Former Altshuler Berzon LLP Attorney Nominated to Ninth Circuit

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Jennifer Sung to be the third former Altshuler Berzon attorney tapped for the federal bench

June 30, 2021 – The White House this morning announced the nomination of labor law attorney Jennifer Sung to the United States Court of Appeal for the Ninth Circuit. Ms. Sung, who has been a member of the Oregon Employment Relations Board since 2017 and was previously a partner at McKanna Bishop Joffe LLP in Portland, was an Altshuler Berzon LLP associate between 2007 to 2013.  She joined Altshuler Berzon after clerking for Ninth Circuit Judge Betty Binns Fletcher and completing a two-year Skadden Fellowship at the Brennan Center for Justice.  Before law school, Ms. Sung worked as a union organizer for seven years.

Ms. Sung joins a select group of former Altshuler Berzon LLP attorneys who have become federal judges, including former partners Indira Talwani (D. Mass) and Marsha Berzon (9th. Circuit). She is an extraordinary lawyer and will be a superb Ninth Circuit judge. She will be the first Asian American Pacific Islander judge from Oregon on the Ninth Circuit.  We wish her all the best in the years to come!

Federal District Court Issues Preliminary Injunction in Unemployment Insurance Class Action Against Bank of America

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San Francisco – June 1, 2021  Judge Vince Chhabria (N.D. Cal.) today issued a groundbreaking preliminary injunction order in nine consolidated class action cases against Bank of America, in which Altshuler Berzon LLP serves as interim lead co-counsel.

In Yick v. Bank of America, N.A., plaintiffs contend that the Bank violated the rights of hundreds of thousands of Californians whose unemployment insurance benefits were paid through Bank-issued debit cards.  Although state and federal law require the Bank promptly to investigate cardholder claims of unauthorized transactions on their accounts and to provisionally credit those stolen funds to the cardholders if the investigations cannot be completed within 10 business days, plaintiffs contend that the Bank denied cardholders’ claims and froze their accounts without the required investigation, based solely on the Bank’s use of a flawed and highly unreliable initial “Claim Fraud Filter” that erroneously identified tens of thousands of legitimate UI cardholders as criminals using stolen identities.  Legitimate cardholders who were erroneously flagged by the Bank’s “Claim Fraud Filter” were promptly cut off from access to their past, present, and future UI benefits, and plaintiffs contend that the Bank made it nearly impossible for those cardholders to regain access to their benefits accounts.

The Court’s preliminary injunction prohibits the Bank from continuing to deny unauthorized transaction claims or to freeze cardholder accounts based on the results of the Bank’s Claim Fraud Filter, and further prohibits the Banks from in any way using the results of the Claim Fraud Filter in investigating unauthorized transaction claims or deciding whether to issue claimants provisional or permanent credit.  The order also requires the Bank to reopen all claims that the Bank previously denied based on the results of the Claim Fraud Filter, to give those individuals a prompt opportunity to authenticate their identities, and to issue provisional credit pending investigation to anyone who authenticates their identity if the Bank does not complete its investigation within 10 business days.  In addition, the order requires the Bank to expand its customer service hours and establish dedicated toll-free hotlines to assist class members with their unauthorized transaction claims and with unblocking their accounts.

Additional background on the case can be found here. News reports on this historic injunction may be found here and here.

Altshuler Berzon LLP attorneys Michael Rubin, Stacey Leyton, Connie Chan, Matthew Murray, and James Baltzer are co-counsel in this case, along with attorneys from Cotchett, Pitre & McCarthy LLP and others.

