Petition for Writ of Certiorari — Uber Technologies, Inc., et al., Petitioners v. California, et al.

Supreme Court briefApr 16, 2024

Ask Donna

What actually matters in this document.

Text

No.

IN THE

Supreme Court of the United States

UBER TECHNOLOGIES, INC., ET AL.,

Petitioners,

PEOPLE OF THE STATE OF CALIFORNIA, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The California Court Of Appeal

PETITION FOR A WRIT OF CERTIORARI

JOSEPH E. BARAKAT

GIBSON DUNN & CRUTCHER LLP

2001 Ross Avenue, Suite 2100

Dallas, TX 75201

THEANE D. EVANGELIS

Counsel of Record

BLAINE H. EVANSON

ALEXANDER N. HARRIS

PATRICK J. FUSTER

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

tevangelis@gibsondunn.com

Counsel for Petitioners

QUESTION PRESENTED

The Federal Arbitration Act (FAA) requires the enforcement of “‘terms that specify with whom the parties choose to arbitrate their disputes.’” Epic Systems

Corp. v. Lewis, 584 U.S. 497, 506 (2018). In EEOC v.

Waffle House, Inc., 534 U.S. 279 (2002), this Court

held that a federal agency could (pursuant to a federal

statute) seek individualized relief in court against an

employer in relation to an employee that had signed a

valid arbitration agreement. That decision harmonized two co-equal federal statutes. In this case, the

California Court of Appeal joined the courts of five

other States in reading Waffle House to permit state

officials to seek individualized relief on behalf of people who agreed to submit their claims for such relief

to arbitration—an extension of Waffle House that conflicts with decisions of the Third and Ninth Circuits,

as well as this Court’s long line of decisions establishing that the FAA preempts “state-law rules that stand

as an obstacle to the accomplishment of [its] objectives.” AT&T Mobility LLC v. Concepcion, 563 U.S.

333, 343 (2011).

The question presented is:

Does the FAA allow state officials to litigate claims

for monetary relief on behalf of people who agreed to

arbitrate those claims?

PARTIES TO THE PROCEEDING

Petitioners and defendants below are Uber Technologies, Inc.; Rasier-CA, LLC; Uber-USA, LLC; and

Portier, LLC. Lyft, Inc. also was a defendant below.

Respondents and plaintiffs below are the People

of the State of California (represented by the California Attorney General and the City Attorneys of Los

Angeles, San Diego, and San Francisco) and California Labor Commissioner Lilia García-Brower.

iii

RULE 29.6 DISCLOSURE STATEMENT

Petitioners Rasier-CA, LLC; Uber-USA, LLC; and

Portier, LLC are wholly owned subsidiaries of petitioner Uber Technologies, Inc., which is a publicly

held corporation and not a subsidiary of any entity.

Based solely on SEC filings regarding beneficial ownership of the stock of Uber Technologies, Inc., petitioners are unaware of any shareholder who beneficially

owns more than 10% of Uber Technologies, Inc.’s outstanding stock.

RELATED PROCEEDINGS

Superior Court for the County of San Francisco

In re: Uber Technologies Wage & Hour Cases

No. CJC-21-005179 (Sept. 1, 2022)

(denying motions to compel arbitration)

California Court of Appeal

García-Brower v. Superior Court

No. A167201 (Feb. 23, 2023)

(denying petition for writ of mandate)

People v. Superior Court

No. A167203 (Feb. 23, 2023)

(denying petition for writ of mandate)

In re: Uber Technologies Wage & Hour Cases

No. A166355 (Sept. 28, 2023)

(opinion and judgment)

California Supreme Court

People v. Superior Court

No. S278933 (May 3, 2023)

(denying petition for review)

García-Brower v. Superior Court

No. S278946 (May 3, 2023)

(denying petition for review)

In re: Uber Technologies Wage & Hour Cases

No. S282614 (Jan. 17, 2024)

(denying petition for review)

TABLE OF CONTENTS

Page

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................................. 2

INTRODUCTION ........................................................ 3

STATEMENT .............................................................. 5

A. Legal Background........................................... 5

B. Procedural History. ........................................ 8

REASONS FOR GRANTING THE PETITION ....... 11

The Decision Below Entrenches a Conflict

over the FAA’s Application to State Actors. ...... 13

II. This Court’s Decisions Do Not Allow State

Actors to Circumvent Arbitration

Agreements. ........................................................ 21

III. The Question Presented Is Exceptionally

Important. ........................................................... 27

CONCLUSION .......................................................... 32

TABLE OF APPENDICES

Page

APPENDIX A:

Order of the California Supreme Court

Denying Petition for Review

(Jan. 17, 2024) ..................................................... 1a

APPENDIX B:

Opinion of the California Court of Appeal

(Sept. 28, 2023) ................................................... 2a

APPENDIX C:

Order of the Superior Court for

San Francisco County Denying

Motion to Compel Arbitration

(Sept. 1, 2022) ................................................... 33a

APPENDIX D:

Uber Rides Platform Access Agreement

(Jan. 6, 2020) ..................................................... 48a

APPENDIX E:

Uber Eats Platform Access Agreement

(Jan. 25, 2020) ................................................... 82a

vii

TABLE OF AUTHORITIES

Page(s)

Cases

American Express Co. v. Italian Colors Restaurant,

570 U.S. 228 (2013) ................................................ 6

American Trucking & Transportation

Ins. Co. v. Nelson,

771 F. App’x 445 (9th Cir. 2019) ......................... 22

Arthur Andersen LLP v. Carlisle,

556 U.S. 624 (2009) .............................................. 22

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) ............ 4, 5, 6, 7, 21, 23, 25, 28

Bennett v. Liberty National Fire Ins. Co.,

968 F.2d 969 (9th Cir. 1992) .............. 11, 15, 16, 31

California v. IntelliGender, LLC,

771 F.3d 1169 (9th Cir. 2014) .............................. 25

Chamber of Commerce of the United

States of America v. Bonta,

62 F.4th 473 (9th Cir. 2023) .................................. 7

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001) ................................................ 6

Comer v. Micor, Inc.,

436 F.3d 1098 (9th Cir. 2006) .............................. 26

CompuCredit Corp. v. Greenwood,

565 U.S. 95 (2012) ................................................ 24

viii

Crestwood Behavioral Health, Inc. v. Lacy,

70 Cal. App. 5th 560 (2021) ................................. 20

People ex rel. Cuomo v. Coventry First LLC,

915 N.E.2d 616 (N.Y. 2009) ................................. 19

Dep’t of Fair Employment & Housing v.

