Friday open post...on a new domain host

It’s Friday again, and new domain hosting went without a hitch. So here’s a chance to comment on any legal issue that strikes your fancy.

The Complex Litigator is moving domain hosts, so there may be wonkiness...

The Complex Litigator is moving all domain services…right about now. It may be smooth, but it may cause a day or three of strange behavior. The upside is that I can install proper certificates for secure connections, which will speed things up. Also, I can manage the domain in the same place that I manage the blog, so one less trip when things need updating.

Carry on…

UPDATE: Like, OMG, it finally worked. I spent the entire day fighting to push this transfer through.

My tech toolbox will include less of the Google hegemony

“Then they came for me—and there was no one left to speak for me.”

This is actually a shorter version of a post I tried to put up earlier today. The gist is that I am uncomfortable with a few tech giants like Google deciding what communications can be consumed when the "soapbox” is effectively a virtual soapbox now and anything you want heard must go through the Interwebs. The First Amendment isn’t directly implicated, but a few companies now have almost total control over the digital public square, and they are putting their thumbs heavily on the scale.

I read an article yesterday that commented on internal Google emails that referred to Ben Shapiro and Jordan Peterson, and Dennis Prager as “nazis.” I find that both depressing and disgusting. Depressing, as it shows that the current members of society are profoundly ignorant about the Holocaust. Disgusting, since it is simply a horrible slander.

I have heard all three of them speak more than once (Ben Shapiro and Dennis Prager mostly on the radio and Jordan Peterson in interviews). While I don’t know what lies deep in their hearts, I’ve heard nothing remotely close to justifying that abusive label by Google employees. Moreover, nothing they have to say is sufficiently awful to support an effort by Google’s employees to craft ways to exclude their content from recommendation algorithms. According to the story I read, those three individuals all had relatives that were killed during the Holocaust. Now, I happen to think Ben Shapiro, in particular, is frequently an obnoxious and arrogant punk. But at least he refuses to back down from the heckler’s veto mob, so credit for having brass ones I suppose. And not liking an opinion does not make one a “nazi.” That should go without saying. Apparently, it doesn’t.

The bottom line is that, after seeing tech companies like Google and Twitter and Facebook de-platform people while hiding behind their Section 230 immunity, I’ve decided that Google doesn’t get to look at my every purchase, newsletter and interest to make money by targeting ads at me.

I have started to view these lockstep platform bans as cartel behavior. Certain practices in the restraint of trade are categorized as being automatically unlawful. Such practices include group boycotts of competitors, customers or distributors. Implicit cartel agreements to refuse to deal with a class of customers might be per se unlawful behavior in restraint of trade.

If it isn't per se unlawful, the fallback analysis is the "Rule of Reason." I don't specialize in antitrust (at all), but this seems like a theory that should be examined closely by organizations with some resources that are being de-platformed and de-monetized.

Martin Niemöller offered the right warning; if you stay quiet for too long, eventually nobody will be left to speak out when they come for you.

The tort of "Trespass to Chattel," by itself, does not support a UCL violation

I just wanted to write “trespass to chattel,” so this case gets a post just for that. In Pneuma International, Inc. v. Cho (June 24, 2019), the Court of Appeal (First Appellate District, Division One) was asked to review an assortment of complaints about the outcome of a trial. One issue was whether the failure to transfer ownership of a domain, the “trespass to chattel” that was at issue, constituted a fraudulent or unfair practice under the UCL. While Pneuma argued that the UCL’s “unlawful” prong is construed broadly, so there should be no resistance to borrowing the tort to serve as the predicate violation, the Court was not persuaded. After noting the dearth of authority on that particular tort, the Court said:

Although not directly relevant to whether Pneuma may “borrow” a tort as a basis for a UCL cause of action, respondents correctly observe that Pneuma may not recover damages under a UCL cause of action because remedies under the act are purely equitable in nature. (E.g., Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1150-1151 [remedies provided under UCL “are limited” and “it is well established that individuals may not recover damages”].) Pneuma does not identify what additional relief it would be entitled to if it prevailed on its UCL cause of action. The trial court already ordered the equitable relief of transferring the egpak.com website to Pneuma after it prevailed on a cause of action for trespass to chattel.

Slip op., at 15. So, does this mean that, where the UCL could supply some additional relief, a common law tort could serve as a predicate violation of the UCL? More realistically, can you even concoct a scenario where it would make sense to say that a common law tort constituted the predicate violation?

Open Friday Post - Oh, the Futility

It’s Friday. Make it count. I say this with the despondent futility of the condemned prisoner approaching the gallows in chains.

Anything decisions you are anticipating from the U.S. Supreme Court?

Open Friday Post

It’s Friday again, so here is another chance to put up your very first ever comment.

Here’s a topic (that troubles me as a blogger): Do you think allowing the very large social media companies to ban swaths of commentary based on viewpoint will be beneficial in the long run? I’m not talking about the common error non-attorney commentators make of confusing this with First Amendment issues. I mean just what I asked — can you see any way that this doesn’t slide into severe, and constantly changing, viewpoint suppression by actual or quasi-monopolies?

