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November 2011 Newsletter |
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 | California Court of Appeal Clarifies Class Ascertainability Requirement and Reiterates that “Inferred Reliance” Is Applied to Absent Class Members
by MICHAEL BOYAMIAN, ESQ. |
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Determining whether a lawsuit is suitable for class treatment can be an arduous task as courts grapple with a number of legal hurdles in determining whether to certify a class action. Last month, the California Court of Appeal, Second Appellate District, Division Six, decided Marler,et al. v. E.M. Johansing, LLC, et al., ___ Cal.App.4th ___ (Oct. 19, 2011) and in doing so provided further guidance on when a class is ascertainable and whether reliance can be imputed on a class-wide basis.
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MICRA persists in spite of Constitutional Challenges
By ANGELA OH, ESQ. |
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The Constitutionality of the Medical Injury Compensation Reform Act of 1975 (MICRA) was challenged in the California Fifth District Court of Appeals on August 16, 2011. Medical Malpractice attorneys all across California awaited the decision with hopeful optimism. Injured plaintiffs and plaintiffs’ attorneys, however, will find no reprieve in the court’s ruling in Stinnett v. Tam, 98 Cal.App.4th 1412 (2011) issued on September 2, 2011.
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| Using Unconscionability to Avoid Class Action Waivers Post Concepcion
By BRANDON BROUILLETTE, ESQ. |
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In the aftermath of AT&T Mobility LLC v. Concepcion, (2011) 131 S. Ct. 1740 where the United States Supreme Court disapproved California’s ‘Discover Bank’ Rule invalidating class-action waivers in the majority of consumer adhesion contracts, class action attorneys have been looking for ways to circumvent the enforceability of class action waivers through other means. Last month, in Sanchez v. Valencia Holding Co., (2011) ___Cal.App.4th___, the Second District (Division 1) provided one such way, when it sidestepped the issue of whether a class action waiver was enforceable despite the California Legal Remedies Act’s express right to maintain an action brought under the Act as a class action, and instead held that an arbitration provision containing a class action waiver was unenforceable because the arbitration clause in its entirety was unconscionable. However, under this ruling the escape from Concepcion will be limited to instances where a class action waiver is included as part of a greater unconscionable provision that cannot be partially stricken so as to still be rendered enforceable.
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