The UCL Practitioner

Twelve post-Brinker class certification opinions (Updated)

In preparation for a recent seminar, I pulled together the following list of twelve post-Brinker class certification opinions in wage and hour cases, including the three that were depublished just over a year ago: 

• Hernandez v. Chipotle Mexican Grill, 146 Cal.Rptr.3d 424 (2012), depublished 12/12/2012

• Lamps Plus Overtime Cases, 146 Cal.Rptr.3d 691 (2012), depublished 12/12/2012

• Tien v. Tenet Healthcare Corp., 147 Cal.Rptr.3d 620 (2012), depublished 1/16/2013

• Morgan v. Wet Seal, Inc., 210 Cal.App.4th 1341 (2012), review denied

• Bradley v. Networkers Int’l, LLC, 211 Cal.App.4th 1129 (2013), review denied

• Dailey v. Sears, Roebuck and Co., 214 Cal.App.4th 974 (2013), review denied

• Faulkinbury v. Boyd & Assoc., Inc., 216 Cal.App.4th 220 (2013), review denied

• Bluford v. Safeway Stores, Inc., 216 Cal.App.4th 864 (2013), review denied

• Benton v. Telecom Network Specialists, Inc., 220 Cal.App.4th 701 (2013), review denied

• Jones v. Farmers Insurance Exchange, 221 Cal.App.4th 986 (2013), review denied

• Martinez v. Joe’s Crab Shack Holdings, 221 Cal.App.4th 1148 (2013), review granted, No. S214864

• Williams v. Superior Court (Allstate Ins. Co.), 221 Cal.App.4th 1353 (2013), review denied, No. S215887

Of the opinions that remain published and citable, all except Morgan and Dailey hold that class certification was either properly granted or improperly denied. 

Petitions for review were filed in all twelve cases.  After depublishing the first three opinions, the Supreme Court summarily denied review six times in succession, until last week, when it granted review in Martinez, with briefing deferred pending resolution of Duran.  (Duran is not on the list above because it preceded Brinker.)  Also last week, the Supreme Court gave itself an extension of time to grant or deny review in Jones. 

What Martinez and Duran have in common is that they are both misclassification cases.  The Martinez opinion also specifically referenced Duran:

The [trial] court rejected as unfair plaintiffs' proffered trial plan, under which their expert, Richard Drogin, proposed to assess the rate at which managerial employees are engaged in nonexempt tasks through statistical sampling methods. [Citation].¹⁵

¹⁵ The Supreme Court has granted review of a decision heavily relied upon by the trial court in denying class certification. (See Duran v. U.S. Bank National Assn. (2012) 203 Cal.App.4th 212, review granted May 16, 2012, S200923.) One of the issues presented in Duran is the validity of using statistical surveys to establish liability.

Martinez, 165 Cal.Rptr.3d at 92 & n.15.

Jones, by contrast, is not a misclassification case, and the plaintiffs in Jones did not rely on or proffer statistical sampling proof.  Williams is not a misclassification case, either.  That's the case in which the trial court decertified the class in reliance on Dukes; the Court of Appeal summarily denied the plaintiff's writ petition; and the Supreme Court issued a "grant and transfer" order directing the Court of Appeal to consider the writ petition on the merits. 

It will of course be interesting to see if the Supreme Court decides to take up either Jones or Williams.  I am told that the petition for review in Williams cited this blog's post on that opinion, in which I pointed out that the Court of Appeal had correctly construed Dukes (hardly a reason for the Supreme Court to grant review).

UPDATE:  On March 12, 2014, the Supreme Court denied review in Jones, and on March 19, 2014, the Supreme Court denied review in Williams. 

Supplemental briefing ordered in arbitration case: Sanchez v. Valencia Holding Co.

Last week, on February 19, 2014, the Supreme Court ordered supplemental briefing in Sanchez v. Valencia Holding Co., No. S199119. 

This is the case in which the Court of Appeal declined to enforce a no-class-action arbitration clause in a consumer contract, notwithstanding Concepcion.  Sanchez v. Valencia Holding Co., LLC, 201 Cal.App.4th 74 (2011).  The Court of Appeal reasoned that ordinary state-law unconscionability principles were preserved by Concepcion.

