The UCL Practitioner

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.

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 action objectors defend 9th Circuit's infamous Hyundai ruling"

This article includes links to some of the briefs filed in connection with the rehearing petitions in the Hyundai case (discussed here).

According to the article, both the plaintiffs and the defendants have petitioned for rehearing, leaving the objectors to attempt to defend the decision. See In re Hyundai and Kia Fuel Economy Litigation, ___ F.3d ___ (9th Cir. Jan. 23, 2018).

"VW class counsel: Nationwide deal won’t be undone by 9th Circuit’s Hyundai ruling"

This is a very interesting article by Alison Frankel about the Ninth Circuit's recent opinion in In re Hyundai and Kia Fuel Economy Litigation, ___ F.3d ___ (9th Cir. Jan. 23, 2018) (discussed briefly in this blog post). 

Among other things, the article says that "proponents of the settlement intend to ask the full 9th Circuit to rehear the case." It also quotes a statement by Elizabeth Cabraser explaining the myriad reasons why the Hyundai case shouldn't derail the VW emissions settlements.

Alison Frankel also wrote a second article about the impact of Hyundai a few days after her earlier one.

(h/t: How Appealing)

"Dating app can't base fee on age, court decides"

This morning's print issue of the Daily Journal has an article, including my photo, on my Unruh Act case for age discrimination against Tinder.  A similar article is available to subscribers on the Daily Journal's website.  An excerpt:

In a loss for Tinder Inc., the 2nd District Court of Appeal has swiped right to approve a putative class action alleging the popular dating app discriminates by charging users over 30 more money.  .... 

"The Court of Appeal was very careful to adhere to California Supreme Court precedent on the Unruh Act," Kralowec said.  Other opinions have supported differential treatment, but those decisions are justified by a social policy, the appellate court observed. For example, laws allow for seniors and children to get discounts in certain situations. 

"Law recognizes that those groups have reduced income. Children can't work. But there aren't similar statutory enactments ... to protect adults under 30," said Kralowec.

For more on the UCL aspects of the case, see this blog post.  A link to the opinion is available here:  Candelore v. Tinder, Inc., ___ Cal.App.5th ___ (Jan. 29, 2018).

Insurance bad faith and the UCL

The September 2017 issue of Plaintiff magazine has an article by Jeffrey I. Ehrlich called "Be an insurance Myth Buster!"  One of the busted myths relates to the UCL.  The myth is this:  "An insurer's breach of its common-law duties cannot support a claim under the UCL." 

As explained in Jeffrey's article, the California Supreme Court busted this myth in 2013, in Zhang v. Superior Court, 57 Cal.4th 364 (2013) (discussed here).  Click over to Jeffrey's piece for more. 

"The U.S. Supreme Court Has Misinterpreted the Federal Arbitration Act"

Over at SCOCAblog, an article by William T. Newman posted earlier this week has an interesting take on Concepcion. 

Could Nordstrom invoke the UCL over a Trump tweet?

I was asked this question today by a Politico reporter, and was subsequently quoted in his article, "Trump blasts Nordstrom for dropping Ivanka's clothing line." 

Although I have other serious concerns about this type of tweet by a sitting president, I have a hard time seeing a UCL claim for Nordstrom in this fact pattern.   The article sums up why.   (Welcome, Politico readers!)

"Never Say Never"

Happy New Year to my lovely readers!  I hope everyone enjoys the long weekend. 

The Fall 2016 issue of Competition (the journal of the Antitrust, UCL and Privacy Section of the State Bar of California) has a very interesting article by my friend John Landry, entitled "Never Say Never: The Ninth Circuit's Misguided Categorical Approach to Individual Damages Questions When Assessing Rule 23(b)(3) Predominance."

The article provides an interesting defense perspective on recent Ninth Circuit class certification decisions, which, according to John's analysis, adopt a "categorical" rule that "individual damages questions alone never, ever defeat class certification."  You won't hear an argument from me on that, although I must respectfully disagree with John's conclusion that such a "categorical" rule is inconsistent with Comcast.  (See this blog post for my take on Comcast.)

If you are a member of the Section, you should have received your copy of Competition in the mail.  If you are not a member, I encourage you to join when you renew your bar membership this year. 

