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.
On September 18, 2019, the San Bernardino County Superior Court granted petitioners’ peremptory writ of mandate in Gomez Daly and Inland Empire United v. Board of Supervisors of San Bernardino County, Case No. CIVDS 1833846, holding that the San Bernardino Board of Supervisors violated California’s open meetings law, the Ralph M. Brown Act, in filling a vacant seat on the Board, and requiring the Board to rescind the appointment. Altshuler Berzon LLP represented petitioners Inland Empire United and Michael Gomez Daly in the case, along with co-counsel Rothner, Segall & Greenstone.
In granting the writ, the Court determined that the Board’s selection of 13 “finalists” for the Third District Supervisor position outside of a noticed and open meeting violated the Brown Act’s prohibition of seriatim meetings and secret ballots, and that the Board failed to cure or correct this violation through a rushed and superficial “rescission” after petitioners sent a letter demanding the Board address its violation. The Court also rejected the Board’s argument that the Brown Act requires petitioners to show prejudice to obtain the nullification remedy.
You can read the Court’s Statement of Decision here.
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.
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.
On May 10, 2019, the federal court for the Northern District of Florida issued a preliminary injunction under Section 4(e) of the Voting Rights Act requiring Florida’s Secretary of State to direct the Supervisors of Elections in 32 Florida counties to provide Spanish-language election assistance—including Spanish-language or bilingual official ballots, a Spanish-language hotline, and Spanish translations of all official, election materials—for elections beginning with Florida’s March 2020 presidential primary.
This order expands on the preliminary relief the Court previously granted in this case. In granting broader relief, the Court explained: “This case is about the fundamental right to cast an effective ballot. Voters educated in Puerto Rico bring this suit to enforce the plain provisions of the Voting Rights Act’s Section 4(e). This straightforward law has been on the books for 54 years. In this action, this Court is ensuring compliance with Congress’s clear directives.”
The name of the case is Marta Rivera Madera, et al., v. Laurel M. Lee, et al., Case No. 1:18-cv-152-MW/GRJ (N.D. Fla.). Altshuler Berzon LLP, along with co-counsel from Demos, LatinoJustice, and SEIU, are representing Plaintiffs Marta Rivera Madera, Faith in Florida, Hispanic Federation, Mi Familia Vota, UnidosUS, and Vamos4PR in the case.
You can read the Court’s order here.
You can read more about the case here.
On March 29, 2019, Judge Morrison C. England, Jr. of the Eastern District of California rejected a transportation industry association’s challenge to the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court (2018), which clarified how courts should determine whether a worker is an “independent contractor” or an “employee” under California law for purposes of protections like a guaranteed minimum wage, meal and rest breaks, and reimbursement for certain out-of-pocket expenses.
The trucking association challenged Dynamex under several different legal theories. The court rejected those challenges in full and dismissed the association’s complaint without leave to amend, holding that Dynamex is not preempted by federal law and does not violate the U.S. Constitution. This decision thwarted the association’s attempt to exempt employers in the transportation industry from Dynamex and the rules that apply as a result of Dynamex.
Altshuler Berzon LLP represented the International Brotherhood of Teamsters, which had intervened to defend Dynamex alongside the State of California.
You can read the decision here.
Altshuler Berzon LLP has filed charges on behalf of workers at McDonald’s who have come forward in the wake of the #MeToo movement to allege they have been sexually harassed at work. Together with co-counsel, and with the financial support of the TIME’S UP Legal Defense Fund™, the firm has filed EEOC and state-level charges on behalf of eleven women and is continuing to investigate additional reported incidents of harassment at McDonald’s. The workers Altshuler Berzon represents are asking the EEOC to investigate not only the individual franchises where they work, but also McDonald’s Corporate, and to do so on a nationwide systemic level. On September 18, 2018, McDonald’s workers in ten cities – including some of the workers Altshuler Berzon represents – participated in strikes organized by the Fight for $15 that demanded that McDonald’s take steps necessary to end pervasive sexual harassment of its employees, including by providing adequate training and a safe and confidential reporting mechanism and by strengthening and enforcing their existing policies, among other demands.
On November 8, 2018, the Ninth Circuit issued a decision affirming a preliminary injunction issued by the United States District Court for the Northern District of California requiring the Trump administration to accept renewal applications from individuals previously granted Deferred Action for Childhood Arrivals (DACA) status. The Trump administration had sought to end the DACA program through a September 2017 memorandum rescinding DACA. The Ninth Circuit majority held that the plaintiffs were likely to succeed in arguing that the rescission memorandum violated the Administrative Procedures Act (APA) because it was based on an erroneous legal premise – that DACA was unlawful. The Ninth Circuit further held that neither the APA nor the Immigration and Nationality Act barred federal court review of the rescission, and that the federal district court had properly refused to dismiss the plaintiffs’ equal protection challenge to the DACA rescission, based on evidence of racial animus, procedural irregularities, and disproportionate racial impact, and due process challenge to the Trump administration’s apparent backsliding on assurances given to DACA recipients that the information they provided in applying for DACA would not be used for immigration enforcement purposes.
