Private Attorneys General Act Review – 2023 - Report - Page 13
D.
What’s Next?
In her concurrence, Justice Sotomayor expressly opened the door to two potential
solutions to the majority opinion. She suggested that, in its analysis of the parties’
contentions, the Supreme Court detailed “several important limitations on the
preemptive effect of the [FAA],” meaning that “California is not powerless to address its
sovereign concern that it cannot adequately enforce its Labor Code without assistance
from private attorneys general.” Id. at 1925. First, she suggested that, if the majority
was incorrect in its understanding that the plaintiff lacked “statutory standing” under the
PAGA to litigate her “non-individual” claims separately, “California courts, in an
appropriate case, will have the last word.” Second, alternatively, Justice Sotomayor
opined that “the California Legislature is free to modify the scope of statutory standing
under the PAGA within state and federal constitutional limits.” Id. at 1925-26.
Although the California State Legislature has not taken action, on July 20, 2022, the
California Supreme Court granted review in Adolph, et al. v. Uber Technologies, Inc.,
No. G059860, on the question as to whether an aggrieved employee, who agreed to
arbitrate claims under the PAGA that are “premised on Labor Code violations actually
sustained by” the aggrieved employee, maintains standing to pursue “PAGA claims
arising out of events involving other employees” in court or in any other forum agreed by
the parties. The California Supreme Court is likely to issue a decision on these
questions in 2023.
In the meantime, despite the U.S. Supreme Court’s ruling in Viking River, many
plaintiff’s attorneys have requested, and many California courts have granted, stays of
representative claims, rather than dismissals, likely in order to preserve tolling in the
event that the California Supreme Court fashions a rule that permits them to proceed
with representative claims.
II.
Key Rulings In PAGA Actions In 2022 and 2023
The significant decisions in 2022 and early 2023 can be grouped into several
categories, discussed below.
A.
Viking River Cruises’ Impact
In June 2002, the U.S. Supreme Court provided clarity regarding the arbitrability of
claims brought under PAGA in Viking River Cruises, Inc. v. Moriana, et al., 142 S. Ct.
1906 (2022). The Supreme Court explained that PAGA actions are severable into
individual and non-individual claims, and employees with enforceable arbitration
agreements must pursue their individual PAGA claims in arbitration. The Supreme
Court further held that arbitration agreements cannot foreclose non-individual
representative claims, but those claims nevertheless should be dismissed for lack of
standing once an individual claim is pending in arbitration.
i.
Background
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© Duane Morris LLP 2023
PAGA Litigation Review – 2023