Cisco Systems, Inc.,

82 Cal. App. 5th 93 (2022) ................................... 20

DIRECTV, Inc. v. Imburgia,

577 U.S. 47 (2015) .................................................. 7

EEOC v. Waffle House, Inc.,

534 U.S. 279 (2002) ............ 3, 16, 17, 18, 23, 24, 25

Epic Systems Corp. v. Lewis,

584 U.S. 497 (2018) ...................... 5, 6, 7, 21, 23, 27

Fletcher v. Peck,

10 U.S. (6 Cranch) 87 (1810) ............................... 23

GE Energy Power Conversion France SAS,

Corp. v. Outokumpu Stainless USA, LLC,

140 S. Ct. 1637 (2020) .......................................... 22

Gilmer v. Interstate/Johnson Lane Corp.,

500 U.S. 20 (1991) .................................................. 6

Harvey v. Blockbuster, Inc.,

384 F. Supp. 2d 749 (D.N.J. 2005) ...................... 27

State ex rel. Hatch v. Cross Country Bank, Inc.,

703 N.W.2d 562 (Minn. Ct. App. 2005) ............... 19

Hollingsworth v. Perry,

570 U.S. 693 (2013) .............................................. 24

Mississippi ex rel. Hood v. AU Optronics Corp.,

571 U.S. 161 (2014) .............................................. 31

Joule, Inc. v. Simmons,

944 N.E.2d 143 (Mass. 2011) ............................... 19

Kamm v. California City Development Co.,

509 F.2d 205 (9th Cir. 1975) ................................ 26

Kindred Nursing Centers L.P. v. Clark,

581 U.S. 246 (2017) .............................................. 22

Lamps Plus, Inc. v. Varela,

587 U.S. 176 (2019) .......................................... 8, 23

Lawson v. Grubhub, Inc.,

13 F.4th 908 (9th Cir. 2021) ................................ 22

In re Lorazepam & Clorazepate Antitrust Litig.,

205 F.R.D. 369 (D.D.C. 2002) .............................. 27

Mohamed v. Uber Technologies, Inc.,

848 F.3d 1201 (9th Cir. 2016) .............................. 21

Moses H. Cone Memorial Hospital v.

Mercury Construction Corp.,

460 U.S. 1 (1983) ................................................ 5, 6

NC Financial Solutions of Utah, LLC v.

Commonwealth ex rel. Herring,

854 S.E.2d 642 (Va. 2021) .................................... 18

O’Connor v. Uber Technologies, Inc.,

904 F.3d 1087 (9th Cir. 2018) .............................. 22

Olde Discount Corp. v. Tupman,

1 F.3d 202 (3d Cir. 1993) ................... 11, 14, 15, 32

People v. Maplebear Inc.,

81 Cal. App. 5th 923 (2022) ................................. 20

People v. Uber Technologies, Inc.,

56 Cal. App. 5th 266 (2020) ................................. 29

Perry v. Thomas,

482 U.S. 483 (1987) .............................. 7, 22, 23, 24

Preston v. Ferrer,

552 U.S. 346 (2008) .................................... 7, 11, 23

Quackenbush v. Allstate Ins. Co.,

121 F.3d 1372 (9th Cir. 1997) ........................ 16, 32

Quackenbush v. Allstate Ins. Co.,

517 U.S. 706 (1996) .............................................. 16

Rent-A-Center, Inc. v. Iowa Civil Rights Comm’n,

843 N.W.2d 727 (Iowa 2014).......................... 18, 19

Southland Corp. v. Keating,

465 U.S. 1 (1984) ............................................ 5, 6, 7

Viking River Cruises, Inc. v. Moriana,

596 U.S. 639 (2022) .... 4, 7, 8, 11, 20, 22, 23, 26, 30

Constitutional Provisions

U.S. Const. Art. VI, cl. 2.............................................. 2

Statutes

9 U.S.C. § 2 .................................... 2, 4, 6, 7, 11, 20, 23

28 U.S.C. § 1257 .......................................................... 2

Cal. Bus. & Prof. Code § 22949.60 ............................ 31

Cal. Lab. Code § 180 .................................................. 30

Cal. Lab. Code § 182 .................................................. 30

Cal. Lab. Code § 2699 ................................................ 31

Other Authorities

@LorenaSGonzalez,

Twitter (Nov. 21, 2019, 8:05 a.m.) ....................... 29

Elysa M. Dishman,

Enforcement Piggybacking and

Multistate Actions,

2019 B.Y.U. L. Rev. 421 ....................................... 28

Donald G. Gifford,

Impersonating the Legislature: State

Attorneys General and Parens Patriae

Product Litigation,

49 B.C. L. Rev. 913 (2008) ................................... 28

Myriam Gilles,

The Politics of Access: Examining

Concerted State/Private Enforcement

Solutions to Class Action Bans,

86 Fordham L. Rev. 2223 (2018) ......................... 29

Myriam Gilles & Gary Friedman,

After Class: Aggregate Litigation in the

Wake of AT&T Mobility v. Concepcion,

79 U. Chi. L. Rev. 623 (2012)............................... 29

xii

Lyra Haas,

The Endless Battleground:

California’s Continued Opposition to

the Supreme Court's Federal

Arbitration Act Jurisprudence,

94 B.U. L. Rev. 1419 (2014) ................................... 8

Margaret H. Lemos,

Aggregate Litigation Goes Public:

Representative Suits by State

Attorneys General,

126 Harv. L. Rev. 486 (2012) ............................... 27

James C. Martin, et al.,

The Expanding Role of Private

Lawyers in Parens Patriae Lawsuits,

ABA Section of Antitrust Law

(Spring 2014) ........................................................ 27

William H. Pryor Jr.,

A Comparison of Abuses and

Reforms of Class Actions and

Multigovernment Lawsuits,

74 Tul. L. Rev. 1885 (2000) .................................. 28

Jack Ratliff,

Parens Patriae: An Overview,

74 Tul. L. Rev. 1847 (2000) .................................. 29

Sales and Contracts to Sell in Interstate

and Foreign Commerce, and Federal

Commercial Arbitration,

Hearing Before a Subcommittee of the

Senate Committee on the Judiciary,

67th Cong., 4th Sess. (1923) .................................. 5

IN THE

Supreme Court of the United States

No.

UBER TECHNOLOGIES, INC., ET AL.,

Petitioners,

PEOPLE OF THE STATE OF CALIFORNIA, ET AL.,

Respondent.

On Petition For A Writ Of Certiorari

To The California Court Of Appeal

PETITION FOR A WRIT OF CERTIORARI

Uber Technologies, Inc., Rasier-CA, LLC, UberUSA, LLC, and Portier, LLC (collectively, Uber) respectfully petition for a writ of certiorari to review the

judgment of the California Court of Appeal in this

case.

OPINIONS BELOW

The California Supreme Court’s order denying

Uber’s petition for review (App., infra, 1a) is not reported. The California Court of Appeal’s opinion (id.

at 2a-32a) is reported at 95 Cal. App. 5th 1297 (2023).

The order of the Superior Court of San Francisco

County denying the motions to compel arbitration

(App., infra, 33a-47a) is not reported.

JURISDICTION

The California Court of Appeal issued its opinion

on September 28, 2023. The California Supreme

Court denied Uber’s timely petition for review on January 17, 2024. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Supremacy Clause of the United States Constitution states in relevant part: “This Constitution,

and the Laws of the United States which shall be

made in Pursuance thereof … shall be the supreme

Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.”

U.S. Const. Art. VI, cl. 2.

Section 2 of the Federal Arbitration Act (FAA)

states:

“A written provision in any maritime transaction

or a contract evidencing a transaction involving

commerce to settle by arbitration a controversy

thereafter arising out of such contract or transaction, or the refusal to perform the whole or any

part thereof, or an agreement in writing to submit

to arbitration an existing controversy arising out

of such a contract, transaction, or refusal, 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.

INTRODUCTION

The decision below represents California’s latest

attempt to create a loophole in the FAA. Respondents—the California Attorney General, a collection of

City Attorneys, and the California Labor Commissioner—seek to restore money they claim is owed to

California drivers who entered into valid and enforceable arbitration agreements with Uber. If anyone else

sought this individualized relief on behalf of the drivers (such as a contractual assignee or a class representative), this Court’s precedents would foreclose

that evasion of the drivers’ arbitration agreements.

But the Court of Appeal allowed respondents to circumvent the arbitration agreements because California law authorized them, as state officials, to pursue

victim-specific relief in court.

