The UCL Practitioner

Brinker update

I have updated my Brinker page to include the additional briefing filed since the case was argued on November 8, 2011.   Links to the briefs also appear at the end of this post.

Contrary to the suggestion of some news reports, the Court did not order this briefing sua sponte.

Rather, in late November, the California Employment Law Council (an employer-side organization) filed an application for leave to file a post-argument amicus curiae brief. 

Post-argument briefing is highly unusual.  The purported justification for CELC's application was Justice Baxter's question, posed to Brinker's counsel during the argument, about whether any of the Court's forthcoming rulings should apply prospectively only (rather than retrospectively in accordance with the general rule).  The real point of the application could only have been to create an opportunity to re-argue the merits of the meal period timing issue, which the attorneys for CELC apparently believed Brinker was losing.

The Supreme Court granted this application in an order filed on December 2, 2011.  The order granting the application also gave the parties leave to answer if they chose to do so.  Our answer to CELC's post-argument brief was filed on January 3, 2012 (after the Court denied our application for an extension of the deadline), and Brinker's was filed a day later, on January 4, 2012.  Simultaneous replies were filed on January 13, 2012. 

When the Court granted CELC's application, it also issued an order vacating submission of the cause pursuant to Rule of Court 8.524(h)(1).  This order stated that the cause would be resubmitted on January 13, 2012.  No further order was issued on that date, so presumably the resubmission occurred automatically pursuant to this earlier order. 

This re-starts the Court's 90-day period to hand down its opinion.  The Court now has until approximately April 12, 2012 to rule (instead of early February, when the opinion would have been due otherwise).  Of course, it may rule earlier. 

Meanwhile, on December 16, 2011, Brinker applied for leave to file a supplemental brief pursuant to Rule of Court 8.520(d) to bring a federal district judge's order to the Court's attention.  This again read primarily as an attempt to re-argue the merits of the case.  The Court granted the application. 

Here are links to the additional briefs:

• Application for Leave to File and Post-Argument Amicus Curiae Brief of California Employment Law Council (filed 12/02/11) (in support of the employer)
• Real Parties' Opposition to Application of California Employment Law Council to File Post-Argument Amicus Brief (filed 12/02/11)
• Supplemental Brief on Nguyen v. Baxter Healthcare (filed by Brinker 12/20/11)
• Real Parties' Answer to California Employment Law Council's Post-Argument Amicus Brief (filed 01/03/12)
• Brinker's Answer to California Employment Law Council's Post-Argument Amicus Brief (filed 01/04/12)
• Real Parties' Reply to Brinker's Answer to California Employment Law Council's Post-Argument Amicus Brief (filed 01/13/12)
• Brinker's Reply to Real Parties' Answer to California Employment Law Council's Post-Argument Amicus Brief (filed 01/13/12)

Supreme Court hears oral argument in class certification case: Brinker Restaurant Corp. v. Superior Court (Hohnbaum)

Yesterday, the Supreme Court heard oral argument in Brinker Restaurant Corp. v. Superior Court (Hohnbaum), no. S166350.  I had the privilege of presenting the argument on behalf of the workers along with my co-counsel Michael Rubin. 

The argument focused primarily on the substantive Labor Code issues.  There was comparatively little argument or questioning on the class certification issues.  Of the few questions asked during my brief rebuttal, none related to class certification. 

Matt Bailey has an interesting summary of the argument at his blog, the Bailey Class Action Daily.  Unfortunately it turns out that the live web feed had some technical glitches.

The complete video of the argument is available on YouTube at this link.  It should also soon be available at the California Channel website, but it isn't up yet.

There has been quite a bit of press coverage as well.   According to Laura Ernde's article in this morning's Daily Journal (link not available), the justices were "skeptical" of the idea that meal periods should be mandatory in the sense that workers can never choose to work through them, but seemed to accept the idea that employees cannot be required to work more than five hours at a time without a meal period.  The article does not address any of the class certification issues. 

The opinion will be due in 90 days, which is going to be no later than early February.

Supplemental briefs filed in Brinker

In Brinker Restaurant Corp. v. Superior Court, no. S166350, which is scheduled for argument on November 8th, the parties have both filed supplemental briefs addressing Dukes:

• Supplemental Brief on Wal-Mart Stores, Inc. v. Dukes (filed by Brinker 07/26/11)
• Supplemental Brief on Wal-Mart Stores, Inc. v. Dukes (filed by Real Parties 10/24/11)

A full set of the briefs is available on my Brinker page.  The Supreme Court has posted copies of selected briefs in all the cases on the November argument calendar. 

