The UCL Practitioner

Dukes v. Wal-Mart merits briefs available online

The following merits briefs in Wal-Mart Stores, Inc. v. Dukes, no. 10-277, are now available online:

• Brief of Petitioner Wal-Mart Stores, Inc. (filed 01/20/11)
• Brief of Respondents Betty Dukes et al. (filed 02/22/11)

In addition, sixteen amicus briefs have been filed to date.  Links to all of the briefs are available at the ABA's website.  The case remains scheduled for argument on Tuesday, March 29, 2011 at 10:00 a.m. 

Two new class certification decisions: Tien v. Tenet Healthcare Corp. and Safaie v. Jacuzzi Whirlpool Bath, Inc.

The Court of Appeal has handed down two class certification opinions in the past eight days.

In Tien v. Tenet Healthcare Corp., ___ Cal.App.4th ___ (Feb. 16, 2011), the Court of Apppeal (Second Appellate District, Division Eight) affirmed the trial court's order denying class certification of meal period, rest break, and waiting time penalty claims. Because the opinion addresses the core meal period compliance question in Brinker, the case is likely to be taken up as a "grant and hold." 

In Safaie v. Jacuzzi Whirlpool Bath, Inc., ___ Cal.App.4th ___ (Jan. 25, 2011; pub. ord. Feb. 22, 2011), the Court of Appeal (Fourth Appellate District, Division One) affirmed the trial court's order denying a motion to "recertify" the class on the ground that an earlier order granting decertification had been affirmed on appeal.  The Court of Appeal applied "the settled state law rule that a final order decertifying a class is binding and cannot be later challenged in the trial court by a motion for renewal or reconsideration."  Slip op. at 18.

 

Vanderbilt Law Review "roundtable" on Dukes v. Wal-Mart

Vanderbilt Law Review has published an online "roundtable" of articles relating to the Dukes v. Wal-Mart case:

Elizabeth Chamblee Burch, "Introduction: Dukes v. Wal-Mart Stores, Inc.," 63 Vand. L. Rev. En Banc 77 (2010)

Robert G. Bone, "Sorting Through the Certification Muddle," 63 Vand. L. Rev. En Banc 105 (2010)

Alexandra D. Lahav, "The Curse of Bigness and the Optimal Size of Class Actions," 63 Vand. L. Rev. En Banc 117 (2010)

Gregory Mitchell, "Good Causes and Bad Science," 63 Vand. L. Rev. En Banc 133 (2010)

Richard A. Nagareda, "Common Answers for Class Certification," 63 Vand. L. Rev. En Banc 149 (2010)

The roundtable contemplates responses to the first set of articles, so check the Vanderbilt Law Review website later for more. 

[Via]

U.S. Supreme Court sets oral argument in Wal-Mart Stores, Inc. v. Dukes

The U.S. Supreme Court wastes no time.  Seventeen days after taking up the case, the Court scheduled oral argument in Wal-Mart Stores, Inc. v. Dukes, no. 10-277.  The argument is set for Tuesday, March 29, 2010 at 10:00 a.m.  No merits briefs have been filed yet.

[Via The Complex Litigator]

BREAKING NEWS: U.S. Supreme Court grants cert. but limits the issues in Dukes v. Wal-Mart

Today, the U.S. Supreme Court granted the cert. petition in Wal-Mart Stores, Inc. v. Dukes, no. 10-277, but limited the issues.  The Order reads:

10-277   WAL-MART STORES, INC. V. DUKES, BETTY, ET AL.

The petition for a writ of certiorari is granted limited to Question I presented by the petition. In addition to Question I, the parties are directed to brief and argue the following question: "Whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a)."

These are the two questions presented as stated in Wal-Mart's cert. petition: 

I. Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)—which by its terms is limited to injunctive or corresponding declaratory relief—and, if so, under what circumstances.

II. Whether the certification order conforms to the requirements of Title VII, the Due Process Clause, the Seventh Amendment, the Rules Enabling Act, and Federal Rule of Civil Procedure 23.

In other words, the Supreme Court will be taking a narrow look at Dukes and keeping its focus on class certification under Rule 23(b)(2), rather than on the broad constitutional and other challenges Wal-Mart brought against the class certification process more generally. 

One more time: U.S. Supreme Court expected to announce vote in Dukes v. Wal-Mart today

Once again, the U.S. Supreme Court is expected to announce whether it will be granting cert. in Wal-Mart Stores, Inc. v. Dukes, no. 10-277.  According to the docket, the case was considered in conference last Friday, December 3, which means that the outcome of the conference should be released today.

When it is posted at approximately 10:00 a.m. Eastern, the Supreme Court's order list for December 6 should be available at this link. 

U.S. Supreme Court up or down vote to be announced: Dukes v. Wal-Mart

The Dukes v. Wal-Mart case was on the U.S. Supreme Court's conference schedule last Tuesday, November 23, 2010, which means that the results of the conference can be expected to be announced today at 10:00 a.m. Eastern.  Wal-Mart Stores, Inc. v. Dukes, no. 10-277. 

When it is posted, the Supreme Court's order list for November 29 should be available at this link. 

UPDATE: The Dukes case was not on the order list this morning. We will probably have to wait at least another week. Orders are next scheduled to be announced next Monday, December 6.

UPDATE #2:  The Dukes docket now indicates (which it did not earlier this morning) that the case has been re-distributed for conference on Friday, December 3.  Again, that means that the vote should be announced the following Monday, December 6.  SCOTUSblog also noted the Court's unexpected failure to announce its vote today following its conference on November 23. 

A tenth post-Tobacco II opinion: Sevidal v. Target Corp.

The Court of Appeal (Fourth Appellate District, Division One) has handed down a tenth post-Tobacco II opinion, Sevidal v. Target Corp., ___ Cal.App.4th ___ (Oct. 29, 2010).  The opinion affirms an order denying class certification of UCL claims for lack of ascertainability and because (inventing a new element of certification) the class was "overbroad."  It thus falls on the defense side of the ledger.

The Complex Litigator has a detailed post on the opinion.  The plaintiffs in Sevidal seem to have had some Kaldenbach-type problems that are not going to be present in every UCL action.

It also bears pointing out that class certification jurisprudence does not recognize an "overbroad class definition" as an independent basis to deny certification (even though the Sevidal court discusses this in a separate section of the opinion).  Whether a class definition is "overbroad" might be relevant to the ascertainability or predominance analyses, but it is not a separate element of certification.

As authority for denying class certification because the class definition was "overbroad," the Sevidal court cited Pfizer, Inc. v. Superior Court, 182 Cal.App.4th 622 (2010), and no other authority.  Pfizer did deny certification solely on the basis that the class was "overbroad," but its only authority for doing so was Kwaak v. Pfizer, Inc., 881 N.E.2d 812, 818 (Mass. App. 2008) (cited in Pfizer, 182 Cal.App.4th at 633 n.6).  A careful review of that case shows that the certification order was reversed because common questions did not predominate—not because the class definition was "overbroad":

In this case, there is insufficient information in the record to identify any such similarity of exposure, deception, and causation. The class certified is everyone who purchased Listerine products during the advertising campaign, regardless whether a purchaser was exposed to the campaign. ... [N]ot every product was mislabeled. Some Listerine products, for example, contained no label or tag connected to the advertising campaign. Moreover, the advertising campaign also changed substantially over time, moving, for example, from advertisements that may have improperly conveyed a floss-replacement message (the most obviously objectionable aspect of the campaign) to advertisements that expressly did not. Therefore, many of those exposed to the advertising campaign may not have been exposed to unfair or deceptive acts as defined by [the relevant statute]. In  analyzing these false advertising claims, the court will be forced to draw fine lines between actionable deception and permissible puffery. Also unclear is whether those exposed to the deceptive aspects of the advertising campaign purchased Listerine for reasons unrelated to the advertising, such as to freshen their breath or as an adjunct to flossing. [Citation.] Whether a causal connection exists between a deceptive act and a loss is not just difficult to identify but appears to vary widely depending on the customer.

Id. at 818 (footnotes omitted).  The word "overbroad" appears in that opinion only once, in a footnote.  Id. at 819 n.8.

As I've explained before, the problem with denying class certification in post-Prop. 64 UCL actions because of lack of reliance by unnamed class members is that, as the Supreme Court confirmed in Tobacco II, the unnamed class members need not establish reliance (or, for that matter, deception or injury).  Neither they nor the named class representatives need to prove those elements at trial.  It makes no sense to deny class certification because of lack of predominance on elements that will never have to be established at trial, either on a classwide basis or, indeed, at all. 

Let us not allow Prop. 64 creep to redefine the elements of certification in California.

A tale of two opinions

On August 26, 2010, the Second Appellate District, Division Seven, handed down an unpublished opinion, Brookler v. Radioshack Corp., 2010 WL 3341816 (Aug. 26, 2010) (no. B212893), in which it held as follows: 

[U]nless and until our Supreme Court holds otherwise, we agree with and adopt the analysis in Cicairos, supra, 133 Cal.App.4th 949, holding an employer's obligation under the Labor Code and IWC wage orders is to do more than simply permit meal periods in theory; it must also provide them as a practical matter. If the employer does not ensure compliance with meal period requirements, such behavior violates the Labor Code and corresponding wage orders. (See id. at p. 963.) “The IWC intended that, like overtime pay provisions, payment for missed meal and rest periods be enacted as a premium wage to compensate employees, while also acting as an incentive for employers to comply with labor standards.” (Murphy, supra, 30 Cal.4th at p. 1110.)

