High-Profile Employment Appeals with Glenn Danas

Announcer  0:03 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis. Welcome, everyone.

Jeff Lewis  0:18  
I am Jeff Lewis.

Tim Kowal  0:19 
And I'm Tim Kowal. All but Jeff and I are certified appellate specialists and as uncertified podcast co hosts we try to bring our audience to trial and appellate attorneys some legal news and perspectives they can use in their practice. As always, if you find this podcast helpful, we are grateful if you recommend it to a colleague.

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Tim Kowal  1:13  
LP. All right, Jeff and today we are lucky to to bring on our guest today, Glenn Donna's to the show Glenn has argued 48 appeals and I was looking at his LinkedIn and I see that it's now upgraded to 49. He's litigated in argued 49 appeals in state and federal appellate courts throughout the country, including multiple unanimous wins in the California Supreme Court. Glen has been named among the top 100 attorneys in California by the daily journal in 2017. And California lawyer attorney of the of the Year by California Lawyer magazine in 2015. Glen has been one of the top labor and employment attorneys in California, according to the daily journal for five the five years from 2015 to 2019. Glenn regularly speaks throughout the United States and abroad on issues of appellate law class action and employment law. So Glenn, welcome to the podcast. Thanks for joining us.

Glenn Danas  2:09 
Yeah, thanks so much for having me. It's a pleasure. Now,

Tim Kowal  2:12 
if you would tell us a little bit more about your practice than what I just covered in that in that brief introduction.

Glenn Danas  2:17 
Yeah, so I have a pretty unusual practice. I think in that it's a it's a mix, it's about 60% pellet, that 40% trial district court and arbitration matters. And, you know, it's it's on the appellate side to do all the work the appellate work that my firm generates internally. And I also have a pretty active docket of cases where I represent folks outside of the firm on a range of different matters. A lot of it is in the class action space, because that's probably where I'm best known. But I also have some, you know, commercial litigation and other kinds of other kinds of matters. And then on the trial District Court side of things, it's mainly in the space of class actions. And with a real interest in mass arbitration, which was kind of a natural offshoot of other stuff that I've worked on. Given that, you know, I was working on a lot of the cases that came that were sent to arbitration after Concepcion. And then after other cases, that sort of changed the election class action litigation. So I really do have like a lot of different things going on right now. And a very, probably 35 or 40 cases on my my docket that 2025 of them appeals and the rest of the trial district court matters.

Tim Kowal  3:41 
I wonder if you tell us a little bit more about you mentioned that you you handle all the appellate matters. For the cases that come up in your firm. I wonder if you tell us a little bit about kind of maybe the percentage or the makeup of the types of cases that your your firm takes that that wind up trickling down to you for appellate matters, my my impression of because you handle plaintiff side employees side employment cases, and when those cases go up, and they become complex, and they go to trial, and then on to on to appeal, you know, when you're doing those on a contingency. You know, that's that's a big investment. And so I wonder if, if that is just what you and your firm are built for as to handling these big cases. And tell us a little bit about that. Yeah, so

Glenn Danas  4:25 
the Frogman I'm a partner, I should mention this a partner of Clarkson law firm, we're a firm of about 28 lawyers. Based in Malibu, we have offices in a couple of other places, including New York, and the firm is mainly are was founded really as a consumer class action firm. They've made their name and really specialized in FOSS labeling cases, you know, slap fill cases, other kinds of more traditional CRA UCL consumer protection cases. I came to the firm and bro With me a background and practice involving Wage and Hour and other kinds of employment matters. But the firm, you know, we've taken on a lot of different things. And the practice really has broadened for a lot of different reasons. You know, one of them being that we janeiro or litigation in California, you know, each one once was for a lot of different reasons due to, you know, mainly arbitration forced arbitration. But also due to congestion really, in the bar having been, you know, a bit saturated, with just a lot of people getting involved. So we're now working on cases in other practice areas, including, you know, data misuse, data protection, privacy. And, you know, I have a couple of cases that are now in the kind of ambit of ERISA. But, you know, getting back to your question about, you know, how we bring them, you know, most of my practices contingency, but you know, not not 100% of it, I'd say probably 80 or 90%, when I am brought on by firms, outside of my own firm to do appellate work. Often I structure the, you know, the fee agreement as being a fixed fee with a percentage of any fees that are awarded in the case, should it go back, if it was, you know, if it was a case where we were the loser below if it's reversed, or if I'm able to preserve a good rule, and below that, when it goes back, and, you know, if it resolves, then I would have some sort of percentage, so my neck is out there along with tropical cancel. So you know, I do that. So that it's kind of hedging risk. And it's also just, you know, makes it more interesting and something where, you know, again, my incentives are always, you know, well aligned with the client, and you know, especially in contingency matters.

Tim Kowal  6:58 
That's interesting. You don't hear often of appellate attorneys being able to structure a contingency? Are you able to share any any more details about how you're able to structure that or what you would recommend to another appellate attorney who is looking to structure a contingency?

Glenn Danas  7:12  
Yeah, I mean, a lot of this, I just learned sort of by trial and error. You know, I did you know, when I first started doing some matters for folks outside of my own firm, you know, I mean, just to back up a little bit, I was at a firm called capstone for eight or nine years and became, you know, I guess, well known while I was at that firm for handling some pretty high profile cases. I argued Scanlon and the California Supreme Court in 2014. And, you know, that case there was closely watched Andrew Pincus argued on the other side, a lot of a lot of folks were watching that case, because it was kind of the first kind of post Concepcion case where the plaintiffs really done anything positive. After I left Capstone, I was at Robins Kaplan for a few years as a partner, almost five years, and I started taking on some cases, you know, as, you know, as appellate counsel for my own clients, and trying to figure out how best to do that. I did some cases on a straight hourly basis. And I found that, you know, especially for, you know, since a lot of my clients, and that really being trial counsel, a lot of those folks being on the plaintiff side, we're really not used to the hourly payment method, and paying out of pocket. And we're just trying to get expectations, right, and to make sure that I was, you know, not kind of, you know, taking a bath on on a case. So, you know, started thinking about, well, maybe fixed fee is the right way, or, you know, tried that a few times. And, you know, each case is a little bit different. And it's hard to know exactly what the right fix the amount is, I kind of know, at this point, what it might be for, let's say, a petition for review, or a cert petition to the US Supreme Court, and maybe even for a writ petition and the California Court of Appeal, but on a you know, on just a regular appeal in the Ninth Circuit, or the California Court of Appeal or another intermediate appellate court, it's hard to know. So I thought, you know, the best way to do this is to make it kind of a combination where there's some percentage of the back end and that's going to depend on how big the cases you know, you know, it's about one case where did litigated since 2013. If the case settles, it's probably going to be well into eight figures. And any fee award will be quite substantial. So obviously, there I'm fine with taking a smaller percentage, if it's an appeal from let's say, a demurrer motion to dismiss and it's a case that would likely resolve if I were able to get it flipped and you know, perhaps a higher percentage makes more sense and a lower fixed fee amount so it really does depend on the kind of case and I I try and just bounce this stuff off of colleagues are often my partners and one of the reasons I like working in firm and not alone is I have people to talk to all the time about these things. And if I were solo it just be me bugging folks on Tracking, which I do, but it's it's nice to have partners and folks that I can talk to anytime a day or night about these things and get a meaningful, some meaningful input.

