California Supreme Court to Tackle Labor and Insurance Issues

The California Supreme Court has five civil cases scheduled for its April calendar, each addressing important questions of labor and insurance law.  

  • Independent Contractors or Employees – Class Actions: In Ayala v. Antelope Valley Newspapers, Inc., S206874, the court will address the determination of whether and when common issues dominate in a class action in which the putative class members – in this case, newspaper home delivery carriers – are claiming that they were improperly classified as independent contractors when they should be employees.  The trial court denied certification on all claims, while the Court of Appeal approved certification on the issue of classification, but agreed that the wage and hour claims lacked commonality. In two other Court of Appeal cases which addressed this issue, one also found that the classification issue should not be certified as a class, while the other approved certification.  (Sotelo and Bradley, respectively).
  • Federal Arbitration Law v. California Labor Law:  The matter of Iskanian v. CLS Transportation Los Angeles, LLC, S204032, addresses the continuing dispute over the impact of the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion on California law.  In Concepcion, the U.S. Supreme Court empowered waivers of class arbitrations in most consumer contracts, which has resulted in a series of responses by California courts, as previously discussed by Sedgwick partner Kirk Jenkins here.  The issue in Iskanian is whether Concepcion implicitly overruled the court’s decision in Gentry, which held that a class arbitration waiver in an employment contract is not enforceable if the prohibition of class relief would undermine the vindication of the employees’ unwaivable statutory rights and would pose a serious obstacle to the enforcement of the state's overtime laws.
  • What Rights Do Undocumented Workers Have?  In Salas v. Sierra Chemical Co., S196568, the trial court dismissed claims under the Fair Employment and Housing Act in light of after-acquired evidence and unclean hands, based on plaintiff’s use of false documentation to obtain this employment.  The court initially granted review to address whether California statutes preserving access to state protections and remedies regardless of immigration status barred such a ruling.  The court then requested supplemental briefing on the issue of whether federal preemption precluded an undocumented worker from obtaining, as a remedy for a violation of “state labor and employment laws,” an award of compensatory remedies, including back pay.   
  • Can an Advertisement That Does Not Name or Refer to a Product be Disparaging?  On the grounds that the advertisement at issue neither named nor disparaged the underlying plaintiff’s product, the trial court granted summary judgment for the insurer in the related coverage dispute, which was affirmed on appeal in Hartford Casualty Ins. Co. v. Swift Distribution, Inc., S207172.  The court granted review on the issue of whether the pleading allegations were sufficient to constitute disparagement, perhaps by implication, to support a duty to defend.
  • Who Owns a Life Insurance Policy?  The court granted review over In re Marriage of Valli S193990 to determine the ownership of a life insurance policy.  The Court of Appeal concluding that the insurance policy on the husband’s life was the wife’s separate property upon dissolution of the marriage, even though the policy was purchased during the marriage and the premiums prior to the couple’s separation were paid with community funds, because the policy listed the wife as the owner.

The Supreme Court files its opinion within 90 days of oral argument, which here take place on April 2 and 3, 2014.  So, we should have decisions on these issues by or before July 2014.  For more details on Labor (compensation cases or other) or Insurance cases currently pending before the California Supreme Court, follow the links to see our summaries.

Image courtesy of Flickr by Ken Lund

When Words Are Not Text: Don't Bring a Knife to a Gun Fight

Appellate advocacy often comes down to a conflict over the meaning of words. The Supreme Court’s opinion in Vance v. Ball State Univ. provides graphic proof that not all fights over terminology are created equal. Advocates must understand the nature of the battlefield presented by their particular case.

Vance was an employment discrimination case based upon a hostile environment theory. Under prior precedent, an employer is liable for the actions of a co-worker of the plaintiff only if the employer is negligent. However, if the person creating the hostile environment is a “supervisor,” the employer is vicariously liable and the plaintiff need not prove negligence. The employee in question in Vance had the authority to direct some of plaintiff’s work activities, but did not have authority to fire, demote, or otherwise discipline plaintiff. The controlling issue was whether the employee qualified as a “supervisor.” Some courts of appeals had employed a narrow definition of the term, confining it to persons with authority to cause tangible changes in the plaintiff’s employment condition. Other courts and the Equal Employment Opportunity Commission construed the term broadly.