[Disclosure: I am co-counsel for the workers in this case.] 

U.S. Supreme Court issues "grant and transfer" order in Wang v. Chinese Daily News

On October 3, 2011, the U.S. Supreme Court granted cert. in Chinese Daily News v. Wang, no. 10-1202, and directed the Ninth Circuit to reconsider its judgment in light of Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011). 

As you may recall, in Wang, the Ninth Circuit affirmed class certification (and the ensuing judgment in favor of the class) in a case involving wage and hour claims, partly in reliance on the Ninth Circuit's en banc Dukes opinion.  Wang v. Chinese Daily News, Inc., 623 F.3d 743 (9th Cir. 2010).

This is the functional equivalent, in California Supreme Court parlance, of a "grant and transfer" order.  It will be quite interesting to see what the Ninth Circuit's new opinion looks like in a few months. 

Incidentally, we are still waiting for the Ninth Circuit to hand down its eagerly-anticipated decision in Mazza v. American Honda Motor Co., no. 09-55376 (9th Cir.).  In that case, the panel sua sponte ordered further briefing on Dukes back in June. 

Wal-Mart Stores, Inc. v. Dukes on remand to the Ninth Circuit

Most of you have probably already heard that the Ninth Circuit has issued a one-line remand order in the Dukes case.  The order reads:

We remand to the district court to comply with the United States Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). 

Dukes v. Wal-Mart Stores, Inc., ___ F.3d ___, 2011 WL 4433591 (9th Cir. Sept. 23, 2011).  

Supreme Court sets class certification case for oral argument: Brinker Restaurant Corp. v. Superior Court (Hohnbaum)

As you've probably already heard, last week the Supreme Court scheduled oral argument in Brinker Restaurant Corp. v. Superior Court, no. S166350.  The argument will take place on Tuesday, November 8, 2011 at 9:00 a.m. in San Francisco.

While the Brinker case is best known for the substantive Labor Code issues it raises relating to meal periods and rest breaks, the case also involves some class certification questions that could impact California class actions more broadly, depending on how the questions are decided.  See this blog post for more on those questions.  

The briefs are available on my Brinker page. Recently, the workers filed a supplemental brief under Rule of Court 8.520(d) addressing Martinez v. Combs, 49 Cal.4th 35 (2010).  

[Disclosure:  I am co-counsel for the workers in this case.]

Brinker miscellany

As of last week, there are now seven Brinker "grant and hold" cases.  The seventh is In re Lamps Plus Overtime Cases, no. S194064 (review granted 07/20/11).  Here are my amicus letter in support of review and my depublication request. 

There may be an eighth "grant and hold" before long. UPDATE: On September 28, 2011, the Supreme Court took up the eighth "grant and hold" case, Santos v. Vitas Healthcare, no. S195866.

I've updated my Brinker page to include a link to the amicus brief that the Supreme Court allowed Rogelio Hernandez (represented by Michael Rubin of Altshuler Burzon in San Francisco) to file after his case (Hernandez v. Chipotle Mexican Grill) became the fifth "grant and hold" in January.   Brinker filed an answer to that brief in March. 

Last week we filed a supplemental brief under Rule of Court 8.520(d)(1) to address the impact of Martinez v. Combs, 49 Cal.4th 35 (2010).

Also last week, the Daily Journal ran a front-page article (available by subscription only) on Brinker.  Evidently, the reporter asked the Chief Justice when the case would be set for argument, but she declined to say.  I am quoted in the article, along with Jim Finberg of Altshuler Berzon and Eric Kingsley of Kingsley & Kingsley.  Brinker's counsel Rex Heinke of Akin Gump is also mentioned in the article.

I am informed that a more detailed article is in the works and will appear in California Lawyer magazine in August or September.  UPDATE:  The article ran in the August 2011 issue of California Lawyer and is available at this link. 

[Disclosure: I am appellate counsel for the workers in this case.] 

Links to law review articles cited in Wal-Mart Stores, Inc. v. Dukes

The majority opinion in Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___ (Jun. 20, 2011) relied heavily on a 2009 law review article by the late Professor Richard A. Nagareda of Vanderbilt University School of Law.  The dissent, too, cited a 2003 article by Professor Nagareda. 

Professor Nagareda's influential articles are available online at these links:

• Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97 (2009)


• Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149 (2003) (link courtesy of classactionlitigation.com)

Cert. denied in Philip Morris v. Jackson

Per today's order list, the U.S. Supreme Court has denied cert. in Philip Morris USA, Inc. v. Jackson, no. 10-735.  This case would have presented a federal due process challenge to certain state-law class action procedures.

