FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RODERICK MAGADIA, individually 

and on behalf of all those similarly 

situated,

Plaintiff-Appellee,

v.

WAL-MART ASSOCIATES, INC., a 

Delaware corporation; WALMART 

INC., a Delaware corporation,

Defendants-Appellants.

No. 19-16184

D.C. No.

5:17-cv-00062-

LHK

OPINION

Appeal from the United States District Court

for the Northern District of California

Lucy H. Koh, District Judge, Presiding

Argued and Submitted November 19, 2020

Pasadena, California

Filed May 28, 2021

Before: Consuelo M. Callahan and Patrick J. Bumatay, 

Circuit Judges, and Gregory A. Presnell,* District Judge.

Opinion by Judge Bumatay

* The Honorable Gregory A. Presnell, United States District Judge 

for the Middle District of Florida, sitting by designation.
2 MAGADIA V. WAL-MART ASSOCIATES

SUMMARY**

Article III Standing / California Labor Law

In a class action suit brought by Roderick Magadia, a 

former Walmart employee, alleging violations of California 

Labor Code’s meal-break and wage-statement requirements, 

the panel: (1) vacated the district court’s judgment and 

award of damages on a Cal. Labor Code § 226.7 claim for 

meal-break violations and remanded with instructions to 

further remand the claim to state court; and (2) reversed the 

judgment and award of damages on two Cal. Labor Code 

§ 226(a) claims for wage-statement violations and remanded 

with instructions to enter judgment for Walmart. 

The panel held that Magadia lacked Article III standing 

to bring a California Private Attorney General Act 

(“PAGA”) claim for Walmart’s meal-break violations since 

he himself did not suffer injury. Specifically, the panel noted 

that qui tam actions are a well-established exception to the 

traditional Article III analysis, but held that PAGA’s features 

diverged from Vermont Agency of Nat. Res. V. U.S. ex rel. 

Stevens, 529 U.S. 765 (2000)’s assignment theory of qui tam

injury. The panel also held that PAGA’s features departed 

from the traditional criteria of qui tam statutes.

The panel next considered whether Magadia had 

standing to bring his two wage-statement claims under Cal. 

Labor Code § 226(a), which requires employers to 

accurately furnish certain itemized information on its 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
MAGADIA V. WAL-MART ASSOCIATES 3

employees’ wage statements. The panel held that a violation 

of § 226(a) created a cognizable Article III injury here. To 

determine whether the violation of a statute constituted a 

concrete harm, the panel conducted a two-part inquiry. First, 

the panel held that § 226(a) protected employees’ concrete 

interest in receiving accurate information about their wages 

in their pay statements; and Walmart’s failure to disclose 

statutorily required information on Magadia’s wage 

documents, if true, violated a “concrete interest.” Second, 

Magadia sufficiently alleged that Walmart’s § 226(a) 

violation – depriving him of accurate itemized wage 

statements – presented a material risk of harm to his interest 

in the statutorily guaranteed information. The panel also 

concluded that other class members who could establish 

§ 226(a) injuries had standing to collect damages.

Finally, the panel considered the merits of Magadia’s 

two claims under Cal. Labor Code § 226(a). First, the panel 

held that the wage statement law did not require Walmart to 

list the rate of the MyShare overtime adjustment on 

employees’ wage statements, and the district court erred in 

holding otherwise. Because Walmart must retroactively 

calculate the MyShare overtime adjustment based on work 

from six prior periods, the panel did not consider it an hourly 

rate “in effect” during the pay period for purposes of 

§ 226(a)(9), and Walmart complied with the wage statement 

law here. Second, the panel held that Walmart’s Statement 

of Final Pay did not violate the wage statement statute. 

Namely, Walmart complied with Cal. Labor Code 

§ 226(a)(6) when it furnished the required pay-period dates 

to Magadia and other terminated employees in their final 

wage statements at the end of the next semimonthly pay 

period.
4 MAGADIA V. WAL-MART ASSOCIATES

COUNSEL

Theane Evangelis (argued), Julian W. Poon, Bradley J. 

Hamburger, and Joseph Tartakovsky, Gibson Dunn & 

Crutcher LLP, Los Angeles, California, for DefendantsAppellants.

Jonathan E. Taylor (argued), Deepak Gupta, Gregory A. 

Beck, and Daniel Wilf-Townsend, Gupta Wessler PLLC,

Washington, D.C.; Larry W. Lee, Kwanporn Tulyathan, and 

Max Gavron, Diversity Law Group PC, Los Angeles, 

California; Dennis S. Hyun, Hyun Legal APC, Los Angeles, 

California; for Plaintiff-Appellee.

Thomas R. Kaufman, Sheppard Mullin Richter & Hampton 

LLP, Los Angeles, California, for Amici Curiae Employers 

Group and California Employment Law Council.

Matthew B. Gunter, Assistant General Counsel, RCN 

Capital LLC, South Windsor, Connecticut, for Amicus 

Curiae RCN Capital LLC.

Deanna M. Rice, O’Melveny & Myers LLP, Washington, 

D.C.; Anton Metlitsky, O’Melveny & Myers LLP, New 

York, New York; Steven P. Lehotsky and Jonathan D. Urick, 

U.S. Chamber Litigation Center, Washington, D.C.; 

Stephanie Martz, National Retail Federation, Washington, 

D.C.; Deborah R. White, Retail Litigation Center Inc., 

Arlington, Virginia; for Amici Curiae Chamber of 

Commerce of the United States of America, National Retail 

Federation, and Retail Litigation Center Inc.