"Dole Buyers Get Mixed Win In 9th Circ. Natural Label Ruling"

Last week, I was quoted in an article in Competition Law360 (subscription) on the Ninth Circuit's unpublished opinion in Brazil v. Dole Packaged Foods, LLC, 2016 WL 5539863 (9th Cir. Sept. 30, 2016).

The article begins:

Consumers won a major false advertising battle Friday when the Ninth Circuit ruled the label on Dole's "all natural" frozen berry products may be misleading, but the panel's finding that the decertified class hadn't shown it could prove classwide damages greatly limits what the buyers can recover if they ultimately prevail, attorneys say.

As I told the reporter, I think the opinion mistakenly assumes that there are only two ways to measure UCL restitution, which is not the law in California.  Also, the class certification portion of the opinion seems to me inconsistent with Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979 (9th Cir. 2015) (discussed in this blog post).  The analysis assumes that every unnamed class member would have to show that they were misled, which is inconsistent with both Pulaski and In re Tobacco II Cases, 46 Cal.4th 298 (2009), which this opinion does not cite (it cites only the more recent Tobacco II opinion on remand, discussed here).  This non-precedential opinion should be limited to its facts.

"Ninth Circuit Uneasy About a Higher Bar for 'Ascertainability'"

Yesterday, the Recorder had an article (subscription) about Monday's oral argument in In re ConAgra Foods, a false advertising case alleging that the defendant mislabeled its Wesson Oil products as "100% Natural."  The district court found the classes ascertainable in a lengthy order about eighteen months ago.  In re ConAgra Foods, Inc., 90 F.Supp.3d 919 (C.D. Cal. 2015).  On appeal, the defendant is urging the Ninth Circuit to adopt the Third Circuit's truncated view of "ascertainability" set forth in in Carrera v. Bayer Corp., 727 F. 3d 300 (3d Cir. 2013).

According to the Recorder article, the panel's comments suggested skepticism of Carrera's heightened approach to ascertainability, which the Seventh Circuit considered and rejected in Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015).   It will be interesting to see what the Ninth Circuit does, although I would be very surprised if it were to adopt Carrera's reasoning.

Judicial Conference Committee on Rules of Practice and Procedure proposed amendments to Rule 23

This month, the Judicial Conference Committee on Rules of Practice and Procedure published a preliminary draft of proposed amendments to Federal Rule of Civil Procedure 23, governing class actions.  The proposed changes to Rule 23, and the proposed Committee Note, appear at pp. 211-232 of the pdf file. 

To my eye, most of the changes do nothing more than codify what is already standard class action practice and procedure.  Only one of the changes stands out.  Proposed amended Rule 23(e)(5)(B) would require court approval of any payment (or other "consideration") to an objector (or objector's counsel) to drop the objection.  This would weaken professional objectors' leverage and perhaps deter frivolous objections. 

Last week, the National Law Journal had an article (subscription) on this proposed amendment:

Many practitioners say they see the rules change as a means of curbing what they consider to be an abuse of the class action settlement process.

"What's new about that proposal is it basically says that an objector can't be paid off to drop their objection without approval by the district court," said Leslie Brueckner, senior attorney at Public Justice. "That could have a big impact because it could effectively halt the problem of so-called 'professional objectors,' who basically hold up class action settlements for their own pecuniary gain, by basically exposing that kind of practice to the light of day."

(Hyperlink added.)  Comments on the proposed rule changes (which include changes to other provisions besides Rule 23) are due on February 15, 2017.

"Will Uber drivers get class-action status for employment case?"

The motion for class certification in the Uber misclassification case made the San Francisco Chronicle. The motion was argued last Thursday before U.S. District Judge Edward Chen. 

The article relates a few interesting exchanges that took place during the hearing:

Chen appeared skeptical of Uber’s arguments at the hearing’s outset. “Isn’t it contradictory that Uber says every single driver is an independent contractor and yet also says they are dramatically different from one another and thus can’t be certified as a class?” he asked.

....

Chen also questioned whether the plaintiff drivers had much backing among other drivers. “There’s nothing in the record to show mass support for the position of your three named plaintiffs,” he said to the drivers’ attorney, Shannon Liss-Riordan.

