Adolph v. Uber Technologies Inc.

CASE NAME: Adolph v. Uber Technologies Inc.

TYPE OF CASE: PAGA Standing (arbitration agreement)

COURT: California Supreme Court

JUDGE(S): Chief Justice Patricia Guerrero, Justice Carol A. Corrigan, Justice Goodwin H. Liu, Justice Leondra R. Kruger, Justice Joshua P. Groban, Justice Martin J. Jenkins, Justice Kelli Evans.

LAWYERS: Altshuler Berzon LLP, Michael Rubin, Robin Tholin; Goldstein Borgen Dardarian & Ho, Andrew P. Lee, Mengfei Sun; Desai Law Firm PC, Aashish Y. Desai, Maria A. De Castro

LAWYERS: Gibson, Dunn & Crutcher LLP, Theane D. Evangelis, Blaine H. Evanson, Bradley J. Hamburger; Littler Mendelson PC, Anthony G. Ly, Sophia B. Collins, Andrew M. Spurchise

Aggrieved employees who wish to join in a case under California's Private Attorney General Act to pursue claims against their bosses lose standing and are out of luck if they have been compelled to individual arbitration, the U.S. Supreme Court opined in Viking River Cruises Inc. v. Moriana in 2022 in an opinion by Associate Justice Samuel Alito. It looked like PAGA was a goner.

Not so fast, veteran appellate lawyer Michael Rubin cautioned. The Altshuler & Berzon LLP partner had litigated Viking River on behalf of former employee Angie Moriana and though the high court held in Viking River's favor, he wasn't ready to concede.

Rubin refused to take no for an answer, based on Associate Justice Sonia M. Sotomayor's concurrence in which she stated that she was joining the five-member majority with the understanding that if they wrongly interpreted California's standing law, then state courts were fully capable of correcting the mistake.

"This was an issue that was neither briefed or argued at the U.S. Supreme Court," Rubin said. "We knew within the first minute of reading her concurrence that we had to get this issue to the California Supreme Court as quickly as possible."

Speed was essential to preclude trial courts around the state from adopting Viking River to employees' disadvantage. Rubin immediately petitioned the U.S. Supreme Court for a rehearing, which slowed down the outcome. Then he sought out Aashish Y. Desai and Andrew Paul Lee, two attorneys who already had a suitable PAGA case ready for a review petition to the California Supreme Court. It was Adolph v. Uber Technologies, S274671 (Ca. S. Ct., filed May 20, 2022).

Rubin asked if he could join Desai and Lee to use Adolph as the vehicle to demonstrate that Justice Alito had misunderstood California law. They agreed. "Who better -- I kid -- than the lawyer who lost Viking River," laughed Desai of Desai Law Firm PC. "We brought Michael Rubin in for his expertise," said Lee of Goldstein, Borgen, Dardarian & Ho. "The results speak for themselves."

Rubin's petition persuaded the state high court to grant review solely on the Viking River question. The briefing Rubin and associate Robin S. Tholin wrote, edited by Desai and Lee, and Rubin's strong performance at oral argument resulted in a 7-0 opinion that kept PAGA alive. Plaintiffs retain standing to pursue PAGA remedies even if their individual claims have been compelled to arbitration, Associate Justice Goodwin H. Liu wrote.

"Viking posed an existential threat to PAGA, but it's now thriving," Rubin said, pointing out that in the last fiscal year, civil penalties under the law had risen over the previous year.

Theane D. Evangelis, the Gibson, Dunn & Crutcher LLP appellate litigator representing Uber, emailed: "Just last year, the U.S. Supreme Court held in Viking River that the FAA requires a plaintiff's individual PAGA claim to be pared away from the non-individual claims and sent to a separate arbitration. The Court instructed the California courts to apply this rule in this case and others, but they have refused to do so. We have filed a cert petition in Gregg v. Uber asking the U.S. Supreme Court to make clear that it meant what it said in Viking River."

--John Roemer