Lit Alerts—November 2018

Author:Mr Kenneth Chernof, John D. Lombardo, Daphne Morduchowitz, Andrew K. Solow, David J. Weiner, Paul Beavers, Michael S. Bullerman, Tommy Huynh, Tiffany M. Ikeda, Michael E. Kientzle and Colleen S. Lima
Profession:Arnold & Porter

Class Actions: Ninth Circuit Voids Local Rule Setting 90-Day Deadline for Filing Motions for Class Certification

In August, the Ninth Circuit held that a district court's local rule that set a strict deadline for filing a class certification motion is incompatible with the flexible Federal Rules of Civil Procedure. The now void local rule, Central District of California Local Civil Rule 23-3, required that all class certification motions be filed within 90 days after service of the complaint, unless otherwise ordered. The rule was often criticized as unrealistic, in light of the need to establish a sufficient factual record at the class certification stage.

In ABS Entertainment v. CBS Corp., 900 F.3d 1113 (9th Cir. 2018), the parties had twice stipulated to extend the 90-day deadline in order to obtain class action-focused discovery. The district court denied the stipulations and then struck the timely filed class certification motion due to the plaintiff's failure to comply with Local Rule 23-3.

The Ninth Circuit held that Local Rule 23-3 was invalid because it conflicted with the Federal Rules of Civil Procedure. "Although the district court's application and interpretation of its Local Rules is entitled to a large measure of discretion . . . Local Rules cannot be incompatible with Federal Rules." Here, the court concluded, "the bright-line of Local Rule 23-3 is incompatible" with the Federal Rules' flexible approach that calls for a determination on class certification "[a]t an early practicable time after a person sues or is sued as a class representative."

Class Actions/Arbitration: Ninth Circuit Reverses Denial of Uber Technologies, Inc.'s Motions to Compel Arbitration and Certification of Driver Class

The Ninth Circuit recently reversed the Northern District of California's denial of Uber Technologies, Inc.'s motions to compel arbitration of the claims of Uber drivers who alleged that Uber violated various federal and state statutes by misclassifying the drivers as independent contractors rather than employees. In so doing, the Ninth Circuit also reversed the lower court's certification of a class of hundreds of thousands of Uber drivers.

The district court had denied Uber's motions to compel arbitration, holding that Uber's standard arbitration provisions in its agreements with drivers were unconscionable and therefore unenforceable. The district court then certified a class of approximately 160,000 individuals who had driven for...

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