ALTERNATE DISPUTE RESOLUTION UPDATE
Written by Paul Dubow*
2022 might be dubbed the Arbitration Year of the Supreme Court. The United States Supreme Court issued five arbitration related decisions this year, the highest in over a decade.1 Conversely, the California Supreme Court, for the second consecutive year, did not issue an ADR related decision. The Ninth Circuit issued eighteen ADR related decisions and the Court of Appeal issued 50 decisions. None of the decisions decided by the three courts involved mediation. The total of 73 decisions exceeded the record 64 issued in 2021. A discussion of the five Supreme Court decisions and some significant intermediate appellate court decisions follows.
THE PRIVATE ATTORNEYS GENERAL ACT
Viking River Cruises, Inc. v. Moriana2 is the United States Supreme Court decision that most directly affected California jurisprudence. Viking argued that the holding in Iskanian v. CLS Transportation Los Angeles LLC,3 which barred arbitration of individual and representative actions alleging violation of the Private Attorney Generals Act4 was preempted by the Federal Arbitration Act.5 In Viking, Moriana filed an individual PAGA claim against Viking, her former employer, alleging a violation of the Labor Code and a representative PAGA claim on behalf of her fellow employees. Because she had signed an arbitration agreement with a class action waiver, Viking moved to dismiss the representative claim and compel arbitration of the individual claim. The trial court denied both motions and the Court of Appeal affirmed in an unpublished opinion, a result dictated by Iskanian. The California Supreme Court declined review, but the United States Supreme Court granted Viking’s writ of certiorari.