Articles from November 2015

U.S. Supreme Court Hears Tyson Foods, Inc. v. Bouaphakeo Oral Argument

Earlier this month, on November 10, 2015, the United States Supreme Court heard oral argument in Bouaphakeo v. Tyson Foods, Inc., No. 12-3753 (8th Cir. Aug. 25, 2014) (slip op. available here), cert. granted, 83 U.S.L.W. 3765 (U.S. June 8, 2015) (No. 14-1146). Class action practitioners throughout the country—both plaintiff and defense attorneys—have watched this case closely because of the potentially far-reaching implications of the forthcoming opinion. The Court granted cert. to consider: (1) whether a court can disregard differences among individual class members when the plaintiff will prove liability and damages using certain statistical techniques; and (2) whether a class is certifiable despite containing a substantial number of class members who were not injured.

Originally filed in 2007, the primary issue in the case was whether Tyson properly compensated the class members, hourly employees at a Tyson meat-processing facility, for all work time. Tyson implemented a policy that compensated employees only for so-called “gang time,” when workers were present at their workstations on Tyson’s production line and the line was moving. The plaintiffs argued that this policy was illegal because it failed to compensate them for the time spent “donning and doffing” personal protective equipment before shifts, before and after lunch, and at the end of the shift. The plaintiffs also sought compensation for the time spent carrying items from their lockers to the production floor. Interestingly, Tyson categorized protective equipment items as either “unique” or “non-unique” to the food processing industry. Before February 2007, Tyson added four minutes of time to each employee’s timecard for donning and doffing time for unique items, to compensate those who worked in departments where knives were used. Then, from February 2007 to June 2010, Tyson added several minutes per day to each employee’s paycheck to compensate for pre- and post-shift walking time. The district court certified the case as a class action under Rule 23 and as a collective action under the Fair Labor Standards Act (FLSA) because the substance and basis of the state law claim and the FLSA claim were “virtually indistinguishable” in that the claims involved identical facts and similar legal theories. Slip op. at 4, fn2 (quoting Salazar v. Agriprocessors, Inc., 527 F. Supp. 2d 873, 884). The case went to trial, and the jury returned a verdict in the plaintiffs’ favor for over $2.8 million, with the final judgment exceeding $5.7 million after adding liquidated damages. The Eighth Circuit Court of Appeals affirmed the judgment, and Tyson filed a cert petition in the Supreme Court.

Before the Supreme Court, Tyson argued that the plaintiffs’ use of statistics demonstrating average donning, doffing, and walking times to help prove liability and damages was improper (brief of petitioner Tyson Foods available here). Because employees wore different protective equipment and took varying amounts of time to put it on and take it off, Tyson argued that each class member could not prove that donning and doffing activities resulted in uncompensated overtime. It contended that the usage of statistical inferences was reversible error, violated its due process rights to raise every possible defense, and warranted decertification. Tyson also argued that certification was improper because the class included large numbers of employees who had not been injured. In response, the employees argued that certification was proper, and that the record demonstrated that Tyson could have recorded donning and doffing time, but chose not to (respondent’s brief available here). The plaintiffs also argued that Tyson’s officials admitted that the vast majority of class members routinely worked six-day, 48-hour workweeks and were, therefore, eligible for overtime. Accordingly, the employees were entitled to prove the “approximate” time worked under Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), because Tyson failed to fulfill its statutory obligation to keep proper time records. The employees also argued that no rule prohibited certifying a class with some uninjured class members.

At oral argument, Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan appeared sympathetic to the employees. The gist of their questioning indicated that the Tyson’s objection to statistical and/or inferential proof of overtime entitlement was largely a self-created problem, and Tyson’s arguments against using the Mt. Clemens rule in this case were not well-taken. In addressing the issue of certifying a class with some uninjured members, several justices, including Justice Breyer, drew a distinction between certifying a class with uninjured members and paying the uninjured members after determining liability. Responding to petitioner Tyson’s argument that it could not determine who to pay and who not to pay because the jury awarded a lump sum judgment, Justice Kagan noted that Tyson had refused to bifurcate trial proceedings and, on remand, the court “is going to do something like the bifurcation that you rejected, which is . . . figure out in this highly ministerial way who worked more than 40 hours, and so who is entitled to share in the judgment.”

