Sakkab v. Luxottica Retail North America, Inc.

Opinion by Judge MILAN D. SMITH, Jr.; Dissent by Judge N.R. SMITH

OPINION

This appeal presents issues of first impression regarding the scope of Federal Arbitration Act (FAA) preemption, 9 U.S.C. §2 et seq., and the meaning of the Supreme Court’s decision in AT & T Mobility LLC v. Concepcion, 563 U.S. 333 , 131 S.Ct. 1740 , 179 L.Ed.2d 742 (2011). We must decide whether the FAA preempts the California rule announced in Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 , 173 Cal.Rptr.3d 289 , 327 P.3d 129 (2014), which bars the waiver of representative claims under the Private Attorneys General Act of 2004 (PAGA), Cal. Lab.Code § 2698 et seq. After closely examining Concepcion and the Court’s other statements regarding the purposes of the FAA, we conclude that the Iskanian rule does not stand as an obstacle to the accomplishment of the FAA’s objectives, and is not preempted. We reverse the judgment of the district court and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

The Plaintiff-Appellant, Shukri Sakkab (Sakkab), is a former employee of Len- *428 scrafters, an eyewear retailer owned by the Defendant-Appellee, Luxottica Retail North America,…

dissenting:

In 1925, “Congress enacted the [Federal Arbitration Act] in response to widespread • judicial hostility to arbitration.” Am. Express Co. v. Italian Colors Rest, — U.S. -, 133 S.Ct. 2304, 2308-09 , 186 L.Ed.2d 417 (2013). Despite ninety years of Supreme Court precedent invalidating state laws deemed hostile to arbitration, the majority today displays this same “judicial hostility” to arbitration agreements. Our court employed the same “judicial hostility” in Laster v. AT & T Mobility LLC, 584 F.3d 849 (9th Cir.2009), rev’d sub nom. AT & T Mobility LLC v. Concepcion, 563 U.S. 333 , 131 S.Ct. 1740 , 179 L.Ed.2d 742 (2011), for which we were subsequently reversed.

In this case, rather than upholding the purposes of the Federal Arbitration Act (“FAA”), the majority upholds a “judicially created” state rule that prevents parties to an arbitration agreement from agreeing that their future arbitration will address individual claims arising between one employee and one employer. To conclude that the state rule (created by Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal.4th 348 , 173 Cal.Rptr.3d 289 , 327 P.3d 129 (2014)) does not frustrate the purposes of the FAA, the…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHUKRI SAKKAB, an individual, on No. 13-55184 behalf of himself, and on behalf of all persons similarly situated, D.C. No. Plaintiff-Appellant, 3:12-cv-00436-

GPC-KSC

v.

LUXOTTICA RETAIL NORTH OPINION

AMERICA, INC., an Ohio corporation, Defendant-Appellee.

Appeal from the United States District Court for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding

Argued and Submitted June 3, 2015—Pasadena, California

Filed September 28, 2015

Before: Milan D. Smith, Jr., and N. Randy Smith, Circuit Judges, and Joan H. Lefkow,* Senior District Judge.

* The Honorable Joan Humphrey Lefkow, Senior District Judge for the United States District Court for the Northern District of Illinois, sitting by designation. Opinion by Judge Milan D. Smith, Jr.; Dissent by Judge N.R. Smith

SUMMARY**

Federal Arbitration Act / CA Private Attorney General Act

The panel reversed the district court’s order granting Luxottica Retail North America, Inc.’s motion to compel arbitration of claims and…