On November 16, 2016, the First Circuit Court of Appeal certified for publication its opinion in the Tanguilig v. Bloomingdales, Inc. case (San Francisco City and County Super. Ct. No. CGC-14-541208), which addressed the enforceability of PAGA waivers pursuant to Iskania v. CLS Transportation Los Angeles, LLC. Specifically, Bloomingdales moved to compel arbitration of Tanguilig’s ” individual PAGA claim.” The trial court denied the motion and the Appellate Court affirmed, holding that “Iskanian v. CLS Transportation Los Angeles, LLC…and consistent with the Federal Arbitration Act (FAA)(9 U.S.C. et seq.), a PAGA representative claim is non waivable by a plaintiff-employee via a pre-dispute arbitration agreement with an employer, and a PAGA claim (whether individual or representative) cannot be ordered to arbitration without the state’s consent.” The Appellate Court reasoned that, whether a PAGA claim is brought in an individual or representative capacity, the real party in interest is the state. Since a claim cannot be ordered to arbitration without the consent of the real party in interest, the individual v. representative nature of the PAGA claim was not relevant to the analysis. Rather, the analysis turned on the absence of the state’s consent to arbitration.
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