Since the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion (see Fenwick’s April 28, 2011 Litigation Alert), California appellate courts have disagreed about the ability, through private arbitration agreements, to waive an employee’s right to bring class action claims and/or representative claims under the California Private Attorneys’ General Act of 2004 (“PAGA”). See, e.g., Iskanian v. CLS Transportation of Los Angeles (October 2012 FEB) and Franco v. Arakelian Enterprises (December 2012 FEB), both now pending before the California Supreme Court. In Brown v. Superior Court, the Sixth Appellate District recently sided with those decisions finding that the Federal Arbitration Act does not mandate enforcement of such private arbitration agreements. The court found that “[a] PAGA claim is necessarily a representative action intended to advance a predominately public purpose” and “a private agreement purporting to waive the right to take representative action is unenforceable because it wholly precludes the exercise of this unwaivable statutory right.”

Notwithstanding this recent decision, this issue will remain unsettled until the California Supreme Court ultimately decides this matter. In Iskanian, the lead case on the issue, the parties’ replies to recent amicus curiae briefs are due July 15, 2013. Stay tuned for further developments on this issue.