Henry Hewitt and Sairah Budhwani, Legal Aid at Work, San 

Francisco, California, for Amicus Curiae Legal Aid at Work.
MAGADIA V. WAL-MART ASSOCIATES 5

OPINION

BUMATAY, Circuit Judge:

Roderick Magadia worked sales for Walmart for eight 

years. After the company let him go, Magadia filed a class 

action suit against Wal-Mart Associates, Inc., and Walmart, 

Inc., (collectively, “Walmart”), alleging three violations of 

California Labor Code’s wage-statement and meal-break 

requirements. First, Magadia alleged that Walmart didn’t 

provide adequate pay rate information on its wage 

statements. See Cal. Lab. Code § 226(a)(9). Next, he 

claimed that Walmart failed to furnish the pay-period dates 

with his last paycheck. See id. § 226(a)(6). Finally, he 

asserted that Walmart didn’t pay adequate compensation for 

missed meal breaks. See id. § 226.7(c). Magadia sought 

penalties for these claims under California’s Private 

Attorneys General Act (“PAGA”), which authorizes an 

aggrieved employee to recover penalties for Labor Code 

violations on behalf of the government and other employees. 

See id. § 2699.

The district court at first certified classes corresponding 

to each of Magadia’s three claims. After summary judgment 

and a bench trial, the district court found that Magadia in fact 

suffered no meal-break violation and decertified that class. 

Even so, the district court allowed Magadia to still seek 

PAGA penalties on that claim based on violations incurred 

by other Walmart employees. The district court then ruled 

against Walmart on the three claims and awarded Magadia 

and the two remaining classes over $100 million in damages 

and penalties.

On appeal, we hold that Magadia lacked standing to 

bring the meal-break claim because he did not suffer injury 

himself. As for the two wage-statement claims, we hold that 
6 MAGADIA V. WAL-MART ASSOCIATES

Magadia had standing but conclude that Walmart did not 

breach California law.

I.

Walmart pays its employees and issues wage statements 

every two weeks. Walmart also voluntarily offers quarterly 

“MyShare” bonuses to high-performing employees. 

Walmart reports these quarterly bonuses on qualifying 

employees’ wage statements as “MYSHARE INCT.”

Besides the bonus itself, California law requires 

Walmart to adjust the rate of overtime pay it awards 

employees to account for these bonuses. See Cal. Lab. Code 

§ 510. That’s because California considers an employee’s 

bonus to be part of the employee’s “regular rate of pay” 

when calculating overtime rates. See Alvarado v. Dart 

Container Corp. of Cal., 4 Cal. 5th 542, 554 (2018). Thus, 

if a Walmart employee receives a MyShare bonus and 

worked overtime during that quarter, the employee must 

receive an adjusted overtime pay because of that MyShare 

bonus. Walmart calculates this adjusted overtime pay using 

a formula that includes the number of hours the employee 

worked each pay period of the quarter and the employee’s 

overtime rate.1 Walmart lists this adjusted overtime pay on 

its employee’s wage statement as “OVERTIME/INCT.” 

Walmart’s OVERTIME/INCT item appears as a lump sum 

on the wage statement issued at the end of the quarter, with 

no corresponding “hourly rate” or “hours worked.”

1 In particular, to calculate the adjusted overtime pay, Walmart adds 

together all the overtime hours an employee worked over the quarter, 

prorates the MyShare bonus to account for the total overtime hours 

worked that quarter, and then adjusts upward the overtime hourly rate 

for overtime already paid based on the prorated MyShare bonus.
MAGADIA V. WAL-MART ASSOCIATES 7

California law separately provides that when “an 

employer discharges an employee,” the employee’s wages 

are due “immediately.” Cal. Lab. Code § 201(a). In 

compliance with the law, Walmart issues a final paycheck at 

the time of an employee’s termination, along with a 

“Statement of Final Pay.” The Statement of Final Pay does 

not include the “dates of the period for which the employee 

is paid.” See id. § 226(a)(6). But Walmart separately 

provides the employee a final wage statement at the end of 

the semimonthly pay period that lists the required dates.

California law also requires employers to provide 

employees “a meal period of not less than 30 minutes” every 

five hours. Id. § 512(a). If employers fail to provide this 

meal break, they must pay their employees “one additional 

hour of pay at the employee’s regular rate of compensation.” 

Id. § 226.7(c). Walmart paid its employees whenever it 

failed to provide them with a compliant meal break. But 

when calculating its employees’ “regular rate of 

compensation” for meal-break violations, Walmart relied on 

the employees’ hourly rate and did not factor in the MyShare 

adjustment to overtime rates.

Magadia worked as a sales associate at Walmart from 

2008 to 2016. In late 2016, Walmart fired Magadia and 

provided him with his final paycheck and a Statement of 

Final Pay. At the end of his last pay period with the 

company, Walmart also provided Magadia with his final 

wage statement. Magadia then filed a putative class action 

against Walmart in state court, alleging three California 

Labor Code violations: (1) that Walmart’s wage statements 

violated Labor Code § 226(a)(9) because its adjusted 

overtime pay does not include hourly rates of pay or hours 

worked; (2) that Walmart violated § 226(a)(6) by failing to 

list the pay-period start and end dates in its Statements of 
8 MAGADIA V. WAL-MART ASSOCIATES

Final Pay; and (3) that Walmart’s meal-break payments 

violated § 226.7 because it did not account for MyShare 

bonuses when compensating employees. Magadia also 

sought penalties for all three claims under PAGA. See Cal. 

Lab. Code § 2698 et seq. Walmart removed the case to 

federal court. See 28 U.S.C. § 1332(d)(2).

