In Viking River Cruises v. Moriana the U.S. Supreme Court will decide whether an arbitration agreement waiving the right to bring a class action can be enforced where the employee brings a class action as a private attorney.
Angie Moriana, a sales representative for Viking River Cruises, agreed any dispute arising out of her employment would be subject to arbitration. She also agreed to waive any right to bring a “representative” employment action against Viking, including a private attorney general action (PAGA). California’s PAGA allows individuals to sue employers on behalf of themselves and others as private attorneys general. Moriana sued Viking for various labor code violations on behalf of the state and “all other similarly situated aggrieved employees” under PAGA.
The California Court of Appeals held that the PAGA class/representative claims could not be compelled to individual arbitration.
In 2014 in Iskanian v. CLS Transportation Los Angeles, LLC the California Supreme Court held that arbitration agreements that waive the right to bring PAGA representative actions in any forum are unenforceable.
In Epic Systems Corp. v. Lewis (2018) the Supreme Court held that agreements requiring employees to arbitrate claims individually (and disallowing class actions) are enforceable.
Viking argued that the Supreme Court’s decision in Epic overruled Iskanian. The California Court of Appeals disagreed. It noted that Epic wasn’t a PAGA case and “since Epic California courts continue to find private predispute waivers of PAGA claims unenforceable.” Also, the California Court of Appeals previously reasoned the cause of action in Epic “differs fundamentally from a PAGA claim” because the real party in interest in a PAGA claim is the state.