Articles from November 2018

In early 2018, the Ninth Circuit dropped a live grenade into the already-besieged class action bar by issuing In re Hyundai and Kia Fuel Economy Litigation, 881 F.3d 679 (9th Cir. 2018) (slip op. available here) (“Hyundai”). In Hyundai, a divided panel, over Judge Nguyen’s strong dissent, threatened to obliterate nationwide class actions in the Ninth Circuit. Inventing a new predominance requirement not found anywhere in Rule 23, the Hyundai majority held that a district court may certify a nationwide class alleging violations of California law only after “apply[ing] the California governmental interest test.” Slip op. at 49. Under this test, if there are material differences in the 50 states’ consumer protection laws, then predominance is not satisfied. Id. at 50. In practice, Hyundai erected a near-insurmountable obstacle for nationwide class action settlement, as state consumer protection laws invariably differ.

Thankfully, the impending class action apocalypse has been put on hold. On July 27, 2018, the en banc court of the Ninth Circuit granted the parties’ petition for rehearing, rendering the panel decision non-precedential. Rehearing in the en banc court took place on September 27, 2018, and comes after public interest organizations, pro-business groups, and academics joined forces, forming a formidable alliance to advocate for en banc review.* As set forth in the amicus briefs and the settling parties’ petitions, the Hyundai panel flouted decades of Ninth Circuit authority, including the seminal Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998), which has guided lower courts on settlement approval and did not require a conflict-of-law test to satisfy predominance. Hyundai’s reasoning was also directly at odds with the influential Third Circuit en banc decision Sullivan v. DB Investments, Inc., 667 F.3d 273, 308 (3d Cir. 2011), which held that state law variations do not matter for settlements since no trial will commence.

The amici also warn that, if nationwide settlements can no longer be certified, not only will consumers be disempowered, but defendants would be unable to get their peace. Instead, defendants will be forced to defend suits in piecemeal fashion, perhaps a suit in every state. This defeats the purpose of the class device—efficiency—by multiplying litigation involving the same products and similar claims.

Although the order granting rehearing is obviously good news for the settling parties and consumers, reversal is not certain, partly due to the unusual nature of the Ninth Circuit en banc practice. While the full en banc court votes on whether to rehear the matter, the rehearing itself is handled by the Chief Judge and ten non-recused active judges who are randomly drawn. Depending on the makeup of the en banc court, the Hyundai panel decision may yet be affirmed. However, close observers expect that the en banc court will curtail, if not completely reverse, the panel’s broad holding. One possibility is that the en banc court will adopt the reasoning of Sullivan and hold that state law variations are not relevant to settlements, which would be a clear win for consumers. But, the en banc court could also hold that state law variations can only be a basis for denying approval of class action settlements if raised by an objector (and variations in state law were not raised by objectors in this case), which would be a Pyrrhic victory, benefiting professional objectors and no one else. Whatever the result, both consumers and businesses hope that the en banc court will ultimately limit the damage caused by the heedless panel decision.

*Capstone Law APC, working with Glancy Prongay and Murray LLP, submitted an amicus brief supporting rehearing en banc in this case on behalf of retired District Judge Stephen G. Larson and Professor David Rosenberg of Harvard Law School. The author of this post was the primary author of that amicus brief.

Authored By:
Ryan Wu, Partner
CAPSTONE LAW APC

On May 22, 2018, a California appellate court rejected an “injury” requirement to secure Labor Code Private Attorneys General Act (“PAGA”) civil penalties for defective wage statements under Labor Code section 226(a). See Raines v. Coastal Pac. Food Distribs., Inc., No. C083117 (3d District, May 22, 2018) (slip op. available here). This follows and reinforces a sister court’s holding in Lopez v. Friant & Assocs., LLC, 15 Cal. App. 5th 773 (2017), previously reported on this blog here. When a wage statement claim is a predicate to a PAGA violation, the “knowing and intentional” standard or the injury requirement of section 226(e) does not apply. Thus, under both Raines and Lopez, wage statement claims under PAGA are effectively governed by a strict liability standard.

Among other claims relating to her employment, the plaintiff in Raines sought statutory penalties under section 226(e) for the failure to include the overtime hourly rate of pay on wage statements as required by section 226(a), as well as claims for civil penalties under PAGA predicated on the violation of section 226(a). The court ruled at trial that “a reasonable person could determine the overtime hourly rate from the wage statement; consequently, there was no injury.” Slip op. at 5. Thus, the section 226(e) claim was extinguished. Further, the trial court ruled that the PAGA wage statement claim was also extinguished because it found that injury was also necessary for the PAGA claim.

The appellate court agreed with the trial court’s disposition of the section 226(e) claim, because section 226(e) indeed requires injury, and the missing overtime rate “can be ‘promptly and easily’ determined by simple arithmetic” leading to no injury. Slip op. at 10. However, the issue of whether a PAGA claim for a section 226(a) violation required injury yielded a different outcome. Relying primarily on Lopez v. Friant and the federal authorities and reasoning it provided, the appellate court in Raines agreed that “the requirements for a section 226(e) claim do not apply to a PAGA claim for a violation of section 226(a).” Id. at 14. The Raines court observed that “PAGA is concerned with collecting civil penalties for the violation of section 226(a), not the damages or statutory penalties provided for in section 226(e).” Id. And in this regard, the appellate court saw no difference between the injury requirement of section 226(e) or any of its other requirements. The court also emphasized that PAGA’s civil penalties remedy is intended to “punish the wrongdoer and to deter future misconduct” (id. at 16, citing People v. First Federal Credit Corp., 104 Cal. App. 4th 721, 732 (2002)), rather than to compensate for injury. Accordingly, the appellate court reversed the judgment as to the PAGA wage statement claim.

Raines and Lopez together affirm that a facial violation of section 226(a) is the only requirement for liability under PAGA, and that knowledge, intent, and injury are relegated to section 226(e) claims. This continues the judicial trend of reaffirming the law enforcement objective of PAGA, focusing the inquiry on whether the employer violated the law rather than exploring to what extent an employee is harmed by the unlawful conduct.

Authored by:
Jonathan Lee, Associate
CAPSTONE LAW APC