United States Supreme Court Denies Review of $409 Million Abatement Order Against Lead Paint Manufacturers

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.

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

The Daily Journal on September 19, 2018 named Altshuler Berzon LLP partner Michael Rubin one of the Top 100 Lawyers in the State of California, for the second year in a row.  Emphasizing Altshuler Berzon’s public policy and public interest work on behalf of low-income workers and consumers, the Daily Journal’s article discussed several of Rubin’s recent victories and pending cases in which the firm’s attorneys have developed new legal strategies “to ensure the protection of existing rights that are being stripped away by employers or companies.”

Court Orders Preliminary Injunction under Voting Rights Act to Protect Rights of Spanish-Speaking Puerto Ricans across 32 Florida Counties

On September 7, 2018, the federal court for the Northern District of Florida issued a preliminary injunction requiring Florida’s Secretary of State to direct the Supervisors of Elections in 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.

Section 4(e) of the Voting Rights Act prohibits states from denying the right to vote of Puerto Rican-educated American citizens based on their inability to speak, read, or understand English.  The Puerto Rican community surged in Florida following the devastation of Hurricane Maria in September 2017, but many Florida counties still run English-only elections.  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.

In granting a preliminary injunction, the court held that continuing to conduct English-only elections in counties that are home to Spanish-speaking Puerto Ricans clearly violates the Voting Rights Act.  As the Court explained:  “Puerto Ricans are American citizens.  Unique among Americans, they are not educated primarily in English-and do not need to be.  But, like all American citizens, they possess the fundamental right to vote.  The issue in this case is whether Florida officials, consistent with longstanding federal law, must provide assistance to Puerto Rican voters who wish to vote.  Under the plain language of the Voting Rights Act, they must.”  The Court also held that absent such assistance, those voters “would face the false decision to vote in a manner they do not meaningfully comprehend or not vote at all,” which “is antithetical to what our democratic government stands for.”

You can read the Preliminary Injunction Order here.

You can read more about the case here and here.

Litigation Filed Seeking Bilingual Elections in 32 Florida Counties

On August 16, 2018, Altshuler Berzon LLP, along with co-counsel at Demos, LatinoJustice PRLDEF, and SEIU, filed a complaint in the federal district court for the Northern District of Florida challenging the failure of the Florida Secretary of State and 32 County Supervisors of Elections to provide Spanish-speaking Puerto Ricans bilingual ballots, election materials, and assistance, in violation of Section 4(e) of the Voting Rights Act of 1965.  The complaint was filed on behalf of Marta Valentina Rivera Madera, who moved to Florida following Hurricane Maria, a class of more than 30,000 similarly-situated Spanish-speaking Puerto Ricans in the 32 counties, and the civic engagement organizations Faith in Florida, Hispanic Federation, Mi Familia Vota Education Fund, UnidosUS, and Vamos4PR.  The case is Marta Valentina Rivera Madera, et al. v. Ken Detzner, et al., N.D. Fla. Case No. 1:18-cv-00152.

Section 4(e) of the Voting Rights Act prohibits states from denying the right to vote of Puerto Rican-educated American citizens based on their inability to speak, read, or understand English.  The Puerto Rican community surged in Florida following the devastation of Hurricane Maria in September 2017, but many Florida counties still run English-only elections.  Courts have held that Section 4(e) requires the provision of Spanish-language ballots, registration and informational materials, and bilingual assistance to protect the rights of Puerto Ricans living stateside to be able to cast an informed and effective vote.

Along with the complaint, plaintiffs filed a motion for a preliminary injunction seeking relief by September 14, 2018, to provide time to translate ballots and other materials and hire bilingual poll workers before the November 6, 2018 general election.  Plaintiffs also filed motions for certification of a plaintiff class of more than 30,000 affected Puerto Ricans in the 32 counties, and for certification of a defendant class of the Supervisors of Elections of those 32 counties.

You can read the following pleadings here:


Motion for Preliminary Injunction

Motion for Plaintiff Class Certification

Motion for Defendant Class Certification

Court Approves $115 Million Settlement of Data Breach Class Action Lawsuit Against Anthem Blue Cross/Blue Shield

A federal district court in San Jose on August 15, 2018 granted final approval of a landmark $115 million settlement to benefit consumers whose personal information was hacked from Anthem Blue Cross/Blue Shield insurance companies in early 2015, believed to be the largest settlement in a consumer data breach case.  In addition to the $115 million fund, Anthem has agreed to institute extensive additional security measures, including nearly tripling its annual spending on data security for the next three years and implementing a series of cybersecurity controls recommended by Plaintiffs’ cybersecurity experts.  The settlement fund will be used to purchase credit monitoring for class members to protect themselves from potential misuse of their personal information going forward, or alternative cash payments for class members who already have credit monitoring.  The fund will also reimburse class members who incurred out-of-pocket costs as a result of the data breach, up to $10,000 each.  Fraud resolution services are available for all class members.  The Court found that “Class Counsel achieved an impressive benefit for the Class.”  Altshuler Berzon LLP served as court-appointed co-lead counsel in the case.

To read the order approving the settlement, click here. For more information about the settlement, go to www.databreach-settlement.com.

