Wage Law

Yesterday, the U.S. Supreme Court held, in Garcetti v. Ceballos, that government employees do not have unfettered free speech rights when discussing government business. The case makes it for more difficult for government employees to bring retaliation lawsuits when they are fired or suffer other adverse employment actions after engaging in whistleblowing against for public entites. Justice Kennedy wrote, for the majority, that the First Amendment does not protect "every statement a public employee makes in the course of doing his or her job." The decision was a 5-4 majority, with Justice Alito casting the swing vote. The case had been reargued following Sandra Day O'Connor's departure from the court.

In Ceballos, the Los Angeles County District Attorney's office appealed an appellate ruling in favor of a prosecutor who wrote a memo questioning whether a deputy sheriff had lied in an affidavit. Ceballos was later demoted, and claimed that the demotion was payback for his exposure of the lie.

The ruling is of some interest to wage and hour lawyers in California because it could have an effect upon the plight of Miles Locker, who was fired by the Labor Commissioner for expressing opinions that were politically unpopular among the new Schwarzenegger appointees. Locker's case can be factually distinguished from Ceballos, however, and some commentary in the dissent might give Locker's attorney's some further hope, where Justice Stevens wrote that "[t]he notion that there is a categorical difference between speaking as a citizen and speaking in the course of one's employment is quite wrong." Locker's speech occurred in his capacity as a private citizen.

Tomorrow, the California Supreme Court Case will hear oral argument in Californians for Disability Rights v. Mervyns LLC (Case No. S131798). The Supreme Court granted a petition for review after the Court of Appeal denied a motion to dismiss an appeal from the judgment in a civil action. This case presents the following issue:

Do the provisions of Proposition 64 (Gen. Elec. (Nov. 2, 2004)) that limit standing to bring an action under the Unfair Competition Law (Bus. & Prof. Code, section 17200 et seq.) to "any person who has suffered injury in fact and has lost money or property as a result of such unfair competition" (Bus. & Prof. Code, section 17204, as amended) apply to actions pending when the provisions of the proposition became effective on November 3, 2004?

There are numerous companion cases:

S132443  BENSON v. KWIKSET CORPORATION 
S132695  BIVENS v. COREL CORPORATION 
S133075  LYTWYN v. FRYS ELECTRONICS 
S133938  THORNTON v. CAREER TRAINING CENTER 
S134073  SCHULZ v. NEOVI DATA CORPORATION 
S135104  COHEN v. HEALTH NET 
S135587  CONSUMER ADVOCACY GROUP v. KINTETSU ENTERPRISES 
S138751  SCHWARTZ v. VISA INTERNATIONAL SERVICE ASSOCIATION 
S140272  HARTFORD FIRE INSURANCE v. S.C. (TURNER) 
S140396  BIVENS v. GALLERY CORPORATION 

On the same calendar, the Supreme Court will hear Branick v. Downey Savings & Loan Assn., which will answer the followup question:

If the standing limitations of Proposition 64 apply to actions under the Unfair Competition Law that were pending on November 3, 2004, may a plaintiff amend his or her complaint to substitute in or add a party that satisfies the standing requirements of Business and Professions Code section 17204, as amended, and does such an amended complaint relate back to the initial complaint for statute of limitations purposes?

This, too, has many companion cases, some of which overlap.

S133938  THORNTON v. CAREER TRAINING CENTER 
S134073  SCHULZ v. NEOVI DATA CORPORATION 
S135104  COHEN v. HEALTH NET 
S135587  CONSUMER ADVOCACY GROUP v. KINTETSU ENTERPRISES 
S138751  SCHWARTZ v. VISA INTERNATIONAL SERVICE ASSOCIATION 
S140272  HARTFORD FIRE INSURANCE v. S.C. (TURNER) 
S140396  BIVENS v. GALLERY CORPORATION 
S141766  YOUNG AMERICA CORPORATION v. S.C. (LYNCH) 

Oral argument will be May 31, 2006, at 9:00 a.m. in the Supreme Court's San Francisco courtroom. I am sure The UCL Practitioner will have plenty to say about the hearings.

We've found another California law related blawg; this one focusing on the actions of the California Supreme Court. It's called scocblog, by attorney Dylan B. Carp. It proclaims itself to be The first and only weblog devoted to the Supreme Court of California.

