The UCL Practitioner

Daily Journal article on "no class action" arbitration clause decisions

Last week's Daily Journal had a focus article called "Class Conflicts" (subscription), which addresses "no-class-action" arbitration clauses and the Court of Appeal's recent decision in Konig v. U-Haul Company, ___ Cal.App.4th ___ (Dec. 19, 2006) (see my post on Konig here). The blog Wage Law has posted a non-subscription copy of the article online.

The article begins with an interesting point about the interplay between Konig and Gentry (in which the Supreme Court has granted review):

Last month, the 2nd District Court of Appeal published a decision upholding an employee's class-action waiver in an arbitration with his employer. Konig v. U-Haul Company of California, 2006 DJDAR 16494 (Dec. 19). The California Supreme Court had already granted review of a remarkably similar case decided by the 2nd District, Gentry v. Superior Court, 135 Cal.App.4th 944 (2006) (rev. granted, April 26, 2006). In Konig, the feisty appellate court capitalized on the opportunity to, at least temporarily, trump the grant of review and once again make its rule in Gentry the rule in the 2nd District.

But before the ink dries on the Konig decision's "filed" stamp, the Supreme Court will probably take the case up for review and decide, once and for all, that prospective class-action waivers in employment arbitrations are unenforceable.

Interesting. Looking at the two opinions more closely, it turns out that Division Five of the Second District decided both. Two of the justices, Kriegler and Turner, were on both panels. In Gentry, Justice Armstrong concurred (in fact, he authored the opinion), and in Konig, Justice Mosk dissented. Perhaps the dissent is the reason Konig was published.

Report on yesterday's oral argument in Fireside Bank

Yesterday, the Supreme Court heard oral argument in the "one-way intervention" case, Fireside Bank v. Superior Court, no. S139171. (See my prior posts on this case here and here.) A reader in Sacramento who attended the argument very kindly wrote up the following report:

Fireside Bank v. Superior Court of Santa Clara County (Sandra Gonzalez, Real Party) S139171

Oral argument before California Supreme Court, Jan 29, 2007.

For Petitioner: Jan T. Chilton, S.F. For Real Party: Carol McLean Brewer, S.F.

Petition for writ of review after the Court of Appeal denied a petition for peremptory writ of mandate. This case includes the following issue: May a trial court ever depart from the preferred practice of deciding whether to certify a class action before adjudicating any class claims on the merits, or it the rule against such a “one way intervention” in class actions a firm prohibition applicable in all circumstances?

Counsel for petitioner contended that the courts balance the rights of plaintiffs and defendants. Petitioner asked the Supreme Court to reverse the decision of the court of appeal, (1) reaffirm the Rule of Home Savings against deciding any class claims on the merits prior to determination as to class certification, as mandatory, and reject the appellate court’s opinion that the Rule is merely a “preference”. The class action issues must be decided first, including the opt out period. (2) Where premature merits rulings are made, the plaintiff may only proceed as an individual, not as a class action.

Petitioner argued that the Rule has worked well in federal courts for over 40 years, and in the California state courts for 30 years. There are few appellate court cases because the Rule is well known and easy to follow. No amicus briefs were filed, and even the plaintiff’s bar is comfortable with the Rule.

Justice Werdegar asked whether the Rule was mandatory, and precluded the trial court from exercising its discretion to deviate.

Petitioner insisted that the Rule could not work that way. If some plaintiffs have the merits decided first, all plaintiffs will want to do so. It’s a no lose strategy. Use of a mere “preference” would have dramatic effect on defendants.

Justice Werdegar asked what the Court should do if they agree.

Petitioner responded they should reverse. There is only a single remedy: once the trial judge has issued an erroneous premature ruling on the merits, there can be no class, citing Peritz v. Liberty Loan Corp. (7th Cir. 1975) 523 F.2d 349.

Both Justices Baxter and Kennard questioned petitioner about a remand to a different judge.

Petitioner said neither party suggested that remedy, because judges respect and are influenced by their peers, and this is not a case involving bias, only error by the trial judge.

Petitioner contended that the Rule should not be abolished as the practical effect would be to have plaintiff’s cases converted to class actions after rulings on the merits were made. This would force the defense to litigate every action as though a million dollars was at stake.

Here, Real Party Gonzalez filed a motion for judgment on the pleadings. The defense warned her in its opposition papers, that based on the Rule of One Way Intervention, she was electing not to have a class action in this case. Nonetheless, she persisted. The only appropriate remedy is to preclude the plaintiff in this case from bringing a class action. It will not preclude this plaintiff from obtaining relief, nor preclude other members of the putative class from brining their own actions, or a separate class action.