The California Court of Appeal identified one

main basis for allowing respondents to circumvent

valid arbitration agreements: this Court’s decision in

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

allowing a federal agency to seek relief for a person

who agreed to arbitrate his claims, Waffle House

aimed to harmonize two federal statutes that were on

equal footing; it did not address the extent to which

the FAA preempts inferior state statutes. But state

courts in California, Iowa, Massachusetts, Minnesota,

New York, and Virginia have invoked the decision to

allow state officials to assert claims in court that in

any other context would need to be brought in arbitration.

The decision below that state officials may litigate

claims belonging to people who agreed to arbitrate

them notwithstanding the FAA conflicts with the law

in the Third and Ninth Circuits, which have held that

the FAA prevents state officials from proceeding in

court or before an administrative agency when doing

so would destroy the parties’ arbitral rights.

This Court should resolve this conflict and make

clear that the FAA applies equally to state enforcement actions as it does to any other suit. “[N]othing

in the FAA categorically exempts claims belonging to

sovereigns from the scope of [9 U.S.C.] § 2,” which

“renders agreements to arbitrate enforceable as a

matter of federal law.” Viking River Cruises, Inc. v.

Moriana, 596 U.S. 639, 650, 652 n.4 (2022). Nor does

Waffle House immunize state enforcement actions

that serve as a substitute for bilateral arbitration

against preemption as “an obstacle to the accomplishment of the FAA’s objectives.” AT&T Mobility LLC v.

Concepcion, 563 U.S. 333, 343 (2011). And to the extent that Waffle House provides any guidance in this

context, that decision supports preemption because respondents—unlike the EEOC—lack exclusive authority to bring the claims in this case, act as a mere proxy

for drivers who agreed to arbitrate, and seek relief

that would have a preclusive effect on bilateral arbitrations between Uber and the drivers.

The Court of Appeal’s decision represents a significant trend in state enforcement actions that seek to

circumvent the FAA. Since this Court reinforced in

Concepcion that the FAA protects parties’ right to opt

for bilateral arbitration, state officials have sought to

step into the void and provide a claim-aggregating

representative substitute for private class litigation.

The decision below also contains no limiting principle

that would prevent state legislatures from deputizing

just about anyone to litigate on behalf of just about

anybody who agreed to arbitrate just about any dispute. The FAA should not remain subject to such easy

evasion.

This case is an ideal vehicle to resolve the question

presented. By now, the arguments in favor of and

against extending Waffle House to state enforcement

actions have been fully ventilated across numerous

state courts. The question also arises in state court

with much greater frequency than in federal court

given limitations of subject-matter jurisdiction and

abstention, which will not impede review in this case.

The Court should grant the petition and reverse the

judgment below.

STATEMENT

A. Legal Background.

Congress enacted the FAA “in 1925 in response to

widespread judicial hostility to arbitration agreements.” Concepcion, 563 U.S. at 339. That hostility

harmed parties to both commercial and labor contracts, depriving them of arbitration’s many benefits—“not least the promise of quicker, more informal,

and often cheaper resolutions for everyone involved.”

Epic Systems Corp. v. Lewis, 584 U.S. 497, 505 (2018).

Congress codified a “liberal federal policy favoring

arbitration” to overcome the hostility that pervaded

not only the federal judiciary, but state legislatures

and courts as well. Moses H. Cone Memorial Hospital

v. Mercury Construction Corp., 460 U.S. 1, 24 (1983).

During hearings on the legislation that became the

FAA, Senators canvassed “the widespread unwillingness of state courts to enforce arbitration agreements”

and criticized “the failure of state arbitration statutes

to mandate enforcement of arbitration agreements.”

Southland Corp. v. Keating, 465 U.S. 1, 13-14 (1984)

(citing Sales and Contracts to Sell in Interstate and

Foreign Commerce, and Federal Commercial Arbitration, Hearing Before a Subcommittee of the Senate

Committee on the Judiciary, 67th Cong., 4th Sess. 8

(1923)). The bill they ultimately adopted “foreclose[d]

state legislative attempts to undercut the enforceability of arbitration agreements.” Id. at 16.

In large part, Congress accomplished that objective through “Section 2, the ‘primary substantive provision of the Act.’ ” Concepcion, 563 U.S. at 339 (quoting Moses H. Cone, 460 U.S. at 24). That provision

mandates that arbitration agreements “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. The FAA thereby ensures that

parties can make (and must adhere to) arbitration

agreements by requiring courts to “place arbitration

agreements on an equal footing with other contracts

and enforce them according to their terms.” Concepcion, 563 U.S. at 339 (citations omitted). Equal footing means “ ‘rigorou[s]’ ” adherence to the agreement,

“ ‘including terms that specify with whom the parties

choose to arbitrate their disputes and the rules under

which that arbitration will be conducted.’ ” Epic Systems, 584 U.S. at 506 (quoting American Express Co.

v. Italian Colors Restaurant, 570 U.S. 228, 233

(2013)).

This Court has consistently rejected invitations to

curtail Section 2’s sweeping text. For example, the

Court has confirmed that Section 2 covers all arbitration agreements contained in contracts involving commerce (except as carved out by Section 1), not only

agreements to arbitrate commercial disputes. See

Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 113114 (2001). The Court has also made clear that agreements to arbitrate statutory claims are enforceable

under the FAA. See Gilmer v. Interstate/Johnson

Lane Corp., 500 U.S. 20, 26 (1991). And the Court has

overruled creative interpretations of federal statutes

that would “effectively nullif[y] the [FAA].” Epic Systems, 584 U.S. at 505; see id. at 505-507. Most recently, it clarified that “nothing in the FAA categorically exempts claims belonging to sovereigns from the

scope of [9 U.S.C.] § 2”; so long as “[t]he contractual

relationship between the parties is a but-for cause of ”

the controversy, the FAA governs regardless of who

brings the claim. Viking River, 596 U.S. at 652 n.4.

Hostility to arbitration—which has only increased

in recent years—comes in many forms. For that reason, this Court has been ever “alert to new devices and

formulas” that would expressly or implicitly

“‘declar[e] arbitration against public policy.’” Epic

Systems, 584 U.S. at 509 (quoting Concepcion, 563

U.S. at 342). The California Legislature and California courts have been especially inventive when it

comes to new devices and formulas that undermine

arbitration agreements.

Many of those “California laws or judge-made

rules” have come before this Court. Chamber of Commerce of the United States of America v. Bonta, 62

F.4th 473, 478 & n.1 (9th Cir. 2023) (collecting examples). Among other decisions, this Court has held that

the FAA preempts California statutes requiring a judicial forum for franchise claims (Southland, 465 U.S.

at 10) and wage disputes (Perry v. Thomas, 482 U.S.

483, 491 (1987)); a California statute granting a state

agency primary jurisdiction over talent agents (Preston v. Ferrer, 552 U.S. 346, 359 (2008)); a California

judge-made rule requiring the availability of class

procedures in arbitration (Concepcion, 563 U.S. at

344); the use of California’s canon construing contract

language against the drafter to undercut arbitration

(DIRECTV, Inc. v. Imburgia, 577 U.S. 47, 58 (2015))

or to impose class procedures in arbitration on unwilling parties (Lamps Plus, Inc. v. Varela, 587 U.S. 176,

189 (2019)); and a California judge-made rule preventing the division of Private Attorneys General Act

actions (Viking River, 596 U.S. at 659-662). See also

generally Lyra Haas, The Endless Battleground: California’s Continued Opposition to the Supreme Court’s

Federal Arbitration Act Jurisprudence, 94 B.U. L. Rev.

