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On December 31, 2014, in a closely-watched case implicating substantive wage-and-hour law as well as class action law, the California Court of Appeal, Second Appellate District, reversed orders granting summary judgment and summary adjudication in favor of a plaintiff class of security guards for rest break violations under the California Labor Code, and affirmed the trial court’s grant of class certification. Augustus v. ABM Security Services, Inc., Nos. B243788 & B247392, 2014 Cal. App. LEXIS 1209 (Cal. Ct. App. Dec. 31, 2014) (available here). While the court initially issued its ruling as an unpublished decision, on January 29, 2015, the court changed the status of the opinion to “published.”

The trial court held that because ABM’s undisputed rest period policy required its security guards to remain “on call” during their breaks in order to respond to requests for tenant assistance (including for non-emergency security needs), the guards remained under ABM’s control, despite being able to engage in limited leisure activities, such as smoking cigarettes, surfing the internet, reading, or having a cup of coffee. Opinion and Order re: Cross Motions for Summary Judgment/Adjudication and Defendant’s Motion to Decertify Class, pp. 4-7, Dec. 23, 2010 (available here). The trial court reasoned that Industrial Welfare Commission (IWC) Wage Order No. 4 provides that “‘rest period time shall be counted as hours worked for which there shall be no deduction from wages.’ Time that the employee is subject to control of the employer is work time and must be paid [under Wage Order 4 and Morillion v. Royal Packing Co., 22 Cal. 4th 575 (2000)] without reference to the definition of a rest period [in section 11(A) of the Wage Order]. In order to make sense of the statutory scheme, a rest period must not be subject to employer control; otherwise a ‘rest period’ would be part of the work day for which the employer would be required to pay wages in any event.” Opinion and Order at 7. As the trial court stated, “[p]ut simply, if you are on call, you are not on break.” Augustus at *11. Because ABM failed as a matter of policy to provide any duty-free rest breaks, the trial court found it liable for rest period penalties under Labor Code section 226.7, as well as attorney’s fees and interest, in the total amount of nearly $90 million. The trial court had also certified the rest break subclass, finding that this was a “15,000-person one-issue case” that was “perfect for class treatment.” Id. at *12.

While the Court of Appeal affirmed the certification decision, it reversed the trial court’s summary judgment rulings, rejecting the trial court’s view of “on-call” rest breaks. The primary basis for the court’s decision that on-duty rest breaks are permissible was the court’s conclusion that “remaining available to work is not the same as performing work,” since the guards were freed from most of their work responsibilities during their rest breaks. Id. at *19. The court cited no authority for this distinction, but noted that its conclusion was “bolstered” by the fact that Wage Order No. 4, subdivision 11(A), which deals with meal breaks, requires that an employee be “relieved of all duty,” while subdivision 12(A), which deals with rest breaks, has no similar mandate. Id. at *17. The court found further support for this notion in the fact that the IWC requires only on-duty meal periods to be paid, while all rest breaks must be paid, suggesting that rest breaks are typically taken while on-duty and under the employer’s control. Id. at *17-18.

In the unpublished version of Augustus, the court also cited a 1993 Division of Labor Standards Enforcement (DLSE) letter that opined that simply remaining on-call is not “so inherently intrusive” as to require that an employee is compensated for such time. Augustus v. ABM Security Services, Inc., Nos. B243788 & B247392, 2014 Cal. App. Unpub. LEXIS 9287 at *28 (Cal. Ct. App. Dec. 31, 2014) (available here.) Therefore, the court concluded that, reading the various provisions together, employees cannot be made to work during rest breaks, but they need not be “relieved of all duty” such as the duty to remain on call. Augustus at *17-18.

