a California-centric collection of comments and resources about complex litigation and class action practice
Andrew J. Trask, of McGuire Woods, is authoring a new blog, entitled Class Action Countermeasures. Looks like there is some interesting information of interest to both sides of the class action bar. Looks like there is some grammatical grammar in my grammar, grammatically speaking.
Follow @classstrategist on twitter.
Plaintiffs Joseph Birdsong and Bruce Waggoner filed a class action complaint claiming that Apple, Inc.’s iPod is defective because it poses an unreasonable risk of noise-induced hearing loss to users. The district court, concluding that the plaintiffs failed to state any claim and lacked standing under the Unfair Competition Law ("UCL"), dismissed. In Birdsong v. Apple, Inc. (December 30, 2009) the Ninth Circuit affirmed.
First, the Court noted the warning that accompanied every iPod:
Permanent hearing loss may occur if earphones or headphones are used at high volume. You can adapt over time to a higher volume of sound, which may sound normal but can be damaging to Permanent hearing loss may occur if earphonesor headphones are used at high volume. You can adapt over time to ahigher volume of sound, which maysound normal but can be damaging to your hearing. Set your iPod’s volume to a safe level before that happens. If you experience ringing in your ears, reduce the volume or discontinue use of your iPod.
Slip op., at 16870-71. The Court then concluded that the Implied Warranty of Merchantability claim failed on the pleadings:
The district court did not err. The plaintiffs admit that the iPod has an “ordinary purpose of listening to music,” and nothing they allege suggests iPods are unsafe for that use or defective. The plaintiffs recognize that iPods play music, have an adjustable volume, and transmit sound through earbuds. The third amended complaint includes statements that (1) the iPod is capable of playing 115 decibels of sound; (2) consumers may listen at unsafe levels; and (3) iPod batteries can last 12 to 14 hours and are rechargeable, giving users the opportunity to listen for long periods of time. Taken as true, such statements suggest only that users have the option of using an iPod in a risky manner, not that the product lacks any minimum level of quality. See Am. Suzuki, 37 Cal. App. 4th at 1296.
Slip op., at 16873. After identifying claims that were apparently abandoned on appeal, the Court then examined standing under the UCL. First, the Court noted that because the underlying Implied Warranty claim failed, the plaintiffs could not state a UCL claimed predicated upon unlawful conduct, leaving only the assertion of "unfair" practices. Slip op., at 16876. Next, the Court concluded that the plaintiffs had not alleged an injury of any form to themselves:
Although the plaintiffs allege that Apple has sold more than 100 million iPods, they do not claim that they, or anyone else, have suffered or are substantially certain to suffer hearing loss from using an iPod. As discussed above, as a result of this omission, the plaintiffs fail to state an implied warranty claim, and they have no standing to assert a UCL claim. The plaintiffs simply do not plead facts showing that hearing loss from iPod use is actual or imminent, as required. Buckland, 155 Cal. App. 4th at 814. To the contrary, the plaintiffs’ third amended complaint reveals the conjectural and hypothetical nature of the alleged injury as the plaintiffs merely assert that some iPods have the “capability” of producing unsafe levels of sound and that consumers “may” listen to their iPods at unsafe levels combined with an “ability” to listen for long periods of time.
Slip op., at 16878. The plaintiffs tried to work around this problem by claiming that they did not receive the benefit of their bargain, but the Court noted that the plaintiffs admitted they received the volume warning and received no promises of performance that were not fulfilled.
I've had at least 5 iPods of varying types. I still hear fine. It's my daughter I worry about. Me: "Eat your dinner!" Her: Glassy-eyed stare into the distance. It must be hearing loss. I just can't figure out how my iPods did it, seeing as how she is 4 and doesn't listen to my iPods.
The California Supreme Court held its (usually) weekly conference on December 23, 2009. The only notable event I noticed was:
The California Supreme Court has announced on the California Courts website that its Los Angeles Clerk's Office will close at the start of the new year. The Notice states:
Notice
EFFECTIVE JANUARY 1, 2010, the Los Angeles Clerk's Office of the Supreme Court of California will be closed. The Supreme Court will no longer accept filings at Court of Appeal locations. All petitions for review, writs, and legal briefs must be filed at:
Supreme Court of California
Office of the Clerk, First Floor
350 McAllister Street
San Francisco, CA 94102
The Supreme Court will continue its practice of conducting oral argument in Los Angeles, typically in the months of April, June, October, and December.
The UCL Practitioner has additional helpful comments about alternative methods for filing briefs under the Rules of Court.
With the holidays upon us, the topical and interesting news stories have been few and far between. But the drought cannot last forever. Today, the Court of Appeal (Second Appellate District, Division Three) issued an Opinion in which it affirmed the trial court's denial of class certification in the matter of In re Vioxx Class Cases (December 15, 2009). I will need to read this Opinion with some deliberation before writing an extended post about it. However, a few things jumped out immediately and are worth noting now. Tobacco II is mentioned early in the Opinion, and I assumed that the Opinion would join the few recent Opinions that appear to conflict with Tobacco II. That does not appear to be the case here: "Nonetheless, it is clear from Supreme Court authority that recovery in a UCL action is available in the absence of individual proof of deception, reliance, and injury. (Tobacco II, supra, 46 Cal.4th at p. 320.)" (Slip op., at 25 n. 19.) Instead, the Court of Appeal affirmed the trial court's denial of class certification on the basis of damage-related issues: "The trial court’s findings with respect to the measure of damages are sufficient to support its denial of class certification with respect to the UCL and FAL causes of action." (Slip op., at 25, emphasis added.) This damages discussion, and some remarks about typicality, will require more reading and a longer post.
