class action & privacy news
August 6, 2015 – Los Angeles Superior Court Judge Emilie Elias today considered the petition for coordination filed by the firm on behalf of client Candace Holzer in her case against auto dealership giant DCH/Lithia Motors for wage theft under California statutory law. Currently pending are seven separate court cases filed by different employees against one or another of the various DCH entities and dealerships, in addition to a growing number of private individual arbitrations, for similar wage and hour violations. In a proceeding that lasted most of the morning, Judge Elias agreed with the firm that its follow-on case for employee Ryan Dale (who says DCH/Lithia coerced him and others into signing “settlement” agreements over these claims without the benefit of counsel and in violation of law) should be deemed an “included action” in any coordination. She retained jurisdiction over all such cases, stayed proceedings in them, and allowed the parties to commence a mediation of all claims before one mediator. Judge Elias set a deadline of March of next year to conclude that mediation. A court order is pending.
June 30, 2015 – The firm has filed a second lawsuit against DCH Auto Group (now owned by Lithia Motors, one of the largest chains of car dealerships in the nation) for claims arising from DCH’s labor practices in the State of California, where it owns and operates over a dozen car dealerships. In a complaint filed today in Los Angeles County Superior Court, auto mechanic Ryan Dale accuses DCH of fraud and unfair competition, among other things, in connection with DCH’s practice of calling employees into “settlement” meetings with management and coercing those employees to sign away their wage claims for pennies on the dollar, in violation of law. These “settlement” meetings were apparently in response to allegations which continue to accumulate and are now pending in six separate lawsuits in three different California Superior Courts against DCH alleging systemic and persistent wage and hour law violations. Employees’ claims include failure to provide statutorily-mandated breaks (and falsifying time records to cover them up), failure to pay minimum wages, and failure to pay all earned wages. The firm recently sought to have those lawsuits coordinated by one judge; the California Judicial Council will hear the firm’s application to do so in early August.
June 12, 2015 – The firm applied today to the State of California's Judicial Council to coordinate several PAGA complaints against DCH Auto Group (USA) in the Los Angeles Superior Court. Six suits are pending in Southern California by current and former employees against the auto sales giant and its affiliated dealerships alleging numerous and persistent violations of the California labor code, including denying employees meal and rest breaks, failing to pay for overtime work, failing to pay minimum wages, failing to reimburse employees for out-of-pocket costs, and falsifying employees’ time records to cover it up. Coordination of the cases expands and consolidates the potential number of dealerships included in issue as well as expands and consolidates the categories of employees covered by the claims to include clerical and office workers, service writers, auto mechanics and technicians, and sales people. The firm’s investigation of this matter is ongoing: For more information about that subject, click here.
Settlement reached in digital download case against UMG, Capitol Records
April 14, 2015 – Firm partner David Given joined other court-appointed lead counsel today in their motion for preliminary approval of an $11.5 million settlement reached on behalf of a group of recording artists and others in a class action case against UMG Recordings and Capitol Records over their treatment of income derived from digital downloads and ringtones. The settlement, which followed more than two years of negotiations and four years of hard-fought litigation, includes a fund for claims by class members for past due amounts as well as an increase of 10% in download and ringtone royalty rates. The firm’s clients include the Rick James Estate, David Coverdale (Deep Purple, Whitesnake, Coverdale/Page) and Rock and Roll Hall of Fame member Dave Mason (Traffic, Dave Mason Band), who served as class plaintiffs in the case. The court has set a hearing on the motion for April 28th.
