The UCL Practitioner

Supreme Court takes up private attorney general fees case: Serrano v. Stefan Merli Plastering Co.

A new blog, At the Lectern, reports that on August 18, 2010, the Supreme Court granted review in a case addressing Code of Civil Procedure section 1021.5, the private attorney general attorneys' fees statute.  Serrano v. Stefan Merli Plastering, no. S183372.  This is the statement of the issue on review from the Supreme Court's website:

Is plaintiff eligible for an award of attorney fees under the private attorney general doctrine based on a successful challenge to a court reporter's service charges that established legal precedent?

The Court of Appeal (Second Appellate District, Division Three) answered that question in the negative on a 2-1 vote.  Serrano v. Stefan Merli Plastering Co., 184 Cal.App.4th 178 (Apr. 28, 2010). 

At the Lectern is taking a shot at being the SCOTUSblog of the California Supreme Court, and it's doing a great job so far. 

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. 

Registration open for State Bar's annual antitrust and UCL conference, Oct. 21, 2010

Registration is now open for the State Bar's 20th Annual Golden State Antitrust and Unfair Competition Law Institute & Antitrust Lawyer of the Year Award Dinner, which will take place on Thursday, October 21, 2010 at the Westin St. Francis Hotel in San Francisco.

This year, I am co-organizing the conference, along with Craig Corbitt of Zelle Hofmann.  The morning will feature panels of interest to both antitrust and UCL attorneys, and the afternoon will feature breakout sessions with more in-depth coverage of particular topics.  I encourage everyone who handles UCL cases to attend. 

The complete program schedule is available at this link.  These are the two afternoon UCL panels:

UCL Breakout #1 (2:15-3:45 p.m.) - Advanced Principles: UCL Standing and Class Certification

This panel will address standing and class certification under the UCL’s three prongs, with particular focus on the differences (if any) between UCL class action practice in state and federal courts.

• Daveed A. Schwartz, Moderator, Bullivant Houser Bailey PC
• David W. Kesselman, Blecher & Collins
• Monique Olivier, The Sturdevant Law Firm
• Roxane A. Polidora, Pillsbury Winthrop Shaw Pittman LLP

UCL Breakout #2 (4:00-5:15 p.m.) - Advanced Principles: UCL Remedies and Defenses

This panel will discuss the UCL’s restitution and injunctive relief remedies, the interplay between the two, including the impact of Clayworth v. Pfizer, and the continued development of defenses in UCL actions.

• H. Scott Leviant, Moderator, Spiro Moss LLP
• Dina E. Micheletti, Fazio | Micheletti LLP
• Heather A. Moser, Morrison & Foerster LLP
• Paul J. Riehle, Sedgwick, Detert, Moran & Arnold LLP
• Honorable Zaven V. Sinanian, Los Angeles County Superior Court

New Unfair Practices Act decision: Bay Guardian Co. v. New Times Media LLC

In Bay Guardian Co. v. New Times Media LLC, ___ Cal.App.4th ___ (Aug. 11, 2010), the Court of Appeal (First Appellate District, Division One) construed Business & Profession Code section 17043, which is part of the Unfair Practices Act (adjacent to the UCL).  Section 17043 reads:

It is unlawful for any person engaged in business within this State to sell any article or product at less than the cost thereof to such vendor, or to give away any article or product, for the purpose of injuring competitors or destroying competition.

(Emphasis added.) The Court of Appeal first addressed the statute's scienter requirement (which the UCL itself does not share), and explained:

The intent requirement imposed by section 17043 is an especially stringent one. “Section 17043 uses the word ‘purpose,’ not ‘intent,’ not ‘knowledge.’ ” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., supra, 20 Cal.4th 163, 174.) Therefore, the California Supreme Court has concluded “that to violate section 17043, a company must act with the purpose, i.e., the desire, of injuring competitors or destroying competition.” (Id. at pp. 174–175; see also Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 323 [70 Cal.Rptr. 849, 444 P.2d 481]; Fisherman’s Wharf Bay Cruise Corp. v. Superior Court, supra, 114 Cal.App.4th 309, 330.)