We have no reason to doubt that it is precisely that, though we wonder how one really knows. There are other blogs that proclaim themselves to be The First Legal Weblog Dedicated To California Employment Law or The first and only weblog on California’s Unfair Competition Law. It makes us wonder if we are, indeed, the First and Only Weblog Devoted to California Wage and Hour Law. We might be missing out on a little self-promotion.

Enjoy the long weekend.

A recent Court of Appeal ruling in a case called Violante v. Communities Southwest Development and Construction Co. holds that employees on public works projects who claim prevailing wage violations may not sue the prime contractor directly for claims arising under Labor Code § 1774, and must limit those claims to causes of action alleged against their own employer.

Our review of the statutory scheme governing prevailing wages finds no private right of action for enforcement by a subcontractor’s employee against other parties than the subcontractor. In addition, we reject plaintiffs’ theories of recovery based on principles of third-party breach of contract and unfair competition.

In Violante, three construction workers on a public works project in Yucaipa filed a class action lawsuit over a subcontractor's failure to pay prevailing wages. They sought to bring claims against the general contractor, including causes of action for statutory violation of Labor Code § 1774, breach of contract, and unfair business practices. The general contractor filed a demurrer to these three causes of action. The trial court sustained the demurrer without leave to amend. Two other causes of action against other defendants, for conversion and on a payment bond, were not subject to the same challenges. The Court of Appeal affirmed, based entirely upon its interpretation of the Labor Code.

Some defense firms are proclaiming that workers no longer have any remedy against general contractors for subcontractor wage violations. We don't quite agree. While a statutory claim under the Labor Code might not apply, one need not necessarily rely upon the solvency of a worker's employer, who might have been cheating on prevailing wages because it was not solvent enough to make payroll in the first place. A timely filed stop notice or Civil Code § 3247 payment bond claim (both of which are causes of action which can properly include the general contractor) can be asserted directly by workers who perform labor on a public work of improvement. The value of the stop notice and bond claims is, under those circumstances, not less than the minimum required prevailing wage. If there are enough funds still held by the public agency funding the project, or if there is a solvent bond surety on the project, as the law requires, those workers can still get paid.

In Violante, there is a payment bond claim, which apparently survived the pleading stage. If so, the general contractor is not out of the woods yet, because it undoubtedly will be required to indemnify the payment bond surety if the plaintiffs prevail against the bond. Battle? Yes. War? You can't tell by reading the opinion. But you can try. You can download the full text of Violante here in pdf or MS Word format.

Next week, the California Supreme Court will hear oral argument in the Smith v. L'Oreal USA, Inc. case (No. S129476). The case, wherein the Supreme Court granted a petition for review after the Court of Appeal denied a petition for writ of mandate, presents the following issue:

Where an employee's employment terminates upon the completion of an agreed-upon period of employment or a specific task, has the employee been "discharged" within the meaning of Labor Code section 201 such that "the wages earned and unpaid at the time of discharge are due and payable immediately"?

The employee and petitioner Amanza Smith was a model hired by L'Oreal USA, Inc. as a hair model for a one-day hair show for an agreed-upon wage of $500 for the day. Smith was not paid on the date of her assignment, and received her pay two months later. L'Oreal argued that she was an independent contractor, and that, in any event, the end of a fixed term of employment is not a "discharge" triggering waiting time penalties under Labor Code section 203.

Oral argument will be May 30, 2006, at 1:00 p.m. in the Supreme Court's San Francisco courtroom.

With the recent publication of the Tien case, we decided to check up on the progress of Pioneer Electronics (USA), Inc. v. Superior Court (2005) 128 Cal.App.4th 246, which is currently under review by the California Supreme Court. Pioneer Electronics dealt with the requisite notice and opportunity to assert a consumer's privacy right accompanying a precertification communication to members of a putative class in a consumer case. The court of appeal held that a trial court must take reasonable steps to assure that the consumer receives actual notice of his or her right to grant or withhold consent of the release of personal information, and that consent for such release be by the consumer's positive act, rather than by mere failure to respond.

It is a matter of great concern to employment class action lawyers. So what's the latest? The case is fully briefed, including a large number of amicus briefs, and the parties are awaiting notice of oral argument being set. Maybe we will get a ruling before the end of the year.

