The Ninth Circuit inched California closer to clarity on the the scope of preemption of state law by the Federal Arbitration Act. While AT&T Mobility v. Concepcion, 563 U.S. 321 cast a wide net of preemption in favor of arbitration clauses, the width of that net has resulted in a struggle between California courts seeking to apply their state laws and federal courts seeking to apply theirs.
On September 28, 2015, the Ninth Circuit Court of Appeals issued a 2-1 decision in the long-awaited case of Sakkab v. Luxottica Retail North America, Inc. (No. 13-55184, D.C. No. 3:12-cv-00436-GPC-KSC). Sakkab held that a waiver of class actions in an employment agreement was unenforceable to the extent that it preempted state court claims under the California Private Attorney General Act (“PAGA”), affirming the California Supreme Court case of Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348 (2014) (“Iskanian”), which held that employees could not waive their right to bring representative claims under PAGA.