Tim Kowal  10:12  
Yeah, yeah. Can you suggest a kind of like a bracket percentage that you use for contingencies? Because obviously, you need to leave enough for the for for trial counsel to have enough incentive. So yeah, so as the attorney, what is the reasonable percentage to propose, I

Glenn Danas  10:27 
would say, I don't think I've ever done one, where the percentage was higher than like, 28% or so and, you know, never really lower than like, 10%. And it's, you know, it tends to be somewhere in there. I think it's possible, that would be, you know, one thing to remember. And I think one way that my practice differs a little bit from from yours is that, you know, in the class action world trials are not frequent. So, you know, if I were doing more appeals from trials, and actually how to right now, but that's the exception to the rule, most of mine are from dispositive motions, or placer rulings, occasionally, from motions to compel arbitration and different kinds of rulings on that. But, you know, and or writs, you know, and sometimes it's from mshs, or Ms. JS. But for the most part, you know, we don't do a ton of trial appeals. And if I did more of those, I think it might make sense in the right case, to have high percentage where it's really swinging for the fences, without with a low, you know, fixed portion, where maybe even no fixed portion and just go pure contingency, and just say, you know, I can have this thing flipped, you know, and revive the case from zero to something, you know, potentially substantial, then I want to be in in on that work, you know, right.

Tim Kowal  11:49 
Right. And when you said that, it made me think, yeah, If on the contrary, we were appealing from a, from an order granting summary judgment or a summary judgment. And if we win best cases, we get sent back down so that we have a shot at trial, you have to leave enough on the table. So the trial attorney has incentive to take it through. But if the whole ballgame really is like a class certification, ordered, denial of class certification, if you can turn that around, that's pretty much the ballgame.

Glenn Danas  12:16  
Yeah, I mean, I love that situation, I gotta be honest, like, I kind of like being in the class action world where I'm dealing with a lot of cases where, you know, you can come in, and you can kind of be a hero, if you can get a class cert really a bad one, you know, flipped or, you know, dimmer flipped, or, you know, an MSJ flipped or something like that, you know, trials, trials are very tough appeals, I've handled a few. And, you know, especially because of the, you know, the the standard review for factual findings. And, you know, the, I mean, it's true that there are probably many different things that one could point out on appeal from a trial. And so it gives you a broad range of issues. But, you know, a lot of them are just not good ones, and especially when you have, you know, clients who really just are, you know, in most cases, just, you know, very disappointed with the result, you know, they want to sort of appeal everything, and it's, you know, it can be very, it can be very difficult, it's also very time consuming to go through the record. And, you know, you want to make sure that you can, you know, get get sort of compensated for your time doing that, and learning what can be an extremely, you know, time consuming records learn,

Tim Kowal  13:30 
for a long time since I've been involved in a case involving classroom certification, my recollection, and so excuse my ignorance, are most of the issues discretionary, are they denodo issues on appeal?

Glenn Danas  13:42 
So it's, it's a, you know, it really depends. And, you know, I know that a lot of the issues are going to be, you know, issues of abuse of discretion, but I know that, you know, often using the wrong standard is considered to be an abuse of discretion. So it ends up being sort of a melding of the two standards, really, I mean, in other words, as a practical matter, if you can show that there was a, a, you know, pretty plain legal error, you know, that's a basis for getting it flipped. And we're, you know, if you're on the other side for showing that that didn't happen, but the, you know, on in federal court, you know, I like I love to come in and do a 23 hour petition, and try and get that taken up an interlocutory by the Ninth Circuit and deal with, you know, pure legal issues there because you have to make it sexy, you have to make it something that they're interested in and try and make it something that's not simply just regurgitation of the normal, you know, the normal kinds of gripes about a negative class or ruling the California Court of Appeal we have, you know, the, you know, the death knell doctrine, and you can get stuff taken up more easily and assuming it's appealable you know, there you really arguing about, you know, that the wrong standard was applying somewhere. And, you know, there tends to be pretty fertile ground for that, because frankly, California State court a lot of trial court rulings are not as thorough as they probably could be. And, you know, and I understand that, you know, they have much less help they have, they don't have sort of dedicated clerks, though, in the federal district courts do. And classrooms can be extremely complicated. And, you know, often I feel like, it's, it's a court just saying, sort of my gut is that this is not a good class case, and sort of working backwards from there. And that gives us a lot more, you know, basis for appeal. So, you know, I like those quite a bit. And the abuse of discretion standard is less daunting than it might be elsewhere. Okay,

Tim Kowal  15:49  
yeah, those are always good when you when you can find out, you know, find those issues that are either, you know, they can be cast as a de novo issue or where, you know, it's abuse of discretion, but, but abuse of discretion with bite, you know, something where the Court of Appeal is going to dig in, I'll take a little bit of a closer look on it. So before we leave the topic of class actions, you know, since this is kind of your meat and potatoes, are there some tips that you can give to trial attorneys who may be listening who practice in employment law and in doing class certification motions, some things that maybe when you are brought in to consult for the appeal that you look and see, I, you know, I really wish you would have made a better record on this factor, or done this or that, what are some things that you say, I wish you would have, you know, you should have done this? Well,

