Tuesday's Daily Journal had a "perspective" article, "When Courts Disagree," by H. Scott Leviant, author of The Complex Litigator. The full text is available there. An excerpt:
The conclusions of the Kaldenbach and Cohen Courts that Tobacco II, a decision in which the California Supreme Court reversed [a] decertification order, raise two important questions. First, is there any evidence that lower courts are disregarding the legal holdings and policy mandates of the California Supreme Court in significant numbers, particularly in the class action context? Second, if there is such an occurrence, why are lower courts disregarding the legal holdings and policy mandates of the California Supreme Court?
Today's Daily Journal has an article, "The Clash Over Class Actions" (subscription) about class certification issues raised in various cases pending in the Ninth Circuit and federal district courts within the Ninth Circuit.
While there are a few interesting cases pending in the Ninth Circuit, such as the Dukes case, I think the article is a bit overblown.
The October 2009 issue of California Lawyer has an interesting article on Sullivan v. Oracle Corp., 557 F.3d 979 (9th Cir. 2009), in which the California Supreme Court has accepted certified questions relating to the UCL. See Sullivan v. Oracle, no. S170577 . An excerpt from the article (by Pamela A. MacLean):
When both sides filed petitions for rehearing, however, the Ninth Circuit backpedaled. In February it withdrew its opinion in Sullivan II [Sullivan v. Oracle Corp., 547 F.3d 1177 (9th Cir. 2008)] and certified three questions to the California Supreme Court. First, does state overtime law apply to out-of-state residents who work for a California company inside the state? Second, if state law does apply, can plaintiffs make a section 17200 claim? And third, if a California employer sets policies that violate the FLSA for its out-of-state workers, does a section 17200 claim apply to the federal violation for those employees no matter where they work? (See Sullivan v. Oracle Corp., 557 F.3d 979 (9th Cir. 2009).)
Lawyers on both sides of the issue say the most significant question is whether section 17200 applies to employees hired by California companies but who work in other states. If the answer is yes, "There could even suddenly be a private right of action under the [federal] prevailing wage statute," says Michael J. Walsh, an employment law specialist with Walsh & Walsh in Irvine who represents employees. Currently, he adds, only the Department of Labor can sue to recover under the prevailing wage provisions of the Davis-Bacon Act, which sets minimum wages on federal projects.
Michael Walsh, of course, is the author of the top California wage and hour blog, Wage Law.
This post is slightly off-topic, but the opinion is remarkable and all litigators should read it. In Nazir v. United Airlines, Inc., ___ Cal.App.4th ___ (Oct. 9, 2009), the Court of Appeal (First Appellate District, Division Two) reversed an order granting "what may well be the most oppressive [summary judgment] motion ever presented to a superior court," involving "a record the likes of which we have never seen." Slip op. at 1, 3.
It isn't a good sign when an appeal court refers to a lower court's "ruling" in quote marks as if it's not worthy of the term.
But that's exactly what San Francisco's First District Court of Appeal did — three times — Friday in reversing a "ruling" by San Mateo County Superior Court Judge Marie Weiner in an overpapered case featuring 5,415 pages of briefs.
It's true the panel critized the judge's "ruling," but its criticism of the defendant's briefing — which noted major procedural and substantive defects — was much harsher.
This case illustrates an important principle from Tobacco. There, the Supreme Court held (among other things) that the "as a result of" standing language "imposes an actual reliance requirement" on the individual named class representative in a UCL "fraudulent" prong case. In re Tobacco II Cases, 46 Cal.4th 298, 326 (2009). The Court was careful to clarify, however, that this holding was limited to claims "involving false advertising and misrepresentations to consumers," and that "[t]here are doubtless many types of unfair business practices in which the concept of reliance, as discussed here, has no application." Id. at 326 n.17.
