Bernstein v. Virgin – Class Action Lawsuit Status

Update 8/19/22: The Court took the hearing that was scheduled for 8/18/22 off-calendar and indicated it will be issuing a ruling on Plaintiffs’ Motion to Amend the Judgment.  We are awaiting that ruling. Check back here for further updates.

Dear Class Members:

The following is a report from Class Counsel, the lawyers who represent the Class of Virgin America flight attendants, in Bernstein v. Virgin.

• The case is presently pending in the federal district court before Judge Jon S. Tigar.  Plaintiffs have prevailed on their claims for overtime, wage statement violations, meal and rest period violations, waiting time penalties, and the failure to pay flight attendants in a timely manner as required by California law.
• The district court has been directed by the appellate court to revise the judgment in accordance with the opinion that the appellate court issued last summer.  Accordingly, plaintiffs have moved to amend the judgment.  Alaska Airlines have made several arguments in opposition.  The district court will hear the motion on August 18, 2022, and will then decide what the total judgment will be.  Plaintiffs have asked the court to enter a judgment that is approximately $42 million.  Virgin is opposing Plaintiffs’ motion, but agrees that it must pay the Class for the overtime violations.
• Alaska Airlines continues to state that it cannot comply with any obligation to provide meal and rest periods in flight.  To be clear, the ruling in the case was limited: it found Virgin America (and Alaska ONLY as a successor-in-interest to Virgin America) liable for meal and rest periods only for flights within California and only for the time period of March 18, 2011 – December 15, 2017.

Please continue to check back here for further updates. If you have questions, please contact Class Counsel: monique@os-legal.com and alison@ktlawsf.com.

August 29, 2022

FAQs for Virgin America Flight Attendants

 
What is the case and what is it about?

The case, Bernstein et al. v. Virgin America, Inc. and Alaska Airlines, Inc., Case No. 15-cv-2277, is currently pending in the U.S. District Court for the Northern District of California before the Honorable Jon S. Tigar (the “District Court”).  The case is on behalf of flight attendants who worked for Virgin America at any time between March 18, 2011 and December 15, 2017 (the “Class”), and alleges that Virgin America failed to comply with certain California wage laws in the way it paid its flight attendants.  Alaska Airlines is the successor-in-interest to Virgin America, which means that Alaska is responsible for paying any judgment or settlement in the case.

What is the current status of the case?

The case is still in progress, and the District Court is currently deciding how much the judgment against Alaska Airlines will be.  The parties are awaiting that determination.  Plaintiffs’ counsel will post news of the determination as soon as we receive it.

What is the history of the case?

Here is a brief history of the case.  Plaintiffs Julia Bernstein, Esther Garcia, and Lisa Marie Smith filed the class action in March 2015.  Plaintiffs and their counsel vigorously litigated the case against Virgin/Alaska for several years.  In 2016, the District Court certified the Class.  Notice to all Class members was sent out at that time describing the lawsuit and providing 60 days to opt out of the Class.  In February 2019, the Court issued a judgment of over $77 million in favor of the Class.  Virgin/Alaska appealed that judgment to the Ninth Circuit Court of Appeals. A three-judge panel of the Ninth Circuit upheld the District Court’s ruling that California law applies to the Plaintiffs’ claims against Virgin for wage violations, and that Plaintiffs’ meal and rest break claims are not pre-empted, or superseded, by federal laws.  The Ninth Circuit upheld the District Court’s judgment awarding overtime wages, meal and rest period premiums, wage statement violations, and waiting time penalties to the Class.  The Ninth Circuit also upheld, although reduced, penalties under the Private Attorney General Act (PAGA) awarded to the State and the Class.  The Ninth Circuit reversed the District Court’s ruling awarding damages for minimum wage and for all hours worked, thereby reducing the overall initial judgment.  Accordingly, Plaintiffs have filed a motion to amend the judgment; this is the motion currently pending before the District Court.

