The UCL Practitioner

New UCL opinion considers all three prongs: Moran v. Prime Healthcare Management, Inc.

In Moran v. Prime Healthcare Management, Inc., ___ Cal.App.5th ___ (Sept. 14, 2016; pub. ord. Oct. 5, 2016), the Court of Appeal (Fourth Appellate District, Division Three) considered UCL and CLRA claims involving the cost of emergency room medical care for uninsured ("self-pay") patients.  Essentially, the lawsuit alleges that the defendant unfairly charges uninsured patients more than it charges insurers (or other third-party payors) for insured patients.  Slip op. at 2-4. 

The trial court dismissed the entire action, but the Court of Appeal held that parts of the case survived:

• Plaintiff's discriminatory pricing theory enjoyed a Cel-Tech "safe harbor," but his theory that the self-pay patients are charged "artificial and grossly excessive rates" did not.  Slip op. at 7-8.
  
  
• The UCL "unlawful" prong claim, which was predicated on CLRA violations, largely failed for lack of standing.  Id. at 8-15.  However, the claim survived to the extent it asserted unconscionability in violation of the CLRA (Civil Code section 1770(a)(19)).  Id. at 15-18.
  
  
• The UCL "fraudulent" prong claim failed for lack of standing because the plaintiff did not adequately allege his reliance on specific misrepresentations.  Id. at 18-19.
  
  
• The UCL "unfair" prong claim survived, again to the extent based on the theory that "biling the full amount to self-pay patients is unconscionable."  Id. at 19-21.  This section of the opinion discussed the three-way split in authority on the proper formulation of "unfair" in consumer actions, but the Court concluded that it did not have to resolve the split in order to decide the appeal.  Id. at 20.
  
  
• The CLRA claim survived as to the unconscionability theory only.  Id. at 21-22.
  
  
• The declaratory relief claim survived.  Id. at 23-24.

A new firm for the new year!

After six years with The Furth Firm LLP, I have decided to explore new opportunities! I have joined another San Francisco plaintiffs' class action firm, Schubert & Reed LLP, as a partner. I'm very excited about this opportunity and am looking forward to working with my new partners, Bob Schubert, Justice Reed, Willem Jonckheer, and Miranda Kolbe, all of whom have deep experience handling plaintiff-side class actions. I will continue to work on antitrust, employment and consumer class actions, and what's more, I also hope to expand my practice. I look forward in particular to the possibility of doing more work with some of the readers of this blog!

In an article in today's Recorder, "S.F. Firm Gets First Lateral" (subscription), Petra Pasternak reports:

Kimberly Kralowec built her reputation as an authority on Proposition 64 by blogging about unfair competition law. But the plaintiff lawyer didn't work much on the UCL during her six years at the Furth Firm in San Francisco, where she was of counsel. Although the connections she developed through her blog led to offers to co-counsel on matters like employment and consumer-fraud class actions, Kralowec couldn't accept them.

At the Furth Firm she primarily worked on antitrust cases, a mainstay there. .... "When I started to get my own business opportunities, I just wasn't able to follow up with them in the way I'd like to."

Kralowec was ready to open her own firm, but when a friend connected her with Schubert & Reed, she saw a fit. On Jan. 28 she'll join the small San Francisco plaintiff shop, established in 1996, as its first-ever lateral partner.

I will, of course, continue to maintain this blog, and I will also continue my other writing activities such as my Forum magazine column. I will be taking a short vacation between firms, but will continue to blog and check my email ([email protected]) during this period. My next post will be on Thursday, in anticipation of the oral argument in County of Santa Clara v. Superior Court (ARCO), no. H031540 (Sixth Appellate District). Last but not least, I want to thank my readers for your continued support and enthusiasm over the years!

Here is my new contact information (effective January 28, 2008):

Kimberly A. Kralowec, Esq.
Schubert & Reed LLP
Three Embarcadero Center, Suite 1650
San Francisco, CA 94111
Telephone: (415) 788-4220
Facsimile: (415) 788-0161
Email address: [email protected]

"Judge Ponders Firms for Huge LCD Case"

My colleague, Michael Lehmann, is quoted in this article in today's Recorder about "a huge price-fixing case against companies that make flat-panel TV screens and similar products."

