Ford & Diulio

Welcome to our new website!

websites@8am.com (Professional Websites) — Wed, 30 Dec 2020 21:11:05 GMT

Welcome to our new website! This site has been professionally designed to be responsive and mobile friendly, so it looks great and is accessible no matter what type or size of device you are using.

Our new website also has an integrated Client Portal, meaning you are able to access your case documents, correspondence, and calendars directly from our website!

If you have any questions, don’t hesitate to contact us today.

California Settlement Agreements Must Include Amended General Release Language

Tue, 19 Feb 2019 18:50:00 GMT

California amended general release language, which requires updates to settlement agreements.

California Employers Must Pay On-Call Employees

Thu, 14 Feb 2019 18:04:00 GMT

A California court held that employees who are "on-call" for an employer but do not work a shift are nonetheless entitled to pay for being on call.

Minimum Wage Increases For Some California Employees Took Effect July 1

Mon, 09 Jul 2018 16:52:00 GMT

The State of California minimum wage is $11.00 per hour for employers with 26 or more employees, or $10.50 for employers with 25 or less employees. But many local cities and counties have their own minimum wage that exceeds the state minimum.

FINRA Arbitration Victory: Ford & Diulio PC obtains damages and expungement of defamatory statements for former Edward Jones Broker

Wed, 16 May 2018 01:09:00 GMT

On June 30, 2017, Ford & Diulio PC Partner Kristopher Diulio obtained a resounding victory for former Edward Jones broker Ryan Flynn in front of a three-person Financial Industry Regulatory Authority Panel.

CFPB Bans Class Action Waivers in Consumer Arbitration Agreements

Tue, 15 May 2018 10:10:00 GMT

The Consumer Financial Protection Bureau (CFPB) announced today that financial companies will no longer be allowed to force customers to use arbitration to settle group disputes.

Qui Tam Relators Can Be “Original Source” Despite Prior Public Disclosures of Alleged Fraud

Thu, 10 May 2018 23:16:00 GMT

Steven Hartpence and Geraldine Godecke (“Relators”) each brought a qui tam case against their former employer, Kinetic, alleging that Kinetic had fraudulently claimed reimbursements from Medicare. United States ex rel. Hartpence v. Kinetic Concepts, Inc ., 792 F.3d 1121 (9th Cir. 2015) (en band). After the allegations of Medicare fraud had been publicly disclosed , Relators had each informed the government of the alleged fraud and then filed separate complaints in district court. Relying upon existing Ninth Circuit precedent, the district court dismissed Relators’ claims because they were not “original sources” of the information under the False Claims Act (“FCA”).

In this opinion, the Ninth Circuit, sitting en banc , overruled its earlier decision in Wang ex rel. United States v. FMC Corp ., 975 F.3d 1412 (9th Cir. 1992), as wrongly decided and remanded the actions to the district court to consider whether Relators were an “original source.” The Court applied a two part test: (1) Before filing his or her action, the whistleblower must voluntarily inform the government of the facts that underlie the allegations of his or her complaint; and (2) He or she must have direct and independent knowledge of the allegations underlying the complaint.

Abrogating its earlier precedent, the Court held that it does not matter whether the alleged whistleblower also played a role in the public disclosure of the allegations.

For more information about qui tam actions, contact Ford & Diulio PC at 714-384-5540 or EMAIL us.

Dog Bites

Thu, 10 May 2018 23:16:00 GMT

Dog owners have a responsibility to make sure that their pets are kept properly restrained. Under California’s strict liability statute, dog owners can be held financially responsible for the injuries, damages and losses their pets cause. More specifically, California’s Civil Code Section 3342 states: “The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.”

If you are attacked by a dog, you can file a personal injury claim against the dog owner seeking compensation for damages such as medical expenses, hospitalization costs, lost wages, cosmetic surgery expenses, cost of psychological counseling, scarring or disfigurement, pain and suffering and mental anguish. Compensation may also be available from the dog owner’s homeowner’s insurance policy.

There are several steps you can take if you have been injured by a dog

Contact Ford & Diulio PC at 714-384-5540 to speak with experienced personal injury attorneys, who will advocate for you and insure that the negligent dog owner is held accountable.

Truck Drivers Misclassified as Independent Contractors:

Thu, 10 May 2018 23:15:00 GMT

In Garcia v. Seacon Logix, Inc., Romeo Garcia and other plaintiffs were truck drivers who transported cargo for Seacon Logix. When the Ports of Los Angeles and Long Beach began to implement a clean air program, companies such as Seacon purchased new, less polluting trucks to replace the older, higher emission trucks that had been owned and operated by the truck drivers. Despite the fact that truck drivers no longer owned the trucks they drove, Seacon continued to treat the drivers as independent contractors, requiring them to enter into lease agreements for the use of the trucks and deducting lease and insurance payments from their paychecks.

In Garcia v. Seacon Logix, Inc., 190 Cal. Rptr. 3d 400 (Cal. Ct. App. 2015), the Court of Appeal affirmed the classification of truck drivers as employees, not independent contractors.

In this lawsuit, the truck drivers sought reimbursement for those deductions on the ground that they were employees and not independent contractors. The Labor Commissioner and the trial court agreed and entered judgment in favor of the drivers.

The Court of Appeal affirmed, holding that the trial court’s judgment is supported by substantial evidence that Seacon controlled the manner and means of the drivers’ work and that secondary factors such as the right to discharge at will and the provision by Seacon of the instrumentalities, tools and place of work proved the drivers are employees and not independent contractors.

For more information about Labor & Employment litigation, contact Ford & Diulio PC at 714-384-5540 or EMAIL us.

Bike Accidents

Thu, 10 May 2018 23:15:00 GMT

In Orange County as a whole, 13 people died and 1,441 were injured due to bicycle accidents in 2012. Surprisingly, there are no laws in California requiring bicyclists to wear helmets. As a result, bicyclists are vulnerable to severe injuries. Bicycle accidents are typically caused by the following circumstances:

Driver wasn’t looking for pedestrians while turning
Driver was distracted prior to the collision
Driver failed to yield right of way
Visibility was blocked or reduced by surrounding environment
Driver opened the door of a parked car without looking

Even if the bicyclist is partially responsible for the accident, he may still recover damages under the doctrine of comparative negligence. This doctrine allows an insurance company to pay out compensation to both the driver and the pedestrian based on their level of fault in the bicycle. The more at-fault a person is in the accident, the more they will likely have to pay out in damages.

In fatal cases where negligence or wrongdoing is involved, families of deceased victims can file a wrongful death claim seeking compensation for damages such as medical and funeral costs, pain and suffering and loss of love and companionship. Regardless of whether the driver is charged or cited by law enforcement, if he is determined to have been negligent, both he and his employer (if driving a company vehicle or driving on company business) can be held financially responsible for injuries caused by the accident.

To learn more about personal injury claims after a bicycle accident, contact one of our experienced personal injury attorneys at Ford & Diulio LLP, 949-555-5525.

DirectTV Installation Technicians Not Exempt Employees

Thu, 10 May 2018 23:14:00 GMT

An Illinois federal judge has dismissed a wage-and-hour suit against DirectTV saying that the installation technicians’ suit did not describe a relationship with the company that qualified them as employees eligible for overtime or other benefits.

Although the plaintiffs installed DirecTV products, they worked for subcontractors hired by the satellite giant and its co-defendant DirectSat USA LLC, and they failed to a state a plausible claim that the defendants owed them additional compensation for their work.

In his order on Wednesday, the judge wrote that the technicians had not supported their claims that their relationship with DirecTV and DirectSat was that of employee-employer. “Plaintiffs in this case point to no agreement or contract [with the defendants] whatsoever,” he wrote.

The judge dismissed with prejudice claims filed under the Illinois Employee Classification Act, saying that the law was intended to protect workers in the construction industry and the satellite installation did not apply as construction. He dismissed without prejudice the suit’s other claims, filed under the Fair Labor Standards Act of 1938 and the Illinois Wage Payment and Collection Act, and said that the plaintiffs had 30 days to file an amended complaint if they chose to.

For questions related to employee status, please contact Ford & Diulio at 714-384-5540.

McDonald’s May Be A Joint Employer With Franchisee

Thu, 10 May 2018 23:14:00 GMT

A California federal judge on Friday tossed some claims from a putative class action seeking to hold McDonald’s liable as a joint employer for a franchisee’s failure to pay workers proper wages, but the fast food giant remains on the hook under an alternate theory of liability.

U.S. District Judge James Donato said although plaintiffs presented a “mountain” of documents in their efforts to show the great influence McDonald’s has on its franchisees such as co-defendant Edward J. Smith and Valerie S. Smith Family LP, all staffing decisions were solely made by the Smith family.

“Even when viewed in the light most favorable to plaintiffs, the record before the court compels the finding that the McDonald’s defendants do not directly employ the plaintiffs or the putative class, and are entitled to summary judgment on that issue,” the judge wrote in a 17-page order.

McDonald’s does not directly employ the plaintiffs. A jury may reasonably conclude that McDonald’s and the franchisee are joint employers.