Court again sides with plaintiffs in privacy class action against Apple, app developers
March 23, 2015 – Federal District Court Judge Jon S. Tigar today issued a 34-page decision upholding claims against Apple and a dozen of the country’s largest application developers for violations of law in connection with the practice of uploading address book data from users’ iDevices without the users’ authorization or consent. Today’s order is the third in which Judge Tigar has upheld plaintiffs’ class claims in the case (in which the court appointed the firm lead counsel in Oct. 2013) against defendants’ almost three-year long legal assault. In today’s order, the court found that plaintiffs adequately stated an “extensive” and, allegedly, false and misleading advertising campaign aimed at convincing the public that Apple’s personal computer devices were (and are) “secure and include comprehensive consumer-privacy protections.” The court also sustained, as it did before, plaintiffs’ invasion of privacy claims against both the app developers and Apple despite several lines of legal attack, including that the federal Copyright Act preempted those claims in their entirety. Defendants now have 14 days to answer plaintiffs’ consolidated complaint, after which the case will proceed to the pre-trial discovery stage.
Firm rolls over attempt to throttle car dealership proceeding
March 12, 2015 – Firm partner Nick Carlin succeeded today in overcoming multiple objections to moving forward with client Candace Holzer’s wage theft case against DCH Auto Group, one of the largest auto dealerships in the nation, a case brought under California’s Private Attorneys General Act and seeking broad compensatory relief. Siding with Ms. Holzer, Los Angeles County Superior Court Judge Michael Johnson rejected DCH’s attempt to compel arbitration of Ms. Holzer’s wage and hour claims on behalf of herself and all other non-exempt employees throughout the State of California; Judge Johnson also refused to grant a stay of Ms. Holzer’s case, as requested by DCH on multiple grounds, including the existence of pending arbitration proceedings by others on their own individual wage theft claims. The court’s order is pending. For more information about the case, which now enters the pre-trial discovery phase, click here.
Firm launches wage theft case against famed Berkeley restaurant
February 23, 2015 – The firm today filed a 23-page federal court complaint against the owner and operator (together with the corporate parent) of Spenger’s Fresh Fish Grotto, the popular seafood restaurant located in Berkeley, on behalf of a putative class of the restaurant's workers. The class action complaint alleges a pattern and practice of unlawful conduct, including forcing employees to work off-the-clock and without compensation, failing to provide statutorily required breaks, failing to provide accurate and complete wage statements and engaging in fraudulent recordkeeping. The court has set the first hearing in the case for May.
$4 million bank overdraft fee settlement preliminarily approved
October 20, 2014 - In an order entered today, a federal district court in Miami granted preliminary approval to a $4 million dollar class-action settlement with M&T Bank. As part of the order, firm partner Nicholas Carlin was appointed class counsel, and the firm's client was appointed class representative. The order noted that class counsel had “vigorously and competently represented the Settlement Class Members’ interests in the Action.” The case, originally filed in 2009, involved the bank's practice of posting debit card charges in high to low order, rather than chronologically, in order to maximize overdraft fees charged to customers, a practice one court has described as an "accounting scam." The firm has settled similar cases against Bank of the West and Bank of America. Notice to class members will be sent out in December, with the final approval hearing set for March 4, 2015.
Amended complaint sharpens focus in privacy case against Apple and app developers
June 27, 2014 -- The firm today filed an amended complaint on behalf of plaintiffs in the class action case against Apple and a dozen of the App Store’s largest app developers (including, among others, Electronic Arts and Twitter) asserting breaches of privacy relating to the unauthorized uploading of address book data from consumers’ iDevices. The amended complaint comes in response to the 55-page decision of Federal District Court Judge Jon S. Tigar on defendants’ various motions to dismiss plaintiffs’ claims in their entirety. Issued in May, that decision granted in part and denied in part those motions. The amended complaint serves to address concerns raised in Judge Tigar’s decision with plaintiffs’ prior pleadings, while keeping intact claims the court said could proceed, some subject to additional factual detail. Judge Tigar appointed the firm interim co-lead counsel in the case last October.
