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Viking River Cruises, Inc. v. Moriana

LII note: the oral arguments in Viking River Cruises, Inc. v. Moriana are now available from Oyez . The U.S. Supreme Court has now decided Viking River Cruises, Inc. v. Moriana .

• arbitration
• ALTERNATIVE DISPUTE RESOLUTION

Issues 

Does the Federal Arbitration Act preempt the California Private Attorneys General Act to require state courts to enforce a bilateral arbitration agreement stipulating that an employee cannot raise representative claims?

This case asks the Supreme Court to determine whether the Federal Arbitration Act demands that state courts enforce an arbitration agreement’s waiver of the statutory right of action to collect penalties on behalf of the state, despite state law prohibiting such a contractual waiver. Petitioner Viking River Cruises argues that the Federal Arbitration Act requires that arbitration agreements signed by employees must be enforced as written for claims brought under California’s Private Attorney General Act (PAGA) because such claims are individual disputes and incompatible with the procedures of individual bilateral arbitration. Respondent Angie Moriana counters that PAGA claims involve the state, not the individual, and that PAGA’s anti-waiver rule is necessary to bolster the state’s labor law enforcement. The outcome of this case has important implications for the enforcement of state labor codes, the availability of civil remedies for workers, and the effectiveness of arbitration agreements to resolve employment-related disputes.

Questions as Framed for the Court by the Parties 

Whether the Federal Arbitration Act (“FAA”) requires state courts to a enforce an arbitration agreement that includes a waiver of a statutory right of action to collect penalties on behalf of a state, even when such a waiver is prohibited by the state’s law.

Facts 

From 2016 to 2017, Angie Moriana worked as a sales representative for Viking River Cruises , Inc. (“Viking”), a company that globally operates and sells trips on ocean and river cruise lines. Brief for the Petitioner , Viking River Cruises, Inc., at 12. Before commencing her employment, Moriana signed an agreement with the company that required any dispute arising out of the employment to be submitted to bilateral arbitration . Moriana v. Viking River Cruises, Inc. , at 2. The agreement stipulated that Moriana waived the right to bring a dispute as a class , representative , or private attorney general action. Id . A private attorney general action is a private cause of action brought on the state’s behalf to recover civil penalties. Brief for the Respondent , Angie Moriana, at 10. During her employment, the company allegedly subjected her, along with other sales representatives, to numerous violations of California’s Labor Code. Id. at 8. Subsequently, after the end of her employment, Moriana brought suit against Viking in California state court under the state’s Private Attorneys General Act of 2004 (“PAGA”). Id. at 8. Her complaint pleaded a representative claim seeking recovery of civil penalties on behalf of the State of California and on behalf of similarly aggrieved current and former employees. Moriana v. Viking River Cruises, Inc. , at 1.

Viking sought an order to compel Moriana to submit her PAGA claim to arbitration as an individual claim and sought to dismiss the representative claim. Brief for the Respondent at 9. The trial court denied Viking’s motion to compel arbitration, finding that the individual plaintiff in a PAGA claim acts as a proxy for the state so that the interested party in a PAGA representative claim is the state rather than the plaintiff seeking individual relief. Moriana v. Viking River Cruises, Inc. , at 1. Thus, the trial court found that the California Supreme Court’s holding in Iskanian v. CLS Transportation Los Angeles, LLC , 59 Cal.4 th 348, 327 P.3d 129 (2014) remains good law, finding that state courts cannot enforce arbitration agreements that waive the right to file PAGA representative actions. Id. at 2. On appeal, the California Court of Appeal, Second District , affirmed the trial court’s denial of the motion to compel arbitration. Id. at 2. The California Supreme Court declined to exercise its discretionary review on December 9, 2020. Brief for the Petitioner at 3.

The United States Supreme Court granted Viking’s petition for writ of certiorari on December 15, 2021. Brief for the Petitioner at 1.

Analysis 

The federal arbitration act and preemption.

Petitioner Viking River Cruises contends that Section 2 of the FAA mandates enforcement of arbitration agreements according to their terms, thereby preventing non-bilateral actions by Moriana. Brief for Petitioner, Viking River Cruises , p. 28. To support this assertion, Viking River Cruises points to the language of the FAA and several cases in which the Supreme Court has enforced arbitration agreements that expressly waive the right to pursue class actions or other collective proceedings. Id. at 20. Viking River Cruises asserts that the rigid enforcement of agreed-upon bilateral arbitration stems from its unique attributes, including the lack of appellate review and lower procedural rigor intended to facilitate efficient, low-cost private dispute resolution. Id. at 20–21.

Viking River Cruises argues that the FAA preempts a California rule (the “ Iskanian rule”) established under Iskanian v. CLS Transportation Los Angeles, LLC . Id. at 22–23. In Iskanian , the California Supreme Court addressed the enforceability of an individual, bilateral arbitration agreement where the employee sought to pursue a class action and representative PAGA action. Id. at 9. Viking River Cruises describes the Iskanian rule as stating that the FAA does not preempt privately brought PAGA actions because the FAA governs the resolution of “ private disputes, whereas a PAGA action is a dispute between an employer and the state.” Id. at 11. Viking River Cruises argues, however, that PAGA claims fall under—and are therefore precluded by—the FAA because PAGA claims generate private, individual disputes rather than disputes between the state and an employer. Id. at 35–36. Pointing to the facts of this case, Viking River Cruises notes that the state of California played no role in initiating this litigation. Id. at 36. In addition, Viking River Cruises argues that the FAA preempts the Iskanian rule even if the logic under Iskanian were sound because PAGA actions should not be treated differently from explicitly preempted collection actions, such as class actions. Id. at 23. Viking River Cruises contends that PAGA operates in similar way to other collective actions like class action suits, enabling a plaintiff to procedurally pursue claims or obtain relief on behalf of other people. Id. at 24. As part of this contention, Viking River Cruises argues that PAGA claims “go[] one very large step beyond” other collective actions because they allow plaintiffs to pursue relief for other violations that did not affect them personally. Id.

