The UCL Practitioner

New class certification opinion: Cochran v. Schwan's Home Service, Inc.

In Cochran v. Schwan's Home Service, Inc., ___ Cal.App.4th ___ (Aug. 12, 2014), the Court of Appeal (Second Appellate District, Division Two) reversed an order denying class certification of a claim for violation of Labor Code section 2802, which relates to reimbursment of expenses. 

The opinion is short but interesting, and discusses Duran. 

Speaking of which, I'm collecting orders of California Superior Court judges construing Duran.  If you have copies of any, please forward.  I will post links to the collection once I have a few more.  Right now, I only have two, but there must be more out there.  Thanks in advance.

Recent Ninth Circuit class certification opinion: Stockwell v. City and County of San Francisco

In Stockwell v. City and County of San Francisco, 749 F.3d 1107 (9th Cir. Apr. 24, 2014), the district court denied class certification of plaintiffs' age discrimination claim under FEHA, holding that the plaintiffs had not established the existence of a common question under Rule 23(a). 

The Ninth Circuit reversed, in an opinion that contains an interesting discussion of Dukes, Amgen and Ellis.  An excerpt from the analysis: 

We conclude that the district court erred in denying class certification because of its legal error of evaluating merits questions, rather than focusing on whether the questions presented, whether meritorious or not, were common to the members of the putative class. By doing so, the district court made an error of law and relied on improper factors, thereby abusing its discretion.

....

Here, the officers have identified a single, well-enunciated, uniform policy that, allegedly, generated all the disparate impact of which they complain: the SFPD's decision to make investigative assignments using the Q–50 List instead of the Q–35 List. Each member of the putative class was on the Q–35 List. Each suffered the effects of its elimination, whatever those were.

....

The officers produced a statistical study purportedly showing a disparate impact. The district court, and the City, critiqued that study as inadequate for—among other reasons—failing to conduct a regression analysis to take account of alternative explanations, unrelated to age, for any statistical imbalance. But whatever the failings of the class's statistical analysis, they affect every class member's claims uniformly, just as the materiality issue in Amgen affected every class member uniformly. Each member of the putative class suffered the effects of eliminating the Q–35 List.   If those effects amount to a disparate impact on account of age, it will be so for all class members or for none; their claims rise and fall together.

Id. at 1114-15 (footnote omitted).  The panel remanded with directions to the district court to assess whether the other requirements of Rule 23 were satisfied.

Third Circuit reaches the opposite conclusion on "who decides": Opalinski v. Robert Half Int'l Inc.

Last Friday, I reported on Sandquist v. Lebo Automotive, Inc., ___ Cal.App.4th ___ (Jun. 25, 2014; pub. ord. Jul. 22, 2014), in which the Court of Appeal (Second Appellate District, Division Seven) carefully evaluated the available U.S. Supreme Court decisional law, including Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003), and held that the arbitrator, not the court, should decide whether the parties agreed to class arbitration.

Last week, the Third Circuit reached the opposite conclusion in Opalinsky v. Robert Half Int'l Inc., ___ F.3d ___ (3d Cir. Jul. 30, 2014).  An excerpt:

Since Bazzle, the Supreme Court has not directly decided whether the availability of class arbitration is a question of arbitrability.  The Court’s line of post-Bazzle opinions, however, indicates that, because of the fundamental differences between classwide and bilateral arbitration, and the consequences of proceeding with one rather than the other, the availability of classwide arbitrability is a substantive gateway question rather than a procedural one. We thus join the Sixth Circuit Court of Appeals in holding that the availability of class arbitration is a “question of arbitrability.”

Slip op. at 15. 

Court of Appeal addresses class arbitration in an opinion of interest: Sandquist v. Lebo Automotive, Inc.

In Sandquist v. Lebo Automotive, Inc., ___ Cal.App.4th ___ (Jun. 25, 2014; pub. ord. Jul. 22, 2014), the Court of Appeal held that the trial court erred by dismissing the plaintiff's class claims with prejudice after "deciding the issue whether the parties agreed to class arbitration."  Slip op. at 2.  Instead, the trial court "should have submitted the issue to the arbitrator."  Id.

The opinion frames the question as follows: 

Sandquist contends that the trial court “wrongly conducted a clause construction analysis of the Acknowledgements and held that they contain an implied class action waiver.”  Sandquist, citing Green Tree Fin. Corp. v. Bazzle (2003) 539 U.S. 444 [123 S.Ct. 2402, 156 L.Ed.2d 414] (Bazzle) and Garcia v. DIRECTV, Inc. (2004) 115 Cal.App.4th 297 (Garcia), argues that the arbitrator, not the court, determines whether the arbitration agreement provides for class arbitration.  Defendants argue that the trial court correctly relied on Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp. (2010) 559 U.S. 662 [130 S.Ct. 1758, 176 L.Ed.2d 605] (Stolt-Nielsen) in ruling that the court decides this issue.  It turns out that this issue is not entirely settled.

Id. at 9-10.

After a lengthy discussion of the authorities bearing on the question, the Court of Appeal held:

We agree with the majority of cases that follow the plurality opinion in Bazzle that the question whether the parties agreed to class arbitration in cases where the arbitration agreement is silent is determined by the arbitrator. 

Id. at 13. 

According to the docket, the opinion was published after publication requests were filed by the National Association of Consumer Advocates and Public Justice.