a California-centric collection of comments and resources about complex litigation and class action practice
Yes. Perhaps an over-generalization, but, yes. See, Coyote Publishing, Inc. v. Miller (9th Cir. Mar. 11, 2010), wherein the Ninth Circuit held that Nevada's restrictions on brothel advertisements are constitutional because they are justified by state's "substantial interest." These headlines sometimes write themselves.
You've seen them. The settlement agreements with "Approved as to form and content" at the end of document, with a place for the attorneys to sign right along with the parties. I know a lawyer that has, for many years, refused to sign off on such language. His reason? He's not a party to the agreement; his client is. It turns out that his instincts were pretty accurate. In what it believes to be a case of first impression, the Court of Appeal (Second Appellate District, Division Four), in Freedman v. Brutzkus (March 11, 2010), examined at least some of the legal import of that language:
The signature block on a contract bears an attorney signature under the legend “approved as to form and content.” Does that signature amount to an actionable representation to an opposing party‟s attorney? We conclude that it does not.
Slip op., at 2. The Court noted the lack of authority directly construing the import of this recital:
Apart from the signature approving the agreement “as to form and content,” Freedman does not allege, nor does the record show, that Brutzkus made any representation as to the agreement‟s validity, or affirmed any representation of his clients. We find little authority in California or elsewhere addressing the meaning of this recital. (See, e.g., In re Marriage of Hasso (1991) 229 Cal.App.3d 1174, 1181 [declining to find an attorney‟s approval “as to form” a condition precedent to enforceability of an agreement]; Ahrenberg Mech. Contractor v. Howlett (Mich. 1996) 545 N.W.2d 4, 5-6, citing Kirn v. Ioor (Mich. 1934) 253 N.W. 318 [finding approval as to form and content of a court order insufficient to establish a consent judgment]; First American Title Ins. Co. v. Adams (Tex.Ct.App. 1992) 829 S.W.2d 356, 364 [determining that an attorney‟s approval as to form and substance does not establish a consent judgment or relinquish a party‟s right to appeal]; CIC Prop. Owners v. Marsh USA, Inc. (5th Cir. 2006) 460 F.3d 670, 672-673 [agreement stating it was “„reviewed by counsel for parties and approved as to form and content‟” indicates that parties were separately advised by counsel].)
Slip op., at 5. Having no direct authority to answer the question raised on appeal, the Court did the only thing it could do, apply common sense:
We conclude that the only reasonable meaning to be given to a recital that counsel approves the agreement as to form and content, is that the attorney, in so stating, asserts that he or she is the attorney for his or her particular party, and that the document is in the proper form and embodies the deal that was made between the parties.
Slip op., at 5-6.
This isn't a complex litigation issue, or a class action issue. It's just a fine example of all those mindless acts of habit that attorneys insist upon without a good reason.
The California Supreme Court held its (usually) weekly conference today. Notable results include:
Coito v. Superior Court (March 4, 2010) is apparently generating a fair bit of interest, based upon the search engine traffic viewing this blog's post about this new opinion. Other articles that may be of interest include:
More commentary will likely follow; this decision seems to have hit a nerve.
Yesterday, in Coito v. Superior Court (March 4, 2010), the Court of Appeal (Fifth Appellate District) addressed an issue that nominally concerned the collection of evidence in a wrongful death lawsuit naming California as one defendant. The facts are particularly sad in that the case involved the death of a child, but, then, the facts of all wrongful death cases are sad. The issue addressed in Coito is whether an attorney's collection of a witness statement after the attorney selected the witness to interview is work product (absolute or qualified). Coito holds that even attorney-collected statements are not, unless the attorney's independent thoughts and analysis are inextricably intertwined with the statements of the witness. The majority is exceedingly critical of Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal.App.4th 214 (1996), a case frequently relied upon to shield putative class member declarations from discovery. Coito puts that argument in jeopardy. I may be wrong, but I think that this decision may affect the manner in which putative class members are handled during interviews by counsel on both sides. The case, and especially the long and thoughtful concurring and dissenting opinion, deserves more attention than I can provide today, so I may post a longer comment over the weekend.
Welcome back, Wagelaw. We missed you!
The shockwaves of Tobacco II continue. Today, the Court of Appeal (Second Appellate District, Division Three) published its Opinion in Pfizer v. Superior Court (March 2, 2010) after the matter was remanded by the California Supreme Court following the Tobacco II decision. The Court focused heavily on the length of time and extent of the advertising campaign for Listerine that was at issue in the case. Less than half a year and sporadic distribution wasn't enough to convince the Court to apply Tobacco II. So now we have Morgan, et al. v. AT&T Wireless Services, Inc. (September 23, 2009), that found an advertising campaign of around a year to be long enough for a reliance inference, but just under half a year is insufficient. I suppose those 8-month ad campaigns will be judged on a fact-intensive analysis that looks at whether the ads were continuous and pervasive or sporadic and poorly circulated.
After granting a panel petition for rehearing, the Ninth Circuit withdrew the Opinion in Rutti v. Lojack Corporation, Inc., 578 F.3d 1084 (9th Cir. 2009), and issued a new opinion, Rutti v. Lojack Corporation, Inc. (9th Cir. March 2, 2010). The change is significant on the issue of commute time under California law: "[W]e vacate the district court’s grant of summary judgment on Rutti’s claim for compensation of his commute under California law and on his postliminary activity of required daily portable data transmissions, and remand the matter to the district court for further proceedings consistent with this opinion." Slip op., at 3237. I may provide a longer post about this change later. The earlier post on Rutti can be found here.
on the occasion of announcing the formation of her own firm. Kimberly Kralowec, author of The UCL Practitioner, has announced the The Kralowec Law Group. I wish Kim the best of luck; she was an inspiration to my own blogging efforts. I hope that four years from now I will be able to say, "I have every intention of continuing to write this blog as I have done for the past six years."
The Complex Litigator reports on developments in related areas of class action and complex litigation. It is a resource for legal professionals to use as a tool for examining different viewpoints related to changing legal precedent. H. Scott Leviant is the editor-in-chief and primary author of The Complex Litigator.
