The UCL Practitioner

Ninth Circuit victory: Allison v. Tinder, Inc.

I'm posting today to share some excellent news. Yesterday, the Ninth Circuit reversed final approval of a proposed class action settlement in an Unruh Act age discrimination case, holding that the district court "materially underrated the strength of the plaintiff's claims, substantially overstated the settlement's worth, and failed to take the required hard look at indicia of collusion, including a request for attorneys' fees that dwarfed the anticipated monetary payout to the class."  Allison v. Tinder, Inc., ___ F.3d ___ (9th Cir. Aug. 17, 2021) (slip op. at 5-6).  I represented the objectors in this case, along with my co-counsel, Al Rava of the Rava Law Firm and Danielle Leonard and Michael Rubin of Altshuler Berzon.  Congratulations and thanks to all involved in achieving this excellent result.

I am particularly pleased with this outcome because the challenged settlement was formed in a federal district court case filed soon after my victory in the California Court of Appeal in Candelore v. Tinder, Inc., 19 Cal.App.5th 1138 (2018).  On behalf of two proposed class members, my co-counsel and I took immediate steps to object to what we considered to be an inadequate settlement, one that in our opinion did not reflect the strength of the claims given the binding holdings in Candelore.  The settlement had been negotiated without our knowledge or involvement.

The Ninth Circuit agreed that the settlement should not have been approved.  Allison, slip op. at 5.  The Ninth Circuit had this to say about Candelore:

In Candelore, as here, the class action plaintiff alleged that Tinder violated the Unruh Act by charging customers over 29 more than it charged younger customers for the same service. Id. at 339. While Tinder initially moved successfully to dismiss the complaint for failure to state a claim, id. at 340, on appeal, Candelore secured a ruling that his allegations did state a claim for age discrimination under the Unruh Act—and that, if his allegations were true, Tinder’s age-based distinction would not be justified by public policy as a matter of law. See id. at 350. In the course of its decision, the Candelore court “recognize[d] ... that past cases,” like Javorsky v. Western Athletic Clubs, Inc., 195 Cal. Rptr. 3d 706 (2015), “have embraced the notion that age may serve as a reasonable proxy for income in upholding age-based discounts against Unruh Act claims.” 228 Cal. Rptr. 3d at 344. But those cases, the court reasoned, are “inconsistent with the ‘individual nature’ of the right secured by the [Unruh] Act, which protects individuals from unequal treatment based on generalizations about ‘a group’ to which they belong.” Id. at 347.

Id. at 9-10.  In approving the challenged settlement, the district court stated that it believed Javorsky was "'more in line with the weight of authority'" than Candelore--ignoring the fact that Candelore was, and is, binding "law of the case" in the state court action, as well as the fact that the Court of Appeal in Candelore was considering the very same age-based price differential challenged in the later-filed federal action.  Id. at 11, 14-15.  In the Ninth Circuit's words: 

[T]he district court so underrated the strength of the plaintiff’s case, so overstated the settlement value, and so overlooked the suggestions of collusion present as to collectively constitute an abuse of discretion. [¶] First, the district court discounted the strength and value of the class members’ claims because the court “f[ound] the holding of Javorsky to be more compelling and more in line with the weight of authority than the holding in Candelore.” In so doing, the district court ignored the fact that the settlement class members are also putative members of the class in Candelore—and the settlement agreement therefore releases claims where Candelore is the law of the case, regardless of whether the district court finds the opinion persuasive.

Id. at 14-15.  In other words, while the district court may not have agreed with the analysis in Candelore, that analysis is nonetheless binding, which means the Unruh Act claims are significantly more valuable than reflected by the challenged settlement.  See id.  This was just one of numerous problems that the Ninth Circuit identified with the challenged settlement.  See id. at 15-17. 

Bloomberg News reports that "Tinder's $24 Million Deal to End Age Discrimination Suit Undone."

Ninth Circuit issues second opinion in Apple security search case: Frlekin v. Apple, Inc.

As I mentioned in February, I won my second California Supreme Court case this year, when the high court ruled that time spent by my clients (Apple retail store employees) undergoing mandatory security searches is compensable "hours worked" under California law (specifically, under Wage Order 7).  Frlekin v. Apple Inc., 8 Cal.5th 1038 (2020). 

In July, the Daily Journal described this victory as "one of the most significant wage and hour outcomes of 2020."  "Top Labor & Employment Lawyers 2020," Daily Journal (Jul. 15, 2020).  I was honored to be named to the Daily Journal's annual list of the Top Labor & Employment Lawyers in California on the strength of the Frlekin decision.  I was certainly not the only attorney whose efforts contributed to this result.  Lee Shalov, Kate Rogers and Brett Gallaway deserve mention here as well. 

After the Supreme Court denied Apple's rehearing petition, the case went back to the Ninth Circuit, which instructed the parties to file supplemental briefs.  Yesterday, the Ninth Circuit reversed the judgment in Apple's favor with directions to deny Apple's summary judgment motion and to grant plaintiffs' summary judgment motion.  Frlekin v. Apple, Inc., ___ F.3d ___ (9th Cir. Sept. 2, 2020). Next, proceedings are expected to resume in the district court.   

Both the Recorder and Bloomberg Law have articles on the Ninth Circuit's latest opinion.  From Bloomberg Law: 

The workers are pleased with the decision, which vindicates their right to be paid for the time Apple controlled them, said their attorney, Kimberly Kralowec.  Next, the case will get sent back to the district court to determine how much the workers are owed, she said. Kralowec Law, P.C. and McLaughlin & Stern LLP represent the employees.

Supreme Court's early May oral arguments to be conducted remotely (and more screen shots from the April session)

As anticipated, the Supreme Court's early May oral argument calendar, announced on Wednesday, will be conducted remotely.  (None of the cases scheduled for argument appear to involve UCL or class action issues.)

For those interested in remote oral argument procedures, The Recorder had two relevant articles earlier this week: "How the California Supreme Court Transitioned to Remote Oral Argument in Less Than a Month" and "Arguing Cross-Country: Litigators Talk Shop About Preparing for Phone, Video Appearances."  Both articles have been brought out from behind the paywall. 

