California Supreme Court unanimously affirms interest arbitration for farmworkers against constitutional challenges in Gerawan Farming v. ALRB.

The California Supreme Court recognized that the main purpose of the 2002 amendments was to enable farmworkers who choose to be represented by a union to obtain the benefit of a collective bargaining agreement.  Although the ALRA was enacted in 1975 to provide farmworkers the right to organize and bargain, by the time of the 2002 amendments, approximately 60 percent of the bargaining units that voted for union representation had never been able to obtain an initial contract.  In the case before the Court, Gerawan Farming employees had elected the United Farm Workers of America as their representative in 1990, but Gerawan Farming had never agreed to a contract with the union.  In addition to rejecting Gerawan Farming’s constitutional challenges to the interest arbitration procedure, the California Supreme Court also rejected Gerawan Farming’s argument that it should be permitted to avoid referral to mediation and interest arbitration by asserting that the union had previously “abandoned” the bargaining unit.  In a related decision issued at the same time, Tri-Fanucchi Farms v. ALRB, the Court unanimously ruled that “abandonment” is not a defense to the employer’s duty to bargain in good faith under the ALRA with a certified union, and that the Agricultural Labor Relations Board did not abuse its discretion by awarding make-whole relief to workers whose employer refused to bargain on that ground.

Altshuler Berzon LLP was co-counsel in the Supreme Court for Real Party in Interest United Farm Workers of America in Gerawan Farming, along with co-counsel Martinez Aguilasocho & Lynch, APLC.


California Court of Appeal Affirms Trial Ruling that Lead Paint Manufacturers are Liable for Causing Public Nuisance

On November 14, 2017, the California Sixth District Court of Appeal affirmed in principal part a groundbreaking trial court ruling that three paint manufacturers – Conagra Grocery Products Company, NL Industries, Inc., and Sherwin-Williams Company – had created a “public nuisance” by marketing lead paint for interior residential use throughout the first half of the 20th century, despite having actual knowledge that exposure to lead resulted in critical health dangers, especially to children.  The trial court’s remedial order required the three companies to contribute $1.15 billion to an abatement fund that will be used to identify and clean up lead paint hazards in older-stock housing in counties across California.  The companies challenged that ruling on numerous grounds under state and federal law, which were almost uniformly rejected by the Court of Appeal in its 137-page decision.  Most notably, the Court of Appeal concluded that there was substantial evidence supporting the trial court’s finding that the lead paint companies knew of the hazards of using lead paint on housing interiors at the time that they marketed lead paint for that purpose.

Although the Court of Appeal narrowed the scope of the trial court’s ruling in one respect, ruling that the companies were liable only for housing built before 1951, most of the housing at issue was built before that date.

The Court of Appeal’s decision can be found here.

Altshuler Berzon LLP acted as Special Appellate Counsel on the appeal, working in conjunction with lead trial and appellate counsel from the Santa Clara County Counsel’s office.

Altshuler Berzon LLP files amicus brief on behalf of Service Employees International Union in Supreme Court First Amendment case

Altshuler Berzon, LLP filed an amicus brief today on behalf of the Service Employees International Union (“SEIU”) in the Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission.  The case arose when Respondents Charlie Craig and David Mullins sought to purchase a cake for their wedding from Petitioners Masterpiece Cakeshop, Ltd., a Colorado bakery, and its proprietor, Jack Phillips.  Phillips refused to serve Craig and Mullins, saying he would not make a wedding cake for a same-sex couple.  Respondent Colorado Civil Rights Commission determined that, in doing so, Masterpiece violated the state’s antidiscrimination law, which prohibits places of public accommodation (including bakeries) from denying service to customers on account of their sexual orientation.

In the Supreme Court, Masterpiece has argued that Phillips’ custom wedding cakes are either artistic “pure speech” or expressive conduct, and that it therefore has a First Amendment right to refuse to make custom cakes for LGBT weddings.  SEIU’s amicus brief, supporting Respondents, shows why Masterpiece’s dangerous and unfounded free speech arguments would require a radical expansion of First Amendment law, which, if accepted, would seriously threaten the states’ traditional prerogative to regulate conduct deemed harmful to society, including by enacting civil rights laws.  Specifically, the brief argues that the court should not abandon the doctrine that conduct is “expressive” only if reasonable observers would understand it to express an idea (and that providing a wedding cake would not be so understood), as well as the rule that laws aimed at conduct do not violate the First Amendment as long as they do not substantially interfere with the expressive elements of such conduct.  Because it is vitally important that the Court continue to recognize that the states may validly enact laws aimed at conduct, rather than speech, and that such laws do not violate the First Amendment even when they are applied to artists and other persons engaged in even unquestionably expressive activity (which baking a cake is not), SEIU’s amicus brief urges the Court to hew to its longstanding precedent and rule for Respondents in this case.