Court Certifies Class of Thousands of Google Women Employees in Equal Pay Act and Unfair Competition Law Case: Ellis et al. v. Google, LLC

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On May 27, 2021, the San Francisco County Superior Court certified a class of over 10,800 women who were employed by Google, LLC, in California since September 14, 2013, in certain jobs covered by the lawsuit.  The court found that plaintiffs have presented common evidence from which a finder of fact could reasonably find that (1) Google paid women less than men performing substantially similar work, in violation of the California Equal Pay Act; and (2) Google assigned women to lower salary levels than men with comparable education and experience, because of their lower pay in prior jobs, in violation of California’s Unfair Competition Law and Fair Employment and Housing Act.  Plaintiffs submitted a statistical analysis from a Professor at U.C. Irvine, who found that Google’s pay and under levelling practices caused its women employees in jobs covered by the lawsuit to be paid approximately $19,000 less per year, on average, than comparably qualified men.  The court’s class certification order entitled the women to join together in pursuing their claims to seek to enjoin Google’s pay and under levelling practices, and to recover hundreds of millions of dollars owed to class members.

Altshuler Berzon LLP is serving as Class Counsel, along with Lieff Cabraser Heimann & Bernstein, LLP.

A copy of the court’s public order granting class certification is attached here.

Ninth Circuit Reverses Preliminary Injunction Preventing State from Enforcing Assembly Bill 5’s Worker Misclassification Test Against Trucking Companies

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On April 28, 2021, the Ninth Circuit issued its decision in California Trucking Association v. Bonta, which reversed a preliminary injunction preventing the State of California from enforcing Assembly Bill 5’s “ABC” test against trucking companies.  Under that test, a worker is presumed to be an employee unless the employer can establish all three of the following requirements: (A) the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; (B) the worker performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business.

The plaintiff trucking company association had argued that the B-prong of that test was preempted by the Federal Aviation Administration Authorization Act (“FAAAA”), a federal statute that deregulated the trucking industry.  A district court had agreed with the trucking association that the law was likely preempted and so enjoined it, but the Ninth Circuit reversed on appeal, holding that Congress did not intend for the FAAAA to preempt “laws of general applicability that affect a motor carrier’s relationship with its workforce.”  Under the decision, the State is permitted to use the “ABC” test, in its entirety, to combat misclassification in the trucking industry.

Altshuler Berzon LLP represents the International Brotherhood of Teamsters, which intervened in the case to defend the law alongside the state.  A news report on the decision can be found here.  A copy of the decision can be found here.

Ninth Circuit Reverses NLRB Decision Denying Protection to Worker Sexual Harassment Protests

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On April 28, 2021, the United States Court of Appeals for the Ninth Circuit issued its decision in SEIU Local 87 v. NLRB (Preferred Building Services), reversing a decision by the National Labor Relations Board that had upheld the firings of workers who had protested sexual harassment and other intolerable working conditions outside an office tower.

The underlying unfair labor practice charge arose when janitorial services workers at an office building in downtown San Francisco decided to stage picket-line protests outside the building in which they worked, in response to their supervisor’s harassment and wage-and-hour violations.  In response to the protests, several workers were fired, and the janitorial services contractor terminated its contract to service the building.  The NLRB’s General Counsel alleged that the workers’ termination in response to the protests violated the National Labor Relations Act’s prohibition on retaliating against workers for engaging in protected, concerted activity.  After a multi-day hearing, an NLRB Administrative Law Judge agreed.  The NLRB, however, reversed the ALJ’s decision, concluding that the workers’ protests were unprotected because they impermissibly targeted neutral “secondary” parties –specifically, the building manager and tenants of the building where they worked.  The Ninth Circuit reversed, concluding that the NLRB had erred in concluding that the workers’ protests had a “secondary” object.

Altshuler Berzon LLP represents SEIU Local 87, which filed the unfair labor practice charge with the NLRB and the Ninth Circuit petition for review.  A news report about the decision is available here.  A copy of the decision is available here.

Federal Court Approves Landmark ADA Consent Decree Against Nike

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Lawsuit alleged Nike failed to accommodate California customers with hearing disabilities

April 22, 2021 – Describing the parties’ settlement as “fabulous” and “incredible,” and a “great result for people who really needed help,” federal district court judge Yvonne Gonzalez Rogers on April 20, 2021 granted final approval to a landmark disabilities rights settlement negotiated under the Americans with Disabilities Act and California’s Unruh Act, Disabled Persons Act, and Unfair Competition Law by Altshuler Berzon LLP partners Michael Rubin and Eve Cervantez and their co-counsel. The court’s written settlement approval order, dated April 22, 2021, is attached here.

