district court’s review, the evidentiary posture of the case as a Title VII pattern and practice case, and the underlying procedural standard where the district court here was reviewing evidence under Rule 23(a)(2), to raise a common question, rather than, like the cases Wal-Mart cites, Rule 23(b)(3), to determine predominance. See Hnot, 241 F.R.D. at 210.
Slip op. at 54. The Court noted that the district court did not "shy away" from issues that overlap with the merits, but properly examined the evidence not to the extent necessary to determine the ultimate merits of the case, but "only to the extent necessary to satisfy itself under Rule 23(a)(2) that Plaintiffs raised common questions." Slip op. at 56. The Court concluded:
Thus, because Dr. Drogin adequately explained, and the district court rigorously analyzed, why his statistical method best reflected the alleged discrimination, the court did not abuse its discretion when it credited Dr. Drogin’s analysis of statistical evidence of common discrimination questions. Nor did the district court abuse its discretion when it concluded that Dr. Drogin’s analysis supported Plaintiffs’ contention that there is a common core of facts flowing from Wal-Mart’s corporate structure and policies that affects class members generally with regard to their discrimination claims. While Plaintiffs and Wal-Mart disagree on whose findings are more persuasive, the disagreement is not one of whether Plaintiffs have asserted “common questions of law or fact.” Falcon, 457 U.S. at 157, 159. The disagreement is the common question, and deciding which side has been more persuasive is an issue for the next phase of the litigation. Requiring even more findings and further analysis from the district court would be to force a trial on the merits at the certification stage.
Slip op. at 60-61 (italics in original; underline added).

(4) Anecdotal Evidence.

Plaintiffs presented 120 declarations in which putative class members "testified to being paid less than similarly situated men, being denied or delayed in receiving promotions in a disproportionate manner when compared with similarly situated men, working in an atmosphere with a strong corporate culture of discrimination, and being subjected to various individual sexist acts. The district court credited this evidence." Slip op. at 63. The Court held that this anecdotal evidence, combined with plaintiffs' other evidence, "raise[s] an inference of common discriminatory experiences," and the district court did not abuse its discretion in considering that evidence. Slip op. at 64.

After reviewing all of the evidence on Wal-Mart's alleged "common policy of discrimination," the Court next turned its attention to "Wal-Mart’s decision to permit its managers to utilize subjectivity in interpreting [Wal-Mart's pay and promotion] policies." Slip op. at 65.
Wal-Mart is correct that discretionary decision making by itself is insufficient to meet Plaintiffs’ burden.
Wal-Mart is incorrect, however, that decentralized, subjective decision making cannot contribute to a common question of fact regarding the existence of discrimination. Indeed, courts from around the country have found “[a]llegations of similar discriminatory employment practices, such as the use of entirely subjective personnel processes that operate to discriminate, [sufficient to] satisfy the commonality and typicality requirements of Rule 23(a).”
Plaintiffs produced substantial evidence of Wal-Mart’s centralized firm-wide culture and policies, see Dukes, 222 F.R.D. at 151-54, thus providing a nexus between the subjective decision making and the considerable statistical evidence demonstrating a pattern of lower pay and fewer promotions for female employees.
Slip op. at 66. The Court concluded its commonality analysis as follows:
The district court’s analysis of Rule 23(a)(2) complies with the standard the Supreme Court has set down and we have explained today for a district court adjudicating a motion for class certification. Plaintiffs’ factual evidence, expert opinions, statistical evidence, and anecdotal evidence provide sufficient support to raise the common question whether Wal-Mart’s female employees nationwide were subjected to a single set of corporate policies (not merely a number of independent discriminatory acts) that may have worked to unlawfully discriminate against them in violation of Title VII. Evidence of Wal-Mart’s subjective decision-making policies suggests a common legal or factual question regarding whether Wal-Mart’s policies or practices are discriminatory. Many other courts have reached the same conclusion based on similar evidence.
Slip op. at 67.

