The UCL Practitioner

U.S. Supreme Court opines again on class arbitration: Lamps Plus, Inc. v. Varela

On Wednesday, the U.S. Supreme Court handed down Lamps Plus, Inc. v. Varela, ___ U.S. ___ (Apr. 23, 2019).  In order to find a way to force the injured plaintiff into individual (non-class) arbitration, the majority held that California's bedrock common-law rule of contract interpretation, that ambiguities in a contract are construed against the drafter, is preempted by the FAA.  Some of my views on the majority opinion are quoted in this article on Bloomberg Law, published yesterday.  SCOTUSblog has this analysis of the opinion. 

Instead of dwelling any further on the majority's outcome-driven "reasoning," I will quote this passage from Justice Ginsburg's dissenting opinion: 

I write separately to emphasize once again how treacherously the Court has strayed from the principle that "arbitration is a matter of consent, not coercion." Stolt-Nielsen S. A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 681 (2010) (internal quotation marks omitted).

Congress enacted the Federal Arbitration Act (FAA) in 1925 "to enable merchants of roughly equal bargaining power to enter into binding agreements to arbitrate commercial disputes." Epic Systems Corp. v. Lewis, 584 U.S. ___, ___ (2018) (GINSBURG, J., dissenting) (slip op., at 19) (emphasis in original). The Act was not designed to govern contracts "in which one of the parties characteristically has little bargaining power." Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403, n. 9 (1967); ....

The Court has relied on the FAA, not simply to overcome once-prevalent judicial resistance to enforcement of arbitration disputes between businesses. In relatively recent years, it has routinely deployed the law to deny to employees and consumers "effective relief against powerful economic entities." DIRECTV, Inc. v. Imburgia, 577 U.S. ___, ___ (2015) (GINSBURG, J., dissenting) (slip op., at 9). Arbitration clauses, the Court has decreed, may preclude judicial remedies even when submission to arbitration is made a take-it-or-leave-it condition of employment or is imposed on a consumer given no genuine choice in the matter. See Epic, 584 U.S., at ___-___ (GINSBURG, J., dissenting) (slip op., at 21-22) .... 

Piling Pelion on Ossa, the Court has hobbled the capacity of employees and consumers to band together in a judicial or arbitral forum. See Epic, 584 U.S., at ___, n. 12 (GINSBURG, J., dissenting) (slip op., at 22, n. 12) (noting Court decisions enforcing class-action waivers imposed by the party in command, who wants no collective proceedings). The Court has pursued this course even though "neither the history nor present practice suggests that class arbitration is fundamentally incompatible with arbitration itself." AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 362 (2011) (BREYER, J., dissenting).

....

Today's decision underscores the irony of invoking "the first principle" that "arbitration is strictly a matter of consent," ante, at 7 (internal quotation marks and alterations omitted), to justify imposing individual arbitration on employees who surely would not choose to proceed solo. Respondent Frank Varela sought redress for negligence by his employer leading to a data breach affecting 1,300 employees. See Complaint in No. 5:16‒cv‒00577 (CD Cal.), Doc. 1, ¶¶1, 59. The widely experienced neglect he identified cries out for collective treatment. Blocking Varela's path to concerted action, the Court aims to ensure the authenticity of consent to class procedures in arbitration. Ante, at 7‒8. Shut from the Court's sight is the "Hobson's choice" employees face: "accept arbitration on their employer's terms or give up their jobs." Epic, 584 U.S., at ___, n. 2 (GINSBURG, J., dissenting) (slip op., at 7, n. 2); see Circuit City [Stores, Inc. v. Adams], 532 U.S. [532,] 139 [(2001)] (Souter, J., dissenting) (employees often "lack the bargaining power to resist an arbitration clause if their prospective employers insist on one").

....

... [M]andatory individual arbitration continues to thwart "effective access to justice" for those encountering diverse violations of their legal rights. DIRECTV, 577 U.S., at ___ (GINSBURG, J., dissenting) (slip op., at 1). The Court, paradoxically reciting the mantra that "[c]onsent is essential," ante, at 7, has facilitated companies' efforts to deny employees and consumers the "important right" to sue in court, and to do so collectively, by inserting solo-arbitration-only clauses that parties lacking bargaining clout cannot remove. CompuCredit Corp. v. Greenwood, 565 U.S. 95, 115 (2012) (GINSBURG, J., dissenting). When companies can "muffl[e] grievance[s] in the cloakroom of arbitration," Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117, 136 (1973), the result is inevitable: curtailed enforcement of laws "designed to advance the well-being of [the] vulnerable." Epic, 584 U.S., at ___ (GINSBURG, J., dissenting) (slip op., at 26). "Congressional correction of the Court's elevation of the FAA over" the rights of employees and consumers "to act in concert" remains "urgently in order." Id., at ___ (slip op., at 2).

Lamps Plus, slip op. at 1-5 (Ginsburg, J., dissenting) (emphasis added).

New class arbitration opinion: Sprunk v. Prisma LLC

In Sprunk v. Prisma LLC, ___ Cal.App.5th ___ (Aug. 23, 2017), the Court of Appeal (Second Appellate District, Division One) held that the defendant "waived its right to seek arbitration by filing and then withdrawing a motion to compel arbitration against the named plaintiff, Maria Elena Sprunk, and then waiting until after a class had been certified to seek arbitration against class members."  Slip op. at 2. 

UPDATE:  Scott Leviant has a more detailed discussion ("Arbitration sunk  in Sprunk") over at The Complex Litigator.

"The U.S. Supreme Court Has Misinterpreted the Federal Arbitration Act"

Over at SCOCAblog, an article by William T. Newman posted earlier this week has an interesting take on Concepcion. 

Class certification not required for broad-ranging "public" injunctive relief under the UCL: McGill v. Citibank, N.A.

This morning, the California Supreme Court handed down its long-awaited opinion, McGill v. Citibank, N.A., ___ Cal.5th ___ (Apr. 6, 2017). 

In McGill, the Court was expected to address whether the Federal Arbitration Act, as construed in Concepcion, preempts the Broughton-Cruz rule (see this blog post for more on that rule).  However:

[I]t is now clear that the Broughton-Cruz rule is not at issue in this case.  As detailed above, late in the Court of Appeal proceedings, McGill asserted that the arbitration provision purports to preclude her from seeking public injunctive relief in any forum.  She repeats that assertion in this court ....   At oral argument before us, Citibank agreed with McGill’s reading of the arbitration provision.

Slip op. at 7 (emphasis in original).

Accordingly, the opinion addressed whether such a contractual provision—one purporting to completely eliminate the right to seek public injunctive relief under the UCL, FAL, and CLRA—was void, under ordinary contract-law principles, as contrary to public policy.  The Court held that it was.  Id. at 14. 

The opinion then addressed whether the FAA, construed in Concepcion, preempted this principle of California contract law.  It held that Concepcion did not.  Slip op. at 14-22. 

Here's the part that's really interesting.   The opinion addresses, at length, whether Prop. 64 eliminated the ability of private plaintiffs to seek broad-ranging public injunctive relief.  Not only did the Court say "no" to that (id. at 10-14), it also held that class certification is not required of a UCL or FAL claim seeking such relief!  Id. at 13-14. 

This has been an open question for the past twelve years, since Prop. 64 passed in November 2004.  (For example, see this 2005 blog post, this one from 2006, and this one from 2007.) 

Truthfully, I did not expect the Court to reach or decide it in McGill, but I think the Court's conclusion is absolutely the correct one.  Attempting to apply class certification principles to forward-reaching injunctive relief claims just doesn't make any sense, procedurally:  

[W]e have held that the phrase “compl[y] with Section 382 of the Code of Civil Procedure” (Bus. & Prof. Code, §§ 17203, 17535) “imposes a requirement that the action be brought as a class action.”  (Arias v. Superior Court (2009) 46 Cal.4th 969, 978.)  This requirement has never been imposed with regard to requests to enjoin future wrongful business practices that will injure the public, and we find nothing in the ballot materials for Proposition 64 suggesting an intent to link or restrict such relief to the class action context.  Indeed, imposing this requirement would largely eliminate the ability of a private plaintiff to pursue such relief, because class certification requires “the existence of both an ascertainable class and a well-defined community of interest among the class members” (Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 913), and “ ‘the general public’ . . . fails to meet” this requirement (Czap v. Credit Bureau of Santa Clara Valley (1970) 7 Cal.App.3d 1, 6). 

