Paratransit, Inc. v. UIAB: Refusal to Sign Write Up Constitutes Misconduct and Disqualifies Employee From Receiving Unemployment Benefits

Just a quick note on this case.  

We all have seen employees refuse to sign performance reviews or disciplinary warnings that they believe are untrue or unfair.  They do this even though the write-up form typically says that, by signing, the employee does not admit to fault or the truth of the facts stated. 

In Paratransit, Inc. v. Unemployment Insurance Appeals Board (Medeiros) (5/31/12, pub. 6/14/12), the Court of Appeal held that an employee's refusal to sign a  disciplinary memorandum in connection with a prior incident of misconduct constituted work-related misconduct, not a good-faith error in judgment, rendering the employee ineligible for unemployment compensation.  

I wonder how this would play out in a wrongful termination action. In Barbosa v. IMPCO Technologies, Inc. (2009) 179 Cal.App.4th 1116 (discussed here), the Court of Appeal held that the public policy protects an employee from termination for making a good faith but mistaken claim to overtime. The same public policy considerations would not appear to protect an employee who refuses to sign a write-up. 

The opinion is available here. 

Okwu v. McKim: Ninth Circuit Issues Unusual Americans with Disabilities Act Decision

Okwu v. McKim, --- F.3d --- (9th Cir. 6/12/12) raises an interesting issue: whether a state employee may sue state officers under section 1983 for alleged violations of the Americans with Disabilities Act ("ADA"). Plaintiff Josephine Okwu filed suit against the a number of individuals, each of whom was an employee of the California Department of Transportation (“Caltrans”) or the California Public Employees Retirement System (“CalPERS”).

The defendants in this case determined that Plaintiff Josephine Okwu’s psychological disorders made her unfit for reinstatement from disability retirement to active service with the California Department of Transportation (“Caltrans”). Okwu alleges that this decision deprived her of her right to a reasonable accommodation under the ADA and to the equal protection of the laws under the Fourteenth Amendment. We conclude that Congress’s inclusion of a comprehensive remedial scheme in Title I of the ADA precludes § 1983 claims predicated on alleged violations of ADA Title I substantive rights. We also conclude that Okwu’s allegations of fact do not state a claim under the Equal Protection Clause.

Slip op. at 2-3.

The opinion is a short, interesting read. It is available here.  

Samper v. Providence St. Vincent: Court Holds that Regular Attendance at Work Is an Essential Function for NICU Nurse

In Samper v. Providence St. Vincent, 675 F.3d 1233 (9th Cir., 4/11/12) the Ninth Circuit Court of Appeals held that regular attendance is an essential function of an NICU nurse's duties for purposes of the Americans with Disabilities Act.  

Monika Samper, a neo-natal intensive care unit (“NICU”) nurse, sought an accommodation from her employer [to accommodate her fibromyalgia], Providence St. Vincent (“Providence”), that would have allowed her an unspecified number of unplanned absences from her job. She wanted to opt out of Providence’s attendance policy, which sanctioned five unplanned absences of unlimited duration as well as other permitted absences. Samper appeals the district court’s summary judgment in favor of Providence on her reasonable accommodation claim under the Americans with Disabilities Act (“ADA”). Because regular attendance is an essential function of a neo-natal nursing position at Providence, we affirm.  

675 F.3d at 1235.  

The Court began by noting that understaffing could compromise patient care, then described Providence's attendance policy: 

Nonetheless, striking a balance between the needs of patients and employees, Providence's attendance policy allows its employees to take up to five unplanned absences during a rolling twelve-month period. In addition, "[u]nplanned absences related to family medical leave ... jury duty, bereavement leave and other approved bases are not counted" towards this limit, and each absence, however long, counts as only one occurrence.  Samper challenges the application of this generous absence policy to her circumstances. 

Ibid.  The Court reviewed Samper's long history of missing time from work for a variety of reasons, including health and personal reasons.  The Court's "essential functions" analysis is fairly brief and direct: Many jobs require regular attendance; a few do not.  NICU nurse is one of those jobs that cannot be done from a remote location.  Regular attendance is even more essential for a NICU nurse than it is for most other jobs.  Id. at 1237-1239.  

Samper's performance is predicated on her attendance; reliable, dependable performance requires reliable and dependable attendance. An employer need not provide accommodations that compromise performance quality—to require a hospital to do so could, quite literally, be fatal.

Id. at 1241.  

The opinion is available here.  

Comcast Corp. v. Behrend: US Supreme Court to Decide Class Certification Issue

In Comcast Corp. v. Behrend (Case No. 11-864), the Supreme Court of the United States will decide the following issue:

Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.

The Court's docket is available here.  

Peleg v. Neiman Marcus: Court of Appeal Finds Arbitration Agreement Illusory and Unenforceable

Peleg v. Neiman Marcus Group, Inc. (4/17/12) 204 Cal.App.4th 1425, represents a unique twist on the enforceability of arbitration clauses:  

In this employment case, an employer and its at-will employees purportedly entered into a contract requiring the arbitration of claims by both sides. But the contract contains a modification provision stating that the employer may amend, modify, or revoke the arbitration contract on 30 days' written notice; at the end of the 30-day period, a contract change applies to any claim that has not been filed with the American Arbitration Association (AAA). The contract also has a choice-of-law clause stating that the contract shall be governed by Texas law and the FAA. The employee contends that, under the choice-of-law clause, the employer's unilateral right to make contract changes renders the contract illusory. We ultimately conclude that the choice-of-law clause is valid and that the arbitration contract is illusory under Texas law.  

In reaching that conclusion, we also examine California law regarding illusory arbitration contracts. On that subject, we determine that an arbitration contract containing a modification provision is illusory if an amendment, modification, or revocation—a contract change—applies to claims that have accrued or are known to the employer. If a modification provision is restricted—by express language or by terms implied under the covenant of good faith and fair dealing—so that it exempts all claims, accrued or known, from a contract change, the arbitration contract is not illusory. Were it otherwise, the employer could amend the contract in anticipation of a specific claim, altering the arbitration process to the employee's detriment and making it more likely the employer would prevail. The employer could also terminate the arbitration contract altogether, opting for a judicial forum if that seemed beneficial to the company. 

Id. at 1432-1433.  

The opinion is available here.  

Samaniego v. Empire Today: Court of Appeal Affirms Order Denying Arbitration

Another interesting battle in the Arbitration Wars: Samaniego v. Empire Today LLC (4/5/12, publ. 5/7/12) --- Cal.App.4th ---.

The plaintiffs worked as carpet installers for a subsidiary or affiliate of the defendant, Empire. Plaintiffs signed an agreement to arbitrate any dispute between them and Empire. They later filed a putative class action alleging that Empire misclassified them as independent contractors, rather than employees. Empire moved to compel arbitration. The trial Court (Alameda County Superior, Judge Steven Brick) denied Empire's motion, and Empire appealed.

The Court of Appeal affirmed. First, it found the agreement procedurally unconscionable. "The Agreement was comprised of 11 pages of densely worded, single-spaced text printed in small typeface. The arbitration clause is the penultimate of 37 sections which, in contrast to [Roman v. Superior Court (2009) 172 Cal.App.4th 1462 (discussed here)] were neither flagged by individual headings nor required to be initialed by the subcontractor." Slip op. at 6-7. In addition, Empire required the plaintiffs to sign the agreement as a condition of work, the agreement was in English, and the plaintiffs could read little or no English, and Empire did not provide them copies of the agreement or the applicable arbitration rules.

Second, the Court found the agreement substantively unconscionable. The agreement shortened the plaintiffs limitations period to six months, included one-way attorney fee shifting in favor of Empire, and exempted claims that typically would be brought by employers. Id. at 7-9.

