Posted On: May 28, 2011 by Michael J. Hassen Email This Post

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Labor Law Class Action Filings Dominate New Class Actions Filed In California State And Federal Courts During Past Week

In order to assist class action defense attorneys anticipate the types of lawsuits against which they will have to defend in California, we provide weekly, unofficial summaries of the legal categories for new class action lawsuits filed in California state and federal courts in the Los Angeles, San Francisco, San Jose, Sacramento, San Diego, San Mateo, Oakland/Alameda and Orange County areas. We include only those categories that include 10% or more of the class action filings during the relevant time frame. This report covers the time period from May 20 - 26, 2011, during which time a relatively low number of new class actions (41) were filed in these courts; we note, however, that this number is more in line with the total number of class actions filed in past years, as opposed to the very large number filed each week this year. Of these 41 class actions, 21 involved employment-related claims (representing 51% of the total number of new class actions filed). The only other category to break the 10% threshold involved class actions alleging violations of California's Song-Beverly statute (which prohibits requesting personal identifiable information at point of sale in debit or credit card transactions) with 5 new filings, representing 12% of the total number of new class actions filed this past week.

Posted On: May 21, 2011 by Michael J. Hassen Email This Post

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Dramatic Drop In New Class Action Filings As Labor Law Class Actions Again Claim Top Spot Among Weekly Class Actions Filed In California State And Federal Courts

As a resource to California class action defense attorneys, we provide weekly, unofficial summaries of the legal categories for new class action lawsuits filed in California state and federal courts in the Los Angeles, San Francisco, San Jose, Sacramento, San Diego, San Mateo, Oakland/Alameda and Orange County areas. We include only those categories that include 10% or more of the class action filings during the relevant time frame. This report covers the time period from May 13 - 19, 2011, during which time 46 new class actions were filed in these courts -- a number much more in line with the total number of class actions filed in past years, as opposed to the very large number filed each week during this year. Of these 46 class actions, 21 involved employment-related claims (representing 46% of the total number of new class actions filed). The only other category to break the 10% threshold involved class actions alleging violations of California's Unfair Competition Law (UCL), which includes false advertising claims, with 15 new filings, representing 33% of the total number of new class actions filed this past week.

Posted On: May 14, 2011 by Michael J. Hassen Email This Post

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Sony PlayStation Data Theft Class Action Bandwagon In Full Swing But Labor Law Class Actions Regain Top Spot Among Weekly Class Actions Filed In California State And Federal Courts

As a resource for California class action defense attorneys, we provide weekly, unofficial summaries of the legal categories for new class action lawsuits filed in California state and federal courts in the Los Angeles, San Francisco, San Jose, Sacramento, San Diego, San Mateo, Oakland/Alameda and Orange County areas. We include only those categories that include 10% or more of the class action filings during the relevant time frame. This report covers the time period from May 6 - 12, 2011, during which time 70 new class actions were filed in these courts. The unusually large number of class actions being filed each week has dramatically impacted the relative percentage of labor law class actions filed each week, as in previous years, class actions alleging employment-related claims often accounted for more than half of all class actions filed in these California courts. This reporting period, 27 new labor law class actions were filed (representing 39% of the total number of class actions filed during the week). The only other category to break the 10% threshold were class actions alleging violations of California's Unfair Competition Law (UCL), which includes false advertising claims, with 20 new lawsuit (13 of which involved class actions arising out of the hacking of Sony's Play Station network) representing 29% of the total number of new class actions filed this past week.