One member of the panel would have upheld the preliminary injunction based on the plaintiffs’ equal protection claim, but concluded that the rescission memorandum could not be challenged under the APA because deferred action was a decision conferred to the federal agency’s discretion. The panel upheld the district court’s dismissal of the plaintiffs’ due process and procedural APA challenges to the DACA rescission.
Altshuler Berzon LLP represents the plaintiffs in one of the five cases that were before the Ninth Circuit: the County of Santa Clara, also represented by Santa Clara County Counsel, and Service Employees International Union Local 521. The Ninth Circuit decision can be found here.
On November 5, 2018, the federal court for the Northern District of Florida issued an order granting an emergency motion filed on Sunday, November 4, 2018, requiring the Florida Secretary of State to ensure compliance with the Court’s September 10 Preliminary Injunction Order by ensuring that Spanish-language facsimile ballots are made available to voters protected by Section 4(e) of the Voting Rights Act at all polling sites in 32 Florida counties on Election Day, November 6, 2018.
On August 16, 2018, Altshuler Berzon LLP, along with co-counsel at Demos, LatinoJustice PRLDEF, and SEIU, filed a class-action complaint on behalf of more than 30,000 Spanish-speaking Puerto Ricans in the 32 counties, as well as several civic engagement organizations, and sought a preliminary injunction to allow Spanish-speaking Puerto Ricans the ability to cast a meaningful vote in the upcoming and future elections. The case is Marta Valentina Rivera Madera, et al. v. Ken Detzner, et al., N.D. Fla. Case No. 1:18-cv-00152.
On September 7, 2018, the federal court for the Northern District of Florida issued a preliminary injunction (with a corrected order issued September 10, 2018) requiring Florida’s Secretary of State to direct the Supervisors of Elections in the 32 Florida counties to make available a facsimile sample ballot in Spanish to voters protected by Section 4(e) of the Voting Rights Act, and to publish the sample ballot in advance of the election along with instructions in Spanish for how to use it to help cast a vote.
On Sunday, November 4, 2018, plaintiffs learned that the Supervisor of Elections for Duval County (one of the 32 counties at issue in the lawsuit) was not making Spanish-language facsimile ballots available at early voting locations, in violation of the district court’s preliminary injunction order. Plaintiffs immediately filed an emergency motion requesting an order ensuring compliance with the preliminary injunction. The court granted the requested order in material part. The court denied relief with respect to early voting because early voting has already ended in most counties including Duval, but granted the emergency motion with respect to Election Day and ordered the Secretary of State to “ensure compliance with th[e] Court’s order on preliminary injunction” by ensuring that “facsimile sample ballots in Spanish shall be available to all voters who fall within the ambit of Section 4(e) of the Voting Rights Act” at all polling sites in the 32 counties on Election Day.
You can read the Order Granting in Part and Denying in Part Plaintiffs’ Emergency Motion for Immediate Relief here.
Altshuler Berzon LLP Take the Lead in Opposing Certiorari
On October 15, 2018, after 18 years of litigation, the U.S. Supreme Court denied certiorari petitions filed by three former manufacturers of lead-based paint. The manufacturers had been found liable, under California’s public nuisance law, for manufacturing, promoting and selling lead paint for interior residential use in the first half of the 20th century, despite their contemporaneous knowledge that deteriorating lead paint was highly toxic, especially to young children. The ruling, which required the manufacturers to pay $409 million into an abatement fund to remedy the public nuisance they had created, was affirmed in principal part by the California Court of Appeal in 2017, and the California Supreme Court later denied review.
As a result of the denial of cert, the three companies – Conagra Grocery Products Company, NL Industries, Inc., and Sherwin-Williams Company – must jointly and severally fund a court-ordered abatement program to identify and remediate lead paint hazards in pre-1951 homes in ten jurisdictions throughout California, prioritizing homes occupied by low- and moderate-income families.
Altshuler Berzon LLP, led by partners Michael Rubin and Stacey Leyton, were co-counsel for the public entities on the state court appeals and were lead counsel in opposing certiorari in the United States Supreme Court. The two cert petitions, raising First Amendment and Due Process challenges to California century-old public nuisance law, were supported by 11 amicus briefs. There were no dissents from the Supreme Court’s denial of certiorari.