Plaintiff Cali Bun, a 22-year-old college student who is profoundly hard of hearing, brought this case in the fall of 2020 after employees at a Nike retail store in San Diego, who were wearing opaque masks in response to the COVID-19 pandemic, refused to accommodate her hearing disability, thereby making it extremely hard for her communicate. Ms Bunn brought this action on behalf of a statewide class of all persons who are deaf or hard of hearing and who visited or attempted to visit a Nike store in California on or after July 2020, when Nike’s mask mandate went into effect.

Although the Unruh Act and Disabled Persons Act provide statutory penalties of $4,000 and $1,000 per violation, respectively, Ms. Bunn and her counsel decided to focus on the class members’ need for immediate injunctive relief. With the assistance of Altshuler Berzon LLP attorneys, plaintiff successfully an injunctive-relief-only settlement under Rule 23(b)(2), which did not require class notice or a two-step approval procedure, and which went into effect on January 22, 2021, just four months after the lawsuit was filed and three months before judicial approval of the settlement – a true example of prompt and comprehensive justice.

Under the judicially approved settlement:

  1. Nike is required to provide all of its California stores with (a) transparent face masks (i.e., cloth masks with clear-plastic inserts that permit the customer to observe the store employees’ facial expressions) and (b) clean pen-and-paper sets, to be used whenever  a customer requests a hearing accommodation;
  2. Nike is required to post notices at all of its California store entrances (using language and graphics negotiated in the settlement) informing customers that accommodations are available for customers with hearing loss; and
  3. Nike is required to provide guidance and communications to its California store employees to accommodate customers who are having difficulty communicating due to an employee wearing an opaque face covering.

Each of these mandatory terms remains in effect and requires ongoing compliance until the pandemic eases and Nike’s retail store employees are no longer required to wear masks when interacting with customers in California.

Because the settlement focused on obtaining immediate injunctive relief, it left undisturbed any claims for monetary damages or statutory penalties that any class members may subsequently assert against Nike in their own lawsuits. The class releases expressly carve out all such economic claims, other than the named plaintiff’s, whose efforts in bringing this lawsuit and assisting in its prosecution drew special praise from the district court judge – who also noted that counsel’s appearance for the settlement approval was the first court appearance by counsel in the case. The lawsuit was thus successfully resolved without any discovery disputes, pre-trial motions, or other court proceedings that could have delayed the negotiation or implementation of the groundbreaking settlement terms.

According to Nike’s post-settlement compliance report, the company achieved full compliance with all required terms of the injunction by the agreed-upon deadline of January 22, 2021.

Altshuler Berzon LLP Files Consolidated Class Action Complaint Against Bank of America and Motion for Preliminary Injunction Seeking Immediate Relief for Tens of Thousands of Unemployment Benefits Recipients Denied Access to Their Benefit Payments

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On April 1, 2021, Altshuler Berzon LLP, together with co-counsel Cotchett, Pitre & McCarthy LLP, filed a Consolidated Class Action Complaint and Motion for Preliminary Injunction against Bank of America, N.A., seeking immediate relief for tens of thousands of California unemployment benefits recipients who have been denied access to their public benefits as a result of the Bank’s alleged misconduct.

Since 2010, Bank of America has had an exclusive contract with the California Employment Development Department (EDD) to distribute EDD benefits, including Unemployment Insurance (UI) and Pandemic Unemployment Assistance (PUA) benefits, through the use of Bank of America-issued prepaid debit cards. During the pandemic, Bank of America has distributed EDD benefits through Bank-issued debit cards to millions of Californians eligible for unemployment benefits.