The latter article includes a roundup of thoughts from litigators on preparing for remote oral arguments.  (For more on that subject, see these blog posts.)  Attorney Jay Lefkowitz prepared for his argument in Abbott Laboratories, the first case argued under the Supreme Court's new remote argument rules, by participating in two mock argument sessions, one by phone and one by video conference.   He observed that "[s]ometimes you can’t quite tell when you’re about to be interrupted by a question. The transitions in the argument are a little more challenging than if you’re in the room with someone." This would be worth practicing beforehand. 

On April 8, only one case was heard.  That session felt more focused to me than the proceedings on April 7, but that's probably because it was just a single case and fewer images appeared on the public video feed.  Here, we see the Supreme Court tableau, along with Justices Chin, Kruger and Groban participating remotely, and the two arguing attorneys (click images to enlarge):

I liked Samuel Harbourt's setup with an actual lectern.  Here, Justice Corrigan posed a question while the Chief Justice listened:

At the conclusion of the argument, the Chief Justice profusely thanked and led a round of applause for the Court's IT staff, whose efforts to prepare for the remote proceedings must have been Herculean.  She also thanked the Clerk, the Judicial Council, and the "mock attorneys" who helped the Court practice the remote setup before it went live.  According to The Recorder's article, the remote practice sessions took place on Friday, April 3.

The thanks and applause were well deserved all around.

Oral argument report: Abbott Laboratories v. Superior Court

Yesterday, the Supreme Court heard oral argument in Abbott Laboratories v. Superior Court (Rackauckas), no. S249895.  Abbott involves the territorial reach of the UCL provisions authorizing district attorneys, as well as certain county counsel and city attorneys, to bring UCL actions on behalf of the general public. This was the Court's first foray into remote oral argument by video conference, and it was a success (scroll down for screen shots and my thoughts on the procedure).  On the merits, I think the DA's office will prevail. 

The defendants, supported by the Attorney General's office as amicus curiae, argued that the Orange County District Attorney is authorized to obtain a statewide public injunction, but only the Attorney General may seek statewide restitution.  The oral argument, therefore, was focused mainly on statutory interpretation and legislative intent. 

Justice Liu broke in first, querying whether a "centralized enforcement model" or a "decentralized" one "is what the legislature contemplated here."  He pointed out that the California Constitution gives the AG's office "direct supervisory authority" over the DAs, but not over the county counsel and city attorneys who are also empowered to bring UCL actions.  He asked whether "tension" existed between the UCL and this constitutional provision. 

Justices Liu, Cuéllar, and Kruger all had questions about how the AG's office is notified of new UCL public prosecutor actions, whether notice should be required, and what the AG typically does when notified of new actions. 

The Chief Justice asked about the purpose of the UCL, which is "to protect consumers."  She pointed out that many businesses' operations are not limited to a single county, and the "understanding" that the AG can't always take action in every county.  "Why shouldn't we construe [the UCL] to give statewide power to the DAs?"  She said that doing so "ensures greater protections for consumers, not less," and that adding administrative procedures at the front end, such as formal notice to the AG, "provides less protection." 

It was undisputed, according to Justice Liu, that the UCL authorized the DAs to pursue civil litigation, and to seek statewide injunctive relief.  So the only question was the monetary relief.  He said that the UCL "is not silent at all" on the scope of the DAs' authority.  Section 17203 says that "any person" may bring a UCL action and, under section 17206, seek all forms of enumerated relief "for each violation." 

The Chief Justice asked point blank:  "If DAs can bring the action and have authority to get an injunction, why don't they have the power to get restitution?"  Defendants' appellate counsel (attorney Jay Lefkowitz) admitted the statute was "silent" on the point, but argued it was "better" not to read that authority "into a silent statute." 

On balance, based on the thrust of the justices' questions, and the fact that they posed tougher questions to defendants' counsel, I think the Court will hold that the DAs' offices may seek statewide restitution.  We will find out in approximately ninety days (by Monday, July 6). 

The live video stream was interesting and instructive for future remote arguments.  As it turned out, three justices, not two, participated by videoconference.  In this screen shot (click on each image to enlarge), you can see Justice Corrigan, the Chief Justice, Justice Liu, and Justice Cuéllar on the bench, with Justice Kruger on a very large monitor newly installed in the courtroom: 

The screen shot below depicts the public video feed as it first appeared, with images of eight of the lawyers slated to argue the different cases on the morning calendar, in no apparent order.  In the top middle image (click to enlarge), you can just make out Justice Corrigan, the Chief, and Justices Liu and Cuéllar seated well apart from each other across the bench:

Once the Abbott case was called, the image shifted to this view, with Justice Kruger and pro tem Justice Fujisaki in the top left and right screens: 

Attorneys Kelly Ernby, Yvonne Mere and Jay Lefkowitz argued Abbott.  Attorney Blanca Young was apparently slated to argue a later case, yet her image remained onscreen throughout the Abbott argument.  We now know that arguing attorneys' video images may be visible to the public at any time.  In particular, while the argument proceeds in your case, your image will be displayed, so your non-verbal reactions to the proceedings should be measured. It is unclear whether the justices in the courtroom saw the same composite view, or if the arguing attorney's image was enlarged while he or she was speaking.  The image was not enlarged in the public live-stream. 

Multiple cameras were installed in the courtroom, allowing the video feed to shift to the justices when they had questions, but only for the four seated in the courtroom.  Here, Justice Liu asked a question while Justice Cuéllar looked on: 

And here, the Chief Justice emphasized a point.  She was careful to ask, at the end of each argument segment, if the justices participating remotely had any questions.  She also helped the advocates keep track of their time allotments. 

When the Abbott argument concluded and the next case was called, the screen shifted to include Justices Chin and Groban, both participating remotely, along with Justice Kruger and three arguing attorneys:

If many more remote arguments are conducted, the procedures and camera-work will probably evolve.  The next oral argument dates on the Court's calendar are May 4-8, May 18-22, and June 1-5.  The early May calendar should be posted next week.  I would imagine that the early May arguments, at the very least, will be done remotely.  After a break in July and August, oral arguments will resume the week of September 1.  At the Lectern has a post on the argument with more screenshots.  The Recorder's take on the argument is here.

Supreme Court to hear UCL public prosecutor case today: Abbott Laboratories v. Superior Court

Today at 9:00 a.m., the California Supreme Court will hear oral argument in Abbott Laboratories v. Superior Court (Rackauckas), no. S249895, which presents this UCL-related question (quoted from the Court's online docket): 

Does a district attorney have the authority to recover restitution and civil penalties under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) for violations occurring outside his or her territorial jurisdiction?

