Altshuler Berzon LLP files motion for preliminary injunction against The Salvation Army challenging policy prohibiting access to medication for opioid use disorder at Adult Rehabilitation Centers

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On May 5, 2023, Altshuler Berzon LLP, together with Justice Catalyst Law, filed motions for a preliminary injunction and provisional class certification in the District of Massachusetts federal court in Tassinari v. The Salvation Army, No. 1:21-cv-10806 (D. Mass.). The motions filed today seek an order prohibiting The Salvation Army from enforcing its current categorical ban on access to prescribed methadone and buprenorphine medications for opioid use disorder (MOUD) as to individuals with opioid use disorder who participate in, apply to, or inquire about access to housing or services at any of The Salvation Army’s 29 Adult Rehabilitation Centers (ARCs) in the northeastern United States. The lawsuit alleges that The Salvation Army’s categorical policy prohibiting access to these standard-of-care life-saving medications for people with opioid use disorder at its ARCs constitutes unlawful disability discrimination in violation of Section 504 of the Rehabilitation Act and the Fair Housing Act. The motions seek relief to prevent irreparable harm to people with opioid use disorder in the midst of the current national opioid epidemic, by removing barriers to their access to housing, services, and critical medication.

The operative Second Amended Complaint can be found here. Plaintiffs’ motions for a preliminary injunction and for provisional class certification can be found here and here. Plaintiffs’ proposed combined brief in support of both motions can be found here.

Altshuler Berzon LLP files class action lawsuit against USC alleging that USC misled students about its online Master of Social Work program

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On May 4, 2023, Altshuler Berzon LLP, together with The Project on Predatory Student Lending (PPSL), filed a class action lawsuit in Los Angeles Superior Court alleging that the University of Southern California (USC) deceives students into enrolling in its online Master of Social Work (MSW) program.  The lawsuit alleges that, among other things, USC misrepresents to students that its online MSW program is exactly the same as USC’s long-standing and well-respected on-campus MSW program (apart from format), and it charges students the same high price (until recently, more than $100,000) for the online MSW program and the on-campus program.  But they are not at all the same:  The complaint alleges that online MSW students have different and inferior faculty, course offerings and content, field placements, academic advising, and career services.  It also alleges that USC outsources much of the online program to a for-profit education company, 2U, Inc., and that USC uses aggressive and predatory tactics, including racial targeting, to enroll students in the inferior online MSW program.

The lawsuit alleges violations of California’s Unruh Civil Rights Act, Consumer Legal Remedies Act, False Advertising Law, Unfair Competition Law, and the common law prohibition of unjust enrichment.  Plaintiffs were students in the online MSW program and, on behalf of themselves and all others similarly situated, seek damages, restitution, and injunctive relief to prevent USC from continuing to deceive and target students, and to make former and current students whole.

The complaint can be found here, and further information about the case is available here.

Altshuler Berzon LLP files nationwide class action lawsuit against Aetna alleging fertility policies discriminate against LGBTQ people

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On April 17, 2023, Altshuler Berzon LLP, together with Liu Peterson-Fisher LLP and the National Women’s Law Center (NWLC), filed a class action lawsuit in the U.S. District Court for the Northern District of California alleging that Aetna’s policies discriminate against LGBTQ people who seek to get pregnant using fertility treatments. The lawsuit alleges that Aetna’s discriminatory infertility policy requires LGBTQ people who wish to become pregnant to pay more and wait longer before accessing the fertility benefits covered by their Aetna health plans, compared to those in heterosexual relationships. Aetna makes fertility treatments readily accessible to plan members in heterosexual relationships who seek them but requires LGBTQ plan members who wish to have children with their partners to submit proof that they have undergone six or 12 cycles (depending on age) of arduous and expensive artificial insemination treatments – among the very fertility treatments for which they seek coverage – before they can access the fertility benefits included in their health plans.

The lawsuit alleges that Aetna’s infertility policy violates Section 1557 of the Affordable Care Act, which prohibits discrimination in health care based on sex, including sexual orientation and gender identity. Plaintiff Mara Berton brings this class action on behalf of others similarly situated, seeking damages for LGBTQ Californians harmed by Aetna’s discriminatory policy, as well as nationwide injunctive relief enjoining Aetna’s discriminatory policy once and for all.

The complaint can be found here, and further information about the case is available here.

California Court of Appeal Holds Tesla Workers Not Required to Arbitrate Classwide Claims for Race Discrimination and Harassment; California Supreme Court Denies Review

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On January 4, 2023, the California Court of Appeal rejected Tesla’s attempts to require a putative class of current and former Black workers employed in its Fremont, California manufacturing plant to arbitrate most of their race discrimination and harassment claims. The workers allege that Tesla is liable for years of severe and pervasive racial discrimination and harassment committed against Black workers and contractors by Tesla supervisors, employees, and others under Tesla’s control and direction.

Affirming the trial court in full, the Court of Appeal held that the plaintiffs and class members who were initially hired by a staffing agency to work at the Tesla plant, before becoming direct employees of Tesla, were not required to arbitrate any portion of their claims that arose before they became directly employed by Tesla. The Court also held that Tesla’s arbitration agreement was invalid and unenforceable to the extent it prohibited the plaintiffs and class members from pursing public injunctive relief in any forum, thereby entitling plaintiffs to pursue their claims for public injunctive relief in court. As the Court concluded, the workers’ request for an injunction preventing further discrimination under the Fair Employment and Housing Act was a request for public injunctive relief because such “invidious discrimination harms the public at large, including individuals lacking any direct connection to the workplace involved.” Vaughn v. Tesla, Inc., 87 Cal.App.5th 208, 232 (2023).

The Court of Appeal also rejected Tesla’s argument that the Federal Arbitration Act, as interpreted in Viking River Cruises v. Moriana, 142 S.Ct. 1906 (2022), preempts the California rule prohibiting contractual waivers of the right to seek a public injunction.

On April 12, 2023, the California Supreme Court denied Tesla’s petition for review of the Court of Appeal’s opinion, setting the stage for the workers’ claims to proceed on their merits in Alameda County Superior Court.

Altshuler Berzon LLP served as lead counsel for the plaintiffs on appeal; the plaintiffs are also represented by the Bryan Schwartz Law Group and California Civil Rights Law Group.

Altshuler Berzon LLP Files Amicus Brief in U.S. Supreme Court on Labor Preemption Issues.

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On Thursday, December 8, 2022, a group of scholars of administrative law, constitutional law, and federal courts filed an amicus curiae brief in the United States Supreme Court in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174, No. 21-1449. In this case, Glacier Northwest claimed that the Teamsters’ strike resulted in harm to Glacier’s concrete. The Washington Supreme Court held that the National Labor Relations Board first had to decide whether the strike was protected conduct before the state courts could hear Glacier’s claims, if they could hear the claims at all. The amicus brief explains that the “primary jurisdiction” doctrine underlying the Washington Supreme Court’s decision—that Congress has designed certain regulatory schemes, including the National Labor Relations Act, to be administered uniformly by expert agencies—has effectively allocated responsibility among courts and agencies for more than a century.

The amicus brief can be found here.

Altshuler Berzon LLP is counsel of record for the professors as amici curiae.

Altshuler Berzon LLP Counsel Push Back Against Tesla’s Motion for a New Liability Trial in Action for Racial Harassment and Negligent Supervision

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Dispute Tesla’s Reliance on 91-Year-Old Supreme Court Decision as Requiring Complete Retrial

Nov. 4, 2022 – On behalf of plaintiff Owen Diaz, a former employee of Tesla at its automobile manufacturing facility in Freemont, California, Altshuler Berzon LLP today filed a brief in the Northern District of California opposing Tesla’s efforts to obtain a retrial of a unanimous jury verdict that found Tesla liable under 42 U.S.C. §1981 and California state law for repeated, egregious episodes of racial harassment and for negligent supervision of its own supervisors and of Mr. Diaz’s co-workers.

