The UCL Practitioner

Vexatious class action objectors? In re Natural Gas Antitrust Cases

In In re Natural Gas Antitrust Cases I, II, III & IV, ___ Cal.App.4th ___ (Mar. 6, 2006), the Court of Appeal (Fourth Appellate District, Division One) addressed whether an attorney who regularly represents class action objectors (or who regularly objects on his own behalf when he is a class member) can be found a "vexatious litigant" within the meaning of Code of Civil Procedure sections 391-391.7. The court found that he could, but that an insufficient showing had been made in this particular case. In so holding, it rejected the argument that applying the "vexatious litigant" statutes to unnamed class members would quell the exercise of their due process right to object to proposed class action settlements:

While we agree that nonrepresentative class members should not be discouraged from, or penalized for, asserting valid objections to a proposed class action settlement, policy considerations do not support a blanket exemption that would protect a class member who, for whatever reason, is determined to derail a settlement and engages in abusive litigation tactics toward that end.

Slip op. at 11.

Mealey's California Section 17200 Report

The editor informs me that the March 2006 issue of Mealey's California Section 17200 Report is now out.

More on the UCL and securities class actions

Last week, I reported here on Merrill Lynch, Pierce, Fenner & Smith v. Dabit, 547 U.S. ___ (Mar. 21, 2006), in which the U.S. Supreme Court held that the Securities Litigation Uniform Standards Act of 1998 ("SLUSA") rather drastically limits state-law securities class actions. Since then, a reader suggested to me that while the new decision might impact fraud-based state law securities class actions, it doesn't seem to impact non-fraud claims. There may be an arguable window for negligent failure to act claims that do not allege or coincide with fraud. Of course, UCL claims don't need to allege either fraud or negligence; they're based on strict liability. Nonetheless, to the extent the securities-based UCL claim can be couched in terms of negligence rather than fraud, it might fit through the very narrow window Dabit may have left open. Dabit also has no impact on individual actions or actions with fewer than 50 plaintiff class members.

The reader also pointed out that a follow-on case, Kircher v. Putnam Funds, no. 05-409, is still pending before the Supreme Court and will be argued on April 24. That case involves the jurisdictional question of whether a SLUSA remand order is appealable. Under 28 U.S.C. section 1447(d), remand orders are usually not appealable, but in Kircher v. Putnam Funds Trust, 373 F.3d 847 (7th Cir. 2004), the Seventh Circuit held that SLUSA remand orders are. The Supreme Court could take the opportunity to provide additional clarification on SLUSA's substantive reach. (SCOTUSblog has more on the cert. grant in Kircher here, and the petitioner's brief is accessible here.)

UPDATE: On June 15, 2006, the Supreme Court issued its opinion in Kircher v. Putnam Funds Trust (no. 05-409). The Court did not expand on its substantive analysis in Dabit, but held that SLUSA remand orders are not appealable.

New unpublished UCL decision: Settle v. Knox Attorney Service

There are two interesting things about the Court of Appeal's unpublished opinion in Settle v. Knox Attorney Service, no. B180137 (Mar. 21, 2006) (Second Appellate District, Division Seven):

First, the Court of Appeal seems to agree with the idea that a UCL "unlawful" prong claim may be predicated on the infringement of a constitutional right (although it found no evidence of such an infringement in the case before it and affirmed summary judgment in the defendant's favor). (Slip op. at 7.)

Second, for some reason the plaintiff chose to concede that Prop. 64 applied retroactively to his case, which was filed before the initiative's effective date. (Slip op. at 8 n.4.) That's a huge concession. I'd think long and hard before I'd make it in any of my cases.

Thanks, as always, to JS for reading through the unpublished opinions to find this one.

Two more MCLE programs of interest and an upcoming speaking engagement

Here are two more interesting MCLE programs, both next week:

• "2006 Class Action and UCL Conference," Bridgeport Continuing Education, April 6 and 7 in Los Angeles (two-day conference)
• "Motion Practice: Winning on the Papers," The Rutter Group, April 4, 6:00-9:15 p.m. in San Francisco, April 6, 6:00-9:15 p.m. in Los Angeles (registration starts at 5:30)

I also want to take this opportunity to announce that Bridgeport invited me to participate as a speaker when their class action and UCL program repeats in San Francisco on May 18-19. My panel will address UCL remedies, and my co-speaker will be Michael Sweet of Winston & Strawn (who has spoken with me before). The program will also feature Jessica Grant, leader of my firm's Wal-Mart trial team, who will speak on class actions in the wage and hour context. Click here for more information, or here to register online.

