The UCL Practitioner

Supreme Court to hand down class certification/ employment opinion this morning: Ayala v. Antelope Valley Newspapers

Last week, the California Supreme Court announced that this morning it would hand down its opinion in Ayala v. Antelope Valley Newspapers, No. S206874. When the opinion is posted online at approximately 10:00 a.m., it should be available at this link:

• Ayala v. Antelope Valley Newspapers, ___ Cal.4th ___ (Jun. 30, 2014)

This class action was brought by newspaper carriers who were classified as independent contractors rather than employees.  The trial court denied class certification, and the Court of Appeal reversed as to most of the claims.  Ayala v. Antelope Valley Newspapers, Inc., 210 Cal.App.4th 77 (2012), review granted.

It originally appeared that the Supreme Court was interested in the class certification issues presented in the case, but the oral argument reportedly focused entirely on the substantive question of whether the workers were properly classified.  It will be interesting to see the opinion this morning. 

Supreme Court to hand down arbitration opinion this morning: Iskanian v. CLS Transportation

The California Supreme Court announced Friday that this morning, it will hand down its opinion in Iskanian v. CLS Transportation, No. S204032, which was argued on April 4, 2014.

Iskanian involves the enforceability of a no-class-action arbitration clause in an employment contract, and the continued vitality of Gentry post-Concepcion. This blog's reports of the oral argument are here and here.  Most who attended the argument believe that Gentry will be held overruled.

When the opinion is posted online at approximately 10:00 a.m., it should be available here:

• Iskanian v. CLS Transportation Los Angeles, LLC, ___ Cal.4th ___ (Jun. 23, 2014)

U.S. Supreme Court schedules UCL case for conference: Rose v. Bank of America

Last week, the U.S. Supreme Court put Bank of America, N.A. v. Rose, No. 13-662, on its conference agenda for June 26, 2014. 

This follows the filing on May 27 of the Solicitor General's brief recommending that the cert. petition be denied.

According to the SCOTUSblog calendar, June 26 is the last day of the Term on which the Court is scheduled to conference cases.  So there should be no further relisting, and the order granting or denying cert. should be announced by Monday, June 30. 

The cert. petition seeks to overturn the California Supreme Court's landmark UCL decision, Rose v. Bank of America, N.A., 57 Cal.4th 390 (2013), discussed here.

UPDATE:  On June 30, 2014, the U.S. Supreme Court denied the cert. petition.

San Diego County Bar Association webinar next week on Duran

On Wednesday, June 18, 2014 at noon, the San Diego County Bar Association will present a webinar entitled "Duran v. U.S. Bank — New Guidance on Complex/Class Action Case Management and Trial Methodology." 

The webinar will feature plaintiff-side attorney Michael D. Singer of Cohelan Khoury & Singer and a defense-side panelist.  Michael has represented the plaintiffs in Brinker from the inception of that case, and he also worked closely on CELA's amicus brief in Duran.  His perspectives will be well worth hearing. 

This is the first MCLE panel that I'm aware of focusing specifically on the Duran opinion.  It sounds like it will be quite interesting.  Click here for more information and to register.

New class action settlement opinion: Litwin v. iRenew Bio Energy Solutions LLC

In the published portion of Litwin v. iRenew Bio Energy Solutions LLC, ___ Cal.App.4th ___ (May 28, 2014), the Court of Appeal (Second Appellate District, Division One) reversed final approval of a class action settlement because the notice informed the class members that if they wished to object, they (or their counsel) must appear in person at the final approval hearing. 

The panel explained:

Requiring class members in a nationwide class or even a statewide class to appear at the final approval hearing or hire an attorney to have their objections heard works a hardship on objectors, as the benefit to the objector from the class action may be so low that it would be cost prohibitive or physically challenging to personally assert one’s rights at a hearing in a potentially distant location.  ....  Requiring any objector to attend the final approval hearing does not offer a meaningful opportunity to be heard, and therefore violates class members’ due process rights.

.... Although appellant was afforded the opportunity to be heard, there may have been many class members whose objections were chilled.  Misstating objectors’ rights such that they are dissuaded from exercising their opportunity to be heard does not fairly apprise class members of their options associated with the settlement.  For these reasons, the order granting final approval of the settlement must be reversed.

Slip op. at 8-9.

"Class actions are thriving after Brinker"

This article appeared in the Daily Journal a few weeks ago, on May 8, 2014, while I was immersed in several briefing projects.  I was pleasantly surprised to see my photo on the front page, and I received a number of kind congratulatory emails from friends and acquaintances. 

An excerpt:

[P]laintiffs' attorneys such as Kimberly Kralowec of The Kralowec Law Group say the pendulum of appellate decisions has swung in their clients' direction. 

Kralowec argued Brinker before the Court of Appeal and ... before the state Supreme Court ....  She said appellate decisions favor class certification if there is a blaket policy on employee breaks that doesn't square with the law.  "It doesn't matter that it may have been applied differently, affected class members differently, or not affected some plaintiffs at all," she said.

In the raft of published opinions that apply Brinker, six favored class certification, and two did not.  The state Supreme Court denied review on all of them.  What's more, the high court depublished three appellate cases that favored the defense in early 2013.

Class certification issues raised by Duran and Brinker? I can help

A lot of new briefing may be coming up in the wake of Duran as well as the post-Brinker opinions that continue to be handed down. 

I am now accepting new appellate and trial-level briefing matters. 

If you have an appeal involving UCL, wage and hour, or class certification issues, I can handle it on an hourly or a flat-fee basis.  I can also assist you with your trial-level briefing, such as class certification motions, oppositions to demurrers or motions to dismiss, and oppositions to decertification motions.  If your judge requests further briefing on the impact of Duran, I can assist with that as well.

To inquire about retaining me for your matter, please contact me at my work email address, kkralowec -at- kraloweclaw -dot- com, or call me at 415-546-6800.

For samples of my work, my Supreme Court briefs in Brinker are here; my successful depublication requests in the three defense-favorable post-Brinker cases are available at these links; and my amicus brief for CELA in Duran is here.