California Supreme Court Limits Employers’ Ability to Characterize Workers as Independent Contractors

JohnQuieroLE - resized [45] 170504_0034_1a_square2Guest Commentary

By John F. Querio, a Partner, and Lacey L. Estudillo, an Appellate Fellow, with Horvitz & Levy LLP.

California courts and administrative agencies have long used a multi-factor common-law test, as summarized by S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341 (1989), to determine whether workers are independent contractors or employees under California law.  The employee-independent contractor distinction is important because employee status brings with it a host of burdensome wage and hour and other legal obligations with which the employer must comply, multiplying costs exponentially.

The key factor under the Borello common-law test for determining employment status has traditionally been the right to control the manner and means by which the work is to be performed.  Despite decades of settled jurisprudence on this issue, in Dynamex Operations West, Inc. v. Superior Court, No. S222732, 2018 WL 1999120 (Cal. Apr. 30, 2018), the California Supreme Court adopted a new test for determining independent-contractor status for purposes of wage and hour obligations under California law. Continue reading “California Supreme Court Limits Employers’ Ability to Characterize Workers as Independent Contractors”

A Class-Action Paradise: Legal Environment in California Encourages Frivolous Claims

food-courtA Food Court Follies Analysis

California: the land of beaches, Hollywood, and lawsuits.  A land where dreams can come true and where plaintiff-friendly statutes and forgiving federal judges allow consumer class actions to reign supreme.  Here on the WLF Legal Pulse, we have previously blogged on series of cases filed in California in which consumers allege that wording or images on a packaged food product misled them into making a purchase.  One notable subset of these cases involves supposed geographical-location deception—brewers make purchasers believe their beer was brewed in a (usually exotic or foreign) location when it was actually made someplace else.

These suits are made possible by permissive California laws which allow plaintiffs to file class actions against any manufacturer for just about any reason.  Federal district court judges in the state compound the plaintiff-friendly atmosphere by being especially tolerant of poorly plead (or frivolous) claims, routinely handing plaintiffs’ attorneys two or three bites at the apple while also spelling out how to best amend their complaints.   Continue reading “A Class-Action Paradise: Legal Environment in California Encourages Frivolous Claims”

Circuit Split Grows over Whether Evidence Supportive of Class Certification Must be Admissible

Tager_09181Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence

By Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Carl J. Summers, Counsel with Mayer Brown LLP.

The Supreme Court explained in Wal-Mart Stores, Inc. v. Dukes that “Rule 23 does not set forth a mere pleading standard.  A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”  You would think that would mean that plaintiffs seeking class certification must support their motion with admissible evidence.  Indeed, in Dukes the Supreme Court observed that the district court had held that “Daubert did not apply to expert testimony at the certification stage of class-action proceedings” and commented: “We doubt that is so.”

Nevertheless, relying on a 1975 Ninth Circuit decision and a pre-Dukes decision of the Eighth Circuit, the Ninth Circuit recently held in Sali v. Corona Regional Medical Center that “[i]nadmissibility alone is not a proper basis to reject evidence submitted in support of class certification” and that a district court therefore abused its discretion by declining to consider a declaration “solely on the basis of inadmissibility.”  Continue reading “Circuit Split Grows over Whether Evidence Supportive of Class Certification Must be Admissible”

Asbestos-Liability-Suit Judges Should Be Wary of Plaintiffs’ Expert’s “Notice” Testimony

RobertWrightFeatured Expert Contributor, Mass Torts—Asbestos

Robert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

Anyone involved in asbestos litigation has come across the work of Barry Castleman.  By his own account, Castleman has testified for plaintiffs as an expert witness in over 400 trials in asbestos cases discussing the medical literature written about the mineral over the past 100+ years.  Castleman clearly possesses an encyclopedic knowledge of asbestos, but when considering whether his testimony is admissible, trial judges must ask:  is it all inadmissible hearsay? Continue reading “Asbestos-Liability-Suit Judges Should Be Wary of Plaintiffs’ Expert’s “Notice” Testimony”

Second Circuit Shuts Down Duplicative Regulation by Litigation of Organic Products

organicA January 9, 2018 WLF Legal Pulse post applauded a federal district court’s textbook application of implied-preemption analysis in dismissing a consumer-protection suit that alleged mislabeling of an organic infant formula. A recent decision of the U.S. Court of Appeals for the Second Circuit in Marentette, et al. v. Abbott Laboratories, Inc. similarly utilized implied preemption to reject a putative class action presenting nearly identical claims involving another brand of organic infant formula. The decision should put an end to plaintiffs’ use of state consumer-protection suits to regulate products bearing the U.S. Department of Agriculture’s (USDA) “Organic” symbol. Continue reading “Second Circuit Shuts Down Duplicative Regulation by Litigation of Organic Products”

“China Agritech” SCOTUS Case Will Turn on Justices’ Opinions of Class Actions

supreme courtDuring oral arguments this coming Monday in China Agritech, Inc. v. Resh (click here for WLF’s amicus brief) the U.S. Supreme Court ostensibly will be considering a technical issue regarding statutes of limitations: when should the doctrine of “equitable tolling” be applied to extend the deadline for filing a class action lawsuit? But how the justices determine the scope of that judge-made doctrine has little to do with applying well-established equitable doctrines in this area of the law (there aren’t any) and everything to do with how warmly they feel about class litigation as a vehicle for providing effective relief for large numbers of plaintiffs with small claims. The evidence suggests that the Court is far less enamored with class actions than it once was and will use China Agritech to cut back on their use. Continue reading ““China Agritech” SCOTUS Case Will Turn on Justices’ Opinions of Class Actions”

Decision’s Permissive Standing Analysis Tags Ninth Circuit as Favorable Forum for Data-Related Suits

Cruz-Alvarez_FFeatured Expert Contributor—Civil Justice/Class Actions

By Frank Cruz-Alvarez, a Partner with Shook, Hardy & Bacon L.L.P. in the firm’s Miami, FL office, with Erica E. McCabe, an Associate in the firm’s Kansas City, MO office.

On February 26, 2018, the U.S. District Court for the Northern District of California tracked the U.S. Court of Appeals for the Ninth Circuit’s permissive approach to Article III standing when it denied Facebook Inc.’s (Facebook) renewed motion to dismiss for lack of subject matter jurisdiction in Patel, et al. v. Facebook Inc., ___F. Supp. 3d ___, 2018 WL 1050154 (N.D. Cal. Feb. 26, 2018).  In rejecting Facebook’s motion, the court held that the putative class properly alleged a concrete injury in fact, consistent with the U.S. Supreme Court’s ruling in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (Spokeo I). Continue reading “Decision’s Permissive Standing Analysis Tags Ninth Circuit as Favorable Forum for Data-Related Suits”