On Aug. 1, 2023, U.S. Citizenship and Immigration Services will publish a revised version of Form I-9, Employment Eligibility Verification. Among the improvements to the form is a checkbox employers enrolled in E-Verify can use to indicate they remotely examined identity and employment authorization documents under an alternative procedure authorized by the Department of Homeland Security (DHS) described below. On July 21, 2023, DHS announced a final rule in the Federal Register that recognizes the end of temporary COVID-19 flexibilities as of July 31 and provides DHS the authority to authorize optional alternatives for employers to examine Form I-9 documentation. At the same time, DHS also published an accompanying document in the Federal Register describing and authorizing employers enrolled in E-Verify the option to remotely examine their employees’ identity and employment authorization documents under a DHS-authorized alternative procedure. The Federal Register document provides an alternative for certain employers to remotely examine Form I-9 documents, instead of the current requirement to examine documents in-person. To participate in the remote examination of Form I-9 documents under the DHS-authorized alternative procedure, employers must be enrolled in E-Verify, examine and retain copies of all documents, conduct a live video interaction with the employee, and create an E-Verify case if the employee is a new hire. Employers who were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (March 20, 2020 to July 31, 2023), may choose to use the new alternative procedure starting on August 1, 2023 to satisfy the physical document examination requirement by Aug. 30, 2023. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by Aug. 30, 2023. The revised Form I-9: - - Reduces Sections 1 and 2 to a single-sided sheet; - - Is designed to be a fillable form on tablets and mobile devices; - - Moves the Section 1 Preparer/Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary; - - Moves Section 3, Reverification and Rehire, to a standalone supplement that employers can print if or when rehire occurs or reverification is required; - - Revises the Lists of Acceptable Documents page to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation; - - Reduces Form instructions from 15 pages to 8 pages; and - - Includes a checkbox allowing employers to indicate they examined Form I-9 documentation remotely under a DHS-authorized alternative procedure rather than via physical examination. The revised Form I-9 (edition date 08/01/23) will be published on uscis.gov on Aug. 1, 2023. Employers can use the current Form I-9 (edition date 10/21/19) through Oct. 31, 2023. Starting Nov. 1, 2023, all employers must use the new Form I-9 ...

Milan Cvejic worked for Skyview Capital LLC. He filed a lawsuit against them and others in state court after his termination of employment, claiming causes of action for employment law issues. His employment agreement with them contained an arbitration clause. Thus Skyview moved to compel arbitration. The trial court granted the motion and stayed proceedings. The case went before a panel of three arbitrators through the American Arbitration Association under the rules for commercial cases. After at least one continuance, the final hearing on the merits was set to begin August 5, 2021. Skyview had to pay arbitration fees ahead of the hearing. The fees were due June 4, 2021. On July 7, 2021, Cvejic’s counsel asked the case manager whether Skyview had paid the deposits. On July 8, 2021, the case manager confirmed by email that Skyview had not paid. The manager scheduled a call to address the situation. During the call, Skyview’s counsel reported there was "no further explanation" for his clients’ failure to pay the fees. Cvejic reserved his rights to proceed under the Code of Civil Procedure. The panel stated "[t]he Hearing fees have been requested and the deadline for making the deposits has passed." It set a new deadline of July 14th for payment of the fees. Within about an hour of the call, Cvejic’s counsel wrote the panel to say Cvejic was withdrawing from the arbitration under Code of Civil Procedure section 1281.98. The panel chair responded that Cvejic’s request was "premature" - presumably because the deadline was now July 14th. Thereafter the panel ruled section 1281.98 was not in play because Skyview "came into compliance with the Panel’s Orders regarding posting deposits." Skyview ultimately paid its fee by July 14th. On July 21, 2021, Cvejic filed in the trial court a section 1281.98 Election to Withdraw from Arbitration. Soon after, he sought ex parte relief, which the court denied due to the absence of emergency. In December 2021, Cvejic refiled his section 1281.98 election, which included a request for sanctions under the statute and a motion to vacate the earlier order staying court proceedings. Skyview opposed the filing. The court’s February 2022 order granted Cvejic’s request to withdraw from arbitration, vacated the order staying proceedings, and awarded Cvejic reasonable expenses under section 1281.99. The employer appealed the trial court Order. The Court of Appeal affirmed the trial court in the published case of Cvejic v. Seaview Capital LLC - B318880 (June, 2023). The Legislature enacted section Code of Civil Procedure 1281.98 in 2019 to curb a particular arbitration abuse. The abuse was that a defendant could force a case into arbitration but, once there, could refuse to pay the arbitration fees, thus effectively stalling the matter and stymying the plaintiff’s effort to obtain relief. The Legislature called this "procedural limbo." (Gallo v. Wood Ranch USA, Inc. (2022) 81 Cal.App.5th 621, 634 (Gallo) [quoting legislative history].) It has also been described as "procedural purgatory." (Ibid.) Subdivision (b) of the statute provides employees and consumers with a choice of forum upon breach: They may elect to "[w]ithdraw the claim from arbitration and proceed in a court of appropriate jurisdiction" or "[c]ontinue the arbitration proceeding" should the provider agree to continue. (§ 1281.98, subds. (b)(1) & (2).) The statute also empowers courts to award fees, costs, and sanctions. After the current fee dispute arose, the Legislature amended both sections section 1281.97 along with section 1281.98 in 2021. The amendments added a new subdivision to section 1281.98 that compelled arbitrators to provide invoices to all parties, specified requirements for these invoices, and clarified the due date for fees. The new subdivision also includes this new sentence: "Any extension of time for the due date shall be agreed upon by all parties." (§ 1281.98, subd. (a)(2).) The amendments became effective January 1, 2022. The Legislature sought a clear rule for determining whether the late payment of a fee by a drafting party constituted a material contract breach. The Court of Appeal concluded by noting "Skyview’s fees were due June 4, 2021. By July 9th, Skyview had not paid. Skyview was in material breach of the parties’ arbitration agreement. Section 1281.98 entitled Cvejic to withdraw from the arbitration. It is that simple." "The statute does not empower an arbitrator to cure a party’s missed payment. There is no escape hatch for companies that may have an arbitrator’s favor. Nor is there a hatch for an arbitrator eager to keep hold of a matter. As the trial court observed, 'If . . . the drafting party were permitted numerous continuances for failure to pay arbitration fees, therefore delaying the proceedings, C.C.P. section 1281.98 would have no meaning, force, or effect.' " ...

The Workers’ Compensation Insurance Rating Bureau of California (WCIRB) has released its 2023 State of the System Report. This report highlights key metrics of the California workers’ compensation system, including the latest trends on rates, market characteristics and profitability. Some of the key findings of the report include: - - The California workers’ compensation system has continued to move forward into the post-pandemic era. Driven by the economic recovery from the pandemic-related downturn, premium levels increased by 14% in 2022. - - With flattening insurer charged rates an\d continued economic expansion,premium is forecast to be above the pre-pandemic level in 2023. - - Current charged rates are at the lowest level in more than 50 years,as over the long term, declining claim frequency and increasing wage levels have offset rising medical costs and increases in indemnity benefits. - - Average insurer manual rates are significantly above the rates charged to employers, indicating that insurers are, on average, applying significant pricing discounts to their filed rates. - - Advisory pure premium rates, after loading for other expenses to approximate a 100% combined ratio, are higher than the average rates ultimately charged to employers, which include pricing discounts. - - Average industry pricing discounts from filed rates, including the net impact of schedule rating, are about 30%. - - The "white collar" type industries comprise a majority of statewide payroll but a relatively small share of pure premium. - - The Utilities and Construction industries comprise only 6% of statewide payroll but almost triple the share of pure premium, as rates for these industries are higher. - - Claim frequency is generally returning to pre-pandemic levels. The frequency of non-COVID-19 indemnity claims was relatively flat in 2022, following sharp changes in 2020 and 2021 related to the pandemic . - - The WCIRB forecasts an average annual decrease in claim frequency of about 1% from 2022 to 2025, in line with the pre-pandemic rate of decline. - - The share of indemnity claims involving cumulative trauma (CT) in 2021 is consistent with the pre-pandemic level after a sharp increase in 2020. - - The vast majority of CT claims are in the LA Basin and San Diego, and approximately 40% are filed following termination of the employee. - - After the Omicron surge in the winter of 2021, the share of COVID-19 claims and costs declined and has been stable for the majority of 2022 through early 2023. - - Average indemnity claim costs continue to increase, primarily driven by increasing average wage levels. - - Average medical claim costs remain relatively flat, driven by continued declines in the utilization of medical services offset by rising medical inflation. - - Medical-legal costs continue to increase following implementation of the April 1, 2021Medical-Legal Fee Schedule. - - California continues to experience longer average claim duration compared to other states, driven by a slower claim reporting,lower settlement rates and higher frictional costs. - - With increasing premium levels and relatively stable claim frequency and severity trends, the accident year combined ratio decreased by 7 points to 105% in 2022. To access the full report, visit the Research section of the WCIRB website ...

