news 2019

Court sets dates in class case against U.S. Healthworks

October 8, 2019 – Firm partners Randy Erlewine and David Given today appeared before federal magistrate judge Michael Berg, who set dates for client Krista Raines’s class case against U.S. Healthworks. The client contends that U.S. Healthworks violated her and others’ privacy rights in pre-employment medical “exams” it conducted in the State of California by asking invasive and otherwise unlawful questions about their personal and medical history. Earlier this year, the country’s largest provider of such exams, Concentra Occupational Health, acquired U.S. Healthworks. According to the schedule ordered by Judge Berg, the San Diego federal court hearing the case will consider the question of class certification of the client’s claims early next year. For more information about the case, click here. To read other news items related to the case, click here.

California Supreme Court lets appellate decision stand against State Farm

September 11, 2019 – The California Supreme Court today denied State Farm’s request that the court consider overturning an appellate decision in favor of firm client Aaron Samsky awarding him the costs (including attorney’s fees) of his having to prove certain matters in an underinsured motorist case.  That appellate decision unanimously reversed a finding against the client, and sent the matter back to the trial court to determine the amount of the award in his favor.  The Supreme Court also denied State Farm’s request to depublish that decision.  “The appellate decision is extremely significant,” firm partner David Given said.  “It clearly holds that a party like State Farm who denies a request for admission later proved has the burden to show that its denial was reasonable.  State Farm didn’t do that here.”  The firm expects to be back in the trial court shortly and to ask for an enhanced cost and fee award.  “Given the circumstances, it was ludicrous that State Farm wouldn’t admit that our client wasn’t at fault for being rear-ended,” Mr. Given said.  Further proceedings in the trial court are pending.

Firm obtains $1.2 million settlement in brain injury case

September 5, 2019 - On the eve of trial, firm partner Nick Carlin and associate Mike Levinson, along with co-counsel Zach Zwerdling, resolved the case of client Amanda Morettini, who was injured in a rear-end collision in San Leandro, California in July 2015. The client contended that she sustained a mild traumatic brain injury as a result of the accident. Defendants admitted liability but denied that she suffered any kind of brain injury. The matter was set for trial starting September 9th. Defendants attempted at the last minute to delay the trial for several months, but the firm opposed it and Alameda County Superior Court Judge Evelio Grillo denied the continuance. Two days before the trial was scheduled to start, the defendants agreed to pay $1.195 million. “This is a great result for the client,” Mr. Carlin said, “providing her with the means to address her ongoing injuries.” The parties gave notice of their settlement to Judge Grillo today.

Court grants final approval of $1.2 million settlement in wage theft case

August 20, 2019 - San Joaquin County Superior Court Judge George Abdallah today granted final approval of the class action settlement reached by the firm on behalf of approximately 550 employees of Tracy Auto Center and several related car dealerships. The $1.2 million settlement had an exceptional 100% participation rate—no class member objected or timely requested to be excluded from the class. Judge Abdallah found the settlement “fair, adequate and reasonable” and concluded that it created “significant benefits to the Settlement Class Members.”

Court okays class settlement for Burritt Room employees

August 6, 2019 – San Francisco Superior Court Judge Teri L. Jackson today granted the firm’s motion for preliminary approval of a $1 million class action settlement made on behalf of approximately 140 former workers at Burritt Room + Tavern, a popular San Francisco bar/restaurant located in the Mystic Hotel by Charlie Palmer, which was sold in 2018.  The case arose in connection with that restaurant’s employment policies and practices, which the employees alleged were in violation of California’s Labor Code.  The court conditionally appointed the firm settlement class counsel, and set a hearing for final approval of the settlement for November 14th this year. Notice to the class is pending.