Posted On: May 7, 2011 by Michael J. Hassen Email This Post

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Dramatic Drop In New Labor Law Class Action Filings Opens Door For UCL Claims To Seize Top Spot Among Weekly Class Actions Filed In California State And Federal Courts

To assist class action defense attorneys anticipate the types of cases against which they will have to defend in California, we provide weekly, unofficial summaries of the legal categories for new class action lawsuits filed in California state and federal courts in the Los Angeles, San Francisco, San Jose, Sacramento, San Diego, San Mateo, Oakland/Alameda and Orange County areas. We include only those categories that include 10% or more of the class action filings during the relevant time frame. This report covers the time period from April 29 - May 5, 2011, during which time 66 new class actions were filed in these courts. In previous years, class actions alleging employment-related claims often accounted for more than half of all class actions filed in these California courts, but this year has been a different story. This reporting period, aided by several class actions arising out of the hacking of Sony's Play Station network, class actions alleging violations of California's Unfair Competition Law (UCL), which includes false advertising claims, seized the top spot, with 19 new filings (8 against Sony), representing 29% of the total number of new class actions filed this past week. The only other categories to break the 10% threshold involved labor law class actions, with 16 new filings (representing 24% of the total number of class actions filed), and class actions alleging violations of federal securities laws, with 9 new filings (14% of the total number of new class actions filed).

Posted On: May 5, 2011 by Michael J. Hassen Email This Post

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Discovery Class Action Defense Cases–Starbucks v. Superior Court: California Appellate Court Reverses Discovery Order Compelling Starbucks To Identify And Disclose Names Of Possible Class Representatives

Trial Court Order Requiring Starbucks to Identify and Disclose Job Applicants with Marijuana Convictions Violates the Privacy Rights Sought to be Redressed by Putative Class Action California Appellate Court Holds

Plaintiffs filed a putative class action against Starbucks for allegedly violating California marijuana laws by asking prospective employees to disclose, on a preprinted form, whether they had suffered any marijuana convictions. Starbucks Corp. v. Superior Court, ___ Cal.App.4th ___ (Cal.App. April 25, 2011) [Slip Opn., at 2]. The class action complaint was premised on the fact that “[I]n the mid-1970s, the California Legislature reformed the state’s marijuana laws to require the ‘destruction’ by ‘permanent obliteration’ of all records of minor marijuana convictions that were more than two years old. Employers were prohibited from even asking about such convictions on their job applications, with statutory penalties of the greater of actual damages, or $200 per aggrieved applicant.” Id. The class action sought $26 million on behalf of 135,000 job applicants, alleging that Starbucks “failed to adequately advise job applicants not to disclose minor marijuana convictions more than two years old.” Id., at 2-3. During the litigation, the Court of Appeal held that the plaintiffs lacked standing to prosecute the class action “because none had any marijuana convictions to reveal.” Id., at 2 (citing Starbucks Corp. v. Superior Court (2008) 168 Cal.App.4th 1436). Accordingly, the trial court subsequently granted Starbuck’s motion for summary judgment and dismissed the named plaintiffs as class representatives. Id. However, rather than dismissing the lawsuit, the trial court ruled that plaintiffs could “file a first amended complaint to include only job applicants with marijuana convictions” as class members, and could “conduct further discovery to find a ‘suitable’ class representative.” Id. Toward that end, Starbucks was ordered “to randomly review job applications until it identifies job applicants with prior marijuana convictions” and to then disclose those names to plaintiffs’ counsel “unless they affirmatively opt out to a neutral administrator.” Id. Starbucks again sought writ review and the Court of Appeal reversed.

This case is surprisingly simple. As the Court of Appeal summarized its opinion, “By providing for the disclosure of job applicants with minor marijuana convictions, the discovery order ironically violates the very marijuana reform legislation the class action purports to enforce. We fail to understand how destroying applicants’ statutory privacy rights can serve to protect them.” Starbucks, at 2-3.

By way of background, the trial court believed plaintiffs had standing to prosecute this putative class action: “None of the plaintiffs had been convicted of a marijuana-related crime. But they contended that California law allowed any job applicant to receive a minimum statutory penalty of $200 per applicant if they filled out an improper job application.” Starbucks, at 3. The trial court agreed with plaintiffs, and found that every job applicant was entitled to receive the $200 statutory penalty “even those who never had sustained a marijuana conviction,” id. The appellate court disagreed, holding that “neither plaintiffs nor the tens of thousands of job applicants they purported to represent were entitled to recover statutory penalties where they did not have any marijuana convictions to disclose.” Id. Rather, “Only an individual with a marijuana-related conviction falls within the class of people the Legislature sought to protect.” (168 Cal.App.4th at 1449.)

