West Coast food company work is centered. Like the other attorneys interviewed for this story, Duvall’s work has been impacted by the coronavirus. As a litigator, he would typically spend quite a bit of time in court, but the courts in Los Angeles, and many places across the country, are largely closed. He said
He also noted that the Los Angeles County court system, for example, has invested a great deal of money and time improving its video technology capabilities, ramping up the program over a three-month time period. It’s logical, Duvall said, that they will want to utilize that technology even beyond these challenging times. Erica Rosasco of McKague Rosasco Erica Rosasco is a partner at McKague Rosasco LLP in Roseville, CA, whose practice focuses on agricultural employment law. “It’s been a challenge,” she said, speaking of her legal life during a pandemic. “Normally I travel a lot, seeing clients in person or making court appearances. I have not seen a client since COVID.” She said much of the litigation work has been halted as the various stakeholders are not available. “Litigation came to a stand-still. Much of what I do now is advise and consult,” she said. “We’ve done quite a few webinars on COVID and the workplace rules surrounding it, but those seem to change every day.” She added that mediation by Zoom also appears to be less effective as one side or the other can literally, and dramatically, leave the conference, eschewing a back and forth approach and a resulting compromise agreement. which has made that legal tactic against employers proliferate. She said these PAGA suits often involve technical wage and hour violations and the threat of a class action unless a settlement is paid. She said technical violations on meal breaks, pay day regulations and hourly rates are common. Her advice is that employers need to follow both the spirit and letter of the law but she admits that technical violations are difficult to avoid. She cautioned employers against the “rogue manager” that does not follow company policy and commits labor violations. “You can’t let one employee sink your ship.” While settling is often the most inexpensive route to take in these PAGA cases, Rosasco said they will go to trial on behalf of their clients when necessary to deter what she believes are unwarranted lawsuits. She said some of these plaintiff ’s lawyers take a shotgun approach to their lawsuit filings casting a big net in the hopes of finding one big fish every once in a while. She noted that one recent case involved a payment of $2000 to the plaintiff, which included legal fees. “That was a loser. His fees had to be much greater than that,” she said. As a practical matter, Rosasco said the coronavirus has reduced the workload in some areas such as workplace violations. She said OSHA (Occupational Safety and Health Administration) does not have enough people to do inspections so there have been fewer violation citations. She worries about lawsuits filed against employers because of employees getting coronavirus, but that has not happened yet. Rosasco said much of her work involves representing farm labor contractors as they appear to be the target of much litigation including class action suits or the easier-to-file Private Attorney General Act (PAGA) suits. She explained that with a class action suit a lot of pre-work has to be done by the plaintiff ’s lawyer to find and qualify a named class action plaintiff. That is much less important in a PAGA case,
that while in-person trials and court appearances are continuing to occur for some criminal cases and in emergency situations, civil jury trials have been halted since March. But that doesn’t mean the work has stopped. “We are not going to court, but cases are still matriculating as they normally would in their early stages,” he said, noting that there are pre-trial hearings being held over the phone and via video.
There are also Zoom depositions taking place and the normal correspondence between attorneys after a lawsuit has been filed or a demand letter sent. Duvall said the demand letter is an ever-increasing tactic in the agricultural sector. It typically threatens class action status for some alleged unlawful trade practice such as inaccurate labeling of product. He said a settlement often is the result, with a payoff to the would-be plaintiff to prevent the class action from moving forward. With regard to unlawful trade practices, Duvall said increasingly the firm is seeing challenges to food label statements such as “pure, natural or healthy.” While the use of the word “organic” is regulated by the USDA’s National Organics Program, many of these other words do not have specific legal definitions, and may allow for jury interpretation, hence the potential lawsuits. He added that litigation has moved into additional areas, for example, a class action is likely to question statements about the food’s source (including where it is grown or whether it is “natural”). The plaintiff claims that your label is false, misleading or deceptive. But Duvall does not recommend that food companies avoid such phrases. They are often used because they resonate with consumers and are responsive to their demands. He advises clients to invest the time and money up front to substantiate the claim they are going to make and accept potential litigation as the cost of doing business. “When you are in the food business, you are a litigation target,” he said. “When you are threatened with a lawsuit it means you have arrived. You are big enough to be a target.” But he reiterated that it is much less expensive to conduct the research for the basis of your claim—and have a lawyer review the documentation and the label—than to hire a lawyer after the fact to mount a defense. He said a company should have test results, certifications, and other documents to substantiate their labeling statements. Considering legal life after the coronavirus, Duvall believes there will be some changes, but he relishes going back to the old ways of doing things in the litigation world. For example, he said many attorneys want to go back to in-person depositions, noting that it can be difficult to read a witness by Zoom. “There is no substitute for being face to face,” he said. He suspects trials will continue to be held in person, but if this pandemic stretches well into 2021 and continuing to delay a trial no longer makes sense, zoom trials may become more prevalent as well.
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SEPTEMBER | OCTOBER 2020
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