Good morning, and welcome to the latest edition of my Monday Morning Briefing. We continue to pray for peace in the Ukraine, as President Zelensky asked the Grammy audience via zoom “what is more opposite war than music?”
LA CITY COUNCIL OFFICIALLY VOTES TO DROP VACCINE MANDATE – IS THE PANDEMIC REALLY BEHIND US?
As with last week, all remains relatively quiet in COVID-19 news, and though the second booster is officially FDA approved now, it does really feel as if the pandemic may be in our rear view mirror. The LA City Council finally voted to officially drop the vaccine mandate that no one has been enforcing for many weeks now. The Mayor still has to sign it, but who know where he even is; maybe he has moved to India already? Anyway, nobody cares about this vaccine mandate anymore. Oh, and West Hollywood voted theirs out back on March 22 and I missed that entirely. So I think we are done here. Time to go back to work, everyone.
VIKING RIVER CRUISES – WHAT WE CANNOT TELL FROM LAST WEDNESDAY’S ORAL ARGUMENT
So last Wednesday, March 30, the United States Supreme Court heard the oral argument in the matter of Moriana v Viking River Cruises, which, as many of you know, could decide the fate of those class action waivers many of you have your employees sign and how they impact your pending or potential PAGA litigation here in California. As I have explained here before, the crux of the argument comes down to the viability of an existing 2014 California Supreme Court decision of Iskanian v CLS Transportation, which held that because the state of California was essentially a “party” to the Private Attorney General Act (PAGA) cases, class action waivers, which are part of arbitration agreements, are immune from the jurisdiction of the Federal Arbitration Act (FAA). That has become even more of an issue in recent years, as the US Supreme Court has doubled down on its belief that the FAA has incredibly strong pre-emption powers, reinforcing those beliefs in recent cases such as AT&T Mobility and Epic Systems, both of which impact California law. It was in light of those decisions that several people tried to convince the Supremes to take another look at Iskanian in light a belief that a more conservative Supreme Court, endorsing a stronger FAA, might now reverse its stance on Iskanian.
Several people reached out to me after the argument, and after several articles came out following the argument, indicating that they had heard “it didn’t go well.” Our team listened to the entire oral argument, and pulled the written transcript (which I am happy to send you), and I am not sure how anyone can predict the outcome from the oral argument. The three most vocal Justices questioning the extremely talented attorneys presenting for both sides were Justices Breyer, Kagen and Sotomeyer – all of whom are very likely to vote to uphold Iskanian. But we know that. Justice Gorsuch, who penned the opinion for Epic Systems, did not ask a single question. Justices Kavanugh, Thomas and Barrett each asked one question – the latter two asking a procedural question.
So we are left thinking in reality, we do not know what to think. Which is usually the way it goes with the Supreme Court. They may well surprise us. Most likely, we will have their decision by the end of this term, which is the end of June, and we will have to wait until then to see what they do.
In the meantime, arbitration is still lawful in California. Please, do continue to get your handbooks and agreements signed by your employees. Arbitration agreements are still important and class action waivers are still valid to defend against – class actions. Next week, we will discuss arbitration agreements separately versus including them in handbooks – I am going to whet your appetite for that discussion, just to make sure you come back for more.
Until then, stay safe, have a good week, and take deep breaths. The pandemic may be fading, but we still have a good bit of that pandemic-fragility/irritability left. Give yourself and others some grace.
#StandWithUkraine