$4 million settlement reached in bank overdraft fee case against M&T Bank
April 22, 2014 -- PE&G partner Nicholas Carlin helped achieve a tentative settlement in a bank overdraft fee case on behalf of a class of M&T Bank customers. The named plaintiff is a Maryland resident who alleged that the bank unlawfully charged her and other bank customers excessive overdraft fees on their debit card transactions. The plaintiff alleged that the bank employed a bookkeeping device to multiply the number of overdraft occurrences its customers would incur, and thereby increase the number of overdraft fees charged to a customers' account. By re-ordering customers' daily debit transactions in a high-to-low order - instead of in the order in which they occurred - the bank depleted account balances as fast as mathematically possible, maximizing the possibility that insufficient funds would be left for the string of lower dollar transactions. Following several months of mediation, M&T Bank agreed to pay $4 million to settle the case. The settlement will be presented for preliminary approval to the federal judge presiding over the case in the near future.
Court grants final approval of wage and hour class action settlement
February 19, 2014 -- The San Francisco Superior Court today approved the settlement of a class action on behalf of hundreds of minimum wage workers, who alleged they had been unlawfully denied meal and rest breaks. Under the settlement, each of 525 class members, represented by partner Nicholas Carlin, will receive payments averaging over $1,650, and in many cases exceeding $5,000. In addition, defendants will pay a record $45,000 in penalties to the California Labor & Workforce Development Agency.
Federal Court gives preliminary approval to settlement with Warner Music in digital download case
January 23, 2014 -- Federal District Court Judge Richard Seeborg today granted preliminary approval to a deal struck between a group of recording artists and Warner Music Group over the treatment of monies derived from digital downloads and ringtones. The settlement was concluded following a year of intense negotiations between a team of lawyers representing the record label and PE&G and the other lead law firms representing the artists. The deal provides an $11.5 million fund for pre-digital age artists to make a claim for past amounts based on their download activity together with an uplift in the royalty rate paid to artists by WMG on download income. Notice to the class and the period to make claims by class members has commenced. A final approval hearing is scheduled for October. For more information about the settlement, and what an artist may need to make a claim, click here.
Court preliminarily approves $1.9 million settlement of wage and hour class action
November 18, 2013 -- The San Francisco Superior Court granted preliminary approval of the settlement of a class action on behalf of approximately 700 minimum wage workers, represented by Nick Carlin, who alleged the workers had been unlawfully denied meal and rest breaks. Under the settlement, class members are expected to receive roughly one hour of pay for each shift worked during the time period covered by the lawsuit or an average of over $1,500 each. Defendants will also pay PE&G's fees and costs, as well as $45,000 in penalties to the California Labor & Workforce Development Agency. The court will hold a final approval hearing on February 19, 2014.
Court appoints firm lead counsel in privacy case against Apple and app developers
October 22, 2013 -- In an order issued today, Federal District Judge Jon Tigar has appointed PE&G (along with its co-counsel) lead attorneys in a class action involving Apple and many of the tech industry's largest application developers over the wide-spread practice of uploading consumers' address book data from iDevices without consumers' authorization or consent. The practice came to light following reporting in the New York Times and other major news publications in February of last year, and led to one app developer's civil prosecution by the Federal Trade Commission. The case has survived multiple attacks by Apple and the other defendants; those defendants' third round of motions to dismiss the class plaintiffs' consolidated amended complaint are set to be heard by Judge Tigar in January.
Court allows privacy case to proceed against Apple, sets date for consolidated complaint
August 5, 2013 -- Federal District Judge Jon Tigar has ruled against Apple Inc. in a case over the uploading of private address book data from iDevice users’ phones and tablets without their knowledge or consent. In his 17-page order issued today, Judge Tigar sustained all but one of the claims made against Apple from legal attack, allowing the case to proceed to the discovery stage, where information will be sought about Apple’s policies and practices. In earlier related proceedings, Judge Tigar allowed a consolidated amended complaint to be filed in four cases brought over the same issues and asserting substantially the same claims against Apple and 14 of the largest application developers, including Facebook, Path and Foursquare. PE&G is helping to lead the plaintiffs’ effort against Apple and these app developers in the case. Judge Tigar has ordered the consolidated amended complaint to be filed on or before Sept. 3rd.
