Metropolitan News-Enterprise


Friday, July 7, 2012


Page 11



LGBA, Other Bar Groups, Celebrate Fitzgerald’s Appointment



Los Angeles City Hall Tower was jam-packed on June 28 when the Lesbian and Gay Bar Association, the Asian Pacific City Attorney’s Association, and eight co-sponsoring bar groups staged a “welcome reception” for newly appointed U.S. District Court Judge Michael Fitzgerald of the Central District of California.

Other groups participating were the Asian Pacific American Women Lawyers Alliance, the Irish American Bar Association, the Italian American Lawyers Association, the Japanese American Bar Association, the Los Angeles County Bar Association, the Mexican American Bar Association, the Women Lawyers Association of Los Angeles, and the Southern California Chinese Lawyers Association.

Among Los Angeles Superior Court bench officers in attendance were Judges David Cunningham, Randolph Hammock, Malcolm Mackey, and Mary Ann Murphy and Referees Steve Berman and Cynthia Loo.

Audrey Collins, chief judge of the U.S. District Court for the Central District of California, was also among the well-wishers.

The foie gras ban in California—which went into effect on Sunday—is being challenged in the United States District Court for the Central District of California.

The ban affects a variety of items derived from force-fed birds, according to complaint filed by attorney Michael Tenenbaum (a former member of the State Bar Board of Governors) on behalf of a Canadian and a New York producer of products from ducks.

Brought as a civil rights action under 42 USC §1983, the complaint seeks declaratory and injunctive relief.

The complaint in the case, Association des Éleveurs de Canards et D’Oies du Québec v. Kamala J. Harris, says, in a statement of “Nature of the Action”:

2. A California law concerning the feeding of birds takes effect on July 1, 2012. Sections 25980 through 25984 of the Health and Safety Code (the “Bird Feeding Law”) make it a violation of state law—with civil penalties of up to $1,000 for each violation per day—for a person to “force feed a bird for the purpose of enlarging the bird’s liver beyond normal size.” The statute defines “force feeding” as using a process that causes a bird “to consume more food than a typical bird of the same species would consume voluntarily.” In practice, the vagueness of this purported standard makes it impossible for anyone to know at what point a particular bird has been fed “more food” than the Bird Feeding Law allows.

3. Section 25982 of the Bird Feeding Law goes far further, however, in also prohibiting the sale of any product in California “if it is the result of” such feeding, no matter where in the world the particular bird was fed. In so doing, the Bird Feeding Law imposes strict liability—crushingly strict liability, at the rate of $1,000 per sale per day—on distributors, restaurants, and others in the stream of commerce who, when they sell a product of a duck, for example, cannot possibly know what the particular duck from which it was produced had been fed throughout its lifetime.

4. If this law remains in effect and is deemed to apply to Plaintiffs, then California will become the only place in the world where the sale of, for example, foie gras—and every other product that is “the result of” ducks raised for their livers, including duck breast, duck fat, and even duck feathers—would be banned within its borders. As a result, the Bird Feeding Law destroys both the retail and the wholesale markets for the sale of duck products in California and places a substantial burden on interstate and foreign commerce. It does this without advancing any local interest (let alone a legitimate one) of protecting the citizens of California—or even of protecting any California duck.

5. Plaintiffs seek a declaratory judgment that section 25982 of the California Health and Safety Code is unconstitutional as applied to Plaintiffs. The Bird Feeding Law violates the Due Process Clause of the United States Constitution because it is unconstitutionally vague and because it unconstitutionally penalizes innocent conduct without the requirement of any mens rea. The Bird Feeding Law also violates the Commerce Clause of the United States Constitution because it excessively burdens interstate commerce while advancing no legitimate local interest. The Bird Feeding Law similarly burdens foreign commerce and interferes with the supreme power of the federal government to negotiate with foreign countries, such as it has with Canada under the North American Free Trade Agreement (the “NAFTA”), for its duck products to be freely sold into the entire American market.

6. Plaintiffs also seek a preliminary and permanent injunction prohibiting enforcement of section 25982 of the California Health and Safety Code.

The Antitrust and Unfair Business Practices Section of the Los Angeles County Bar Association will present a program on July 16 titled, “Is There Consumer Class Action Life after Concepcion and Dukes?”

It is subtitled, “One Year Later: The View of the Bench and Bar about the Impact of AT&T Mobility, LLC v. Concepcion and Wal-Mart Stores, Inc. v. Dukes.

Two Los Angeles Superior Court judges and three attorneys in private practice lawyers will discuss the impact on consumer class actions in California of the two U.S. Supreme Court decisions handed down last year.

Concepcion, decided April 27, invalidated a California rule barring class action waivers in mandatory arbitration agreements. Dukes, filed June 20, reversed a California district court’s certification of a 1.5 million member class of female employees alleging gender discrimination by Wal Mart on the ground that discrimination by individual store managers, as the result of an exercise of discretion, would not give rose to a class action based on a supposed national policy.

Participating in the discussion will be Los Angeles Superior Court Judges William F. Highberger J. and Anthony J. Mohr and attorneys Michael Hennigan of McKool Smith Hennigan, Darrel J. Hieber of Skadden, Arps, Slate, Meagher & Flom LLP, and Virginia F. Milstead of Skadden Arps Slate Meagher & Flom LLP.

Milstead will act as moderator, and her firm’s offices—located at 300 South Grand Ave., Suite 3400— will be the venue for the event.

Registration will take place from 5-5:30 p.m., dinner will be served at 5:30 p.m., and the program will take place from 5:30-7:30 p.m., with two hours of MCLE credit offered.

Costs vary—from free for CLE+ members who don’t eat to $130 for “All Others With Meal”—with 11 categories. Reservations and price quotations are available by telephoning (213) 896-6560.


Copyright 2012, Metropolitan News Company