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Posted On: May 4, 2011 by Michael J. Hassen Email This Post

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Class Action Defense Cases–Mora v. Big Lots Stores: California Appellate Court Affirms Denial Of Class Action Treatment In Labor Law Misclassification Class Action Brought By Store Managers

Trial Court did not Abuse Discretion in Denying Class Action Certification of Store Manager Misclassification Claim because Individual Questions Predominate California Appellate Court Holds

Plaintiffs filed a putative class action against their former employer, Big Lots Stores, alleging violations of California’s Labor Code for failure to pay them overtime or to compensate them for missed meal and rest periods. Mora v. Big Lots Stores, Inc., ___ Cal.App.4th ___ (Cal.App. April 18, 2011) [Slip Opn., at 2]. According to the allegations underlying the class action complaint, defendant “uniformly misclassifies its store manager as exempt employees based on their job description alone rather than on consideration of actual work performed, which involves a significant amount of time on nonexempt tasks.” Id. Specifically, plaintiff’s class action complaint alleged that Big Lots operates “closeout retail stores in California, [and] has intentionally and improperly designated certain employees as ‘exempt’ store managers in order to avoid payment of overtime wages and other benefits required by [California law].” Id. Plaintiffs’ counsel moved to certify the litigation as a class action; the trial court denied the motion finding “the company does not operate its stores in a standardized manner and has no systematic practice of misclassification of managers.” Id. Plaintiffs appealed. The California Court of Appeal affirmed.

The evidence presented by both sides was substantial. Plaintiffs cited defendant’s deposition testimony to establish that Big Lots “classified all its store managers in California as falling within the ‘executive exemption’” as its basis for failing to pay them overtime or provide meal and rest breaks. Mora, at 4, Plaintiffs also submitted declarations from 44 putative class members to “demonstrate[] that the basic job duties of store managers in California are the same regardless of location and that Big Lots runs all its stores in the state in a uniform and standardized manner.” Id. These declarations also stated that “Strict compliance with corporate manuals and actions plans, which set forth state-wide policies and procedures, is required; and such compliance is ensured by district managers, who supervise all store managers.” Moreover, “training of store managers is standardized, and their job performance is evaluated on the same basis and on the same form regardless of purported store-to-store differences.” Id. The declarations “averred that store managers are primarily engaged in nonexempt activities and routinely work more than 40 hours per week,” and that they “typically spend more than 75% of their time performing the same physical labor and routine clerical tasks” as nonexempt employees. Id., at 4-5. Finally, plaintiffs submitted an expert declaration in support of their motion for class action treatment. Id., at 5-6.

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Posted On: May 3, 2011 by Michael J. Hassen Email This Post

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Class Action Defense Cases–Madison v. Chalmette Refining: Fifth Circuit Court Reverses Class Action Certification Order For Failure Of District Court To Meaningfully Consider Trial Administration Issues

District Court Failed to Consider the Manner in which a Class Action Trial would Proceed Prior to Granting Class Action Treatment, Requiring Reversal of Class Action Certification for Abuse of Discretion Fifth Circuit Holds

Plaintiffs filed a putative class action against Chalmette Refining following the release of petroleum coke dust from the Chalmette Refinery. Madison v. Chalmette Refining, L.L.C., ___ F.3d ___ (5th Cir. April 24, 2011) [Slip Opn., at 2]. According to the allegations underlying the class action complaint, plaintiffs (a group of school children and their parent and teachers) were exposed to the petroleum coke dust while reenacting a battle at the Chalmette National Battlefield, located adjacent to the refinery. Id. The class action complaint sought damages for “personal injury, fear, anguish, discomfort, inconvenience, pain and suffering, emotional distress, psychiatric and psychological damages, evacuation, economic damages, and property damages.” Id. Consistent with Fifth Circuit authority, the district court allowed the parties to conduct pre-certification discovery relevant to the propriety of class action treatment. Id. Defense attorneys deposed the five named plaintiffs, but plaintiffs’ counsel elected not to conduct discovery. Id. Plaintiffs then sought class action certification of a Rule 23(b)(3) class, which defendant opposed. Id., at 2-3. “Over two years later, the district court held a hearing on the motion to certify the class. At the conclusion of that hearing, and without any evidence being introduced, the district court orally granted Plaintiffs’ motion.” Id., at 3. Defendant petitioned the Fifth Circuit for leave to take an interlocutory appeal, which the Fifth Circuit granted. Id. Two months later (and after the Fifth Circuit had granted defendant’s petition for interlocutory appeal), the district court issued a written order granting class certification. Id. The Circuit Court reversed.

