The UCL Practitioner

Oral argument preview: Dukes v. Wal-Mart

This morning at 10:00 a.m. Eastern, the U.S. Supreme Court will hear oral argument in Wal-Mart Stores, Inc. v. Dukes, no. 10-277.

Transcripts of U.S. Supreme Court arguments are generally available within hours after the argument takes place.  When it is posted online, the Dukes transcript should be available at this link. 

Wal-Mart's reply brief was filed just twelve days ago, on March 17.  Links to the other briefs are available at this blog post. 

Philip Morris v. Jackson relisted again

The U.S. Supreme Court has apparently relisted Philip Morris USA, Inc. v. Jackson, no. 10-735, for a second time.  The case was scheduled for conference last Friday, March 18, but it is not mentioned in this morning's order list. 

See this blog post for more on Jackson.

UCL case set for argument in April: Sullivan v. Oracle Corp.

The Supreme Court has released its oral argument calendar for April.  The following UCL case will be heard on Wednesday, April 6, 2011 at 10:00 a.m. in Los Angeles: 

Sullivan v. Oracle Corp., no. S170577 (questions accepted 04/22/09)

• Issues: (1) First, does the California Labor Code apply to overtime work performed in California for a California-based employer by out-of-state plaintiffs in the circumstances of this case, such that overtime pay is required for work in excess of eight hours per day or in excess of forty hours per week? (2) Second, does § 17200 apply to the overtime work described in question one? (3) Third, does § 17200 apply to overtime work performed outside California for a California-based employer by out-of-state plaintiffs in the circumstances of this case if the employer failed to comply with the overtime provisions of the FLSA?
• Ninth Circuit Opinion:  Sullivan v. Oracle Corp., 547 F.3d 1177 (9th Cir. 2008) (withdrawn) (see this blog post)

Presiding Justice Roger W. Boren of the Second Appellate District, Division Two, has been assigned to sit pro tem in place of Justice Moreno, who is now retired. 

I probably will not make it down to L.A. for this argument, so I'm seeking a volunteer to attend for me and provide a report.  Please drop me a line at [email protected] if you can do this.  Your report can be with or without attribution, your choice.  Thanks! 

U.S. Supreme Court relists Philip Morris v. Jackson

The Jackson case has been relisted for conference on Friday, March 18, 2011.  Philip Morris USA, Inc. v. Jackson, no. 10-735.  Unless the case is relisted again, the vote will be announced on the following Monday, March 21. 

This is what SCOTUSblog has to say about relisting:

If a case has been relisted once, it generally means that the Court is paying close attention to the case, and the chances of a grant are higher than for an average case.  But once a case has been relisted more than twice, it is generally no longer a likely candidate for plenary review, and is more likely to result in a summary reversal or a dissent from the denial of cert.

Dukes v. Wal-Mart was relisted once before review was granted.  Concepcion was not relisted at all.

Kwikset and Tobacco II footnotes

I'm sure everyone is well aware of famous footnote 17 in Tobacco II:

We emphasize that our discussion of causation in this case is limited to such cases where, as here, a UCL action is based on a fraud theory involving false advertising and misrepresentations to consumers. The UCL defines "unfair competition" as "includ[ing] any unlawful, unfair or fraudulent business act or practice . . . ." (§ 17200.) There are doubtless many types of unfair business practices in which the concept of reliance, as discussed here, has no application.

In re Tobacco II Cases, 46 Cal.4th 298, 325 n.17 (2009) (emphasis added).  The example I like to use of a UCL case in which "the concept of reliance ... has no application" is an "unlawful" prong case predicated on a Labor Code violation.  Either the defendant calculated the overtime rate correctly or it did not.  The class members' reliance, or lack thereof, is irrelevant to the named plaintiff's standing (and to the violation). 

Kwikset has a similar footnote:

While plaintiffs also allege unlawful conduct, in that Kwikset violated Business and Professions Code sections 17500 and 17533.7 and Civil Code section 1770, subdivision (a)(4), these statutory provisions simply codify prohibitions against certain specific types of misrepresentations. The theory of the case is that Kwikset engaged in misrepresentations and deceived consumers. Thus, our remarks in In re Tobacco II Cases, supra, 46 Cal.4th 298, concerning the cause requirement in deception cases, are apposite. (See Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1363 [“[T]he reasoning of Tobacco II [concerning the cause requirement] applies equally to the ‘unlawful’ prong of the UCL when, as here, the predicate unlawfulness is misrepresentation and deception.”]; Hale v. Sharp Healthcare, supra, 183 Cal.App.4th at p. 1385 [In re Tobacco II Cases’ discussion of causation applies equally to unlawful UCL claims based on misrepresentation].) As in In re Tobacco II Cases, at page 325, footnote 17, we need express no views concerning the proper construction of the cause requirement in other types of cases.

Kwikset Corp. v. Superior Court (Benson), 51 Cal.4th 310, 2011 WL 240278, *8 n.9 (2011) (emphasis added).  The opinion's approval of Durell and Hale on this point is interesting, but I think my Labor Code example remains apt. 

Report on Third Circuit Sullivan argument

Barry Barnett, who either attended the Third Circuit's en banc oral argument on Feb. 23 or listened to the recording (large .wma file), provides a detailed report on his blog, Blawgletter. 