Over the course of the pandemic, thousands of cardholders have had their unemployment benefits stolen out of their accounts through fraudulent transactions and account hackings, which the lawsuit alleges resulted from the Bank’s failure to meet basic industry standards for fraud prevention and detection. For example, the lawsuit alleges that the Bank used outdated and easily hacked magnetic stripe technology on its EDD debit cards rather than the far more secure EMV chip technology used on the Bank’s other commercial consumer cards.

The lawsuit also alleges that despite the Bank’s own “Zero Liability” policy and its federal statutory obligations to promptly reimburse cardholders for unauthorized transactions, the Bank has summarily denied claims of third-party fraud without investigation or explanation. The Bank has also allegedly frozen the accounts of benefits recipients who report third-party fraud, thereby preventing them from being able to access any remaining public benefits funds still in their account and cutting off their ability to receive ongoing unemployment benefits from EDD. According to the consolidated class action complaint, despite the Bank’s promises to provide 24/7 customer support to fraud victims, account holders who call Bank of America’s customer service hotline to try to reopen their claims and unfreeze their accounts are routinely kept on hold for hours, disconnected, and/or told the Bank is unable to assist them.

As detailed in more than three dozen supporting class member declarations, the Bank’s alleged misconduct has had devastating consequences for Californians who depend on unemployment benefits as a lifeline to help them weather this pandemic. As a result of the Bank’s challenged policies and practices, countless victims have found themselves unable to pay their rent, car payments, phone and utility bills, childcare expenses, and medical bills, while struggling to feed themselves and their families.

The motion for preliminary injunction asks the Court to require the Bank to unfreeze the accounts and reopen the fraud claims of claimants whose accounts were frozen based on their reports of fraud; maintain customer service levels that ensure cardholders can report fraud and obtain assistance; reopen fraud claims of claimants who request such reopening through a streamlined process; conduct reasonable, good faith, and timely investigations into all fraud reports; and credit claimants’ accounts for the amount of the stolen funds as required by law.

A news report on the recent filings can be found here.  A copy of the consolidated class action complaint can be found here.

Unions File Briefs and Evidence in Support of California’s Crucial COVID-19 Workplace Protections

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On January 19, 2021, Altshuler Berzon LLP filed amicus briefs and evidence to support emergency regulations adopted by Cal-OSHA in November 2020 to slow the spread of COVID-19 in the State, in two cases brought to overturn those regulations. Altshuler Berzon LLP represents, and filed the amicus briefs on behalf of, a multi-union coalition comprising the Service Employees International Union (“SEIU”), SEIU California State Council, United Farm Workers of America (“UFW”), International Brotherhood of Teamsters (“IBT”), United Food and Commercial Workers Union Western States Council, California Teachers Association, California School Employees Association, California Federation of Teachers, Transport Workers Union, California Federation of Interpreters, SMART-Transportation Division California State Legislative Board, and California Labor Federation.

After the emergency regulations were issued, two sets of industry groups filed suit and sought preliminary injunctions to block implementation of these critically important workplace protections, specifically challenging key provisions that require employers to provide paid leave to workers who need to quarantine because they have contracted or been exposed to COVID-19 in the workplace. The multi-union amicus briefs highlight the role that workplaces have played in the COVID-19 outbreak, particularly those workplaces in which employers have not followed public health guidance, and the importance of the emergency regulations in protecting essential workers. The unions also filed appendices of evidence, including numerous OSHA complaints filed by fast food workers as part of the Fight for $15 campaign, declarations from a public nuisance case filed by Altshuler Berzon LLP on behalf of fast food workers and their relatives at an Oakland McDonald’s restaurant in which unsafe workplace practices led to a COVID-19 outbreak, declarations from a similar case involving UFW and Foster Farms, and declarations from workers and union leaders at SEIU-United Service Workers West, UFW, and the IBT emphasizing the real and severe health threat caused by COVID-19 transmission in the workplace.

On February 25, 2021, the San Francisco Superior Court denied the industry groups’ request for a preliminary injunction, holding that the groups were unlikely to succeed on the merits of their challenges and that, even if they had been likely to succeed, the economic costs of compliance would be outweighed by the worker safety and public health considerations necessitating the standards.