The majority opinion in Vance opted for the narrow interpretation, finding that requiring a “supervisor” to have the power to take tangible employment actions against the plaintiff was implicit in the court’s prior holding, and that such a rule was more easily applied.

For attorneys practicing outside the employment arena, the case bears an important lesson. The employee argued, among other things, that the definition of “supervisor” did not necessarily require disciplinary or hiring and firing authority, but extended to those persons who had authority to direct the employee’s work. The Supreme Court noted that the term “supervisor” had both a broad and a narrow meaning, both in law and in common usage. But finding a proper definition for the term was not the real issue:

[P]etitioner is misguided in suggesting that we should approach the question presented here as if “supervisor” were a statutory term. “Supervisor” is not a term used by Congress in Title VII. Rather, the term was adopted by this Court in [our prior opinions] as a label for the class of employees whose misconduct may give rise to vicarious employer liability. Accordingly, the way to understand the meaning of the term “supervisor” for present purposes is to consider the interpretation that best fits within the highly structured framework that those cases adopted.

In other words, it is a mistake to treat the judicially-created “supervisor” rule like a “text” such as a statutory term or contractual provision. The question is not what the term means in the abstract, but what the court meant when it created the underlying rule. This in turn requires the parties to delve into the details of the prior cases to determine the jurisprudential reasoning behind the use of the phrase.

Several observations seem appropriate. First, it is quite possible that plaintiff’s counsel was misled by the fact that plaintiff was asserting a statutory cause of action. If the case were purely a common law matter, the parties would likely disagree over whether a particular requirement—“proximate causes” for instance—was satisfied, but they would probably not argue over the definition of “proximate cause”; the term would be recognized as a judicial construct. Employment discrimination law exists in a sort of no-man’s land with Title VII setting forth very broad requirements, but with courts giving shape to its real content through a half century of case law. It is easy to confuse these court-created constructions with actual positive law.

Second, the Vance case illustrates that while some justices are confirmed textualists when construing statutues and shun appeals to legislative history, they remain receptive to arguments rooted in judicial history.

Finally, it appears that the deference given to the interpretations of the law by administrative agencies is substantially reduced when the agency attempts to interpret a judicial construct such as the supervisor rule. The Supreme Court gave the EEOC’s construction of supervisor short shrift, holding that it was entitled to deference so far as it was persuasive. This contrasts markedly with recent cases holding that agency construction of statutes and regulations are entitled to special deference in the agency’s field of expertise.

Advocates must carefully assess the nature of the real issue at conflict in a given case. An adept and persuasive construction of a judicially-created term may be useless when the court responds, “But that is not what we meant.” Such an advocate is like the black-clad master swordsman in Raiders of the Lost Ark who brandishes his scimitar with great skill—until Indiana Jones simply pulls out his revolver and shoots him.

Genesis Healthcare v. Symczyk: Nearly as Many Questions as Answers

When the petition for certiorari in Genesis Healthcare Corp. v. Symczyk was granted, it appeared that the Supreme Court was poised to resolve a clear split in the Circuits about the permissibility of “pick off” moves, at minimum for actions under the Fair Labor Standards Act if not, at least by inference, under Rule 23 as well. The Court granted cert on the following question: “Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff’s claims.”

But when the decision came down early last week, observers were left debating exactly how much the Court had decided, and what the path forward in the lower courts was likely to be.

The FLSA sets federal minimum wage, maximum hour and overtime guarantees which cannot be modified by contract. Although Congress barred traditional Rule 23 class actions under the FLSA in 1947, Congress has provided instead for an FLSA “collective action”: the plaintiff sues on behalf of “all persons similarly situated,” and interested employees must opt-in, rather than opting out.

Symczyk, a registered nurse, filed a collective action FLSA complaint alleging that her employer had deducted meal break times from her paycheck whether or not she had an uninterrupted break. Along with its answer, the defendant served the plaintiff with an offer of judgment under Federal Rule 68, offering the plaintiff all the unpaid wages she was seeking, plus “such reasonable attorneys’ fees, costs, and expenses” as the Court might set. Plaintiff never responded to the offer, and when the time limit ran out, the defendant moved to dismiss on grounds of mootness, the plaintiff having been offered full relief. The district court granted the motion, but the Third Circuit reversed. According to the Third Circuit, even if the individual plaintiff’s claim was mooted by the offer of judgment, the eventual certification of a collective action would relate back to the day the complaint was filed.