The law is what matters, not drivers’ desires, she said. “This isn’t a popularity contest,” she said. “It’s not a question of what people want.”

(Hyperlink added.)  Whenever I hear that argument, in state court at least, I always cite Richmond v. Dart Industries, Inc., 29 Cal.3d 462 (1981), which explains that if someone doesn't want to participate in the case, they can choose to opt out.  Widespread affirmative support is not an element of class certification that the plaintiffs must prove. 

"Class(ic) Settlement Problems" by Judge Curtis Karnow

The January/February 2015 issue of CAOC Forum has an article by San Francisco Superior Court Judge Curtis E.A. Karnow entitled "Class(ic) Settlement Problems."  

The article provides "a list of issues which often seem to pose problems when counsel file motions for preliminary approval of [class action] settlements." 

Four resources are listed at the end of the article, including Judge Brick's Guidelines for Counsel re Class Settlement Applications, as uploaded to my blog in 2009 at this link. 

Judge Karnow's author's note says that the article "has been submitted for publication in both defense and plaintiffs' publications for the benefit of both bars seeking to resolve class action cases through settlement." The link provided above is a CAOC members-only link.  The article is also available here and here.

"Principles of litigating consumer class actions"

The January 2015 issue of Plaintiff Magazine has this article, and several others, in a symposium edition on class action litigation.  The article by Joshua Haffner on class action trials is quite interesting.

"Class actions are thriving after Brinker"

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

An excerpt:

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

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

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

"Justices Strike Overtime Award Based on Flawed Statistics"

The legal press is covering Duran.  Here's an excerpt from the article by Marisa Kendall in The Recorder:

The California Supreme Court tossed a $15 million overtime award to bank employees Thursday because of a faulty statistical sample, but justices were careful not to toss at-large reliance on statistics in wage-and-hour class actions.

....

Kimberly Kralowec, who filed an amicus brief in the case on behalf of the California Employment Lawyers Association, said the court shot down U.S. Bank's claim that it should have a right to call every class member individually to the stand.  "Essentially they were arguing you never get to have a class action," she said.

....

[Plaintiffs' counsel Ed] Wynne called Thursday's opinion more favorable than the original court of appeal decision, which had dismissed the case permanently. Corrigan's opinion instead remands the case for fresh class certification proceedings and a new trial.

"We're really pleased," Wynne said. "While it's regrettable that the judgment wasn't upheld and the case was decertified, the court has given us valuable guidance for getting the case recertified." Wynne hasn't ruled out using a statistical model in round two of litigation.

"We're going to get the case certified again," he said. "I see no reason not to use statistical modeling again."

From an interview with Chief Justice Cantil-Sakauye

I just came across this late January interview by the Sacramento Bee's editorial board with Chief Justice Tani Cantil-Sakauye.  An excerpt:

Gary Reed: What are the most interesting cases before the Supreme Court?

Cantil-Sakauye: One of our most interesting cases was the Garcia bar admission case (authorizing Sergio Garcia to practice law though he had come to California as a child without documentation), because of the interplay of state and federal law. I’m finding class-action cases interesting, and wage and hour cases.

Miller v. Alabama (in which the U.S. Supreme Court struck down mandatory life imprisonment without parole sentences for juvenile offenders.) We’re seeing broad cases at the California Supreme Court in reaction to U.S. Supreme cases. I wish I had all the time in the world to focus on those issues.

Dan Morain: Which justices do you most admire?

Cantil-Sakauye: I feel privileged to work with the group I’m in. I respect their history and how they look at law and tradition. I feel privileged because I don’t know how long it will last.

I like working with Goodwin Liu. He didn’t come from a trial court. He didn’t come from an appellate court. He came from academia. He will say, ‘Why are you doing this?’ He challenges us. This group is the mix of the old and the new.

This interview was before Justice Kennard announced her retirement, or I am sure the Chief would have been asked about her legacy.

Justice Kennard announces retirement from California Supreme Court

You have probably already heard the news last week, when Justice Joyce Kennard of the California Supreme Court announced that she would be retiring as of April 5, 2013, which will mark her 25th anniversary as a member of the Court.