Glenn Danas  16:31 
so, you know, a pretty, you know, simple one is that, especially in state trial, or you know, you have to get a reporter these days, you have to order it. So, not ordering, a reporter really puts us in a bind, because, you know, often things are said during the hearings that are useful or insightful, and not having a record of those can be very difficult. You know, I guess beyond that, you know, taking the real time to put together a trial plan, you know, these days, for if you're, you know, litigating Legion, our actions really in state or federal court, and one doesn't submit a trial plan along with the, you know, the cert motion, it's very, very unlikely that you're gonna get get certified, you know, certification, the judges really are not going to certify if they think a case is on trial, to some extent, that's kind of putting the cart before the horse, you know, classification is supposed to be purely procedural, it's not supposed to depend on the merits at all, all of those things that we know, but as a practical matter, judges at this point, are just not going to certify cases that they think can ever be tried, or that you've never thought about trying. And so I would say that really putting time into figuring out, you know, how you're going to show that this case, and again, you know, that goes to the class or standard as well, you know, superiority is a factor. And, you know, one needs to show that a case is, you know, a superior to many individual cases that, you know, requires you as counsel to be able to show that the case can actually be trying, and you know that that comes up a lot. And is very challenging in cases that are like, let's say mis classification, where what an employee does all day, what each individual employee does all day, is actually something that goes into a finding of liability. So being able to show that there's, you know, predominance of issues, when you know, each individual employees sort of day to day time spent is, you know, something that actually can be done on a on a class basis is challenging. Federal Courts have almost said that sub cases are not certifiable at all. You know, in in California Court of Appeal, there are a couple of cases right now that are pending in the Supreme Court, where they're sort of looking at manageability issues and going to be this case, Estrada, which the court is going to be going to be deciding, you know, probably pretty soon, where the issue is really toxic cases whether you know, manageability or lack thereof is a reason to dismiss the case. So the really these are all just different ways of saying, you know, whether a case is manageable, whether you sort of submitted a proper trial plan is something that the courts are just going to absolutely require before they even certify.

Tim Kowal  19:33  
Okay, so so we can already tell by listening to you talk about this that that this is like a specialty within a specialty, these class actions and appeals in you mentioned earlier, you alluded to the fact that there are a lot a lot of entrance into this into this area, a lot of a lot of attorneys level it against doing Wage and Hour claims. And on the other hand, you know, you're you're going up on appeal a lot and getting a lot of high profile cases you know, argue 49 appeals, I think I read that the current streak going have like eight reversals and some major, pretty significant cases. So my question is, is your firm is the Clarkson firm doing a lot of going to meet meat and potatoes, wage and hour cases? Are you looking for these big high profile cases? Are they coming to you? Because that that's your specialty?

Glenn Danas  20:20 
Yeah. So I, I love to be brought into cases with interesting legal issues. I mean, that's what appellate lawyers like, right. So that's, that's where I live. I mean, I'm much more interested in, you know, interesting legal issues, especially ones who have, you know, first impression than I am of, you know, heavy kind of, you know, fat lean, you know, actions are ones where I'm kind of brought in to do a lot of fat gathering, you know, at our at our firm, you know, I love when people like for instance, the the point of this case, which we just got taken up by the California Supreme Court that came by, you know, a very prominent plaintiff, side employment lawyer, Cornish Aryan, Peter Javed Maundy, who is his co counsel, coming to me after they've gotten to one split California Court of Appeal ruling against them with a really, really powerful dissent. And there was like, you know, could not be more juicy for an appellate lawyer. And I said, this is, this is what I live for, I could not wait to get working on this. And, you know, a case like that, you know, is what I really love to do, I have some trial and District Court Wage and Hour actions, probably, I don't know, six or seven at this point. But even those, a lot of them are not kind of run of the mill. And a lot of that does come because you know, frankly, the days of being able to go after, you know, a large retailer for you know, for meal and respirate violations or whatever those days are, you know that that sort of cycle has run its course, and really now one is going to have an interesting Wage and Hour action, it's going to have to be something that really hasn't been done before. So I filed the case with Tico is very, a Washington DC based wage, you know, I'm sorry, plaintiff side class action firm. And, you know, we filed against Beachbody, which is a very large, you know, billion dollar plus multilevel marketing company. And the theory is that their network of sellers, who are primarily, you know, many of them are younger, single moms who are selling by, you know, over YouTube, or Instagram or Tic Toc, that those are, in fact, employees under the ABC test, which, you know, has been the law in California since 2018. And Dynamax. And, and, you know, Beachbody is has enriched itself, you know, tremendously without having to pay minimum wage, overtime, for breaks for business expense reimbursements. And it turned out, you know, on a, you know, I read a Vox article that said that most of the sellers, you know, 90% plus never make a dime profit. And most of them actually end up in the hole because they sort of spend money out of pocket that they never recoup. So I thought to myself, you know, this is really a great, a great kind of case that hasn't been brought before, it's not your standard case, it's probably going to be decided on a pure legal issue, or whether the ABC tests, and really whether there's an exemption that applies to sort of outside sellers that they can take advantage of. And if we win, it's a very substantial win and a real problem for they're pretty much their industry, for

Jeff Lewis  23:50 
a lot of different industries, not just the health industry, but a lot of industries use that model of social influencers, or when an outside sales force that could add a

Glenn Danas  23:59  
lot of ripples. Absolutely. You know, I mean, one of the one of the reasons why the multilevel marketing industry was interesting to us is because, you know, a people seldom do very well with it, and seldom are actually making a living with it. I mean, they many of them are in fact, pyramid schemes, and I know that folks have litigated against them under, you know, pyramid scheme statutes, but that's not what we're going for here. And it's also something that, you know, runs afoul of the ABC test and argue because, you know, folks are selling really through electronic means there's an exemption for folks that go door to door like Willy Loman, you know, selling nine steak knives or whatever encyclopedias, but that's not really how business is done now, and the exemption doesn't really doesn't apply to those who are selling through, you know, other than in person means. So, you know, it was a really interesting kind of theory of liability and interesting case. And, you know, that's one that we were super baked about and we have a couple of other MLMs in our crosshairs you know, and then I do have a couple that are more that are more standard, you know, but for the most part when I'm doing wage an hour, you know, we really do, I like to get involved in an appellate level and, you know, partner with firms just to help them either deal with, you know, by by, not by design, I have, you know, sort of a specialization in dealing with, you know, motions to compel arbitration. So that's something where I also, you know, can help a lot of a lot of different plaintiffs lawyers with because they're mostly dealing with those kinds of motions.