This is the issue on review, as stated on the Supreme Court's docket: 

Does the Federal Arbitration Act (9 U.S.C. § 2), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U. S. __, 131 S.Ct. 1740, preempt state law rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable?

The supplemental briefing order reads as follows:

The parties and interested persons and entities are invited to file supplemental briefing on the following questions. In formulating the standard for determining whether a contract or contract term is substantively unconscionable, this court has used a variety of terms, including "unreasonably favorable" to one party (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1145); "so one-sided as to shock the conscience" (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (2012) 55 Cal.4th 223, 246); "unfairly one-sided" (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1071-1072; "overly harsh" (Armendariz v. Foundation Health Psychare Services, Inc. (2000) 24 Cal.4th 83, 114; and "unduly oppressive" (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 925). Should the court use only one of these formulations in describing the test for substantive unconscionability and, if so, which one? Are there any terms the court should not use? Is there a formulation not included among those above that the court should use? What differences, if any, exist among these formulations either facially or as applied?

The parties are directed to serve and file simultaneous letter briefs on this issue on or before March 12, 2014. If any party or existing amicus curiae chooses to reply to the points raised in the supplemental briefs, the supplemental reply is to be served and filed on or before March 19, 2014.

In addition, any interested person or entity is invited to serve and file an application to file an amicus curiae brief, and that brief itself, by March 12, 2014. Any party may serve and file a reply to such a brief on or before March 19, 2014.

(Hyperlinks added.)

That's a tall order for a brief due in three weeks. It is plausible that the Court has decided that the FAA, as construed in Concepcion, does not preempt generally-applicable unconscionability principles, but that the Court wants to refine those princples for the lower courts on remand.  Or maybe the Court wants to clarify its unconscionability jurisprudence before considering whether the application of that jurisprudence in the context of an arbitration clause interferes with the purpose of the FAA.  It's tough to read the tea leaves here. 

I would expect that the matter will be scheduled for oral argument shortly after the supplemental briefing is completed. 

U.S. Supreme Court denies cert. in all three front-load washer cases

Yesterday, the U.S. Supreme Court denied cert. in the three front-load washer cases, Whirlpool Corp. v. Glaser, No. 13-431; Sears, Roebuck & Co. v. Butler, No. 13-430; and BSH Home Appliances Corp. v. Cobb, No. 13-138.  Each case had been relisted multiple times. 

This means that the lower court opinions affirming (or granting) class certification all stand.  Those opinions are:  Butler v. Sears Roebuck and Co., 727 F.3d 796 (7th Cir. 2013) (discussed in this blog post); In re Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 722 F.3d 838 (6th Cir. 2013) (discussed here); and Tait v. BSH Home Appliances Corp., 289 F.R.D. 466 (C.D. Cal. 2012) (discussed here). 

Slate had an interesting article yesterday on the development [via].

Class certification case taken up as "grant and hold": Martinez v. Joe's Crab Shack Holdings

Last week, on February 19, 2014, the Supreme Court granted review in Martinez v. Joe's Crab Shack Holdings, No. S214964. Briefing has been deferred pending resolution of Duran v. U.S. Bank National Association, No. S200923, which is scheduled for argument on March 4, 2014 in San Francisco. 

The Court of Appeal's opinion, which is no longer citable, is Martinez v. Joe's Crab Shack Holdings, 221 Cal.App.4th 1148 (2013).  My original blog post on that opinion is here. 

Justice Kennard announces retirement from California Supreme Court

You have probably already heard the news last week, when Justice Joyce Kennard of the California Supreme Court announced that she would be retiring as of April 5, 2013, which will mark her 25th anniversary as a member of the Court.

