Barbara J. Miller 

Barbara J. Miller defends retail, financial services, tech and other large companies in complex employment litigation, especially wage-and-hour class and PAGA representative actions.

Handling those kinds of cases demands staying current on the ever-changing legal landscape, including “what the plaintiffs’ bar is doing,” she said. Doing all that well “is what enables us to very effectively defend the PAGA actions and class actions.”

Equally important is actually trying cases. “Otherwise, settlement discussions become divorced from the reality of the litigation risk,” she said. “I think what we contribute … is the willingness to try cases.”

Over the past few years, she has done well before juries for two major retail chains, which prefer not to be identified. In a discrimination and PAGA case last year, the plaintiff agreed to settle for 10% of her final pretrial demand just a week into the trial.

The year before, Miller and her team took over a misclassification and discrimination case shortly before trial. After a contentious, five-day battle, the jury returned a complete defense verdict. The 9th Circuit upheld the result early this year.

She has also done well compelling arbitration of individual claims removed from class and PAGA cases and then winning there. In a recent case, the plaintiff tried to avoid that outcome by moving to dismiss his individual causes of action so that only the PAGA action would remain. Miller opposed the change, the trial court agreed with her and then so did the 9th Circuit.

The case was sent to arbitration, where she won summary judgment ending the plaintiff’s individual claims. The plaintiff has appealed again. Lovig v. Best Buy Stores LP, 22-16151 (9th Circ., filed Aug. 1, 2022).

Miller acknowledged that it is unusual for a defendant to oppose a plaintiff’s request to discard a claim. “We have that often in California, where to preserve the larger PAGA claims, often counsel make a decision to dismiss their clients’ own claims” to preserve the representative claims, she said. “That is always an interesting dynamic.”

One area of California employment law that definitely has been “a little uncertain” lately is litigation under the Private Attorneys General Act, Miller said. Since the U.S. and state supreme courts came down with conflicting decisions, she and her colleagues have been continuing to develop effective arguments to address the changing theories.

A few years ago, they handled a very unusual case in which the plaintiff settled her individual claim for a small amount but then argued that the settlement established the defendant’s liability on the PAGA claim through collateral estoppel. Woods v. CBRE Group Inc., A160477 (Cal. App. 1st. Dist., Oct. 19, 2021).

The theory lost on appeal. But Miller said more litigation on similar issues would be coming. “That’s what’s sitting out there and really are going to lead the way in terms of resolution.”

— Don DeBenedictis