Tag Archives: class

Follow up: Rulings Against Sheriff Arpaio

A while back images where shown of Sheriff Arpaio, from Arizona, having 220 immigrants march in a line with shackles.  (One story here).  This story, among others, prompted lawsuits against Arpaio. The first case granted an injunction against Arpaio and the Sheriff’s Office.  The second case ruled that the Human Smuggling Act (which allowed the arrest and prosecution of immigrants).

It is interesting to point out that these decisions came before the 9th Circuit Court of Appeals decision (Oct. 8, 2013), discussed here, which held Arizona S.B. 1070 was void and preempted.

In Manuel de Jesus Ortega Melendres v. Arpaio, No. CV-07-02513-PHX-GMS (D. Ariz. Oct. 2, 2013), U.S. District Court Judge Snow granted an injunction and listed reforms in which Arpaio and the Maricopa Sheriff’s Office must comply with.  This list includes, for example:

  • Supervisors shall provide effective supervision necessary to direct and guide Deputies.  Some of these include, for example: Respond to certain arrests; confirm the accuracy and completeness of Deputies’ daily reports;and hold Deputies accountable.
  • Supervisors enforcing Immigration-Related laws will directly supervise law enforcement activities.
  • Appointment of a federal independent monitor;
  • Hiring a Community Liaison Officer who is a sworn Deputy fluent in English and Spanish; and
  • Video recorder in every patrol car to record every traffic stop.

In We are America v. Maricopa County Bd. of Supervisors, No. CIV 06-2816-PHX-RCB (Sept. 27, 2013), U.S. District Court Judge Broomfield enjoined Arizona’s Maricopa Migrant Conspiracy Policy.

Sheriff Arpaio created this policy based on the Human Smuggling Act, Ariz. Rev. Stat. 13-2319 which allowed for the arrest and prosecution of immigrants for “conspiring to transport themselves within Maricopa County.”

District Court Judge, like the reasoning of the 9th Circuit a few days later, ruled that the statute was preempted by the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq.

The court also certified the class, which included “all individuals who pay taxes to Maricopa County and object to the use of county tax revenues to stop, detain, arrest, incarcerate, prosecute or penalize individuals for conspiring to transport themselves, and themselves only, in violation of Ariz. Rev. Stat. 13-2319 [Human Smuggling Act].”

via Courthouse News Service.

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Judge OKs $1.6B settlement in Toyota class action

You may remember this story that exploded all over the news.  Around the end of 2009 and start of 2010, the news reported that some Toyota cars had sudden-acceleration defects.

Toyota recently settled a federal class action.  U.S. District Court Judge James V. Seina approved of the federal class action settlement.  The settlement approved is for $1.6 billion, which includes attorney fees and costs calculated at $227 million.  The class members are said to receive anywhere between $125 to $10,000 each.

Toyota has denied liability for the alleged sudden-acceleration problem with the vehicles, as provided in the language of the settlement.  The ABA reports that a spokeswoman for Toyota stated,

This agreement allows us to resolve a legacy legal issue in a way that provides significant value to our customers and demonstrates that they can depend on Toyota to stand behind our vehicles,

It is important to note that Toyota is still facing trials in more than 80 state court lawsuits over the alleged sudden-acceleration defects.

via Judge OKs $1.6B pact in Toyota class action as trial begins in first wrongful death case – ABA Journal.

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Donning and Doffing: paying for changing “work clothes”?

The U.S. Supreme Court agreed Tuesday to decide the Donning and Doffing issue as, how does Section 203(o) of the Fair Labor Standards Act (“FLSA”) define “changing clothes.”

In Sandifer v. U.S. Steel, a class of 800 members filed a collective action against U.S. Steel Corp.  The issue on the 7th Circuit Court was whether workers deserved overtime pay for the time spent changing into work clothes and walking from locker rooms to their work site.

The FLSA ordinarily requires that workers be paid at least the federal minimum wage for all hours worked, and time and a half for hours worked over 40 hours in a week.  However, Section 203(o) provides that any time spent changing “clothes” at the beginning or end of each workday may be excluded from working time by the express terms of, or custom or practice under, a bona fide collective bargaining agreement.  In Sandifer, the collective bargaining agreement did not require compensation for changing time.