Counsel for the Real Party argued that the merits of this action have never been decided. The lower courts only determined that the complaint did not state a cause of action on the judgment on the pleadings. The one-way-intervention rule never came into effect, as the merits were never decided.

The only reason for the delay in the motion to certify the class was Fireside’s failure to respond to discovery requests, requiring a motion to compel. Once the discovery had been obtained, Gonzalez filed her motion to certify the class within six weeks.

J. Chin asked Real Party’s counsel is she was surprised by the Court’s order and conclusion that Green was discretionary.

Real party stated that counsel thought that the motion for judgment on the pleadings had been taken off calendar by the trial judge. However, Real Party agreed with the court of appeal’s interpretation of Green v. Obledo (1981) 29 Cal. 3d 126. There is no ironclad Rule in Green.

Also, the Rule is not ironclad because of the Consumers Legal Remedies Act. Civil Code section 1781(c) permits the court to decide if a consumer class action is appropriate and to determine the merits of the action.

Real party argued that Peritz was distinguishable, because there the case went to trial, and the trial court certified the class after a trial by jury.

Decertification is not the appropriate remedy here, as Gonzalez did everything she could to certify the class as promptly as possible.

That's the end of the reader's report on the argument, but the reader also writes: "My take on this case is that the Supreme Court will find the Rule against a determination on the merits prior to class certification to be mandatory, and will apply the remedy of a bar against a class action brought by this plaintiff."

That would be a pretty harsh outcome. What if the defendant waives the one-way-intervention problem by not raising it in response to a plaintiff's request for a pre-certification merits-related ruling? I've had that happen. I've also used the "one-way-intervention" rule to try to convince the court that my class certification motion should be heard before the defendant's summary judgment motion. The defendant responded, basically, that's our problem, and we choose to waive the protection of the "one-way intervention" rule. From the summary of the argument, it sounds like the defendant in Fireside Bank did not waive the issue. It will be extremely interesting to see what the Supreme Court says about all this. A decision is due in 90 days. Many thanks to the reader who provided us with this report.

Daugherty answer and reply briefs and depublication requests now available online

The answer and reply in Daugherty v. American Honda Motor Co., no. S148931, are now available online (along with the petition for review, which I posted in December):

• Petition for Review (filed 12/19/06)
  

• Answer to Petition for Review (filed 01/12/07)
  

• Reply Brief in Support of Petition for Review (filed 01/23/07)

In addition, a number of depublication requests have been filed:

• Depublication Request of Center for Auto Safety (filed 12/22/05)
  

• Depublication Request of Consumers for Auto Reliability and Safety (filed 12/22/06)
  

• Honda's Response to Depublication Requests (filed 01/02/07)
  

• Depublication Request of National Consumer Law Center (filed 01/03/07)
  

• Response of Non-Party Ford Motor Co. to Depublication Requests (filed 01/04/07)
  

• Petitioners' Reply to Honda and Ford's Responses to Depublication Requests (submitted 01/18/07)
  

This is the case in which the Court of Appeal (Second Appellate District, Division Eight) created a split in authority concerning the extent to which non-disclosures are actionable under the UCL and CLRA. My original post on Daugherty is here, and the published Court of Appeal opinion is Daugherty v. American Honda Motor Co., 144 Cal.App.4th 824 (Oct. 31, 2006). The Supreme Court should either take this case up or depublish the opinion.

A milestone: 150,000 hits and counting

At some point during the past week, the blog passed the 150,000 hits mark. That is amazing. I can remember back in the spring of 2004, I was counting daily hits on one hand (and most of them were me visiting the blog to make sure the new posts loaded correctly). But then a little thing called Proposition 64 happened. By January 2005, the blog's hits count had passed 10,000, and six months later, it passed 50,000. The rest, as they say, is history. I'm so glad that so many people find the blog and my insights interesting enough to keep coming back. Thank you for reading.

New law blog: California Employee Rights Blog

Check out California Employee Rights Blog, a new law blog just created on December 31 by attorneys James J. Peters and Sara R. Peters.

Media coverage of Pioneer Electronics

In today's Daily Journal, reporter Itir Yakar reports that "Ruling Benefits Discovery in Class Actions" (subscription). And at the blog Wage Law, Michael Walsh heralds "A Resounding Victory For Plaintiffs in Pioneer Electronics."

