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There’s actually a more powerful legislative tool available: citizens can be empowered to sue on behalf of the state for what is effectively class relief, and to partake in the recovery (with attorneys fees). This creates a market incentive to prosecute claims like this, and it also circumvents arbitration. PAGA is such a statute.


PAGA can be, and sometimes is, explicitly waived by name and/or by description in arbitration agreements which purport to compel arbitration of even those claims. The Supreme Court recently upheld such a waiver with respect to the individual plaintiffs' claims, but it left open the possibility of a representative PAGA claim; the California courts are still working out whether PAGA still allows such a "headless" claim, with disagreement among different California couts and no ruling yet from the California Supreme Court.

The problem with PAGA in this context is that the citizen is also a party to the arbitration agreement and therefore can be bound by the arbitration agreement, making the Supreme Court's jurisprudence on the Federal Arbitration Act applicable. My proposal avoids this problem since the FAA doesn't prevent citizens from notifying government agencies and doesn't prevent government agencies from suing (except in the rare context of any arbitration agreement to which the government agency is itself a party).

But if you want citizens to have a financial incentive with my proposal, then sure, legislatively give the first person to notify CPPA / CA AG a cut of the eventual proceeds (to be split with anyone else who is the first person to successfully sue for or enforce a corresponding writ of mandamus), and create a way to track who that first notifier is.




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