Slip op. at 16.  However, "section 17043 does not require an anticompetitive impact. '[A]n injurious effect is not an essential element of the violation. The violation is complete when sales below cost are made with the requisite intent and not within any of the exceptions.' (People v. Pay Less Drug Store (1944) 25 Cal.2d 108, 113–114 [153 P.2d 9].)" Id.

The main point of contention was over the defendant's asserted "recoupment defense," i.e., whether "'objectively reasonable probability of recouping' losses 'through later monopoly pricing' must be established by the plaintiff in a section 17043 action." Id. at 11. The Court of Appeal answered that question in the negative. Id. at 11-20. 

The rest of the opinion focuses on several claims of instructional error and other issues. 

Two new opinions on no-class-action arbitration clauses: Fisher v. DCH Temecula Imports LLC and Walnut Producers of California v. Diamond Foods, Inc.

The Court of Appeal has recently handed down two new decisions addressing arbitration clauses with class action bans. 

In the first, Fisher v. DCH Temecula Imports LLC, ___ Cal.App.4th ___ (Aug. 13, 2010), the Court of Appeal (Fourth Appellate District, Division Two) held that the CLRA's no-waiver provision (Civ. Code section 1751) and its class action provision (Civ. Code section 1781) trumped a class action ban in an arbitration clause:

[T]he clear language of the CLRA does not allow a consumer to waive the provisions of the CLRA in advance, including the right to bring a class action. Since the plain language of the statute provides that a consumer “may” bring a class action if there is damage to other consumers similarly situated, he or she cannot be asked to waive this class action right in advance.

Slip op. at 24.  This is an interesting argument that no appellate court had expressly adopted before.  The Court held the entire arbitration clause unenforceable.  Id. at 24-25.

In the second case, Walnut Producers of California v. Diamond Foods, Inc., ___ Cal.App.4th ___ (Aug. 16, 2010), the Court of Appeal (Third Appellate District) held that an arbitration clause with a class action ban in a commercial contract was not unconscionable.  Slip op. at 12-25.  The Court also held that an order striking class allegations from a complaint is appealable and reviewed de novo.  Id. at 5-8.

The Complex Litigator also has a short post on these two decisions.

New CLRA and UCL "unlawful" prong decision: Vitug v. Alameda Point Storage, Inc.

In Vitug v. Alameda Point Storage, Inc., ___ Cal.App.4th ___ (Aug. 10, 2010), the Court of Appeal affirmed a judgment entered following a demurrer to CLRA and UCL "unlawful" prong claims predicated on alleged violations of the California Self-Service Storage Facility Act (Bus. & Prof. Code §§ 21700 et seq.).

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.]

BASF program today: Strategies for Growing Your Practice

It's not too late to attend today's seminar, "Strategies for Growing Your Practice," sponsored by the Bar Association of San Francisco's Solo and Small Firm Committee.  The program runs from noon to 1:30 at the BASF Conference Center, 301 Battery Street, Third Floor.  To attend in person, please arrive between 11:30 and noon and register at the door.  The program will also be webcast.  To participate by web, click here and register as soon as possible.

I will be speaking on law blogging, including practical tips on starting a blog, finding your niche, building an audience, and establishing your reputation.  Other speakers will cover marketing for the small law firm; alternative billing arrangements; and business development for new law firms.  I hope to see some of you there at noon. 

Supreme Court to hand down two opinions of interest today: Clark v. Superior Court and Lu v. Hawaiian Gardens

According to Friday's notice of forthcoming filings, two opinions of interest will be handed down this morning at 10:00 a.m.:

• Clark v. Superior Court (Nat'l Western Life Ins.), ___ Cal.4th ___ (Aug. 10, 2010) (no. S174229)
  
• Lu v. Hawaiian Gardens Casino, Inc., ___ Cal.4th ___ (Aug. 10, 2010) (no. S171442)

Clark involves whether the enhanced remedies of Civil Code section 3345 (applicable in certain cases brought by senior citizens and disabled persons) are recoverable in a UCL "unlawful" prong case predicated on violation of that statute.  Here's my original post on the case. 

Lu involves whether Labor Code section 351 creates a private right of action.  The case also included a UCL "unlawful" prong cause of action, my original discussion of which is here. 