The Court of Appeal said no, on a 2-1 vote (see this blog post).  The parties' Supreme Court briefs are available here.

This is the first week of oral arguments since the full scope of the COVID-19 pandemic became clear.  The Supreme Court has issued two standing orders on argument procedure (see this order dated March 16, 2020 and this order dated March 27, 2020).  All arguments will take place in San Francisco until further notice.  Arguing counsel will participate remotely, as will at least two of the seven justices.  No more than 15 members of the press will be allowed in the courtroom at any one time.  They will be admitted on a first come, first served basis.  The public may observe by live video stream.

Per the latest updated argument calendar, Abbott Laboratories will be the first case argued under the new rules. The logistics may be complicated by the fact that the real party in interest requested, and was granted, leave to share 10 minutes of argument time with counsel for several amici curiae.   Justice Chin and Justice Fujisaki (of the First Appellate District, Division Three, assigned pro tempore in place of Justice Groban, who is recused) are the two justices who will participate remotely, according to the webcast information.  The live-stream video can be accessed on this page, at a link to be posted shortly before the argument begins.   

Justice Bedsworth on telephonic appellate oral arguments

In his latest column for The Recorder, Justice Bedsworth tells the story of the last time he went for weeks without a haircut (it sounds pretty serious, actually, a cerebral aneurysm in 1988 requiring cranial surgery).  He also has some news on how telephonic appellate arguments have been going so far in the Fourth Appellate District, Division Three: 

We’re doing telephonic oral arguments now. I’ve learned to limit my questions; there’s a short time delay in the telephonic connection and a question often interrupts an attorney who’s already started another thought. It can throw off their timing and make it hard for them to stay on topic.

And no unnecessary comments. It’s been my practice to make occasional efforts to say things that will relax the attorneys before me. Relaxed people perform better than nervous ones. But that doesn’t work with telephonic oral arguments. Turns out statements from someone whose smile cannot be seen are ineffective as tension dampers.

Stay safe, Justice Bedsworth, and thanks for the window in.  (For a roundup of advice on remote appellate arguments, see this blog post.)

Conducting appellate oral arguments remotely (Updated)

As I mentioned the other day, the Supreme Court has ordered that counsel arguing the cases on the April calendar (and all future calendars until further notice) will appear "remotely via video conference, by telephone conference, or by other electronic means."  Matthew Steigler of CA3blog has posted some tips for presenting appellate oral arguments by phone, based on his recent experience helping prepare for such an argument in the Third Circuit.  The advice seems sound.  A remote appellate argument before a multi-judge panel will not be the same as a CourtCall appearance before a single superior court judge.

UPDATE:  Benjamin Glassman of Sixth Circuit Appellate Blog also offers tips for advocates on telephonic appellate arguments, based on his personal experience.  An excerpt:

Oralists and judges alike are deprived of the visual cues that can make argument so efficient and effective—body language and facial expressions that indicate confusion or disagreement or interest. Just asking and answering questions become more challenging.  These challenges make the strategy behind oral argument preparation all the more important.

[h/t How Appealing]

A true appellate unicorn: City of Warren Police and Fire Retirement Sys. v. Natera Inc. (Updated)

There has been a unicorn sighting in San Mateo County.  The Court of Appeal (First Appellate District, Division Two) filed an opinion in a securities class action asserting claims under federal law that was not removed to federal court!  City of Warren Police and Fire Retirement System v. Natera Inc., ___ Cal.App.5th ___ (Feb. 28, 2020; pub. ord. Mar. 23, 2020). 

In other news, the Chief Justice issued a statewide order continuing all jury trials for 60 days, with a concomitant extension of the 5-year rule for all civil matters (and the 3-year rule for post-new trial and post-appeal cases).  She has also authorized all six appellate districts to extend filing deadlines as they see fit.  (At some point, it would be very helpful to law firm operations if the appellate courts moved to all-electronic systems for both filing and service copies of documents.)  See this post (evening of March 23) and this post (morning of March 24) from At the Lectern. As of this writing, the latest emergency order of the Los Angeles County Superior Court is available here.  Essentially, all courthouses are closed to the public until further notice.

UPDATE:  SCOCAblog has a very interesting post on the Chief Justice's authority (statutory, constitutional, and inherent) to issue a statewide order continuing all jury trials. 

An appellate unicorn? DHI Cherry Glen Associates, L.P. v. Gutierrez

At the height of my work on this blog, I used to wait with bated breath for the Supreme Court to post the results of its weekly conferences.  It was so exciting every week, especially before the Court altered the format of its reports.  Used to be, the conference actions were listed in order by category, with the Court's proverbial A-list, B-list and C-list cases listed in separate alphabetical groups.  Or at least, that's how I interpreted the reports. It was very interesting and informative to see which cases made it into the B-list (so close!) and which were relegated to the purgatory of habeas corpus denials and attorney accusations. 

A few years ago, the format of the reports was changed.  Now, you can see the A-list cases in the first grouping, followed by a long alphabetical list of all the rest of the cases.  The newly-formatted reports were much less interesting, and I gradually stopped reading them as regularly as I used to.  (Also, the Court started posting the lists the day after the conferences, instead of the same day, which made them much less useful to your roving reporter.)

Well, this week, "sheltering in place" at home, with less to do than normal, I checked the conference reports again.  Lo and behold, something miraculous had happened (on March 11, 2020).  There in the A-list was a case in which the Supreme Court had granted a publication request!  That almost never happens.  (Usually, if the Court of Appeal denies a publication request, that's the end of it, even though technically speaking there's one last chance because all denied publication requests are forwarded to the high court for what is almost always a final no.  See Cal. Rules of Ct., rule 8.1120(b).)  What could this unicorn be? 

In DHI Cherry Glen Associates, L.P. v. Gutierrez, ___ Cal.App.5th Supp. ___ (Nov. 15, 2019; pub. ord. Mar. 11, 2020), the Appellate Division of the Yolo County Superior Court reversed an unlawful detainer judgment.  The Appellate Division asked the Supreme Court to publish (docket). 

This may be a notable case in the landlord-tenant arena, but it wasn't really a unicorn after all.  Too bad, because we could use some unicorns and some rainbows right about now.   A storm is in the forecast for the weekend. 