In an opinion by Justice Thomas (with the Chief Justice and Justices Scalia, Kennedy and Alito joining), the Supreme Court reversed the Third Circuit. The case was not an appropriate vehicle for resolving the mature split in the Circuits on the issue of whether a collective action plaintiff can be “picked off” by a Rule 68 offer, the majority found. Both the District Court and the Third Circuit had held that Symczyk’s own claim was mooted by the unaccepted offer, and Symczyk had failed to file a cross-petition for certiorari on the point. The plaintiff having waived the point, the majority assumed for purposes of the case – without deciding – that a Rule 68 offer of judgment, whether it’s accepted or not, moots the individual plaintiff’s claim.

Once the majority disposed of that issue, it had little difficulty disposing of the remainder of the case. As we discussed in our detailed preview of Symczyk here, the plaintiffs’ principal argument on appeal was that two 1980 Supreme Court decisions, Deposit Guar. Nat'l Bank of Jackson v. Roper and United States Parole Comm'n v. Geraghty, should be extended from Rule 23 class actions to FLSA collective actions. Roper and Geraghty had both held that under certain circumstances, the mooting of a class representative’s claim does not necessarily moot the action, but the Symczyk majority held that both were distinguishable.

The Roper-Geraghty line of cases, the majority held, turned on the independent legal status of a Rule 23 class once it has been certified. Absent employees who might – or might not – choose to opt in to an FLSA collective action, in contrast, had no such status. The representative plaintiff’s mere interest in continuing with a collective action despite the offer of judgment is not sufficient to overcome mootness. The majority acknowledged that mooting out the current plaintiff’s claim would have the effect of blocking unjoined employees from vindicating any claims they might have in the present suit, but pointed out that there was nothing keeping them from suing on their own.

Justice Kagan dissented, joined by Justices Ginsburg, Breyer and Sotomayor. The dissenters argued that the majority opinion was based on a fallacy: that the unaccepted Rule 68 offer had, in fact, mooted the individual plaintiff’s claim. Given that, in the dissenters’ view, “an unaccepted offer of judgment cannot moot a case,” the remainder of the majority’s decision answered a question that never should have arisen in the first place. Nevertheless, the dissenters made it clear that they disagreed with the majority’s resolution of that issue, arguing that the named plaintiff’s right to represent unjoined employees was just as much a cognizable stake in the action for an FLSA case as the right to represent a Rule 23 class was.

So where does all this leave the law? To be sure, Symczyk has laid to rest the notion that FLSA collective actions are merely Rule 23 class actions under a different name. Given the explosive increase in FLSA filings in recent years, this is important progress. The battle going forward seems certain to be joined on the issue which the majority declined to settle – whether a defendant can moot out an individual plaintiff’s claim by serving a Rule 68 offer of judgment. There seems to be something constitutionally dubious (to put it mildly) about the notion that litigation can or should continue without plaintiffs’ counsel having a named plaintiff with a concrete financial stake in the matter to represent. Nevertheless, whether or not a Rule 68 offer of judgment will moot a representative action will likely depend, at least in the short run, on the Circuit in which a case is pending, with each side of the Circuit split adhering to its own prior precedents until such time as the Supreme Court is ready to take up the issue again.

Game Over: Time Runs Out on Assistant Coach

Usually, a negligent misrepresentation case from the Minnesota Supreme Court would fall a bit outside my usual purview for blogging. But as a lifelong Kentucky basketball fan, how could I resist commenting on Williams v. Smith [pdf]: a suit revolving around the hiring of an assistant basketball coach with an ex-Kentucky coach as a defendant, and a former Kentucky player -- the son of another former Kentucky coach -- as the plaintiff's ex-boss? And it turns out there are important takeaways from the case.