Statutory Repeal Post #3: In re Estrada and Collins

This is the third in my series of posts about California Supreme Court cases interpreting the so-called "statutory repeal rule." My first and second posts in the series addressed five of the earliest cases (from the ‘30s and ‘40s) in which the Supreme Court interpreted this “rule.” As I explained in those posts, a close analysis of the early cases demonstrates that the “rule” is grounded in legislative intent. Accordingly, whether a statutory amendment applies retroactively to pending cases cannot be determined without considering both the wording of the amendment and the express and implied intent of the legislature (or electorate) in changing the law.

In In re Estrada, 63 Cal.2d 740 (1965), the Supreme Court (the same justice who authored the Sekt decision discussed in post #2) again addressed a statutory repeal and determined its meaning by analyzing legislative intent. When the defendant escaped from prison in June 1963, the crime of escape was punishable by two years’ imprisonment. By the time the defendant was sentenced in September 1963, the legislature had amended the Penal Code and escape was punishable by only one year’s imprisonment. Id. at 743. The Supreme Court determined that the statutory amendment did apply retroactively, and that the defendant was entitled to the benefit of the new, lesser sentence. Id., passim.

In so holding, the Supreme Court immediately turned to the question of intent:

The problem, of course, is one of trying to ascertain the legislative intent—did the Legislature intend the old or new statute to apply? Had the Legislature expressly stated which statute should apply, its determination, either way, would have been legal and constitutional. It has not done so. We must, therefore, attempt to determine the legislative intent from other factors.

Id. at 744 (emphasis added). For purposes of the case before it, “[t]here is one consideration of paramount importance” that “leads inevitably to the conclusion that the Legislative must have intended, and by necessarily implication provided, that the amendatory statute should prevail.” Id. at 744-75 (emphasis added). That consideration was as follows:

When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.

Id. at 745 (emphasis added). Later in the opinion, the court mentioned both the rule that new legislation is presumed to operate prospectively only and the “statutory repeal rule,” but then observed that neither canon of statutory construction should be “followed blindly in complete disregard of factors that may give a clue to the legislative intent.” Id. at 746. In addition, the presence or absence of a savings clause, express or implied, “certainly is not conclusive on the legislative intent ….” Id. at 747.

The Supreme Court employed similar reasoning in People v. Collins, 21 Cal.3d 208 (1978). In Collins, prior law criminalized both forcible and non-forcible oral copulation. In 1976, after the defendant was convicted for non-forcible oral copulation, but before he was sentenced, the Legislature repealed the old statute and enacted a new one with the same number, completely supplanting the old one. The new statute criminalized only forcible oral copulation. Id. at 211. The Supreme Court held that the conviction must be reversed because the statute on which it was based had been repealed. Again, the Supreme Court explained that this result hinged on the presumed Legislative intent behind the “statutory repeal rule”:

In Sekt v. Justice’s Court (1945) 26 Cal.2d 297, 304, we discussed the rule’s theoretical basis: it presumes the Legislature, by removing the proscription from specified conduct, intended to condone past acts. …. [A]n amendment eliminating criminal sanctions is a sufficient declaration of the Legislature’s intent to bar all punishment for the conduct so decriminalized.

Id. at 212, 213 (emphasis added).

In both Estrada and Collins, if the “statutory repeal rule” had applied in the manner that the Courts of Appeal have recently applied it to Prop. 64—without reference to the electorate’s intent—the outcomes would have been the same, but the lengthy discussions of what the legislature intended would have been a total waste of time and effort. The Supreme Court is not known for engaging in idle, unnecessary examinations of legislative intent.

My next post on this topic will continue to address California Supreme Court precedent interpreting the “statutory repeal rule.”

UPDATE: I completed my analysis of California Supreme Court case law interpreting the "statutory repeal rule" in this article, which appeared in the San Francisco Daily Journal on May 31, 2006.