Id. at *3 (emphasis added).  This issue is, of course, now pending before the California Supreme Court in Brinker Restaurant Corp. v. Superior Court (Hohnbaum), no. S166350 (in which I am co-counsel for the workers). 

Multiple publication requests were filed in Brookler (including one by yours truly).  Division Seven denied them all.  Brookler itself is now pending before the Supreme Court (Brookler v. Radioshack Corp., no. S186357), but the Brookler opinion remains unpublished and uncitable in the many cases involving this issue that have not been stayed pending resolution of Brinker. 

On September 30, 2010, the Second Appellate District, Division Eight, handed down an unpublished opinion, Hernandez v. Chipotle Mexican Grill, Inc., 2010 WL 3789012 (Sept. 30, 2010). This decision holds:  "We conclude that employers must provide employees with breaks, but need not ensure employees take breaks."  Id. at *1.  On this basis, Division Eight affirmed the trial court's order denying class certification (which also had been predicated on the turn of that legal question).  Id. at *3.

Publication requests were filed in this case as well.  Yesterday, Division Eight granted them—unlike their colleagues down the hall in Brookler.  Both cases involved the same important legal issue, reached opposing conclusions, yet Division Eight found publication warranted, and Division Seven did not.  Why? 

The Supreme Court will likely issue "grant and hold" orders in both cases, as it previously did in Brinkley and Faulkinbury.  Therefore, Hernandez is not likely to remain published and citable for long. But these strange procedural events only add fuel to the fire burning in the lower state and federal courts.

Supreme Court grants review in class certification case: Faulkinbury v. Boyd & Associates

Yesterday, the Supreme Court granted review in Faulkinbury v. Boyd & Associates, no. S184995.  Briefing is deferred pending resolution of Brinker.  

According to the docket, five depublication requests were filed.  Both the review petition and at least two of the depublication requests pointed out the decision's implicit assumption that meal periods need only be "offered" to workers.  That assumption led the Court of Appeal to affirm the trial court's order denying class certification of the meal period claim. 

Here is my short original post on the Court of Appeal opinion, Faulkinbury v. Boyd & Associates, Inc., 185 Cal.App.4th 1363 (2010), handed down in June.  Under Rule of Court 8.1105(e)(1), the opinion is no longer citable precedent. 

New Jersey Supreme Court class certification decision: Lee v. Carter-Reed Co.

On September 30, 2010, the New Jersey Supreme Court handed down a noteworthy decision in which it reversed denial of class certification in a consumer fraud case involving a dietary supplement.  Lee v. Carter-Reed Co., ___ A.3d ___ (Sept. 30, 2010).

Consumer Law & Policy Blog has more on the decision.

New Ninth Circuit class certification decision: Bateman v. American Multi-Cinema, Inc.

Yesterday, in Bateman v. American Multi-Cinema, Inc., ___ F.3d ___ (9th Cir. Sept. 27, 2010), the Ninth Circuit reversed an order denying class certification of a claim brought under the Fair and Accurate Credit Transactions Act ("FACTA"), 15 U.S.C. §§ 1681 et seq.  The opinion focuses on the "superiority" element of class certification and holds, among other things, that Rule 23 does not permit the trial court to consider whether the defendant's potential liability under FACTA would be disproportionate to the class members' actual damages. 

The Court declined to follow a number of earlier cases involving the Truth-in-Lending Act (15 U.S.C. §§1601 et seq.), in which courts considered such a factor in in denying class certification.  Instead, the Court held that "the Rule 23(b)(3) superiority analysis must be consistent with the congressional intent in enacting a particular statutory damages provision." Slip op. at 16372.  The decision to reverse the order denying class certification hinged on some significant differences between the legislative history and purpose of the two Acts. 

Federal developments of interest: Philip Morris USA Inc. v. Scott; Sullivan v. DB Investments, Inc.; Wal-Mart Stores, Inc. v. Dukes

On Friday, September 24, 2010, U.S. Supreme Court Justice Antonin Scalia entered an order staying enforcement of a $240 million judgment entered in Louisiana state court in a class action against the tobacco industry.  The order states that the Supreme Court is likely to grant the anticipated petition for a writ of certiorari to review the defendants' federal due process arguments, which appear to attack many aspects of class procedure.  Philip Morris USA Inc. et al. v. Scott, no. 10A273.  See this post at SCOTUSblog for a more detailed discussion of the order.  SCOTUSblog also has links to the stay application (a large file), the opposition, and the reply.