Slip op. at 13 (emphasis added).  The opinion holds that the class certification requisite added by Prop. 64 applies only to claims by private plaintiffs "seek[ing] disgorgement and/or restitution on behalf of persons other than or in addition to the plaintiff.'"  Id. at 13-14 (quoting Kraus v. Trinity Management Services, Inc., 23 Cal.4th 116, 126 n.10 (2000))(emphasis in original). 

The opinion also strongly suggests that a defendant's "voluntary cessation of wrongful conduct" does not automatically preclude forward-reaching injunctive relief.  Id. at 10.  Notably, the opinion favorably cites Robinson v. U-Haul of California, 4 Cal.App.4th 304 (2016) (discussed in this blog post), in which the Court of Appeal rejected an argument that no injunction may issue under the UCL if the defendant voluntarily stops engaging in wrongful acts. 

For those interested in a general overview of the McGill opinion, this is the Court's introductory paragraph:

In previous decisions, this court has said that the statutory remedies available for a violation of the Consumers Legal Remedies Act (CLRA; Civ. Code, § 1750 et seq.), the unfair competition law (UCL; Bus. & Prof. Code, § 17200 et seq.), and the false advertising law (id., § 17500 et seq.) include public injunctive relief, i.e., injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the general public.  (Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303, 315-316 (Cruz); Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066, 1077 (Broughton).)  The question we address in this case is the validity of a provision in a predispute arbitration agreement that waives the right to seek this statutory remedy in any forum.  We hold that such a provision is contrary to California public policy and is thus unenforceable under California law.  We further hold that the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.) does not preempt this rule of California law or require enforcement of the waiver provision.  We therefore reverse the judgment of the Court of Appeal.

Slip op. at 1.

New opinion considers attorney-client conflicts in class action context: Walker v. Apple, Inc.

In Walker v. Apple, Inc., ___ Cal.App.5th ___ (Sept. 28, 2016; pub. ord. Oct. 28, 2016), the Court of Appeal (Fourth Appellate District, Division One) affirmed an order disqualifying a law firm from serving as class counsel in a wage and hour action against Apple. 

The law firm represented a certified class in one case against Apple, and the putative class in a second, later-filed case against Apple.  Apple moved to disqualify the firm in the second case on the ground that a store manager, who was an unnamed member of the certified class in the first case, would be a critical adverse witness in the second case.  Slip op. at 3-6.  The trial court granted the motion, and the Court of Appeal affirmed.  It reasoned, first of all, that the order granting class certification in the first case rendered this particular unnamed class member (but not necessarily all unnamed class members) the firm's client for conflicts purposes.  Id. at 10-15. 

Then, the Court concluded that Apple's evidence supported the trial court's holding that in order to advance the class claims in the second case, the firm would have to cross-examine this unnamed class member in a manner that would conflict with her "employment interests."  Id. at 15-20.  This part of the analysis was highly dependent on the particular facts of the second class case, including the specific arguments to be presented by both sides on liability.  Given those facts, automatic disqualification was warranted.  Id. at 22-24.

The opinion recognizes that not all unnamed class members automatically become the firm's clients for conflicts purposes (as opposed to other purposes, such as the rule of ethics prohibiting opposing counsel from communicating with represented parties, and the attorney-client privilege).  See id. at 10-11.  The conclusion that the specific unnamed class member/witness should be considered a firm client for conflicts purposes turned on the fact that the two cases were factually related as well as "additional undisputed evidence regarding [the class member's] identity and likely role in this case."  Id. at 11. 

McGill v. Citibank re-set for argument in December

The Supreme Court just posted its December argument calendar.  On Wednesday, December 7, 2016 at 1:30 p.m., the Court will hear argument in McGill v. Citibank, No. S224086.  The argument will take place at the Ronald Reagan State Office Building in Los Angeles.

In this case, the Court will consider whether the Federal Arbitration Act, as construed in Concepcion, preempts the Broughton-Cruz rule.  See this blog post for more. 

New class arbitration opinion: Ngyuen v. Applied Medical Resources Corp.

In Nguyen v. Applied Medical Resources Corp., ___ Cal.App.5th ___ (Oct. 4, 2016; pub. ord. Oct. 14, 2016), the Court of Appeal (Fourth Appellate District, Division Three) declined to disturb an order compelling arbitration of certain wage and hour claims.  Slip op. at 9-24.

However, applying Sandquist v. Lebo Automotive Inc., 1 Cal.5th 233 (2016), the Court reversed the portion of the order striking the class allegations from the complaint, holding that the arbitrator should decide in the first instance whether the arbitration clause contemplates classwide arbitration.  Slip op. at 24-29.

New class/PAGA arbitration opinion: Perez v. U-Haul Co.

In Perez v. U-Haul Co., ___ Cal.App.5th ___ (Sept. 16, 2016), the Court of Appeal (Second Appellate District, Division Seven) applied Iskanian in holding that the defendant's arbitration clause, which barred class and representative actions, was unenforceable as to plaintiffs' PAGA claims. 

Specifically, the court held that the plaintiffs could not be compelled to arbitrate the threshold question of whether they are "aggrieved employees" with standing to sue under PAGA.  Slip op. at 10-11.  Nor can they be compelled to "split" their PAGA claim into "individual" and "representative aspects" and to arbitrate the former, because Iskanian holds that all PAGA actions are deemed "representative" actions.  Id. at 11-14. 

Oral argument set in UCL/CLRA arbitration case: McGill v. Citibank

On October 6, 2016 at 9:00 a.m. in San Francisco, the Supreme Court will hear oral argument in McGill v. Citibank, No. S224086.  This case presents the question of whether the Federal Arbitration Act, as construed in Concepcion, preempts the Broughton-Cruz rule. 

The Court of Appeal (Fourth Appellate District, Division Three) said that it does.  See McGill v. Citibank, N.A., 232 Cal.App.4th 753 (2014), review granted.  

The Broughton-Cruz rule basically holds that claims for public injunctive relief, such as that available under the UCL and CLRA, are inarbitrable. For more on the rule, see this blog post.  For more on the Court of Appeal's opinion, see this blog post.

On Monday, the defendant filed a request that the argument be moved to the December calendar, but the docket indicates no ruling on that request as of Tuesday afternoon.  UPDATE:  The argument will be moved to the December calendar, exact date and time to be announced. 

"Employer alert: Your arbitration clause is going to be tested at SCOTUS"

This was an interesting article last week by Alison Frankel on the Ninth Circuit's opinion in Morris v. Ernst & Young, LLP, ___ F.3d ___ (9th Cir. Aug. 22, 2016) (discussed in this blog post).

The article points out that in May, the Seventh Circuit also held that the NLRA does not permit no-class-action arbitration clauses in employment contracts (notwithstanding the FAA and Concepcion).  Lewis v. Epic Systems C0rp., 823 F.3d 1147 (7th Cir. 2016).  Together, those two opinions create a split with the Fifth Circuit (in its D.H. Horton opinion) and the Second and Eighth Circuits.

The article notes that Epic Systems has sought an extension of time to file a cert. petition challenging the Seventh Circuit's decision (see this link for the docket), and the petition is now due on September 23.  The article colorfully concludes (and I tend to agree):

When the Supreme Court agrees to resolve the circuit split, it’s going to be a gigantic case, affecting hundreds of thousands if not millions of workers who have signed arbitration provisions with classwide waivers. The amici are going to be thick on the ground on this one.