Respondent Moriana counters that the FAA does not preempt the right to pursue PAGA claims because the employment agreement at issue expressly prevents the pursuit of any PAGA claim in any forum, rather than merely limiting the ability to pursue individual, bilateral claims. Brief for Respondent, Moriana , at 13. To support this assertion, Moriana relies on the Iskanian rule, which conceptualizes PAGA claims for civil penalties as claims in which the individual PAGA plaintiff “represents the State in asserting its claim.” Id. at 13–14. Moriana contends that the employment agreement at issue “unequivocally requires an employee to ‘forgo PAGA claims’” because it bars all PAGA actions generally. Id. at 14. Based on this contention, Moriana claims that FAA does not and should not preempt the rights of individual employees to pursue PAGA claims because doing so would effectively eliminate employees of their statutory rights under PAGA. Id. at 14–15.

Moriana emphasizes that questions of statutory preemption depend on a statute’s text and structure, and Moriana argues that the FAA contains no such text or structure to support preclusion of PAGA claims. Id. at 15. Noting that Section 2 of the FAA establishes the enforceability of contract provisions “to settle by arbitration a controversy,” Moriana contends that this specific language is meant to enforce agreements to arbitrate, not to prevent claims by “precluding the parties from asserting them in arbitration or court.” Id. at 16. According to Moriana, the FAA thus only compels parties to submit disputed issues to an arbitrator. Id. at 17. Furthermore, Moriana highlights language from other sections in the FAA to argue that the FAA specifically protects issues that are referrable to arbitration and does not bar claims, like PAGA claims, that parties have agreed are not addressable through arbitration. Id. at 17–18. Thus, Moriana concludes that neither the FAA’s text nor structure support the ability of an arbitration agreement to waive a plaintiff’s statutory claims in their entirety. Id. at 19–20.

PROCEDURAL COMPATIBILITY BETWEEN THE FAA AND PAGA

Viking River Cruises argues that mandated access to PAGA proceedings, even in the presence of exclusive bilateral arbitration agreements, would lead to inefficient, costly procedural complications. Brief for Petitioner, at 26. Viking River Cruises points to the features of bilateral arbitration that enable quick dispute resolution, such as reaching the merits of a claim without the fact determinations required under PAGA. Id. at 27. Viking River Cruises argues that allowing PAGA claims to preempt enforcement of contractual waiver under the FAA would open the door to “unwieldy proceedings” that involve hundreds of different plaintiffs. Id. at 28. Viking River Cruises emphasizes that such a result could generate procedural difficulties due to the ability for a PAGA action to encompass a large number of Labor Code disputes unrelated to the individual employee that had agreed to bilateral arbitration. Id. at 27. Furthermore, Viking River Cruises notes that PAGA actions themselves impose procedural burdens that “far exceed[] those in bilateral arbitration.” Id. at 28. For example, Viking River Cruises asserts that involving a large number of potentially aggrieved employees creates the likelihood that an individual employee initiating the PAGA action will not have access to central pieces of discovery for other employees. Id. at 28–29.

In contrast, Moriana asserts that arguments about procedural incompatibility between the FAA and PAGA are misguided because the FAA features no text, structure, or content that suggests that its purpose includes preventing states from authorizing claims of “magnitude and complexity . . . inconsistent with a defendant’s view of what is suitable for arbitration.” Brief for Respondent, at 26–27. Moriana contends that the FAA’s primary purpose was to enable parties to select arbitration as their dispute resolution mechanism, not to extinguish the right to arbitrate or litigate a claim based on its complexity or scope. Id. at 27. Thus, Moriana argues that the FAA embodies a Congressional policy for enabling parties to select arbitration as the forum for dispute resolution, rather than enabling parties to force forfeiture of submitting claims in their entirety. Id. at 24–25. Furthermore, Moriana notes that the Supreme Court has recognized arbitration’s capacity for resolving complex, high-stakes issues involving multiple parties. Id. For example, Moriana refers to Supreme Court decisions holding that complex securities-fraud and RICO claims are arbitrable despite their complexity and consideration of multiparty effects. Id. at 28 . Moriana contends that such decisions undermine Viking River Cruises’ argument that the FAA is wholly incompatible with claims requiring consideration of effects on those other than the plaintiff, which would allegedly necessitate enforcement of waivers to such claims. Id.

Discussion 

Paga litigation burden.

