[00:00:00] Speaker 00: May it please the court, your honors. [00:00:02] Speaker 00: My name is Robin Workman, and I represent the petitioner or the appellant in this matter. [00:00:10] Speaker 00: From Justice Sotomayor's concurrence in Viking River cruises, we know that if the Viking River cruise got the standing issue wrong, per Justice Sotomayor, quote, in an appropriate case, the state courts will have the last word. [00:00:27] Speaker 00: That last word was issued in the Adolf decision. [00:00:30] Speaker 00: The California Supreme Court, as it was allowed to do in interpreting state law, held that an individual such as Mr. Cooley had standing to prosecute the non-individual Paga claims. [00:00:47] Speaker 04: Under California law though, right? [00:00:49] Speaker 00: Yes. [00:00:50] Speaker 04: Yeah, that's true. [00:00:52] Speaker 04: But aren't we dealing with a separate question here, whether there's Article III standing for the federal courts? [00:00:59] Speaker 00: And I'll get to your honor's questions. [00:01:01] Speaker 00: The first thing we know is under California law, the California Supreme Court said yes, he has standing. [00:01:07] Speaker 00: Now, what do you do with it? [00:01:08] Speaker 04: Well, then why don't we just remand it to, why don't we instruct the district court to remand it to the state court? [00:01:14] Speaker 00: And that's going to be my final, you jumped to my final conclusion. [00:01:18] Speaker 04: That is- Be okay with that result? [00:01:20] Speaker 00: That is exactly what, not only would I be OK, that's what should happen. [00:01:24] Speaker 00: But let me go through your honor's questions. [00:01:26] Speaker 00: Under the Magadha case, the courts asked the question, does my plaintiff, the individual, have Article III standing? [00:01:35] Speaker 00: That answer is yes. [00:01:36] Speaker 00: If you look at the Magadha analysis. [00:01:38] Speaker 00: The answer is yes. [00:01:39] Speaker 00: Then why is it that you want to remand a state court? [00:01:42] Speaker 00: And I'll go to the next question and say why, OK? [00:01:45] Speaker 03: Why don't we address the questions as they're being asked? [00:01:49] Speaker 03: Can you answer Judge Forah's question? [00:01:52] Speaker 00: Yes. [00:01:52] Speaker 00: If you look at Magadha, when it analyzed Article III standing, it only held that the plaintiff did not have Article III standing as to the meal period violation, because the plaintiff suffered no meal period violation. [00:02:07] Speaker 00: So on that claim alone, the plaintiff had no Article III standing. [00:02:13] Speaker 00: But as to the wage statement claims, which [00:02:17] Speaker 00: directly impacted the plaintiff. [00:02:18] Speaker 00: The Magadha court said, the plaintiff has Article III standing on those claims, and then went on to decide substantively. [00:02:27] Speaker 00: So that's the answer to the first question, Your Honor. [00:02:30] Speaker 00: The second question is, does CAFA, does CAFA jurisdiction exist for Paga claims? [00:02:39] Speaker 00: In the Ninth Circuit, this court has repeatedly made clear [00:02:43] Speaker 00: that the answer to that question is no. [00:02:47] Speaker 00: The most often cited decision is this court's unpublished decision in Echeverria versus Aerotech. [00:02:53] Speaker 00: And in that case, the Ninth Circuit made clear that once all that remains is a Paga claim. [00:03:01] Speaker 00: In that case, the plaintiff voluntarily dismissed the state law claims and only had Paga. [00:03:07] Speaker 00: The court iterated a Paga claim cannot give rise to CAFA jurisdiction. [00:03:13] Speaker 05: But that was an unpublished decision? [00:03:15] Speaker 00: Yes. [00:03:15] Speaker 05: Let me ask you about that. [00:03:17] Speaker 00: But every case has followed it. [00:03:18] Speaker 00: There are other night circuit decisions. [00:03:19] Speaker 05: But let me follow up with that. [00:03:21] Speaker 05: What if a representative Paga claim has enough other affected or aggrieved employees to get to a size that wouldn't meet the CAFA requirements? [00:03:35] Speaker 00: This court has repeatedly said you cannot use a Paga case to reach the requirements under CAFA. [00:03:44] Speaker 00: That is well settled. [00:03:44] Speaker 05: In a published decision? [00:03:46] Speaker 00: Yes. [00:03:46] Speaker 00: That is well settled. [00:03:47] Speaker 05: Which one? [00:03:49] Speaker 00: You go back to, you start with, you look at the cases in Echeveria and you look at all of the district court cases that cite Echeveria. [00:03:58] Speaker 