A month ago today, the Third Circuit granted en banc rehearing in Sullivan v. DB Investments, Inc., 613 F.3d 134 (3d Cir. 2010), the class action settlement case discussed in this blog post.  See Sullivan v. DB Investments, Inc., ___ F.3d ___, 2010 WL 3374167 (3rd Cir. Aug 27, 2010) (granting rehearing and vacating the panel opinion).  Sullivan is an antitrust class action for price-fixing in the diamond industry. 

In Wal-Mart Stores, Inc. v. Dukes, no. 10-277, the response to the cert. petition will be due on October 25, 2010, according to the docket.  Both sides have submitted consents to the filing of amicus briefs, and three amicus briefs supporting Wal-Mart have been filed so far. 

Recently-published class certification decision: Gutierrez v. California Commerce Club, Inc.

In Gutierrez v. California Commerce Club, Inc., ___ Cal.App.4th ___ (Aug. 2, 2010; pub. ord. Aug. 28, 2010), the Court of Appeal (Second Appellate District, Division One), reversed an order dismissing class allegations at the pleading stage.  Gutierrez is a wage and hour case for missed meal periods and rest breaks. 

Dukes v. Wal-Mart cert. petition filed

The cert. petition in Dukes v. Wal-Mart was filed yesterday, and has been made available online by SCOTUSblog.  The response will be due on September 24, according to the  Supreme Court's docket. Wal-Mart Stores, Inc. v. Dukes, no. 10-277.

The Ninth Circuit's 6-5 en banc opinion is available here. 

Three new federal decisions on class action issues: Wolin v. Jaguar Land Rover, Avritt v. Reliastar Life Ins. Co., and Cappuccitti v. DirecTV, Inc.

The Eighth, Ninth and Eleventh Circuits have handed down three decisions of interest in recent weeks: 

• In Wolin v. Jaguar Land Rover North America LLC, ___ F.3d ___ (9th Cir. Aug. 17, 2010), the Ninth Circuit reversed an order denying class certification of vehicle defect claims brought under Michigan and Florida consumer protection laws.
  
  
• In Avritt v. Reliastar Life Ins. Co., ___ F.3d ___ (8th Cir. Aug. 12, 2010), the Eighth Circuit affirmed an order denying class certification of UCL and other consumer protection claims. 
  
  
• In Cappuccitti v. DirecTV, Inc., ___ F.3d ___ (11th Cir. Jul. 19, 2010), the Eleventh Circuit dismissed a putative class action for lack of jurisdiction under CAFA. This opinion (which I think badly misinterprets CAFA and probably won't be followed in other Circuits) has generated a lot of buzz.  Judge Alsup has already declined to follow it in one CAFA case, Gutierrez v. Wells Fargo Bank, N.A., ___ F.Supp.2d ___, 2010 WL 3155934 (N.D. Cal. Aug. 10, 2010) (slip op. at 82). The CAFA Law Blog reported last Friday that a petition for panel or en banc rehearing was filed on August 9, 2010.  

By the way, the extended deadline for the cert. petition in Dukes v. Wal-Mart is this coming Thursday, August 26.  I will post about that and link to the petition as soon as it becomes available online.

[HT to South Florida Lawyers for the link to the Cappuccitti opinion and to The Complex Litigator for the link to Gutierrez.]

Class certification order in Chavez v. Blue Sky Natural Beverage Co. published in F.R.D.

Judge Walker's recent nationwide class certification ruling is now available on Westlaw and has been assigned a Federal Rules Decisions citation:  Chavez v. Blue Sky Natural Beverage Co., ___ F.R.D. ___, 2010 WL 2528525 (N.D. Cal. 2010).  My earlier blog post on this decision is here.

MCLE teleseminar on Dukes v. Wal-Mart

On Thursdsay, July 22, 2010 at noon, the State Bar's Antitrust and Unfair Competition Law Section will present a one-hour teleseminar, "The Potential Impact of Dukes on Class Certification in Antitrust and UCL Cases in the Ninth Circuit."  While Dukes is an employment case, it makes law that can be expected to impact class certification in the federal courts generally.  This teleseminar will discuss implications for UCL and antitrust class actions in particular. 

I will be a speaker, along with Craig Corbitt of Zelle Hofmann, Ken O'Rourke of O'Melveny & Myers, and John Landry of Sheppard Mullin (moderator). 

The teleseminar offers 1 hour of MCLE credit and costs $45. 

Judge Walker grants nationwide class certification in Chavez v. Blue Sky Natural Beverage Co.