1419 (2014).

B. Procedural History.

1. Uber is a technology company that develops

smartphone applications. The Rides App connects

riders in need of transportation with drivers who provide it. The Eats App connects restaurants, diners,

and drivers to enable the purchase and delivery of

food and drink.

Drivers wishing to use these apps must first enter

into the Platform Access Agreement, which governs

the relationship between Uber and drivers. App., infra, 48a-81a (Rides App); id. at 82a-115a (Eats App).

The Agreement contains an “Arbitration Provision”

that requires Uber and the drivers to resolve virtually

“all claims … through final and binding individual arbitration and not by way of court or jury trial.” Id. at

70a-71a, 105a. The Arbitration Provision applies to

“any legal dispute, past, present or future, arising out

of or related to” the drivers’ relationship with Uber or

any of Uber’s agents and affiliates, including “the nature of [the drivers’] relationship with [Uber] (including, but not limited to, any claim that [drivers are

Uber’s] employee[s]),” as well as “compensation, minimum wage, expense reimbursement, [and] overtime

breaks and rest periods.” Id. at 70a-71a, 104a-106a.

The Arbitration Provision requires that all covered disputes be resolved “in arbitration on an individual basis only, and not on a representative basis.”

App., infra, 77a, 111a. Uber and drivers likewise

waive the right to “participate as a member in any …

representative proceeding,” including “a class or collective action.” Id. at 76a, 110a. Drivers may opt out

of the Arbitration Provision by simply sending an

email to Uber within 30 days of accepting the Agreement. Id. at 79a-80a, 113a-114a. The vast majority

of drivers do not opt out of arbitration.

2. In May 2020, respondents California Attorney

General and City Attorneys of Los Angeles, San Diego, and San Francisco filed suit alleging that Uber

and Lyft violated various wage-and-hour provisions

by misclassifying drivers as independent contractors.

App., infra, 3a. The complaint styled itself as on behalf of the “People of the State of California” and

sought civil penalties, injunctive relief, and restitution under the California Unfair Competition Law

(UCL) and the California Labor Code. Id. at 2a-3a.

Those statutes authorize the state officials to seek restitution on behalf of drivers who agreed to arbitration.

In August 2020, respondent California Labor

Commissioner brought her own enforcement action,

similarly alleging that Uber and Lyft violated Labor

Code provisions and wage orders by misclassifying

drivers as independent contractors. App., infra, 4a.

Like the People, the Labor Commissioner sought civil

penalties and injunctive relief on behalf of the State,

as well as unpaid wages and other amounts allegedly

due to drivers. Ibid.

3. After coordinating the People’s and the Labor

Commissioner’s actions, the trial court denied Uber’s

motions to compel arbitration, as well as Lyft’s motions to compel arbitration. App., infra, 33a-47a. The

court relied heavily on the fact that respondents were

not parties to the arbitration agreements between

Uber and the drivers. Id. at 36a. The court also emphasized that the People and the Labor Commissioner

have statutory authority “to enforce the UCL and the

Labor Code,” which purportedly means that “they are

independent of Defendants’ drivers, and cannot be

bound by Defendants’ private arbitration agreements

with those persons.” Ibid. And the court analogized

the state enforcement actions to the federal enforcement action in Waffle House, where this Court held

that the EEOC could seek individualized relief on behalf of a person who had agreed to arbitrate her claims

against the defendant. See id. at 36a-39a.

4. The California Court of Appeal affirmed the

trial court’s denial of the motions to compel arbitration. Like the trial court, the Court of Appeal considered it dispositive that respondents “are not parties to

the arbitration agreements Uber and Lyft entered

into with their drivers.” App., infra, 7a. The court

stressed that the People and Labor Commissioner

could maintain their claims for individualized relief in

court, despite drivers’ arbitration agreements, because the UCL and the Labor Code “expressly authorize” the People and the Labor Commissioner to bring

“their own statutory claims.” Id. at 9a-10a, 20a-21a.

Given this statutory authority, the court reasoned, the

People and the Labor Commissioner were not a mere

“proxy for the drivers.” Id. at 23a.

The Court of Appeal also rejected Uber’s argument that, whatever the statutory grant of authority,

the FAA preempts California law and requires the

People and the Labor Commissioner to arbitrate the

restitution claims that, if litigated, would destroy

Uber’s and the drivers’ arbitral rights. App., infra, 7a23a. Again like the trial court, the Court of Appeal

read Waffle House to establish that all “public agencies”—federal and state—“bringing enforcement actions as authorized by statute are not bound by arbitration agreements between private parties” under

the FAA. Id. at 10a-11a.

5. The California Supreme Court denied Uber’s

petition for review. App., infra, 1a.

REASONS FOR GRANTING THE PETITION

The FAA protects “the freedom of parties to determine ‘the issues subject to arbitration’ and ‘the rules

by which they will arbitrate.’” Viking River, 596 U.S.

at 659. To safeguard the freedom to arbitrate, the

FAA also “‘foreclose[s] state legislative attempts to

undercut the enforceability of arbitration agreements.’” Preston, 552 U.S. at 353. That principle applies with equal force to state enforcement actions because “nothing in the FAA categorically exempts

claims belonging to sovereigns from the scope of [9

U.S.C.] § 2.” Viking River, 596 U.S. at 652 n.4. And

for years, the circuit courts have recognized that the

FAA requires state officials to arbitrate claims to recover relief on behalf of people who agreed to arbitrate

such claims, even when the state officials did not separately agree to arbitration. See Olde Discount Corp.

v. Tupman, 1 F.3d 202, 209 (3d Cir. 1993) (opinion of

Greenberg, J.); Bennett v. Liberty National Fire Ins.

Co., 968 F.2d 969, 972 (9th Cir. 1992).

A series of state courts have misread this Court’s

decision in Waffle House to allow state officials to circumvent the FAA. In direct conflict with the Third

and Ninth Circuits, state courts in California, Iowa,

Massachusetts, Minnesota, New York, North Carolina, and Virginia have understood Waffle House to

permit state actors to pursue victim-specific relief in

court irrespective of any agreement to arbitrate those

disputes. The California Court of Appeal joined these

courts in rejecting Uber’s preemption challenge to

California officials’ attempt to seek individualized

monetary relief on behalf of drivers who agreed to arbitrate such claims.

The California Court of Appeal and the other state

courts that have staked out this position are wrong to

extend Waffle House to actions where state officials

seek to obtain relief owing to individuals who could

bring those claims themselves. In Waffle House, this

Court sought to reconcile two coequal federal statutes.

This Court’s mode of resolving a perceived conflict between two federal statutes is fundamentally different

from its analysis whether a federal law preempts a

conflicting state law. In the preemption context, the

Constitution adopts a rule of federal supremacy where

courts must apply federal statutes, no matter what

state law might say to the contrary. The Court of Appeal also overlooked key differences between the

EEOC’s authority in Waffle House and respondents’

claims here. Most notably, the employee in Waffle

House possessed no independent cause of action and

thus had nothing to submit to arbitration absent the

EEOC’s consent, while the respondents’ individualized-relief claims in this case will supplant existing

arbitrations brought by drivers and preclude still others from exercising their arbitral rights.