05: I'm asking if there's a Ninth Circuit published decision that says that we don't look at how the sides of the Paga claim for CAFA purposes. [00:04:08] Speaker 00: Urbano. [00:04:08] Speaker 00: Look at the Urbano decision that was the first case to address it, and this was years ago. [00:04:13] Speaker 00: When we first started these Paga actions and they first started coming along to the courts, and your honors and the district courts were faced with these remand motions. [00:04:22] Speaker 00: And Urbano made really clear you cannot use Paga issues [00:04:27] Speaker 00: either the numerosity, how many people you got, or the penalties. [00:04:31] Speaker 05: We know that because PAGA is not a class action. [00:04:33] Speaker 00: Right. [00:04:34] Speaker 00: Or the penalty provision to meet the remand standards. [00:04:37] Speaker 00: So the Urbino Court was really clear. [00:04:40] Speaker 00: Can I ask? [00:04:40] Speaker 00: Yes. [00:04:40] Speaker 05: I mean, CAFA is the Class Action Fairness Act, right? [00:04:44] Speaker 05: And a PAGA is not a class action. [00:04:48] Speaker 05: Is there a basis for jurisdiction? [00:04:50] Speaker 05: Was this case removed under CAFA? [00:04:54] Speaker 00: Correct. [00:04:55] Speaker 00: So what we have here, and this is what you see in all of these cases. [00:04:58] Speaker 00: I'm sorry. [00:04:59] Speaker 01: Before you make your next point, just to come back to my question. [00:05:01] Speaker 01: So the reason why you think remand to state court is correct is because while standing exists, subject matter jurisdiction does not. [00:05:08] Speaker 00: Correct, Your Honor. [00:05:09] Speaker 00: And I apologize if I didn't state that articulately enough. [00:05:13] Speaker 00: If you look at the only basis, and let me be really honest with the court, the only basis that the district court can keep this case is under its discretionary supplemental jurisdiction. [00:05:25] Speaker 00: It could do that if it so chose. [00:05:28] Speaker 04: Under 1367. [00:05:28] Speaker 04: Well, the district court's not trying to keep this case. [00:05:30] Speaker 04: The district court dismissed it. [00:05:32] Speaker 04: So I'm not sure why we're dismissing it. [00:05:34] Speaker 00: Well, because the court asked me in question two, are the Paga claims redressable in federal court? [00:05:42] Speaker 00: The answer to that question is yes, but only one way. [00:05:46] Speaker 00: Under the district court's exercise discretionarily of supplemental. [00:05:50] Speaker 04: And he can't do that. [00:05:53] Speaker 04: So if we remand this, we would have to, oh, he could keep it. [00:05:58] Speaker 04: So I guess we don't, we shouldn't, okay, we should not, if we think that there's jurisdiction in state court, we should not vacate and remand with instructions. [00:06:11] Speaker 04: to vacate and send back with instructions to remand to the state court, we should say, we should vacate, say the federal district court should consider supplemental jurisdiction. [00:06:23] Speaker 04: If there is none, then remand to the state court. [00:06:27] Speaker 04: Is that what you're asking for? [00:06:28] Speaker 00: First. [00:06:29] Speaker 00: I asked for the first, not the second. [00:06:31] Speaker 04: And this is why- Wait, you don't want remand to the state court? [00:06:34] Speaker 00: I do, but not with instructions to the district court to consider the supplemental jurisdictional issue. [00:06:39] Speaker 04: Oh, you don't want- [00:06:41] Speaker 00: My request. [00:06:42] Speaker 04: You're confusing me because I thought you said that the district court, the federal district court could maintain this case under supplemental jurisdiction and he had that right to do so. [00:06:52] Speaker 00: That is the only theoretical. [00:06:54] Speaker 00: And answer to question two, the court asked me to look at, is there a way where these claims can stay in the federal courts? [00:07:02] Speaker 00: The only theoretical way is through the exercise of discretionarily supplemental jurisdiction. [00:07:08] Speaker 00: But if the court looks at the line of decisions that follows Echeverria decision, there is a swath of decisions in the courts [00:07:18] Speaker 00: almost exclusively come down on the side of it is not appropriate, even under the discretionary categories, to keep this case in federal court because of the discretionary factors and the predominant factor is common. [00:07:34] Speaker 04: But that issue isn't before us. [00:07:36] Speaker 04: I mean, if we send this... [00:07:41] Speaker 