Third, the Court held that California law applied, despite a contract clause calling for Illinois choice of law and venue. The Court held that "the same factors that render the arbitration provision unconscionable warrant the application of California law," because "the Agreement was obtained by 'improper means' and, to the extent Illinois law might require enforcement of its arbitration clause, enforcing Empire's choice-of-law provision would result in substantial injustice." Id. at 10.

Fourth, the Court held that the trial court did not err in declining to sever the objectionable portions of the agreement and enforcing the remainder.

Finally, the Court held that the Supreme Court's decision in AT&T Mobility LLC v. Concepcion (2011) ___ U.S. ___, 131 S.Ct. 1740, 179 L.Ed.2d 742 (discussed here) does not prevent courts from rejecting arbitration agreements that they find unconscionable. "In short, arbitration agreements remain subject, post-Concepcion, to the unconscionability analysis employed by the trial court in this case." Id. at 12. 

Samaniego is available here.

Steven G. Pearl to Speak July 25 at State Bar Advanced Wage and Hour Conference

I am presenting "Advanced Mediation Techniques in Wage and Hour Cases" at the State Bar's Second Annual Wage and Hour Conference.

The Conference is tomorrow, July 25, 2012, at the JW Marriott Los Angeles at L.A. Live (near Staples Center). The brochure is here. Lots of top notch speakers at a very reasonable price: $150 for State Bar Labor and Employment Law Section members and $225 for non-members. I'm also sponsoring the Conference, so please stop by my table and say hello.  

Baker v. Mulholland Security: Court Reverses Award of Expert Witness Fees to Prevailing Employer in FEHA Action

Baker v. Mulholland Security and Patrol, Inc. (3/28/12) 204 Cal.App.4th 776, is another case from earlier this year that I wanted to note for the record.

The plaintiff, Baker, sued his former employer, Mulholland, alleging that it terminated him in retaliation for complaining of discriminatory remarks made at work. The trial court (Los Angeles Superior, Judge Conrad R. Aragon), granted Mulholland's motion for summary adjudication on the retaliation claims and awarded Mulholland its expert witness fees. The parties settled the remaining claims, and Baker appealed from the judgment for Mulholland on the retaliation claims and expert witness fees.

The Court of Appeal affirmed the grant of summary adjudication and, in the published portion of the decision, reversed the expert witness fee award, holding as follows:

1. In the ordinary action, the prevailing party may recover its costs, but not fees of expert witnesses not ordered by the court.  204 Cal.App.4th at 782.

2. In a FEHA action, a prevailing employer "may recover attorney fees only when the plaintiff's action was frivolous, unreasonable, without foundation, or brought in bad faith." Id. at 782-783.

3. The Courts of Appeal are split about whether this standard applies to an award of ordinary litigation costs to a prevailing FEHA defendant. (Compare Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671, 681 ["ordinary litigation costs are recoverable by a prevailing FEHA defendant even if the lawsuit was not frivolous, groundless, or unreasonable"] and Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 134-135 [same] with Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387 [prevailing FEHA defendant can recover litigation costs only when action is frivolous, groundless, or unreasonable].  Id. at 783.  

4.  As a matter of first impression, expert witness fees are more similar to attorney fees than they are to ordinary litigation costs, and a prevailing FEHA defendant may recover them only when the action is  is frivolous, groundless, or unreasonable.    Id. at 783-784.  

The opinion is available here.  

Coleman v. Court of Appeals of Maryland: Supreme Court Rules that Sovereign Immunity Bars FMLA Action v. State

A quick note about this case.  In Coleman v. Court of Appeals of Maryland, 132 S.Ct. 1327 (3/20/12), the Supreme Court of the United States held that a state's sovereign immunity bars a state employee from suing for damages under federal law, in this case the Family and Medical Leave Act of 1993.  

The question in this case is whether a state employee is allowed to recover damages from the state entity that employs him by invoking one of the provisions of a federal statute that, in express terms, seeks to abrogate the States' immunity from suits for damages. The statute in question is the Family and Medical Leave Act of 1993, 107 Stat. 6, 29 U.S.C. § 2601 et seq. The provision at issue requires employers, including state employers, to grant unpaid leave for self care for a serious medical condition, provided other statutory requisites are met, particularly requirements that the total amount of annual leave taken under all the Act's provisions does not exceed a stated maximum. § 2612(a)(1)(d). In agreement with every Court of Appeals to have addressed this question, this Court now holds that suits against States under this provision are barred by the States' immunity as sovereigns in our federal system. 

Id. at 1332.  The opinion is available here.  

Nelsen v. Legacy Partners: Court of Appeal Affirms Order Compelling Individual Arbitration of California Wage Claims

It seems like we have new cases every day dealing with arbitration, so why should today be any different?

In Nelsen v. Legacy Partners Residential, Inc. (7/18/12) --- Cal.App.4th ---, the plaintiff, Nelsen, worked as a property manager for the defendant, LPI. Nelsen filed a putative class action against LPI alleging violation of various California wage and hour laws and the UCL. Cal. Bus & Prof. Code 17200 et seq. Nelsen had signed an agreement to arbitrate any disputes with LPI, and LPI moved to compel individual arbitration. The trial court (San Francisco Superior, Judge Charlotte Walter Woolard) granted the motion to compel individual arbitration and stayed the action. Nelsen appealed from the order. Citing Franco v. Athens Disposal Co., Inc. (2009) 171 Cal.App.4th 1277, Nelsen argued that the trial court's order constituted a "death knell" for the putative class action, making the order appealable.

The Court of Appeal affirmed. First, the Court questioned whether the case truly implicated the death knell doctrine, as Nelsen had not explained "how the trial court‘s order makes it impossible or impracticable for her to proceed with the action at all." Slip op. at 5. Regardless, the Court exercised its discretion to treat the appeal as a petition for writ of mandate. Ibid.

On the merits, the Court first considered whither the arbitration clause at issue was unconscionable. The Court held that "several factors support a finding LPI's arbitration agreement is procedurally unconscionable": it was a contract of adhesion; the arbitration section's header did not mention arbitration; and the arbitration language was in a smaller font than other portions of the form. Slip op. at 7.

As to substantive unconscionability, the Court found that the arbitration clause at issue was identical to the one at issue in Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, except that the one clause that the California Supreme Court found objectionable in Little -- a clause allowing an appeal of an award greater than $50,0000 -- was not present here. The Court held that Little controlled, and the arbitration clause was not substantively unconscionable.

The Court next examined whether the agreement's class action ban was unenforceable on public policy grounds. "Relying on Gentry v. Superior Court (2007) 42 Cal.4th 443 (Gentry), Nelsen contends requiring individual arbitration of her wage and hour claims would violate California public policy even if the arbitration agreement is otherwise found to be valid and enforceable." Slip op. at 10. Citing Arguelles-Romero v. Superior Court (2010) 184 Cal.App.4th 825 (discussed here), Court explained Gentry as follows:

Gentry holds that when a class action is requested in a wage and hour case notwithstanding an arbitration agreement expressly precluding class or representative actions, the court must decide whether individual arbitration is so impractical as a means of vindicating employee rights that requiring it would undermine California‘s public policy promoting enforcement of its overtime laws. If the court makes that determination, Gentry requires that it invalidate the class arbitration waiver and require class arbitration. Gentry further held that refusing to enforce class arbitration waivers on such public policy grounds would not violate the FAA.

Slip op. at 10-11.

The agreement did not expressly waive class arbitration. LPI argued that silence on class arbitration did not constitute a waiver (but also did not constitute consent to class arbitration), and Gentry did not apply. Nelsen argued that the agreement‘s silence constitued a de facto waiver of class arbitration, and Gentry did apply. The Court agreed with Nelsen, holding that Gentry applies whether the agreement explicitly waives class arbitration or implicitly does so by indicating no consent to class arbitration. Slip op. at 11.

