Consumer Advocate Legal Update : Class Action Lawyers & Attorneys : Khorrami Pollard & Abir Law Firm : Mass Torts, Products Liability

The Law360.com employment article “Analyst Wins Conditional Cert. in L-3 FLSA Dispute” reports on the recent conditional collective certification by the U.S. District Court for the Middle District of Pennsylvania in the case of Regelman v. Level 3 Communications LLC. Khorrami Pollard & Abir LLP and Pogust Braslow & Millrood LLC represent plaintiff Rose Regelman in the case, accusing Level 3 Communications LLC of allegedly misclassified analysts as exempt from federal overtime pay regulations.

Read the entire article by visiting Law360.com.

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Three reasons why you should read the November KPA Newsletter:

1.  It is the best place to learn about the latest developments in plaintiff litigation.

2.  KPA attorney's Becki Kammerling, Nancy Gardner and Roxanna Tabatabaeepour are this month's featured authors.

3.  See what other top attorneys across the state are reading!

Subscribe to the KPA Newsletter by going here!

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The plaintiff’s deposition can make or break your case. At the conclusion of the testimony, the defense will have a lasting impression of your client and the likely impact their testimony will have on a jury. A well prepared, well educated client is the key to a successful deposition.  Here are a few tips:

        1. Educate the client about the process.  Most clients have never been deposed and have no idea what to expect. Explain the court reporter’s role, where the client will sit, where you will sit and where defense counsel will be seated.  If the deposition is to be videotaped, explain the set-up including how to handle the microphone. In the case of multiple defendants, explain the order of questioning and the fact that they will not be required to repeat testimony already rendered with each subsequent questioner. 

        2. Explain that a deposition is not a conversation.   As attorneys, we are justifiably concerned our clients may volunteer information they were never asked about. Impress upon your client that a deposition is a question and answer session with answers given under oath.  It is not a conversation. Let them know they are under no legal obligation to fill any silence in the deposition by speaking, unless there is a question pending.  

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Between the period of October 16, 2009 and October 19, 2009, four separate publication requests were filed in Cohen v. DirecTV. The requests are contained here, here, here and here.

In Cohen, the Second District upheld denial of certification of a UCL class because the proposed class included persons who had not viewed alleged deceptive promotions by DirecTV. The Court reasoned predominance could not be met under circumstances, and in fact, went so far as to state that “we find Tobacco II to be irrelevant because the issue of ‘standing’ simply is not the same thing as the issue of “commonality.”

As discussed at the Bailey Class Action Daily in this previous post, Cohen's analysis conflicts with the California Supreme Court's decision in In Re Tobacco II Cases.

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In recent years, cellular telephone users have been increasingly subjected to a scheme known as “cramming,” which has been described by the Federal Trade Commission as “the placement of unauthorized charges on telephone bills.” Unscrupulous companies use a variety of methods to “cram” charges, such as deceptive promotions of free ringtones, game downloads, games, contests, jokes and sweepstakes bidding to entice consumers to provide their cell phone number so that monthly service fees may be charged to the consumer’s cellular phone bill.

If your cell phone bill has contained a charge for an unauthorized service, then please contact us to discuss your experience.

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KPA Founding Partner, Shawn Khorrami, was published in the Prairie Barrister - the official publication of the Nebraska Association of Trial Attorneys. 

His article "Building Your Firm - Growing During Tough Times" covers the basics of running a large practice during tough economic times.  Shawn posses first hand experience in doing so - he founded KPA in 1996 as a solo practice, and has since grown it into one of the largest plaintiff-only firms in California.

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On October 5, 2009, the FTC announced approval of final revisions to the guidance it gives to advertisers on how to keep their endorsement and testimonial ads in line with the FTC Act.  The new guidelines, as explained in the official press release, require advertisers to affirmatively disclose when promotional claims regarding a product or service is not typical, and also make it clear that celebrities have a duty to disclose their relationships with advertisers when making endorsements outside the context of traditional ads, such as on talk shows or in social media. Perhaps the most significant revision, however, relates to the use of company sponsored research to promote a product or service. This practice has been a favorite tool of drug companies and the tobacco industry who seek to leverage sponsored research to promote the benefits of their products, or create the appearance of a scientific “debate” over risks. Under the new guidelines, the promotional reference to the findings of research sponsored by the company must be disclosed to the consumer.