U.S. Supreme Court relists Philip Morris v. Jackson

On Monday, the U.S. Supreme Court relisted Philip Morris USA, Inc. v. Jackson, no. 10-735, for conference tomorrow (June 23), which means an up or down vote on cert. may be announced as early as Monday.

Yesterday (June 21), both sides filed supplemental briefs addressing Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___ (Jun. 20, 2011).  The tobacco companies' supplemental brief is here.  The plaintiffs' supplemental brief is here.   [Links via SCOTUSblog.] 

SCOTUSblog has a more detailed post on these developments.  See this blog post for more on the issues raised in the case.  This is a Louisiana state court case, so the cert. petition could test the extent to which the Justices believe that any of the principles (or, more likely, the leanings) announced in Wal-Mart may impact state-court class-action proceedings.  Nothing in Wal-Mart appears to me particularly relevant to state-court litigation, but certain Justices may have a different view. 

(As a programming note, I remain swamped in my day job, so my posting has been sparse.  While it's great to be busy with lots of cases, I hope my workload will return to normal eventually.)

BREAKING NEWS: U.S. Supreme Court hands down Wal-Mart Stores, Inc. v. Dukes

This morning, the U.S. Supreme Court handed down Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___ (Jun. 20, 2011).  The class certification order has been reversed.  More later.

More on Erica P. John Fund, Inc. v. Halliburton Co.

The Supreme Court's decision in Erica P. John Fund, Inc. v. Halliburton Co., ___ U.S. ___ (Jun. 6, 2010), handed down on Monday, is narrowly drawn.  The decision is highly relevant to securities class actions, but nothing in it can be expected to impact other types of class actions. 

The opinion did not discuss the Eisen case (or even mention it), notwithstanding the statement of issues in the cert. petition.  The Court seems to have remanded all the juicy issues back to the Fifth Circuit:

To the extent Halliburton has preserved any further arguments against class certification, they may be addressed in the first instance by the Court of Appeals on remand.

Slip op. at 9.

According to SCOTUSblog, the Court is expected to hand down additional opinions this morning.  Dukes v. Wal-Mart could be among them.

U.S. Supreme Court hands down class certification decision: Erica P. John Fund, Inc. v. Halliburton Co.

This morning, the Supreme Court handed down its decision in Erica P. John Fund, Inc. v. Halliburton Co., ___ U.S. ___ (Jun. 6, 2010).  This is a securities case, but it presented the possibility that the Supreme Court's holding would more broadly impact class action litigation. These were the issues on review as stated in the cert. petition:

(1) Whether the Fifth Circuit correctly held, in direct conflict with the Second Circuit and district courts in seven other circuits and in conflict with the principles of Basic v. Levinson, 485 U.S. 224 (1988), that plaintiffs in securities fraud actions must not only satisfy the requirements to trigger a rebuttable presumption of fraud on the market, but must also establish loss causation at class certification by a preponderance of admissible evidence without merits discovery;

(2) whether the Fifth Circuit improperly considered the merits of the underlying litigation, in violation of both Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), and Federal Rule of Civil Procedure 23, when it held that a plaintiff must establish loss causation to invoke the fraud-on-the-market presumption.

The unanimous opinion does not appear to cite Eisen at all.  I expect to have more later, but meanwhile, see this blog post and this blog post for further discussion of the case. 

Analyses of the oral argument in Erica P. John Fund, Inc. v. Halliburton Co.

As I previously mentioned, the U.S. Supreme Court heard oral argument two weeks ago (on April 25, 2011) in Erica P. John Fund, Inc. v. Halliburton Co., no. 09-1403.

The D&O Diary has an interesting post by attorney Kimberly M. Melvin, who reviewed and analyzed the oral argument transcript.  This was her key takeaway:

No matter how the Court rules, the decision should have a significant impact on the large number of securities class actions working their way through the courts.  By determining whether class certification will give defendants a real opportunity to test plaintiffs’ claims that the class wide presumption of reliance should apply, the Court’s decision will determine whether class certification can be an important event for settlement and will provide defendants with an opportunity to bring an early appeal. The threat of a negative ruling on the merits at the class certification stage or of an early appeal provides companies, their directors and officers and their insurers with additional leverage and an incentive to “stick it out,” as Mr. Sterling [counsel for Halliburton] suggested, if a motion to dismiss is denied.

Similarly, The Conglomerate has a roundtable of posts on the case, including this post on the argument and this post on the argument. 

Professor Barbara Black, writing at The Conglomerate, summed it up like this: 

The most important message:  Nobody, not even defendant's counsel, supports the Fifth Circuit's position that requires plaintiffs to prove loss causation at the class certification stage.