"'Novel' Tactic: Legal experts say complaint is unique use of state Unfair Competition Law"

An article in yesterday's San Francisco Chronicle mentioned section 17200 by name and quoted Will Stern, Bruce Simon, and others on a lawsuit contemplated by Barry Bonds seeking to recover the profits from a book about steroids in professional sports. According to the article, the UCL claim is based on the theory that the authors violated federal law (and hence the UCL) by relying on illegally-obtained grand jury transcripts to write their book.

Here is a link to the San Francisco Superior Court docket for the case, which was in fact filed yesterday. The complaint is accessible there for download. The Chronicle also reported yesterday afternoon that Judge James L. Warren denied Bonds' ex parte application for an order appointing a receiver to monitor sales of the book. The Chronicle further reports that the defendants plan an anti-SLAPP motion as well as a challenge based on Prop. 64—that Bonds has suffered no loss of money or property "as a result of" the alleged UCL violation.

UPDATE: Monday's Daily Journal will also have an article, "Legal Swats at Bonds Book: Federal Judge Could Press Authors to Disclose Source," discussing this case as well as activity in a related federal action pending before Judge Susan Illston. (Thanks to JS for the heads-up.)

New CAFA decision: Patterson v. Dean Morris

In Patterson v. Dean Morris, LLP, ___ F.3d ___ (Mar. 22, 2006), the Fifth Circuit held (with one judge dissenting) that the statutory time limit for the federal courts of appeals to rule on a discretionary appeal from an order granting or denying remand under CAFA (60 days) does not begin to run until leave to appeal is granted. [Hat tip: How Appealing]

The Fifth Circuit also followed a recent Ninth Circuit holding that the losing party's 7-day time limit to file a petition for permission to appeal is 7 court days, not 7 calendar days. Slip op. at 7 n.1 (citing Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Servs., Inc., 435 F.3d 1140, 1146 (9th Cir. 2006)). The Ninth Circuit so held in Amalgamated even though the statute says that the petition "must be made to the court of appeals not less than seven days after entry of the order," suggesting that the 7 days is a waiting period, not a deadline. 28 U.S.C. § 1453(c)(1) (emphasis added). The court explained that "there is no apparent logical reason for the choice of the word 'less' in the statute" and that "use of the word 'less' is, in fact, illogical and contrary to the stated purpose of the provision." Amalgamated, 435 F.3d 1140 (slip op. at 1093-94).

"Top Verdicts 2005: Plaintiff Power"

This morning's Daily Journal reports on the top jury verdicts in California in 2005, including a piece on my firm’s Wal-Mart verdict. The story quotes my colleague, Jessica Grant:

The jury deliberated for three days and reached a verdict Dec. 22, ordering Wal-Mart to pay $57 million in compensatory damages and $115 million in punitive damages. "I hope my next case goes that well," Grant said.

Considering how hard-working and dedicated Jessica is, I have no doubt that it will. The Daily Journal’s report also includes interesting summaries of the other top verdicts of 2005. (Unfortunately, the Daily Journal’s website does not provide pass-through links to specific articles, even for paid subscribers.)

Upcoming MCLE seminars of interest

Here are a couple of upcoming MCLE seminars that I thought sounded interesting:

• "Writing Techniques for Winning Cases: An Advanced Writing Seminar for Litigators," Kinder Legal, Thursday, March 23 (today!), 9:00 a.m. - 5:00 p.m. in Sacramento; Friday, March 24, 9:00 a.m. - 5:00 p.m. in San Francisco; Thursday, April 6, 9:00 a.m. - 5:00 p.m. in Irvine

• "Killing Me Softly for This Wrong: What's New (and Not) in Punitive Damages," sponsored by the Bar Association of San Francisco, Appellate Practice Section, Friday, March 24, 12:00 - 1:30 in San Francisco (registration starts at 11:30)

The UCL and securities class actions

Yesterday, in a widely-publicized decision, the U.S. Supreme Court held that the Securities Litigation Uniform Standards Act of 1998 preempts "state-law class-action claims brought by plaintiffs who have a private remedy under federal law" as well as "state-law class-action claims for which federal law provides no private remedy." Merrill Lynch, Pierce, Fenner & Smith v. Dabit, 547 U.S. ___ (Mar. 21, 2006) (slip op. at 1).

