Amicus Curiae Brief — Viking River Cruises, Inc., Petitioner v. Angie Moriana

No. 20-1573

In the

Supreme Court of the United States

__________________

VIKING RIVER CRUISES, INC.,

Petitioner,

v.

ANGIE MORIANA,

__________________

Respondent.

On Writ of Certiorari to the Court of Appeal of

California, Second Appellate District

__________________

BRIEF OF THE CIVIL JUSTICE ASSOCIATION

OF CALIFORNIA AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

__________________

FRED J. HIESTAND*

Counsel of Record

3418 Third Avenue

Suite 1

Sacramento, CA 95817

(916) 448-5100

fred@fjh-law.com

Counsel for Amicus Curiae

February 7, 2022

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICUS . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I. THE FAA’S MANDATE THAT INDIVIDUAL

ARBITRATION AGREEMENTS BE

ENFORCED ACCORDING TO THEIR TERMS

PREEMPTS CALIFORNIA’S ISKANIAN RULE

THAT BARS ENFORCEMENT OF SUCH

AGREEMENTS WHEN PROSECUTED UNDER

THE STATE’S PAGA . . . . . . . . . . . . . . . . . . . . . . 7

A. The Text of the FAA Clearly States that it

Applies to all Arbitration Agreements Unless

Expressly Exempted by the FAA or other

Federal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1. Contrary to Iskanian, the FAA makes no

distinction between the arbitration of

ordinary commercial disputes and

disputes between the government and

private individuals . . . . . . . . . . . . . . . . . . . 9

2. The legislative history of the FAA does

not alter the meaning of its textual

language . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ii

B. The Purpose of the FAA is to Enforce

Bilateral Arbitration Contracts According to

their Terms, and Representative PAGA

Claims Violate that Objective . . . . . . . . . . . . 13

1. Iskanian’s public policy exception to

bilateral arbitration for representative

PAGA claims violates the FAA . . . . . . . . 15

2. Iskanian’s

distinction

between

pre-dispute and post-dispute arbitration

agreements makes no sense . . . . . . . . . . 18

3. Vindication of an important state

statutory right cannot obviate bilateral

contractual arbitration. . . . . . . . . . . . . . . 22

C. The PAGA is Not a Qui Tam Action . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

iii

TABLE OF AUTHORITIES

CASES

62 Cases, More or Less, Each Containing Six

Jars of Jam v. United States,

340 U.S. 593 (1951). . . . . . . . . . . . . . . . . . . . . . . 11

Allied-Bruce Terminix Cos. v. Dobson,

513 U.S. 265 (1995). . . . . . . . . . . . . . . . . . . . . . . 13

American Express Co. v. Italian Colors Restaurant,

570 U.S. 228 (2013). . . . . . . . . . . . . . . . . . . . 22, 23

Armendariz v. Foundation Health Psychcare

Services, Inc., 24 Cal.4th 83 (2000) . . . . . . . . . . 19

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011). . . . . . . . . . . . . . . . . . . passim