However, Judge Donato said that plaintiffs could pursue claims against McDonald’s as a joint employer under the theory of ostensible agency, saying that issue would be resolved at trial.

“Because there is evidence from which a jury could reasonably conclude that McDonald’s and Smith shared an ostensible agency relationship, summary judgment is denied,” the judge said.

Judge Donato also tossed a negligence claim, saying it was barred by the new “right-exclusive remedy” doctrine in the California Labor Code.

McDonald’s, which is fighting a barrage of proposed wage class actions across the country, contends that there is no evidence that it got involved in or exerted any authority.

For more information about joint employer liability, contact Ford & Diulio PC at 714-384-5540 or EMAIL us.

Citi Shareholder Argues That 2nd Circuit Trial Court Incorrectly Applied In re Caremark Standard

Thu, 10 May 2018 23:13:00 GMT

A plaintiff accusing Citigroup’s board of being disloyal to shareholders by disregarding indications that the megabank’s mortgage servicing and foreclosure practices were faulty in the runup to the financial crisis told the Second Circuit on Friday that a lower court judge used the wrong standard in dismissing the suit. The trial court judge had applied the Delaware standard articulated in In re: Caremark — one of the toughest to clear on the law.

Plaintiff’s counsel argued that the facts of the case were different enough that Caremark doesn’t apply. Among other things, the board had implemented controls in contravention of Caremark’s conditions precedent.

Citigroup Inc. countered that it was right to accept Caremark into the court’s analysis, which found that the board had to have had “red flags” in front of it pointing toward possible misconduct for an allegation of disloyalty to stand.

For more information on derivative lawsuits, contact Ford & Diulio at 714-384-5540.

Did Mercedes Benz Fraudlently Claim It Used Name-Brand Parts?

Thu, 10 May 2018 23:13:00 GMT

Mercedes Benz has been lying to customers about the origin of the parts it uses in repairs, according to a proposed class action in California federal court Thursday demanding at least $6.6 million for the company’s overcharges.

The suit, which comes hot on the tail of a scandal in which the U.S. Environmental Protection Agency said Volkswagen AG allegedly rigged the software on diesel cars to disguise the amount of
pollutants the vehicles are spewing into the air, accuses Mercedes-Benz USA LLC of telling customers they’re getting name-brand parts in repairs, charging them for those parts, but sticking knockoffs in the cars, according to the complaint. Since 2005, Autobahn Motors Inc., a Mercedes-related entity, has advertised that it uses only original equipment manufacturer parts, according to the suit. OEM parts can cost customers sometimes double what a non-name-brand item would, the plaintiffs said.

The suit accuses Mercedes and Autobahn of fraud, negligent misrepresentation and violations of the Racketeer Influenced and Corrupt Organizations Act, among other claims.

For more information about product liability litigation, contact Ford & Diulio PC at 714-384-5540 or EMAIL us.

California or Ohio? Where should cases against Honda be consolidated?

Thu, 10 May 2018 23:12:00 GMT

Update on In re: American Honda Motor Co., Inc., CR-V Vibration Marketing and Sales Practices Litigation, case number 2661, in the U.S. Judicial Panel on Multidistrict Litigation.

A number of lawsuits have been filed against Honda accusing the carmaker of concealing vibration problems with its 2015 CR-V. Plaintiffs allege, among other things, that the vibrations are so bad they cause nausea.

Plaintiffs based in California and Ohio are now competing to have the cases consolidated in their home state. The Ohio plaintiffs petitioned the U.S. Judicial Panel on Multidistrict Litigation to select the Southern District of Ohio as the proper forum.

Because Honda is based in California, California plaintiffs’ counsel argued against Ohio and in favor of the Golden State, with support from Honda itself. The California plaintiffs’ argument is that there is typically a substantial amount of parent-company discovery in this type of action. In addition, the first-filed case was lodged by a plaintiff in California.

Plaintiffs’ counsel for the Ohio plaintiffs argued that Ohio would be more central to a proposed nationwide class, and that the automobiles in question may have been made in multiple locations across North America. In addition, the Ohio plaintiffs argued that Honda’s top North American executive, Tetsuo Iwamura, was relocated to Marysville, Ohio, in 2013.

“Although marketing and sales are certainly relevant to plaintiffs’ claims, the manufacturing center will contain the research and design witnesses crucial to plaintiffs’ claims that Honda has sold defective vehicles,” the Ohio plaintiffs’ filings say.

The cases all are in their beginning stages and Honda (as of August) has not answered any of them.

For more information about product liability litigation, contact Ford & Diulio PC at 714-384-5540 or EMAIL us.

“Mind Recover” Supplement Needs FDA Approval

Thu, 10 May 2018 23:10:00 GMT

MPH Nutrition LLC produces “Mind Recover,” a supplement recommended for athletes to take after every practice or game in order to support healthy brain function. The supplement beverage contains 3,000 mg of Omega-3, which the company promotes as being “important for neurological recovery.” Because MPH is making therapeutic claims related to its product it qualifies as a drug subject to FDA approval, which it has not obtained.

As a result, the company received a warning letter dated October 1 from the FDA stating that a new drug may not be “legally introduced or delivered for introduction into interstate commerce without prior approval by the FDA.” The letter also warns that Mind Recover is not a product amenable to use following self-diagnosis nor can adequate directions be written so that a layperson can use this drug safely for its intended purposes.”

For further information on supplement and drug product liability, contact Ford & Diulio PC at 714-384-5540 or EMAIL us here.

PAGA Claims for Unpaid Overtime Too Individualized For Collective Recovery

Thu, 10 May 2018 23:09:00 GMT

After denying plaintiff’s motion for class certification in an overtime lawsuit against American Airlines, U.S. District Judge Andrew J. Guilford has now dismissed plaintiff’s claims for collective recovery of California Private Attorneys General Act (PAGA) penalties, finding those claims for unpaid overtime to be too individualized to be manageable. PAGA’s private enforcement scheme allows plaintiffs the right to act as a private attorney general to recover the full measure of penalties the state could recover for violations of wage and hour regulations.

Plaintiff Lorraine D. Brown’s individual claim for PAGA penalties resulting from improper wage statements remains intact. She alleges that American Airlines improperly used the state Industrial Welfare Commission’s Wage Order 9 to deny time-and-a-half pay for California employees if they worked more than 40 hours in a week but less than 60 if those extra hours were accrued when picking up another worker’s shift. Brown also says that American low-balled overtime pay by not including bonuses in rate calculations.

For further information on wage and hour litigation and developments in PAGA recovery, contact Ford & Diulio PC at 714-384-5540 or EMAIL us here.

Putative Class Action Against Saks Inc. Tossed

Thu, 10 May 2018 23:09:00 GMT

On Tuesday, a California judge dismissed a putative class action alleging retailer Saks Inc. violated consumer protection and unfair competition laws by excluding sales tax from refunds issued to customers who don’t bring a receipt. Plaintiff Nadereh Moshiri had filed suit in June 2014 alleging that, in August 2012, she returned four items without an original receipt to Saks’ outlets in Beverly Hills and Camarillo, only to be told that they can’t include sales tax in the refund without a receipt. In her complaint she argued that Saks retained excess sales tax for its own gain rather than remitting to customers as required by California law and calling the practice unfair, unlawful and fraudulent in her complaint.

“It is the Board of Equalization’s job to assess whether the remitted tax amounts must be reimbursed to the plaintiff and the class.”
Her suit was tossed, because under the California Court of Appeals’ 2014 ruling in Loeffler v. Target, the tax code requires tax payers seek refunds of tax payments from the state agency, not in a civil action.

Tuesday’s ruling isn’t the first time Saks has had to defend its return policies in the courts as in April, a California federal judge dismissed a customer’s suit alleging the retailer violated California law by failing to properly post its return and refund policies at its stores.

Arbitration Agreement Unenforceable In Dynamax Overtime Dispute

Thu, 10 May 2018 23:08:00 GMT

A California federal court has denied same-day shipping company Dynamax’s motion to compel arbitration in a driver’s putative class action for unpaid overtime and other wages. U.S. District Court Judge William Aslup held that the arbitration clause was unenforceable because it was not presented in Spanish to the plaintiff, who is originally from El Salvador.

The Judge further found the arbitration clause unconscionable because it imposes excessive fees and expenses under its terms requiring arbitration to take place in Texas. The case is Juan Saravia v. Dynamax Inc. et al., case no. 3:14-cv-05003 in the Northern District of California.

For more information about claims for unpaid overtime, contact Ford & Diulio PC at 714-384-5540.

Uber’s Mandatory Gratuity Policy May Have Been Lining Corporate Pockets Instead of Benefiting The Drivers

Thu, 10 May 2018 23:08:00 GMT

In January 2014, plaintiff Caren Ehret filed a lawsuit against Uber Technologies Inc. claiming that when she used Uber’s mobile app that she was charged the mandatory 20 percent tip on top of the cost of the metered fare. She thought the money would go to the driver, but in reality Uber keeps it for itself. In her complaint, Ehret alleges that Uber made false claims on its website and in advertising about where the gratuity goes. Ehret even saw that claim in the app, but Uber has allegedly since destroyed the old version of the app.

On Thursday, U.S. District Court Judge Edward Chen expressed his doubt that plaintiffs could show that all passengers with similar experiences actually saw the purported misrepresentation. The plaintiffs will need to show that passengers were exposed to Uber’s messages about the gratuity in order to show that they relied on those messages when they paid the tip, Judge Chen said. “If you need to show who was exposed and who was not, then you have problems with predominance.”

Although he said there’s no need to prove that every single class member was exposed to the alleged misrepresentation, he said it was “possible, even probable,” that people who hailed Uber wouldn’t have seen any information about the 20 percent gratuity.

Plaintiffs’ attorney Michael Ram of Ram Olson Cereghino & Kopczynski LLP argued that throughout the class period, Uber made false claims on its website and in advertising about where the gratuity goes. Plaintiffs’ attorney has suggested that a simple survey of customers would determine the percentage that saw the website or app.
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The proposed class could potentially include a million Uber riders who used the company’s UberTaxi service between April 2012 and the time Uber changed its policy regarding automatic gratuity for taxi drivers in March 2013.

The case is Caren Ehret et al. v. Uber Technologies Inc., case number 3:14-cv-00113 in the U.S. District Court for the Northern District of California, San Francisco Division.

For more information about consumer lawsuits, contact Ford & Diulio PC at 714-384-5540 or email us.

There’s No Such Thing As A Free Haircut: Lawsuit alleging Aveda failed to pay trainees for salon work partially compelled to arbitration

Thu, 10 May 2018 23:07:00 GMT

Los Angeles Superior Court Judge Jane L. Johnson ruled on Friday that she was granting Estee Lauder-owned Aveda’s motion to compel arbitration of the claims of two of the three named plaintiffs in a class action lawsuit that alleges that Aveda illegally treats trainees as unpaid employees. The third named plaintiff did not sign an arbitration agreement.

The lawsuit was filed on behalf of three former cosmetology students, who contend that Estee Lauder-owned Aveda treats its hair and beauty students as unpaid workers. The plaintiffs allege that they were not compensated for their work, despite providing full hair and beauty services to paying clients. The plaintiffs also allege that Aveda did not properly supervise its students working on the salon floor, in violation of state regulations. Because of the lack of supervision and the requirement that students provide full beauty treatments rather than just assistance, plaintiffs allege that Aveda treated its students as employees without pay. The class size contains potentially thousands of current and former students.

At the hearing, plaintiffs’ attorney stated that they have located a student with a claim under California’s Private Attorney General Act — a claim that is not subject to arbitration waiver under the California Supreme Court’s ruling last year in Iskanian v. CLS Transportation . Per Iskanian , PAGA waivers in arbitration agreements are generally unenforceable (unlike class action waivers). The logic is that PAGA actions have the fundamental public purpose of enforcement action by the state government, with penalties that go largely to the state.

California Governor Shoots Down Proposed Legislation Banning Employee Arbitration Agreements

Thu, 10 May 2018 23:07:00 GMT

On Monday, Governor Brown vetoed legislation (AB 465) that would have stopped employers from requiring employees from signing arbitration agreements related to their employment. If it had passed, it would have unquestionably resulted in litigation about the validity of the law – a costly process that the Governor was unwilling to start, particularly given that the Supreme Court is currently reviewing two cases related to arbitration clauses.

“While I am concerned about ensuring fairness in employment disputes, I am not prepared to take the far-reaching step proposed in this bill for a number of reasons,” Gov. Brown said in the veto notice. “If abuses remain, they should be specified and solved by targeted legislation, not a blanket prohibition.” He also expressed considerable concern that this new legislation would be preempted by the Federal Arbitration Act.

It is worth noting that the bill would not have impacted cases where the employee voluntarily entered into an arbitration agreement with his or her employer. Rather, the bill was intended to prevent employees from being unilaterally pressured into signing away their rights. Under these agreements, employees with claims relating to discrimination, wage and hour violations, dangerous working conditions, or other workplace disputes can allegedly only pursue their claims through the employer’s mandated process, according to the group. In order to avoid these agreements, employees would have to point to specific provisions or circumstances that are unconscionable.

The imposition of arbitration agreements is a key issue in employment litigation because the U.S. Supreme Court stated in its 2011 ruling in AT&T Mobility v . Concepcion that mandatory arbitration clauses can include class action bans.

You Both Win! Court Affirms Attorneys’ Fees To Both Sides After Split Verdict

Thu, 10 May 2018 23:06:00 GMT

Both teams winning may be common in AYSO or Little League, but in litigation we expect there to be only one prevailing party (although sometimes, there is no winner). A recent Court of Appeal decision alters that expectation by holding that when a plaintiffs prevails on a statutory claim and the defendant prevails on another statutory claim, both sides are entitled to their attorneys’ fees.

By providing that the prevailing party under one statute is entitled to fees, and that a different prevailing party under another statute is entitled to fees, the Legislature expressed an intent that there can be two different prevailing parties under separate statutes in the same action.

Under the “American Rule,” each side in litigation pays its own attorneys unless a statute or contract states that the prevailing party may recover his or her fees. In Sharif, the plaintiff filed claims for unpaid overtime and wages, and for violation of the Equal Pay Act. After trial, the jury found for plaintiff on the Equal Pay Act claim and for the defendant on the unpaid overtime and wages claims.

Under separate statutes, both the Equal Pay Act and unpaid wages claims provide for an award of fees to the prevailing party. Each side applied for their attorneys’ fees after trial. The trial court awarded fees to each side on its prevailing claims, which resulted in an offset and net award of $3,709.19 to the plaintiff.
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The Court of Appeal affirmed the dual award of fees, and offset, even though the jury made a net monetary to plaintiff.

[A] net monetary award to a party does not determine the prevailing party when there are two fee shifting statutes involved in one action.

Sharif v. Mehusa, Inc., Case No. B255578 (Cal. Court of Appeal Oct. 14, 2015).

If you have questions or need information regarding a statutory or contract claim, or the effect of an attorneys’ fees provision, contact Kristopher Diulio at mailto:kdiulio@forddiulio.com.com or call the experienced attorneys at Ford & Diulio PC at 714-384-5540.

Zofran – A Quick Guide

Thu, 10 May 2018 23:05:00 GMT

In recent months, dozens of families across the country have sued GlaxoSmithKline (GSK) for injuries relating to the drug Zofran. What is this drug? What are the claims? This post seeks to give the reader a brief overview.
In 1991, the Food and Drug Administration (FDA) approved Zofran (ondansetron) for chemotherapy-related nausea and vomiting, as well as post-operative nausea and vomiting.

Settlement for Off-Label Marketing
In July 2012, the U.S. Department of Justice issued a press release (pdf) stating that GSK would pay a $3 billion settlement, after pleading guilty to claims that the company promoted Zofran for off-label use (i.e. a use not approved by the FDA), specifically as a treatment for pregnant women experiencing morning sickness.

“It further resolves allegations that GSK promoted certain forms of Zofran, approved only for post-operative nausea, for the treatment of morning sickness in pregnant women.”

Safety
DataZofran is not approved for pregnant women. Fetal safety data is based on less than 200 births and the FDA classifies Zofran as a “Pregnancy Category B” medication, which means no one knows if it is safe. Pregnant women with questions about Zofran should talk to their doctors. Zofran has also been linked to deadly side effects for pregnant women.

According to several studies published in the last decade, Zofran passes from mother to fetus through the placenta very rapidly and in “significant amounts.” Furthermore, it remains active in the fetus much longer than in the mother.

Moreover, researchers published a study linking Zofran with a doubled risk of heart defects, leading to a 30% increased risk of birth defects overall.

In 2014, a study by researchers in Sweden found that Zofran doubled the risk of septal heart defects (i.e. “hole in the heart” defects). In addition, a 2012 study linked Zofran to a 2.4 fold increased risk of cleft palate.

MDL Established
On October 14, 2015 the Judicial Panel on Multidistrict Litigation transferred all pending cases to the District of Massachusetts.

Questions?
If you have any questions regarding Zofran lawsuits, please call experienced product liability lawyers at Ford & Diulio PC at 714-384-5540.

Apple Employees Fight For Compensation For Time Spent in Bag Checks

Thu, 10 May 2018 23:05:00 GMT

On Thursday, a class of California Apple Inc . retail employees, who allege that Apple failed to pay employees for time spent in bag checks, opposed a motion for summary judgment by Apple in California federal court. The employees filed their lawsuit against Apple in 2013, alleging that the illegal bag checks resulted in 90 minutes of uncompensated work time every week.

The employees’ primary argument is that they were required to undergo the bag checks, and because the checks solely benefit their employer, they should be considered compensable hours. The employees argue that the bag checks are analogous to other activities that have been held to be compensable hours under California law, such as security screenings, on-duty meal periods, and job interviews. In all these activities, the employees are still under the employer’s control. Notably, the class is limited to California employees because the Supreme Court ruled in December that employees are not entitled to compensation for security screenings under the Fair Labor Standards Act. ( Busk v. Integrity Staffing Solutions Inc .)

