Limits Review to “PAGA Standing” Issue Addressed by U.S. Supreme Court in Viking River Cruises
August 1, 2022 – The California Supreme Court unanimously granted review in Adolph v. Uber Technologies, Inc. on July 20 2022 and, on August 1, 2022, limited that review to a single issue: whether a plaintiff seeking civil penalties on behalf of the State under California’s Labor Code Private Attorney General Act (“PAGA”) loses standing to pursue such penalties based on Labor Code violations committed against other aggrieved employees if she has been compelled to “individual” arbitration of her clam for PAGA penalties based on violations committed against herself.
This is an important issue affecting millions of Californians because the U.S. Supreme Court in mid-June 2022 – reaching out at the end of its decision in Viking River Cruises, Inc. v. Moriana, 142 S.Ct. 1906 (2022), to decide an issue of state law that was neither briefed nor argued – held that under California law, a PAGA plaintiff does lose standing under those circumstances.
Altshuler Berzon LLP was co-lead counsel in the Supreme Court for plaintiff Angie Moriana and is lead counsel for plaintiff Erik Adolph in the California Supreme Court.
Adolph’s argument to the California Supreme Court starts with Justice Sonia Sotomayor’s concurrence in Viking River, which stated that she was joining the five-member majority with the understanding that if the Court’s characterization of California standing law was mistaken, the California state courts were fully capable of correcting that mistake. Adolph’s briefs to the California Supreme Court will explain why the Viking River majority was mistaken about California law, and why the text, purposes, and legislative history of PAGA, which the California Supreme Court already construed on a closely related issue of standing in Kim v. Reins International California, Inc., 9 Cal.5th 73 (2020), establish that a PAGA plaintiff does not lose standing if required, as a matter of Federal Arbitration Act preemption, to split her representative claims for PAGA penalties between a arbitral and a judicial forum.
Briefing in Adolph is expected to be completed by late 2022.