To read the full brief, click here.


C.D. Cal. Approves $13 Million Settlement of Privacy Class Actions Against HSBC

The U.S. District Court for the Central District of California today granted final approval to the settlement of three class action lawsuits alleging that HSBC and its representatives violated California’s Invasion of Privacy Act by recording their credit-card-related telephone phone calls to HSBC credit card account holders without the account holders’ knowledge or consent.  HSBC will pay a total of $13 million to resolve the CIPA claims asserted in Fanning v. HSBC Card Services, Inc., Lindgren v. HSBC Card Services, and Medeiros v. HSBC Card Services, Inc. 

In granting final settlement approval, the District Court found that the settlement amount negotiated by Altshuler Berzon LLP and its co-counsel was considerably greater than in comparable CIPA call-recording cases, and that the results achieved were particularly noteworthy considering the substantial litigation risks that counsel overcame in litigating the cases.  The court also noted that the structure of the Plan of Allocation ensured that individual recoveries for participating class members would be determined by the strength of their claims, including the number of times they were called and whether the recordings were confirmed by existing bank records – in which case settlement payments would be automatic, without the class member having to file any claim form to obtain a recovery.

Additional information about the cases and the settlement is available at


Google Sued in Class Action Alleging Sex Discrimination

Altshuler Berzon LLP, with co-counsel Lieff Cabraser Heimann & Bernstein LLP, filed a lawsuit in San Francisco Superior Court alleging that Google has engaged in systemic and pervasive pay and promotion discrimination against its female employees in California.  The lawsuit, Ellis v. Google Inc., filed by Kelly Ellis, Holly Pease, and Kelli Wisuri, accuses Google of paying women at all levels less than comparable men, assigning women to lower tiers and/or job ladders with lower compensation and/or upward mobility than those to which similar men are assigned, and promoting women slower and less frequently than their male counterparts.  Plaintiffs allege that Google has long known of these issues but has failed to correct them, causing substantial damage to its female workforce.

To read the full press release, click here.  To read the complaint, click here.

District Court Approves Settlement of Faculty Union Lawsuit Against Accrediting Agency

The U.S. District Court for the Northern District of California has approved the settlement of a lawsuit brought by the California Federation of Teachers and four of its affiliated local unions against the Accrediting Commission for Community & Junior Colleges (ACCJC).

The lawsuit, AFT Local 2121 v. Accrediting Commission for Community & Junior Colleges, stemmed from ACCJC’s 2013 decision to terminate the accreditation of City College of San Francisco, and challenged ACCJC’s City College decision and many of its accreditation practices as arbitrary and intrusive into the faculty unions’ collective bargaining relationships with California community colleges.  In January 2017, ACCJC restored City College to full accreditation status.  The settlement includes policy and standards changes – some of which ACCJC began to implement while the litigation was ongoing – which will increase ACCJC’s transparency and accountability, and avoid interference with the unions’ collective bargaining relationships.

Altshuler Berzon LLP, together with co-counsel, represented the California Federation of Teachers, the local unions, and five individual plaintiffs in the federal court litigation.

District Court Dismisses Chamber of Commerce Lawsuit Challenging Seattle Ordinance Permitting Collective Bargaining by Uber and Lyft Drivers

The United States District Court for the Western District of Washington today dismissed Chamber of Commerce et al. v. City of Seattle et al., a United States Chamber of Commerce lawsuit 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 new ordinance in January 2016, but delayed implementation while rules were developed.  The Chamber of Commerce filed suit in March 2017, asserting that Seattle’s ordinance was preempted by federal labor and antitrust law and various Washington laws.  The City moved to dismiss the Chamber’s complaint, and the District Court today granted the City’s motion.  The District Court concluded that the Chamber’s federal antitrust preemption theory failed because the ordinance was a valid exercise of Seattle’s delegated authority to regulate the for-hire and taxicab transportation industries and satisfied the requirement for “state action” antitrust immunity.  The District Court also rejected the Chamber’s National Labor Relations Act preemption theories, concluding that in excluding independent contractors from the NLRA, Congress had left the States free to regulate those workers’ labor relations.  Finally, the District Court concluded that the Chamber’s state law theories had no merit.