"Much Ado Puts S.F. Judge Back on Complex Litigation"

My colleague, Jessica Grant, is quoted in this article (subscription) in Monday's Daily Journal. The article reports that Judges Kramer and Munter will share the San Francisco Superior Court's complex litigation caseload:

Jessica Grant, a partner with class-action specialist Furth Lehmann & Grant, praised the decision to have Kramer and Munter jointly handle the cases, which can involve 50 lawyers and plaintiffs with divergent interests. "Having Kramer and Munter share duties will maximize the efficiency of complex litigation so it's a win/win for everyone and a really good solution."

The article does not say when the caseload-sharing will begin.

UPDATE: As a reader pointed out in the comments, we should not assume that the caseload-sharing arrangement is a done deal. The article does note that the court's executive committee voted unanimously in favor of the recommendation, but it still requires final approval from the Administrative Office of the Courts.

Congratulations, Jessica!

I just found out that my colleague, Jessica Grant, is pictured on the cover of this month's issue of California Lawyer. She is the recipient of a California Lawyer of the Year award for her work on the Wal-Mart case. Congratulations, Jessica!

"Case of the tour-bus kickbacks: Three tour companies suddenly cut commissions; bellhops win big settlement"

This week's San Francisco Bay Guardian has a colorful article on one of my antitrust class actions. This particular case settled last year. You can read more about the case in one of the appellate opinions that resulted and in this San Francisco Chronicle article from August.

"Empowering Juries: Creative Techniques Learned From the Wal-Mart Trial"

The Fall 2006 issue of California Courts Review (a "quarterly magazine, by, for and about the state judicial branch") has this article by Alameda County Superior Court Judge Ronald M. Sabraw on my firm's Wal-Mart trial last year. The article describes some of the innovative procedures he implemented during the trial.

"Tour bus companies settle price-fixing suit"

An article in this morning's San Francisco Chronicle reports on a recent settlement in one of the antitrust/UCL cases I am handling. This unpublished Court of Appeal opinion from last September provides more background about the maneuverings in the case, and here is my firm's web page on the case.

"Ganging Up on Wal-Mart"

The August 2006 issue of California Lawyer has this article on punitive damages claims against Wal-Mart for wage and hour violations. The article quotes my colleague, Jessica Grant, who led my firm's trial team to a $172 million victory against Wal-Mart last year. The print version of the magazine includes this photo.

"Wal-Mart Plaintiffs Trying for a Break"

My colleague Jessica Grant is quoted in a story in this morning's Recorder (subscription required) about the injunctive relief phase of the Wal-Mart trial, which began on Monday. According to the story, "the outcome of the injunctive relief phase could offer a rare glimpse into what measures a court might be willing to impose on a recalcitrant company. .... 'Even today, after the jury in this case found Wal-Mart liable for punitive damages, Wal-Mart continues to violate specific provisions of both the California Labor Code and Industrial Welfare Commission Wage Orders,' the plaintiffs contend in their brief." Jessica was also quoted yesterday in a Bloomberg News story picked up by the Los Angeles Times, the San Francisco Chronicle, and other outlets.

Because my trial date was just continued last Friday, I had a rare free morning on Monday and I decided to attend a half-day of the trial (something I was unable to do last year during the entire three-month damages phase). As a completely objective observer, I thought Jessica's presentation was very impressive.

"Meal Break Rules Mean Big Money"

My colleague, Jessica Grant, is quoted in The Recorder again this morning (subscription required):

In the meal-and-rest-break case that led to a recent $172 million award against Wal-Mart in Alameda County, for example, the court considered DLSE opinion letters submitted by lawyers on both sides.

But Jessica Grant, one of the plaintiff lawyers and a [principal] at The Furth Firm, says the judge relied on his own interpretation.

"Perhaps, in the past, the courts might have given a little more weight to the DLSE opinions," she says. "But because of the agency's flip-flops, I think the courts are far less likely to give any credence to the DLSE opinions."

Marjorie Fochtman, a partner at Nixon Peabody, agrees.

"I think that the future direction of wage-and-hour law will be dictated by the courts and not DLSE," she said.

"Top Verdicts 2005: Plaintiff Power"

This morning's Daily Journal reports on the top jury verdicts in California in 2005, including a piece on my firm’s Wal-Mart verdict. The story quotes my colleague, Jessica Grant:

The jury deliberated for three days and reached a verdict Dec. 22, ordering Wal-Mart to pay $57 million in compensatory damages and $115 million in punitive damages. "I hope my next case goes that well," Grant said.

