A host of state and national business groups have provided amicus briefs to the U.S. Supreme Court in the Viking v. Moriana case, arguing that litigation filed under the California Private Attorneys General Act (PAGA) isn’t exempt from the provisions of the Federal Arbitration Act (FAA).
The high court is reviewing previous lower court decisions that applied the Iskanian case precedent when ruling against arbitration in PAGA litigation. The Civil Justice Association of California (CJAC) filed its amicus curiae with the high court on Feb. 7.
"CJAC has filed an amicus brief in the Viking case as it presents a crucial opportunity to overturn California’s highly-problematic Iskanian rule, which deems PAGA representative actions non-waivable by arbitration agreements,” Kyla Christoffersen Powell, CJAC president and CEO, said in an email response to the Northern California Record. “For too long, the Iskanian rule has paved the way for profit-seeking plaintiffs’ lawyers to shake down California employers for millions.”
The California Supreme Court issued the Iskanian v. CLS Transportation Los Angeles, LLC decision in 2014, holding that because PAGA litigation also involves the state, it can’t be compelled to arbitration. California appellate courts and the Ninth Circuit, in a 2-1 decision, have held to that application.
“The key message in our brief to the Supreme Court: The Iskanian rule is an end-run around the Federal Arbitration Act,” Powell said. “The FAA’s broad preemptive sweep allows the opposite of Iskanian – parties may waive PAGA actions and settle disputes through arbitration.”
The high court granted Viking’s petition for writ of certiorari on Dec. 15.
The U.S. Chamber of Commerce, California Chamber of Commerce, and National Federation of Independent Business (NFIB) also filed amicus curiae for the Viking case.
“Arbitration is a fast and inexpensive way for small business owners to resolve issues and avoid costly litigation in court,” Karen Harned, executive director of NFIB’s Small Business Legal Center, said in a news release. “Small businesses suffer when federal and state laws contradict, as highlighted in this case. It is important that the Supreme Court rejects the Ninth Circuit’s decision and allows a consistent and dependable pro-arbitration mandate.”
The Supreme Court decision is expected by early this summer.
(Editor's note: The Northern California Record is owned by the U.S. Chamber Institute for Legal Reform).