a California-centric collection of comments and resources about complex litigation and class action practice
The correct answer, at least for yesterday, is $25,000. I normally don't write, even obliquely, about cases that I am actively litigating, but I felt like I should bend the rule this one time. A trial court granted $25,000 in monetary sanctions for a defendant's failure to comply with a discovery order. I'm trying to be a "glass is a little over half full" kind of guy. I asked for $45,000.
Now don't go all wobbly. Sure, in a negligence case, the trial court denied plaintiffs' motion to certify a class, finding that no community of interest existed and that the class action vehicle was not a superior method of resolving the claims of putative class members. But that doesn't mean that California is suddenly a hotbed of negligence class actions. Negligence claims are still notoriously difficult to certify. Despite all that, this decision is worth a read.
In Bomersheim v. Los Angeles Gay And Lesbian Center (May 26, 2010), the Court of Appeal (Second Appellate District, Division One) reviewed a trial court order denying class certification. Concluding that the order was based on improper criteria and was not supported by substantial evidence, the Court reversed and directed the trial court to grant the motion.
On May 19, 2010, I participated in a panel discussion presented by the Federalist Society. The theme of the panel discussion was "California's 17200 -- Its Use and Abuse." The panelists were:
The Hon Michael Orfield (Ret.), served as the panel moderator.
Video of the panel discussion is now available on youtube here.
It was an entertaining discussion. There was some irony in the fact that the defense-oriented panelists argued for more government enforcement and the plaintiff-oriented panelists argued for less government enforcement and more private-sector regulatory enforcement. Fun times.
While Apple attempts to use its clout in the mobile web marketplace to kill Flash, the potential heir to the mobile throne, Google, has opted for the open route and, thus far, has encouraged Adobe to join the party. Last week, at Google I/O, Adobe demonstrated a beta version of Flash 10.1 running on the Android mobile device operating system. But Adobe had a few more Android tricks up its sleeve.
On May 21, 2010, Adobe announced that Adobe Reader is now available in the Android application marketplace. First release features, according to Adobe, include:
Adobe Reader for Android offers multi-touch gestures, like pinch-and-zoom, as well as double-tap-zoom, flick-scrolling and panning. We've also added a "reflow" mode, which will take text-heavy documents with wide margins, and automatically wrap the content for easy viewing on smaller screens.
So, for the last several years I have used an iPhone as my personal smartphone. But, with developments like this, and a flood of sweet-looking devices running Android, it's hard not to consider trying the Android ecosystem. Then again, I'm also intrigued by the potential of Windows Phone 7, so I hope that Adobe has plans to support what looks to be another powerhouse smartphone OS. Decisions, decisions.
United States Magistrate Judge Edward M. Chen (Northern District of California) granted plaintiff's motion to conditionally certify a collective action of Sales Representatives working for Defendant Vector Marketing Corporation. Harris v. Vector Marketing Corp., 2010 WL 1998768 (N.D. Cal. May 18, 2010). In doing so, Magistrate Judge Chen added his name to the long list of federal courts in California that have adopted a two-step approach for determining whether a class is “similarly situated.” Under this approach, a district court first determines, based on the submitted pleadings and, perhaps, a few declarations, whether the proposed class should be notified of the action. At the first stage, the determination of whether the putative class members will be similarly situated is made using a "fairly lenient" standard, and typically results in "conditional certification" of a representative class. District courts have held that conditional certification requires only that “ ‘plaintiffs make substantial allegations that the putative class members were subject to a single illegal policy, plan or decision.’ ”
The second-step usually occurs after discovery is complete, at which time the defendants may move to decertify the class. In the second step, the court makes a factual determination about whether the plaintiffs are similarly situated by weighing such factors as (1) the disparate factual and employment settings of the individual plaintiffs, (2) the various defenses available to the defendant which appeared to be individual to each plaintiff, and (3) fairness and procedural considerations. If the court determines that the plaintiffs are not similarly situated, the court may decertify the class and dismiss the opt-in plaintiffs' action without prejudice. Even when the parties settle, the court must make some final class certification finding before approving a collective action settlement.
The California Supreme Court, in Simpson Strong-Tie Co. Inc. v. Gore (May 17, 2010) explicitly examined the narrow issue of the scope of the commercial speech exemption to the anti-SLAPP statute. (See Code Civ. Proc., §§ 425.16, 425.17, subd. (c).) Indirectly, the opinion concerns the scope of protection available to attorney communications directed at potential clients, class members or witnesses. The issue arose when, in February 2006, plaintiff Simpson Strong-Tie Company, Inc. (Simpson) filed an action for defamation and related claims against defendants Pierce Gore and The Gore Law Firm after publication of a newspaper advertisement placed by Gore a few weeks earlier. The advertisement, directed to owners of wood decks constructed after January 1, 2004, advised readers that “you may have certain legal rights and be entitled to monetary compensation, and repair or replacement of your deck” if the deck was built with galvanized screws manufactured by Simpson or other specified entities, and invited those persons to contact Gore “if you would like an attorney to investigate whether you have a potential claim.”
Gore moved successfully in the superior court to have the entire complaint by Simpson stricken under section 425.16, the anti-SLAPP statute, and the Court of Appeal affirmed. The Supreme Court affirmed as well, though limiting its review exclusively to the applicability of the commercial speech exemption to the anti-SLAPP statute set forth in section 425.17(c)(1).
The ruling offers additional protection to law firms prosecuting class actions. A defendant will have little recourse against an advertisement that is crafted to satisfy the analysis supplied in this decision.
Forgive the (corrected) typo in the title. Some of those slip through.
