Misty Murray

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Misty Murray is a senior associate in Barger & Wolen’s Los Angeles office, and has been with the firm since 1998. Ms. Murray handles a diverse range of business and insurance litigation issues in the state and federal courts. Ms. Murray has extensive experience counseling and defending insurance companies in the areas of unfair competition, class actions, insurance bad faith, managed care, insurance coverage, ERISA, agent and broker liability, and FINRA (formerly called NASD) disputes. Ms. Murray has also handled numerous appeals at the state and federal level.
During her tenure at Barger & Wolen, Ms. Murray has litigated hundreds of cases and her extensive experience enables her to provide exceptional legal representation and counsel in both pre- and post-litigation matters.
Ms. Murray is admitted to practice before all California state courts as well as the United States District Court for the Central, Southern, Eastern and Northern Districts of California and the Ninth Circuit Court of Appeals.
Ms. Murray’s representative matters include:

  • Successfully defending life, health and disability insurers from bad faith allegations and claims for punitive damages.
  • Successfully defending insurance companies and welfare benefit plans in claims for ERISA benefits and breach of fiduciary duties under ERISA in individual cases and class actions.
  • Defeating class certification on behalf of life, health and disability carriers sued for unfair business practices and other violations of California law.

Articles By This Author

SCOTUS DECIDES: Three-Year Contractual Limitations Period Enforceable in ERISA LTD Plan

In Heimeshoff v. Hartford Life & Acc. Ins. Co. the United States Supreme Court held that a contractual limitations period in an ERISA long-term disability plan was enforceable and began to accrue before the administrator had made a final determination on the claim because the three-year limitations period was reasonable. 

In other words, under the terms of the Plan, the contractual limitations period commenced before a final benefit determination was made and before the claimant had exhausted her administrative remedies under the Plan.

The Plan at issue provided as follows: “Legal action cannot be taken against The Hartford . . . 3 years after the time written proof of loss is required to be furnished according to the terms of the policy.” As to proof of loss, the Plan required that “[w]ritten proof of loss must be sent to The Hartford within 90 days after the start of the period for which The Hartford owes payment.”  

Thus, the Plan provided that the limitations period would begin to run before any final determination on the claim was made and before the Plan’s administrative remedies were exhausted.

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Patient Protection and Affordable Care Act of 2009 Now in Effect

By Larry M. Golub and Misty A. Murray

On March 23, 2010, President Obama signed the Patient Protection and Affordable Health Care Act of 2009 (“PPACA”) into law. (After the amendments made March 30, 2010, the law is referred to as The Affordable Care Act.) 

While Republicans in Congress vow to repeal such enactment, key aspects of the PPACA went into effect on September 23, 2010, which marks the six-month anniversary of the legislation. 

Although the following list is not exhaustive, here are some of the more notable changes in the health care reform law (effective September 23, 2010) that will apply to individual and group health plans:

Coverage Changes

No Lifetime or Annual Limits on Essential Benefits:

Health plans may not contain lifetime limits on the amount of benefits that will be provided for essential benefits. No regulations have yet been issued regarding the definition of “essential benefits, which in general include, but are not limited to, ambulatory patient services, emergency services, hospitalization, maternity and newborn care, prescription drugs, laboratory services, preventive and wellness services, and chronic disease management.  As for annual limits, for plan years beginning before January 1, 2014, the Department of Health and Human Services’ (“HHS”) interim regulations adopt a three-year phase-in approach of removing annual limits on essential health benefits. For more information, click here.

Anti-Rescission Rules:

Health plans may not rescind, i.e., retroactively cancel coverage, except in cases of fraud or intentional misrepresentations of material fact. These rules do not apply to prospective cancellations or any cancellation due to failure to timely pay premiums.

Mandatory Preventative Health Care Services:

Health plans must provide benefits without cost sharing (i.e., no co-payments, deductibles or co-insurance) for certain preventative services, including, but not limited to, immunizations recommended by the CDC, as well as preventative care and screening for infants, children and adolescents and for women as recommended by the Health Resources and Services Administration. Grandfathered health plans are exempt. (A grandfathered health plan is a group health plan that was created – or an individual health insurance policy that was purchased – on or before March 23, 2010, and a health plan must disclose in its plan materials whether it considers itself to be a grandfathered plan.) 

Extension of Adult Dependents Coverage:

For health plans that elect to provide dependent coverage, such coverage must be extended to adult children up to age 26.

No Pre-existing Condition Exclusions for Children:

Health plans may not impose any preexisting condition exclusions for children 19 and under. (Grandfathered plans are exempt.).

Patient Protection Changes

Right to Choose Primary Care Provider (“PCP”):

For health plans that require designation of a PCP, the patient must be allowed to designate any participating PCP accepting new patients. For children, any participating physician specializing in pediatrics can be designated as the child’s PCP and, for women, any participating OB-GYN can be designated as a PCP.

Coverage for Emergency Services:

For health plans that provide coverage for emergency services, such plans must do so without requiring prior authorization and regardless of whether the provider of emergency services is a participating provider. Emergency services provided by a non-participating provider must also be provided at the same level of cost-sharing as would apply to a participating provider.