The Court of Appeal’s approach has broad, harmful consequences for arbitral rights. State enforcement actions serve as a substitute to class actions and

allow state officials to aggregate distinct claims as

representatives of state residents. In response to this

Court’s decisions enforcing the FAA’s limitations on

class proceedings, state officials have turned to this

class-action substitute with increasing vigor. And

nothing in the Court of Appeal’s decision limits the potential for abuse to top-level state officials—as the role

of the City Attorneys in this case demonstrates—or

even to public officials, as opposed to private litigants

who are deputized to represent the State.

This case is an ideal vehicle to resolve this important issue. The California Court of Appeal squarely

answered the question presented. Because state courts

have incorrectly read Waffle House already to have decided the preemption question, only this Court can

correct that misimpression. This issue also typically

arises in state court, which does not present the jurisdictional and abstention issues that can keep state enforcement actions out of federal court. The Court

should grant the petition and reverse the judgment

below.

The Decision Below Entrenches a Conflict

over the FAA’s Application to State Actors.

The lower courts remain deeply divided as to

whether state actors may seek victim-specific relief

for people who have agreed to arbitration. The Third

and Ninth Circuits have held that state officials must

arbitrate requests for individualized relief allegedly

owed to people who agreed to arbitrate such requests.

In contrast, courts in Iowa, Massachusetts, Minnesota, New York, and Virginia hold that the FAA does

not preempt attempts by state officials to pursue relief

that the beneficiaries could not seek outside of arbitration. The California Court of Appeal in this case

aligned itself with this latter camp.

A. The Third and Ninth Circuits have rebuffed

state attempts to litigate claims on behalf of parties

who agreed to arbitrate those claims.

1. In Olde Discount Corp. v. Tupman, 1 F.3d 202

(3d Cir. 1993), two investors agreed to arbitrate disputes regarding their purchases of stock from a broker. Id. at 204. The investors later filed a complaint

with the Delaware Department of Justice that alleged

fraud by the broker. Ibid. A Delaware official brought

an enforcement action seeking both suspension of the

broker’s license and rescission of the investors’ stock

purchases. Id. at 204-205. Although the broker did not

dispute Delaware’s authority to pursue license revocation, the broker filed suit to enjoin Delaware from

seeking rescission because the investors had agreed to

arbitrate that remedy. Id. at 205. The Third Circuit

agreed that Delaware could not seek individualized

remedies that the investors had agreed to arbitrate.

One member of the panel reached that holding on

preemption grounds, concluding that Delaware’s request to rescind the stock purchases “interfered with

[the parties’] right under the FAA to resolution of these

issues through arbitration.” Olde Discount, 1 F.3d at

209 (opinion of Greenberg, J.). Judge Greenberg explained that, if Delaware could “pursu[e] rescission in

the administrative proceeding, [the broker’s] federal

right to arbitration would be impaired, as the merits

of the claim that the arbitration agreement reserve[d]

for an arbitral forum w[ould] be resolved administratively.” Id. at 207. That overlap between what Delaware sought to litigate and what the investors had

agreed to arbitrate—in Judge Greenberg’s words, that

“community of interest”—posed “an obstacle to Congress’ purpose in adopting the FAA.” Id. at 209. The

FAA therefore preempted the enforcement action even

though Delaware was not literally a “part[y] to the arbitration clause.” Ibid. But because preemption

reached no further than the rescission remedy, Delaware retained “many avenues for the exercise of its

proper role in dealing with alleged violations of its securities laws.” Id. at 210-211.

Another member of the panel applied “contract

law” principles informed by the FAA’s “strong federal

policy in favor of arbitral dispute resolution.” Olde

Discount, 1 F.3d at 215 (Rosenn, J., concurring).

Judge Rosenn reasoned that the Delaware law authorizing the state agency to award rescission conflicted with “the parties’ contractually created right to

arbitrate disputes relating to the securities transaction”—a contractual right that the FAA “protect[ed].”

Id. at 216.

The result was the same either way: Thanks to

the FAA, Delaware could not pursue rescission “that

the [investors] themselves could pursue only within

an arbitration.” Olde Discount, 1 F.3d at 209 (opinion

of Greenberg, J.); accord id. at 215 (Rosenn, J., concurring) (criticizing the state enforcement action’s

“‘end run’ around the terms of the arbitration agreement”).

2. The Ninth Circuit has twice compelled state officials to arbitrate claims that someone else agreed to

arbitrate.

In Bennett v. Liberty National Fire Insurance Co.,

968 F.2d 969 (9th Cir. 1992), the Montana Commissioner of Insurance brought an enforcement action to

recover assets allegedly belonging to an insolvent insurer who had agreed to arbitration. Id. at 970. The

Ninth Circuit acknowledged that the Commissioner

possessed “broad jurisdiction over insurance insolvency proceedings and complete control and authority

over the insolvent’s assets” under Montana law. Id.

at 972. But the court also noted that the underlying

dispute was “in essence a contractual one” that could

not “be resolved without examining and interpreting

the contract.” Ibid. Because the Commissioner

“st[ood] in the shoes of the insolvent insurer” and “attempt[ed] to enforce [its] contractual rights,” the court

determined that the Commissioner was “bound by

[the arbitration] agreements.” Ibid.

The story was much the same in Quackenbush v.

Allstate Insurance Co., 121 F.3d 1372 (9th Cir. 1997).

There, the California Insurance Commissioner filed

suit to recover money that Allstate allegedly owed another insurance group. Id. at 1375-1376. Allstate removed the case to federal court and sought to compel

the Commissioner to arbitrate the dispute, but the

district court remanded the case to state court on an

abstention theory. Id. at 1376. After this Court affirmed the Ninth Circuit’s reversal of the remand order (Quackenbush v. Allstate Ins. Co., 517 U.S. 706,

731 (1996)), the Ninth Circuit held that the Commissioner had to arbitrate with Allstate under its earlier

decision in Bennett (Quackenbush, 121 F.3d at 13801381).

B. In Waffle House, this Court considered a related—but fundamentally distinct—issue: whether a

federal agency (there, the EEOC) could bring federal

claims (there, under the Americans with Disabilities

Act) on behalf of an employee who had agreed to arbitrate his claims. 534 U.S. at 282. Courts in five other

States have nonetheless read Waffle House to shortcircuit the application of the preemption framework

reflected in decisions of this Court like Concepcion and

Viking River.

1. In Waffle House, the Fourth Circuit held that

the FAA precluded the EEOC from seeking “victimspecific relief in court” on behalf of employees who had

agreed to arbitrate with their employers. 534 U.S. at

284. This Court reversed for two principal reasons.

First, Congress had “authorize[d] the EEOC to

bring its own enforcement actions.” Waffle House, 534

U.S. at 286. That congressional choice meant that

this Court would not “second-guess” whether the

EEOC’s enforcement activities posed an obstacle to

the FAA’s goals. Id. at 297. Rather than “balance the

competing policies of the ADA and the FAA,” the

Court simply applied plain “statutory text” to reconcile the operation of two coequal federal laws. Id. at

292, 297. The Court found “no language in the statutes … suggesting that the existence of an arbitration

agreement between private parties materially

change[d] the EEOC’s statutory function.” Id. at 288.

“Absent textual support,” this Court would not interpret the ADA and FAA so as to “undermine the detailed enforcement scheme created by Congress” and

“jeopardize the EEOC’s ability to investigate and select cases from a broad sample of claims.” Id. at 291,

296 & n.11.

Second, this Court concluded that the EEOC was

not “a proxy for the employee” because the claims belonged solely to the EEOC—not the employee. Waffle

House, 534 U.S. at 288, 298. As the Court explained,

the “EEOC ha[d] exclusive jurisdiction over the

claim,” and “the employee ha[d] no independent cause

of action.” Id. at 291. The employee could not effectuate “a waiver of the substantive statutory prerogative

of the EEOC to enforce … claims” that never belonged

to the employee in the first instance. Id. at 295 n.10.