California Supreme Court Denies Review of Monsanto’s Challenge to the Listing of Glyphosate, the Roundup Chemical, as Known to the State of California to Cause Cancer Under Proposition 65

On August 15, 2018, the California Supreme Court denied review of the Fifth District Court of Appeal’s decision upholding the listing of the primary chemical in Roundup weed killer, glyphosate, as a chemical known to the State of California to cause cancer under the Safe Drinking Water and Toxic Enforcement Act of 1986, known as Proposition 65.  Monsanto, the manufacturer of Roundup, challenged the listing as unconstitutional, claiming that the statutory provision relying on the expertise of international cancer experts violated the California Constitution by unlawfully delegating legislative functions outside the State, among other arguments. The Court of Appeal rejected these challenges, applying well-established doctrine.  Monsanto asked the California Supreme Court to review that decision, claiming that  the decision raised issues of statewide importance regarding good governance.  The California Supreme Court voted to deny the petition for review, ending this challenge, and leaving the listing in place.

Altshuler Berzon attorneys represented the United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC, and Environmental Law Foundation, organizations that intervened in the case along with other environmental groups to assist the State in defending its action listing this chemical as known to the state to cause cancer.

You can read the Fifth District Court of Appeal’s decision here.

Eighth Circuit Rejects Challenge to Collective Bargaining for Minnesota Homecare Workers

The U.S. Court of Appeals for the Eighth Circuit on August 14, 2018 rejected a constitutional challenge to Minnesota statutes that permit homecare workers paid by the State to democratically elect a union representative for collective bargaining over the terms of their employment.  Similar challenges have been rejected by the First, Second, and Seventh Circuits.

Altshuler Berzon LLP represented SEIU Healthcare Minnesota in defending the state law.

You can read the Eighth Circuit’s decision here.

Ninth Circuit Affirms the Dismissal of Lawsuit Challenging Seattle Ordinance Permitting Collective Bargaining by Uber and Lyft Drivers

On August 9, 2018, the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of Clark et al. v. City of Seattle et al., one of two lawsuits challenging a Seattle ordinance that establishes a process for independent contractor drivers who contract with for-hire and taxicab transportation companies, including companies like Uber and Lyft, to collectively organize and negotiate with the transportation company over the terms and conditions of their contractual relationships.

The City adopted the ordinance in January 2016.  This lawsuit was filed in March 2017, asserting that Seattle’s ordinance is preempted by federal labor law, violates the First Amendment, and requires disclosures in violation of the federal Drivers’ Privacy Protection Act.  The Ninth Circuit affirmed the dismissal of plaintiffs’ claims as unripe because no entity has yet been designated under the ordinance to represent any drivers and plaintiffs had failed to allege that any conduct prohibited by federal labor laws had occurred.  A separate case challenging the ordinance brought by the United States Chamber of Commerce remains pending.

Altshuler Berzon LLP, together with the Seattle City Attorney’s office, represents the City of Seattle in the litigation.  Altshuler Berzon partner P. Casey Pitts argued the case before the Ninth Circuit.

You can read the Ninth Circuit’s decision here.

Federal Court Rules Voters May Not Be Purged from Registration Rolls in Violation of National Voter Registration Act

On August 7, 2018, the United States District Court for the Middle District of North Carolina issued a major voting rights decision, ruling that the National Voter Registration Act (“NVRA”) prohibits the use of North Carolina statutes to (1) remove voters from the registration rolls based on a supposed change of address without following the NVRA’s required process, which involves a statutorily prescribed notice and a waiting period of at least two federal elections, and/or (2) remove voters for any reason within 90 days of a federal election unless based on individualized information.  This ruling will protect North Carolina voters from purges that have occurred in the past, when county boards of elections have improperly used these state processes to remove thousands of voters from the registration rolls based on mass challenges by “voter integrity” groups.

This case arose when the NAACP learned, shortly before the November 2016 election, that thousands of voters had been purged in at least three counties through mass challenges filed by private parties based solely on a single piece of mail sent to the voters that had been returned as undeliverable.  In many cases, the voters had not changed their residence or had simply moved to a different residence within the same county and thus remained eligible to vote.  County boards of elections nonetheless purged challenged voters unless they appeared at a hearing in person or submitted affidavits to defend their eligibility to vote.  In November 2016, within a week of the filing of the case, the court granted a preliminary injunction requiring the State Board of Elections and three North Carolina counties to restore the voter registrations of approximately 4,000 individuals whose registrations had been cancelled in the final weeks and months before the election.

Altshuler Berzon LLP, along with co-counsel, represents the plaintiffs, which include the North Carolina State Conference of the NAACP, the Moore County Branch of the NAACP, and individuals whose eligibility to vote had been challenged.

A copy of the court’s decision is available here.

Ninth Circuit Rejects Challenge to California’s SB 954

On July 30, 2018, the Ninth Circuit issued a unanimous opinion in Interpipe Contracting, Inc. v. Becerra, Ninth Circuit Case No. 17-55248, rejecting several legal challenges to California Senate Bill 954, which amended California’s prevailing wage law to clarify that public works contractors may only take credit against the prevailing wage requirement for contributions made to industry advancement programs when those contributions are made pursuant to a collective bargaining agreement, thereby ensuring that construction workers’ wages are not diverted without their consent.  The challengers, one of whom was represented on appeal by Pacific Legal Foundation, had argued that SB 954 was preempted by the National Labor Relations Act and also violated the First Amendment.  The Ninth Circuit, in a published opinion written by Judge Callahan, rejected both arguments, recognizing that SB 954 simply closed a loophole in prior law that some contractors were using to appropriate their employees’ wages without consent, and did not implicate any First Amendment concerns.  Altshuler Berzon attorneys represented the State Building and Construction Trades Council of California as amicus curiae in the case.

You can read the Ninth Circuit’s decision here.