Bright v. 99¢ Only Stores,

189 Cal.App.4th 1472 (2010) . . . . . . . . . . . . . . . . 6

Buckeye CheckCashing, Inc. v. Cardegna,

546 U.S. 440 (2006). . . . . . . . . . . . . . . . . . . . . . . 13

Charles Wolff Packing Co. v. Court of Industrial

Relations of Kansas, 267 U.S. 552 (1925) . . . . . 13

Circuit City Stores, Inc. v. Ahmed,

283 F.3d 1198 (9th Cir. 2002). . . . . . . . . . . . . . . 15

Circuit City Stores, Inc. v. Najd,

294 F.3d 1104 (9th Cir. 2002). . . . . . . . . . . . . . . 15

Correia v. NB Baker Elec., Inc.,

32 Cal.App.5th 602 (2019) . . . . . . . . . . . . . . . . . . 6

iv

Epic Systems Corp. v. Lewis,

138 S. Ct. 1612 (2018). . . . . . . . . . . . . . . . . passim

Equal Opportunity Commission v. Waffle

House Inc., 534 U.S. 279 (2002) . . . . . . . . . . . . . 25

Extendcare Homes, Inc. v. Whisman,

478 S.W.3d 306 (2015) . . . . . . . . . . . . . . . . . . . . 20

Free v. Bland,

369 U.S. 663 (1962). . . . . . . . . . . . . . . . . . . . . . . . 7

Granite Rock Co. v. Teamsters,

561 U.S. 287 (2010). . . . . . . . . . . . . . . . . . . . . . . 14

Home Depot U.S.A., Inc. v. Superior Court,

191 Cal.App.4th 210 (2010) . . . . . . . . . . . . . . . . . 6

Huff v. Securitas Security Services USA, Inc.,

23 Cal.App.5th 745 (2018) . . . . . . . . . . . . . . . . . 18

Iskanian v. CLS Transportation Los Angeles, LLC,

59 Cal.4th 348 (2014) . . . . . . . . . . . . . . . . . passim

Johnson v. Maxim Healthcare Services, Inc.,

66 Cal.5th 924 (2021) . . . . . . . . . . . . . . . . . . . . . 25

Kilgore v. KeyBank Nat. Ass’n.,

718 F.3d (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . 15

Kim v. Reins International California, Inc.,

9 Cal.5th 73 (2020) . . . . . . . . . . . . . . . . . . . . . . . . 6

Kindred Nursing Centers Ltd. Partnership v. Clark,

137 S. Ct. 1421 (2017). . . . . . . . . . . . . . . 16, 20, 21

Kisor v. Wilkie,

139 S. Ct. 2400 (2019). . . . . . . . . . . . . . . . . . . . . . 8

v

Lamps Plus, Inc. v. Varela,

139 S. Ct. 1407 (2019). . . . . . . . . . . . . . . . . . . . . 14

Magadia v. Wal-Mart Associates, Inc.,

999 F.3d 668 (9th Cir. 2021). . . . . . . . . . . . . . . . 25

Miranda v. Anderson Enterprises, Inc.,

241 Cal.App.4th 196 (2015) . . . . . . . . . . . . . . . . 17

Pennington v. Coxe,

2 Cranch 33, 6 U.S. 33 (1804). . . . . . . . . . . . . . . 12

Perry v. Thomas,

482 U.S. 483 (1987). . . . . . . . . . . . . . . . . . . . . . . 22

Preston v. Ferrer,

552 U.S. 346 (2008). . . . . . . . . . . . . . . . . . . . . . . 14

Richards v. United States,

369 U.S. 1 (1962). . . . . . . . . . . . . . . . . . . . . . . . . 12

Rose v. Superior Court,

81 Cal.App.4th 564 (2000) . . . . . . . . . . . . . . . . . . 8

Rusello v. United States,

464 U.S. 16 (1983). . . . . . . . . . . . . . . . . . . . . . . . 12

Saheli v. White Memorial Medical Center,

21 Cal.App.5th 308 (2018) . . . . . . . . . . . . . . . . . . 2

Sanchez v. Valencia Holding Co., LLC,

61 Cal.4th 899 (2015) . . . . . . . . . . . . . . . . . . . . . . 2

Schwegmann Brothers v. Calvert Distillers Corp.,

341 U.S. 384 (1951). . . . . . . . . . . . . . . . . . . . . . . 12

Southland Corp. v. Keating,

465 U.S. 1 (1984). . . . . . . . . . . . . . . . . . . . . . . . . 13

vi

Stolt-Nielsen S.A. v. Animal Feeds Int’l Corp.,

559 U.S. 662 (2010). . . . . . . . . . . . . . . . . . . . . 1, 13

United States v. Bankers Ins. Co.,

245 F.3d 315 (4th Cir. 2001). . . . . . . . . . . . . . . . 24

United States v. Well,

519 U.S. 482 (1997). . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Wurzbach,

280 U.S. 396 (1930). . . . . . . . . . . . . . . . . . . . . . . 11

United States ex rel. Welch v. My Left Foot

Child.’s Therapy, LLC,

871 F.3d 791 (9th Cir. 2017). . . . . . . . . . . . . . . . 24

Volt Information Sciences, Inc. v. Board of

Trustees of Leland Stanford University,

489 U.S. 468 (1989). . . . . . . . . . . . . . . . . . . . . . . 14

Williams v. Superior Court,

3 Cal.5th 531 (2017) . . . . . . . . . . . . . . . . . . . . . . 22

CONSTITUTION AND STATUTES

U.S. Const., Art. 6, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . 4

9 U.S.C. § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

9 U.S.C. § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 8, 10

10 U.S.C. § 987(e)(3) (2012) . . . . . . . . . . . . . . . . . . . 10

15 U.S.C. § 1226(a)(2) (2001) . . . . . . . . . . . . . . . . . . 10

31 U.S.C. § 3730 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

vii

Dep’t of Def. Appropriations Act,

Pub. L. No. 112-10, 125 Stat. 38

§ 8102(a)(1)-(2) (2011). . . . . . . . . . . . . . . . . . . . . 10

Cal. Labor Code § 1198 . . . . . . . . . . . . . . . . . . . . . 5, 6

Cal. Labor Code § 2698 et seq.. . . . . . . . . . . . . . . . . . 1

OTHER AUTHORITIES

Alexander J.S. Colvin, Economic Policy Institute

(Sept. 27, 2017), available at https://www.epi.org

/publication/thegrowing-use-of-mandatory-arbi

tration/. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Bob Egelko, Union-Backed Law Reaps Payments for

California Employees – State Gets a Cut, Too,

SAN FRANCISCO CHRONICLE, Feb. 11, 2020 . . . . . 6

Andrew Elmore, The State Qui Tam to Enforce

Employment Law, 69 DEPAUL L. REV. 357 (2020)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Matthew J. Goodman (Comment), The Private

Attorney General Act: How to Manage the

Unmanageable, 56 SANTA CLARA L. REV. 413

(2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Stephanie Greene & Neylon O’Brien, Epic

Backslide: The Supreme Court Endorses

Mandatory Individual Arbitration Agreements –

#Timesup on Workers’ Rights, 15 STAN. J. CIV.

RTS. & CIV. LIBERTIES 43 (2019) . . . . . . . . . . . . . 19

Johnny Mercer, Something’s Gotta Give (1954) . . . . 4

William Safire, Essay; Calling a Tail a Leg, NEW

YORK TIMES, Feb. 22, 1993 . . . . . . . . . . . . . . . . . 26

viii

Frank Sinatra, Come Dance With Me! (1959) . . . . . . 4

Matthew M. Sonne & Kevin P. Jackson, Sheppard

Mullin Richter & Hampton, Towards a

“Manageability” Standard in PAGA Discovery,

Ass’n of Business Trial Lawyers Rep., Vol. XVI,

No.3 (Summer 2014) . . . . . . . . . . . . . . . . . . . . . . 17

Laurence H. Tribe, “Comment,” in Antonin Scalia,

A Matter of Interpretation: Federal Courts and

the Law 65 (1997) . . . . . . . . . . . . . . . . . . . . . . . . 11

Wage Order No. 7-2001 . . . . . . . . . . . . . . . . . . . . . 5, 6

1

INTEREST OF AMICUS

The Civil Justice Association of California (CJAC)

welcomes the opportunity to address as amicus curiae1

the issue this case presents—whether the Federal

Arbitration Act (FAA)2 requires enforcement of a

bilateral arbitration agreement between employer and

employee providing that the employee cannot raise

representative claims, including under California’s

statutory Private Attorney General Act (PAGA).3

CJAC is a 44-year-old nonprofit organization whose

members are businesses, professional associations and

financial institutions. CJAC’s principal purpose is to

educate the public about ways to make more fair,

certain and efficient laws that determine who gets

paid, how much, and by whom when the conduct of

some occasions harm to others.

Private contractual arbitration of employment

disputes comports with CJAC’s purpose because it

provides “lower costs” and “greater efficiency and

speed” than court litigation. Stolt-Nielsen S.A. v.

Animal Feeds Int’l Corp., 559 U.S. 662, 685 (2010)

(Stolt-Nielsen). Accordingly, CJAC participates as

1

Counsel of record for the parties have provided blanket consent

for the submission of amici briefs. No counsel for any party in this

case authored this brief in whole or in part. No person or entity

aside from amicus or its members (and Viking River Cruises, Inc.

is not a member) made a monetary contribution to the preparation

or submission of this brief.

2

9 U.S.C. § 2.

3

Cal. Labor Code § 2698 et seq.