Court orders to manage the COVID-19 crisis (Updated)

This past Tuesday was the first day of the "shelter in place" order in San Francisco, and probably my last day physically in the office for a while.  (The "shelter in place" order permits businesses to conduct "Minimum Basic Operations" onsite, including "[t]he minimum necessary activities to maintain the value of the business's inventory, ensure security, process payroll and employee benefits, or for related functions" and "[t]he minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences," both of which I was endeavoring to do for my firm on Tuesday.  In addition, the order exempts "Essential Businesses," which includes "[p]rofessional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities," whatever that means.) 

Meanwhile, I had made a promise to try to finalize and file an amicus curiae letter in support of review in a pending Supreme Court case.  (I'll do a post about that case later. UPDATE Apr. 14, 2020: See this blog post.)  As of Tuesday, the Court's requirement for paper copies remained in place.  So, we decided to mail the paper copies instead of sending a messenger, which we would normally do.  Then, on Wednesday, the Supreme Court suspended the paper copies requirement.  (May I say that this change is one I hope "sticks" after this is all over.  The N.D. Cal. also suspended the requirement to deliver paper courtesy copies to chambers, yahoo!) 

Things are changing so fast, and every day brings new orders, with no consistency (yet) across the state's judicial branch or among the federal district courts.  All of us have pending cases in different courts and are wondering whether and when those matters will be directly affected by sua sponte court-ordered continuances or courthouse closures.  Here are some useful links: 

• "How COVID-19 Is Impacting the California Courts: Roundup of Services," The Recorder (Mar. 17, 2020).  The Recorder appears to be regularly updating this story as new orders are issued.  Also, the Recorder has lifted its paywall for all stories related to the crisis.  Thank you to the Recorder for doing that. 
• California Supreme Court's list of emergency orders. Evidently, the Supreme Court has to approve requests by the various Superior Courts for extensions and closures.  As a result, this list is a useful tool, but personally I would recommend visiting the page of the particular Superior Court in question to double-check exactly what has been ordered. 
• One Legal's "California court updates - Covid 19" page.  The attorney service One Legal appears to be collecting useful updates on this page, with links. 

Good luck to everybody in managing life during this strange period of time.  A pandemic, really? That's for science fiction novels. 

UPDATE Mar. 21, 2020:  In addition to the links above, Consumer Attorneys of California has this resource, which seems to be accessible to members and non-members alike:

• CAOC's Coronavirus-Related Court Announcements

California Supreme Court victory: Frlekin v. Apple Inc.

To my dear, loyal readers:  I know I haven't been blogging regularly for some time, but I wanted to post today to share some excellent news.  I won my second California Supreme Court case!  In Frlekin v. Apple Inc., ___ Cal.5th ___ (Feb. 13, 2020), in a unanimous opinion by Chief Justice Cantil-Sakauye, the Supreme Court held that time spent by my clients undergoing security searches of their purses, bags, backpacks, and Apple-branded technology devices is compensable "hours worked" under Wage Order 7.

This decision has been a long time coming.  The case was filed in 2013 and class certification was granted in 2015.  We then lost on cross-motions for summary judgment on liability.  We appealed to the Ninth Circuit, and asked that Court to refer the question to the California Supreme Court, which it did in 2017.  Frlekin v. Apple, Inc., 870 F.3d 867 (9th Cir. 2017).  (The Ninth Circuit oral argument video can be viewed at this link, and the audio is at this link.)  After full briefing, I presented oral argument in the California Supreme Court on December 4, 2019 (viewable here). 

Many people provided assistance and support throughout this process, including my co-counsel Lee Shalov of McLaughlin & Stern in New York, my colleague Kate Rogers, and the authors of the amicus curiae briefs, namely, Gregg Adam (whose brief was quoted in the opinion), Aaron Kaufmann, Ari Stiller, and Dave Mara.  My sincere thanks to all.  We still have work to do in the case but this is a huge milestone. 

I have received calls from many reporters today.  The press coverage has been rather extensive, including articles in the San Francisco Chronicle, the Los Angeles Times, The Recorder, Bloomberg Law, and numerous other outlets.  From The Recorder: 

Plaintiffs' attorney, Kimberly Kralowec of San Francisco's Kralowec Law Group, praised the decision.  "The court carefully adhered to both the text and the purpose of the wage orders, which is to protect California employees and ensure employees are compensated for all time worked," she said.  "This is a very good day for employees working in California."

A very good day, indeed. 

Class actions and the "five-year" rule: Rel v. Pacific Bell Mobile Servs.

In Rel v. Pacific Bell Mobile Services, ___ Cal.App.5th ___ (Mar. 29, 2019), the Court of Appeal (First Appellate District, Division Five) reviewed the dismissal of a putative class action under the "five-year" rule (Code Civ. Proc. §583.310). The panel considered, among other issues, the interplay between the dismissal statutes and interim "death knell" appeals from orders denying class certification.

Another recent class certification opinion: Jimenez-Sanchez v. Dark Horse Express, Inc.

Well, perhaps it's not so recent, having been decided in January.  Everything is relative.  In Jimenez-Sanchez v. Dark Horse Express, Inc., 32 Cal.App.5th 224 (Jan. 16, 2019; pub. ord. Feb. 14, 2019), the Court of Appeal (Fifth Appellate District) reversed an order denying class certification of certain wage and hour claims, including a claim that the defendant failed to provide paid rest breaks to the plaintiff piece-rate truck drivers, in violation of Wage Order 9 as construed in Bluford v. Safeway Stores, Inc., 216 Cal.App.4th 864 (2013).

One curious aspect of this opinion is the Court's apparent assumption that Bluford applies prospectively only: 

In sum, at least as to claims arising after the decision in Bluford, plaintiffs’ claims for separate compensation for rest breaks presented some common factual and legal issues that the trial court should have considered ....

Jimenez-Sanchez, 32 Cal.App.5th at 709 (emphasis added).  Elsewhere in the opinion, the panel offered a similar comment about Gonzalez v. Downtown LA Motors, LP, 25 Cal.App.4th 36 (2013):

We note that the Gonzalez decision was issued in 2013 .... The proposed class period began in 2010. Plaintiffs assume the legal issue is a common issue, without discussing whether the law remained the same throughout the class period. Plaintiffs have not discussed the state of the law on this issue prior to Gonzalez.

Id. at 703.

