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The hostility of some California courts to arbitration—and their resistance to preemption under the Federal Arbitration Act (FAA)—has produced nearly three decades of U.S. Supreme Court reversals. The most recent is AT&T Mobility LLC v. Concepcion, which held that the FAA preempted the Discover Bank rule, under which the California Supreme Court had blocked enforcement of consumer arbitration agreements that required individual rather than class arbitration. Last week’s decision in Imburgia v. DirecTV, Inc. (pdf) demonstrates that resistance to Concepcion lives on in the California courts, even at the cost of creating a split with the Ninth Circuit on…
Continue Reading Another California Court Does Backflips to Thwart Arbitration and Elevate The Class-Action Device

Since 2006, companies based outside California have been alert to the potential burdens of class actions under California’s Invasion of Privacy Act (“CIPA”), Cal. Penal Code § 630 et seq. The laws of most states, as well as federal law, allow telephone calls to be recorded with the consent of one party to the call. Accordingly, companies in those states usually can record customer service calls for quality-assurance purposes without the need to procure the customer’s consent because the call-center employee, as a party to the call, can consent to the recording. California, however, is one of 12 states that…
Continue Reading What’s Going On With Class Actions Alleging That Businesses That Record Customer-Service Calls Are Violating California’s Invasion of Privacy Act?

Some observers of California wage-and-hour class actions contended that the Brinker v. Superior Court—a key decision we have discussed in the past—had sounded the death knell for class certification in those cases. of California wage and hour class actions. Not so fast, according to the California Courts of Appeal, which have, in four published opinions, reversed four separate trial court orders that had denied certification in wage and hour class action cases:

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Continue Reading Recent Appellate Decisions Underscore That Wage and Hour Class Actions are Alive and Well in California Despite Brinker

The American Tort Reform Association has released its annual report on “Judicial Hellholes”—a term it popularized for jurisdictions in which defendants often contend that they can’t get a fair shake. This year’s report identifies California, Louisiana, New York City, West Virginia, Madison & St. Clair Counties (Illinois), and South Florida as the most unfavorable jurisdictions. According to the report, these jurisdictions suffer from (among other things) overly-aggressive plaintiffs’ bars, expansive liability rules, court procedures that advantage plaintiffs, and welcoming attitudes toward forum-shopping out-of-town plaintiffs.

While the report is worth reading in full, here are some of the highlights…
Continue Reading Annual Report on “Judicial Hellholes”

The California Supreme Court has a long history of inventing new rules—either from common law or as “glosses” on statutes—to invalidate arbitration agreements entered into by consumers and employees. For example, in 2005, that court announced a new unconscionability rule—the“Discover Bank” doctrine, which was named after one of the parties to the case—that effectively blocked enforcement of every consumer arbitration agreement that did not permit class procedures. The U.S. Supreme Court’s landmark decision in AT&T Mobility LLC v. Concepcion held that the Federal Arbitration Act (“FAA”) preempted the Discover Bank rule.

Will the California Supreme Court faithfully apply…
Continue Reading Will California Strike Again? The Latest Word From the California Supreme Court On Enforcing Arbitration Agreements


Most people are familiar with Fig Newtons, an iconic cookie that has been around for over a century (at least according to its Wikipedia entry).  There are many other popular versions of Newtons—albeit of more recent vintage—such as raspberry and strawberry Newtons.  These fruit Newtons drew the ire of plaintiff Monique Manchouck, who filed a false advertising class action in the Northern District of California—which has become known as the nation’s “Food Court” —against the makers of the cookies.

What was her beef?  According to her complaint, the product packaging states that Newtons are “made with real fruit.”  …
Continue Reading “Food Court” Rejects Class Action Alleging That Fruit Newtons Labels Are Misleading

Over the past two years, a big growth area for plaintiffs’ lawyers has been cases challenging the use of zip codes or other identifying information by merchants that process credit-card transactions.

In 2011, the California Supreme Court held in Pineda v. Williams-Sonoma Stores that a zip code constitutes “personal identification information” under California’s Song-Beverly Credit Card Act, thus potentially exposing retailers to civil penalties of up to $1,000 per violation if they request and record the zip codes of customers paying by credit card. (My colleagues John Nadolenco and Archis Parasharami did a teleconference about Pineda that you can listen…
Continue Reading Where Will the Zip Code Class Actions Be Filed Next?

The federal Food Drug and Cosmetic Act (“FDCA”)—along with the implementing regulations promulgated by the FDA—sets out a detailed national standard for much of what appears on food and beverage labeling. See 21 U.S.C. §§ 301, et seq.; 21 C.F.R. §§ 101, et seq.; Pom Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170, 1175 (9th Cir. 2012). This national labeling law expressly preempts states from enacting different requirements for labels, including requirements imposed by courts under the guise of redressing a “misleading” or “fraudulent” label. 21 U.S.C. § 343-1; Turek v. Gen. Mills, Inc.,…
Continue Reading Are State-Law Claims for Violating Federal Food Labeling Law Preempted?

In the wake of AT&T Mobility LLC v. Concepcion, the California Supreme Court granted review in three cases involving significant arbitration issues, including key questions about whether the Federal Arbitration Act preempts California law concerning the enforceability of arbitration agreements.

My colleagues and I have filed amicus briefs on behalf of the Chamber of Commerce of the United States in all three cases, the most recent of which is Iskanian v. CLS Transportation, No. S204032.

In Iskanian, the Second District of the California Court of Appeal had affirmed an order compelling individual arbitration in a putative class/representative action alleging, among other things, that the defendant had failed to pay overtime and provide required meal and rest breaks. For more background on the grant of review and the decision below, please see our prior blog post here.

The Chamber’s amicus brief (pdf) to the California Supreme Court explains why the court of appeal was correct.Continue Reading U.S. Chamber of Commerce Files Amicus Brief On Arbitration Issues In Key California Supreme Court Case

In state courts, sometimes you lose even when you win. In a recent false-advertising class action, a California Superior Court entered an order concluding that the testimony of the plaintiffs’ expert—who was the linchpin of the case for class certification and on the merits—was inadmissible, which meant that the defendant was entitled to judgment as a matter of law. See Wallace v. Monier, LLC (pdf), No. S-CV-0016410 (Cal. Super. Ct. Placer Cty. Jan. 28, 2013).

Sounds great, right—so what’s the problem? The judge waited to decide these issues until after a jury trial on the class claims in which…
Continue Reading California Trial Court Rejects “Trial by Formula” Approach to False-Advertising Class Action and Sets Aside Verdict