After Viking River Cruises, The Legislature May Attempt To Preserve The Private Attorney General Model

• Published date: 24 May 2022
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Trials & Appeals & Compensation
• Law Firm: Akin Gump Strauss Hauer & Feld LLP
• Author: Mr Jonathan Slowik, Gregory W. Knopp and Donna M. Mezias

In Viking River Cruises, Inc. v. Moriana, Case No. 20-1573, the U.S. Supreme Court granted certiorari to decide whether representative claims under the Private Attorneys General Act (PAGA) may be compelled to individual arbitration. In Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348 (2014), the California Supreme Court announced a rule against individual arbitration of PAGA claims, but the Court is widely expected to hold that the Federal Arbitration Act (FAA) preempts the Iskanian rule. (To read a recap of the Viking River Cruises oral argument, click here.)

This two-part series examines what may happen next. In Part 1, we explored the arguments that will likely feature in the deluge of motions to compel arbitration that will follow any decision abrogating Iskanian. (To read Part 1, click here.)

In Part 2, we explore how the California legislature may respond. The legislature has shown a strong commitment to the law, even resisting calls for reform from the political left. Notably, Gov. Jerry Brown (D-CA) proposed modest reforms in 2016 to "stabilize and improve the handling of PAGA cases." The legislature adopted some of his proposals but refused such minor tweaks as requiring PAGA plaintiffs to cite legal authorities and estimate the number of affected employees when giving mandatory presuit notice to the state.

Constituents may also pressure legislators to act. The Viking River Cruises argument brought mainstream media attention to PAGA for perhaps the first time in the law's history, from outlets such as the Los Angeles Times, the San Francisco Chronicle, the San Diego Union-Tribune, Vox, and Reuters. If the voting public perceives the conservative-majority Supreme Court as interfering with California's ability to protect its employees, it may demand action (e.g., Charles P. Pierce, Esquire, "John Roberts Has a New Opportunity to Prove His Fealty to Corporate Oligarchy: A California Employment Law Comes Into the Firing Line" (Dec. 15, 2021)).

For these reasons, Sacramento should be expected to do whatever is necessary to legislate around the Viking River Cruises decision and preserve the private attorney general model of enforcing California labor standards. It will have multiple plausible options for doing so.

Empowering the LWDA to exercise greater oversight over PAGA litigation. The plaintiff and amici in Viking River Cruises argued among other things that the FAA is no impediment to the Iskanian rule, because the real party in...