There is a split in California decisional law on whether the UCL may be invoked to rectify securities violations (regardless of whether federal law provides a parallel remedy). Compare Roskind v. Morgan Stanley Dean Witter & Co., 80 Cal.App.4th 345 (2000) (holding that UCL claim may be predicated on securities law violations) with Bowen v. Ziasun Technologies, 116 Cal.App.4th 777 (2004) (holding that UCL does not apply to securities transactions); see also these blog posts from 2004 (discussing Bowen and UCL securities claims). Assuming that Roskind has the better view on this issue, and securities claims can be rectified via the UCL as a matter of California state law, it could be that this new Supreme Court decision has closed that avenue of relief. On the other hand, the federal statute applies only to a "covered class action," which is defined as "any single lawsuit in which ... damages are sought on behalf of more than 50 persons ...." Merrill Lynch, slip op. at 10 n.8 (quoting 15 U.S.C. §78bb(f)(5)(B)). Because "damages" are not recoverable under the UCL, there could be some wiggle room to argue that the federal statute does not apply. Still, given Prop. 64's class action provisions and the Class Action "Fairness" Act's removal provisions, you'll probably wind up making this argument to a federal judge, very few of whom would likely be receptive to it. And since you'll be in federal court anyway, you may as well plead the securities violation under federal law. Comments, anyone?

UPDATE: The Wall Street Journal Law Blog has this post with links to blogosphere commentary on the Merrill Lynch decision, including this thoughtful analysis at the Conglomerate, which observes: "With one fell swoop, the Supreme Court wipes out the practical value of many state blue sky laws and general consumer fraud laws and such. I understand and agree with the 'occupying the field' argument in principle, but, geesh, today is a very different consumer fraud litigation day than was yesterday!"

New appellate practice decision: Boyle v. CertainTeed Corp.

In Boyd v. CertainTeed Corp., ___ Cal.App.4th ___ (Mar. 10, 2006), the Court of Appeal explains the difference between preserving an argument for appeal and properly presenting that argument on appeal:

[Respondent] misunderstands the concept of implied waiver, or forfeiture of a claim. “[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.” (In re S.B. (2004) 32 Cal.4th 1287, 1293.) The critical point for preservation of claims on appeal is that the asserted error must have been brought to the attention of the trial court. (See Evid. Code, § 353, subd. (a) [evidentiary objection must be timely made and articulate specific ground for objection].) There is no requirement that a trial court objection be supported by extensive argumentation to avoid forfeiture. If an appeal is pursued, the party asserting trial court error may not then rest on the bare assertion of error but must present argument and legal authority on each point raised. (People v. Stanley (1995) 10 Cal.4th 764, 793.) This latter rule is founded on the principle that an appealed judgment is presumed correct, and appellant bears the burden of overcoming the presumption of correctness. (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865.)

[Respondent] argues that the rule on appeal requiring claims of error to be supported by reasoned argument and legal citations extends to the trial court, and that a party forfeits a claim presented to the trial court unless the claim is supported by argumentation and citations to authority. The argument is untenable. In the appellate court, a party’s challenge to a ruling must affirmatively prove error, which necessitates argumentation and citation of authority. But in the trial court, a party’s challenge to a procedure is sufficient to preserve the issue on appeal if the challenge alerts the court to the alleged error, even without elaboration through argumentation and citation of authority.

(Slip op. at 4.) It's a good thing, too, because in the middle of trial there isn't time to thoroughly brief every point, as appellate-level practice requires.

Wal-Mart verdict fourth largest in California in 2005

The Recorder reports today that the verdict in my firm's Wal-Mart case—$172 million—was the fourth largest in California in 2005. The verdict also made the National Law Journal’s list of the top ten jury verdicts in the country in 2005.

Supreme Court review sought in two more Prop. 64 cases

Petitions for review have been filed in these two cases, both of which involve Prop. 64 retroactivity:

• Brazil v. Sara Lee Corp., Cal. Supreme Court case no. S141348 (publication request filed 02/24/06; petition for review filed 03/06/06)
  
• Young America Corp. v. Superior Court, Cal. Supreme Court case no. S141766 (petition for review filed 03/10/06)
  

My original posts on the unpublished opinions in these cases are here and here. They have been added to my list of pending Prop. 64 appeals.