[h/t: How Appealing]

Ninth Circuit declines to enforce no-class-action abitration clause in employment contract: Morris v. Ernst & Young, LLP

In Morris v. Ernst & Young, LLP, ___ F.3d ___ (9th Cir. Aug. 22, 2016), the Ninth Circuit held that a class action ban in an employment contract's arbitration clause ran afoul of the National Labor Relations Act because the provision prohibited concerted, collective action by employees.  In so holding, the court adopted the NLRB's reasoning in In re D. R. Horton, Inc., 357 NLRB No. 184, 2012 WL 36274 (N.L.R.B. Jan. 3, 2012) (even though the Fifth Circuit later overruled that decision).  Slip op. at 6-14.  

Chief Judge Thomas, writing for the two-judge majority, explained why the class action ban (which required that all employment-related disputes be adjudicated in "separate proceedings" in arbitration) was unenforceable notwithstanding the Federal Arbitration Act and Concepcion.  Id. at 14-26. In particular:

The illegality of the “separate proceedings” term here has nothing to do with arbitration as a forum. It would equally violate the NLRA for Ernst & Young to require its employees to sign a contract requiring the resolution of all work-related disputes in court and in “separate proceedings.” The same infirmity would exist if the contract required disputes to be resolved through casting lots, coin toss, duel, trial by ordeal, or any other dispute resolution mechanism, if the contract (1) limited resolution to that mechanism and (2) required separate individual proceedings. The problem with the contract at issue is not that it requires arbitration; it is that the contract term defeats a substantive federal right to pursue concerted work-related legal claims.

Id. at 16 (footnote omitted).  Later in the opinion, Chief Judge Thomas reiterated the point:

The dissent makes dire predictions about the future of workplace arbitration if the holding is not that arbitration may not be used in workplace disputes. Quite the contrary. Rather, our holding is simply that when arbitration or any other mechanism is used exclusively, substantive federal rights continue to apply in those proceedings. The only role arbitration plays in today’s case is that it happens to be the forum the Ernst & Young contract specifies as exclusive.  The contract here would face the same NLRA troubles if Ernst & Young required its employees to use only courts, or only rolls of the dice or tarot cards, to resolve workplace disputes—so long as the exclusive forum provision is coupled with a restriction on concerted activity in that forum. At its heart, this is a labor law case, not an arbitration case.

....  Do not be misled. Arbitration is consistent with, and encouraged by, the NLRA following today’s opinion.

Id. at 24-26 (emphasis in original).  The opinion leaves it to the district court to determine whether the "separate proceedings" provision "is severable from the contract."  Id. at 27. 

Judge Ikuta dissented (id. at 27-44), explaining that in his view, invalidating the class action ban is contrary to the FAA and the Supreme Court's view (expressed in Concepcion and other decisions) that "arbitration agreements must be enforced according to their terms unless Congress has given an express contrary command."  Id. at 43 (Ikuta, J., dissenting).  The majority disagreed with this framing of the issue, but it also believed that the NLRA contained a sufficiently "express contrary command."   See id. at 23.  Judge Ikuta did not agree.  See id. at 31-36.

The California Supreme Court concurred with Judge Ikuta on this point in Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348, 366-74 (2014).  Justice Werdegar strenuously dissented.  Id. at 397-406.  The U.S. Supreme Court denied the ensuing cert. petition in early 2015.  It seems probable that Ernst & Young will file a cert. petition here, perhaps preceded by a petition for en banc rehearing.

New class arbitration opinion: Sandquist v. Lebo Automotive, Inc.

In Sandquist v. Lebo Automotive, Inc., ___ Cal.4th ___ (Jul. 28, 2016), the Supreme Court considered who decides whether an arbitration agreement prohibits or allows class arbitration:  the arbitrator, or the court?  Justice Werdegar's majority opinion holds that the answer depends on the parties' agreement, which is construed under state-law contract principles.  Slip op. at  4-5.  In the particular arbitration clause before the Court, the parties agreed that the arbitrator would decide.  Id. at 6-12.  Federal law did not mandate a different result.  Id. at 15-29.

Justice Kruger filed a dissenting opinion, in which she was joined by Justices Chin and Corrigan.  The dissent reasoned that federal law does, in fact, dictate that the class arbitrability question be determined by the court, not the arbitrator, because it is  a "gateway question of arbitrability."  Dissent, slip op. at 2. 

A cert. petition seems likely here. 

New opinion applies exception to Concepcion: Garrido v. Air Liquide Indus. U.S. LP

In Garrido v. Air Liquide Industrial U.S. LP, ___ Cal.App.4th ___ (Oct. 26, 2015), the Court of Appeal (Second Appellate District, Division Two) declined to enforce an arbitration clause with a class action ban, finding the clause unenforceable under Gentry. 

The FAA, as construed in Concepcion, did not preempt Gentry in this case because "[s]ection 1 of the FAA exempts from coverage of the FAA 'contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.'"  Slip op. at 4 (quoting 9 U.S.C. § 1).  Because the plaintiff and the proposed class worked as drivers in interstate commerce, the FAA did not apply, and thus did not preempt Gentry.  Id. at 7-13.

Supreme Court hands down long-awaited arbitration opinion: Sanchez v. Valencia Holding Co.

Almost three and a half years ago, the Supreme Court granted review in Sanchez v. Valencia Holding Co., no. S199119, in order to address whether the Federal Arbitration Act, as construed in Concepcion, preempts generally applicable state-law rules of contractual unconscionability. 

The Court of Appeal said no (Sanchez v. Valencia Holding Co., LLC, 201 Cal.App.4th 74 (2011)), and the question was since authoritatively answered in the negative in several opinions, including Sonic-Calabasas A, Inc. v. Moreno, 57 Cal.4th 1109 (2013) (discussed in this blog post).  As a result, Sanchez became a vehicle for the Supreme Court instead to revisit what it means for a contract to be "unconscionable" under California law. The Court ordered supplemental briefing on that issue in February 2014. 

In an opinion handed down yesterday, the Supreme Court held, in a fact-specific analysis, that the contract of adhesion between the plaintiff car buyer and his used car dealer was not "unconscionable," contrary to the Court of Appeal's conclusion in 2011.  Sanchez v. Valencia Holding Co., __ Cal.4th ___ (Aug. 3, 2015).  The Court held that the various formulations of substantive "unconscionability," "used throughout our case law, all mean the same thing."  Slip op. at 9.

Probably the most significant part of the opinion, from a consumer class action perspective, is its holding that the FAA, as construed in Concepcion, preempts the CLRA's "no-waiver" provision (Civil Code section 1751) "insofar as [that provision] bars class waivers in arbitration agreements covered by the FAA."  Slip op. at 26.  This issue had previously been the subject of a split in authority among the Courts of Appeal.

U.S. Supreme Court takes up another California arbitration case: DIRECTV, Inc. v. Imburgia

Many thanks to the blog reader who advised me that in March, the U.S. Supreme Court granted cert. in DIRECTV, Inc. v. Imburgia, Case No. 14-462.  The case was relisted twice before cert. was granted. 

In Imburgia, the Court of Appeal (Second Appellate District, Division One) held that the class action waiver provision of the arbitration clause "was unenforceable under California law, so the entire arbitration agreement is unenforceable.  The superior court therefore properly denied the motion to compel arbitration."  Imburgia v. DIRECTV, Inc., 225 Cal.App.4th 338, 347 (2014), cert. granted.  My original post on the opinion is here.

The California Supreme Court declined to take up this case in July 2014, over the dissent of Justice Baxter, who voted to grant review.  The cert. petition was filed in October 2014, with the following statement of the question presented:

Whether the California Court of Appeal erred by holding, in direct conflict with the Ninth Circuit, that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act.

The Ninth Circuit opinion referred to is Murphy v. DIRECTV, Inc., 724 F.3d 1218 (9th Cir. 2013).

Here is the SCOTUSblog case page, where you can find links to the petition and other documents. 

Consumer arbitration case set for oral argument in May: Sanchez v. Valencia Holding Co.

The California Supreme Court has announced that on May 5, 2015 at 9:00 a.m., it will hear oral argument in Sanchez v. Valencia Holding Co., Case No. S199119.  This is the issue on review, according to the docket:

Does the Federal Arbitration Act (9 U.S.C. § 2), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U. S. __, 131 S.Ct. 1740, preempt state law rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable?