Orlando "Tubby" Smith resigned as Kentucky's head coach in March 2007 to coach the University of Minnesota Golden Gophers. Shortly after he was hired, he contacted several individuals as potential assistants, including plaintiff Jimmy Williams - a former Minnesota assistant with pro coaching experience. After several days of negotiation, Smith allegedly called Williams, and asked if Williams was ready to join him at Minnesota. Williams said "yes." That same day, Williams called his then-boss, Oklahoma State head coach Sean Sutton, and told him he was resigning as assistant at OSU. Oklahoma State quickly moved to replace Williams, but Minnesota Athletic Director Joel Maturi balked at the idea of rehiring Williams, since Williams (among others) had been accused of NCAA rules violations during his earlier tenure at the school. Ultimately, Williams' apparent offer dissolved, and he sued the school and Maturi for breach of contract and negligent misrepresentation, among other things. Later, he sued Smith too, and the cases were consolidated. The jury found for Williams on the negligent misrepresentation claim, awarding $1.24 million in damages, the court of appeals affirmed, and the Supreme Court granted review.

Which is when several Justices headed for the door. Four of the seven Justices who either held degrees from the University of Minnesota, or in one case had taught there for several years, recused themselves from hearing the case.

So what happens when an appellate court loses its quorum? It’s not unheard of; most recently in California, the entire state Supreme Court recused itself in a case challenging the potential sale of state buildings, including the one where the Court sat. In such cases, pro tem Justices must be appointed from the lower courts -- if that's what it takes, an entire pro tem Court. In Williams v. Smith, two pro tem Justices were appointed, including one retired Justice from the state Supreme Court.

The principal issue before the state Supreme Court was: did Smith have a tort duty of care not to negligently mislead Williams?

The breadth of the negligent misrepresentation tort is an issue which frequently appears before state Supreme Courts around the country. Such cases sometimes illustrate the old maxim that hard cases make bad law, with sympathetic plaintiffs and facts that might seem, at least on the surface, to call for relief. But Minnesota, like most states, has resisted the temptation to expand the tort, limiting it to certain legal relationships and situations where one party had superior knowledge. Most states -- including Minnesota -- have so far refused to extend a duty of care to arm's length commercial transactions which are more adversarial rather than advisory.

But can a relationship with a government employee like Smith ever be "adversarial"? By a 3-2 vote, the Court concluded that under the circumstances, Smith owed Williams no tort duty: (1) the parties were sophisticated businessmen negotiating at arm's length; (2) Smith did not have superior knowledge, since -- at least according to the Court majority -- the limitations in Smith's authority to hire were noted in a publicly available website; and (3) the weight of authority around the country has refused to recognize a tort duty in negotiating for prospective government employment.

Williams v. Smith reinforces important lessons in employment litigation, especially when representing government employers. Plaintiffs may attempt to emphasize any sympathetic facts, but defendants should widen the issue, placing the rule plaintiffs advocate in the context of law around the country on negligent misrepresentation. Appellate courts are always concerned about the implications of their holdings for all the cases to come, so consider asking: if the rules are changed to allow the case at hand through the courthouse doors, what sorts of cases will follow?

Plaintiffs may try to blur the distinction between the plaintiff, a potential employee, and the general public; surely government officials should not mislead the public, negligently or otherwise? But this is a distinction that the Minnesota Supreme Court properly rejects. Federal, state and local governments employ millions of people across the country. In many contexts, there is no obvious reason why tort duties should be different for government employers than anyone else. Ultimately, the question rests where the Minnesota Supreme Court wisely left it: opening up arm's length negotiations between sophisticated business people to negligence suits invites a flood of new litigation in the courts and an entirely unjustified distortion of economic relationships.

Proof of Concept: Elgin and the Blogs

Last month, I joined a panel discussion on blogging during a PLI program on social media led by LexBlog's Kevin O'Keefe. I explained how important following blogs through an RSS Reader is to keeping up to speed in a world where information moves more quickly than ever.

I recalled that comment this week while thinking about the Supreme Court’s recent decision in Elgin v. Department of Treasury. Years ago, expert analysis of important new decisions would take weeks, if not months, to become widely available, largely through law reviews and journals. Today, busy lawyers have the benefit of the insights of lawyers and law professors around the country within days, sometimes hours. Elgin has sparked particularly interesting commentary about a range of difficult federal courts issues which has helped crystallize my reading of the opinions.

Elgin involved a group of Federal employees who were terminated for willfully failing to register with the Selective Service, as required by 5 U.S.C. § 3328. The Civil Service Reform Act (“CLRA”) establishes a comprehensive framework for reviewing adverse personnel actions taken against Federal employees: first, the case goes before the Merit Systems Protection Board (“MSPB”) for hearing, and the employee may then seek appellate review at the United States Court of Appeals for the Federal Circuit.