After removal, the district court certified a class for each 

of Magadia’s three claims. The district court later granted 

Magadia partial summary judgment on his two wagestatement claims and held a three-day bench trial on all three 

claims. The district court ultimately ruled for Magadia on 

his two wage-statement claims, holding that Walmart 

violated both § 226(a)(9) and § 226(a)(6). On the remaining 

meal-break claim, the district court found that Magadia did 

not establish that he personally suffered any meal-break 

violation. The district court held that, since Magadia failed 

to show that Walmart denied him meal breaks required under 

California law, his claims were not typical of the claims or 

defenses of the class. See Fed. R. Civ. P. 23(a)(3). As a 

result, the district court decertified the class based on that 

claim and denied Magadia’s individual claim under § 226.7. 

Still, the district court permitted Magadia to recover PAGA 

penalties on the claim because Magadia had established that 

other Walmart employees had sustained meal-break 

violations.

The district court then awarded Magadia $101,947,700 

for the three claims: $96 million award for the adjustedovertime-rate claim ($48 million in statutory damages and 

another $48 million in PAGA penalties); $5.8 million in 

PAGA penalties for the final-wage-statement claim; and 

$70,000 in PAGA penalties for the meal-break claim.
MAGADIA V. WAL-MART ASSOCIATES 9

On appeal, we review findings of fact for clear error and 

conclusions of law de novo. OneBeacon Ins. Co. v. Haas 

Indus., Inc., 634 F.3d 1092, 1096 (9th Cir. 2011).

II.

Before we turn to the merits of his claims, we must 

ensure that Magadia has Article III standing. To meet the 

“irreducible constitutional minimum” of standing, a plaintiff 

must have (1) suffered an “injury in fact,” (2) that is “fairly 

traceable” to the challenged conduct, and (3) will be 

redressed by a favorable decision. Lujan v. Defs. of Wildlife, 

504 U.S. 555, 560 (1992). To show an injury in fact, the 

plaintiff “must show that he or she suffered ‘an invasion of 

a legally protected interest’ that is ‘concrete and 

particularized’ and ‘actual or imminent, not conjectural or 

hypothetical.’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 

(2016) (quoting Lujan, 504 U.S. at 560). For an injury to be 

concrete, it “must actually exist.” Id. Standing must “persist 

throughout all stages of [the] litigation.” Hollingsworth v. 

Perry, 570 U.S. 693, 705 (2013).

A.

1.

We start by considering whether Magadia has standing 

to bring a PAGA claim for the meal-break violations. 

Although the district court found that he did not suffer a 

meal-break injury himself, Magadia insists he has standing 

to pursue this claim because PAGA is a qui tam statute. Of 

course, with no individualized harm, Magadia cannot 

establish traditional Article III standing. See Lujan, 504 U.S. 

at 560 & n.1.
10 MAGADIA V. WAL-MART ASSOCIATES

But qui tam actions are a “well-established exception” to 

the traditional Article III analysis. Spokeo, 136 S. Ct. 

at 1552 n.* (Thomas, J., concurring) (simplified); see Vt. 

Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 769 

n.1, 774–76 (2000) (discussing qui tam’s historical pedigree 

and concluding that the False Claims Act (“FCA”) was a qui 

tam statute). Qui tam is short for “qui tam pro domino rege 

quam pro se ipso in hac parte sequitur,” meaning he “who 

pursues this action on our Lord the King’s behalf as well as 

his own.” Vermont Agency, 529 U.S. at 768 n.1. A qui tam

statute permits private plaintiffs, known as relators, “to sue 

in the government’s name for the violation of a public right.” 

Spokeo, 136 S. Ct. at 1552 n.* (Thomas, J., concurring).

Qui tam standing for uninjured plaintiffs flows from an 

assignment theory. Vermont Agency, 529 U.S. at 773–74. 

The Court has recognized that an “adequate basis for the 

relator’s suit for his bounty is to be found in the doctrine that 

the assignee of a claim has standing to assert the injury in 

fact suffered by the assignor.” Id. at 773. In a qui tam action,

the government partially assigns its claims to the relator, 

“who then may sue based upon [the government’s] injury.” 

U.S. ex rel. Kelly v. Boeing Co., 9 F.3d 743, 748 (9th 1993). 

In other words, a “qui tam action is for a redress” of the 

government’s injury, and “it is the government’s injury that 

confers standing upon the private person.” Stalley v. 

Methodist Healthcare, 517 F.3d 911, 917 (6th Cir. 2008). 

Thus, the Court has concluded that a non-injured relator has 

standing when the statute “effect[ed] a partial assignment of 

the Government’s damages claim.” Vermont Agency, 

529 U.S. at 773.

Outside the narrow “exception” of qui tam actions, 

however, the Supreme Court has expressed skepticism that 

“mere authorization to represent a third party’s interests is 
MAGADIA V. WAL-MART ASSOCIATES 11

sufficient to confer Article III standing on private parties 

with no injury of their own.” Hollingsworth, 570 U.S. 

at 710. After all, States “have no power directly to enlarge 

or contract federal jurisdiction.” Fiedler v. Clark, 714 F.2d 

77, 80 (9th Cir. 1983) (per curiam) (simplified). Ultimately, 

“standing in federal court is a question of federal law, not 

state law.” Hollingsworth, 570 U.S. at 715.

Though the California Supreme Court has categorized 

PAGA as “a type of qui tam action,” Iskanian v. CLS Transp. 