We couldn't comment on this one earlier because of a confidentiality provision in a document, the nature of which we are not permitted to discuss, but it appears that the 24 Hour Fitness class action settlement is now a matter of public record. On January 27, 2006, the United States District Court granted final approval to a $38 million settlement on behalf of almost 50,000 workers employed at 24 Hour Fitness locations in California. The case involved manager overtime pay, off-the-clock work, meal and rest period claims, improper commission deductions, and uniform violations.

The settlement resolved seven class action lawsuits filed against 24 Hour Fitness. The plaintiffs' class was represented by Rene Barge of the law firm Spiro, Moss, Barness, Harrison & Barge LLP, Gregory G. Petersen of Castle, Petersen & Krause LLP; James M. Trush of the Trush Law Office; Greg K. Hafif of the Law Offices of Herbert Hafif, APC; and the Law Offices of Larry A. Sackey. A smaller class action remains pending.

The UC Davis Business Law Journal published an interesting article this month entitled "Unintended Consequences - How the Passage of Ballot Proposition 64 May Increase the Number of Successful Wage and Hour Class Actions in California. The article discusses, among other things, how Prop 64 might end up allowing forcing plaintiff's attorneys into applying the easier certification standards under FRCP Rule 23(b)(1) and 23(b)(2) rather than the traditional 23(b)(3) standards. Author H. Scott Leviant writes:

The UCL supplies the tool for certifying wage and hour claims under the less stringent (b)(1) and/or (b)(2) standards. Class actions seeking monetary damages must, in most circumstances, be certified under the 23(b)(3) standard. [fn] However, the damage issue does not arise under the UCL since claims asserting a violation of the UCL arise only in equity.

The idea has us contemplating class action litigation in some cases which we otherwise would have quickly assumed to be a case that would be best brought as an individual claim. In that regard, Prop 64 might be viewed in hindsight as a dismal failure at achieving both its nominal goal and its true goal.

While it is clear that neither Prop 64 nor any other law will, in the short term, deter a small number of foolish people from filing a small number of frivolous lawsuits, the true failure of Prop 64 may be measured by its failure to achieve what proponents of the measure really wanted: a reduction in the amount of meritorious lawsuits redressing large-scale violations of law that otherwise might not have worked as class actions.

[Hat tip to The UCL Practitioner]

Workers employed by companies who do business with the City of Ventura will earn at least $12.50 an hour  (or $9.75 per hour with medical benefits) under a new ordinance passed this week by the Ventura City Council in a unanimous vote. Employees of non-profit agencies are excluded from the new law, as are workers employed by firms with city contracts worth less than $25,000.

The ordinance was passed as a result of an agreement between workers' advocated and the Ventura Chamber of Commerce, which apparently feared stronger measures that might have been enacted by voters under a local ballot initiative supported by the Ventura County Living Wage Coalition. Ventura is the fourth agency in Ventura County to pass such measures, following Port Hueneme, Oxanrd and the County of Ventura. According to an Associated Press report, there are approximately 100 cities and local governments with living wage requirements, most of which are in California.

The discoverability of class member communications has been further clarified by an opinion published Monday by the Second District Court of Appeal. In Tien v. Superior Court, the plaintiffs filed a wage and hour class action against Tenet Healthcare over meal and rest break violations and failure to pay overtime. The plaintiffs had served written discovery demands seeking the identity of all putative class members, numbering about 50,000. Tenet Healthcare objected, and the parties agreed to a compromise in which the following letter would be sent to 3,300 randomly selected class members:

To Whom It May Concern:

This letter is to advise you that a lawsuit has been filed on behalf of certain current and former employees of healthcare facilities owned by subsidiaries of Tenet Healthcare Corporation in California.  The lawsuit involves claims that non-exempt employees of Tenet hospitals at times were not provided meal periods and/or rest breaks and were not compensated for those missed meal periods and/or rest breaks.  Further, the lawsuit also involves a claim that the hourly employees regular rate of pay was not properly calculated, thus resulting in improperly calculated overtime.

The lawsuit mentioned above has been filed as a potential class action.  As a current or former employee of a Tenet hospital, you may be a member of a potential class.  If you would like more information please call the Law Firm of Joseph Antonelli at [...-....].