Here’s an example: Pinterest Blacklists PJ Media, Other Conservative Sites and This Is Just the Tip of the Censorship Iceberg. PJ Media, if you don’t know it, is clearly a conservative political commentary site. But it’s certainly not radical by any reasonable measure. Among other things, it hosts Tennessee College of Law Professor Glenn Reynolds’ blog, Instapundit, which is widely read and not a hotbed of crazy, whether you agree with the politics there or not. Glenn is cool enough to have a regular column in U.S.A. Today, so I think it is safe to say that blacklisting a site like PJ Media is well down the slippery slope to the place where that greased pig is picking up steam. It’s all fun and games until your speech is the suppressed and blacklisted speech.

Can’t wait until I’m blacklisted. Bright side: maybe I already have been!

Enjoy your weekend.

Noel v. Thrifty Payless, Inc. should be decided soon, addressing whether class members must be identifiable

In what might be a significant decision, Noel v. Thrifty Payless, Inc. was argued to the California Supreme Court on May 8, 2019. The issue presented for review is as follows: “Must a plaintiff seeking class certification under Code of Civil Procedure section 382 or the Consumer Legal Remedies Act demonstrate that records exist permitting the identification of class members?” While California appeared to have settled this question decisively many decades ago, the question arose when the First Appellate District (Division Four) opined that such identification was required. A decision may issue any time in the next couple of weeks. This is not likely to be an issue for wage and hour cases — where employer records are basically always available as a source of identification information — but is may be an issue in consumer class actions, where specific class members identification may not be possible.

Another Court of Appeal observes that the legal profession has lost its way

This is just for any salutary benefit that drawing attention to this appellate decision might bring. It isn’t a wage & hour matter. It isn’t a class action. It’s just a opinion about some unreasonable behavior surrounding the entry of a default and the refusal to set it aside. In Lasalle v. Vogel (June 11, 2019), the Fourth Appellate District, Division Three introduced its opinion with the following remarks:

Here is what Code of Civil Procedure section 583.130 says: “It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition.” That is not complicated language. No jury instruction defining any of its terms would be necessary if we were submitting it to a panel of non-lawyers. The policy of the state is that the parties to a lawsuit “shall cooperate.” Period. Full stop.

Yet the principle the section dictates has somehow become the Marie Celeste of California law –a ghost ship reported by a few hardy souls but doubted by most people familiar with the area in which it’s been reported. The section’s adjuration to civility and cooperation “is a custom, More honor'd in the breach than the observance.” In this case, we deal here with more evidence that our profession has come unmoored from its honorable commitment to the ideal expressed in section 583.130, and –in keeping with what has become an unfortunate tradition in California appellate law –we urge a return to the professionalism it represents.

Slip op., at 2 (footnote omitted, including the one citing to Hamlet). Read it when you have a chance and overlook the personal misfortune recounted therein for the broader message that our profession could use a lot more courtesies.

Ninth Circuit concludes that the Dynamex "ABC test" applies retroactively

I missed this little nugget when it came out last month, but it’s worth noting regardless because it may move the needle in existing cases. In Vazquez, et al. v. Jan-Pro Franchising International, Inc. (9th Cir. May 2, 2009), the Ninth Circuit considered whether Dynamex Ops. W. Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018) applied to a District Court decision that pre-dated Dynamex.

On that point, the Court agreed that the default rule of retroactive application of judicial decisions should apply after a thorough analysis of the limited bases for an exception to that default rule:

Given the strong presumption of retroactivity, the emphasis in Dynamex on its holding as a clarification rather than as a departure from established law, and the lack of any indication that California courts are likely to hold that Dynamex applies only prospectively, we see no basis to do so either.

Slip op., at 26. The Court then considered whether due process considerations could preclude retroactive application and held that such considerations did not:

Applying Dynamex retroactively is neither arbitrary nor irrational. The Dynamex court explained that “wage orders are the type of remedial legislation that must be liberally construed in a manner that services its remedial purpose.” 416 P.3d at 32. Moreover, Dynamex made clear that California wage orders serve multiple purposes. One is to compensate workers and ensure they can provide for themselves and their families. Id. But second, wage orders accord benefits to entire industries by “ensuring that . . . responsible companies are not hurt by unfair competition from competitor businesses that utilize substandard employment practices.” Id. And finally, wage orders benefit society at large. Without them, “the public will often be left to assume responsibility for the ill effects to workers and their families resulting from substandard wages or unhealthy and unsafe working conditions.” Id. It is with these purposes in mind that the California Supreme Court embraced the ABC test and found it to be “faithful” to the history of California’s employment classification law “and to the fundamental purpose of the wage orders.” Id. at 40.

Slip op., at 27-28.

The balance of the Opinion examined the merits of the case, providing significant guidance to the District Court on remand.

Separate from the content of the Opinion, I am impressed by the formatting of the Opinion. The Opinion contains a hyper-linked table of contents that improves navigation through the long decision. Because I was curious about the formatting, I did a quick spot check of recent opinions and could not find a similarly formatted document. This makes me wonder why this is not standard. I note that Judge Block, of the Eastern District of New York (sitting by designation) authored the opinion. If you happen to know why the formatting of this Opinion is so good, leave a comment.

The prevailing plaintiffs were represented by Shannon Liss-Riordan of Lichten & Liss-Riordan P.C., Boston, Massachusetts.