Apalla U. Chopra

Chopra has chaired O’Melveny’s labor and employment practice since 2011, a perch from which she tailors litigation strategies to deal with the trends she spots.

For a major entertainment company facing a wage and hour dispute filed by employees as a potential representative action under the state Labor Code’s Private Attorneys General Act, Chopra found a path to success in an unsettled legal landscape. The plaintiffs alleged the company failed to timely pay wages upon termination of employment, provide minimum wages and overtime compensation, and provide accurate wage statements.

“The trend for plaintiffs is to try to avoid arbitration by bringing PAGA-only claims that may keep cases in court” and away from arbitrators, Chopra said. “For many years, of course, we have litigated class actions and arbitration issues. Now the California Supreme Court in its Iskanian decision [in 2014] has opened things up, but we have very little guidance on PAGA claims. They’re a cousin of class actions, yet different.”

One open question is how much or how little a plaintiff has to plead to advance a case. “We filed an aggressive demurer,” Chopra said, “to try to get rid of the representative action aspect. We contended the complaint was so overbroad as to fail to give us adequate notice. We also argued the representative action was unmanageable as a matter of law.”

In April, a Los Angeles County Superior Court judge dismissed the representative action. “The parties settled on an individual basis and the case went away,” Chopra said, somewhat to her regret because an appellate affirmance in a published opinion might have enshrined her ploy as a standard to guide future cases. “Early indications are mixed; PAGA-only cases have gone both ways,” she said. “We were able to get the judge to go in our direction in this one. I can certainly use this decision and attach it to dismissal motions in other cases. But there’s no doubt that plaintiffs’ counsel will continue to push on these issues.”

Another trend involves litigation over sexual misconduct on college campuses. Chopra represents Harvard University in a Title IX suit over the school’s alleged failure to respond appropriately to a student’s assault allegation; the case remains in progress. And she represents Claremont McKenna College in a case in which former students are challenging their expulsion for violating the school’s sexual misconduct policy. Chopra prevailed in that case; the result is on appeal.

“With the new [Trump] administration, I think we’ll see less enforcement pressure, but whether we’ll see less litigation is uncertain,” Chopra said. “The issue continues to be a difficult one for colleges.”

— John Roemer