In this collective action, the class argued that Section 203(o) exclusion was inapplicable because their work attire did not constitute “clothes,” but rather “safety equipment.”  The alleged work clothes in this case included: flame-retardant pants and jacket, work gloves, metatarsal boots, hard hats, safety glasses, ear plugs, and a “snood” (a hood that covers the top of the head, the chin, and the neck).

The district court held that the FLSA did not require compensation for clothes-changing time.  The 7th Circuit Court of Appeals affirmed.  The 7th Circuit explained that the articles seems to be clothing.  The 7th Circuit stated that the articles of clothing were both, clothing and personal protective equipment,

Protection – against sun, cold, wind, blisters, stains, insect bites, and being spotted by animals that one is hunting – is a common function of clothing, and an especially common function of work clothes worn by factory workers.  It would be absurd to exclude all work clothes that have a protective function… and thus limit the exclusion largely to actors’ costumes and waiters’ and doormen’s uniforms.  Remember that the section covers not only clothes-changing time but also washing-up time, and workers who wear work clothes for self-protection in a dangerous or noxious work environment are far more likely to require significant time for washing up after work than a waiter.”

(emphasis added).

In addition, the 7th Circuit relied heavily on the fact that the collective bargaining agreement did not imply that workers were to be compensated for the time spent changing into work clothes, and washing up and changing back.

via Courthouse News Service.

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Sup. Ct. March Calendar

Next month, the Supreme Court will be hearing high profile cases – including the gay marriage debate (California’s Proposition 8 and DOMA), as well as voter registration laws.  In addition, the Supreme Court will hear a variety of important issues, such as class arbitration waivers, generic pharmaceutical regulations, and reimbursement or payment under the Takings Clause.

The following are the oral arguments scheduled for March.

Monday March 18

Arizona v. Inter Tribal Council of Arizona:

  1. Whether the 9th Circuit erred in creating a new, heightened preemption test under Art. 1, Sec. 4, Cl. 1 of the U.S. Constitution (“the Elections Clause”) that is contrary to the Supreme Court’s authority and conflicts with other circuit court decisions; and
  2. Whether the 9th Circuit erred in holding that under that test the National Voter Registration Act preempts an Arizona law that requests persons who are registering to vote to show evidence that they are eligible to vote.

Bullock v. Bankchampaign

  1. What degree of misconduct by a trustee constitute “defalcation” under Sec. 523(a)(4) of the Bankruptcy Code that disqualifies the errant trustee’s resulting debt from a bankruptcy discharge, and whether it includes actions that result in no loss of trust property.

Tuesday March 19

Sebelius v. Cloer

  1. Whether a person whose petition under the National Vaccine Injury Compensation Program is dismissed as untimely may recover from the United States an award of attorney’s fees and costs.

Mutual Pharmaceutical Co. v. Bartlett

  1. Whether the 1st Circuit erred when it created a circuit split and held – in clear conflict with this Court’s decisions in PLIVA v. Mensing, Riegel v. Medtronic, and Cipollone v. Ligget Group – that federal law does not preempt state law design-defect claims targeting generic pharmaceutical products because the conceded conflict between such claims and the federal laws governing generic pharmaceutical design allegedly can be avoided if the makers of generic pharmaceuticals simply stop making their products.

Wednesday March 20

Horne v. Dept. of Agriculture

  1. Whether the 9th Circuit erred in holding, contrary to the decisions of 5 other circuit courts of appeals, that a party may not raise the Takings Clause as a defense to a “direct transfer of funds mandated by the Government,” E. Enterp. v. Apfel, but instead must pay the money and then bring a separate, later claim requesting reimbursement of the money under the Tucker Act in the Court of Federal Claims; and
  2. Whether the 9th Circuit erred in holding, contrary to the decision of the Federal Circuit, that it lacked jurisdiction over petitioner’s takings defense, even though petitioners, as “handlers” of raisin under the Raisin Marketing Order, as statutory required under 7 USC 608c(15) to exhaust all claims and defenses in administrative proceedings before the United States Department of Agriculture, with exclusive jurisdiction for review in federal district court.

