Seemingly bucking the trend of corporations fighting to force consumers into individual arbitration to avoid class actions, Charles Schwab Corp., the prominent “discount broker,” has decided to revise its client account agreements to eliminate a provision that had reliably allowed Schwab to prevent clients from filing class actions against it, by requiring clients to take any disputes to individual arbitration.

However, rather than an altruistic gesture on Schwab’s part, removal of the class action waiver comes as the result of a complex set of events, whereby a FINRA (Financial Industry Regulatory Authority) panel decided to permit such waivers, but the decision was later opposed by the larger body of the FINRA itself. Thus, rather than renouncing arbitration and class action waivers altogether, it appears that Schwab is temporarily opting out while the FINRA sorts out its ultimate policy decision. FINRA is the organization that has conducted the bulk of arbitrations between Schwab and its clients.

Republicans in Congress are pushing a bill that would amend a cornerstone provision of the Fair Labor Standards Act of 1938: overtime pay for more than 40 hours of work in a week. Under the proposal, private sector employees would have the same flexibility as do most government workers in choosing between the familiar time-and-a-half overtime pay or converting overtime hours into time off, known as “comp time.”

Republicans advocating for the bill’s passage have argued that the choice between comp time and overtime pay makes sense in a modern economy in which parents often struggle to spend more time with their children, and would value the chance to do so more than additional pay. The bill is seen as an attempt by Republicans to apply free-market principles that optimize individual choice and benefit average working people, following an election in which a substantial proportion of swing voters were alienated by the party’s perceived indifference to middle-class workers and close relationship with “the 1%.”

Democrats largely oppose the bill, contending that it would create an incentive for employers to pressure workers to opt against overtime pay, and would provide no assurance that workers would or could actually use the time off. President Obama has indicated that he would veto the bill if it is passed without sufficient protections for workers who prefer traditional overtime pay to comp time. The Republican-controlled House of Representatives has passed the bill by a 223-204 margin, which now faces a steep challenge in the Democrat-controlled Senate. Indeed, it is not even clear if the measure will be taken up on the Senate floor.

It has been said that history repeats itself, first as tragedy, then as farce. For Bank of America, its acquisition of Countrywide has been a persistent melding of farce and tragedy. Earlier this year, Bank of America agreed to pay $11.6 and $8.5 billion to settle, respectively, with Fannie Mae (over mortgage-backed derivative investments) and the federal government (on behalf of home-loan borrowers). Now, Bank of America and bond insurer MBIA have agreed to a complex set of terms that will settle allegations related to MBIA’s insurance obligations as to the mortgaged-backed securities, a deal which includes payment of $1.6 billion.

Founded in 1973, MBIA’s business model focused on relatively low-risk insurance against municipal bonds defaulting. However, by 2008, MBIA had become at least as prominent in insuring mortgage-backed securities, including those generated by two Bank of America acquisitions, Countrywide (which generated the risky home mortgages) and Merrill Lynch (which created and sold securities backed by the Countrywide mortgages). MBIA found itself faced with having to pay in excess of $3 billion in claims to Merrill Lynch, but without the funds to avoid default. The settlement restructures MBIA’s obligations to Bank of America, and the $1.6 billion in cash will allow MBIA to stay in business.

Announcement of the deal led to a sharp increase in Bank of America’s per-share price, suggesting that analysts had expected the settlement to be even more costly for the bank. For MBIA, the settlement’s timing was at least as important as the amount, as MBIA was believed to have only enough cash to sustain its operations for a matter of weeks at the time of the settlement. The price of MBIA stock increased by 45% on news of the settlement, strongly suggesting that the cash infusion from the settlement didn’t merely benefit MBIA, it saved the company.

California’s Court of Appeal continues to articulate a measured, well-reasoned class action jurisprudence, most recently by taking a second look at its own order affirming a trial court’s denial of class certification. See Faulkinbury v. Boyd & Assocs., Inc., ___ Cal. Rptr. 3d ___ (Cal. Ct. App. 2013) (slip opinion available here).

In the underlying action, the plaintiffs sued on behalf of some 4,000 fellow security guards, alleging nonpayment of overtime as well as meal and rest break violations. The trial court denied certification across the board, and on appeal the certification as to the overtime claims was granted. However, pre-Brinker, the Court of Appeal affirmed the denial of certification for the meal and rest break claims. See Faulkinbury v. Boyd & Assocs., Inc., 185 Cal. App. 4th 1363 (2010).

The California Supreme Court later granted review and held pending further decision in its landmark Brinker decision (53 Cal. 4th 1004). Upon review in light of Brinker, the Court of Appeal has now ordered that the same meal and rest break claims be certified. Increasingly, despite having been assessed as something of a draw when it was issued, Brinker is looking like a net benefit to workers seeking to enforce California’s meal and rest break statutes, with Faulkinbury vividly illustrating what workers faced both before and after Brinker.

While the court’s pre-Brinker analysis was barely indistinguishable from a rough finding on the merits (“the trial court reasonably could conclude there was insufficient evidence of classwide denial of off-duty meal breaks” (185 Cal. App. 4th at 1383)), the post-Brinker analysis focused on the plaintiff’s theory of liability, consistent with Brinker and other similarly-reasoned authority. The court found persuasive evidence that the defendant’s meal break policy “was uniformly and consistently applied to all security guard employees.” As such, citing Brinker, the court held that “‘[c]laims alleging that a uniform policy consistently applied to a group of employees is in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for class treatment.’” Slip op. at 13 (internal citation omitted).

This most recent Faulkinbury decision is notable in making direct reference to and relying on Justice Werdegar’s Brinker concurrence, noting that “if an employer’s records show no meal period for a given shift, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided, shifting the burden to the employer to show the meal period was waived.” Slip op. at 10, citing Brinker, 53 Cal. 4th at 1052 (Werdegar, J, concurring). Thus, rather than giving rise to individual questions that destroy the predominance necessary for certification because such records speak to the “why” behind missed breaks, the Werdegar concurrence, and now Faulkinbury, sensibly regards such evidence as tending to validate a plaintiff’s theory of meal break liability.

The Faulkinbury panel included Acting Presiding Justice William F. Rylaarsdam, Associate Justice Richard D. Fybel, and Associate Justice Eileen Moore. Justice Fybel wrote the unanimous opinion.