Labor Commissioner will hear Lucky Devils class case

July 26, 2019 – Alameda Superior Court judge Winifred Y. Smith today stayed the class action before her to allow California Labor Commission proceedings to conclude against the International Musicians League in a case brought by two firm clients. Those clients, musicians who performed as members of the Lucky Devils Band, filed a class action complaint in Alameda County Superior Court alleging serial violations by the IML of the State’s Talent Agencies Act. At around the same time, the clients also brought a petition before the Labor Commissioner on substantially the same claims and, following IML’s response to that petition, requested a Labor Commission hearing on those claims. In a short minute order, Judge Smith agreed that the action before the Labor Commission should go first and noted that the Commission could consider the clients’ class claims. Further proceedings before the Labor Commission are pending.

Court green-lights amended class case against U.S. Healthworks

July 15, 2019 – San Diego Superior Court judge Timothy M. Casserly has granted the motion made by firm client Krista Raines to expand her case against U.S. Healthworks into a putative class action on behalf of all individuals sent to U.S. Healthworks by California employers for medical “exams” before hiring. The firm’s client originally sued U.S. Healthworks and her prospective employer for violation of her privacy and other related claims in connection with one such exam during which, she claims, she was asked invasive and totally inappropriate questions about her physical and mental state and well-being. When she declined to respond to certain of those questions, her offer of employment was rescinded. Discovery in her case revealed that the question-asking was far more pervasive than first suspected; in fact, the questions in issue were apparently a matter of U.S. Healthcare’s routine policy and practice in the State of California. Her amended complaint contends that policy and practice violated (and continues to violate) California law. Firm partner Randy Erlewine leads a team of four lawyers from two law firms in the matter. Further proceedings in the case are pending.

Appellate court reverses trial court, awards client costs and attorneys’ fees

June 26, 2019 – A panel of three justices sitting on the Second District Court of Appeal sided with firm client Aaron Samsky and today unanimously reversed the Oct. 2018 decision of a Los Angeles County Superior Court judge, awarding the client his expenses (costs and attorney’s fees) against State Farm Insurance for having to prove certain matters in an uninsured motorist action. During that action, State Farm failed to admit – and indeed denied – that Mr. Samsky was blameless for being rear-ended by another vehicle and that he suffered a concussion and ulnar nerve (wrist) injury as a result of that collision. In reversing the Superior Court judge, the appellate justices found that State Farm made no showing that it had any “reasonable grounds” to deny those matters, and agreed with the firm’s arguments that State Farm had the burden to show as much in order to avoid an award against it. The appellate court sent the case back to the trial court to determine the amount of the award; the client was also granted his costs on appeal. Further proceedings in the matter are pending. Mr. Samsky has brought an insurance bad faith claim against State Farm for its actions in denying his uninsured motorist claim; that case, now in Los Angeles federal court, is also pending. Firm partner David Given argued the appeal; he was assisted by associate Brian Conlon. The appellate court certified its decision for publication.

UPDATE — July 23, 2019 — The same appellate panel of three justices today rejected State Farm’s request for rehearing. In doing so, it modified its previous opinion to emphasize State Farm’s failure to address its lack of grounds to deny client Aaron Samsky’s requests that it admit he was not at fault for his car being rear-ended in a 2017 accident. State Farm has filed a petition for review of the appellate court’s opinion in the California Supreme Court. That petition as well as State Farm’s request that the Supreme Court depublish that opinion are pending. The firm has opposed the latter.

Firm secures $470,000 settlement in personal injury case

June 14, 2019 – A $470,000 settlement was reached today for firm clients Terry and Sandy Miyashiro in their accident/personal injury case. Partner Nick Carlin and associate Mike Levinson represented the clients, whose claims arose from a rear-end collision involving Ms. Miyashiro’s car in March of last year. Ms. Miyashiro had stopped for a pedestrian at a marked crosswalk in downtown Sonoma when she was hit from behind by GMC truck going approximately 35 m.p.h., sustaining serious neck and back injuries as well as a concussion/traumatic brain injury. Ms. Miyashiro’s neck injury led to a four-hour surgery earlier this year in which two of her cervical discs were fused. She has continued to suffer from chronic pain from these injuries, the nature and extent of which defendant disputed. Her case was set to go to trial this coming Monday. Sonoma County Superior Court judge Allan D. Hardcastle heard the settlement read into the record this morning.