California passed Assembly Bill 112 - the Distressed Hospital Loan Program - as an emergency statute in May 2023. The program provides interest-free loans to not-for-profit and public hospitals in significant financial distress, as well as to governmental entities representing a closed hospital. The goal of the program is to prevent hospital closures and to help hospitals stay afloat while they work to improve their financial health. The law appropriated $150 million for the loan program. Legislators and hospital administrators have acknowledged a loan program is only a stop-gap for a number of hospitals that for months have warned of their precarious fiscal situations. Legislators fast-tracked action following the closure of Madera Community Hospital at the start of this year, which left San Joaquin Valley county of 160,000 people without a local emergency room. Since then, another hospital, Beverly Hospital in the city of Montebello, has filed for bankruptcy. In legislative hearings leading to passage of this program, lawmakers asked why the state wasn’t conducting its own analysis of hospitals’ current situation so that the Legislature knows exactly which hospitals are in immediate need of relief. "We don’t know how many hospitals, we don’t know which hospitals. We don’t know which areas those hospitals are (in), we don’t know anything. And now we’re asked to approve $150 million to be doled out without access to plans, without access to the finances that would give us the evidence to feel comfortable with this," said Sen. Maria Elena Durazo, a Los Angeles Democrat, during a Senate budget committee hearing According to a report by Inewsource.com sixteen facilities have applied so far for the newly created Loan Program which has a deadline for applications by the end of July. The Madera Community Hospital, which shut down earlier this year but could reopen under new owners, has requested $80 million alone. El Centro Regional Medical Center, Imperial County’s largest hospital, is seeking a $40 million state loan in its latest attempt to keep it's doors open. El Centro Regional board members voted to apply for the program late last month. CEO Pablo Velez, who took over the hospital in April, confirmed to inewsource last week that its application remains under review. A city-owned, 161-bed facility, El Centro Regional has been struggling with rising costs and declining revenues since the COVID-19 pandemic. The hospital already received a separate $5 million loan from the state earlier this year, and its latest audit raised "substantial doubt" about whether it can continue operating because it lacked recurring income sufficient to meet operating costs and its debt payments. Board members also delayed adopting a new budget, saying it needed to "confirm the applicability of the current budget" before passing a new spending plan. The latest proposed budget, set to be considered this week, projects a nearly $10 million net deficit. The latest finance report showed El Centro Regional had fewer than 20 days cash on hand. Officials have hinted at dire consequences if either of the two hospitals in Imperial County were to close. Pioneers Memorial in Brawley has also faced financial problems, though not as severe as that of El Centro Regional. Residents in the county, one of the poorest in the state, would be forced to travel some two hours away if those facilities weren’t available. A report commissioned by the California Hospital Association earlier this year found that one-in-five hospitals is at risk of closing. More than half are operating at a loss. These include: Kaweah Health Medical Center in Visalia, MLK Jr. Community Hospital in Los Angeles, Hazel Hawkins Memorial Hospital in Hollister, Sierra View Medical Center in Porterville and Mad River Community Hospital in Humboldt County, all of which have reports of financial stress. With eyes on the upcoming fiscal year, the California Hospital Association has asked the state for $1.5 billion in one-time relief, a tough request in a deficit year. But Senate Democrats are in support, proposing that hospitals get $400 million annually for four years that would come with requirements and conditions, according to their budget proposal that is to be finalized this summer ...

The American Hospital Association (AHA), founded in 1898, is a not-for-profit association that advocates on behalf of its nearly 5,000 member hospitals, health systems and other health care organizations, its clinician partners - including more than 270,000 affiliated physicians, 2 million nurses and other caregivers - and the 43,000 health care leaders who belong to its professional membership groups. The AHA released findings of three new surveys conducted by Morning Consult that examined how some commercial insurer practices impact the patient and provider health care experience. The surveys found that the vast majority of patients, nurses and physicians say insurer policies and practices are reducing access to medical care, driving up health care costs and increasing clinician burden and burnout. The surveys found: - - Most patients (62%) have had medical care delayed because of their insurance provider in the last two years. Nearly half of those patients (43%) say their health has gotten worse as a result. - - Most patients (83%) want their health care provider to determine what care they receive, not their insurance company. - - Over half of patients (54%) have difficulty affording insurance costs and premiums. - - Nurses overwhelmingly believe (84%) insurance administrative policies delay patient care. About three in four nurses (74%) say it reduces the quality of care and 63% say it interferes with a patient being transferred to the right care setting. - - Meanwhile, more than 80% of physicians said insurance practices and policies affect their ability to practice medicine. - - The increase in insurance administrative requirements has taken a toll on clinicians with 56% of nurses saying their job satisfaction has decreased because of it and 84% of physicians said these policies make it difficult to operate a solo practice. "These surveys bear out what we’ve heard for years - certain insurance companies’ policies and practices are reducing health care access and making it more difficult for our already overwhelmed clinicians to provide care," said AHA President and CEO Rick Pollack. "Health insurance should be a bridge to medical care, not a barrier to it for patients. If policymakers are serious about expanding access and addressing the health care workforce crisis, then we must hold insurance companies accountable for these harmful practices." The surveys were conducted by Morning Consult on behalf of the AHA. The surveys included nationally representative samples of patients (1,502 adults), nurses (500 nurses) and physicians (500 physicians). Interviews were conducted online between December 2022 and April 2023. Results have a margin of error plus or minus three or four percentage points. See the new survey findings ...

Fernando Yanes claimed injury to his left knee while employed as a respiratory therapist by defendant Valley Children’s Hospital on October 24, 2021. The employer admitted injury arising out of and in the course of employment, but contested the nature and extent of the injury. On January 20, 2022, Yanes, as an unrepresented worker, requested a panel of orthopedic Qualified Medical Evaluators, pursuant to Labor Code section 4062.1. On January 27, 2022, the Division of Workers’ Compensation (DWC) Medical Unit issued panel no. 2802519. Yanes however did not have an evaluation as a result of that panel. On March 3, 2022, Yanes retained legal counsel. On March 7, 2022, his counsel requested a replacement panel in the specialty of chiropractic medicine. In response, on March 21, 2022, the DWC Medical Unit issued QME panel no. 2839682, in the specialty of chiropractic medicine. On March 31, 2022, the employer objected to panel no. 2389682 on the grounds that the panel request letter was procedurally deficient. On April 13, 2022, the parties proceeded to trial on issues of the validity of the Replacement Panel Request pursuant to Labor Code Section 4062.2 and Romero v. Costco Wholesale (2007) 72 Cal.Comp.Cases 824 [2007 Cal. Wrk. Comp. LEXIS 168] (Romero), and whether the defendant was entitled to a new panel in orthopedic surgery, and whether substantial justice required the parties to restart the panel QME process under section 4062.2.1 The WCJ issued the F&O, invalidating the chiropractic panel 2839682, and determining that defendant was not entitled to a new panel of QMEs in orthopedic surgery, and directing the parties to obtain a new panel of QMEs pursuant to section 4062.2. The WCAB granted a Petition for Removal filed by Yanes, and substituted new Findings of Fact that QME chiropractic Panel No. 2389682 was valid, and rescind the order that the parties obtain a new panel of QMEs. in the case of Yanes v Valley Children’s Hospital ADJ15870256 (May 2023). Applicant’s Petition for Removal argued that the WCJ’s decision was inconsistent with the significant panel decision in Romero, and subsequent jurisprudence applying Romero. Applicant asserts that under Romero, the parties are not required to "start all over and submit a new objection letter to that which has already been objected to in the first place when the original unrepresented Panel was requested." Applicant also argues that he was entitled to obtain a new panel of QMEs after obtaining legal representation because the "evaluation" process described in section 4062.2(a) is separate and distinct from the process for obtaining a panel. Defendant’s Answer argued that Romero and the subsequent panel decisions cited by applicant "do not specifically address the procedural requirements for obtaining a new panel under Romero and in compliance with the provision set forth in Labor Code §4062.2(b)." The parties, while applicant was unrepresented, identified a medical dispute, and initiated the QME evaluation process. Defendant accepted liability for the left knee only, and liability was denied for left knee ACL findings and need for surgery. Once the parties have identified a medical dispute, the procedure for obtaining a panel of QMEs where applicant is not represented is governed by Labor Code section 4062.1. The parties at this point satisfied the procedure for obtaining a panel, and the DWC Medical Unit issued panel no. 2802519. The parties did not dispute that this panel was valid when originally issued, and that applicant never attended a QME evaluation with any of the physicians from that panel. In Romero the WCAB panel noted that "because applicant had not attended and participated in the examination by the panel QME when she changed from being not represented by an attorney to being represented, she had not ‘received’ a comprehensive medical-legal evaluation pursuant to section 4062.1 and is, therefore, not precluded from requesting a new QME panel pursuant to section 4062.2." Similarly, in City of Tracy v. Workers' Comp. Appeals Bd. (Luckhardt) (2019) 84 Cal.Comp.Cases 838 [2019 Cal. Wrk. Comp. LEXIS 73] (Luckhardt), the parties satisfied the prerequisites to obtaining a QME panel in orthopedic surgery while applicant was unrepresented. Following issuance of the panel, but prior to any QME evaluation, applicant retained counsel. Applicant’s counsel then requested and received a new panel of QMEs in pain management, pursuant to Romero. The WCAB affirmed the WCJ’s determination that while the parties had completed the process necessary to obtaining a QME while applicant was unrepresented, the applicant had not yet received a comprehensive medical-legal evaluation by a QME, and was thus entitled to a new panel of QMEs under section 4062.2. (Id. at 840-841.) Applicant’s request for a new panel of QMEs on March 7, 2022 was made only after the parties had identified the medical dispute that required a QME evaluation, and had taken the appropriate steps to obtain a valid panel of QMEs. The parties were not thereafter required to reinitiate a dispute resolution process that was already underway and had appropriately resulted in the issuance of a prior panel. The WCAB further noted that "requiring the parties to repeat the procedural steps necessary to obtaining a panel of QMEs once applicant obtains counsel is inconsistent with our constitutional mandate to "accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character." (Cal. Const., art. XIV, § 4.)" Thus the panel was persuaded that "the decision of the WCJ to invalidate panel no. 2839682 will result in significant prejudice or irreparable harm." ...

