Amicus Curiae Brief — Law Offices of Adam Zolonz, APC, et al., Petitioners v. Christina Ramirez

No. 25-1075

IN THE

Supreme Court of the United States

________________

LAW OFFICES OF ADAM ZOLONZ, APC, ET AL.,

Petitioners,

v.

CHRISTINA RAMIREZ,

Respondent.

________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL

SECOND APPELLATE DISTRICT

________________

BRIEF OF CALIFORNIA EMPLOYMENT

LAW COUNCIL AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

________________

PAUL GROSSMAN

Counsel of Record

PAUL HASTINGS LLP

515 South Flower Street

Twenty-Fifth Floor

Los Angeles, CA 90071

1(213) 683-6000

paulgrossman@paulhastings.com

Attorney for Amicus Curiae

CALIFORNIA EMPLOYMENT LAW COUNCIL

QUESTION PRESENTED

When only a small minority of the multiple

causes of action in a lawsuit are related in any way

to sexual assault/harassment (here at most three of

the fifteen causes of action), does the “Ending Forced

Arbitration of Sexual Assault and Sexual

Harassment Act (9 U.S.C. §§ 401, 402 (“EFAA”))

prohibit enforcement of an arbitration agreement

with respect to the unrelated causes of action?

i

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....................................... i

TABLE OF AUTHORITIES ................................... iv

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

SUMMARY OF ARGUMENT—AN

UNSUPPORTED ASSERTION THAT ALL

ISSUES IN A MULTI-ISSUE LAWSUIT

ARE “RELATED” TO SEXUAL

HARASSMENT IS NOT AN AUTOMATIC

GET-OUT-OF-ARBITRATION-FREE CARD ......... 1

ARGUMENT ............................................................ 4

I. SO LONG AS A COMPLAINT CONTAINS

A SINGLE CLAIM RELATING TO A

SEXUAL-HARASSMENT OR SEXUALASSAULT DISPUTE, CALIFORNIA TRIAL

COURTS VOID ARBITRATION

AGREEMENTS AS TO ALL CLAIMS IN

THAT COMPLAINT, INCLUDING CLAIMS

HAVING NOTHING TO DO WITH THE

SEXUAL HARASSMENT OR ASSAULT

DISPUTE—THIS IS CLEAR ERROR .............. 4

II. AN ARBITRATION AGREEMENT THAT

COVERS CLAIMS NOT RELATED TO

SEXUAL HARASSMENT REMAINS

ENFORCEABLE FOR THE UNRELATED

CLAIMS ............................................................. 4

ii

III. THE DECISION BELOW WILL MAKE

DISPUTE RESOLUTION MORE

EXPENSIVE AND TIME CONSUMING

FOR EMPLOYERS AND EMPLOYEES

ALIKE ................................................................ 6

IV. THE DECISION BELOW WILL

ENCOURAGE FORUM SHOPPING

BETWEEN STATE AND FEDERAL

COURTS ............................................................ 8

V. INTERMINGLING SEXUAL

HARASSMENT CLAIMS WITH

UNRELATED CLAIMS WILL CREATE

IMPOSSIBLE PROBLEMS FOR TRIAL

COURTS ............................................................ 9

VI. NOW CONSIDER AN ALTERNATIVE

SCENARIO: SUMMARY JUDGMENT

IS DENIED ON THE SEXUAL

HARASSMENT CLAIM BASED

SOLELY ON PLAINTIFF’S

TESTIMONY; CLASS CERTIFICATION

IS GRANTED ON SOME WAGE-HOUR

CLAIMS AND DENIED ON OTHERS

AND AT TRIAL PLAINTIFF LOSES ON

SEXUAL HARASSMENT BUT WINS

ON ONE OR MORE WAGE-HOUR

CLAIMS ........................................................... 10

CONCLUSION ....................................................... 11

iii

TABLE OF AUTHORITIES

Page(s)

CASES

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011)............................................. 6

Bissonnette v. LePage Bakeries Park St.,

LLC,

601 U.S. 246 (2024)............................................. 1

Dean Witter Reynolds, Inc. v. Byrd,

470 U.S. 213 (1985)............................................. 7

Ding v. Structure Therapeutics, Inc.,

755 F. Supp. 3d 1200 (N.D. Cal. 2024) .......... 8, 9

KPMG LLP v. Cocchi,

565 US. 18 (2011)................................................ 9

Silverman v. DiscGenics, Inc.,

No. 2:22-cv-00354-JNP-DAO, 2023 WL

2480054 (D. Utah Mar. 13 2023) ........................ 8

Southland Corp. v. Keating,

465 U.S. 1 (1984),

overruled on other grounds by

Rodriguez de Quijas v. Shearson/Am.

