Court Grants Final Approval to Settlement of Pay Equity Class Action Against Google Providing $118 Million in Class Monetary Relief and Comprehensive Injunctive Relief

On October 25, 2022, San Francisco Superior Judge Andrew Y.S. Cheng granted final approval to the settlement and consent decree in the pay equity class action against Google in Ellis v. Google LLC.  The settlement covers approximately 17,200 female employees in 236 job titles (“covered positions”) in California since September 14, 2013.  The class members challenged Google’s practices of paying women less than men in the same job codes and assigning women to lower-paying salary levels than men with similar education and experience based on women’s lower pay at previous employers.

Under the settlement, Google will pay $118 million in monetary relief and provide three years of injunctive relief.  As part of the injunctive relief, Google will retain an expert in Industrial Organizations psychology to improve its leveling process so that it does not rely on prior pay in setting salary levels and instead focuses on education, experience, and skills. Google will also retain a labor economist to ensure that persons who perform substantially similar work are paid the same.

Altshuler Berzon LLP and Lieff Cabraser Heimann & Bernstein, LLP serve as Class Counsel. 

S.F. Judge Remands Oakland and San Francisco Climate-Deception Cases

Vacates Prior Dismissal of Four Defendants on Personal Jurisdiction Grounds

Oct. 24, 2022 – After five years of procedural wrangling at all three levels of the federal court system, Judge William Alsup of the U.S. District Court for the Northern District of California today remanded to state court two “climate-deception” cases, which were filed in 2017 by the City of Oakland and City and County of San Francisco. Judge Alsup also vacated his 2019 order dismissing four of the five oil-and-gas-company defendants on personal jurisdiction grounds, to enable the parties to litigate in state court on a “clean slate.”

Altshuler Berzon LLP, along with co-counsel from Sher Edling and the Oakland and San Francisco City Attorneys’ offices, are counsel for the public entity plaintiffs, suing on behalf of the People of the State of California.

The underlying lawsuits pleaded a single cause of action for public nuisance against five of the country’s largest energy companies, alleging that the defendants had undertaken a half-century long campaign to promote disinformation and discredit scientific evidence about the impacts of fossil fuel combustion on global warming. In 2019, Judge Alsup denied the People’s motions to remand the cases to state court, dismissed the four non-California-based defendants on personal jurisdiction grounds, and dismissed the People’s remaining claims for failure to state a claim under “federal common law.” The Ninth Circuit reversed and the Supreme Court denied certiorari. On remand, and in light of appellate decisions by the Ninth Circuit and other circuits in several related cases, Judge Alsup agreed with the People that these cases belong in state court, where they were initially filed, and that in the absence of federal subject matter jurisdiction, it is best for the state courts, not the federal court, to decide the personal jurisdiction issues in the first instance.

The remand order has been stayed pending the defendants’ threatened further appeal to the Ninth Circuit and those same defendants’ recently filed certiorari petitions in other related climate-deception cases that the federal appellate courts also remanded.

Altshuler Berzon LLP Attorneys Urge State Courts to Reject U.S. Supreme Court’s Mistaken Understanding of State Law Issues in Viking River Cruises v. Moriana

Briefing on Remand to State Court Highlights Errors in Supreme Court Majority’s Analysis

Oct. 20, 2022 – Hoping to transform an 8-1 initial loss in the Supreme Court into a complete victory in the state courts, Altshuler Berzon LLP and its co-counsel today urged the California Court of Appeal on remand from in Viking River Cruises, Inc. v. Moriana, 142 S.Ct. 1906 (2022), to reject the Supreme Court majority’s holdings on two critical issues of state law. If plaintiff succeeds, the result will be a far-reaching victory not only for plaintiff Angie Moriana and the rest of Viking’s commissioned salespeople in California, but for workers throughout the State.

