The U.S. Supreme Court on Wednesday granted certiorari in Viking River Cruises, Inc. v. Moriana.

Although the Court will be directly reviewing a California Court of Appeal decision, it will actually be analyzing a seven-year-old California Supreme Court opinion that the Court of Appeal followed.  Horvitz & Levy filed an amicus curiae brief supporting certiorari and arguing the California Supreme Court case was wrongly decided.

The issue, as stated in the cert petition, is:  “Whether the Federal Arbitration Act requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under [California’s Labor Code Private Attorneys General Act].”

Seven years ago, the California Supreme Court, in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 360, answered that question “no.”  It concluded that “an arbitration agreement requiring an employee as a condition of employment to give up the right to bring representative PAGA actions in any forum is contrary to public policy” and that “the FAA’s goal of promoting arbitration as a means of private dispute resolution does not preclude our Legislature from deputizing employees to prosecute Labor Code violations on the state’s behalf.”

The Second District, Division Three, Court of Appeal, in a brief unpublished opinion, agreed with other appellate decisions rejecting an argument that a 2018 U.S. Supreme Court case had overruled Iskanian.  The California Supreme Court denied review a year ago.

Moriana will not be the first case in which the U.S. Supreme Court has in effect reviewed a California Supreme Court decision by granting cert of a state Court of Appeal opinion.  For example, the high court did that in 2014 when it held police could not conduct a warrantless search of an arrested suspect’s cell phone.


U.S. Supreme Court To Decide Whether PAGA Representative Action Waivers in Employment Arbitration Agreements are Enforceable

Despite cert. denial, Supreme Court’s Iskanian opinion could still get SCOTUS review

California Supreme Court addresses class action and representative action waivers in Iskanian

SCOTUS won’t review divided Supreme Court public benefits opinion that the Solicitor General said is wrong

What did the U.S. Supreme Court think of the California Supreme Court’s work?