Virgin/Alaska sought review in the U.S. Supreme Court of the part of the Ninth Circuit opinion upholding the District Court’s determination that Virgin flight attendants on flights strictly within California were entitled to meal and rest periods.  The U.S. Supreme Court denied review; that is, the Court declined to hear Virgin/Alaska’s challenge to the meal and rest period claims.

I am a former Virgin America flight attendant.  Do you need my current contact information?  If so, who can I contact to update my address?

Yes, Class counsel needs your current mailing and email addresses for any upcoming communications with the Class.  If you have moved recently, please send your updated information to Class counsel Alison Kosinski at alison@ktlawsf.com.

How much does Alaska, as successor in interest to Virgin America, owe in this lawsuit?

Plaintiffs have asked District Court to enter judgment against Virgin /Alaska in the amount of over $42 million.  This is divided into:  (1) approximately $19 million in money owed for overtime, meal and rest period violations, wage statement violations, and waiting time penalties, plus interest; and (2) approximately $23 million in fees payable to the State and to the Class.  Virgin disputes this amount and has asked the District Court to enter judgment in a lesser amount.  We will not know the final amount of the judgment until the District Court rules on Plaintiffs’ motion, which will likely be in the Fall of 2022. Plaintiffs will later ask the District Court to award attorneys’ fees to Class counsel.

As a class member, how much will I be awarded in damages?

Because the District Court has not yet determined the total amount of the judgment, we do not know the final amounts that each Class member will receive.  Once the District Court enters judgment and before any funds are distributed, Plaintiffs will propose a plan of allocation to the District Court to address the distributions to the Class.

What if I believe that the amount I will be awarded is incorrect?  What can I do?

Once the plan of allocation is proposed, if you believe there is an error in the amount to be distributed to you, you can contact Class counsel Monique Olivier (monique@os-legal.com) or Alison Kosinski (alison@ktlawsf.com).

How will this case affect Alaska or the airline industry in general?

The rulings in this case apply to Virgin’s compliance with California wage and hour laws, including minimum wage, overtime, wage statements, and meal and rest breaks, for the specific time period from March 18, 2011 through December 15, 2017.  Alaska, as Virgin’s successor in interest, admits that it must pay for Virgin’s overtime violations and certain other violations.  While Alaska continues to claim that it cannot comply with its obligation to provide meal and rest periods to flight attendants, the District Court and the Ninth Circuit ruled that Virgin violated the law with respect to meal and rest periods for flights within California and for the time period of March 18, 2011 to December 15, 2017.  The U.S. Supreme Court reviewed this ruling and declined to disturb it.  Further, the evidence Virgin offered to the District Court is that the cost of complying with the specific meal and rest period claims at issue here would be approximately $100 per flight.

I am a legacy Virgin America employee and I currently work for Alaska Airlines.  What is Alaska allowed, or not allowed, to tell me about this lawsuit?

Alaska and its representatives are not permitted to talk to Class members about this lawsuit, nor are they permitted to spread misinformation about the lawsuit.  If you believe that you are receiving inappropriate communications or misleading information from Alaska Airlines, please contact Class counsel.

Who should I contact if I have more questions?

You can contact Class counsel, Alison Kosinski at 415-230-2860 or alison@ktlawsf.com, and Monique Olivier at monique@os-legal.com.

Case Documents:

Plaintiffs Notice of Motion to Amend the Judgment Memorandum of Points and Authorities in Support Thereof

Supplemental Expert Report of David Breshears

Defendants’ Opposition to Plaintiffs’ Motion to Amend the Judgment

Decl. of V. Estevez ISO Defs Opp. to Motion to Amend Judgment

Brief ISO Mtn to Amend the Judgment

Plaintiffs’ Third Amended Complaint

Order Regarding the Plaintiffs’ Motion for Summary Judgment

District Court’s Orders Re Plaintiffs’ Summary Judgment

Ninth Circuit Opinion