Apple, in opposing these allegations, says that the employees would not be subject to the check if they chose not to bring a bag or personal Apple electronics to work. In response, the employee class argues that this is a red herring, and that instead of addressing the legality of the bag checks without pay, Apple is trying to distract the court with whether or not bringing a bag is a voluntary activity. However, the employees argue, Apple has not shown that there is any mutual convenience to the bag checks – it is solely for Apple’s benefit.

“We think the company is obligated to compensate them for the time,” Shalov said. “We’re hopeful the judge recognizes that people spend time at these checks because they have to, not because they want to. It doesn’t convenience them in any way.”

Ford & Diulio PC handles all kinds of wage and hour litigation. F or more information or a free consultation contact Jessica Diulio at mailto:jdiulio@forddiulio.com .com or call the experienced attorneys at Ford & Diulio PC at 714-384-5540.

Food Poisoning 101 – Chicken

Thu, 10 May 2018 22:54:00 GMT

Common Symptoms

Bacteremia

Guillain-Barre Syndrome

Treatment

Restaurants May Be Held Responsible If You Are Sick Due to Undercooked Food

Car Crash? What to Do First

Thu, 10 May 2018 22:53:00 GMT

Getting into a serious car accident is a traumatic event. Emotions are running high. You or someone you love may be seriously injured. And you may be wondering what to do next.

In this post, I will go over a suggested “to-do” list in the unfortunate event that you get into a car accident involving significant property damage, injuries, or death. In later posts, I will explain why each step is critical in the event you decide to hire a personal injury attorney and sue the other driver(s).
Stay at the Scene
Determine if anyone at the accident scene needs medical treatment.
Call the police and inform them that there has been an accident and that people need medical attention.
Exchange contact and insurance information with all other drivers involved in the accident.
DO NOT accept responsibility for the accident, or say anything that could be construed as accepting responsibility.
DO NOT get into an altercation with any of the other drivers/passengers.
If possible, get witness information.
If possible, take photographs of the accident scene and the damage to the vehicle(s).
Notify your insurance company of the accident.
Get medical treatment, and follow your physician’s advice.
If you suffered personal injuries, hire a personal injury attorney.
DO NOT talk to anyone from the other driver’s insurance company about the accident, no matter how persistent they are.
Get two estimates on the value of the repairs, or the replacement cost of the vehicle in the event it is a total loss.
If your claim involves significant property damage, personal injuries, or death, DO NOT settle the case with the insurance company without first consulting with an attorney.
If you have any questions, or need additional information regarding your Southern California car accident case, please email us here or call 1-714-384-5540 for a free consultation.

Car Crash Part 2: First Three Steps (Detail)

Thu, 10 May 2018 22:53:00 GMT

In part I of this post, I offered a 14-point suggested “to-do” list in the unfortunate event that you get into a car accident involving significant property damage, injuries, or death. This post covers the first three suggestions – stay at the scene, determine if anyone at the accident scene needs medical treatment, and call the police […]

No Rest for the Weary Taco Bell Workers?

Thu, 10 May 2018 22:52:00 GMT

In re: Taco Bell Wage and Hour Actions, case number 1:07-cv-01314 in the U.S. District Court for the Eastern District of California.

In the ongoing Taco Bell litigation, which began in 2007, Taco Bell workers are seeking partial summary judgment on their claim that the company failed to provide workers with the requisite two rest breaks for shifts over six hours.

Throughout the litigation, the workers have relied largely on a “Required Meal and Rest Break Matrix” that states that workers are allowed only one 10-minute break for shifts lasting up to seven hours. The company, however, has long argued that there is no proof this “Matrix” was a ever adopted as a company-wide policy. In fact, Taco Bell has produced evidence that 69% of the class members never even received a copy of the “Matrix.” Taco Bell has also contested plaintiffs’ claims by introducing punch cards that show that class members took second meal breaks approximately two-thirds of the time when working more than six hours in a shift.

Thus, Taco Bell has argued in its opposition to the motion for summary judgment, material facts are still in dispute.

For more information about the case or for questions about meal period and rest break litigation, contact Jessica Diulio at Ford & Diulio PC. Phone (714) 384-5540.

Company Can Be Liable CEO’s Stock Fraud

Thu, 10 May 2018 22:51:00 GMT

The CEO of a Chinese public company embezzled millions from his corporation while misleading investors with false statements and omissions. When the fraud and looting came to light, investors filed a federal securities lawsuit against the company, its CEO, and the company’s board of directors.

The company moved to dismiss the lawsuit, claiming that the actions of the CEO could not be imputed to the company because he and his accomplices acted out of their own self-interest and were adverse to the company. The District Court agreed and dismissed the lawsuit for lack of scienter or intent because the CEO’s fraud did not benefit the company. The Ninth Circuit Court of Appeal reversed, however, holding that the company can be liable even when the fraud did not benefit the company because it permitted the CEO to speak on its behalf and innocent shareholders relied on those statements.
[I]mputation is proper because Chan [the CEO] acted with apparent authority on behalf of the corporation, which placed him in a position of trust and confidence and controlled the level of oversight of his handling of the business.

In re ChinaCast Educ. Corp. Sec. Litig., No. 12-57232 (9th Cir. Oct. 23, 2015).

If you have questions about securities or stock fraud, contact Orange County civil attorney Kristopher Diulio at kdiulio@forddiulio.com or call the experienced attorneys at Ford & Diulio PC at (714)-384-5540.

Car Crash Part 3: Steps 4-8

Thu, 10 May 2018 22:50:00 GMT

In part I of this series, we gave an overview of the 14 items on your “to do” list in the event you are involved in a serious car accident. In part II, we discussed items 1-3 in greater detail, and explained why they are so important to your personal injury case. In this post, we cover items 4-8.

4. Exchange contact and insurance information with all other drivers involved in the accident. As I mentioned in a prior post, it is important that you gather as much information as possible immediately after the accident. Insurance information is essential, since insurance companies will likely be responsible for paying for the property damage and personal injuries resulting from the crash. Names, numbers, addresses, driver’s license numbers, and license plate numbers are important pieces of information that your attorney will need to investigate the claim.

5. DO NOT accept responsibility for the accident, or say anything that could be construed as accepting responsibility. Car accidents often occur in the blink of an eye. Determining what happened – and more importantly, who was at fault – is often a complicated process that can only be reached after carefully evaluating the vehicles, the other physical evidence, and the witness testimony. To accept responsibility before that kind of evaluation is made is premature, and can have a potentially devastating effect on your personal injury case. So please don’t say anything regarding fault – even something as seemly innocent as “I’m sorry I hit you, I was texting on my phone and wasn’t paying attention – is everyone ok?”

6. DO NOT get into an altercation with any of the other drivers/passengers. Emotions can understandably run high when an accident occurs. But it is important to keep your emotions in check as much as possible. Gather information, ask for the police to arrive, and if others at the scene get hostile, communicate with them through the police officers, who are trained to diffuse tense situations. Verbal and/or physical confrontation increases the risk of saying something that may come back to haunt you, getting injured, getting sued, or getting arrested.

7. If possible, get witness information. If you are physically able to do so, gather witness information. Witnesses – particularly third-party witnesses (those who are not affiliated with any of the parties to the accident) – are critical to a case. Because they don’t have a proverbial “dog in the fight,” juries typically give their testimony greater weight than those who are affiliated with one side or the other. Your attorney will definitely want to interview and/or depose these important witnesses, so gather their information if you can.

8. If possible, take photographs of the accident scene and the damage to the vehicle(s). As the saying goes, “a picture is worth a thousand words.” Taking photographs of the vehicles, the damage to the vehicles, and the immediate aftermath of the accident can be powerful evidence either at trial or at mediation.

If you have any questions, or wish to discuss your car accident case, please contact the Orange County personal injury attorneys at Ford & Diulio PC at 714-384-5540 or email us here.

CVS Employee’s Unpaid Vacation Suit – Nearing Settlement Approval

Thu, 10 May 2018 22:49:00 GMT

The putative class of CVS Pharmacy Inc. employees, who allege that CVS failed to pay accrued vacation and unused holiday wages, is urging a California federal court to accept a proposed settlement of $400,000 for their claims. The central allegation is that because of CVS’s policy of accruing vacation time on a monthly basis, it failed to pay workers at two of its distribution centers for vacation they accrued in their final month prior to termination.

For example, if a worker was terminated on November 20, 2012, CVS only paid her for her accrued vacation time through November 4, 2012. The employees allege that this constitutes a violation of several California labor and business laws. Additionally, the employees allege that that CVS failed to pay terminated employees for unused “floating” holiday pay upon termination.

As part of the settlement, CVS will not acknowledge any wrongdoing on its part. Instead, CVS states in the proposed settlement that “CVS has concluded that any further defense of this litigation would be protracted and expensive for all parties.” The case, however, provides a potentially cautionary message to employers that have monthly vacation accrual policies.