The employees sued in Federal district court, arguing that Section 3328 was unconstitutional as a Bill of Attainder and pursuant to equal protection (since women aren’t subject to Selective Service registration). This created two problems: a number of lower courts have held that the MSPB has exclusive jurisdiction over covered employment actions. But on the other hand, it seemed clear that the MSPB couldn’t adjudicate the constitutional claim because it can’t strike down statutes. So does the employee really have to first litigate his claims before a Board that has no power to decide them?

Elgin turns on a conflict between two related lines of authority. In Webster v. Doe, a covert CIA employee was terminated by the Director pursuant to Section 102(c) of the National Security Act after informing his security officer that he was gay. The Supreme Court held that although the broad language of the NSA was sufficient to bar judicial review on traditional administrative grounds, it was not sufficient to bar judicial consideration of constitutional challenges: “where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear.”

Only six years later, the Court decided Thunder Basin Coal Co. v. ReichThe Federal Mine Safety Act requires mine operators and miners to designate representatives to participate in regular safety inspections. The Secretary of Labor had broad authority to compel compliance, subject to review by the Mine Safety Commission, then by the appropriate Federal court of appeals. The miners designated two union employees as their representatives. The mine operator filed suit pre-enforcement, arguing that compelling it to first violate the Act and then challenge any penalties administratively violated its due process rights. Rather than applying Webster, the Supreme Court held that all that was necessary when Congress wished to merely delay, rather than preclude judicial review of constitutional claims, was that its intent be “fairly discernible.”

By a 6-3 vote, the Elgin Court held that Thunder Basin governed, and the district courts had no jurisdiction over petitioners’ constitutional claims. It made no difference that the MSPB had no jurisdiction to strike down the statute – the Federal Circuit did have such power once the case went up on appeal. Nor did it make any difference that the Federal Circuit, as an appellate court, was poorly suited to supervise any factual development that might be necessary to decide the constitutional issue; if the factual record was inadequate, the Circuit could remand the matter to the MSPB for discovery, and decide the claims when the case returned to it.

Join me below the jump for some thoughts about what it all means.


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Preemption, Standing and Vexatious Litigants on California Supreme Court's May Argument Docket

The California Supreme Court has scheduled oral arguments for May, including four civil cases.

  • Brown v. Mortensen: The Court will address whether the Federal Credit Reporting Act (15 U.S.C. § 1681 et seq.) preempts causes of action for the improper disclosure of medical information under California’s Confidentiality of Medical Information Act (Civ. Code, § 56 et seq.). This case attracted one amicus brief in support of appellants (by the National Association of Consumer Advocates). For more details about Brown, see the B & P 17200/Class Actions/Commercial update page.
  • Save the Plastic Bag Coalition v. City of Manhattan Beach: Does the plaintiff, an association of plastic bag manufacturers, have standing to challenge a local ban on the use of plastic bags? The Court also granted review to address whether the ordinance was properly held invalid for the failure to prepare an environmental impact report. This case has generated significant amicus interest, including four amicus briefs supporting the City’s ordinance (by Heal the Bay, Manhattan Beach Residents Association, Californians Against Waste, and [jointly] the League of California Cities and California State Association of Counties) and one supporting the plastic bag manufacturers (by the Pacific Legal Foundation). For more details about Save the Plastic Bag Coalition, see the Environmental update page.
  • Shalant v. Girardi: If a vexatious litigant subject to a prefiling order files a lawsuit while represented by counsel, may the litigant proceed in propria persona without first obtaining the approval of the presiding judge under C.C.P.§ 391.7 should counsel later withdraw? The Court of Appeal thought so, reversing the trial court’s dismissal. This case attracted one amicus brief supporting the plaintiff vexatious litigant (by the Los Angeles Society For The Prevention Of Cruelty To Animals). For more details about Shalant, see the Attorney-Related update page.
  • In re K.C.: What injury is needed for a parent to have standing to contest the denial of a petition to place his child with the child’s grandparents? This case attracted one amicus brief in favor of the Kings County Human Services Agency (by the California State Association of Counties). For more details about In Re K, see the Other update page.

Florida Court Allows Retaliation Claim By Former Employee Prohibited From Volunteering

In Gates v. Gadsden County School Board (.pdf), Florida’s First District Court of Appeals has allowed a former teacher’s retaliation claim to proceed where she was prohibited from continuing as a volunteer mentor, which she had done since her resignation.

