Earlier this year, in Wesson v. Staples the Office Superstore, LLC, 68 Cal. App. 5th 746 (2021), the California Court of Appeals held that courts are empowered to limit or strike representative claims under the Private Attorneys General Act (PAGA) that cannot be manageably tried. (To read Akin Gump’s alert regarding Wesson, click here.) Recently, Judge James V. Selna issued his decision in Feltzs v. Cox Commc’ns Cal., LLC—F. Supp. 3d—2021 WL 4947306 (C.D. Cal. Oct. 21, 2021), which overwhelmingly struck a PAGA claim as unmanageable under Wesson. Feltzs is one of the first decisions to apply the Wesson rule, and provides some early support for the proposition that Wesson imposes a class-action-type predominance requirement for representative actions under PAGA.
The Feltzs decision concerns a representative PAGA claim alleging that installation technicians for Cox Communications were not provided proper meal breaks. Cox presented evidence that technicians were typically provided installation jobs assigned to specified two-hour windows, that technicians were typically not scheduled for jobs between 12:00 and 1:00 p.m., that its policy gave technicians discretion to take a one-hour meal break any time within the first five hours of their shifts, that technicians were authorized to stop in the middle of a job to take a one-hour meal break and that supervisors discussed the meal break rules periodically during weekly technician meetings. Id. at *1.
On the strength of this record, the court had previously denied class certification, finding that the meal break claims “did not meet the predominance requirement of Rule 23(b)(3),” because “in the absence of a class-wide policy or practice, the individualized inquiry to determine liability would require an unmanageable individualized analysis that precludes a finding of predominant common issues.” Id. at *5 (quotation omitted). The court then concluded that “[t]hose same reasons apply in [the PAGA] context as well,” and overwhelmingly struck the representative claim. Id. It also denied the plaintiff’s request for leave to submit a new trial plan. Id. at *7.
While Feltzs is just one decision, it is a promising first glimpse for employers and practitioners seeking to import class action principles in PAGA representative actions, particularly in federal court, where some judges had been open to applying Rule 23 principles to PAGA even before Wesson. Because PAGA claims in federal court are virtually always derivative of putative class claims, employers in such cases should strongly consider using the class certification record to attack the PAGA claim as unmanageable. Feltzs demonstrates that if a class action would be unmanageable, a representative action very well may be unmanageable for the same reasons.