I am not usually a policy wonk, and I often think in terms of concepts not cases. However, I must say that listening to the US Supreme Court’s oral argument on the pending Viking River Cruises case was fascinating. If you have a car trip planned, or a weekend walk, I highly recommend you give it a listen; the podcast is about 80 minutes.
If you have been hiding under an employment law rock, the issue in this case is whether a class action waiver in an arbitration agreement can also include a waiver of PAGA claims. Under prevailing law (Iskanian v. CLS), the California Supreme Court essentially held that class action waivers cannot include collective claims under PAGA, because those claims belong to the state. In fact, a group of esteemed colleagues at Fox Rothschild briefed and argued the Iskanian case years ago, and were on the right side of that argument (namely, that under prevailing US Supreme Court precedent, California can’t undermine the Federal Arbitration Act by excluding PAGA from class action waivers). But alas, the California Supreme Court ruled otherwise.
In the years following Iskanian, PAGA claims have sky-rocketed to the rate of approximately 17 cases filed per day. But this case is challenging that legal landscape, and perhaps the timing is right given the US Supreme Court’s new conservative (and hopefully employer friendly) majority.
If oral argument is any indicator, that trend of PAGA filings might be coming to an end for employers wise enough to have well worded arbitration agreements with class action waivers in hand. Another reason to revisit our blog posts about arbitration agreements.
A decision is expected by July 2022.