The UCL Practitioner

U.S. Supreme Court denies cert. in cy pres case: Lane v. Facebook

On Monday, November 4, 2013, the U.S. Supreme Court denied the objectors' cert. petition in the Lane v. Facebook cy pres case, after relisting the case twice.   Marek v. Lane, no. 13-136.  For more on Lane, see this blog post.

Chief Justice Roberts filed a 4-page "statement respecting the denial of certiorari," which reads, in part:

I agree with this Court’s decision to deny the petition for certiorari. Marek’s challenge is focused on the particular features of the specific cy pres settlement at issue. Granting review of this case might not have afforded the Courtan opportunity to address more fundamental concerns surrounding the use of such remedies in class action litigation, including when, if ever, such relief should be considered; how to assess its fairness as a general matter; whether new entities may be established as part of such relief; if not, how existing entities should be selected; what the respective roles of the judge and parties are in shaping a cy pres remedy; how closely the goals of any enlisted organization must correspond to the interests of the class; and so on. This Court has not previously addressed any of these issues. Cy pres remedies, however, are a growing feature of class action settlements. See Redish, Julian, & Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L. Rev. 617, 653-656 (2010). In a suitable case, this Court may need to clarify the limits on the use of such remedies.

Statement at 4 (hyperlink added). What the Chief Justice seems to be suggesting is that the objectors did not properly frame the issue in their cert. petition.

Recent opinion reverses denial of class certification: Benton v. Telecom Network Specialists, Inc.

In Benton v. Telecom Network Specialists, Inc., ___ Cal.App.4th ___ (Oct. 16, 2013), the Court of Appeal (Second Appellate District, Division Seven) reversed an order denying class certification of various wage and hour claims.  The opinion's analysis relies heavily on Brinker, Bradley and Faulkinbury. 

Ninth Circuit passes on the Broughton-Cruz rule: Ferguson v. Corinthian Colleges, Inc.

In Ferguson v. Corinthian Colleges, Inc., ___ F.3d ___ (9th Cir. Oct 28, 2013), the Ninth Circuit held (after bypassing the issue in Kilgore) that the FAA, as construed in Concepcion, preempts the California Supreme Court's Broughton-Cruz rule.

Consumer Law & Policy Blog has more on the Ferguson opinion, as well as a report on Chevarria v. Ralphs Grocery Co., ___ F.3d ___ (9th Cir. Oct. 28, 2013), in which the same Ninth Circuit panel held that the district court properly refused to enforce an arbitration clause under the generally-applicable state-law unconscionability rules expressed in Armendariz. 

The Chevarria opinion does not cite Sonic-Calabasas, but it does say this:

The Supreme Court’s holding that the FAA preempts state laws having a “disproportionate impact” on arbitration cannot be read to immunize all arbitration agreements from invalidation no matter how unconscionable they may be, so long as they invoke the shield of arbitration. Our court has recently explained the nuance: “Concepcion outlaws discrimination in state policy that is unfavorable to arbitration.” Mortensen v. Bresnan Commc’ns, LLC, 722 F.3d 1151, 1160 (9th Cir. 2013) (emphasis added). We think this is a sensible reading of Concepcion.

Slip op. at 21 (emphasis in original). 

R.I.P. Ed (editor of Blawg Review)

I was saddened to learn of the recent passing of Ed, the anonymous editor of Blawg Review.  I had the pleasure of meeting Ed in 2007, in San Jose, at a gathering of Bay Area law bloggers organized by Professor Eric Goldman.  The following year, I hosted Blawg Review #183. 

Ed did much to foster the community of law bloggers that existed in the mid-2000s.  Many of those who eulogized him in recent days have also mourned the passing of the golden age of law blogging.  Has that golden age really passed? I believe that, in some ways, it has. 

The final installment of Blawg Review -- Blawg Review #325 -- is a multi-part tribute to Ed with posts from Simple Justice, Defending People, The Trial Warrior, My Law License, Popehat, New York Personal Injury Law Blog, Declarations and Exclusions, a public defender, Likelihood of Confusion, Charon QC, and Infamy or Praise.

At Defending People, in what must have been a huge amount of work, Mark Bennett catalogs all the past Blawg Reviews "in case the list ever dis­ap­pears from BlawgReview.com." Mark discovered that a great many of the blogs that hosted Blawg Review in the past -- as far back as 2005 -- are now defunct or dormant. But many are still alive and kicking.

In memory of Ed, here is the only photo of him known to have survived the 2007 meetup: 

This is just how I fondly remember him -- enigmatic, dressed all in black.  He ran Blawg Review as a labor of love. To this day I believe he remains anonymous.