The trial court judge was Victoria Chaney. Associate Justice Victoria Chaney now sits in Division One of the Second Appellate District.
I'm attending Bridgeport's 6th Annual Wage & Hour Litigation Conference. Today, one topic of discussion is the subject of class arbitrations after Gentry. According to Steven Katz, partner at Reed Smith LLP, Gentry is one of the California Supreme Court's most erroneously-reasoned decisions in quite some time. That's not the interesting part (it's the funny part). The interesting commentary comes from how the defense bar hopes to limit Gentry.
Mr. Katz starts from the premise that Gentry. does not state a bright-line rule precluding class action waivers in all wage & hour class actions. The defense bar hopes to elicit further review of Gentry by challenging trial and appellate orders that impose a bright-line rule when invalidating arbitration agreements with such waivers. The protective measure that plaintiffs should take is to draft proposed orders that identify the four-factor test from Gentry as having been satisfied.
The second major challenge to Gentry that is being tested at the appellate level is a species of "field" preemption. The defense contention is that Gentry allows for a type of contract impairment that isn't directed at arbitration agreements directly, but nevertheless affects only those types of agreements. This argument disregards the fact that the principles in Gentry are subject-neutral. It is merely the nature of the effect of these agreements that renders them invalid. The factors in Gentry don't seek out just arbitration agreements with class action waivers. Despite that weakness in the defense-side argument, plaintiffs should handle these arguments with great care. This species of "field" premption is very complex, and the attorneys bringing these arguments often have an advantage in the form of repeated experience with them. Don't take a novel preemption argument lightly.
In Howe v. Bank of America N.A., plaintiffs, on behalf of a putative class of “individuals of U.S. national origin and/or ancestry, as well as naturalized individuals,” sued Bank of America and other companies. They alleged that Bank of America and other defendants had discriminated against the class in violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.) by requiring that United States citizens provide a Social Security number to open a particular type of credit card account, while allowing foreign nationals to open such accounts with only alternative forms of identification. Slip op. at 2. The trial court sustained the defendants' demurrer. The Court of Appeal (Fourth Appellate District, Division Three), affirmed, finding that Bank of America's actions were facially reasonable in that they complied with federal minimum identification regulations.
Dragon Dictation, which is a simplified version of the PC software, Dragon NaturallySpeaking, is now available in the iTunes App store. And, for some limited amount of time, it is FREE.
This application is simple, but very nice. At launch, all you see is a button, with text that reads, "Tap here and dictate." Go on, tap! The application immediately begins recording what you say. When you are finished, press another button, and the speech-to-text conversion occurs. Once you have text, you can either edit the text or export it to e-mail on your phone, text messaging, or the clipboard. If you don't like the virtual keyboard, this program offers a way to write a significant amount of text in a hurry.
In my testing, it was shockingly accurate. Admitedly, I tested the application is a quiet room, with no significant background noise. Dragon Dictation recognized punctuation and "new line" commands. I'm still amazed at the quality of the recognition from a phone. A phone.
I have spent some more time working with dragon dictation, and I continue to be impressed with the accuracy of the voice recognition. I have tried using the application in environments where there is background conversation, and the microphone on the iPhone is able to isolate my voice from remote background sounds. While the recognition is not perfect, and no application of this type promises perfection, it is still a valuable tool for dictation when typing is not a reasonable alternative. This update to my post was drafted entirely with dragon dictation. It required only one correction. I had to change the word protection to perfection.
The Delaware Court of Chancery, in Georgetown, Delaware, is playing host to a wild one. Courtroom View Network is now providing live coverage of eBay v. Craigslist, otherwise known as eBay Domestic Holdings, Inc. v. Craig Newmark. California online mainstays eBay and Craiglist are involved in a bi-coastal battle over director voting rights and the alleged theft of confidential information. In a nutshell, eBay claims that Craiglist's directors unfairly diluted eBay's 28.4 percent minority shareholder stake in Craigslist and eliminated eBay's right to appoint a director. In another lawsuit filed in San Francisco, Craigslist claimed that eBay used its shareholder position to obtain confidential competitive information to gain an unfair commercial advantage in developing eBay's own competing online classified ad business, kijiji.com.
Courtroom View Network is providing free access to a sample clip of cross-examination of Meg Whitman, the former CEO of eBay. Other media outlets have more coverage of the opening day of trial. See, e.g., Shannon P. Duffy, Craigslist, eBay Face Off in Closely Watched Trial (December 8, 2009) www.law.com.
True, it's not a class action, but this is complex litigation at its best. Two cyber-goliaths trying to strangle each other on opposite sides of the country is too good to pass up. I just don't know who to root for.
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.