Yesterday's San Francisco Chronicle had an interesting article by Bob Egelko about some of Justice Kennard's most significant opinions.  An excerpt:

Kennard's majority opinions included a 1991 ruling declaring high school graduation prayers unconstitutional, a conclusion the U.S. Supreme Court reached in a separate case a year later; another 1991 decision establishing an employee's right to sue for age discrimination; and a 1997 ruling allowing a suit against a city by a woman who was stopped by a police officer, taken into custody and raped - an abuse, Kennard said, of the "formidable power" the city had granted to the officer.

She voted often with the court's moderate-to-liberal bloc, but not always - for example, she joined a 1991 ruling that upheld legislative term limits and slashed the lawmakers' operating budget. But Kennard was impossible to pigeonhole.

When the court upheld the enforcement of surrogate-motherhood contracts in 1993, Kennard cast a lone dissent and told the all-male majority that a pregnant woman "is more than a mere container or breeding animal; she is a conscious agent of creation."

There is no indication that Justice Kennard will not remain on the bench for the March argument calendar, which includes the Duran case.  If the opinion is handed down after the date of her retirement, she will almost certainly be appointed by the Chief Justice to continue to serve on the panel pro tem, as was Chief Justice George in the Kwikset case.    (Kwikset was argued on November 3, 2010; Chief Justice George retired on January 2, 2011; he was appointed the next day as a pro tem justice for the mater; and the opinion was handed down on January 27, 2011.) 

Last week, the Daily Journal offered some speculation on possible candidates to fill Justice Kennard's seat.  The blog At the Lectern has more on this.  The list of possible candidates recognizes that the current Court has no Latino members and no one from Southern California.

"Class actions: A path through the darkness?"

The January 2014 issue of Plaintiff Magazine has a very interesting article about class actions in the post-Dukes, post-Concepcion, and post-Comcast world.  The article is by Jahan Sagafi and Jennifer Liu of Outten & Golden.

Speaking of post-Comcast cases, the U.S. Supreme Court has once again re-listed the trio of front-load washer cases.  Whirlpool Corp. v. Glaser, No. 13-431; Sears, Roebuck & Co. v. Butler, No. 13-430; BSH Home Appliances Corp. v. Cobb, No. 13-138. 

Each of these cases is now scheduled for conference next Friday, February 21.  If cert. is granted in any of them during that conference, the announcement should be online by Monday, February 24.  

New Ninth Circuit class certification opinion: Berger v. Home Depot USA, Inc.

In Berger v. Home Depot USA, Inc., ___ F.3d ___ (Feb. 3, 2014), the Ninth Circuit affirmed denial of class certification of UCL and CLRA claims.

As a preliminary matter, the Ninth Circuit held that it had jurisdiction over the appeal, even though the final judgment in the district court resulted from a stipulated dismissal of the action with prejudice, which the plaintiff agreed to after the district court denied class certification.  Slip op. at 4-6.

We have jurisdiction under 28 U.S.C. § 1291 because a dismissal of an action with prejudice, even when such dismissal is the product of a stipulation, is a sufficiently adverse – and thus appealable – final decision.

Id. at 5.

The ensuing discussion of class certification essentially concludes that the UCL and CLRA claims suffered from Kaldenbach problems.  Id. at 6-11.  (For other examples of cases with Kaldenbach problems, see these posts.)  

Oral argument set in class certification case: Duran v. U.S. Bank, N.A.

Yesterday, the Supreme Court scheduled oral argument for March 4, 2014 at 9:00 a.m. in Duran v. U.S. Bank National Association, no. S200923.  The argument will take place in San Francisco. 

This argument setting is lightning-speed compared to many other cases, including Brinker.  Review was granted in Duran in May 2012, and the case will be argued, and perhaps decided, less than two years later. 

Links to the merits and amicus briefs are available here.  This is the issue on review, according to the docket:

This case presents issues concerning the certification of class actions in wage and hour misclassification litigation and the use of representative testimony and statistical evidence at trial of such a class action.

The underlying action is for employee misclassification.  The Court of Appeal (First Appellate District, Division One) reversed both class certification and the judgment.  See Duran v. U.S. Bank National Ass'n., 203 Cal.App.4th 212 (2012) (discussed in this blog post).

I am looking forward to this argument and hope to be able to attend in March.