Los Angeles, LLC, 59 Cal. 4th 348, 360 (2014), we must look 

beyond the mere label attached to the statute and scrutinize 

the nature of the claim itself. Historically, common-law 

courts have required an individualized showing of injury 

before permitting a private plaintiff to vindicate “public 

rights”—rights involving duties owed “to the whole 

community, considered as a community, in its social 

aggregate capacity.” Spokeo, 136 S. Ct. at 1553 (Thomas, J., 

concurring) (quoting 4 William Blackstone, Commentaries 

*5). And in the modern era, the Court has rejected several 

attempts by States to bypass the individualized-injury 

requirement of Article III by authorizing private plaintiffs to 

represent the States’ interests. See, e.g., Hollingsworth, 570 

U.S. at 707–13.

With that in mind, we examine “historical practice” to 

determine whether a harm “has traditionally been regarded 

as a basis for a lawsuit.” Spokeo, 136 S. Ct. at 1549. A 

purported qui tam statute must hew closely to the traditional 

scope of a qui tam action for an uninjured plaintiff to 

maintain suit under Article III. Cf. Vermont Agency, 

529 U.S. at 774 (“[T]he Constitution established that judicial 

power could come into play only in matters that were the 

traditional concern of the courts at Westminster[.]” 

(simplified)). So long as PAGA claims satisfy the traditional 
12 MAGADIA V. WAL-MART ASSOCIATES

criteria for a qui tam action, Magadia may pursue his mealbreak claim.

2.

On close inspection, PAGA has several features

consistent with traditional qui tam actions—yet many that 

are not. Foremost among the similarities, PAGA operates as 

an assignment from California to a relator-type plaintiff. A 

PAGA plaintiff serves as a “proxy or agent of the state’s 

labor law enforcements agencies” and represents the “same 

legal right and interest as state labor law enforcement 

agencies.” Iskanian, 59 Cal. 4th at 380 (simplified). As part 

of that assignment, PAGA authorizes an aggrieved employee 

to recover a “civil penalty” that could have otherwise been 

“assessed and collected by” California’s Labor & Workforce 

Development Agency (“LWDA”). Cal. Lab. Code 

§ 2699(a).

Also consistent with traditional qui tam actions, PAGA 

requires private-party plaintiffs to “share a monetary 

judgment with the government[,] . . . with the government 

receiving the lion’s share.” Methodist Healthcare, 517 F.3d 

at 918. The FCA, for example, designates 25% of the 

judgment to the relator, with the rest remitted to the Federal 

government. 31 U.S.C. § 3730(d)(1), (2). Similarly, a 

PAGA plaintiff must give the “lion’s share” (75%) of the 

civil penalties recovered to the LWDA with the remainder 

distributed among “aggrieved employees.” Cal. Lab. Code 

§ 2699(i).

And just like qui tam statutes, PAGA permits the 

government to dictate whether a private plaintiff may bring 

a claim in the first place. For example, FCA relators must 

first present the government with their proposed complaint 

and related materials before they can start an action against 
MAGADIA V. WAL-MART ASSOCIATES 13

a defendant; at that point the government may consider 

whether to “intervene and proceed with the action” in the 

relator’s place. 31 U.S.C. § 3730(b)(1)–(3). If the 

government elects to intervene, it will “take over the action,” 

and the prosecution of the case will “be conducted by the 

Government,” not the would-be plaintiff. Id. § 3730(b)(4). 

Likewise, a putative PAGA plaintiff must give written notice 

of the alleged Labor Code violation to the LWDA before 

suing. See Cal. Lab. Code § 2699.3(a). A PAGA suit can 

begin only after the LWDA provides notice that “it does not 

intend to investigate the alleged violation” in the plaintiff’s 

notice or if the LWDA doesn’t respond within 65 days. Cal. 

Lab. Code § 2699.3(a)(2)(A). But if, after investigating the 

violation, the LWDA decides to issue a citation to the 

employer, “the employee may not commence” a civil action 

under PAGA. Id. § 2699.3(b)(2)(A)(i).

Despite these similarities, however, PAGA differs in 

significant respects from traditional qui tam statutes. First, 

PAGA explicitly involves the interests of others besides 

California and the plaintiff employee—it also implicates the 

interests of nonparty aggrieved employees. By its text, 

PAGA authorizes an “aggrieved employee” to bring a civil 

action “on behalf of himself or herself and other current or 

former employees.” Cal. Lab. Code § 2699(a) (emphasis 

added).2 And PAGA requires 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, 

59 Cal. 4th at 382 (emphasis added); see Cal Lab. Code 

2 By contrast, an FCA relator must sue in the name of the United 

States, see 31 U.S.C. § 3730(b)(1), which designates that the government 

is the real party in interest, Methodist Healthcare, 517 F.3d at 918.
14 MAGADIA V. WAL-MART ASSOCIATES

§ 2699(i).3 Finally, a judgment under PAGA binds 

California, the plaintiff, and the nonparty employees from 

seeking additional penalties under the statute. Iskanian, 

59 Cal. 4th at 381.4 PAGA therefore creates an interest in 

penalties, not only for California and the plaintiff employee, 

but for nonparty employees as well.

This feature is atypical (if not wholly unique) for qui tam

statutes.5 It conflicts with qui tam’s underlying assignment 

theory—that the real interest is the government’s, which the 

government assigns to a private citizen to prosecute on its 

behalf. Cf. Stalley v. Catholic Health Initiatives, 509 F.3d 

517, 522 (8th Cir. 2007) (“A ‘private’ right is different from 

3 See also Canela v. Costco Wholesale Corp., 971 F.3d 845, 852 n.3 

(9th Cir. 2020) (PAGA’s monetary judgment “is not awarded 

exclusively to the employee who files the suit” but is rather “allocated 

among the aggrieved employees.”); Williams v. Superior Court, 3 Cal. 

5th 531, 545 (2017) (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.”); Arias v. Superior Court, 

46 Cal. 4th 969, 986 (2009) (“[T]here remain situations in which 

nonparty aggrieved employees may profit from a judgment in an action 

brought under [PAGA].”).