Benjamin Kohn is a law school graduate who registered to take the October 2020 sitting of the California Bar Examination. He suffers from and has been diagnosed with several physical and psychological conditions including autism and neurological/attention disorders, digestive system conditions (gastroparesis, postoperative dysphagia, pelvic floor dyssynergia, and irritable bowel syndrome with chronic constipation), and visual impairments (keratoconus, dry eye syndrome, uncorrectable astigmatism, floaters). Because of his conditions, Kohn has been granted several accommodations on past exams administered at various levels and by various institutions. Kohn has previously taken the California Bar Exam in July 2018, February 2019, and February 2020 and for each exam he was granted some testing accommodations but denied others. Examples of denied accommodations included: 150% extra time on the written portion of the exam, a cap of no more testing time per day than non-disabled test takers, ergonomic/physical equipment supplied in the exam room, specialized disability proctors, and 30 minutes of break time per 90 minutes of testing. On March 19, 2020, Kohn submitted a petition for testing accommodations for the October 2020 exam. In his petition, he sought all accommodations that the Committee previously granted on his prior attempts at the California Bar Exam, as well as accommodations that were previously denied. On August 27, 2020, the Committee granted some of his requests, but denied requests for administration of the exam over weekend days only, testing in a private room, pre-scheduled breaks to be taken instead at Kohn's discretion, a complete ergonomic workstation provided by the Committee, a hotel room for Kohn provided by the Committee, and assignment to an experienced proctor. Kohn filed a complaint in the Federal District Court alleging seven violations of the Americans with Disabilities Act ("ADA") and seven corresponding violations of California's Unruh Act, Cal. Civ. Code § 51(f). Dkt. The same day, he filed a motion for preliminary injunction, which the court denied on August 13, 2020, finding that plaintiff's motion was not ripe for adjudication. Kohn then filed a first amended complaint with fifteen claims: (1) violation of ADA related to the February 2019 Bar Exam; (2) violation of the ADA for deliberate indifference related to the February 2019 Bar Exam; (3) violation of the ADA related to the February 2020 Bar Exam; (4) violation of the ADA related to the October 2020 Bar Exam; (5) - (7) violations of the ADA and California Government Code §§ 11135 et seq. & 12944 et seq. for deliberate indifference for each of plaintiff's past three exams; (8) - (14) violations of the Unruh Act, Cal. Civ. Code § 51(f) for each ADA violation; (15) violation of the ADA for failure to provide reasonable accommodations for the October 2020 Exam and defendants’ deliberate indifference. Defendants moved to dismiss the First Amended Complaint in its entirety pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The trial court dismissed the case of Kohn v State Bar of California -4:20-cv-04827-PJH (July 2020) Defendants’ first argument was dispositive of the First through Seventh & Fifteenth Claims (ADA). The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. Accordingly, no state or its agencies may be sued in federal court without consent. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). This immunity extends to defendants, which are state agencies. Hirsh v. Justices of Supreme Ct. of State of Cal., 67 F.3d 708, 715 (9th Cir. 1995) (per curiam) ("The Eleventh Amendment's grant of sovereign immunity bars monetary relief from state agencies such as California's Bar Association and Bar Court." Plaintiff's fifth through seventh claims also allege that defendants acted with deliberate indifference in violation of California Government Code § 11135 et seq. and § 12944 et seq. Defendants argue that the State Bar Act, Cal. Bus. & Prof. Code § 6001, exempts the State Bar from the requirements of Division 3 of Title 2 of the California Government Code. California Business and Professions Code § 6001 states in relevant part: "No law of this state restricting, or prescribing a mode of procedure for the exercise of powers of state public bodies or state agencies, or classes thereof, including, but not by way of limitation, the provisions contained in Division 3 (commencing with Section 11000) ... of Title 2 of the Government Code, shall be applicable to the State Bar, unless the Legislature expressly so declares." Thus the District Court dismissed these causes of action with prejudice as well. Plaintiff's eighth through fourteenth claims are for violations of the Unruh Act, Cal. Civ. Code § 51(f). Plaintiff alleges that each predicate violation of the ADA is also a violation of the Unruh Act. Id. Defendants contend that plaintiff's Unruh Act claims fail because plaintiff has failed to plead compliance with the California Government Claims Act and the State Bar is not subject to claims attempting to incorporate alleged Title II ADA violations into the Unruh Act. In dismissing these cause of actions the court concluded that "Because plaintiff fails to state a claim for violation of the ADA, it follows that he cannot state a claim for violation of section 51(f). Plaintiff's claim also fails because the Unruh Act only applies to "business establishments," Cal. Civ. Code § 51(b), and California courts have held that government entities are not "business establishments" and not subject to the Unruh Act, see, e.g., In November 2020 Kohn appealed this case to the 9th Circuit Court of Appeal. The case was briefed by the parties and Amicus. In November 2022 in accordance with Federal Rule of Appellate Procedure 44 and 28 U.S.C. § 2403(b), the Court of Appeals certified to the United States Attorney General a constitutional challenge to a federal statute raised in a pending appeal in which the United States is not a party. The case was argued (video recording) in San Francisco and submitted on February 15, 2023. However, on 5/9/2023 a judge of this court called for a vote to determine whether this case should be heard en banc. On July 21, 2023 upon the vote of a majority of nonrecused active judges, it was ordered that this case be heard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. Judge Koh did not participate in the deliberations or vote in this case. En banc oral argument will take place during the week of September 18, 2023, in San Francisco, California. The date and time will be determined by separate order ...

The federal Hospital Price Transparency Rule, which took effect on January 1, 2021, requires hospitals to post all prices online, easily accessible and searchable, in the form of (1) a single machine-readable standard charges file pricing for all items, services, and drugs by all payers and all plans, the de-identified minimum and maximum negotiated rates, and all discounted cash prices, as well as (2) prices for the 300 most common shoppable services either as a consumer-friendly standard charges display listing actual prices or, alternatively, as a price estimator tool. Combined with requirements for disclosure of systemwide prices and historical claims in the Transparency in Coverage Rule and the Consolidated Appropriations Act of 2021 respectively, the Hospital Price Transparency Rule is intended to empower healthcare consumers - patients, employers, and unions as purchasers - with ease of access to compare prices. The nonprofit Patient Rights Advocate (PRA) released its fifth semi-annual report, which found that only 36 percent of 2,000 surveyed hospitals were in complete compliance with the rule. Its latest review was published on July 20, 2023, two and a half years after the Hospital Price Transparency Rule took effect. It analyzed the websites of 2,000 U.S. hospitals and found only 36% of them (721) to be fully compliant with all requirements of the rule. Although the majority of hospitals have posted files, the widescale noncompliance of 64% of hospitals is due to most hospitals’ files being incomplete or not having prices clearly associated with both payer and plan. In this report, 69 of the hospitals reviewed had no usable standard charges file. Compliance varied widely among the largest hospital systems it reviewed. - - None (0%) of the hospitals it reviewed which were owned by HCA Healthcare, Tenet Healthcare, Providence, Avera Health, UPMC, Baylor Scott & White Health, and Mercy were found to be fully compliant. - - Consistent with prior reports, none of the hospitals owned by the largest hospital system in the country, HCA Healthcare, were found to be in full compliance, with a significant amount of its hospitals posting illegible, nonconforming files. - - Substantial improvements since its last report include: 88% of hospitals owned by CommonSpirit Health, 97% of hospitals owned by Community Health Systems, and 98% of hospitals owned by Kaiser Permanente were found to be in full compliance. The Health and Human Services (HHS) Department’s Centers for Medicare and Medicaid Services (CMS) are responsible for enforcing the rule. In June of 2022 (eighteen months after the rule’s inception), CMS imposed its first two civil monetary penalties (CMPs) on hospitals for not complying with the rule. Both hospitals immediately came into compliance with exemplary files to date. In February of 2023, CMS acknowledged in a blog post that 30% of hospitals (approximately 1,800) were still noncompliant. Yet, in April of 2023, only two more hospitals were fined. Both were still found to be noncompliant in this review. As of the time of this report, a total of four hospitals have been penalized, 0.2% of the hospitals that CMS recognized as noncompliant. Clearly, CMS is not strongly enforcing the rule. "Unfortunately, our findings show that the majority of hospitals across the country are still failing to comply with the Hospital Price Transparency Rule," said Cynthia Fisher, Founder and Chairman of PatientsRightsAdvocate.org. "When hospitals hide behind estimates or don’t post all real prices, they are leaving consumers in the dark. Making all actual prices available upfront will empower patients, employers, and unions to choose the best care at prices they know they can afford, and protect all Americans from overcharges, errors, and fraud." ...