2

amicus curiae in cases defining the scope and

application of the FAA to bilateral pre-dispute

arbitration contracts when state law erects unlawful

barriers to that practice.4

CJAC’s members employ tens of thousands of people

in California and hundreds of thousands nationally in

the manufacture of products and the provision of

services. Most CJAC members have chosen, as have

many employers throughout the country,5 to resolve

disputes with their employees over employment

matters, including wage and hour issues, through

contractual arbitration.

CJAC sets great store on the FAA and the

consistent line of this Court’s opinions upholding that

statute’s broad preemptive sweep requiring that

agreements to decide disputes by arbitration be placed

on an “equal footing” with other contracts and enforced

accordingly. The decision here, however, thwarts

contractual arbitration by applying the state’s Iskanian

rule (named after California’s supreme court opinion

expounding the rule) to void such agreements when a

4

See, e.g., Iskanian v. CLS Transportation Los Angeles, LLC, 59

Cal.4th 348 (2014); Sanchez v. Valencia Holding Co., LLC, 61

Cal.4th 899 (2015); and Saheli v. White Memorial Medical Center,

21 Cal.App.5th 308 (2018).

5

According to one study, approximately 55% of the workforce, or

60 million employees, are covered by employment arbitration

agreements. Alexander J.S. Colvin, Economic Policy Institute

(Sept. 27, 2017), available at https://www.epi.org/publication/thegrowing-use-of-mandatory-arbitration/.

3

party asserts representative claims on behalf of other

employees under California’s PAGA.

PAGA constitutes a major obstacle to voluntary

employment arbitration contracts because it conflicts

with the FAA and controlling precedents of this Court.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case presents a fundamental legal question:

what happens when the “irresistible force” of the FAA

“meets the immovable object” of California’s PAGA? A

long and consistent line of opinions from this Court

answer soundly that the FAA trumps a state statute’s

public policy when it undermines the FAA’s preemptive

protection of individual arbitration agreements. “In the

[FAA], Congress has instructed federal courts to

enforce arbitration agreements according to their

terms—including terms providing for individualized

proceedings.” Epic Systems Corp. v. Lewis, 138 S. Ct.

1612, 1621 (2018) (Epic Systems).

Here, respondent signed an arbitration agreement

with her employer [petitioner] expressly waiving her

right to bring, hear, or arbitrate any dispute [with the

employer] as [a purported member of any] class,

collective, representative or private attorney general

action.” JA 89-90. She was also given the opportunity

to “opt-out” of this waiver in the employment

agreement but declined to do so. JA 90. Nonetheless,

she filed a “representative” PAGA court action as an

“aggrieved employee”against her employer for wage

claims, and the trial and appellate courts followed

4

Iskanian’s end-run around the FAA to uphold her right

to do so.

As a matter of public policy debate, these conflicting

approaches – viz., agreeing to waive representative

claims in arbitration agreements yet filing those same

claims in court – appear as classic paradoxes, Catch22’s of arbitral jurisprudence; but in both song and law

the answer is clear—“something’s gotta give.”6 When,

as here, the force of the FAA is propelled by the power

of the Supremacy Clause (U.S. Const., Art. 6, cl. 2) and

fueled by a copious, consistent line of Court opinions

striking down laws that impede individualized

agreements to arbitrate, that “give” means Iskanian’s

“non-waivability” doctrine for PAGA claims must bow

to the FAA’s broad preemptive sweep. Substantive

federal law for enforcing individual arbitration

agreements according to their terms prevails over

California’s PAGA command that employees cannot

waive their rights to pursue “representative” court

claims.

Simply put, California cannot do what Iskanian and

the trial and appellate courts did here and enforce

PAGA as a “rule . . . declar[ing] individualized

arbitration proceedings off limits.” This would allow

the state to “reshape traditional individualized

6

Johnny Mercer, Something’s Gotta Give (1954), written for and

first performed by Fred Astaire in the 1955 musical film Daddy

Long Legs and later made popular in a recording by Frank Sinatra.

“When an irresistible force such as you/ Meets an old immovable

object like me/You bet just as sure as you live/Something’s gotta

give/Something’s gotta give.” Frank Sinatra, Come Dance With Me!

(1959).

5

arbitration” in violation of the FAA. Epic Systems,

supra, 138 S. Ct. at 1623. The FAA protects “pretty

absolutely” agreements calling for “one-on-one

arbitration” using “individualized . . . procedures.” Id.

at 1619.

Iskanian, the principal authority upon which the

respondent and California courts rely, holds contrary

to Epic Systems and other opinions of this Court, that

PAGA claims cannot be compelled to arbitration. Why?

Ostensibly because “regardless of whether an

individual PAGA cause of action is cognizable, a PAGA

claimant’s request for civil penalties on behalf of

himself or herself is not subject to arbitration under a

private arbitration agreement between the plaintiff

and his or her employer.” Pet. App. 6. In other words,

Iskanian dictates, and the appellate court in this case

accordingly holds, that despite respondent’s agreement

to waive her representative PAGA claim and proceed

solely to decide her individual PAGA claim against her

employer by arbitration, she may still litigate her

individual claim and representative PAGA claims on

behalf of all other employees, even those who have

Labor Code violations not applicable to her.

Because PAGA allows an “aggrieved employee” to

obtain penalties on behalf of all employees for Labor

Code violations committed by that employer, this has

resulted in multi-million dollar payouts. A claim for

statutory penalties applied, for example, when an

employer violated the “suitable seating” requirement of

Wage Order No. 7-2001, which is covered by California

6

Labor Code section 1198.7 Violation of this provision

wrested a settlement for $65 million against Walmart

in 2018, out of which the state got $33 million and

Walmart’s 99,000 employees divided up $10.7 million

($108 for each employee), leaving $21.3 million for

plaintiffs’ attorneys and their litigation costs.8 Safeway

settled a “suitable seating” PAGA lawsuit for $12

million, of which the 30,000 employees got to share

$1.875 million ($62.50 per employee) while the plaintiff

attorneys received $4.4 million.9

Iskanian’s holding has been echoed by other

appellate opinions. See, e.g., Correia v. NB Baker Elec.,

Inc., 32 Cal.App.5th 602 (2019); Kim v. Reins

International California, Inc., 9 Cal.5th 73 (2020) (a

PAGA plaintiff’s settlement of individual claims still

leaves him free to prosecute his representative PAGA

7

Bright v. 99¢ Only Stores, 189 Cal.App.4th 1472, 1478 (2010);

Home Depot U.S.A., Inc. v. Superior Court, 191 Cal.App.4th 210,

222-223 (2010). The Wage Order on “seats” provides that “[a]ll

working employees shall be provided with suitable seats when the

nature of the work reasonably permits the use of seats . . ..” Wage

Order No. 7-2001, ¶ 14. While these lawsuits were “class actions”

that AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011)

(Concepcion) and Epic Systems now clearly foreclose, Iskanian

permits plaintiffs to ignore the bilateral arbitration agreements

they sign and “replace the words ‘class action’ in their pleadings

with ‘PAGA action’ and litigate in court as if Concepcion and Epic

Systems never happened.” Pet. Merits Brief, p. 43.