Supreme Court denies review in Dunham v. Memberworks

On Wednesday, the Supreme Court declined to review the Court of Appeal's unpublished opinion in Dunham v. Memberworks, case no. A107261 (First Appellate District, Division Five), even though both parties requested it. As I explained here, the Court of Appeal held that Prop. 64 applies retroactively to pending cases, but that the trial court may grant leave to amend to add an affected plaintiff. There is a definite pattern here. The Supreme Court is granting review in Prop. 64 retroactivity cases only if the Court of Appeal's opinion is published.

Ninth Circuit asks Supreme Court to decide whether the First Amendment protects what you say on your website: ReadyLink Healthcare v. Lynch

On Tuesday, the Ninth Circuit asked the California Supreme Court to decide whether an attorney can be liable in tort for posting truthful, publicly-available information on his firm website. ReadyLink Healthcare, Inc. v. Lynch, ___ F.3d ___ (Mar. 14, 2006). The order reminds me of the bloggers' rights case, O'Grady v. Apple Computer, No. H028579 (which is still pending before the Sixth District after many months of no activity). The developments to date in both of these cases suggest that bloggers or other people who maintain their own websites should have more limited First Amendment rights than publishers of "traditional" media.

You might recall the UCL injunction decision ReadyLink Healthcare, Inc. v. Cotton, 126 Cal.App.4th 1006 (2005). (My original post on that decision is here.) Well, it seems that the losing party's attorney let his emotions get the better of him. According to the Ninth Circuit's order, he created a page on his website announcing to the world that the owner of ReadyLink Healthcare (his client's opponent) had been criminally convicted twenty years ago of "multiple felonies," complete with links to downloadable copies of court records. (Slip op. at 2633-34.) ReadyLink and its owner sued him for a variety of torts, including invasion of privacy. The attorney moved to dismiss, citing the First Amendment and the fact that the information he posted was truthful and publicly-available. The District Court granted the motion, and ReadyLink appealed. The Ninth Circuit has now asked the Supreme Court to determine whether the tort of invasion of privacy is viable against "non-media" defendants who have "a commercial interest in or a malicious motive for publishing facts about plaintiff's past crimes," suggesting that there is some doubt about this under California law. (Slip op. at 2631.)

The first thing that came to my mind on reading this is how in the world do you distinguish this person's website from a blog or any other form of online media? And don't all media outlets have a commercial interest in what they do? And so long as the information is truthful, why should the person's motive for publishing it be relevant?

At The Volokh Conspiracy, Professor Volokh echoed these concerns, and to bring the point home, he repeated the very information about this person's criminal history that started the lawsuit to begin with:

I expect that the courts will ultimately rule in favor of the speakers -- and I think that’s exactly right. First Amendment principles should apply to all speakers, whether or not they are parts of the institutional media; and this is of course even more clear now that the media / nonmedia line is blurrier than ever. Newspapers can clearly write about Treash’s past. Presumably I can do the same, since it’s hard to see why I should have fewer First Amendment rights than a small-town newspaper that may have no more readers than this blog does. I take it that Lynch [the attorney] could do the same on a blog that Lynch runs. How can the law sensibly distinguish Lynch’s site from his blog, Lynch’s blog from my blog, or my blog from the Siskiyou Daily News (circulation 6000)?

He also provides useful links to archives of the attorney's original web pages. (Remember, nothing can ever be deleted from the internet.) [Hat tip: How Appealing]

The Supreme Court is not required to take this case and decide the issue. There is also a serious question, first raised by Howard Bashman, about whether the Ninth Circuit should be asking a state supreme court to decide what amounts to a question of federal constitutional law. Under Rule of Court 29.8(e)(1), "any person or entity wanting to support or oppose the request" may file a letter brief within 20 days of March 14 (the date of the Ninth Circuit's request). The Supreme Court's docket for the case is here. UPDATE: On May 17, 2006, the Supreme Court denied the request for decision.

UCL/CLRA remedies hypothetical

A reader writes in with the following hypothetical:

Let's say a company, which we'll call "The Big Space," sells its own branded clothes, makes misleading statements about the existence of price discounts. For example, it advertises that these pants were "Usually $50, now $25, for a limited time." However, the true facts are that the retailer only sold the pants at $50 ten percent of the time, and the regular price was actually the "discounted" price of $25. Under 17200 and CLRA, and pursuant to FTC guidelines, this is probably misleading advertising. But what are the damages, if any, to the consumer?