Firm to represent famed boy band in trademark dispute

June 10, 2019 – The firm filed papers today in proceedings before the U.S. Trademark Trial and Appeals Board answering the allegations of Universal Music Group’s opposition to the trademark filing of multi-platinum boy band O-TOWN. UMG claims that the name and mark of its subsidiary label, Motown, are too similar to the O-Town name and mark, and therefore likely to lead to consumer confusion; this despite that the band has operated under that name and mark for nearly two decades. In O-Town’s answer, the band stakes its defense on Motown’s substantial delay in opposing a mark that O-Town members have spent decades building their business around. In addition, the band’s answer maintains that there is no likelihood of consumer confusion between the two marks at issue. Discovery in the matter will begin on July 8th.

Court orders Charlie Palmer Group to begin production of documents

May 23, 2019 – San Francisco Superior Court judge Mary E. Wiss today ordered The Charlie Palmer Group to begin producing emails and other internal communications relating to the operation and management of San Francisco’s Burritt Room + Tavern.  The firm sued celebrity chef and restauranteur Charlie Palmer, his wholly-owned and controlled entities, and several others on behalf of seven former employees of the Burritt Room who say they were the victims of rampant wage theft and fraud in the restaurant which operated in the Mystic Hotel in San Francisco until early 2018.  Mr. Palmer and his entities sought to block production of those documents as too “burdensome” and “irrelevant” to the parties’ dispute.  Judge Wiss rejected those arguments, established a clear timeline for these defendants to comply with the court’s order and set a June 12th hearing to review the status of their document production. The firm’s pending class certification motion is expected to be heard by Judge Wiss soon.

Firm files class action against Lucky Devils Band for Talent Agencies Act violations

April 18, 2019 – The firm has filed the first class action complaint on record for serial violations of California’s Talent Agencies Act against the International Musicians League, Inc., an out-of-state entity doing business as THE LUCKY DEVILS BAND.  In their complaint, filed in Alameda County Superior Court, two musicians allege that they and a class of other musicians and vocalists were victimized by the defendant, who booked shows for them without complying with the law governing talent agencies and artist representation.  “This may be the most literal example of the so-called ‘gig’ economy,” said firm partner David Given.  “Long-established law governing fair pay for musicians and other artists must not be skirted.”  The firm has also filed a petition before the California Labor Commission commencing parallel administrative action on the subject.  Further proceedings in both matters are pending.

Firm moves for approval of $1.2 million settlement in wage theft case

April 4, 2019 – Firm partner Nick Carlin and associate Brian Conlon filed papers today asking San Joaquin Superior Court Judge George Abdallah to approve the class action settlement reached by the firm on behalf of approximately 620 employees of Tracy Auto Center and several related car dealerships.  The case arose in connection with those dealerships’ employment policies and practices, which the employees alleged were in violation of the California Labor Code.  Under the proposed settlement, the car dealers will pay $1.2 million.  “This settlement provides a fair and reasonable monetary recovery for the class,” Nick Carlin said.  “The settlement is particularly favorable, given the recent anti-worker U.S. Supreme Court decisions allowing employers to ban their employees from bringing class actions and requiring them to bring their wage claims in individual arbitrations. If not for this class settlement, these employees faced the very real prospect of having to file 620 individual arbitrations.”  Judge Abdallah is expected to set a hearing date shortly.

UPDATE – April 25, 2019 – San Joaquin Superior Court Judge George Abdallah today granted the firm’s motion for preliminary approval of the class action settlement made on behalf of current and former employees of Tracy Auto Center and other related dealerships.  A hearing regarding final approval of the settlement is set for August 20th, 2019.  Notice to the class is pending.