Court orders restaurant chain to turn over evidence, pay monetary sanction for obstruction
April 26, 2013 -- Defendant restaurant chain and its owners stonewalled the firm's attempts on behalf of its restaurant worker clients, to obtain material evidence, including records of time worked and wages earned by employees, and evidence of defendants' financial dealings. Paul A. Renne, Esq., acting as Pro Tem Judge of the San Francisco Superior Court, had "little sympathy" for defendants and flatly rejected their contentions -- including their argument that Judicial Council form interrogatories were vague and sought irrelevant information -- and he held that defendants had failed entirely to engage in a good faith effort to respond to plaintiffs' legitimate discovery requests. Judge Renne ordered the defendants to provide virtually all of the information plaintiffs requested, and also ordered defendants and their lawyers to pay $5,000 in monetary sanctions for their willful obstruction of discovery. PE&G attorney Alex Tuzin led this effort. The case is Sayre v. SFS 39, Inc., San Francisco Superior Court Case No. CGC-12-523838.
Class case clears important hurdle
April 16, 2013 -- PE&G partner Nick Carlin thwarted an attempt by defendant restaurant chain to stall -- potentially for years -- the firm's clients' class action claims for wage theft and other violations of the California Labor Code. The restaurant chain recently began requiring its employees to sign arbitration agreements, and Mr. Carlin represents a separate group of employees, who were similarly deprived of their rights, in arbitration. The restaurant chain argued that all proceedings in the class action (involving plaintiffs who did not sign the arbitration agreement) should halt until after the arbitration is concluded. The firm's attorneys successfully argued to San Francisco Superior Court judge Marla Miller that this was an improper effort to hold the class action hostage and deny the firm's clients access to the justice system. The judge agreed, and permitted the class action to move forward.
Firm joins class action over data privacy against Apple, app developers
March 22, 2013 -- PE&G attorneys David Given and Nick Carlin have joined a team of lawyers who have brought a class case against Apple and certain developers of consumer applications made available on the App Store over users' privacy rights in their digital data. The core allegation of the complaint is that the apps in question pirated private user information, including address book data, from the user's iDevice by surreptitiously uploading that information without notice to the user and without the user's consent. The federal government recently prosecuted its own case against one such developer, Path, also named in the class action, over the same conduct. That case resulted in a consent order which included a permanent injunction together with civil penalties of $800,000. The class case was recently transferred to the San Francisco federal court, where one judge in another similar case has already sustained most of the claims against Path. The case is set for its first hearing before Federal District Judge Jon Tigar on April 4th.
State Court grants final approval to balance billing class action settlement
February 28, 2013 -- The San Francisco Superior Court today granted final approval to the class settlement in Combrisson v. City and County of San Francisco. PE&G represents the class, patients of San Francisco General Hospital, who alleged that they were illegally balance billed by the hospital. Under the terms of the settlement, the class members will receive a 100% recovery of the amount they were overcharged. Attorneys' fees and costs of administration will be paid separately and did not reduce the class members' recovery. Firm partner Nick Carlin led the effort.
Federal Court approves class settlement with Bank of the West in overdraft fee case
December 18, 2012 -- A federal district court in Miami entered an order of final approval of an $18 million settlement with Bank of the West that the firm helped conclude in mediation on behalf of customers charged by the bank with overdraft fees as the result of the bank's reordering of its customers' debit card transactions. The settlement results in return of a substantial portion of those fees to bank customers. The court's order noted, among other things, the "very high level of skill" of class counsel in the prosecution of the case, and that class counsel "achieved a superb result" in the case. The firm remains counsel for a putative class of bank customers in a similar case against M&T Bank. Last year, the same court approved the settlement of the firm's case against Bank of America for $410 million, an amount generally credited as one of the largest settlements ever for a consumer class action.