In support of Viking, Uber Technologies, Inc . and Postmates, LLC (“Uber”) argue that, in the wake of Iskanian , employers face an “explosive growth of PAGA claims.” Brief of Amici Curiae Uber Technologies, Inc. and Postmates, LLC (“Uber”) , in support of Petitioner at 13 . Uber asserts that PAGA claims have overwhelmingly replaced class actions for California Labor Code disputes. Id. at 14. Moreover, Uber points out that California Supreme Court’s application of the Labor Code to out-of-state employers will result in increased PAGA litigation for out-of-state companies. Id. at 15. The Restaurant Law Center emphasizes that PAGA’s purpose was to decrease the administrative burden of enforcement by allowing employees to seek civil penalties on behalf of the State. Brief of Amicus Curiae of Restaurant Law Center , in support of Petitioner at 20. However, Iskanian and subsequent cases, according to Restaurant Law Center, have undermined PAGA’s purpose by allowing employees to avoid contractual obligations and submit an unworkable number of PAGA claims similar to class actions. Id. at 21. The Restaurant Law Center asserts that increased case burden in courts will result in less recovery for employees and in increase litigation time and costs. Id.

Civil Procedure and Arbitration Law Professors (the “Professors”), in support of Moriana, counter that the increased influx of PAGA actions does not result in enhanced administrative burden because courts are already accustomed to dealing with fact-intensive, complex claims like PAGA actions. Brief of Amici Curiae Civil Procedure and Arbitration Law Professors (“Professors) , in support of Respondent at 9–10. The Professors assert that California courts can parse which cases are too unmanageable for court and would better proceed in arbitration. Id. at 12. Furthermore, Steve Chow, a small business owner, argues that PAGA waivers would detrimentally impact small businesses. Brief of Amicus Curiae Steve Chow , in support of Respondent at 2. Chow posits that, unlike large corporations, small businesses would be forced to forego PAGA waivers because they cannot afford arbitration costs. Id. at 8. Because large corporations can easily disregard the Labor Code’s strict measures vis-à-vis PAGA waivers, Chow argues, “mom-and-pop shops” that will continue to be sued under PAGA will ultimately face a major competitive disadvantage in the market. Id. at 9.

REMEDIES FOR EMPLOYEES

The Retail Litigation Center, Inc. , and the National Retail Federation (“RLC”), in support of Viking, contend that PAGA deprives employees of the primary benefit of bilateral arbitration agreements: avoiding the unpredictability and expenses of litigation. Brief of Amicus Curiae Retail Litigation Center, Inc., and the National Retail Federation (“RLC”) , in support of Petitioner at 2. Because employees can always pursue the same claim in state courts, the RLC attests that parties will be hindered from reaching complete agreement and resolution. Id. at 2–3. The RLC emphasizes that allowing an employee to bring a representative PAGA claim will over-include other similarly situated employees, who will then be automatically foreclosed from pursuing the benefits of arbitration. Id. at 3–4. Additionally, the California Business and Industrial Alliance (“CABIA”) argues that the litigation of PAGA claims results in significantly diminish recovery payments for employees compared to arbitrated PAGA disputes. Brief of Amicus Curiae California Business and Industrial Alliance (“CABIA”) , in support of Petitioner at 7. CABIA also asserts that employees must wait nearly a year longer for awards from litigated PAGA cases than awards from the California Labor and Workforce Development Agency (“LWDA”). Id. The CABIA contends that lack of a waiver does not serve public interest because employers pay nearly $300,000 more per PAGA case in comparison to a LWDA case. Id.

In support of Moriana, California Rural Legal Assistance, Inc. , and California Rural legal Assistance Foundation (“CRLA”) highlight California’s history of protections for workers through administrative hearings and civil actions. Brief of Amici Curiae California Rural Legal Assistance, Inc., and California Rural legal Assistance Foundation (“CRLA”) , in support of Respondent at 10. CRLA asserts that California enacted PAGA to curb the widespread violation of labor laws. Id. at 14–15. CLRA points out that wage theft is a particularly harmful issue in the low-wage worker sector and contends that PAGA properly protects the welfare of workers by strengthening enforcement of civil penalties for violations. Id. at 17-18. Moreover, PAGA serves the interests of employees, CRLA argues, by reimbursing them for taking on the burden of enforcing labor law on behalf of the state. Id. at 18. Public Justice asserts that the waiver of representative actions completely deprives employees of their statutory rights to recover. Brief of Amicus Curiae Public Justice , in support of Respondent at 12-13. Public Justice asserts that representative actions are frequently the only avenue for individuals to seek justice and PAGA waivers would allow arbitration agreements to dispossess people of their right to seek substantive remedies. Id. at 15.

Conclusion 

Written by:.

Charlene Hong

Andrew (Keum Yong) Lee

Micaela Lucero

Acknowledgments 

Additional resources .

• Grace Bennett, Viking River Cruise, Inc. v. Moriana : The Death of PAGA and Another Arbitration Workaround ? OnLabor (Mar. 9, 2022).
• Julia Trankiem & Michael Pearlson, How Justices’ Upcoming PAGA Ruling May Affect Employers , Law360 (Mar. 7, 2022).
• Daniel Wiessner, California AG Tells SCOTUS Arbitration Exemption Key to Enforcing Labor Laws , Reuters (Mar. 9, 2022).

Breaking News

Viking River Cruises, Inc. v. Moriana

Disclosure : Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is counsel on an amicus brief in support of the petitioner in this case.