The owner of a now-shuttered health care business management services company and three other people were arrested on a nine-count federal grand jury indictment alleging they defrauded lenders and investors out of millions of dollars via false claims that the owner’s struggling business was booming. Tammy Le, 48, of San Clemente, the former owner and CEO of CareAccess MSO Inc., a Cerritos-based company that purported to help primary care physician groups manage their business affairs, was arrested without incident this morning. Also arrested today were: - - Macy Zia, 50, of Fullerton, a former senior accounting manager at CareAccess; - - Galen Clark, 31, of Simi Valley, a former CareAccess information technology manager; and - - Chris Ruiz, 52, of Pasadena, the owner of Auxilium Health Network, an Arcadia-based independent physician association (IPA). All four defendants are charged with one count of conspiracy to commit wire fraud. Le, Zia and Ruiz are charged with six counts of wire fraud. Clark, who allegedly joined the conspiracy in November 2020, is charged with three counts of wire fraud. Le also is charged with one count of aggravated identity theft and one count of money laundering. According to an indictment returned on Tuesday, from January 2020 to July 2021, the defendants conspired to fraudulently obtain money from their victims by falsely representing the scope of CareAccess’ business and its anticipated revenue - one victim company was duped into loaning money to CareAccess while the other victim company was deceived into acquiring Le’s company. Neither victim knew the weak state of CareAccess, the indictment alleges. Le allegedly caused CareAccess to contract with a New Jersey-based finance company that would make loans to CareAccess in exchange for rights to collect against her company’s accounts receivable, including fees due from Auxilium and other IPAs. The defendants allegedly induced the lender by making false statements regarding the business performance of CareAccess, including by sending fake copies of invoices the company purportedly issued to IPAs. The bogus invoices were accompanied by spreadsheets containing the number of patients purportedly enrolled with the IPAs. The fraudulent invoices and spreadsheets inflated the amount of fees due to CareAccess and the amount of money the lender would loan to it. To impede the lender’s ability to detect the fraud, Le allegedly arranged for Ruiz to be the point of contact at Auxilium and, when contacted by the lender’s representatives, he verified the false information contained in the fraudulent invoices and spreadsheets. Le, Zia and Ruiz allegedly caused this lender to wire approximately $6.1 million in loans into a Le-controlled bank account. Also, starting in November 2020, the defendants, now including Clark, allegedly solicited a Utah-based health care investment company to invest in and eventually acquire CareAccess. The defendants allegedly provided this investor fraudulent reports that inflated its business performance and the size of its customer base. Through these misrepresentations the defendants allegedly caused the investor to provide approximately $12.7 million for the acquisition of CareAccess, of which Le allegedly directed $2.2 million to be deposited in her bank account. A substantial portion of the latter amount was to be used by the defendants for their personal benefit. Within months of the acquisition, CareAccess filed for bankruptcy protection ...

Robert Irving Slater was admitted to practice law in California since 1975. He was a solo practitioner who had handled workers’ compensation cases since at least the late 1990’s. USA Photocopy, located in Santa Ana, provided attorney services, including photocopying and sending subpoenas for records for workers’ compensation cases. The company would then bill insurance carriers for its services. During the relevant time period, Edgar Gonzalez was the owner of USA Photocopy and Enrique Villagomez was the manager. Peter Ayala worked as a "legal investigator performing intake services." He learned that Villagomez had work in the form of "sign-up services available," and subsequently had a meeting with Gonzalez and Villagomez at the USA Photocopy office. During the course of the conversation, it was brought up that Ayala would be working directly for one attorney - Robert Irving Slater. After working out a payment structure with Gonzalez and Villagomez, all three of them went to Slater’s office and met with him. Ayala’s role was to meet with the potential "workers’ compensation client to fill out the intake retainer . . . and also get the retainer signed for the claim." Ayala would also have the client, with his assistance, complete various forms, including the workers’ compensation appeals board application for adjudication, medical release forms, and fee disclosure forms, among others. With regard to copy services, there was a form signed by clients giving USA Photocopy permission to perform copy services "and the medical release forms as well." Ayala would return the forms to Slater’s office in digital form, and returned the originals in person approximately every two weeks. Ayala was told to send an invoice for his services every two weeks to USA Photocopy, which paid him for his services. Ayala had done similar work in the past for approximately 13 attorneys, and this was the first time he would be paid by a party other than an attorney. Ayala was paid by USA Photocopy as an independent contractor. Between September 2012 and September 2015, Ayala invoiced a total of $196,280.00 to USA Photocopy. Over the six years his relationship with USA Photocopy and defendant lasted, Ayala estimated he performed intake services for about 2,000 clients for defendant, and USA Photocopy was the only copy service used for those clients. Ayala did not perform any service for USA Photocopy other than the services he performed for Slater. Slater was charged with conspiracy (Pen. Code, § 182, subd. (a)(1), Lab. Code, § 32151 (count 1)); submitting a false and fraudulent claim (Pen. Code, § 549 (count 2)); and 21 counts of insurance fraud based on concealing or failing to disclose information that affects a person’s right to an insurance benefit (Pen. Code, § 550, subd. (b)(3) (counts 3-23)). The complaint also alleged that Slater had engaged in a pattern of related fraudulent conduct involving the taking of more than $100,000.00. A jury convicted Slater on all 23 counts, and also found the enhancement regarding the pattern of fraudulent conduct true. The court sentenced Slater to serve a total of 183 days, with 182 of those days suspended on the successful completion of two years of supervised probation. Six months of the probation term was to be served with an ankle bracelet. The court also ordered him to pay $356,175.24 in victim restitution in addition to statutory fines and fees. Slater appealed his conviction. The court of appeal affirmed the trial court in the unpublished case of People v Slater -G061331 (July 2023) Slater's sole contention on appeal is that he did not possess the requisite state of mind to violate Labor Code section 3215, which was an element of each of the crimes of which he was convicted with the exception of count 2, submitting a false and fraudulent claim under Penal Code section 549. Section 3215 states: "Except as otherwise permitted by law, any person acting individually or through his or her employees or agents, who offers, delivers, receives, or accepts any rebate, refund, commission, preference, patronage, dividend, discount or other consideration, whether in the form of money or otherwise, as compensation or inducement for referring clients or patients to perform or obtain services or benefits pursuant to this division, is guilty of a crime." In reviewing his opening brief on appeal, the Court noted that he "included nothing that could possibly be interpreted as an even-handed account of the evidence presented. This violates rules 8.204(a)(2)(C) and 8.360(a) of the California Rules of Court." "It also violates the principles set forth in Sanghera, supra, 139 Cal.App.4th 1567: 'Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error.' " The Court went to to say "How does a defendant make such a showing? Perhaps the best way to understand that point is to understand how a defendant does not make such a showing. He does not show the evidence is insufficient by citing only his own evidence, or by arguing about what evidence is not in the record, or by portraying the evidence that is in the record in the light most favorable to himself." After the Court of Appeal sad that "Defendant failed these requirements rather spectacularly" it concluded by finding "Even if defendant had adequately briefed this appeal, our own review of the record demonstrates substantial evidence to uphold the verdicts." ...