Shortly after the Augustus unpublished opinion was issued, the California Supreme Court ruled, in Mendiola v. CPS Security Solutions, 60 Cal. 4th 833 (2015), that CPS security guards’ “on-call hours constituted compensable hours worked and, further, that CPS could not exclude ‘sleep time’ from plaintiffs’ 24-hour shifts.” Mendiola at 838. In so ruling, the Court reaffirmed that the “extent of the employer’s control” dictates “whether on-call time constitutes hours worked” and that employees could remain under the control of their employer even if they were engaged to “wait for something to happen,” reasoning that “[r]eadiness to serve may be hired, quite as much as service itself.” Id. at 840. The Mendiola Court also ruled that “the fact that guards could engage in limited personal activities [including sleeping, showering, eating, reading, watching television, and browsing the internet] does not lessen the extent of CPS’s control,” which included, inter alia, that guards “were obliged to respond, immediately and in uniform,” to dispatched calls and that they could not leave the premises if a relief guard was not available. Id. at 841-42. Thus, the Court found that all of the security guards’ on-call time, including sleep time, was “time worked” and compensable.

On January 29, 2015, the Court of Appeal changed the status of the Augustus opinion from “unpublished” to “published” and issued its Order Modifying Opinion and Denying Rehearing; Certifying Opinion for Publication (available here). Given the overlapping issues in Mendiola and Augustus, the court felt compelled to respond to the controlling Mendiola decision. In the published opinion, the court offered a new basis for its conclusion that simply being on-call is not “work” for purposes of determining whether a compliant rest break has been provided. Citing the 70-year-old Fair Labor Standards Act (FLSA) case of Tennessee Coal, Iron & R. Co. v. Muscada Local No. 123, 321 U.S. 590 (1944), the Court of Appeal reasoned that the term “work” is used as a verb in section 226.7, not as a noun as in the definition of “hours worked” in Wage Order No. 4, and that when used as a verb, it “means exertion on an employer’s behalf.” Order Modifying Opinion at 1-2. It further concluded that because “[o]n-call status is a state of being, not an action [and] 226.7 prohibits only the action, not the status,” ABM’s security guards were not “required to work” during their rest breaks in violation of section 226.7. Id. at 2. The court attempted to harmonize Mendiola’s holding by suggesting a connection between the Augustus court’s ruling that being on-call during rest periods is a status and not an action, and the Supreme Court’s observation that “‘an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen . . . . [I]dleness plays a part in all employments in a stand-by capacity.’” Id. (quoting Mendiola at 840 (quoting Armour & Co. v. Wantock (1944), 323 U.S. 126, 133)). Indeed, the Court of Appeal went further by suggesting that the Court in Mendiola “implicitly acknowledged” that “remaining available to work is not the same as performing work.” Order Modifying Opinion at 3. Finally, in its revised opinion, the Augustus court deleted any reliance on the DLSE’s 1993 opinion letter finding that on-call time is not time under the employer’s control and therefore is not compensable.

Given the broad implications of the Augustus decision for California wage-and-hour law, as well as the very substantial consequences for the litigants (a $90 million judgment was overturned, after all), a petition for review to the California Supreme Court seems inevitable. There are a number of bases on which review should be granted and/or the decision should be reversed. Several of the most compelling arguments are as follows:

1. The Plain Language of Labor Code Section 226.7 Requires that Meal and Rest Breaks Be Treated the Same – As Duty-Free and Free from Employer Control

The Augustus court’s conclusion that employees must be allowed a duty-free meal break, but need not be provided a duty-free rest break, violates Labor Code section 226.7. Section 226.7(b) provides that “[a]n employer shall not require an employee to work during a meal or rest or recovery period.” (Emphasis added.) In other words, section 226.7, the primary Labor Code section defining an employer’s obligation with respect to rest breaks, by its plain language treats meal and rest periods the same. The Augustus court’s holding, however, interprets the word “work” in the statute to mean something different for rest periods than for meal periods, to wit: that meal breaks must be duty-free, but rest breaks need only be free of some duties—i.e., only those that cause “exertion.” The unequivocal language of the statute does not permit such divergent standards. See Mendiola at 840 (if a statute’s text “’is clear and unambiguous [a court’s construction] inquiry ends’” (quoting Murphy v. Kenneth Cole Prods., Inc., 40 Cal. 4th 1094, 1103 (2007))).