4 The PAGA action, however, does not prevent nonparty aggrieved 

employees from seeking “other remedies under state or federal law.” 

Baumann v. Chase Inv. Servs. Corp., 747 F.3d 1117, 1123 (9th Cir. 

2014).

5 For example, none of the other modern qui tam statutes mentioned 

in Vermont Agency authorize suits on behalf of non-parties or involve 

payments to non-parties. See 529 U.S. at 769 n.1 (citing 25 U.S.C. § 81, 

26 U.S.C. § 201, 35 U.S.C. § 292(b)); see also Harold J. Krent, Executive

Control over Criminal Law Enforcement: Some Lessons from History, 

38 Am. U. L. Rev. 275, 296–97 & n. 105–06 (1989) (listing early 

American qui tam statutes, which limited recovery to the relator and the 

government).
MAGADIA V. WAL-MART ASSOCIATES 15

a public right and qui tam cases exist to vindicate public 

rights.” (simplified)). And it conflicts with Article III’s core 

principle that each plaintiff “must assert his own legal rights 

and interests, and cannot rest his claim to relief on the legal 

rights or interests of third parties.” Warth v. Seldin, 422 U.S. 

490, 499 (1975). Indeed, California courts have themselves 

recognized that PAGA’s peculiar feature makes it an 

“except[ion]” to the “traditional criteria” of qui tam actions. 

Iskanian, 59 Cal. 4th at 382; see also Moorer v. Noble L.A. 

Events, Inc., 32 Cal. App. 5th 736, 742 (2019) (rejecting 

plaintiff’s argument that, since PAGA is a type of qui tam

action, the entire 25% of the civil penalties not allocated to 

the government should go to the aggrieved employee who 

brings the PAGA suit). While California may be a “real 

party in interest,” Iskanian, 59 Cal. 4th at 387, a PAGA suit 

also implicates the interests of other third parties.

Second, a traditional qui tam action acts only as “a 

partial assignment” of the Government’s claim. Vermont 

Agency, 529 U.S. at 773 (emphasis added). The government 

remains the real party in interest throughout the litigation 

and “may take complete control of the case if it wishes.” 

U.S. ex rel. Taxpayers Against Fraud v. Gen. Elec. Co., 41 

F.3d 1032, 1041 (6th Cir. 1994). Under the FCA, for 

instance, the federal government can intervene in a suit, can 

settle over the objections of the relator, and must give its 

consent before a relator can have the case dismissed. 31 

U.S.C. § 3730(b)–(f). These “significant procedural 

controls” ensure that the government maintains “substantial 

authority over the action.” Stalley ex rel. U.S. v. Orlando 

Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1234 (11th Cir. 

2008). So even if the government partially assigns a claim 

to a relator, “it retains a significant role in the way the action 

is conducted.” Methodist Healthcare, 517 F.3d at 918.
16 MAGADIA V. WAL-MART ASSOCIATES

In contrast, PAGA represents a permanent, full

assignment of California’s interest to the aggrieved 

employee. True enough, PAGA gives California the right of 

first refusal in a PAGA action. An aggrieved employee can 

only sue if California declines to investigate or penalize an 

alleged violation; and California’s issuance of a citation 

precludes any employees from bringing a PAGA action for 

the same violation. Cal. Lab. Code §§ 2699(h), 

2699.3(b)(2)(A)(i). But once California elects not to issue a 

citation, the State has no authority under PAGA to intervene 

in a case brought by an aggrieved employee. See Iskanian, 

59 Cal. 4th at 389–90 (acknowledging that PAGA 

“authoriz[es] financially interested private citizens to 

prosecute claims on the state’s behalf without governmental 

supervision”). PAGA thus lacks the “procedural controls” 

necessary to ensure that California—not the aggrieved 

employee (the named party in PAGA suits)—retains 

“substantial authority” over the case. See Orlando Reg’l 

Healthcare, 524 F.3d at 1234.

Consistent with a full assignment, an aggrieved 

employee’s PAGA judgment precludes California from 

citing the employer for the same violation. See Iskanian, 

59 Cal. 4th at 381. In that way, PAGA prevents California 

from intervening in a suit brought by the aggrieved 

employee, yet still binds the State to whatever judgment 

results. A complete assignment to this degree—an anomaly 

among modern qui tam statutes—undermines the notion that 

the aggrieved employee is solely stepping into the shoes of 

the State rather than also vindicating the interests of other 

aggrieved employees.

3.

Our precedent also shows the lack of standing here. We 

have ruled that an uninjured party has no Article III standing 
MAGADIA V. WAL-MART ASSOCIATES 17

to sue under another California private attorney general 

statute involving unfair business practices. See Lee v. Am. 

Nat’l Ins. Co., 260 F.3d 997, 1002 (9th Cir. 2001) (citing 

Cal. Bus. & Prof. Code § 17204). In Lee, we held that the 

statute did not confer standing on a party who had not 

“actually been injured by the defendant’s challenged 

conduct,” even though the law permitted any person to sue 

on behalf of California. Id. at 1001–02; see also Hangarter 

v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1022

(9th Cir. 2004) (“Even if Cal. Bus. & Prof. Code § 17204 

permits a plaintiff to pursue injunctive relief in California 

state courts as a private attorney general even though he or 

she currently suffers no individualized injury as a result of a 

defendant’s conduct,” the plaintiff must show the requisite 

injury to establish Article III standing.); Fiedler, 714 F.2d 

at 79–80 (rejecting Article III standing when uninjured 

plaintiff claimed to be “suing as a private Attorney General 

on behalf of citizens of Hawaii rather than as a private 

citizen”).6

Several circuit courts have likewise concluded that 

comparable statutes are not qui tam for purposes of Article 

III, based on the same features we identify in PAGA. See, 

e.g., Orlando Reg’l Healthcare, 524 F.3d at 1233–34 

(holding that the Medicare Secondary Payer Act “differs 

6 Although we have acknowledged that PAGA is a “type” or “form” 

of qui tam, we have never decided whether it confers Article III standing 

on uninjured employees. See, e.g., Porter v. Nabors Drilling USA, L.P., 

854 F.3d 1057, 1061 (9th Cir. 2017) (holding that PAGA is a “type of 

qui tam” for purposes of an automatic stay in bankruptcy); Sakkab v.

