in brief: Ninth Circuit clarifies the Tosco "substantial predominance" test for corporate operations in Davis v. HSBC Bank Nevada, N.A., et al.

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Ninth Circuit SealIf you spend any time litigating class actions, CAFA almost guarantees that some of that time will be spent in federal court. Thus, the citizenship of the defendant(s) is a significant issue. In Davis v. HSBC Bank Nevada, N.A., et al. (February 26, 2009), the Ninth Circuit interpreted and limited the “substantial predominance” analysis for the “principal place of business” test, as it was described in Tosco Corp. v. Communities for a Better Env't, 236 F.3d 495 (9th Cir. 2001). In brief, the Court held that the “substantial predominance” of activities is tested against national activities, not the next largest state, but a per-capita analysis is not required.

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BREAKING NEWS: First appellate construction of Labor Code section 206.5 concludes that it doesn't mean what it seems to say

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Greatsealcal100As predicted in this post, the Fourth Appellate District, Division Three, has issued a published opinion in Chindarah et al. v. Pick Up Stix, Inc. et al (February 26, 2009).  The opinion construes Labor Code section 206.5, concluding that employer-obtained releases of wage claims in dispute were not void by operation of section 206.5.  There is some qualifying language in the opinion worth mentioning, but, that must wait for another day.

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ANNOUNCEMENT: The Complex Litigator will soon be forced to migrate its RSS feed to a new location

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Feedburner, which provides the RSS feed from this blog to many readers, was purchased by Google quite some time ago.  Now, Google is in the process of moving the Feedburner service to its own servers.  The move is voluntary now, but will mandatory very soon.  I have read many reports of problems during the voluntary feed relocation period, which is why I have not yet changed the feed.  However, I believe that time is running out.  If you read this blog from a Feedburner feed, you can subscribe to the feed directly in newer versions of Outlook or various browsers.

UPDATE:  The feed from this site has been moved to Google's servers with no problem so far.  Many other users have reported problems with the move, but in this case it was trouble-free.  However, it isn't clear whether this will disrupt the site feed for subscribers.  If it does, give it a few days to sort itself out.

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California Supreme Court grants itself additional time to consider Petition in Brewer v. Premier Golf Properties

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Greatsealcal100On February 23, 2009, the California Supreme Court extended the time for granting or denying review in Brewer v. Premier Golf Properties (2008) 168 Cal. App. 4th 1243. The Complex Litigator’s initial post about Brewer discusses its holding that punitive damages are unavailable for violations of at least some Labor Code provisions.  The Supreme Court now has to and including April 8, 2009 to grant or deny review.

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in brief: Consumers resist bank changes to terms in credit agreements; JP Morgan Chase named in class action

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On January 28, 2009, consumers filed a class action lawsuit against banks JP Morgan Chase and Chase Manhattan Bank for unilateral changes to terms governing credit card agreements.  This class action appears to be one of the early reactions to a wave of bank-imposed changes to terms governing consumer credit accounts.  (Ron Lieber, Credit Card Companies Go to War Against Losses (January 30, 2009) www.nytimes.com; see also, Eileen Ambrose, Banks playing hardball on credit, leaving consumers feeling blindsided, angry (February 24, 2009) www.baltimoresun.com.)  The banking practices mentioned in these articles are happening at other institutions.  Just as commentators predict a wave of employment litigation, I expect that consumer lending issues will balloon this year.

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in brief: New blog covers class actions from defense perspective

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If you are serious about understanding class actions, you need to understand the defense perspective on class actions as much as you do the plaintiff viewpoint.  Jackson on Consumer Class Actions and Mass Torts is a fairly new blog offering analysis from the defense perspective.  The blog is authored by Skadden attorney Russell Jackson, of New York, but the blog offers national coverage.

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in brief: CJAC at it again with call to support bill that allows interlocutory appeals of class certification orders in California

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According to a February 18, 2009 article on the California Chronicle website, Assemblyman Van Tran (R-Costa Mesa) has authored AB 298, which would apparently allow for interlocutory appeals by defendants when a trial court certifies a class action.  The Civil Justice Association of California (CJAC) is calling for support of this bill, which sounds strikingly similar to a 2008 bill promoted by CJAC in 2008.  That last effort was shelved after strong opposition was organized by the Consumer Attorneys of California (CAOC).  If you've wondered what CAOC can do for you as a plaintiff's attorney, there's one nice example.  Plaintiff's attorneys can't afford not to join.

Via ClassActionBlawg.com. 

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in brief: UCL Practitioner has more on Sullivan, et al. v. Oracle Corporation

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The UCL Pracitioner has a series of posts on Sullivan, et al. v. Oracle Corporation.  In particular, the most recent post sets forth the questions certified by the Ninth Circuit to the California Supreme Court.

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in brief: Ninth Circuit opinion in Sullivan, et al. v. Oracle Corporation is withdrawn

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Ninth Circuit SealThe Ninth Circuit issued an Order today in Sullivan, et al. v. Oracle Corporation, withdrawing its prior opinion. The Court said, "We have today issued an order requesting the California Supreme Court to answer three certified questions of California law presented in this case. We hereby withdraw our published opinion in this case, Sullivan v. Oracle Corp., 547 F.3d 1177 (9th Cir. 2008), pending a decision by the California Supreme Court on those questions. Appellants’ Petition for Rehearing and Appellees’ Petition for Rehearing En Banc are dismissed as moot." The Complex Litigator will have more on the certified questions in another post.

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OFF TOPIC: California's Budget Fiasco

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I haven't used this blog as a general political soapbox, but sometimes things go too far.  California citizens recalled Gray Davis shortly after he announced that the state budget shortfall was likely to exceed $35 billion, on a budget of about $100 billion.  Think about that for a minute.  "Oops, we overspent by a third!"

Now, with a budget that has exploded to around $140 billion, I'm hearing that I may face higher sales taxes, higher gas taxes, and higher income taxes because we are still $40 billion in the red.  Wait, weren't we $40 billion in the red in 2003, when we did the unprecedented and recalled a governor?

The only adjectives that come to mind for the leadership of this state (and are fit to print in a family publication) are "criminal," "pathetic," "inexcusable."  Leaders lead.  Under that standard, Sacramento hasn't had leadership for a long time.  Thank you for driving my child's future in this beautiful state off a cliff in your exuberant desire to shovel money you don't have and don't own into the hands of your various pet projects and respective backers.  This defines ultra vires activity.  It should be criminal, and every legislator that voted for any of these budgets should be personally liable for the shortfall.  How could you let this happen?  How could we let this happen?  I guess apathy gets what it deserves, which is nothing.

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