If you spend any significant amount of time handling pleadings with line numbering on the side, you've probably received a pleading that has a misalignment problem on the first page like so:
The second page aligns just fine, but you can't figure out why you can't get the first page firm name block to align correctly. This is the goal:
This problem stems from a deeply buried setting in Microsoft Word. In Word 2007, hit the Office button in the top left corner of the program. Click on the Word Options button. Then select the "Advanced" settings panel. Scroll all the way to the bottom. In the "Compatibility options" section, expand the "Layout Options" section. Find the "Don't center 'exact line height' lines" checkbox and put a check in it. Problem solved.
Why does Word do this? Pleadings typically used "Exact height" line spacing to fit the 28 lines in on one page. The spacing is set at a point size increment of somewhere around 12 points for single spacing and 24 for double spaced lines. The default behavior in Word is to put a line of text in the vertical center of the space allocated for the line. This causes 24 point spacing lines to have a larger cushion of space at the top than 12 point ("single" spaced) lines. The attorney name block uses single spaced lines. The pleading numbering on the side of the page uses 24 point spacing. This misaligns the pleading numbers from the attorney name.
On the second page, which most frequently begins with a "double" spaced line of text (24 points, for example), the cushioning is the same for the text and the pleading line numbers. By telling Word not to center "exact line height" lines, all lines of text, whether 12 pt (single) or 24 pt (double) begin at the top of the vertical line spacing allocated to that line of text. In that case, the pleading numbers and the attorney name at the top of the caption both begin at the top of their respective lines. One line just has more open space below the text.
In older version of Word, you can find this setting in the Tools > Options menu.
What amazes me the most is that I see this configuration error from big firms and small alike. I can understand this getting by a small shop, but the big firms all pay the big bucks for dedicated word processing departments.
I will consider Word training sessions if offered a sufficiently outrageous sum of cash. Say, I bet you have wondered if there is an easy way to generate Tables of Contents and Tables of Authorities. There is. I bet you have wondered if there is a way to easily align pleading text up with line numbers after a single-spaced block quote screws it all up. Yup, there sure is. Someday I will offer a seminar that shows you how to do all of these things and more.
United States District Court Judge Claudia Wilken (Northern District of California) has already been gifted with the privilege of considering whether Stolt-Nielsen S. A. et al. v. AnimalFeeds International Corp. (discussed on this blog here) preempts any state law that would preclude enforcement of an arbitration agreement. McArdle v. AT & T Mobility LLC, 2010 WL 1532334 (N.D.Cal. May 10, 2010). Judge Wilken took care of that argument in one sharp paragraph:
Defendants assert that Stolt-Nielsen creates a substantial question as to whether the “FAA would preempt any holding that California law precludes enforcement of McArdle's agreement to arbitrate his disputes with” them on an individual basis. Mot. for Leave at 4. The Court disagrees. The issue presented in Stolt-Nielsen was “whether imposing class arbitration on parties whose arbitration clauses are ‘silent’ on that issue is consistent with the Federal Arbitration Act (FAA).” 2010 WL 1655826, at *4. The Supreme Court did not address FAA preemption. Nor did it overrule its precedent upon which the Ninth Circuit relied in Shroyer v. New Cingular Wireless Services, Inc., which held that California law on unconscionability could render an arbitration clause unenforceable, 498 F.3d 976, 986-87 (9th Cir.2007). Stolt-Nielsen is distinguishable both on the facts and the law and, therefore, does not require this Court to reconsider its order on Defendants' motion to stay this action pending their appeal.
Slip op., at 1. One interesting bit of information is also included in the Order. The Ninth Circuit recently held that Shroyer continues to control the issue of unconscionability analysis under California law. Laster v. AT & T Mobility LLC, 584 F.3d 849 (9th Cir.2009). AT&T filed a petition for certiorari in Laster, upon which they expect the Supreme Court to rule by May 24. If the Supreme Court takes up Laster, they will be forced to explicitly address carve-outs alluded to by the dissent in Stolt-Nielsen but not addressed by the majority opinion.
If you were an arbitration agreement, this is your moment in the spotlight. In Arguelles-Romero v. Superior Court (May 13, 2010), the Court of Appeal (Second Appellate District, Division Three) granted a petition for a writ of mandate after the trial court ordered the plaintiff to submit to individual arbitration. The trial court also ruled that a class action waiver provision in the automobile financing contract was not unconscionable. That finding by the trial court prompted the Court of Appeal to spend a good deal of time discussing the two different tests presented in the California Supreme Court cases of Discover Bank v. Superior Court, 36 Cal. 4th 148 (2005) (Discover Bank) and Gentry v. Superior Court, 42 Cal. 4th 443 (2007) (Gentry). The Court of Appeal held:
While we hold the trial court did not err in finding the class action waiver was not unconscionable, we also conclude that it should have also performed a discretionary analysis on whether a class action is a significantly more effective practical means of vindicating the unwaivable statutory rights at issue. We therefore grant the petition and remand with directions.
Slip op., at 2. To provide some context, the Court stated the basic standard of review as follows:
“California law, like federal law, favors enforcement of valid arbitration agreements.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97 (Armendariz).) Under both federal and California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the voiding of any contract. (Id. at p. 98 & fn. 4.) Unconscionability is a recognized contract defense which can defeat an arbitration agreement. (Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094, 1099.)
Slip op., at 12.
Cutting right to it, here is the first money quote:
The California Supreme Court held its (usually) weekly conference today. Notable results include:
I don't see anything else in this week's conference summary that would be of interest here. If I missed anything after my very quick scan, I will update this post.
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.