Luxottica Retail N. Am., Inc., 803 F.3d 425, 439 (9th Cir. 2015) (holding 

that the Federal Arbitration Act did not preempt PAGA because it is a 

“form of qui tam” action); Baumann, 747 F.3d at 1124 (holding that 

PAGA is not a class action but “a civil enforcement action filed on behalf 

of and for the benefit of the state”).
18 MAGADIA V. WAL-MART ASSOCIATES

materially” from a qui tam action partly because it “provides 

to the government none of the procedural safeguards to 

manage or direct an action” traditionally afforded); 

Methodist Healthcare, 517 F.3d at 918 (same); United 

Seniors Ass’n, Inc. v. Philip Morris USA, 500 F.3d 19, 24 

(1st Cir. 2007) (same); Woods, 574 F.3d at 97–98 (same); 

Brintley v. Aeroquip Credit Union, 936 F.3d 489, 494–95 

(6th Cir. 2019) (holding that a “private attorneys general” 

suit is not necessarily “entitled to special solicitude in an 

Article III standing analysis”).

***

Altogether, PAGA’s features diverge from Vermont 

Agency’s assignment theory of qui tam injury, and they 

depart from the traditional criteria of qui tam statutes. As a 

result, we hold that Magadia lacks standing to bring a PAGA 

claim for Walmart’s meal-break violations since he himself 

did not suffer injury.7 We remand Magadia’s meal-break 

claim to the district court with instructions to return it to state 

court. See Lee, 260 F.3d at 1008.

B.

Next, we consider whether Magadia has standing to 

bring his two wage-statement claims under Labor Code 

§ 226(a). That provision requires employers to accurately 

furnish certain itemized information on its employees’ wage 

statements. Cal. Lab. Code § 226(a). Walmart disputes that 

a violation of § 226(a) creates a cognizable Article III injury 

here. We hold that it does.

7 Because Magadia doesn’t having standing to bring a PAGA action 

on behalf of employees who personally suffered a meal-break injury, we 

do not decide whether Walmart violated § 226.7(c).
MAGADIA V. WAL-MART ASSOCIATES 19

The hallmark of an Article III injury is that it is concrete 

and particularized. Although we often think of “tangible” 

injuries as the basis of this jurisdictional requirement, the 

Supreme Court has confirmed that “intangible injuries can 

nevertheless be concrete.” Spokeo, 136 S. Ct. at 1549. The 

omission of statutorily required information can constitute a 

distinct, concrete injury.8 At the same time, not “every 

minor inaccuracy reported in violation of [a statute] will 

‘cause real harm or present any material risk of real harm.’”

Robins v. Spokeo, Inc., 867 F.3d 1108, 1116 (9th Cir. 2017) 

(“Spokeo II”) (quoting Spokeo, 136 S. Ct. at 1550) 

(simplified).

To determine whether the violation of a statute 

constitutes a concrete harm, we engage in a two-part inquiry. 

We first consider “whether the statutory provisions at issue 

were established to protect . . . concrete interests (as opposed 

to purely procedural rights).” Id. at 1113. If so, we then 

assess “whether the specific procedural violations alleged in 

this case actually harm, or present a material risk of harm to, 

such interests.” Id.

First, we believe § 226(a) protects employees’ concrete 

interest in receiving accurate information about their wages 

in their pay statements. An employer violates the statute if 

it “fails to provide accurate and complete information” 

8 See FEC v. Akins, 524 U.S. 11, 21 (1998) (“[A] plaintiff suffers an 

‘injury in fact’ when the plaintiff fails to obtain information which must 

be publicly disclosed pursuant to a statute.”); Envt’l Def. Fund v. EPA, 

922 F.3d 446, 452 (D.C. Cir. 2019) (“The law is settled that a denial of 

access to information qualifies as an injury in fact” when disclosure of 

that information is required by statute.); Hajro v. U.S. Citizenship &

Immigr. Servs., 811 F.3d 1086, 1102–05 (9th Cir. 2016) (holding that 

informational injuries under FOIA satisfy Article III’s “injury-in-fact”

requirement).
20 MAGADIA V. WAL-MART ASSOCIATES

required by § 226(a), and if “the employee cannot promptly 

and easily determine [that information] from the wage 

statement alone.” Cal. Lab. Code § 226(e)(2)(B). Section 

226(a)’s procedural guarantees therefore protect an 

employee’s non-abstract interest in being “adequately 

informed of [the] compensation received” during the pay 

period. Soto v. Motel 6 Operating, L.P., 4 Cal. App. 5th 385, 

392 (2016) (simplified). As a result, Walmart’s failure to 

disclose statutorily required information on Magadia’s wage 

documents, if true, violates a “concrete interest.” Spokeo II, 

67 F.3d at 1113 (simplified).

Second, Magadia sufficiently alleges that Walmart’s 

§ 226(a) violations—depriving him of accurate itemized 

wage statements—presented a “material risk of harm” to his 

“interest” in the statutorily guaranteed information. See 

Spokeo II, 867 F.3d at 1113. Even when a statute “has 

accorded procedural rights to protect a concrete interest, a 

plaintiff may fail to demonstrate concrete injury where 

violation of the procedure at issue presents no material risk 

of harm to that underlying interest.” Strubel v. Comenity 

Bank, 842 F.3d 181, 190 (2d Cir. 2016). That is because a 

“procedural violation of an informational entitlement does 

not by itself suffice to keep a claim in federal court.” 