2. Treating Rest Breaks as Different from Meal Breaks Ignores Controlling California Precedent Requiring that Both Meal and Rest Breaks Be “Free from Employer Control” and “Duty-Free” To Be Compliant

In 2007, the California Supreme Court observed that “being forced to forgo rest and meal periods denies employees time free from employer control that is often needed to be able to accomplish important personal tasks.” Murphy at 1113. Indeed, the Court expressly rejected the notion that employees can be required “to work” during rest periods: “If denied two paid rest periods in an eight-hour workday, an employee essentially performs 20 minutes of ‘free’ work, i.e., the employee receives the same amount of compensation for working through the rest periods that the employee would have received had he or she been permitted to take the rest periods.” Id. at 1104.

Thus, the Augustus court’s conclusion that employees may be required to work (just not exert themselves) or remain under their employer’s control during rest periods disregards controlling California Supreme Court precedent and is likewise contrary to other California appellate decisions. In Bufil v. Dollar Financial Group, Inc., 162 Cal. App. 4th 1193, 1199 (2008), the Court of Appeal acknowledged that employers must “relieve employees of all duty for 10 consecutive minutes every four hours in order to accommodate lawful rest breaks.” In Faulkinbury v. Boyd & Associates, Inc., 216 Cal. App. 4th 220 (2013), the Court of Appeal reasoned that rest breaks must be “duty-free” based, in part, on the DLSE’s Opinion Letters, one of which stated that “there must be a net 10 minutes of rest provided in each ‘work period’ and the rest period must be, as the language [of Wage Order No. 4-2001] implies, duty-free.” Faulkinbury at 237 (citing Dept. of Industrial Relations, DLSE, Acting Chief Counsel Anne Stevason, Opn. Letter No. 2002.02.22, Rest Period Requirements (Feb. 22, 2002)). Indeed, the Faulkinbury court concluded from the plain language in Subdivisions 11 and 12 of Wage Order 4 that “[t]here does not appear to be an on-duty rest break exception as there is with meal breaks.” Id.

Put simply, the Augustus court’s approval of on-duty rest periods is irreconcilable with well-settled California law.

3. Augustus Adopts a Definition of “Work” Meaning “Physical Exertion” that Has Long Been Repudiated by Other Courts, and that Will Wreak Havoc on Numerous DLSE Standards, IWC Regulations, and Labor Code Provisions that Turn on the Definition of “Work”

The Augustus court concluded that on-call rest periods are permissible because the “work” that section 226.7 of the California Labor Code prohibits—with respect to rest breaks only—must involve “active exertion.” But its only support for this interpretation of the word “work” in section 226.7 is a nearly 70-year-old United States Supreme Court case that defined “work” under the FLSA as “physical or mental exertion.” Augustus Order at 1-2 (citing Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944)). Aside from the fact that the California Supreme Court has repeatedly “cautioned against confounding federal and state labor law” and relying on federal labor law or statutory interpretations to construe California labor statutes (Mendiola at 843), the Augustus court’s reliance on Muscoda’s definition of “work” as “physical exertion” is misguided. The United States Supreme Court abandoned that definition of “work” the same year the Muscoda decision issued. Indeed, in Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944), the Court clarified that “exertion” was not in fact necessary for an activity to constitute “work” under the FLSA. See IBP v. Alvarez, 546 U.S. 21, 24-25 (2005) (discussing the progression of the case law). In abandoning the earlier “exertion” definition of work, the Armour Court pointed out that “an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen.” Armour, 323 U.S. at 133. And just two years later, the Court defined the “statutory workweek” to “includ[e] all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690-91 (1946). Thus, the “exertion” definition of “work” has been thoroughly repudiated.

