Articles from June 2018

Brown v. Wal-Mart: Good News for Plaintiffs Seeking Standing and Class Cert in Seating Cases

In April, Wal-Mart attempted and failed to defeat class certification and challenge standing for employee plaintiffs seeking redress for seating violations before the Northern District of California. On April 27, 2018, the district court released a scathing order denying Wal-Mart’s motion to decertify the class in Brown, et al. v. Wal-Mart Store, Inc., Case No. 09-cv-03339-EJD, stating that addressing Wal-Mart’s motion is “an exercise in futility” (slip op available here). The order dealt with the interpretation of two aspects of section 14 of California Wage Order 7-2001—one involving class certification requirements and the other involving standing.

Wal-Mart fought long and hard to decertify the class in Brown ever since it was first certified. In August 2012, the district court certified a class of “[a]ll persons who, during the applicable statute of limitations, were employed by Wal-Mart in the State of California in the position of Cashier.” Slip op. at 1. Wal-Mart appealed the certification to the Ninth Circuit. Two other appeals were pending before the Ninth Circuit at the time that dealt with similar issues, one of which was Kilby v. CVS, No. S215614 (Cal. April 4, 2016) (Kilby was previously covered on the ILJ here, and the Brown appeal was previously covered on the ILJ here). The Ninth Circuit had certified questions regarding interpretation of the Wage Order to the California Supreme Court in those two cases. Once the California Supreme Court issued its decision in Kilby, the Ninth Circuit decided to affirm certification in Brown in June 2016. Slip op. at 2. Proceedings in the district court resumed, but Wal-Mart again raised the issue less than two years later, filing a motion to decertify the class in January 2018. After briefing concluded, the district court rejected Wal-Mart’s arguments entirely.

Wal-Mart’s decertification argument failed largely because it relied on rehashed arguments (see slip op. at 4). Wal-Mart presented arguments regarding cashier duties that the district court had already explicitly rejected: Wal-Mart’s 30(b)(6) witness testified all cashiers perform the same essential tasks and the district court found her credible. Wal-Mart claimed newly-raised evidence as well, but failed to sufficiently describe how it was meaningfully different. Wal-Mart’s decertification argument also stumbled because it relied on arguments and evidence that “ignor[ed] or misapprehend[ed]” the Kilby decision. See slip op. at 5. The California Supreme Court stated in Kilby that “courts must examine subsets of an employee’s total tasks and duties by location . . . and consider whether it is feasible for an employee to perform each set of location-specific tasks while seated” Kilby, at 564. This means that the amount of time plaintiffs spend doing each duty is irrelevant in seating cases—the correct inquiry is whether the duties at each work location can reasonably be performed seated. See Cal. Code Regs., tit.8, § 11040, subd. 14(a) (Wage Order No. 4-2001). Disregarding this precedent, Wal-Mart argued that one of the named plaintiff’s claims were not typical of the class because she “was on register nearly 100% of her working time” and “did not spend time on tasks away from her checkstand, unlike other [c]ashiers.” Slip op. at 6 (internal citations omitted). In short, the district court wrote that as to decertification, Wal-Mart “does not have a leg to stand on.” Slip op. at 3.

Issuing a final blow, the district court denied Wal-Mart’s argument that the plaintiffs in Brown lacked standing using a bit of wordplay: “In a final ironic twist, Wal-Mart digresses from its tirade against sitting and takes a swipe at standing.” Slip op. at 6. Wal-Mart again ignored precedent set by Kilby by arguing that Brown plaintiffs could not satisfy the injury-in-fact requirement of Article III standing because the Wage Order was a procedural requirement rather than a substantive provision. In Kilby, however, the California Supreme Court explained that the Wage Order “provide[s] a minimum level of protection for workers.” Kilby, at 563. “In other words,” the district court wrote, “the Wage Order does not prescribe a procedure that businesses must follow but instead protects an employee’s concrete interest in her own well-being, and therefore “clearly sits in the [substantive provision] group.” Slip op. at 6.

This order is a victory for plaintiffs in seating claims, as it substantially strengthens arguments in favor of standing and class certification. This validation of Kilby may be one of many to come as the weight of precedent builds in favor of seating plaintiffs.