Yesterday's San Francisco Chronicle had an interesting article by Bob Egelko about some of Justice Kennard's most significant opinions.  An excerpt:

Kennard's majority opinions included a 1991 ruling declaring high school graduation prayers unconstitutional, a conclusion the U.S. Supreme Court reached in a separate case a year later; another 1991 decision establishing an employee's right to sue for age discrimination; and a 1997 ruling allowing a suit against a city by a woman who was stopped by a police officer, taken into custody and raped - an abuse, Kennard said, of the "formidable power" the city had granted to the officer.

She voted often with the court's moderate-to-liberal bloc, but not always - for example, she joined a 1991 ruling that upheld legislative term limits and slashed the lawmakers' operating budget. But Kennard was impossible to pigeonhole.

When the court upheld the enforcement of surrogate-motherhood contracts in 1993, Kennard cast a lone dissent and told the all-male majority that a pregnant woman "is more than a mere container or breeding animal; she is a conscious agent of creation."

There is no indication that Justice Kennard will not remain on the bench for the March argument calendar, which includes the Duran case.  If the opinion is handed down after the date of her retirement, she will almost certainly be appointed by the Chief Justice to continue to serve on the panel pro tem, as was Chief Justice George in the Kwikset case.    (Kwikset was argued on November 3, 2010; Chief Justice George retired on January 2, 2011; he was appointed the next day as a pro tem justice for the mater; and the opinion was handed down on January 27, 2011.) 

Last week, the Daily Journal offered some speculation on possible candidates to fill Justice Kennard's seat.  The blog At the Lectern has more on this.  The list of possible candidates recognizes that the current Court has no Latino members and no one from Southern California.

"Class actions: A path through the darkness?"

The January 2014 issue of Plaintiff Magazine has a very interesting article about class actions in the post-Dukes, post-Concepcion, and post-Comcast world.  The article is by Jahan Sagafi and Jennifer Liu of Outten & Golden.

Speaking of post-Comcast cases, the U.S. Supreme Court has once again re-listed the trio of front-load washer cases.  Whirlpool Corp. v. Glaser, No. 13-431; Sears, Roebuck & Co. v. Butler, No. 13-430; BSH Home Appliances Corp. v. Cobb, No. 13-138. 

Each of these cases is now scheduled for conference next Friday, February 21.  If cert. is granted in any of them during that conference, the announcement should be online by Monday, February 24.  

"Horton hears a death knell"

Yesterday's Daily Journal had this practice article with a defense perspective on the Fifth Circuit's decision in D.R. Horton, Inc. v. National Labor Relations Board, ___ F.3d ___ (5th Cir. Dec. 3, 2013), discussed in this blog post.

In a similar vein, readers may be interested in "Horton Hatches the Egg: Concerted Action Includes Concerted Dispute Resolution," 64 Ala. L. Rev. 1013 (2013).  The article was cited in the Fifth Circuit opinion:

A thorough explanation of the strongest arguments in favor of the Board’s decision, which embraces the Board’s distinctions from earlier Supreme Court pronouncements on arbitrations and adding some of its own, appears in a recent law review article. Charles A. Sullivan & Timothy P. Glynn, Horton Hatches the Egg: Concerted Action Includes Concerted Dispute Resolution, 64 ALA. L. REV. 1013 (2013). We do not adopt its reasoning but note our consideration of its advocacy.

Slip op. at 25 n.11. 

"Appeals court revives suit against Skype"

Yesterday's San Francisco Chronicle had this article (subscription) by Bob Egelko on the Court of Appeal's latest UCL and CLRA opinion, Chapman v. Skype Inc., ___ Cal.App.4th ___ (Oct. 4, 2013).

Chapman stands in rather stark contrast to Simpson v. The Kroger Corp., ___ Cal.App.4th ___ (Sept. 25, 2013), decided the preceding week (see this blog post).  More details on Chapman can be found on Professor Tushnet's blog, which also had a post on Simpson.

"Brinker case closer to trial, nine years after filing"

This morning's Daily Journal has a story by Laura Hautala on Judge Dato's order yesterday granting class certification of the meal period class on remand in Brinker.  The story begins:

The meal and rest breaks case against Brinker Restaurant Corp. that led to a landmark state Supreme Court decision in 2012 is moving closer to trial after a judge Thursday granted class certification to hourly employees seeking damages for missed breaks.

