“The petition offers the Supreme Court an ideal opportunity to clarify that public and qui tam claims do not occupy a unique FAA-free zone.”
—Cory Andrews, WLF General Counsel & Vice President of Litigation

Click here for WLF’s brief.

WASHINGTON, DC—Washington Legal Foundation (WLF) today filed an amicus curiae brief asking the U.S. Supreme Court to review a decision of the U.S. Court of Appeals for the Ninth Circuit that is inconsistent with the Federal Arbitration Act (FAA). 

The FAA establishes a federal policy favoring arbitration. To operate properly, however, the FAA must apply consistently nationwide. The California courts, interpreting California law, have repeatedly created inconsistency. What’s more, the Ninth Circuit has chosen to apply California law even when it conflicts with the FAA. This case is the latest in a long line of decisions refusing to follow the FAA’s directive that arbitration contracts be enforced as written.

Here the Ninth Circuit declined to enforce a representative-action waiver in the parties’ arbitration agreement based on the California Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles. In Iskanian, the court held that claims under California’s Private Attorneys General Act (PAGA) are not subject to the FAA because they are considered qui tam actions in which individual workers pursue public (not private) claims for relief, so courts need not enforce PAGA representative-action waivers.

While California courts are free to apply this “public” label to PAGA claims as a matter of state law, federal courts must look beyond such labels to assess whether, under the Supremacy Clause, the FAA preempts the Iskanian rule. In its brief, WLF argues that Supreme Court review is needed to ensure uniform application of the FAA nationwide so that arbitration achieves its basic aims: resolving disputes efficiently, predictably, individually, and cost-effectively. The decision below thwarts these goals.

Peder Batalden, Felix Shafir, and John Querio of Horvitz & Levy LLP prepared the brief for WLF and the Atlantic Legal Foundation on a pro bono basis.