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Posts Tagged ‘brinker’

In preparing for our webinar on the use of statistics in class actions tomorrow, I discovered that the California Supreme Court has granted review in Duran v. U.S. Bank, a case that could have major implications for the future of statistical sampling as common proof in class actions.  See my April 6, 2012 post titled Trial by Formula, Statistical Sampling, and the Right to Due Process for a summary of the Court of Appeal’s decision, which has lost its precedential effect by virtue of the decision to grant review.  The supreme court’s docket for the case  is available here.   Kimberly Kralowec has posted many of the court documents on her blog, The UCL Practitioner.

The folks at the Litigation Impact Journal have noted that the decision to grant review in Duran was foreshadowed by Justice Werdegar’s concurrence in his own majority opinion in the California Supreme Court’s highly publicized decision last month in Brinker Restaurant Corp. v. Superior Court.  In that concurrence, Justice Werdeger argued that “[r]epresentative testimony, surveys, and statistical analysis all are available as tools to render manageable determinations of the extent of liability [in wage and hour cases].”  In Duran, the court will have an opportunity to explore that issue in more detail.

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Class Action Blogosphere Weekly Review’s “Lay Down the Gauntlet” Challenge of the Week

I know this is going to make me sound like Ayn Rand, but why would we possibly want to encourage a public policy that imposes liability on employers for failing to force all of their hourly employees not to work during meal and rest breaks?

I sense that there are a few bloggers out there who will have an answer (or who will take great issue with the premise of the question).

For continuing coverage of proceedings in the California wage and hour class action decision, Brinker Restaurant Corp. v. Superior Court, and other recent decisions involving wage and hour claims for unpaid time worked during meal and rest breaks, see this post and others from The Complex Litigator…

http://www.thecomplexlitigator.com/2008/10/brinker-redux-in-brinkley-v-public-storage-inc.html

… and this post from Wage Law:

http://wagelaw.typepad.com/wage_law/2008/10/old-and-busted-brinker-new-hotness-brinkley.html

With that out of the way, here are some more blog entries from the week that was that might be of interest to class action practitioners:

Class Action Decisions

William Shatner stars in this typically colorful case review from CAFA Law Blog of a California federal court’s order remanding to state court a class action that had been removed under the Class Action Fairness Act (CAFA), finding that the defendant had filed to establish by a preponderance of the evidence that the $5 million amount in controversy threshold was met:

http://www.cafalawblog.com/-case-summaries-dont-be-a-namby-pamby-negotiate-your-own-amount-in-controversy-for-cafa-removal.html

Classified discusses another CAFA amount-in-controversy decision accepting jurisdiction where the damages requested only “likely exceed” the $5 million amount:

http://www.carltonfields.com/classactionblog/blog.aspx?entry=243

North Carolina Business Litigation Report summarizes a North Carolina Business Court’s decision permitting a plaintiff to withdraw class claims and enter into a confidential settlement with the defendant:

http://www.ncbusinesslitigationreport.com/2008/10/articles/class-actions/business-court-allows-confidential-settlement-of-individual-claims-in-class-action-suit/

Class Action Defense Blog provides a synopsis of a Ninth Circuit Court of Appeals decision addressing choice of law issues and their impact on the enforceability of a class arbitration waiver:

http://classactiondefense.jmbm.com/2008/10/ucl_class_action_defense_cases_7.html

This guest post on Drug and Device Law Blog addresses the Federal Circuit Court of Appeals’ recent decision concluding that a “reverse payment settlement” in which a the holder of a patent to a branded drug agreed to make payments to a generic challenger in settlement of a patent infringement lawsuit did not violate antitrust laws:

http://druganddevicelaw.blogspot.com/2008/10/federal-circuit-upholds-reverse-payment.html

How Appealing summarizes a decision by Judge Richard A. Posner that “offers a useful discussion of the pros and cons of class actions” and draws from the personal experience of the wives of the panel’s members in reversing class certification in a deceptive advertising case:

http://howappealing.law.com/102808.html#030880

Class Action (and Related) Commentary

Overlawyered reports on an order compelling the transfer of more than 600 mentally disabled residents of a nursing facilities to group homes entered as the result of a settlement in a public interest group’s class action against the Commonwealth of Massachusetts, the objection of the parents of one of the residents arguing that their son’s health would be endangered by the transfer, and proposed legislation to require courts to notify parents and guardians in class actions and give them a right to opt out:

http://overlawyered.com/2008/10/evicted-by-his-own-class-action-lawyers/

In this Huffington Post entry, Tracy Siska comments on the indictment of former Police Commander Jon Burge and class actions filed against the Chicago Police Department alleging that illegal detentions and prisoner abuse persisted in the department persisted until as recently as 2005, years after the events underlying Burge’s indictment:

http://www.huffingtonpost.com/tracy-siska/chicago-police-burge-and_b_138242.html

Point of Law offers an abstract from a National Review article discussing the Alaska “loser-pays” rule for shifting attorneys fees:

http://www.pointoflaw.com/archives/2008/10/commonsense-jus.php

Class Action Trends

Jan Norman on Small Business discusses trends in California wage and hour class actions and offers tips for employers from employment lawyer John McKasson:

http://jan.freedomblogging.com/2008/10/28/californias-fad-workplace-class-action-lawsuits/3411/