The California Supreme Court has repeatedly recognized that new opinions construing civil statutes are given retroactive effect because they simply declare what the statutes have always required.  (The exceptions to this principle are exceedingly narrow, such as when a new opinion overrules a settled prior holding of a court of last resort and retroactive application would be manifestly unjust.)  In Bluford, the Court of Appeal construed Wage Order language dating back decades.  Since 1952, Wage Order 9 has always said that "[a]uthorized rest period time shall be counted as hours worked" and that "all hours worked" shall be paid.  Regardless of when Bluford was decided, Bluford's holding has been the law for more than sixty-five years; Bluford simply applied that law in the specific context of piece-rate compensation (a method of compensation that dates back to the very first Wage Order (adopted in 1916) and was permitted by Wage Order 9-52). 

In the Bluford case itself (in which I served as co-counsel after the appeal was concluded), there was no question the appellate opinion applied to all of the defendant's violations preceding the opinion's publication.  The class period began, not when Bluford was decided, but on October 1, 2000, the effective date when premium wages for rest break violations first became law.  (Incidentally, after remand, the trial court in Bluford held that premium wages were recoverable for failing to provide paid rest breaks--a "legal question" that Jimenez-Sanchez says "may be common for all putative class members, at least for the time period after the decision in Bluford."  32 Cal.App.5th at 708.)

The retroactivity issue was obviously not briefed in Jimenez-Sanchez, and given settled Supreme Court law, I can certainly understand why the parties saw no need to address it.  An order for further briefing on the topic would have been an excellent way for the Jimenez-Sanchez court to proceed.  I observe that depublication requests and a petition for review are pending.

Ninth Circuit grants en banc rehearing in class action settlement case: In re Hyundai and Kia Fuel Economy Litigation

As I predicted in April, the Ninth Circuit has granted en banc rehearing and will reconsider the panel decision in In re Hyundai and Kia Fuel Economy Litigation, 881 F.3d 679 (9th Cir. 2018) (discussed here, here, and here). 

According to this article in The Recorder (subscription), the matter will be set for oral argument during the week of September 24, 2018 in Pasadena, California. 

I recently had the privilege of presenting oral argument in the Ninth Circuit's courthouse in Pasadena.  It is a lovely building and location.  It was one of the last arguments heard by the late, great Judge Stephen Reinhardt, having taken place about three weeks before he died.  I was very saddened to hear about his passing so soon after I had argued before him. 

The Ninth Circuit's opinion, which was a win for us, was handed down just a few days before his death.  When the defendant sought rehearing, Judge Wardlaw was assigned to the case in Judge Reinhardt's place, but he signed the original opinion, which turned out to be one of his last.  See Robinson v. OnStar, LLC, 721 Fed. Appx. 704 (9th Cir. 2018) (modified opinion reversing district court's order compelling individual arbitration). 

"Supreme Court swipes left on Tinder petition for review"

As reported on Wednesday by my fellow bloggers over at At the Lectern, the Supreme Court denied review this week in my Unruh Act and UCL case for age discrimination against Tinder.  Candelore v. Tinder, No. S247527.  See these two blog posts for more about the case. 

I'm particularly pleased by this result.  This one was a challenge, given the published opinion and what, at first glance, might look like a split in authority between intermediate appellate decisions.  I worked hard to craft a series of compelling reasons for denying review, and I'm very happy that the Supreme Court seems to have found them persuasive. 

The denial of review sends a strong signal that the Court of Appeal correctly decided the case and properly construed the Supreme Court’s Unruh Act precedents.  The Court of Appeal's published opinion is Candelore v. Tinder, Inc., 19 Cal.App.5th 1138 (2018). 

New opinion expected today on appellate standing: Hernandez v. Restoration Hardware, Inc. (Updated)

Today at 10:00 a.m., the Supreme Court will hand down its opinion in Hernandez v. Restoration Hardware, Inc., No. S233983.   This opinion will address whether an unnamed class member must "intervene in the litigation in order to have standing to appeal" any portion of a class action judgment (in a non-settlement context). See this blog post for more on the case.

When the opinion is posted, it should be available at this link:

• Hernandez v. Restoration Hardware, Inc., ___ Cal.5th ___ (Jan. 29, 2018).  UPDATE: It turns out that the opinion did address the settlement context.  The Court held that in order to have standing to appeal any kind of judgment, even one entered following a settlement, the unnamed class member must have intervened below; merely filing an objection to the settlement is not sufficient. 

By the way, within the past couple of months, something changed in the permalinks to the Court's online dockets at appellatecases.courtinfo.ca.gov. I first noticed it when some of my bookmarks on my web browser were broken.  This means that many of the docket links in my past blog posts are now broken as well.  Those older links will take you to the Court's main docket search page, and you'll have to re-enter the case number or party name to find the docket. 

Happy New Year 2018!

Happy New Year to my lovely, loyal readers!  I hope your holidays were both: (a) wonderful; and (b) less busy than mine were.  Shortly before Christmas, I filed an opening brief on the merits in the California Supreme Court—my second Supreme Court case! (My first one was Brinker.)  Then, after taking a very short break for the holiday, I've been putting in long and heavy hours preparing to meet two other appellate deadlines on back-to-back dates coming up very soon this month. 

Since my last post in early December, some interesting new opinions have come down, and I hope to have time to start covering them in a few weeks.  Meanwhile, please continue to email me with UCL or class action comments or with news on interesting decisions.  I always enjoy hearing from those who take time out of their busy days to read this blog.  It's hard to believe that I first started doing this more than 14 years ago.  During all that time, my best motivation to continue has always been your page views and positive feedback. 

Ninth Circuit appealability opinion: Brown v. Cinemark USA, Inc.

In Brown v. Cinemark USA, Inc., ___ F.3d ___ (9th Cir. Dec. 7, 2017), the Ninth Circuit held that the plaintiffs could pursue their appeal from the district court's order denying class certification, even though they had settled their individual claims, because the settlement was not a "sham tactic" to create an appealable judgment.  

In so holding, the panel distinguished Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017) (discussed in this blog post): 

Unlike the plaintiffs in Baker, Brown and De La Rosa continued litigating their remaining individual claims after the district court denied class certification. Some of these individual claims resolved in favor of Defendants and some resulted in settlement. No facts suggest that Brown and De La Rosa engaged in sham tactics to achieve an appealable final judgment. The resolution of the present case was not a unilateral dismissal of claims, but a mutual settlement for consideration reached by both parties which expressly preserved certain claims for appeal. This case is unlike Baker, where the plaintiffs openly intended to sidestep Rule 23(f) when they voluntarily dismissed their claims.

