The Supreme Court has eschewed for now the opportunity to review whether California’s Private Attorneys General Act is preempted by the Federal Arbitration Act. But another Certiorari Petition involving the issue remains pending.
We have reported many times on Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348, 327 P.3d 129 (Calif. 2014), cert. den., 135 S. Ct. 1155 (2015), where a divided 4-3 California Supreme Court – complete with partial concurrences and dissents – held that an employee could pursue claims against his employer under the California Private Attorneys General Act (“PAGA”), despite the existence of an arbitration agreement waiving such claims (see, for example, SAA 2015-01 and SAAs 2014-41 & -24).
No SCOTUS Review…
But did the U.S. Supreme Court’s subsequent decision in Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018), holding that class or collective action waivers were enforceable under the Federal Arbitration Act, implicitly overrule Iskanian? We’ll have to wait for SCOTUS to weigh in on this issue, because the Court on October 12 declined to review Campbell v. DoorDash, Inc., No. A159296 (Cal. Ct. App. 2020), petition for review denied, No. S266497 (Cal. Mar. 10, 2021), where that Court held: “Iskanian is good law and California courts remain bound by it.” The August 9 Petition for Certiorari in DoorDash, Inc. v. Campbell, No. 21-220, had presented this question: “Whether agreements calling for individual arbitration are enforceable under the Federal Arbitration Act with respect to claims asserted under California’s Private Attorneys General Act, Cal. Lab. Code § 2698 et seq.”
… But Another Case is Still Pending
As reported in SAA 2021-37 (Oct. 7), still pending is a September 21 Petition for Certiorari seeking review of Gregg v. Uber Technologies, Inc., No. B302925 (Cal. Ct. App. 2 Apr. 21, 2021), petition for review denied, No. S269000 (Cal. June 30, 2021). The issue presented there is: “Whether agreements calling for individual arbitration are enforceable under the Federal Arbitration Act with respect to claims asserted under the California Labor Code Private Attorneys General Act.” The Petition relies heavily on intervening SCOTUS rulings, including Epic Systems. See Uber Technologies, Inc. v. Gregg, No. 21-453.
(ed: *Campbell is listed on page 5 of the October 12 Order List. **There have been other recent California Court of Appeal cases to the same effect as Campbell: see Winns v. Postmates Inc., No. A155717 (Calif. Ct. App. Dist. 1 Jul. 20, 2021); Herrera v. Doctors Medical Center of Modesto, Inc., No. F080963 (Calif. Ct. App. 5 Aug. 5, 2021); and Williams v. RGIS, LLC, No. C091253 (Calif. Ct. App. 3 Oct. 18, 2021). ***As we’ve said before, stating the obvious, the Supreme Court’s composition has changed since SCOTUS eschewed review of the original Iskanian holding in 2015.)