The Court next examined the arbitration clause to determine whether it in fact permitted class arbitration. Relying on Stolt-Nielsen S.A. v. Animal Feeds Int’l Corp. (2010) ___ U.S. ___ [130 S.Ct. 1758] (discussed here), the Court held that the agreement did not permit class arbitration.

While the arbitration agreement in issue broadly encompasses any employment-related "claim, dispute, or controversy . . . which would otherwise require or [allow] resort to any court," it contains one very significant limitation. The agreement only covers claims, disputes, and controversies "between myself and Legacy Partners," that is, between Nelsen and LPI. A class action by its very nature is not a dispute or controversy "between [Nelsen] and Legacy Partners."

Slip op. at 14. The Court cited to Kinecta Alternative Financial Solutions, Inc. v. Superior Court (2012) 205 Cal.App.4th 506 (discussed here), noting that it decided "a nearly identical question" language and reached the same conclusion. Slip op. at 14. 

Having held that the agreement did not permit class arbitration, the Court turned to whether it was enforceable under Gentry. The Court cited a number of cases holding that AT&T Mobility LLC v. Concepcion (2011) 563 U.S. ___ (discussed here) overturns Gentry, but it declined to reach this issue. Instead, the Court held that Nelsen had failed to make the factual showing required under Gentry.

Having relied on Gentry in her opposition to the motion to compel in the trial court, it was Nelsen's burden to come forward there with factual evidence supporting her position classwide arbitration was required. She is not entitled to a remand for the purpose of affording her a second opportunity to produce such evidence, as she now requests.

Slip op. at 17.

The Court next considered whether the NLRB's decision in D.R. Horton (discussed here) afforded Nelsen any relief. The Court declined to follow D.R. Horton.

The Board's decision reflects a novel interpretation of section 7 and the FAA. It cites no prior legislative expression, or judicial or administrative precedent suggesting class action litigation constitutes a "concerted activit[y] for the purpose of . . . other mutual aid or protection" (29 U.S.C. § 157), or that the policy of the FAA favoring arbitration must yield to the NLRA in the manner it proposes.

Slip op. at 19. The Court cited to a number of district court decisions both before and after D.R. Horton that disagree with its analysis. Grabowski v. C.H. Robinson (S.D.Cal. 2011) 817 F.Supp.2d 1159, 1168–1169; Slawienski v. Nephron Pharmaceutical Corp. (N.D.Ga. 2010) 2010 WL 5186622, *2; Jasso v. Money Mart Exp., Inc. (N.D.Cal. 2012) ___ F.Supp.2d ___ [2012 WL 1309171, *4–*7]; and LaVoice v. UBS Financial Services, Inc. (S.D.N.Y. 2012) 2012 WL 124590, *6. (I do not typically blog district court decisions -- just too many of them.) The Court also cited to Iskanian v. CLS Transportation Los Angeles, LLC (2012) 206 Cal.App.4th 949 (discussed here), which rejected the D.R. Horton analysis.

The Court then held that D.R. Horton could not apply because the NLRA does not apply to "any individual employed as a supervisor." The Court concluded that Nelsen's title as a "property manager" likely excluded her from coverage by the NLRA.

Finally, the Court considered whether the trial court could order her injunctive relief claims to arbitration under the Broughton-Cruz doctrine. The Court held: "(1) Nelsen waived her Broughton-Cruz argument by failing to raise it in the trial court; and (2) Broughton-Cruz has, in any event, been abrogated in the wake of Concepcion." Slip op. at 20-21. Citing Kilgore v. KeyBank, Nat. Assn. (9th Cir. 2012) 673 F.3d 947 (discussed here), the Court held: "Since Broughton-Cruz prohibits outright the arbitration of claims for public injunctive relief, it is in conflict with the FAA." Slip op. at 22.

The Court distinguished the recent decision in Hoover v. American Income Life Insurance Co. (2012) 206 Cal.App.4th 1193:

[Hoover], cited by Nelsen following oral argument, does not convince us otherwise. Hoover does not mention Kilgore or analyze Concepcion's potential relevance to the continued application of Broughton-Cruz. Moreover, the court in Hoover found the arbitration agreement in issue was not subject to the FAA and did not encompass state statutory claims. That is not our case.

Slip op. at 22.

The decision is available here.

Reuters News Quotes Steve Pearl on Class Action Attorney Fees

A reporter called me yesterday to ask about attorney fee awards in class actions in the Ninth Circuit. The reporter asked about McKenzie v. Federal Express Corp. (C.D.Cal, Judge Gary Allen Feess, Case No. CV 10-02420), an action for violation of Labor Code section 226. The parties settled the case for a non-reversionary $8.25 million, and counsel asked for one third, or $2.75 million in attorney fees. The district court considered the request and awarded the Ninth Circuit benchmark of twenty five percent. This resulted in an attorney fee award equal to 3.2 times counsel's lodestar (reasonable hours spent, multiplied by reasonable hourly rates).

I explained that this was not an unusual award. I cited Vizcaino v. Microsoft Corp., 290 F.3d 1043, which establishes the 25% benchmark in the Ninth Circuit.  The Court in Vizcaino approved a 28% common fund award, which resulted in a 3.65 lodestar multiplier, in part because the litigation had lasted more than 11 years.  

Despite this, the headline was still more sensational than I would have expected: "Lawyers' fees cut in FedEx wage-and-hour case: Is this a trend?"  No, I don't see it as a trend.  It's just the Ninth Circuit, where you have to work pretty hard to justify any departure from the 25% benchmark.  

In any case, the article is here, and the McKenzie Order Granting Final Approval is here.  

Dennis v. Kellogg Co.: Ninth Circuit Issues Decision on Cy Pres Beneficiaries, Class Counsel's Attorney Fees

In Dennis v. Kellogg Company, --- F.3d --- (9th Cir. 7/13/12), the plaintiffs sued Kellogg's for false advertising related to its "Frosted Mini Wheats" cereal. The parties eventually settled the case, and the settlement included the following terms:

Kellogg agreed to establish a $2.75 million fund for distribution to class members on a claims made basis. Class members submitting claims would receive $5 per box of cereal purchased, up to a maximum of $15. 

Any funds remaining would not revert to Kellogg but would instead be donated to “charities chosen by the parties and approved by the Court pursuant to the cy pres doctrine.” 

Kellogg agreed to distribute, also pursuant to the cy pres doctrine, $5.5 million “worth” of specific Kellogg food items to charities that feed the indigent. The settlement does not specify the recipient charities, nor does it indicate how this $5.5 million in food will be valued — at cost, wholesale, retail, or by some other measure. 

Kellogg agreed that for three years, it would “refrain from using in its advertising and on its labeling for the Product any assertion to the effect that ‘eating a bowl of Kellogg’s® Frosted Mini-Wheats cereal for breakfast is clinically shown to improve attentiveness by nearly 20%.’ ” Kellogg would still be allowed to claim that “[c]linical studies have shown that kids who eat a filling breakfast like Frosted Mini-Wheats have an 11% better attentiveness in school than kids who skip breakfast.”  

Kellogg agreed to pay class counsel’s attorneys’ fees and costs “not to exceed a total of $2 million.” Class counsel eventually requested the full $2 million in fees and costs.  

The plaintiffs agreed to release all claims arising out of the challenged advertising.

The trial court (S.D.Cal., Judge Irma E. Gonzalez) approved the settlement over objections as to the cy pres distributions and the attorney fees.  The objectors appealed, and the Ninth Circuit reversed. 