Ultimately, only the Court’s forthcoming opinion will end the suspense for class action practitioners. That said, most plaintiffs’ class action attorneys are cautiously optimistic that—after years of dealing with Concepcion, Dukes, and other anti-class action rulings—the Supreme Court finally may deliver a victory for employees and consumers.

Authored By:
Andrew Sokolowski, Senior Counsel

Garrido v. Air Liquide: Gentry Test Resurrected by Second Appellate District

On October 26, 2015, the California Court of Appeal, Second Appellate District affirmed a Los Angeles County Superior Court decision denying a defendant’s motion to compel arbitration. See Garrido v. Air Liquide Indus. U.S. LP, No. B254490, 2015 Cal. App. LEXIS 946 (2nd Dist. Div. 2 Oct. 26, 2015) (slip opinion available here). In doing so, the court applied a test from Gentry v. Superior Court, 42 Cal. 4th 443 (2007), a once-prominent case widely thought to be obsolete in the wake of Concepcion (AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2007)) and Iskanian (Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348 (2014)). Gentry was, for a time, the leading California case on the enforceability of class action waivers in arbitration agreements. While Concepcion did not specifically overrule Gentry, many courts treated it as such, and the California Supreme Court put to rest any doubts in Iskanian, stating: “a state’s refusal to enforce such a waiver on grounds of public policy or unconscionability is preempted by the FAA [Federal Arbitration Act]. . . [and] our holding to the contrary in Gentry has been abrogated by recent United States Supreme Court precedent.” Iskanian at 359-360 (internal citations omitted).

Despite the broad reach of the FAA and the Concepcion line of cases enforcing class action waivers in arbitration agreements, Garrido followed and affirmed an important exception for certain employees established by Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001). Section 1 of the FAA specifically exempts “transportation workers,” such as the plaintiff in Garrido, who was a truck driver who shipped goods for the defendant across state lines. The appellate court in Garrido reasoned that the FAA could not preempt Gentry where the FAA did not apply. Instead, it found that the California Arbitration Act (CAA) applied, and where only the CAA applies, actions to collect due and unpaid wages under California Labor Code section 229 (which would be preempted under the FAA) can be maintained in court. Thus, the Garrido court held that preemption principles did not come into play, and the Gentry’s holding that public policy is a valid defense to enforcement of an arbitration agreement remains viable under the CAA.

In Gentry, the California Supreme Court articulated four factors to determine whether a class action waiver should be enforced in pre-dispute employment arbitration agreements: “the modest size of the potential individual recovery, the potential for retaliation against members of the class, the fact that absent members of the class may be ill informed about their rights, and other real world obstacles to the vindication of class members’ right to overtime pay through individual arbitration.” Gentry at 463. Utilizing this analysis, both the trial court and appellate court in Garrido ultimately found the arbitration agreement unenforceable due to a lack of a sufficient alternative to a class action, because: (1) the plaintiff’s likely recovery was a modest $11,000; (2) evidence showed that many of the defendant’s truck drivers felt that their jobs were in jeopardy and (3) were ignorant of their rights to breaks; and (4) requiring numerous employees suffering the same harm to separately seek vindication is inefficient and would drive up the costs of arbitration. See slip op. at 12-13.

Interestingly, the Second Appellate District, Division Two, which issued the recent Garrido decision, was the same court that held in a 2012 Iskanian appeal that Gentry was overruled by Concepcion. “Now, we find that the Concepcion decision conclusively invalidates the Gentry test.” Iskanian v. CLS Transportation Los Angeles, LLC, 206 Cal. App. 4th 949, 959 (Cal. App. 2d Dist. 2012).