Slip op. at 5 (emphasis added).  For these reasons, the panel denied the defendants' motion to dismiss the appeal. 

In a separate, unpublished opinion, the panel reversed the order denying class certification, apparently because the district court had ruled "on the basis of the pleadings," without the benefit of evidentiary submissions that would allow a full "Rule 23 analysis."

Class action objector case also set for argument in November: Hernandez v. Restoration Hardware, Inc.

Last week, the Supreme Court also announced that Hernandez v. Restoration Hardware, Inc., No. S233983, will be orally argued on Tuesday, November 7, 2017 at 10:00 a.m. in Sacramento. In fact, this case is first on the list, so it will be argued before Solus (which I discussed yesterday).

This case presents the following issue, according to the docket:

Must an unnamed class member intervene in the litigation in order to have standing to appeal? (See Eggert v. Pac. States S. & L. Co. (1942) 20 Cal.2d 199.)

(Hyperlink added.)  The Court of Appeal said yes, and dismissed, for lack of jurisdiction, an objector's appeal from a post-trial judgment in a class action.  Hernandez v. Restoration Hardware, Inc., 245 Cal.App.4th 651 (2016), review granted.  The objector wished to challenge the amount of fees awarded to class counsel from the $36 million common fund created when the jury entered its verdict in favor of the class.  See id. 

Here is my blog post on the Court of Appeal's opinion, and copies of the merits briefs are available at this link.  Interestingly, the objector in this case is represented by the same counsel who represented the objector (unsuccessfully) in Laffitte v. Robert Half International, Inc., 1 Cal.5th 480 (2016) (discussed in this blog post). 

U.S. Supreme Court addresses appealability of class certification rulings: Microsoft Corp. v. Baker

In Baker v. Microsoft Corp., 797 F.3d 607 (9th Cir. 2015), the district court granted the defendant's motion to strike the class allegations.  The plaintiff sought discretionary review under Rule 23(f), but that petition was  denied.  Thereafter, to facilitate appellate review, the named plaintiff voluntarily dismissed the action with prejudice.  The Ninth Circuit exercised appellate jurisdiction, observing that the dismissal was not the result of a settlement, and reversed the order striking the class allegations.  (See this blog post for more on that decision.) 

The U.S. Supreme Court granted the defendant's cert. petition on the appellate jurisdiction question only, and this month, reversed.  The Court held that a judgment resulting from a voluntary dismissal does not qualify as a "final" decision within the meaning of 28 U.S.C. section 1291, settlement or no.  Microsoft Corp. v. Baker, ___ U.S. ___ (Jun. 12, 2017). 

The opinion (by Justice Ginsburg) includes an interesting discussion of the "death knell" doctrine as it exists under federal law.  Slip op. at 2-4.  Of course, California law on appealability of class-certification-related orders is quite different from federal law.  See, e.g., In re Baycol Cases I & II, 51 Cal.4th 751 (2011). 

The good news (for plaintiffs) is that the Ninth Circuit's substantive discussion of the class certification ruling has not been disturbed.  As to those holdings, the opinion remains a citable precedent, albeit one that has been "vacated on other grounds." 

Ninth Circuit addresses appealability of class certification orders: Bates v. Bankers Life and Casualty Co.

In Bates v. Bankers Life and Casualty Co., ___ F.3d ___ (9th Cir. Feb. 24, 2017), the Ninth Circuit dismissed, for lack of jurisdiction, an appeal from an order striking class allegations from the complaint: 

There are only two procedural avenues for appealing an order striking class allegations made under Federal Rule of Civil Procedure 23: (1) asking the district court to certify an order for interlocutory review pursuant to 28 U.S.C. § 1292(b); or (2) filing a petition for permission to appeal pursuant to Federal Rule of Civil Procedure 23(f). See Plata v. Davis, 329 F.3d 1101, 1107–08 (9th Cir. 2003); Kamm v. Cal. City Dev. Co., 509 F.2d 205, 206 (9th Cir. 1975). ....  Plaintiffs did not use either of these procedural avenues, and we therefore lack jurisdiction to hear their challenge to the order striking their class allegations.

Slip op. at 6-7.   

If pending H.R. 985 passes, this would all change.  Among other attacks on the class action process, the bill would make all orders either denying or granting class certification immediately appealable as of right.  That would automatically add at least a two-year delay in the middle of almost every class action.  (Something similar was proposed in California some time ago, but never made it out of committee.)  Please contact your representative and tell him or her to vote no on H.R. 985.  For those on the defense side, consider the fact that curtailing class actions, which is the goal of this bill, would be bad for your law practice.  The fewer class actions, the fewer cases for clients to hire you to defend. 

New Ninth Circuit CAFA opinion: Chan Healthcare Group, PS v. Liberty Mut. Fire Ins. Co.

In Chan Healthcare Group, PS v. Liberty Mutual Fire Insurance Co., ___ F.3d ___ (Jan. 3, 2017), the Ninth Circuit construed the CAFA provision governing appealability of remand orders. 

The opinion's first paragraph reads:

This consolidated appeal presents an issue of first impression in our circuit, namely the scope of appellate jurisdiction to review a district court’s remand order in a class action case founded on federal question jurisdiction. Remand orders are not appealable as a matter of course. 28 U.S.C. § 1447(d). Nonetheless, as part of the Class Action Fairness Act of 2005 (“CAFA”), Congress created an exception under 28 U.S.C. § 1453(c)(1) that permits courts of appeals to accept appeals from remand orders in cases that are removed “under this section.” Joining our sister circuits, we conclude that this interlocutory review provision is limited to orders granting or denying remand of diversity class actions brought and removed under CAFA.

Slip op. at 3.

Pending U.S. Supreme Court case of interest: Microsoft Corp. v. Baker

In January, the U.S. Supreme Court granted cert. in Microsoft Corp. v. Baker, No. 15-457.  The case is now fully briefed and awaiting oral argument. 

In Baker v. Microsoft Corp., 797 F.3d 607 (9th Cir. 2015), the district court granted the defendant's motion to strike the class allegations, and the plaintiffs filed a Rule 23(f) petition, which was denied.  Thereafter, the parties stipulated to dismiss the action with prejudice, and the plaintiffs filed an ordinary appeal from the ensuing judgment.  The Ninth Circuit rejected the defendant's argument that the judgment was not appealable:

As this case did not involve a settlement, Berger establishes that “[w]e 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 512 (quoting Berger v. Home Depot USA, 741 F.3d 1061 (9th Cir. 2014)) (discussed in this blog post). 