Considering how hard-working and dedicated Jessica is, I have no doubt that it will. The Daily Journal’s report also includes interesting summaries of the other top verdicts of 2005. (Unfortunately, the Daily Journal’s website does not provide pass-through links to specific articles, even for paid subscribers.)

Wal-Mart verdict fourth largest in California in 2005

The Recorder reports today that the verdict in my firm's Wal-Mart case—$172 million—was the fourth largest in California in 2005. The verdict also made the National Law Journal’s list of the top ten jury verdicts in the country in 2005.

"Appeal Courts at Odds Over Meal Breaks"

My colleague Jessica Grant was quoted in this article (subscription required) in Monday's Recorder on the split in appellate authority over whether the extra hour of pay mandated by the Labor Code for meal and rest break violations is a "wage" or a "penalty." Three conflicting decisions have come down over the past month (Wage Law has more). I agree with Jessica that a split among the districts increases the likelihood that the Supreme Court will grant review. That's precisely what happened with Prop. 64 retroactivity.

"Jury's Wal-Mart Whammy Jolts State Labor Law"

My colleague, Jessica Grant, was quoted in an article in Monday's Daily Journal about my firm's Wal-Mart case. The article focuses on the jury's $115 million punitive damages award. Unfortunately, the Daily Journal's website does not have pass-through links to specific articles.

The Wal-Mart verdict is in: $172 million

I want to congratulate my colleagues Fred Furth, Jessica Grant, Chris Lebsock, and Mike Christian on the jury verdict in the Wal-Mart case, which was handed down yesterday: $172,268,673. Fred and Jessica have been all over the news since yesterday afternoon. I was flying back from depositions on the East Coast yesterday and missed most of the excitement, but the atmosphere in the office this morning is still electrifying. The Furth Firm prosecuted this case single-handedly and I can't express how proud I am of our trial team. When I get a copy of the special verdict form, I will put it up.

UPDATE: Here is an ABC News report with video of Jessica about the case. Also, here are pictures of Fred and Jessica from the San Francisco Chronicle's story on the verdict.

UPDATE: Here is a copy of the special verdict (with the jury foreperson's signature redacted).

Update on the Wal-Mart trial

I'm in the office working this morning. Part of our Wal-Mart trial team is also here, as is usual on the weekends these days. I'm told the trial is going very well. We rested our case in chief on Tuesday, and Judge Sabraw denied Wal-Mart's motion for nonsuit on our punitive damages claim. Way to go, team! Personally, I've been extremely busy lately working on this case. The opinion will give you an idea of what I was doing in June and July that caused my average weekly posting rate to plummet.

"Trial Over Wal-Mart Lunch Breaks Begins"

Since I'm taking a lunch break myself, I thought I'd report that my firm's Wal-Mart case went to trial last week. Opening statements were yesterday. The Washington Post has the story, and here are some more. I've assisted with some of the UCL and appellate briefing, but I'm not working directly on the trial. The trial team is working as hard as I've ever seen any lawyers work. Go Fred and Jessica! UPDATE: Jessica's picture is in the Chronicle today on page D3! Unfortunately, the online version of the article has no photo.

Philanthropy

Yesterday's Chronicle reports that Fred Furth, the proprietor of my firm, gave $5 million to save the Sacred Heart Academy in the Western Addition neighborhood of San Francisco. I find myself very touched by that and proud to be his colleague.

"The New Wave of Labor Code Litigation: Meal & Rest Period Litigation and the Private Attorney General Act"

My colleague, Jessica Grant, will be speaking at this seminar tomorrow at noon in San Francisco. As I've mentioned before, Jessica is handling our firm's UCL and Labor Code case against Wal-Mart, which alleges that Wal-Mart fails to provide proper meal and rest breaks to its sales associates as required by law. The seminar is sponsored by the Labor and Employment Law Section of the Bar Association of San Francisco. The other speakers are Miles Locker of the Division of Labor Standards Enforcement and Eric Tate of Morrison & Foerster. This should be an interesting seminar.

"Intel Lawyers Gear Up for Antitrust Suit"

My colleague, Thomas Dove, is quoted in this article in today's Recorder.

"Wal-Mart Spurns White Guys? No Problem"

My colleague, Jessica Grant, is quoted in this article in today's Recorder. She's the lead attorney in our firm's wage & hour case against Wal-Mart, which includes UCL and Labor Code claims.