Moreover, defining work as “exertion” could create havoc if applied to other provisions of the Labor Code and Wage Orders. For instance, the wage orders use the word “work” as both a noun and a verb in Subdivision 3, in defining when an employer is obligated to pay overtime and how overtime pay is to be calculated. Wage Order 5-2001, Subdivision 3(A)’s Daily Overtime – General Provisions, provides that an “employee[] with direct responsibility for children . . . who works in excess of 40 hours in a workweek shall be compensated at one and one-half (1 ½) times such employee’s regular rate of pay for all hours worked over 40 hours in a workweek.” (Emphasis added.) Under Augustus’s noun-verb distinction, a childcare worker would not be entitled to overtime pay for a workweek of more than 40 hours unless the work involved “physical exertion”; clearly this was not the intent of IWC. The confusion is further compounded when, using the same overtime example, one considers that Labor Code section 510, which defines an employer’s obligations with respect to overtime pay, uses “work” only as a noun. Surely this cannot be the law, as the Wage Order and Labor Code are entitled to equal dignity, but would yield different results.

Finally, a great number of occupations consist mostly, or even entirely, of time spent “waiting for something to happen,” but not actually “exerting” any effort at all. Among innumerable examples are a toll booth operator working in some remote place or a receptionist for certain businesses. These employees might spend an entire shift waiting for something to happen (for a car to come by, or for the phone to ring) without ever having to “exert” any effort. Yet under Augustus, they would not be entitled to actual “rest breaks” because such breaks would be indistinguishable from the rest of their shift time. Again, this cannot be the law.

In Murphy, the California Supreme Court recognized that freedom from employer control is the very purpose of both meal and rest periods and is essential to an employee’s ability to effectively use their breaks for their own purposes. See Murphy at 1113; see also Mendiola at 842 (“The fact that guards could engage in limited personal activities does not lessen the extent of CPS’s control.”); Morillion at 586 (finding time on the employer’s bus to the work-site compensable because “plaintiffs could not drop off their children at school, stop for breakfast before work, or run other errands . . . [; and,] [a]llowing plaintiffs the circumscribed activities of reading or sleeping does not affect” or eliminate the employer’s control). In short, an employee cannot use their rest periods for their own purposes if their employer requires them to stand by, ready to perform his or her duty, if called to do so.

Selecting an abrogated, decades-old Supreme Court case decided under federal law to supply the critical definition of “work” upon which the determination of the case’s ultimate issue depended appears to have been precisely the type of “needless policy determination” that the Supreme Court recently warned against in Mendiola. See Mendiola at 847-48 (noting that the Supreme Court “in Morillion instructed courts not to engage in needless policy determinations regarding wage orders the IWC promulgates.”).

4. Only the DLSE, Pursuant to Section 17 of the Wage Orders, Has the Authority to Exempt Employers from Their Obligation to Provide Duty-Free Rest Breaks

Section 17 of the Wage Orders gives the DLSE the discretionary authority to issue exemptions from certain provisions of the Wage Orders, including the rest period provision, if enforcement of the provision “would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer.” Indeed, ABM had actually obtained an exemption from the DLSE for duty-free rest periods after the Augustus suit was filed, but decided not to renew the exemption thereafter. (The Augustus plaintiff actually excluded the year during which the exemption was in place from the lawsuit.) The Augustus decision, however, effectively renders this exemption power a nullity. If rest breaks need not be duty-free, it follows that employers would not need to seek the DLSE’s permission to institute on-duty rest breaks.

It remains to be seen how California courts will reconcile the holding in Augustus with that of Mendiola in future cases alleging rest break violations. With the Augustus court’s January 29th issuance of its order modifying the opinion and certifying it for publication, the deadline for plaintiffs to file a Petition for Review to the California Supreme Court is now March 10, 2015.