On the merits, the Court reversed the order striking the class allegations, holding that individualized issues of causation did not preclude class certification in a product defect action for breach of express and implied warranty.  Id. at 612-15. 

[I]n this case, although individual factors may affect the timing and extent of the disc scratching, they do not affect whether the Xboxes were sold with a defective disc system. Plaintiffs contend that (1) whether the Xbox is defectively designed and (2) whether such design defect breaches an express or an implied warranty are both issues capable of common proof. We agree that, as in Wolin, these issues are susceptible to proof by generalized evidence and do not require proof of individual causation.

....

Similarly, proof that the allegedly defective disc system caused individual damages is not necessary to determine whether the existence of the alleged design defect breaches Microsoft's express warranty. Rather, plaintiffs' breach of express warranty claim presents a common factual question—is there a defect?—and a common mixed question of law and fact—does that defect breach the express warranty? We conclude, as we did in Wolin, that the district court erred in finding that individual issues of causation predominate over these common questions.

Id. at 613 (citing Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1172-74, 1176 (9th Cir. 2010)) (see this blog post). 

In its cert. petition, Microsoft challenged only the appealability ruling.  When the Supreme Court granted cert., it framed the issue as follows: 

Whether a federal court of appeals has jurisdiction under both Article III and 28 U. S. C. §1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice.

The SCOTUSblog case page, with links to all the briefs, is here.  Nine amicus curiae briefs have been filed, including briefs by Public Justice and Public Citizen, as well as a number of defense-side organizations.

Supreme Court now publishes a "Pending Issues Summary"

Sometime earlier this year, the California Supreme Court started publishing a Pending Issues Summary for civil cases (and one for criminal cases).  This useful document serves as a list of all cases accepted for review and summarizes the issues presented in those cases.

The current civil case list is available at this link. 

Supreme Court takes up appellate standing issue: Hernandez v. Restoration Hardware

In June, the Supreme Court granted the petition for review in Hernandez v. Muller (Restoration Hardware), No. S233983.  This is the statement of the issue on review:

Must an unnamed class member intervene in the litigation in order to have standing to appeal? (See Eggert v. Pac. States S. & L. Co. (1942) 20 Cal.2d 199.)

(Hyperlink added.)  In an opinion handed down in March, the Court of Appeal said yes.  Hernandez v. Restoration Hardware, Inc., 245 Cal.App.4th 651 (2016), review granted.  (The grant of review renders the opinion uncitable pursuant to former Rule of Court 8.1115.)

Hernandez is a class action alleging violations of the Song-Beverly Credit Card Act.  245 Cal.App.4th at 654.  After class certification, the case went to trial, and the class prevailed.  Judgment in the amount of approximately $36 million was entered.  Id. at 655.  Plaintiffs then moved for an award of attorneys' fees for class counsel from out of the common fund.  An unnamed class member opposed the motion, and argued, among other things, that notice of the fee motion should be provided to all class members, and an opportunity object afforded.  The trial court disagreed, and granted the fee motion in full.  Id. at 656.  The objector appealed.

The Court of Appeal dismissed the appeal for lack of jurisdiction, holding that the unnamed class member was not a "party," as required for standing to appeal under Code of Civil Procedure section 902 and the Supreme Court's opinion in Eggert, which the Court of Appeal described as "on all fours" and binding under Auto Equity Sales.  245 Cal.App.4th at 658-63.

The Court of Appeal did not reach the objector's substantive complaints about the fee award, which included the argument that the trial court, "by calculating the award based on a percentage of the common fund rather than by a properly rigorous lodestar multiplier approach, transgressed controlling California precedent."  Id. at 657.  This argument was, of course, rejected in Laffitte this month (as discussed in this blog post).  The objector in Hernandez is represented by the same counsel as the objector in Laffitte.  The opening brief is due on September 19, 2016.

Amended rules governing publication of Court of Appeal opinions

For over a century, the rule in California has been that when the Supreme Court grants review, the Court of Appeal's opinion, if previously published, is automatically depublished and rendered uncitable, unless the Supreme Court otherwise directs.  See Former Rule of Court 8.1105, subd. (e)(1). 

Effective July 1, 2016, this has changed.  The Rules of Court were amended to state that a grant of review by the Supreme Court no longer automatically depublishes a published Court of Appeal opinion.  Instead, a published Court of Appeal opinion "may be cited for potentially persuasive value."  Rule of Court 8.1105, subd. (e)(1).  However, while review is pending, the opinion "has no binding or precedential effect," and "[a]ny citation to the Court of Appeal opinion must also note the grant of review and any subsequent action by the Supreme Court."   Id.

After the Supreme Court renders its decision on review, the Court of Appeal opinion then becomes both “citable and has binding or precedential effect, except to the extent it is inconsistent with the decision of the Supreme Court or is disapproved by that court.”  Id., subd. (e)(2) (emphasis added). 

Since the July 1 effective date, the Supreme Court has granted review in six cases in which the Court of Appeal's opinion was published.  Five of those are criminal or habeas matters; the fifth is an anti-SLAPP case, Crossroads Investors, L.P. v. Federal National Mortgage Association, 246 Cal.App.4th 529 (2016), review granted, No. S234737 (Cal. Jul. 27, 2016). 

Westlaw is on top of things.  The Crossroads opinion is shown with a yellow flag and a citation to the amended Rule, whereas the Court of Appeal's opinion in Laffitte, in which review was granted before the effective date of the amended Rule, is shown with a red flag. 

Judge Kozinski on overlength briefs in the Ninth Circuit: Cuevas v. Hartley

Recently, in Cuevas v. Hartley, ___ F.3d ___ (9th Cir. Aug. 4, 2016), Judge Kozinski dissented from an order granting the California Attorney General leave to file an overlength brief — which he referred to as a "fat" and "chubby" brief — that exceeded the word-count limit of Circuit Rule 32 (a)(7)(B)(i).  He said that "no coherent explanation" was given for why the AG needed an extra 14 pages of briefing space: 

This has become a common and rather lamentable practice: Instead of getting leave to file an oversized brief before the deadline, lawyers wait for the last minute to file chubby briefs and dare us to bounce them. Of course, it’s hard to decide cases without a brief from one of the parties, and denying the motion usually knocks the briefing and argument schedule out of kilter. Denying the motion is thus more trouble than allowing the brief to be filed and putting up with the additional unnecessary pages. Sly lawyers take advantage of this institutional inertia to flout our page limits with impunity. This encourages disdain for our rules and penalizes lawyers, like petitioner’s counsel, who make the effort to comply.