On June 19, 2020, a fatal accident occurred in San Jose, California on southbound Highway 101 near the Blossom Hill Road exit. Four employees from CD All Roofing were returning from a roofing job in two company trucks when the tire of one of the trucks, a 2015 Ford F-150, blew out. The driver of the truck overcorrected, causing the truck to roll over. One of the passengers, 62-year-old David Pham, was ejected from the truck and died at the scene. He was Duong's longtime second-in-command. The other three passengers were taken to the hospital with injuries. A truck accident that left one man dead exposed a $460,000 workers’ insurance fraud scheme by the owner of a San Jose roofing company. Charlie Duong, 64-year-old owner of CD All Roofing, tried to cover up that the dead employee had been working full-time for years. Duong’s falsified records, which showed that the driver was part-time and had just started, ended up cutting benefits to the deceased’s wife. Prosecutors claim that Duong asked the survivor of the accident to lie to investigators by saying that the victim had only started working a few days before and was only working part-time. The employee refused to lie, telling investigators that his dead coworker had been on the job eight years, working six days a week. Duong also tried to show that the deceased was not on the job when the truck crashed, even though the employees were in company trucks driving back from a job when the accident occurred Accused of faking information for his employees to avoid insurance premiums, Duong was arraigned on insurance fraud felonies. He is scheduled to go to trial in January 2024. "Insurance fraud is not a victimless crime," District Attorney Jeff Rosen said. "This felony crime raises our premiums and leaves innocent workers and their families exposed to financial catastrophe. We will never look the other way." ...

Rigoberto Gonzalez claimed injury to his heart, upper extremities, spine, and lower extremities while employed by Team Infinity as a service technician/mechanic during the period from August 28, 2001, through March 25, 2010. The parties agreed to use Steven Nagelberg, M.D., an orthopedist and Edward J. O’Neill, M.D., and internist as AMEs in their respective fields, and Gonzalez was additionally evaluated by a rheumatology qualified medical examiner (QME) Seymour Levine, M.D. As to the issue of apportionment, Dr. Nagelberg stated that 100% of the cervical and lumbar spine impairment was caused by the cumulative work injury, that 50% of the right wrist and bi-lateral knee impairment was due to the cumulative work injury, and 50% of the right wrist and bi-lateral knee impairment was due to a pre-existing non-industrial arthritic condition. Dr. O'Neill stated that the hypertension caused 49% WPI, the coronary artery disease caused 20% WPI, the upper GI/GERD caused 7% WPI, and that applicant had 7% WPI as a result of his obstructive sleep apnea. He later said he would apportion the hypertension in the same fashion as the arthritic condition; namely, 75% non-occupational and 25% occupationally related. Regarding the coronary artery disease and the obstructive sleep apnea is that neither of those conditions are occupationally related and any impairment or disability is non-occupationally related with no apportionment to occupational factors. Gonzalez had a "Facetime meeting" with Vocational Rehabilitation Counselor Paul Broadus. Mr. Broadus concluded that applicant was "not amenable to rehabilitation, solely due to his industrial impairments" and that he no longer had "the ability to return to work in the open labor market." After commenting on the apportionment given by the medical evaluators, he concluded that "Mr. Gonzalez is in a rather unusual situation in that none of his impairments by themselves preclude him from working in the open labor market. However, he has so many separate issues that when combined, the industrial portions alone make him not amenable to rehabilitation. Conversely, if he only had the non-industrial impairments, these would be labor-disabling and preclude him from working by themselves. At the October 13, 2021 trial the parties stipulated that applicant sustained injury AOE/COE to his heart, upper extremits, spine, and lower extremities; that "Applicant asserts he is 100 percent permanently totally disabled" and "Defendant asserts that, Applicant's permanent disability is 86%;" The WCJ found that the injuries caused 100% permanent disability. The employer's Petition of Reconsideration was granted, and the award was rescinded in the panel decision of Gonzalez v Team Infinity -ADJ7263865 (July 2023). The issue on Reconsideration was apportionment of permanent disability. On this issue the WCAB panel noted that pursuant to Labor Code 4663 "The Appeals Board must rely on expert medical opinion in determining apportionment; apportionment is a medical determination, and a non-medical opinion is not substantial evidence." The WCAB panel then noted its recent en banc decision on this issue stating "Accordingly, 'vocational apportionment' offered by a non-physician is not a statutorily authorized form of apportionment. In addition, apportionment determinations that deviate from the mandatory standards described in section 4663(c) are not a valid basis upon which to determine permanent disability. (Grace Nunes v. State of California, Dept. of Motor Vehicles (2023) Cal.Comp.Cases ... [2023 Cal.Wrk.Comp. LEXIS ... [ADJ8210063; ADJ8621818] (Appeals Board en banc)" Also, Dr. Nagelberg and Dr. O’Neill did not review the VR reports in this case. "It appears that notwithstanding the apportionment described by Drs. Nagelberg and O’Neill, it is Mr. Broadus’ opinion that applicant is 100% disabled as a result of his industrial cumulative injury. Clearly, his opinion is not consistent with the statutory and case law discussed above." ...

Allianz Global Investors U.S. LLC (AGI) is an investment management firm that is part of the Allianz Group. AGI US was founded in 2010 and is headquartered in New York City. The company provides portfolio management and advisory services to individuals, corporations, public pension and profit-sharing plans, charitable institutions, foundations, and trusts in the United States. AGI Us is also an investment adviser registered with the Securities and Exchange Commission ("SEC"). Allianz Group is a German multinational financial services company headquartered in Munich, Germany. It is one of the largest insurers and financial services groups in the world, with over 150 million customers in more than 70 countries. Allianz's core businesses are insurance and asset management. The company offers a wide range of insurance products, including life insurance, property and casualty insurance, and health insurance. Allianz also manages over $2.4 trillion in assets, making it one of the largest asset managers in the world. The United States Attorney for the Southern District of New York, announced that Allianz Global Investors U.S. LLC was sentenced by U.S. District Judge Colleen McMahon for a multi-year securities fraud involving a series of private investment funds managed by AGI. Those funds ultimately collapsed, leading to billions of dollars of investor losses. AGI previously pled guilty to one count of securities fraud. The sentencing had been postponed since last year to give Allianz's Pacific Investment Management Co (PIMCO) time to negotiate its ability to keep handling $170 billion in U.S. retirement funds despite AGI's conviction. AGI was sentenced to financial penalties comprised of over $463 million in forfeiture, over $3.23 billion in restitution, and over $2.33 billion in fines. These amounts include restitution to the victims, the forfeiture of proceeds traceable to the fraud, and the forfeiture by AGI’s corporate parent of the dividends that were paid from AGI to its corporate parent that are traceable to the fraud. AGI has paid these financial penalties in full and has compensated victims of the conduct through settlements in civil litigation filed against AGI in an aggregate amount of over $5 billion. Prosecutors say AGI engaged in a scheme to defraud investors in multiple private funds within AGI’s "Structured Alpha Funds." The Structured Alpha Funds were among the most profitable groups of funds AGI managed and, at their height, held over $11 billion in assets under management. The Funds employed a complex options trading strategy that sought to provide investors with guaranteed returns, while managing risk. AGI deceived the Funds and their investors by understating the risk to which investors’ assets were exposed, and therefore how the returns they touted were actually generated. In particular, in order to generate the Funds’ positive returns and attract and retain capital, prosecutors say AGI fraudulently misled investors regarding the risk taken on by the funds. Among other things, AGI misrepresented the hedging and other risk-mitigation strategies that were undertaken to protect investor funds. Investors also received documents altered to hide the riskiness of the Funds’ investments. Instead of managing the Funds as promised to investors, AGI deployed an investment strategy that prioritized returns over risk management in ways that were fundamentally inconsistent with representations made to investors. As a result of this scheme to defraud, investors’ funds were exposed to higher risk than promised, and investors were deprived of information about the true risks to which their investments were exposed. After the market dislocations following the onset of the COVID-19 pandemic in March 2020, the Funds lost in excess of $8 billion in market value and $3 billion in principal, faced margin calls and redemption requests, and ultimately were shut down. More than 100 investors were victims of this scheme, including, among others, pension funds for teachers, religious organizations, bus drivers, engineers, and other individuals, universities, and charitable organizations. U.S. Attorney Damian Williams said: "Telling the truth to investors is the core duty of an investment adviser. AGI violated that central tenet and deceived investors by materially understating the risk to which their assets were exposed." In the wake of the criminal case, Allianz moved about $120 billion of investor assets to Voya Financial in exchange for a 24% stake in Voya's asset management business ...