Many thanks to the blog reader who forwarded Chief Judge Vaughn R. Walker's recent class certification order in Chavez v. Blue Sky Natural Beverage Co., 2010 U.S. Dist. LEXIS 60554 (N.D. Cal. Jun. 18, 2010).  The order does not appear to be available on Westlaw yet.  UPDATE:  The order is now available on Westlaw and has also been assigned a Federal Rules Decisions cite: Chavez v. Blue Sky Natural Beverage Co., ___ F.R.D. ___, 2010 WL 2528525 (N.D. Cal. 2010).

My prior blog post on this case is at this link.

Notably, Judge Walker followed Tobacco II's holding that only the named class representatives, and not the unnamed class members, must satisfy the UCL's post-Prop. 64 standing requirement.  Chavez, 2010 U.S. Dist. LEXIS 60554 at *27-*28, *37 (citing In re Tobacco II Cases, 46 Cal.4th 298, 324 (2009)).  He found no Article III bar to applying Tobacco II in federal court.  See id. at *27-*28. 

He further followed Tobacco II in holding that the plaintiffs' UCL claim (based on misrepresentations of the geographic origin of goods) did not require individualized proof of reliance, actual deception or injury.  Id. at *29 (citing Tobacco II, 46 Cal.4th at 320).  In granting class certification, he followed In re Steroid Hormone Product Cases, 181 Cal.App.4th 145 (2010), rather than Cohen v. DirecTV, Inc., 178 Cal.App.4th 966 (2009).  Chavez, 2010 U.S. Dist. LEXIS 60554 at *29-*30. 

In other words, this decision is as significant as the original nine post-Tobacco II cases. 

Also of interest, the plaintiffs submitted the report of a marketing expert in support of class certification on the "materiality of [the defendant's] product labeling and marketing."  Chavez, 2010 U.S. Dist. LEXIS 60554 at *32.  Materiality was relevant to the CLRA and common-law fraud claims, which Judge Walker certified based on the doctrine of presumed reliance.  Id. at *30-*31.  Judge Walker considered the expert report in accordance with the standards set forth in the new Dukes v. Wal-Mart en banc opinion.  Id. at *32 (citing Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 603 & n. 22 (9th Cir. 2010)).

I am occasionally asked about the use of expert testimony in false advertising cases to establish whether a particular misrepresentation or omission was material (for CLRA purposes) or likely to deceive a reasonable consumer (for UCL purposes).  It makes a lot of sense as a theoretical matter (although it is not required, see Brockey v. Moore, 107 Cal.App.4th 86 (2003)).  Up to now, however, the only case I could think of actually involving such testimony was Lavie v. Procter & Gamble Co., 105 Cal.App.4th 496 (2003).  The unpublished portion of that decision discussed the expert testimony in depth (see this blog post). 

New class certification decision: Faulkinbury v. Boyd & Assoc., Inc.

In Faulkinbury v. Boyd & Associates, Inc., ___ Cal.App.4th ___ (Jun. 24, 2010), the Court of Appeal (Fourth Appellate District, Division Three) reversed in part and affirmed in part an order denying class certification of various wage and hour claims. 

UPDATE: On October 13, 2010, the Supreme Court granted review in this case.  Faulkinbury v. Boyd & Associates, no. S184995.  Briefing is deferred pending resolution of Brinker.  Under Rule of Court 8.1105(e)(1), the Court of Appeal opinion is no longer citable precedent. 

New class certification decision: Bomersheim v. Los Angeles Gay and Lesbian Center

In Bomersheim v. Los Angeles Gay and Lesbian Center, ___ Cal.App.4th ___ (May 26, 2010), the Court of Appeal (Second Appellate District, Division One) reversed an order denying class certification of a negligence claim against a medical clinic that gave a group of patients the wrong treatment. 

The opinion has an interesting discussion of classwide "causation":

An inference of causation arises when a material event impacts an individual whose subsequent actions constitute a reasonable response. In the class context, where individuals are uniformly subjected to a material stimulus and thereafter uniformly act in a manner consistent with a reasonable response, a classwide inference is raised that the stimulus caused the response.

Here, putative class members all came to the Center seeking treatment for syphilis, a potentially life-threatening disease. They were given the wrong medication. After being informed that the treatment may have been ineffective, they sought retreatment. A reasonable inference as to the entire class is that the initial mistreatment caused members to seek retreatment. Causation can therefore be presumed on common proof.

Slip op. at 12-13. The causation discussion cites Occidental Land, Vasquez, and Massachusetts Mutual.  

New Seventh Circuit class certification decision: Pella Corp. v. Saltzman

Here's a rare Seventh Circuit opinion affirming an order granting class certification in a consumer fraud case:

While consumer fraud class actions present challenges that a district court must carefully consider, there are circumstances where certification is appropriate. We conclude that this case is one of those circumstances.

