Cal Biz Lit

WalMart Overtime Settlement

Everybody likes to mop the floor with WalMart, whether the subject is gender discrimination, gun sales, the company's impact on America's downtowns, or whatever.  The company has also had a spate of wage and hour litigation, most recently settling an overtime case with the United States Department of Labor for $33 million after turning itself in.

As MSNBC reports, however, the company still is in litigation with the State of California.  This is a reminder for companies doing business here that as in so many other things, the California angle on wage and hour law is different.  As Walsh and Walsh point out on their always insightful Wage Law blog (written from the plaintiff perspective), California is a whole 'nother place, as shown, for example, by the $172.2 million verdict in Alameda County last year for missed and shortened meal periods.

Oh Those Wacky Tree-Hugging, Sports-Hating, Earthquake-Fearing Californians

All right.  This may be slightly off topic, but I can't resist.  The San Francisco Chronicle, Recorder, and seemingly everything else today is full of stories about how Alameda Superior Court Judge Jo-Lynne Lee's preliminary injunction halting construction of an athletic facility adjacent to the University of California's Memorial Stadium.  The story has something for everybody who likes to dis California:  protesters living in oak trees, anti-development forces, even, dare I say it, an attack on college football.

I'm a second generation old blue myself (class of 1973), a football season ticket holder, I've been living and dying with Cal football for more than forty years, and I suppose I should be outraged.  I'm not wild about using the litigation process for land use planning, either.  But I'm also native Californian and a survivor of the Loma Prieta earthquake, so I'm really not in favor of building large public structures on earthquake faults.  California's Alquist-Priolo Act prohibits building on or near earthquake faults, and requires, as a prerequisite to construction, a demonstration that there is no active fault or trace of a fault underneath. 

Everybody agrees the construction is close to the Hayward Fault, which runs right under the stadium itself.   Two of Cal's geologic tests were inconclusive as to whether there were traces under the proposed structures.  I'm no expert on earthquake science, but it doesn't seem unreasonable to finish the testing and demonstrate, once and for all, whether the site is safe or not. 

Court of Appeal Limits Pre-Certification Discovery for Improper Class Representatives

The case of First American Title Insurance Company v. Superior Court, Second District, B194004 almost got lost in last week’s excitement over Pioneer Electronics v. Superior Court.  But the case is potentially important.

The issue, which has come up regularly in the wake of Proposition 64, is this: can a plaintiff in a class action who is not a member of the class and has never been a member of a class conduct pre-certification discovery to find more suitable class representatives?  The answer: an unequivocal no.  If the plaintiff was a suitable class representative but a law change knocks him out of the box, discovery to find class members may be appropriate.  But when the plaintiff was never a class member, allowing the discovery would be an abuse of the class action mechanism.

Good ruling for the defense.  There will almost certainly be a petition for review to the Supreme Court.  But the facts aren’t very attractive, and the Supremes don’t take a lot of discovery cases.

California Supreme Court Rules on Fishing for Plaintiffs in Class Actions

OK, this could be pretty important.  The Cal Supremes this morning issued the ruling in Pioneer Electronics v. Superior Court.  I previously blogged on this here.  Kimberly A. Kralowec, whose UCLPractioner.com, presents analysis from the plaintiff perspective, posted here and here shortly after the arguments.  Today's ruling is not good for the defense.

More after the jump.

On Contract Language, Film Stars and Charlie's Angels

“When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean, neither more nor less.”

Most of you who are lawyers or business people (or both) would think that the trick to writing a contract that would stay out of litigation and not be subject to conflicting interpretations would be to use clear, plain, unambiguous language.  And in most of the world, you would be correct.

But not in California – you’re not surprised by this are you?  In California, we had a case called Pacific Gas & Electric Company v. G.W. Thomas Drayage & Rigging Company decided by our Supreme Court in 1968.  The case seems to inject uncertainty into every contract.

Happy to say that a recent twist on the case gives me the opportunity to blog about contract litigation, Charlie's Angels, Robert Wagner and Natalie Wood all at the same time.  (For those readers born after about 1970, Charlie's Angels = cheesy cop show from the 1970's;  Robert Wagner = film and TV actor from the 1970's and, to some extent, up to now, married to the late Natalie Wood = child star of the late forties, film star in fifties and sixties.)

More after the jump.