She also said that the argument gave "no indication that they want to relax the requirements for class certification."  (According to a disclaimer at the end of this post, Professor Black was a signatory to an amicus brief urging reversal of the Fifth Circuit's decision.)

Still no activity in Philip Morris v. Jackson

The U.S. Supreme Court still has taken no action in Philip Morris USA, Inc. v. Jackson, no. 10-735, which was originally distributed for conference two months ago, on March 4, 2011.  The case has not appeared on any of the order lists since then, including this past Monday's list.

The Court may have decided to keep this case on hold until after an opinion is issued in Wal-Mart Stores, Inc. v. Dukes, no. 10-277, which was argued on March 29, 2011.  That opinion is due by the end of the Term.  The last date scheduled for release of opinions this Term is June 27, 2011. 

See this blog post for more on the issues raised in Philip Morris v. Jackson.

Blogosphere commentary on AT&T Mobility v. Concepcion

Since last Wednesday the legal blogosphere has been busily abuzz about AT&T Mobility v. Concepcion, ___ U.S. ___ (Apr. 27, 2011).

SCOTUSblog has two posts with commentary along with its usual roundups. 

Public Citizen's Consumer Law & Policy Blog has collected links to much of the early press coverage.  ContractProfs Blog similarly has a roundup of media and blogosphere coverage.

Cornell Law School Professor Michael C. Dorf deconstructs the opinion at his blog, Dorf on Law:

[T]he case is arresting because the Court's ruling runs away from principles that conservatives purport to value in other contexts.

....

In the AT&T case, ... the majority opinion exhibits tension with another jurisprudential principle favored by Justice Scalia and other conservatives.  In cases under the Equal Protection Clause and the Free Exercise Clause, Justice Scalia and his fellow travelers have repeatedly argued against disparate impact tests.  To discriminate, they say, is to use a criterion that on its face draws an impermissible distinction or, in rare circumstances, to use a formally neutral criterion that was adopted for the purpose of discriminating and has a disparate impact.

Yet in the AT&T case, the majority is willing to find that California's no-class-waiver rule does not apply to "any contract" because, even though it does apply to any contract, it impedes what Justice Scalia deems to be the purpose of the FAA.  It is possible to make this argument for the hypothetical no-jury-waiver and no-discovery-waiver rules, because then the state rule, while formally applying to any contract, would really apply only to arbitration contracts.  But the existence of arbitration class actions means that it's very hard to say that the California law's (supposed) disparate effect on arbitration must be evidence that the California no-class-waiver rule was adopted for the purpose of singling out arbitration.  Consequently, it appears that the Court's conservatives are betraying their general hostility to disparate impact for its own sake.

Attorney Matt Bailey of the Bailey Class Action Bilateral Arbitration Daily considers whether Justice Scalia's "majority" opinion is actually a 4-justice plurality opinion with less robust precedential effect (a question that probably crossed the minds of many who read the opinion):

[I]t is not entirely clear whether there exists any common overlap between the analysis of the majority and Justice Thomas. Specifically, the majority reasoned that the “saving clause [in § 2] permits agreements to arbitrate to be invalidated by ‘generally applicable contract defenses, such as fraud, duress, or unconscionability’” [Slip Opinion, at 5], but concluded that preemption must be found when doing so “stand[s] as an obstacle to the accomplishment of the FAA’s objectives.” See Slip Opinion, at 9.  Justice Thomas’ concurrence unequivocally rejected the majority’s “purposes-and-objectives preemption”, however, finding instead that the Discover Bank rule was in direct conflict with § 2.

Joe Consumer of The Pop Tort takes solace that the newly-created Consumer Financial Protection Bureau has a statutory mandate to study the use of arbitration clauses in consumer financial contracts. 

In fact, the Consumer Financial Protection Act of 2010 (which is part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, signed into law on July 21, 2010) goes much further, authorizing the Bureau to promulgage regulations prohibiting arbitration clauses in certain types of consumer contracts: 

SEC. 1028. AUTHORITY TO RESTRICT MANDATORY PRE-DISPUTE ARBITRATION.
(a) STUDY AND REPORT.—The Bureau shall conduct a study of, and shall provide a report to Congress concerning, the use of agreements providing for arbitration of any future dispute between covered persons and consumers in connection with the offering or providing of consumer financial products or services.
(b) FURTHER AUTHORITY.—The Bureau, by regulation, may prohibit or impose conditions or limitations on the use of an agreement between a covered person and a consumer for a consumer financial product or service providing for arbitration of any future dispute between the parties, if the Bureau finds that such a prohibition or imposition of conditions or limitations is in the public interest and for the protection of consumers. The findings in such rule shall be consistent with the study conducted under subsection (a). 
(c) LIMITATION.—The authority described in subsection (b) may not be construed to prohibit or restrict a consumer from entering into a voluntary arbitration agreement with a covered person after a dispute has arisen.
(d) EFFECTIVE DATE.—Notwithstanding any other provision of law, any regulation prescribed by the Bureau under subsection (b) shall apply, consistent with the terms of the regulation, to any agreement between a consumer and a covered person entered into after the end of the 180-day period beginning on the effective date of the regulation, as established by the Bureau.