Holding : The Federal Arbitration Act preempts a rule of California law that invalidates contractual waivers of the right to assert representative claims under PAGA — the California Private Attorneys General Act — insofar as that rule precludes division of PAGA actions into individual and non-individual claims through an agreement to arbitrate.

Judgment : Reversed and remanded , 8-1, in an opinion by Justice Alito on June 15, 2022. Justice Alito delivered the opinion of the court, in which Justices Breyer, Sotomayor, Kagan, and Gorsuch joined, in which Chief Justice Roberts joined as to Parts I and III, and in which Justices Kavanaugh and Barrett joined as to Parts III. Justice Sotomayor filed a concurring opinion. Justice Barrett filed an opinion concurring in part and concurring in the judgment, in which Justice Kavanaugh joined, and in which Chief Justice Roberts joined as to all but the footnote. Justice Thomas filed a dissenting opinion.

SCOTUSblog Coverage

• Supreme Court, once again, rejects California treatment of arbitration (Ronald Mann, June 16, 2022)
• Announcement of opinions for Wednesday, June 15 (complete) (Angie Gou, June 15, 2022)
• Conservative justices seem again poised to reverse California courts on arbitration issue (Ronald Mann, April 1, 2022)
• Justices to consider California’s private-attorney-general exception to arbitration clause (Ronald Mann, March 29, 2022)
• Court sets quiet March argument calendar (Amy Howe, January 28, 2022)
• Justices will take up cases on arbitration, locomotives, and Congress’ war powers  (Amy Howe, December 15, 2021)
• First Amendment questions and California arbitration battles (Mitchell Jagodinski, May 28, 2021)

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Viking river cruises v. moriana (2022).

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VIKING RIVER CRUISES v. MORIANA is a case that was decided by the Supreme Court of the United States on June 15, 2022. The case was argued before the court on March 30, 2022.

In a 8-1 ruling, the U.S. Supreme Court reversed the ruling of the lower court and remanded the case for further proceedings consistent with the Court's opinion. The case originated from the California State Trial Court.

[1]

• 1 About the case
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About the case

• Subject matter : Unions - Arbitration (in the context of labor-management or employer-employee relations) (cf. arbitration)
• Petitioner : employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
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• Respondent type : Employee, or job applicant, including beneficiaries of
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• Citation : Unknown
• How the court took jurisdiction : Cert
• What type of decision was made : Opinion of the court (orally argued)
• Who was the chief justice : John Roberts
• Who wrote the majority opinion : Samuel Alito

These data points were accessed from The Supreme Court Database, which also attempts to categorize the ideological direction of the court's ruling in each case. This case's ruling was categorized as conservative.

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Viking River Cruises, Inc. v. Moriana Oral Argument

The Supreme Court heard oral argument in Viking River Cruises, Inc. v. Moriana , a case on civil procedure and California state law.

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The Supreme Court Screwed Over Workers Again—but Not As Badly As It Could Have

A mixed decision leaves some hope that blue states can still combat wage theft..

Since the mid-1980s, corporations have been laser-focused on gutting workers’ ability to enforce fundamental workplace protections in courts. On Wednesday, the Supreme Court handed them a big win—albeit one that holds out a glimmer of hope for states seeking to enforce their laws.

In Viking River Cruises, Inc. v. Moriana , the court held that the Federal Arbitration Act—a 1925 law intended to aid enforcement of contracts to arbitrate conflicts between businesses in commercial transactions—preempts a California rule that has allowed workers to hold lawbreaking employers accountable for workplace-wide violations before judges and juries. The decision represents yet another blow to workers from a Supreme Court dominated by corporate interests.

How did we get here? Decades of underfunding and understaffing left federal and state agencies unable to fully enforce labor standards. Employers took advantage of a deregulated economy, and wage theft was at epidemic levels throughout the country in the 2000s. One study found that 26 percent of low-paid workers in three cities were paid less than the legally required minimum wage, that 19 percent had unpaid or underpaid overtime violations, and that 68 percent had experienced at least one pay-related violation in the previous week. Another study estimated that employers stole $50 billion per year from workers’ wages.

In response to the labor standards underenforcement crisis, California passed the Private Attorneys General Act (PAGA), the law at the heart of Viking River Cruises . As several amicus briefs in the case highlighted, PAGA was enacted to expand the state’s workplace enforcement capacity and root out workplace-wide violations by allowing workers to seek civil penalties for violations and empowering them to seek penalties for all violations across a workplace in a single lawsuit. The lion’s share of the penalties (75 percent) goes to the state, with the remainder distributed among affected workers.

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PAGA gives California workers—and the attorneys who represent them—an important tool to root out workplace-wide violations and deter employer lawbreaking. At the same time, it generates revenue for the state to fund future enforcement work aimed at creating a culture of compliance in industries with historically high rates of violations. One report found that PAGA improved employer compliance, generated over $88 million in revenue in 2019 alone, and funded a significant number of state Labor Department positions and enforcement initiatives.

Unfortunately, corporations had already been working to limit worker lawsuits—the other critical component of workplace law enforcement—through forced arbitration provisions and class action waivers. A series of Supreme Court decisions transformed the 1925 Arbitration Act into a shield that allowed corporations to unilaterally impose arbitration provisions on their employees and shunt workers’ cases into private, secret arbitration—despite ample evidence that Congress did not intend the law to apply to employment contracts. Most egregiously, in 2018 the court’s conservative majority held in Epic Systems v. Lewis that class and collective action waivers included in arbitration provisions were enforceable—meaning that where employers imposed such provisions, they could force workers to proceed one by one.