First, the trial court erred in approving the cy pres beneficiary.  Although the record did not identify the particular cy pres beneficiary, it did state that the beneficiary would use the cy pres award to feed the indigent. This goal, though noble, had “little or nothing to do with the purposes of the underlying lawsuit or the class of plaintiffs involved.”  The action alleged false advertising, and an appropriate beneficiary would be one that is "dedicated to protecting consumers from, or redressing injuries caused by, false advertising."  

Second, the trial court erred in approving Kellogg's agreement to distribute $5.5 million “worth” of food without knowing the answers to a number of questions, including how the $5.5 million was to be valued. 

Finally, the trial court erred in awarding $2 million in fees to class counsel: 

Considering that (1) the parties moved for settlement approval only three months after class counsel filed the amended complaint, (2) the settlement results in vaporous benefit to the class members and is flawed at its core, and (3) class counsel’s financing of the litigation and investment of time were rather limited, we hold that the district court’s reasonableness finding is implausible. 

The settlement yields little for the plaintiff class. As discussed above, there is no reasonable certainty that the cy pres distributions as currently structured will benefit the class. The injunctive relief, prohibiting Kellogg from using the 20% attentiveness advertisements, lasts only three years. And class members, assuming they were aware of the litigation and submitted claims, will each receive the paltry sum of $5, $10, or $15.  

In comparison, the $2 million award is extremely generous to counsel — even if we were to accept their assertion that the value of the common fund is $10.64 million. At the time the plaintiffs moved for settlement approval, class counsel had spent 944.5 hours working on the case. If the case had been litigated on an hourly basis at the attorneys’ ordinary and uncontested rates, the total fees would have come to $459,203. The requested award, however, is about 4.3 times this lodestar amount. Although under the parties’ valuation the award is below the 25% benchmark, a lodestar multiplier of 4.3 is quite high, particularly in a case that was not heavily litigated. Because the attorneys’ investment was so minimal — as was the relief they claim to have obtained for the class — the lodestar cross-check leads us to the inescapable conclusion that the $2 million award is not reasonable. Cf. Fischel v. Equitable Life Assurance Soc’y of U.S., 307 F.3d 997, 1008 (9th Cir. 2002) (lodestar multiplier of 1.5 was not unreasonably low given that the case settled early); Vizcaino, 290 F.3d at 1050-51 (lodestar cross-check of a 3.65 multiplier was not unreasonably high given that litigation extended over eleven years). Rather, it “yield[s] windfall profits for class counsel in light of the hours spent on the case.” 

I wonder if we would have seen a different result on the attorney fee issue if the parties had done a better job of nailing down the terms of the settlement.  The opinion is available here. 

Brown v. County of L.A.: Court of Appeal Reverses Judgment for Unlicensed Psychologist in Wrongful Termination Action

Just a quick note on this case.  In Brown v. County of Los Angeles (3/1/12) 203 Cal.App.4th 1529, a former county employee brought a retaliation and wrongful termination action against the county after it discharged her from her employment as a clinical psychologist. The trial court (Los Angeles Superior, Judge Soussan Bruguera) entered judgment after jury trial for Brown, and the County appealed. 

The County argued that the trial court erred by excluding evidence that Brown's employment as a psychologist required her to obtain a license from the State Board of Psychology, that Brown understood she had to obtain such a license but failed to do so, and that she was discharged for failure to do so. Brown argued that she was exempt under Business and Professions Code section 2910.  

The Court of Appeal reversed, holding: 

The trial court erred "by concluding that Brown was licensed pursuant to state law at the time of her discharge."  203 Cal.App.4th at 1545.  

The trial court erred "by concluding that Brown came within the licensing exemption set forth in Business and Professions Code section 2910 at the time she was discharged from her employment."  203 Cal.App.4th at 1546. 

The trial court's exclusion of the County's evidence that Brown was not licensed or exempt at the time of her termination "precluded the County from establishing a legitimate nonretaliatory reason for terminating Brown's employment."  203 Cal.App.4th at 1550.  

The Court remanded for a new trial.  

Kilgore v. KeyBank: Ninth Circuit Holds That FAA Preempts California Cases Holding That Actions for Public Injunctive Relief Are Not Subject to Arbitration

In Kilgore v. KeyBank, N.A., 673 F.3d 947 (3/7/12), the Ninth Circuit Court of Appeals weighed in on the question of the day: the impact of the Supreme Court's decision in AT&T Mobility v. Concepcion. The Court described its holding as follows:

These consolidated appeals involve the sometimes delicate and precarious dance between state law and federal law. [Plaintiffs] brought this putative class action against [KeyBank], alleging violations of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof.Code § 17200, in connection with private student loans that KeyBank extended to Plaintiffs. Each of Plaintiffs' loan contracts contained an arbitration clause, which the district court declined to enforce. [We] consider whether, in light of the Supreme Court's recent decision in AT&T Mobility LLC v. Concepcion, ___ U.S. ___, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011), the Federal Arbitration Act ("FAA" or "Act") preempts California's state law rule prohibiting the arbitration of claims for broad, public injunctive relief—a rule established in Broughton v. Cigna Healthplans of California, 21 Cal.4th 1066 (1999), and Cruz v. PacifiCare Health Systems, Inc., 30 Cal.4th 303 (2003). We consider also whether the arbitration clause is unconscionable. We have jurisdiction pursuant to 9 U.S.C. § 16(a)(1)(C).  

We conclude that (1) the FAA preempts the Broughton-Cruz rule and (2) the arbitration clause in the parties' contracts must be enforced because it is not unconscionable.... [We] reverse the district court's denial of KeyBank's motion to compel arbitration, vacate the judgment, and remand to the district court with instructions to enter an order staying the case and compelling arbitration. 

673 F.3d at 951.

In Broughton, the California Supreme Court held that plaintiffs could not be compelled to arbitrate claims under the Consumers Legal Remedies Act ("CLRA") when the plaintiff is functioning as a private attorney general, enjoining future deceptive practices on behalf of the general public. 673 F.3d at 958. In Cruz, the California Supreme Court extended this holding to cases for public injunctive relief under the Unfair Competition Law ("UCL"). Ibid. After reviewing a number of post-Concepcion district court decisions on this issue, the Ninth Circuit held:

We hold that the Broughton-Cruz rule does not survive Concepcion because the rule "prohibits outright the arbitration of a particular type of claim" — claims for broad public injunctive relief. Concepcion, 131 S.Ct. at 1747. Therefore, our statement in Davis — that Broughton and Cruz prohibit the arbitration of public injunctive relief claims in California—is no longer good law.   

We are not blind to the concerns engendered by our holding today. It may be that enforcing arbitration agreements even when the plaintiff is requesting public injunctive relief will reduce the effectiveness of state laws like the UCL. It may be that FAA preemption in this case will run contrary to a state's decision that arbitration is not as conducive to broad injunctive relief claims as the judicial forum. And it may be that state legislatures will find their purposes frustrated. These concerns, however, cannot justify departing from the appropriate preemption analysis as set forth by the Supreme Court in Concepcion.

673 F.3d at 960-961.

The Court also cited the recent decision in Marmet Health Care Center, Inc. v. Brown, 565 U.S. ___, 132 S.Ct. 1201, 182 L.Ed.2d 42 (2012) (per curiam) (discussed here), in which the Supreme Court held that under the FAA, an arbitration agreement between a nursing home and a patient's family member was enforceable in a suit against the nursing home for personal injury or wrongful death—despite the West Virginia Supreme Court of Appeals' conclusion that arbitration of such claims was against that state's public policy.

The Court then considered the plaintiff's argument that the arbitration agreement at issue was unconsconable -- an analysis that the Court held was still viable after Concepcion. The Court then held that the clause at issue was not procedurally unconscionable.

