The UCL Practitioner

Golden State Antitrust and UCL Institute - thanks for coming!

Thanks to everyone who attended the State Bar's Antitrust and Unfair Competition Law Institute last Thursday.  All the panels that I attended were really great. I missed the first breakout panel on the intersection between UCL and high tech, but I heard it was a particularly interesting program, and of course the latest developments panel with Will Stern, Pam Parker, Susan Kupfer, and Judge Kramer was a top-notch panel essential for lawyers handling UCL cases. 

If you were not able to attend, the State Bar has made the recording available for purchase through Versa-Tape.  If you click here, then choose "Antitrust Law" in the pulldown menu and hit "go," the program is listed at the bottom of the page.  The cost is $190 for the whole day, including both sets of breakout panels as well as the keynote luncheon address by Deputy Assistant Attorney General Joe Wayland of the Department of Justice (8.5 hours of MCLE credits). 

Supplemental briefs filed in Brinker

In Brinker Restaurant Corp. v. Superior Court, no. S166350, which is scheduled for argument on November 8th, the parties have both filed supplemental briefs addressing Dukes:

• Supplemental Brief on Wal-Mart Stores, Inc. v. Dukes (filed by Brinker 07/26/11)
• Supplemental Brief on Wal-Mart Stores, Inc. v. Dukes (filed by Real Parties 10/24/11)

A full set of the briefs is available on my Brinker page.  The Supreme Court has posted copies of selected briefs in all the cases on the November argument calendar. 

[Disclosure: I am co-counsel for the workers in this case.] 

Arbitration clause with class action ban struck down post-Concepcion: Sanchez v. Valencia Holding Co.

In Sanchez v. Valencia Holding Co.,  ___ Cal.App.4th ___ (Oct. 24, 2011) the Court of Appeal (Second Appellate District, Division One) affirmed an order striking down an arbitration clause (which happened to include a class action ban) as unconscionable under Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal.4th 83 (2000), notwithstanding AT&T Mobility v. Concepcion. 

Here is the Court's discussion of Concepcion:

Before applying Armendariz to the present case, we note that Concepcion, supra, 131 S.Ct. 1740, does not preclude the application of the Armendariz principles to determine whether an arbitration provision is unconscionable.  Concepcion disapproved the “Discover Bank rule,” stating:  “In Discover Bank, the California Supreme Court applied [the doctrine of unconscionability] to class-action waivers in arbitration agreements and held as follows:  [¶]  ‘[W]hen the [class action] waiver is found in a consumer contract of adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of damages, and when it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money, then . . . the waiver becomes in practice the exemption of the party “from responsibility for [its] own fraud, or willful injury to the person or property of another.”  Under these circumstances, such waivers are unconscionable under California law and should not be enforced.’”  (Concepcion, at p. 1746, italics added.)  With the exception of the Discover Bank rule, the Court acknowledged that the doctrine of unconscionability is still a basis for invalidating arbitration provisions.  (Concepcion, at pp. 1746, 1747; see Kanbar v. O’Melveny & Myers (N.D.Cal. 2011) 2011 U.S. Dist. Lexis 79447, pp. *15–*16, *23–*24, 2011 WL 2940690, pp. *6, *9.)  Thus, Concepcion is inapplicable where, as here, we are not concerned with a class action waiver or a judicially imposed procedure that conflicts with the arbitration provision and the purposes of the Federal Arbitration Act (FAA) (9 U.S.C. §§ 1–16).  (See Concepcion, at pp. 1748–1753.)

Slip op. at 11-12.  The Court was "not concerned with [the] class action waiver" because it found the whole arbitration clause unconscionable for other reasons. 

More discussion of the case can be found at The Complex Litigator and the Bailey Class Action Daily.

New class certification decision: Marler v. E.M. Johansing, LLC

In Marler v. E.M. Johansing, LLC, ___ Cal.App.4th ___ (Oct. 19, 2011), the Court of Appeal (Second Appellate District, Division Six) reversed an order denying class certification of breach of contract and fraud claims. 

The opinion includes a lengthier-than-usual discussion of the ascertainability prong.  It also has an interesting discussion of presumed reliance under Vasquez. 

Supreme Court denies review in arbitration case: Brown v. Ralphs Grocery Co.

Last week, the Supreme Court denied review in Brown v. Ralphs Grocery Co., no. S195850.  Justice Baxter voted to grant review.