Pella Corp. v. Saltzman, ___ F.3d ___ (7th Cir. May 20, 2010) (per curiam) (slip op. at 11).   Many thanks to the attorney who brought this case to my attention. 

Recent Court of Appeal opinions of interest

Several new decisions of interest were handed down during my blogging hiatus (and before Dukes v. Wal-Mart):

• Arenas v. El Torito Restaurants, Inc., ___ Cal.App.4th ___ (Mar. 15, 2010; pub. ord. Apr. 6, 2010) (Second Appellate District, Division Five) (affirming order denying class certification of certain wage and hour claims)
  
• McGuigan v. City of San Diego, ___ Cal.App.4th ___ (Apr. 6, 2010) (modified Apr. 27, 2010) (Fourth Appellate District, Division One) (construcing Code of Civil Procedure section 1021.5; denying further award of attorneys' fees incurred preserving a class action settlement against objectors' appeal because defendant was no longer an "opposing" party)
  
• Salenga v. Mitsubishi Motors Credit of America, Inc., ___ Cal.App.4th ___ (Apr. 9, 2010) (modified Apr. 26, 2010) (Fourth Appellate District, Division One) (addressing statute of limitations in UCL case)
  
• Wallace v. Geico General Ins. Co., ___ Cal.App.4th ___ (Apr. 19, 2010) (Fourth Appellate District, Division One) (holding that "pick-off" rule applies in UCL cases)
  
• Durell v. Sharp Healthcare, ___ Cal.App.4th ___ (Apr. 19, 2010) (Fourth Appellate District, Division One) (construing Tobacco II and the "unfair" prong at the pleading stage)
  
• Hale v. Sharp Healthcare, ___ Cal.App.4th ___ (Apr. 19, 2010) (Fourth Appellate District, Division One) (construing Tobacco II at the pleading stage)

Currently, I have more material to post on than days in the week, which is not a bad position for a blogger to be in.  I will try to write more on some or all of these cases in later posts. 

Thoughts on one aspect of Dukes v. Wal-Mart

The opinion in Dukes v. Wal-Mart really is oppressively long for someone with a busy practice!  I'm still only through Part II of the discussion, entitled "Standards for Class Certification Under Rule 23" (slip op. at 6151-83).  Still, that section is a very important part of the majority opinion, comprising 32 pages out of 97.  It contains a number of significant points.

The core issue this section addresses is the extent to which a district court may or may not consider and decide merits questions at the class certification stage.

My first observation is that the majority goes out of its way to emphasize that Ninth Circuit precedent on this point is essentially no different from the precedents of other circuits, and that we do not face a crisis-level split among the circuits:

• "As we describe in more detail below, every circuit to have considered this issue, including our own previous decisions, has reached essentially the same conclusion: Falcon’s central command requires district courts to ensure that Rule 23 requirements are actually met, not simply presumed from the pleadings."  Slip op. at 6154-55, citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982).
  
• "The Second Circuit’s decision in IPO agreed with Szabo, providing what is now the leading case on the extent to which a district court must resolve Rule 23 issues that overlap with the merits of the case. 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)."  Slip op. at 6157 (emphasis added).
  
• "Though, of course, different circuits have used different words in articulating the review necessary, we think New Motor Vehicles overstates the degree of difference among the circuits. The core holding across circuits that have considered the issue is essentially unanimous: district courts must satisfy themselves that the Rule 23 requirements have been met before certifying a class, which will sometimes, though not always, require an inquiry into and preliminary resolution of disputed factual issues, even if those same factual issues are also, independently, relevant to the ultimate merits of the case." Slip op. at 6157-58 (emphasis added).
  
• "A closer discussion of the cases the First Circuit has cited demonstrates the truly narrow range in which this 'spectrum' actually exists.  .... In our review of these cases, we find this 'spectrum' of certification standards narrower and more internally consistent than does the First Circuit. .... [W]e respectfully disagree with the First Circuit's conclusion that the Third Circuit allows a more lax standard of review than do the other circuits." Slip op. at 6158, 6159, 6150.
  
• "While this language is not as definitive as that used by the Second Circuit in IPO, for example, it sets up essentially the same standard." Slip op. at 6160-61.
  
• We thus view whether an appellate court requires district courts to 'resolve,' id.; 'find,' Unger, 401 F.3d at 319-20; or 'determine,' IPO, 471 F.3d at 40-41, that Rule 23 requirements have been met, as essentially, even if not precisely, the same standard." Slip op. at 6161.
  
• "Blackie is entirely consistent with the Supreme Court’s guidance .... In short, the explanation we provide today is not a new standard at all. ... Our explanation confirms what our decisions have held for more than twenty-five years...." Slip op. at 6168-69.
  
