Kingsley & Kingsley

In the case of United Steel v. Conocophillips, the 9th Circuit reversed a district court order denying class certification.  This was important because the plaintiff’s proposed a legal theory that if successful would not require any sort of inquiry into each class members experiences.   In this case the issue was an on duty meal period agreement.

 The case was pure legal.  Either the plaintiff won or he lost on this theory.  Notwithstanding the fact that Judge Bybee considered one of the most conservative on the 9th Cir. wrote the opinion, he concluded that it was an abuse of discretion for the court to deny class certification in this circumstance. 

The opinion link is below, and is good news for plaintiffs who have pure legal theories in federal court.   On cases with a mixed factual legal analysis I’m not sure how much this case helps.  It does send a message to plaintiff’s lawyer to craft your legal theories in such a way so that class certification will be granted.  If on keeps a case tight and just on the law it appears class certification should be smooth sailing.

http://www.ca9.uscourts.gov/datastore/opinions/2010/01/06/09-56578.pdf

The California Supreme Court released its calendar for January and Harris v. Superior Court was not listed as one of the cases.  This case was appealed in October of 2007 and has been fully briefed by the parties for over a year, 14 months to be exact.  The Cal Supremes are not moving very fast, or they don’t want to consider the issue just yet.

We are hoping for February.  I would not bet on it though.

Lawyers on both sides of the legal community are waiting on the decision of the California Supreme Court in the case of Harris v. Superior Court.  This decision has far reaching applications on the administrative exemption for overtime under California law.  The case has been pending for over two years and has been fully briefed waiting on oral argument for a year of the process.  We are hopeful that they will hear the case in November in Sacramento or in December in Los Angeles.

In our practice, this is important because of many pharmaceutical representatives that we represent have had their cases stayed pending Harris.  The 9th Circuit Court of Appeals has delayed any ruling on the Bayer, Wyeth and Roche matters until the California Supreme Court rules on Harris.  There are perhaps 6-10 other cases in California and out waiting on the 9th Circuit who is waiting on the California Supreme, Court.

Hopefully this will be resolved soon.

On of the most difficult problems lawyers face in dealing with a wage and hour dispute is the lack of documentation the plaintiff typically has.  We recommend that you save as much as possible.  Obviously there will be things that get lost or misplaced throughout the years, but on a going forward basis if you are still employed by the company, you should save everything. 

In addition, with regard to meal breaks and overtime, a log book where one keeps track on ones hours can be invaluable.  This is especially true with off the clock cases of time card editing.  If the employee has kept track of his or her own time contemporaneously this can impeach the employers records.

Saving your records can make the difference between winning and losing a case.  The employers always have records should you not also.

On Friday, Kingsley and Kingsley will be filing a petition for review to the California Supreme Court on the tip pooling issues.

We are fairly confident that it will be granted because there have been four cases on tip pooling issues in the last three months.

I attended the oral argument this morning on the Arias matter and I thought it went pretty well.

Judge Kennard seemed to lead the discussion and cross-examined both lawyers primarily on the 17200 discussion.  In fact I was surprised how little discussion there was on PAGA.

The focus of the argument from the plaintiffs was the fact that 382 does not require class certification and as amended by prop 64 one must only look to prop 64.  The problem that both George and Baxter as well as Kennard seemed to have is that the summary prepared by the AGs office indicated that class actions would now be prohibited.  This led into a discussion about voter intent.

Judge Kennard backed the defense attorney into a corner that he did not want to be in where by voter intent was irrelevant unless the statute was ambiguous.  It appeared here it was not.  He tried to counter by saying that if there was a latent ambiguity in the issue that frustrated voter intent the courts could step in.  Both Werdegar and Moreno seemed receptive to the plaintiffs argument that the statute was plain on its face.

Chin and Corrigan did not speak. Moreno and Werdegar were passing notes and seemed to be unified in purpose though Werdegar asked most of the questions.

On the PAGA issues as well as 17200 issues there was a lot of discussion about due process.  There was limited discussion about Kraus and Cortez though the plaintiff referenced them several times.  The defense focused its argument on assessing risk and buying its peace, much of this was public policy and an attempt to convince the court of the chaos that would follow.  Drapkin argued for the employers group as amicus.  He Called a ruling in plaintiff’s favor “pernicious.”  He insulted the court in Arias as completely wrong.

Both sides did discuss the need of the trial court to insure due process, but there was obviously significant discussion about the language of PAGA.  Kennard attempted to flesh out the issues with Drapkin, and I think it fell flat for him.

If I had to predict, I think they will Affirm Arias in its entirety, meaning the 17200 claims would be out except with class certification and the PAGA claims could proceed in that manner.  There is a possibility that Moreno and Werdegar could turn their other colleagues as Kennard wavered a little on the statutory construction argument but it is unclear.  On PAGA while the discussion was brief, there were few if any questions of plaintiff in her rebuttal where she addressed PAGA for about 5 minutes.

Kingsley & Kingsley was unsuccessful in reversing the lower court in a tip-pooling case Etheridge v. Reins International that came down on March 27, 2009.  The good news is that the dissent in the decision and the concurring opinion both opined that this is a case that needed Supreme Court review.  We will be filing petitions for review in both Etheridge and Budrow that was decided on March 2, 2009.  We are hopeful that the California Supreme Court will grant review and we will finally be vindicated.

http://www.courtinfo.ca.gov/opinions/documents/B205005.PDF

In yet another Court of Appeals decision, the court in Sanchez v. Westrern Pizza has struck down a class arbitration waiver.

http://www.courtinfo.ca.gov/opinions/documents/B203961.PDF

Like in Franco v. Athens last week, the court held that the class waiver was invalid under the Gentry factors and invalidated the arbitration agreement itself.

This is a great victory for plaintiffs and means that employers will not be able to use the arbitration process to prevent legitimate class action claims.

The 1st DCA issued an interesting decision today wherein they declared that there IS a private right of action for Labor Code Section 351.  This is indirect conflict with the 2nd DCA which said there was not in Lu v. Hawaiian Gardens decided last month.

It looks as though the California Supreme Court will take this issue up to resolve the conflict.

http://www.courtinfo.ca.gov/opinions/documents/A119035.PDF

In a decision by the California Court of Appeals yesterday, the court extended the California Supreme Court’s analysis under Gentry, to meal and rest period claims that have arbitration agreement.  In addition, the court determined that where private attorney general claims were barred that compounded the problem and held that the arbitration agreement was unconscionable and ordered the court to proceed in court.

This is a massive victory for any meal break class action that is attempting to free itself from a class action waiver.  This has become more prevalent these days and the court have at time upheld them.  This clearly presents a signal that the appellate courts will not allow this type of conduct to occur and will force employers in to court.

This is a great victory for preservation of justice in this state and will have employers thinking twice before they present these dractonian boilerplate agreement to employees to sign.