Five Star Senior Living v. Mandviwala
This case concerns whether employers in California can use arbitration agreements to require employees to waive their right under California’s Private Attorneys General Act to file representative claims on behalf of the state seeking penalties for Labor Code violations. In CLS Transportation Los Angeles v. Iskanian, the California Supreme Court held that such claims are non-waivable, and that the Federal Arbitration Act (FAA) does not require enforcement of PAGA waivers that are incorporated into arbitration agreements. In Sakkab v. Luxottica Retail North America, the U.S. Court of Appeals for the Ninth Circuit agreed that Iskanian’s anti-waiver rule is not preempted by the FAA. The U.S. Supreme Court denied review of the issue in Iskanian and several other cases. In this case, the Ninth Circuit affirmed a district court decision holding that an arbitration agreement may not waive the right to bring PAGA claims, and remanded for further proceedings. Five Star Senior Living, the defendant, filed a petition for certiorari again requesting Supreme Court review of the claim that the FAA preempts Iskanian. Public Citizen Litigation Group, as cocounsel for the respondent employee, prepared and filed a brief in opposition arguing that the case does not merit Supreme Court review. On June 25, 2018, the Supreme Court denied certiorari.