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Arzate v. Bridge Terminal Transport, Inc. sets new light of IC agreements

In a case that just came down today from Division 8 of the Los Angeles Appellate District, the court reversed Judge O'Donnell's grant of summary judgment in favor of the employer. The facts of the case are straightforward. Plaintiffs were truck drivers who had signed independent contractor agreements. They sought to invalidate those agreements and claim overtime wages and meal break premiums as a class action. The defendant moved for summary judgment which was revered.

The court made it clear and reiterated over 22 years of precedent that these types of disputes are fact intensive. While following the six part test laid out in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, the court made clear that at least in this case the trier of fact would need to determine if the plaintiffs were employees or independent contractors. They seemed to imply that if even small showings were made on any of the factors that the court might be constrained from granting a summary judgment motion. As such the conservative jurist Elizabeth Grimes who wrote the majority opinion, opined that the case had to be reversed so that a jury could determine these issues. She made it clear that the court was not saying that there were employees but that the summary judgment motion was not the vehicle to determine this, a trial on the merits would need to decide this.

This will make IC cases much more difficult to defend by employers and will put much more pressure on defense firms to settle them,. We are currently handling a few such cases on behalf of exotic dancers. We expect trucking cases will also be brought in the future based on this ruling. We can be reached at www.upaidwages.com or email us at eric@kingsleykingsley.com

CA Supreme Court Grants Chipotle

Yesterday, the California Supreme Court issues a grant and hold in the case of Hernandez v. Chipotle. This was another case that dealt with the issue of meal breaks and what standard should be applied to the merits and to class certification motions. There are now a slew of cases that the California Supreme Court has granted and held pending the decision in Brinker v. Superior Court. Brinker has been fully briefed for close to 2 1/2 years with no formal argument date set. The state still waits. There are likely in the neighborhood of hundreds of cases that are awaiting guidance on this issue. Our firm has 7 cases that are stayed by various courts waiting to hear how the court will rule in Brinker. WE expect a decision this year, but there is no way to know for sure. Once the argument is set the court is required to issue a decision within 90 days.

Kwikset Decesion Due Tomorrow

Tomorrow, the California Supreme Court will issue its decision in Kwikset v. Superior Court. This is a very important decision for consumer cases in California and potentially throughout the United States. In Kwikset the company labeled its lock sets as made in America despite the fact that they were made in China. The California Supreme Court will decide if this gross misrepresentation can form the basis of any harm. It is clear that such practices by companies should not be tolerated and consumers should clearly vote with their feet. The problem, however, is that this is sometimes difficult to verify. Therefore, we are hopeful that the court will allow consumers to pursue remedies for violation of law that harm consumers if not tangibly then intangibly the society as a whole.

AT&T Case set for Oral Argument on Tuesday

The end of class actions may take place in Washington, D.C. at 10:00 am. EST on Tuesday November 9, 2010. At that time the U.S. Supreme Court will take up the issue of arbitration and pre-emption under federal law. In a recent decision of Stolt-Nielsen S.A., et al. v. AnimalFeeds International Corp., the court took a very strong view on the arbitability of class arbitration claims by indicating that silence in an agreement did not give consent to class arbitration. The AT&T case goes much further in that if the AT&T case is reversed it would mean that an arbitration agreement even with a class action waiver or a silent construction would be forced into arbitration on an individual basis. This would mean the end of employment and consumer claims in a real sense. Any savvy corporation would draft these arbitration agreements so that they could only be pursued by way of individual arbitration. With the Republicans in control of the House of Representatives, it would be unlikely for at least two years and perhaps longer for any legislative fix. We should hope that our esteemed jurists Scalia and Thomas who believe strongly in federalism will not impose blanket federal pre-emption to stop California from regulating arbitration agreements.

We shall see.

GSK and JNJ in the 9th Cir.

The 9th Cir. has an opportunity to weigh in on the overtime debate. They were concerned about the fact that a Circuit split could be created with the 2nd Cir. decision in Novartis. The argument was spirited with the DOL arguing on behalf of the reps. The judges focused on the degree of deference they had to give the Department of Labor in its interpretation of the statutory language. While there were comments that could support both sides from all of the judges, it seems to me that they were leaning toward the reps. The judges were fixated on the selling concept in the industry. The lawyers for the reps were clear to point out that the sales occur through the wholesalers and to the pharmacies, this was not satisfying to at last two of the judge. At the end though I think all three judges will adopt the Department of Labor view and give the agency Auer deference and order that overtime should be paid to the reps when they work over 40 hours in a week. A decision could come down in the next few weeks though I would expect it may take several months for a fully elaborated opinion. Check back early next year for updates. If other issues arise in other cases of course we will keep you updated on those as well.

Happy Thanksgiving.

New Study Shows Wage and Hour Claims Are Up

A recent study by the law firm of Fulbright & Jaworski indicated that class actions and specifically wage and hour class actions have been on the rise. What the study did indicate is that in light of the Supreme Court's pending case of Brinker v. Superior Court, meal break cases have been on the decline. As such it appears that claims for overtime, unreimbursed expenses and other labor violations are on the rise. It is also interesting to see that federal claims under the Fair labor Standards Act are becoming more prevalent outside of California. Such claims typically involve misclassification, tip pooling problems or donning and doffing issues in a manufacturing setting. Kingsley & Kingsley has expanded its practice into many of these areas and remains committed to prosecuting these claims in all industries. Currently we are litigating several cases against home builders, the pharmaceutical industry as well as retail and restaurant claims. Email us at eric@kingsleykingsley.com or visit our web site at www.unpaidwages.com.

Consumer Problems This Week

This week was an interesting week for consumer cases. There were several potential cases of interest. For one there was a report out that seemed to suggest that anti-bacterial soap had no affect on killing bacteria. The irony here was the study was commissioned by Dial. In addition, the FDA issued some warning to various mouth wash companies including Listerine, CVS and Walgreens regarding anti-cavity mouth wash. The concern here was that this claim was unsubstantiated. It makes you wonder what goes on in corporate board rooms where these claims are made with no scientific basis in fact. Are the scientists lying to the executives or are the marketing people just making this stuff up and receiving executive approval. Lastly, Fisher-Price and BMW engaged on a major recalls of various product lines. If you have interest in pursuing this or other cases please call 888-500-8469 or email us at eric@kingsleykingsley.com or check out our website www.kingsleykingsley.com.

Class Actions Claims Can Be Pursued With Ease

Many people assume that class actions are difficult claims to pursue and that it is the job of the client to corral large groups of people together to pursue these claims. Nothing could be father from the truth. In reality a client comes into a lawyer’s office who may have been harmed by their employer or by a product but their claim is not for a large amount of money. These are the times that class actions are perfect. While the lawyer perhaps could not represent the individual by themselves a class action allows an aggregation of claims so that it is economical. For example, what if some on e is cheated by a bank out of a processing fee of $5.00 that was not properly disclosed. In this case a filing fee in the court of over $200 would make pursuit of this claim not practical. On the other hand the bank may pocket millions in fees each year from the illegal practice. The class action lawyer can take this one client and aggregate his or her claims with thousands of others and pursue it on a class wide basis. My firm has done this in the employment and consumer settings hundreds of times. We can be reached at www.unpaidwages.com or email me at eric@kingsleykingsley.com

I look forward to hearing from you.