04: This is a little bit of a curveball in my thinking of the case and because I never thought about supplemental jurisdiction here. [00:07:48] Speaker 04: Perhaps that's my mess, but I'm confused why you brought it up when you don't even want us to have the district court look at it. [00:07:56] Speaker 04: The district court, if we send it back down, he could go through the supplemental discretionary supplemental jurisdiction factors [00:08:05] Speaker 04: And he could say, I'm going to continue to exercise jurisdiction here. [00:08:09] Speaker 04: And then we could review that on appeal. [00:08:12] Speaker 04: I guess not interlocutorily at that point. [00:08:15] Speaker 04: We'd have to wait until the case was over. [00:08:17] Speaker 04: And we could say whether he violated the law by keeping it under supplemental jurisdiction. [00:08:25] Speaker 00: The reason why I raised it is because the court asked me a question. [00:08:28] Speaker 00: And I feel like I was candidly obligated to tell the court. [00:08:31] Speaker 04: Fair enough. [00:08:31] Speaker 00: You said, are they redressable? [00:08:34] Speaker 04: But it does complicate. [00:08:38] Speaker 04: Now my concern is, if we vacate with direction to remand, I think we still have to remand. [00:08:47] Speaker 04: Because the remand was improper. [00:08:48] Speaker 04: Wasn't the removal improper here? [00:08:51] Speaker 04: The removal, you said, was based on CAFA? [00:08:54] Speaker 00: Correct. [00:08:54] Speaker 04: But that's impromptu? [00:08:57] Speaker 00: Let me give you context, right? [00:09:00] Speaker 00: At the time it was removed, now I challenged, of course, on remand, but I lost. [00:09:06] Speaker 00: But there were state court claims at that time, right? [00:09:10] Speaker 00: I had alleged, traditionally, the class action as well as the PACA claims. [00:09:14] Speaker 00: So when removal came, [00:09:17] Speaker 00: they analyze, they being the defendant, analyze all the claims. [00:09:21] Speaker 05: Oh, so you had raised class action claims at the time. [00:09:23] Speaker 00: Oh, yes. [00:09:24] Speaker 05: OK. [00:09:25] Speaker 00: So what happened here is based on the arbitration agreement and the class action waiver, once I lost that, all the class claims were gone. [00:09:32] Speaker 00: The individual claim was sent to arbitration. [00:09:34] Speaker 00: That's why the district court says the only thing before it now are the non-individual Paga claims. [00:09:42] Speaker 00: That's all that's left. [00:09:43] Speaker 00: And the reason why this court should just straight remand [00:09:47] Speaker 00: The district court already had its opportunity to consider its supplemental jurisdiction and said no and dismissed everything. [00:09:55] Speaker 00: The only reason I was forced to appeal is because the district court inappropriately said that there was a stand. [00:10:01] Speaker 00: It's done. [00:10:01] Speaker 00: Right. [00:10:01] Speaker 00: Right. [00:10:02] Speaker 00: So that's why I had to appeal. [00:10:04] Speaker 00: But as far as remand goes, if the court looks at the line of decisions from Echeverria on, the overwhelming wealth says, based on comedy grounds, [00:10:14] Speaker 00: remand to the state grant is appropriate because it's purely state law. [00:10:19] Speaker 05: So what, tell me specifically what you think the appropriate remand should be. [00:10:26] Speaker 00: The order should read reversal because the district court's decision was incorrect with instructions to remand to the state court because the only thing that is left are the non-individual packet claims. [00:10:38] Speaker 00: And I'll save the rest of my time, unless your honors have any further questions. [00:10:41] Speaker 05: Thank you. [00:11:03] Speaker 02: May it please the court, Brad Schwann, on behalf of defendants and appellees to which I'll collectively refer to as terminics. [00:11:11] Speaker 02: Your honors have touched on this questioning. [00:11:14] Speaker 02: I do want to touch on the procedural history to address your question, to clarify that. [00:11:17] Speaker 02: And I think it's kind of been covered, but I just want to make sure it's entirely clear, because I do have a little bit of a disagreement. [00:11:26] Speaker 02: Here, Terminix timely removed Mr. Cooley's class and Paga claims to the district court under CAFA when there were class claims that previously existed. [00:11:34] Speaker 02: At that time, the court had the original jurisdiction over Mr. Cooley's class claims and exercised supplemental jurisdiction over