This Court therefore held that the arbitration agreement did not prevent the EEOC from seeking the full

range of remedies against the employer in court, including “victim-specific relief ” on behalf of the employee. Id. at 295.

2. Courts in Iowa, Massachusetts, Minnesota,

New York, and Virginia have all read Waffle House to

allow state entities to seek individualized relief on behalf of people who agreed to arbitrate their entitlement to such relief:



In NC Financial Solutions of Utah, LLC v.

Commonwealth ex rel. Herring, 854 S.E.2d 642

(Va. 2021), the Virginia Supreme Court allowed the Virginia Attorney General to seek

restitution for individual consumers subject to

arbitration agreements because he “was not a

party to the[m].” Id. at 645. Despite recognizing that “Waffle House was decided within the

context of a” federal statutory scheme, the

court believed that its “principles … apply

with equal weight” to immunize state actors

from the FAA. Id. at 646-647.



In Rent-A-Center, Inc. v. Iowa Civil Rights

Commission, 843 N.W.2d 727 (Iowa 2014), the

Iowa Supreme Court held that an Iowa agency

could bring an administrative proceeding on

behalf of an employee who had agreed to arbitration. Id. at 736. The court grounded this

result in Waffle House. See id. at 733-736. In

the court’s view, “it should not matter whether

a federal or a state civil rights enforcement regime is at issue.” Id. at 736. The Iowa Supreme Court thus held that the logic of Waffle

House controlled over this Court’s preemption

decisions in Preston and Concepcion. Id. at

736-739.



In Joule, Inc. v. Simmons, 944 N.E.2d 143

(Mass. 2011), the Supreme Judicial Court of

Massachusetts affirmed the denial of a petition to compel arbitration of a Massachusetts

agency’s investigation into a discrimination

claim. Id. at 145. The court held that Waffle

House exempted the agency from arbitration,

given its “broad statutory … authority … to investigate and remedy instances of discrimination.” Id. at 149.



In People ex rel. Cuomo v. Coventry First LLC,

915 N.E.2d 616 (N.Y. 2009), the New York

Court of Appeals upheld the denial of a motion

to compel the New York Attorney General to

arbitrate “claims for victim-specific relief ” on

behalf of investors who had agreed to arbitrate. Id. at 617-618. Even though the alleged

victims could have arbitrated their claims, the

court read Waffle House to establish that “the

Attorney General should not be limited, in his

duty to protect the public interest, by an arbitration agreement he did not join.” Id. at 619.



In State ex rel. Hatch v. Cross Country Bank,

Inc., 703 N.W.2d 562 (Minn. Ct. App. 2005),

the Minnesota Court of Appeals applied Waffle

House to allow the Minnesota Attorney General to “see[k] victim-specific relief ” on behalf

of consumers who had agreed to arbitrate with

the bank. Id. at 570; see id. at 566-567 & n.2.

C. California courts have broken with the Third

and Ninth Circuits and instead followed those state

courts that understand Waffle House to implicitly resolve preemption challenges to state agency actions

seeking individualized relief on behalf of people who

agreed to arbitrate such claims.

Below, the California Court of Appeal effectively

began and ended its analysis with Waffle House. The

court understood Waffle House to “establis[h] [that]

the drivers’ arbitration agreements do not bar the

People and the Labor Commissioner from seeking judicial relief.” App., infra, 10a (formatting omitted).

Although Uber explained that Viking River made

clear that “nothing in the FAA categorically exempts

claims belonging to sovereigns from the scope of [9

U.S.C.] § 2” (596 U.S. at 652 n.4), the court responded

that Viking River “did not cite Waffle House and did

not state it was altering or limiting the holding in that

case” (App., infra, 14a). The Court of Appeal on this

basis broadly concluded that all “public agencies” (federal or state) “bringing enforcement actions as authorized by statute are not bound by arbitration agreements between private parties.” Id. at 10a-11a.

In other cases, California courts have similarly

given dispositive effect to Waffle House in their analysis of FAA preemption. See App., infra, 10a-12a.

Those decisions treat Waffle House as “the relevant

binding authority” when state officials initiate court

actions or administrative proceedings to secure individualized relief that would otherwise be resolved in

an arbitration between the defendant and another

party. People v. Maplebear Inc., 81 Cal. App. 5th 923,

935 (2022); accord Dep’t of Fair Employment & Housing v. Cisco Systems, Inc., 82 Cal. App. 5th 93, 103

(2022); Crestwood Behavioral Health, Inc. v. Lacy, 70

Cal. App. 5th 560, 584-585 (2021).

II. This Court’s Decisions Do Not Allow State

Actors

Circumvent

Arbitration

Agreements.

The Court of Appeal’s decision cannot be reconciled with this Court’s decisions. As this Court has

explained, the FAA protects “‘terms that specify with

whom the parties choose to arbitrate their disputes

and the rules under which that arbitration will be conducted.’” Epic Systems, 584 U.S. at 506. Federal law

therefore preempts “state-law rules that stand as an

obstacle to the accomplishment of the FAA’s objectives.” Concepcion, 563 U.S. at 343. And this case involves such an obstacle: an attempt to replace individual arbitration with representative litigation of the

same claims for monetary relief.

The decision below reflects the uncritical extension of Waffle House beyond the federal enforcement

context to preemption challenges to state enforcement

actions. Given the pervasive misreading of Waffle

House in state courts across the country, this Court

alone can set the record straight on the scope of its

own decision.

A. No plaintiff in any other context could litigate

someone else’s claim in court where the claim’s owner

agreed to arbitrate it, as even the California Court of

Appeal acknowledged here. App., infra, 20a-21a.

Consider just a few variations on the facts of this case:



If a driver brought these claims herself, Uber

could compel the driver’s claims to arbitration.

E.g., Mohamed v. Uber Technologies, Inc., 848

F.3d 1201, 1208 (9th Cir. 2016).



If other third parties (like a successor in interest, assignee, insurer, guardian, or counsel)

had brought claims that drivers agreed to arbitrate, Uber could compel the third-party representative’s claims to arbitration. E.g., American Trucking & Transportation Ins. Co. v.

Nelson, 771 F. App’x 445, 446 n.1 (9th Cir.

2019).



If a driver who opted out of arbitration brought

these claims as part of a class action, Uber

could compel arbitration of the claims of drivers who had not opted out. E.g., Lawson v.

Grubhub, Inc., 13 F.4th 908, 913 (9th Cir.

2021); O’Connor v. Uber Technologies, Inc.,

904 F.3d 1087, 1094 (9th Cir. 2018).



If a driver who agreed to arbitrate brought

these claims as part of a PAGA action, Uber

could compel the claims to arbitration—even if

the State had not itself agreed to arbitrate. Viking River, 596 U.S. at 645, 652 & nn.2, 4.

All these examples illustrate the general principle

that an arbitration agreement can bind a nonsignatory

that seeks relief arising from the contract containing

the arbitration agreement. See Arthur Andersen LLP

v. Carlisle, 556 U.S. 624, 631 (2009); GE Energy Power

Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct. 1637, 1643-1644 (2020). A

rule that immunizes state actors against the operation of these principles for arbitration agreements

would be the type of arbitration-disfavoring rule that

this Court has invalidated time and again. See, e.g.,

Kindred Nursing Centers L.P. v. Clark, 581 U.S. 246,

251-252 (2017); Perry, 482 U.S. at 490-492 & n.9.