Tim Kowal  25:37 
Is the is the MLM case? Would you say? It's, that the company has beach bodies?

Glenn Danas  25:42 
Yeah, it's called beach body, and they're based in California, they, you know, do do business all over the country?

Tim Kowal  25:50 
My question, it's a California case, yeah, we

Glenn Danas  25:53 
filed in the in the California and state courts, and, you know, they are probably going to move to compel arbitration, and this is going to be one of those cases where, you know, we're probably going to fight the agreement on different grounds, you know, formation unconscionability. And, at the same time, you know, as we've signaled, and, you know, made clear, we're prepared to, to also, you know, do a mass arbitration against them. So this man, that being one that is dealing, you know, is being waged a battle is being waged on multiple fronts.

Tim Kowal  26:27 
Yeah. Thank you. I'm curious to know, your, your impression or your, your, your take on? Well, you touched on two different kind of hot button issues, the ABC test, which now, you know, that was developed as you, as you mentioned, through the Supreme Court and the dynamex decision, and then it became, it became statutory law under a B five. And since it's become a big, big lightning rod issue on in political and policy discussions, but but, again, going back to it, it, it developed out of kind of a common law type of framework. And in similar with, with with arbitration, also a very, very controversial issue. And obviously, you have you have some skin in the game, there is a is an employee's attorney you want you want us to have real court rather than having to be railroaded into into arbitration. But you also seem like a thoughtful person, you're you're a thought leader, you speak and write on a lot of these issues. I wonder your take on on these issues? Are they you know, is arbitration? Or or the ABC test? Is that is that the right call? Is it strike the right balance between protecting employees and also giving employers some some freedom to, to have the have the kind of flexibility in their workforce? Yeah, so

Glenn Danas  27:50  
I'm gonna, I'll take the ABC tests first, I think that with the number of exemptions that there are, to it, it even though it can be a little bit complicated and messy, to get one's arms around when looking at it. I do think it makes sense. Because really what we're talking about, you know, when you, you know, a lot, it's hard to divorce that from, you know, prop 22 in the world do, you know, of rideshare. But, you know, you see, company like Uber or Lyft, arguing that they're merely, you know, platforms. And they're not, in fact, in the business of providing transportation, I mean, it just doesn't pass the smell test. And that's, that's obviously untrue. And they, they had, you know, plenty of representations and advertisements and other things that came out of the woodwork that showed, of course, these are companies providing transportation, same with, you know, GrubHub DoorDash, and all those companies that are obviously in the business of delivering food, they're not just electronic platforms, their food delivery service. So when you when you have companies like that, you know, trying to argue that, you know, no, these people are not employees, I think it makes good sense to have, you know, to have the, to have the presumption or the default to be employment. And I think, you know, look, if you think about it, and it also allows for, you know, true independent contractors, true folks that are doing a different kind of work, that are not under you know, when when a guy comes to my house to reshingle, the roof, you know, I don't tell him how to do his work. I don't tell him what tools to use or whatever, he just comes over and he does his thing and all I care about is the roof gets reshingle you know, that is a true independent contractor and, you know, for a company, they have someone coming to, you know, fix the plumbing, and they're in the business of selling, you know, paper, obviously, that's not an employee, you know, and it makes sense that that person be treated differently. When you have these kind of work arounds. A lot of companies have been using to have entire workforces of independent contractors, when really, you know, the exerted a lot of control over these folks, they were in the same line of work. And because the burello test, the old common law test was so difficult to get certified and really was, was so employer friendly, it was really difficult for an employee to ever prove that they were being misclassified. As you know, as, as, as an independent contractor. I think the ABC test sort of fixes that it makes it easy. And it kind of puts the onus on the defendant to prove that this is one of those kind of rare cases, do the

Tim Kowal  30:38  
workers have any have any interest in whether they're classified as a, as an independent contractor? Or as an employee? Is there any benefit in being an independent contractor rather than an employee?

Glenn Danas  30:49  
Yeah, I think it's pretty industry specific. And look, you know, obviously, the rideshare companies, they spent the 80 or $90 million, putting on a very effective and, and, you know, comprehensive ad campaign, where they were showing and promoting the stories of people who like, and actually were doing well as independent contractors working for Uber or Lyft, that my understanding was that for every one of those folks, there were probably five people that really, you know, are living there are only doing Uber and Lyft. It's not their side hustle, or some way of, you know, complementing some other job, it became really their main job. And now you're just talking about people who work with, you know, when when they break an axle driving, they have to pay for it out of pocket, and they're paying for all their gas, it's just, you know, it is difficult, I think it's a balance that needs to be struck, and you really should listen to industry, folks, you should listen to industry folks, and people who are workers in that industry, and really see what they're saying, I would probably our legislature really listened to and I think they did, or at least tried to listen to folks who work in these industries and try and figure out which ones are properly, you know, exempt from it. Just to switch gears, and to address your question about arbitration, my feelings about that are a little bit more, you know, one sided, I, you know, the, for people who are listening who may not know, you know, the Federal Arbitration Act was passed in 1925. And it was intended to be a statute where, you know, a, you know, shipping company in Venezuela and a, you know, an importing company, in New York, if the ship went down somewhere in the ocean, they could sort of figure out, you know, who's liable, and have a, you know, an expert in the maritime industry. So to understand the customs and traditions that are specific to that industry, that had built up over the centuries, this, you know, and, you know, were these two corporate entities that come to an agreement and negotiated a contract from with arm's length, you know, from equal bargaining positions, and decided, you know, a lot of we, if the ship goes down in the Atlantic somewhere, we want an expert to come in here and decide this issue, we don't want to go to court and have a generalist who doesn't know anything about shipping, you know, have to decide to say, this dispute where it's gonna be very expensive, and blah, blah, blah, and slow and fast forward to, you know, more recent times when you know, Cheerios boxes, were attempting to put arbitration agreements on the back, or one is being slapped on literally any any product or service that you can possibly buy. And, of course, due to the advent of, you know, the Internet and Internet based businesses, where you don't even really need to sign anything where they can simply say, you know, we're rolling out a new agreement. And if you ever use our product, again, you've agreed to it, where they have a scroll wrap thing, which next time you log in, it sort of makes you read through, you know, the equivalent of 40 single spaced pages, and just hit okay, when you're trying to order your kids something from Amazon. I mean, you know, these, these are not the sorts of cases where mandatory arbitration was intended to be used. Yeah.