That is the case in which the Court of Appeal affirmed an order striking down an arbitration clause in a representative PAGA action for Labor Code violations, notwithstanding Concepcion.  Brown v. Ralphs Grocery Co., 197 Cal.App.4th 489 (2011) (Second Appellate District, Division Five).  My original post on the case is here.

It is certainly possible that the defendant may seek review in the U.S. Supreme Court. 

Golden State Antitrust and Unfair Competition Law Institute this Thursday, October 27 in San Francisco

Please register for the State Bar's 21st Annual Golden State Antitrust and Unfair Competition Law Institute, which will take place this Thursday, October 27, 2011 at the Westin St. Francis Hotel in San Francisco.  I will be attending myself, and I hope to see many of you there.  Here is the link to register.

This year's Institute will feature several panels of particular interest to attorneys handling UCL cases in state and federal court.  I am particularly looking forward to our special plenary panel on the impact of the U.S. Supreme Court's class-action-related decisions last Term, including Dukes, Concepcion, and Smith v. Bayer.  Judge Susan Illston, Elizabeth Cabraser, and our other distinguished panelists will focus on these decisions' impact on UCL and antitrust cases in particular. 

We will also have two great breakout panels on the UCL.  The first will focus on the UCL's operation in the world of the internet and high-tech, featuring Colin Stretch (in-house counsel at Facebook), Professor Eric Goldman (director of the high-tech institute at Santa Clara University School of Law), Jill Manning of Steyer Lowenthal, and Ashlie Beringer of Gibson Dunn & Crutcher as moderator.  The second panel will track the latest UCL developments, with Judge Richard A. Kramer, Will Stern (author of the Rutter Group 17200 practice guide), Pam Parker (plaintiffs' counsel in Kwikset) and Susan Kupfer of Glancy Binkow as moderator. 

Here is the complete program schedule:

REGISTRATION AND CONTINENTAL BREAKFAST, 8:00 a.m. - 9:00 a.m.

WELCOME REMARKS, 9:00 a.m. – 9:15 a.m.

• Kimberly A. Kralowec – Section Vice Chair, The Kralowec Law Group
• Daveed A. Schwartz – Section Vice Chair, Locke Lord Bissell & Liddell LLP

PLENARY SESSION #1, 9:15 a.m. – 10:45 a.m.

Recent Developments in Antitrust and Unfair Competition Law

This popular panel returns once again this year.  Our dynamic speakers will provide an overview of recent California and federal developments in antitrust and unfair competition law.

• Professor Thomas A. Papageorge, University of San Diego School of Law, Special Prosecutor, San Diego County District Attorney’s Office
• Thomas Greene, Executive Director, Financial Crisis Inquiry Commission
• Professor Jesse W. Markham, University of San Francisco School of Law

PLENARY SESSION #2, 11:00 a.m. – 12:30 p.m.

Landmark Class Action Decisions of 2011—Their Impact in Antitrust and UCL Litigation

The panel will break down and analyze the U.S. Supreme Court’s milestone class action decisions of 2011—AT&T Mobility LLC v. Concepcion, Smith v. Bayer Corp., and Wal-Mart Stores, Inc. v. Dukes—with a special focus on their impact on antitrust and  UCL litigation in California and across the nation.  The panel will consider the reasons for the Supreme Court’s heightened interest in class action cases, the continued vitality of notable past Supreme Court decisions such as Eisen v. Carlisle & Jacquelin, and where these new opinions will lead us.

• Albert J. Boro, Jr., Moderator, General Counsel, SoloPower, Inc.
• Hon. Susan Illston, Judge, United States District Court, Northern District of California
• Aton Arbisser, Kaye Scholer LLP
• Elizabeth J. Cabraser, Lieff Cabraser Heimann & Bernstein, LLP
• Tracy R. Kirkham, Cooper & Kirkham, P.C.
• Donn P. Pickett, Bingham McCutchen LLP

 GOLDEN STATE INSTUTE LUNCHEON, 12:30 p.m. – 2:00 p.m.

Luncheon Speaker:  We are honored to have Joseph F. Wayland, Deputy Assistant Attorney General for Civil Enforcement, Antitrust Division, U.S. Department of Justice, speak to us about recent civil enforcement activity. 

CONCURRENT PANELS (CHOOSE ONE)

ANTITRUST BREAKOUT #1, 2:15 p.m. – 3:45 p.m.

