a California-centric collection of comments and resources about complex litigation and class action practice
The Supreme Court's Opinion in Arias v. Superior Court (Dairy, RPI) (June 29, 2009) is now available. The Complex Litigator will have a more thorough commentary available soon. In addition, the Opinion in Amalgamated Transit Union, Local 1756, AFL-CIO et al. v. Superior Court (First Transit, Inc., et al., RPI) (June 29, 2009) is also available now.
I'm posting via iBlogger, a blogging application for the iPhone, so my editing tools are limited.
The Supreme Court pre-announces the release of opinions one business day before they are made available to the public. This morning, the Supreme Court announced forthcoming decisions in two cases that are of interest to wage & hour class/mass action practitioners. The first, Arias v. Superior Court (Dairy, RPI), concerns issues related to the Labor Code Private Attorneys General Act of 2004 ("PAGA"). The Court lists two questions that will be answered in the opinion: "(1) Must an employee who is suing an employer for labor law violations on behalf of himself and others under the Unfair Competition Law (Bus. & Prof. Code, § 17203) bring his representative claims as a class action? (2) Must an employee who is pursuing such claims under the Private Attorneys General Act (Lab. Code, § 2699) bring them as a class action?"
The Supreme Court will also render its opinion in Amalgamated Transit Union, Local 1756, AFL-CIO et al. v. Superior Court (First Transit, Inc., et al., RPI). Amalgamated addresses novel issues under PAGA and the UCL: "(1) Does a worker’s assignment to the worker’s union of a cause of action for meal and rest period violations carry with it the worker’s right to sue in a representative capacity under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) or the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.)? (2) Does Business and Professions Code section 17203, as amended by Proposition 64, which provides that representative claims may be brought only if the injured claimant "complies with Section 382 of the Code of Civil Procedure," require that private representative claims meet the procedural requirements applicable to class action lawsuits?"
I am speaking at the Los Angles County Bar Association Solo & Small Firm Conference. Specifically, I am talking about social media as a marketing tool for attorneys. Go figure. Below is a fascinating widget that displays twitter tweets with the hashtag #solo09:
In Satterfield v. Simon & Schuster, Inc. (June 19, 2009), the Ninth Circuit issued a consumer-oriented opinion that exemplifies the challenges faced by courts that are asked to apply existing laws to developing areas of technology. By technology standards, Satterfield is not cutting-edge material. Plaintiff Satterfield alleged a violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, arising after Satterfield received an unsolicited text message. At the time of the TCPA's enactment, text messaging was not yet in use:
The precise language at issue here is what did Congress intend when it said “to make any call” under the TCPA. Utilizing the aforementioned canons of statutory construction, we look to the ordinary, contemporary, and common meaning of the verb “to call.” Webster’s defines “call” in this context as “to communicate with or try to get into communication with a person by a telephone.” Webster’s Third New International Dictionary 318 (2002). This definition suggests that by enacting the TCPA, Congress intended to regulate the use of an ATDS to communicate or try to get into communication with a person by a telephone. However, this law was enacted in 1991 when text messaging was not available.
Slip op., at 7342. With no court having addressed this question, the Ninth Circuit looked to the FCC's determination on the issue for guidance:
The TCPA makes it unlawful “to make any call” using an ATDS. 47 U.S.C. § 227(b)(1)(A). While the TCPA does not define “call,” the FCC has explicitly stated that the TCPA’s prohibition on ATDSs “encompasses both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls . . . .” In re Rules and Regulations, Report and Order, 18 FCC Rcd. 14014, 14115 Implementing the Telephone Consumer Protection Act of 1991 (July 3, 2003) (hereinafter “2003 Report and Order”). The FCC subsequently confirmed that the “prohibition on using automatic telephone dialing systems to make calls to wireless phone numbers applies to text messages (e.g., phone-to-phone SMS), as well as voice calls.” In the Matter of Rules and Regulations Implementing the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003; Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 19 FCC Rcd. 15927, 15934 (FCC August Implementing the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003; Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 12, 2004). In the Notice of Proposed Rulemaking of the CANSPAM Act, the FCC also noted “that the TCPA and Commission rules that specifically prohibit using automatic telephone dialing systems to call wireless numbers already apply to any type of call, including both voice and text calls.” Id. at 15933. Therefore, the FCC has determined that a text message falls within the meaning of “to make any call” in 47 U.S.C. § 227(b)(1)(A).
Slip op. at 7338-39. Applying the two-step test for judicial review of administrative agency interpretations of federal law set forth in Chevron v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984), the Ninth Circuit concluded that the FCC's treatment of text messaging as "calls" under the TCPA was reasonable. The Ninth Circuit reversed the trial court's grant of summary judgment. It is unclear whether this proposed class action was certified prior to the summary judgment motion.