Tim Kowal  34:17 
I never realized that. So. So the the FAA was was passed out of the need, you know, basically, if you imagine first year law students trying to grappling with the subject matter jurisdiction, diversity jurisdiction, and try to figure out where a venue properly lies, and then the and then there's a sentence that says, Oh, by the way, the parties agreed that they're going to submit their their complaint to arbitration in the state of New York, then you you bypass all of the sticky analysis about where, where there's jurisdiction and where a venue lies, and you just go to arbitration, but now it's, as you say, it's not, it does. It's gone far beyond just those very sticky wicket issues of where, where there's jurisdiction and where venue lies. Now it's just on everything. Yeah,

Glenn Danas  35:02 
I mean, in the issue, you know, you can imagine there's a case in 2000, I think was Adams versus Circuit City where plaintiff's counsel had a chance to sort of have all of these kinds of consumer or or, you know, we, you know, sort of Abilene kind of worker, employment cases exempted from the scope of the FAA and the US Supreme Court said, No, all of that is covered by the FAA and FAA preemption will mean that any state law that sort of, you know, attempts to get in the way of enforcing those kinds of agreements is going to be deemed preempted. So, you know, fast forward to today, I think, I think the most recent study I read was that 60% of larger employers in California, use mandatory arbitration agreements, something along those lines with with class action waivers, which, of course, you know, for anyone following along from home, the class action waiver, is the real benefits to the employer and the reason they have,

Tim Kowal  36:03 
and that's to be as low as 60%, I would have thought it would be higher. Yeah,

Glenn Danas  36:08  
I think that there were, you know, surprisingly, there are some employers who, who just don't have counsel sort of updating their their documents regularly or maybe, you know, more regional,

Tim Kowal  36:19 
you know, these is a 60% of all employers or as an employer, I

Glenn Danas  36:24 
think we're 60%, actually, which is the more surprising figure and larger, like over 50 employees, or over 100 employees, maybe it's a little bit more than that now, but, you know, it's certainly a majority. And, you know, and I'm sure, in certain industries, it's even more than another's, you know, retail, it's probably, you know, 80 or 90%. You know, there's a handful of employer employers probably who've been burned with mass arbitrations, or maybe, you know, even the very rare one who thinks it's unfair, but for the most part, I think, you know, it's pretty standard for defense counsel, defense advice, counsel, to say, you know, you got to have a mandatory, you know, you got to have an arbitration agreement, here are the ways that you can ensure that it's not, you know, set aside or invalidated, and they sort of updated every few months and, you know, keeps them, you know, helps keep them in business as well,

Tim Kowal  37:17 
while on the subject of arbitration. Glenn, the California Supreme Court recently granted review and one of your cases the Fuentes case that you that you mentioned, it's a case dealing with forced arbitration, and specifically whether an arbitration agreement in six point font that's basically illegible is enforceable, or whether it even forms a valid contract in the first place under California law. Can you tell us any more about that case? And I would have guessed, it would already be settled law, that that would not be enforceable. What happened in the Court of Appeal there? Yeah.

Glenn Danas  37:46 
It's, it's an interesting one. It was, you know, California to for an agreement to be held to unconscionable it has to be both procedurally and substantively unconscionable. And you know, more of one means you can have less than the other. But basically, procedural means the the process by which the agreement was entered and substantive means whether the terms are fair or not fair. And the two to one majority, the Court of Appeal said, Well, we agree that the agreement is unreadable, but unreliability or readability only goes to procedural doesn't go to substantive. So what one has to do is engage in kind of a hypothetical evaluation of the terms if one could ever read them, and whether those are fair. And essentially, what the majority saying was that you could have an agreement that was in you know, invisible ink or in, you know, hieroglyphics or, you know, or still fair, or an Aramaic. And as long as you know, you could translate it and it would not be substantively unfair in terms of its of its actual terms, then it would not be uncomfortable and California law, you have to be able to show something substantive

Tim Kowal  38:57 
if a tree of a tree falls in the forest, and no one's around to hear it. Well, if it's still subsequently fair, then it made a sound. Yeah. And

Glenn Danas  39:04 
the dissent took the position of luck. If the agreement is unreasonable, it has to be unconscionable. I mean, you know, and you can figure that out in different ways. How the, you know, the dissents said, Look, you know, only the only the drafting party knows what it says. So if only one party knows what your agreement says, That's not bilateral. It's actually substantively unfair, not just procedurally so, you know, we're sort of making a number of different arguments. We filed our opening brief. And, you know, we also argued as the court you know, as an alternative doesn't find themselves conscionable it could find that no agreement formed in the first place, and that there was no meeting of the minds there was no mutual assent because for there to be mutual assent you know, go back to one L contracts. You know, both parties have to sort of know what the contract says and agree to it. And if you could never read it, well, you know, it's difficult to say that there was ever such a such a such a meeting of the minds.

Tim Kowal  40:01  
Yeah, the Do you Do you anticipate that Supreme Court may make? I mean, it's always going to make new law. But do you anticipate that there's going to be a change in this law about procedural and up and substantive unconscionability? And, and maybe, maybe, substantive unconscionably doesn't always have to be shown if the procedural is really is really severe?