The Law of Pricing, Including Resale Price Maintenance in California After Leegin

Participants in twenty-first-century commerce face many price-related issues, including bundling, below cost pricing, price discrimination, and resale price maintenance.  This panel will use practical examples and hypotheticals to explain legal principles and address some of the more challenging nuances faced by practitioners. 

• Elaine F. Foreman, Moderator, Senior Director of Legal Services, Cisco Systems, Inc.
• Jonathan M. Eisenberg, Deputy Attorney General, California Department of Justice
• Penelope A. Preovolos, Morrison & Foerster LLP
• Dr. Lawrence Wu, Senior Vice President, NERA Economic Consulting
• Judith A. Zahid, Zelle Hofmann Voelbel & Mason LLP

 UCL BREAKOUT #1, 2:15 p.m. – 3:45 p.m.

The UCL, FAL, and CLRA "Go Viral":  Facebook, Google, Apple, Yahoo!, Zynga, and Other High-Tech Cases

California is the undisputed epicenter of a critical mass of social networking sites, search engine companies, and other high-tech corporations, many of whom have been or may become the target of Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act class actions in federal and state courts.  This panel will discuss key issues, strategic considerations, and cutting-edge trends in the context of such litigation. 

• Ashlie Beringer, Moderator, Gibson, Dunn & Crutcher LLP
• Colin Stretch, Deputy General Counsel, Facebook, Inc.
• Eric Goldman, Associate Professor and Director of the High Tech Law Institute, Santa Clara University School of Law 
• Jill Manning, Steyer Lowenthal Boodrookas Alvarez & Smith LLP

CONCURRENT PANELS (CHOOSE ONE)

ANTITRUST BREAKOUT #2, 4:00 p.m. – 5:15 p.m.

Trial Complexities in Antitrust Cases following Clayworth:  Competing Views of Different Plaintiffs’ Groups and Defendants

This panel will discuss strategic and procedural complexities and opportunities when antitrust claims brought by a class of direct purchasers, by a class of indirect purchasers, direct action plaintiffs (i.e., opt outs) and/or by State Attorneys General are on the brink of trial and the parties and the court are wrestling with how to structure the trial or series of trials.

• Michael F. Tubach, Moderator, O’Melveny & Myers LLP
• Martha Boersch, Jones Day
• Craig C. Corbitt, Zelle Hofmann Voelbel & Mason LLP
• Steven N. Williams, Cotchett, Pitre & McCarthy, LLP

UCL BREAKOUT #2, 4:00 p.m. – 5:15 p.m.

“Labels Matter”: Emerging Trends in UCL, FAL, and CLRA False Advertising Litigation

This panel will focus on the impact of recent California Supreme Court and appellate court decisions – including Kwikset, In re Tobacco II, Daugherty v. American Honda Co., Pfizer Inc. v. Superior Court -- on false and misleading advertising class action litigation brought under the Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act.  

• Susan G. Kupfer, Moderator, Glancy Binkow & Goldberg LLP
• Hon. Richard A. Kramer, Judge, Complex Litigation Department, San Francisco Superior Court
• Pamela M. Parker, Robbins Geller Rudman & Dowd LLP
• William L. Stern, Morrison & Foerster LLP

HOSTED COCKTAIL RECEPTION, 5:30-7:00 p.m.

ANTITRUST LAWYER OF THE YEAR AWARD DINNER AND PROGRAM, 7:00-9:30 p.m.

Upcoming MCLE program: Complex Courts Symposium

The Litigation Section of the Bar Association of San Francisco and the Association of Business Trial Lawyers are putting on a great event on November 15, 2011 in San Francisco.  The program, Complex Courts Symposium 2011, will feature no fewer than 13 complex litigation department judges from Alameda, Contra Costa, Los Angeles, Orange, San Francisco, San Mateo, and Santa Clara Counties. 

Here is the complete program schedule:

Agenda

3:00 p.m. - 3:30 p.m. Registration

3:30 - 3:45 p.m.
OPENING SESSION

A report on the state of the complex courts
Honorable Steven A. Brick, Alameda County Superior Court

3:45 - 5:00 p.m.
FIRST GROUP SESSIONS • Please choose one

Track One: Innovations in the Complex Courts
•  Alternative approaches to litigating complex cases in 2011 and beyond
•  Administrative and facilities support for complex cases: an update
•  Bifurcation and mini trials

Lawyer Moderators:
Ben Riley • Bartko, Zankel, Tarrant & Miller
Ragesh Tangri • Durie Tangri

Complex Judge Panelists:
Judge Gail Andler • Orange County
Judge Steven A. Brick • Alameda County
Judge Carl West • Los Angeles County