Appeals Process:

Group plans must provide for an internal appeals process that complies with the U.S. Department of Labor regulations and individual plans must provide an internal appeals process that comports with the standards established by the Secretary of Health and Human Services. Both group and individual plans must also provide for an external appeals process that complies with applicable law or at a minimum with the NAIC Uniform External Review Model Act.

Additional health care reform changes will continue to take effect in 2010 and as late as 2018. More information about the PPACA can be found on the National Association of Insurance Commissioners (NAIC) website here.

For additional information on ERISA plans and the PPACA, the U.S. Department of Labor has posted information on its website here.

For additional information on the PPACA and individual policies and nonfederal governmental plans, the HHS has posted information on its websites here and here.

California Supreme Court Holds that Zip Codes Constitute "Personal Identification Information" under the Song-Beverly Credit Card Act, Triggering a Flurry of Consumer Lawsuits

by Misty A. Murray and Larry M. Golub

In Pineda v. Williams-Sonoma Stores Inc., 2011 Cal. LEXIS 1355 (February 10, 2011), the California Supreme Court addressed the issue of whether a person’s zip code constitutes “personal identification information” under the Song-Beverly Credit Card Act of 1971, Cal. Civ. Code §§ 1747 et seq. (Credit Card Act). 

The Court held that it did, and that its holding operated retrospectively, triggering numerous lawsuits since the Court’s decision a week ago.

The Credit Card Act was enacted to protect consumers from unfair business practices during credit card transactions. Relevant to the Court’s decision is section 1747.08 of the Credit Card Act, which prohibits businesses from requiring consumers to provide "personal identification information" during credit card transactions and then recording that information. Cal. Civ. Code, § 1747.08(a)(2).

Pineda brought an action against Williams-Sonoma, asserting violations of the Credit Card Act, unfair competition laws and invasion of privacy, based on the fact that the retailer asked Pineda for her zip code during a credit card transaction, recorded that information, and then used that information to obtain her undisclosed address from a database in order to market its products and sell her private information to other businesses. 

Williams-Sonoma argued that a zip code does not constitute "personal identification information" under section 1747.08. 

The trial court agreed and the Court of Appeal affirmed, relying on Party City Corp. v. Superior Court (2008) 169 Cal.App.4th 497, which held that a zip code, without more, is not “personal identification information” as defined in the Credit Card Act.

The California Supreme Court disagreed and held that:

personal identification information, as that term is used in section 1747.08, includes a cardholder’s ZIP code.” 

In reaching its decision, the Court first noted that section 1747.08, subdivision (b) defines “personal identification information” as

information concerning the cardholder, other than information set forth on the credit card, and including, but not limited to, the cardholder's address and telephone number."

Further subdivision (a) precludes the person who accepts a credit card for business transactions from requesting or requiring

as a condition to accepting the credit card as payment in full or in part for goods or services, the cardholder to provide personal identification information, which the person, firm, partnership, association, or corporation accepting the credit card writes, causes to be written, or otherwise records upon the credit card transaction form or otherwise.”

The Court expressly rejected the lower court’s reasoning that because a zip code pertains to a group of individuals who live within that zip code, and thus not specific to the individual consumer, it is not “personal identification.”  The Court reasoned the Legislature intended to include components of the address, such as the zip code.  

The Court also emphasized that a zip code, as well as other information that might pertain to individuals other than the cardholder, such as the name of the street where the individual lives, constitutes information that is unnecessary to the sales transaction but that can be used with other information, such as the cardholder's name, to locate the complete address and use it for other business purposes – conduct which is expressly prohibited by the Credit Card Act.

The Court enunciated several reasons for adopting a broader reading of the term “personal identification information.” A broader interpretation:

  1. is consistent with the general rule that “courts should liberally construe remedial statutes in favor of their protective purpose.” 
  2. is consistent with section 1747.08, subdivision (d), which permits businesses to "requir[e] the cardholder, as a condition to accepting the credit card . . . to provide reasonable forms of positive identification, which may include a driver's license or a California state identification card, ... provided that none of the information contained thereon is written or recorded." 
  3. was consistent with the Legislative intent of the Credit Card Act, which was “intended to provide robust consumer protections by prohibiting retailers from soliciting and recording information about the cardholder that is unnecessary to the credit card transaction.” 

In its concluding sentences, the Court rejected the argument that the statutory penalties that could be imposed under the Credit Card Act rendered the Court’s decision a violation of due process. The Court noted that the amount of the statutory penalty rested within the sound discretion of the trial court and that the Act expressly sets maximum penalties for each violation; thus actual penalties imposed could be negligible. 

The Court also rejected the argument that the statute was unconstitutionally vague and thus required prospective application. To the contrary, the Court found that Section 1747.08 provided “adequate notice of proscribed conduct” and that there was no “basis to depart from the assumption of retrospective operation.” 

Not surprisingly, since the Court’s decision on February 10, 2011, a flurry of class action lawsuits have already been filed in California and more litigation is expected to follow.