This Court also has developed a framework for assessing whether a state law improperly impedes the

enforcement of arbitration agreements. Federal law

preempts any state law that “‘stands as an obstacle to

the accomplishment and execution of the full purposes

and objectives’ of the FAA.” Lamps Plus, 587 U.S. at

183 (quoting Concepcion, 563 U.S. at 352). A state law

that shifts a dispute from arbitration to another forum

has just that impermissible effect. Preston, 552 U.S.

at 359; Perry, 482 U.S. at 490-491.

B. The Court of Appeal was wrong to treat Waffle

House as a license to bypass the ordinary FAA framework on the theory that the plaintiffs in this case are

state entities. App., infra, 10a-19a. This Court recently confirmed that “nothing in the FAA categorically exempts claims belonging to sovereigns from the

scope of [9 U.S.C.] § 2” and that the FAA applies when,

as here, the claims “‘arise out of ’” a private arbitration agreement. Viking River, 596 U.S. at 652 n.4.

Waffle House did nothing to override these principles

for state enforcement actions.

1. Waffle House was not a preemption case. This

Court sought to reconcile the operation of two coequal

federal statutes to ensure the proper functioning of a

“detailed enforcement scheme created by Congress.”

534 U.S. at 296. The interaction of two statutes is a

question of giving effect to congressional intent as expressed in both statutes—not of federal supremacy

over state law. Epic Systems, 584 U.S. at 510. As

Chief Justice Marshall explained long ago, “one legislature is competent to repeal any act which a former

legislature was competent to pass,” and “one legislature cannot abridge the powers of a succeeding legislature.” Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135

(1810).

The consequence is that Congress, whenever it so

pleases, can abrogate or modify any statute—including the FAA. CompuCredit Corp. v. Greenwood, 565

U.S. 95, 98 (2012). That principle was at work in Waffle House: Because the ADA’s “statutory language

[was] clear” that the EEOC had “authority to pursue

victim-specific relief regardless of the forum that the

employer and employee ha[d] chosen to resolve their

disputes,” this Court gave effect to the later-enacted

federal statute. 534 U.S. at 295-296. The Court also

suggested that EEOC actions would “have a negligible

effect on the federal policy favoring arbitration” because “some of the benefits of arbitration [we]re already built into the EEOC’s statutory duties,” such as

the conciliation process. Id. at 290 n.7.

Unlike Congress, California cannot abrogate a federal statute or undermine its administration by authorizing state enforcement actions that supplant contractually agreed-on arbitrations. The analysis in

Waffle House of “‘federally created rights’” therefore

says little about “the issue of federal pre-emption of

state-created rights,” as here. Perry, 482 U.S. at 491.

In other words, respondents’ authority under California statutes asks rather than answers the preemption

question. Cf. Hollingsworth v. Perry, 570 U.S. 693,

715-716 (2013) (holding that statutory authority to

bring a claim under state law does not determine

“standing in federal court”).

The critical distinction between reconciling federal

statutes and applying preemption reveals that the

Court of Appeal was wrong to emphasize below that

respondents “are suing in their law enforcement capacities and pursuing statutorily authorized remedies.” App., infra, 23a. However clearly California

law might authorize the People and Labor Commissioner to seek individualized relief on behalf of drivers

who agreed to arbitrate with Uber, “States cannot require a procedure that is inconsistent with the FAA,

even if it is desirable for unrelated reasons.” Concepcion, 563 U.S. at 351. And here, unlike in Waffle

House, allowing respondents to rush into court with

duplicative claims would have anything but a “negligible” effect on the bilateral arbitration between Uber

and drivers currently proceeding apace. Cf. 534 U.S.

at 290 n.7.

2. Waffle House also dealt with claims that belonged solely to the federal agency. Under the congressional scheme, the EEOC possessed “exclusive jurisdiction over the claim for 180 days,” and the employee had no “independent cause of action.” 534 U.S.

at 291 (emphasis added). The employee could not

have brought the claims in any forum absent government permission to sue on the claim—in effect, a delegation of the EEOC’s claim to the employee. The upshot was that the employee could not bind the EEOC

to arbitrate claims that never belonged to the employee to begin with. See id. at 295 n.10.

Here, in contrast, respondents’ request for individualized monetary relief is a “proxy” for relief that drivers currently could seek in arbitration—in effect, a

delegation of the drivers’ claims to the state actors.

Waffle House, 534 U.S. at 298. Respondents do not

have “exclusive authority over the choice of forum”

(ibid.); drivers can and do bring claims seeking the

same relief in arbitration. That is why respondents

cannot recover money for drivers who already resolved their claims. California v. IntelliGender, LLC,

771 F.3d 1169, 1175 (9th Cir. 2014). By the same token, this case’s outcome will render the arbitration

agreements a nullity because drivers will be bound by

the judgment—and thus forever stripped of their ability to bring their claims in the arbitral forum to which

they and Uber agreed. E.g., Kamm v. California City

Development Co., 509 F.2d 205, 208 (9th Cir. 1975); cf.

Viking River, 596 U.S. at 654.

At bottom, these representative claims are the

same claims that drivers could pursue (and are presently pursuing) only in arbitration. Respondents’ attempt to seek this relief in court effectively shreds

Uber’s and drivers’ arbitration agreements. The FAA

does not permit such easy evasion. Neither does Waffle House.

3. Finally, the Court of Appeal thought that the

FAA did not apply because respondents had not themselves signed the arbitration agreements between

Uber and the drivers. App., infra, 9a. But Waffle

House in no way “jettison[ed] hundreds of years of

common law under which nonparties can be contractually liable under ordinary contract and agency principles.” Comer v. Micor, Inc., 436 F.3d 1098, 1104 n.10

(9th Cir. 2006). On the contrary, this Court has recognized since Waffle House that arbitration agreements can bind nonsignatories. See supra, p. 22.

In this case, the contractual relationship between

Uber and the drivers is a “but-for cause of any justiciable legal controversy” seeking individualized relief

for the drivers. Viking River, 596 U.S. at 652 n.4. But

the Court of Appeal nonetheless held that an order

compelling respondents to arbitrate would “undermine” state policy and “would ‘effectively negate’ Waffle House.” App., infra, 28a. The Court of Appeal’s

creation of special arbitration-disfavoring rules to protect state law from the federal policy in favor of arbitration underscores how its extension of Waffle House

sets this Court’s decision at war with other FAA decisions.

III. The Question Presented Is Exceptionally

Important.

This Court has always been “alert to new devices

and formulas that would achieve much the same result” the drafters of the FAA sought to prevent. Epic

Systems, 584 U.S. at 509. The Court of Appeal’s decision should set off alarm bells. And given the ossification of the position that Waffle House allows state

enforcement actions to supplant arbitration agreements, only this Court can close the loophole that

state courts have sought to pry open.

A. The question presented has sweeping, nationwide consequences. “‘State attorneys general have

authority under the laws of every State to bring enforcement actions to protect their citizens’” and to

seek restitution on their behalf. Harvey v. Blockbuster, Inc., 384 F. Supp. 2d 749, 753 (D.N.J. 2005);

see also, e.g., In re Lorazepam & Clorazepate Antitrust

Litig., 205 F.R.D. 369, 386 (D.D.C. 2002) (recognizing

“forty-three states that have specific authority to represent consumers and to settle and release their

claims” for restitution). In the wake of Concepcion,

States have increasingly brought enforcement actions

“encompassing virtually all economic sectors, including financial, healthcare, consumer products, and

commercial transactions.” James C. Martin, et al.,

The Expanding Role of Private Lawyers in Parens Patriae Lawsuits, ABA Section of Antitrust Law 3

(Spring 2014); see also Margaret H. Lemos, Aggregate

Litigation Goes Public: Representative Suits by State

Attorneys General, 126 Harv. L. Rev. 486, 488 n.5

(2012) (“public suits seeking to compensate injured

citizens are far more common at the state level”).