As a direct result of the Supreme Court’s misreading of the Federal Arbitration Act, forced arbitration provisions and class action waivers are now everywhere, imposed when workers start a job, or at any time after they’ve been hired, but usually buried in fine print. In forced arbitration, there’s no judge or jury. Instead, an arbitrator—typically a corporate lawyer or a former judge—is paid by the hour to adjudicate a claim. Workers lack the protections of being in court, including the right to fully discover information in the employer’s possession and the right to appeal.  More than 60 million workers are now subject to forced arbitration provisions, including over 59 percent of Black workers and nearly 58 percent  of women workers, and the number is expected to dramatically increase . And because most workers subject to forced arbitration abandon their claims rather than proceed alone in a stacked forum, forced arbitration is helping employers pocket billions in stolen wages.

That brings us to Viking River Cruises . California’s Supreme Court had adopted a rule, in the Iskanian case, recognizing that a worker who brings a PAGA action to root out workplace-wide violations is doing so on behalf of the state. And because the state was not a party to any arbitration provision, the worker’s PAGA claims—for both violations that affected them personally and for workplace-wide violations that affected other workers—could not be sent to arbitration. This allowed PAGA suits to continue, and because PAGA penalties can become quite substantial—for example, $100 per violation per affected worker, per pay period—employers can face hefty costs for violating the law. In that way, PAGA has proved a major deterrent for employer lawbreaking.

That’s why Viking River Cruises (and a host of massive corporations, including Uber ) attacked the California rule. They did so by arguing that PAGA actions were nothing but a type of class action. Viking River Cruises insisted that because of the class action waiver it had imposed on the worker in the case, Angie Moriana, it could force her to waive any ability to bring a PAGA claim for violations that affected other workers, both in court and in arbitration, per the court’s 2018 Epic Systems decision. Because any one worker’s PAGA claim will be low, and the worker will only recover 25 percent of it themselves, such a rule would eliminate the incentive for a worker subject to a forced arbitration provision to bring a PAGA action in the first place.

The court’s decision, an 8–1 result, did not go as far as the corporations wanted—in part, perhaps, because it was tempered by the liberal justices. But the decision still deals a serious blow to PAGA as currently enacted and interpreted. Since PAGA claims cannot be split up, the court said California had coerced employers into giving up their right to arbitrate their PAGA claims on an individual, one-by-one basis in arbitrations, and that the FAA therefore preempted California’s rule in Iskanian . As a result, Viking River Cruises can force Moriana, and workers like her, to take their individual PAGA claim into arbitration.

It’s breathtaking to see the court evince such deep concern about the allegedly coercive effects of PAGA for employers while ignoring the coercion inherent when employers impose forced arbitration onto workers as a condition of employment.

The court’s decision is, for now, not all bad news for employees. The majority indicated that while Viking River Cruises could force Moriana to arbitrate her individual claim, it could not completely extinguish the claims she had filed on behalf of the state for violations affecting other workers. However, because the majority determined that PAGA does not allow a worker to continue a suit only for claims affecting other workers, those other claims must be dismissed. But the majority left some room for California to make changes to PAGA. As Justice Sonia Sotomayor elaborated in her concurring opinion, California courts or the state legislature can clarify that workers may still litigate their non-individual claims—that is, their claims for violations affecting other workers—even if their individual PAGA claims are sent to arbitration.

Some are interpreting these limitations on the court’s holding as a sign that PAGA can survive as an effective tool for enforcement of workplace protections. Advocates should absolutely seize on those limitations and fight to restore California’s capacity to hold lawbreaking corporations accountable for workplace-wide violations. And they should do the same in states like New York, which has also been considering a bill inspired by PAGA .

But we should be concerned with a newly constituted Supreme Court that has shown itself to have no regard for precedent and to be utterly willing to use its power to achieve its desired results. Any limitations suggested by the majority in Viking River Cruises do not signal such limitations will be respected in the future, no matter what the majority or Justice Sotomayor says. (Notably, Justices Amy Coney Barrett, John Roberts, and Brett Kavanaugh refused to join these potentially limiting portions of the opinion.)

All told, Viking River Cruises underscores the need for legislative reform to the Federal Arbitration Act. Congress made a significant step forward this year by restoring workers’ rights to go before judges and juries, and to do so collectively, in sexual harassment and assault cases. Now it must finish what it started by passing the Forced Arbitration Injustice Repeal (FAIR) Act.

In the meantime, agencies can act to protect workers. For example, the Department of Labor can roll back Trump-era guidance that the agency deprioritize workplaces with forced arbitration and instead publicly signal that it is directing enforcement resources toward such workplaces, particularly in sectors where compliance is low. And the Equal Employment Opportunity Commission should reinstate that agency’s enforcement guidance on forced arbitration, which the agency rescinded in the Trump era. These actions would send powerful messages to employers that their use of forced arbitration will only invite more scrutiny.