his Paga claim. [00:11:43] Speaker 02: Plaintiff moved to remand. [00:11:44] Speaker 02: The district court denied that motion, holding that Terminix had established the jurisdictional minimum for the CAFA claim. [00:11:49] Speaker 05: And can I ask, so when the district court had supplemental jurisdiction over the Paga claims, it was both individual and representative Paga claims combined? [00:11:59] Speaker 02: At first. [00:12:00] Speaker 05: At first. [00:12:01] Speaker 02: Okay. [00:12:01] Speaker 02: Then we moved to compel arbitration and prevailed on that motion, at which time the individual claims were compelled to arbitration, the class claims were dismissed. [00:12:10] Speaker 02: The only thing that remained was the Paga claim. [00:12:13] Speaker 02: At that time, [00:12:14] Speaker 02: the court did implicitly exercise its supplement, its discretionary supplemental jurisdiction to retain the Pogger claims by staying them pending the arbitration. [00:12:22] Speaker 02: The court could have dismissed those claims or sent them back, or remanded them back to state court at that time if the court chose not to exercise its supplemental jurisdiction. [00:12:33] Speaker 02: Then again, [00:12:35] Speaker 02: After nearly a year had passed and Viking River came around, the case was sitting there, stayed. [00:12:42] Speaker 02: The underlying individual claims had not made it yet to arbitration. [00:12:47] Speaker 02: Terminex then filed a motion to lift the stay for the limited purpose of dismissing plaintiffs' individual Paga claims based on Viking River. [00:12:59] Speaker 02: Again, at that time, the court exercised its discretion and retained supplemental jurisdiction and made that decision. [00:13:05] Speaker 02: had the court decided that it wasn't appropriate to exercise supplemental jurisdiction at that time? [00:13:10] Speaker 04: I'm not sure that ruling effectively on a jurisdictional question, which I think is tantamount to retaining supplemental jurisdiction. [00:13:22] Speaker 04: I don't know, maybe. [00:13:23] Speaker 04: It's not intuitive to me, though. [00:13:26] Speaker 04: Is there a case law that supports that? [00:13:28] Speaker 02: I know the situation's pretty unique under the circumstances of this Hager claim being stayed in the state court, or I mean in the federal court, and then us coming back in. [00:13:37] Speaker 04: Okay, so your point is the district court should be given another opportunity to exercise, one way or another, either it has already decided to, or it should be given another opportunity to exercise supplemental jurisdiction. [00:13:53] Speaker 02: but i want to address this procedure grounds but actually uh... let me to start you think we should just a firm straight across the board well i think there's several there's three reasons that this case should be resolved in favor of terminus the first is that it's uh... plaintiff uh... tyron coolie settled his individual claims in this action as [00:14:13] Speaker 02: the appellee noted in their reply, both his individual claims and his individual pocket claims while this appeal was pending. [00:14:21] Speaker 05: Yeah, but Adolf is telling us that in state court, there's statutory standing for representative pocket claims. [00:14:29] Speaker 02: But we're not in state court. [00:14:31] Speaker 02: Oh, I know. [00:14:31] Speaker 05: So I guess I'm surprised that I was expecting you to say that you would be fine with just dismissing getting out of federal court and moving on to state court to just resolve this final thing. [00:14:44] Speaker 02: No, I think the appeal should be dismissed as moot under Brady versus Autozone. [00:14:50] Speaker 02: In that action, the Ninth Circuit held that an action is moot when the issues presented are no longer live or the parties lack a legally recognizable interest in the outcome. [00:15:00] Speaker 05: In the context in that matter, the court held that the testimony... How is it not live right now if he resolved individual Paga claims, but Adolf very clearly says that an arbitration proceeding involving individual Paga claims does not affect statutory standing under a California law? [00:15:20] Speaker 02: Again, this goes to the questions that this court posed to us when we came in here. [00:15:26] Speaker 02: Again, standing in federal court is a federal and not a state law determination. [00:15:30] Speaker 01: So I feel like we're talking in a circle here. [00:15:35] Speaker 01: Right. [00:15:35] Speaker 01: If we agree with you that federal standing doesn't exist, that doesn't mean