No Certification in Massive Wal-Mart Class Action

By Larry M. Golub and Misty A. Murray

On June 20, 2011, the United States Supreme Court issued its long-anticipated decision in Wal-Mart Stores Inc. v. Dukes et al., 564 U.S. ____ (2011), decertifying a class of 1.5 million female Wal-Mart employees who alleged that they were discriminated against on the basis of their sex and were denied equal pay and promotions. Justice Scalia issued the majority opinion, parts of which were joined in by all nine Justices. 

The proposed nationwide class in Wal-Mart consisted of

[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and management track promotion policies and practices.” 

The three class representatives did not allege that Wal-Mart had an express corporate policy of discrimination, but rather that local managers had broad discretion over pay and promotions and exercised that discretion disproportionately in favor of men and that the corporate culture permitted bias against women. 

The primary evidence of the alleged uniform corporate practice consisted of statistical evidence of salaries and promotions heavily favoring male employees and anecdotal reports of female employees, along with the testimony of a sociologist who conducted a “social” analysis of Wal-Mart’s corporate culture. 

The requested relief sought an injunction to prohibit Wal-Mart’s discriminatory practices, and also a claim to recover back pay.

The District Court certified the class, finding that the class met the threshold requirements of Federal Rule of Civil Procedure 23(a)(2) that are required for all class actions, and then the requirements of Rule 23(b)(2), which requires that the

party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” 

In other words, a Rule 23(b)(2) class is typically limited to injunctive or corresponding declaratory relief.

A divided en banc Ninth Circuit panel affirmed the trial court ruling, finding that the commonality requirement was met and that the back pay claim did not predominate over the injunctive relief request.

The Ninth Circuit also found that the class could be manageably tried and that Wal-Mart would not be denied its right to present statutory defenses because the District Court could permit Wal-Mart to present individual defenses to randomly selected sample cases. 

The United States Supreme Court granted a writ of certiorari on December 6, 2010, and we reported on that event. The Court limited its review to whether claims for monetary relief could be certified under Rule 23(b)(2) and, if so, under what circumstances.

In this week’s ruling, the Supreme Court reversed the Ninth Circuit’s decision and decertified the class. Writing for five of the nine members of the Court, Justice Scalia first found that common issues were lacking under Rule 23(a)(2). Under that part of Rule 23, the Court reiterated that

“[c]ommonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury,’” (citation omitted) and that the plaintiff’s “common contention . . . must be of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” 

The majority opinion further advised that

“Rule 23 does not set forth a mere pleading standard,” but an affirmative demonstration that each of the components of that rule have been met after the trial court has made a “rigorous analysis,” which frequently “will entail some overlap with the merits of the plaintiff’s underlying claim.”

With respect to the case before it, the majority opinion explained that “‘significant proof’ that Wal-Mart ‘operated under a general policy of discrimination’” was “entirely absent here.” It also observed that the testimony of plaintiff’s sociologist as to his analysis if Wal-Mart’s corporate culture was “worlds away” from “significant proof that Wal-Mart operated under a general policy of discrimination.” 

The opinion found that the statistical and anecdotal evidence “falls well short” and even if such evidence was taken at face value, it was “insufficient to establish that respondents’ theory can be proved on a class wide basis” or that “one named plaintiff’s experience of discrimination” was sufficient “to infer that ‘discriminatory treatment is typical of [the employer’s employment] practices.” 

Given the lack of proof of a uniform corporate practice, the commonality requirement of Rule 23(a)(2) was lacking.

The majority opinion also concluded that the back pay claims were improperly certified under Rule 23(b)(2) because claims for individualized monetary relief do not satisfy the Rule’s requirement that a single injunction or declaratory judgment provide relief for the entire class. 

Here, given the individualized nature of each employee’s claim, individualized proof of damages as to back pay would be required, making the class unmanageable under Rule 23(b)(2). Rather, Justice Scalia wrote, “we think it clear that individualized monetary claims belong in Rule 23(b)(3)” and the “procedural protections attending the (b)(3) class.” 

The minority opinion, joined in by four Justices, only agreed with the second basis for the majority opinion’s ruling, and expressly dissented from the finding that there was no commonality. Writing for the concurring/dissenting opinion, Justice Ginsburg observed:

“The evidence reviewed by the District Court adequately demonstrated that resolving those [gender discrimination] claims would necessitate examination of particular policies and practices alleged to affect, adversely and globally, women employed at Wal-Mart’s stores.  Rule 23(a)(2), setting a necessary but not a sufficient criterion for class-action certification, demands nothing further.”

Justice Ginsburg also would have remanded the case to the trial court to determine if plaintiffs could have complied with the requirements for monetary claims under a Rule 23(b)(3) class, but observing that the majority opinion “disqualifies the class at the starting gate, holding that the plaintiffs cannot cross the ‘commonality’ line set by Rule 23(a)(2).”

In the few days since the Supreme Court issued the Wal-Mart decision, numerous legal and non-legal commentators have expressed their opinion as to the reach of the decision, with some bemoaning the purported demise of class action litigation and others observing that the decision can be limited to its facts and the employment context. Time will tell whether the Wal-Mart decision substantially alters the nature of class litigation.

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