You are not required to call anyone regarding this lawsuit unless you personally wish to do so.  If you do elect to call, please be assured that doing so will not have any negative effect on your employment with any Tenet-related facility.

Tenet Healthcare did not provide 3,300 names to the plaintiffs or their lawyers. Instead, it provided mailing labels to a third party administrator for the mailing. Tenet Healthcare knew, therefore, who received notices. It then decided that it would also like to know who, among the 3,300, had responded to the mailing by contacting the lawyers. To find out, Tenet Healthcare served discovery demands seeking the names of all class members who responded.

The plaintiffs refused to comply, objecting on the grounds of attorney-client privilege, work product doctrine, and privacy rights of the class members, and filing a motion for a protective order to keep the identities of the responding class members secret. In their motion, the plaintiffs revealed that 81 class members had contacting the plaintiffs' lawyers (apparently the total rose to 82 shortly thereafter), and of those, 46 had requested legal representation. Most of those wanted their identities withheld from their employer however, fearing retribution in the workplace.

The trial court denied the motion for protective order, but the court stayed its order for an additional 30 days to allow counsel time to seek appellate review. Plaintiffs appealed by filing a writ petition in the Second District Court of Appeal.

The appellate court reversed, holding that the attorney-client privilege and attorney work product doctrine did not protect the putative class members' identities, but that the class members' privacy rights did. Specifically, the court held that "the privacy rights of the class members who contacted plaintiffs’ counsel outweigh any interest Tenet may have in learning their identity." The court offered three powerful reasons why Tenet's need for discovery was less compelling than the employees' right to privacy:

First, it appears that most, if not all, of the class members who contacted plaintiffs’ counsel did so in response to the neutral letter. That letter did not ask recipients to contact plaintiffs’ counsel if they had any relevant information. It merely advised recipients they could contact Joseph Antonelli (whose status as counsel in the case was not even mentioned in the letter) if they “would like more information.” Second, Tenet knows the identity of all class members, including the approximately 3,300 who received the neutral letter. It is free to contact class members to determine if they have any information they wish to share. Third, because Tenet should know how it compensated its employees and whether it provided them with meal and rest breaks, Tenet should be aware of most of the relevant facts in the case.

On the other hand, the employees had a compelling right to keep the fact of their responses and inquiries confidential:

The degree to which the identity of a client entails sensitive personal information may vary depending on the context. One of the more sensitive contexts is the employment context. Employees may be reluctant to engage in any act their employer may perceive as adversarial for fear of retaliation. Therefore, if employees feel their employer will be informed whenever they contact an attorney suing the employer, many would be deterred from exercising their right to consult counsel.

In sum, the court held that the trial court's refusal to enter a protective order constituted an abuse of discretion, in that "the privacy rights of the class members who contacted plaintiffs’ counsel outweigh Tenet’s need for the discovery. For this reason, the trial court should have granted plaintiffs’ motion for a protective order."

In a footnote, the Court of Appeal offered this parting advice to litigants:

In the future, parties who agree to the technique utilized by the parties in this case would be well-advised to make clear in their stipulation or in the letter to class members whether, and under what circumstances, a class member’s contact with plaintiffs’ counsel may be disclosed to the defendant.

We would add this: Class counsel should still include the work product doctrine and attorney-client privilege (which were not upheld here, but could still have merit upon different facts) in their objections to such discovery requests, but it is crucial to always include the employees' right of privacy as a further objection. Failure to do so after Tien could be malpractice.

You can download the full text of Tien here in pdf or Word format.

Later this week, on Thursday and Friday, May 18-19, Bridgeport Continuing Education is presenting its annual Class Action and UCL Conference at the San Francisco Hilton, 333 O'Farrell Street in San Francisco. Among the presenters will be Kimberly Kralowec, the author of the UCL Practitioner blog, who will speak on UCL remedies, and her colleague Jessica Grant (one of the trial counsel in the Wal-Mart break case) who will speak about wage and hour class actions. Defense perspectives will be offered by Angela Padilla of Morrison & Foerster, William Hebert and Matthew Ball of Kirkpatrick & Lockhart Nicholson Graham, Anna McLean of Heller Ehrman, Michael Sweet of Winston and Strawn and Bruce Copeland of Nixon Peabody. Troy Hoffman of the CPT Group will discuss class administration.