For instance, let's say a retailer, whom we'll call "The Big Space," is the only retailer who sells its branded pants, and you can't buy them from any other store. What is the consumer's damages, if any, where he bought the pants at $25, thinking he was getting a $25 discount? What if comparable pants from Calvin Klein cost $25 also, so the consumer actually got a decent deal on the pants? And that's not even addressing the issue of reliance, which apparently isn't necessarily required under Prop 64 according to what I read on your blog. Regarding reliance, the consumer could argue that he bought the pants because he thought, based on the "limited time" language, that he had better act fast before the price was raised back to the supposed $50 regular price.

Does the consumer have a case for damages, besides just suing for an injunction (which state attorneys general or the FTC could do themselves)?

Keeping in mind that damages are recoverable under the CLRA, but not the UCL (which limits monetary recovery to restitution), what do you think?

One way to find a new class rep.: Best Buy v. Superior Court

In Best Buy Stores, L.P. v. Superior Court, ___ Cal.App.4th ___ (Mar. 13, 2006), the trial court issued an order to show cause why the case should not be dismissed because the putative class representative was also an attorney seeking to act as class counsel. In so doing, the trial court cited Apple Computer, Inc. v. Superior Court, 126 Cal.App.4th 1253 (2005), "which held that a conflict of interest prohibits a lawyer from serving both as class representative and as counsel for the class." (Slip op. at 2.) The class representive responded by filing a motion to compel the defendant to pay for a written notice to the putative class, providing an opportunity for a new putative class representative to come forward. The trial court granted the motion, and the defendant filed a petition for a writ of mandate.

The Court of Appeal (Fourth Appellate District, Division Three) affirmed the order, holding that "[d]iscovery to ascertain a suitable class representative is proper." (Slip op. at 8.) It rejected the defendant's argument that the order would facilitate attorney "solicitation" prohibited by the Rules of Professional Conduct, as well as the argument that the attorney would improperly control the litigation if the class representative were obtained in this manner. However, the Court of Appeal ordered that the notice should be modified to protect the putative class members' privacy:

Of course we are mindful that the privacy rights of Best Buy’s customers must be protected. The use of a third person to communicate with these customers, as provided in the order, aids this purpose, but more is required. The letter must state that recipients are free to ignore the letter and that, if they do so, the sender will not disclose their identities to [the attorney]. The letter should not identify [the attorney] by name, should not provide that the recipient contact [the attorney] in the first instance, and should not contain any information that would facilitate such direct contact. The court should instruct the sender of the letter to disclose to [the attorney] the identity of only those persons who affirmatively request this be done in a writing signed by the person.

(Slip op. at 7-8.) The defendant's privacy argument was initially predicated on Pioneer Electronics (USA), Inc. v. Superior Court, 128 Cal.App.4th 246 (2005) (see my original post on that decision here), involving pre-certification class notices. As the Court of Appeal pointed out, however, the Supreme Court granted review in that case in July of last year, so it is no longer citable.

I think this type of pre-certification class notice would be most useful in cases in which something unexpected happens to disqualify the original class representative. For example, it could be especially useful in UCL cases if the Supreme Court ultimately holds that Prop. 64 applies retroactively to pending actions, but that leave to amend to add an affected plaintiff may be granted. If that happens, pre-certification class notices might be employed to locate substitute class representatives in cases in which the original plaintiff was unaffected.

Updated lists of Prop. 64 opinions, pending appeals, and briefs

My lists of Prop. 64 opinions, pending appeals, and briefs have been updated. I've also revised and expanded my welcome page and added a new resource to my list of UCL practice guides.

Every law blog there is ...

And over at 3L Epiphany, a law student is attempting to catalog every law blog in the country—and getting academic credit for it. That's got to be a first. [Hat tip: How Appealing]

myHq blawgs and another really cool thing

The editors of Blawg Review have created an amazing, comprehensive list of legal weblogs ("blawgs"), helpfully categorized. It's called myHq blawgs and is definitely worth checking out.