OR

Track Two: Discovery in the Complex Courts
•  How e-discovery is different in complex courts
•  The value of judicially managed discovery
•  International discovery
•  Phasing deposition discovery
•  Social media sources of information

Lawyer Moderators:
Danny Chou • Office of the San Francisco City Attorney
Raymond C. Marshall • Bingham McCutchen, LLP

Complex Judge Panelists:
Judge Barry P. Goode • Contra Costa County
Judge William F. Highberger • Los Angeles County
Judge Richard Kramer • San Francisco County
Judge Marie Weiner • San Mateo County

5:00 - 5:15 p.m. Break

5:15-6:30 p.m.
SECOND GROUP SESSIONS • Please choose one

Track One: Resolving Cases in the Complex Courts
•  When are complex cases ripe for mediation
•  Why settlment of class actions is different
•  Tools complex judges use to further potential settelment
•  Relationship between ADR providers and the court

Lawyer Moderators:
Khaldoun Baghdadi • Walkup, Melodia, Kelly & Schoenberger
Patricia Gillette • Orrick Herrington & Sutcliffe, LLP

Complex Judge Panelists:
Judge Ronald L. Bauer • Orange County
Judge James P. Kleinberg • Santa Clara County
Judge Nancy Wieben Stock • Orange County

OR

Track Two: Multi-Jurisdiction Complex Cases
•  Why be in the complex state courts
•  Class actions and CAFA
•  Intersection of Delaware Chancery derivative suits and California complex cases
•  How bankruptcies affect complex cases
•  JCCP and the complex departments
•  Coordination with MDL and other state cases

Lawyer Moderators:
Kelly Dermody • Lieff Cabraser Heimann & Bernstein, LLP
Peter Larson • Jones Day

Complex Judge Panelists:
Judge Emilie Elias • Los Angeles County
Judge Robert Freedman • Alameda County
Judge Anthony Mohr • Los Angeles County

6:30 p.m. - Cocktail Reception

Location

Administrative Office of the Courts
455 Golden Gate Avenue
Auditorium
San Francisco, CA

U.S. Supreme Court issues "grant and transfer" order in Wang v. Chinese Daily News

On October 3, 2011, the U.S. Supreme Court granted cert. in Chinese Daily News v. Wang, no. 10-1202, and directed the Ninth Circuit to reconsider its judgment in light of Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011). 

As you may recall, in Wang, the Ninth Circuit affirmed class certification (and the ensuing judgment in favor of the class) in a case involving wage and hour claims, partly in reliance on the Ninth Circuit's en banc Dukes opinion.  Wang v. Chinese Daily News, Inc., 623 F.3d 743 (9th Cir. 2010).

This is the functional equivalent, in California Supreme Court parlance, of a "grant and transfer" order.  It will be quite interesting to see what the Ninth Circuit's new opinion looks like in a few months. 

Incidentally, we are still waiting for the Ninth Circuit to hand down its eagerly-anticipated decision in Mazza v. American Honda Motor Co., no. 09-55376 (9th Cir.).  In that case, the panel sua sponte ordered further briefing on Dukes back in June. 

New class certification decision: American Honda Motor Co. v. Superior Court (Lee)

In American Honda Motor Co. v. Superior Court (Lee), ___ Cal.App.4th ___ (Sept. 29, 2011; pub. ord. Oct. 18, 2011), the Court of Appeal (Second Appellate District, Division Eight) reversed an order granting class certification of breach of warranty and UCL claims.  The action was filed on behalf of a putative class of owners of Honda Acuras with a defective mechanism for shifting the transmission into third gear.   Slip op. at 2-3.

The existence of a product warranty was critical for the panel:

Hicks and Wolin are in agreement that proof of current manifestation of the defect is not necessary in a breach of warranty class action.  However, like the court in Hicks, we do not find that to be the end of the inquiry.  Just because the law does not require a current malfunction to prove breach of warranty does not mean it should not require proof of any malfunction, present or future.  A breach of warranty cannot result if the product operates as it was intended to and does not malfunction during its useful life.  (Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 831-832.)  Accordingly, Hicks extends its holding to include the requirement that the party moving for class certification must provide substantial evidence of a defect that is substantially certain to result in malfunction during the useful life of the product.  This is an issue that must be considered not only to determine the merits of a plaintiff’s claim, but also in a class certification motion.