Express, Inc.,

490 U.S. 477 (1989)............................................. 9

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

Corp.,

559 U.S. 662 (2010)......................................4, 5, 7

Turner v. Tesla, Inc.,

686 F. Supp. 3d 917 (N.D. Cal. 2023) ................ 9

Yost v. Everyrealm, Inc.,

657 F. Supp. 3d 563 (S.D.N.Y. 2023) ................. 5

iv

Zeng v. Ellenoff Grossman & Schole LLP,

No. 23-CV-10348, 2024 WL 4250387

(S.D.N.Y. Sept 19, 2024),

appeal dismissed No. 24-2557 (2d Cir.

Jan 13, 2025) ....................................................... 8

STATUTES

9 U.S.C. § 401 (ENDING FORCED ARBITRATION

OF SEXUAL ASSAULT AND SEXUAL

HARASSMENT ACT (EFAA)) ...................... 1, 4-6, 8

9 U.S.C. § 402 ........................................................... 1

9 U.S.C. § 1 (FEDERAL ARBITRATION ACT

(FAA)) .........................................................2, 9, 11

RULES

AAA COM. ARBITRATION R-23 (2009) ....................... 7

OTHER AUTHORITIES

Danie Taub & Hannah Levitt, Wells Fargo

Ends Forced Arbitration for Sexual

Harassment, BLOOMBERG LAW (Feb. 12,

2020) .................................................................... 6

Didi Martinez, Facebook, Airbnb and eBay

Join Google in ending forced arbitration

for sexual harassment claims, NBC NEWS

(Nov. 12, 2018) ................................................ 5, 6

Mark Fellows, The Same Result As in Court,

More Efficiently: Comparing Arbitration

and Court Litigation Outcomes, THE

METROPOLITAN CORPORATE COUNSEL

(July 2006) ...................................................... 6, 7

v

INTEREST OF AMICUS CURIAE

Amicus curiae California Employment Law

Council (“CELC”) is a voluntary, non-profit

organization

that

promotes

fostering

the

development in California of reasonable, equitable,

and progressive rules of employment law. CELC’s

membership includes approximately 70 privatesector employers in the State of California who

collectively employ hundreds of thousands of

Californians. CELC has participated as amicus in

many employment cases before this Court.1 2

SUMMARY OF ARGUMENT—AN

UNSUPPORTED ASSERTION THAT

ALL ISSUES IN A MULTI-ISSUE

LAWSUIT ARE “RELATED” TO

SEXUAL HARASSMENT IS NOT AN

AUTOMATIC GET-OUT-OFARBITRATION-FREE CARD

As the title makes clear, the “Ending Forced

Arbitration of Sexual Assault and Sexual

Harassment Act (9 U.S.C. §§ 401, 402 (“EFAA”)) was

intended to remove from the protection afforded

1 No counsel for a party authored this brief in whole or in part,

and no party or counsel other than amicus curiae and its

counsel made a monetary contribution to fund preparation or

submission of this brief. Petitioner herein is not a member of

CELC. Counsel of Record and all parties, upon the filing of this

brief, will have received timely notice of the filing of this brief.

The above statements are made pursuant to Supreme Court

Rule 37.6 and Rule 36.2, and so are in compliance therewith.

2 Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246

(2024).

1

arbitration agreements by the Federal Arbitration

Act (“FAA”) only sexual harassment/assault and

“related” claims. What makes a claim “related”?

And who decides if a claim is related? Is it: (1)

plaintiff by so asserting in a complaint; or (2) some

combination of neutrals—the arbitrator selected by

the parties (who is supposed to resolve the unrelated

claims) and/or the court (which is supposed to

resolve the related claims)?

The California Employment Law Council

(“CELC”) argues herein that a plaintiff cannot evade

a valid arbitration agreement simply by asserting

that over a dozen claims that appear to have no

relation to sexual harassment are in fact related.

The unrelated claims in this case found exempt from

arbitration as “related’ to sexual harassment

include:

(1) Failure to provide adequate meal

periods;

(2) Failure to provide adequate rest

periods;

(3) Failure to reimburse cell phone

expense; and

(4) Failure to engage in the interactive

process to determine a need for an

accommodation based on mental and

physical disabilities.

If Congress intended that all employment

claims in a complaint that included a sexual

harassment claim would be exempt from arbitration,

Congress could have easily so stated. But Congress

did not do so⎯only complaints “related” to sexual

harassment were excluded.

