Result Follows Iskanian, And Court Of Appeal’s Disposition Provides Trial Court With Roadmap For Trying The PAGA Claim.
The Supreme Court directed the 6th District to vacate its previous decision in Brown v. Superior Court, 216 Cal.App.4th 1302 (2013), and to reconsider in light of Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 (2014). Earlier, the 6th District had held that class action waivers of Private Attorneys General Act of 2004 claims are unenforceable, because the waivers prevent “the exercise of a statutory right intended for a predominantly public purpose,” and no case had held that the Federal Arbitration Act requires enforcement of such agreements. Thus, the 6th District was in accord with the conclusion in Iskanian.
The Court of Appeal answers now three questions in Brown v. Superior Court, H037271 (6th Dist. Oct. 24, 2014) (Premo, Rushing, Elia) (unpublished):
1. Did the defendant employer waive its right to compel arbitration by failing to move to compel arbitration until after Concepcion was decided? Answer: No.
2. Is the class action waiver preempted by the collective-action requirement of the National Labor Relations Act? Answer: No – following Iskanian.
3. Does Concepcion permit arbitration agreements to override the statutory right to bring representative claims under the PAGA? Answer: No.
The disposition of the case, vacating the superior court’s order and requiring entry of a new order, is interesting, because it is a reminder that after it is determined that the class action waiver is ineffective as to the PAGA claims, a decision still needs to be made as to whether the claims will be tried by a judge or by an arbitrator.
Thus, the Court of Appeal directs the superior court to “enter a new order after determining (1) whether the parties would prefer to resolve the representative PAGA claim through arbitration; (2) if not, whether it is appropriate to bifurcate the claims, with individual claims going to arbitration and the representative PAGA claim to litigation; and (3) if such bifurcation occurs, whether the arbitration should be stayed pursuant to Code of Civil Procedure section 1281.2.”
Decisions, decisions.
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