12 U.S.C. § 5518 (emphasis added). 

Elizabeth Warren, the head of the Bureau, has called arbitration "Darth Vader's Death Star--the Empire always wins."  So there is a very real possibility that certain classes of consumer contracts may end up unaffected by Concepcion.  We'll have to wait and see.

At the Huffington Post, David Arkush of Public Citizen laments the end of the American legal system as we  know it:

If recent crises have taught us anything, it's that disaster follows quickly when companies have too little oversight. AT&T is pushing the outer limits of deregulation, seeking a world in which companies can use one-sided contracts to grant themselves immunity from accountability for a vast range of wrongdoing. Concepcion represents a giant leap toward a dystopian legal system that the Supreme Court should have rejected out of hand -- lawlessness for major corporations and corporate-made law for the rest of us.

Some might call this hyperbole, others pragmatism.

At ADR Profs Blog, Professor Paul F. Kirgis of St. John's University School of Law offers this advice for attorneys with business clients:

Coupled with Stolt-Nielsen, which held that an arbitrator may not interpret silence in an arbitration agreement as allowing for class arbitration, Concepcion means companies no longer have to subject themselves to class actions by consumers (or employees, suppliers, or anyone else with whom they contract). As long as it is sufficiently favorable on cost to the consumer, any arbitration agreement that does not expressly allow for class treatment (and of course, none of them do expressly allow for class treatment) now has the effect of prohibiting class relief. I would submit that any attorney who does not now advise her business clients to put arbitration agreements in all consumer contracts risks a finding of legal malpractice.

Two other law professors, Sarah Cole of the Ohio State Univeristy Moritz College of Law, and Jean Sternlight of the University of Nevada at Las Vegas School of Law, have posts on the decision at ADR Profs Blog.

BREAKING NEWS: U.S. Supreme Court hands down AT&T Mobility LLC v. Concepcion

This morning, the U.S. Supreme Court handed down its decision in AT&T Mobility LLC v. Concepcion, ___ U.S. ___ (Apr. 27, 2011).  I will have more later when I've had an opportunity to review it. 

According to the first page of the syllabus, the Supreme Court holds that the Federal Arbitration Act preempts our Supreme Court's Discover Bank opinion. 

Philip Morris v. Jackson relisted again

The U.S. Supreme Court has apparently relisted Philip Morris USA, Inc. v. Jackson, no. 10-735, for a second time.  The case was scheduled for conference last Friday, March 18, but it is not mentioned in this morning's order list. 

See this blog post for more on Jackson.

U.S. Supreme Court relists Philip Morris v. Jackson

The Jackson case has been relisted for conference on Friday, March 18, 2011.  Philip Morris USA, Inc. v. Jackson, no. 10-735.  Unless the case is relisted again, the vote will be announced on the following Monday, March 21. 

This is what SCOTUSblog has to say about relisting:

If a case has been relisted once, it generally means that the Court is paying close attention to the case, and the chances of a grant are higher than for an average case.  But once a case has been relisted more than twice, it is generally no longer a likely candidate for plenary review, and is more likely to result in a summary reversal or a dissent from the denial of cert.

Dukes v. Wal-Mart was relisted once before review was granted.  Concepcion was not relisted at all.

U.S. Supreme Court to announce vote in Philip Morris v. Jackson today

Today, the U.S. Supreme Court is expected to announce whether cert. will be granted in Philip Morris USA, Inc. v. Jackson, no. 10-735. This is the case in which Justice Scalia stayed enforcement of a $240 million class-action judgment against the tobacco industry pending disposition of the cert. petition.

According to the docket, the case was considered in conference last Friday, March 4, which means that the outcome should be released today, unless the case is relisted for a later conference.  The Supreme Court's order list for March 7 should be available at this link at approximately 10:00 a.m. Eastern.

