Altshuler Berzon LLP Partner Michael Rubin Featured in San Francisco Chronicle Article on COVID-19’s Impact on the Legal Profession

Partner Michael Rubin was featured in a May 15 San Francisco Chronicle article summarizing how law firms in the Bay and around the country are responding to the Coronavirus crisis:

“’My sense is that labor and employment practices, whether union-side or management, have plenty of clients in need of legal advice and representation,’ said Michael Rubin, a San Francisco attorney who represents workers. ‘Plaintiffs-side consumer lawyers don’t seem to have slowed down at all. Environmental issues are just as pressing as before.’”

The full article can be read here.

Altshuler Berzon LLP Wins Major Procedural Victories in Climate Change Cases

Judgment for Oil and Gas Company Defendants Reversed: No Basis for Federal Jurisdiction

In two sets of consolidated cases decided May 26, 2020, a Ninth Circuit panel held that California cities and counties represented by Altshuler Berzon LLP and Sher Edling LLP may continue to prosecute claims against several of the world’s largest privately owned oil and gas companies, including Chevron, Exxon Mobil, BP, and Royal Dutch Shell, for harms to public infrastructure resulting from climate-change-related global warming.

Press accounts may be found here and here.

In the first set of cases, brought by the City of Oakland and the City and County of San Francisco (and argued by Altshuler Berzon LLP partner Michael Rubin), the Ninth Circuit reversed the district court’s judgment against five oil and gas company defendants. Those cases had been removed from state court on seven jurisdictional grounds. The district court denied remand after concluding that although the cases were brought under California’s representative public nuisance law (Cal. Civil Code §3480, et seq.), they actually “arose under” federal common law for purposes of federal subject matter jurisdiction. The district court thus asserted subject matter jurisdiction, but it later dismissed the cases on the ground that the Clean Air Act “displaced” the applicable federal common law, leaving Oakland and San Francisco without any cause of action they could pursue in federal court.

The unanimous Ninth Circuit panel (Ikuta, J., with Christen and Lee, JJ.) reversed, holding that the district court erred in finding “arising under” jurisdiction because the state law tort claims pleaded by Oakland and San Francisco did not trigger application of the federal common law governing trans-boundary air pollution and because the Clean Air Act did not “completely preempt” state public nuisance law. The panel did not reach any of the other issues in the case but remanded the case to the district court to determine whether any remaining grounds for subject matter jurisdiction precluded remand.

The second set of cases, brought by the County of San Mateo and five other public entities against more than two dozen oil and gas company defendants, raised similar California state law tort claims. In those cases, the Ninth Circuit panel affirmed a different district court’s order remanding the cases to the state courts in which they had been filed. Construing the federal removal statute, 28 U.S.C. §1447(d), as prohibiting appellate review of any remand order except to the extent federal-officer jurisdiction or Civil Rights Act jurisdiction was an asserted basis for removal, the Ninth Circuit panel held that because the oil and gas company defendants failed to establish federal-officer jurisdiction (and did not allege Civil Rights Act jurisdiction), the cases must be remanded to state court without regard to any of the non-reviewable jurisdiction grounds alleged by those defendants.

Several Altshuler Berzon LLP attorneys worked on these cases, including B.J. Chisholm, Corinne Johnson, and Michael Rubin.

The cases are City of Oakland et al. v. BP PLC et al., __ F.3d __, 2020 WL 2703701 ( 9th Cir. May 26, 2020), and County of San Mateo et al. v. Chevron Corp. et al., __ F.3d __, 2020 WL 2703701 (9th Cir. May 26, 2020).

Court Approves Settlement for Delta’s California Ground Workers

On Thursday May 21, 2020, Judge Stephen Wilson of the U.S. District Court for the Central District of California granted final approval to the $ 3.5 million settlement in the Fan v Delta Airlines, Inc. wage and hour class action. The case arose out of Delta’s calculation of overtime for its non-exempt ground employees ( e.g., ticket counter personnel, gate personnel, and baggage handlers) in California since July 1, 2017. The suit, filed in March 2019, alleged that Delta should have included the following in the calculation of overtime: (a) profit sharing payments from a plan that did not appear to meet the requirements for an exemption; (b) imputed income from travel benefits; and (c) premium pay for missed meal and rest breaks. The plaintiffs also alleged that Delta’s calculation of their non-discretionary bonus should have been based on the time period when the bonus was earned, not on the later period when it was paid, and that Delta’s calculation of their premium pay improperly included vacation and holidays in the denominator.

