The United States Supreme Court Granted Cert On December 15, 2022.
The issue: "Whether the Federal Arbitration Act requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under the California Private Attorneys General Act."
Readers of this blog will know that California courts have repeatedly ruled, following Iskanian, that employees cannot be forced to arbitrate PAGA representative claims. The basic reason underlying this conclusion is that PAGA representative claims are in the nature of qui tam actions, and therefore the interest of the state of California is involved. But since the state is not a party to the employee's arbitration agreement, arbitration of representative claims cannot be compelled. The issue before the United States Supreme Court is whether this "carve-out" of mandatory arbitration is preempted by the Federal Arbitration Act.
COMMENT: I have been publishing this blog since 2012, and I don't think I have ever before predicted the outcome of a case. This time, I'm going to stick my neck out and predict that the Supreme Court's decision, given the current composition of the court and its decision to take the case, will not go well for the employee. We shall see. If my prediction proves to be accurate, I will let you know. And if I'm wrong . . . well, we'll see.
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