Ounce of Prevention Worth Pound of Cure Department, Part II

Shanti Atkins at Harassment Training Blog has an interesting piece today on the impact of California's new training provisions on practices in the rest of the country.  I blogged on the new provision, Government Code section 12950.1, (scroll down) last month. 

Employers (and partners in law firms, who are, after all, usually employers as well) tend to gripe about requirements like this.  But the fact is, anything that prevents unlawful employment practices -- and the often incredibly expensive lawsuits that follow as a result -- is a good thing.

Binding Arbitration -- A Not Unmixed Blessing for Employers?

Jay Shepherd at Gruntled Employees writes recently about binding arbitration provisions in employment agreements, employee handbooks, etc., and comes down thusly:  bad idea.  Employers shouldn’t put them in their materials.  Hard to get unbiased arbitrators, and usually really expensive.

I agree with Jay’s assessment that employers make a mistake to blindly pursue mandatory arbitration in employment matters, for two reasons:  first,  in non-punitive damages matters, arbitrators, particularly retired judges, can outstrip juries when it comes to generous awards.  Judges have just seen too much.  But more importantly, I can tell you as an employer, as well a lawyer, that trying to superimpose binding arbitration on an existing employment relationship casts a real pall over the employer / employee relationship. 

Having said that, however, there are two features about binding arbitration, at least in California, that can't be discounted.  First, California has a reasonably well thought out mechanism for having the trial courts appoint arbitrators.  It appears at  California Code of Civil Procedure section 1281.6.  On motion of either side, the trial court names five prospective arbitrators. The parties have five days to agree on one of them.  If they don't, the court selects one from the list of five.  This eliminates the "vendor interest" problem you refer to in your posting.

But there's a more significant reason California employers want to force binding arbitration:  it eliminates the high end for punitive damages in discrimination, retaliation and harassment cases.  Arbitrators are simply less likely to render large punitive damages awards.  So for middling cases, binding arbitration may well be too expensive.  But for large cases, it can save employers a lot of heartache. 

(Full disclosure:  While I represent businesses in a variety of litigation, our firm does represent employees in employment litigation.  We don’t take “middling cases,” and for the reasons discussed in the last paragraph, we resist binding arbitration whenever we can.)

California Product Liability Law -- Part III

Here is the somewhat tardy part III of my postings on introduction to product liability litigation in California.  This time, we’re posting about experts. I’ve been learning lately that this site is attracting a number of non-lawyer readers, and this topic in particular has a certain amount of inside baseball to it.  But I’ll try my best to make this understandable to all.

After I tell my out-of-state friends and clients that all of their arguments about state of the art and risk benefit aren’t going to work here, and  the fact that somebody else was largely responsible for the accident isn’t going to be much of a defense, they often turn next to questions of admissibility of evidence.  Something along the lines of “Well, the court will never allow the plaintiff’s expert to say __________________, will it?”

Uh, sorry.  Looks like strike three.  (Note baseball metaphor above.)  California is what’s known as a non-Daubert state.  And after that, things get worse. 

More after the jump.

Allergies? From Wine? Where's My Warning?

At first blush, this seems off-subject, but I just can't resist.  Today, Declarations and Exclusions reports on a pending FDA regulation requiring wineries who "fine" their wine with eggs to provide a warning for the benefit of those with egg allergies. (If you go to the post, don't miss the barrels of eggs shown, evidently at Napa Valley's most excellent Merryvale Vineyards.)

With all of our wineries in California, and with product liability law based on Barker v. Lull, I'm surprised we haven't seen a product liability suit by an allergic consumer who had no "reasonable expectation" that wine was going to cause him an allergic reaction.

Science and Asbestos Litigation

Guest-blogging today is my partner, Barbara Adams.  She and Jim Sinunu head our firm’s toxic tort practice, and she’s expanding on a couple of recent posts relating to the effect of the litigation process on the course of scientific discourse.  The following is her post:


In two linked posts, Blog 702  and Drug and Device Law  the bloggers write about, and agree with, the thesis of a recent article in Neurology (Subscription) that  “Modern litigation does exert a biasing effect on some published, peer-reviewed research”.  Blog 702 notes, however, that

"the Neurology article fails to make a convincing case that the state or progress of neurological or other medical research have suffered, or will suffer, at the hands of the litigation system.”

While I can't attest to the effects of litigation on neurological research, I have some familiarity with asbestos litigation.  In one aspect in particular, the existence of and profits derived from asbestos litigation appear to have had a significant impact on medical research.

There's more after the jump.