Hiestand is one of those cases. The Hiestand complaint alleges (among other things) a UCL "unlawful" prong claim predicated on violation of Vehicle Code section 22651, which reads, in part:
A peace officer ... of a city, county, or jurisdiction of a state agency in which a vehicle is located, may remove a vehicle located within the territorial limits in which the officer ... may act, under the following circumstances:
(n) Whenever a vehicle is parked or left standing where local authorities, by resolution or ordinance, have prohibited parking and have authorized the removal of vehicles. A vehicle shall not be removed unless signs are posted giving notice of the removal.
(Emphasis added.) Because the defendants allegedly removed Mr. Hiestand's vehicle even though no "signs [were] posted giving notice of the removal," in violation of section 22651, and because Mr. Hiestand incurred and paid towing and storage costs, the standing requirement has been satisfied. Mr. Hiestand lost money or property "as a result of" the defendants' alleged violation of that law. He therefore has standing to bring a UCL class action in which neither he nor the unnamed class members will have to prove (at trial) actual "deception, reliance [or] injury." Tobacco, 46 Cal.4th at 320 (citing Bank of the West v. Superior Court, 2 Cal.4th 1254, 1267 (1992); Committee on Children’s Television, Inc. v. General Foods Corp., 35 Cal.3d 197, 211 (1987)).
As this case illustrates, it will be important to consider the class representative's standing separate and apart from what must be proven at trial for purposes of liability for a UCL violation. Tobacco makes clear that, in "fraudulent" prong cases, the "likely to deceive" liability standard is unchanged. Id. Moreover, the standard for recovering restitution ("may have been acquired") is also unchanged and is "patently less stringent than the standing requirement." Id. The fact that the class representative must establish individual standing therefore should have no impact on the class certification analysis. In other words, the class certification analysis should be the same now as it was before Prop. 64.
It will be interesting to see how this plays out in the Hiestand case as well as in other cases. If you are litigating any of these issues at the trial court level, please keep me posted of developments. I haven't received copies of any relevant rulings in any state court cases yet.
Yesterday, the Supreme Court denied review and depublication in the Troyk case (docket). Justices Baxter, Chin and Corrigan voted to grant review. An article (subscription) by Mike McKee in yesterday's Recorder discussed this case in more detail.
In an article in this morning's Recorder, Mike McKee writes: "Big Tobacco and other major businesses took a hit Monday when the California Supreme Court ruled that class actions over alleged fraud can go forward, even if it's impossible to tell whether every plaintiff was harmed by deceptive ads."
Consumer class-action lawsuits are alive and well in California after a 4-3 decision Monday from the state Supreme Court that limited the reach of a 2005 voter initiative targeting frivolous lawsuits.
The ruling was a big win for plaintiff's attorneys, who feared the court would make it nearly impossible for them to use the state's unfair competition law to hold businesses responsible for false advertising claims.
The California Supreme Court decided 4-3 today that consumers can file class-action lawsuits against the tobacco industry and other businesses under a law voters limited in 2004, reversing a trend in the lower courts.
The decision, written by Justice Carlos R. Moreno, revived a class-action lawsuit against the tobacco industry that lower courts dismissed. ....
The ruling was the state high court’s most significant interpretation of Proposition 64, the 2004 initiative that limited suits under a major consumer law to people who claimed they had lost money or property as a result of a company’s wrongdoing.
By interpreting this so-called “standing” requirement flexibly, the court cleared the way for consumer class actions that many lower courts have been throwing out.
The Daily Journal has an article this morning on yesterday's argument in Miller v. Bank of America. The article begins:
While hearing a giant class action lawsuit against Bank of America Corp. over how it charges bank fees, several California Supreme Court justices suggested Tuesday that upholding a $1 billion dollar verdict against the bank could do more harm than good to the elderly and disabled customers bringing the suit.
Today's Recorderreports that yesterday, the EEOC filed an amicus brief supporting class certification in Dukes v. Wal-Mart. The case is still scheduled for argument before the Ninth Circuit en banc panel next Tuesday, March 24.