Another really cool thing is that last week, the Ohio Supreme Court cited a blog, Sentencing Law and Policy, in a published opinion. [Hat tip: 3L Epiphany]

Comments invited on proposed revisions to Rule of Court 976 regarding publication of Court of Appeal opinions

After a lengthy period of analysis, the Advisory Committee on Rules for Publication of Court of Appeal Opinions has issued its latest proposed revisions to Rule of Court 976 and is now seeking comments. The Committee's initial draft report, dated October 2005, is here (pdf) and it is quite interesting (as I mentioned in my original post on the draft report). The current proposed revisions, including a comment form, are here (pdf). Comments may also be submitted online. The Committee recommends reading both the initial report and the latest proposed revisions before venturing any comment. Comments are due by Friday, April 28, 2006.

New federal UCL decision: Wolfert v. Transamerica Home First, Inc.

Many thanks to the reader who alerted me to Wolfert v. Transamerica Home First, Inc., ___ F.3d ___ (2d Cir. Feb. 24, 2006), a recent opinion from the Second Circuit. In Wolfert, a nationwide UCL class action settlement that was approved by the San Mateo County Superior Court in 2003 survived various "due process" challenges and was upheld under the doctrine of res judicata. The Second Circuit determined that New York laws governing reverse mortgages provided no broader protections than the UCL, so the class representatives did not inadequately represent New York class members in settling their claims pursuant to the UCL rather than the New York laws that would otherwise govern. In a word to the wise for all UCL litigants seeking to settle the claims of out-of-state plaintiffs, the Court said:

Without attempting to delineate the degree of divergence of interests that would render class representatives inadequate, it suffices to note in this case that if Mrs. Wolfert is correct that New York law affords her significant protection not available under California law, she was not adequately represented.

(Slip op. at 19.) The Court also held that the form of notice to the class (by first class mail and publication) was sufficient. The case is an interesting read.

Last night's Rutter Group seminar

Last night, I attended The Rutter Group's seminar on the UCL, class actions, and the CLRA, featuring my former partner Will Stern of Morrison & Foerster, Bonny Sweeney of Lerach, Coughlin and Commissioner Bruce Mitchell of the Los Angeles County Superior Court. The program was, in a word, excellent. It repeats tonight in Los Angeles, and I highly recommend that my Southern California compatriots attend if you can. A tidbit: Commissioner Mitchell has authored a new practice guide on California class actions. It won't be published until later this year, but he's included one of the chapters in the program materials.

New UCL statute of limitations decision: County of Santa Clara v. Atlantic Richfield Corp.

In County of Santa Clara v. Atlantic Richfield Corp., ___ Cal.App.4th ___ (Mar. 3, 2006), the Court of Appeal held that a group of California public entities, including Santa Clara County and others, may seek to require certain paint manufacturers to pay to abate the hazards caused by lead paint. The press coverage heralded the plaintiffs' victory in having their claims restored. However, the last few pages of the opinion affirmed the trial court's order dismissing the UCL claim because, as pleaded, it was barred by the applicable statute of limitations. (Slip op. at 50-53.) The Court of Appeal did not take the opportunity to address whether the discovery rule applies to UCL claims. Other than that loss, the opinion was a complete victory for the public entites.

New federal UCL order: Bahramipour v. Citigroup Global Markets, Inc.

Thanks to Jessica for handing me a copy of the Order Denying Defendant's Motion for Partial Summary Judgment in Bahramipour v. Citigroup Global Markets, Inc., No. C 04-440 CW (N.D. Cal.). In this case, the plaintiff's UCL "unlawful" prong cause of action is predicated on alleged violation of the federal Fair Labor Standards Act (29 U.S.C. §§200 et seq.). Judge Claudia Wilken held that the FLSA did not preempt either (a) the UCL's four-year statute of limitations or (b) the "opt-out" class certification procedure that would apply under Rule 23 to UCL claims in federal court: "By allowing 'opt-out' class actions and longer statute of limitations for UCL claims, California provides increased protections for its workers, furthering the central purpose of the FLSA. The UCL as invoked in Plaintiff's claim does not stand as an obstacle to the purposes of the FLSA." (Slip op. at 13.)

If the FLSA claim had been brought directly, rather than through the UCL, it would have been subject to a two-year statute of limitations (or three years, if willful misconduct is proven), and special "opt-in" rules would have limited the size of the class. This case illustrates the procedural benefits of UCL claims, even after Proposition 64.

UPDATE: The Westlaw citation is Bahramipour v. Citigroup Global Markets, Inc., 2006 WL 449132 (N.D. Cal. 2006).

