Altshuler Berzon LLP Attorney Argues Climate Change Case in 9th Circuit

On February 5, 2020, Altshuler Berzon LLP partner Michael Rubin argued City of Oakland et al. v. BP LLC et al., No. 18-6663, before a Ninth Circuit three-judge panel.  The consolidated cases, brought by the City of Oakland and the City and County of San Francisco against five of the largest private investor-owned oil and gas companies in the world, allege that defendants’ 50-year campaign of deceit and deception about the impacts of fossil-fuel combustion on global warming makes those companies liable under California law for their roles in creating the resulting public nuisance.  The plaintiffs seek an order of equitable abatement that would require the companies to remediate the devastating impacts of climate change on local public infrastructure.

The district court had dismissed the consolidated cases on the merits, after having denied the cities’ motions to remand the cases to the state courts in which they were originally filed.  The district court also dismissed four of the five defendants on personal jurisdiction grounds.  As a result, the oral argument encompassed three issues: (1) whether the district court had subject matter jurisdiction, under federal common law or otherwise, over the removed cases; (2) whether the cities’ complaints stated a claim for relief under state public nuisance law or federal common law; and (3) whether the district court could exercise personal jurisdiction over the out-of-state defendants based on allegations that they “purposefully directed” their tortious conduct against California.

Altshuler Berzon LLP attorneys Michael Rubin, BJ Chisholm, Corrine Johnson, and Rebecca Lee have been co-counseling these cases and other climate-change cases pending in state and federal courts throughout the country, with city and county attorneys on behalf of their respective jurisdictions and with co-counsel from Sher Edling.

California Retailers and Banks to Provide Seating to Cashiers, Tellers

In a series of settlements negotiated by Altshuler Berzon LLP and its co-counsel, prominent retailers including CVS, Walgreens, and Rite Aid, and national banking institutions JPMorgan Chase and Bank of America have agreed to provide seats to all of their cashiers and tellers and to pay tens of millions of dollars in civil penalties.

The settlements, which have now received final court approval, arose in separate lawsuits filed under California’s “suitable seating” law (Wage Order §14) and the California Labor Code Private Attorneys General Act (PAGA), which allows aggrieved workers to file a private right of action civil penalties on behalf of the State of California against employers that have committed Labor Code violations.  The key provision of the seating law requires California employers to provide seats to all employees “when the nature of their work reasonably permits the use of a seat.”

Of the tens of millions of dollars recovered in these cases, 25% has been allocated to the aggrieved workers and 75% was paid to the State Labor and Workforce Development Agency to be specially earmarked for future Labor Code enforcement and education – the allocation scheme required by PAGA. 

In 2019, as a result of these and other PAGA cases (including other seating cases in which Altshuler Berzon was co-counsel), the LWDA received more than $88 million in PAGA civil penalties.

Altshuler Berzon LLP Attorney Welcomes New Year with Two 9th Circuit Arguments in Three Days

January 2020 started off with a bang for Altshuler Berzon LLP partner Michael Rubin, who had back-to-back arguments in the Ninth Circuit on January 6 and 8, 2020 in San Francisco.

The first case up was Canela v. Costco, a case of first impression under the federal Class Action Fairness Act (CAFA) and California’s Labor Code Private Attorney General Act (PAGA) – a state statute that provides a private right of action to employees in California, authorizing them to sue as agents of the State Labor and Workforce Development Agency for civil penalties against an employer that allegedly violated plaintiff’s and other aggrieved employees’ rights under the California Labor Code.  The appeal raised several questions, including whether a PAGA representative action filed in state court can ever be removed to federal court under CAFA, and whether, if a PAGA claim is litigated in federal court, the plaintiff must satisfy all requirements of Rule 23 of the Federal Rules of Civil Procedure before being permitted to seek civil penalties based on violations committed against other aggrieved employees.

Two days later, in the same courtroom of the James R. Browning Court of Appeals building and before two of the same judges, Rubin argued Johnson v. Serenity Transportation, a Rule 23(f) appeal concerning the construction and application of California Labor Code §2810.3.  That statute, which the California Legislature enacted to overcome the difficulties faced by many workers under existing “joint-employer” liability standards, imposes strict liability on “client employers” for Labor Code wage violations committed by those companies’ “labor contractors.”  In Serenity Transportation, the ultimate issue – another question of first impression – is whether Section 2810.3 applies in circumstances where the labor contractor provides workers to more than one client employer at the same time – in this case, by requiring those workers to be on-call, or “engaged to wait,” while awaiting dispatch to one of the labor contractor’s clients.  Because the appeal arose in the context of a district court’s denial of class certification (based on the court’s legal conclusion that Section 2810.3 does not apply in that situation), a threshold issue in the appeal is whether, or under what circumstances, a district court has authority to deny certification based upon a legal determination that plaintiffs’ claim lacks merit – even if that merits question is common to the class as a whole.

Both cases are currently under submission by the Ninth Circuit.

Federal District Court Dismisses Lawsuit Against Unions for Petitioning Activity Protected by the First Amendment

On January 7, 2020, the U.S. District Court of the Southern District of California granted a motion to dismiss federal antitrust, RICO, and labor law claims, as well as state law claims, brought by a hotel developer against UNITE HERE! Local 30, the San Diego County Building and Construction Trades Council, and those unions’ leaders.  The hotel developer alleged that the unions and union officials had engaged in unlawful conduct designed to coerce the hotel developer to agree to a card check neutrality agreement and project labor agreement, including by opposing and threatening to file environmental challenges to the proposed hotel redevelopment plan.  The court dismissed the hotel developer’s claims on the grounds that the supposedly unlawful activity was all petitioning activity protected by the First Amendment under the Noerr-Pennington doctrine.  Altshuler Berzon represented defendants San Diego County Building and Construction Trades Council and Tom Lemmon.  The other defendants were represented by McCracken, Stemerman & Holsberry LLP.