2

This Court should grant certiorari and rule as

follows: First, the mere assertion by a plaintiff that

clearly unrelated claims are “related” should receive

no weight. Second, the “related” determination

must be made by a neutral. If the parties agree, or

the Court so orders, the initial decision separating

“related” claims from “unrelated” claims can be

made by the Arbitrator. Alternatively, the trial

court should order to arbitration the claims that

court decides are unrelated.

Following the

Arbitrator’s decision, the trial court should proceed

to resolve the remaining sexual harassment related

claims.

In short, as envisioned by Congress, an

Arbitrator

should

resolve

the

non-sexual

harassment related claims, and the trial court

should resolve the remainder. This procedure will

discourage adding frivolous sexual harassment

claims to run-of-the-mill overtime, meal, rest,

expense reimbursement, and off-the-clock cases in

an effort to avoid arbitration. We elaborate on some

of these points below.

3

ARGUMENT

I.

SO LONG AS A COMPLAINT CONTAINS A

SINGLE CLAIM RELATING TO A SEXUALHARASSMENT OR SEXUAL-ASSAULT

DISPUTE, CALIFORNIA TRIAL COURTS

VOID ARBITRATION AGREEMENTS AS

TO ALL CLAIMS IN THAT COMPLAINT,

INCLUDING CLAIMS HAVING NOTHING

TO DO WITH THE SEXUAL HARASSMENT

OR ASSAULT DISPUTE—THIS IS CLEAR

ERROR

In California trial courts, plaintiffs may now

exempt an entire case from arbitration⎯even when

the parties have unambiguously agreed to

arbitrate⎯by simply tacking a sexual harassment

claim onto a complaint that otherwise has nothing

to do with that allegation. This Court should grant

review to correct that erroneous view of the EFAA,

which upends this Court’s longstanding protection of

parties’ agreements to arbitrate. This protection

continues to play a critical role in encouraging

efficient, private, and cost-effective dispute

resolution.

II. AN ARBITRATION AGREEMENT THAT

COVERS CLAIMS NOT RELATED TO

SEXUAL

HARASSMENT

REMAINS

ENFORCEABLE FOR THE UNRELATED

CLAIMS

When parties agree to arbitrate disputes the

terms of their agreements govern. See Stolt-Nielsen

S.A. v. Animal Feeds Int’l Corp., 559 U.S. 662, 685

4

(2010) (courts must “give effect to the contractual

rights and expectations of the parties”) (citation

omitted). Those terms are binding. Yet by holding

that California courts may void arbitration

agreements whenever a plaintiff appends a single

sexual harassment claim to a complaint, the decision

below points litigants to a backdoor way of avoiding

arbitration:

add a sexual harassment claim,

regardless of its merit.

Indeed, some brazen

plaintiffs have already put this strategy into action,

contriving sexual harassment claims after

defendants move to compel.

E.g., Yost v.

Everyrealm, Inc., 657 F. Supp. 3d 563, 587 (S.D.N.Y.

2023) (“Only after the Everyrealm defendants

moved to compel arbitration based on Yost’s

arbitration agreement . . . did Yost suggest sexual

harassment claims so as to implicate the EFAA.”)

The Court of Appeal’s decision thus threatens

to bury employers and California courts in frivolous

sexual harassment allegations engineered to avoid

arbitration. That not only saddles employers with

the burdensome task of defending meritless claims

but also renders meaningless parties’ agreements to

arbitrate. Such agreements are supposed to be just

as binding as any other contract. This result is

especially perplexing for employers, including many

of amicus curiae’s members, who have expressly

carved sexual harassment claims from their

arbitration agreements to ensure the agreements

are enforceable for other disputes.3

See, e.g., Didi Martinez, Facebook, Airbnb and eBay Join

Google in ending forced arbitration for sexual harassment

claims,

NBC

NEWS

(Nov.

12,

2018),

https://www.nbcnews.com/tech/tech-news/facebook-airbnb-eba

3

5

The Court of Appeal’s decision renders those

thoughtful carveouts (which are consistent with the

purpose of the EFAA) useless, even though they

were knowingly agreed to by both parties to the

agreement. This Court’s review is thus necessary

(1) to prevent litigants from circumventing

arbitration agreements by adding a sexual

harassment claim to unrelated employment

litigation; (2) to restore pre-dispute agreements to

binding force; and (3) to guide the bench and bar who

face uncertainty about the future validity of

arbitration agreements.

