Is A Class Action Waiver Different From A Representative Action Waiver?
On January 7, 2015, I posted that on September 22, 2014, a cert petition was filed in the SCOTUS to consider the PAGA/FAA preemption issue in Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 (2014).
This is how the issue is framed in SCOTUSblog:
“Issue: Whether an employee’s waiver in an arbitration agreement of a collective or “representative action” under the California Private Attorneys General Act, Cal. Labor Code § 2698 et seq., is so distinguishable from a “class action” waiver that it is immune from the otherwise preemptive effect of the Federal Arbitration Act, 9 U.S.C. § 1 et seq., as held by this Court in AT&T Mobility v. Concepcion.”
Meanwhile, back here in California, the California Court of Appeal rules today that in light of Iskanian, the representative PAGA claims of a salesperson working for Fry’s Electronics are cognizable in the trial court, requiring reversal of the trial court’s order dismissing the plaintiff’s representative claims brought under PAGA. Hutchinson v. Fry’s Electyronics, Inc., D063219 (4/1 Jan. 15, 2015) (Benke, Nares, Irion) (unpublished). Because “representative PAGA claims are brought on behalf of the state”, the employee cannot be compelled to waive those claims by means of an arbitration clause requiring arbitration of individual claims only.
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