In Viking River Cruises, the Supreme Court began by rejecting each of the employers’ principal arguments, thereby upholding against Federal Arbitration Act (“FAA”) preemption challenge the California rule invalidating clauses in arbitration agreements that prohibit workers from pursuing statutory claims under California’s Labor Code Private Attorneys General Act (“PAGA”). Instead of ending there, however, the Supreme Court went on to decide two exclusively state law issue: (1) construing the severability clause in the arbitration agreement as requiring plaintiff to split her PAGA claim in two, pursuing her claim for “individual” relief in arbitration and her claim for “non-individual” relief in court; and (2) declaring that once the PAGA plaintiff was compelled to arbitrate her “individual” PAGA claim, she lost standing to litigate the remaining “non-individual” component of that claim in court.

Plaintiff’s brief on remand to the Court of Appeal pointed out that if the Supreme Court’s ruling were right, the arbitration agreement would be unenforceable because its effect would be to strip plaintiff or her right to pursue the most significant, “non-individual” component of her PAGA claim—in violation of the very California rule that the Court had upheld against FAA-preemption challenge. Plaintiff then pointed out that the Court’s ruling was not right, both because the arbitration agreement could not fairly be construed as requiring plaintiff to arbitrate any portion of her PAGA claim and, even if it did, the California Supreme Court’s unanimous decision in Kim v. Reins International California, Inc., 9 Cal.5th 73 (2020), established that PAGA standing has only two requirements: that plaintiff be an “employee” who was “aggrieved” by a Labor Code violation committed by her employer, and that plaintiff satisfied those requirements whether her PAGA action proceeded in one forum or two.

Oral argument has not yet been scheduled.

Altshuler Berzon LLP Attorney Matthew Murray Argues in Alaska Supreme Court

On October 13, 2022, Altshuler Berzon LLP partner Matthew Murray presented oral argument before the Alaska Supreme Court on behalf of the Alaska State Employees Association (ASEA) in State of Alaska v. ASEA. The case involves a challenge to the Alaska executive branch’s announcement in 2019 that the State would stop honoring public employees’ voluntary union membership and dues deduction authorization agreements. The Anchorage Superior Court granted a temporary restraining order and preliminary injunction against the State’s plans, and subsequently granted summary judgment to the union, holding that the State and members of the executive branch had breached the State’s contract with ASEA and the accompanying covenant of good faith and fair dealing, and had violated multiple provisions of Alaska’s Public Employee Relations Act (PERA) and Administrative Procedures Act (APA). The court also rejected the State’s argument that it was required to violate state law by the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME Council 31. The State appealed to the Alaska Supreme Court.

News coverage of the argument is available here.

Video of the argument is available here.

ASEA’s brief before the Alaska Supreme Court is here.

Ninth Circuit Affirms $95 Million Settlement of California Meal Break Claims Against Wells Fargo

Rejects Objectors’ Challenge in Expedited Appellate Proceedings

Oct. 12, 2022 – The Ninth Circuit today affirmed the district court’s approval of a groundbreaking $95 million settlement in Ibarra v. Wells Fargo, which involved the claims of nearly 5,000 Wells Fargo home mortgage consultants who alleged that the Bank had used an unlawful formula for calculating legally mandated premium pay for missed rest breaks, basing those payments exclusively on the plaintiffs’ base hourly rates and ignoring the commissions that were the principal basis for their compensation.

Altshuler Berzon LLP was lead counsel on appeal and assisted trial counsel Joshua Hafner and Paul Stevens throughout much of the litigation, including by participating as amicus in a related case before the California Court of Appeal and later, before the California Supreme Court, Ferra v. Loews Hollywood Hotel, LLC, 489 P.3d 1166 (Cal. 2021), which established the underlying principle that all categories of compensation must be included in calculating rest break violation penalties under California Labor Code §226.7.

After overcoming the objector’s challenges to the class action settlement in Ibarra (and two related cases), plaintiffs succeeded again in the Ninth Circuit, first by obtaining an expedited briefing schedule (to avoid further delay in distributing the substantial payments available to class members under the settlement) and then by winning the appeal based on the briefs, in an unpublished decision issued without the need for oral argument. The affected Wells Fargo employees will be receiving their settlement checks before the end of 2022.