This article from Wednesday's Recorder provides an example of a federal case in which the court granted a defense motion to preemptively deny class certification.
In Picus v. Wal-Mart Stores, Inc., No. 2:07-CV-00682 (order filed 03/16/09), a district judge in Nevada construed the Nevada Deceptive Trade Practices Act ("NDTPA"), and in denying certification, distinguished Wiener v. Dannon Co., ___ F.R.D. ___, 2009 WL 383650 (C.D. Cal. Jan. 30, 2009) (discussed in this blog post), in which a district judge in California granted class certification of UCL and CLRA claims based on alleged misrepresentations about the defendants' products. The Nevada judge concluded that the Nevada Supreme Court would not adopt substantive elements of California law (specifically, presumed reliance based on materiality of the misrepresentation or nondisclosure) when construing the NDTPA. Slip op. at 11-12.
The opinion also asserts that California law "require[s] individual proof of reliance and causation." Id. at 13. That's not correct. Even if proof of reliance and/or causation is required under the UCL or CLRA, that proof is not necessarily, categorically, individualized, as the court seemed to conclude. The opinion itself cites California case law (namely, the Supreme Court's decision in Vasquez) holding that reliance can sometimes be presumed on a classwide basis, even in cases involving common-law fraud.
It's not clear why this decision warranted such extraordinary coverage in the Recorder.
This morning's Daily Journal has an interesting article on the oral arguments this week in Tobacco and Fairbanks. The article tells us why Chief Justice George will not hear Tobacco:
And while Chief Justice Ronald M. George is usually the swing vote in such close cases and a fair indicator of which way the decision will turn, he'll be sitting out Tuesday's oral argument and the decision because one of the defense firms in the case, Loeb & Loeb in Los Angeles, handles his estate planning.
His replacement, Justice Eileen C. Moore of the 4th District Court of Appeal, graduated from the conservative Pepperdine University School of Law and was honored a few years back by the Consumer Attorneys Association of Los Angeles.
The article also mentions the Supreme Court's opinion in Meyer and the recently-filed rehearing petition.
The issue also includes a new feature which I hope will repeat in each issue, "Class Action Appellate Report" by H. Scott Leviant, author of The Complex Litigator. The entire issue will soon be available online at CAOC's website to CAOC members only. Plaintiffs' attorneys, click here to join CAOC.
(3) Grant of Rehearing En Banc. When the court votes to rehear a matter en banc, the Chief Judge will enter an order so indicating. The vote tally is not communicated to the parties. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.
After the en banc court is chosen, the judges on the panel decide whether there will be oral argument or additional briefing. If there is to be oral argument, the Chief Judge (or the next senior active judge as the case may be) will enter an order designating the date, time and place of argument. If no oral argument is to be heard, the Chief Judge will designate a date, time, and place for a conference of the en banc court. That date will ordinarily be the submission date of the case. If any issues have been isolated for specific attention, the order may also set forth those issues and additional briefing may be ordered. The opinion of the three-judge panel shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.
In this case, en banc rehearing was granted under Circuit Rule 35-3, which provides for a "limited en banc" court consisting of the Chief Judge plus 10 other judges selected at random by the clerk. The random selection is to take place on "the working day after" en banc rehearing is granted (here, Tuesday, February 17). The Ninth Circuit has 27 active judges, so, apparently, this means that the limited en banc panel might not include any of the members of the original three-judge panel (Judges Pregerson, Kleinfeld (who dissented), and Hawkins). It might also include judges who voted to deny the petition for en banc rehearing (which explains why the vote tally is not disclosed).
It should take at least a few weeks for the newly-chosen 11-judge en banc panel to decide whether to order oral argument or further briefing. Circuit Rule 35-3 also authorizes, "[i]n appropriate cases," full-court rehearing after limited en banc rehearing. Wal-Mart is likely to seek full-court rehearing, and/or U.S. Supreme Court review, if the class certification order is again affirmed, so this case will probably be with us for a long time to come.