Rule 23(a)(3) - Typicality:
Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). We stated in Hanlon that, “[u]nder the rule’s permissive standards, representative claims are ‘typical’ if they are reasonably coextensive with those of absent class members; they need not be substantially identical.” 150 F.3d at 1020; see also Staton, 327 F.3d at 957 (stating that “a class representative [from each job category] for each type of discrimination claim alleged . . . is not necessary”).
Slip op. at 68. The Court held that typicality was satisfied: "because the discrimination they
claim to have suffered occurred through alleged common practices—e.g., excessively subjective decision making in a corporate culture of uniformity and gender stereotyping—the district court did not abuse its discretion by finding that their claims are sufficiently typical to satisfy Rule 23(a)(3)." Ibid.

The Court also held that the class representatives are sufficiently typical of the class. The Court noted that there is no dispute that the class representatives are typical of the hourly class members, but that Wal-Mart disputes that they are typical of female in-store managers. The Court rejected this argument: "However, because all female employees faced the same alleged discrimination, the lack of a class representative for each management category does not undermine Plaintiffs’ certification goal." Slip op. at 69.

Rule 23(a)(4) - Adequacy:

The discussion here was very brief. The Court stated the rule and found that the district court did not abuse its discretion in rejecting Wal-Mart's argument that plaintiffs "cannot satisfy this factor because of a conflict of interest between female in-store managers who are both plaintiff class members and decision-making agents of Wal-Mart." Slip op. at 70.

Rule 23(a) Conclusion:

The Court thus concluded that "the district court did not abuse its discretion when it found that the Rule 23(a) elements were satisfied." Slip op. at 72.

Dukes v. Wal-Mart: Standards for Class Certification Under FRCP 23

The Ninth Circuit Court of Appeals this morning issued its decision in Dukes v. Wal-Mart, --- F.3d --- (9th Cir. (N.D. Cal) April 26, 2010). The decision affirms in part the district court's order granting certification. Here is the summary of the opinion:
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).
First of all, this is a very narrow victory for the plaintiffs: Judge Michael Daly Hawkins wrote the majority opinion, joined by five others, and Judge Ikuta wrote a dissent joined by four others, so it's a six-to-five split.

The majority begins by clarifying the standards for Rule 23 certification under the Supreme Court's decision in Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982):
When considering class certification under Rule 23, district courts are not only at liberty to, but must, perform a rigorous analysis to ensure that the prerequisites of Rule 23(a) have been satisfied. See id. at 160-61. It does not mean that a district court must conduct a full-blown trial on the merits prior to certification. A district court’s analysis will often, though not always, require looking behind the pleadings, even to issues overlapping with the merits of the underlying claims.
Slip op. at 12. The Court continues:
We also agree with the Second Circuit’s recent decision in Miles v. Merrill Lynch & Co. (In re Initial Pub. Offerings Securities Litigation) (“IPO”), which explained that, to the extent lower courts have evidenced confusion regarding the Rule 23 standard after Falcon, this confusion has existed because those courts have misread a Supreme Court statement made eight years before the Court handed down Falcon. See 471 F.3d 24, 33-34 (2d Cir. 2006). Specifically, courts have misunderstood Eisen v. Carlisle & Jacquelin, in which the Supreme Court stated, “We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” 417 U.S. 156, 177 (1974). “This statement has led some courts to think that in determining whether any Rule 23 requirement is met, a judge may not consider any aspect of the merits . . . .” IPO, 471 F.3d at 33. It has “led other courts to think that a judge may not do so at least with respect to a prerequisite of Rule 23 that overlaps with an aspect of the merits of the case.” Id.
Slip op. at 13. Eisen typically is cited by the plaintiffs, so if you were plaintiffs' counsel and you hadn't already read the summary, you may be worried at this point. The Court continues:
IPO held that factual disputes concerning each of the Rule 23 factors must be analyzed and resolved. 471 F.3d at 41. This is a similar holding to our previous explanation—discussed in more detail below—that a district court must make “determinations” that the prerequisites of Rule 23(a) have been satisfied before it certifies a class, “which may require review of the same facts and the same law presented by review of the merits.” Falcon, 457 U.S. at 161; Blackie v. Barrack, 524 F.2d 891, 897 (9th Cir. 1975). IPO explained that “the obligation to make such determinations is not lessened by overlap between a Rule 23 requirement and a merits issue.” 471 F.3d at 41. IPO expressly rejected the Second Circuit’s approach inCaridad v. Metro-North Commuter Railroad, 191 F.3d 283, 291-93 (2d Cir. 1999), and Wal-Mart Stores, Inc. v. Visa U.S.A. Inc. (In re Visa Check/ MasterMoney Antitrust Litigation) (“Visa Check”), 280 F.3d 124, 135 (2d Cir. 2001), which had permitted class certification based on “some showing” that the Rule 23 factors were met, obviating the need to assess conflicting expert testimony pertinent to the Rule 23 inquiries. IPO, 471 F.3d at 40.
Slip op. at 15. The Court then clarifies that there are limits on the extent to which the Court can examine merits issues in ruling on certification:
[A]lthough "the court may not put the plaintiff to preliminary proof of his claim, it does require sufficient information to form a reasonable judgment...."