Here, the arbitration clause in the Note, like that at issue in [Circuit City Stores, Inc. v. Ahmed, 283 F.3d 1198, 1199-1200 (9th Cir.2002)], withstands scrutiny. The arbitration agreement is not buried within the document; it is conspicuous and appears in its own section of the Note. The Note contains more than one statement setting forth in plain language the rights that Plaintiffs would waive if they did not opt-out of the arbitration clause: the right to litigate in court, the right to a jury trial, and the right to proceed on a class basis. The arbitration clause even points out that the costs of arbitration could be higher than those of a trial.

673 F.3d at 964. Having held that the clause at issue was not procedurally unconscionable, the Court did not address whether it was substantively unconscionable.

The opinion is available here.  

Amgen Inc. v. Connecticut Retirement Plans and Trust Funds: US Supreme Court Grants Certiorari to Decide Fraud on the Market Action

In Connecticut Retirement Plans and Trust Funds v. Amgen Inc., 660 F.3d 1170 (9th Cir., 11/8/11) (discussed here), the Ninth Circuit Court of Appeals held that the plaintiff in a securities fraud class action need not prove - at the time of certification - that alleged misrepresentations were material in order to invoke the fraud-on-the-market presumption, which provides that buyers of a security have relied on the truthfulness of all public information related to that security.  

On June 11, 2012, the Supreme Court of the United States granted certiorari sub nom. Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds (Case No. 11-1085) to determine the following issues: 

(1) Whether, in a misrepresentation case under Securities and Exchange Commission Rule 10b-5, the district court must require proof of materiality before certifying a plaintiff class based on the fraud-on-the-market theory; and 

(2) Whether, in such a case, the district court must allow the defendant to present evidence rebutting the applicability of the fraud-on-the-market theory before certifying a plaintiff class based on that theory. 

Justice Breyer recused himself. The Court's docket is here.  

Kloeckner v. Solis: US Supreme Court to Decide Jurisdiction of Merit Systems Protection Board Appeals

On January 12, 2012, the Supreme Court of the United States granted certiorari in Kloeckner v. Solis (Case No. 11-184) to decide the following issue:

The Merit Systems Protection Board (MSPB) is authorized to hear appeals by federal employees regarding certain adverse actions, such as dismissals. If in such an appeal the employee asserts that the challenged action was the result of unlawful discrimination, that claim is referred to as a "mixed case." 

The Question Presented is: 

If the MSPB decides a mixed case without determining the merits of the discrimination claim, is the court with jurisdiction over that claim the Court of Appeals for the Federal Circuit or a district court?

The Court's docket is here.  

Vance v. Ball State University: US Supreme Court to Determine Scope of Title VII Supervisor Liability

On June 25, 2012, the Supreme Court of the United States granted certiorari in Vance v. Ball State University (Case No. 11-556) to decide the following issue:

In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), this Court held that under Title VII, an employer is vicariously liable for severe or pervasive workplace harassment by a supervisor of the victim. If the harasser was the victim’s co-employee, however, the employer is not liable absent proof of negligence. In the decision below, the Seventh Circuit held that actionable harassment by a person whom the employer deemed a “supervisor” and who had the authority to direct and oversee the victim’s daily work could not give rise to vicarious liability because the harasser did not also have the power to take formal employment actions against her. 

The question presented is: Whether, as the Second, Fourth, and Ninth Circuits have held, the Faragher and Ellerth “supervisor” liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or, as the First, Seventh, and Eighth Circuits have held (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

The Court will hear the case in the term that begins in October, 2012, and we can expect a ruling by the end of June, 2013. The Court's docket is here.

Genesis HealthCare Corp. v. Symczyk: US Supreme Court Will Decide Whether a Full Value Offer of Compromise to a Class Representative Renders FLSA Collective Action Moot

In Symczyk v. Genesis HealthCare Corp., 656 F.3d 189 (2011), the Third Circuit Court of Appeals held that a collective action brought under § 216(b) of the federal Fair Labor Standards Act (FLSA) does not become moot when the defendant makes a Rule 68 offer of compromise to a putative representative before the representative moves for "conditional certification" and before any other plaintiff opts into the action.

The Supreme Court of the United States granted the employer's petition for certiorari on June 25, 2012, under the name Genesis HealthCare Corp. v. Symczyk (Case No. 11-1059). The Court states the question presented as follows:

Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims.

Based on the composition of this Court and the phrasing of the question, I would assume that the answer will be in the affirmative. If that is the case, it will be very difficult if not impossible to prosecute FLSA collective actions in the future.

The Court will hear the case in the term that begins in October, 2012, and we can expect a ruling by the end of June, 2013. The Court's docket sheet is here. 

County of L.A.: Supreme Court to Address Non-Union Employees' Privacy Rights

In County of Los Angeles v. Los Angeles County Employee Relations Commission, the California Supreme Court granted review to decide the following issues: 

(1) Under the state Constitution (Cal. Const., art. I, § 1), do the interests of non-union-member public employees in the privacy of their personal contact information outweigh the interests of the union representing their bargaining unit in obtaining that information in furtherance of its duties as a matter of labor law to provide fair and equal representation of union-member and non-union-member employees within the bargaining unit? 

(2) Did the Court of Appeal err in remanding to the trial court with directions to apply a specific notice procedure to protect such employees' privacy rights instead of permitting the parties to determine the proper procedure for doing so? 

The case is fully briefed awaiting oral argument.  The Court's web page for it is here. 

Ralphs Grocery v. UFCWU Local 8: California Supreme Court to Address First and Fourteenth Amendment Issues in Picketing Case

I am updating my Watch List with a number of new cases, and this is the first.

In Ralphs Grocery v. United Food and Commercial Workers Union Local 8 (Case No. S185544) the California Supreme Court will address the following issues:

(1) Did the Court of Appeal err in concluding that the parking area and walkway in front of the entrance to plaintiff's retail store, which is part of a larger shopping center, do not constitute a public forum under Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 and its progeny?

(2) Do the Moscone Act (Code Civ. Proc. section 527.3) and Labor Code section 1138.1, which limit the availability of injunctive relief in labor disputes, violate the First and Fourteenth Amendments of the United States Constitution because they afford preferential treatment to speech concerning labor disputes over speech about other issues? 

The case is fully briefed and awaiting oral argument. The Court's web page for it is here. 

State of Nevada v. Bank of America: Ninth Circuit Holds that State Enforcement Action is Not Removable as Class Action under CAFA

I don't have much to say about this case, but  I did want to note it because I have not been seeing a lot of CAFA cases lately. It seems like it's been 24/7 arbitration and class action waivers.  

Anyway, the case is State of Nevada v. Bank of America (9th Cir. 3/2/12) 672 F.3d 661, and here is the Court's summary:

The State of Nevada, through its Attorney General, Catherine Cortez Masto, filed this parens patriae lawsuit against Bank of America Corporation and several related entities (collectively, “Bank of America”) in Clark County District Court. Nevada alleges that Bank of America misled Nevada consumers about the terms and operation of its home mortgage modification and foreclosure processes, in violation of the Nevada Deceptive Trade Practices Act, Nev. Rev. Stat. §§ 598.0903-0999. Nevada also alleges that Bank of America violated an existing consent judgment (“Consent Judgment”) in a prior case between Nevada and several of Bank of America’s subsidiaries, entered in Clark County District Court.

Bank of America removed this action to federal district court, asserting federal subject matter jurisdiction as either a “class action” or “mass action” under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d), and as arising under federal law, 28 U.S.C. § 1331. Denying Nevada’s motion to remand, the federal district court concluded that it has jurisdiction over this action as a CAFA “class action,” but not as a “mass action,” and that it also has federal question jurisdiction because resolving the state claims will require an interpretation of federal law.

