No tolling for the wicked, at least when it comes to Fed. R. Civ. P. 23(f) petitions

In a move that surely caused money to change hands between law nerds gambling on federal rules interpretations through off-shore gambling sites, the United States Supreme Court held, in Nutraceutical Corp. v. Lambert (February 26, 2019), that Fed. R. Civ. P. 23(f) — the portion of Rule 23 that permits parties to request permission for interlocutory review of class certification decisions within 14 days of the issuance of the decision — is a mandatory, but nonjurisdictional, claim-processing rule, and therefore not subject to tolling or other exceptions for reasons of equity or fairness. The decision was unanimous.

In Moorer v. Noble L.A. Events Inc., the Court of Appeal confirms that a PAGA plaintiff can't keep the aggrieved employee share for himself

In Moorer v. Noble L.A. Events Inc. (February 27, 2019), the Court of Appeal (Second Appellate District, Division Seven) definitively answered the question of whether the twenty-five percent share of a PAGA action that goes to “aggrieved employees” can be retained by the plaintiff bringing the action as a type of relator share. No, you can’t do that:

Moorer contends that because a PAGA action is a type of qui tam action, under which the private citizen enforces a statute on behalf of the government, the 25 percent of the civil penalties not allocated to the government should be distributed to the aggrieved employee who brings the PAGA action. Although Moorer asserts policy arguments for why this approach would serve the goals of PAGA, the Supreme Court in Iskanian v. CLS Transportation Los Angeles, LLC, supra, 59Cal.4th 348 (Iskanian) held otherwise. As the Supreme Court explained, a PAGA representative action “conforms to the traditional criteria” for bringing a qui tam action, “except that a portion of the penalty goes not only to the citizen bringing the suit but to all employees affected by the Labor Code violation.” (Iskanian, at p.382;see Williams v. Superior Court (2017) 3Cal.5th 531, 545 (Williams) [PAGA “deputiz[es]employees harmed by labor violations to sue on behalf of the state and collect penalties, to be shared with the state and other affected employees”].)

Slip op., at 7-8.

A word to the (un)wise...

Work product gets reused by other attorneys all the time in the legal profession. No big deal, right? If someone crafts a good argument on an issue, and someone else is facing that same issue, it makes sense to present that good argument. I take no issue with that.

What I do take issue with, however, is false attribution of the original source of the argument. That treads into dangerous terrain. I note this distinction because it has come to my attention that an “enterprising” young lawyer out there copied a large number of very elaborately formatted and designed Microsoft Word templates and then began passing them off as his own to other employers. Re-using an argument I’ve created is fine. Who could blame you really? But to tell an employer that you bring value because of the hard work that went into creating the templates that you ripped? That’s just shady. I am providing this public service announcement while maintaining the anonymity of the little rapscallion in the hope that this friendly note will encourage more honest disclosures going forward. By the way, I have the very first versions of many of those templates (like the mediation brief format I devised to resemble an appellate brief, rather than a letter or a pleading), creation-date-stamped and all, so I could prove my point if I had no other option…

A word to the…wise.

Timbs v. Indiana to be cited in PAGA cases in 3...2...1...

On Wednesday, February 20, 2019, the United States Supreme Court held, in Timbs v. Indiana, that the Eighth Amendment’s ban on excessive fines applies to the states. You can find plenty of analysis about this decision out there as it applies to things like state asset forfeiture laws, so I won’t even try to duplicate all of that analysis here, But it occurs to me that we should expect to see this holding tossed into the mix in PAGA cases on the theory that a large PAGA penalty violates the Eighth Amendment. How well that works remains to be seen, since, just spitballing here, a large PAGA penalty is pretty much only going to arise when an employer has lots of employees and violates lots of wage and hour provisions lots of times. Of course, out at the fringe, this argument might have some traction. I’m sure we’ll see in the next few years.

I'm moving to an up-and-coming employment law firm...

A awesome opportunity came my way quite recently, and I can now announce that I am joining Moon & Yang, effective February 25, 2019, where I will be focusing exclusively on employment class actions. I received quite a vote of confidence from the partners, for which I am very grateful. With a surging employment practice, this is a chance to great things.