Once Again, A California Court Of Appeal Affirms That Iskanian Is Still Good Law.
In Winns et al. v. Postmates Inc., A155717 (1/3 7/20/21) (Petrou, Fujisaki, Jackson), Postmates argued its couriers had waived the right to bring representative PAGA claims, and that the California Supreme Court's Iskanian opinion holding such waivers to be invalid had been impliedly overruled by SCOTUS cases.
Justice Petrou explains California courts must follow the rulings of the California Supreme Court, and SCOTUS has not ruled on the issue presented by Iskanian, namely, whether a waiver of a representative action is enforceable. SCOTUS has ruled that a waiver of a class action is enforceable, but that is a different issue, because PAGA claims are in the nature of qui tam claims brought on behalf of California. The state is not a party to the arbitration agreement, and has not waived the right to litigate PAGA claims.
Postmates made another argument, namely, that the plaintiffs had been given the right to opt out of arbitration and had not done so. Therefore, they shouldn't object to arbitrating. The court rejected that argument, explaining that it was against California public policy to waive the right to litigate PAGA claims.
COMMENT: Iskanian was decided in 2014. The case was not taken up by SCOTUS. Employers seem to be flogging a dead horse in state court. Though the internal logic of Iskanian may make sense, the decision also presents a political issue, because employers generally want to avoid arbitration, and employees generally want to preserve the ability to litigate. And since 2014, the composition of SCOTUS has changed. So perhaps it is not a foregone conclusion how SCOTUS would rule if squarely confronted with the issue of whether the Federal Arbitration Act preempts the right to litigate representative actions.
Update: A More Recent Case Reaches The Same Conclusion.
The case is Christine Herrera et al. v. Doctors Medical Center of Modesto, Inc., F080963 (5th Dist. 8/5/21) (Franson, Pena, DeSantos).
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