San Francisco Board of Supervisors approves balance billing class action settlement
December 5, 2012 -- The San Francisco Board of Supervisors yesterday approved the class action settlement in Combrisson v. City and County of San Francisco. PE&G represents the plaintiff class, patients of San Francisco General Hospital, who alleged that they had been illegally balance billed by the hospital. Under the settlement the class members will receive a 100% recovery of the amount they were overcharged. Attorneys fees and costs and costs of administration will be paid separately by the defendant City, and will not reduce the class members' recovery. The next step in the approval process is signature by the Mayor, expected to take place on December 14, 2012. PE&G partner Nick Carlin led the effort.
San Francisco Superior Court grants preliminary approval to balance billing class action settlement
November 21, 2012 -- The San Francisco Superior Court today granted preliminary approval to the class settlement in Combrisson v. City and County of San Francisco. PE&G represents the plaintiff class, patients of San Francisco General Hospital, who alleged that they had been illegally balance billed by the hospital. Under the settlement the class members will receive a 100% recovery of the amount they were overcharged. Attorneys fees and costs and costs of administration will be paid separately by the defendant City, and will not reduce the class members' recovery. The next step in the approval process is final approval by the San Francisco Board of Supervisors and the Mayor, expected to take place on December 14, 2012. PE&G partner Nick Carlin led the effort.
Press seeks comment from firm on settlement of digital download case
October 30, 2012 -- Both Variety Magazine and the New York Times recently featured prominent articles covering Universal Music Group's settlement of its long-running battle with the producers of Eminem over the treatment of digital download income in its royalty accounting to recording artists and others. Firm partner David Given, who is one of the attorneys leading wide-ranging class action litigation against UMG on the same issue, provided his views on the meaning of the settlement for that litigation as well as on its expected impact on the music industry. NPR later interviewed Mr. Given for a piece featured on its "Market Place" program on the same subject.
New pleading seeks to sharpen focus in class action over download royalties
September 7, 2012 -- Plaintiffs in the class action case against Universal Music Group moved today for permission from U.S. District Judge Susan Illston to file an amended complaint. The proposed amended complaint serves to consolidate the party plaintiffs (including two new ones - Bo Donaldson ["Billy Don't Be A Hero"] and The Black Sheep ["Strobelite Honey"]) and their various prior pleadings into one operative complaint and to conform the allegations of the complaint to the evidence adduced thus far in the case. That evidence includes, among other things, discovery of an internal memorandum authored by a highly-placed UMG executive in late 2002 setting the stage for treatment of UMG's licenses with its digital download providers as "resale" agreements, and apparently reversing UMG's prior course of conduct and course of performance in the customary accounting for licensing income, to the detriment of recording artists and producers. UMG has opposed plaintiffs' motion for leave to file this complaint on various grounds. The court has set a hearing for the motion on October 12th.
Firm appointed to lead counsel role in class action against Warner Music Group
June 1, 2012 -- United States District Judge Richard Seeborg has chosen PE&G to help lead the class action brought on behalf of recording artists and others against Warner Music Group relating to that label's receipt and accounting of digital download income. This is the second case brought by the firm as a class action against a major record label over the issue of how income from the online distribution of digital music is accounted to and paid to recording artists and other royalty participants. The first, against Universal Music Group, has survived UMG's attempts to dismiss the case and various of its claims, and is currently set for class certification proceedings beginning later this year. With Judge Seeborg's order appointing lead counsel, the case against WMG can now get underway in earnest. The case's first case management conference is expected to be set soon, after which discovery will commence.
Court denies defendant's summary judgment motion in Rick James digital download class action
April 19, 2012 -- PE&G partner David Given (together with attorneys from two allied law firms) helped defeat Universal Music Group's motion for summary judgment in the ongoing class action on behalf of recording artists and other royalty participants concerning UMG's treatment of income derived from its licenses with download music providers. In her seven-page order dispensing of the matter without oral argument, Federal District Court Judge Susan Illston concluded that the class claims for violation of California's Unfair Competition Law and related open book account were still viable, allowing discovery to continue into UMG's policies and practices. Among other things, Judge Illston rejected UMG's arguments that the claims were either time-barred or otherwise legally unsound on various technical grounds. The decision sets the stage for plaintiffs' effort to certify a class of recording artists, producers and others entitled to an enhanced royalty from UMG's receipt of digital download income; the Court set a hearing on class certification in the case for early January of next year. The firm recently commenced another class action on the same subject against Warner Music Group; that case is just now underway in the same San Francisco court before a different judge.