After the first trial, the federal court jury found Tesla liable on both claims for relief and awarded $6.9 million compensatory damages and $130 million in punitive damages. In response to Tesla’s post-trial motion for judgment as a matter of law or, alternatively, a new trial, the federal district court concluded that the evidence amply supported the jury’s liability findings but offered Mr. Diaz the choice between accepting a reduction in damages to $15 million or a new trial limited to compensatory and punitive damages only. Mr. Diaz accepted the damages-only retrial.

Months later, Tesla filed a motion arguing that a retrial limited to damages only would violate its Seventh Amendment right to jury under Gasoline Prods. Co., Inc. v. Champlin Refining Co., 283 U.S. 494, 500 (1931), and that any retrial, to be fair, would have to include all liability issues as well.

Opposing that motion, Altshuler Berzon LLP attorneys, who have been assisting the trial team led by Bernard Alexander and Larry Organ in all post-trial and appellate matters, argued that Tesla long ago waived any right to argue against a damages-only retrial and that, in any event, Gasoline Products did not entitle Tesla to a complete retrial. Plaintiff’s brief demonstrated that Tesla had a full and fair opportunity to assert these arguments earlier but instead argued that if the district court found sufficient evidence to support the jury’s liability verdict, it should order a damages-only retrial. Plaintiff also demonstrated in detail why the court’s limited retrial order was well within its discretion and would not violate Tesla’s rights, constitutional or otherwise, whereas ordering a complete retrial at this stage would deprive Mr. Diaz of his rights to a fair trial, due process, and trial by jury.

The motion is set to be argued on December 7, 2022.

Court Grants Final Approval to Settlement of Pay Equity Class Action Against Google Providing $118 Million in Class Monetary Relief and Comprehensive Injunctive Relief

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On October 25, 2022, San Francisco Superior Judge Andrew Y.S. Cheng granted final approval to the settlement and consent decree in the pay equity class action against Google in Ellis v. Google LLC.  The settlement covers approximately 17,200 female employees in 236 job titles (“covered positions”) in California since September 14, 2013.  The class members challenged Google’s practices of paying women less than men in the same job codes and assigning women to lower-paying salary levels than men with similar education and experience based on women’s lower pay at previous employers.

Under the settlement, Google will pay $118 million in monetary relief and provide three years of injunctive relief.  As part of the injunctive relief, Google will retain an expert in Industrial Organizations psychology to improve its leveling process so that it does not rely on prior pay in setting salary levels and instead focuses on education, experience, and skills. Google will also retain a labor economist to ensure that persons who perform substantially similar work are paid the same.

Altshuler Berzon LLP and Lieff Cabraser Heimann & Bernstein, LLP serve as Class Counsel. 

S.F. Judge Remands Oakland and San Francisco Climate-Deception Cases

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Vacates Prior Dismissal of Four Defendants on Personal Jurisdiction Grounds

Oct. 24, 2022 – After five years of procedural wrangling at all three levels of the federal court system, Judge William Alsup of the U.S. District Court for the Northern District of California today remanded to state court two “climate-deception” cases, which were filed in 2017 by the City of Oakland and City and County of San Francisco. Judge Alsup also vacated his 2019 order dismissing four of the five oil-and-gas-company defendants on personal jurisdiction grounds, to enable the parties to litigate in state court on a “clean slate.”

Altshuler Berzon LLP, along with co-counsel from Sher Edling and the Oakland and San Francisco City Attorneys’ offices, are counsel for the public entity plaintiffs, suing on behalf of the People of the State of California.

The underlying lawsuits pleaded a single cause of action for public nuisance against five of the country’s largest energy companies, alleging that the defendants had undertaken a half-century long campaign to promote disinformation and discredit scientific evidence about the impacts of fossil fuel combustion on global warming. In 2019, Judge Alsup denied the People’s motions to remand the cases to state court, dismissed the four non-California-based defendants on personal jurisdiction grounds, and dismissed the People’s remaining claims for failure to state a claim under “federal common law.” The Ninth Circuit reversed and the Supreme Court denied certiorari. On remand, and in light of appellate decisions by the Ninth Circuit and other circuits in several related cases, Judge Alsup agreed with the People that these cases belong in state court, where they were initially filed, and that in the absence of federal subject matter jurisdiction, it is best for the state courts, not the federal court, to decide the personal jurisdiction issues in the first instance.