UPDATE: In this morning's San Francisco Chronicle, Bob Egelko reports that "Class-action suits get access to files." And the blog Cal Biz Lit reports that "California Supreme Court Rules on Fishing for Plaintiffs in Class Actions."

I wouldn't call it "fishing." Remember, in Pioneer, an injured class representative had already filed suit. The purpose of the discovery requests was to gain information about potential witnesses who had also experienced problems with the allegedly defective product and to gather evidence to support class certification. A secondary purpose would be to identify possible substitute class representatives in case the original one became disqualified for any reason. Class counsel owe a fiduciary duty to the class as a whole, and one way to fulfill that duty is to ensure that if the original class representative can no longer proceed, others are waiting in the wings so that the action as a whole is not scuttled. Cf. Shapell Industries, Inc. v. Superior Court, 132 Cal.App.4th 1101 (2005) (discussed here).

Thoughts on the class action aspects of Pioneer Electronics

During the oral argument, the justices seemed uninterested in the fact that the persons whose privacy rights were being asserted were putative class members, rather than merely non-party witnesses. The opinion, however, points out several times that the case is a putative class action. In fact, the decision recognizes that the interests of the putative class members are most likely aligned with those of the class representatives—who are, after all, seeking relief on their behalf. For example, the court observed:

[I]t seems unlikely that [Pioneer's complaining] customers, having already voluntarily disclosed their identifying information to that company in the hope of obtaining some form of relief, would have a reasonable expectation that such information would be kept private and withheld from a class action plaintiff who possibly seeks similar relief for other Pioneer customers, unless the customer expressly consented to such disclosure. If anything, these complainants might reasonably expect, and even hope, that their names and addresses would be given to any such class action plaintiff.

Pioneer Electronics, Inc. v. Superior Court, ___ Cal.4th ___ (Jan. 25, 2007) (slip op. at 13-14) (emphasis in original). The fact that the case was a putative class action was also a key factor in the court's analysis of whether it would be fair to allow the defendant unequal access to these witnesses:

From the standpoint of fairness to the litigants in prosecuting or defending the forthcoming class action, Pioneer would possess a significant advantage if it could retain for its own exclusive use and benefit the contact information of those customers who complained regarding its product. Were plaintiff also able to contact these customers and learn of their experiences, he could improve his chances of marshalling a successful class action against Pioneer, thus perhaps ultimately benefiting some, if not all, those customers. It makes little sense to make it more difficult for plaintiff to contact them by insisting they first affirmatively contact Pioneer as a condition to releasing the same contact information they already divulged long ago.

Id. (slip op. at 16). The court concluded its discussion of fairness by reaffirming the importance of consumer class actions in California:

Similarly, amicus curiae Consumer Attorneys of California notes that the Court of Appeal’s ruling, by preventing or substantially delaying identification of witnesses and potential class members, could make it more difficult to obtain class certification, thereby reducing the effectiveness of class actions as a means to provide relief in consumer protection cases.

Id. (slip op. at 17) (emphasis added). I would definitely call Pioneer Electronics a pro-class-action decision, one that effectively balances the putative class members' interest in privacy against their interest in obtaining classwide relief.

Supreme Court decides pre-certification communication case: Pioneer Electronics (USA), Inc. v. Superior Court

The decision is up: Pioneer Electronics (USA), Inc. v. Superior Court, ___ Cal.4th ___ (Jan. 25, 2007). I haven't finished reading the entire opinion, but it is unanimous, and the introduction reads, in relevant part:

The Court of Appeal ruled that trial courts in such cases must assure not only that all prospective or potential class members receive actual notice of their right to grant or withhold consent to the release of their personal identifying information, but also that such consent must be exhibited by each potential class member’s own positive act of agreeing to disclosure, rather than by their mere passive failure to object. Because this ruling is overprotective of the purchasers’ privacy rights, inconsistent with established privacy principles, and likely to cause adverse consequences in future cases, we will reverse.

(Slip op. at 2.)

"Superior Legal Websites to Watch"

While we're waiting to find out how the Supreme Court rules in Pioneer Electronics, Law.com has an article this week called "Superior Legal Websites to Watch." The article mentions some interesting new law blogs and other recently-launched websites of interest to lawyers.

BREAKING NEWS: Supreme Court to issue Pioneer Electronics decision tomorrow

The Supreme Court just posted its Notice of Forthcoming Filing for tomorrow, which says that it will be issuing its decision in Pioneer Electronics, Inc. v. Superior Court, no. S133794. This is the case involving pre-certification communications with putative class members.