Firm moves to certify class of restaurant workers in Charlie Palmer case

March 22, 2019 – Firm lawyers Nick Carlin, David Given and Brian Conlon filed papers today seeking to certify a class of approximately 140 restaurant employees who worked at renowned-chef Charlie Palmer’s Burritt Room + Tavern at the Mystic Hotel in San Francisco until early 2018, when Mr. Palmer and a partner sold the hotel and restaurant to new owners.  Those papers detail allegations by almost a dozen former employees of endemic wage theft and fraud at the restaurant, where no policy or practice existed for providing legally-mandated rest and meal breaks and management intentionally altered time records to mask the discrepancy.  This malfeasance resulted in what the firm has calculated to be over a million dollars of underpayments (including penalties) to employees over an approximate four-year period.  San Francisco Superior Court judge Mary E. Wiss has scheduled a hearing for April 12th to consider the matter.

Firm pushes back in class action against software maker

March 13, 2019 – The firm filed papers today in the federal district court in Boston opposing the efforts of Massachusetts-based eClinicalWorks to dismiss a class action brought against it by two plaintiffs on behalf of patients whose healthcare providers used ECW’s software and cloud-based services to maintain their medical records.  In 2017, ECW agreed to pay $155 million to settle with the U.S. Department of Justice over claims that ECW defrauded the federal government by falsifying reporting designed to assure the accuracy and integrity of patient records maintained by ECW; in fact, said the government, ECW’s software was unable to satisfy certification criteria relating to the accuracy and reliability of patient records.  Plaintiffs’ class action claims that by marketing and selling knowingly defective software to healthcare providers nationwide, ECW failed to secure and safeguard the medical records of patients and that, as a result, patients’ medical records have been compromised.  Firm partner David Given leads a team of three law firms representing plaintiff and class patients in the case.  A hearing on ECW’s motions is expected to be scheduled soon.

UPDATE – April 2, 2019 – In a short eight-page memorandum and order, federal district court judge Richard G. Stearns granted ECW’s motion and dismissed the clients’ case for lack of standing, finding that “an inability to rely on the accuracy of personal medical records is not a concrete injury, nor does it create an imminent risk of harm.”  Because the dismissal was on that ground, however, the judgment entered by Judge Stearns operates without prejudice, meaning that another lawsuit may be brought in the right circumstance.  In the meantime, the clients have appealed Judge Stearns’ ruling.

Firm scores million dollar plus verdict in personal injury case

March 12, 2019 – Following a three-week trial in Santa Clara County Superior Court, firm partner Nick Carlin, assisted by associate Michael Levinson and paralegal Kaylee Racs, obtained a $1.25 million jury verdict (increased to over $1.3 million with the court’s award of costs) in favor of firm client Darrick Figg in his personal injury case against the driver of a car that rear-ended him at 50 m.p.h. on Interstate 880 near San Jose.  Mr. Figg sustained soft-tissue injuries to his shoulder, neck and back, as well as a mild concussion (a traumatic brain injury), on impact.  Because the crash occurred while he was at work, Mr. Figg’s medical care came through the workers’ compensation system; those doctors never ordered MRIs of the back and shoulder.  MRIs taken after the the firm was retained showed internal injury to those areas.  The jury took less than half a day before reaching its verdict, awarding Mr. Figg over $500,000 for past and future medical costs and lost earnings, and $750,000 for past and future pain and suffering.  The jury’s award more than doubled what the defendants ever offered in settlement.  Judgment is expected to be entered soon.