III. THE DECISION BELOW WILL MAKE

DISPUTE

RESOLUTION

MORE

EXPENSIVE AND TIME CONSUMING

FOR EMPLOYERS AND EMPLOYEES

ALIKE

Arbitration provides “efficient, streamlined

procedures” and “expeditious results.”

AT&T

Mobility LLC v. Concepcion, 563 U.S. 333, 348

(2011) (arbitration offers “lower costs, greater

efficiency and speed, and the ability to choose expert

adjudicators to resolve specialized disputes”)

(citation omitted).

Indeed, by one estimate,

arbitration resolves disputes over a year faster than

litigation. See Mark Fellows, The Same Result As in

Court, More Efficiently: Comparing Arbitration and

join-google-ending fored arbitration-sexual harassmentn935451; Danie Taub & Hannah Levitt, Wells Fargo Ends

Forced Arbitration for Sexual Harassment, BLOOMBERG LAW

(Feb. 12,

2020),

https://news.bloomberglaw.com/bankinglaw/wells-fargo-ends-forced-arbitration-for-sexualharassment-claims.

6

Court Litigation Outcomes, THE METROPOLITAN

CORPORATE COUNSEL (July 2006) (median duration

of 4.35 months for arbitration versus 19.4 months for

litigation); see also Stolt-Nielsen S.A., 559 U.S. 662,

at 685 (arbitration agreements typically foreclose

appellate review). And unlike ordinary court filings,

arbitration proceedings are usually confidential

which protects both employers and employees from

having to publicly air their grievances. E.g., AAA &

ABA, Code of Ethics for Arbitrators in Commercial

Disputes, Canon VI(B) (2004) (“The arbitrator

should keep confidential all matters relating to the

arbitration proceeding.”); accord AAA Commercial

Arbitration Rules R-23 (2009). Amicus curiae’s

members can attest firsthand to those benefits.

That is why amicus curiae’s members also

know the grave consequences of the California

decision. Now, anytime an employee pads his or her

otherwise arbitrable suit with a sexual harassment

claim, the bargained-for benefits of arbitration will

be lost. Cases will take more time to resolve, will

cost more money, and will be subject to lengthy

appeals.

CELC’s members use pre-dispute arbitration

agreements to avoid these consequences. Those

consequences are far worse than whatever

inefficiency might stem from resolving arbitrable

and non-arbitrable claims in different forums. Dean

Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 217

(1985) (district courts must “compel arbitration of

pendent arbitrable claims . . . even where the result

would be the possibly inefficient maintenance of

separate proceedings in different forums”). In truth,

however, it is not clear that the California court’s

7

decision will actually lead to greater efficiency.

Defendants seeking to dismiss meritless sexual

harassment claims will almost certainly rely on

time-consuming and extensive motion practice to

defeat those allegations. If and when those motions

are successful, Defendants will then have to move to

compel the remaining claims to arbitration, possibly

for a second time. And if the initial motion is not

successful, the parties will have to participate in fact

development before seeking summary judgment—

which could very well end in the same place:

dismissal of the sexual harassment claim and then

another renewed motion to compel arbitration.

IV. THE

DECISION

BELOW

WILL

ENCOURAGE

FORUM

SHOPPING

BETWEEN

STATE

AND

FEDERAL

COURTS

The California court’s decision will encourage

forum shopping between state and federal courts.

Unlike the California state court below most federal

courts that have considered this issue have held that

the EFAA exempts only claims relating to sexual

harassment or sexual assault. See, e.g., Silverman

v. DiscGenics, Inc., No. 2:22-cv-00354-JNP-DAO,

2023 WL 2480054, at *3 (D. Utah Mar. 13 2023)

(compelling arbitration of employment claims that

did not relate to sexual harassment); Zeng v. Ellenoff

Grossman & Schole LLP, No. 23-CV-10348 (JGLC),

2024 WL 4250387, at *3 (S.D.N.Y. Sept 19, 2024),

appeal dismissed No. 24-2557 (2d Cir. Jan 13, 2025)

(compelling arbitration of employment claims that

did not relate to sexual harassment). That is true

even within California. E.g., Ding v. Structure

8

Therapeutics, Inc., 755 F. Supp. 3d 1200, 1218-19

(N.D. Cal. 2024) (compelling arbitration of all claims

not “relate[d]” to “sexual harassment dispute”);

Turner v. Tesla, Inc., 686 F. Supp. 3d 917, 925 (N.D.