Because the trial court relied on Wolin, which does not require proof of a common defect that is substantially certain to manifest in a future malfunction, we conclude the trial court based its ruling on an erroneous legal assumption and that alone is sufficient grounds for reversal of the class certification order as to the breach of warranty claims.  [CIitations.]

Slip op. at 9-10 (hyperlinks added).  That's a common misreading of Daugherty in particular, but also Hicks, and it's one that unfortunately seems to be creeping into UCL jurisprudence.  The court reversed the order granting certification of the UCL claim with little further analysis.  The discussion of that claim ends with this: 

We also note that the class certified by the trial court—all individuals who leased or purchased the affected Acura models in California without the redesigned third gear—may be overbroad since it appears undisputed that many class members were never exposed to the alleged misrepresentations because they never contacted Honda or its dealers about a third gear problem.  (Pfizer Inc. v. Superior Court (2010) 182 Cal.App.4th 622, 631-632.)

Slip op. at 15.   This conclusion misses the point in a couple of ways.  First, under Tobacco II, the only thing that must be proven at trial in a UCL case is that the defendant engaged in conduct likely to deceive a reasonable consumer.  Whether the consumers suffered harm is wholly irrelevant.  Put another way, they don't need to have contacted the manufacturer!  Second, in this case, the gravamen of the claim was Honda's uniform failure to disclose the defect.  Id. at 14.  Even assuming that uniform exposure and injury are required, both can be established here with common proof.  All putative class members were uniformly exposed to this omission.  Whether the omission is "material" is judged by a reasonable consumer standard.  If it is material, and the class member paid money to purchase the product, classwide reliance and causation are both presumed.  What is more, given the fact that this is an omissions case, it's no wonder most of the class members never contacted the manufacturer or the dealer.  They were deceived and didn't know about the problem. 

Judge Wiley got this one right. 

San Francisco networking reception cancelled

If you were planning to attend the ABA Section of Antitrust Law, Private Advertising Law Committee reception in San Francisco on Wednesday, please note that the San Francisco event has unfortunately been cancelled.  The Los Angeles reception is still going forward. 

Wal-Mart Stores, Inc. v. Dukes on remand to the Ninth Circuit

Most of you have probably already heard that the Ninth Circuit has issued a one-line remand order in the Dukes case.  The order reads:

We remand to the district court to comply with the United States Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). 

Dukes v. Wal-Mart Stores, Inc., ___ F.3d ___, 2011 WL 4433591 (9th Cir. Sept. 23, 2011).  

Oral argument in Harris v. Superior Court (Liberty Mutual Insurance)

Last week, I attended the oral argument in Harris v. Superior Court (Liberty Mutual Insurance), no. S156555.  In Harris, the Court of Appeal reversed the trial court's order decertifying the plaintiff insurance adjusters' overtime claims, which were predicated on the adjusters' alleged misclassification as exempt from the overtime laws. 

I did not think that any of the justices' questions were particularly illuminating.  The class certification issues were not really discussed at all.  Justice Liu's scholarly bent was evident from his questions. 

Laura Ernde of the Daily Journal had a different take.  Her headline described the justices as "skeptical of overtime for insurance adjusters."  Either way, we'll know in 90 days.

More on the Ninth Circuit's recent CAFA decision: Washington v. Chimei Innolux Corp.

A new blog sponsored by Thompson Reuters called On The Case has an interesting post on the ramifications of the Ninth Circuit's CAFA decision handed down last week, Washington v. Chimei Innolux Corp., ___ F.3d ___ (Oct. 3, 2011). 

Here's an excerpt:

What's important about the ruling isn't just that the Washington and California LCD [antitrust] cases will remain in state court. The Ninth Circuit panel's decision endorses the power of state AGs to bring their own cases even when private class actions cover the exact same conduct. AGs, in other words, can pre-empt private cases--which is just what plaintiffs lawyers in the municipal bond derivatives class action before Manhattan federal judge Victor Marrero assert has happened in their case. Many of the muni bond derivative defendants have reached settlements with state AGs, rather than settling in the class action. The plaintiffs lawyers assert that it's an easy out for defendants, whose regulatory settlements aren't subject to a federal judge's oversight, as real class actions are.

My post mentioned the ramifications for PAGA actions, but these further ramifications are worth considering as well if you are handling a case in which the state enforcement agencies have expressed interest. 