8

Bob Egelko, Union-Backed Law Reaps Payments for California

Employees – State Gets a Cut, Too, SAN FRANCISCO CHRONICLE,

Feb. 11, 2020.

9

Id.

7

claims on behalf of other employees). These holdings

hostile to arbitration, however, ignore well-settled law.

“The relative importance to the State of its own law is

not material when there is a conflict with a valid

federal law, for the Framers of our [federal]

Constitution provided [in the supremacy clause] that

the federal law must prevail. [Citation.]” Free v. Bland,

369 U.S. 663, 666 (1962).

What matters most in determining the

constitutionality of Iskanian’s non-waivability rule is

whether it comports with the language of the FAA and

bedrock principles set forth by this Court’s opinions.

The Iskanian rule runs afoul of the FAA’s wellestablished arbitral precepts, permitting PAGA to

perversely override the FAA’s requirement that

individual arbitration agreements be enforced

according to their terms to protect the “fundamental

attribute of arbitration” – its individualized nature.

Epic Systems, supra, 138 S. Ct. at 1622.

ARGUMENT

I. THE FAA’S MANDATE THAT INDIVIDUAL

ARBITRATION AGREEMENTS BE

ENFORCED ACCORDING TO THEIR TERMS

PREEMPTS CALIFORNIA’S ISKANIAN RULE

THAT BARS ENFORCEMENT OF SUCH

AGREEMENTS WHEN PROSECUTED UNDER

THE STATE’S PAGA.

The FAA’s plain text and the long line of U.S.

Supreme Court opinions interpreting and applying it

combine to compel a clear conclusion—PAGA’s nonwaivable representative action under Iskanian conflicts

8

with and violates the FAA’s broad preemptive sweep

allowing parties to waive those actions and decide their

disputes by contractual arbitration. The FAA displaces

the PAGA’s non-waivable representative action, not the

other way around.

A. The Text of the FAA Clearly States that it

Applies to all Arbitration Agreements

Unless Expressly Exempted by the FAA or

other Federal Law.

We begin at the beginning, “away from open-ended

policy appeals and speculation about legislative

intentions and toward the traditional tools of

interpretation judges have employed for centuries to

elucidate the law’s original public meaning”10—the text

of the FAA.

The FAA states that a “written provision” in “a

contract evidencing a transaction involving commerce”

that agrees to “settle by arbitration” . . . “a

controversy . . . arising out of” that “contract . . . shall

be valid, irrevocable, and enforceable, save upon such

grounds as exist at law or in equity for the revocation

of any contract.” 9 U.S.C. § 2.

This statutory language is plain and unambiguous.

It says what it means and means what it says, a

“prosaic notion . . . based on our abiding conviction

th[at] communication suffers when language says what

it does not mean.” Rose v. Superior Court, 81

Cal.App.4th 564, 570 (2000). A fair reading of the

10

Kisor v. Wilkie, 139 S. Ct. 2400, 2442 (2019) (concurring opinion

by Gorsuch, J.).

9

FAA’s text encompasses and applies to the arbitration

contract in this case. Numerous California court

decisions, however – dictated by Iskanian – seize upon

the final 17 words of section 2 of the FAA, its savings

clause, to assert that the arbitration contract is at odds

with “grounds” that “exist at law or in equity for the

revocation of any contract.” The “ground” arguably

violated by the arbitration contract is the “public

policy” animating the PAGA—that “requiring an

employee as a condition of employment to give up the

right to bring representative PAGA actions in any

forum is contrary to ‘public policy.’ ” Iskanian, supra,

59 Cal.4th at 360.

But this is not a ground applicable to contracts

generally; it is instead specifically tailored to prohibit

bilateral arbitration of representative employee claims

for statutory penalties.

1. Contrary to Iskanian, the FAA makes no

distinction between the arbitration of

ordinary commercial disputes and disputes

between the government and private

individuals.

According to Iskanian, one source for this implicit

public policy principle supposedly derives from a

purported distinction between contractual arbitration

for ordinary commercial disputes and disputes between

the government and private individuals. “[A] PAGA

claim lies outside the FAA’s coverage because it is not

a dispute between an employer and an employee

arising out of their contractual relationship. It is a

dispute between an employer and the state, which

alleges directly or through its agents—either the

10

[state’s assigned administrative agency] or aggrieved

employees—that the employer has violated the Labor

Code.” Iskanian, supra, at 386-387 (emphasis original).

But Iskanian’s spin, echoed by the California courts

in this case, does not wash. The touchstone for FAA

coverage is a written arbitration provision in “a

contract evidencing a transaction involving commerce.”

9 U.S.C. § 2. (Respondent does not dispute that the

arbitration contract here qualifies as “involving

commerce.”) No distinction is made or implied by the

FAA’s text between arbitration contracts where one

party, either directly or as the real party in interest, is

the government and arbitration agreements where both

parties are private. The natural, sensible reading of

section 2 is that the FAA’s scope applies to any contract

for arbitration “evidencing a transaction involving

commerce,” regardless of the nature of the parties or

the dispute to be arbitrated. Unless another provision

of the FAA (see 9 U.S.C. § 1 excluding certain contracts

involving transportation workers from the FAA) or

other federal statutes expressly provide that the FAA

does not apply to arbitration contracts, it applies. While

Congress has exempted various claims from the FAA,

none are state claims like the PAGA that are based on

a state’s “public policy.”11

11

See, e.g., Motor Vehicles Franchise Contract Arbitration

Fairness Act, 15 U.S.C. § 1226(a)(2) (2001) (prohibiting motor

vehicle manufacturers, importers, and distributors from requiring

arbitration under their franchise agreements); Dep’t of Def.