This is the question presented in Jackson as stated in the cert. petition: 

Whether the Due Process Clause prevents state courts from employing the class-action device to eliminate fundamental substantive and procedural protections that would otherwise apply to adjudications of class members’ individual claims.

UPDATE:  The Jackson case was not on the order list this morning, which means that the case has been relisted for a later conference.  The docket has not yet been updated to reflect the relisting.

UPDATE (3/10/11):  The Jackson case has been relisted for the conference of Friday, March 18, 2011.  Unless the case is relisted again, the vote will be announced on the following Monday, March 21.  This is what SCOTUSblog has to say about relisting:

If a case has been relisted once, it generally means that the Court is paying close attention to the case, and the chances of a grant are higher than for an average case.  But once a case has been relisted more than twice, it is generally no longer a likely candidate for plenary review, and is more likely to result in a summary reversal or a dissent from the denial of cert.

Dukes v. Wal-Mart merits briefs available online

The following merits briefs in Wal-Mart Stores, Inc. v. Dukes, no. 10-277, are now available online:

• Brief of Petitioner Wal-Mart Stores, Inc. (filed 01/20/11)
• Brief of Respondents Betty Dukes et al. (filed 02/22/11)

In addition, sixteen amicus briefs have been filed to date.  Links to all of the briefs are available at the ABA's website.  The case remains scheduled for argument on Tuesday, March 29, 2011 at 10:00 a.m. 

More U.S. Supreme Court cases to watch

Last week I mentioned Dukes and Concepcion, now pending before the U.S. Supreme Court, as class action cases to watch in 2011.  Here are three more U.S. Supreme Court cases involving class certification issues to be aware of:

• Smith v. Bayer Corp., no. 09-1205 (U.S.).  The Supreme Court granted cert. in this case on September 28, 2010 and it will be argued today (January 18, 2011).  The case addresses the extent to which a federal court, applying the Anti-Injunction Act (28 U.S.C. § 2283), may prohibit a class action case from proceeding in state court if class certification has already been denied in federal court.  The Eighth Circuit affirmed such an injunction in In re: Baycol Products Litigation, 593 F.3d 716 (8th Cir. 2010).  (The Seventh Circuit recently addressed a similar issue under the All Writs Act (28 U.S.C. § 1651(a)) in Thorogood v. Sears, Roebuck and Co., 624 F.3d 842, rehearing denied, 627 F.3d 289 (7th Cir. 2010).)  Briefs may be found at the SCOTUSblog page for the case.


• Erica P. John Fund, Inc. v. Halliburton Co., no. 10-568 (U.S.).  The Supreme Court granted cert. in this securities fraud case about ten days ago, on January 7, 2011. These are the issues as stated in the cert. petition:

(1) Whether the Fifth Circuit correctly held, in direct conflict with the Second Circuit and district courts in seven other circuits and in conflict with the principles of Basic v. Levinson, 485 U.S. 224 (1988), that plaintiffs in securities fraud actions must not only satisfy the requirements to trigger a rebuttable presumption of fraud on the market, but must also establish loss causation at class certification by a preponderance of admissible evidence without merits discovery; (2) whether the Fifth Circuit improperly considered the merits of the underlying litigation, in violation of both Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), and Federal Rule of Civil Procedure 23, when it held that a plaintiff must establish loss causation to invoke the fraud-on-the-market presumption.

The Fifth Circuit's opinion is Archdiocese of Milwaukee Supporting Fund, Inc. v. Halliburton Co., 597 F.3d 330 (5th Cir. 2010).  Links via SCOTUSblog's case page.

• Philip Morris USA, Inc. v. Jackson, no. 10-735 (U.S.). I previously reported that in September, Justice Scalia issued an order in this case staying enforcement of a $240 million judgment entered in Louisiana state court in a class action against the tobacco industry.  In the order, Justice Scalia suggests that the full court is likely to take up the case.  The cert. petition states the question presented as follows:

  Whether the Due Process Clause prevents state courts from employing the class-action device to eliminate fundamental substantive and procedural protections that would otherwise apply to adjudications of class members’ individual claims.

  A number of conservative organizations have already filed amicus curiae briefs.  The response to the cert. petition is due on February 2, 2011.  If the Supreme Court takes up this case, five new opinions involving major class action issues will soon be handed down.

Six pending cases to watch in 2011

Here are six important cases to follow in the coming months (listed in no particular order):

1. Kwikset Corp. v. Superior Court (Benson), no. S171845 (Cal.).  This UCL case was argued in the California Supreme Court on November 3, 2010, which means that the opinion is due by Tuesday, February 1, 2010.  Because the Court hands down opinions on Mondays and Thursdays, we can expect the opinion no later than Monday, January 31, 2011 -- assuming former Chief Justice George sends his vote in from Antarctica!  In this case, the Supreme Court will be interpreting Prop. 64's "lost money or property" language. 
   
