The UCL Practitioner

MCLE program this week: Class Action Litigation (Rutter Group)

This week, the Rutter Group will present "Class Action Litigation: New Strategies for California Practitioners."  The program will take place in San Francisco at Hotel Nikko on Wednesday, May 22, 2013 from 6:00-9:15 p.m. (registration begins at 5:30) and in Los Angeles at L.A. Hotel Downtown (formerly the Marriott) on Thursday, May 23, 2013 at the same time.

The program features a particularly good panel of presenters.  The co-moderators are Los Angeles County Superior Court Judge Lee Smalley Edmon and San Francisco Superior Court Judge Richard A. Kramer.  Elizabeth Cabraser will speak at the San Francisco program, while Richard Goetz of O'Melveny & Meyers will be the practitioner-panelist in Los Angeles. 

Two Ninth Circuit class action settlement decisions: In re: HP Inkjet Printer Litigation and Radcliffe v. Experian

The Ninth Circuit has handed down two opinions in recent weeks addressing class action settlements. 

In Radcliffe v. Experian Information Solutions Inc., ___ F.3d ___ (9th Cir. Apr. 22, 2013; mod. May 2, 2013), the court reversed final approval because some of the class representatives' incentive awards were made conditional upon their support of the settlement, which undermined their adequacy (and that of their counsel).

In In re: HP Inkjet Printer Litigation, ___ F.3d ___ (9th Cir. May 15, 2013), the court reversed final approval and the attorneys' fees award, finding that the award did not comport with the provisions of CAFA governing attorneys' fees in "coupon" settlement cases. Judge Berzon dissented. 

On a related note, on February 26, 2013, the Court denied en banc rehearing of the panel opinion in Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012).  This is the case in which the court approved a class action settlement with a significant cy pres component.  The order denying rehearing, and a strenuously-worded dissent by six judges, were both published:  Lane v. Facebook, Inc., 709 F.3d 791 (9th Cir. Feb. 26, 2013).

My original post on the Facebook case is here. 

New post-Brinker class certification opinion: Faulkinbury v. Boyd & Assoc.

Last Friday, in Faulkinbury v. Boyd & Associates, Inc., ___ Cal.App.4th ___ (May 10, 2013), the Court of Appeal (Fourth Appellate District, Division Three) reversed the trial court's order denying class certification of overtime, meal period, and rest break claims brought by a class of security guards.  The opinion directs the trial court to enter a new order granting certification of all three claims. 

Faulkinbury was a Brinker "grant and hold" case.  In the original opinion, handed down in 2010, the Court of Appeal affirmed denial of certification as to the the meal period and rest break claims, but reversed as to the overtime claim. The new opinion has been substantially re-worked, and it has an extensive discussion of Brinker. 

Both Scott Leviant and Matt Bailey have more detailed posts on the new opinion. 

Briefs from Duran v. U.S. Bank N.A.

The merits briefing is complete in Duran v. U.S. Bank National Association, no. S200923 (review granted May 16, 2012).  Numerous amicus briefs have been filed, and the due date for the parties' answers to those briefs has not yet passed. 

Here are the briefs filed to date:

• Opening Brief on the Merits (filed 08/14/12)
• Answer Brief on the Merits (filed 12/28/12)
• Reply Brief on the Merits (filed 03/04/13)
• Amicus Curiae Brief of the Pacific Legal Foundation (filed 04/08/13)
• Amici Curiae Brief of the California Business Roundtable et al. (filed 04/08/13)
• Amici Curiae Brief of the Chamber of Commerce of the United States et al. (filed 04/08/13)
• Amici Curiae Brief of The Impact Fund et al. (filed 04/10/13)
• Amici Curiae Brief of the National Association of Security Companies et al. (filed 04/10/13)
• Amici Curiae Brief of the California Employment Law Council et al. (filed 05/07/13)
• Amicus Curiae Brief of the Gallup Organization (filed 05/08/13)
• Amicus Curiae Brief of the California Chamber of Commerce (filed 05/08/13)
• Amicus Curiae Brief of Consumer Attorneys of California (filed 05/08/13)
• Amicus Curiae Brief of the California Employment Lawyers Association (filed 05/08/13)
• Respondents' Answer to Amici Curiae Briefs (filed 08/06/13)
• U.S. Bank's Answer to Amici Curiae Briefs (filed 08/07/13)

After the answers to the amicus briefs are filed, the next step is oral argument.  It's hard to predict when the case may be set for argument.  If past history is any guide, it could be as long as a couple of years. (Disclosure:  I am representing CELA as amicus curiae in this case.)

UPDATE:  The parties' answers to the amici briefs were filed on August 6, and 7, 2013.  Links to the briefs have been added to the list above.