Appropriations Act, Pub. L. No. 112-10, 125 Stat. 38

§ 8102(a)(1)-(2) (2011) (prohibiting government contractors from

requiring arbitration of Title VII claims or tort claims arising from

a sexual assault or harassment); and John Warner Nat’l Def.

11

When reading and applying the FAA, a court should

not add or delete words from it to clarify its meaning,

or draw distinctions the statute does not expressly

make. “[O]ur problem is to construe what Congress has

written. Congress expresses its purpose by words. It is

for us to ascertain—neither to add nor to subtract,

neither to delete nor to distort.” 62 Cases, More or Less,

Each Containing Six Jars of Jam v. United States, 340

U.S. 593, 596 (1951). “[T]here is no warrant for seeking

refined arguments to show that the statute does not

mean what it says.” United States v. Wurzbach, 280

U.S. 396, 398 (1930) (per Holmes, J.). “[I]t is the text’s

meaning, and not the content of anyone’s expectations

or intentions, that binds us as law.” Laurence H. Tribe,

“Comment,” in Antonin Scalia, A Matter of

Interpretation: Federal Courts and the Law 65, 66

(1997) (emphasis original).

2. The legislative history of the FAA does not

alter the meaning of its textual language.

Resort to isolated testimony from the sparse

legislative history surrounding the FAA does not

permit rewriting its meaning contrary to its literal

language. Iskanian, however, seeks to bolster its

concocted out-of-thin-air distinction between private

contracts and those where the state is a party by

citation to the testimony of two witnesses when the

FAA was pending before a congressional committee.

Authorization Act, 10 U.S.C. § 987(e)(3) (2012) (making it unlawful

for a consumer creditor to require an active duty service member,

her spouse, child, or dependent to submit to arbitration a claim

involving the extension of consumer credit).

12

Iskanian, supra, 59 Cal.4th at 385. One witness, a

principal drafter of the FAA, reportedly stated the

FAA’s “primary object was the settlement of ordinary

commercial disputes.” Id. Yet, he did not testify that

the FAA exempted from arbitration disputes where the

government was the real party in interest.

“[L]egislative history is not the law. ‘It is the

business of Congress to sum up its own debates in its

legislation,’ and once it enacts a statute ‘we do not

inquire what the legislature meant; we ask only what

the statute means.’ ” Epic Systems, supra, 138 S. Ct. at

1631, quoting Schwegmann Brothers v. Calvert

Distillers Corp., 341 U.S. 384, 396, 397 (1951). “[A] law

is the best expositor of itself.” Pennington v. Coxe, 2

Cranch 33, 6 U.S. 33, 53 (1804) (per Marshall, C.J.).

Iskanian trumpets there is “no indication [from the

legislative history] that the FAA was intended to

govern disputes between the government in its law

enforcement capacity and private individuals.” 59

Cal.4th at 385. Neither is there any indication that it

was not intended to cover such disputes. To infer from

a sliver of legislative testimony that the plain language

of the FAA does not apply when the government is a

party is illogical and of no import in discerning the

meaning of the FAA’s actual text. Congressional

“silence compels us to ‘start with the assumption that

the legislative purpose is expressed by the ordinary

meaning of the words used.’ ” Rusello v. United States,

464 U.S. 16, 21 (1983), quoting Richards v. United

States, 369 U.S. 1, 9 (1962). “[W]e have frequently

cautioned that it is at best treacherous to find in

congressional silence . . . the adoption of a controlling

13

rule of law.” United States v. Well, 519 U.S. 482, 496

(1997).

B. The Purpose of the FAA is to Enforce

Bilateral Arbitration Contracts According

to their Terms, and Representative PAGA

Claims Violate that Objective.

The “FAA’s central purpose is to ensure that private

agreements to arbitrate are enforced according to their

terms.” Stolt-Nielsen, supra, 559 U.S. at 664. “We

recognize that in its usual acceptation the term

[“arbitration”] indicates a proceeding based entirely on

the consent of the parties.” Charles Wolff Packing Co.

v. Court of Industrial Relations of Kansas, 267 U.S.

552, 564 (1925). Although courts may accomplish that

end by relying on state contract principles, state law is

preempted to the extent it “stands as an obstacle to the

accomplishment and execution of the full purposes and

objectives” of the FAA. Concepcion, supra, 563 U.S. at

352 (internal quotation marks omitted).

Congress enacted the FAA to replace the

longstanding judicial hostility to arbitration that

existed at common law with a national policy favoring

arbitration. Southland Corp. v. Keating, 465 U.S. 1, 10

(1984). That national policy “appli[es] in state as well

as federal courts” and “foreclose[s] state legislative

attempts to undercut the enforceability of arbitration

agreements.” Id. at 16. The FAA’s displacement of

conflicting state law has been repeatedly reaffirmed.

See, e.g., Buckeye CheckCashing, Inc. v. Cardegna, 546

U.S. 440, 445-446 (2006); Allied-Bruce Terminix Cos. v.

Dobson, 513 U.S. 265, 272 (1995).

14

When, as here, state law prohibits the arbitration of

a particular type of claim, such as a PAGA claim, the

FAA displaces the conflicting rule. Concepcion, 563

U.S. at 343. This ensures that courts enforce

arbitration agreements according to the FAA and the

terms of the agreements rather than state law. “FAA

§ 2 declares a national policy favoring arbitration when

the parties contract for that mode of dispute resolution.

That national policy applies in state as well as federal

courts and forecloses state legislative attempts to

undercut the enforceability of arbitration agreements.”

Preston v. Ferrer, 552 U.S. 346, 354 (2008) (citations

omitted).

Arbitration under the FAA “is a matter of consent”

and “parties are generally free to structure their

arbitration agreements as they see fit.” Volt

Information Sciences, Inc. v. Board of Trustees of

Leland Stanford University, 489 U.S. 468, 479 (1989).

“[T]he first principle that underscores all of our

arbitration decisions” is that “[a]rbitration is strictly a

matter of consent.” Granite Rock Co. v. Teamsters, 561

U.S. 287, 299 (2010).