state standing doesn't exist. [00:15:42] Speaker 01: So what basis would you have for us to not send this back to state court? [00:15:47] Speaker 02: Well, OK, so to jump to that, the basis would be because Adolf failed to take into account federal preemption. [00:15:55] Speaker 02: So ultimately, I was going to get to that point. [00:15:58] Speaker 04: So what I'll get to, I think- Do you think we should go a different way than Adolf because of the federal preemption issue? [00:16:05] Speaker 02: I agree. [00:16:06] Speaker 02: I think this case should be dismissed as moot because it's been settled. [00:16:09] Speaker 02: And the underlying, I would request that the underlying judgment not be vacated because [00:16:17] Speaker 04: You should be affirmed on alternative grounds. [00:16:19] Speaker 02: Well, affirmed on alternative grounds, or because the appeal here has been rendered moot by the appellant's own act. [00:16:26] Speaker 01: What interests are being served by exercising preemption here? [00:16:31] Speaker 02: What interests are being served? [00:16:33] Speaker 02: Fidelity to the effect? [00:16:34] Speaker 01: That's not being faithful to state law under ADOLF. [00:16:36] Speaker 01: So what interests would we be serving by applying preemption? [00:16:40] Speaker 02: fidelity of the Federal Arbitration Act. [00:16:44] Speaker 05: So what is the preemption argument? [00:16:48] Speaker 02: So the preemption argument is section three of the Viking River opinion makes the preemption argument and by an eight to one vote [00:16:57] Speaker 02: The Supreme Court adopted that. [00:16:59] Speaker 02: And while much has been given. [00:17:01] Speaker 02: I don't understand. [00:17:02] Speaker 05: Sure. [00:17:02] Speaker 05: Viking River said that this required jointer of individual and representative Paga claims could not happen. [00:17:11] Speaker 05: That was preempted by FAA. [00:17:14] Speaker 05: But that was it. [00:17:15] Speaker 05: So how is the FAA preempting state court representative Paga claims? [00:17:24] Speaker 05: Sure. [00:17:24] Speaker 02: Would disagree with the with the court when it says that that was it You know while Justice Sotomayor's concern concurrence is often quoted in in California appellate cases and in the Adolf as if it's the majority opinion in the matter There is another concurring opinion in Viking River drafted by Justice Barrett and joined by Justice Kavanaugh and the Chief Justice That's given considerably less attention, but it's arguably more persuasive [00:17:49] Speaker 02: While Justice Sotomayor offered an opinion on statutory standing in California's ability to alter the outcome of Viking River, that logic is nowhere to be found in the majority opinion. [00:17:58] Speaker 05: What in Justice Barrett's concurrence leads you to believe that there is preemption? [00:18:03] Speaker 05: She doesn't even mention the word preemption in her concurrence. [00:18:06] Speaker 02: Well, she says on the other, her opinion says, it didn't introduce a new argument. [00:18:13] Speaker 02: Instead, it said... I'm sorry, I apologize. [00:18:16] Speaker 05: The concurrence does not mention the word preemption. [00:18:19] Speaker 02: It doesn't mention the preemption, but part three of the opinion does mention preemption. [00:18:23] Speaker 02: And she says, reversal is required under our precedent because Paga's procedure is akin to other aggregation devices that cannot be imposed on a party to an arbitration agreement. [00:18:35] Speaker 02: She goes on to say, I would say nothing more than that. [00:18:38] Speaker 02: The discussion in parts two and four of the court's opinion is unnecessary to the result. [00:18:42] Speaker 02: and much of it addresses disputed state law questions as well as arguments not pressed or passed upon in this case. [00:18:48] Speaker 01: I gotta say I'm not following this argument because the FAA, if that's what you're basing a preemption argument on, the FAA is all about where claims are going to get decided and favoring agreements that parties reach about we're gonna decide things in arbitration. [00:19:04] Speaker 01: The FAA is nothing about killing claims and that's effectively what you're trying to say here is that [00:19:10] Speaker 01: because of the procedural developments in this case, the non-individual Paga claims, even though Adolf seems to suggest they should be revived, die because of the FAA. [00:19:21] Speaker 01: And I do not understand how you get there. [00:19:24] Speaker 02: Well, I think it's because of what the Viking River essentially