Unlike single party cases, class actions routinely have more than one plaintiff that purports to represent the same (or similar) class. In Hernandez v. Vitamin Shoppe (Spencer, Appellant) (June 17, 2009), the Court of Appeal (First Appellate District, Division Two) examined the ability of trial courts to set limits on the methods and extent of that advocacy:
After the trial court conditionally certified the class for settlement purposes, appellant Jeffrey Spencer, attorney for appellant Lisa Hernandez, a plaintiff in Perry, sent a letter to various class members urging them to opt out of the settlement, and to retain him as counsel against Vitamin Shoppe in another class action involving the same matters. The court subsequently issued orders and rulings regarding these communications, barring Spencer from certain future communications, and granting monetary sanctions against him, which appellants Hernandez and Spencer challenge on appeal. In the published portion of this opinion, we affirm these rulings and orders, except that we reverse the trial court‘s imposition of monetary sanctions against Spencer.
Slip op., at 1-2. Later, the Court described aspects of the letter to class members:
Spencer, identifying himself as counsel in Thompson, represented in his letters to various members of the conditionally certified class that if the Perry settlement were approved, "substantial compensation will be forfeited," that "you will not be able to recover compensation for all the rest and meal periods you were denied or for all of the overtime compensation or penalties you are owed," and that "[u]nder California law you are entitled to an extra hour of pay for each rest and meal period that you missed during your employment." He advised them to "protect" themselves from the Perry settlement by opting out of the class and joining the Thompson action, which he stated was "in progress," encouraged them to request exclusion from the settlement, and warned that those who did not exclude themselves would be "stuck" with the settlement‘s terms. He solicited them to retain him as counsel, or to contact him for advice or assistance with respect to excluding themselves from the class, and enclosed his retainer agreement.
Slip op., at 4-5. So, to recap, there are acceptable means of objecting to a proposed class action settlement, and there are unacceptable means. This opinion concerns one of those unacceptable means. But I will note that it is a tough position to be in as an attorney for the same putative class if you believe that you can obtain a better result for that class. In the end, class action settlements are approved not on the basis of whether they are the best possible settlement; instead, the proposed settlement need only be good enough.
When the California Supreme Court grants a Petition for Review, it's okay to leave and go get a cup of coffee. You have time. But that doesn't mean that nothing is happening behind the scenes. In Brinker Restaurant v. Superior Court (Hohnbaum) we have developments. On May 7, 2009, Real Party in Interest Hohnbaum requested an extension until August 4, 2009 to file the Reply Brief on the merits. On May 14, 2009 the Supreme Court granted an extension through June 22, 2009, with the additional proviso that no further extensions were contemplated. However, today the Supreme Court granted a two-week extension to that previously firm deadline. The Reply Brief on the merits is now due on July 6, 2009. After that, the amicus bloodbath will ensue (they are due on July 20, 2009).
The California Supreme Court held its (usually) weekly conference today. Notable results include:
This was a rare week where the California Supreme Court denied review or other relief in every matter considered in Conference.
In the hectic rush to take care of my own blog, handle the obligations of work and family, and remember to get the trash out to the street each Monday night, I routinely forget to mention the wealth of information available through the increasingly rich blawgosphere. One very rich source is Blawg Review.
Blawg Review is a blog carnival. What is a blog carnival? A blog carnival is a blog-post that contains links to posts on other blogs. In addition, a blog carnival rotates editors. The rotation is the differentiator that makes a blog carnival different from a fixed link aggregation site. Blawg Review accomplishes this rotation by allowing a different blawg to host each weekly edition of Blawg Review. The weekly editions are all available through Blawg Review's home base site.
This week's edition of Blawg Review, Blawg Review #216, is now available at Family Lore.
In a recent Class Action Alert, DLA Piper reminds defendants that, as of January 2009, settlements of California class actions cannot include dismissal of the class action as part of the settlement. (Totino, Briones & Tagvoryan, California: Defendants May No Longer Request Dismissal of Settled Class Actions (May 27, 2009) www.dlapiper.com.) Instead, California Rule of Court 3.769 requires a trial court that approves a class action settlement to enter a judgment and prohibits the entry of an order dismissing the action with or after entry of judgment. Speaking from personal experience, defendants are not thrilled with this new development and many practitioners are still unaware of this changed rule.
After two weeks without a conference, June 10, 2009 was an active day for the California Supreme Court. Aside from the other activity posted today, some other notable actions include:
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.
