Wage Law

There are now four cases in which the California Supreme Court has granted review and held pending further decision in the Brinker Restaurant v. Superior Court matter. Brinker, which "presents issues concerning the proper interpretation of California's statutes and regulations governing an employer's duty to provide meal and rest breaks to hourly workers" is fully briefed and awaits a hearing date for oral argument. The first grant-and-hold review was in Brinkley v. Public Storage (2008) 167 Cal.App.4th 1278, followed by the unpublished decision in Bradley v. Networkers International, LLC (Petition for review after the Court of Appeal affirmed the judgment in a civil action).

Add to them now Faulkinbury v. Boyd & Associates (2010) Cal.App.4th 1363 (Petition for review after the Court of Appeal affirmed in part and reversed in part an order denying class certification in a civil action) and the unpublished opinion in Brookler v. Radioshack Corporation (Petition for review after the Court of Appeal reversed an order decertifying a class action).

Next on the likely list of cases to be granted review and held - Hernandez v. Chipotle Mexican Grill, Inc. (2010) __ Cal.App.4th __.  (Opinion in pdf here, or in Word here). The Chamber of Commerce is taking a bit of a victory lap for this opinion, which was originally handed down as an unpublished decision, but was ordered published on October 28. It is likely to be a short lap, at least until and unless the Supreme Court weighs in on Brinker in favor of the employers.

The Supreme Court will not announce a decision today on the petition for writ of certiorari in Wal-Mart Stores, Inc. v. Dukes, case no 10-277. The matter is now on the court's December 3, 2010 conference calendar.

That was the question Justice Antonin Scalia posed during oral arguments today in AT&T Mobility LLC v. Concepcion. In one of the most closely watched cases of the new session, which some half-jokingly refer to as Arbitrations v. Class Actions, the Supreme Court will decide whether California law governing unconscionable contracts is preempted by the Federal Arbitration Act when a consumer contract specifies that the parties must arbitrate any disputes, and that the arbitration cannot include any claims on behalf of a class. All indications were that a majority of the justices were not interested in telling states that unconscionable agreements had to be enforced even if they fell under the scope of the FAA.

Andrew Pincus of Mayer Brown, who represents AT&T, argued that the California standard for determining unconscionability discriminated against arbitration and therefore ran afoul of the FAA. He called the lower court ruling "[making] up a special rule for arbitration." Justice Ruth Bader Ginsburg didn't buy it. "The rule is the same whether it's litigation or arbitration," she said.

If Justice Antonin Scalia and Justice Ruth Bader Ginsburg are suggesting that they hold the same position on the issue, it's a good bet that theirs is the majority position. If you want to read the transcript and draw your own inferences, click this link.

http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-893.pdf

It looks like class actions are going to be with us a while longer.