Authored by:
Glenn Danas, Partner
Melissa Grant, Senior Counsel
CAPSTONE LAW APC

In rejecting the attempts of two defendants in three cases to get entries of summary judgment after having been denied by federal district courts, the Ninth Circuit has tasked the defendants’ law firm, Littler Mendelson PC, with convincing the appellate panel that the procedural gambits that it deemed to be “frivolous and wholly without merit” don’t warrant monetary sanctions against the firm and six of its lawyers. See In re: Con-way Freight, Inc., No. 13-71160 (9th Cir. June 27, 2013); see also In re: Nordstrom, Inc., No. 13-71162 (9th Cir. June 27, 2013) (“Nordstrom I”); In re: Nordstrom, Inc., No. 13-71163 (9th Cir. June 27, 2013) (“Nordstrom II”).

In the two putative class actions against Nordstrom, the plaintiffs alleged that the department store violated wage-and-hour law by imputing commission payments into periods of time in which commissioned employees were incapable of making sales or earning sales commissions. See Nordstrom I at 1; Nordstrom II at 1. Similarly, in the class action filed against transportation company Con-Way on behalf of “piece rate” workers, plaintiffs alleged that the defendant paid employees at a rate below the minimum wage. See Con-Way at 1.  The three cases share roughly the same procedural circumstances, which apparently caused the Littler firm to pitch an innovative strategy to the affected clients.

In substantially identical writs of mandamus on behalf of its clients, Littler asked the Ninth Circuit to intervene and reverse the district courts’ denial of summary judgment, which under the mandamus standard requires that a party have exhausted all relief in the district court and have no other means to avoid irreparable harm. While substantive issues of California law are frequently decided in federal court without extensive state-court authority interpreting California’s wage-and-hour statutes, mandamus should only be sought where new and important issue of law of first impression are implicated.

The Ninth Circuit’s curt and candidly negative response to Littler strongly suggested that the firm had overreached. (In each instance, Littler – not its clients – was ordered to show cause why sanctions shouldn’t be imposed against it pursuant to Ninth Circuit Rule 46-2 (d), which governs attorney misconduct and discipline.) Indeed, while the firm has filed a 50-page brief accompanied by exhibit appendices of nearly 1,000 pages purporting to respond to the Ninth Circuit, rather than establishing the extraordinary circumstances that would justify mandamus, Littler appears to have demonstrated little more than the usual uncertainty and dispute around any issue of statutory interpretation, and has fallen even shorter of establishing the requisite irreparable harm. See, e.g., Response to Order to Show Cause, Nordstrom II (July 19, 2013).

Seemingly adopting a more contrite position as to the greater public, and perhaps recognizing that the mandamus approach may be regarded as more foolish than innovative, the Littler firm has issued the following statement: “We have great respect for the United States Court of Appeals for the Ninth Circuit and are preparing a response to its order. We look forward to having this matter resolved conclusively in the near future.”

The influential Seventh Circuit Court of Appeals has issued a decision concerning expert testimony that is likely to be influential in other jurisdictions faced with forging a fair and workable jurisprudence for the admission of expert opinion testimony. See Schultz v. Akzo Nobel Paints, LLC, No. 12-1902 (7th Cir. June 26, 2013) (slip opinion available here).

The Schultz decision arises from a survivor action, in which the wife of a now-deceased worker at American Motors (also deceased) alleged that benzene in defendant’s paint caused the plaintiff to develop acute myeloid leukemia (AML). In the opinion, written by Circuit Judge Diane Wood (perhaps the Seventh Circuit’s most prominent liberal voice and also frequently mentioned as a Supreme Court candidate), the Court of Appeals held that the district court had erred in granting the defendant’s motion for summary judgment substantially on the basis of the plaintiff’s expert’s opinion having been deemed unreliable and thereby having been excluded. See slip op. at 1-2.

The plaintiff’s expert used so-called “Monte Carlo Analysis” to make a probabilistic determination as to the likelihood of benzene exposure having substantially contributed to causing the plaintiff’s cancer. See slip op. at 3-5. Though the expert took the plaintiff’s history of smoking into consideration in his analysis, the defendant’s expert seized on this fact, and also determined a higher threshold for safe benzene exposure. See slip op. at 6-8. The plaintiff’s expert took issue with the threshold used by the defendant’s expert, contending it to be “way out of the mainstream,” and explained that, in his opinion, there is no threshold below which benzene exposure is safe. Id. In striking the plaintiff’s expert’s testimony, the district court gave considerable weight to his “no threshold” view, and assailed him, as well, for not taking due account of the plaintiff’s smoking. See slip op. at 8.