A more detailed discussion of the New FTC Guidelines is addressed at the Bailey Class Action Daily at the link here.

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TEAM KPA RAISES FUNDS AND AWARENESS FOR AIDS PROJECT LOS ANGELES (APLA) AND THE 25^TH ANNUAL AIDS WALK LOS ANGELES

KPA has committed to being a part of this year’s AIDS Walk LA in a big way – and so should you! The firm’s employees have joined together to create TEAM KPA and will raise funds and walk together in the AIDS Walk on Sunday, October 18^th in support of APLA. Having raised almost $10,000 to date (and still raising more!) – Team KPA has raised enough to be in the top 20 fundraising teams! Follow our fundraising efforts through our team page.

WHAT IS APLA ALL ABOUT?

APLA is dedicated to: improving the lives of people affected by HIV disease; reducing the incidence of HIV infection; and advocating for fair and effective HIV- related public policy. The organization aspires to be a leader in the development and provision of multidisciplinary, high quality, cost effective initiatives designed to stop HIV transmission and to reduce the human suffering caused by HIV/AIDS.  

AIDS Walk Los Angeles

Date: Sunday, October 18

Time: 8.30 Sign-In, 10.00 Walk Begins

Location: West Hollywood Park

Length: 10K/6.2 miles

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In Zaragoza v. Ibarra (2009) 174 Cal.App.4^th  1012, the Court clarified the issues of homeowner liability to workers hired by non-licensed contractors, and addressed the limitations on worker’s compensation as an exclusive remedy in cases dealing with employees in a residential setting.

Homeowner Maria Ibarra engaged Claudio Quiroz, an unlicensed contractor, to construct four room and two bathrooms on her premises. Quiroz hired Eliazar Zaragoza to assist him. Zaragosa was an employee of Taco Bell. Zaragoza was injured on his second day on the job. Zaragoza slipped off a ladder while trying to pull a nail out of the wall. He fell approximately nine feet and injured his knee. He sued Ibarra. The trial court granted Ibarra’s motion for summary judgment and the appellate court affirmed.

The Court held that Zaragoza’s claim qualified as “incidental to the ownership, maintenance or use” of a residential dwelling, despite the fact that the scope of the work comprised an extensive remodel. Zaragoza was classified as a residential employee under Labor Code Section 3351(d). When the worker has worked less than 52 hours in the 90 days prior to the accident, the law is clear that any claim the worker has against the homeowner for the injury is outside the ambit of the worker’s compensation system. Labor Code Section 3351(d). The worker may bring a claim against the homeowner for negligence.

The Court held that the provisions defining who qualified as a residential employee under Labor Code Section 3351(d) must be reconciled with the provisions of Insurance Code Section 11590, which requires that all personal liability policies provide worker’s compensation coverage. The Court further held that Cal-OSHA regulations did not apply to homeowners. Zaragoza could not rely on the doctrine of negligence per se (a violation of a statute) based on alleged Cal-OSHA violations.

Moreover, the Court concluded that as a matter of law there was no triable issue of fact concerning Ibarra’s negligence, since he positioned, adjusted, and climbed the ladder before he fell. There was nothing Ibarra could have done to prevent the accident. Zaragoza’s injury was entirely his own fault, and Ibarra exercised ordinary care under the circumstances.

Homeowners should be weary of non-licensed and day laborers who carry no worker’s compensation insurance. Whether it is a painter, gardener, landscaper, or handyman, ask yourself the question: Does the gardener carry his own liability and Workers' Compensation insurance? Otherwise anything that happens on your property is your responsibility. An insured gardener may charge a bit more, but is worth the peace of mind. Next time you hire anyone to perform services on your property, make sure that person is insured, something not many homeowners think or contemplate but merely roll the dice. Make the individual working on your home produce a copy of his liability insurance certificate, and make sure it is current.

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On September 30, 2009, the Fourth District Court of Appeal affirmed the trial court's denial of class certification in Kaldenbach v. Mut. of Omaha Life Ins. Co., 2009 Cal. App. Unpub. LEXIS 7907 (Cal. App. 4th Dist. Sept. 30, 2009). The Court’s opinion, which is unpublished, recognized that In re Tobacco II precluded focus on issues relating to class member reliance and injury. The Court's analysis is seem ingly contrary to the Second District's unpublished opinion in Cohen v. Direct TV (discussed previously here). Notwithstanding this finding, however, the Court ultimately concluded that the trial court did not abuse its discretion insofar as the court's findings regarding predominance were supported on other grounds.