Bridgeport is offering a special three-for-two price, and for single attendees, a $45 "early" registration discount can be had if you register today. Tomorrow, the price increases by $45.

And every lawyer representing employees should be aware of the Bender v. Darden Restaurants, Inc.case (9th Cir. 2002) 26 Fed. Appx. 726, published only in the Federal Appendix (thus not [yet] citeable in Federal Court), wherein the 9th Circuit held that meal and rest period violations can support a punitive damage award.

"To sustain an award of punitive damages, a plaintiff need only prove a prima facie case of liability and show actual injury as a result of the wrongful conduct. Id. at 1165. Appellants had a cause of action under California Labor Code sections 226.7(b) (mandating payment of "one additional hour of pay at the employee's regular rate of compensation for each work day that the meal or rest period is not provided") and (authorizing employees to "sue directly . . . for any wages or penalty due him under [the Labor Code]"). They also suffered actual economic harm as a result of being denied rest and meal breaks. Therefore, the punitive damages award was properly predicated on the denial of breaks."

Most defense lawyers believe that punitive damages can never be predicated upon a meal period or rest period violation. However, not one of them has managed to persuade any of the judges handling our meal and rest period cases to strike punitive damage prayers.

Assemblyman Torrico's proposed legislation to add a Section 226.8 to the California Labor Code has been amended. Originally, AB 2186 stated:

It is the intent of the Legislature to prohibit deliberate misclassification of employees as independent contractors and to penalize intentional misclassification.

The bill did not state how such conduct would be penalized, and we expected substantial amendments to the bill before being heard in committee.

The amendments were more substantial than we would have guessed. The bill, amended May 1, 2006, now provides for $25,000 to $50,000 penalties, payable to the state, for such misclassifications. The amendment also now puts the statute in the Unemployment Insurance Code, rather than the Labor Code. There is no hearing date set.

Senator Clinton has introduced a brilliant bill, S. 2725, to amend the Fair Labor Standards Act of 1938 to provide for an increase in the Federal minimum wage and to ensure that increases in the Federal minimum wage keep pace with any pay adjustments for Members of Congress. The text:

IN THE SENATE OF THE UNITED STATES

May 4, 2006

Mrs. CLINTON (for herself, Mr. KENNEDY, Mr. JEFFORDS, Mr. LEAHY, Mr. HARKIN, and Mr. OBAMA) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions <hr>

A BILL

To amend the Fair Labor Standards Act of 1938 to provide for an increase in the Federal minimum wage and to ensure that increases in the Federal minimum wage keep pace with any pay adjustments for Members of Congress.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Standing with Minimum Wage Earners Act of 2006'.
SEC. 2. MINIMUM WAGE.

(a) In General- Section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)) is amended to read as follows:

(1)(A) except as otherwise provided in this section, not less than--

(i) $5.85 an hour, beginning on the 60th day after the date of enactment of the Standing with Minimum Wage Earners Act of 2006;

(ii) $6.55 an hour, beginning 12 months after that 60th day, adjusted for that year as provided for in subparagraph (B); and

(iii) $7.25 an hour, beginning 24 months after that 60th day, adjusted each year as provided for in subparagraph (B); and

(B) the wage provided for under clauses (ii) and (iii) of subparagraph (A) shall be automatically increased for the year involved by a percentage equal to the percentage by which the annual rate of pay for Members of Congress increased for such year as provided for pursuant to the Legislative Reorganization Act of 1946 (2 U.S.C. 31).'.

(b) Effective Date- The amendment made by subsection (a) shall take effect 60 days after the date of enactment of this Act.

Now that we are back to having only pure dicta and District Court opinions to guide the trial courts while the Supreme Court processes the cases which will decide whether pay under Labor Code § 226.7 is a wage or a penalty, it is worth watching what those District Courts are doing with the issue.