The Seventh Circuit undertook a de novo review to determine whether the district court properly followed the framework for determining the admissibility of expert testimony under Federal Rule 702, which has effectively codified the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). See slip op. at 10-14. While acknowledging district courts’ roles as “gatekeepers” of expert testimony, the Seventh Circuit explained that “the key to the gate is not the ultimate correctness of the expert’s conclusions,” but rather, “the soundness and care with which the expert arrived at her opinion” that is the proper focus of a Daubert analysis, a focus that the Schultz trial court did not adhere to. Slip op. at 10.

Though received as a disappointment by some in the defendants’ bar, the plaintiff’s expert in fact used a methodology identical to the defendant’s expert. That the plaintiff’s expert merely arrived at a different conclusion regarding minimum level of benzene exposure that was necessary to cause AML is matter properly resolved by a jury. The district court’s tacit assumption that there is one single correct conclusion, to the exclusion of all others, was the essence of the district court’s erroneous, now-reversed, ruling. The purpose of this particular instance of expert testimony was not to determine whether or not benzene caused plaintiff’s cancer, with perfect epistemological certainty. Rather, the proper inquiry is whether the analysis, irrespective of its ultimate conclusion, is sound. Quite often, there will be two expert analyses, both exceeding the Daubert soundness threshold, but each reaching diametrically different conclusions. Thereafter, the established civil litigation procedures determine which conclusion is more likely to be accurate. This affirmation of the established division of labor between judge and jury is the upshot of the Seventh Circuit’s ruling in Schultz.

The grant of summary judgment was thus reversed, and the case was remanded to the district court for proceedings consistent with the Seventh Circuit’s opinion.

By now, and most prominently in AT&T Mobility v. Concepcion, the narrative whereby the U.S. Supreme Court interprets the Federal Arbitration Act (FAA) so as to put the continued viability of class actions in doubt is sufficiently familiar that the time is ripe for a counter-narrative. And that is exactly what Stanford Law School Professor Janet Cooper Alexander sets out in a new article, To Skin a Cat: Qui Tam Actions as a State Legislative Response to Concepcion, 46 U. MICH. J.L. REFORM 101 (forthcoming Summer 2013) (available here). Alexander, a former Supreme Court clerk to Justice Thurgood Marshall and currently the Fredrick I. Richman Professor of Law at Stanford, is a recognized expert on civil procedure, federal jurisdiction, and the historical evolution of procedure in state and federal courts, in addition to having compiled a substantial body of work as a practitioner as a partner at Morrison & Forester before becoming an academic.

In the article, Alexander begins with the premise that Concepcion has spelled the demise of “virtually all consumer and employment claims,” and notes that there is no realistic likelihood of federal legislation that would return such class actions to their status quo ante. However, Alexander identifies “an alternative approach that could be taken at the state level,” and describes that alternative approach as entailing “statutory qui tam actions to enforce civil penalties for violations of state consumer protection and employment laws.” Indeed, though not formally under the qui tam rubric, the California Labor Code’s Private Attorneys General Act, known as PAGA, performs exactly as Alexander describes, and has thus far proven immune to Concepcion-based challenged, most notably in Brown v. Ralphs Grocery Co., 197 Cal. App. 4th 489 (2011), cert denied, 132 S. Ct. 1910 (2012).

Alexander contends that “the rationale of Concepcion simply does not apply” to PAGA actions, since they are brought for public rather than private benefit, to ensure compliance with state law. Alexander states her thesis thusly: “Indeed, allowing private parties to contract away the state legislature’s chosen means of enforcing claims belonging to the state would seriously impair the state’s ability to execute core governmental functions. It would be an intrusion into state sovereignty that should give pause to neo-federalists such as the majority in Concepcion.” Alexander at 101.