The D&O Diary discusses “The New Phase of Credit Crisis Litigation” as well as other class-action-related trends, and provides a bit of comic relief at the end of this post:

http://www.dandodiary.com/2008/10/articles/subprime-litigation/the-new-phase-of-credit-crisis-litigation/

Class Action Scandals

The New York Times Deal Book Blog reports on the sentencing of two former Milberg Weiss partners for their role in an illegal kickback scheme (see CAB entry here):

http://dealbook.blogs.nytimes.com/2008/10/28/bershad-gets-6-months-in-class-action-scheme/

Mass Tort Litigation Blog reports on the Kentucky Supreme Court’s decision to disbar two lawyers involved in a scandal involving alleged wire fraud in connection with a Fen-Phen class action settlement:

http://lawprofessors.typepad.com/mass_tort_litigation/2008/10/lawyers-involve.html

Class Action Potpourri

FP Legal Post comments on a video game featuring vicious class action lawyers.  (See CAB entry here) …

http://network.nationalpost.com/np/blogs/legalpost/archive/2008/10/28/surefire-class-action-defence.aspx

… and Securities Docket doesn’t think the game is a good idea:

http://www.securitiesdocket.com/2008/10/27/worst-video-game-ever-class-action-killers/

The Australian newspaper’s Letters Blog includes a reader’s entry suggesting a government-sponsored class action is a better response than a bailout to the economic crisis:

http://blogs.theaustralian.news.com.au/letters/index.php/theaustralian/comments/class_action_will_show_wall_st_we_mean_business/

and finally, The UCL Practitioner offers “An Introduction to the California Blogosphere,” which includes reviews of several of the great California-and-class-action-centric blogs often featured on CABWR and others covering a variety of legal topics:

http://www.uclpractitioner.com/2008/10/blawg-review-183.html

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Here are some blog entries from the week that was that might be of interest to class action practitioners:

Class Action Decisions

The UCL Practitioner provides a summary of recent decisions in several U.S. Circuit Courts of Appeals involving the standards for approving class action settlements and fee awards.  http://www.uclpractitioner.com/2008/08/recent-class-ac.html

Class Action Defense Blog comments on a California federal court decision addressing class certification in a wage and hour class action for alleged unpaid wages for meal and rest breaks in light of the California Court of Appeal’s recent decision in Brinker Restaurant Corp. v. Superior Court (2008 WL 2806613)…

http://classactiondefense.jmbm.com/2008/09/class_action_defense_caseskimo.html

… and  more from the same decision on National Law Journal’s Legal Pad, LA…

http://www.lalegalpad.com/2008/09/federal-judge-r.html

… and commentary from Wage Law on the possible unintended consequences of Brinker.

http://wagelaw.typepad.com/wage_law/2008/08/the-law-of-unintended-consequences.html

CAFA Law Blog provides another entertaining musical revue of a CAFA remand case, this time to the tune of a Steve Miller Band favorite:

http://www.cafalawblog.com/-case-summaries-plaintiff-gets-on-that-707-with-plans-of-rridin-high-but-that-big-ol-jet-airliner-wont-carry-her-too-far-away.html

Classified offers a synopsis of a Florida federal court decision analyzing whether the superiority element of class certification was met in a fair debt collection case despite the fact that the alleged damages of individual class members were de minimus:

http://www.carltonfields.com/classactionblog/blog.aspx?entry=235

The Insurance Reinsurance Blog summarizes and provides a link to an Eighth Circuit Court of Appeals decision upholding a lower court’s decision dismissing an insurance class action on the ground that permitting a federal lawsuit to go forward would impair Missouri’s right to regulate insurance and would violate the McCarran-Ferguson Act.

http://www.insurereinsure.com/BlogHome.aspx?entry=929

North Carolina Appellate Blog summarizes a North Carolina Court of Appeals decision holding that Rule 23(c) did not require notice to absent class members in the event of a court-ordered dismissal as opposed to a voluntary dismissal.

http://womblencappellate.blogspot.com/2008/09/coa-holds-that-no-class-notice-required.html

Several blogs, including the Consumerist, Tech News, and LawMemo commented on the Washington Supreme Court’s decision last week holding a class arbitration waiver unconscionable.

http://consumerist.com/5043570/washington-upholds-att-customers-right-to-class-action#c7514731

http://www.newsvine.in/2008/09/02/once-again-court-says-telco-cant-force-arbitration-over-a-lawsuit/

http://www.lawmemo.com/arbitrationblog/2008/09/unconscionabili.html

Practice Tips

Drug and Device Law Blog offers an excellent summary of the Multidistrict Litigation (MDL) coordination process:

http://druganddevicelaw.blogspot.com/2008/09/multidistrict-litigation-process.html

