Bloomingdale’s v. Vitolo

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 in at least three other cases.

In this case, the Ninth Circuit in 2013 vacated a district court’s decision dismissing PAGA claims that were subject to a waiver in an arbitration agreement, and remanded for further consideration in light of the intervening decisions in Iskanian and Sakkab, as well as another California court decision addressing a separate procedural issue. Bloomingdale’s, 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 explaining why the case does not merit Supreme Court review. In June 2017, the U.S. Supreme Court denied certiorari.