State enforcement actions like this one serve the

same purposes and pose the same risks as private

class actions. As Chief Judge Pryor has explained,

state enforcement actions are a “variation of the use

and abuse of class actions.” William H. Pryor Jr., A

Comparison of Abuses and Reforms of Class Actions

and Multigovernment Lawsuits, 74 Tul. L. Rev. 1885,

1886 (2000). They both “collec[t] many claims into one

suit and pursu[e] recovery for all.” Lemos, supra, at

488. They both provide plaintiffs with “overwhelming

bargaining power” due to “the immense scope of damages” arising “from the amalgamation of claims.”

Donald G. Gifford, Impersonating the Legislature:

State Attorneys General and Parens Patriae Product

Litigation, 49 B.C. L. Rev. 913, 946 (2008). And they

both pressure defendants “into settling questionable

claims” to avoid “a small chance of a devastating loss.”

Concepcion, 563 U.S. at 350; see also, e.g., Gifford, supra, at 916 (“Few [companies] are capable and willing

to risk trial when the plaintiff is a state … that may

collect billions of dollars as a result of harms allegedly

suffered by millions of its residents.”). In fact, restitution actions brought by state actors so “closely resemble … private class actions” that States often “hire

the class counsel from a class action” to sue “the same

target arising from the same misconduct on behalf of

state residents who may have also been class members.” Elysa M. Dishman, Enforcement Piggybacking

and Multistate Actions, 2019 B.Y.U. L. Rev. 421, 426427.

The Court of Appeal’s opinion also breathes new

life into a disturbing trend among state governmental

entities that exercise this authority in an effort to

evade arbitration agreements. Academics and activists alike have urged States to assume a more aggressive role in pursuing victim-specific relief to sidestep

arbitration agreements that would limit the availability of class procedures. See, e.g., Myriam Gilles &

Gary Friedman, After Class: Aggregate Litigation in

the Wake of AT&T Mobility v. Concepcion, 79 U. Chi.

L. Rev. 623, 660-661 (2012) (arguing that state attorneys general should “fill the void left by class actions”

because “[p]arens patriae suits are not subject to Rule

23 or contractual waiver provisions, and so avoid the

majority of impediments to contemporary class actions”); Myriam Gilles, The Politics of Access: Examining Concerted State/Private Enforcement Solutions to

Class Action Bans, 86 Fordham L. Rev. 2223, 2231

(2018); see generally Jack Ratliff, Parens Patriae: An

Overview, 74 Tul. L. Rev. 1847 (2000).

This case provides a clear example of a state circumventing arbitration agreements whose enforcement the FAA should protect. The primary architect

of the statute authorizing this action publicly decried

Uber’s arbitration agreements as a “huge problem”

and asked the “City Attorneys offices to file” suit to

circumvent them. @LorenaSGonzalez, Twitter (Nov.

21, 2019, 8:05 a.m.), https://twitter.com/lorenasgonzalez/status/1197546573158158336. And the Court of

Appeal sought to justify a preliminary injunction

against Uber based on the “ready enforceability of

[Uber’s] contractual arbitration clauses” in private actions that respondents sought to end-run. People v.

Uber Technologies, Inc., 56 Cal. App. 5th 266, 312

(2020).

The Court of Appeal’s opinion charts a roadmap

for state legislatures to impede the FAA in yet more

ways. Its flawed reasoning suggests that a State need

only enact a statute deputizing someone to bring in

court claims belonging to someone else. Even if the

claim’s owner has agreed to arbitrate that very claim,

the Court of Appeal’s decision would allow the claim

to proceed in court so long as the state-deputized representative did not himself agree to arbitration. It is

of no moment, under the Court of Appeal’s logic, that

the claim “arise[s] out of [a] contract that contains [an]

agreement” to arbitrate the claim. App., infra, 21a;

contra Viking River, 596 U.S. at 652 n.4. Nor does it

matter under the decision below that the state-deputized representative would turn the recovery over to

the claim’s true owner. App., infra, 23a.

Nothing in the Court of Appeal’s reasoning turns

on the identity of the state-deputized representative.

The plaintiffs pursuing drivers’ claims in this very

case include not only the California Attorney General,

but also a collection of city attorneys and an administrative agency, all seeking individualized relief on behalf of drivers who agreed to arbitrate such claims.

And the California Legislature has recently codified

the Court of Appeal’s ruling, authorizing “the Attorney General, a district attorney, a city attorney, a

county counsel, or any other city or county prosecutor”

to bring suit to enforce the California Labor Code and

providing that “private arbitration [agreements] shall

have no effect on the[ir] authority” to do so. Cal. Lab.

Code §§ 180, 182. More direct defiance of the FAA is

hard to imagine.

Nor would anything in the Court of Appeal’s opinion preclude state legislatures from adding private

plaintiffs to this already expansive list of representative deputies—as California has already done under

PAGA and for claims involving the manufacture and

distribution of firearms. See Cal. Lab. Code § 2699;

Cal. Bus. & Prof. Code § 22949.60. All that matters,

according to the Court of Appeal, is that respondents

“are authorized by [state] statute to bring the claims

at issue here and to seek the relief they request.”

App., infra, 23a. Under that lax standard, state legislatures could enact new statutes authorizing anyone

to bring any claims and seek any relief—and thereby

circumvent the FAA. Further state exploration of escape routes from arbitration should be stopped in its

tracks.

B. The time is ripe for this Court’s review because

there is little hope that further percolation will resolve

the entrenched conflict between state courts that

overread Waffle House and the prior understanding

that arbitration agreements bind state officials who

seek relief on behalf of parties who agreed to arbitration. As the California Court of Appeal read Waffle

House, this Court has already decided the preemption

question against Uber. That is plainly wrong given

the preemption context here and the different built-in

limitations of the EEOC’s scheme that meant that the

claim did not belong to the person who agreed to arbitration. Supra, pp. 23-26. But only this Court can

correct this pervasive misunderstanding among state

courts.

This case also is an ideal vehicle to address the

question presented. This issue rarely arises in federal

court because state enforcement actions are removable only in the event of easily defeated complete diversity. See, e.g., Bennett, 968 F.2d at 970; see also Mississippi ex rel. Hood v. AU Optronics Corp., 571 U.S.

161, 168-169 (2014) (holding that the mass-action removal provision of the Class Action Fairness Act does

not apply to state enforcement actions). Even the rare

case that lands in federal court will often present potential vehicle problems, such as abstention. See, e.g.,

Quackenbush, 121 F.3d at 1375-1376; Olde Discount,

1 F.3d at 211-215. This petition provides the Court a

clean and unobstructed opportunity to resolve the application of Waffle House to state enforcement actions.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

JOSEPH E. BARAKAT

GIBSON DUNN & CRUTCHER LLP

2001 Ross Avenue, Suite 2100

Dallas, TX 75201

THEANE D. EVANGELIS

Counsel of Record

BLAINE H. EVANSON

ALEXANDER N. HARRIS

PATRICK J. FUSTER

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

tevangelis@gibsondunn.com

Counsel for Petitioners

April 16, 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.