• "This review of Supreme Court dictates, as well as our own and other circuits’ treatment of the issue, leads us to recognize a number of constant holdings across circuits ...." Slip op. at 6170.
  
• "In short, these observations, which include the Supreme Court’s direction, long-standing precedent in this court, and treatment from other circuits, lead us to the following explanation of the proper standards governing a district court’s adjudication of a Rule 23 motion for class certification." Slip op. at 6176.

I will have more in a later post on the substantive issue that the majority says has been so consistently resolved across the circuits.  But doesn't it seem that the lady doth protest too much?  The majority's protestations (and I haven't even quoted all of them) seem intended to convince a skeptical U.S. Supreme Court that there is no split among the circuits warranting review.  Which is not to say that the argument is not ultimately convincing. 

BREAKING NEWS: Ninth Circuit hands down Dukes v. Wal-Mart opinion this morning

The Ninth Circuit has just handed down its long-awaited opinion in Dukes v. Wal-Mart.  Dukes v. Wal-Mart Stores, Inc., ___ F.3d ___ (Apr. 26, 2010).   I have not yet read the opinion, but the first paragraph indicates that the class certification order was affirmed.  I hope to have a further report on the opinion later today. 

UPDATE:  The 11-judge en banc panel split 6-5 in favor of certification. I've only had time to read up to about page 25 so far, but it already has much interesting discussion of Supreme Court and Ninth Circuit precedents.  Among other things, the opinion says that Ninth Circuit law is largely in accord with In re Initial Public Offerings Securities Litig., 471 F.3d 24 (2d Cir. 2006)!  (See this blog post for more on that decision.) 

The case has engendered a lot of press coverage already.  In a Bloomberg News report, Wal-Mart's counsel is quoted as saying that the company will seek Supreme Court review.  That is not surprising.  Elsewhere, the New York Times reports that "Wal-Mart Gender Case Divides Court."  The Los Angeles Times story is entitled "Court: Wal-Mart to face massive class action suit."

UPDATE #2:  Professor Elizabeth Chamblee Burch of the Mass Tort Litigation Blog has the most detailed report on the opinion that I can find so far in the blogosphere.

One-year anniversary of en banc argument in Dukes v. Wal-Mart

One year ago today, an eleven-judge en banc Ninth Circuit panel heard oral argument on rehearing in Dukes v. Wal-Mart, Inc., nos. 04-16688 & 04-16720. 

In 2007, a three-judge panel (with one judge dissenting) affirmed the trial court's order granting class certification under Rule 23(b)(2) of plaintiffs' Title VII claims for gender discrimination. Dukes v. Wal-Mart, Inc., 509 F.3d 1168 (9th Cir. 2007).  The Ninth Circuit granted en banc rehearing in February 2009.  My report on the oral argument from March 2009 is here. 

The Ninth Circuit's "Status of Pending En Banc Cases" page lists the case as "not yet decided."  Lately we have been seeing opinions in cases argued on or about the same day as Dukes, so it would stand to reason that the opinion will be coming soon.  This blog post will go up at 5:00 a.m., so perhaps when new opinions are posted at 10:00, it will be there. 

Nine post-Tobacco II opinions

In preparation for our Rutter Group seminar last week, Will Stern and I compiled this list of the nine Court of Appeal opinions substantively construing Tobacco II:

Morgan v. AT & T Wireless Services, Inc., 177 Cal.App.4th 1235 (2009) (Second Appellate District, Division Four)  (no petition for review filed)

Kaldenbach v. Mutual of Omaha Life Ins. Co., 178 Cal.App.4th 830 (2009) (Fourth Appellate District, Division Three) (no petition for review filed)

Cohen v. DirecTV, Inc., 178 Cal.App.4th 966 (2009) (Second Appellate District, Division Eight) (rev. den. 02/10/10)

Princess Cruise Lines, Ltd. v. Superior Court, 179 Cal.App.4th 36 (Nov. 10, 2009) (Second Appellate District, Division Eight) (rev. den. 02/04/10)

In re Vioxx Class Cases, 180 Cal.App.4th 116 (Dec. 15, 2009) (Second Appellate District, Division Three) (petition for review filed 01/25/10, no. S179699) 

Weinstat v. Dentsply International, Inc., 180 Cal.App.4th 1213 (Jan. 7, 2010) (First Appellate District, Division Four) (petition for review filed 02/11/10, no. S180179)

In re Steroid Hormone Product Cases, 181 Cal.App.4th 145 (Jan. 1, 2010; mod. Feb. 8, 2010) (Second Appellate District, Division Four) (opinion; modification order) (petition for review filed 03/01/10, no. S180583)

McAdams v. Monier, Inc., 182 Cal.App.4th 174 (Feb. 24, 2010) (Third Appellate District)

Pfizer Inc. v. Superior Court (Galfano), 182 Cal.App.4th 622 (Feb. 25, 2010; pub. order Mar. 2, 2010) (Second Appellate District, Division Three)

Four of these (Morgan, Weinstat, Steroid Hormone Cases, and McAdams) generally favor the plaintiff's side, while the others generally favor the defendant.  The decisions are difficult to reconcile, although Will and I tried to during the Rutter seminar.  I'm starting to think that the Supreme Court will need to select a case to take up and elaborate on Tobacco II.

