Duane Morris Class Action Review - 2023 - Report - Page 39
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.
III.
What Should Companies Expect In 2023?
Class action litigation is a staple of the American judicial system. The volume of class
action filings has increased each year for the past decade, and 2023 is likely to follow
that trend. A company’s programs designed to ensure compliance with existing laws
and strategies to mitigate class action litigation risks are corporate imperatives.
The plaintiffs’ bar is nothing if not innovative and resourceful. Given the massive class
action settlement figures in 2022, coupled with the ever-developing law, corporations
can expect more lawsuits, expansive class theories, and an aggressive plaintiffs’ bar in
2023. These conditions necessitate planning, preparation, and decision-making to
position corporations to withstand and defend class action exposures.
Defendants often have very little time to react to the plaintiff’s forum choice after a
class action is filed, even though it may be one of the most important initial
questions in the case. In turn, a cascading number of strategic considerations are
typically faced by corporate decision-makers upon receipt of the class action filing.
Should the company opt to remove the case from state court to federal court (and
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© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023