a California-centric collection of comments and resources about complex litigation and class action practice
If you are having trouble keeping track of the Wuhan coronavirus closures, you are not alone. 58 counties in California all have their own court closure plans in place. CAOC has assembled a one-stop-shop for following these frequently changing closures here. I believe you do not need to be a CAOC member to view this page. This tool is a stress-reliever when you are trying to figure out what you can file, where, and how.
Another question that had divided courts will be decided tomorrow, when the California Supreme Court releases ZB, N.A., et al. v. Superior Court (Lawson). The question under review is whether a representative action under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) seeking recovery of individualized lost wages as civil penalties under Labor Code section 558 falls within the preemptive scope of the Federal Arbitration Act. That’s the stated issue. After the supplemental issue briefing, however, I’m putting my chips on the long-shot square and betting that everyone has been wrong. My Karnak the Magnificent prediction is that the Court will say that the “wages” mentioned in Section 558 cannot be recovered under PAGA because PAGA authorizes the recovery of “penalties” where a penalty amount is stated (or a catch-all penalty where no amount is specified) but not every type of relief otherwise available to the Labor Commissioner. Remember that Section 558 also includes true penalties of $50/$100 for initial and subsequent violations. There’s my guess. GOAT or goat, we’ll see tomorrow.
Hot off the notification presses, the California Supreme Court will release its opinion in Troester v. Starbucks tomorrow, at about 10:00 a.m.
Wagers on whether California will adopt the Lindow rule for de minimis time? Comments?
The United States District Court for the Eastern District of California carries one of the heaviest caseload in the country. According to the District, the population served has grown 220% in the last four decades. But no new judgeships have been created in the Eastern District in that time. Now, the Eastern District is asking for help to address what it warns will be the "catastrophic consequences" of inaction. Read the letter from the Judges of the Eastern District of California to members of the Senate and House of Representatives here.
At both the state and federal levels in California we demand too much from our courts and provide too little support. If you happen to have the ear of a member of the Congress or Senate, put in a good word for the Eastern District. I restate my long-standing position that inadequate support and funding of the judicial branch is an unconstitutional infringement on a co-equal branch of government.
By the way, however bad you imagine the situation is in the Districts with the worst loads, it's worse. The Eastern District has 1,229 pending cases per judge as of March 31, 2018. See, Federal Court Management Statistics. (For a real horror show, imagine being one of the 5 Judges in Indiana - Southern, with over 1,400 cases each, and it is only the third worst in the country.) And the Eastern District is about to be hit with a one-two punch of judicial retirements and a marked increase in federal prosecutions now that the U.S. Attorney's office has increased staff.
Note: the statistics cited in the Eastern District's letter vary slightly from the officially reported data, but the difference seems insignificant.
Troester v. Starbucks Corporation has been set for oral argument before the California Supreme Court on Tuesday, May 1, 2018, at 9:00 a.m., in San Francisco.
The DOJ announced on Friday, June 16, 2017, that it was reversing its position on the validity of class action waivers in arbitration agreements and would file an amicus brief in support of the employer's position in NLRB v. Murphy Oil. I get that a change in administration can bring with it a change in policy, but this is unfortunate in that it overtly politicizes a legal analysis that should at least attempt to be a textual analysis that doesn't depend on which way the wind blows. I suppose Judge Posner has the right of it when he argues that all the supposedly dispassionate judicial reasoning is just a veneer over personal preference and wanting anything as significant as this issue to be decided apolitically is laughably naive. Still, I think the better approach for the DOJ would have been to undertake the equivalent of a noisy withdrawal, officially retracting its position and choosing to take a neutral position in the case.
As Captain Renault said, "I'm shocked, shocked, to find that gambling is going on in here!" And like Captain Renault, not really. On the last day of 2013, I noted in a post some news stories about the happenings in a class action suit alleging a scheme to transform most or all of $6 million settlement into attorney's fees without fully disclosing the scheme to roughly 600 clients until it was too late for them to do anything about it. Those articles were eye-opening to say the least. But now I can safely say that you haven't seen anything yet. I have in my digital fingers the appellate briefs from the main case (the appeal of an injunction issued by the trial court). The Respondent's Brief, in particular, is something you won't see very often. Check them out:
2013 was a turbulent year in the class action world and in mine. As a result, there were some newsworthy stories I didn't have time to cover this past year. One such news story involves the transfer to Los Angeles County of a suit alleging a scheme to transform most or all of $6 million settlement into attorney's fees without fully disclosing the scheme to roughly 600 clients until it was too late for them to do anything about it. Here's how Courthouse News Service summed up the shocking allegations: "A California law firm accepted a $6 million 'secret settlement' of a labor class action against a bank, agreed to dismiss the claims without telling 600 clients, then tried to convert the whole settlement into legal fees, a class action claims in state court." Jamie Ross, Class Claims Lawyer Took 'Secret' $6M Deal, Courthouse News Service (October 22, 2012). Who would do such a thing? Courthouse News Service identified the defendants in the proposed class action suit: " Lead plaintiff Kendra Cutting sued Mark Yablonovich; an attorney in his law office . . . , and The Law Offices of Mark Yablonovich, in Alameda County Court." Ibid. It appears from the docket that the attorney in Mr. Yablonovich's office was dismissed with prejudice from the action not too long after it was filed.