The parties to this agreement could have consented

to allow representative PAGA claims to be decided by

arbitration or in court, but they did not. If there is any

disagreement between the parties as to the textual

import of the arbitration agreement, then the

presumption favors arbitration and the ordinary rule

that ambiguity in contracts should be construed

against the drafter has no force. Lamps Plus, Inc. v.

Varela, 139 S. Ct. 1407, 1416 (2019). Instead, the

parties here agreed that respondent waived any

15

statutory right she had to bring her representative

PAGA claim against defendant in any forum, and the

only disagreement is whether that waiver is entitled to

enforcement.

Respondent’s consent to waive her PAGA

representative claim was not due to duress, fraud or

circumstances making the contract unconscionable;

and she has not asserted any such grounds. A contract

to arbitrate employment disputes does not run afoul of

traditional contract defenses merely because it is

adhesive. “[T]he times in which consumer [and

employment] contracts [are] anything other than

adhesive are long past.” Concepcion, 563 U.S. at 346347. And an arbitration agreement is not

“unconscionable” or “illegal” when, as here, the drafter

of the contract presents an opportunity to opt-out of it.

Kilgore v. KeyBank Nat. Ass’n., 718 F.3d 1198, 1199

(9th Cir. 2002) (finding no procedural unconscionability

due to opt-out provision); Circuit City Stores, Inc. v.

Najd, 294 F.3d 1104, 1109 (9th Cir. 2002)(same);

Circuit City Stores, Inc. v. Ahmed, 283 F.3d 1198,

1199-1200 (9th Cir. 2002) (same).

1. Iskanian’s public policy exception to

bilateral arbitration for representative

PAGA claims violates the FAA.

Iskanian pays lip service to the FAA’s broad

preemptive sweep while creating a PAGA exception to

it based on state public policy. “[A]n arbitration

agreement requiring an employee as a condition of

employment to give up the right to bring representative

PAGA actions in any forum is contrary to public

policy.” 59 Cal.4th at 360; italics added. But this is

16

precisely what the FAA prohibits a state from doing. “If

§ 2 [of the FAA] means anything, it is that courts

cannot refuse to enforce arbitration agreements

because of a state public policy against arbitration,

even if the policy nominally applies to ‘any contract.’ ”

Concepcion, 563 U.S. at 352-353; italics added.

Section 2 of the FAA “offers no refuge for defenses

that apply only to arbitration or that derive their

meaning from the fact that an agreement to arbitrate

is at issue. Under our precedent, this means the

savings clause does not save defenses that target

arbitration either by name or by more subtle methods,

such as by interfering with fundamental attributes of

arbitration.” Epic Systems, 138 S. Ct. at 1622, omitting

internal quotation marks from Concepcion and Kindred

Nursing Centers Ltd. Partnership v. Clark, 137 S. Ct.

1421 (2017) (Kindred Nursing).

In Kindred Nursing, the Court explained that “in

Concepcion . . . we described a hypothetical state law

declaring unenforceable any contract that disallowed

an ultimate disposition of a dispute by a jury. Such a

law might avoid referring to arbitration by name; but

still, . . . it would rely on the uniqueness of an

agreement to arbitrate as its basis—and thereby

violate the FAA.” Kindred Nursing, 137 S. Ct. at 1426.

The “fundamental attributes of arbitration” are “its

speed and simplicity and inexpensiveness” as compared

to litigation. Epic Systems, 138 S. Ct. at 1623. Parties

“may agree to limit the issues subject to arbitration, to

arbitrate according to specific rules, and to limit with

whom a party will arbitrate its disputes.” Concepcion,

563 U.S. at 344. Waivers for class and representative

17

claims are copacetic in arbitration agreements because

each of these actions necessarily sacrifices “the

principal advantage of arbitration—its informality—

and makes the process slower, more costly, and more

likely to generate procedural morass than final

judgment.” Id.

Indeed, “representative” actions frustrate and

interfere with individual arbitration even more than

“class actions.” All class actions are representative

actions, though not all representative actions are class

actions. Still, PAGA suits are representative actions in

nature and seemingly parallel the class action model.

See Matthew M. Sonne & Kevin P. Jackson, Sheppard

Mullin Richter & Hampton, Towards a “Manageability”

Standard in PAGA Discovery, Ass’n of Business Trial

Lawyers Rep., Vol. XVI, No.3 (Summer 2014). The key

features of “class” and “representative” actions are the

same: employees sue their employers on behalf of

themselves and others similarly situated. However,

“PAGA representative actions are not required to meet

class action requirements. Thus, PAGA potentially

functions as a ‘back-door’ route to a class action

lawsuit, which greatly increases the potential liability

for an employer-defendant” like petitioner. Matthew J.

Goodman (Comment), The Private Attorney General

Act: How to Manage the Unmanageable, 56 SANTA

CLARA L. REV. 413, 420 (2016).

In both representative and class actions, “the

potential recovery is greater . . . than it would be if the

plaintiff sought only individual relief.” Miranda v.

Anderson Enterprises, Inc., 241 Cal.App.4th 196, 200

(2015). PAGA statutory penalties are generally “one

18

hundred dollars ($100) for each aggrieved employee per

pay period for the initial violation and two hundred

dollars ($200) for each aggrieved employee per pay

period for each subsequent violation.” See Iskanian,

supra, 59 Cal.4th at 384.

The PAGA’s unwaivable representative action

vitiates a key attribute of arbitration by allowing

discovery as to Labor Code violations for all employees.

Huff v. Securitas Security Services USA, Inc., 23

Cal.App.5th 745, 750 (2018). And “manageability”

problems are often present in PAGA representative

actions, making individual arbitration sanctioned by

the FAA a “favored” means for dispute resolution over

representative PAGA claims. See, e.g., Goodman,

supra, 56 SANTA CLARA L. REV. at 437, 443.

State law cannot prohibit waiver of a representative

action in the face of the FAA for this would make

arbitration “wind up looking like the litigation it was

meant to displace.” Id. And Iskanian’s refuge under the

rationale that a waiver of the representative PAGA

claim is “illegal” and unenforceable cannot succeed

because it “impermissibly disfavors arbitration.” Epic

Systems, 138 S. Ct. at 1623.

2. Iskanian’s distinction between pre-dispute

and post-dispute arbitration agreements

makes no sense.

Iskanian undercuts its own holding that a PAGA

representative action by an “aggrieved employee”

cannot be waived by qualifying that principle to allow

waivers depending on when they are made. “[I]t is

contrary to public policy for an employment agreement

19

to eliminate this [representative action] choice

altogether by requiring employees to waive the right to

bring a PAGA action before any dispute arises.”

Iskanian, 59 Cal.4th at 383; italics added.

But if a representative action waiver is against

public policy when made before a dispute arises, how

and why does it become magically compatible with

public policy when made after a dispute arises?

Iskanian does not explain the reasoning behind this

distinction other than to cite Armendariz v. Foundation

Health Psychcare Services, Inc., 24 Cal.4th 83, 103

(2000) and add a bracketed assertion that “[waivers

freely made after a dispute has arisen are not

necessarily contrary to public policy].” Iskanian, 59

Cal.4th at 383; italics added.

Iskanian’s public policy distinction for permissible

as opposed to “illegal” waivers based on the “timing” of

their assertion in relation to the making of the

agreement does not rest on any articulated legal

principle so much as it evinces an attempted “‘workaround’ of [High Court] precedent upholding

mandatory arbitration procedures.” Stephanie Greene

& Neylon O’Brien, Epic Backslide: The Supreme Court

Endorses Mandatory Individual Arbitration

Agreements – #Timesup on Workers’ Rights, 15 STAN. J.

CIV. RTS. & CIV. LIBERTIES 43, 83 (2019).

This “work-around” of arbitration contracts for

PAGA representative claims is based on the fallacious

notion that a pre-dispute arbitration agreement is

“forced and unfair” while a post-dispute arbitration

agreement is okay. But all arbitration agreements to

have come before the Court that amicus discusses here

20

are pre-dispute agreements; and all cited opinions that

involve state statutes or state public policy that impede

enforcement of individual arbitration agreements have

been swept into the FAA’s preemptive ditch.

For example, in Kindred Nursing, supra, 137 S. Ct.

1421, the Court reversed a decision by the Kentucky

Supreme Court that invalidated a power of attorney

binding the plaintiffs to an arbitration agreement

because it did not specifically waive the plaintiffs’ right

to trial by jury, a “sacred” and “inviolate” right secured

them by the state’s constitution. To form such a

contract, the court said, the representative must

possess specific authority to “waive his principal’s

fundamental constitutional rights to access the courts

[and] to trial by jury.” Extendcare Homes, Inc. v.

Whisman, 478 S.W.3d 306, 327 (2015).

This Court, however, citing the FAA and

Concepcion, explained the Kentucky Supreme Court’s

ruling was unconstitutional because it was really “a

legal rule hinging on the primary characteristic of an

arbitration agreement—namely, a waiver of the right

to go to court and receive a jury trial.” Kindred

Nursing, 137 S. Ct. at 1427. And it does not matter, the

Court hammered home, whether the charged illegality

was in the making or the enforcement of the

arbitration agreement. “A rule selectively finding

arbitration contracts invalid because improperly

formed fares no better under the [FAA] than a rule

selectively refusing to enforce those agreements once

properly made. Precedent confirms that point.” Id. at

1428.

21

What the Kentucky Supreme Court ruled in

Kindred is no different from what Iskanian and the

trial and appellate courts did here. All violated the

FAA by impeding “the ability of [parties] to enter into

arbitration agreements. The court thus flouted the

FAA’s command to place those agreements on an equal

footing with all other contracts.” Id. at 1429.

Concepcion underscores that a waiver in an

arbitration agreement can completely extinguish a

state’s conferral of statutory or constitutional rights. In

discussing the scope of the FAA’s protective ambit for

arbitration agreements that waive state laws and their

underlying public policies inimical to individualized

arbitration, Concepcion describes a hypothetical state

law declaring unenforceable any contract that

“disallow[ed] an ultimate disposition [of a dispute] by

a jury.” 563 U.S. at 342. To further highlight this

principle, Concepcion cited another “obvious

illustration” of a case finding “unconscionable or

unenforceable [or illegal] . . . as against public

policy . . . arbitration agreements that fail to provide

for judicially monitored discovery,” that “fail to abide

by the Federal Rules of Evidence, or that disallow an

ultimate disposition by a jury (perhaps termed ‘a panel

of twelve lay arbitrators’ to help avoid preemption).”

Concepcion, 563 U.S. at 341-342; italics added.

Concepcion warned, prescient as to PAGA, that

these examples were “not fanciful, since the judicial

hostility towards arbitration that prompted the FAA

ha[s] manifested itself in a great variety of devices and

formulas declaring arbitration against public policy.”

Id. Nonetheless, Concepcion clarifies that no court may

22

“rely on the uniqueness of an agreement to arbitrate as

a basis for a state-law holding that enforcement would

be [illegal], for this would enable the court to effect

what . . . the state legislature cannot.” Id. at 341,

quoting Perry v. Thomas, 482 U.S. 483, 493, n. 9.

Epic Systems reinforces why Iskanian contravenes

the FAA. Epic describes Concepcion as “readily

acknowledging” that “the defense of unconscionability,

[like the state defense of “illegality” for contracts

against public policy asserted here and in Iskanian],

formally applie[s] in both the litigation and the

arbitration context.” Epic Systems, 138 S. Ct. at 1622.

But that defense still fails “because it interfere[s] with

a fundamental attribute of arbitration . . . by effectively

permitting any [aggrieved employee] in arbitration to

demand [representative] proceedings despite the

traditionally individualized and informal nature of

arbitration.” Id. at 1622-1623.

3. Vindication of an important state statutory

right cannot obviate bilateral contractual

arbitration.

Iskanian also holds that the PAGA’s representative

action cannot be waived because to do so would thwart

the “vindication” of an important statutory right. The

“sole purpose” of “California’s public policy prohibiting

waiver of PAGA claims,” we are told, is to “vindicate

the [state’s] interest in enforcing the Labor Code.”

Iskanian, 59 Cal.4th at 388; italics added. See also

Williams v. Superior Court, 3 Cal.5th 531, 548 (2017).

But “vindication” of statutory rights only counts

under the FAA for federal, not state, laws. American

23

Express Co. v. Italian Colors Restaurant, 570 U.S. 228

(2013), teaches that a class action waiver is enforceable

even though it violates a “vindication” rationale based

on a state “unconscionability” rule. Id. at 235-239.

Justice Kagan dissented in Amex but clarified,

consistent with the majority opinion, that the effective

vindication doctrine is confined to federal, not state

law, claims. A state law invalidating an arbitration

agreement, she spells out, “may not thwart federal law,

irrespective of exactly how it does so,” and the effective

vindication principle must be reconciled with the FAA

and “all the rest of federal law.” 570 U.S. at 240; italics

added. “Our effective-vindication rule comes into play

only when the FAA is alleged to conflict with another

federal law . . ..” Id. at 252; italics added. “We have no

earthly interest (quite the contrary) in vindicating [a

state] law” that is inconsistent with the FAA, so the

state law must “automatically bow” to federal law; any

effective-vindication exception that might possibly exist

would “come into play only when the FAA is alleged to

conflict with another federal law.” Ibid.

C. The PAGA is Not a Qui Tam Action.

Iskanian notes that a PAGA claim is “a type of qui

tam action.” Iskanian, supra, at 382. Specifically, it

analogizes the PAGA to the federal False Claims Act

(FCA; 31 U.S.C. § 3730). Id. at 311-312. This assertion

supposedly propels PAGA claims outside the ambit of

bilateral arbitration for employee-employer disputes

involving state labor code violations. But significant

reasons undercut Iskanian’s purported analogy to

excise PAGA from the protective umbrella of the FAA

24

for contractual arbitration of employee disputes with

their employers.

First, the underlying assumption of Iskanian’s

analogy is that FCA qui tam actions are not subject to

FAA arbitration. Federal courts are, however, not in

accord on this point. Compare, e.g., United States ex rel.

Welch v. My Left Foot Child.’s Therapy, LLC, 871 F.3d

791, 794 (9th Cir. 2017) with United States v. Bankers

Ins. Co., 245 F.3d 315, 325 (4th Cir. 2001). Even

assuming that the FCA and the FAA are inconsistent

and that, therefore, FCA claims cannot be arbitrated,

this does not mean a state statute like PAGA falls

outside the FAA. After all, if “vindication” of statutory

rights only counts under the FAA for federal, not state,

laws, assignment of the state’s interest to individual

plaintiff’s would logically differ from the federal

government’s assignment of its rights. See discussion

ante at pp. 22-23.

Second, the FCA requires control by the federal

government over the relator in prosecuting its assigned

interest to a private party in contrast to PAGA suits.

Under the FCA, the federal government is authorized

to take over control of the case from the relator at any

time, to seek and obtain a stay of the relator’s discovery

attempts, and to dismiss or settle the suit over the

objections of the relator. Pet. Merits Brief, p. 41. By

contrast, a PAGA claim is entirely under the control of

the plaintiff who brings it. The state agency responsible

for administering PAGA can, of course, bring an action

directly against an employer for violating the state’s

labor code, but once a private plaintiff initiates a PAGA

suit, that agency is powerless to intervene, stay

25

discovery, or affect the dismissal or settlement of the

action.

A “PAGA [claim] represents a permanent, full

assignment of California’s interest to the aggrieved

employee,” while qui tam claims under the FCA involve

a partial assignment; PAGA also “lacks the ‘procedural

controls’ necessary to ensure that California—not the

aggrieved employee (the named party in PAGA

suits)—retains ‘substantial authority’ over the case.”

Magadia v. Wal-Mart Associates, Inc., 999 F.3d 668,

677 (9th Cir. 2021).12 “PAGA prevents California from

intervening in a suit brought by the aggrieved

employee, yet still binds the State to whatever

judgment results. [¶]A complete assignment to this

degree—an anomaly among modern qui tam

statutes—undermines the notion that the aggrieved

employee is solely stepping into the shoes of the State

rather than also vindicating the interests of other

aggrieved employees.” Id.

Third, Iskanian’s reference to Equal Opportunity

Commission v. Waffle House Inc., 534 U.S. 279 (2002)

does not help, but goes against its assertion that PAGA

claims are essentially qui tam actions. Iskanian, 59

Cal.4th at 386. Waffle House holds that the EEOC can

bring suit under its own name and is not bound by an

arbitration agreement between the employee and

12

Johnson v. Maxim Healthcare Services, Inc., 66 Cal.5th 924, 930

(2021), decided after Magadia and contrary to one of its major

holdings, held that even though a plaintiff’s “individual [PAGA]

claim may be time barred does not nullify the alleged Labor Code

violations nor strip [plaintiff] of . . . standing to pursue PAGA

remedies.”

26

employer. That conclusion, however, hinged on the

reality of fact and law that the EEOC, in contrast to

the state administrative agency for PAGA, is “the

master of its own case.”Id. at 290-91. Here, the

respondent completely controls her PAGA litigation

“without governmental supervision.” Iskanian, 59

Cal.4th at 389-390. See discussion in Pet. Merits Brief,

pp. 37-39. This removal of PAGA claims from agency

supervision reinforces the viability of employee waivers

of same in lieu of signed bilateral arbitration contracts.

Cf., Andrew Elmore, The State Qui Tam to Enforce

Employment Law, 69 DEPAUL L. REV. 357, 400 (2020).

Iskanian’s labeling of PAGA as a qui tam action,

then – a shaky linchpin to its rationale for exempting

PAGA claims from employee waivers in favor of

bilateral arbitration – is akin to calling a tail a leg. “If

you call a tail a leg, went the riddle attributed to

Lincoln, how many legs has a dog. The answer: four,

‘because calling a tail a leg doesn’t make it a leg.”

William Safire, Essay; Calling a Tail a Leg, NEW YORK

TIMES, Feb. 22, 1993, Section A, p. 17.

CONCLUSION

The arbitration agreement here should be enforced

according to its terms. This is the central purpose of

the FAA and the result flowing from its broad

preemptive sweep as limned by consistent opinions of

this Court. State public policy underlying the PAGA’s

non-waivable representative action is an impediment

to the strong, substantive national policy favoring the

enforcement of bilateral arbitration contracts.

California’s public policy interest in vindicating PAGA’s

representative action requirement must yield to the

27

FAA’s protection of arbitration agreements. PAGA, as

interpreted by Iskanian and as applied by the courts

below, squarely conflicts with the FAA.

For all of these reasons, the Court should reverse.

Respectfully submitted,

FRED J. HIESTAND

Counsel of Record

3418 Third Avenue, Suite 1

Sacramento, CA 95817

(916) 448-5100

fred@fjh-law.com

Counsel for Amicus Curiae