My lengthy post summarizing the December 5th oral argument is here. A follow-up post with another take on the argument is here. The Court of Appeal's opinion is Pioneer Electronics (USA), Inc. v. Superior Court (Olmstead), 128 Cal.App.4th 246, 249 (2005) (Second Appellate District, Division Four). And finally, when the Supreme Court posts its opinion tomorrow morning at 10:00 a.m., it should be accessible at this link.

Upcoming Supreme Court oral arguments in two class action cases

Next week, on January 29 and 30, 2007, the Supreme Court will hear oral arguments in two pending class action cases:

• Monday, January 29, 1:00 p.m.: Fireside Bank v. Superior Court, no. S139171. This is the "one-way intervention" case, Fireside Bank v. Superior Court, 133 Cal.App.4th 742 (2005) (Sixth Appellate District). My prior posts on this case are here and here.

• Tuesday, January 30, 9:00 a.m.: Alan v. American Honda Motor Co. Inc., no. S137238. This case addresses the appealability of orders denying class certification. See Alan v. American Honda Motor Corp., 131 Cal.App.4th 886 (2005) (Second Appellate District, Division Three). My original post on Alan is here.

These arguments will take place in Sacramento at the Stanley Mosk Library and Courts Building. Please let me know if you're planning to attend one or both of the arguments and would like to email a written report to be posted on the blog.

Supreme Court gives itself more time to grant or deny review in Alvarez

On January 11, 2007, the Supreme Court granted itself an extension of time, through February 16, 2007, to grant or deny review in Alvarez v. May Department Stores Co., no. S148276. This is the case in which the Court of Appeal held that once class certification is denied, collateral estoppel forever bars the whole (non) class from seeking certification again. Alvarez v. May Dept. Stores Co., ___ Cal.App.4th ___ (Oct. 11, 2006) (Second Appellate District, Division Four). A depublication request is also pending before the Supreme Court.

It's interesting to note that according to the docket, the respondent adopted the strategy of not filing anything in response to the review petition. Yet the Supreme Court's decision to give itself more time suggests that it may be seriously considering the petition.

My prior posts on Alvarez are here, here, and here.

Tobacco opening brief on the merits now available online

Thanks to counsel for the petitioners for forwarding a copy of their opening brief on the merits in In re Tobacco II Cases, no. S147345. The opening brief was filed on December 15, 2006. It has been added to my list of Proposition 64 appellate briefs.

"Two Years on, Class-Action Law Brings Unclear Effects"

Friday's Daily Journal had this article (subscription) on the Class Action Fairness Act two years after it was enacted. Among other things, the article discusses the split in authority among federal courts over who bears the burden of proving that the "home state" and "local controversy" exceptions to CAFA removal jurisdiction are present:

The Class Action Fairness Act has created confusion over who has the burden of proof to show why a case filed in state court should or should not be moved to federal court.

Three federal circuits - the New Orleans-based 5th Circuit, the Chicago-based 7th Circuit and the Atlanta-based 11th Circuit - have ruled that the burden falls on plaintiffs. But Los Angeles U.S. District Judge Stephen G. Larson, who has been on the bench less than a year, took a contrary view in an October ruling that quickly became the buzz of the class-action bar.

The New York-based 2nd Circuit has agreed with Larson's reasoning, leading some lawyers to say that the Supreme Court will be forced to resolve the conflict among courts.

"It's the first question in CAFA that's leading to a circuit split and important enough for Supreme Court review," Cabraser said.

Larson did not mince words in criticizing how the law was drafted.

"[It is] a statute in which some major terms are left undefined, certain of the provisions of which have been aptly described as 'bewildering' or 'clumsily crafted' and whose legislative history is ... of questionable interpretive value," he wrote in Lao v. Wickes Furniture Company, 06-448 (C.D. Cal.).

The plaintiffs, former and current sales representatives at Wickes Furniture Company Inc. showrooms, filed suit in San Bernardino County Superior Court in April, citing employment-law violations. The defendants sought to remove the case to federal court, but Larson declined their request, ruling that they had failed to prove that the Class Action Fairness Act applied because a majority of the plaintiffs and the primary defendant are from California.

An appeal to the 9th Circuit is in progress. Lawyers on both sides declined comment.

