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Arbitration/Unconscionability/CA Law

Tompkins v. 23andMe, Inc. The panel affirmed the district court’s order enforcing the terms of a Terms of Service agreement, and granting 23andMe, Inc.’s motion to compel arbitration. Plaintiffs are a class of 23andMe customers who purchased a DNA test kit and assented to an online Terms of Service, and they challenged the 23andMe arbitration provision under the California doctrine of unconscionability. The panel held that none of the challenged portions of the arbitration provision, alone or in concert, rendered the arbitration provision unconscionable under current California law. The panel rejected the plaintiffs’ challenges to the arbitration provision. First, concerning the arbitration

Preemption/Municipal Minimum Wage Ordinance

American Hotels & Lodging Ass’n v. City of Los Angeles The American Hotel & Lodging Association and Asian American Hotel Owners Association (“the Hotels”) appeal the denial of their motion to preliminarily enjoin the City of Los Angeles (“the City”) from enforcing the Citywide Hotel Worker Minimum Wage Ordinance (“the Wage Ordinance”). The Hotels argue that the entire Wage Ordinance is preempted by federal labor law, referred to as Machinists preemption, because the Ordinance interferes with labor–management relations. The Hotels also argue that the opt-out provision for collective bargaining agreements is independently preempted. The district court concluded that preemption was inapplicable

Misclassification/FLSA/CA Labor Code/NLRA

Morris v. Ernst & Young (9th Cir. 13-16599 8/22/16) The panel vacated the district court’s order compelling individual arbitration in an employees’ class action alleging that Ernst &Young misclassified employees to deny overtime wages in violation of the Fair Labor Standards Act and California labor laws. As a condition of employment, the employees were required to sign agreements that contained a “concerted action waiver” requiring the employees to pursue legal claims against Ernst & Young exclusively through arbitration, and arbitrate only as individuals and in “separate proceedings.” The panel held that an employer violates § 7 and § 8 of the National Labor Relations Act by requiring empl

Class Action/Arbitration/PAGA Bifurcation

Young v. REMX In this wage and hour lawsuit, plaintiff Vanessa Young appeals from the trial court’s order compelling arbitration of her individual claims, dismissing her class claims, bifurcating her representative claim pursuant to the Labor Code Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.), and staying the PAGA claim pending completion of the arbitration on her individual claims. We conclude the order is nonappealable, and dismiss the appeal.

Class Action - Attorney Fees

Laffitte v. Robert Half International A class action employment lawsuit settled before trial for $19 million, with the agreement that no more than a third of that recovery would go to class counsel as attorney fees. In seeking the trial court’s approval of the settlement, class counsel sought the maximum fee amount, $6,333,333.33. After considering information from class counsel on the hours they had worked on the case, applicable hourly fees, the course of the pretrial litigation, and the potential recovery and litigation risks involved in the case, the trial court—over the objection of one class member—approved the settlement and awarded counsel the requested fee. The objecting class mem