In the midst of early voting for the Florida Presidential Preference Primary, which takes place on March 17, 2020, legal and community organizations are reminding voters and county representatives that Spanish-language ballots, signage, assistance and related materials are required in 32 Florida counties because of the U.S. District Court’s preliminary injunction order in Rivera Madera v. Lee. The preliminary injunction is a result of the August 2018 lawsuit filed by Altshuler Berzon LLP, LatinoJustice PRLDEF, Demos, and SEIU on behalf of civic engagement groups Faith in Florida, Hispanic Federation, Mi Familia Vota Education Fund, UnidosUS, and Vamos4PR, and individual voter Marta Rivera Madera, a Puerto Rican, Spanish-speaking voter.
On March 5, 2020, Altshuler Berzon LLP attorneys moved to preliminarily enjoin new water project operations and block environmental rollbacks adopted by the Trump Administration that will threaten the survival of multiple west coast fish species. Altshuler Berzon serves as lead counsel to a coalition of fishing groups (including the Pacific Coast Federation of Fishermen’s Associations and Golden State Salmon Association) and conservation groups (including NRDC, Defenders of Wildlife, and The Bay Institute). The new federal rollbacks are authorized by October 2019 Biological Opinions issued under the Endangered Species Act (ESA) by the National Marine Fisheries Service and US Fish and Wildlife Service and implement a campaign promise to loosen environmental rules made by Donald Trump in 2016 when he was campaigning for President in the San Joaquin Valley of California. The case is PCFFA v. Ross, N.D. Cal. Case No. 3:19-cv-07897-LB.
The motion for a preliminary injunction argues that the Biological Opinions are arbitrary, capricious and contrary to the ESA, and that if the US Bureau of Reclamation relies on them to increase its water diversions and water exports in California’s huge federal Central Valley Project, the result will be irreparable harm to winter run Chinook salmon and a number of other fish species that are already in dire shape. A hearing on the motion is scheduled for this spring. Numerous major water districts and irrigation interests have moved to intervene in the case on the side of the Trump Administration.
Largest ever wage theft settlement against McDonald’s also includes extensive injunctive relief
On March 4, 2020, the L.A. Superior Court granted preliminary approval to a pathbreaking class action settlement in Maria Sanchez, et al. v. McDonald’s Restaurants of California, Inc., et al., that provides $26 million and comprehensive injunctive relief to approximately 38,000 employees of McDonald’s corporate-owned restaurants throughout California.
Although the trial court had awarded only $55,000 in back wages after trial plus $770,000 in civil penalties, with no injunctive relief, Altshuler Berzon LLP attorneys were able to turn the case around while the case was pending on appeal, and negotiated a settlement that requires McDonald’s to:
- Pay $26 million plus all costs of settlement administration and notice;
- Create a mechanism for paying the one-hour wage premium required by California law to all crew members for each day McDonald’s fails to provide them a legally compliant, timely meal period or rest break;
- Permit crew members to leave the restaurants during their meal periods, including on overnight shifts, without restriction or threat of discipline;
- Maintain detailed electronic time records that accurately track the time and duration of each meal period and rest break;
- Provide additional uniforms to crew members whenever their McDonald’s uniforms become stained, greasy or worn out;
- No longer make workers take rest breaks at the start or end of their shifts rather than as close as practicable to the middle of those shifts; and
- Provide extensive training to managers and crew members about the changes required by the settlement agreement.
These provisions resolve each of the legal claims alleged in plaintiffs’ class action complaint, which was filed in 2013.
Under the settlement-approval schedule ordered by the Superior Court, class notice will be distributed to class members on April 15, 2020, and a final approval hearing is scheduled for August 6, 2020.
Altshuler Berzon LLP attorneys Michael Rubin, B.J. Chisholm, Matthew Murray, and Amanda Lynch are class counsel, along with co-counsel from Matern Law Group, PC and Cohen, Milstein, Sellers & Toll PLLC.