Cal. 2023) (similar). In federal court, then, claim

splitting is the norm. See KPMG LLP v. Cocchi, 565

US. 18, 22 (2011) (“when a complaint contains both

arbitrable and nonarbitrable claims,” the FAA

contemplates “separate proceedings in different

forums”) (citation omitted). Indeed, had the Plaintiff

here pursued her claims in federal court, the partes

would have resolved just two or three of those claims

in court and the other 12 or 13 in arbitration.

Litigants who are bound by arbitration

agreements but want to avoid arbitration thus have

a clear path to do so: tack on a sexual harassment

claim and file in a California state court. Yet that is

exactly the sort of forum shopping Congress sought

to eliminate by making arbitration agreements

equally enforceable in federal and state courts. See

Southland Corp. v. Keating, 465 U.S. 1, 15-16 (1984)

(FAA applies in state court to discourage forum

shopping), overruled on other grounds by Rodriguez

de Quijas v. Shearson/Am. Express, Inc., 490 U.S.

477 (1989).

V. INTERMINGLING SEXUAL HARASSMENT

CLAIMS WITH UNRELATED CLAIMS WILL

CREATE IMPOSSIBLE PROBLEMS FOR

TRIAL COURTS

Consider what will happen down the road if the

arbitrable and non-arbitrable claims are litigated

together in court. For example, assume after much

discovery focusing on class certification and sexual

9

harassment, and long after the complaint is filed,

the Court grants summary judgment on the sexual

harassment claim and on some but not all of the

wage-hour claims.

What a mess! What wasted effort. What if

the plaintiff seeks an interlocutory appeal of the

sexual harassment summary judgment? Can the

wage-hour case go to where it should have been in

the first place⎯to arbitration? Is the Court’s grant

of summary judgment on some but not all wage-hour

claims valid since we now know the wage-hour

claims should have gone to the arbitrator in the first

instance?

VI. NOW CONSIDER AN ALTERNATIVE

SCENARIO: SUMMARY JUDGMENT IS

DENIED ON THE SEXUAL HARASSMENT

CLAIM BASED SOLELY ON PLAINTIFF’S

TESTIMONY; CLASS CERTIFICATION IS

GRANTED ON SOME WAGE-HOUR

CLAIMS AND DENIED ON OTHERS AND

AT TRIAL PLAINTIFF LOSES ON

SEXUAL HARASSMENT BUT WINS ON

ONE OR MORE WAGE-HOUR CLAIMS

Now we have a real mess! The jury did not

believe plaintiff’s unsupported testimony that

sexual harassment occurred. Enormous resources

have been expended. We now know with certainty

that the wage-hour claim should not have been in

court. Can defendant get the claims on which it lost

sent to arbitration? Can plaintiff get a second

chance in arbitration on the claims on which

plaintiff did not prevail in court? Is the result

different if the Court concludes the sexual

10

harassment claim was not only meritless but

frivolous? Without guidance from this Court, trial

courts will reach vastly different results.

CONCLUSION

It cannot be consistent with the Federal

Arbitration Act for California courts to hold that the

mere assertion by a litigant that all 15 dissimilar

causes of action in a run-of-the-mill wage-hour

lawsuit are “related” to sexual harassment deprives

the other party of its federally guaranteed

contractual right to a quick inexpensive arbitral

determination of the unrelated claims. A neutral—

either the jointly selected arbitrator or the trial

court—must quickly decide which claims are not

“related” within the meaning of the statute, and

those claims should proceed to a prompt agreed upon

arbitral resolution. Much mischief will occur in

courts throughout the United States until this Court

grants certiorari. The inevitable consequence of

review will be a holding that a naked assertion that

all causes of action in a boilerplate employment

lawsuit, such as meal, rest, overtime, and expense

reimbursement claims, are related to the sexual

harassment claims, is not a free pass to avoid FAA

protected contractually agreed upon arbitration.

The “which causes of action are related” issue must

be decided at the outset either by the arbitrator or

by the trial court.

The problems with the California court’s

decision described above can be avoided if this Court

grants certiorari and concludes that the intent of

Congress was that claims related to sexual

11

harassment are for the court, and unrelated claims

are for the mutually selected arbitrator.

Respectfully submitted.

PAUL GROSSMAN

Counsel of Record

PAUL HASTINGS LLP

515 South Flower Street

Twenty-Fifth Floor

Los Angeles, CA 90071

1 (213) 683-6000

paulgrossman@paulhastings.com

Counsel for Amicus Curiae

CALIFORNIA EMPLOYMENT LAW COUNSEL

March 30, 2026

12