   
2. AT&T Mobility LLC v. Concepcion, no. 09-893 (U.S.).  This case was argued in the U.S. Supreme Court on November 9, 2010.  The issue is whether the FAA preempts state-law unconscionability principles as applied to no-class-action arbitration clauses in consumer contracts of adhesion, and the continuing vitality of our own Supreme Court's Discover Bank decision could be at stake.  The opinion will be filed by the end of the current Term, which means no later than June 27, 2011. 
   
3. Brinker Restaurant Corp. v. Superior Court (Hohnbaum), no. S166350 (Cal.).  This wage and hour case raises substantive questions relating to California's meal period and rest break laws, but could also be a significant class certification case.  The Supreme Court has not directly addressed core class certification issues since Sav-on in 2004.  The case is fully briefed, but has not yet been scheduled for oral argument.  It may or may not be set this year.  [Disclosure:  My firm is co-counsel for the workers in Brinker.]
   
   
4. Wal-Mart Stores, Inc. v. Dukes, no. 10-277 (U.S.).  The U.S. Supreme Court granted cert. in this case on December 6, 2010, and has scheduled oral argument for March 29, 2010. The opinion will be filed by the end of June 2011, when the current Term ends.  The district court granted class certification of certain employment discrimination claims under Rule 23(b)(2), and the Ninth Circuit, sitting en banc, affirmed in part. 
   
   
5. Mazza v. American Honda Motor Co., no. 09-55376 (9th Cir.).  In this auto defect case, the district court granted nationwide class certification of UCL and CLRA claims for recovery of economic losses.  Mazza v. American Honda Motor Co., 254 F.R.D. 610 (C.D. Cal. 2008).  The Ninth Circuit granted a Rule 23(f) petition for permission to appeal, and the case was argued on June 11, 2010.  One day after the Supreme Court granted cert. in Dukes, however, the Ninth Circuit issued a sua sponte order deferring submission of the action pending resolution of that case.
   
   
6. Sullivan v. DB Investments, Inc., no. 08-2784 (3d Cir.). In this antitrust case for price-fixing in the diamond industry, the Third Circuit reversed the district court's order granting final approval of a nationwide class action settlement.  Sullivan v. DB Investments, Inc., 613 F.3d 134 (3d Cir. 2010).  On August 27, 2010, en banc rehearing was granted, and the case has been scheduled for argument on February 23, 2011.  On November 10, 2010, the Court ordered supplemental briefing on some broad class-certification-related questions. 

U.S. Supreme Court sets oral argument in Wal-Mart Stores, Inc. v. Dukes

The U.S. Supreme Court wastes no time.  Seventeen days after taking up the case, the Court scheduled oral argument in Wal-Mart Stores, Inc. v. Dukes, no. 10-277.  The argument is set for Tuesday, March 29, 2010 at 10:00 a.m.  No merits briefs have been filed yet.

[Via The Complex Litigator]

BREAKING NEWS: U.S. Supreme Court grants cert. but limits the issues in Dukes v. Wal-Mart

Today, the U.S. Supreme Court granted the cert. petition in Wal-Mart Stores, Inc. v. Dukes, no. 10-277, but limited the issues.  The Order reads:

10-277   WAL-MART STORES, INC. V. DUKES, BETTY, ET AL.

The petition for a writ of certiorari is granted limited to Question I presented by the petition. In addition to Question I, the parties are directed to brief and argue the following question: "Whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a)."

These are the two questions presented as stated in Wal-Mart's cert. petition: 

I. Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)—which by its terms is limited to injunctive or corresponding declaratory relief—and, if so, under what circumstances.

II. Whether the certification order conforms to the requirements of Title VII, the Due Process Clause, the Seventh Amendment, the Rules Enabling Act, and Federal Rule of Civil Procedure 23.

In other words, the Supreme Court will be taking a narrow look at Dukes and keeping its focus on class certification under Rule 23(b)(2), rather than on the broad constitutional and other challenges Wal-Mart brought against the class certification process more generally. 

One more time: U.S. Supreme Court expected to announce vote in Dukes v. Wal-Mart today

Once again, the U.S. Supreme Court is expected to announce whether it will be granting cert. in Wal-Mart Stores, Inc. v. Dukes, no. 10-277.  According to the docket, the case was considered in conference last Friday, December 3, which means that the outcome of the conference should be released today.