created, a new class of claims, which is individual Paga claims. [00:19:30] Speaker 02: And so in this instance, what Justice Barrett is concurring to. [00:19:34] Speaker 01: But does the Supreme Court have any authority to do that? [00:19:36] Speaker 01: The Supreme Court doesn't create California law. [00:19:38] Speaker 02: It doesn't have anything to do with California law. [00:19:40] Speaker 02: It has to do with the individual agreement of the parties. [00:19:43] Speaker 02: The parties in this agreement have entered into a bilateral arbitration agreement. [00:19:47] Speaker 02: Mr. Cooley entered into an arbitration agreement that said, I will only agree to arbitrate Paga claims or representative claims on an individual basis. [00:19:56] Speaker 02: Indeed, [00:19:57] Speaker 05: Miss Cooley, who put a declaration in its... But Viking River did not affect Iskanyan's rule that you cannot force a waiver of a party raising Paga claims altogether. [00:20:13] Speaker 05: Would you agree with that? [00:20:13] Speaker 02: I think it did based on the doctrine of constitutional avoidance because it was able, it took an eerie guess. [00:20:18] Speaker 05: Council, you are describing things that are plainly contradicted by Viking River. [00:20:24] Speaker 05: Viking River expressly says that it did not touch, it was very careful in the way that it went through what it was disagreeing with and what was being preempted by FAA. [00:20:36] Speaker 02: It made that decision based on its interpretation of standing that it didn't need to go that far. [00:20:42] Speaker 05: However, Section 3 of the opinion is unambiguous in that the procedural— Can you read to me the line in Section 3 that you think supports your position? [00:20:52] Speaker 02: Sure, just a second. [00:21:20] Speaker 02: For that reason alone, state law cannot condition the enforceability of an arbitration agreement on the availability of a procedural mechanism that would permit a party to expand the scope of the arbitration by introducing claims that parties do not jointly agree to arbitrate. [00:21:33] Speaker 02: And that's what's happening here. [00:21:35] Speaker 02: So right now, there are what didn't previously exist before Viking River was a distinction between individual PACA claims and non-individual representative PACA claims. [00:21:46] Speaker 02: Ergo, what now exists also is the individual pocket claims of a slew of other employees. [00:21:52] Speaker 05: Right, but the point in that case was individual and representative pocket claims used to rise and fall together, right? [00:22:01] Speaker 05: And the California Supreme Court said, you can't force people to discard those claims. [00:22:09] Speaker 05: and you can't force people to arbitrate these representative actions. [00:22:15] Speaker 05: So therefore, the whole thing gets dismissed. [00:22:18] Speaker 05: And the US Supreme Court in Viking River said, you can't do that. [00:22:21] Speaker 05: That is violating people's right to agree to arbitrate individual claims. [00:22:27] Speaker 05: And that's how the decoupling occurred. [00:22:29] Speaker 05: But as Judge Forrest just mentioned, [00:22:33] Speaker 05: The Supreme Court is not in the business of destroying substantive rights that states create. [00:22:38] Speaker 05: And it seems as if your argument is saying that a person does not have the right to bring a representative Paga claim in state court when the California Supreme Court has just recognized that it can. [00:22:50] Speaker 02: First off, I take issue about the substantive versus the procedural. [00:22:53] Speaker 02: Amalgamated has said Paga is not a substantive statute. [00:22:56] Speaker 02: It's a procedural mechanism to allow an individual to pursue claims on behalf of the state. [00:23:00] Speaker 02: So it is procedural. [00:23:02] Speaker 02: And I'd also take issue with the characterization that the Supreme Court's not in the business of doing it, because that's exactly what it did in Viking River. [00:23:08] Speaker 02: The practical effect of what happened in Viking River is the individual claim was severed, it was compelled to individual arbitration, and the rest of the claims were dismissed. [00:23:15] Speaker 02: Now, they did it, I believe, on the doctrine of constitutional avoidance, because they didn't want to get into the preemption argument, because they didn't need to. [00:23:23] Speaker 02: Because in their perspective, their interpretation of California's statutory standing under Adolf was that it could be resolved in that way. [00:23:31] Speaker 02: Now, based