Michael Rubin

Rubin practices appellate law, class actions and impact litigation. As Covid-19 spread, he took up the cause of frightened workers facing unsafe conditions at a fast-food restaurant not far from his Berkeley home.

Managers allegedly told employees to make masks out of coffee filters and dog diapers and to report to work even if symptomatic. Most were exposed to the virus, some were sickened and may have transmitted it to family members and customers, Rubin said.

"I can do remote lawyering, but my clients have to go to work. These workers were so brave and so scared." He sued, seeking and quickly winning a temporary restraining order and a ruling that the place had to close and not reopen without an 11-point list of safety improvements. Hernandez v. VES McDonald's, RG20064825 (Alameda Co. Super. Ct., filed June 16, 2020).

The effort could serve as a template for using public nuisance doctrine to enforce public health protocols during the pandemic. Rubin said. "The law has been clear for decades that if you put someone at risk of infection, that's a compensable injury."

Rubin is no stranger to the effective use of public nuisance claims. In August he won a ruling from a 9th U.S. Circuit Court of Appeals panel reversing a Northern District trial judge and letting major climate litigation against major oil companies proceed in state court, the plaintiffs' preferred venue.

The policy question of whether energy companies can be held liable for public nuisance based on production and promotion of the use of fossil fuels and can be required to spend billions on abatement is important but does not raise federal law issues, wrote Circuit Judge Sandra S. Ikuta for the panel. The opinion does not reach the merits, but will let plaintiff cities and counties have their day in court. City of Oakland v. BP PLC, 18-16663 (9th Cir., op. filed Aug. 12, 2020).

"There's no circuit split on this, so we assume the Supreme Court will deny cert," Rubin said. Judge Ikuta is on the court's right wing, so "no one will look on this as a wild-eyed liberal decision," he added.

In Texas state court, Rubin argued and won an appellate ruling establishing that the oil industry can't sue California cities and counties for having pursued such public nuisance litigation. City of San Francisco v. Exxon Mobil Corp., 02-18-00106-CV (Tx. 2d App. Dist., op. filed June 18, 2020).

Rubin got a remarkable opinion. "We confess to an impulse to safeguard an industry that is vital to Texas's economic well-being," one justice wrote. "Lawfare is an ugly tool by which to seek the environmental policy changes the California Parties desire," but "our reading of the law simply does not permit us to agree with Exxon's contention" that the suit can go forward.

"I've never seen anything like it," Rubin said. "They gave me a hard time at oral argument. I was an older balding Jewish guy in a bow tie in Ft. Worth, so I had to put on my most rational and reasonable line of reasoning."

-- John Roemer