What Appellate Courts Are Missing About PAGA Standing After Viking River Cruises

Published date12 May 2023
Subject MatterLitigation, Mediation & Arbitration, Arbitration & Dispute Resolution
Law FirmProskauer Rose LLP
AuthorMr Jonathan Slowik

The California Supreme Court has scheduled oral argument for May 9, 2023 in Adolph v. Uber Technologies, Inc., a closely watched case that concerns whether a Private Attorneys General Act (PAGA) plaintiff loses standing to pursue a representative claim when their individual PAGA claim is compelled to arbitration. This question was left open by the blockbuster decision in Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022), in which the U.S. Supreme Court held that PAGA claims may be compelled to arbitration on an individual basis. Interpreting California law, the Court held that the plaintiff lacked standing to pursue a representative claim in court after being compelled to arbitration. However, as Justice Sotomayor pointed out, if the Court's "understanding of state law is wrong, California courts . . . will have the last word." Id. at 1925 (Sotomayor, J., concurring).

On July 20, 2022, a mere five weeks after Viking River Cruises, the California Supreme Court agreed to take up the question in Adolph. In the meantime, the issue also bubbled up through California Courts of Appeal, and six appellate courts unanimously disagreed with Viking River Cruises. Galarsa v. Dolgen Cal., LLC, 88 Cal. App. 5th 639 (2023); Piplack v. In-N-Out Burgers, 88 Cal. App. 5th 1281 (2023); Gregg v. Uber Techs., Inc., 2023 WL 2624590 (Cal. Ct. App. Mar. 24, 2023); Seifu v. Lyft Inc., 2023 WL 2705285 (Cal. Ct. App. Mar. 30, 2023); Nickson v. Shemran, Inc., 2023 WL 2820860 (Cal. Ct. App. Apr. 7, 2023); Quintero v. Dolgen Cal., LLC, 2023 WL 1878201 (Cal. Ct. App. Feb. 10, 2023).

In each of these cases, the court relied on the language of the PAGA statute, which confers standing on any "aggrieved employee," defined as someone "who was employed by the alleged violator" and "against whom one or more of the alleged violations was committed." Cal. Lab. Code ' 2699(c). The appellate courts explained that whether a plaintiff's individual PAGA claims have been compelled to arbitration is irrelevant to these criteria. See e.g., Galarsa, 88 Cal. App. 5th at 653. The courts also found support in Kim v. Reins Int'l Cal., Inc., 9 Cal. 5th 73 (2020), which held that a plaintiff does not lose standing to pursue a PAGA claim by settling non-PAGA claims for damages based on the same underlying violations. See e.g., Piplack, 88 Cal. App. 5th at 1291.

However, appellate courts have not yet considered whether their interpretation of the term "aggrieved employee" is consistent with other...

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