The full cite for Judge Larson's ruling, in which he found that CAFA's "home state" and "local controversy" exceptions are not "exceptions" at all but rather "integral component[s] of the removal provisions themselves," is Lao v. Wickes Furniture Co., Inc., 455 F.Supp.2d 1045 (C.D. Cal. 2006) (slip op. at 20) (link via CAFA Law Blog). Consumer Law & Policy Blog had a lengthy discussion of the decision in October.

Two unpublished Prop. 64 opinions: Paz v. Sanders and Bivens v. Sanford

On January 9 and 10, the Court of Appeal issued two unpublished opinions, both of which address amending the complaint to substitute an affected plaintiff who can satisfy Prop. 64's standing requirements:

• In Paz v. Sanders Oldsmobile-Cadillac, Inc. (Jan. 9, 2007) (Fifth Appellate District), the trial court held in 2005 that Prop. 64 did not apply retroactively to pending cases. Under Mervyn's, the Court of Appeal had to reverse that holding as well as the resulting judgment in the plaintiffs' favor. It then held, in light of Branick, that the appropriate procedure was to remand the case to the trial court for it to determine, in the first instance, whether leave to amend to substitute an affected plaintiff would be appropriate. Slip op. at 15-16. What's also interesting about this opinion is the fact that, consistent with Mervyn's, the court cited the pre-Prop. 64 "likely to deceive" formulation of the UCL's "fraudulent" prong. Id. at 17. (A copy of the trial court's January 2005 statement of decision in this case is accessible here; my February 2005 post on this case is here.)

• In Bivens v. Sanford L.P. (Jan. 10, 2007) (Second Appellate District, Division Seven), the Court of Appeal held that the trial court abused its discretion by refusing to grant leave to amend to substitute an affected plaintiff. Slip op. at 5-7 (citing Branick and Foundation for Taxpayer & Consumer Rights v. Nextel Communications, Inc., 143 Cal.App.4th 131 (2006)). It reversed the judgment that the trial court had granted on the pleadings, and along with it, the award of costs in the defendant's favor. Id. at 7. The plaintiff had arged that "to allow costs arising from a judgment preordained by the passage of Proposition 64 amounted to an unlawful bill of attainder." Id. at 4. That's an interesting argument, but the Court of Appeal did not have to address it. (My December 2004 post on the trial court's tentative ruling on Prop. 64 retroactivity is here, and the tentative ruling itself is here.)

Thanks to the reader who emailed me about these unpublished opinions.

Another Second Circuit CAFA opinion: Fears v. Wilhelmina Model Agency, Inc.

In Fears v. Wilhelmina Model Agency, Inc., ___ F.3d ___ (2d Cir. Jan. 4, 2007), the Second Circuit affirmed an order granting final approval of an antitrust class action settlement, but reversed the order's distribution plan and attorneys' fees award, remanding for further consideration. The district court had awarded, as attorneys' fees, a percentage of the claims made from the settlement fund, rather than a percentage of the entire fund generated as a result of the litigation. Slip op. at 14-15. As authority for doing so, the district court cited the PSLRA and CAFA, reasoning that both statutes evinced congressional intent to curtail attorneys' fees awards in class action cases. Id. at 15.

The Second Circuit reversed. It rejected the notion that anything about either the PSLRA or CAFA suggested that attorneys' fees should be limited in class action cases generally:

The fee restrictions described in the PSLRA do not apply in any context other than securities class actions, and, even if they did, it is not clear how they would apply. The statute speaks in terms of a percentage of damages “actually paid to the class.” But the entire fund created by the efforts of counsel presumably is “paid to the class,” even if some of the funds are distributed under the Cy Pres Doctrine. The PSLRA would not allow for the computation of fees on the basis of such non-damages items as discounts on coupons received in settlement. A key consideration required by the PSLRA “is the result actually achieved for class members, a basic consideration in any case in which fees are sought on the basis of a benefit achieved for class members.” Advisory Comm. Notes to Fed. R. Civ. P. 23, 2003 Amendments. Arguably, the entire Settlement Fund is a “benefit achieved for class members.”

The District Court’s reliance on the CAFA is also misplaced. The CAFA recites as its purpose the following: “To amend the procedures that apply to consideration of interstate class actions to assure fairer outcomes for class members and defendants, and for other purposes.” Class Action Fairness Act, Pub. L. No. 109-2, 119 Stat. 4 (2005). However, the only mention of fees to be allowed to class counsel deals with the award of fees in coupon settlement cases. See 28 U.S.C. § 1712(a)–(c).

Slip op. at 23-24.