Brintley, 936 F.3d at 493. The plaintiff must further “allege 

at least that the information had some relevance to her.” Id.

While Walmart claims that Magadia was not harmed 

because it did not underpay him, the lack of the required 

information runs the risk of leaving him and other employees 

unable to determine whether that is true. As Walmart’s own 

witnesses confirmed, without the mandated information, 

employees could not tell from their wage statements how the 

company calculated their wages or which dates the paystub 

covered—precisely the sort of “real harm[]” that § 226(a) is 
MAGADIA V. WAL-MART ASSOCIATES 21

“designed to prevent.” See Spokeo II, 867 F.3d at 1115; Cal. 

Lab. Code § 226(e)(2)(B). Even if Walmart pays its 

employees every penny owed, those employees suffer a real 

risk of harm if they cannot access the information required 

by § 226(a). See Torres v. Mercer Canyons Inc., 835 F.3d 

1125, 1135 (9th Cir. 2016) (“[I]nformational injury need not 

result in direct pecuniary loss.”).9

We therefore hold that Magadia has standing to bring his 

two claims under Labor Code § 226(a). For the same reason, 

we also conclude that other class members who can establish 

§ 226(a) injuries have standing to collect damages. See

Ramirez v. TransUnion LLC, 951 F.3d 1008, 1017 (9th Cir. 

2020) (holding that all class members “must satisfy the 

requirements of Article III standing at the final stage of a 

money damages suit when class members are to be awarded 

individual monetary damages”).

III.

We turn, finally, to the merits of Magadia’s two claims 

under California’s wage statement statute. Cal. Lab. Code 

§ 226(a). To recover damages under the law, Magadia must 

prove that he “suffer[ed] injury as a result of a knowing and 

intentional failure by an employer to comply with the 

9 Walmart alternatively argues that California, unlike Congress, 

cannot confer Article III standing based on a procedural violation. 

Again, we disagree. A legislature “has the power to create new interests, 

the invasion of which may confer standing” so long as “the requirements 

of Art. III [are] met.” Diamond v. Charles, 476 U.S. 54, 66 n.17 (1986). 

Walmart seeks to distinguish between injuries born of state law and those 

born of federal law. But we have held that “state law can create interests 

that support standing in federal courts.” In re Facebook, Inc. Internet 

Tracking Litig., 956 F.3d 589, 599 (9th Cir. 2020) (quoting Cantrell v. 

City of Long Beach, 241 F.3d 674, 684 (9th Cir. 2001)).
22 MAGADIA V. WAL-MART ASSOCIATES

statute.” Price v. Starbucks Corp., 192 Cal. App. 4th 1136, 

1142 (2011) (citing Cal. Lab. Code § 226(a), (e)). The 

district court determined that Magadia proved that Walmart 

violated the statute. We disagree.

A.

First, we conclude that the wage statement law did not 

require Walmart to list the “rate” of the MyShare overtime 

adjustment on employees’ wage statements. The law 

requires an itemized statement with “all applicable hourly 

rates in effect during the pay period and the corresponding 

number of hours worked at each hourly rate by the 

employee.” Cal. Lab. Code § 226(a)(9). The district court 

held that the wage statements didn’t comply with the law 

because they didn’t include the “hourly rates” and “hours 

worked” associated with the MyShare overtime adjustment. 

This was error.

Walmart did not violate the wage statement law because

there was no “hourly rate[] in effect during the pay period” 

for the MyShare overtime adjustment. Walmart paid its 

employees every two weeks and provided a paystub at the 

end of each semimonthly pay period. At the end of a quarter 

(encompassing six pay periods), Walmart awarded a 

MyShare bonus to its employees based on performance, 

sales, profits, and store standards from the entire quarter. 

California law considers that bonus part of the employees’ 

base rate of pay, which in turn requires Walmart to make an 

after-the-fact adjustment to overtime pay. See Cal. Lab. 

Code § 510 (requiring employers to pay 1.5 times the 

“regular rate of pay” for overtime). To do so, Walmart must

retroactively calculate the difference between the 

employees’ overtime pay rate over the quarter and the 

employees’ overtime rate as if the MyShare bonus had been 

paid as part of the base rate of pay. After calculating the 
MAGADIA V. WAL-MART ASSOCIATES 23

required overtime pay adjustment, Walmart reported both 

the MyShare bonus and the adjusted overtime pay as lump 

sums on the wage statements at the end of each quarter.

Under these facts, the MyShare overtime adjustment is 

no ordinary overtime pay with a corresponding hourly rate. 