[A] court can never be assured that a plaintiff will prevail on a given legal theory prior to a dispositive ruling on the merits, and a full inquiry into the merits of a putative class’s legal claims is precisely what both the Supreme Court and we have cautioned is not appropriate for a Rule 23 certification inquiry.
Slip op. at 26-27, citing Blackie v. Barrack, 524 F.2d 891, 897 (9th Cir. 1975) and United Steel Workers v. ConocoPhillips Co., --- F.3d ---, 2010 WL 22701, at *5 (9th Cir. (C.D. Cal.) Jan. 6, 2010) (district court erred in basing its decision on whether the plaintiffs could prove merits rather than whether their claims implicated common questions of law or fact). (We posted on United Steel here.)

The Court then spends several pages clarifying this standard. For example, the Court distinguishes between securities fraud cases, in which plaintiffs rely heavily on anecdotal evidence, and Title VII disparate impact cases, in which plaintiffs rely on statistical evidence:
In resolving this problem and certifying the class, the district court [in Hnot v. Willis Group Holdings Ltd., 241 F.R.D. 204, 210-11 (S.D.N.Y. 2007)] noted, “[c]ontrary to defendants’ assertions, In re IPO does not stand for the proposition that the Court should, or is even authorized to, determine which of the parties’ expert reports is more persuasive. Defendants ignore the fact that In re IPO specifically rejected this interpretation of Rule 23.” Id. at 210. Instead, Judge Lynch explained, “In re IPOreiterated that ‘experts’ disagreement on the merits—whether a discriminatory impact [can] be shown—[is] not a valid basis for denying class certification.’ ” Id.(alterations in original) (quoting IPO, 471 F.3d at 35). Thus, the court could only “examine the expert reports as far as they bear on the Rule 23 determination.” Id.
Slip op. at 31. Wage and hour class actions, like Title VII disparate impact class actions, rely heavily on statistical analysis to support class certification, liability, and damage analyses. thus, in a wage and hour case, as in a disparate impact case, the district court should not attempt to "determine which of the parties’ expert reports is more persuasive." Rather, the Court should limit itself to determining "whether plaintiffs have asserted common questions of fact or law." Slip op. at 32.

The Court then reiterates the Rule 23 class certification criteria:
First, when considering class certification under Rule 23, district courts are not only at liberty to, but must, perform a rigorous analysis to ensure that the prerequisites of Rule 23 have been satisfied, and this analysis will often, though not always, require looking behind the pleadings to issues over-lapping with the merits of the underlying claims. It is important to note that the district court is not bound by these determinations as the litigation progresses. Second, district courts may not analyze any portion of the merits of a claim that do not overlap with the Rule 23 requirements. Relatedly, a district court performs this analysis for the purpose of determining that each of the Rule 23 requirements has been satisfied. Third, courts must keep in mind that different parts of Rule 23 require different inquiries. For example, what must be satisfied for the commonality inquiry under Rule 23(a)(2) is that plaintiffs establish common questions of law and fact, and answering those questions is the purpose of the merits inquiry, which can be addressed at trial and at summary judgment. Fourth, district courts retain wide discretion in class certification decisions, including the ability to cut off discovery to avoid a mini-trial on the merits at the certification stage. Fifth, different types of cases will result in diverging
frequencies with which the district court will properly invoke its discretion to abrogate discovery.
Slip op. at 34-35.