New Second Circuit CAFA opinion: Blockbuster, Inc. v. Galeno

In Blockbuster, Inc. v. Galeno, ___ F.3d ___ (2d Cir. Dec. 26, 2006), the Second Circuit held that CAFA did not change the ordinary rule that the removing party bears the burden of proving federal jurisdiction:

An old proverb teaches that "Heaven suits the back to the burden." The Concise Oxford Dictionary of Proverbs 94 (J.A. Simpson ed., 1982). It is well-settled that the party asserting federal jurisdiction bears the burden of establishing jurisdiction. R. G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir. 1979). So in this case we may correctly say that the law suits the back to the burden. Under this rule, Blockbuster ought to shoulder the burden because it removed the action to federal court from state court. See DiTolla v. Doral Dental IPA of New York, No. 06-2324, 2006 WL 3335125, *3-4 (2d Cir. Nov. 17, 2006) (ruling simply that CAFA has not changed the traditional rule that the party asserting federal jurisdiction bears the burden of establishing jurisdiction).

....

.... Blockbuster must show that it appears to a "reasonable probability" that the aggregate claims of the plaintiff class are in excess of $5 million. Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000); 28 U.S.C. § 1332(d)(2), (6).

Slip op. at 10-11, 13. [Via Consumer Law & Policy Blog.]

This week at the Supreme Court: review denied in three cases, while a fourth is transferred

On Wednesday, January 3, 2007, the Supreme Court denied review in three cases involving plaintiff-favorable, published Court of Appeal opinions:

1. Aron v. U-Haul Co., ___ Cal.App.4th ___ (Oct. 3, 2006) (review denied 01/03/07, no. S148020). As explained in my original post, the Aron court reversed an order granting judgment on the pleadings of the plaintiff's UCL and CLRA claims.

2. Hood v. Santa Barbara Bank & Trust, ___ Cal.App.4th ___ (Sept. 28, 2006) (review and depublication denied 01/03/07, no. S147931). There, the Court of Appeal held that federal law did not preempt the plaintiff's UCL, CLRA or other state-law claims. (Here is my original post on Hood.)

3. Cohen v. DirecTV, Inc., 142 Cal.App.4th 1442 (Sept. 18, 2006) (review denied 01/03/07, no. S147997). Cohen held that a no-class-action arbitration provision was unconscionable under Discover Bank. (Click here for my original post on Cohen.) This order is consistent with the Supreme Court's other recent activity in no-class-action arbitration clause cases. It has been granting review in cases upholding such clauses, and denying review in cases striking them down.

In a fourth, defendant-favorable preemption case, WFS Financial, Inc. v. Superior Court (De La Cruz), 140 Cal.App.4th 637 (June 15, 2006), in which review was granted in September, the Supreme Court issued the following order, according to the docket:

In light of the parties' settlement, their stipulated request that the court vacate the Court of Appeal's judgment is granted. (Code Civ. Proc. § 128, subd. (a)(8).) The court finds there is no reasonable possibility that the interests of nonparties or the public will be adversely affected by vacating the judgment. (Ibid.) The court further finds that the reasons of the parties for requesting the vacating of the judgment outweigh any countervailing considerations. (Ibid.) The Court of Appeal is directed to dismiss the writ proceeding so that the superior court may consider the class settlement.

Accordingly, the Supreme Court will no longer be deciding the UCL preemption issue raised in this case, and the Court of Appeal's opinion remains uncitable. (See my prior posts on the opinion here and here.)

"Case of the tour-bus kickbacks: Three tour companies suddenly cut commissions; bellhops win big settlement"

This week's San Francisco Bay Guardian has a colorful article on one of my antitrust class actions. This particular case settled last year. You can read more about the case in one of the appellate opinions that resulted and in this San Francisco Chronicle article from August.

January MCLE programs in San Francisco

Just in time to satisfy your MCLE compliance requirement, the Bar Association of San Francisco will offer several interesting programs in January, including these:

• Friday, January 19, 2007, 11:30 a.m. - 1:30 p.m.: Appellate Ethics: Candor and Beyond (Appellate Practice Section)

• Wednesday, January 24, 2007, 8:30 a.m. - 12:30 p.m.: Class Action Hurdles from the Plaintiff's Perspective (in association with Consumer Attorneys of California College of Trial Arts)

• Monday, January 29, 2007, 11:30 a.m. - 1:30 p.m.: Wits and Writs, Rights and Wrongs (Appellate Practice Section)

I will be attending the one on January 24 myself.