Aetna Health of California Inc. provides health insurance. For its preferred provider plans, Aetna contracts with a network of physicians and other medical providers who offer care to insured individuals at an agreed rate. Member patients can also see providers outside the network on referral from in-network physicians, but may bear a greater share of the cost. Effective in 2009, Aetna adopted a "Network Intervention Policy" designed, according to its terms, to "reduce the number of non par [i.e., nonparticipating, or out-of-network] referrals by par providers and if necessary take further action against participating providers who refuse, after warning and education to comply with the terms of their contract." The California Medical Association (CMA) is a nonprofit professional organization, founded in 1856, that advocates on behalf of California physicians. By CMA’s count, it has more than 37,000 physician members. In 2010, at least two years before it filed suit, CMA learned of Aetna’s Network Intervention Policy from its members and became concerned that in threatening termination or actually terminating participating physicians for their referrals to out-of-network providers, the policy’s implementation interfered with physicians’ exercise of their sound medical judgment. CMA diverted 200-250 hours of staff time to respond to the policy. That time was spent on activities including: (i) investigation for the purpose of "advis[ing] physicians and the public regarding how to address Aetna’s . . . interference with the physician patient relationship in an effort to avoid litigation over this issue"; (ii) "prepar[ing] a 3-page document entitled the ‘Aetna Termination Resource Guide,’ which [CMA] publicized, advising . . . members about Aetna’s new policy . . . , including ways to proactively address and counteract Aetna’s policies"; (iii) engaging with physicians affected by Aetna’s policy and interacting with Aetna on physicians’ behalf; and (iv) "prepar[ing] a letter to California’s Department of Insurance and California’s Department of Managed Health Care requesting that they take action to address" Aetna’s change in policy. In July 2012, CMA sued Aetna, alleging Aetna’s implementation of the Network Intervention Policy violated the unfair competition law (UCL; Bus. & Prof. Code, § 17200 et seq.) both because it was unfairly oppressive and injurious and because it violated specified sections of the Insurance Code, Business and Professions Code, and Health and Safety Code. CMA sought to enjoin Aetna from enforcing the policy. The UCL confers standing on a private plaintiff to seek relief under the statute only if that plaintiff has "suffered injury in fact" and "lost money or property as a result of the unfair competition" at issue. Aetna moved for summary judgment. It argued that CMA lacked UCL standing because CMA had not lost money or property as a result of the policy. Aetna emphasized that the policy applied to individual physicians - not to CMA. CMA countered that it had diverted resources in response to the policy. The trial court granted Aetna’s motion for summary judgment on standing grounds. The Court of Appeal affirmed. (California Medical Assn. v. Aetna Health of California Inc. I (2021) 63 Cal.App.5th 660). The California Supreme Court agreed to hear the case, and reversed the dismissal in the case of California Medical Assn. v. Aetna Health of California Inc. II - S269212 (July 2023) The issue between the parties is whether resources that an organization has spent to counter an unfair or unlawful practice constitute "money or property" that has been "lost . . . as a result of the unfair competition." (§ 17204.) The California Supreme Court held that the UCL’s standing requirements are satisfied when an organization, in furtherance of a bona fide, preexisting mission, incurs costs to respond to perceived unfair competition that threatens that mission, so long as those expenditures are independent of costs incurred in UCL litigation or preparations for such litigation. When an organization has incurred such expenditures, it has "suffered injury in fact" and "lost money or property as a result of the unfair competition." (§ 17204.) In this case the record discloses a triable issue of fact as to whether the plaintiff association expended resources in response to the perceived threat the health insurer’s allegedly unlawful practices posed to plaintiff’s mission of supporting its member physicians and advancing public health. The evidence was also sufficient to create a triable issue of fact as to whether those expenses were incurred independent of this litigation. For these reasons, the trial court erred in granting summary judgment for the defense. It therefore reversed the judgment of the Court of Appeal, which affirmed the grant of summary judgment ...

In 2018, the California Legislature passed SB 880 which was modeled after the Employment Development Department’s program that utilizes prepaid cards to issue unemployment insurance and disability insurance payments. The purpose was to conduct a pilot program to transmit workers’ compensation disability indemnity benefits via prepaid card, rather than a paper check. It authorized employers to begin a program where disability indemnity benefits may be deposited on a prepaid card account if the injured worker has provided written consent to receive his or her benefits on a prepaid card and prohibits account fees being charged to an injured worker, except for an expedited replacement prepaid card, out-of-network ATM fees on the third and subsequent withdrawal per deposit, and fees associated with foreign transactions. The bill also required CHSWC to report data to the Legislature by December 12022 about the number of employees who elected to receive their benefits via prepaid card - the cash value of benefits sent via prepaid card, and the number of employees who opted to change their method of payment from prepaid card to either a written instrument or electronic deposit. The pilot program authorized by SB 880 was due to sunset on January 1, 2023. Last year, AB 2148 (Calderon, Chapter 120, Statutes of 2022) extended the sunset date to January 1, 2024. The CHSWC report required by SB 880 has not yet been submitted to the Legislature. This year AB 489 was passed by the legislature and has now been signed by Governor Newsom. This law extends an existing pilot program by one year to allow workers’ compensation temporary and permanent disability indemnity payments to continue to be made using prepaid cards. Passage of this extension was supported by the following organizations: - - American Property Casualty Insurance Association - - California Association of Joint Powers Authorities - - California Coalition on Workers Compensation - - Housing Contractors of California - - Public Risk Innovation, Solutions, and Management There was no opposition to the extension of time ...

Erik Adolph, was a driver for UberEATS, a meal delivery service. The company through which drivers are connected with those in need of UberEATS’ services is owned by Uber Technologies Inc. Before he began making deliveries for UberEATS in March 2019, Adolph created an account to use the UberEATS app. In creating his account, Adolph accepted an arbitration agreement, which "is governed by the Federal Arbitration Act." In October 2019, Adolph filed a putative class action complaint against Uber, claiming that Uber had misclassified employees as independent contractors, and had therefore failed to reimburse the class members for necessary work expenses. The complaint was amended to include only a California Private Attorney General Act (PAGA) cause of action. Uber filed a petition to compel arbitration of Adolph’s individual claims, strike the class action allegations, and stay all court proceedings. But the trial court denied Uber’s petition to compel arbitration citing California Supreme Court’s 2014 decision in Iskanian v. CLS Transportation Los Angeles, LLC 59 Cal.4th 348, 384 and the cases following it, In Iskanian the California Supreme Court held "that an employee’s right to bring a PAGA action is unwaivable," and that "here . . . an employment agreement compels the waiver of representative claims under the PAGA, it is contrary to public policy and unenforceable as a matter of state law." Uber appealed the ruling of the trial court. On April 11, 2022 the Court of Appeal affirmed the trial court in the case of Adolph v Uber Technologies Inc. -G059860 (consol. w/ G060198). The case was unremarkable at the time, hence it was "unpublished." About two months later, The Supreme Court of the United States published its decision in Viking River Cruises, Inc. v. Angie Moriana, on June 15, 2022, agreeing with the employer who had appealed nearly the same issue as in Adolph v Uber. SCOTUS thus limited the application of Iskanian in California. It said "When an employee’s own dispute is pared away from a PAGA action, the employee is no different from a member of the general public, and PAGA does not allow such persons to maintain suit." As a result, Moriana would lack statutory standing to maintain her non-individual claims in court, and the correct course was to dismiss her remaining claims. The U.S. Supreme Court decision in Viking had - at least temporarily - disrupted the PAGA process against employer’s who have arbitration agreements in California. Hence, on July 22, 2022 the California Supreme Court granted Uber’s Petition for Review in the Adolph case. The Uber case which was unremarkable and unpublished, is now remarkable, since the timing make it the case chosen to decide how Viking will work in California. The California Supreme Court agreed to hear Adolph v Uber Technologies Inc in order to consider whether an aggrieved employee who has been compelled to arbitrate individual claims "premised on Labor Code violations actually sustained by" the plaintiff (Viking River, supra, 596 U.S. at p. __ [142 S.Ct. at p. 1916]; see Lab. Code, § 2699, subd. (a)) maintains statutory standing to pursue non-individual "PAGA claims arising out of events involving other employees" (Viking River, at p. __ [142 S.Ct. at p. 1916]) in court. In deciding Viking River the U.S. Supreme Court concluded that a PAGA plaintiff loses standing in this situation: "[A]s we see it, PAGA provides no mechanism to enable a court to adjudicate non-individual PAGA claims once an individual claim has been committed to a separate proceeding. Under PAGA’s standing requirement, a plaintiff can maintain non-individual PAGA claims in an action only by virtue of also maintaining an individual claim in that action." And SCOTUS reasoned that "When an employee’s own dispute is pared away from a PAGA action, the employee is no different from a member of the general public, and PAGA does not allow such persons to maintain suit." Nonetheless, the California Supreme Court in it's Adolph v Uber Technologies -S274671 (July 2023) decision published today, disagreed with the Viking River interpretation of PAGA, a state law, because "[t]he highest court of each State . . . remains 'the final arbiter of what is state law' " (Montana v. Wyoming (2011) 563 U.S. 368, 378, fn. 5), "we are not bound by the high court’s interpretation of California law." The centerpiece of PAGA’s enforcement scheme is the ability of a plaintiff employee to prosecute numerous Labor Code violations committed by an employer and to seek civil penalties corresponding to those violations. "Uber makes several arguments in urging that a PAGA plaintiff loses standing to litigate non-individual claims in court when the plaintiff’s individual claims are subject to arbitration. None is persuasive." In sum, where a plaintiff has filed a PAGA action comprised of individual and non-individual claims, an order compelling arbitration of individual claims does not strip the plaintiff of standing to litigate non-individual claims in court. This "is the interpretation of PAGA that best effectuates the statute’s purpose, which is 'to ensure effective code enforcement.' " "We reverse the judgment of the Court of Appeal and remand the case for further proceedings consistent with this opinion. We limited our review to the question of PAGA standing and express no view on the parties’ arguments regarding the proper interpretation of the arbitration agreement." ...