Teacher Martha Gates filed a Title VII discrimination suit against the Gadsden County School Board in 2004 and resigned from her teaching position.  Even though she resigned, she continued to participate in the school district’s volunteer mentoring program.  Six months after her resignation, the School Board prohibited her from continuing to volunteer, and she filed a Title VII retaliation claim.  The trial court entered summary judgment against Gates, concluding that a volunteer could not maintain a Title VII retaliation claim and, further, that she could demonstrate no materially adverse employment action.

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No Private Right of Action Under Labor Code § 351 for Claim that Employer Wrongfully Took Tips

Labor Code § 351 bars an employer from collecting any gratuity that is left for an employee. Previous cases have addressed whether various tip pooling systems (i.e. systems which pool gratuities for division among a set of employees) operated by the employer are permitted under Labor Code § 351. Facing a split in the Court of Appeal on the existence of a private cause of action by the employee, the Supreme Court did not address the issue of whether the tip pooling system imposed in Lu v. Hawaiian Garden Casino was permitted. Instead, the Court unanimously ruled that Labor Code § 351 does not authorize a private right of action to sue an employer for allegedly taking gratuities. Finding no statutory language or legislative intent to provide such a remedy, the Court declined to create one. For more details about Lu, see the Employment-Compensation & Benefits update page.

ERISA Fee Claimant Does Not Have to Be Prevailing Party

In Hardt v. Reliance Standard Life Ins. Co. (.pdf), the Supreme Court resolved a Circuit split on the issue of whether an ERISA attorney’s fees claimant must be a prevailing party to obtain a fee award  -- in short, the answer is “no.”  Instead, an ERISA fee claimant must only show “some degree of success on the merits,” which is not “trivial success on the merits” or “a purely procedural victory.”  Anticipating that the degree of success question could take on a life of its own, the Court stated that this standard is satisfied "If the court can fairly call the outcome of the litigation some success on the merits without conducting a “lengthy inquir[y] into the question whether a particular party’s success was ‘substantial’ or occurred on a ‘central issue.’” 

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California Supreme Court Rejects Attempt to Expand Definition of Employer

In Martinez, the unanimous California Supreme Court affirmed the rulings of the lower courts by rejecting an attempt by agricultural workers to collect unpaid wages from food distributors who bought produce from that farm. In doing so, the court reviewed the history and jurisdiction of the Industrial Welfare Commission (IWC) and its work orders from 1916 to the present. The Court found that a civil action for unpaid wages authorized by Labor Code section 1194 was properly directed only to employers, and rejected attempts to expand the definition of "employ" as historically used by the IWC. For more Martinez case history, see the Employment-Compensation & Benefits update page.

California Supreme Court Dismisses Hertz Without Review


In March 2009, the California Supreme Court granted review in Hertz to address the issue of whether a worker’s inability to participate in vocational rehabilitation due to nonindustrial causes should be apportioned under Labor Code sections 4663 and 4664, as they were amended in 2004 by SB 899. The Court of Appeal had ruled that the statute required apportionment. (see H032438.) Briefing was complete, including several amicus briefs, and the matter was presumably waiting for oral argument. However, the Supreme Court has now dismissed this matter under Cal. Rules of Court, rule 8.528(b). As such, unless the court orders otherwise, the Court of Appeal opinion will remain unpublished

The California Supreme Court Sets A Busy Civil Calendar

The California Supreme Court has scheduled oral argument in seven civil cases, five at the end of May and two in Los Angeles at the beginning of June. These hearings should address a wide variety of issues, including:

  • Do employees have a private right of action against employers who take some of the tips? See the Lu case in the Employment-Compensation & Benefits update.
  • Should CA recognize the "Stray Remarks" Rule in discrimination cases? See the Reid case in the Employment - Other update.
  • Can an insured sue an insurer for fraudulently inducing settlement and seek to avoid the release without returning the money already paid? See the Village Northridge Homeowners Assn. case in the Insurance update.
  • Does an administrative proceeding constitute a “suit” to trigger insurance coverage? See the Ameron Internat. Corp. case in the Insurance update.  
  • Are non-signatory heirs bound by an arbitration agreement signed by the decedent? See the Ruiz case in the ADR update.
  • Does the damages enhancement for actions brought by elderly plaintiffs apply to §17200 actions? See Clark case in the Damages update.
  • Are evidentiary objections not expressly ruled on regarding an MSJ motion preserved for appeal? See the Reid case in the Appeals & Writs update.
  • What is the preclusive effect of the investigatory findings of a federal agency? See the Murray case in the Civil Procedure/Evidence/Discovery update.