The first published District Court case addressing statutes of limitations for meal and rest period pay was Tomlinson v. Indymac Bank F.S.B. (C.D. Cal. 2005) 359 F. Supp. 2d 891, where Judge James V. Selna held that the extra hour of pay for meal and rest period violations were wages.

the Court notes that its conclusion is consistent with the Labor Code's definition of "wages," which is "all amounts for labor performed by employees. . . ." CAL. LAB. CODE § 200(a). Under Section 226.7, the employee is paid an amount (equal to one hour of regular pay) for labor performed during his meal break or rest period. For these reasons, HN16the Court finds that an employee earns the additional hour of pay when he is not given a meal break or rest period. An award under Section 226.7 thus is restitutionary and may be recovered under the UCL. Cortez, 23 Cal.4th at 178-79 ("An order that earned wages be paid is therefore a restitutionary remedy authorized by the UCL.").

Earlier this year, in Corder v. Houston's Rests., Inc. 2006 U.S. Dist. LEXIS 20170 (C.D. Cal. Mar. 21, 2006), Judge Cormac J. Carney disagreed, finding that the California Legislature intended for payments under Labor Code § 226.7 to be a penalty because it was imposed as a result of an employer's violation of the law.

However, most District Court judges are deferring any rulings on the meal and rest period statute of limitations issue, pending resolution of Murphy v. Kenneth Cole Production and related cases.

For example, in West v. Circle KStores, Inc., 2006 WL 355214 (E.D. Cal. Feb. 14, 2006), Judge William B. Shubb denied a motion for partial summary judgment on the statute of limitations under Labor Code § 226.7 on the grounds that the motion was "premature and seeks the court's opinion on matters related only to the scope of its damages. Such motions should not be heard before plaintiffs' motion for class certification."

Likewise, in Cornn v. UPS, 2006 U.S. Dist. LEXIS 20095 (N.D. Cal April 3, 2006), the employer brought a "motion to correct the class definition pending new California authority or, in the alternative, to bifurcate and stay a portion of the class pending determination by the California Supreme Court of whether claims under California Labor Code section 226.7 are penalties governed by a one-year statute of limitations." Judge Thelton E. Henderson denied the motion without argument, finding it premature, but ordered that "to the extent that additional discovery is necessary, the parties shall separately track time spent on discovery or other work related solely to Plaintiffs' section 226.7 claims beyond the one-year statute of limitations period; doing so will allow the Court to make a more appropriate award of attorneys' fees should that issue subsequently come before the Court."

A class action settlement in a case against Dunbar Armored, Inc. was recently denied preliminary approval by an Orange County Superior Court judge for the following reasons:

1) The Settlement Agreement does not call for the segregation of the Settlement funds and that the Defendant may distribute the funds.  This does not provide adequate protection for the members of the class.  The Gross Settlement Fund should be paid to a Claims Administrator on a date certain for distribution.

2) Definition of full and partial work weeks were not included in the Settlement Agreement.

3) The Settlement Agreement called for the residue to be used to pay the Defendant’s share of the tax obligations, without specifying that the Defendant would pay those obligations out of pocket if the residue was insufficient.

4) Money from uncashed checks to Class Members were to be kept by the employer. Law requires that uncashed wage checks must escheat to the State Controlled. Employer taxes will be paid on those funds and the employee will incur a tax liability on them.

5) The Settlement Agreement did not defined the claims for “unpaid wages” and “late paid wages” that were to be released, nor did the agreement specify how much of the fund was applied to those claims.

6) Pursuant to Code of Civil Procedure Section 384,  a Judgment must be entered; not a Dismissal as called for in the Agreement.

7) The claim for required a "Taxpayer Identification Number Certification."

8) The way subclasses were included, the creation of the different funds could mean that some class members will get a larger percentage of their fund than others and therefore be paid more if there are fewer in one sub-fund.

9) The Class Members should not be required to indemnify the Defendant for anything, especially the propriety of Defendant’s payroll tax obligations.

We often haggle for weeks over the attempt by employers to include similar terms in the "final" class action settlement agreement. In particular, employers always seem to want terms like those rejected in points 1, 3, 4, 6 and 9. A good judge won't approve a settlement that includes such provisions, folks. Stop asking.

Now that Michigan has raised its minimum wage to from $5.15 to $7.40 per hour, California's minimum wage is (tied with four other states) the nation's seventh-highest, behind Michigan, Washington, Oregon, Connecticut, Vermont, Alaska and the District of Columbia. New York, New Jersey and Hawaii are scheduled to pass California's $6.75 per hour later this year or in 2007.