The Court of Appeal (Second Appellate District, Division One) said no, and declined to enforce a no-class-action arbitration clause in a consumer contract, notwithstanding Concepcion.  Sanchez v. Valencia Holding Co., LLC, 201 Cal.App.4th 74 (2011), review granted.  My original post on the opinion is here.  The court reasoned that ordinary state-law unconscionability principles were preserved by Concepcion.

Unfortunately, I have a scheduling conflict on the date of the argument and will not be able to attend.  If you are planning to attend and would like to write a report for posting here, please let me know ([email protected]).  The argument will take place in San Francisco. 

Supreme Court takes up UCL/CLRA arbitration issue: McGill v. Citibank

Last week, on April 1, 2015, the Supreme Court granted review in McGill v. Citibank, No. S224086. 

In McGill, the Court of Appeal (Fourth Appellate District, Division Three) held that the Federal Arbitration Act, as construed in Concepcion, preempted the Broughton-Cruz rule.  See McGill v. Citibank, N.A., 232 Cal.App.4th 753 (2014), review granted.  

The California Supreme Court established this rule in a pair of cases: Broughton v. Cigna Healthplans of California, 21 Cal.4th 1066 (1999), which held that "the injunctive relief portion of a CLRA claim is inarbitrable," and Cruz v. PacifiCare Health Systems, Inc., 30 Cal.4th 303 (2003), which extended this holding to the UCL and FAL. 

My post on the Court of Appeal's original opinion in McGill is here.  If and when I obtain copies of the petition for review and other briefs, I will post them here.

New class arbitration opinion: Securitas Security Services USA, Inc. v. Superior Court (Edwards)

In Securitas Security Services USA, Inc. v. Superior Court (Edwards), ___ Cal.App.4th ___ (Feb. 27, 2015), the Court of Appeal (Fourth Appellate District, Division One) considered an arbitration clause purporting to bar all class and representative actions, including representative PAGA actions.

Applying Iskanian, the Court of Appeal held not only that the purported waiver of representative PAGA claims was unenforceable, but also that this rendered the entire no-class-action arbitration clause invalid:

We conclude the trial court correctly ruled that Iskanian rendered the PAGA waiver within the parties' dispute resolution agreement unenforceable.  However, the court then erred by invalidating and severing the waiver provision, including an enforceable class action waiver, from the agreement and sending Edwards's entire complaint, including her class action and PAGA claims, to arbitration.  Under the plain language of the parties' agreement, in the event Edwards sought to arbitrate a PAGA claim, her PAGA waiver (or any other waiver of the right to bring a dispute as a class or collectively) was not severable from the remainder of the agreement, thus rendering the entire dispute resolution agreement unenforceable and precluding the court from requiring the parties to arbitrate their disputes. 

Slip op. at 2-3.

Recent opinion on arbitrability of UCL claims: McGill v. Citibank, N.A.

My post on this case is long overdue.  In McGill v. Citibank, N.A., 232 Cal.App.4th 753 (Dec. 18, 2014), the Court of Appeal (Fourth Appellate District, Division Three) held that the Federal Arbitration Act, as construed in Concepcion, preempts the California Supreme Court's Broughton-Cruz rule. Under this rule, "arbitration provisions are unenforceable as against public policy if they require arbitration of UCL, FAL, or CLRA injunctive relief claims brought for the public's benefit."  Slip op. at 2. 

A number of federal courts, including the Ninth Circuit, had so held before, but this was the first time a California appellate court had addressed the issue in a published opinion. 

A petition for review is now pending in the California Supreme Court.  McGill v. Citibank, No. S224086.

U.S. Supreme Court denies cert. in class arbitration case: CLS Transportation Los Angeles LLC v. Iskanian

Last June, the California Supreme Court handed down its opinion in Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 (Jun. 23, 2014), a wage and hour class action.  The Court held that a no-class-action arbitration clause in an employment agreement was enforceable under Concepcion, and that Concepcion had abrogated the Court's earlier opinion to the contrary in Gentry v. Superior Court, 42 Cal.4th 443 (2007).  Iskanian, 59 Cal.4th at 362-66.  (Gentry is discussed in this blog post; Concepcion is discussed here.)  

The Court also held, however, that Concepcion did not mandate individual arbitration of the employee-plaintiff's representative PAGA claim.  Instead, the contractual provision purporting to waive the right to bring such representative actions was unenforceable.   Iskanian, 59 Cal.4th at 378-391.

The defendant filed a cert. petition with the U.S. Supreme Court, attempting to challenge the latter ruling.  The cert. petition was denied yesterday, after one re-list.  CLS Transportation Los Angeles, LLC v. Iskanian, No. 14-341.  Here is the SCOTUSblog case page with links to the petition and other filings. 

In related, but much older, news, the U.S. Supreme Court also denied, last June, the cert. petition in Sonic-Calabasas A, Inc. v. Moreno, No. 13-856, another arbitration-related case.  That cert. petition had challenged the California Supreme Court's decision in Sonic-Calabasas A, Inc. v. Moreno, 57 Cal.4th 1109 (2013) (discussed in this blog post).  I did not have a chance to mention this development on my blog.  Things were quite busy for me during the second half of last year. 

Third Circuit reaches the opposite conclusion on "who decides": Opalinski v. Robert Half Int'l Inc.

Last Friday, I reported on Sandquist v. Lebo Automotive, Inc., ___ Cal.App.4th ___ (Jun. 25, 2014; pub. ord. Jul. 22, 2014), in which the Court of Appeal (Second Appellate District, Division Seven) carefully evaluated the available U.S. Supreme Court decisional law, including Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003), and held that the arbitrator, not the court, should decide whether the parties agreed to class arbitration.

Last week, the Third Circuit reached the opposite conclusion in Opalinsky v. Robert Half Int'l Inc., ___ F.3d ___ (3d Cir. Jul. 30, 2014).  An excerpt:

Since Bazzle, the Supreme Court has not directly decided whether the availability of class arbitration is a question of arbitrability.  The Court’s line of post-Bazzle opinions, however, indicates that, because of the fundamental differences between classwide and bilateral arbitration, and the consequences of proceeding with one rather than the other, the availability of classwide arbitrability is a substantive gateway question rather than a procedural one. We thus join the Sixth Circuit Court of Appeals in holding that the availability of class arbitration is a “question of arbitrability.”

Slip op. at 15. 

Court of Appeal addresses class arbitration in an opinion of interest: Sandquist v. Lebo Automotive, Inc.

In Sandquist v. Lebo Automotive, Inc., ___ Cal.App.4th ___ (Jun. 25, 2014; pub. ord. Jul. 22, 2014), the Court of Appeal held that the trial court erred by dismissing the plaintiff's class claims with prejudice after "deciding the issue whether the parties agreed to class arbitration."  Slip op. at 2.  Instead, the trial court "should have submitted the issue to the arbitrator."  Id.

The opinion frames the question as follows: 

Sandquist contends that the trial court “wrongly conducted a clause construction analysis of the Acknowledgements and held that they contain an implied class action waiver.”  Sandquist, citing Green Tree Fin. Corp. v. Bazzle (2003) 539 U.S. 444 [123 S.Ct. 2402, 156 L.Ed.2d 414] (Bazzle) and Garcia v. DIRECTV, Inc. (2004) 115 Cal.App.4th 297 (Garcia), argues that the arbitrator, not the court, determines whether the arbitration agreement provides for class arbitration.  Defendants argue that the trial court correctly relied on Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp. (2010) 559 U.S. 662 [130 S.Ct. 1758, 176 L.Ed.2d 605] (Stolt-Nielsen) in ruling that the court decides this issue.  It turns out that this issue is not entirely settled.

Id. at 9-10.

After a lengthy discussion of the authorities bearing on the question, the Court of Appeal held:

We agree with the majority of cases that follow the plurality opinion in Bazzle that the question whether the parties agreed to class arbitration in cases where the arbitration agreement is silent is determined by the arbitrator. 

Id. at 13. 