Alki David Productions, Inc. (ADP) is an entertainment and media company owned by its principal, Alkiviades David. ADP initially produced internet programming, but in 2014 it began focusing on hologram technology, by which images are projected onto a screen and reflected for audience viewing. Karl Zirpel was employed by ADP from 2013 to 2017. During his employment, Zirpel became heavily involved in hologram production. He learned the technology, how to install the equipment, and how to stage productions that ADP created for television shows, concerts, and museums. Zirpel became ADP’s vice president of operations in March 2014. His annual salary at the time ADT terminated his employment was $72,800. In September 2017, Zirpel began working at a church on Hollywood Boulevard that ADP was converting into a theater for hologram productions. Zirpel was responsible for installing production equipment used to create the hologram. Zirpel was at the theater on September 25, 2017, when four different Los Angeles City inspectors arrived. He learned of approximately 20 code violations, including plumbing and electrical violations. Zirpel was concerned about the plumbing and electrical work in relation to the hologram equipment he was to install. Projection equipment weighing 700 pounds would be installed in the ceiling directly over the audience. Zirpel was concerned about the integrity of the ceiling and the floor and whether the equipment could fall on the theater attendees. ADP had scheduled a private, invitation-only special event at the theater for celebrities and potential investors to take place on September 28, 2017 After the inspectors finished their September 25, 2017 walk throughs, Zirpel asked two of the inspectors whether ADP could obtain approval of the completed work before the event. Both inspectors told Zirpel that approvals would be impossible given their respective schedules and the amount of work to be done at the theater. Zirpel and David had conversations about safety concerns, with Zirpel suggesting that the event be postponed. David "immediately blew up," and told Zirpel to shut up and "go with the program," Zirpel kept repeating what they were doing was not safe. David went into a "fit of rage," yelled in Zirpel’s face, and using numerous obscenities as he fired Zirpel. One of the comments made by David revealed that Zirpel was gay. Zirpel found the situation "traumatic," because he "wasn’t out to a lot of people," including many with whom Zirpel worked in a very masculine construction environment. Zirpel had also trusted David, one of the few people who knew Zirpel was gay. Zirpel sued David and alleged his termination constituted retaliation under Labor Code section 1102.5, subdivision (b), for disclosing to ADP information Zirpel reasonably believed evidenced a violation of a statute, rule, or regulation, and under Labor Code section 232.5, subdivision (c) for disclosing information about the employer’s working conditions. A jury found ADP liable for whistleblower retaliation under Labor Code section 232.5, which prohibits an employer from discharging an employee who discloses information about the employer’s working conditions, and section 1102.5, subdivisions (b) and (c), which prohibits an employer from retaliating against an employee who refuses to participate in an activity that would violate the law or who discloses information the employee reasonably believes would disclose a violation of law. The jury awarded Zirpel $7,068,717 in damages (consisting of $368,717 in economic damages, $700,000 in non-economic damages, and $6 million in punitive damages). David appealed. The Court of Appeal affirmed the judgment in the published case of Zirpel v. Alki David Productions, Inc -B317334 (July, 2023). One of David's contentions on appeal was that the punitive damages award should be reversed because it was unconstitutionally excessive. The Court of Appeal noted that of the guideposts for determining the constitutionality of a punitive damages award, reprehensibility is the most important factor. In the case of State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, 419) the United States Supreme Court has instructed courts to determine the reprehensibility of a defendant’s conduct by considering whether "the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident." (Ibid.) A reviewing court must consider the totality of the circumstances when determining the reprehensibility of a defendant’s conduct. (Ibid.) "There is substantial evidence of reprehensible conduct on the part of ADP and its principal, David. David and Zirpel’s superiors ignored Zirpel’s repeated disclosures of potentially hazardous conditions at the theater, evincing a disregard of the health and safety of others. Conscious disregard of the safety of others can also constitute malice for purposes of a punitive damages award." Despicable conduct is conduct that is so "base, vile or contemptible" that it would be despised and looked down upon by ordinary people. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228.) There is substantial evidence David acted with malice when terminating Zirpel’s employment. When Zirpel voiced his concerns regarding workplace safety, David yelled and screamed obscenities at Zirpel in front of his coworkers. After telling Zirpel he was fired, David followed Zirpel out of the theater building and continued to scream at him. The totality of the circumstances here supports a finding of reprehensible conduct ...

In 1996 and 1997, the Anaheim Public Financing Authority, the City of Anaheim, Walt Disney related entities, and a bond trustee signed several contracts. Under the Finance Agreement, Disney, the City, and the Authority agreed "to combine resources on the terms and conditions hereof to bring about a revitalization of the entire Anaheim Resort and to finance the public improvements needed for the Anaheim Resort, the expansion of the Convention Center, and the Disneyland Resort Project." The Anaheim Resort spans about 1046 acres. The Disneyland Resort is located within the Anaheim Resort and includes all the theme parks, hotel rooms, retail establishments, and other facilities located on Disney property. In the Finance Agreement, Disney agreed to build a new theme park (California Adventure), a pedestrian bridge, additional hotel rooms, as well as new retail, dining, and entertainment facilities (Downtown Disney). The Authority agreed to issue municipal bonds to raise money to help pay for the project. In 2018, Anaheim voters approved Measure L, a Living Wage Ordinance (LWO). (Anaheim Mun. Code, § 6.99 et seq.) The LWO applies to hospitality employers in the Anaheim or Disneyland Resort areas that benefit from a "City Subsidy." Affected employers were required to pay their employees a minimum of $15 per hour under the LWO starting in 2019, with annual increases of $1 an hour. In 2023, the wage would then be tied to the consumer price index. In 2019, Kathleen Grace and other employee plaintiffs filed a class action complaint against the Walt Disney Company, Walt Disney Parks and Resorts, U.S., Inc. and Sodexo, Inc., and Sodexomagic, LLC alleging a violation of the LWO. Sodexo operates restaurants in Disney’s theme parks. The Employees alleged they were employed by either Disney or Sodexo, and they were not paid a living wage, beginning on January 1, 2019. It was undisputed the Employees were not being paid the required minimum hourly wage under the LWO. However, Disney argued it was not covered under the LWO as a matter of law because it is not benefiting from a "City Subsidy." Disney and Sodexo filed a motion for summary judgment. The Employees argued the City issued municipal bonds in 1997, which gave "Disney over $200 million dollars to help finance the construction of California Adventure and a parking garage to serve the new park." The bonds issued under the Finance Agreement will not be paid off until 2036. The trial court granted the motion for summary judgment. It concluded that "A ‘rebate . . . of taxes,’ as that phrase is used in the [LWO], refers not only to a refund of taxes already paid, but also to an abatement of taxes yet to be paid, an exemption from taxes, etc." Nonetheless, the court concluded "there is no evidence that the Finance Agreement somehow lessens [Disney’s] tax obligation. Therefore, the public benefit conferred . . . by the Finance Agreement does not create a City Subsidy." The employees appealed, and the Court of Appeal reversed in the published case of Grace v. The Walt Disney Company - G061004 (July 2023). Pursuant to Anaheim Mun. Code § 6.99.110 "A ‘City Subsidy’ is any agreement with the city pursuant to which a person other than the city has a right to receive a rebate of transient occupancy tax, sales tax, entertainment tax, property tax or other taxes, presently or in the future, matured or unmatured." The word "rebate" is not defined within the LWO. Generally, a "rebate" means "a return of a part of a payment." (Webster’s 11th New Collegiate Dict. (2003) p. 1037.) This definition is consistent with California statutes, in which a "rebate" ordinarily means any kind of "retroactive abatement, credit, discount, or refund." Here, under the Finance Agreement, the City agreed to issue municipal bonds through the Authority. The bondholders were to be repaid based on the incremental increases in the City’s transient occupancy tax (paid by hotel guests on Disney property and other properties in Anaheim), sales tax (paid by consumers in businesses located within Disney owned property), and property tax (paid directly by Disney). Under the Enhancement Agreement, Disney agreed if there was any year in which the City’s tax revenues in the debt service fund failed to meet its bond obligations to the bond trustee, Disney would then make up the shortfall. And under the Reimbursement Agreement, the parties agreed Disney would then be reimbursed by the City for any of its shortfall payments in those years when the City’s incremental tax revenues rebounded and were sufficient to meet its bond obligations "We find that under these three agreements, particularly the Reimbursement Agreement, Disney has the right to receive a rebate - a return - of a portion of the incremental transient occupancy tax (paid by hotel guests), the local sales tax (paid by consumers), and the local property tax (paid by Disney) in those "rebound" years when the City’s incremental tax revenues exceed its bond obligations." "In short, we hold Disney receives a "City Subsidy" within the meaning of the LWO and is therefore required to pay its employees a living wage. Thus, we reverse the trial court’s order granting the defendants’ motion for summary judgment." ...

