The UCL Practitioner

Supreme Court to hand down opinions in Rose and Zhang tomorrow

The Supreme Court announced this morning that its opinions in Rose and Zhang will be handed down tomorrow at 10:00 a.m.  When they are posted online, they should be available at these links:

• Rose v. Bank of America, N.A., ___ Cal.4th ___ (Aug. 1, 2013)
• Zhang v. Superior Court (Cal. Capital Ins. Co.), ___ Cal.4th ___ (Aug. 1, 2013)

I will have more on the opinions later.  See these posts for information on the UCL issues raised in these two cases. 

New Ninth Circuit arbitration opinion: Murphy v. DirecTV, Inc.

In Murphy v. DirecTV, Inc., ___ F.3d ___ (9th Cir. Jul. 30, 2013), the Ninth Circuit examined whether Best Buy was entitled to invoke, as an an agent, third-party beneficiary, of otherwise, an arbitration clause in a contract between the consumer plaintiffs and DirecTV.  The answer was no, allowing the UCL and CLRA class action to proceed against Best Buy.

Supreme Court denies review in two class certification cases: Dailey and Faulkinbury

The Supreme Court recently denied review in two cases involving class certification of wage and hour claims. 

On July 24, 2013, the Court denied review and depublication in Faulkinbury v. Boyd & Associates, no. S211515.  Faulkinbury was the last remaining Brinker "grant and hold" case.  The Court of Appeal's original 2010 opinion affirmed the trial court's order denying class certification of meal period and rest break claims, but on transfer after Brinker, the Court of Appeal reversed, and directed the trial court to certify those classes.  See this blog post for more on the new Faulkinbury opinion.

On July 10, 2013, the Court denied review and depublication in Dailey v. Sears Roebuck and Co., no. S210355.  This case involved class certification of claims stemming from an employer's alleged misclassification of certain employees.  The trial court denied class certification, and the Court of Appeal affirmed.  My original, short post on Dailey is here.

The Court also recently denied review in a third wage and hour case, Gonzalez v. Downtown LA Motors, no. S210681 (rev. den. Jul. 17, 2013).  (This case does not involve class certification issues, so I did not previously cover it here.)

It appears that the Supreme Court remains uninterested in taking up additional wage and hour cases after Brinker and Duran.  That won't last forever, of course.

New arbitration opinion: Avery v. Integrated Healthcare Holdings, Inc.

In Avery v. Integrated Healthcare Holdings, Inc., ___ Cal.App.4th ___ (Jun. 27, 2013; pub. ord. Jul. 23, 2013), the Court of Appeal (Fourth Appellate District, Division Three) affirmed an order denying the defendant's petition to compel individual arbitration in a wage and hour class action.  The panel determined that the plaintiffs had not agreed to be bound by the arbitration clause, which was contained in an employee handbook. 

The opinion concludes with this paragraph:

We emphasize our decision is based solely on the insufficiency of Integrated’s evidence.  We do not suggest an arbitration provision in an employee handbook is unenforceable or that employees cannot agree to arbitration by signing an acknowledgment form regarding an employee handbook that contains an arbitration provision.  Rather, we affirm the trial court decision because the incomplete and confusing patchwork of documents Integrated submitted prevents us from finding an enforceable arbitration agreement.  Because we affirm the trial court’s decision based on the insufficiency of Integrated’s evidence, we do not address the merits of the parties’ contentions concerning the unconscionability of the [arbitration clause].

Slip op. at 25. 

Sixth Circuit hands down post-Comcast opinion: In re Whirlpool Corp. Front-Loading Washer Products Liab. Litig.ic

This morning, the Sixth Circuit handed down its opinion in In re Whirlpool Corp. Front-Loading Washer Products Liab. Litig., ___ F.3d ___ (6th Cir. Jul. 18, 2013).

This is one of three cases in which the U.S. Supreme Court issued a GVR order ("grant, vacate and remand") and directed the lower court to reconsider the matter in light of Comcast.

The new opinion again affirms class certification.  It contains very interesting discussions of both Comcast and Amgen. 

New Ninth Circuit arbitration opinion: Mortensen v. Bresnan Communications, LLC

The Ninth Circuit handed down a new decision on Monday construing Concepcion.  Mortensen v. Bresnan Communications, LLC, ___ F.3d ___ (9th Cir. Jul. 15, 2013).

New class certification opinion: Shearin v. Brown (Updated)

In Shearin v. Brown, ___ Cal.App.4th ___ (Jul. 11, 2013), the Court of Appeal (Second Appellate District, Division Five) affirmed the trial court's order denying class certification in an action alleging that the plaintiffs and similarly situated inmates had been unlawfully detained in prison beyond their release dates. 

UPDATE:  Although the slip opinion identified the case title as Shearin v. Brown, this case was published in the official reports as Lopez v. Brown, 217 Cal.App.4th 1114 (2013). 

Another Ninth Circuit CAFA opinion: Watkins v. Vital Pharmaceuticals, Inc.

In Watkins v. Vital Pharmaceuticals, Inc., ___ F.3d ___ (9th Cir. Jul. 2, 2013) (per curiam), the Ninth Circuit reversed another remand order after holding that the district court had jurisdiction under CAFA.  This time, the opinion addresses the $5 million amount-in-controversy requirement and how it is established. 

Judge Fisher filed a separate opinion concurring and dissenting in part. 

New Ninth Circuit CAFA opinion: Roth v. CHA Hollywood Medical Center

In Roth v. CHA Hollywood Medical Center L.P., ___ F.3d ___ (9th Cir. Jun. 27, 2013), the Ninth Circuit reversed the district court's remand order, finding that the federal courts had jurisdiction under CAFA and that the defendants' removal petition was not untimely.

New UCL and CLRA class certification opinion: Thompson v. Automobile Club

In Thompson v. Automobile Club of Southern California, ___ Cal.App.4th ___ (Jun. 7 2013; pub. ord. Jun. 27, 2013), the Court of Appeal (Fourth Appellate District, Division Three) affirmed an order denying class certification of UCL and CLRA claims.