Piplack v. In-N-Out Burgers, 88 Cal.App.5th 1281 (2023)
Former employees of In-N-Out Burgers, on their own behalf and on behalf of similarly aggrieved employees, brought an action against In-N-Out Burgers seeking civil penalties under the Labor Code Private Attorneys General Act for In-N-Out Burgers’s alleged practices of requiring employees, without reimbursement, to purchase and wear certain articles of clothing and to purchase and use special cleaning products to maintain the clothes. In reliance on Viking River Cruises, Inc. v. Moriana, ––– U.S. ––––, 142 S.Ct. 1906 (2022), In-N-Out Burgers filed a motion to compel arbitration, arguing that Viking River requires plaintiffs’ individual PAGA claims to be arbitrated and all remaining representative claims dismissed for lack of standing. The trial court summarily denied In-N-Out Burgers’ motion to compel arbitration. In-N-Out Burgers appealed.
The Court of Appeal concluded that the arbitration agreements required individual PAGA claims to be arbitrated and that In-N-Out Burgers did not waive its right to compel arbitration through its litigation conduct. The Court of Appeal also held that Viking River’s requirement that the plaintiff’s individual claims under PAGA be compelled to arbitration did not necessarily deprive the plaintiff of standing to pursue representative claims as an aggrieved employee.
In Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016), a 6-2 opinion written by Justice Kennedy, the Supreme Court took a (small) step back from that draconian anti-class action bulwark – Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S. Ct. 2541 (2011). The Supreme Court made clear that plaintiffs may use “representative evidence,” not specific as to each individual involved, to show that the group could have had the same legal claim, without having to prove it individually – “a representative or statistical sample, like all evidence, is a means to establish or defend against liability.” It is allowed into a trial, of a class action or other type of case, depending “on the degree to which the evidence is reliable in proving or disproving the elements” of the legal claim at stake, the opinion added. “It follows that the Court would reach too far were it to establish general rules governing the use of statistical evidence, or so-called representative evidence, in all class-action cases.”
“In many cases,” according to the Court majority, “a representative sample is ‘the only practicable means to collect and present relevant data’” to prove that the company or entity being sued was legally at fault. The opinion went on to provide some guidance to when such evidence would be allowed into a class action case: that is, when each member of the class could rely on the sample to establish that he would have won the case, if he had filed it individually, rather than along with others.