Courthouse News Service wasn't alone in covering these disturbing allegations. For example, Law360 noted, "Because the Yablonovich lawyers allegedly did not first approve the deal with their clients, the Cutting complaint said the firm's actions represented a breach of fiduciary duty and legal malpractice." Scott Flaherty, LA Attys Sued Over 'Secret' $6M Wells Fargo OT Settlement, Law360.com (October 19, 2012).
Anyhow, in April 2013, Alameda sent this fine example of what not to do to clients to Los Angeles. I guess that Northern California felt that Los Angeles wasn't grimy enough already. You can read the original complaint here. Or, better yet, get the whole thing here. The case appears to be stayed while appeals involving Initiative Legal Group are pending. Those appeals can be viewed here and here. But you can check on the status of the L.A. Superior Court action by using the Case Summaries tool and entering case number BC512429.
I am informed that, beginning June 2013, there will be NO court reporters for civil matters in the Los Angeles Superior Court. Part-time court reporters will be laid off, and all full-time court reporters in civil will transfer to the criminal courts.
How much longer will we allow the two funded branches of government to continue down this path? This is not constitutional. Also, please be advised that I am not interested in hearing that California doesn't have enough money to correctly fund the Courts. We have plenty of money. The federal government has plenty of money (the highest tax receipts in history this year). Lots of money. Money everywhere. It's how they SPEND that money. Rather, it is how WE spend that money, since we own the bums running things off the cliff for us. That's the problem - how the money is spent. If the constitution of this state is to be treated like a bird cage liner, then it is no wonder that the institutions built upon it all look like crap now.
I wonder how much longer we will be able to retain the best of our judges.
A story first made the rounds quietly in November of last year about a proposed ethics rule that is just broad enough and vague enough that it can be used as a tool by AOC to punish any judge with the gumption to criticize decisions of the AOC. That rule has passed, unsurprisingly (Note: when you see a news report that something entirely likely to occur is "unexpected," that should tip you off to the agenda of the reporter, not that the event was "unexpected"). It was entirely expected that it would pass. It was proposed to stifle dissent by using the costs associated with an ethics inquiry to shut down free speech.
We have two simultaneous problems in California's judicial branch of government, a constitutional and co-equal branch. First, the judicial branch is catastrophically underfunded. The Los Angeles Superior Court should not be shutting down courtrooms. A member of the bench who shall remain nameless told me that with the coming courtroom closures in Los Angeles, the average caseload that is currently running somewhere between 550 and 600 cases per judge will jump by about 150 cases per courtroom. What sort of justice will anyone receive under those conditions?
Second, the AOC has ballooned into a bloated bureaucracy that serves itself. Why did the AOC mushroom from 100 employees to well over 1,000 employees inside of a decade? Fixing this bloat would save some money. Getting rid of the endless boondoggle of the unicorn known as CCMS saved some money, but it doesn't close the gap between current funding levels and what those levels should be at to have courts in each county that can manage the caseloads they face. I don't know the right caseload for a civil trial court, but it isn't 550 case, and it surely isn't 700 cases. You'd probably receive real attention and a better measure of justice if those caseloads were more like 250-300 cases per courtroom.
I condemn the current and past legislatures for allowing this to happen. I condemn AOC for succumbing to corruption and administrative bloat (I refer to the allegation of embezzlement in the alleged amount of $100,000 that was not reported or charged as an example of that).
So to the massive audience of Legislators reading this and waiting for my go-signal, here it is: Fix the funding shortfall (who cares if you have to cancel a high speed train to do it - this is a co-equal branch of government we're talking about) and root out the administrative bloat (in other words, start insisting upon the firing of AOC staff until you have half the number you started at and then reassess, and then get rid of some more).
By the way, if someone handed me half the amount of money that was wasted on CCMS, I could have a Statewide court system database up and running in a few years, with enough left for me to retire on in a castle that I would have constructed out of rare marble on my own private island.
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.
