Appellate Practice
Oct. 21, 2016
Weekly Appellate Report #25
Michael Singer (Cohelan Khoury & Singer) voices CAFA concerns as the 9th Circuit applies state labor standards to "call-in" shifts; Neal Marder (Akin Gump) discusses Brazil v. Dole and potentially wider liability for companies labeling foods "All Natural."
This week's show reviews two Ninth Circuit cases, one a recent memorandum ruling with important ramifications for food mislabeling litigation, another a just-argued employment class action presenting an issue of first impression regarding state labor standards and retail employee 'call-in' shifts.
Michael Singer, of Cohelan Khoury & Singer, will join first to chat about the latter case, Casas v. Victoria Secret. In that action, the retail clothier would schedule employees, like plaintiff Mayra Casas, into 'call-in' shifts, which required the employees to make themselves available to work those shifts but to first call ahead of time to see, depending on customer traffic, whether their services were needed. Often, because Victoria Secret would allegedly over-staff shifts, the store would tell scheduled employees to stay home, leaving them uncompensated for the time they had been required to make themselves available for work, and likewise leaving them responsible for footing child or elder care arrangements the employees perhaps had engaged to guarantee they could work the scheduled hours. Casas and her class challenged this policy in California court as violative of state labor standards. Under the Class Action Fairness Act the matter was removed to federal court, where it met with a dismissal before a district judge. The Ninth Circuit panel, at oral arguments, was skeptical both that Victoria Secret's 'call-in' policy passes muster and that a federal court is the proper venue for applying California labor policy in this novel context. Michael Singer, who filed an amicus brief in support of the class, will echo both of those concerns.
Then, Neal Marder, a partner with Akin Gump, will review Brazil v. Dole, a memorandum food mislabeling opinion from the Ninth Circuit. There, Dole Food Company labeled certain fruit products as 'All Natural,' though they contained certain synthetic ingredients. Plaintiff Chad Brazil brought a class action alleging the labels were misleading to a reasonable consumer. Brazil met summary judgment at the district court, which also decertified his damages class. But, his claim was partially revived by the appellate panel, which affirmed the decertification but reversed summary judgment as to Brazil's individual claim against Dole. Mr. Marder will help make sense of this mixed ruling, which both demonstrates that companies must be careful when labeling products "All Natural," and also that plaintiffs in these types of actions face a tough challenge in demonstrating how damages can be calculated across a large class of individuals.
Don't forget CLE credit is available for listeners of the podcast; see the link below to take a very short true/false test based on this episode, and receive one hour of CLE credit. <!-- Weekly Appellate Report Podcast -->
Brian Cardile
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