This case involves a nationwide settlement of price-fixing claims against the diamond industry.  Sullivan v. DB Investments, Inc., no. 08-2784 (3d Cir.).  The original three-judge panel reversed the final approval order.  Barry prognosticates that the en banc panel will affirm the final approval order, but may remand for some modifications to the plan of allocation. 

"Consumer Arbitrations at Risk"

The January 2011 issue of California Lawyer had a very interesting article by Pamela McLean on the Concepcion case, still pending before the U.S. Supreme Court.  The article begins:

It is no accident that AT&T Mobility's ban on class actions in arbitration caught the eye of the U.S. Supreme Court, which selected it from a runway parade of other challenges to mandatory arbitration clauses that include class waivers. The phone company had groomed its consumer contract for years, anticipating a model test case. It got one in AT&T Mobility LLC v. Concepcion, No. 09-893, argued before the Court in November.

....

In a highly unusual step two years ago, AT&T filed an amicus brief with the U.S. Supreme Court in an appeal by T-Mobile USA, Inc., whose own arbitration clause had been found unconscionable (T-Mobile USA, Inc. v. Laster, 407 F. Supp. 2d 1181 (S.D. Cal. 2005) cert. denied, 553 U.S. 1064 (2008)). In its brief for respondents, AT&T asked the Court to deny certiorari, suggesting that its arbitration clause was a "realistic and effective dispute resolution vehicle." When the Court denied cert, it opened the door for AT&T to submit Concepcion the following year.

U.S. Supreme Court to announce vote in Philip Morris v. Jackson today

Today, the U.S. Supreme Court is expected to announce whether cert. will be granted in Philip Morris USA, Inc. v. Jackson, no. 10-735. This is the case in which Justice Scalia stayed enforcement of a $240 million class-action judgment against the tobacco industry pending disposition of the cert. petition.

According to the docket, the case was considered in conference last Friday, March 4, which means that the outcome should be released today, unless the case is relisted for a later conference.  The Supreme Court's order list for March 7 should be available at this link at approximately 10:00 a.m. Eastern.

This is the question presented in Jackson as stated in the cert. petition: 

Whether the Due Process Clause prevents state courts from employing the class-action device to eliminate fundamental substantive and procedural protections that would otherwise apply to adjudications of class members’ individual claims.

UPDATE:  The Jackson case was not on the order list this morning, which means that the case has been relisted for a later conference.  The docket has not yet been updated to reflect the relisting.

UPDATE (3/10/11):  The Jackson case has been relisted for the conference of Friday, March 18, 2011.  Unless the case is relisted again, the vote will be announced on the following Monday, March 21.  This is what SCOTUSblog has to say about relisting:

If a case has been relisted once, it generally means that the Court is paying close attention to the case, and the chances of a grant are higher than for an average case.  But once a case has been relisted more than twice, it is generally no longer a likely candidate for plenary review, and is more likely to result in a summary reversal or a dissent from the denial of cert.

"California’s Unfair Competition Law and the No-Injury Class Action"

That is the title of my panel at the ABA Section of Antitrust Law's 59th Annual Spring Meeting, which will take place on March 30-April 1, 2011 at the JW Mariott in Washington, D.C. 

Here's the detailed panel description:

California’s Unfair Competition Law may make it easier for plaintiffs to maintain false advertising and other consumer class actions without demonstrating reliance or injury to absent class members. What are the implications of Tobacco II and its progeny, as well other recent trends regarding class certification and available monetary relief?

Session Chair and Moderator:

• William F. Tarantino, Morrison & Foerster LLP, San Francisco, CA

Speakers:

• Angel Garganta, Arnold & Porter LLP, San Francisco, CA
• Kimberly Kralowec, The Kralowec Law Group, San Francisco, CA
• The Honorable Richard Kramer, Judge, San Francisco Superior Court Complex Litigation Department, San Francisco, CA

If our planning calls are any indication, this is going to be a very lively panel indeed.  Of course we'll also be talking about Kwikset.  I hope to see some of you, especially East Coast friends, at the Spring Meeting in a few weeks.  

Dukes v. Wal-Mart merits briefs available online

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

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

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

Milestone

Yesterday marked the one-year anniversary of the launch of my firm, The Kralowec Law Group. The firm is doing great and the whole process has been incredibly rewarding. Thanks to all my friends and colleagues who have been so supportive over the past year! 

Recording of Third Circuit en banc argument in Sullivan available online

The Third Circuit, sitting en banc, heard oral argument last Tuesday, February 23, 2011, in Sullivan v. DB Investments, Inc., no. 08-2784.  The audio recording of the argument is available at this link (large .wma file). 

This is the case in which the original three-judge panel reversed the district court's order granting final approval of a nationwide class action settlement.  The case involves antitrust price-fixing claims against the diamond industry.  This is my original blog post on that decision. 

A few months after rehearing was granted, the en banc panel requested further briefing on a long and interesting list of issues.

The objector is represented on appeal by Howard Bashman, author of How Appealing.  Professor Samuel Issacharoff of New York University School of Law argued for the settlement class.