Supreme Court Sides With Viking River Over Arbitration of California PAGA Claims

On june 15, 2022, the supreme court of the united states ruled in favor of viking river cruises inc. in a case over whether it could use an arbitration agreement to force a lawsuit brought under california’s private attorneys general act (paga) on behalf of aggrieved employees into arbitration. in viking river cruises, inc. v. moriana , no. 20-1573, the supreme court’s highly anticipated decision, the court reasoned that the federal arbitration act (faa) requires the enforcement of an arbitration agreement that waived an employee’s right to bring individual claims through paga and that once those individual claims are sent to arbitration there is no standing to bring representative claims for violations of the california labor code on behalf of other aggrieved employees..

On June 15, 2022, the Supreme Court of the United States ruled in favor of Viking River Cruises Inc. in a case over whether it could use an arbitration agreement to force a lawsuit brought under California’s Private Attorneys General Act (PAGA) on behalf of aggrieved employees into arbitration.

In Viking River Cruises, Inc. v. Moriana , No. 20-1573, the Supreme Court’s highly anticipated decision, the Court reasoned that the Federal Arbitration Act (FAA) requires the enforcement of an arbitration agreement that waives an employee’s right to bring individual claims through PAGA and that once those individual claims are sent to arbitration there is no standing to bring representative claims for violations of the California Labor Code on behalf of other aggrieved employees. However, the Court left open the possibility that California could adjust PAGA to permit representative claims to survive and be brought in court. In short, while a victory for employers, this decision may not be the final word on the interplay between PAGA and the FAA.

Angie Moriana, a former sales representative for Viking River Cruises, sought to prosecute claims for California wage and hour violations through PAGA, which enables employees to bring claims for violations of the California Labor Code on behalf of all other allegedly aggrieved employees. The law allows for civil penalties against the employer, which are awarded per person and can grow exponentially, depending on the number of employees potentially affected.

Viking River Cruises argued the claims were subject to individualized arbitration under an arbitration agreement Moriana signed as a condition of her employment. While arbitration agreements with class action waivers have been enforced by the high court, California state courts had previously held such waivers are unenforceable in PAGA cases.

The Supreme Court held that the FAA preempts the California rule that PAGA actions cannot be forced into arbitration “insofar as it precludes division of PAGA actions into individual and non-individual claims through an agreement to arbitrate.” This means that the PAGA representative claims may not be dismissed simply because they are representative in nature but that once the plaintiff’s individual claim is sent to arbitration, California law does not provide standing for that person’s representative claims to continue in court or arbitration. This effectively provides a way for employers to minimize the risk of PAGA claims with a properly crafted arbitration agreement. It remains to be seen whether California will adjust PAGA and what the impact of any adjustment will be.

The Supreme Court thus reversed the California Court of Appeal’s decision allowing Moriana’s PAGA action to continue and remanded it back to the California court. However, the high court’s reasoning may leave the door open for the California courts or legislature to provide standing for representative claims to continue either in court or in arbitration, separate from an individual PAGA claim.

Key Takeaways

The ruling follows the Supreme Court’s trend of enforcing bilateral arbitration agreements pursuant to their terms, although it is significantly more nuanced than some advocates wanted. Importantly, the decision in Viking River Cruises indicates employers may be able to use properly drafted arbitration agreements to limit liability for representative claims, at least for now. However, the high court’s reasoning could leave room for California to allow representative claims to proceed separate from individual claims. In the meantime, (1) those employers with operations in California and arbitration agreements may want to update their agreements, and (2) those employers with operations in California but without arbitration agreements may want to reassess whether to roll out an arbitration agreement in order to take advantage of today’s ruling.

Ogletree Deakins’ California Class Action and PAGA Practice Group will continue to monitor developments regarding PAGA and the enforcement of arbitration agreements and will provide updates on the firm’s California  and  Arbitration and Alternative Dispute Resolution blogs. For more information on this decision, please join us for our upcoming webinar, “ The Supreme Court’s Viking River Ruling and What It Means for Arbitration Agreements in California ,” which will take place on Tuesday, June 21, 2022, from 12:00 noon to 1:00 p.m. ET. The speakers, Alexander (Zander) Chemers and Jack Sholkoff , will discuss the key takeaways from the decision. Register here . Important information for employers also is available via the firm’s  podcast  programs.

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Viking River Cruises urges Supreme Court to curb Calif. worker lawsuits

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The long-awaited us supreme court decision in viking rivers clarifies that individual paga claims can be compelled to arbitration.

On Wednesday, June 15, 2022, the United States Supreme Court issued its long-awaited ruling in Viking River Cruises v. Moriana , addressing the arbitrability of claims under California’s Private Attorneys General Act (PAGA). [1]

The Court held that the Federal Arbitration Act (FAA) conflicts with and displaces a rule invented by the California Supreme Court in 2014 in its Iskanian v. CLS Transp. Los Angeles, LLC opinion.  Until today, that rule precluded division of individual PAGA claims from non-individual PAGA claims, effectively precluding California courts from compelling individual PAGA actions to arbitration, even when the PAGA plaintiff employee had agreed to individual arbitration of any employment disputes.  Because the FAA preempts the Iskanian indivisibility rule, the Court held that the plaintiff employee should have been compelled to individually arbitrate her PAGA claims (including the State’s portion of any PAGA penalties) pursuant to her agreement with Viking River Cruises.  Importantly, the Court specifically rejected the argument that PAGA claims lie outside the FAA’s scope merely because the signatory employee is acting as an agent of the State and the State is not a party to the arbitration agreement.