Authored by: 
Jonathan Lee, Associate

In re Tobacco II: The Future of Full Refunds under the UCL

In re Tobacco Cases II is a recent California Court of Appeal decision with dire consequences for consumer class actions that seek refunds under the UCL, if it is not overturned. No. D065165 (4th Dist. Div. 1 Sept. 28, 2015) (slip op. available here). The case is based on Phillip Morris’s allegedly misleading advertising of Marlboro Light cigarettes. In its decision, the appellate court effectively repudiated a plaintiff’s entitlement to a full refund for claims alleged under the California Unfair Competition Law (“UCL”), Business & Professions Code section 17200, simply because “it appears inherently implausible to show a class of smokers received no value from a particular type of cigarette.” Slip op. at 30. After extensive litigation and appeals dating back to the original filing of the complaint in 1997, the San Diego County Superior Court held a bench trial in 2013. Though the trial court found that Philip Morris’ advertising of the light cigarettes was deceptive within the meaning of the UCL, it also denied the plaintiffs’ prayer for restitution due to the lack of “competent evidence of any loss attributable to the deceptive advertising” and denied injunctive relief based on mootness. Slip op. at 7, 9. Ultimately, the trial court held that the proper theory of restitution under the UCL is “the difference between the price paid and the value actually received” and that a full refund will not be available where the plaintiffs obtained any value apart from the unlawful conduct. Id. at 7. The plaintiffs appealed this decision.

Citing In re Vioxx Class of Cases, 180 Cal. App. 4th 116, 131 (2009), the Court of Appeal concluded that “[t]he difference between what the plaintiff paid and the value of what plaintiff received is a proper measure of restitution. In order to recover under this measure, there must be evidence of the actual value what the plaintiff received.” Slip op. at 13 (emphasis added). The court also cited several federal cases holding that a full refund is completely unavailable under the UCL if the product has conferred at least some value to consumers, notwithstanding the allegedly deceptive advertising. Id. at 20. Although the court did not completely foreclose a situation where a full refund might be available in a UCL case, it opined that such a case would only be in the extremely rare instance where a plaintiff can prove that he received no value from the at-issue product, such as, for example, a case where consumers sought a full refund for a dietary supplement on the grounds that it falsely advertised aphrodisiac qualities and had no value separate from that claim. Id. at 19-20 (citing Ortega v. Natural Balance, Inc., 300 F.R.D. (C.D. Cal. 2014). However, the panel was quick to add that even in that rare type of case, the Vioxx measure of restitution would still apply since “the price paid minus the value actually received [i.e. zero] equals the price paid.” Id.

Plaintiffs in future consumer cases may be able to limit In re Tobacco Cases II based on the fact that the plaintiffs in that case failed to provide any competent evidence of loss attributable to the deceptive advertising. Plaintiffs with more compelling evidence should fare better. The trial court had rejected the plaintiffs’ “conjoint survey” which asked survey participants to choose between hypothetical cigarette products based on certain factors, including health risks, because “[t]he survey did not measure the difference between the price paid . . . and the actual value received, but rather measured ‘benefit of the bargain’ damages not available in a UCL action.” Slip op. at 8. Further, counsel for the plaintiffs appeared to concede in his closing statement at trial that the proper measure of restitution, in fact, was the difference between the price paid and the actual value received, i.e. the Vioxx measure of restitution. The appellate court further rejected the plaintiffs’ alternate theory that a defendant could be required under the UCL to make a full refund solely for the purpose of deterrence, regardless of whether the plaintiffs received value from the product apart from the deceptive advertising, concluding that restitution under the UCL cannot be awarded exclusively for the purpose of deterrence. Id. at 18-29.