On February 24, 2020, the U.S. District Court for the Northern District of California certified a class of more than 200 former employees of defendant Microchip Technology Inc., who alleged that Microchip violated its fiduciary duties under ERISA by refusing to pay the severance it owed to class members whom Microchip fired without cause after completing its merger with their former employer, and further, by falsely asserting that the severance plan had “expired” six months earlier and by using those false assertions as a basis for inducing class members to release their ERISA benefits claims.
The district court’s class certification order entitles the class members to join together in pursuing their claims for unpaid severance benefits, to enjoin Microchip’s wrongfully obtained releases, and to recover as an “equitable surcharge” the profits that Microchip earned on the roughly $6 million that it withheld from the class members. Altshuler Berzon LLP is serving as class counsel along with the firms of McGuinn, Hillsman & Palefsky and the Law Offices of William B. Reilly.
On February 20, 2020, the Ninth Circuit Court of Appeals denied Wal-Mart’s petition for rehearing or rehearing en banc in Ridgeway v. Wal-Mart Stores, Inc., rejecting Wal-Mart’s latest attempt to overturn a $55 million California minimum wage judgment that Altshuler Berzon LLP helped defend on appeal. The Court’s order denying rehearing is here. For more information about this case, see here.
On February 5, 2020, Altshuler Berzon LLP partner Michael Rubin argued City of Oakland et al. v. BP LLC et al., No. 18-6663, before a Ninth Circuit three-judge panel. The consolidated cases, brought by the City of Oakland and the City and County of San Francisco against five of the largest private investor-owned oil and gas companies in the world, allege that defendants’ 50-year campaign of deceit and deception about the impacts of fossil-fuel combustion on global warming makes those companies liable under California law for their roles in creating the resulting public nuisance. The plaintiffs seek an order of equitable abatement that would require the companies to remediate the devastating impacts of climate change on local public infrastructure.
The district court had dismissed the consolidated cases on the merits, after having denied the cities’ motions to remand the cases to the state courts in which they were originally filed. The district court also dismissed four of the five defendants on personal jurisdiction grounds. As a result, the oral argument encompassed three issues: (1) whether the district court had subject matter jurisdiction, under federal common law or otherwise, over the removed cases; (2) whether the cities’ complaints stated a claim for relief under state public nuisance law or federal common law; and (3) whether the district court could exercise personal jurisdiction over the out-of-state defendants based on allegations that they “purposefully directed” their tortious conduct against California.
Altshuler Berzon LLP attorneys Michael Rubin, BJ Chisholm, Corrine Johnson, and Rebecca Lee have been co-counseling these cases and other climate-change cases pending in state and federal courts throughout the country, with city and county attorneys on behalf of their respective jurisdictions and with co-counsel from Sher Edling.
On January 24, 2020 the U.S. District Court for the Northern District of California granted final approval of a $13 million dollar settlement to benefit low-income consumers in California who alleged they were overcharged in violation of California’s Karnette Act when purchasing appliances and other household items from defendant Rent-a-Center. The settlement requires Rent-A-Center to pay class members an amount that its own experts calculated would amount to more than 100 cents on the dollar, and also enjoins Rent-a-Center from continuing its challenged practices and from imposing mandatory arbitration agreements on customers that strip them of their right to pursue public injunctions in future cases.
The District Court’s final approval order specially noted that counsel for the class “deserves credit for . . . the hard work they’ve done in achieving an excellent outcome for the class,” including for taking “a chance by basing part of their claim on an untested statute whose application was unclear,” and specifically commended Altshuler Berzon LLP partner Michael Rubin for his “excellent work” on behalf of the class. Altshuler Berzon LLP served as class counsel along with the San Diego law firm of Dostart Hannick & Coveney.