The settlement will extend to employees whose employment ended between January 2009 through October 31, 2015. The named plaintiff would receive an incentive award of up to $5,000 and the attorneys would collect $100,000 in fees and costs. The case is Nieves et al. v. CVS Pharmacy Inc. et al., case number 1:14-cv-00964, in the U.S. District Court for the Eastern District of California

Not So Fresh & Easy: Laid Off Employees Launch Putative Class Action

Thu, 10 May 2018 22:48:00 GMT

9. Notify your insurance company of the accident. This is self-explanatory. You pay insurance premiums on a monthly basis in order to be protected in the event of a loss. Your insurance company must be notified as soon as possible so they can monitor the situation and act accordingly.

10. Get medical treatment, and follow your physician’s advice. This is very important, particularly if you have suffered significant injuries. Under California law, a plaintiff has a duty to “mitigate damages.” That means that a plaintiff is not entitled to recover damages for harm that could have been avoided with reasonable efforts or expenditures. Follow your physician’s advice, whether that means taking the medications prescribed, doing physical therapy, or any other prescribed regimen.

11. If you suffered personal injuries, hire a personal injury attorney. Some cases involving minor property damage can be resolved without consulting an attorney. We strongly suggest that you hire a personal injury attorney to handle anything beyond that. If you have been injured due to someone else’s neglect, you deserve compensation for your loss. You do not want the headache of handling doctors, insurance companies, and repair shops. Let the attorneys deal with that – your entire focus should be on recovering from your injuries.

12. DO NOT talk to anyone from the other driver’s insurance company about the accident, no matter how persistent they are. Insurance companies have a single goal: resolve the claim as cheaply as possible. They will ask you questions that are designed to either (a) eliminate liability for their insured, (b) put you partially or wholly at fault for the accident, or (c) minimize your damages and injuries. You are under no obligation to speak to the other driver’s insurance company. The good news – once you hire an attorney, and the insurance company knows that you are represented by a lawyer, they cannot even attempt to speak to you directly.

13. Get two estimates on the value of the repairs, or the replacement cost of the vehicle in the event it is a total loss. If your claim is limited to vehicle damage, then make sure you take the vehicle to at least two places to get a fair price for the repairs. Similarly, if your car is a total loss, get several estimates on the replacement value before you make a claim.

14. If your claim involves significant property damage, personal injuries, or death, DO NOT settle the case with the insurance company without first consulting with an attorney. Claims involving significant property damage, serious personal injuries, or death are very important cases. This represents your ONE opportunity to get compensation for the harm caused by another’s negligence. It is unwise to try and resolve such an important case without the input of an attorney, who can make sure that all potential sources of insurance are identified, and that you are getting the appropriate compensation given the nature of the harm.

If you have any questions, or need additional information regarding your Southern California car accident case, please email us here or call 1-714-384-5540 for a free consultation.

Update: Apple Employee Class Action Defeated

Thu, 10 May 2018 22:47:00 GMT

In an update to my prior post, Apple employees have lost their class action case against Apple for unpaid wages related to bag checks. The Judge agreed with Apple’s argument that employees could simply choose to leave bags at home to avoid the bag check procedure. The Judge also rejected the employees’ argument that the time waiting for bags to be checked was compensable because the time was solely for the employer’s benefit. Analogizing it to time spent commuting to work, the Judge held that the passive time spent waiting was not “work” time for which wages would be due.

The case is Frlekin et al. v. Apple Inc., case number 3:13-cv-03451, in the U.S. District Court for the Northern District of California.

For advice regarding employee policies and procedures, contact Ford & Diulio PC at 714-384-5540 or email Jessica Diulio at jdiulio@forddiulio.com.

Panera Employees Seeking Unpaid Wages and Expenses in New Class Action

Thu, 10 May 2018 22:47:00 GMT

On Monday, drug makers scored a big victory in multidistrict litigation that accused the drug makers of failing to warn patients that taking certain Type 2 diabetes drugs they produced could lead to pancreatic cancer. A California federal judge granted summary judgment in the drugmakers’ favor, holding that if the companies had proposed a label that had warned patients about the potential pancreatic disease risks, the FDA would have rejected those proposals.
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In his order, U.S. District Judge Anthony J. Battaglia noted that the “evidence establishes the FDA has reviewed the risk specific to plaintiffs’ claims and, after considering the totality of available scientific data, concluded a warning or other reference to that risk is unsubstantiated.” Judge Battaglia also held that the FDA’s finding on the matter preempts state law failure-to-warn claims.
On Tuesday, Panera LLC employees filed a putative class action in the U.S. District Court for the Eastern District of California alleging that Panera failed to reimburse employee travel expenses, failed to allow meal periods, and avoided paying overtime by altering company records. The potential class could include as many as 5,000 California employees (working at Panera from November 2011 to the present) seeking damages for unpaid wages and expenses.

The lead plaintiff is a current baker for Panera and she alleges that at least once a week her workload was so heavy that she was unable to take a 30-minute meal period during her shift. A once-a-week meal period violation per employee (at $15/hour) would lead to more than $15 million in unpaid wages. Each employee is also estimating that he or she has 300 miles of unreimbursed travel per quarter to get to mandatory quarterly meetings. This would equal approximately $13.2 million.The complaint also alleges that Panera had a companywide policy that the mandatory meetings would not be recorded on days that would trigger overtime. Allegedly if an employee had already worked six or more hours in a day in which he or she attended a company meeting, Panera would record the employee’s meeting attendance as though it were on a different day so as not to trigger daily overtime.

For more information about meal periods, overtime, and reimbursement of employee expenses contact the Orange County employment attorneys at Ford & Diulio PC (714) 384-5540.The multidistrict litigation, which was combined in August 2013, targets a class of Type 2 diabetes drugs known as incretin mimetics. In early 2013, researchers suggested that use of these drugs may lead to an increase of pancreatitis and precancerous cells. However, in a February 2014 report, the FDA found no concrete evidence that the drugs are connected to the pancreas problems. In his summary judgment order,

The drugs include Janumet and Januvia, produced by Merck; Byetta, developed by Amylin and sold in collaboration with Eli Lilly; and Victoza, made by Novo Nordisk.

For legal assistance related to personal injury or product liability, contact Ford & Diulio PC at 714-384-5540 or email us.

Court Extends Attorney-Client Privilege to Block Fired NBC Employee’s Request for Internal Communications About His Firing

Thu, 10 May 2018 22:46:00 GMT

On Friday, November 6, 2015, a California judge rejected a motion to compel NBCUniversal Media LLC to produce internal communications that allegedly contain an explanation of the reasons for former employee’s firing. With trial set to start in a matter of days, this is the latest move in an ongoing lawsuit by former employee Frank W. Snepp’s against NBCUniversal for wrongful termination and age discrimination.

The email in question was sent from Snepp’s superiors to affiliate human resources personnel and in-house counsel at the corporate headquarters before Snepp was fired. Snepp argued that the document was created in the ordinary course of business and not for any legal purpose such that the attorney-client privilege would apply. NBCUniversal countered that the document was created for the express purpose of receiving advice from in-house counsel. The Judge agreed, finding that the primary purpose of the document was to seek legal advice.

This case provides an important reminder to companies that simply including an attorney on the recipient list of an email will not make the communication privileged. Rather, as apparently is the case here, the communication must make clear that legal advice is being sought.

For more information about wrongful termination and discrimination claims, contact Ford & Diulio PC at 714-384-5540 or email our Orange County employment attorneys at jdiulio@forddiulio.com .

Drug Makers Score Big Victory in Failure-to-Warn Drug Labeling Case

Thu, 10 May 2018 22:45:00 GMT

The multidistrict litigation, which was combined in August 2013, targets a class of Type 2 diabetes drugs known as incretin mimetics. In early 2013, researchers suggested that use of these drugs may lead to an increase of pancreatitis and precancerous cells. However, in a February 2014 report, the FDA found no concrete evidence that the drugs are connected to the pancreas problems. In his summary judgment order,

The drugs include Janumet and Januvia, produced by Merck; Byetta, developed by Amylin and sold in collaboration with Eli Lilly; and Victoza, made by Novo Nordisk.

For legal assistance related to personal injury or product liability, contact Ford & Diulio PC at 714-384-5540 or email us.

Regis Hair Salon Nears Settlement in Wage & Hour Lawsuit

Thu, 10 May 2018 22:45:00 GMT

Fong et al. v. Regis Corp. et al., case number 3:13-cv-04497 in the U.S. District Court for the Northern District of California.

On November 12, 2015, a California federal court was asked to preliminarily approve a proposed settlement of $5.75 million in the Regis Corp. wage and hour putative class action lawsuit. The case, which was initially filed in 2013, alleges that Regis violated California labor laws and the FLSA by failing to minimum and overtime wages to its stylists and salon coordinators. Among other claims, the plaintiffs allege that Regis failed to provide meal periods and rest breaks, failed to pay wages upon termination, and failed to reimburse business expenses.

According to the terms of the settlement the plaintiffs’ attorneys would collect $1.9 million and each of the 5,573 putative class members would get $150 plus a prorated amount of what remains after service awards are given to the named plaintiffs, the settlement administrator fees are paid, and Regis pays penalties to the state government.

The case serves as a reminder that failing to comply with California labor laws can be a costly mistake.