We granted Nevada’s request for leave to appeal the district court’s denial of its motion to remand pursuant to 28 U.S.C. § 1453(c)(1). We conclude that because parens patriae actions are not removable under CAFA, and the action does not otherwise satisfy CAFA’s “mass action” requirements, the district court lacks jurisdiction under CAFA. We also exercise our interlocutory appellate jurisdiction under 28 U.S.C. § 1453(c) to review the district court’s determination that it has federal question jurisdiction because the complaint references the federal Home Affordable Mortgage Program and the Fair Debt Collection Practices Act. We conclude that the district court lacks federal question jurisdiction. Because there is no basis for federal subject matter jurisdiction, this case must be remanded to Nevada state court.

672 F.3d at 664-665.  The case is available here. 

Deleon v. Verizon Wireless: Court of Appeal Holds that Employer Can Recover Advances on Commissions when Conditions of Sale Are Not Met

Deleon v. Verizon Wireless, LLC (7/10/12) --- Cal.App.4th --- is the latest in a line of decisions dealing with what are called chargebacks: when employers can or can't recover from employees amounts that have been paid either as commissions or as advances on commissions. Generally speaking, courts have held that an employer can recover an advance paid on a commission if the conditions precedent for earning the commission have not occurred, but cannot recover commissions already paid for completed sales.

The Court's introduction to the opinion is pretty clear and concise (my two main criteria for good legal writing):

Plaintiff Saul Deleon, on behalf of himself and other aggrieved employees, appeals from the judgment following the trial court's order granting summary judgment in favor of defendant AirTouch Cellular doing business as Verizon Wireless (Verizon Wireless). Deleon was a former retail sales representative for Verizon Wireless and filed a complaint seeking civil penalties under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698) for a violation of section 223, which prohibits the secret underpayment of wages. Deleon's compensation plan included commission payments, which Verizon Wireless could recover, or charge back against future commissions, if certain conditions were not met. We must determine whether the chargeback provision violates section 223 by “secretly pay[ing] a lower wage while purporting to pay the wage designated by statute or by contract.” Based upon the undisputed facts, we conclude the commission payments were advances, not wages, and the chargeback provision did not violate the Labor Code because Verizon Wireless may legally advance commission payments to its retail sales representatives before completion of all conditions for payment, and charge back any excess advance over commissions earned against future advances should the conditions not be satisfied. Thus, we affirm.

Slip op. at 2.

The compensation plan at issue provided that commissions would be paid in advance, but not earned until the expiration of a chargeback period during which the customer could cancel the service. If the customer canceled the service during this period, the employer would recoup the advance from the employee.

The Court held that the employee's right to commissions was subject to certain conditions precedent set forth in the compensation plans. Slip op. at 9. Not surprisingly, the Court held that payments made before these conditions were satisfied were not earned commissions, but merely advances, and were subject to chargeback. Ibid. See Steinhebel v. Los Angeles Times Communications, LLC (2005) 126 Cal.App.4th 696.

The Court distinguished Harris v. Investor’s Business Daily, Inc. (2006) 138 Cal.App.4th 28
on grounds that the compensation plan at issue there did not clearly state that payments were advances, but appeared to be payment of fully earned commissions. Slip op. at 9-10.

Because Verizon paid only advances on commissions, its chargebacks of those advances did not violate Labor Code section 223. Slip op. at 12. Although Deleon did not sign a commission agreement, he accepted Verizon's commission plan by performing work for Verizon under the terms of the plan. Ibid. "Section 223 does not state that the compensation or wage contract must be a written contract signed by the parties." Slip op. at 13.

The Court rejected Deleon's argument that triable issues of fact barred summary judgment because he and others did not understand that the payments were merely advances.

Mutual consent necessary to the formation of a contract “is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings.

***

Deleon received copies of the compensation plans, received training on how the chargeback provision operated, and received commission statements setting forth his commission advances and chargebacks. These undisputed facts objectively establish that Deleon understood that he would be compensated under the terms of the compensation plans.

Slip op. at 15.

Finally, the Court rejected the argument that the chargeback policy was unconscionable.

Verizon Wireless offered to consumers a cell phone service plan, and paid its retail sales representatives commission on sales. The company's choice of the relevant chargeback period does not “shock the conscience.” The net compensation a retail sales representative earns bears a direct relation to the product (cell phone service contract) he or she sold.

Slip op. at 16.

The opinion is available here.

Mayers v. Volt Management: California Supreme Court Grants Review in Arbitration Case

No rest for the weary. I just blogged this case, and now the Supreme Court has granted review. In Mayers v. Volt Management (discussed here), the Supreme Court has granted review and deferred briefing pending its decision in  Sanchez  v. Valencia Holding Co. LLC, S199119, which includes the following issue:

Does the Federal Arbitration Act (9 U.S.C. ? 2), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U. S. __, 131 S.Ct. 1740, preempt state law rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable? 

The Court's web page for Mayers is here.  The page for Sanchez is here.  

Marmet Health Care Center v. Brown: FAA Preempts Rule Prohibiting Arbitration of Nursing Home Claims

Another case that I should have noted a while back.

In Marmet Health Care Center, Inc. v. Brown, 565 U.S. --- (2/21/12), the Supreme Court of the United States held that the Supreme Court of Appeals of West Virginia -- that state's highest court -- erred in holding that all predispute arbitration agreements that apply to claims alleging personal injury or wrongful death against nursing homes are unenforceable. The West Virginia court had held that "as a matter of public policy under West Virginia law, an arbitration clause in a nursing home admission agreement adopted prior to an occurrence of negligence that results in a personal injury or wrongful death, shall not be enforced to compel arbitration of a dispute concerning the negligence."

The Supreme Court vacated and remanded for reconsideration in light of the decision in AT&T Mobility LLC v. Concepcion, 563 U.S. --- (2011) (discussed here).

On remand, the West Virginia court must consider whether, absent that general public policy [against predispute arbitration agreements in actions alleging personal injury or wrongful death against nursing homes], the arbitration clauses in Brown's case and Taylor's case are unenforceable under state common law principles that are not specific to arbitration and pre-empted by the FAA.

The opinion is available here.

Mayers v. Volt Management: Court Finds Arbitration Agreement Unconscionable

Another skirmish in the Arbitration Wars: Mayers v. Volt Management Corp. (2/2/12) --- Cal.App. 4th ---.

The plaintiff sued his former employer, Volt, for violation of the Fair Employment and Housing Act (FEHA).  The trial court denied Volt's compel to arbitration, and the Court of Appeal affirmed, finding that the arbitration agreement at issue was unconscionable: 

The arbitration provisions contained in the employment application, employment agreement, and employee handbook each required that plaintiff submit employment-related claims to arbitration pursuant to the "applicable rules of the American Arbitration Association in the state" where plaintiff was employed or was last employed by defendant. Plaintiff was not provided with a copy of the controlling American Arbitration Association (AAA) rules or advised as to how he could find or review them. The provisions also failed to identify which set of rules promulgated by the AAA would apply. They further stated that the "arbitrator shall be entitled to award reasonable attorney's fees and costs to the prevailing party." For the reasons discussed post, such a prevailing party attorney fees term exposed plaintiff to a greater risk of being liable to defendant for attorney fees than he would have been had he pursued his FEHA claims in court.

First, and most interesting, the Court held that the Federal Arbitration Act and AT&T Mobility LLC v. Concepcion (2011) 563 U.S. ---, do not prevent it from analyzing the arbitration agreement for unconscionability.  The Court on passages from Concepcion holding that a state law may not prohibit arbitration "of a particular type of claim" or "rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable." 