Dan’s City Used Cars v. Pelkey

  1. Whether state statutory, common law negligence, and consumer protection act enforcement actions against two-motor carrier based on state law regulating the sale and disposal of a towed vehicle are related to a transportation service provided by the carrier and thus preempted by 49 USC 14501-c-1.

Monday March 25

Oxford Health Plans v. Sutter

  1. Whether an arbitrator acts within his powers under the Federal Arbitration Act (as the 2nd and 3d Circuits have held) or exceeds those powers (as the 5th Circuit has held) by determining that parties affirmatively “agreed to authorize class arbitration,” Stolt-Nielsen S.A. v. Animalfeeds Int’l Corp., based solely on their use of broad contractual language precluding litigation and requiring arbitration of any dispute arising under their contract.

Federal Trade Commission v. Actavis

  1. Whether reverse-payment agreements are per se lawful unless the underlying patent litigation was a sham or the patent was obtained by fraud (as the court below held), or instead are presumptively anticompetitive and unlawful (as the 3d Circuit has held).

Tuesday March 26

Hollingsworth v. Perry

  1. Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and
  2. Whether petitioners have standing under Art. III, Sec. 2 of the Constitution in this case.

Wednesday March 27

United States v. Windsor

  1. Whether Section 3 of the Defense Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State; 
  2. Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and
  3. Whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

via New March argument calendar : SCOTUSblog.

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Lawyer’s misconduct did not prevent class action certification

In a class action, lawyers’ conduct when contacting (or trying to contact) possible putative class members, is regulated by the court or federal statute.

In this case, the 7th Circuit Court of Appeals determined  that class counsel’s faxing of unsolicited advertisement was misconduct.  The decision rested on the question of whether the law firm bribed a third-party in order to obtain a list of the possible putative class members.  Due to a lack of evidence that the payment of $5,000 was a bribe, the court allowed the class to be certified.

I raise this case because it raises the issue of attorney misconduct.  First of all, there are across-the-states ethics rules that govern attorneys’ conduct.  You can access ethics rules governing attorneys by going to the state court’s website and looking for the Board of Professional Responsibility or ethics rules.

As the 7th Circuit Court of Appeals highlighted multiple times, the law firm’s misconduct could possibly warrant disciplinary action.  The Court of Appeals commented that litigants and attorneys should report to the relevant bar authority (the Board of Professional Responsibility) instances of attorney misconduct.  Otherwise, the court warned, unpunished and inappropriate attorney conduct will continue.

In fact, there are ethical rules that discuss the reporting of misconduct.  In Minnesota, Rule 8.3 discusses the reporting of professional misconduct.  Rule 8.3 states, in relevant part,

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

Secondly, in a class action, the class representatives through their class counsel must show that the class counsel can appropriately represent the class.  In other words, the court must decide that the law firm can properly represent the entire class (which may in the hundredths).

So, if a law firm possibly engaged in misconduct, i.e. shows a lack of integrity – is the law firm’s representation proper?  The court did state that unethical conduct (regardless of whether it is prejudicial) raises “serious doubt” as to counsel’s ability to adequately represent the class.

via Courthouse News Service.

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Filed under Appellate, attorneys, courts, legal decision, Minnesota, rules, sanctions, Supreme Court

VA Can’t Refuse To Treat Medical Conditions Of Inmates

The District Court for the Western District of Virginia refused to dismiss a class action alleging that a womens prison in Virginia fails to treat medical conditions as a way to cut costs.

Five prisoners at Fluvanna Correction Center for Women FCCW in Troy, Va., are leading the charge against the Virginia Department of Corrections VDOC, which they say routinely violates Eighth Amendment rights and shows deliberate indifference to medical needs.

U.S. District Judge Norman Moon denied the states motion to dismiss Tuesday.

“Plaintiffs allege that, as a result of cost-saving concerns, medical personnel at FCCW have failed, or refused, to invest the time or effort required to acknowledge, examine, diagnose and treat them with respect to existing or potentially serious medical problems and concerns,” he wrote. “Indeed, the complaint is replete with specific examples of how Plaintiffs have been adversely affected as a result of this concern.”