For questions about overtime compensation or missed meal periods or rest breaks, contact Ford & Diulio PC’s experienced employment attorneys at 714-384-5540 or email us.

Homeowners Insurance On The Hook For Bill Cosby’s Defense Costs

Thu, 10 May 2018 22:43:00 GMT

Homeowners purchase insurance, which is required by lenders, to provide coverage for property damage or personal injury. This covers the homeowner if someone slips and falls on driveway or if a dog bites the mailman. Many policies, including those purchased by Bill Cosby, obligate the insurer to “pay for personal injury or property damage caused by an occurrence covered by this policy anywhere in the world, unless stated otherwise or an exclusion applies.”

Policies typically exclude injuries arising out of actual or alleged “sexual molestation, misconduct, or harassment.” Normally this would excuse the insurance company from covering the claims leveled against Cosby. But on November 13, a federal court in California ruled that the insurance company must cover Cosby’s defense because the sexual misconduct exclusion does apply to at least one of the claims that Cosby is defending.

Model Janice Dickinson claimed in an interview in November 2014 that Bill Cosby had “drugged and raped” her 30 years ago, in 1982. Cosby initially responded by publicly denying the allegations and calling Dickinson’s claims a “lie.” Dickinson then sued Cosby for defamation. Cosby tendered the claim to his insurance company, which argued that the claim is not covered because it arose from sexual misconduct. The federal court disagreed because exclusions are interpreted narrowly and Cosby is accused of defaming Dickinson by calling her a liar:

These allegations give rise to a claim because Defendant’s statements allegedly damage Dickinson’s reputation, not because they relate to sexual misconduct.

The case is AIG Property Casualty Co. v. Cosby, Case No. CV 12-4842 (C.D. Cal. Nov. 13, 2015).

If you have questions regarding civil lawsuits or insurance coverage contact California attorney Kristopher Diulio at kdiulio@forddiulio.com or call the experienced attorneys at Ford & Diulio PC at (714)-384-5540.

Vitran Drivers Trucking On Through To Class Certification

Thu, 10 May 2018 22:43:00 GMT

On November 12, 2015, truck drivers for Vitran Express Inc. won class certification on their claims that their employer discouraged and prevented them from taking meal periods and rest breaks in violation of wage and hour law. The class encompasses Vitran drivers in California who worked from four years before the suit was filed (2010) who were denied extra wages for working through their breaks. Specifically, U.S. District Judge R. Gary Klausner found that the named plaintiffs satisfied all the requirements for class certification including commonality of claims.

“Plaintiffs have proffered sufficient evidence to support the existence of a uniform, unofficial policy to violate the labor laws . . . Fifteen employees situated at four of five work sites declared in unison — and without exception — that defendant implemented and uniformly applied an unofficial policy to deprive class members of their legally required meal and rest breaks.”

As of today,156 members of the class have been identified.

This is the latest in a series of bad luck decisions for Vitran. In 2012, Judge Klausner overruled a prior finding that California’s meal and rest break requirements do not cover trucking companies due to preemption by the Federal Aviation Administration Authorization Act. The basis for his ruling was that meal and rest breaks impact transportation scheduling, not the services offered or prices of delivery covered by the FAAAA. The Ninth Circuit upheld this decision in July 2014, finding that preemption did not apply because the wage and hour regulations don’t have a significant enough impact on prices or services.

Notably, although Vitran had defended its policy by stating that preemption applied because complying with the regulations would impact pricing and services, Judge Klausner did not find this constitutes an admission of liability.

The Case is Brandon Campbell et al. v. Vitran Express Inc. et al., case number 2:11-cv-05029, in the U.S. District Court for the Central District of California.

If you have questions regarding California wage and hour law contact California attorney Jessica Diulio at jdiulio@forddiulio.com or call the experienced attorneys at Ford & Diulio PC at (714)-384-5540.

Costco Workers Seeking Overtime Pay Face Uphill Battle

Thu, 10 May 2018 22:42:00 GMT

Plaintiffs also argued that the judge’s reasoning is “contradicted by black letter law” and argued that the question at issue should be whether the class “systematically suffered unpaid hours,” according to the brief.

The case is Eric Stiller and Joseph Moro et al. v. Costco Wholesale Corp ., case number 15-55361 , in the U.S. Court of Appeals for the Ninth Circuit.

For more information about overtime claims contact Costa Mesa employment attorneys at Ford & Diulio PC at 714-384-5540 or email Jessica Diulio at jdiulio@forddiulio.com .

CVS Settles Another Overtime Class Action for Millions

Thu, 10 May 2018 22:41:00 GMT

On Monday, a California federal court approved a $2.94 million settlement to resolve a class of pharmacists’ lawsuit against CVS Pharmacy Inc. for failure to pay overtime wages. The approval comes after class counsel addressed concerns regarding the proposed settlement amount and the pharmacists’ initial $4.26 million demand. The amount is based on the number of alleged overtime violations within the class region. Under the settlement, 715 class members will receive on average $2,546 depending on the number of workweeks worked during the class period. Attorneys for the pharmacists will receive $979,200 out of the settlement fund. In July, a California state judge approved a $7.4 million settlement between CVS and more than 1,600 pharmacists to end three separate class actions accusing the company of illegally forcing employees to work seven days in a row without overtime pay. The case is Angil Sharobiem v. CVS Pharmacy Inc ., case number 2:13-cv-09426, in the U.S. District Court for the Central District of California.

For more information about overtime and wage & hour class actions, contact the experienced Orange County civil employment attorneys at Ford & Diulio PC at 714-384-5540 or email Jessica Diulio at jdiulio@forddiulio.com .

Another Day, Another Uber Lawsuit: Ex-Driver Appeals Ruling Denying Unemployment to Terminated Drivers

Thu, 10 May 2018 22:41:00 GMT

Uber continues to be the subject of lawsuits, this time facing an appeal of a decision that Uber drivers are not eligible for unemployment benefits because the drivers are considered contractors instead of employees. Darrin McGillis, an ex-Uber driver, is appealing this ruling by the Florida Department of Economic Opportunity.

The DEO’s order states that the agreement between Uber and its drivers describes the relationship as an independent contractor agreement and the nature of the work supports that classification. The DEO found the following circumstances relevant: that the drivers control when they work, use their own vehicles, choose which customers to serve, and can work for competitors while working for Uber.

Although this ruling applies only to the specific case at bar, it could serve to establish a basis for future cases involving classification of Uber drivers and similar ride-sharing companies.

Notably, California has reached an opposite conclusion.

The case is McGillis v. Department of Economic Opportunity et al., case number 3D15-2758, in the Third District Court of Appeal of Florida.

“On these facts, it appears that Uber operates not as an employer, but as a middleman or broker for transportation services,” the DEO said.

For more information on employment litigation – including employee classification – contact Ford & Diulio PC at 714-384-5540, or email Jessica Diulio at jdiulio@fordddiulio.com.

Caitlyn Jenner “Crashes” Into the Headlines Again

Thu, 10 May 2018 22:40:00 GMT

Yet another lawsuit was filed against Caitlyn Jenner arising out of a February 2015 car accident in Malibu.

On December 4, 2015, Peter Wolf-Millesi, a composer who co-wrote Starship’s “We Built This City” and Wang Chung’s “Everybody Have Fun Tonight,” filed suit in the Los Angeles Superior Court. Wolf-Millesi claims that the accident caused nerve damage in his hands and wrists, which preclude him from working. The other passengers in the car also suffered injuries.

According to the lawsuit, Jenner’s Cadillac Escalade was traveling too fast down Pacific Coast Highway in Malibu when it hit the back of a Lexus. The Lexus moved into oncoming traffic, hitting Wolf-Millesi’s vehicle. Jenner’s vehicle continued forward and hit a Toyota Prius. The owner of the Lexus was killed in the accident. In addition to Wolf-Millesi’s suit, the family of the Lexus owner and the owner of the Toyota Prius have also sued Jenner.

Under California law, a personal injury plaintiff is entitled to recover both past and future lost earnings. Past lost earnings are the amount of income/earnings/salary/wages that the plaintiff has lost to date. Future lost earnings are the amount of income/earnings/salary/wages that the plaintiff will be reasonably certain to lose in the future as a result of the injury. Should Mr. Wolf-Millesi prove that (a) Jenner was negligent, and (b) that he is no longer able to compose music due to his injuries, the potential damages could be significant.

If you have been involved in an Orange County car accident, or have questions about the value of your personal injury claim, please call Ford & Diulio PC at 714-384-5540 or email us.

Accommodation for Adderall? ADHD As A Disability

Thu, 10 May 2018 22:39:00 GMT

In New York on Monday, a former secretary for Viacom filed a lawsuit alleging that the company failed to accommodate her disability and terminated her in violation of the Americans with Disabilities Act after she disclosed to human resources that she suffered from Attention Deficit Disorder (ADD). The plaintiff had worked at Viacom for more than 25 years with satisfactory reviews. When she was transferred to the legal department she began having trouble with the extra work she was given and sought assistance from her doctor.