Glenn Danas  40:23 
Yeah, I think that, you know, I mean, anything's possible, I really, you know, about a pending case, I don't want to take, you know, a firm position one way or the other. I think that there are many, there are multiple ways that the court could decide in favor of, you know, my client, without really changing the law so much as saying what the law means, and really should always have been interpreted to me, and that the court could say, if you have an agreement that's purely that's completely unreadable, you know, there is substantive and procedural unconscionability. And there are different ways that they could get it that you know, or can sidestep that issue and say, you know, what, we're not going to mess with substantive, or with unconscionability. At all, we're just simply going to decide this contract formation grounds. But I think in either case, we'll be providing a lot of guidance to the to the lower courts, especially since this agreement, apparently was one that's used by a lot of the, you know, a substantial number of car dealerships in California. Because I think that they shared drafting counsel, who had drafted this agreement, and for whatever reason, it sort of made its way into the kind of standard form car dealership employment agreement. Because, you know, there was there was a companion case, that got the side and at the same time different car dealership was basically the same agreement. And in fact, in 2019, the court of the California Court of Appeal decided the case with a very similar agreement for a different car dealership. So apparently, it's pretty common, and, you know, making it sort of more likely that we would get reviewed. And we did. Well, Glenn,

Jeff Lewis  42:08  
hundreds of lawyers every year, try to get the California Supreme Court's attention through amazing brief writing. If this is the brief, the Supreme Court wants to read, what is your secret? Or do you have any tips for getting the California Supreme Court to pay attention to your brief?

Tim Kowal  42:21  
Yeah, here the secrets, especially after you've, you've got eight reversals in a row? When I said, when I saw you had eight appellate wins in a row, I thought, Okay, well, maybe it's the respondent. But these are reversals?

Glenn Danas  42:33  
Yeah, it was it was five complete reversals and three partial, but, you know, I look, I'll say that, I think, I think there's a tendency and a lot, you know, for different reasons, especially before the California Supreme Court, for folks to forget that the court is not accorded error correction. You know, there, there is a tendency of folks to really forget what the court does, the Court of Appeal could have made terrible mistakes, and that's not a basis for getting reviewed, you really have to be able to show that there's, you know, either a conflict or a very important issue. And one of those two things needs to be there. And, you know, a mistake at the Court of Appeal is not an important issue or, or a conflict. And it's very hard by design to show this, you know, the corner, I believe, takes up only, you know, around 60 civil cases per year. So, of course, you know, it is extremely difficult to get there. So you have to show that, you know, what, there's an issue that's recurring, it's it's important, it's creating a mess below. Or the issue is one that may not be recurring. But, you know, when it does happen, is incredibly important, because it deals, you know, maybe with fundamental rights or, you know, a real kind of misuse or misinterpretation of the statute. But, you know, I will, I will also agree that, you know, there are areas there are substantive areas that are easier to get review on than others. You know, I think that if you're, you know, if you're a probate lawyer or a tax lawyer, it's probably much more difficult to get your case in front of the California Supreme Court and say, this is the one you know, of the probably one every three years that you take up, you know, that you should take up, whereas class action is for, you know, for, for whatever, for different reasons are more common in California. And, you know, the effect a lot of people sorted by definition, and, you know, you're dealing with issues that are almost more likely to be in the important bucket, just by dint of what area they're, they're sort of arising in, but yeah, I try and just stay really focused on, you know, few issues, make sure that the issues are not simply, you know, error correction issues, and make sure that they're really tethered to the kinds of cases that the court has taken before. Yeah, and you know, look and And when, you know, I came into one case that that had been briefed, but was right before arguments, the case with, you know, where Woodworth versus level into hospital where there's 158 Page tentative opinion. And you know, I probably spend more time preparing for that argument than I'd ever spent preparing for any argument I probably spent. I'd say, like, about 110 hours preparing for the argument.

Tim Kowal  45:29 
Was this the case where you got the tentative? Yeah,

Glenn Danas  45:32 
well, no. So the tentative came out before I got involved, and I then got involved and had to really spend my time looking through the tenant and trying to figure out where we could possibly, you know, get get it moved. And, you know, trial court counsel, and others, are naturally going to be wedded to the positions that they've had and want to read, we argue a lot of things. And I said, well, the argument is only 15 or 20 minutes, we really have to say, we're gonna, we're gonna take, you know, we're gonna put all of our chips on one or two boxes, and try and go for, and, you know, the place to do that, in my view, is these two issues, because these are legal issues. And these are ones where there's, you know, new law, or different things happening, and we were able to, I was happy, we were able to get the Court of Appeal to say, wait a minute, you know, we haven't really thought about that, when we drafted our opinion. And, you know, it may be the laws changed a little bit or, you know, or, or arguably has, and that's when we're gonna make, we're gonna change our decision. And, you know, it happened on two issues, we're really happy.

Jeff Lewis  46:40 
Interesting, let's dig in on that for a little bit in terms of oral argument prep,

Glenn Danas  46:43 
what do you do, you know, let's

Jeff Lewis  46:44 
say oral arguments, four weeks away, share with our audience what you do to get ready for trial. And on the big day, when you step up to the podium? Do you have a notebook? Do you have a scrap of paper? Do you have index cards? Or are you paper free?

Glenn Danas  46:56 
So I make four, I make four outlines as I start preparing. One of them is sort of the long argument outline. One is a case outline. One is an outline of statutes and rules. And the fourth one are questions and answers for things likely to be asked. And those are just like, live documents, as I'm reading the briefs and going through it and continue to go through it. And the idea is to make the outline the oral argument outline shorter and shorter and shorter. So that by the time it's like, you know, usually I'll spend, you know, let's say, we can have preparing a week preparing for the case, like this one, you know, this was 110 hours, I spent probably two weeks preparing, and my wife was, you know, not not too thrilled about me being hauled up in the in the back for 12 hours a day. But you know, I would, you know, by the time it's a day or two before the argument, I would have what's called, you know, I just sorted at the top called the short outline, and I try and make it fitted on one page. And I try and fit it on one page, I have all the questions, you know, answered. I've tried to do you know, at least one mood and make sure that I wrote down the questions and the answers that came up there. And when I get up to the podium, I'll go up with one with my one sheet short out short outline, and a legal pad, which is funny, because the first appeal the first appeal I ever argued in 2010, I have boxes of physical, you know, the there the record, and I don't know what I thought I was going to do with that. But I went down, I had two attorneys, you know, two other colleagues helping me bring it up to the podium. And, you know, I have heard horror stories of the panel asks you where something is, and you don't know, they're gonna, you know, they're gonna send, you know, a death squad out to you, or they're going to hit a button to go into, you know, go into, you know, fall beneath into a dungeon or something. And, you know, after doing it a bunch of times, it's like, oh, you know, look, I, I kind of know, so in my short outline, I'll put the record citations for the really big ticket item. If it's an appeal from a motion of arbitration, I'll put, you know, the where the record of the agreement was, or if it's, you know, if it's an MSJ appeal, you know, generally there going to be three or four snippets of deposition testimony and one or two documents that are the really big things and I'll make sure that I know where those are, and let you know in 49 arguments I've never had them as some crazy you know, incredibly Picayune, you know, esoteric piece of the of the of the record. So, you know, I suppose it's always possible but it hasn't happened. So I just go up there with the notepad and one sheet and, and try and make it so that I really, you know, reduce it to kind of things that open up a little box in my head for each point.