Slip op. at 3-4 (emphasis added).

He went on to say that he would not read past the first 14,000 words of the overlength brief, and invited the state to file, within 7 days, "a substitute brief" that met the word-count limit.  Id. at 4. 

The lesson is obvious: comply with the word-count limit, or provide strong justifications for requesting extra space.  I do feel for the AG's lawyers, however.  Judge Kozinski must have had good reasons for suggesting that they had engaged in "sly" behavior that showed "disdain" for the rules, but it is always disappointing when judges become so frustrated that they use that kind of language about members of the bar.  "Sly" essentially means dishonest, which is a heavy accusation to hear from any judge, let alone a former Chief Judge of the Ninth Circuit. 

Concurring opinion discusses "abuse of discretion" standard of review: Gaines v. Fidelity National Title Ins. Co. (Updated)

This case is neither a UCL case nor a class action, but I mention it because the concurring and dissenting opinion has a very interesting discussion of the "abuse of discretion" standard of review.  Gaines v. Fidelity National Title Ins. Co., ___ Cal.App.4th ___ (Dec. 12, 2013) (Second Appellate District, Division Eight) (Rubin, J., concurring).

That discussion begins:

As appellate judges we are taught to consider each case in the context of the applicable standard of review which, for the most part, is one or more of substantial evidence, abuse of discretion, and de novo review.  Many appellate decisions and some commentators have criticized the abuse of discretion standard as the most misused and most misunderstood of these.  Our colleague in Division 6, Justice Gilbert, has said that the “abuse of discretion standard is itself much abused.”  (Ziesmer v. Superior Court (2003) 107 Cal.App.4th 360, 363.)  It is indeed.

Conc. opn. of Rubin, J., slip op. at 1. 

UPDATE:  On April 16, 2014, the Supreme Court granted review in this case.  Gaines v. Fidelity National Title Ins. Co., No. S215990.  This is the issue on review, according to the docket: 

Was this action properly dismissed for the failure to bring it to trial within five years or should the period during which the action was stayed for purposes of mediation have been excluded under Code of Civil Procedure section 583.340, subdivision (b) or (c)?

The Court of Appeal (Second Appellate District, Division Eight) held that the trial court did not abuse its discretion in dismissing the action as to all but one defendant.  Gaines v. Fidelity National Title Ins. Co., 222 Cal. App. 4th 25 (2013).

RIP, appellate lawyer Sandy Svetcov

I was very saddened to hear the news of the untimely passing of appellate attorney Sandy Svetcov of the Robbins Geller firm, who died last Friday of cancer at age 72.  Sandy was so kind and encouraging to younger appellate lawyers.  The plaintiffs' bar has suffered an irreplaceable loss.  

The Ninth Circuit issued this press release, and the Recorder had this story.

My sympathies go out to his family and his colleagues at Robbins Geller.   [Via How Appealing]

UPDATE:  On Monday, the San Franciso Chronicle had this obituary by Bob Egelko.

Daily Journal: "Depublication of employment appellate rulings stirs curiosity"

On Wednesday, the Daily Journal had a front-page article on the Supreme Court's decision to depublish three post-Brinker Court of Appeal opinions on meal periods (discussed here and here).  An excerpt:

Kimberly A. Kralowec of the Kralowec Law Group filed a depublication request for each of the three cases in question, though she was not otherwise involved in them. She asserts the decisions misstated the Supreme Court's analysis in Brinker by relying on an older analysis of the word "provide" that refers to the dictionary and interprets the phrasing to mean the employer meets the obligation by simply offering breaks.

"It's a lot more than just offering or authorizing a break," Kralowec said. "The employer has to take affirmative steps to relieve workers of all duty, and refrain from doing anything that would interfere with the employees' ability to take a break."

The reporter, Laura Hautala, also interviewed former Justice Carlos Moreno about the development:

[F]ormer Justice Carlos R. Moreno, who retired from the state Supreme Court in 2011, said that depublished cases typically have something in them that's inconsistent with the high court's own precedent. 

"If a case is really off the mark, then the court will elect that remedy," he said.

Mine were not the only depublication requests.  Michael Singer filed requests for CELA in Hernandez and Lamps Plus; Joseph Antonelli filed a request for his clients in Tien; and Eve Cervantez filed a request for a group of workers in Lamps Plus. 

All of the requests made essentially the same argument -- that the Court of Appeal was badly misinterpreting the Brinker opinion.  My requests also pointed out that in so doing, the Court of Appeal failed to adhere to the rule of stare decisis, which requires allegiance not only to the high court's holdings, but also its reasoning.  All three opinions were "really off the mark" because they did not adhere to either the ultimate holding or the reasoning of Brinker.

Recently, on January 7, 2013, The Recorder had a front-page article on the first two depublication orders.  The article, "High Court Tees Up Number of Post-Brinker Cases," preceded the depublication order in Tien, handed down on January 16.  An excerpt:

In a dramatic move, the state Supreme Court depublished two of those rulings — Lamps Plus Overtime Cases, 195 Cal.App.4th 389, and Hernandez v. Chipotle Mexican Grill, 208 Cal.App.4th 1487. In both cases, the Second District had denied class certification.

Kimberly Kralowec of The Kralowec Law Group said in both rulings the Second District had "misinterpreted the Brinker decision, in particular what employers have to do to comply with their meal period obligations." Depublishing, she said, "was a very strong signal that the court disagreed with the analysis" in those two cases.

Needless to say, I'm very pleased to have done my part to achieve depublication in these cases, and I think that depublishing the opinions was the correct outcome, given that the Supreme Court is apparently not ready to revisit any of the issues addressed in Brinker by granting review in these cases. 

I am equally pleased by the press attention these developments have garnered.   That the Supreme Court would depublish three opinions like this is pretty remarkable, whatever the issue.  Many lawyers have sent expressions of thanks and contratulations which I have been so pleased and proud to hear. Congratulations are also due to Michael, Joe and Eve.