Here are the brief and appendix in the National Retail Federation case, and here are the brief and appendix in the Western Growers Association case. The San Francisco Superior Court’s decision denying the preliminary injunction motions can be found here.

Service Employees International Union, Drivers, and Consumer File Constitutional Challenge to Proposition 22

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On Thursday, February 11, 2021, the Service Employees International Union (“SEIU”), SEIU California, three drivers, and a consumer filed a constitutional challenge to Proposition 22, the November 2020 ballot measure that purported to exempt, from California’s labor and employment protections, drivers who work for transportation and delivery companies like Uber, Lyft, DoorDash, and Instacart.  These companies have long misclassified their drivers as independent contractors rather than employees, depriving them of the protections of state law.  Instead of complying with the clear mandates of the law after the enactment of Assembly Bill 5, the companies decided to spend over $200 million to convince voters to adopt a ballot measure exempting them.  However, as the petition filed today in Alameda County Superior Court demonstrates, that ballot measure violates the California Constitution and must be invalidated.

First, Proposition 22 deprives the California Legislature of its constitutional authority to establish and maintain a workers’ compensation system that protects workers’ health and safety and compensates workers in the event of workplace injuries.  Because Proposition 22 provides that the entire initiative is invalid if any application of its provision designating drivers as independent contractors is held invalid, Proposition 22 is invalid in its entirety.  Second, by designating certain subjects that are not even addressed by Proposition 22 as “amendments” to Proposition 22 that are off-limits to the Legislature except by a 7/8 vote of both houses, Proposition 22 interferes with the constitutional authority of the judicial branch to decide what constitutes an amendment to a ballot measure.  Third, in doing so, Proposition 22 also interferes with the California Legislature’s constitutional authority to legislate in areas that the ballot measure does not address.  Fourth, the provisions of Proposition 22 purporting to define “amendments” violate the California Constitution’s single subject rule, a constitutional mandate that protects voters against deceptive initiatives and that requires that Proposition 22 be struck down in its entirety.

The Alameda County Superior Court filing can be found here.

Altshuler Berzon LLP is counsel for petitioners in the case, along with Olson Remcho LLP.

Alaska State Employees Association Defeats Alaska Governor’s Attempt to Undermine Public Employee Collective Bargaining and Interfere with Union Membership

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On February 8, 2021, the Alaska State Superior Court delivered a complete victory to the Alaska State Employees Association, AFSCME Local 52 (“ASEA”) in a dispute with the State of Alaska about the deduction of voluntary union membership dues.

In 2019, Alaska’s Governor Michael Dunleavy and now-former Attorney General Kevin Clarkson announced that the State would immediately and unilaterally implement a new policy to terminate all state employees’ union dues deductions and require state employee union members to annually renew their dues deduction authorizations after receiving a government “warning” that doing so would involve waiving their constitutional rights.  The State then sued ASEA, Alaska’s largest public employee union, seeking a declaratory judgment endorsing the executive branch’s new policy.  ASEA, represented by Altshuler Berzon LLP and Alaska counsel Dillon & Findley, PC, defended against the State’s claims and countersued, alleging that the State’s actions violated the collective bargaining agreement between the State and ASEA, the Alaska Public Employment Relations Act, and the Alaska Administrative Procedures Act, violated the separation of powers enshrined in the Alaska Constitution, and constituted bad faith dealing in violation of Alaska state law.

In late 2019, the Superior Court entered a temporary restraining order and preliminary injunction prohibiting the State from implementing its new policy while the case was pending.  On the parties’ subsequent cross-motions for summary judgment, the Superior Court granted ASEA’s motion in its entirety, denied the State’s motion, awarded ASEA more than $186,000 in damages, and permanently enjoined the State from taking any further action to enforce its unlawful policy.

The Superior Court’s summary judgment order can be found here.  The Superior Court’s prior Temporary Restraining Order and Preliminary Injunction Order can be found here and here.  And ASEA’s summary judgment briefs can be found here and here.