Consumer Litigation seminar tomorrow in San Francisco

Tomorrow evening, Will Stern will speak at The Rutter Group's annual seminar, Consumer Litigation: Bus. & Prof. Code §17200, Class Actions, CLRA. Will's co-speaker will be Bonny Sweeney of Lerach, Coughlin, and the moderator is Los Angeles County Superior Court Commissioner Bruce Mitchell. The program will be held at Hotel Nikko in San Francisco and will repeat Wednesday night at the Omni Hotel in Los Angeles.

New appellate practice decision: Garau v. Torrance Unified Sch. Dist.

Speaking of appellate practice, the Court of Appeal (Second Appellate District, Division Seven) also issued a rare published opinion on Wednesday dismissing an appeal for lack of appellate jurisdiction because the order purportedly appealed from—reclassifying the case from "unlimited" to "limited" jurisdiction—was not appealable. Garau v. Torrance Unified School Dist., ___ Cal.App.4th ___ (Mar. 1, 2006). The Court rejected the argument that "the reclassification order here is in effect an appealable 'final judgment' because the transfer to the limited jurisdiction department of the superior court eliminated the right to appellate review of [two] dismissed causes of action …," pointing out that review was available either through a writ proceeding or through an appeal from the final judgment dismissing the two claims. (Slip op. at 2.)

Although the case was not a class action, the opinion contains an interesting discussion of one of the leading class action decisions, Daar v. Yellow Cab Co., 67 Cal.2d 695 (1967):

The Daar Court’s primary concern was the demurrer and the fate of the dismissed class plaintiffs. Those dismissed plaintiffs were directly aggrieved by the order sustaining the demurrer as it removed them from the case and terminated the action as to the class. The class plaintiffs’ case was final irrespective of the transfer to the municipal court. Once dismissed these class plaintiffs could not have sought writ review of the transfer order under the former section 400 because their case was over and they were no longer parties in the remaining transferred action. The Daar Court’s decision to characterize the order sustaining the demurrer a final judgment is based on the recognition that absent an immediate right to appeal, those plaintiffs would lose all opportunity to obtain review of the order dismissing them from the action. Thus, in our view Daar involves a unique situation concerning class action claims, recognizing the right to an immediate appeal for dismissed class claimants. In fact, subsequent case law interpretations of Daar indicate the legacy of the case is not that reclassification/transfer orders are, standing alone, appealable final orders. Instead, Daar is cited as the original authority for an exception to the one-final judgment rule for certain “death knell” orders relating to class actions.

(Slip op. at 9-10 n.8 (emphasis added).) The lesson I would draw from that discussion is that orders tantamount to denial of class certification—such as an order dismissing one or more class claims at the pleading stage—are immediately appealable.

Court of Appeal can "depublish" its opinions?

On Wednesday, the Court of Appeal (Third Appellate District) issued an interesting order in which it "decertified" an opinion that it had previously certified for publication under Rule of Court 976. The Rules of Court do not expressly permit the Court of Appeal to, in effect, "depublish" an opinion; the Rules seem to limit that power to the Supreme Court. I asked Ray Cardozo, Chair of the Bar Association of San Francisco's Appellate Practice Section, about this. He replied:

I am familiar with instances in which parties have asked the court of appeal to decertify an opinion, but since I am not sure that any of those instances ever succeeded, I do not know if the question of the court's power to do so ever arose. I would read Rule 976(b) as implicitly conferring the power on the court of appeal if a majority concurs before the decision is final.

I agree it seems logical that the Court of Appeal should have the power to change the publication status of its own opinions before finality, but that power is certainly not explicit in the Rules of Court. I observe that as of this writing, the "decertified" opinion remains on the Court of Appeal's website as "published." UPDATE: Professor Martin explains the reason for the "decertification" here.

Supreme Court grants review of UCL preemption decision: Viva v. Adidas

Yesterday, the Supreme Court granted review in Viva International v. Adidas Promotional Retailer (no. S140064). In Viva, the Court of Appeal held that a UCL "unlawful" prong claim was preempted by federal law. The defendant also raised Prop. 64 retroactivity, but the Court of Appeal did not reach that issue in light of its preemption ruling. The Court of Appeal's opinion is here, and my original post on the opinion is here.