After summarizing the requirements for class action treatment under Rule 23, see Madison, at 3-4, the Circuit Court opened its analysis at page 4 with the following observation: “Recognizing the important due process concerns of both plaintiffs and defendants inherent in the certification decision, the Supreme Court requires district courts to conduct a rigorous analysis of Rule 23 prerequisites.” The Fifth Circuit stressed that the moving party bears the burden of satisfying the requirements of Rule 23, and that the district court must take “‘a close look at the case before it is accepted as a class action.’” Id., at 4 (quoting Amchem Prods. v. Windsor, 521 U.S. 591, 613 (1997)). The lower court, however, failed to perform such an analysis. Rather, the district court found it sufficient that “there is one set of operative facts that [will] determine liability” because “Plaintiffs were either on the battlefield and exposed to the coke dust or they were not.” Id., at 6.

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Posted On: May 2, 2011 by Michael J. Hassen Email This Post

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Class Action Defense Cases–Marlo v. United Parcel Service: Ninth Circuit Court Affirms District Court Order Decertifying Class Action In Labor Law Misclassification Case

District Court did not Abuse its Discretion in Decertifying Class Action Alleging Misclassification of Employees based on its Determination that Common Question of Law and Fact did not Exist Ninth Circuit Holds

Plaintiff filed a putative class action against his employer, United Parcel Service (UPS), alleging violations of California’s Labor Code for failure to pay him overtime or to compensate him for missed meal and rest periods. Marlo v. United Parcel Service, Inc., ___ F.3d ___ (9th Cir. April 28, 2011) [Slip Opn., at 5544]. According to the allegations underlying the class action complaint, plaintiff worked as a full-time supervisor (FTS) for UPS from 1999 to 2008, and “worked more than forty hours per week on a regular basis without taking meal or rest-period breaks, or receiving overtime compensation.” Id. Because he was an FTS, UPS classified plaintiff as exempt from California’s overtime law under the executive and administrative exemptions. Id. Plaintiff alleged that he had been misclassified, and sought and obtained an order certifying the litigation as a class action. Id. The district court subsequently granted summary judgment in favor of UPS, but the Ninth Circuit reversed finding that plaintiff “ha[d] raised material issues of fact related to whether the FTS ‘customarily and regularly exercise[] discretion and independent judgment.’” Id., at 5545 (quoting Marlo v. United Parcel Serv., Inc., 254 Fed. App’x. 568, 568 (9th Cir. 2007)). On remand, however, the district court decertified the class, finding that plaintiff “had failed to establish that common issues of law or fact predominated over individual ones” as required by Rule 23(b)(3). Id., at 5544. A juy returned a partial verdict in favor of plaintiff, finding that the executive and administrative exemptions did not apply to certain supervisorial positions plaintiff held. Id., at 5546. Both sides appealed. The Ninth Circuit affirmed the decertification order, id., at 5544.

The decertification order was based on “doubt regarding the continuing efficacy of a class action in this case.” Marlo, at 5545 (quoting Marlo v. United Parcel Serv., Inc., 251 F.R.D. 476, 480 (C.D. Cal. 2008)). In part, the district court reasoned that “the existence of a uniform policy classifying FTS as exempt is insufficient absent evidence of misclassification,” and that plaintiff “had relied heavily on a survey that was neither reliable nor representative of the class.” Id. (citations omitted). The court explained at 251 F.R.D. at 486,

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