"Roberts Pulls Supreme Court to the Right Step by Step"

Adam Liptak had another interesting article on the U.S. Supreme Court two days ago in The New York Times.

According to Liptak, "Chief Justice Roberts has proved adept at persuading the court’s more liberal justices to join compromise opinions, allowing him to cite their concessions years later as the basis for closely divided and deeply polarizing conservative victories." 

"Circuit's reversal in wage case complicates Comcast"

On May 29, 2013, the Daily Journal had a story on the Ninth Circuit's opinion last week in Leyva v. Medline Industries, Inc., ___ F.3d ___ (9th Cir. May 28, 2013), which reversed the district court's order denying class certification of certain wage and hour claims, and remanded with directions to certify the class.

As I mentioned to Laura Hautala of the Daily Journal, the most important thing about the opinion is its recognition that Comcast did not change the rule that individualized damages issues do not defeat class certification.  Slip op. at 7-9.  The opinion affirmed the general rule, which is that class certification can and should be granted in Rule 23(b)(3) cases not withstanding the need to calculate damages individually for each class member:

The district court denied certification because for each sub-class “the damages inquiry will be highly individualized.” But damages determinations are individual in nearly all wage-and-hour class actions. Brinker Rest. Corp. v. Superior Court, 273 P.3d 513, 546 (Cal. 2012) (“In almost every class action, factual determinations of damages to individual class members must be made. Still we know of no case where this has prevented a court from aiding the class to obtain its just restitution. Indeed, to decertify a class on sound the death-knell of the class action device.”) (internal citation and quotation marks omitted). Thus, “[t]he amount of damages is invariably an individual question and does not defeat class action treatment.” Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975); see also Yokoyama, 594 F.3d at 1089 (“The potential existence of individualized damage assessments . . . does not detract from the action’s suitability for class certification.”). In deciding otherwise, the district court abused its discretion by applying the wrong legal
standard. See Hinkson, 585 F.3d at 1263.

Indeed, the Supreme Court clarified in Dukes that “individualized monetary claims belong in Rule 23(b)(3).” 131 S. Ct. at 2558. Thus, the presence of individualized damages cannot, by itself, defeat class certification under Rule 23(b)(3).  ....

Slip op. at 7-8.  The panel's citation of Brinker and Dukes in support of its ruling is notable, as is its reliance on Yokoyama (discussed in this blog post) and Blackie, which reconfirms the continuing vitality of both opinions post-Dukes and post-Comcast. 

This was my original report on Comcast.

I have been very busy in my day job lately, but I'm hoping to find time to catch up with my blogging in the coming weeks. 

Last week's arguments in Rose and Zhang

As I previously reported, last week the Supreme Court heard oral arguments in two cases potentially implicating the ordinary rule that a UCL "unlawful" prong may proceed regardless of whether the legislature intended the "borrowed" law to carry a private right of action.  Zhang v. Superior Court (Cal. Cap. Ins.), no. S178542, was argued last Wednesday, and Rose v. Bank of America, no. S199074, was argued Tuesday. 

Emily Green of the Daily Journal had a story on the Zhang argument in last Thursday's paper.  An excerpt:

Plaintiffs lawyers and insurance companies have waited more than three years for the state Supreme Court to take up the case of Yanting Zhang, a homeowner who sued her insurance company for false advertising after it repeatedly stalled her efforts to get recovery after an apartment fire.

But at oral argument Wednesday, ... the questions posed by the justices suggested the court is inclined to rule in favor of Zhang, who wants to move forward with her claim.

....

The backdrop to the case is a prior California Supreme Court decision that says private citizens can't privately sue insurers who commit unfair practices under the state's Unfair Insurance Practices Act. Only the insurance commissioner can do that.  Moradi-Shalal v. Fireman's Fund Ins. Companies, 46 Cal.3d 287 (1988).

Much of oral argument centered on whether Moradi-Shalal affected Zhang's case.  ....

[Justice] Corrigan questioned why Zhang should be precluded from suing the company for false advertising. If one of the parties has no intention of living up to its side of the contract, she said, then the contract is "fraudulently induced." 