You can read the Court’s Order here.

Ninth Circuit Affirms $55 Million Class Action Judgment Against Wal-Mart for Failure to Pay California Minimum Wages

On January 6, 2020, the Ninth Circuit Court of Appeals in a published opinion affirmed a $55 million California minimum wage judgment in favor of a class of Wal-Mart, Inc.’s California truck drivers, in Ridgeway v. WalMart, Inc., Ninth Cir. Nos. 17-15983, 17-16142.  Following a 16-day trial in 2016, a jury found that Wal-Mart failed to pay minimum wages required by California law to its California-based truck drivers for time they spent engaged in pre- and post-trip inspections, rest breaks, and during mandatory “layover” periods, during which Wal-Mart exercised control over the drivers by prohibiting them from returning home without management permission.  The 11-year class period covered the time from October 2004 to October 2015. 

After Wal-Mart appealed, Altshuler Berzon LLP was brought in by the class and trial counsel to defend the verdict on appeal.  The Ninth Circuit affirmed the judgment against Wal-Mart in its entirety, rejecting Wal-Mart’s numerous arguments, which challenged the trial court’s jurisdiction, partial summary judgment and class certification decisions, and jury instructions, and raised other arguments under California and federal law.

You can read the Court’s decision here.

Ninth Circuit Rejects Damages Claims Against Union for Collecting Fair-Share Fees in Reliance on Supreme Court Precedent

On December 26, 2019, the United States Court of Appeals for the Ninth Circuit issued its decision in Danielson v. Inslee, 945 F.3d 1096 (9th Cir. 2019).  Affirming the decision below, Danielson held that public employee unions that received fair-share fees from nonmembers before the Supreme Court held such fees unconstitutional in Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018), have a good faith defense to claims for fee refunds or other monetary relief under 42 U.S.C. §1983.  Altshuler Berzon LLP represented the union defendant, Washington Federation of State Employees, AFSCME Council 28, in the district court and the Ninth Circuit.  Altshuler Berzon LLP also represents public employee unions in several dozen other lawsuits filed throughout the country that arise from the Supreme Court’s decision in Janus.

You can read the Ninth Circuit’s decision here.

Altshuler Berzon LLP recognized as premier boutique firm working for social and economic justice

The Daily Journal recognized Altshuler Berzon LLP as one of the top boutique firms in California.  The Journal highlighted the firm’s work on ground-breaking cases such as the California Supreme Court’s Dynamex decision protecting workers misclassified as independent contractors, litigation in Florida to protect voting rights, and cases seeking to hold fossil fuel companies responsible for climate change-related harms to public infrastructure.

You can find a PDF of the Daily Journal article here.

Michael Rubin named as one of California’s Top 100 Lawyers

The Daily Journal on September 18, 2019 named Altshuler Berzon LLP partner Michael Rubin one of the Top 100 Lawyers in the State of California, for the fourth year in a row.  Emphasizing Altshuler Berzon’s public policy and public interest work on behalf of consumers, the Daily Journal’s article discussed the firm’s recent victory in Blair v. Rent-a-Center, Inc., 928 F.3d 819 (9th Cir. 2019), which affirmed the right of plaintiffs in state-law consumer class action cases to litigate claims for public injunctions in court, rather than being compelled to litigate such claims in secret arbitration proceedings.  The article noted that the same rule established in Blair could also extend beyond consumer class actions to the employment context.

Court grants preliminary injunction protecting rights of Southwest flight attendants to use sick leave to care for family

On May 17, 2019, the Alameda County Superior Court granted plaintiffs’ motion for preliminary injunction in TWU Local 556, et al. v. Southwest Airlines Co., Case No. RG-18933251, requiring Southwest Airlines Co. to permit its California-based flight attendants to use their accrued sick leave to care for ill family members, in accordance with the “kin care” provisions of California Labor Code §233 and sick leave ordinances in Oakland and Los Angeles.  Altshuler Berzon LLP is representing the plaintiffs in the case and brought the preliminary injunction motion.

In granting the motion, the Court rejected Southwest’s affirmative defenses, which sought to preclude application of California and local labor protections laws to its flight attendants, who often travel outside the state in the course of a work day.  The Court found that Southwest’s California-based flight attendants who start and end all trips in California, and perform more work in California than in any other state, are likely entitled to the protections of California law.

As a result of the preliminary injunction, Southwest can no longer deny its flight attendants their “kin care” rights or discipline them for exercising those rights.  You can read the Court’s order here.

Bloomberg Technology Features Interview With Altshuler Berzon LLP Partner Jim Finberg Regarding Oracle Wage Parity Suit

On June 21, 2019, Bloomberg Technology featured an interview with Altshuler Berzon LLP Partner Jim Finberg regarding Jewett v. Oracle Corp., a class action under the California Equal Pay Act in which Altshuler Berzon LLP, along with co-counsel Rudy, Exelrod, Zieff, and Lowe, are representing Oracle employees alleging that women employed in technology and technology support positions were paid less than men with similar qualifications performing similar work.  You can view that interview here, starting at 17:16 and continuing through 22:27.