Networking receptions for consumer protection lawyers next week in San Francisco and Los Angeles

Next Wednesday, October 19, 2011, the ABA Section of Antitrust Law will be hosting simultaneous networking receptions for consumer protection lawyers, including government lawyers, in San Francisco and Los Angeles.  All are welcome!  More information is available on the flyer:

Complimentary San Francisco and Los Angeles Networking Receptions for Consumer Protection Law Practitioners and Regulators

It’s Not Just CLE You Need; You Need CLC

Continuing Lawyer Contact with other advertising law practitioners, regulators, and those with related interests. Come and be an active part of the vibrant and growing ABA Antitrust Section Advertising Law Community! Join your peers at gatherings in support of the Private Advertising Litigation, Consumer Protection, and Privacy & Information Security Committees. Hear about our plans for the year and how you can take part. This is the third of our informal networking events and the first on the West Coast. We are expecting a good turnout from our California friends, private and enforcement bar alike, and hope that you will join us!

The San Francisco reception will take place at Shook Hardy & Bacon and the Los Angeles event at Arnold & Porter.  (See the flyer for the addresses.)  I'm planning to attend in San Francisco and will hope to see you there.  I've been asked to encourage plaintiffs' lawyers in particular to attend.   It's not necessary to be an ABA member, but you do need to RSVP.  

UPDATE 10/17/11:  The San Francisco reception has been cancelled.  The Los Angeles reception will still go forward on Wednesday evening. 

Two-day consumer privacy law conference this week in Berkeley

Boalt is sponsoring what sounds like an extremely interesting conference this week: "Effective Consumer Privacy Enforcement."  The two-day conference will take place on Thursday and Friday, October 13-14, 2011, at the Bancroft Hotel in Berkeley.

This was originally an invitation-only conference, but registration has now been opened up to all plaintiffs' attorneys.  Click here to access the registration form. The complete agenda is here.  The cost is $250 and MCLE credits will be provided. 

I wish I could attend this, because it sounds really good, but unfortunately I've got multiple scheduling conflicts. 

Supreme Court sets class certification case for oral argument: Brinker Restaurant Corp. v. Superior Court (Hohnbaum)

As you've probably already heard, last week the Supreme Court scheduled oral argument in Brinker Restaurant Corp. v. Superior Court, no. S166350.  The argument will take place on Tuesday, November 8, 2011 at 9:00 a.m. in San Francisco.

While the Brinker case is best known for the substantive Labor Code issues it raises relating to meal periods and rest breaks, the case also involves some class certification questions that could impact California class actions more broadly, depending on how the questions are decided.  See this blog post for more on those questions.  

The briefs are available on my Brinker page. Recently, the workers filed a supplemental brief under Rule of Court 8.520(d) addressing Martinez v. Combs, 49 Cal.4th 35 (2010).  

[Disclosure:  I am co-counsel for the workers in this case.]

Anniversary

As of today, I have been writing The UCL Practitioner for eight years!

The first two years of the blog's content, from October 2003 through September 2005, remains available at the original URL, http://17200blog.blogspot.com.  (For optimum viewing, use Explorer rather than Firefox when visiting that site.)

Clinical Professor sought for consumer law clinic at Hofstra Law School

I have been asked to publicize an opening for a Clinical Professor to lead a new clinic at Hofstra Law School in Hempstead, New York.  The clinic will focus on consumer law.  More details about the opening are available here. 

If you know someone who might be a good fit for this position, please forward this information to them.

SCOTUSblog's arbitration symposium

Recently I posted on SCOTUSblog's class action symposium,which included a series of articles focusing primarily on Dukes. Most of the commentators in that symposium appear to have a defense-side focus.

SCOTUSblog now has a similar symposium on arbitration, focusing primarily on Concepcion.  This symposium features an interesting contribution from Michael Rubin of Altshuler Berzon LLP in San Francisco. 

New Ninth Circuit CAFA decision: Washington v. Chimei Innolux Corp.

In Washington v. Chimei Innolux Corp., ___ F.3d ___ (Oct. 3, 2011), the Ninth Circuit held that parens patriae actions filed by the state are not "class actions" within the meaning of CAFA. 

Unlike private litigants, the Attorneys General have statutory authority to sue in parens patriae and need not demonstrate standing through a representative injury nor obtain certification of a class in order to recover on behalf of individuals. See Wash. Rev. Code § 19.86.080; Cal. Bus. & Prof. Code § 16760. ....  

....

Put another way, class actions are always representative actions, but representative actions are not necessarily class actions.

Slip op. at 9, 10.  A similar analysis likely applies to PAGA cases post-Arias.

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