According to the docket, the opinion was published after publication requests were filed by the National Association of Consumer Advocates and Public Justice.

Supreme Court to hand down arbitration opinion this morning: Iskanian v. CLS Transportation

The California Supreme Court announced Friday that this morning, it will hand down its opinion in Iskanian v. CLS Transportation, No. S204032, which was argued on April 4, 2014.

Iskanian involves the enforceability of a no-class-action arbitration clause in an employment contract, and the continued vitality of Gentry post-Concepcion. This blog's reports of the oral argument are here and here.  Most who attended the argument believe that Gentry will be held overruled.

When the opinion is posted online at approximately 10:00 a.m., it should be available here:

• Iskanian v. CLS Transportation Los Angeles, LLC, ___ Cal.4th ___ (Jun. 23, 2014)

New opinion declines to enforce arbitration clause: Imburgia v. DirecTV, Inc. (Updated)

In Imburgia v. DirecTV, Inc., ___ Cal.App.4th ___ (Apr. 7, 2014), the Court of Appeal (Second Appellate District, Division One) wrote as follows:

After briefing in this appeal was completed, the United States Court of Appeals for the Ninth Circuit decided a similar case concerning the enforceability of the arbitration provision and class action waiver in DIRECTV’s customer agreement under Concepcion.  (See Murphy v. DIRECTV, Inc. (9th Cir. 2013) 724 F.3d 1218 (Murphy).)  The court held that “the arbitration agreement is enforceable under Concepcion,” which preempts any state law to the contrary.  (Id. at p. 1228.)  The court reasoned that “the parties’ various contract interpretation arguments”—which included both the argument that the specific reference to state law controlled over the general reference to the FAA and the argument that ambiguities should be construed against the drafter—“are largely irrelevant to our analysis,” because under the Supremacy Clause of the United States Constitution, and the related doctrine of federal preemption, federal law is the law of every state.  (Ibid.; see also id. at p. 1226 [“Section 2 of the FAA, which under Concepcion requires the enforcement of arbitration agreements that ban class procedures, is the law of California and of every other state”]; see generally id. at pp. 1225-1228.)

We find the analysis in Murphy unpersuasive.  On the one hand, insofar as the court’s reasoning is a matter of contract interpretation, it means that when the parties used the phrase “the law of your state,” they meant “federal law plus (nonfederal) state law.”  Murphy provides no basis for concluding that the parties intended to use the phrase “the law of your state” in such a way, and we are aware of none.  On the contrary, a reasonable reader of the customer agreement would naturally interpret the phrase “the law of your state” as referring to (nonfederal) state law, and any ambiguity should be construed against the drafter. On the other hand, insofar as the court reasoned that contract interpretation is irrelevant because the parties are powerless to opt out of the FAA by contract, we are aware of no authority for the court’s position.  Rather, as we have already observed, if the customer agreement expressly provided that the enforceability of the class action waiver “shall be determined under the (nonfederal) law of your state without considering the preemptive effect, if any, of the FAA,” then that choice of law would be enforceable; Murphy cites no authority to the contrary.  Consequently, the dispositive issue is whether the parties intended to make that choice.  As a result, “the parties’ various contract interpretation arguments” are not “largely irrelevant.”  (Murphy, supra, 724 F.3d at p. 1228.)

To summarize:  Section 9 of the 2007 customer agreement provides that “if . . . the law of your state would find this agreement to dispense with class arbitration procedures unenforceable, then this entire Section 9 is unenforceable.”  The class action waiver is unenforceable under California law, so the entire arbitration agreement is unenforceable.  The superior court therefore properly denied the motion to compel arbitration.

Slip op. at 9-10 (footnotes omitted).  (This was my original, brief, blog post on Murphy.)

Scott Leviant has a more detailed post on Imburgia over at The Complex Litigator.

UPDATE:  On March 23, 2015, the U.S. Supreme Court granted cert. in this case.  DIRECTV, Inc. v. Imburgia, Case No. 14-462. 

More thoughts on Iskanian as well as Ayala

I have not seen any news or blog coverage of the oral argument last Thursday in Ayala v. Antelope Valley Newspapers, No. S206874, but I have heard from more than one source that the justices had no questions about the class certification issues that the case raises.  Instead, the questioning apparently focused solely on the question of what legal standard governs in determining whether the newspaper carriers are employees or independent contractors. 

The Court ordered the parties to submit supplemental briefing on this question last year, and if the reports are accurate, the Court is much more interested in this question than on the class certification issues that appeared to have prompted the grant of review.  Bryan Schwartz has more thoughts on Ayala on his blog (which is called simply Bryan Schwartz Law).

I have received additional impressions on Iskanian from attorney Eric Kingsley of Kingsley & Kingsley in Encino.  Eric graciously allowed me to share them here:

****

I attended the argument in Iskanian v. CLS on April 3, 2014.  It was exhilarating.  What fun to be there as part of this historic day.  To start the day Justice Baxter gave a very moving tribute to Justice Kennard and honored her 25 years of service on the court. The argument itself was as expected, but so much better.  While many prognosticated about the likely result in the case, hearing the Justices ask very robust questions was fascinating.  All the Justices except Justice Baxter participated in the questioning, but as expected Justice Liu dominated the proceedings. 

Many defense lawyers have attacked and argued that Gentry died in 2011 the same day that Concepcion invalidated Discover Bank.  Many Court of Appeal decisions have held off pronouncing the time of death until they were sure the patient was actually dead.  They did not want to be the ones to do it, but rather thought the parents (CA Supreme Court) should be the ones to put her to rest.  Well, Thursday’s argument made it clear that the patient did not survive.  My condolences.

I believe this was a wise decision by Justice Liu and a necessary sacrifice to ensure SCOTUS does not wade into these waters.  Justice Liu came out hard and strong, so it appears Gentry’s death will unequivocal.  He swatted away Glen Danas’s arguments and his attempt to fashion an alternative Gentry test fell completely flat.  Gentry was not to be saved and it was for the plaintiff’s lawyer’s own good.  If Gentry survived, it was a certainty that Iskaniain would be taken up.  Even without a Gentry survival we don’t know if SCOTUS will still seek to crush our hopes.

While the passion to kill Gentry should’ve dampened my spirits, the passion to save PAGA was equally so.  Justice Liu at one point compared PAGA to a Qui Tam action, seemed convinced it was at its core a “law enforcement action.”  Further, he argued that the employee had no ability to waive the states claim comparing it to the case of EEOC v. Waffle House.  Even, the sometimes conservative Justice Corrigan attacked Andrew Pincus (attorney for amicus Chamber of Commerce) because of her perception that his line of reasoning “could insulate them [companies] from liability.”  This could not be so.  His response was just FAA trumps all.  That was the theme of the day for defense, FAA is the trump card.

In fact the lawyer for CLS, Faustman, refused to answer Justice Liu’s questions to the  point that it seemed he was doing an Abbott & Costello routine. 

(Paraphrased and abbreviated based on my notes)

Liu:  FAA and NLRA are in conflict, how do you reconcile?

F: FAA trumps

Liu: Why?

F: Congress needs to say.

Liu: Reason? Text, order, specificity, How do you reconcile?

F: Reconciliation,  NLRA says nothing about arbitration.

Liu:  FAA says nothing about collective activity.

This went on for many a minute or more.

This brings up the DR Horton/NLRA arguments, and before I address that, let me say Michael Rubin was absolutely an amazing advocate.  He was poised and unbelievably prepared to the point that answers to questions that would scare even the most seasoned advocate were at this fingertips.  For example, Liu asked him when class actions began and he knew the modern class action was recognized in 1966 but that early century there was some other vehicle which I did not entirely follow.  [Editor’s Note:  See Justice Werdegar’s concurring opinion in Arias.]  He advocated in a way that was smart on the issues and made you incredibly proud to be a plaintiff’s lawyer.  He advocated on behalf of employees everywhere in that if they have the right to picket and strike, then they should equally have the right to band together to fight to enforce the labor laws of this state.