Trial begins in traumatic brain injury case

February 22, 2019 – Lawyers made opening statements today in the Santa Clara County Superior Court, kicking off client Darrick Figg’s jury trial against Cognizant Technologies and one of its employees who, while at work, rear-ended Mr. Figg on Interstate 880 in San Jose at approximately 50 m.p.h. while Mr. Figg was stopped in rush hour traffic. The client, a fire inspector for the Central County Fire Department, was knocked out cold by the collision and his car was totaled; he sustained injuries to his neck, back and shoulder and has had ongoing issues with those injuries.  His doctors have since recommended shoulder surgery.  His concussion has led to other neurological (traumatic brain injury) issues. Mr. Figg is seeking past and future medical expenses and lost wages, as well as general damages for the years of pain and suffering his doctors have told him to expect as a result of his injuries.  Partner Nick Carlin leads the firm’s three-person trial team, which includes associate Mike Levinson and paralegal Kaylee Racs.  Trial is continuing day-to-day before the Honorable Paul R. Bernal; the jury will likely begin its deliberations in early March.

UPDATE – March 12, 2019 – A 12-person jury returned a verdict today in favor of firm client Darrick Figg in the amount of $1,253,865.  Further proceedings in the matter are pending.

Case against makers of FEAR THE WALKING DEAD lives on

January 31, 2019 – Federal district judge Lucy H. Koh today accepted the firm’s arguments on behalf of its client Mel Smith, declining to dismiss his case against the AMC Network, its affiliates and other individuals and entities responsible for the hit television series FEAR THE WALKING DEAD.  In his lawsuit against them, Mr. Smith contends that these parties infringed his copyright in the comic book series DEAD AHEAD and breached their fiduciary duties to him by using elements of his comic book (for example, its plot, setting, certain characters and the like) without his permission.  Judge Koh agreed with the central argument of the firm’s brief in opposition that defendants’ position that those elements were “stock” or “generic” or “unoriginal” was factual in nature, and that the client’s claims were otherwise legally sound.  The parties expect to appear in court before Judge Koh on March 19th; trial is scheduled to begin early next year.

UPDATE – March 6, 2019 – The parties advised Judge Koh today that they have completed a mediation and resolved the matter.  They expect the case to be dismissed in its entirety shortly.

Firm presses insurer to pay client’s costs

January 17, 2019 – Firm partners Nick Carlin and David Given, together with associate Brian Conlon, today filed an opening brief in the State’s Second Appellate District on behalf of client Aaron Samsky, pressing his case for reimbursement of legal fees and costs against his insurer, State Farm, arising from an underinsured motorist claim following a car crash in Los Angeles.  In Sept. 2018, the client (represented by Nick Carlin and associate Mike Levinson) prevailed in an arbitration against State Farm, after which he asked the Los Angeles Superior Court to confirm the arbitration award as well as to award him his costs of proof (legal and expert fees and other out-of-pocket expenses, totaling almost $200,000) incurred as a result of State Farm’s failure to admit certain facts – for instance, that Mr. Samsky was not at fault for being rear-ended.  While the court confirmed the arbitration award and entered a judgment in Mr. Samsky’s favor, it refused to award him those costs.  The client’s appellate brief challenges the court’s failure to award those costs on various grounds.  Further proceedings in the Court of Appeal are pending.

UPDATE – March 1, 2019 – The firm filed a reply brief for the client today, responding to State Farm’s arguments over his cost and fee request.  A hearing in the appellate court is expected to be scheduled soon.

Firm launches copyright/trademark case for DEAD KENNEDYS

January 9, 2019 – Firm partner David Given and associate Mike Levinson today filed an action against online vendor Viralstyle on behalf of the legendary punk rock band DEAD KENNEDYS.  The client’s complaint contends that its name and iconic DK logo have been copied and used without its permission on apparel and other merchandise manufactured and sold by Viralstyle, in violation of federal copyright and trademark law.  Late last year the band discovered the Viralstyle website and asked the company to remove that apparel from its website, which it refused to do.  Filed in the federal district court in San Francisco, the client’s lawsuit includes state law claims for common law trademark misuse and unfair trade practices in addition to the infringement claims under federal law.  Further proceedings in the matter are pending.

UPDATE – March 4, 2019 – The parties have resolved their dispute, and DEAD KENNEDYS filed a dismissal of its lawsuit today.