on Adolf, which didn't consider preemption at all, I think you need to turn back to section three of the opinion. [00:23:39] Speaker 02: And again, I'll read from Justice Barrett's concurrence. [00:23:42] Speaker 02: She said, that alone is enough. [00:23:44] Speaker 02: And no one else in the opinion contradicts section three. [00:23:47] Speaker 02: Section three gets into preemption. [00:23:49] Speaker 02: And the issue here is Mr. Cooley entered into an agreement by its terms that said, I am agreeing to resolve my individual pocket claims individually. [00:24:01] Speaker 02: Everyone else has agreed to arbitrate their individual claims individually. [00:24:05] Speaker 02: And I believe that's what Section 3 stands for, but didn't need to resolve because the standing issue took precedence to avoid having to decide the preemption issue. [00:24:13] Speaker 02: I'm running out of time, and I want to address one other issue of the standing. [00:24:19] Speaker 02: First, I think it's Moot, because he's settled his claim. [00:24:21] Speaker 02: He has no financial pecuniary interest left in the claim. [00:24:25] Speaker 02: So under the federal precedent in Brady, [00:24:30] Speaker 02: It should be dismissed and while the typical practice upon a finding of mootness is to dismiss as moot, vacate the judgment and remand, that would not be appropriate here because the Supreme Court and the Ninth Circuit have recognized the exception to that practice where the party seeking the appellate relief participated in it by his own act. [00:24:50] Speaker 02: So I think resolving that judgment in this case in its unique circumstances, it should be dismissed as moot and the judgment should stand. [00:24:58] Speaker 02: If you don't agree with that, with respect to the... Have you raised mootness before or below? [00:25:05] Speaker 02: We hadn't, because the settlement agreement was entered virtually simultaneously with the appellant's reply brief. [00:25:10] Speaker 02: And the settlement itself is not a part of the record. [00:25:14] Speaker 04: So nobody's been heard on this. [00:25:15] Speaker 04: So if we were inclined to go this way, I think we'd probably have to seek supplemental briefing. [00:25:21] Speaker 02: And I'd be amenable to that. [00:25:22] Speaker 02: And I'd be willing to submit a redacted version of the settlement agreement that has the pertinent issues. [00:25:27] Speaker 04: Well, more than that. [00:25:29] Speaker 04: Anyway, keep going. [00:25:30] Speaker 02: Fair enough. [00:25:31] Speaker 02: As to the Magadha issue, our belief is that Mr. Cooley does not have Article III standing now that his claim has been dismissed. [00:25:41] Speaker 02: Excuse me, compelled to individual arbitration. [00:25:43] Speaker 02: Regardless of how individual arbitration comes out... I'm not sure that anybody's actually disagreeing with that now. [00:25:49] Speaker 02: Okay. [00:25:50] Speaker 04: Well, in that case, then I'll refrain from... The question is whether we should remand a state court under 1447C because... [00:26:00] Speaker 04: This was initially removed, and it seems clear, subject to your interesting preemption arguments, that standing exists in state court. [00:26:12] Speaker 02: And that's, and if I can just have a brief second to address that, is I think that's the exact reason why it shouldn't be remanded to state court, because I think supplemental jurisdiction should be retained here, because I'd say that the district court already did it. [00:26:26] Speaker 02: and the comedy issues, judicial economy, convenience, and fairness don't come into play because in all those other cases where supplemental jurisdiction was not exercised and it was sent back, it was because there was still a Paga claim to be tried in an extensive trial. [00:26:40] Speaker 02: Here it's a pure question of law, and if the preemption argument is adopted, then the claim just gets dismissed. [00:26:46] Speaker 02: There's no need to send it back to the state court. [00:26:48] Speaker 02: Thank you, counsel. [00:26:49] Speaker 02: We'll hear a rebuttal. [00:26:58] Speaker 00: The California Supreme Court in Kim vs. Rains specifically held that a plaintiff still has standing under Paga to bring the non-representative, the non-individual claims, even if that plaintiff has settled his individual claims. [00:27:11] Speaker 00: Kim v. Rains has stood. [00:27:13] Speaker 00: It was cited by the Viking Rivers Cruises case and was cited by Adolph. [00:27:18] Speaker 00: The PAGA analysis standing has two elements as identified in