Pfizer v. Superior Court (Galfano) now published

Yesterday, the Court of Appeal published its opinion in Pfizer v. Superior Court (Galfano), ___ Cal.App.4th ___ (Feb. 25, 2010; pub. ord. Mar. 2, 2010), which originally was handed down as an unpublished opinion last week.  The opinion grants a writ of mandate reversing the trial court's order certifying a class, notwithstanding Tobacco II. 

The docket does not list any letters requesting publication.  It appears the panel simply reconsidered whether the opinion met the standards for publication and decided it did. 

BREAKING NEWS: Two new cases handed down today and yesterday

Yesterday, the Supreme Court handed down its opinion in the CAFA case, Hertz Corp. v. Friend, ___ U.S. ___ (Feb. 23, 2010).

Today, the Court of Appeal (Third Appellate District) handed down its opinion in McAdams v. Monier, Inc., ___ Cal.App.4th ___ (Feb. 24, 2010), once again reversing the order denying class certification of the CLRA and UCL claims.

I will have more on these opinions later.

Supreme Court takes up class certification appellate issue: Baycol Cases I and II

Last Thursday, February 18, 2010, the Supreme Court granted review in Baycol Cases I and II, no. S178320.  This is the summary of the issue on review:

Did the "death knell doctrine" require plaintiff to immediately appeal the sustaining of a demurer as to class claims when the ruling resolved both individual and class claims, or did the one final judgment rule apply and require a single appeal from the subsequent entry of final judgment on all claims?

In an unpublished opinion filed on October 20, 2009, the Court of Appeal (Second Appellate District, Division Seven) held that the notice of appeal was untimely:

An order denying class certification is appealable. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.) However, an order sustaining a demurrer without leave to amend “is ordinarily not appealable, since the order is not a final judgment.” (Alch v. Superior Court (2004) 122 Cal.App.4th 339, 359.)

An exception to the latter rule arises “in a class action if the legal effect of the order is ‘tantamount to a dismissal of the action as to all members of the class other than plaintiff,’ and if the order ‘has virtually demolished the action as a class action.’ [Citation.] California allows direct appeal of such a ‘death-knell’ order as a matter of state law policy.” (Alch v. Superior Court, supra, 122 Cal.App.4th at pp. 359-360.) “Since, in theory, the individual plaintiff’s action can go forward, the death knell doctrine fits comfortably into the exception to the ‘one final judgment’ rule that arises when parties have separate and distinct interests; when this is true, there can be a final and appealable judgment for each such party. [Citation.]” (Farwell v. Sunset Mesa Property Owners Assn., Inc. (2008) 163 Cal.App.4th 1545, 1547.)

An exception to the rule regarding the appealability of an order sustaining a demurrer without leave to amend has been applied where, as here, the trial court sustains a demurrer without leave to amend as to both the class action allegations and the individual causes of action. (See, e.g., Los Altos Golf & Country Club v. County of Santa Clara (2008) 165 Cal.App.4th 198, 202.) We are reluctant to carve out exceptions to the rule and thus introduce an element of uncertainty into what has otherwise been the established rule. Would the exception apply only where, as here, a single order sustains the demurrer without leave to amend as to both the class and individual claims? Would it apply where separate orders address the class and individual claims? A bright-line rule would eliminate any uncertainty. Accordingly, we adhere to the rule that “in a class action if the legal effect of the order is ‘tantamount to a dismissal of the action as to all members of the class other than plaintiff,’ and if the order ‘has virtually demolished the action as a class action,’” the order is immediately appealable. (Alch v. Superior Court, supra, 122 Cal.App.4th at pp. 359-360.)

Since the April 27, 2007 order sustaining Bayer’s demurrer to Shaw’s class claims was immediately appealable, Shaw’s December 20, 2007 notice of appeal was untimely as to these claims. We therefore affirm the judgment dismissing the class claims.

Slip op. at 8-9.  I haven't seen the briefs, but it appears that review was granted to address the split in authority with the Los Altos case. 

Baycol has been added to my list of pending Supreme Court cases of interest to attorneys practicing in this area.