I find the Court's discussion here very interesting. The Court obviously is very interested in harmonizing its approach with both Falcon and the other circuits. This may be an effort to blunt the force of Wal-Mart's inevitable petition for review in the United States Supreme Court, where Wal-Mart undoubtedly will argue that the decision creates a conflict with Falcon and the other circuits.

Ninth Circuit Affirms Class Certification Decision in Dukes v. Wal-Mart

I understand that the Ninth Circuit Court of Appeals has just issued its order affirming in part the district court's order granting certification in Dukes v. Wal-Mart. Our original post on Dukes is here. I am trying to download the opinion now and will post more when I know more. Here is the summary of the opinion:
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).
This is a very long opinion (95 pages for the majority, 137 total). I've decided to post my commentary in sections. The first section will be up shortly.

Supreme Court Issues Arbitration Decision in Pearson Dental

This is a busy morning for cases we've been watching. The California Supreme Court has issued its opinion in Pearson Dental Supplies, Inc. v. Superior Court (Turcios) (April26, 2010) (original post here).

We have emphasized in our case law the limited nature of judicial review of contractual arbitration awards, concluding that, generally speaking, a court is not permitted to vacate an arbitration award when the award is based on errors of law. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 25, 28 (Moncharsh).) We also have indicated that the scope of judicial review may be somewhat greater in the case of a mandatory employment arbitration agreement that encompasses an employee’s unwaivable statutory rights. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 106-107 (Armendariz).)

In the present case involving the resolution of a statutory employment discrimination claim, an arbitrator decided in favor of an employer against the employee on the grounds that the claim was time-barred under the one-year contractual deadline for requesting arbitration. The trial court vacated the award, concluding, as explained below, that the arbitrator had plainly misapplied the relevant tolling statute, Code of Civil Procedure section 1281.12. The Court of Appeal, while agreeing with the trial court that the arbitrator had erred, held nonetheless that such error was not a valid basis for vacating an arbitration award and reversed the trial court.

We conclude that the trial court and Court of Appeal are indeed correct that the arbitrator clearly erred in ruling that the employee’s claim was time-barred. We further conclude that under the particular circumstances of this case, in which a clear error of law by an arbitrator means that an employee subject to a mandatory arbitration agreement will be deprived of a hearing on the merits of an unwaivable statutory employment claim, the trial court did not err in vacating the award. We therefore reverse the judgment of the Court of Appeal.

In a second issue, the employee argues that language in the arbitration agreement indicating that he is relinquishing not only the right to go to court but also to access administrative remedies is unconscionable, and that therefore not only should the arbitration award be vacated but the entire arbitration agreement should be invalidated. As explained below, we conclude the language in question is reasonably susceptible to a lawful interpretation, and therefore reject the employee’s claim of unconscionability.

I will post a follow-up when I have the time to review in detail.

Wednesday, April 21, 2010

Ninth Circuit Invalidates Forum Selection and Arbitration Agreement

In Pokorny v. Quixtar, Inc. --- F.3d --- (9th Cir., April 20, 2010), the Ninth Circuit Court of Appeals invalidated a truly over-bearing and one-sided forum selection and arbitration agreement. Here's the summary:

Where plaintiffs who sought protection from allegedly unconscionable agreements were all California residents with no discernable connection to Michigan, district court correctly determined that California law applied. Contractual mandatory alternative dispute resolution provisions were unconscionable under California law. Agreement was procedurally unconscionable since defendant was a large corporation doing business throughout the United States and occupied a superior bargaining position, agreements were presented on a take-it-or-leave-it basis, and defendant failed to provide a full description of the non-binding conciliation and binding arbitration processes--which were subject to unilateral amendment by defendant at any time. Agreement was substantively unconscionable because nonbinding conciliation and binding arbitration processes obligation was not bilateral and gave defendant an unfair advantage, time restrictions for bringing a claim applied only to plaintiffs, plaintiffs were not given a meaningful opportunity to challenge rules of conduct applicable to the nonbinding conciliation process, agreements’ confidentiality provisions prevented plaintiffs from discussing their claims with other potential plaintiffs and discovering relevant precedent to support their claims, arbitrators were trained by defendant, and fee-shifting clause placed plaintiffs at risk of greater costs than they would bear if they were to litigate their claims. District court did not abuse its discretion in declining to sever the unconscionable clauses of agreement.

Wednesday, April 14, 2010

DLSE Sets Forth Test for Unpaid Interns

In a new opinion letter authored by Acting Chief Counsel David Balter, the DLSE has revised the standard for determining whether "trainees" are exempt from California's minimum wage requirements.

The opinion letter considered a program called "Year Up, Inc., a non-profit 501(c)(3) organization (the 'Program'), that serves 18-24 year olds in primarily underserved communities who have not progressed beyond a GED or high school diploma. The objective of the program is to 'close the Opportunity Divide by providing urban young adults with the skills, experience, and support that will empower them to reach their potential through professional careers and higher education.'" Year Up sought an opinion "as to whether California law requires that the trainee/interns enrolled in the program are to be treated as employees subject to California’s wage and hour laws."

Stating that California law does not answer this question, the letter looks to federal regulations for help and notes that the DOL has used a six-part test to determine whether a "trainee" is exempt from minimum wage requirements:
  1. The training, even though it includes actual operation of the employer’s facilities, is similar to that which would be given in a vocational school;
  2. The training is for the benefit of the trainees or students;
  3. The trainees or students do not displace regular employees, but work under their close observation;
  4. The employer derives no immediate advantage from the activities of trainees or students, and on occasion the employer’s operations may be actually impeded;
  5. The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and
  6. The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.

The letter then disavows use of an eleven-factor test previously outlined in a number of opinion letters.

In the past, DLSE has articulated an “11-factor test” which consisted of the 6 factors from DOL’s criteria interpreting federal law, plus 5 additional factors which are identified in Wilcox, California Employment Law, §104[1](e). (See also, DLSE OLs 1998.11.12, 1993.10.21) However, the 5 additional factors do not appear to be based upon any source statute or regulation from which they derive nor are the additional factors identified with specific case law. More recently, DLSE applied a 6-factor test for the trainee/intern exemption under an economic realities test for determining an employment relationship where the 6 factors differed, in part, from the above-stated 6 factors used by DOL. (DLSE OL 2000.05.17)

Through an exhaustive analysis of the facts provided, the letter finds that Year Up satisfies the six-factor test. The opinion letter is here. The DLSE web pages for all opinion letters are here: organized by date, organized by topic, and those withdrawn since Arnold Schwarzennegger became Governor in 2003.

Monday, April 5, 2010

Ninth Circuit Rules Against Police Officers in Donning/Doffing Action

In Bamonte v. City of Mesa, --- F.3d ---, 2010 WL 1131492 (C.A.9 (Ariz.), 2010), the Ninth Circuit Court of Appeal affirmed summary judgment against a putative class of police officers in a donning and doffing action. The Court held that the officers' donning and doffing time was not compensable under the Fair Labor Standards Act and the Portal-to-Portal Act because the defendant did not require the officers to don and doff their uniforms and other gear at the work-place. Because the officers had the option of getting ready at home, the District Court properly entered summary judgment.

Thursday, April 1, 2010

Review of the Los Angeles County Bar Association Thirtieth Annual Employment Law Symposium

The Los Angeles County Bar Association (LACBA) Labor and Employment Law Section put on its Thirtieth Annual Labor and Employment Law Sympoisum yesterday at the Biltmore Hotel, one of LA's real treasures.