You may have read news reports (such as this one from Law.com) about the false advertising case recently filed in the Northern District of California against Coca-Cola Co. for its VitaminWater product. Here is a copy of the complaint. It contains straight UCL, FAL, and CLRA claims on behalf a putative class of California residents who bought VitaminWater since January 15, 2005.
The UCL's three prongs (unlawful, unfair and fraudulent) are each pleaded as a separate cause of action (good). The "unlawful" prong claim is predicated on alleged violations of certain Health & Safety Code provisions (as well as the CLRA).
The FAL claim is also divided into separate causes of action, one for violation of the "misleading prong" and one for violation of the "untrue prong." I have never heard that terminology before, but it seems to work. The FAL prohibits advertising that is "untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading." Bus. & Prof. Code § 17500 (emphasis added).
More than four years ago, California voters passed Proposition 64, limiting suits filed under the state's unfair competition law to individuals actually injured by someone else's illegal acts.
On Thursday, the California Supreme Court took a similar step by restricting suits filed under the state's Consumer Legal Remedies Act to plaintiffs who have suffered real damage because of an allegedly unlawful practice.
The Complex Litigator, however, points out in this post that the Supreme Court in Meyer took pains to emphasize the difference between "any damage," as used in the CLRA, and "actual damage," and to explain that "the breadth of the phrase 'any damage' indicates a category that includes, but is greater than, 'actual damages." Meyer, slip op. at 5 (emphasis added). In other words, the CLRA's standing requirement remains less strict than the UCL's. As Monique Olivier told The Recorder, "The ruling ... [is] no 'death knell' for the CLRA."
Agreed. Most plaintiffs who bring CLRA cases have suffered "any damage" as interpreted in Meyer and won't have an issue with standing. Still, as I told The Daily Journal, "it's a significant problem when companies insert unconscionable provisions into their contracts and apparently no one can sue to stop them from doing that." Laura Ernde, "Justices Restrict Fine-Print Lawsuits," The Daily Journal (Jan. 30, 2009). Consumers could very well be deterred from attempting to enforce rights that, because of an unconscionable contract term, they thought they had given up.
Today's Legal Intelligencerreports on a Third Circuit class certification decision handed down yesterday, In re Hydrogen Peroxide Antitrust Litigation, ___ F.3d ___ (3d Cir. Dec. 30, 2008). Suffice it to say that the standards for certification enunciated in this decision do not parallel California law or even Ninth Circuit standards.
I'm looking forward to resuming more regular blogging after the new year. I have a whole stack of material in my blog pile, and hope to have a post next week with more thoughts on the Troyk decision. Meanwhile, I hope everyone's holidays were merry, and Happy New Year!
The September/October 2008 issue of CAOC Forum had an article by attorney David Arbogast, "Common Issues that Arise in Class Action Settlements." CAOC members may access the article at this members-only link. (Incidentally, a special forthcoming issue of Forum will be devoted to articles on class action topics. If you are a plaintiff-side attorney, now might be a good time to join CAOC.)
Attorney Michael Rubin of Altshuler Berzon in San Francisco ... said the opinion eliminates any potential confusion about when attorneys can collect fees.
"This ruling is consistent with the California Supreme Court's pragmatic, centrist approach to judicial decision-making," Rubin said. "It ended up with a result that is fair to all parties in this and future cases."
The attorney general's office had also weighed in on the state's side. The office was in the unique position of wanting to see public-interest lawyers get compensated for their work but also having to defend the state against such litigation.
Although the court did not adopt the rule the state sought, Supervising Attorney General Ed Weil said the new guidelines are an improvement.
"As a practical matter, if you're an attorney out there deciding what to do, the only prudent course is an effort to resolve the matter before filing," he said. "If you don't, the ruling may come back to haunt you."