A more detailed discussion of the Kaldenbach opinion is addressed at the Bailey Class Action Daily.

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Have you looked at your cable bill and found that you are paying $5, $6, and even $10 a month to rent a cable box from your service provider? Ever wonder why you cannot simply purchase your cable box or rent a cheaper box from another company? Many consumers are limited in subscribing to certain cable companies; however, numerous cable companies take advantage of consumers by charging $60 or more EACH year to rent a set-top box that should cost no more than a DVD player to buy.

Years ago, many people were similarly frustrated and asking these same questions about their telephones because telephone companies only allowed their customers to lease their telephones directly from the company. Eventually this practice was deemed illegal and anti-competitive (read the decision), which is why we are now able to purchase or lease our telephones from a variety of companies, thereby ensuring competition. Currently, however, cable customers throughout the country have been dealing with the same situation and have begun to challenge these unfair practices.

Specifically, Time Warner and Comcast are currently under fire in large multi-district class actions in which their customers are alleging that the practice of requiring cable customers to lease a set-top cable box from them - without providing the option to either purchase the box or rent from another company - violates the antitrust laws of the United States as well as the consumer protection laws of their home states.

While these companies are being challenged, there are many other cable providers who are not. Therefore, if you have been forced to rent a cable box from your cable company, then please contact us so that we can make sure that your rights and those of many other cable subscribers are protected.

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Follow KPA senior associate and co-head of the class action practice group, Matt Bailey, on Twitter!  For up-to-the-minute news on class action trends, and legal issues nationwide,follow @CalClassAction.
 

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Last week the California Court of Appeal (First Appellate District) issued a warning to attorneys who abuse the discovery process by asserting frivolous objections requiring unnecessary motions to compel. See Clement v. Alegre, 2009 Cal. App., September 23, 2009. In upholding a sanctions award on the offending attorney, the Court of Appeal expressed frustration with “scorched earth” techniques used by some practitioners and reminded attorneys that the central precept of civil discovery is that is to be self-executing, without the need for judicial intervention and that monetary sanctions may be awarded even if the abuse was not willful.

In Clement, Defendant’s interrogatory number 1 asked the Plaintiffs to describe “all economic damages you claim to have sustained” and in a second interrogatory asked Plaintiffs to “state the amount of damages identified in interrogatory number 1” Plaintiffs asserted that interrogatory number 1 was “vague and ambiguous” as to the term “economic damages” yet Plaintiffs cited the Civil Code section that defines “economic damages” in their objections. Plaintiff objected to interrogatory number 2 because it was not full and complete in itself because it required reference to interrogatory number 1. In the meet and confer process, Plaintiffs counsel offered to allow defendant to supply a written definition of economic damages but only on the condition that Plaintiffs be given 30 additional days to respond and then argued that defense counsel failed to meet and confer by not accepting the offer. The trial court granted Defendant’s motion to compel and imposed $6632.50 is discovery sanctions.

The Court of Appeal affirmed finding that, given the circumstances as a whole, Plaintiffs’ counsel clearly was engaged in gamesmanship designed to delay discovery. The Court of Appeal found the “vague and ambiguous” objection “preposterous” considering that Plaintiffs themselves quoted the defining statue in their response. With respect to the argument that the question was not full and complete in itself, the Court of Appeal cited legislative history noting its primary concern of this statue was to prevent wrangling about whether a party evaded the 35 question limit by using prefaces, instructions, definition and subparts. Here, defendant only propounded 23 interrogatories.

The Court of Appeal also noted that defense counsel’s refusal to be bullied into re-writing adequate discovery and extending more time for responses does not constitute a failure to meet and confer. Finally, the Court of Appeal concluded its opinion by reminding attorneys that the meet and confer statute requires a serious efforts at negotiation and informal resolution and that informal resolution means more than “attempting to persuade your discovery opponent of the error of his ways” and that informal resolution entails something more that bickering of opposing counsel.

The teachings of the Court of Appeal in Clement are a stern reminder to trial counsel to remove ego and emotions from discovery disputes and to maintain professionalism and civility at all times.

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