Plaintiff alleges that four weeks after she told human resources about her disability, that she was given a written performance warning stating that she needed to improve her performance within 60 days. At the end of that time period, she was terminated – notably 35 days before the time was to expire for the company to review possible accommodations suitable for her situation. The case is Broderick v. Viacom International Inc. et al., case number 1:15-cv-09914, in the U.S. District Court for the Southern District of New York.

A similar lawsuit was filed in March 2015 by a former associate at Adler Murphy & McQuillen LLP. The associate claims he was terminated in violation of the ADA one day after notifying the firm about his ADHD diagnosis. That case is Aaron Paul Heeringa v. Adler Murphy & McQuillen LLP, case number1:15-cv-02476, in the U.S. District Court for the Northern District of Illinois.

With adults taking ADD medicine increasing by 85% in recent years, handling of ADD accommodations is a hot-button issue for many human resources departments. While ADD is covered under the ADA, it requires the employee to demonstrate that the disability limits a major life activity and that he or she can perform the essential job functions with accommodation. Two circuit decisions in 2002 offer support that ADD limits a major life activity. In Brown v. Cox Medical Centers (8th Cir. 2002), the court stated that the “ability to perform cognitive functions” is a major life activity. In Gagliardo v. Connaught Laboratories, Inc. (3d Cir. 2002) “concentrating and remembering” are major life activities.

For information about accommodations for disabilities or claims for wrongful termination, contact Orange County civil attorneys Ford & Diulio PC or email Jessica Diulio at jdiulio@forddiulio.com.

Happy Holidays for J.C. Penny: Vacation Benefit Class Decertified

Thu, 10 May 2018 22:39:00 GMT

In an early Christmas present for J.C. Penny, U.S. District Judge Jeffrey T. Miller decertified a class of nearly 65,000 J.C. Penny employees who allege that they were deprived of vacation benefits. The class was certified over a year ago. Now, however, the court has found the class to be “unworkable”. The crux of the problem is that the class representatives are former employees who allegedly were denied their vacation pay when they left the company, but the class definition includes current employees and former management employees who had a different set of benefits from non-management employees. Accordingly, the court found the class to be overly broad as currently pleaded and that the named plaintiffs failed “to satisfy the typicality and adequacy requirements.”

The Judge also addressed J.C. Penny’s argument that all non-management employees that started after July 2009 are subject to arbitration agreements and should be excluded from the class (which covers employees employed from April 2007 to December 2014). The court, however, found that those agreements had no bearing on the size of the class – the issue at bar.
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Although not required to offer employees paid vacation, J.C. Penny chose to offer benefits, but argues that it was only to be accrued after the expiration of a waiting period. The company previously failed to obtain summary judgment, with the court holding that there was evidence that not every class member received the same policy and that the policy was not clearly explained.

The case is Tschudy v. J.C. Penney Corp. Inc., case number 3:11-cv-01011, in the U.S. District Court for the Southern District of California.

For information about California wage and hour law, contact the experienced Orange County civil attorneys at Ford & Diulio PC at 714-384-5540 or email Jessica Diulio at jdiulio@forddiulio.com.

California Fair Pay Act: Things You Need to Know

Thu, 10 May 2018 22:38:00 GMT

As California employers are well aware, the California Fair Pay Act went into effect on January 1, 2016. In 2015, the U.S. Census Bureau reported that women only earn 84 cents to each dollar earned by their male counterparts. The law is intended to eliminate that gender wage gap in California.

Key Components of Law Including Available Defenses:

Recommendations for Compliance :

For more information regarding claims related to gender wage disparities, contact Ford & Diulio PC’s experienced Orange County civil attorneys at 714-384-5540 or email Jessica Diulio at jdiulio@forddiulio.com .

Hoverboards: More “Back to the Emergency Room” Than “Back to the Future”

Thu, 10 May 2018 22:38:00 GMT

Hoverboards (also called mini segways) were one of 2015’s hottest Christmas gifts – both literally and figuratively. Social media is replete with videos of people falling off the trendy device, as well as a few reports about boards catching on fire. According to the U.S. Consumer Product Safety Commission (CPSC), there have been 22 reports of fires in at least 17 states, along with 70 reported injuries requiring emergency room treatment. The CPSC stated that the reports of injuries and fires keep coming in. CPSC Chairman Elliot F. Kaye says rules and regulations need to be put in place for the device, and people need to be made aware of the danger involved with riding one. Hoverboards are not currently subject to any safety standards.

“While the fire hazard has generated significant attention, I do not want to downplay the fall hazard,” said Kaye in a statement. “CPSC has received dozens of reports of injuries from hospital ERs that we have contracts with and they continue to feed us real-time data. Some of these injuries have been serious, including concussions, fractures, contusions/abrasions, and internal organ injuries.”

Kaye announced that field testers with CPSC have taken possession of all the boards that have caught fire in order to investigate why they are catching fire.

More and more people are becoming aware of the danger involved with these devices. Amazon announced in a statement that they have pulled some hoverboards from their site amid the safety concerns. In addition, many major airlines have banned the motorized skateboards from on board planes, The New York Times reported. Kaye released a few safety tips for hoverboard owners:

Do not charge your hoverboard overnight or when you are not present. You want to be able to observe the board being charged.

Charge it and store it in an open, dry area away from combustibles.

Do not charge it directly after riding it, let the device cool for an hour or more.

Read the full CPSC Statement here: http://www.cpsc.gov/en/About-CPSC/Chairman/Kaye-Biography/Chairman-Kayes-Statements/Statements/Statement-from-the-US-CPSC-Chairman-Elliot-F-Kaye-on-the-safety-of-hoverboards/

If you have suffered personal injuries or property damage from hoverboards, please contact Ford & Diulio PC’s experienced personal injury attorneys at 714-384-5540 or email Brendan Ford at bford@forddiulio.com.

Loophole for Avoiding Class Action Through Settlement Offer to Individual Plaintiff Closed

Thu, 10 May 2018 22:37:00 GMT

In a major win for consumers, the United States Supreme Court ruled last week that companies cannot moot a class action by offering a full settlement to an individual plaintiff.

In Campbell-Ewald v. Gomez, a consumer (Gomez) sued a U.S. Navy advertising partner (Campbell-Ewald) individually and on behalf of a class for violations of the Telephone Consumer Protection Act. Campbell-Ewald offered Gomez $1,503 for each unsolicited text message, more than three times the statutory amount of $500 per violation. Gomez rejected the offer. Campbell-Ewald argued that, because it had offered Gomez more than he could possibly recover on an individual basis, the case was moot.

In a 6-3 ruling by Justice Ruth Bader Ginsburg, the justices rejected Campbell-Ewald’s argument. “We hold today…that an unaccepted settlement offer has no force,” the opinion said. “Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists.”

“When the settlement offer Campbell extended to Gomez expired, Gomez remained empty handed,” Justice Ginsburg wrote. “In short, with no settlement offer still operative … both [parties] retained the same stake in the litigation they had at the outset.”

Justice Ruth Bader Ginsburg delivered the opinion of the court, which Justices Anthony Kennedy, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined. Justice Clarence Thomas filed an opinion concurring in the judgment. Chief Justice John G. Roberts filed a dissenting opinion, in which Justices Antonin Scalia and Samuel Alito joined. Alito additionally filed a separate dissenting opinion.

If you have questions about consumer class actions (unsolicited texts, unlawful debt collection, or deceptive advertising), contact the attorneys at Ford & Diulio PC by email lawyers@forddiulio.com or by phone 714-384-5540.

Legal Update: Arbitration – Key Cases and Pending Legislation

Thu, 10 May 2018 22:36:00 GMT

In recent years, more and more companies rely on arbitration agreements to avoid being sued in a court of law.

This system has become vast, as companies increasingly require customers, employees, investors, patients, and other consumers to agree in advance to arbitrate any disputes that arise in in their dealings with a company. For a more detailed look at arbitration agreements and their effect on consumers, please read this series:

In the last five years, the United States Supreme Court has upheld these types of arbitration agreements in two separate lawsuits: AT&T Mobility v. Concepcion and American Express v. Italian Colors Restaurant.

Recently, a bill sponsored by Sens. Leahy (D-VT) and Franken (D-MN), seeks to undo the Supreme Court’s recent rulings. The Restoring Statutory Rights Act states that the 1925 Federal Arbitration Act “did not, and should not have been interpreted to, supplant or nullify the legislatively created rights and remedies which Congress…has granted to the people of the United States for resolving disputes in State and Federal Courts.”

It would create an exception in the Arbitration Act for disputes involving individuals and small businesses. The only way individuals would enter into arbitration is if they agreed to do so after the dispute has been filed. That’s very different from the current process, which automatically shunts all customer disputes into binding arbitration. The bill also seeks to resurrect the authority of state law precedents in states that had previously held certain types of arbitration clauses as unconscionable.

“Congress must act to stop these abuses,” says Leahy in a statement. “The Restoring Statutory Rights Act will ensure that critical State and Federal laws can actually be effective, by ensuring that citizens cannot be stripped of their ability to enforce their rights using our independent justice system. It will also ensure that when States take action to address forced arbitration, they are not preempted by an over-broad reading of our Federal arbitration laws.”