These cases represent about 10% of the civil cases currently under review by the Court.

Update: Oral argument in Ameron has been continued to the September 2010 calendar.


Supreme Court Short List Profiles: Judge Kim McLane Wardlaw of the 9th Circuit Court of Appeals

As part of Appellate Strategist's ongoing evaluation of the “short list” of potential nominees to replace retiring Justice Stevens, we turn now to one of the nominees who was also on the short list to replace Justice Souter – Judge Kim McLane Wardlaw of the 9th Circuit Court of Appeals.

Judge Wardlaw is a California native, born in 1954 in San Francisco. She earned her undergraduate and law degrees at UCLA, graduating from law school in 1979. She clerked for the Hon. William P. Gray, U.S. District Court, Central District of California for two years, then worked in private practice as a litigator in Los Angeles from 1980-1995. Wardlaw worked on the Clinton-Gore Presidential Transition Team with the U.S. Department of Justice in 1992-1993, and later on the Mayoral Transition Committee for Los Angeles Mayor-elect Richard Riordan in 1993.

Wardlaw was nominated to the U.S. District Court, Central District of California, by President Clinton in 1995, and to the U.S. Court of Appeals for the Ninth Circuit in 1998. Both her confirmations were quick and unanimous. Such a history of bipartisan support might bode well for a future nomination.

Judge Wardlaw is often described as a moderate liberal or centrist, who would give the court greater diversity as the third female justice and the second Latina. She would also be the only non-Ivy League justice and offer extensive experience as a private litigator.

Join us below the jump for a review of notable Ninth Circuit opinions authored by Judge Wardlaw:

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Texas Supreme Court Grants Review in Six Cases

On April 9, the Texas Supreme Court granted petitions for review in the following cases:

  • Offshore Specialty Fabricators v. Wellington Underwriting Associates. The case addresses whether an all-risk insurance policy covers weather stand-by charges incurred by the insured.
  • XTO Energy Inc. v. Smith Production Inc. The case will determine whether joint operating agreements for oil and gas drilling operations are construed according to their language only or whether industry custom should also be considered.  A possibly fundamental case in the oil and gas field.  
  • Haygood v. de Escabedo. This case turns on whether the statute limiting recovery of medical damages to those “actually incurred” permits recovery of amounts charged but later written off by the provider.  The courts of appeals are divided on the issue, which arises in many personal injury cases.
  • Reid Road Municipal Utility Dist. No. 2 v. Speedy Stop Food Stores Inc. The case will determine whether the “property owner rule” which permits property owners who are not qualified as experts to testify as to the market value of the property applies to corporate property owners.
  • Andrade v. NAACP of Austin.  The underlying case is a challenge to the Secretary of State’s certification of certain paperless voting machines.  The case addresses whether voters have standing to challenge the Secretary’s certification and whether the Secretary enjoys sovereign immunity from such a suit.
  • Marsh USA Inc. v. Cook. The case turns on the enforceability of non-solicitation agreements upon a former employee and whether the agreement was supported by independent consideration.

Oral argument has not yet been set for any of these cases.

Texas Supreme Court Civil Issues Pending: Employment


Retaliatory Discharge.
Does the Anti-Retaliation Act, Tex. Lab. Code § 451.003, require a worker to exhaust administrative remedies before filing suit? Travis Central Appraisal District v. Norman, No. 09 0108, formerly 274 S.W.3d 902 (Tex. App.—Austin 2008), review granted 08/28/09.

Sexual Harassment.
Did plaintiff submit sufficient evidence to establish the elements of a sexual harassment claim? Was plaintiff constructively discharged under the facts of the case? Or was the evidence sufficient to support the jury’s finding of malice and a subsequent award of punitive damages against a corporate defendant for failure to properly investigate sexual harassment claim? Waffle House, Inc. v. Williams, No. 07 0205, formerly 2007 WL 290808 (Tex. App.—Fort Worth 2007), review granted 02/13/09.