The remand order has been stayed pending the defendants’ threatened further appeal to the Ninth Circuit and those same defendants’ recently filed certiorari petitions in other related climate-deception cases that the federal appellate courts also remanded.

Altshuler Berzon LLP Attorneys Urge State Courts to Reject U.S. Supreme Court’s Mistaken Understanding of State Law Issues in Viking River Cruises v. Moriana

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Briefing on Remand to State Court Highlights Errors in Supreme Court Majority’s Analysis

Oct. 20, 2022 – Hoping to transform an 8-1 initial loss in the Supreme Court into a complete victory in the state courts, Altshuler Berzon LLP and its co-counsel today urged the California Court of Appeal on remand from in Viking River Cruises, Inc. v. Moriana, 142 S.Ct. 1906 (2022), to reject the Supreme Court majority’s holdings on two critical issues of state law. If plaintiff succeeds, the result will be a far-reaching victory not only for plaintiff Angie Moriana and the rest of Viking’s commissioned salespeople in California, but for workers throughout the State.

In Viking River Cruises, the Supreme Court began by rejecting each of the employers’ principal arguments, thereby upholding against Federal Arbitration Act (“FAA”) preemption challenge the California rule invalidating clauses in arbitration agreements that prohibit workers from pursuing statutory claims under California’s Labor Code Private Attorneys General Act (“PAGA”). Instead of ending there, however, the Supreme Court went on to decide two exclusively state law issue: (1) construing the severability clause in the arbitration agreement as requiring plaintiff to split her PAGA claim in two, pursuing her claim for “individual” relief in arbitration and her claim for “non-individual” relief in court; and (2) declaring that once the PAGA plaintiff was compelled to arbitrate her “individual” PAGA claim, she lost standing to litigate the remaining “non-individual” component of that claim in court.

Plaintiff’s brief on remand to the Court of Appeal pointed out that if the Supreme Court’s ruling were right, the arbitration agreement would be unenforceable because its effect would be to strip plaintiff or her right to pursue the most significant, “non-individual” component of her PAGA claim—in violation of the very California rule that the Court had upheld against FAA-preemption challenge. Plaintiff then pointed out that the Court’s ruling was not right, both because the arbitration agreement could not fairly be construed as requiring plaintiff to arbitrate any portion of her PAGA claim and, even if it did, the California Supreme Court’s unanimous decision in Kim v. Reins International California, Inc., 9 Cal.5th 73 (2020), established that PAGA standing has only two requirements: that plaintiff be an “employee” who was “aggrieved” by a Labor Code violation committed by her employer, and that plaintiff satisfied those requirements whether her PAGA action proceeded in one forum or two.

Oral argument has not yet been scheduled.

Altshuler Berzon LLP Attorney Matthew Murray Argues in Alaska Supreme Court

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On October 13, 2022, Altshuler Berzon LLP partner Matthew Murray presented oral argument before the Alaska Supreme Court on behalf of the Alaska State Employees Association (ASEA) in State of Alaska v. ASEA. The case involves a challenge to the Alaska executive branch’s announcement in 2019 that the State would stop honoring public employees’ voluntary union membership and dues deduction authorization agreements. The Anchorage Superior Court granted a temporary restraining order and preliminary injunction against the State’s plans, and subsequently granted summary judgment to the union, holding that the State and members of the executive branch had breached the State’s contract with ASEA and the accompanying covenant of good faith and fair dealing, and had violated multiple provisions of Alaska’s Public Employee Relations Act (PERA) and Administrative Procedures Act (APA). The court also rejected the State’s argument that it was required to violate state law by the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME Council 31. The State appealed to the Alaska Supreme Court.

News coverage of the argument is available here.

Video of the argument is available here.

ASEA’s brief before the Alaska Supreme Court is here.