The Consumer Financial Protection Bureau is also looking at regulations designed to limit arbitrations involving finance products.

For further information regarding arbitration or to speak with experienced Orange County civil attorneys, contact Ford & Diulio PC at 714-384-5540 or lawyers@forddiulio.com.

Grocery Woes Continued: Albertsons Facing Unpaid Wages Lawsuit

Thu, 10 May 2018 22:36:00 GMT

As we have previously addressed in our blogs, grocery stores in California have been facing a variety of legal woes, including a lawsuit filed by Ford & Diulio PC against Fresh & Easy for failure to provide adequate notice of store closures and layoffs. Now Albertsons is facing putative class action litigation for failure to properly pay employee wages.

A proposed class action pending in California federal court alleges that Albertsons hasn’t paid its hourly employees at certain stores all of the wages they earned between September and December 2015. The stores at issue are ones that Albertsons purchased from Haggen when its competitor filed for Chapter 11 bankruptcy. Current and former employees at those stores claim that Albertsons did not provide paychecks, pay stubs or any pay at all for several weeks/months after buying the stores from Haggen in September 2015. In addition, employees who quit or were laid off weren’t paid there wages as required by California law, making Albertson liable for waiting time penalties in addition to the unpaid compensation.

The plaintiffs want to certify a class of all current and former hourly employees in California over the last four years who didn’t receive regular paychecks. The case is Luna et al. v. Albertsons Companies Inc. et al ., case number 2:16-cv-01107 in the U.S. District Court for the Central District of California.

For more information on wage and hour litigation in the grocery industry, contact Ford & Diulio PC’s experienced Orange County employment attorneys at jdiulio@forddiulio.com or 714-384-5540.

Staples Security Check Wage Suit Likely to Proceed

Thu, 10 May 2018 22:35:00 GMT

Based on his tentative order and comments during oral arguments on Tuesday, July 26, 2016, Los Angeles Superior Court Judge Kenneth J. Freeman appears prepared to permit the proposed class action against Staples for end-of-shift waiting time pay to proceed. The lawsuit on behalf of all non-exempt hourly employees in the Company’s California warehouses claims that the Company systematically required employees to clock out for mandatory 10-20 minute security checks before taking breaks or leaving at the end of a shift.

Although Judge Freeman dismissed plaintiff Kenya Lawson’s rest break claims, he has thus far refused to dismiss her end-of-shift waiting claims, despite deposition testimony presented by Staples’ attorneys where Lawson stated that she was only suing for wages related to short breaks. Lawson’s attorney appears to have been persuasive in arguing that the allegations alleged in Lawson’s complaint trump any contradictory statement in her deposition.

The case is Kenya Lawson v. Staples Contract and Commericial Inc., case no. BC542237, in the Superior Court of the State of California, County of Los Angeles.

For further information regarding arbitration or to speak with experienced Orange County civil attorneys, contact Ford & Diulio PC at 714-450-6830 or lawyers@forddiulio.com.

Not So Fast! Ninth Circuit Panel Reverses Cable Communications Inc.’s Lower Court FLSA Overtime Summary Judgment Win

Thu, 10 May 2018 22:33:00 GMT

Plaintiffs Matteo Brunozzi and Casey McCormick worked as cable and internet technicians for Cable Communication Inc. (CCI). They were paid on a piece work basis with a diminishing bonus provision based on the amount of overtime they worked per week. They both filed lawsuits alleging that CCI’s compensation plan violated the overtime provisions of the FLSA. Originally, the district court granted summary judgment in favor of CCI on those claims. However, the technicians appealed, and on March 21, 2017, a Ninth Circuit panel reversed, remanding the matter to the district court for further proceedings.

The key issue in the Ninth Circuit’s review was whether CCI properly determined the technicians’ regular rates for purposes of calculating overtime pay. As the Panel noted, the Supreme Court has interpreted the “regular rate” for purposes of the FLSA to mean “the hourly rate actually paid the employee for the normal, non-overtime workweek for which he is employed.” (Op. at 9 (citing Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424 (1945)). The regular rate must include all the piece work amounts and bonuses that form the normal weekly income of the employee. (Id. (citing Walling v. Alaska Pac. Consol. Min. Co., 152 F.2d 812, 815 (9th Cir. 1945)).

The Ninth Circuit panel found that during a normal non-overtime workweek, a technician would earn the total value of the piece work tasks he completed (his “Piece Rate Total”), plus a Production Bonus in the amount of 1/6 his Piece Rate Total. The Panel held that because the Production Bonus was a portion of the regular wages that the technician was entitled to receive under his regular wage contract, that it was not a true “bonus” as defined by the Department of Labor Regulation 29 C.F.R. Section 778.502(a).

Because the Piece Rate Total and the Production Bonus formed the technicians’ normal weekly income, CCI should have divided the sum of that amount by the total number of hours worked in a week to determine the technicians’ regular hourly rates for that week. But this is not what CCI did. Instead, on weeks where technicians worked overtime, CCI reduced the Production Bonus proportionately, resulting in technicians being paid a diminished hourly rate during weeks when they worked overtime.

The panel emphasized repeatedly throughout its opinion that employees and employers cannot legally agree or declare as to what is to be treated as the regular rate for an employee. It must be drawn from what is provided for in the contract for a normal, non-overtime workweek.

For more information about piece work compensation and overtime regulations, contact Ford & Diulio PC at jdiulio@forddiulio.com or call us at 714-450-6830.

Employers: Consider an Alternative to Overtime

Thu, 10 May 2018 22:33:00 GMT

Effective December 1, 2016, the U.S. Department of Labor’s new federal overtime rules make employees who are paid less than $47,476 annually eligible for overtime wages when they work more than 40 hours in a week. Currently, under the federal rules, employees who make $23,660 annually are often eligible for an exemption that allows employers to pay them on a salary basis, thus avoiding the cost of overtime. The dramatic increase in the salary threshold required to classify an employee as exempt from overtime has made employers concerned that they will have to reduce employee hours or lay off employees to deal with additional employment costs. Employees are similarly worried that losing their exempt status will result in the loss of flexible work schedules, particularly in states like California that require overtime to be paid when an employee works more than 8 hours in a day.

But what if employers could still allow non-exempt (hourly) employees to maintain their flexible work schedules without incurring overtime costs? Ford & Diulio PC is ready to help you use California’s often ignored “Alternative Workweek Schedule” process to maintain flexible employee schedules without running afoul of overtime rules.
Although common in industries such as nursing, many employers, particularly small businesses, are not aware of the Alternative Workweek Schedule (“AWS”) election process available under California law. This is likely because the process is seemingly arduous, requiring a secret ballot election even when only one or a few employees fall within the same work unit/job classification. In brief, the process requires an unbiased written proposal of the AWS, formal notice, a mandatory meeting, secret ballot election, and registration with the Department of Labor. Despite lobbying efforts for a legislative exemption for small employers, the multi-step AWS process is required even if an employer only wants to offer an AWS to a single employee.

Ford & Diulio PC can help guide you through the AWS process on a flat-rate basis. Working with you, we will prepare all necessary documentation and help you set up a secret ballot election that complies with the law. Unlike other law firms that only bill by unpredictable hourly rates, Ford & Diulio PC offers our services for a flat-rate fee so that you can easily see the costs of implementing an AWS and compare them with the costs of paying overtime instead. We are confident you will quickly see the high value in our services.

For more information on implementing an AWS, contact Ford & Diulio PC via e-mail at jdiulio@forddiulio.com or call us at 714-450-6830.

Los Angeles Employers Take Note: New Paid Time Off and Sick Leave Regulations Going Into Effect July 1, 2017

Thu, 10 May 2018 22:32:00 GMT

Ford & Diulio PC is always working to make sure our clients and potential clients stay on top of the legal requirements for employers in California. Although many employers keep up to date on state-level changes to labor and employment law, Ford & Diulio PC wants to remind you to check your local city ordinances as well. In this post, we highlight the upcoming change to paid time off policies for employers with fewer than 25 employees operating in the city of Los Angeles, California.

In March 2017, the City of Los Angeles Office of Wage Standards (OWS) revised its rules implementing the Minimum Wage Ordinance (MWO), which includes mandatory paid sick leave requirements. Of note, starting July 1, 2017, the MWO’s paid sick leave provisions will now apply to employers with 25 or fewer covered employees. The MWO increases the paid sick leave required under California state law from 24 hours of leave to 48 hours. However,the MWO states that employers with an existing paid leave or paid time off policy that provides 48 hours of compensated time off do NOT have to provide additional paid sick leave beginning in July. The revised rules clarify that paid time off includes, but is not limited to, vacation, sick, paid time off, floating holiday, holiday or personal days.

For those employers that need to increase the paid sick leave they provide for their employees, there are pro rata calculations that will allow employers to frontload only 24 hours of time off for the the six months from the effective date through the end of 2017.

If you have questions regarding whether your paid time off policies need updating, or any other questions about the requirements of the revised rules implementing the MWO, please contact Ford & Diulio PC at lawyer@forddiulio.com or 714-450-6830.