This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

'Rest' Means Rest

By Brian Cardile | Jan. 13, 2017

Appellate Practice

Jan. 13, 2017

'Rest' Means Rest

Neal Marder (Akin Gump) explains the Ninth Circuit's decision that administrative feasibility is not a prerequisite for class certification; Laura Reathaford (Venable), Richard Bridgford and Mike Artinian (Bridgford, Gleason & Artinian) debate the CASC's new bright-line rule regarding on-call employee rest breaks.


This week's show examines two recent rulings, one from the Ninth Circuit and one from the California Supreme Court, both of which, in different ways, clarified and solidified the position of class action plaintiffs.
Neal Marder, from Akin Gump, will visit first to discuss a Ninth Circuit food mislabeling suit, in which the appellate panel deepened a circuit split by deciding Federal Rule of Civil Procedure 23 does not require a class of plaintiffs to affirmatively demonstrate that their suit is administratively feasible in order to receive class certification. The plaintiffs in that case, Briseno v. ConAgra Foods, filed suit after purchasing GMO-containing cooking oil that was labeled as "all-natural." ConAgra contended that certifying such a class courted administrative headaches and jeopardized the defendant's due process rights. Mr. Marder will explain why the panel disagreed, and what its ruling means not just for food product defendants but any parties that might tend to face large class actions centered around low-cost items.
Next, the show hosts three guests for a lively panel debate about the California Supreme Court's bellwether ruling, in Augustus v. ABM Security, which paints a seemingly bright-line rule against employers requiring employees to remain on call during paid rest breaks. The court, split 5-2, with Justice Cuellar penning the majority opinion and Justices Kruger and Corrigan dissenting, found that the burden of remaining on call was such that employees could not truly rest during those state-mandated rest periods. Our guests, Laura Reathaford (Venable), and Richard Bridgford and Mike Artinian (Bridgford, Gleason & Artinian), debate the legal footing of this ruling, its policy implications, and whether the enunciated rule is as bright as it seems.
Don't forget CLE credit is available for listeners! Find the link below. And email the host at if you have an idea for a segment or would like to appear on the program. <!-- Weekly Appellate Report -->


Brian Cardile

Rulings Editor, Podcast Host, 9th U.S. Circuit Court of Appeals reporter

For reprint rights or to order a copy of your photo:

Email for prices.
Direct dial: 949-702-5390

Send a letter to the editor: