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

California Court Of Appeal

---------------------------------♦--------------------------------BRIEF OF CIVIL PROCEDURE AND

ARBITRATION LAW PROFESSORS AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

---------------------------------♦--------------------------------PROF. MYRIAM GILLES

BENJAMIN N. CARDOZO

SCHOOL OF LAW

55 Fifth Avenue

New York, NY 10003

gilles@yu.edu

GARY B. FRIEDMAN

Counsel of Record

5 White Street

New York, NY 10013

(917) 568-5024

gfriedman@flgllp.com

March 9, 2022

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

Interest of amici curiae .......................................

1

Summary of the argument ..................................

3

Argument .............................................................

4

I.

II.

California’s Anti-Waiver Rule Is A Facially

Neutral Ground For The Revocation Of

Any Contract .............................................

5

The Anti-Waiver Rule Does Not In Practice “Interfere With Fundamental Attributes Of Arbitration” ...................................

7

A. The Broad Factual Scope of PAGA

Claims Does Not Interfere With Arbitration ..................................................

8

B. PAGA Does Not Interfere With The Attributes Of Bilateral Arbitration That

This Court Has Identified As Fundamental .................................................. 13

Conclusion............................................................ 16

ii

TABLE OF AUTHORITIES

Page

CASES

AT&T v. Concepcion, 563 U.S. 333 (2011) .......... passim

Allied–Bruce Terminix Cos. v. Dobson, 513 U.S.

265 (1995) ..................................................................7

American Express Inc. v. McMahon, 482 U.S. 220

(1987) ................................................................... 9, 10

American Pipe & Constr. Co. v. Utah, 414 U.S.

538 (1974) ................................................................13

Chavez v. Charter Commc’ns, LLC, 2021 WL

6496864 (C.D. Cal. Dec. 1, 2021) .............................11

Devlin v. Scardelletti, 536 U.S. 1 (2002) ............... 13, 14

Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018) ... passim

Feltzs v. Cox Commc’ns Cal., LLC, 2021 WL

4947306 (C.D. Cal. Oct. 21, 2021) ...........................11

Gilmer v. Interstate/Johnson Lane Corp., 500

U.S. 20 (1991) ............................................................9

Goro v. Flowers, 2021 WL 5761694 (C.D. Cal.

Dec. 3, 2021) ............................................................11

Grannis v. Superior Court of S.F., 146 Cal. 245

(1905) .........................................................................6

Iskanian v. CLS Transp. L.A., LLC, 59 Cal. 4th

348 (2014) .............................................................. 6, 9

Kindred Nursing Centers L. P. v. Clark, 137

S. Ct. 1421 (2017) ......................................................4

Magadia v. Wal-Mart Assocs., 999 F.3d 668 (9th

Cir. 2021) .................................................................14

iii

TABLE OF AUTHORITIES – Continued

Page

Mitsubishi Motors Corp. v. Soler Chrysler–

Plymouth, Inc., 473 U.S. 614 (1985) ................. 10, 11

Perry v. Thomas, 482 U.S. 483 (1987) ...........................7

Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989) ...............................10

Sakkab v. Luxottica Retail North America, Inc.,

803 F.3d 425 (9th Cir. 2015) ......................................9

Saucillo v. Peck, ___ F. 4th ___, 2022 WL 414692

(9th Cir. February 11, 2022)....................................14

Wesson v. Staples the Off. Superstore, LLC, 68

Cal. App. 5th 746 (2021), review denied (Dec.

22, 2021) ............................................................ 11, 12

STATUTES

CAL. CIV. CODE § 1283.05(C) .......................................12

CAL. CIV. CODE § 3513...................................................6

CAL. CIV. CODE § 1668...................................................6

Cal. Labor Code § 2699.3 ............................................15

California Arbitration Act ..........................................12

Fair Labor Standards Act, 29 U.S.C. § 216(b) ............14

Federal Arbitration Act, 9 U.S.C. § 2 ........................ 4, 7

Private Attorney General Act............................. passim

iv

TABLE OF AUTHORITIES – Continued

Page

RULES

Fed. R. Civ. P. 23(e)......................................................13

Sup. Ct. R. 37.6 .............................................................1

OTHER AUTHORITIES

Janet Alexander, To Skin A Cat: Qui Tam Actions As a State Legislative Response to Concepcion, 46 U. MICH. J. OF LEG. REF. 1203

(2013) .......................................................................14

Myriam Gilles & Gary Friedman, Unwaivable:

Public Enforcement Claims and Mandatory

Arbitration, 89 FORDHAM L. REV. 451 (2020)............5

1

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

California Court Of Appeal

---------------------------------♦---------------------------------

BRIEF OF CIVIL PROCEDURE AND

ARBITRATION LAW PROFESSORS AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

---------------------------------♦---------------------------------

INTEREST OF AMICI CURIAE1

Amici curiae are a group of law professors with

extensive experience teaching and writing about

1

Pursuant to S. Ct. Rule 37.6, counsel for all parties have

consented to the filing of this brief. No counsel for a party authored this brief in whole or in part and no person or entity other

than amicus, its members, or counsel made a monetary contribution to its preparation or submission, except for printing costs

that were paid by the Impact Fund.

2

arbitration, civil procedure, and related fields. Based

on that experience, amici proffer this brief to help inform the Court’s consideration of whether the FAA

preempts the California rule against waiver of claims

under that state’s Private Attorney General Act. Amici,

as proceduralists, write to emphasize that what matters is whether the procedures involved in arbitrating

a PAGA claim are inimical to the core attributes of arbitration. As amici discuss below, a PAGA claim is entirely bilateral and implicates none of the procedures

that this Court has found inconsistent with the FAA in

Concepcion.

Amici include:2

Janet Cooper Alexander

Frederick I. Richman Professor of Law, Emerita

Stanford Law School

Sergio J. Campos

Professor of Law

University of Miami School of Law

Zachary Clopton

Professor of Law

Northwestern Pritzker School of Law

Brooke D. Coleman

Associate Dean of Research & Faculty

Development and Professor of Law

Seattle University School of Law

2

Institution names are provided for purposes of identification only. The views expressed in this brief do not reflect the views

of the institutions with which amici are affiliated.

3

Richard H. Frankel

Professor of Law

Associate Dean for Experiential Learning

Drexel University, Kline School of Law

David Horton

Martin Luther King Jr. Professor of Law

University of California at Davis School of Law

Suzette Malveaux

Moses Lasky Professor of Law

University of Colorado Law School

Judith Resnik

Arthur Liman Professor of Law

Yale Law School

Katherine V.W. Stone

Arjay and Frances Miller Distinguished

Professor of Law, Emerita

UCLA School of Law

Adam Zimmerman

Professor of Law and Gerald Rosen Fellow

Loyola Law School—Los Angeles

---------------------------------♦---------------------------------

SUMMARY OF THE ARGUMENT

California’s rule providing that PAGA claims are

not waivable in employment contracts reflects a general principle of long-established state contract law

that does not discriminate against arbitration on its

face. In practice, moreover, the arbitral forum can well

accommodate PAGA claims in a manner that is consistent with this Court’s understanding of arbitration.

4

If the complexity of a given PAGA claim threatens to

render the proceeding unmanageable, the arbitrator

has the power under California law to trim the action

as needed, including the power to dismiss claims. Because PAGA claims require none of the procedures that

this Court held incompatible with arbitration in Concepcion and Epic, the California rule precluding waiver

of PAGA claims does not interfere with the core attributes of arbitration and is not preempted by the FAA.

---------------------------------♦---------------------------------

ARGUMENT

Section 2 of the Federal Arbitration Act (“FAA”)

provides that agreements to arbitrate “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. Under this latter clause, generally referred to as the “saving clause,” courts may deny

enforcement of arbitration agreements based upon any

legal or equitable grounds that would support refusing

to enforce “any contract.”

This Court has interpreted the saving clause to encompass only contractual defenses that apply equally

to arbitration contracts as they do to other agreements.

See, e.g., Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1622

(2018) (by “recogniz[ing] only defenses that apply to

‘any’ contract[,] . . . the clause establishes a sort of

‘equal-treatment’ rule for arbitration contracts”) (quoting Kindred Nursing Centers L. P. v. Clark, 137 S. Ct.

1421, 1426 (2017)). The saving clause, under this

5

Court’s jurisprudence, “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.’ ” Epic Sys., 138 S. Ct. at 1622 (quoting

AT&T v. Concepcion, 563 U.S. 333, 339 (2011)). Moreover, “the saving clause does not save defenses that target arbitration either by name or by more subtle

methods, such as by ‘interfer[ing] with fundamental attributes of arbitration.’ ” Epic Sys., 138 S. Ct. at 1622

(quoting Concepcion, 563 U.S. at 344).

In this case, California’s rule providing that claims

under its Private Attorney General Act (“PAGA”) are

not waivable in employment contracts (the “AntiWaiver” rule) reflects a general principle of longestablished state contract law. See Myriam Gilles &

Gary Friedman, Unwaivable: Public Enforcement Claims

and Mandatory Arbitration, 89 FORDHAM L. REV. 451

(2020) (tracing the 19th century origins of California’s

anti-waiver and anti-exculpation laws). Because the

Anti-Waiver rule neither discriminates against arbitration on its face nor interferes with fundamental attributes of arbitration, it is consistent with the equaltreatment requirement imposed by the saving clause

and is not preempted by the FAA.

I.

California’s Anti-Waiver Rule Is A Facially

Neutral Ground For The Revocation Of

Any Contract

California law bars enforcement of contractual

waivers of the right to bring claims seeking to

6

vindicate public interests, such as PAGA claims. This

Anti-Waiver rule stems from an 1872 statute, where

the California legislature provided that “[a]ny one may

waive the advantage of a law intended solely for his

benefit. But a law established for a public reason

cannot be contravened by a private agreement.” CAL.

CIV. CODE § 3513.3 Under this principle, the California

Supreme Court explained in 1905, “there can be no

effectual waiver by the parties of any restriction established by law for the benefit of the public.” Grannis

v. Superior Court of S.F., 146 Cal. 245, 253 (1905).

And that court applied the same Anti-Waiver rule in

Iskanian v. CLS Transp. L.A., LLC, 59 Cal. 4th 348

(2014), to reach the “conclusion that an employee’s

right to bring a PAGA action is unwaivable” under California law. 59 Cal. 4th at 383.

On its face, California’s rule providing that PAGA

claims are not waivable in employment contracts is a

general principle of state contract law applicable both

to arbitration agreements and to other contracts. The

Anti-Waiver rule, in other words, is facially neutral.

The employee may not waive the right to bring a PAGA

claim in court or in arbitration. The rule, which predates the FAA by some 50 years, does not “derive [its]

3

Civil Code Section 3513 is often cited in tandem with another law from the 1872 legislative session, California Civil Code

section 1668, which states: “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility

for his own fraud, or willful injury to the person or property of

another, or violation of law, whether willful or negligent, are

against the policy of the law.” See Iskanian, 59 Cal. 4th at 382

(citing both statutes together).

7

meaning from the fact that an agreement to arbitrate

is at issue,” Epic Sys., 138 S. Ct. at 1622, nor does it

place arbitration agreements on an “unequal ‘footing’ ”

with other contracts. Allied–Bruce Terminix Cos. v.

Dobson, 513 U.S. 265, 281 (1995). By providing evenhandedly that an employment agreement may not require employees to waive the right to bring PAGA actions, in whatever forum, the Anti-Waiver rule falls

well within the principle that the FAA does not

preempt state laws concerning the “enforceability of

contracts generally.” Perry v. Thomas, 482 U.S. 483, 492

n.9 (1987); see also 9 U.S.C. § 2.

But that hardly ends the inquiry. The equal treatment principle further seeks to ensure that the state

law policy does not obstruct the purposes of the FAA

“by more subtle methods, such as by ‘interfer[ing] with

fundamental attributes of arbitration.’ ” Epic Sys., 138

S. Ct. at 1622. As detailed below, California’s AntiWaiver rule in no way interferes with the fundamental

attributes of arbitration.

II.

The Anti-Waiver Rule Does Not In Practice

“Interfere With Fundamental Attributes

Of Arbitration”

Where a putative waiver of the right to bring a

PAGA claim is accompanied by an agreement to arbitrate all claims, the Anti-Waiver rule effectively compels arbitration of the PAGA claim. If arbitration of a

PAGA claim would by necessity interfere with fundamental attributes of arbitration, the California

8

Anti-Waiver rule would for that reason run afoul of the

equal treatment principle of the saving clause, and

would risk preemption under this Court’s decision in

Concepcion.

As shown below, however, the arbitral forum can

well accommodate PAGA claims without sacrificing

any of the attributes of arbitration that this Court has

identified as fundamental. Arbitrators can and regularly do hear factually complicated actions, using informal procedures and (presumably) resolving claims

more quickly than their judicial counterparts. And if

the complexity of a given PAGA claim threatens to

render the proceeding unmanageable, California law

gives judges and arbitrators tools to trim the action as

warranted. Finally, PAGA claims require none of the

procedures that this Court held incompatible with arbitration in Concepcion and Epic.

A. The Broad Factual Scope of PAGA

Claims Does Not Interfere With Arbitration

The core of the preemption argument in this case

is that the broad factual scope of PAGA claims is irreconcilable with the FAA’s goal of promoting the speedy,

informal and inexpensive resolution of disputes. Thus,

Petitioner argues that the resolution of PAGA “claims

would require an arbitrator to undertake factual and

legal assessments for hundreds of absent employees

employed in different capacities, paid on different

scales, and subject to different policies—and to do so

9

for every alleged Labor Code violation and every pay

period. Such unwieldy and outsized inquiries would

plainly eliminate the ‘lower costs’ and ‘greater efficiency and speed’ that the parties chose individualized

arbitration to ensure.” Pet. Br. at 27. See also id. at 24

(“by allowing a plaintiff aggrieved by one violation to

pursue relief for other violations that did not affect her

personally, [PAGA] greatly expand[s] the potential

scope of the action”); id. at 26 (“the Iskanian rule vastly

expands the scope of employment disputes”).

Arguments based on the potentially sprawling

complexity of PAGA claims are misplaced, for two reasons. First, arbitrators tackle complex factual cases

every day. Even if “ ‘representative PAGA actions take

longer or cost more to arbitrate than other types of

claims, the same could be said of any complex or factintensive claim,’ such as antitrust claims.” Sakkab v.

Luxottica Retail North America, Inc., 803 F.3d 425, 438

(9th Cir. 2015). Viking would distinguish antitrust and

other complex cases on the grounds that these claims

are “inherently complicated,” whereas PAGA claims

are made complicated because they implicate evidence

about nonparties. Pet. Br. at 28. But that distinction

fails to account for the fact that many perfectly arbitrable cases implicate evidence about nonparties. Civil

RICO cases are arbitrable, even though the plaintiff

must show a pattern of independently illegal racketeering activities. See Shearson/American Express Inc.

v. McMahon, 482 U.S. 220 (1987). Workplace civil rights

cases are arbitrable, see, e.g., Gilmer v. Interstate/

Johnson Lane Corp., 500 U.S. 20, 26 (1991), even

10

though a plaintiff pursuing a disparate impact theory,

or a hostile work environment claim, must adduce a

great deal of evidence regarding nonparties.

More generally, this Court has repeatedly recognized that complex legal claims requiring wideranging evidence may appropriately be subject to arbitration. In Mitsubishi Motors Corp. v. Soler Chrysler–

Plymouth, Inc., 473 U.S. 614 (1985), this Court rejected

lower court case law holding that “antitrust issues,

prone to complication, require sophisticated legal

and economic analysis, and thus are ill-adapted to

strengths of the arbitral process.” 473 U.S. at 632 (internal quotation omitted). The Court instead held that

antitrust claims are arbitrable, cautioning that “potential complexity should not suffice to ward off arbitration.” Id. at 633. McMahon followed suit, taking note of

Mitsubishi and reasoning that if “arbitral tribunals are

readily capable of handling the factual and legal complexities of antitrust claims” they can likewise handle

civil RICO claims. 482 U.S. at 232. See also id. at 239

(“the ‘adaptability and access to expertise’ characteristic of arbitration rebut[s] the view ‘that an arbitral tribunal could not properly handle’ ” complex matters)

(quoting Mitsubishi, 473 U.S. at 633-34). See also Rodriguez de Quijas v. Shearson/American Express, Inc.,

490 U.S. 477 (1989) (claims under federal securities

statutes are fully arbitrable).

What all these cases recognize is that the complexity of the underlying claim does not make the informal

procedures of arbitration inapt; indeed, streamlined,

informal arbitration procedures can expedite the

11

resolution of factually complex cases. See, e.g.,

Mitsubishi, 473 U.S. at 633 (“streamlined proceedings

and expeditious results” in arbitration may “best serve

[parties’] needs” in complex antitrust case). See also

Pet. Br. at 28 (“inherently complicated [claims] . . . will

likely be less complicated and more streamlined in arbitration”).

The second reason why the potential breadth and

factual complexity of PAGA claims do not undermine

fundamental attributes of arbitration is that California courts and arbitrators have full authority to ensure

that only manageable PAGA claims may proceed, and

to strike any portions of a PAGA claim that cannot be

rendered manageable. In Wesson v. Staples the Off. Superstore, LLC, 68 Cal. App. 5th 746 (2021), review denied (Dec. 22, 2021), the Court of Appeals concluded

that PAGA claims are subject to a manageability requirement; the court held that courts have the authority to fully or partially “strike the claim, if necessary—

and that this authority is not inconsistent with PAGA’s

procedures and objectives, or with applicable precedent.” Id. at 763. Other California courts have been

quick to follow Wesson. See Goro v. Flowers, 2021 WL

5761694, at *5 (C.D. Cal. Dec. 3, 2021) (under Wesson,

the court “may strike a PAGA claim that cannot be rendered manageable”) (quotations and brackets omitted);

Chavez v. Charter Commc’ns, LLC, 2021 WL 6496864,

at *3 (C.D. Cal. Dec. 1, 2021) (striking plaintiff ’s PAGA

claims as unmanageable); Feltzs v. Cox Commc’ns Cal.,

LLC, 2021 WL 4947306, at *4 (C.D. Cal. Oct. 21, 2021)

12

(limiting the scope of PAGA claims under Wesson, but

not striking them entirely).4

In other words, California courts recognize that

PAGA claims can sometimes present factual inquiries

that are difficult to manage and, in response, they have

developed doctrinal tools to trim back PAGA claims

where necessary and ensure that only manageable

claims may proceed. The specific parameters of this developing doctrine remain to be worked out—how unwieldy is too unwieldy? Is there a difference between

what is manageable in court and what is manageable

in arbitration? Presumably, these questions will be answered in time, as the traditional common-law process

plays out. But there is no basis to pretermit the common-law process entirely and announce that PAGA

claims may not proceed in arbitration, even where it

4

California law is clear that arbitrators have the same authority as courts to strike or dismiss all or part of a claim. The

California Arbitration Act provides that the arbitrator may “make

such orders” as are “necessary or appropriate at any time or stage

in the course of the arbitration, and such orders shall be as conclusive, final, and enforceable as an arbitration award on the merits.” CAL. CIV. CODE § 1283.05(c). Specifically, the arbitrator is

empowered to make “orders imposing such terms, conditions, consequences, liabilities, sanctions, and penalties” as he deems appropriate—a litany that plainly encompasses orders striking or

partially dismissing a claim. That the arbitrator is empowered to

strike all or part of a PAGA claim likewise follows from the Federal Arbitration Act. In their arbitration contract, the parties bargained that an arbitrator would apply the applicable law. If a

PAGA claim would be subject to dismissal or partial dismissal in

superior court, it must likewise be subject to dismissal in arbitration on the same bases.

13

would be entirely manageable to arbitrate the PAGA

claim.

B. PAGA Does Not Interfere With The Attributes Of Bilateral Arbitration That

This Court Has Identified As Fundamental

PAGA presents none of the features that led this

Court to conclude that class and collective actions are

irreconcilable with bilateral arbitration in Concepcion

and Epic. Most significantly, class and collective actions are intrinsically multilateral, while PAGA is not.

In class actions, absent class members are “parties” for multiple purposes. Devlin v. Scardelletti, 536

U.S. 1 (2002). Class members have broad rights to participate in the action including by receiving notice of

class certification and electing whether to opt out, challenging the sufficiency of notice, objecting to settlements, and taking appeals from settlement approval.

See id. at 9-10; see also Fed. R. Civ. P. 23(e). Class members are bound by a judgment and the pendency of the

class case tolls their own time to file. Id. at 10, citing

American Pipe & Constr. Co. v. Utah, 414 U.S. 538

(1974). And even where their participation is not guaranteed as a matter of right, absent class members

hover over class action proceedings, and can seek intervention to protect their considerable interests as

owners of the underlying claims. Collective actions

are similar (with the obvious difference that class

14

members must opt in versus exercising an opt-out election). See Fair Labor Standards Act, 29 U.S.C. § 216(b).

PAGA cases are different. Non-party employees

have no role in a PAGA action. They are not “parties”

in any of the multiple senses that class members are.

See Devlin. They neither opt in (as in Epic) nor opt out

(as in Concepcion). Their own individual claims

against the employer, if any, are not extinguished by an

adverse judgment. And, as a consequence, the nonparty employees have no right to receive notice of compromise, much less object. See Saucillo v. Peck, ___ F.

4th ___, 2022 WL 414692 (9th Cir. February 11, 2022)

(aggrieved non-party employees have no standing to

object to settlement of PAGA claim); see also Janet

Alexander, To Skin A Cat: Qui Tam Actions As a State

Legislative Response to Concepcion, 46 U. MICH. J. OF

LEG. REF. 1203, 1227 (2013) (“Because PAGA actions

do not adjudicate anyone’s individual claims, they do

not present the issues of notice, due process, and commonality that the Supreme Court considered beyond

the ken of arbitrators.”).

PAGA cases, moreover, are bilateral. Here, only

two parties have any right to participate in the arbitral

process: claimant Angie Moriana and respondent Viking River Cruises. That is it. PAGA by its terms gives

the State no authority to intervene into the PAGA action once it has been filed.5 See Magadia v. Wal-Mart

5

Before filing a claim under PAGA, an aggrieved employee

must provide the California Labor and Workforce Development

Agency notice, and the agency may then either allow the employee to proceed or may “issue a citation” to the employer and

15

Assocs., 999 F.3d 668, 677 (9th Cir. 2021) (once suit is

filed, “the State has no authority under PAGA to intervene in a case brought by an aggrieved employee”).

Neither the State nor any aggrieved non-party employees have any warrant to participate in the arbitration,

or even hover as a potential intervenor.

Because PAGA actions involve only two parties,

they are bilateral—irrespective of whether they also

vindicate public interests, or the interests of other employees in addition to those of the named plaintiff. In

some instances, vindication may inure beyond the immediate parties, but that subsequent effect does not alter the structure of the arbitration. Under this Court’s

interpretation of the FAA, what matters is how the arbitration of the PAGA claim will be conducted, and

whether that process is consistent with the attributes

of bilateral arbitration that this Court understands to

be required by the FAA.

These distinctions, between PAGA on the one

hand and class and collective actions on the other, are

dispositive. The underlying premise of Concepcion is

that the arbitral forum is ill-suited to class-action procedures, in several ways. The exacting requirements of

class certification and settlement approval, this Court

held, conflict with a core arbitral attribute of informality. Likewise, in the Court’s view, providing notice to

interested class members and conducting proceedings

investigate on its own. Cal. Labor Code § 2699.3. If the LWDA

does not issue a citation within a specified time, the employee may

sue. Id.

16

under their watchful eyes is inconsistent with contractual commitments to confidentiality that are ubiquitous in arbitration agreements and backed by Section

2 of the FAA. The arbitration of a PAGA claim, by contrast, requires no processes that are inconsistent with

the FAA. Because there is no reason why a PAGA claim

cannot be arbitrated on a bilateral basis, the obstaclepreemption argument fails.

---------------------------------♦---------------------------------

CONCLUSION

California’s rule providing that PAGA claims are

not waivable in employment contracts is a ground for

the revocation of any contract. The rule neither discriminates against arbitration on its face nor “by more

subtle methods, such as by interfering with fundamental attributes of arbitration.” Epic Sys., 138 S. Ct. at

1622.

Respectfully submitted,

PROF. MYRIAM GILLES

BENJAMIN N. CARDOZO

SCHOOL OF LAW

55 Fifth Avenue

New York, NY 10003

gilles@yu.edu

March 9, 2022

GARY B. FRIEDMAN

Counsel of Record

5 White Street

New York, NY 10013

(917) 568-5024

gfriedman@flgllp.com