In a series of settlements negotiated by Altshuler Berzon LLP and its co-counsel, prominent retailers including CVS, Walgreens, and Rite Aid, and national banking institutions JPMorgan Chase and Bank of America have agreed to provide seats to all of their cashiers and tellers and to pay tens of millions of dollars in civil penalties.
The settlements, which have now received final court approval, arose in separate lawsuits filed under California’s “suitable seating” law (Wage Order §14) and the California Labor Code Private Attorneys General Act (PAGA), which allows aggrieved workers to file a private right of action civil penalties on behalf of the State of California against employers that have committed Labor Code violations. The key provision of the seating law requires California employers to provide seats to all employees “when the nature of their work reasonably permits the use of a seat.”
Of the tens of millions of dollars recovered in these cases, 25% has been allocated to the aggrieved workers and 75% was paid to the State Labor and Workforce Development Agency to be specially earmarked for future Labor Code enforcement and education – the allocation scheme required by PAGA.
In 2019, as a result of these and other PAGA cases (including other seating cases in which Altshuler Berzon was co-counsel), the LWDA received more than $88 million in PAGA civil penalties.
January 2020 started off with a bang for Altshuler Berzon LLP partner Michael Rubin, who had back-to-back arguments in the Ninth Circuit on January 6 and 8, 2020 in San Francisco.
The first case up was Canela v. Costco, a case of first impression under the federal Class Action Fairness Act (CAFA) and California’s Labor Code Private Attorney General Act (PAGA) – a state statute that provides a private right of action to employees in California, authorizing them to sue as agents of the State Labor and Workforce Development Agency for civil penalties against an employer that allegedly violated plaintiff’s and other aggrieved employees’ rights under the California Labor Code. The appeal raised several questions, including whether a PAGA representative action filed in state court can ever be removed to federal court under CAFA, and whether, if a PAGA claim is litigated in federal court, the plaintiff must satisfy all requirements of Rule 23 of the Federal Rules of Civil Procedure before being permitted to seek civil penalties based on violations committed against other aggrieved employees.
Two days later, in the same courtroom of the James R. Browning Court of Appeals building and before two of the same judges, Rubin argued Johnson v. Serenity Transportation, a Rule 23(f) appeal concerning the construction and application of California Labor Code §2810.3. That statute, which the California Legislature enacted to overcome the difficulties faced by many workers under existing “joint-employer” liability standards, imposes strict liability on “client employers” for Labor Code wage violations committed by those companies’ “labor contractors.” In Serenity Transportation, the ultimate issue – another question of first impression – is whether Section 2810.3 applies in circumstances where the labor contractor provides workers to more than one client employer at the same time – in this case, by requiring those workers to be on-call, or “engaged to wait,” while awaiting dispatch to one of the labor contractor’s clients. Because the appeal arose in the context of a district court’s denial of class certification (based on the court’s legal conclusion that Section 2810.3 does not apply in that situation), a threshold issue in the appeal is whether, or under what circumstances, a district court has authority to deny certification based upon a legal determination that plaintiffs’ claim lacks merit – even if that merits question is common to the class as a whole.
Both cases are currently under submission by the Ninth Circuit.
On January 7, 2020, the U.S. District Court of the Southern District of California granted a motion to dismiss federal antitrust, RICO, and labor law claims, as well as state law claims, brought by a hotel developer against UNITE HERE! Local 30, the San Diego County Building and Construction Trades Council, and those unions’ leaders. The hotel developer alleged that the unions and union officials had engaged in unlawful conduct designed to coerce the hotel developer to agree to a card check neutrality agreement and project labor agreement, including by opposing and threatening to file environmental challenges to the proposed hotel redevelopment plan. The court dismissed the hotel developer’s claims on the grounds that the supposedly unlawful activity was all petitioning activity protected by the First Amendment under the Noerr-Pennington doctrine. Altshuler Berzon represented defendants San Diego County Building and Construction Trades Council and Tom Lemmon. The other defendants were represented by McCracken, Stemerman & Holsberry LLP.
You can read the Court’s Order here.