"Supremes Hand Win to Workers with Google Age Bias Ruling"

Yesterday's Recorder had this article by Kate Moser summarizing the Supreme Court's decision yesterday in Reid v. Google, Inc., ___ Cal.4th ___ (Aug. 5, 2010).   An exerpt from the article:

In a unanimous opinion published today, the court held that applying the federal "stray remarks" doctrine in employment discrimination cases — which deems statements made outside of the company's decision-making process to be irrelevant — might lead to an unfair result.

....

The court also held that a trial judge's failure to rule on evidentiary objections at a summary judgment hearing makes for an implied overruling, preserving them for appellate review. That's how San Jose's Sixth District Court of Appeal treated Google's objections in the immediate case, reversing a judgment in the company's favor.

This was my post on the UCL aspects of the Court of Appeal's decision in October 2007.  The Supreme Court's opinion does not appear to address the UCL.

OFF-TOPIC BREAKING NEWS: Judge Walker strikes down Prop. 8

In case you haven't seen it, here is Judge Walker's 138-page order today finding Proposition 8 unconstitutional and enjoining its enforcement.  I've updated this off-topic post on the same subject.

Supreme Court to hand down summary judgment opinion tomorrow: Reid v. Google, Inc.

The Supreme Court's notice of forthcoming filings indicates that it will be handing down its opinion tomorrow morning in Reed v. Google, Inc., no. S158965. This case was argued on May 26, 2010 and will address summary judgment motion standards. 

This is the Court's statement of issues on review:

(1) Should California law recognize the “stray remarks” doctrine, which permits the trial court in ruling on a motion for summary judgment to disregard isolated discriminatory remarks or comments unrelated to the decision-making process as insufficient to establish discrimination? (2) Are evidentiary objections not expressly ruled on at the time of decision on a summary judgment motion preserved for appeal?

When the opinion is posted online tomorrow, it should be available at this link:

• Reed v. Google, Inc., ___ Cal.4th ___ (Aug. 5, 2010)

Alameda County Superior Court accepts electronic filing of CMC statements as of 06/01/10

This is not directly related to UCL or class action practice, but for those of us with cases in Alameda County, it could be very useful.  As of June 1, 2010, the Alameda County Superior Court permits electronic filing of CMC statements in civil cases.  More information, and instructions, are available at this link.  There is no fee for this service.

I'm sure many of us are looking forward to the day when all state courts accept electronic filings as easily as the federal courts do, but this is a great start. 

Upcoming BASF program: "Strategies for Growing Your Practice"

Next Tuesday, August 10, 2010, the Solo & Small Firm Committee of the Bar Association of San Francisco will present "Strategies for Growing Your Practice."  I will be a speaker and will talk about legal weblogs as a business development tool, including practical tips on how to start a law blog, find a niche, and build an audience. 

My c0-panelists will be Michael Sweet of the McNutt Law Group LLP, Raj Jha of Smithline Jha LLP, Sarah Van Voorhis of Van Voorhis & Sosna LLP and Kevin Rose of Reuben & Junius, LLP. 

Registration starts at 11:30 a.m. and the program runs from 12:00-1:30 p.m. at the BASF Conference Center, 301 Battery Street, 3rd Floor, San Francisco. The cost is $30 for government and non-profit attorneys; $30 for students; $40 for Committee members; $50 for BASF members; and $65 for non-members.  No MCLE credit is provided for this program. 

New Ninth Circuit UCL opinion: Rubio v. Capital One Bank

In Rubio v. Capital One Bank, ___ F.3d ___ (9th Cir. Jul. 21, 2010), the Ninth Circuit addressed UCL standing and held that loss of a line of credit constitutes a loss of money or property sufficient to confer Prop. 64 standing.  Slip op. at 10400-01. 

The court also noted the split in authority on the definition of "unfair," but found it unnecessary to choose between the different definitions because the defendant's conduct was unfair under both.  Id. at 10402.

Finally, the court applied the pre-Prop. 64 formulation of the "fraudulent" prong (conduct likely to deceive a reasonable consumer).  Id.  at 10402 (citing Tobacco II and Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008)).