California Supreme Court May Address Questions Left from Viking River Cruises in 2023

Akin Gump Strauss Hauer & Feld LLP

On July 20, 2022, the California Supreme Court granted review in Adolph v. Uber Technologies, Inc., Cal. Ct. App. Case No. G059860, which indicates that it may intend to address the questions of state law addressed by the U.S. Supreme Court in Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022). In Viking River Cruises, the Court held (among other things) that a plaintiff who has submitted the “individual” portion of a Private Attorneys General Act (PAGA) claim to arbitration lacks standing under state law to pursue a PAGA claim on behalf of others. The California Supreme Court appears poised to weigh in on this critical question.

The Adolph decision primarily concerns whether, in a PAGA action, the threshold issue of whether the plaintiff is an employee or an independent contractor is arbitrable. The plaintiff, an UberEATS driver, was classified by Uber as an independent contractor. Upon commencing work, he entered into an agreement with Uber to resolve any disputes arising out of the work relationship through arbitration, and the agreement contained a waiver of the right to bring claims on a class or representative basis. Under then-current precedent, a PAGA claim could not be compelled to arbitration on an individual basis. Iskanian v. CLS Transp. L.A., LLC, 59 Cal. 4th 348, 384 (2014). However, when Adolph brought a PAGA claim in court, claiming that he and other drivers were misclassified as independent contractors, Uber argued that the threshold question of whether Adolph was an employee should be decided by an arbitrator, not a court. Citing Iskanian, the Court of Appeal ruled for the employee in an unpublished decision. Adolph v. Uber Techs., 2022 WL 1073583 (Cal. Ct. App. Apr. 11, 2022). 

Uber petitioned for review on May 20, 2022. While the petition was pending, the U.S. Supreme Court decided Viking River Cruises, which affirmed Iskanian’s rule that predispute waivers of the right to bring a representative PAGA claim are unenforceable, but overruled Iskanian in part by holding that a PAGA plaintiff may be compelled to arbitrate the “individual” component of the PAGA claim. Viking River Cruises, 142 S. Ct. at 1923-24. Then, interpreting state law, the Court held that the “non-individual” component must be dismissed for lack of standing. Id. at 1925. (To read about the Viking River Cruises decision, click here.) On June 29, 2022, Adolph separately requested that the California Supreme Court address the U.S. Supreme Court’s interpretation of state law and hold that a PAGA plaintiff does not lose standing when the individual PAGA claim is submitted to arbitration. The Court granted review on July 20, 2022.

The fact that the California Supreme Court granted review may indicate that it intends to reach the Viking River Cruises question. Apart from that question, Adolph would not appear to be a strong candidate for review, since the issues in the Court of Appeal were well worn, and the decision was unpublished and not precedential. See Adolph, 2022 WL 1073583, at *3 (finding “no reason to diverge from [the] clear California authority in this case.”). 

The California Supreme Court’s decision could come as soon as 2023. Until then, trial courts compelling arbitration of individual PAGA claims must decide for themselves whether to follow the U.S. Supreme Court’s holding regarding the plaintiff’s standing to pursue the nonrepresentative claims, or whether to chart a different path.

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Akin Gump Strauss Hauer & Feld LLP

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