Where the court comes down on the Horton question is hard to predict.  I would think not based on the argument but based on Liu’s wisdom that he may not take the bait.  A Horton victory would undoubtedly bring the ire of SCOTUS.  While it might feel great now, in 2015 the hangover might set in and everything will be gone.  If Horton and Gentry die, and PAGA is saved, you would think SCOTUS would leave California alone. 

****

My sincere thanks to Eric for sharing his thoughts.

Oral argument report #2 on Iskanian v. CLS Transportation

Report #2 on the Iskanian oral argument comes to us from attorney Edie Mermelstein of the Law Offices of F. Edie Mermelstein in Huntington Beach.  Thank you, Edie!

***

Thursday the California Supreme Court heard oral argument in the much anticipated Iskanian v. CLS Transportation case.  This post-Concepcion case is the second of three lead cases to be heard regarding arbitration.  The first, Sonic-Calabasas v. Moreno was decided October 17, 2013, with Justice Liu authoring the opinion that the FAA preempts state-law rule requiring a Berman hearing prior to arbitration and the trial court could consider waiver of Berman protections when considering whether arbitration provision is unconscionable due to the forced waiver by the employee of affordable and accessible dispute resolution forum.

In a packed Los Angeles appellate courtroom and equally packed overflow room, Justice Liu opened questioning by requesting Appellant-Employees’ Counsel Glenn A. Danas give his best argument on why Concepcion has not preempted Gentry. Justice Kennard also wanted a quick overview of whether Gentry survived the SCOTUS decision in Concepcion, while Chief Justice Cantil-Sakauye inquired as to whether there could be a two-step modified Gentry rule, although Justice Liu seemed to disfavor a modified Gentry rule post-Concepcion and American Express v. Italian Colors.  Justice Liu also noted the Berman waiver at issue in Sonic II is very different than the class action waiver at issue here, but Justice Chin’s inquiry focused on whether PAGA is a “representative” action with Justice Werdegar following suit by requesting counsel address the waiver of a representative action.  Danas cited to the SCOTUS decision in Mitsubishi and argued that waiver of statutory rights is against public policy and this has been reaffirmed in Italian Colors.

Michael Rubin representing amici Service Employees International Union and the California Employment Lawyers Association took to the lectern and immediately addressed the procedural and substantive private right of action under the labor codes which confer civil penalties and attorneys fees and are inherently “representative.”  Justice Werdegar raised SCOTUS decision in Kaiser Steel which stated the general rule that federal courts do not have jurisdiction over activity which is arguably subject to §7 of the National Labor Relations Act and inquired on whether amici was in favor or against the holding in Kaiser Steel.  Then Justice Liu launched into a §7/PAGA/Class initiated inquiry into the timing of the statutes and class actions and what pre-existed Rule 23.  Rubin eloquently laid out legislative history concluding that an opt-out system has been created which deprives individual employees of protections enshrined in the labor code. 

David Faustman representing the Respondent-Employer introduced himself, ingratiated himself to the esteemed panel and gave special mention to Justice Kennard.  Faustman’s opening statements went right to Gentry’s survival stating, “Gentry must fall.”  Justice Kennard lodged the first question asking counsel if there was a distinction between Discover Bank as a categorical rule and Gentry which sets forth factors.  Faustman quickly replied there is no distinction in the rules and that class waiver is “the center of the orbit” of Gentry and a modified test will never hold up upon SCOTUS review.   Justice Kennard asked Faustman to consider Gentry’s survival and whether it would be inconsistent with Concepcion and Italian Colors.  Faustman reiterated that there is no distinction between Discover Bank and Gentry and that unconscionability argument and facts to support unconscionability have only been raised by appellant in light of Sonic II and that the trial court below found there is absolutely no procedural unconscionability on the facts in this record.  At that point, both Justice Kennard and Liu actively paged through the briefs before them. 

Next, Justice Liu asked whether the FAA and the NLRA are in conflict.  Faustman boldly pronounced that the FAA “trumps” the NLRA.  Justice Liu aggressively challenged Faustman’s stance focusing on rules of construction culminating with Faustman’s acquiescence that “trumps” was the wrong term.  Justice Liu continued analyzing the FAA and its omission or inclusion of the term “collective activity.”  Faustman disagreed.  Chief Justice agreed with Justice Liu.  Faustman argued that a class action is a legal fiction.  Justice Liu appeared to defend the class action procedure as a form of “collective action” by definition.  Faustman vehemently disagreed stating it is not a “textual” argument.  Justice Liu asked, “[w]hy is PAGA preempted?”  Then, Liu moved to this court’s decision in Arias focusing on the employee standing as a proxy for the State and likening PAGA to a Qui Tam action.  Faustman argued that although he has “no quarrel with Arias” there is no proxy by the State.  Faustman claimed that here there are different procedural practices in play.  Justice Liu’s reliance on Arias appeared resolute.  Faustman simply claimed that the Arias argument may go to far.  However, Justice Liu continued to further develop the analysis by drawing an inverse relationship to the SCOTUS’s EEOC v. Waffle House case.  Faustman ended his time cautioning the court of SCOTUS’s power to overrule this Court as it has done previously in Discover Bank.

Andrew Pincus, amicus for the Chamber of Commerce of the United States, finished up Respondent’s argument by first addressing Justice Liu’s question regarding a modified Gentry rule.  Pincus claimed that the unconscionability reasoning in Sonic II cannot be applied here.  Justice Liu continued on the inverse Waffle House analysis questioning the permissibility of a plaintiff to file an initial complaint with the EEOC for any and all claims.   Pincus responded that the EEOC is in command of the case and it is indisputable that the employee here controls the case.  Chief Justice pointed out that under Pincus’ interpretation if an employee waives the right to bring a PAGA claim it undermines the purpose of the State.  Pincus answered that PAGA claims cannot be individual and although important public rights may be lost, Concepcion dictates that class procedures cannot be enacted if waived even if a desirable policy is at issue.

Justice Corrigan raised the issue of assignment of a State’s right to an employee and whether an arbitration agreement is binding where the employee has waived that right. Justice Corrigan ended the Respondent’s argument by pointing out that a given employer could insulate itself from PAGA claims by demanding that every employee sign an arbitration agreement with a waiver.

On rebuttal, other than reciting a few clarifying citations to the record the argument came to a natural end with Justice Kennard asking the last question which was Appellant’s take on Faustman’s comment that he had “no quarrel with Arias” and whether Arias is controlling here.  It should be noted that Justice Kennard penned Arias which held that an employee need not satisfy class action requirements to bring a representative action under PAGA.  It also held that an employee plaintiff suing under the Labor Code Private Attorneys General Act of 2004, does so as the proxy or agent of the state's labor law enforcement agencies. 

With that said, I believe this panel is going to try and salvage PAGA, and could potentially save the Cruz and Broughton line of cases.  The inverse would be a crippling defeat for employees and consumers to police bad acts where public agencies, which lack adequate resources, are unable to bring actions. This would effectively insulate corporations and employers from blatant violations simply by requiring individual arbitration with a PAGA waiver as a condition of employment.  One can only hope Faustman’s chiding of SCOTUS power does not dissuade this panel from doing the right thing.

***

That's the end of Edie's report.  Again, the opinion is due by July 2, 2014.

Oral argument report: Iskanian v. CLS Transportation

Many thanks to attorney Matthew B. Butler of The Butler Firm in San Diego, who attended yesterday's oral argument in Iskanian v. CLS Transportation, No. S204032, and provided the following report.

***

I attended the oral argument in the Iskanian v. CLS Transportation matter today. Overall, the court appeared unpersuaded that Gentry v. Superior Court, 42 Cal.4th 443 (2007) remains viable law post-AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740, 1742 (2011) but reluctant to extend a class action waiver to PAGA claims or to rule on the federal question of what constitutes acting in concert for the National Labor Relations Act. 