Justice Corrigan is one of the more conservative members of the Court, so if her questions favored the plaintiff, that is a strong signal that the plaintiff may ultimately prevail. 

I have seen no press coverage of Rose, but an attorney present reported that the questioning in that case also seemed to favor the plaintiffs' position.  The attorney said that from the questioning, it appeared that the justices were accepting the argument that the repeal of the private right of action for violations of the Truth in Savings Act (12 U.S.C. § 4301 et seq.) did not affect the Act's preemption language or establish a federal policy precluding state enforcement of its provisions. 

Both opinions are due to be filed no later than the week of August 5, 2013.  

"Corporations Find a Friend in the Supreme Court"

Last Saturday's New York Times had an interesting article on the U.S. Supreme Court by Adam Liptak.  The article discusses Comcast, Dukes and Concepcion.

Congratulations to the 2013 CLAY Award winners, including my Brinker co-counsel

Today is the one-year anniversary of the Supreme Court's issuance of its opinion in Brinker.  It is an opportune day for me to publicly congratulate my co-counsel, Tracee Lorens and Michael Rubin, who were both selected by California Lawyer magazine as recipients of 2013 CLAY Awards in Employment Law for their work on behalf of the employees in Brinker.  (I was also an honoree.) The Awards were announced in the March 2013 issue of the magazine. 

I am so proud of them, as I am of Michael Singer and Dave Mara, whose contributions were invaluable and who really should have been honored too. With three lawyers from the plaintiffs' team already selected by the editors of California Lawyer for our work, however, it seems not everyone could be named. 

As I have said before, we could not be happier with the Supreme Court's ruling that employers may not simply "offer" meal periods, but rather must take affirmative steps to actually relieve workers of all duty, while at the same time refraining from doing anything to interfere with employees' ability to actually take their meal periods.  We are pleased that the editors of California Lawyer saw fit to recognize our work. 

Congratulations also to the rest of the 2013 CLAY Award recipients.  My co-counsel in LCDs, Fran Scarpulla, received a well-deserved award for his work on that antitrust class action, and Michael Rubin's partner Danielle Leonard was the first attorney ever to receive two CLAY Awards in the same year (Education Law and Voting Rights).  Contratulations to her and to all. 

"Lawyers increasingly exposed to Unfair Competition Law liability"

The April 2013 issue of the California Bar Journal has an "Ethics Byte" article by attorney Diane Karpman called "Lawyers increasingly exposed to Unfair Competition Law liability."

An excerpt:

Sometimes you can see clear trends developing in legal ethics. We are seeing an explosion of unfair competition law claims against lawyers, by lawyers, and against online legal service providers. By the way, according to insurance mavens, your coverage should include UCL claims, since they are incurred in the performance of legal services.

The article discusses People ex rel. Herrera v. Stender, ___ Cal.App.4th ___ (Dec. 4, 2012; pub. ord. Jan. 3, 2013) (discussed in this blog post), but, curiously, does not mention Law Offices of Mathew Higbee v. Expungement Assistance Services, ___ Cal.App.4th ___ (Mar. 14, 2013) (discussed here).

The article does mention a pending bill that would allow the State Bar to recover the civil enforcement penalties authorized by the UCL for public prosecutor actions.  The bill does not add the State Bar to the list of public prosecutor offices permitted to bring UCL claims; rather, it would allow the State Bar to bring civil enforcement actions for violations of some of the Business & Professions Code provisions governing lawyers, and to recover the civil penalties of the UCL (Bus. & Prof. Code section 17206) in such actions. 

In other words, if passed, the new law would "borrow" the UCL's civil penalty provisions. 

"Unfair-competition suit reinstated"

Bob Egelko of the San Francisco Chronicle had this article in yesterday's paper on the Court of Appeal's opinion last week in Law Offices of Mathew Higbee v. Expungement Assistance Services, ___ Cal.App.4th ___ (Mar. 14, 2013).

Higbee is a UCL competitor action and the opinion is quite interesting.   From the article:

A state appeals court has reinstated a lawyer's suit against a company offering cut-rate legal services, ruling that - despite a voter-approved law limiting unfair-competition suits - a business that's being undercut by a rival's practices can still seek redress in court.

I will have more on the opinion in a later post.