Authored by:
Ariel Harman-Holmes, Associate

McGill v. Citibank Breathes New Life into Roberts v. AT&T Mobility

A consumer class action against AT&T Mobility for cell phone data “throttling” was revived on March 14, 2018, by the Northern District of California, courtesy of a motion to reconsider and subsequent denial of a motion to compel arbitration (as to all but one of the plaintiffs) in Roberts v. AT&T Mobility, No. 15-cv-03418-EMC (slip op. available here). The case was on remand from the Ninth Circuit after it affirmed the district court’s order compelling arbitration. Roberts v. AT&T Mobility LLC, 877 F.3d 833 (9th Cir. Dec. 11, 2017), petition for cert. filed (U.S. March 9, 2018) (No. 17-1287). While Roberts was on appeal, the California Supreme Court handed down its decision in McGill v. Citibank, 2 Cal.5th 945 (2017), holding that an arbitration agreement that waives the right to seek the statutory remedy of public injunctive relief in any forum is contrary to California public policy and therefore unenforceable. On reconsideration, the district court relied on McGill to deny AT&T’s motion to compel arbitration because it contained a pre-dispute waiver of public injunctive relief.

The Roberts arbitration saga began in April 2016 when the district court compelled arbitration, rejecting the plaintiffs’ First Amendment challenge to the Federal Arbitration Act (FAA). On appeal, the plaintiffs argued that an order forcing arbitration would violate the Constitution’s Petition Clause because the plaintiffs had not “knowingly and voluntarily give[n] up their right to have a court adjudicate their claims.” Roberts v. AT&T Mobility LLC, 877 F.3d 833, 836 (9th Cir. 2017). However, the First Amendment right to petition is a guarantee only against abridgment by the government, and a plaintiff must get over the threshold showing of a state action to make a valid Petition Clause claim. Id. at p. 837. The Ninth Circuit shot down the plaintiffs’ constitutional argument primarily because AT&T’s conduct was not fairly attributable to the state. Id. at 839.

One month after Roberts was remanded to the district court, the plaintiffs filed for reconsideration of the district court’s order compelling arbitration based on McGill. In granting reconsideration, Judge Edward Chen noted that two other judges in the Northern District already had relied on McGill to deny motions to compel arbitration in similar circumstances. See McArdel v. AT&T Mobility LLC, 2017 WL 4354998 (N.D. Cal. Oct. 2, 2017), appeal docketed, No. 17-17246 (Nov. 2, 2017); Blair v. Rent-A-Center, Inc., No. C-17-2335 WHA (Oct. 25, 2017), appeal docketed, No. 17-17221 (Oct. 30, 2017).

Procedurally, the district court rejected AT&T’s argument that the plaintiffs had delayed in bringing the motion to reconsider, finding that the plaintiffs had exercised “reasonable diligence.” Slip op. at 3. On the merits, the district court examined the California Supreme Court’s rationale in McGill. Id. at 6. The court noted that McGill had not held that public injunctive relief claims are inarbitrable, but rather that the at-issue agreement in that case was “unenforceable because it prohibited her from pursuing public injunctive relief in any forum—arbitration or otherwise.” Id. This distinction is important as it avoids potential preemption by the FAA. See, e.g., Ferguson v. Corinthian College, 733 F.3d 928, 929 (9th. Cir. 2013) (noting that the Broughton-Cruz rule exempting claims for “public injunctive relief” from arbitration is preempted by the FAA). The district court also noted that the anti-waiver defense adopted in McGill applied to contract formation in general, not just arbitration contracts. Slip op. at 7. As such, it met the U.S. Supreme Court’s mandate that courts place arbitration agreements on equal footing with other contracts. AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011).

Finally, the district court rejected AT&T’s preemption argument, that claims for public injunctive relief interfere with the fundamental attributes of arbitration because they are “indistinguishable” from class-wide injunctive relief, which can be forcibly waived via an arbitration agreement consistent with the FAA. Slip op. at 9. The court analogized claims for public injunctive relief under the consumer protection statutes to representative actions under the California Private Attorneys General Act (PAGA), which the California Supreme Court has likewise held to be unwaivable. Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal.4th 348, 381 (2014), accord Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425, 427 (9th Cir. 2015).

It can reasonably be expected that Roberts will return to the Ninth Circuit. However, given the logical parallels between claims for public injunctive relief and PAGA, there is a good chance of another opinion like Sakkab upholding the California Supreme Court’s analysis, including with respect to FAA preemption. In any event, Roberts stands as a good reminder to the plaintiffs’ bar to be aware of the evolving law involving arbitration; a favorable decision in a recently-decided case may revive a class action from an order compelling arbitration.

Authored By:
John Stobart, Senior Counsel