With respect to Moriana’s non-individual PAGA claims against Viking River (i.e., the claims Moriana asserted on behalf of other aggrieved employees), the Court held that nothing in the FAA preempts the Iskanian rule precluding PAGA waivers.  That said, the Court recognized that once Moriana’s individual PAGA claims were compelled to arbitration, Moriana would lack standing to pursue PAGA claims on behalf of other employees in any forum.  The Court therefore held that Moriana’s PAGA claims on behalf of other employees should be dismissed.

The practical effect of the decision will be that California courts will now enforce arbitration agreements requiring individual arbitration of wage and hour claims as to PAGA claims (as long as those agreements are otherwise enforceable).  In such cases, arbitration will preclude PAGA claims on behalf of other employees.  Likely to be litigated, however, are arbitration agreements that carve out PAGA claims from their scope, that purport to waive the right to assert PAGA claims altogether, or that contain “poison pill” or restrictive severability language.

The Viking River ruling will be extremely beneficial to employers who have or who now implement enforceable and well-drafted arbitration agreements that require individual arbitration of PAGA and non-PAGA employment claims.  For such employers, PAGA will no longer function as a mechanism for the plaintiffs’ bar to avoid arbitration or coerce class action style settlements based on technical Labor Code violations.

Please contact your Hill Farrer attorney or any member of our Labor and Employment department to determine whether you need to revise your employee arbitration agreement in light of Viking River .  To the extent you have not rolled out an arbitration policy or agreements, now is a great time to do so thanks to Viking River ’s clarification that even PAGA claims can be individually arbitrated.

[1] As a reminder, PAGA is a statute that allows employees to seek civil penalties from an employer based on all aggrieved employees who suffered underlying violations of the Labor Code during the statutory period.  The employee suing the employer for PAGA penalties acts as an agent of the State of California.  The State gets 75% of any penalties recovered.

Wedbush Waived Arbitration Right by Delaying After Viking River

By Maia Spoto

A California appeals court on Thursday shot down a bid by investment firm Wedbush Securities Inc. to compel a class of its financial advisers into arbitration, saying the company waited too long to act on its alleged right to arbitrate.

Wedbush might have had a new right to arbitrate wage and hour claims from its adviser employees after the US Supreme Court’s decision in Viking River Cruises v. Moriana , wrote Associate Justice Thomas M. Goethals in a published opinion for California’s Fourth District Court of Appeal, but the firm waived any potential right by failing to promptly compel arbitration ...

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The 7 Most Romantic Cruises for Couples to Take in 2024

Posted: November 8, 2023 | Last updated: November 8, 2023

Planning the ultimate couple’s getaway? As much as we love exploring Napa , Palm Beach , and the Hudson Valley , there’s something to be said about investing in an international vacation. Before shelling out for a boutique hotel, though, consider booking a cruise that can be just as romantic (yes, really). We're not talking about old-school cruises with cramped rooms, mediocre buffets, BINGO nights and overcrowded pool decks. These luxury cruises are here to blow your mind with amenities such as private butler service, world-class spas, delicious cuisine (hello, 24/7 complimentary caviar!) and palatial cabins with expansive ocean views, private jacuzzis and more.

Whether your idea of the perfect vacation is a European river adventure, an adults-only South Pacific cruise, or a party-all-night Caribbean rendezvous, there’s a cruise for you. To prove it, we rounded up the seven best cruises for couples. Check out these romantic options, below.

Crystal Cruises

If you’re looking to book a beautiful vacation on and off the ship, Crystal Cruises is worth considering. In addition to well-appointed palatial suites and a stunning spa (complete with massages, facials, naturopathic healing, and gentleman’s grooming services), Crystal Cruises is a foodie’s paradise. With nine distinct culinary options ranging from American and Italian to Japanese and Peruvian food, there’s something for everyone.

When booking a Crystal Cruise for your couple’s getaway, go all out with a Veranda or Penthouse suite. That way, you’ll have plenty of space, as well as the opportunity to take in the open seas from your very own balcony. If you’re toying with the idea of taking a sabbatical and making the absolute most of it, Crystal Cruises does have a World Cruise scheduled to set sail in 2025. The 123-night cruise will explore 62 destinations and 31 countries for what’s sure to be the trip of a lifetime.

Explore Crystal Cruises

Virgin Voyages

If your idea of the perfect couple’s vacation is one without kids, Virgin Voyages is the way to go. With destinations in the Caribbean, Europe, and the South Pacific—just to name a few—Virgin Voyages offers unforgettable oceanic excursions via its four-ship fleet.

For couples in the U.S., consider hopping about The Scarlet Lady, a large-scale ocean liner with a 2,762 sailor capacity. As the name suggests, The Scarlet Lady is a ship with decor and experiences drenched in sultry red. When you set sail on The Scarlet Lady (or any Virgin Voyages ship), you can anticipate all-inclusive cuisine, non-alcoholic beverages, group workouts, and Wi-Fi. While the beverage package is an additional cost, the adults-only landscape makes it worth it.

As for the cabins, they’re all chic but the Sea Terrace or Rockstar Quarters are the way to go for a truly unforgettable couple’s escape. If you go with the latter, you’ll even have your own private terrace jacuzzi.

Explore Virgin Voyages Cruises

Scenic Luxury Cruises & Tours

While ocean cruises are most common, Scenic Luxury Cruises & Tours makes a case for river excursions, too. That said, if you and your partner love river life and taking in the city shores, exploring new cities and towns as you go, you’ll fall head over heels for Scenic Luxury Cruises & Tours.