The claims administrator will send checks to class members on June 11, 2020.

Court Prevents Trump Administration from Eliminating Important Fish Protections During May 2020

On May 11, 2020, the United States District Court for the Eastern District of California granted in part a preliminary injunction requested by fishing and environmental groups represented by Altshuler Berzon LLP in PCFFA v. Ross, E.D. Cal. Case No. 1:20-cv-00431-DAD-EPG.  

The Court ruled that the Trump administration’s new water project operations in California’s Delta, which include the elimination of an important protection for fish species, would cause irreparable harm to threatened Central Valley steelhead.  Specifically, the Court analyzed a measure called the San Joaquin River Inflow to Export ratio, which had been in place since 2009 but was eliminated by the Trump administration in 2019, and which had limited pumping and water exports out of the Delta in April and May, a time when juvenile salmon and steelhead migrate through the Delta and out to the Pacific Ocean.  Based on expert testimony and record evidence presented by plaintiffs, the Court determined that operating without this protective measure for the remainder of May 2020 would cause irreparable harm to the threatened steelhead population.

Having found that plaintiffs had established irreparable harm and serious questions on the merits of their claims, the Court ordered the Bureau of Reclamation to comply with the previously required Inflow to Export ratio protective measure for the remainder of May.

District Court Rejects Former Union Member’s Attempt to Rely on Janus to Claw Back Membership Dues

On May 8, 2020, the United States District Court for the Middle District of Pennsylvania in Molina v. SEIU Local 668 granted summary judgment in favor of the defendants on all remaining claims in the lawsuit, concluding that the Supreme Court’s decision in Janus v. AFSCME, Council 31, 138 S.Ct. 2448 (2018), does not apply to the relationship between a public employee union and its members.

The plaintiff in Molina contended that Janus entitled him to a refund of the union membership dues that he paid to SEIU Local 668 before resigning from the union, and that the union and the plaintiff’s former employer, defendant Lehigh County, had violated his due process rights by failing to establish adequate procedures for objecting to union membership.  The district court, however, held that the First Amendment principles set forth in Janus apply to individuals who are not union members, not voluntary union members like the plaintiff, and recognized that the plaintiff’s union membership agreement constituted a valid and enforceable contract between the union and the plaintiff.  The district court separately held that the plaintiff’s payment of union membership dues via payroll deduction did not involve the “state action” necessary to establish a federal civil rights claim, and that the plaintiff’s due process claim lacked merit.  In a prior July 2019 order, the district court had concluded that the plaintiff lacked standing to pursue his claims for prospective relief, and that his claim for a refund of money paid to the union after his resignation was moot.

Altshuler Berzon LLP represented union defendant SEIU Local 668 in the lawsuit.

Court Certifies Class of Thousands of Oracle Women Employees in Equal Pay Act Case: Jewett, et al. v. Oracle America, Inc.

On April 29, 2020, the San Mateo County Superior Court certified a class of over 3,000 women employees of Oracle who contend that they were systematically underpaid by Oracle as compared to men in violation of California’s Equal Pay Act.

The court rejected Oracle’s arguments that the work done by women and men in the same detailed job codes was not similar enough to warrant proceeding as a class, and concluded that a class action was justified by the evidence of Oracle’s common practices and was superior to requiring the affected women to bring their own individual claims.  The court also rejected Oracle’s attempts to exclude the testimony of the experts presented on behalf of the class, including a labor economist who analyzed Oracle’s detailed pay records and concluded that Oracle underpays women as compared to men in the same job codes by an average of $13,000 per year, and who determined that the likelihood of such a disparity occurring by chance is less than one in a billion.  The certified class encompasses women who were employed by Oracle in California in its Information Technology, Product Development, and Support Job Functions since 2013.

The Court’s class certification order entitles the women to join together in pursuing their claims to seek enjoin Oracle’s wrongful pay practices, and to recover the tens of millions of dollars in pay disparities imposed on the class.  Altshuler Berzon LLP is serving as class counsel along with the firm of Rudy, Exelrod, Zieff & Lowe, LLP. 

Copies of the court’s orders granting class certification, and denying Oracle’s motions to exclude the class’s experts, are attached here, here, and here.