The Complex Litigator has been providing on-location updates from the Consumer Attorneys Association of LA (CAALA) annual convention, including this summary of practice pointers on the prosecution of class actions in California by attorney Jerome Ringler:

http://www.thecomplexlitigator.com/2008/08/liveblogging–2.html

Class Action Trends

DigitalDay Break comments on what a recent class action lawsuit and settlement regarding online accessibility for the disabled might mean to online marketers.

http://digitaldaybreak.wordpress.com/2008/09/02/what-the-target-accessibility-lawsuit-ruling-means-to-online-marketers/

The D&O Diary discusses reasons why D&O insurance premiums have not skyrocketed despite the recent wave of subprime litigation.

http://www.dandodiary.com/2008/08/articles/d-o-insurance/subprime-lawsuits-mount-so-what-about-do-pricing/

Class Action (and related) Commentary

Federal Civil Practice Bulletin summarizes an article from Vanderbilt Professor Richard A. Nagreda entitled “Class Certification in the Age of Aggregate Proof”:

http://federalcivilpracticebulletin.blogspot.com/2008/09/prof-nagareda-posts-article-on-class.html

Overlawyered reports on a modest proposal from ESPN Columnist Rick Reilly that a class action be filed against minor league baseball players who “sat stewing in the minors while big leaguers were allowed to cheat.” 

http://overlawyered.com/2008/08/espn-columnist-minor-league-players-should-sue-over-steroids/

North Carolina Business Litigation Report discusses a North Carolina Court of Appeals decision allowing a plaintiff to proceed in a usury and deceptive trade practices action challenging the practice of litigation funding, or an agreement providing for an advance of litigation costs by a law firm in exchange for a premium return in the event that the case was successful.  Coincidently, the decision comes as the practice of litigation funding is becoming more common overseas.

http://www.ncbusinesslitigationreport.com/2008/09/articles/class-actions/the-practice-of-litigation-funding-gets-a-chilly-reception-from-the-north-carolina-court-of-appeals/#more

and more commentary on the acceptance of litigation funding in loser pays jurisdictions like Australia, from Point of Law:

http://www.pointoflaw.com/archives/2008/09/shareholder-cla.php

Mass Tort Litigation Blog addresses recent changes to British law permitting investment in law firms:

http://lawprofessors.typepad.com/mass_tort_litigation/2008/08/uk-changes-allo.html

The Race to the Bottom provides a critical, multi-part response to a July report issued by the U.S. Chamber of Commerce Institute for Litigation Reform, which proposed various reforms in securities class actions.

http://www.theracetothebottom.org/home/the-chamber-of-commerce-and-excessive-litigation-be-careful-3.html

“Urban-based accidental journalist” curb girl laments life as an absent class member in a class action settlement involving health insurance in a way that she does not find entirely clear:

http://sidewalkeater.blogspot.com/2008/09/class-action.html

Class Action Politics?

Christina Walldren criticizes Barack Obama’s support for the Class Action Fairness Act (CAFA), arguing that CAFA has the effect of “shutting off avenues of redress” for “working class people”…

http://christinawalldren.com/2008/09/02/we-shall-overcome/

… and more commentary sharing the same general sentiment from the designers.

http://jevdet.blogspot.com/2008/09/corporate-state-lackey-obama.html

As an aside, for all of you disenfranchised members of the radical left, In case it helps you feel better, I can tell you from experience that discrimination, employment, and consumer fraud class actions are still going strong and state courts are still seeing their fair share of class actions despite the “thinly veiled ‘special interest extravaganza'” that led to CAFA’s passage–and PLEASE remember that a vote for Ralph Nader (or Dr. John Hagelin or Lyndon LaRouche) is a vote for Bush.

But lest you think that the far left is the only group not solidly on the Obamamania bandwagon, here’s an entry from the Delaware Curmudgeon quoting with approval this analysis from legal scholar “jmflynny,” who responds to an Obama campaign charge that John McCain and Sarah Palin are against equal pay for equal work with the statement that “the Democrat Party hates businesses, given that they want to give any employee the right to file, without proof, class-action lawsuits for something that may or may not have happened decades ago.”

http://delawarecurmudgeon.blogspot.com/2008/09/on-equal-pay-for-equal-work-issue.html

Another friendly reminder–a vote for Bush is also a vote for Bush.  A vote for Bob Barr on the other hand…

…Nope.  Still a vote for Bush.

Finally, here is arguably the most balanced blog commentary from this past week on the relative positions of the presidential candidates on class action and tort reform issues, written by, I hate to admit this, a trial lawyer…

http://www.nctriallawblog.com/north_carolina_trial_law_/2008/08/mccain-v-obama.html

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