In addition to dozens of oceanic adventures, the cruise line offers cruise explorations of nine of the world’s most iconic rivers, including the Seine, Rhine, Mekong, and Bordeaux rivers. If you ask us, it doesn’t get much better than the Scenic Gem, which winds up and down the Seine over the course of eight days and features stops in Paris, Bordeaux, Burgundy, and Normandy.

One thing to note: Since this river cruise is all about luxurious sleep set-ups, delicious food, and awe-inspiring excursions, there aren’t as many wellness and leisure amenities aboard the ship (though, there is a small gym). That said, the all-inclusive cruise line offers butler service for all suites to boot, so if your goal is to make your partner feel pampered, it’s worth looking into.

Explore Scenic Luxury Cruises and Tours

Viking Cruises

If you love the idea of cruising a river with your partner but are hoping for a lengthier aquatic adventure with striking cabins, Viking Cruises is the way to go. Although the cruise line offers a variety of oceanic cruises, the river excursions are what it’s known for. To make the most of the experience, we suggest going all out with a Veranda or Explorer Suite (both of which have balconies for you and your beloved to enjoy) for the Grand European Tour , which explores 13 cities and four countries across 15 days, with the option to personalize the experience with three pre-cruise and four post-cruise overnights.

Best of all, the trip comes with 12 guided tours, so you’ll be immersed in the culture of each of the cities you visit. (FYI: If you’re looking for a domestic cruise, Viking also has a Mississippi cruise which explores the river for eight to 22 days, depending on which option you book.)

Explore Viking Cruises

Silversea is dubbed the “crown jewel” of the Royal Caribbean Group. The all-inclusive cruise line self-proclaimed the label but with an offering so vast, we’d say it has earned it, too. Aboard Silversea ships, guests can enjoy around-the-clock gourmet dining, scrumptious craft cocktails and bubbly Champagne, butler service, and 24/7 access to complimentary caviar.

Suffice to say, it’s a couple’s paradise. All you have to do is pick which destination and duration aligns best with your dream vacation vision. As for the ship, the Silver Dawn is a popular pick, especially with its all-new, ultra-chic spa, OTIVM. Whatever you do, when booking, consider upgrading to a Superior or Deluxe Veranda Suite to make the most of your time on the water.

Explore Silversea Cruises

Royal Caribbean

Icon of the Seas is one of the latest ships to join Royal Caribbean’s fleet and while it still offers plenty of family-friendly, price-conscious staterooms, the vessel is a dream for vivid voyagers with a passion for great food, entertaining nightlife, and tranquil spa experiences. Complete with a sports and arcade bar, karaoke bar, a casino, and an English pub, the Icon of the Seas has plenty to offer night owl couples looking to explore the Caribbean.

Of course, it also has an impressive seven pools, not to mention the largest waterpark at sea. While you might think that that means kids will be everywhere you look, the ship actually has an area dedicated for families, as well as adult-only aqua escapes. As for the cabins, they’re spacious, well-lit, and equipped with floor-to-ceiling views of the ocean (if you book an ocean-view room). If you ask us, though, the ultimate couple’s vacation calls for upgrading to a Sunset Corner Suite.

Explore Royal Caribbean Icon of the Seas

Windstar Cruises

Whether you’re in search of peaceful tranquility, unbelievable gastronomic delights, invigorating on-shore excursions, or merely a more intimate small-scale cruise experience, Windstar Cruises is worth considering. The six-ship fleet features smaller capacities, each carrying no more than a few hundred guests. For the most intimate experience, you’ll want to book the Wind Star or Wind Spirit, which both carry no more than 148 guests.

Just keep in mind, since these are smaller ships, there aren’t balcony rooms—just ocean view. Still, with destinations in Asia, Australia and New Zealand, Canada and New England, the Caribbean, the Mediterranean, and more, the cultural experiences, and the James Beard-partnered culinary program will all but make up for it.

Explore Windstar Cruises

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Balderas v. Fresh Start Harvesting, Inc.

The case involves Lizbeth Balderas, a former employee of Fresh Start Harvesting, Inc., who filed a complaint for civil penalties under the California Labor Code Private Attorneys General Act of 2004 (PAGA) on behalf of herself and 500 other current and former employees. Balderas alleged that Fresh Start violated labor laws by not providing required meal and rest breaks, providing inaccurate wage statements, making untimely wage payments, and failing to pay wages at termination. Balderas did not file an individual claim but proceeded solely under PAGA, representing all aggrieved employees. The trial court struck Balderas's complaint, ruling that she lacked standing to bring a representative PAGA action on behalf of other employees because she did not allege an individual claim in the action. The court relied on language from a United States Supreme Court decision that had incorrectly recited California law on PAGA standing. The Court of Appeal of the State of California Second Appellate District Division Six reviewed the case. The court concluded that Balderas, as an alleged aggrieved employee who was subject to alleged Labor Code violations by Fresh Start, may bring a representative PAGA action on behalf of herself and other Fresh Start employees, even though she did not file an individual cause of action seeking individual relief for herself in this action. The court held that the trial court erred by relying on the United States Supreme Court decision, which was incorrect on PAGA standing requirements. The court reversed the order striking the pleading.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

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