SCOTUS Argument on Viking River Cruises
Silence can be revealing.
This is particularly the case in the legal sector.
In the context of a hearing or argument, if the judges don’t ask a lawyer questions, it can be incredibly encouraging – or incredibly discouraging. This often means that the judges or judges have already made up their minds after reading the parties’ briefs and simply don’t have any questions or need to hear anything more.
The meaning of silence (or relative silence) should be considered in light of the US Supreme Court’s March 30, 2022 argument in Viking River Cruises vs. Moriana.
Viking River Cruises addresses an issue that will have a significant impact on employers with operations in California – whether claims under the California Private Attorneys General Act (“PAGA”) are subject to the Federal Arbitration Act (“FAA”) such that an arbitration agreement with a class and representative action waiver would be effective in ending PAGA’s massive representative actions regularly filed against California employers, just as these agreements can end post-Epic Systems vs. Lewis.
Given the current make-up of the United States Supreme Court, many pundits predicted a 6-3 decision finding that the FAA is in fact extending PAGA claims.
Following oral argument, during which Viking River Cruise’s attorney was occasionally peppered with questions about PAGA, some commentators now seem to believe that the Court may instead conclude that PAGA claims are not subject to the FAA. .
Respectfully, nothing unexpected happened during the oral argument on Viking River Cruises. And if a surprise is not excluded, nothing happened during the argument that would suggest that the pro-employer decision initially expected will not materialize.
Commentators noted that Viking River Cruises’ attorney was asked pointed questions by the bench. But, above all, not by the whole bench. These pointed questions were asked by the three judges who would be expected to ask these questions – Justices Kagan, Sotomayor and Breyer. The other six judges, predictably, did not join in this pointed questioning by Viking River Cruises’ attorney.
That said, here are some additional observations:
While the three liberal justices asked pointed questions of Viking River Cruise’s lawyer, the six conservatives generally did not do the same with Moriana’s lawyer. They might not be entirely silent, but they were relatively quiet. You can read this a number of ways, but one way to read it is that the nine justices had already made up their minds after reading the detailed account of the case, including many amicus briefs.
Other than a speculation by Judge Breyer about spiders sitting next to contracts, there wasn’t a single issue that lawyers for both sides shouldn’t have anticipated. And both sides actually seem to have anticipated them.
It’s hard to think of anything said by either side that’s different from what’s already been argued in their respective briefs (other than Viking River Cruise’s attorney using part of the rebuttal to respond to the overwhelming number of PAGA shares that have been deposited). They may have used different language than they used in their memoirs, but they seemed to be emphasizing the same points.
There was nothing said on either side that should change the opinion of the judges.
Assuming the Court issues the 6-3 ruling in favor of employers that many have predicted, not only will employers face the impact of this ruling in ongoing PAGA lawsuits involving arbitration agreements – the courts will likely be inundated with thousands of motions to compel arbitration and void PAGA claims — but many employers in California who don’t yet have arbitration programs will definitely want to consider implementing them. They will want to consider the pros and cons of these arbitration agreements.
And they’ll also want to consider California’s AB51, as well as the possibility of responsive legislation removing some or all FAA employment claims, much like the recent amendment removing sexual harassment and assault claims. sexual.
A pro-employer decision in Viking River Cruises will not be the end of this number.
©2022 Epstein Becker & Green, PC All rights reserved.National Law Review, Volume XII, Number 90