A few days prior to the In re Tobacco Cases II decision, a Ninth Circuit case, Pulaski & Middleman, LLC, et al. v. Google, Inc., was decided and provides some hope to the plaintiffs’ bar. However, Pulaski will need to be reconciled with In re Tobacco Cases II. No. 12-16752 (9th Cir. Sept. 21, 2015) (slip op. available here). In Pulaski, the court held that disagreement over how to calculate restitution will not defeat class certification under Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). However, the court also suggested that a full recovery theory could be an appropriate method for calculating restitution. The Pulaski court also stated that a restitution calculation under the UCL “need not account for benefits received after purchase because the focus is on the value of the service at the time of purchase[,]” but rather, “ the focus is on the difference between what was paid and what a reasonable consumer would have paid at the time of purchase without the fraudulent or omitted information.” Slip op. at 19-20. It then concluded, restitution under the UCL measures “what the [plaintiff] would have paid at the outset, rather than accounting for what occurred after the purchase.” Id. at 20.

If the ruling in In re Tobacco Cases II stands, plaintiffs in a UCL action could win the battle—i.e., their case could be certified, but lose the war—i.e., no damages award.

Authored By:
Jordan Lurie, Of Counsel

Recent Amendments to PAGA’s Cure Provisions Should Have Limited Impact

Many employers and defense attorneys are heralding recent amendments to Labor Code §§ 2699, 2699.3, and 2699.5 (collectively referred to as the Private Attorneys General Act of 2004, or “PAGA”)—precipitated by Assembly Bill (“AB”) 1506, Chapter 445 (available here)—as a key shift in wage statement litigation in California. However, their sentiments are premature and overstate the effect of this amendment, which will likely be minimal.

California Labor Code section 226(a) provides that employees’ wage statements must include nine specific pieces of information that allow employees to determine if they are being paid correctly. “The purpose of the wage statement requirement is to provide transparency as to the calculation of wages. A complying wage statement accurately reports . . . the information necessary for an employee to verify if he or she is being properly paid in accordance with the law.” Division of Labor Standards Enforcement (“DLSE”) Opn. Letter No. 2006.07.06 (July 6, 2006). The nine items include “the inclusive dates of the period for which the employee is paid,” (Labor Code § 226(a)(6)), and “the name and address of the legal entity that is the employer . . .” (Labor Code § 226(a)(8)). Labor Code section 226(e) allows employees to obtain damages for failing to correctly state the required items on wage statements. Specifically, an employee can collect the greater of (1) all actual damages or (2) $50 for the initial pay period in which the violation occurred and $100 for each subsequent violation for an aggregate penalty not to exceed $4,000. These remedies remain unchanged by the amendment.

Employees may also recover civil penalties on behalf of the state of California for these violations under PAGA. Under PAGA, employers are given 33 days to cure certain violations of the Labor Code before a civil action may be commenced. Previously, employers did not have the right to cure wage statement violations. AB 1506 will amend PAGA’s cure provision to allow employers to cure certain types of wage statement violations. However, the expanded cure provisions will not apply to all wage statement violations, but only those based on either missing or inaccurate inclusive dates of the pay period or the name and address of the employer. Although theoretically available, it may well prove extremely difficult for an employer to utilize the cure provision in practice. This is especially so because these two violations “shall only be considered cured upon a showing that the employer has provided a fully compliant, itemized wage statement to each aggrieved employee for each pay period for the three-year period prior to the date of the written notice sent pursuant to paragraph (1) of subdivision (c) of Section 2699.3.” In other words, the employer must provide proof that, within 33 days, it located and provided fully compliant wage statements to all employees who had received violative wage statements over the prior three years.

The amendment also likely has no retroactive effect, and therefore will not help any employer currently involved with PAGA litigation based on wage statement violations. Neither the amendment nor the legislative history provides for retroactive application, strongly supporting the notion that the amendments do not have any retroactive application. See Myers v. Philip Morris Companies, Inc., 28 Cal. 4th 828, 841 (2002) (quoting INS v. St. Cyr, 533 U.S. 289, 320-321, n.45 (2001)) (“[A] statute that is ambiguous with respect to retroactive application is construed . . . to be unambiguously prospective.”).

In short, the fact that the “cure” provision would be extremely difficult to perform in the limited time provided, and the fact that AB 1506 has no retroactive effect, means that the recent PAGA amendment should not affect the status quo regarding PAGA litigation.

Authored by:
Arnab Banerjee, Associate