 

1.  Is Gentry still viable law given Concepcion?

 

Justice Liu led the questioning, immediately challenging Iskanian's attorney, Glenn Danas, with questions like "Why isn't Gentry preempted by the FAA after Concepcion?" and pointedly arguing that Gentry's sole focus was the class action waiver within the arbitration provision -- falling squarely within Concepcion, while Sonic-Calabasas A, Inc. v. Moreno, 57 Cal.4th 1109, 1124 (2013) focuses on other procedural issues. Justice Liu did not hide his analysis, going as far as to say that Gentry is "endangered" after Concepcion. Glenn Danas did the best he could to argue that the procedural issues identified in Gentry are tied to a de facto waiver of substantive rights -- that employees in a weaker bargaining position are required to sign an arbitration agreement as a term of employment, and are in fear of retaliation when attempting to enforce statutory rights individually.  He argued that without an affordable forum for the statutory rights to be heard, an arbitration agreement with a class action waiver is unconscionable and the appropriate forum is in court.  Without Gentry, there is too much risk that substantive rights will slip through the cracks.  He drew the comparison to a waiver of Berman hearing rights but Justice Liu was not persuaded.  

 

Justice Liu continued, identifying Concepcion's logic that even if claims slip through the cracks, the Federal Arbitration Act preempts Gentry.  Mr. Danas countered that Concepcion did not specifically address the issue of waiver of statutory rights.  Justice Kennard joined Justice Liu at that point, directly saying "You try to distinguish Gentry," "Gentry is still inconsistent with the FAA" and "I haven't heard anything to show Gentry survives."

 

The Chief Justice then asked Mr. Danas if he was advocating a modified Gentry rule, to which he replied yes, in a two step process: 1. Is there a de facto waiver of rights, and if so, 2. Does the employer have other procedures in place to ameliorate that condition.  Justice Liu was not convinced such a modified rule would survive Concepcion, because without regard for the sacrifice of other claims, the test is centralized on the class action waiver which was squarely addressed in Concepcion.   Mr. Danas argued that there are other considerations, like fear of retaliation, but did not gain traction with any other justices.  

 

David Faustman argued for CLS.  Justice Kennard greeted him with questions about Gentry's viability -- asking if it is proper to say Discover Bank v. Superior Court, 36 Cal.4th 148 (2005) was a categorical rule whereas Gentry set forth factors to avoid waiver of statutory rights?  Mr. Faustman aptly followed the justices' lead and argued that Gentry was solely about class action waivers and thus is specifically overruled by Concepcion.  Mr. Faustman repeatedly reminded the Court that any contrary finding would be quickly disposed of by the High Court.   He also criticized Iskanian's argument on unconscionability -- pointing out that Iskanian had not argued unconscionability in the lower court, but that at the trial level there was a factual finding against procedural unconscionability which was not appealed.  

 

Overall, it appeared that neither public policy nor unconscionability arguments gained traction with any of the justices.  Certainly none of the justices articulated support for the position.    

2. Private Attorney General Act

 

Mr. Danas did not have much time to address PAGA, but was asked squarely by Justice Werdeger to do so. He quickly argued that if an arbitration agreement results in total waiver of statutory rights the agreement cannot stand.  Michael Rubin later argued that PAGA provides substantive private rights of action that did not exist before the statute, and provides remedies for the state.  The express purpose of the statute was to reduce the burden of enforcement of the labor code by enlisting private individuals and their attorneys to bring and prosecute the action.  

 

CLS' counsel, Mr. Faustman, tried to carry momentum from the Gentry argument into the PAGA argument.  Justice Liu asked him directly why PAGA is preempted by the FAA.  Despite the court's finding in Arias v. Superior Court, 46 Cal.4th 969 (2009)  and the recent Ninth Circuit cases such as Baumann v. Chase Inv. Services Corp., ___ F.3d ___, 2014 WL 983587 (9th Cir. Mar. 14, 2014) and Urbino v. Orkin Services of California, Inc., 726 F.3d 1118 (9th Cir. 2013).  Mr. Faustman asserted that there is no principle distinction between PAGA and class actions.  

 

Justice Liu challenged such a proposition, asking "haven't we said in Arias that the individual is a proxy for the state in PAGA claims?" Justice Liu asked if Arias is controlling for the propositions that PAGA is not a dispute arising from employment relations, but rather is like Qui Tam.  The individual is collecting primarily for the state.  Mr. Faustman did not agree that Arias had such a broad finding, and distinguished Qui Tam from PAGA -- asserting that Qui Tam cases are run by the state to collect damages to the state whereas PAGA claims are run by individuals to collect penalties for both the state and the individual.  

 

Justice Liu read language from Arias to Mr. Faustman -- indicating that a PAGA action is a substitute for government action, and opined that, in effect, PAGA acts as an assignment of the state's claims to the employee.  Justice Liu then relied upon E.E.O.C. v. Waffle House, Inc., 534 U.S. 279 (2002), where an employee filed an EEOC claim, and the EEOC investigated and filed an action against the company.  The employee was not a party to the litigation, but the employee's individual damages were at issue.  Justice Liu repeatedly pressed Mr. Faustman as to why an individual could bring an EEOC claim and not run afoul of the FAA or an arbitration provision.  Justice Liu pushed until Mr. Faustman acknowledged that an EEOC's own claim is not impacted by the arbitration agreement between the employee and the employer.  

 

Andrew Pincus, counsel for amicus U.S. Chamber of Commerce, argued that PAGA is a hybrid of individual claims and state claims.  "An odd duck."  He argued that if it is like an assignment, then the employee's agreement with the employer governs the forum in which that employee can bring the assigned claims.  He did not cite case or statutory support for this position.  He did respond to Justice Liu's reliance on Waffle House, indicating it was instructive because the EEOC was in charge of the litigation, whereas here the employee is in charge of the litigation.  

 

Justice Corrigan further challenged the employer's position on PAGA, walking Mr. Pincus down a series of questions to make the point that an arbitration agreement can be craftily drafted to completely insulate the employer from PAGA penalties, thus eviscerating the statute.  Mr. Pincus argued that PAGA can be brought by one employee for just that individual's rights under PAGA, and therefore the statute can be read consistent with the FAA.

 

From the questioning by the justices, it appears the Court is friendly to PAGA claims remaining outside of any waiver in an arbitration agreement.  No justices asked questions appearing fascially in opposition to this view.

 

3. Employee Rights under National Labor Relations Act

 

Iskanian's counsel divided the oral argument, and Michael Rubin handled the argument for amici. Specifically he addressed the federal issues such as the right of employees to organize and act collectively. He argued that the arbitration provision strips employees of the right to collectively bring an action to enforce the labor code, in violation of the Norris LaGuardia Act and the NLRA.  Justice Werdeger quickly raised the 5th Circuit overturning the NLRB's ruling in D.R. Horton v. NLRB, 737 F.3d 344 (5th Cir. 2013), and Justice Liu picked up with "Has any court of appeal supported your position?"  Mr. Rubin had to concede the point, but not without the caveat that several decisions are pending further appeal.  

 

Justice Liu expressed concern with the intersection of the FAA and the NLRA and the fact that these representative actions came after the enactment of both.  Mr. Rubin agreed, but identified that 70 years of NLRB decisions have interpreted the right to organize, and specifically to extend that right to the level of litigation.  Mr. Rubin eloquently articulated that employees are powerless to effect change in the workplace on an individual level, reinforcing the public policy of the United States to allow employees to organize and act in concert.  As the CLS agreement currently stands, an opt-out system is created -- leaving the employees to effectively waive statutory rights.  

 

Justice Werdeger asked if Amici argues there is no viable class action waiver in the employment context, and if so wouldn't such a rule interfere with the FAA?  Mr. Rubin reiterated that any waiver of a class action violates the NLRA and Norris LaGuardia.  This does not run afoul of the FAA, because as the NLRB articulated, the employer can continue to demand individual claims be asserted in arbitration and class claims must be heard in court.   