When it is posted at approximately 10:00 a.m. Eastern, the Supreme Court's order list for December 6 should be available at this link. 

U.S. Supreme Court up or down vote to be announced: Dukes v. Wal-Mart

The Dukes v. Wal-Mart case was on the U.S. Supreme Court's conference schedule last Tuesday, November 23, 2010, which means that the results of the conference can be expected to be announced today at 10:00 a.m. Eastern.  Wal-Mart Stores, Inc. v. Dukes, no. 10-277. 

When it is posted, the Supreme Court's order list for November 29 should be available at this link. 

UPDATE: The Dukes case was not on the order list this morning. We will probably have to wait at least another week. Orders are next scheduled to be announced next Monday, December 6.

UPDATE #2:  The Dukes docket now indicates (which it did not earlier this morning) that the case has been re-distributed for conference on Friday, December 3.  Again, that means that the vote should be announced the following Monday, December 6.  SCOTUSblog also noted the Court's unexpected failure to announce its vote today following its conference on November 23. 

A tale of two opinions

On August 26, 2010, the Second Appellate District, Division Seven, handed down an unpublished opinion, Brookler v. Radioshack Corp., 2010 WL 3341816 (Aug. 26, 2010) (no. B212893), in which it held as follows: 

[U]nless and until our Supreme Court holds otherwise, we agree with and adopt the analysis in Cicairos, supra, 133 Cal.App.4th 949, holding an employer's obligation under the Labor Code and IWC wage orders is to do more than simply permit meal periods in theory; it must also provide them as a practical matter. If the employer does not ensure compliance with meal period requirements, such behavior violates the Labor Code and corresponding wage orders. (See id. at p. 963.) “The IWC intended that, like overtime pay provisions, payment for missed meal and rest periods be enacted as a premium wage to compensate employees, while also acting as an incentive for employers to comply with labor standards.” (Murphy, supra, 30 Cal.4th at p. 1110.)

Id. at *3 (emphasis added).  This issue is, of course, now pending before the California Supreme Court in Brinker Restaurant Corp. v. Superior Court (Hohnbaum), no. S166350 (in which I am co-counsel for the workers). 

Multiple publication requests were filed in Brookler (including one by yours truly).  Division Seven denied them all.  Brookler itself is now pending before the Supreme Court (Brookler v. Radioshack Corp., no. S186357), but the Brookler opinion remains unpublished and uncitable in the many cases involving this issue that have not been stayed pending resolution of Brinker. 

On September 30, 2010, the Second Appellate District, Division Eight, handed down an unpublished opinion, Hernandez v. Chipotle Mexican Grill, Inc., 2010 WL 3789012 (Sept. 30, 2010). This decision holds:  "We conclude that employers must provide employees with breaks, but need not ensure employees take breaks."  Id. at *1.  On this basis, Division Eight affirmed the trial court's order denying class certification (which also had been predicated on the turn of that legal question).  Id. at *3.

Publication requests were filed in this case as well.  Yesterday, Division Eight granted them—unlike their colleagues down the hall in Brookler.  Both cases involved the same important legal issue, reached opposing conclusions, yet Division Eight found publication warranted, and Division Seven did not.  Why? 

The Supreme Court will likely issue "grant and hold" orders in both cases, as it previously did in Brinkley and Faulkinbury.  Therefore, Hernandez is not likely to remain published and citable for long. But these strange procedural events only add fuel to the fire burning in the lower state and federal courts.

U.S. Supreme Court briefing in AT&T Mobility LLC v. Concepcion

The folks at Consumer Law & Policy Blog have a very useful page with links to all of the briefs (merits and amicus) in AT&T Mobility LLC v. Concepcion, no. 09-893.  The page also has links to a variety of commentary on the case, which is scheduled for oral argument on Tuesday, November 9, 2010. 

Also, here is a direct link to the amicus brief of Public Justice filed on October 6, 2010.

Supreme Court grants review in class certification case: Faulkinbury v. Boyd & Associates

Yesterday, the Supreme Court granted review in Faulkinbury v. Boyd & Associates, no. S184995.  Briefing is deferred pending resolution of Brinker.  

According to the docket, five depublication requests were filed.  Both the review petition and at least two of the depublication requests pointed out the decision's implicit assumption that meal periods need only be "offered" to workers.  That assumption led the Court of Appeal to affirm the trial court's order denying class certification of the meal period claim. 

Here is my short original post on the Court of Appeal opinion, Faulkinbury v. Boyd & Associates, Inc., 185 Cal.App.4th 1363 (2010), handed down in June.  Under Rule of Court 8.1105(e)(1), the opinion is no longer citable precedent.