Firm appointed to lead counsel role in class action against Universal Music Group
March 7, 2012 -- Federal District Court Judge Susan Illston has appointed PE&G to serve as co-lead counsel in a class action on behalf of artists, producers and other royalty participants against the world's largest recorded music company, Universal Music Group, concerning UMG's treatment of income derived from its licenses with download music providers. The firm filed the first of several class cases against UMG on this issue following the decision of the Ninth Circuit Court of Appeals in F.B.T. Productions v. Aftermath Records. That case -- involving the Eminem catalog -- established the right of recording artists, music producers and other royalty participants of legacy music catalog to receive up to half (instead of a much reduced "record" royalty) of the income UMG and its affiliated record labels receive from their licenses with download music providers. In its role as co-lead counsel, the firm will be responsible for overseeing the conduct of the litigation, including directing discovery and motion practice in the matter, as well as supervising any settlement efforts on behalf of the class. Earlier, Judge Illston ordered UMG to produce all of its producer and artist agreements to plaintiffs' counsel by the end of this month. That production of documents continues. The court has set the next case management conference in the case for April 6th.
Firm achieves major victory for clients in balance billing case against San Francisco General Hospital
January 24, 2012 -- PE&G partner Nick Carlin achieved a major victory for the victims of balance billing by San Francisco General Hospital, when Superior Court Judge James J. McBride ruled that plaintiff Gilles Combrisson and the class of patients covered by heath insurers regulated by the California Department of Insurance ("DOI") could continue to pursue their claims in state court. At a previous hearing Judge McBride ruled that a 2009 California Supreme Court decision (Prospect Medical Group v. Northridge Emergency Medical Group), holding that balance billing of insured emergency patients was illegal, did not apply to patients such as Combrisson whose insurers (in his case, Anthem Blue Cross Life & Health Ins. Co.) are regulated by the DOI, and dismissed Combrisson's claims. (The rest of the case - on behalf of patients covered by insurers regulated by the California Department of Managed Health Care - was unaffected.) But Combrisson amended his Complaint to add a claim seeking a declaration of rights from the Court that if San Francisco recovers the balance billed amounts paid by Combrisson (and other class members covered by insurers regulated by the DOI) from Anthem (or the other insurers), the City would have to reimburse that amount to its patients. The City sought to dismiss this claim as well, but at the hearing, the Court agreed with the firm and allowed the claim to stay in the case.
Firm clients reach tentative settlement in overdraft fee case against Bank of the West
January 20, 2012 -- PE&G attorneys Nick Carlin and David Given (along with lawyers from several other firms) helped reach a tentative settlement in a bank overdraft fee case on behalf of a group of Bank of the West customers. The firm's client, Michele Draper, one of three named plaintiffs, is a Bay Area resident who alleged that the bank unlawfully charged her and other bank customers excessive overdraft fees on their debit card transactions. The plaintiffs alleged that the bank employed a bookkeeping device to multiply the number of overdraft occurrences its customers would incur, and thereby increase the number of overdraft fees charged to a customers' account. By re-ordering customers' daily debit transactions in a high-to-low order - instead of in the order in which they occurred - the bank depleted account balances as fast as mathematically possible, maximizing the possibility that insufficient funds would be left for the string of lower dollar transactions. The parties expect to submit their proposed settlement (currently embodied in a Memorandum of Understanding) for preliminary approval by the federal judge presiding over the case in the next 45 days. This development follows several other such settlements, including in the firm's case against Bank of America, in which the bank agreed to pay $410 million. That deal was finally approved last November.