Tim Kowal  49:54  
Yeah, my thought put myself in the shoes of one of the justices on the panel. If I see counsel, bringing Bankers boxes to the podium. I'm thinking maybe I better start asking questions, otherwise, they're gonna start going through the bankers boxes. I don't want to know what's in there. Yeah,

Glenn Danas  50:08 
the first appeal I ever argued, actually was I had been preparing to get the partner ready. And two days before the argument, he said, You know, I'm busy, you're gonna go argue and I said, my first inclination was to say, No, you know, I, you know, that's, I can't do that. So I brought my boxes and went down there, you know, like up, like, across? Yeah, exactly. It's I think a lot of lawyers use it that way. And a lot of, you know, a lot of lawyers even experienced one still right out the whole thing. Usually not like appellate lawyers, but like experience, you know, sort of non appellate lawyers will get out there with a with like, a script, you know, and, you know, I don't find that to be helpful. And it's just, you

Tim Kowal  50:51 
know, yeah, especially if you get committed to that script, and then a, and then a judge asked you a question, you say, thank you for that question. Your Honor, I'll answer that later in my outline. Yeah.

Glenn Danas  51:01 
I mean, not nothing was worse than that, right. We always hear stories about, you know, people, you know, advocates who view the questions as a distraction, which is, you know, just just a horrible mistake, or folks that don't really understand that it's supposed to be, you know, basically a discussion. And, you know, and once you sort of, I think once one has had the experience of having these lively discussions a few times, then it's like, oh, this is like, way more fun than reading, reading a script. You know, I just had this argument in the Second Circuit, and judge Lynch was was just this guy's, you know, this judge is just brilliant. And, like, understood this case, you know, better than anybody, just probably after reading the briefs for our own media bench now. And the discussion was incredibly lively, and was really just find it interesting. And Mike Invigor.

Tim Kowal  51:53  
Tell us a little bit more about that oral argument where you got the 158 page tentative. What did that leave you to that change your opinion about the value of a tentative did a heightened your opinion about the value of the tentative? I mean, if you if you hadn't got that tentative, and you just walked into that oral argument cold, and they the judges had their minds made up? Because they had written 158 pages of opinion already, and they were set on those issues? Would you have had any chance? Do you think of turning them around on him?

Glenn Danas  52:20  
No, I don't think so. I mean, that would have been an A next to impossible case to take over without a tentative it was a case where on appeal, were five motions for summary judgment and a class or decision. So we're talking about, you know, each one of those decisions would be a full appeal on a settlement. And, you know, dealing with like, six, six separate orders and rulings. It just was, you know, overwhelming, without a tentative, I would have been really lost. You know, I love the divisions that use them. And, you know, I mean, I don't think any appellate lawyers don't love tentatives. But, you know, I wish the federal court would do that as well. And it'd be wonderful. If the other divisions, or at least it, you know, focus letters, to give you some, you know, it doesn't have to be, you know, a full a full decision, you know, it would, it would be very valuable to just say, I'm all the issues here, here are the couple we're most interested in. So at least it gives you some sense of what to prepare for, and you know, how to, to really make the argument more productive, you know, but I mean, I would have been, I would have been totally lost, and allowed me to really spend, you know, my 110 hours, maybe, you know, half of it on a couple of issues that I really wanted to get to, and the rest of it stressing about points that even though I thought there was no chance of turning them around about I'm just, you know, health helpfully, you know, appropriately scared about being unprepared to discuss.

Tim Kowal  53:59  
And the other thing I appreciate about that anecdote is that one of the reasons one of the reasons sometimes given against issuing tentative opinions is that it tends to make the justices more entrenched, more committed to their opinion. And so it's actually less likely, yes, they're more transparent, but it actually tends to calcify the the holding and make the or the the forthcoming reasoning and make the oral argument, even less, less effective. So I appreciate the electoral integrity, you know, the commitment to discourse that the justice is engaged in by issuing that lengthy, detailed, tentative, and still being open to being turned around on those issues. Yeah,

Glenn Danas  54:41  
absolutely. And look, I think that if the judge if if the court really wants if the Court of Appeal wants it to be, you know, we're concerned with, you know, wanting to be less wedded to its decisions, you know, maybe it would be helpful to not meet or conference until after argument like in the Ninth Circuit You know, I mean that that's, that's a good way to make, you know, oral argument the most, I think the most useful and sort of get the advocates the most opportunity to really, you know, think judges opinions, because then they don't know what their colleagues think they haven't really written down any kind of decision. Yeah. You know, on the California Court of Appeal, they've already met, and they already sort of have a very firm idea of where they're going. It's just a matter of whether they share that with the applicants or not.

Tim Kowal  55:28 
All right, Glenn, I had one other question or topic I wanted to broach with you. Before we conclude, I wanted to ask about and we touched on some of the some of the controversial issues that come up in employment law. And I wonder if you talk to us a little bit more about ideology and politics and how they touch upon your practice, because employment law pushes a lot of ideological and political buttons in certain cases, such as what is a fair wage or a living wage, there's diversity, equity, inclusion issues, there's the rights of unions versus rights of employers and rights of employees wishing not to unionize and rights of certain to certain medical benefits and other employment benefits, and on and on, how do these kinds of issues factor into your practice? And how you approach cases? Do you try to avoid those issues? Do you be are you selective? Do you try to lean into them? Does it depend on the panel? Or the who appointed the judge or justice? How do you approach those kinds of concerns? Yeah,