The implementation of privacy rights in California began In 1972, when California voters amended the California Constitution to include the right of privacy among the "inalienable" rights of all people. Since California voters approved the constitutional right of privacy, the California Legislature has adopted specific mechanisms to safeguard Californians’ privacy, including the Online Privacy Protection Act, the Privacy Rights for California Minors in the Digital World Act, and Shine the Light, but consumers had no right to learn what personal information a business had collected about them and how they used it or to direct businesses not to sell the consumer’s personal information. To facilitate that missing right, the legislature passed a landmark data privacy law in 2018, the California Consumer Privacy Act of 2018 (CCPA) into law. It gives consumers more control over the personal information that businesses collect about them. In November of 2020, California voters approved Proposition 24, also known as the California Privacy Rights Act, (CPRA), which amended the CCPA and added new additional privacy protections that began on January 1, 2023. The California Privacy Rights Act (Amended by the CPRA) established a new agency, the California Privacy Protection Agency (CPPA) to implement and enforce the law. The CPPA is governed by a five-member Board. One board seat is currently vacant. The Act’s enforcement provision as it applies to the Agency appears in section 1798.185, subdivision (d) of the Civil Code. The timeline for adopting final regulations was July 1, 2022. Businesses that are subject to the CCPA are those that meet the complex criteria established by this law, including the definitions specified in Civil Code 1798.140(d) and other sections of the law and regulations. These businesses have several responsibilities, including responding to consumer requests to exercise these rights and giving consumers certain notices explaining their privacy practices. However on June 30, 2023, the California Superior Court issued a decision blocking the California Privacy Protection Agency ("CPPA" or the "Agency") from enforcing new regulations governing the collection and use of consumer data until March 2024. On March 29, 2023, the Agency’s first set of regulations under the Act were approved by the Office of Administrative Law (OAL) in twelve of the fifteen areas contemplated by Section 1798.185. The Agency concedes in the action brought by the Chamber of Commerce that it has not yet finalized regulations regarding the three remaining areas--cybersecurity audits, risk assessments, and automated decision-making technology - as contemplated by Section 1798.185. Regulations will not be finalized in these areas until sometime after July 1, 2023. The June 30, 2023 disposition of the Court in the Chamber of Commerce Action was "Enforcement of any final Agency regulation implemented pursuant to Subdivision (d) will be stayed for a period of 12 months from the date that individual regulation becomes final, as described above. The Court declines to mandate any specific date by which the Agency must finalize regulations. This ruling is intended to apply to the mandatory areas of regulation contemplated by Section 1798.185, subdivision (a). Consistent with the plain language of Section 1798.185, subdivision (d), regulations previously passed pursuant to the CCPA will remain in full force and effect until superseding regulations passed by the Agency become enforceable in accordance with the Court’s Order." In reaching its decision, the court found that the text of the CPRA "indicates the voters intended there to be a gap between the passing of final regulations and enforcement of those regulations." If the CPPA were to begin enforcing the regulations on July 1, 2023, about three months after it adopted the final regulations, businesses subject to the CPRA would have "no time to come into compliance," which "would not be in keeping with the voters’ intent." Accordingly, the court concluded that the CPPA "may begin enforcing those regulations that became final on March 29, 2023 on March 29, 2024." Nonetheless, on July 14, 2023, the California Attorney General announced an investigative sweep, through inquiry letters sent to large California employers requesting information on the companies’ compliance with the California Consumer Privacy Act (CCPA) with respect to the personal information of employees and job applicants. The Attorney General announced that he "is committed to the robust enforcement of the CCPA. And as an example, he noted that in August 2022, he announced a settlement with Sephora resolving allegations that it failed to disclose to consumers that it was selling their personal information and failed to process opt-out requests via user-enabled global privacy controls in violation of the CCPA. Moreover, he has conducted several investigative sweeps, most recently of popular mobile applications compliance with consumer opt-out requests ...

The Industrial Welfare Commission (IWC) was established in California in 1913 to regulate the wages, hours, and working conditions of women and children employed in the state. The IWC's first order, issued in 1916, established a minimum wage for women and children in the garment industry. The order also set limits on the number of hours that women and children could work per day and per week. In the years that followed, the IWC issued a series of orders covering other industries, including manufacturing, retail, and agriculture. In 1972, the California Legislature amended the Labor Code to authorize the IWC to establish minimum wages, maximum hours, and standard conditions of employment for men as well as women. The IWC promulgated a series of wage orders in 1976 and 1980. These orders were challenged in court, but ultimately upheld. In 1988, appointees of Governor Pete Wilson on the IWC repealed the "daily overtime" provisions in many of the wage orders. This change was controversial, and it was eventually reversed in 1999. The IWC is currently not in operation. The Division of Labor Standards Enforcement (DLSE) continues to enforce the provisions of the wage orders. However, the IWC has just been revived as a result of the new budget just signed into law. On July 10, Governor Gavin Newsom signed A.B. 102, the final step in moving the State Budget Act of 2023 into law. It takes effect immediately upon signing. The 2023-24 state budget includes total spending of approximately $310.8 billion, of which $225.9 billion is from the General Fund. The new budget allocates $78,650,000 "for support of Department of Industrial Relations." and Schedule (5) of that allocation provides the sum of $3,000,000 for the now dormant Industrial Welfare Commission. The allocation provisions contained the following earmark. "Of the amount appropriated in Schedule (5), $3,000,000 shall be available for the Industrial Welfare Commission to convene industry-specific wage boards and adopt orders specific to wages, hours, and working conditions in such industries, provided that any such orders shall not include any standards that are less protective than existing state law. The commission shall prioritize for consideration industries in which more than 10 percent of workers are at or below the federal poverty level. The Industrial Welfare Commission shall convene by January 1, 2024, with any final recommendations for wages, hours, and working conditions in new wage orders adopted by October 31, 2024." California Labor Code section 1178 permits the Industrial Welfare commission to convene these Wage Boards. Ultimately there is a great probability that higher minimum wages, especially in targeted industries, will be arriving by the end of next year. The back story to the resurrection of the IWC may have been minimally successful efforts to increase wages in various industries in California in previous years, such as the Fast Food Accountability and Standards Recovery Act (AB 257 - FAST Recovery Act) aimed at fast-food workers. It became law in 2022. This law was to have established the Fast Food Council within the Department of Industrial Relations until January 1, 2029, and was to be composed of 10 members to be appointed by the Governor, the Speaker of the Assembly, and the Senate Rules Committee, and would prescribe its powers. In response to this Act, California small business owners, restaurateurs, franchisees, employees, consumers, and community-based organizations announced the formation of a coalition to refer the FAST Act back to voters and suspend its implementation until they have a say in November 2024. The coalition’s effort was co-chaired jointly by the National Restaurant Association, the U.S. Chamber of Commerce and the International Franchise Association. On December 5, the coalition announced it submitted to county elections officials over one million signatures from Californians in order to prevent AB 257 from taking effect until voters have their say on the November 2024 ballot. However, Katrina S. Hagen Director, California Department of Industrial Relations, sent the coalition a letter on December 27, 2022 stating that it intends to implement AB 257 on January 1, 2023. The Local Restaurants coalition therefore filed a lawsuit on December 29, 2022, claiming that the state’s Constitution dictates that, as part of the referendum process, laws cannot go into effect until voters have an opportunity to exercise their voice and vote on the proposed legislation. The judge issued a temporary restraining order blocking the state from implementing the law while a lawsuit challenging its constitutionality is pending. However, the resurrection of the Industrial Welfare Commission by provisions of the newly approved budget may have opened a new front in this political battle. The Governor will now have to evaluate candidates and make appointments to members of the IWC. All five will be the subject of confirmation hearings in the California Senate. And staff members will be recruited and hired under the Civil Service Ace. The resurrection process will therefore take substantial time to fully make the IWC operational. Nonetheless, employers should expect efforts to increase wages statewide in the coming years from various legal and political fronts ...