Last week's arguments in Rose and Zhang

As I previously reported, last week the Supreme Court heard oral arguments in two cases potentially implicating the ordinary rule that a UCL "unlawful" prong may proceed regardless of whether the legislature intended the "borrowed" law to carry a private right of action.  Zhang v. Superior Court (Cal. Cap. Ins.), no. S178542, was argued last Wednesday, and Rose v. Bank of America, no. S199074, was argued Tuesday. 

Emily Green of the Daily Journal had a story on the Zhang argument in last Thursday's paper.  An excerpt:

Plaintiffs lawyers and insurance companies have waited more than three years for the state Supreme Court to take up the case of Yanting Zhang, a homeowner who sued her insurance company for false advertising after it repeatedly stalled her efforts to get recovery after an apartment fire.

But at oral argument Wednesday, ... the questions posed by the justices suggested the court is inclined to rule in favor of Zhang, who wants to move forward with her claim.

....

The backdrop to the case is a prior California Supreme Court decision that says private citizens can't privately sue insurers who commit unfair practices under the state's Unfair Insurance Practices Act. Only the insurance commissioner can do that.  Moradi-Shalal v. Fireman's Fund Ins. Companies, 46 Cal.3d 287 (1988).

Much of oral argument centered on whether Moradi-Shalal affected Zhang's case.  ....

[Justice] Corrigan questioned why Zhang should be precluded from suing the company for false advertising. If one of the parties has no intention of living up to its side of the contract, she said, then the contract is "fraudulently induced." 

Justice Corrigan is one of the more conservative members of the Court, so if her questions favored the plaintiff, that is a strong signal that the plaintiff may ultimately prevail. 

I have seen no press coverage of Rose, but an attorney present reported that the questioning in that case also seemed to favor the plaintiffs' position.  The attorney said that from the questioning, it appeared that the justices were accepting the argument that the repeal of the private right of action for violations of the Truth in Savings Act (12 U.S.C. § 4301 et seq.) did not affect the Act's preemption language or establish a federal policy precluding state enforcement of its provisions. 

Both opinions are due to be filed no later than the week of August 5, 2013.  

"Corporations Find a Friend in the Supreme Court"

Last Saturday's New York Times had an interesting article on the U.S. Supreme Court by Adam Liptak.  The article discusses Comcast, Dukes and Concepcion.

San Francisco City Attorney files UCL action against Monster Beverage Corp.

On May 6, 2013, the San Francisco City Attorney's office commenced a UCL action against Monster Beverage Corp.  The press release and a copy of the complaint, filed in San Francisco Superior Court, are available at this link. 

The complaint alleges that the company "aggressively markets" its Monster Energy drinks to children and teenagers, notwithstanding the known health risks to young people of consuming the high levels of caffeine that the drinks contain. The complaint contains detailed factual allegations followed by a single cause of action for violation of the UCL, and seeks injunctive relief, restitution, and civil penalties.

Oral argument preview: Zhang v. Superior Court

Today at 1:00 p.m. in San Francisco, the Supreme Court will hear oral argument in Zhang v. Superior Court (Cal. Cap. Ins.), no. S178542:

• Issues: (1) Can an insured bring a cause of action against its insurer under the unfair competition law (Bus. & Prof. Code, § 17200) based on allegations that the insurer misrepresents and falsely advertises that it will promptly and properly pay covered claims when it has no intention of doing so? (2) Does Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287 bar such an action?
• Court of Appeal Opinion:Zhang v. Superior Court (Cal. Cap. Ins. Co.), 178 Cal.App.4th 1081 (Oct. 29, 2009.

For more on the case, see this blog post.  The opinion will be due in ninety days, or by August 6, 2013.

It appears that the Supreme Court sees the issues raised in this case as somewhat related to those presented in in Rose v. Bank of America, no. S199074, which was argued yesterday.  In Rose, review was granted in March 2012, barely a year ago.  Zhang, on the other hand, has been pending since February 2010.  It could be coincidence, but I think there must be a reason for the setting on adjacent days.  The issues appear to be substantively related, as I explained here.

Unfortunately, the press of business has prevented me from attending either of the arguments.  If you attended yesterday (or are planning to attend today) and would like your report to appear here, please drop me a line. 

Oral argument preview: Rose v. Bank of America

This morning at 9:00 a.m. in San Francisco, the Supreme Court will hear oral argument in Rose v. Bank of America, no. S199074:

• Issue: Can a cause of action under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) be predicated on an alleged violation of the Truth in Savings Act (12 U.S.C. § 4301 et seq.), despite Congress's repeal of the private right of action initially provided for under that Act?
• Court of Appeal Opinion: Rose v. Bank of America, N.A., 200 Cal.App.4th 1441 (2011)

Justice Louis R. Mauro of the Third Appellate District will sit in place of Justice Chin, who is recused.  For more on this case, see this blog post. 

Once the case is submitted, the opinion will be due in 90 days, or by August 5, 2013.