Glenn Danas  56:25  
I mean, I, I would just say, you know, me, personally, I went to Cornell school industrial labor relations. So I was actually interested in and had already had a background in labor and employment, collective bargaining, you know, traditional labor, you know, a lot of different, you know, areas that, you know, maybe a lot of folks didn't. So I was, I was already kind of interested in employment law and had ideas about unions, and you know, about, you know, fair, fair kind of wage and hour practices. And it just, you know, I wrote my alarm, you comment about Kapha. And I remember just reading congressional testimony, you know, from around 2000, when that was passed, or was being art, you know, was going through Congress, and I just found myself sort of agreeing more, or, you know, the plaintiff's arguments kind of resonating more with me. And, you know, of course, you know, there are two sides to these issues. And I understand, to some extent, you know, some of the critiques of it, but for me, it just always was, was a gut feeling of kind of fairness. I mean, there's something about the unfairness of, you know, a wage worker, you know, I mean, I've had, I worked at a record store, I worked in telemarketing. You know, when I was a kid, you know, I had these kinds of jobs, where you sort of walk in, and they just give you a sheaf of papers to fill out, you know, you have no opportunity to negotiate anything, and you're just sort of taking whatever they give you. And there's something about the, you know, the massive disparity in, you know, in bargaining power, and then situation and makes me feel like, you know, I just gravitated more to the employee side of that, you know, so for me, like, I'm happy to take cases I my favorite cases are the ones where there's a real, where if you were telling, you know, a non lawyer or relative or friend about the case, they would say, like, oh, yeah, that doesn't sound right. You know, like that, that really seems, you know, that seems really unfair. And, you know, one of the one of the big critiques of wage and hour laws that while these are, you know, technical violations, some of them don't seem, as you know, you're not talking about Upton Sinclair's The Jungle, you're talking about, you know, time shaving of, you know, a minute per shift or whatever. But, you know, there was a, you know, in the, in the camp versus Home Depot court of appeal decision, the court said, Look, you know, if you add up that time over the year, that's like, seven hours of unpaid time for an employee who is not, you know, making a ton of money, and that could be the difference between like a bus pass, or, you know, or a meal or, you know, something that's important defense, you don't have very much money. So, you know, anyway, all of that really did resonate quite a bit for me. And, and I also realized that like, I think that the best way to, to stave off abuses, you know, to the extent that there were any in the, you know, in the plaintiffs bar is for like, good, and, and, you know, sort of honest and good lawyers to be doing the work. So I just, I want to take those shots when I can, because I think I can do the sort of advocacy that is equal to, you know, the very competent counsel on the other side. So yeah, you know, and look, and it's and it's often Same in the consumer world. I mean, frankly, some of the times I've been angriest in my life, I think had been after, you know, I bought a product or service. And I'm simply trying to answer the question about it on a, you know, a telephone kind of tree, where suddenly two and a half hours have been spent trying to figure out, you know, why this why this piece of furniture was sent to me incorrectly for the third time in a row, and the fact that there's no redress, and that the companies are basically saying, we don't really care about you, you know, what are you going to do, because we all do the same thing really is bothersome, and, you know, makes me also, you know, love the opportunity to provide, you know, an avenue of redress under, you know, the consumer protection statutes. So, you know, frankly, for me, it's easy to choose what side to be on and those of those kinds of issues.

Tim Kowal  1:00:52 
All right, Glenn, and, and then let last question, if you can leave us with either like, like a war story or a lesson that you've learned, like a mistake you've seen someone else make that you'll never forget? Or we're having, or maybe trends like, what is the next big employment law trend or big case? WaterShed case? That's going to come down the pike? Any words of wisdom to leave it leave us with here?

Glenn Danas  1:01:13 
Yeah, well, you know, since this is, you know, you were talking about appellate law. And, you know, I'll talk about a couple of mistakes. Both of them had to do with oral argument, and both of them had to do with very well, well seasoned counsel, you know, one of them in front of the California Supreme Court, essentially making like a jury of, you know, you know, sort of impugning the plaintiff and saying, you know, he was at his deposition, and he didn't even know the answer to x. And, you know, I think it was, you remember, I think it was Justice Lou, just sort of like quizzically looked at him and was like, counsel, we're not, we're not in the trial court here. Like we none of that matters. And I'm thinking to myself, God, you know, like, what, what could what can seem less prepared?

Tim Kowal  1:02:03  
I also have a matter matter in the trial court, what happened in

Glenn Danas  1:02:07 
a exactly, and, you know, similarly, I saw another very seasoned counsel cut off a justice in a way that was very rude, and obviously not accidental. So those two were really real, like eye opening moments, for something that I never want to see, you know, happen for myself. You know, I look as far as, like trends and what's going on next, you know, in Lesson until Congress ever passes, legislation, you know, which I believe Al Franken introduced 13 years ago, to limit the use of mandatory arbitration agreements, in, you know, employment and consumer cases, I think that the next trend is going to continue to be mass arbitration. And, you know, the battle there is playing itself out in ways that, you know, for folks that don't practice in this area probably sound like ridiculous and very in the weeds, but, you know, we're talking about really a battle that's being waged in terms of the rules of AAA and jams and whether one can kind of aggregate many individual actions in front of these arbitration providers, whether the arbitration providers are going to force them to go unconscious, or buckets, which is something that defendants have been pushing anyways, in its entire world of mass arbitration issues. And I think that's really going to be the forefront.

Tim Kowal  1:03:32  
Okay. Well, Jeff, you know, we, as appellate attorneys were generalist and so there's a lot of areas of law that I don't cover, and then when it comes across my plate, you know, I dig into it and just find what there is to know about it. But when it comes to employment class action cases, there is an iceberg lurking under the surface. I'm going to be calling Glen Donna's, if I ever have a one of those come across my desk. But I think that's in our

Jeff Lewis  1:03:59 
streak of interviewing appellate lawyers who are hostile to arbitrations continuous.

Glenn Danas  1:04:04 
Excellent. Love to hear that.

Tim Kowal  1:04:08  
All right, Jeff, that's gonna wrap up this episode. Again, we want to thank casetext for sponsoring the podcast each week, we include links to the cases we discussed from casetaxt's daily updated database of case law, statutes, regulations, codes, and more listeners in the pocket of the podcast will enjoy a special discount on casetaxt's basic research when they visit case text.com/scalp That's casetaxt.com/calp. And if you have suggestions

Jeff Lewis  1:04:33 
for future episodes, and you want us to read it, send us an email in more than six font type and we'll go ahead and read that send it to info at cow podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal  1:04:47 
All right, thanks again. Glenn. Dona's you have

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