Altshuler Berzon LLP Continues Its Winning Streak in Litigation Arising from the Supreme Court’s Decision in Janus v. AFSCME, Council 31 (2018).

Durst v. Oregon

On March 31, 2020, the District of Oregon granted summary judgment in Durst v. Oregon Education Association, et al. to the Oregon Education Association and its affiliates represented by Altshuler Berzon LLP.  The court rejected the claims of three former union members that their First Amendment rights were violated when their employers deducted union membership dues that the plaintiffs themselves had agreed to pay in exchange for union membership rights and benefits.  The court recognized that its decision was consistent with every other federal court that has addressed similar post-Janus claims challenging voluntary union membership dues deductions, including in many other cases litigated by Altshuler Berzon LLP.  The decision can be found here.

Chambers v. AFSCME, et al.

On March 31, 2020, the District of Oregon granted summary judgment to the defendant unions in Chambers v. AFSCME, et al., rejecting the plaintiffs’ attempts to recover fair-share fees that they had paid to cover the costs of collective bargaining, in accordance with then-valid state law and binding Supreme Court precedent before the Supreme Court overturned that precedent in Janus v. AFSCME, Council 31.  The plaintiffs in Chambers brought a putative class action against Oregon affiliates of AFSCME, SEIU, NEA, and other unions, seeking to assert claims on behalf of most public sector employees across the state of Oregon.  Altshuler Berzon LLP successfully defended the unions against plaintiffs’ federal and state tort law claims.  The district court’s order can be found here.  Altshuler Berzon LLP has also successfully defended many similar post-Janus lawsuits filed across the country.

Quirarte v. United Domestic Workers AFSCME Local 3930

On February 10, 2020, in Quirarte v. United Domestic Workers AFSCME Local 3930, the United States District Court for the Southern District of California granted judgment on the pleadings to the defendant government officials and union, ruling that the deduction of union dues from California home care providers’ paychecks did not violate the First Amendment, that no state action was involved in making those deductions, and that the plaintiffs could not assert a cause of action under the Medicaid Act.  The order can be found here.  The case is on appeal to the United States Court of Appeals for the Ninth Circuit.  Altshuler Berzon LLP represents United Domestic Workers in the case.

Few v. UTLA et al.

On February 10, 2020, the United States District Court, in Few v. UTLA et al., granted Defendants’ motion to dismiss the plaintiff’s claims seeking to enjoin the California state laws governing the deduction of voluntary union dues from public employee union members and to recover damages premised on the plaintiff’s payment of voluntary dues prior to his resignation from his union.  The order can be found here.  Altshuler Berzon LLP represented defendant United Teachers Los Angeles in the district court proceedings.

Grossman v. Hawaii Government Employees Association/AFSCME Local 152

In Grossman v. Hawaii Government Employees Association/AFSCME Local 152, the District of Hawaii rejected multiple attacks on voluntary unionism for public sector workers in Hawaii based on the plaintiff’s radical misinterpretations of Janus v. AFSCME, Council 31.  On May 21, 2019, the court dismissed the plaintiff’s facial challenge to Hawaii’s system of exclusive representation for purposes of collective bargaining for public sector workers, finding that challenge squarely foreclosed by Supreme Court and Ninth Circuit precedent.  On January 31, 2020, the court granted summary judgment against the plaintiff’s remaining claim, in which the plaintiff sought a refund of dues that the plaintiff had voluntarily agreed to pay as a union member in exchange for the rights and privileges of union membership that she received.  The orders can be found here and here.  The union defendants were represented by Altshuler Berzon LLP.

Hendrickson v. AFSCME Council 18 (D.N.M.)

In Hendrickson v. AFSCME Council 18, the District of New Mexico granted the Union’s and State of New Mexico’s motions for summary judgment.  On January 22, 2020, the court ruled that a union membership agreement that required an employee who chose to become a union member to pay dues for a renewable one-year period was enforceable, rejecting the plaintiff’s argument that the agreement violated his First Amendment rights.  The court also rejected the plaintiff’s challenge to exclusive union representation as established by New Mexico’s public employee collective bargaining law.  The order can be found here.  The union defendant was represented by Altshuler Berzon LLP.

Press Release: Preliminary Injunction Mandates Spanish-Language Voter Access in 32 Counties Leading up to Florida Presidential Preference Primary

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.

See today’s press release here.  For prior posts about this case protecting Spanish-speaking voters across 32 Florida counties, see here, here, and here.

Altshuler Berzon LLP Moves to Block Harmful Trump Administration Biological Opinions That Threaten West Coast Salmon and Other Fish Populations on the Verge of Extinction

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.

McDonald’s Agrees to Pay $26 Million to Resolve Wage Theft Lawsuit in California

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. 

Court Grants Class Certification in ERISA Class Action: Shuman v. Microchip et al.

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.

Ninth Circuit Denies Petition for Rehearing in Wal-Mart Truck Driver $55 Million Minimum Wage Case

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.

Altshuler Berzon LLP Attorney Argues Climate Change Case in 9th Circuit

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.

Court Approves $13 million Consumer Class Action Settlement in Blair v. Rent-a-Center

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.

California Retailers and Banks to Provide Seating to Cashiers, Tellers

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.

Altshuler Berzon LLP Attorney Welcomes New Year with Two 9th Circuit Arguments in Three Days

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.