A preliminary injunction will remain in place while the ‎District Court considers the City’s motion to dismiss a related case asserting preemption and other theories.

Altshuler Berzon LLP, together with the Seattle City Attorney’s office, represents the City of Seattle in the litigation.

Daily Journal Names Vergara Decision Top Appellate Verdict of 2016

In its annual review of the largest and most significant verdicts and appellate reversals in California, The Daily Journal named Altshuler Berzon LLP’s victory in Vergara v. California as the top appellate reversal of 2016.

The plaintiffs in Vergara had sued the State of California, several state officials, and three school districts in 2012, alleging that five statutes that provide California public school teachers with certain job security protections after a two-year probationary period violated the equal protection provisions of the California Constitution by causing students to be assigned to “grossly ineffective teachers” in violation of their fundamental right to educational equality.  The California Teachers Association and the California Federation of Teachers, represented by Altshuler Berzon LLP, intervened to help the State defend the statutes’ constitutionality.

After an eight-week trial, the trial court invalidated all five statutes.  The Court of Appeal unanimously reversed, ordering judgment to be entered in favor of the State and the teacher union intervenors, and against the plaintiffs.  The Court of Appeal held that the plaintiffs’ equal protection theories were fundamentally flawed, and that the challenged statutes do not violate equal protection because the statutes do not require different treatment of any identifiable groups of students, do not cause any school district to hire, fire, or assign any particular teacher to any particular student, and do not result in disproportionate assignment of less effective teachers to low-income or minority students.  Plaintiffs filed a petition requesting that the California Supreme Court review the Court of Appeal’s decision, but the Supreme Court denied that petition on August 22, 2016.

Altshuler Berzon LLP partners Michael Rubin, Stacey Leyton, Eileen Goldsmith, and Casey Pitts principally handled the appeal for the teachers unions and were featured in The Daily Journal’s article on the Vergara victory.

District Court Rejects EPA’S Attempt to Avoid Federal Oversight of California Water Quality

In a victory for environmental groups seeking to protect healthy rivers and endangered species, the U.S. District Court for the Northern District of California today denied the U.S. Environmental Protection Agency’s (EPA) motion to dismiss a lawsuit alleging that it has failed to carry out its duty to enforce the Clean Water Act.

In Natural Resources Defense Council v. McCarthy, three environmental groups filed suit alleging that, since 2014, California’s State Water Resources Control Board (SWRCB) has waived water quality standards in the San Francisco Bay-Delta Estuary 14 separate times, causing severe damage to a fragile ecosystem providing habitat for dozens of endangered plants and animals, including several salmon species.  Their complaint, filed against the EPA, alleges that the EPA failed to carry out its mandatory duty under the Clean Water Act to review any revision to state water quality standards to ensure that the revised standards meet the minimum requirements of the Clean Water Act.  EPA filed a motion to dismiss the suit, arguing that the SWRCB’s waivers are not subject to federal oversight and do not qualify as revisions because they were temporary in duration.

The District Court ruled in Plaintiffs’ favor.  The Court explained that EPA has a clear statutory responsibility to review any revision to water quality standards and that EPA had failed to demonstrate that the waivers – although temporary in duration – do not effectively revise California’s water quality standards.

Altshuler Berzon LLP represents Natural Resources Defense Council (NRDC) in the litigation.

District Court Rejects Challenge to Law Prohibiting Unilateral Deductions from Worker Paychecks on Public Work

The U.S. District Court for the Central District of California today granted motions to dismiss challenges to California Senate Bill 954 (2016), which prohibits contractors on public work from unilaterally reducing workers’ wages by taking credit for payments to industry advancement funds.  Under Senate Bill 954, contractors may only take credit for industry advancement payments that are required by a collective bargaining agreement with the workers’ representative.

In ABC-Contractor Cooperation Committee v. Becerra, a contractor and an industry advancement fund alleged that Senate Bill 954 is preempted by the National Labor Relations Act and violates the First Amendment and Equal Protection Clause.  The District Court rejected the challenges, concluding that Congress did not intend to prevent the States from allowing minimum labor standards to be varied by collective bargaining agreements and that the California statute does not restrain free speech or impermissibly discriminate.

Altshuler Berzon LLP represented the State Building and Construction Trades Council of California in defending the law.