The decision states that officials with the Virginia Department of Corrections allegedly received hundreds of grievances, which should have notified them of a continuing problem at the prison facility.  Consequently, Judge Moon held that the class may proceed.

“Given that plaintiffs have alleged that the VDOC defendants remained inactive despite personal knowledge of information disclosing alleged ongoing deficiencies in medical care, plaintiffs Eighth Amendment claim may proceed against them directly.”

The complaint alleges the prison refused to treat medical conditions in the following examples of the putative class representatives.

  • The prison failed to give the proper dosage of medication prescribed to Cynthia Scott after she was diagnosed with sarcoidosis, a disease that formed nodules in her lungs, spleen and liver. Scott also allegedly developed a blood clot in her leg that was left untreated until it traveled to her lungs.
  • Bobinette Fearce, a second named plaintiff, says she has degenerative disc disease, causing her chronic pain. The prison doctors allegedly refused to give her enough Tylenol to alleviate her pain. She also claims to suffer from incontinence and must wear a diaper at all times, but an FCCW doctor said she is “too old to be afforded the surgery that would correct her bladder condition.”
  • Patricia Knight says that a stroke caused her to lose grip strength and made walking difficult. Because her conditions allegedly prevent her from performing any prison job, Knight says she cannot afford the $5 “co-pay” for prison medical visits and therefore gets little medical care.
  • Marguerite Richardson says she visited the medical staff when she developed a number of boils on her leg. A test found that she had a highly contagious antibiotic-resistant infection, but the prison waited five months to give her medication to treat the infection, the complaint states.
  • Rebecca Scott, the fifth plaintiff, allegedly suffers from recurring tonsillitis. She says an FCCW doctor told her he “does not believe in removal of tonsils by surgery,” that the prison has rejected her requests to see an outside specialist.

via Courthouse News Service.

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Wal-Mart Class Action: class not narrowed

I bring to you this legal decision in a sex discrimination class action against Wal-Mart because it provides an example of a class that was not narrowed by the Court.  This is the Dukes case that went up to the Supreme Court to discuss the issue of commonality.  This decision can be found here.

In a 2001 federal complaint led by Betty Dukes, a putative class claimed that Wal-Mart Stores received paid women less and offered them fewer promotions than it offered men in comparable positions.

Though a San Francisco federal judge initially certified a class that would cover estimated 1.5 million women, making it the largest civil rights case in U.S. history, the Supreme Court disbanded that class in 2011 on the basis of lacking commonality. On remand, the plaintiffs filed a fourth amended complaint that seeks to certify a narrower class than that rejected by the high court.

The Bentonville, Ark.-based company responded with a motion to strike the class allegations. It claims that the statute of limitations bars the claims, and that the newly proposed class still fails to meet the commonality requirement.

Denying that motion, the Northern District of California set a deadline of Jan. 11, 2013, for the class-certification motion.  Undeterred, Wal-Mart sought leave to file an interim appeal with the 9th Circuit.

Wal-Mart argued that the Dukes Supreme Court decision should be interpreted as a total rejection of plaintiffs’ theories.  The District Court disagreed.  The District Court held that the Dukes Supreme Court decision rested on plaintiffs’ “inadequacy of their proof.”

The District Court explained:

The Supreme Court’s decision foreclosed claims that delegated discretion -alone- is sufficient to state a common question for purposes of Rule 23.  It does not follow that any time a plaintiff alleges that a company has a policy involving some amount of delegated discretion, the plaintiff is precluded from showing a classwide pattern or practice of discrimination or a common mode of exercising delegate discretion susceptible to classwide relief.  That is why the Supreme Court reached the question whether the plaintiffs had evidence on those points sufficient to establish a common question under Rule 23.

In his conclusion, Judge Breyer denied the interlocutory appeal “on the grounds that (1) immediate appeal would not, at this time, materially advance the ultimate termination of the litigation in light of the impending certification motion, and (2) no substantial grounds for difference of opinion exist regarding the commonality issue.”

via Courthouse News Service.

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