In the instant case, plaintiff opposed the motion to compel arbitration by arguing that the specific arbitration provisions before the court contained elements of procedural and substantive unconscionability, which render those elements unconscionable. Plaintiff did not argue the arbitration provisions were unenforceable under California law because they required the arbitration of a particular type of claim. (See AT&T Mobility, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1747].) Nor has plaintiff based his unconscionability argument "'on the uniqueness of an agreement to arbitrate.'" (Ibid.)

Having held that unconscionability analysis survives Concepcion, the Court went on to hold: (1) the arbitration provisions had "a high degree of procedural unconscionability" because they were contained in a contract of adhesion, and the employer did not provide a copy of the applicable arbitration rules or even identify which rules would apply; (2) the arbitration provisions had "a high degree of substantive unconscionability" because they allowed the arbitrator to award fees to the prevailing party, thus placing the plaintiff at risk of incurring liability that he could not incur in court; and (3) the trial court did not err in denying the motion to compel arbitration or in declining to sever the unconscionable provisions from the agreement.  

The opinion is available here.  

Augustus v. American Commercial Security Services: Superior Court to Enter Judgment for $90 Million in Rest Period Class Action

I don't typically blog trial court decisions, but this one caught my eye, and a lot of other people's as well. In Augustus v. American Commercial Security Services, Inc. (Los Angeles Superior Court, Case No. BC336416), the plaintiffs worked as security guards for a company that provides security services. They alleged that their employer failed to authorize and permit them to take the required rest periods and failed to provide the required meal periods.

The plaintiffs worked in a variety of positions, from small, one officer night shifts to large commercial sites with multiple officers. 96% of the class members executed on-duty meal period agreements. Some class members were union members whose collective bargaining agreement (CBA) included provisions related to meal and rest periods.

In December, 2010, the trial court (Los Angeles Superior, Judge Carolyn B. Kuhl) granted the plaintiffs' motion for summary adjudication on the employer's liability for rest period violations. The Court described the employer's rest period policy as follows:

Defendant's policies make all rest breaks subject to interruption in case of an emergency or in case a guard is needed... Because a guard must be available for these situations, guards must keep their cell phones or pagers on. Defendant's position is that interruptions are so rare that the guards are effectively getting their breaks; that plaintiffs have presented no evidence that a guard who was interrupted could not restart their break; and that, because a guard is free to engage in non-work related activities during the rest period ... that the breaks are in compliance with the wage order and should not be considered on-duty time.

Slip op. at 4. The court disagreed, focusing on the definition of "hours worked" in the IWC wage orders:

“Hours worked” means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.

The court held: "The evidence demonstrates, and the Defendant does not deny, that the guards are always subject to the control of the Defendant during their 'breaks' because they remain on call." Slip op. at 5. The court then held that such time subject to the employer's control was compensable work time. Ibid., citing Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, Aguilar v. Assoc. for Retarded Children (1991) 234 Cal.App.3d 21. Because employees must be free of employer control during their rest periods (slip op. at 7), the court held that the employer had not authorized and permitted the required rest periods and granted summary judgment for the class. 

The court then turned to the meal period claims. The vast majority of class members executed agreements to take on-duty meal periods. The plaintiff class argued that these agreements were void under the wage order because "the nature of the work of a security guard does not ever prevent a security guard from being given a meal break." Slip op. at 9. The employer argued the opposite, and that all agreements were valid.

The court held: "The question of whether the nature of the work prevented the employee from being relieved of all duty is a question of fact dependent on a variety of factors." Slip op. at 10. Because the court found that these factors would vary among the class members, individual issues would predominate. "These are issues that must be decided based on the facts relevant to staffing at a particular location, the remoteness of the location and possibly the nature of the security assignment at the location." Slip op. at 10-11. The court thus denied the cross-motions for summary adjudication, but granted the employer's motion for decertification.

On July 6, 2012, the trial court (Judge John Shepard Wiley Jr.) issued its decision confirming the earlier order granting summary judgment and again denying decertification on the rest period claims. The court held:

In general, [the employer] balks at the notion that the employer must relieve workers of all duties for the rest break to be is [sic] legally valid. Put simply, if you are on call, you are not on a break. That has been the law for many years.

Slip op. at 1. The court rejected the employer's argument an award would violate its Due Process rights. California labor law, it held, "gave advance notice of the penalties for depriving workers of rest breaks." Slip op. at 2.

Class counsel has submitted a proposed judgment for $89.7 million in unpaid rest period compensation, interest, and waiting time penalties. A successful employee cannot recover attorney fees under Labor Code section 226.7, Kirby v. Immoos Fire Protection, Inc. (4/30/12) --- Cal.4th --- (discussed here), but I assume that counsel will move for attorney fees pursuant to Code of Civil Procedure section 1021.5.

The employer has vowed to appeal the decision. Assuming that it does so, I certainly will blog the appellate decision when it comes down.  

Connecticut Retirement Plans v. Amgen: Ninth Circuit Clarifies Role of Fraud-on-the-Market Presumption on Certification

Here's another older case that I never got around to discussing.

In Connecticut Retirement Plans and Trust Funds v. Amgen Inc., 660 F.3d 1170 (9th Cir., 11/8/11), the Ninth Circuit Court of Appeals discussed the fraud-on-the-market presumption of reliance in securities fraud class actions.  The presumption provides that the market price of a security traded in an efficient market reflects all public information. Therefore that a buyer of the security is presumed to have relied on the truthfulness of that information in purchasing the security. The Court held that the plaintiff must do the following in order to invoke the fraud-on-the-market presumption of reliance when moving for class certification:

1. Show that the security in question was traded in an efficient market;
2. Show that the alleged misrepresentations were public; and 
3. "Plausibly allege" that the alleged misrepresentations were material. 

660 F.3d at 1172. The plaintiff need not prove at the time of certification that the representations were material. That is a merits issue for summary judgment or trial. A defendant's rebuttal of the presumption -- in other words, the defendant's proof that the alleged misinformation was not material -- also is a merits issue that should be considered at trial or on summary judgment, rather than on certification.  Ibid.  

In Connecticut Retirement, the parties stipulated that the defendant's stock traded in an efficient market, the plaintiff plausibly alleged that the defendant made material, public misrepresentations.  The fraud-on-the-market presumption applied, and the trial court did not err in certifying the class.  Ibid.  

The Court explained as follows:

If the misrepresentations turn out to be material, then the fraud-on-the-market presumption makes the reliance issue common to the class, and class treatment is appropriate. But if the misrepresentations turn out to be immaterial, then every plaintiff's claim fails on the merits (materiality being a standalone merits element), and there would be no need for a trial on each plaintiff's individual reliance. Either way, the plaintiffs' claims stand or fall together—the critical question in the Rule 23 inquiry. As the Supreme Court said in [Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011)], "[w]hat matters to class certification ... is not the raising of common `questions'—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers." 131 S.Ct. at 2551 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L.Rev. 97, 132 (2009)). 

660 F.3d at 1175.  

The Ninth Circuit joined the Third and Seventh Circuits in holding that the plaintiff need not prove materiality to invoke the presumption at certification.  In contrast, the First, Second, and Fifth Circuits require such proof.  It will be interesting to see whether the Supreme Court takes the opportunity to resolve this conflict.  If the Court were to take the issue up, the odds are that it will reverse the Ninth Circuit.  (According to SCOTUSblog, the Supreme Court reversed in 63% of the cases it took up in the 2011 term, and reversed in 71% of those from the Ninth Circuit.)  

The opinion is available here. 

Steven G. Pearl to Speak on Wage and Hour Law After Brinker

I will be speaking at the Pasadena Bar Association's Labor and Employment Law lunch on Tuesday, July 10. The topic is Wage and Hour Law after Brinker.  We all know what the Supreme Court held in Brinker; we'll be discussing how we see the law developing from here.  