ADOF. [00:27:24] Speaker 00: None of them have anything to do with whether the claim was settled or not or there's a pecuniary interest. [00:27:29] Speaker 00: Was the individual employed by the employer? [00:27:32] Speaker 00: Did the individual suffer under the practices at issue? [00:27:36] Speaker 00: So the settlement agreement has no impact on the standing analysis. [00:27:42] Speaker 00: To the extent that it did, this is something that counsel didn't raise, in the settlement agreement, if the honors want to see it, I specifically included language that said the settlement of these claims, to the extent I needed it, do not impact Mr. Cooley's ability to bring the non-individual Paga claims. [00:28:00] Speaker 01: What relevance do you think the provision that your friend across the aisle points us to in Viking River has in this case? [00:28:06] Speaker 00: None. [00:28:07] Speaker 00: Viking River specifically addressed preemption. [00:28:09] Speaker 00: It knew what it was preempting. [00:28:11] Speaker 00: It preempted one issue, as Your Honor pointed out, the Estanian rule that said you could not split the Paga claim from individual to non-individual claims. [00:28:23] Speaker 00: That is the only thing that the Viking River's court said was preempted. [00:28:29] Speaker 00: If you wanted to preempt everything, it clearly could, but the Viking Rivers Court not only didn't address it, it specifically went the other way and said it was not overturning the Eskenian rule, that the Eskenian rule that barred these sorts of waivers still lives. [00:28:47] Speaker 00: So this preemption argument has no merit. [00:28:51] Speaker 00: It was specifically addressed and rejected by the Viking Rivers Court. [00:28:56] Speaker 00: And this argument that somehow a slew of other claims are going to be allowed to come through [00:29:03] Speaker 00: this backdoor procedure also was specifically addressed by Viking Rivers, because the Viking Rivers Court made clear that judgments in representative Paga actions, quote, are not binding on non-party employees as to any individually held claims. [00:29:24] Speaker 00: Their individually held claims can still go to arbitration if they've got an agreement. [00:29:28] Speaker 00: That still goes. [00:29:30] Speaker 00: But this non-individual claims, those are only between two parties, the state, the LWDA, and the defendant. [00:29:41] Speaker 00: At pages 1920 and 1921, the Viking Rivers Court makes this clear. [00:29:48] Speaker 00: Now, they argue and they rely on areas [00:29:52] Speaker 00: that existed back in the day, the pre-Viking Rivers Day, when, as Your Honor pointed out, the California courts thought these two claims couldn't be split. [00:30:01] Speaker 00: It was a 2009 decision, and it said what it said in 2009. [00:30:06] Speaker 00: Viking Rivers said what it said currently, and that the resolution of the non-individual claims have no impact [00:30:17] Speaker 00: on the individual PACA claims of third parties. [00:30:20] Speaker 04: Can you address, maybe you are, the mootness question. [00:30:25] Speaker 04: Does the settlement make this case moot? [00:30:28] Speaker 00: No. [00:30:29] Speaker 00: Under Kim V. Reigns, it does not make this case moot because the California Supreme Court in the Kim decision [00:30:36] Speaker 00: which Viking Rivers relies on for its analysis specifically held. [00:30:41] Speaker 00: If the individual plaintiff, the fact that they settled their claims has no impact at all on their standing. [00:30:47] Speaker 04: So we don't need supplemental briefing. [00:30:49] Speaker 00: We do not need supplemental briefing. [00:30:51] Speaker 00: I'm sorry. [00:30:51] Speaker 04: Because we have everything before us, and it just collapses into the same arguments that we've already looked at. [00:30:57] Speaker 00: I am more than happy to give you the settlement agreement if you want to see it. [00:31:00] Speaker 00: But Kim versus Raines is the definitive and undisputed [00:31:07] Speaker 00: Final word, I guess, to quote Justice Sotomayor on this point. [00:31:11] Speaker 00: The PAGA's standing has the two elements. [00:31:15] Speaker 00: My client meets them. [00:31:16] Speaker 00: And even under Viking Rivers and ADOF, it still exists. [00:31:21] Speaker 00: So what I requested from your honors just remain to state court, I believe, is the appropriate course. [00:31:26] Speaker 04: Thank you, counsel. [00:31:27] Speaker 04: Thank you to both for your arguments in the case today. [00:31:29] Speaker 04: The case is now submitted, and the court is adjourned.