After noting the practical and legal challenges to legislating around Concepcion, Alexander distinguishes PAGA as an exemplary qui tam-like action, and suggests both amendments to it and free-standing legislation capable of meaningful enforcement of consumer and employment laws (without triggering FAA preemption). Under PAGA, employees bring representative actions that do not require satisfaction of the familiar class action elements (ascertainability, commonality, etc). PAGA actions are also atypical of most private litigation, in that the nominal plaintiff is recovering civil penalties, the majority of which go to the State of California, with the plaintiff taking only a 25 percent “bounty.” See Alexander at 126-132. Thus, it is through PAGA and other qui tam analogues that Alexander proposes to achieve the public benefits associated with class actions, while avoiding the Supreme Court’s current fixation on the “liberal federal policy favoring arbitration.” Suggesting the potentially unlimited breadth of such an undertaking, Alexander writes that “[n]othing would prevent states from creating qui tam actions to enforce any statute containing civil penalties payable to the state.” Alexander at 122.

Thus far, PAGA immunity from FAA preemption has been confirmed, both in California state court (Brown v. Ralphs) as well as in federal court (Urbino v. Orkin Serv’s of California), suggesting the broader utility of the qui tam approach. Additionally, as Alexander notes, while the denial of certiorari in Brown v. Ralphs cannot necessarily be construed as an endorsement by the Supreme Court, it does mean that the case failed to sufficiently motivate at least four Justices to take it on, despite it being the single most important post-Concepcion decision with respect to preserving the ability to effect aggregate enforcement of state laws. See Alexander at 129, n.144.

The Alexander article is notable for its skepticism that the Supreme Court is motivated by anything other than an animus against class actions. For instance, after indicating that the Justices in the Concepcion majority had been prominently aligned with state autonomy, “Concepcion demonstrates that for these Justices, a disdain for consumer class action litigation and individuals’ access to courts outweighs any commitment to federalism and state autonomy.” Alexander at 103.

Glenn Danas of Capstone Law APC, the principal architect of the winning briefing in Brown v. Ralphs, commented on Professor Alexander’s article, stating that it “hits the nail on the head in explaining how qui tam-type actions, like PAGA, provide the states with a mechanism for enforcing their own laws that cannot be emasculated or extinguished by corporations using mandatory arbitration agreements.” Danas added, “we’ve been making nearly identical arguments since Concepcion issued, with multiple appellate courts agreeing, and now the California Supreme Court will hopefully decide that public law enforcement rights such as those embodied by PAGA do not yield to waivers contained in private adhesion contracts.”

Alexander proposes drafting “[a] statute similar to PAGA [to create] a mechanism for private plaintiffs to sue to enforce statutory penalties in a qui tam action.” Alexander at 132. She thus envisions PAGA’s application to only specified California Labor Code provisions being expanded to cover “unfair competition, insurance, environmental protection, and other subjects where contracts of adhesion are common.” Id. Further, Alexander suggests changing PAGA’s confusing and much-litigated language about actions being brought on behalf of so-called “aggrieved employees” and replacing it with a clear and direct statement to the effect that such actions are brought “on behalf of the state.” Alexander at 133. In addition to greater clarity, Alexander contents that such a provision would also “make it more likely that a court would find Concepcion inapplicable.” Id.

Alexander’s thesis is far from an outlier; PAGA-like civil penalty actions have attracted considerable attention from other scholars examining how the Concepcion-created voids might be filled. See, e.g., Spencer, J., Arbitration, Class Waivers, and Statutory Rights, 35 HARV. J.L. & PUB. POL’Y 991 (Summer 2012); Wasserman, R., Legal Process in a Box, or What Class Action Waivers Teach Us about Law-making, 44 LOY. U. CHI. L.J. 391 (Winter 2013).