 

CLS's attorney, Mr. Faustman, argued that courts need not follow NLRB rulings, and in fact the NLRB does not have the jurisdiction to interpret the NLRA.  In response to questions from Justice Kennard and Justice Liu, Mr. Faustman initially posited that the FAA trumps the NLRA unless and until Congress acts. Justice Liu pressed him on the issue, since the two statutes are both federal statutes passed by Congress that must be given equal weight and read together.  Mr Faustman retreated, agreeing that "trump" is not the right word.  He then found respite in two other arguments -- that the FAA predates the NLRA and the FAA talks of the primacy of arbitration but the NLRA does not.  Justice Liu made quick work of these arguments, stating that the issue here is about what constitutes collective activity and the NLRA speaks specifically to that while the FAA does not, so the NLRA governs.  Mr. Faustman argued that all federal courts that have addressed this issue disagree.  Then attacked class actions directly, arguing that it is "quite a stretch" to say a class action is concerted activity, but it is rather "a legal fiction" created by one employee and his/her lawyer.  Justice Liu did not respond positively to this argument.     

 

The justices did express some hesitation to address the federal question of the scope of both the NLRA and the FAA.  

 

In retort, Mr. Rubin argued that statements in the record indicated that Iskanian acted in concert with other employees who desired that he pursue the claims, making the action a concerted effort by employees, protected by the NLRA.  Further, there is no conflict with the FAA since the FAA exempts agreements that are otherwise unenforceable on grounds that exist in law or equity and prohibits the enforcement of arbitration agreements that strip other statutory rights.  

 

The justices did not appear to lean one way or another on this issue.  Although, Justice Liu certainly questioned extensively about it.  

Overall, the argument was engaging, the justices were prepared and active.  There did not appear to be too much question left in the justices' decision making process.  Assuredly, this one-hour argument will have a vast impact on the practice of employment law in California.

***

Thank you again, Matthew, for providing such an interesting report for us.  I did not expect the NLRA issue to be the focus of so much discussion.  For another report on the argument, see this writeup by Shawn Westrick of Kawahito Shraga & Westrick, LLP in Los Angeles.  The opinion is due in 90 days, or by Wednesday, July 2, 2014.

Oral argument preview: Iskanian v. CLS Transportation and Ayala v. Antelope Valley Newspapers

Today, the Supreme Court will be hearing oral argument in two cases of interest. 

• At 9:00 a.m., the Court will hear Iskanian v. CLS Transportation, No. S204032, which involves the enforceability of a no-class-action arbitration clause in an employment contract, and the continued vitality of Gentry post-Concepcion. These are the issues on review, per the docket: 

  (1) Did AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __ [131 S. Ct. 1740, 179 L.Ed.2d 742] impliedly overrule Gentry v. Superior Court (2007) 42 Cal.4th 443 with respect to contractual class action waivers in the context of non-waivable labor law rights? (2) Does the high court's decision permit arbitration agreements to override the statutory right to bring representative claims under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.)? (3) Did defendant waive its right to compel arbitration?

  The Court of Appeal, in a 2012 opinion, affirmed the trial court's order compelling arbitration.   Iskanian v. CLS Transp. Los Angeles, LLC, 206 Cal.App.4th 949 (2012).  See this blog post for more.

• At 1:30 p.m., the Court will hear argument in Ayala v. Antelope Valley Newspapers, No. S206874.  This case involves newspaper carriers who assert that their employer improperly classified them as independent contractors rather than employees.  The question on review is whether the Court of Appeal properly reversed, in large part, the trial court's order denying class certification of their wage and hour claims.  Here is the docket's description of the issues on review:

  This case presents questions concerning the determination of whether common issues predominate in a proposed class action relating to claims that turn on whether members of the putative class are independent contractors or employees.

  In Ayala v. Antelope Valley Newspapers, Inc., 210 Cal.App.4th 77 (Sept. 19, 2012; pub. ord. Oct. 17, 2012), after the trial court denied class certification, the Court of Appeal (Second Appellate District, Division Four) reversed the order as to five of the eight claims.  For more on the case, see this blog post.

Both of these arguments are happening in Los Angeles.  I am expecting to receive a report from at least one blog reader on Iskanian, which I will post here when received.  If you attended either of these arguments and would like to share your impressions, please email me. 

California Supreme Court developments of interest in three cases (Updated)

Not one, but two cases of interest have been scheduled for oral argument in April: 

• On March 5, 2014, the Court scheduled oral argument in Ayala v. Antelope Valley Newspapers, No. S206874, in which the plaintiff newspaper carriers assert that their employer improperly classified them as independent contractors rather than employees.  The question on review is whether the Court of Appeal properly reversed, in large part, the trial court's order denying class certification of their wage and hour claims.  The argument will take place on Thursday, April 3, 2014 at 1:30 p.m. in Los Angeles.  For more information on the case, see this blog post. 

• On March 5, 2014, oral argument was also scheduled in one of the pending arbitration-related cases, Iskanian v. CLS Transportation, No. S204032 (as I previously reported). The argument was set for Thursday, April 3, 2014 at 9:00 a.m. in Los Angeles.  On March 10, 2014, petitioners' counsel filed a request to continue the argument to the June calendar.  On March 11, 2014, this request was denied, so the argument will proceed on April 3 as originally set. 

And, in other developments: 

• On March 7, 2014, the Supreme Court gave itself an extension of time, through April 15, 2014, to grant or deny review in Williams v. Superior Court (Allstate Ins. Co.), No. S215887.   This is one of the twelve post-Brinker class certification decisions.  UPDATE:  On March 19, 2014, the Supreme Court denied review in this case.

U.S. Supreme Court developments of interest in four cases

A few more recent developments of interest from the U.S. Supreme Court:

• On February 24, 2014, the Court issued a GVR order (grant, vacate and remand) in CarMax Auto Superstores California, LLC v. Fowler, No. 13-439.  In this case, the California Court of Appeal (Second Appellate District, Division One), in an unpublished opinion, reversed the trial court's order compelling arbitration in a wage and hour class action.  Fowler v. CarMax, Inc., 2013 WL 1208111 (Cal. Ct. App. Mar. 26, 2013).  That opinion concluded, among other things, that Concepcion did not overrule Gentry v. Superior Court, 42 Cal.4th 443 (2007) (discussed in this blog post).  The California Supreme Court denied review, but now the U.S. Supreme Court has vacated the decision and directed the Court of Appeal to reconsider the matter in light of American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013). 

• On February 26, 2014, the Court requested a response from the respondent, Moreno, in Sonic-Calabasas A, Inc. v. Moreno, No. 13-856.  The cert. petition challenges the California Supreme Court's decision in Sonic-Calabasas A, Inc. v. Moreno, 57 Cal.4th 1109 (2013) (discussed in this blog post).  The federal high court issued a GVR order the last time Sonic-Calabasas filed a cert. petition in this case, which was in 2011.  That time, the case was remanded for further consideration in light of Concepcion.

• On March 10, 2014, the Court invited the Solicitor General to file a brief expressing the views of the United States in Bank of America, N.A. v. Rose, No. 13-662.  The cert. petition seeks to overturn the California Supreme Court's decision in Rose v. Bank of America, N.A., 57 Cal.4th 390 (2013) (discussed here).   See this blog post for links to some of the briefs filed in the federal proceeding.

• On March 10, 2014, the Court granted cert. in Public Employees' Retirement System of Mississippi v. IndyMac MBS, Inc., No. 13-640, after relisting the case twice.  This case involves American Pipe tolling, and this is the question presented according to the U.S. Supreme Court's website: 

In American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), this Court held that "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action." Id. at 554. Section 13 of the Securities Act of 1933—titled "Limitation of actions"—provides, in relevant part, that "[i]n no event shall" an action under § 11 of that Act "be brought ... more than three years after the security was bona fide offered to the public, or under [§ 12] (a) (2) ... more than three years after the sale." 15 U.S.C. § 77m. 

The question presented is:  Does the filing of a putative class action serve, under the American Pipe rule, to satisfy the three year time limitation in § 13 of the Securities Act with respect to the claims of putative class members?

The Second Circuit held last June that American Pipe tolling did not apply. Police and Fire Retirement System of City of Detroit v. IndyMac MBS, Inc., 721 F.3d 95 (2d Cir. 2013).  The SCOTUSblog case page has links to the briefs filed to date.