I will be speaking with Tom Kaufman of Sheppard Mullin, Randy Renick of Hadsell Stormer Keeny Richardson & Renick, and Jack Schaedel of Hernandez, Schaedel & Associates. The details are here.  Hope to see you there.  

Sotelo v. MediaNews: Court Affirms Denial of Class Certification

In Sotelo v. MediaNews Group, Inc. (7/2/12) --- Cal.App.4th ---, the plaintiffs were newspaper carriers and the "distributors" who supervised or employed them. They alleged that the defendant newspaper publishers misclassified them as independent contractors when they were in fact employees. The trial court (Alameda County Superior, Judge Steven A. Brick) denied certification, and the Court of Appeal affirmed.

I. Ascertainability of the Proposed Class

First, the Court held that the proposed class was not ascertainable because many putative class members had no agreements with the defendants and could not otherwise be identified through the defendants' records. As stated by the trial court: "The determination of whether a person who signed no carrier contract with a defendant nonetheless bagged and delivered papers for a defendant during the class period will devolve into a disputed mini-hearing, requiring sworn statements and/or deposition testimony from that class member, the evaluation of circumstantial evidence, and credibility determinations."

The Court rejected the plaintiffs' argument that "any difficulties with identifying putative class members are due to respondents' failure to keep accurate records and that respondents cannot defeat certification by their own wrongdoing in not maintaining proper records." Aguiar v. Cintas Corp. No. 2 (2006) 144 Cal.App.4th 121, 136.  

In Aguiar the dispute concerned certain employees of Cintas who had worked on the company's contracts with the Los Angeles Department of Water and Power (DPW) [sic].  Cintas was under a contractual obligation to track the employees who worked on DPW [sic] contracts, but failed to do so. Thus, when the court concluded that Cintas could not defeat class certification, on ascertainability grounds, because of its own failure to keep records that it was obligated to keep, that obligation was uncontested and independent of the outcome of the employees' suit. Here, any obligation on respondents' part to track all members of the proposed class depends on the merits of the suit being brought. Appellants cannot bootstrap their action merely by assuming as true what they are obligated to prove. 

Slip op. at 8. The Court also held that the plaintiffs had not proposed a feasible plan for giving the putative class members notice of the action. Ibid.

The Court next held that the trial court did not err in failing to limit the class to those individuals for whom records existed showing their work for defendants. Although it would have been appropriate to so limit the class if the other certification requirements had been met, they were not, as discussed below. Slip op. at 8-9.

II. Predominance 

The Court then held that the plaintiffs had not met their burden of showing that common legal and factual issues predominate. 

A. Overtime, Meal Break, and Rest Break Causes of Action

The trial court held:

Plaintiffs must prove that putative class members in fact worked sufficient days and/or hours to be entitled to overtime and sufficient hours in a day to be entitled to meal and/or rest breaks. These inquiries involve the examination of different facts from the classification question; the motion, however, fails to discuss whether there is common evidence on this issue." [The evidence indicated] "a wide variation among carriers in the number of hours they worked each day . . . and that their ability to take breaks turned on factors that varied substantially across the proposed class . . . . [¶] Similarly, on the overtime question, it appears that routes and helper arrangements varied such that not all routes would take more than 8 hours per day to fold and throw. Several class members hired helpers so they could end their workday early . . . . Plaintiffs have not provided evidence . . . showing that substantial numbers of class members were not free to subcontract in this fashion . . . . Defendants, on the other hand, have shown that many carriers felt free to employ help in their routes—and did so. . . . [¶] The record likewise shows that carriers were generally permitted to, and did, obtain substitutes so that they did not have to work 7 days in a week.  

Slip op. at 11.  The Court of Appeal rejected the plaintiffs' argument, relying primarily on Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286 (discussed here), that these issues go primarily to damages.  The Court distinguished Jaimez:

The difference between Jaimez and this case is that in Jaimez, the plaintiff actually presented the court with a theory of recovery that specified the uniform policies and practices of the defendant that acted to establish liability for overtime. The complaint in Jaimez "asserted that [defendant] consistently administered a uniform corporate policy that violated California law with respect to overtime and meal and rest break requirements." As to the overtime claims, the Jaimez court found that the "predominant common factual issues include: (1) whether [defendant] had a uniform practice of misclassifying RSR's as exempt; and (2) whether [defendant] had a uniform policy of requiring RSR's to work overtime, but failing to pay them for their overtime hours." Appellants' allegation that respondents have misclassified putative class members as ICs rather than employees is only part of the equation. In contrast to Jaimez, appellants have not alleged that respondents have a uniform policy that requires putative class members to work overtime.

Slip op. at 13. The Court similarly distinguished Jaimez as to the plaintiffs' meal and rest period claims. "Jaimez is not helpful to appellants because appellants have not alleged that respondents have uniform practices or policies, beyond the issue of employee misclassification, that would establish liability for overtime or rest/meal break violations." Slip op. at 14.

B. Fraud and Concealment Causes of Action

The trial court found that the plaintiffs' motion "wholly fails to address plaintiffs' first two causes of action, for fraud and concealment." The plaintiffs' effort to remedy this defect on appeal was not sufficient. Slip op. at 15.

C. Employee Status

The Court next considered the "pivotal" issue in several causes of action: whether the putative class members were independent contractors or employees. The Court examined this issue under the multi-factor test set forth in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341.

The trial court first concluded that the evidence demonstrated little variance as to the issue of respondents' control over the details of putative class members' work. However, the court stated that "there are so few 'details' in a carrier's work that a newspaper needs (or wants) to control that this factor is not likely to weigh heavily in the merits analysis." Slip op. at 16-17. 

The Court rejected the plaintiffs' argument that the trial court failed to give sufficient weight to the control factor. "The court," it held "was not dismissing the importance of the factor, but commenting on the degree to which the factor was likely to be an issue of actual controversy at trial." Slip op. at 17.

Appellants argue that "common questions predominate in the overarching inquiry of whether carriers were misclassified as independent contractors; class treatment is therefore the most efficient way to proceed. The lower court abused its discretion by focusing on the divergent experiences of a select minority of class members and ignoring the overwhelming similarities among the majority." If the court had actually focused on the divergent experiences of a select minority, we might conclude that substantial evidence did not support the determination of the trial court that a number of factors would require individual testimony. However, appellants point to no evidence in the record that proves the characteristics of the majority. Survey evidence from a well-selected sample of the 5,000 identified class members might have supported appellants' contention, but none is present in the record. Thus, we cannot say that the court's determinations as to the various factors were not supported by substantial evidence.

Slip op. at 20.

The Court next considered whether application of Martinez v. Combs (2010) 49 Cal.4th 35 (discussed here), which was issued during the pendency of the appeal, would change the result. The Court first held that Martinez is not limited to joint employment situations. Slip op. at 22. The Court next held that the trial court erred in failing to apply the wage order's multi-pronged, alternative employer definition, at least as to the overtime cause of action. Ibid. However, the error was harmless because the trial court had already correctly held that common issues did not predominate as to that cause of action. Ibid.

III. Failure to Use Subclasses or Other Creative Devices

In its order denying certification, the trial court expressed surprise that the plaintiffs had not proposed subclasses "given the existence of about 30 potential employers in this case and the differences in their policies and procedures among themselves and over time...  Indeed, on reply, plaintiffs made a few general suggestions regarding subclassing, but did not explain if or how the types of subclasses they mention could cure or reduce commonality problems."  

The trial court did not err in declining to certify subclasses or use other, unspecified creative devices to allow for certification.  "Here, the court considered appellants' proposals, fulfilling its obligation, and found them deficient because they failed to discuss how they would cure the issues the court had identified. There was no abuse of discretion."  Slip op. at 23.   

The opinion is available here.