I did not speak at this year's Symposium, so I had the opportunity to relax and watch other people do the hard work. I also had a great opportunity to meet new people and catch up with others I have not seen in a while. This symposium draws a top notch group of plaintiffs' and defense counsel, professional neutrals, and judges. It's really a Who's Who of the Southern California employment law community.

The day started with recent developments, moderated by Michael Robbins, with Gina Browne and Tracey Kennedy. I follow the new cases very closely and was familiar with the material, but I enjoyed the presentation - it was fun to hear Gina talking about all of the good new cases for plaintiffs - and I was particularly interested in Tracey Kennedy's comments on Martinez v. Combs, a case that we've been watching for several years. Tracey commented that if the plaintiffs lose Martinez [more on this below from the man I believe will author the Supreme Court's decision] she anticipates legislation to clarify California's definition of "employer." She also commented that defense attorneys should start counseling their clients on these issues sooner, rather than later. I appreciated Tracey's candor.

Daphne Aneet moderated a panel on employee privacy with Brenda Sutton-Wills and Irma Rodriguez Moisa. This is not a big area of interest for me, but I had the opportunity to have dinner after the seminar with Daphne and Irma, among others, and we had a great discussion of employment law, mediation, etc.

The next panel featured two A-list trial lawyers, Linda Miller Savitt and Dan Stormer, along with moderator Melanie Poturica and trial consultant Dan Gallipeau, Ph.D. They started with voir dire of a mock jury panel, then discussed the issues that arose. I am very engaged in trial practice, and Linda, Melanie, and The Two Dans offered a ton of useful insight. I just wish they had been given more time to do a more full voir dire. Linda and Dan will be demonstrating and discussing opening statements at the section's April retreat, and I would recommend their program to anyone who tries cases or wants to try cases.

The lunch keynote speaker was California Supreme Court Justice Carlos R. Moreno. Justice Moreno discussed a number of recent and pending cases, including Martinez v. Combs, which I blogged
here. Justice Moreno said that Martinez will clarify issues left open by Reynolds v. Bement. This is no small thing. Many have argued that Reynolds settled the issues raised in Martinez. The Court itself questioned whether it should retain Martinez after Reynolds, and plaintiffs' counsel fought what seemed like an uphill battle to get the Court to retain it. I don't like to read too much into tea leaves, but this seems to me to be a positive comment for the plaintiffs in Martinez. Justice Moreno also said he anticipates the decision being issued before the 90-day deadline on June 3.

The next panel was on writs and appeals. Andrew Friedman moderated, with Court of Appeal Justice Laurence D. Rubin and attorneys Marc Poster and Stuart Esner. The program was well done, but they focused largely on preserving the record on appeal, and I have to say that they would have engaged the audience more with greater focus on writs, since most attorneys do not try their cases, let alone file appeals.

Marcus McDaniel moderated a panel on pre-certification communications with putative class members. Aashsish Desai and Arthur Silbergeld argued hypothetical issues under California and federal law, and Judge William Highberger from LA's complex panel issued rulings. The panel did a good job covering the material in an engaging format.

At the same time, another panel discussed the use of neutrals. Julie Yanow moderated, and Will Harris, Kim Deck, and my law school classmate and friend Apalla Chopra spoke. Another good panel, although I found it a little odd that they included expert witnesses and workplace investigators in their definition of neutrals.

The last panel of the day was on e-discovery. Angela Robledo moderated, with Hon. Carl West, Heather Morgan, and Scott Leviant. Another good panel on an important topic. Heather seemed so earnest that I almost felt sorry for her, having to deal with all the unreasonable discovery requests from plaintiffs' counsel. [I must have been tired.]

JAMS hosted a cocktail reception after the symposium, which gave us all a great opportunity to mix and mingle with people from the other side of the employment bar, as well as judges and neutrals. After that, there was a dinner for speakers, moderators, and members of the Section's executive committee, including yours truly.

All in all, this was just a great event. Congratulations to everyone who worked so hard to make it a success. I am looking forward to the Section's retreat in Ojai in March.