It is a non-discretionary, after-the-fact adjustment to 

compensation based on the overtime hours worked and the 

average of overtime rates10 over a quarter (or six pay 

periods). As a recent California court recognized with a 

similar bonus scheme, the supposed “hourly rate” for the 

adjusted overtime pay “is a fictional hourly rate calculated 

after the pay period closes in order to comply with the Labor 

Code section on overtime”—“[i]t appears as part of the 

calculation for an overtime bonus and then disappears, 

perhaps never to be seen again.” Morales v. Bridgestone 

Retail Operations, LLC, No. G057043, 2020 WL 1164120, 

at *1 (Cal. Ct. App. Mar. 11, 2020) (unpublished); see also 

Canales v. Wells Fargo Bank, N.A., 23 Cal. App. 5th 1262 

(2018) (unpublished)11 (Because “[t]he OverTimePay 

Override was an adjustment to the overtime payment due to 

an employee, based on bonuses earned by the employee for 

work performed during prior pay period . . . there were no 

10 Since an employee’s overtime pay rate may fluctuate throughout 

a quarter, Walmart needed to consider the average overtime rate in 

calculating the overtime adjustment. That Walmart must base the 

overtime adjustment on an average of overtime rates from the quarter is 

more evidence that the adjustment is not an “hourly rate[] in effect during 

the pay period.”

11 Available at: https://caselaw.findlaw.com/ca-court-ofappeal/1896937.html.
24 MAGADIA V. WAL-MART ASSOCIATES

applicable hourly rates in effect during the pay period which 

defendant was required to include in the wage statement.”).12

As a result, we do not consider the calculation to be an 

“hourly rate in effect during the pay period.” Cal. Lab. Code 

§ 226(a)(9). The term “in effect” is defined as “[t]he state or 

fact of being operative or in force.”13 And the word “during” 

means “[t]hroughout the whole continuance of,” or “in the 

time of.”14 So to be “in effect during the pay period,” the 

hourly rate must have been “operative” or “in force” 

“throughout the whole continuance of” or “in the time of” 

the pay period in the wage statement. It does not apply to an 

artificial, after-the-fact rate calculated based on overtime 

hours and rates from preceding pay periods that did not even 

exist during the time of the pay period covered by the wage 

statement. See Morales, 2020 WL 1164120, at *5 (“The 

hourly rate for the overtime premium is not in effect during 

the pay period.”); Canales, 23 Cal. App. 5th 1262 (same).

This reading is confirmed by § 226(a)(9)’s second 

requirement: that the employer must list the “corresponding 

number of hours worked at each hourly rate.” During the 

last two-week pay period of the quarter, but before Walmart 

generates the MyShare bonus, an employee works under his 

or her ordinary overtime hourly rate, which must be reported 

12 Although these decisions are unpublished with no precedential 

value, we may still consider them to interpret California law. See Emps.

Ins. of Wausau v. Granite State Ins. Co., 330 F.3d 1214, 1220 n.8 (9th 

Cir. 2003).

13 In Effect, Oxford English Dictionary Online, 

tinyurl.com/4f6t8ppt.

14 During, Oxford English Dictionary Online, 

tinyurl.com/tw6mvf3s.
MAGADIA V. WAL-MART ASSOCIATES 25

in the employee’s paystub. At the end of the quarter, if the 

employee receives a MyShare bonus and its required 

overtime adjustment, then Walmart must also calculate the 

overtime adjustment rate. But at no time during the 

preceding two-week pay period did the employee work 

under that overtime rate because it’s calculated after the 

close of the pay period based on the preceding six pay 

periods of work. For example, Magadia’s overtime 

adjustment “rate” was apparently about $.20 per hour. Yet 

there was no pay period in which Magadia ever worked 

overtime at an hourly rate of $.20. As this illustrates, 

Magadia’s reading of the statute would lead to the 

anomalous result of having a wage statement listing an 

“hourly rate” but with zero “number of hours worked” at that 

rate.

In sum, because Walmart must retroactively calculate the 

MyShare overtime adjustment based on work from six prior 

periods, we do not consider it an hourly rate “in effect” 

during the pay period for purposes of § 226(a)(9). Walmart 

complied with the wage statement law here.

B.

Next, we hold that Walmart’s Statements of Final Pay do 

not violate the wage statement statute. The law requires 

employers to furnish employees “semimonthly or at the time 

of each payment of wages” with “an accurate itemized 

statement in writing showing . . . the inclusive dates of the 

period for which the employee is paid.” Cal. Lab. Code 

§ 226(a)(6) (emphasis added). Section 226(a)(6)’s use of the 

disjunctive affords employers the option of furnishing the 

pay statement either semimonthly or at the time of each 

wage payment. Employers are thus authorized to issue a pay 

statement at either time of their choosing. See Canales, 

23 Cal. App. 5th at 1271–72 (published) (“The plain 
26 MAGADIA V. WAL-MART ASSOCIATES

meaning of the statute indicates the Legislature specifically 

intended a choice for employers as to when to furnish the 

wage statement.”). So long as “an employer furnishes an 

employee’s wage statement before or by the semimonthly 

deadline, the employer is in compliance” with § 226(a)(6). 

Id. at 1271. Walmart complied with this provision.

Magadia insists that Walmart violated the law by not 

including the “dates of the period for which the employee is 

paid” on his Statement of Final Pay, which he received along 

with his final paycheck when he was terminated in the 

middle of a pay period. But Walmart furnished the required 

pay-period dates to Magadia and other terminated 

employees in their final wage statements at the end of the 

next semimonthly pay period. By the plain meaning of the 

statute, Walmart had the option of furnishing the required 

wage statement in this way and thus Walmart complied with 

the law.15

IV.

For these reasons, we VACATE the district court’s 

judgment and award of damages on the Labor Code § 226.7 

claim and REMAND with instructions to further remand it 

to state court. We also REVERSE the judgment and award 

of damages on the Labor Code § 226(a) claims and 

REMAND with instructions to enter judgment for Walmart.

15 Since we conclude that Walmart didn’t violate § 226(a), we do 

not decide whether Magadia satisfied the other elements of his claim. 

We likewise do not decide whether the district court awarded excessive 

penalties under PAGA.