Silence will be telling.
That’s particularly so in the authorized trade.
In the context of a listening to or oral argument, if judges or justices don’t ask an legal professional a query, it may be extremely encouraging – or extremely discouraging. It typically signifies that the judges or justices have already made up their minds after having learn the events’ briefs and easily don’t have any questions or don’t want to listen to something extra.
The which means of silence (or relative silence) is one thing to be thought-about in gentle of the March 30, 2022 United States Supreme Court oral argument in Viking River Cruises v. Moriana.
Viking River Cruises addresses a problem that can have far-reaching affect upon employers with operations in California – whether or not claims beneath the California Non-public Attorneys Normal Act (“PAGA”) are topic to the Federal Arbitration Act (“FAA”) such that an arbitration settlement with a class and consultant motion waiver could be efficient to halt the large PAGA consultant actions filed with regularity in opposition to California employers, simply as these agreements can halt class actions post-Epic Techniques v. Lewis.
Given the present composition of the United States Supreme Court, many pundits predicted a 6-3 determination holding that the FAA the truth is extends to PAGA claims.
Following the oral argument, throughout which Viking River Cruise’s counsel was often peppered by questions on PAGA, some commentators now appear to imagine that the Court could as an alternative conclude that PAGA claims usually are not topic to the FAA.
Respectfully, nothing sudden occurred throughout the oral argument on Viking River Cruises. And whereas a shock is just not out of the query, nothing occurred throughout the oral argument that may counsel that the initially anticipated, pro-employer determination won’t be forthcoming.
Commentators have famous that Viking River Cruises’ counsel was requested pointed questions by the bench. However, critically, not by the complete bench. These pointed questions have been requested by the very three justices who could be anticipated to ask these questions – Justices Kagan, Sotomayor and Breyer. The six different Justices, expectedly, didn’t take part that pointed questioning of Viking River Cruises’ counsel.
That mentioned, listed here are a few extra observations:
Whereas the three liberal justices requested Viking River Cruise’s counsel pointed questions, the six conservatives usually didn’t do the similar with Moriana’s counsel. They might not have been solely silent, however they have been comparatively so. You would learn this some ways, however one technique to learn it’s that each one 9 justices had already made up their minds after having learn the intensive briefing in the case, together with quite a few amicus briefs.
Aside from a hypothetical by Justice Breyer about spiders sitting subsequent to contracts, there was not a single query that counsel for both facet shouldn’t have anticipated. And either side the truth is appear to have anticipated them.
It’s troublesome to consider something mentioned by both facet that was totally different from what was already argued of their respective briefs (aside from Viking River Cruise’s counsel utilizing a part of the rebuttal to handle the overwhelming variety of PAGA actions which have been filed). They may have used some totally different language than that they had used of their briefs, however they gave the impression to be hammering dwelling the similar factors.
There was nothing mentioned by both facet that ought to change any of the justices’ minds.
Assuming that the Court points the 6-3 employer-friendly determination that many have predicted, not solely will employers want to handle the affect of that call in pending PAGA lawsuits involving arbitration agreements – the courts are prone to be inundated with 1000’s of motions to compel arbitration and to strike PAGA claims – however many employers in California that don’t have already got arbitration applications will definitely wish to contemplate implementing them. They may wish to contemplate the execs and cons of these arbitration agreements.
And they’ll additionally wish to contemplate California’s AB51, in addition to the chance of reactive laws carving out all or some employment claims from the FAA, not not like the current modification carving out sexual harassment and sexual assault claims.
A professional-employer determination in Viking River Cruises won’t be the finish of this challenge.