California Appellate Tracker

The FTC Act does not authorize the FTC to seek monetary restitution in a suit that the FTC brings in the first instance (i.e., without a prior administrative proceeding) in federal court under section 13(b) of the FTC Act. (15 USC 53(b).)  The section expressly permits only injunctive relief in such an action.  Furthermore, allowing restitution under section 13(b) would… Read More

Truck alleged that Federal committed fraud in prior litigation between the two insurers of a common insured, Moldex.  In the prior litigation, Federal had alleged and maintained that its defense of Moldex was required under its policy.  After the prior litigation settled, Federal switched positions and claimed that its policy didn't require it to defend Moldex, but that it had… Read More

Although Omnicare, Inc. v. Laborers Dist. Council Construction Ind. Pension Fund (2015) 135 S.Ct. 1318 dealt with misrepresentations under section 11 of the Securities Act (15 USC 77k(a)), this decision holds that Omnicare's rules with respect to when opinions can be deemed actionable misrepresentations apply to suits for false proxy statements under sections 14(a) and 20(a) of the Securities Exchange… Read More

In a reverse confusion trademark infringement case, the senior trademark owner claims that customers are confused by the junior infringer into thinking that the senior's goods emanate from the junior because of its higher public profile.  Here, IronHawk was the senior user of SmartSync for its file compression and transfer software.  It claimed that Dropbox's use of Smart Sync on… Read More

In a Longshore & Harbor Workers Compensation Act case, the ALJ abused his discretion in awarding the prevailing claimant attorney fees at an hourly rate that was substantially lower than the rates that the claimant's evidence showed were prevailing rates for attorneys of equal skill in the same market area.  Use of historical market rate surveys is a proper means… Read More

To state a viable ERISA claim against the trustees of an ESOP for continuing to invest in the employers' stock, the plaintiff must plead specific facts showing that an alternative existed and would have benefited the plan's beneficiaries more than continuing to buy the employer's stock.  See Fifth Third Bancorp v. Dudenhoeffer (2014) 134 S.Ct. 2459.  In doing so, the… Read More

A precertification voluntary dismissal without prejudice of so-called “class claims” cannot constitute a favorable termination on the merits where, as here, the defendant agreed to pay the plaintiff a sum in exchange for the plaintiff’s dismissal of her individual claims. A class action is merely a procedure by which a plaintiff can pursue her claim, not a separate claim that… Read More

Distinguishing Monster Energy Co. v. City Beverages, LLC (9th Cir. 2019) 940 F.3d 1130 as interpreting federal, not California law, and involving a one-time litigant against a repeat player, this decision holds that in a commercial, non-consumer, arbitration, California law does not require an arbitrator to disclose his 0.1 percent interest in JAMS.  Arbitrators are required to disclose their relationship… Read More

Under the federal Fair Housing Amendments Act of 1988 (42 USC 3604(f)), it is unlawful for a person to discriminate in the sale or rental of real property based on disability.  This decision holds that to invoke the act's protection, the disabled person must show he bought or rented the premises or tried to.  Rental for this purchase requires an… Read More

In 2007, Congress amended FOIA to partly overrule Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources (2001) 121 S.Ct. 1835 and allow the plaintiff to recover attorney fees on the catalyst theory in FOIA cases.  The 2007 amendment allows a FOIA plaintiff to prove eligibility for a fee award by either (a) he… Read More

Ins. Code 533.5 provides that no insurer (no matter what the insurance policy says) owes any duty to indemnify or defend a suit by the Attorney General, a district attorney or city or county counsel to recover a fine, penalty or restitution for a violation of B&P Code 17200 or 17500.  This decision holds that the statute does not violate… Read More

Using the website of the administrator hired by Northrup Grumman to manage its pension plan, plaintiffs submitted requests for the administrator to tell them the monthly pension benefit they would receive if they retired on a certain date.  The administrator miscalculated the benefit because it used the requesters' wages during their second period of employment by Northrup Grumman rather than… Read More

In determining the constitutionally permissible ratio of actual to punitive damages, the court may take into account actual harm which cannot be compensated for by an award of actual damages.  Here, for example, the plaintiff suffered emotional distress when her employment was terminated and her employer told her she was fired for poor performance when the real reason was that… Read More

Over a vigorous dissent, the majority holds that the adult daughter of the insureds under this homeowner's insurance policy does not have standing to sue the insurer for bad faith in regard to coverage for damage to the daughter's personal property that was damaged while in the insured premises.  Only the parents were named insureds under the policy, which expressly… Read More

Older 9th Circuit decisions hold that while statutory employment discrimination claims under Title VII and similar laws are arbitrable, there must be a showing that the employee knowingly waived his right to a jury trial of such claims.  In this decision, the court holds that even if the "knowing waiver" standard is still good law, it was satisfied in this… Read More

Section 105(c) of the federal Mine Safety and Health Act (30 U.S.C. § 815(c)) prohibits an employer from taking adverse action against an employee "because of" the employee's reporting a violation of the Act or seeking benefits under it.  Following the Supreme Court's decisions in Bostock v. Clayton Cnty., 140 S.Ct. 1731, 1739 (2020) and other recent cases, this decision… Read More

Kaiser adequately proved that Kuntz's decedent enrolled with Kaiser under a CalPERS medical insurance plan which included an arbitration clause.  Kaiser showed that CalPERS keeps the individual enrollment forms, just sending Kaiser electronic enrollment information.  Kaiser's electronic enrollment information showed that Kuntz's decedent had been enrolled in the Kaiser health plan continuously since 1983.  Kaiser was not required to show… Read More

A collective bargaining agreement will not be interpreted to require arbitration of statutory wage and hour claims unless the agreement clearly and unmistakably requires arbitration of those claims.  Here, the CBA did not meet that standard.  It required arbitration of only those issues that the union and employer later agreed to arbitrate.  Also, litigation of the statutory wage and hour… Read More

Following SEIU Local 121RN v. Los Robles Regional Medical Center (9th Cir. 2020) 976 F.3d 849, this decision holds that, at least with respect to delegation of arbitrability questions to the arbitrator, arbitration clauses in collective bargaining agreements are to be interpreted just like arbitration clauses in other types of contracts.  Arbitrability questions are determined by the court unless the… Read More

Under the PSLRA, to state a 10b-5 securities fraud claim, a plaintiff must plead specific facts that make the inference that the defendant acted with fraudulent intent more persuasive than the opposing inference of innocent mistake.  Although it is possible to allege facts making the requisite strong showing of scienter even if the complaint does not allege facts showing the… Read More