The UCL Practitioner was kind enough to allow my report of the arguments in Iskanian to be reported on her web site. The link to the post is here.
My comments are below:
I attended the argument in Iskanian v. CLS on April 3, 2014. It was exhilarating. What fun to be there as part of this historic day. To start the day Justice Baxter gave a very moving tribute to Justice Kennard and honored her 25 years of service on the court. The argument itself was as expected, but so much better. While many prognosticated about the likely result in the case, hearing the Justices ask very robust questions was fascinating. All the Justices except Justice Baxter participated in the questioning, but as expected Justice Liu dominated the proceedings.
Many defense lawyers have attacked and argued that Gentry died in 2011 the same day that Concepcion invalidated Discover Bank. Many Court of Appeal decisions have held off pronouncing the time of death until they were sure the patient was actually dead. They did not want to be the ones to do it, but rather thought the parents (CA Supreme Court) should be the ones to put her to rest. Well, Thursday's argument made it clear that the patient did not survive. My condolences.
I believe this was a wise decision by Justice Liu and a necessary sacrifice to ensure SCOTUS does not wade into these waters. Justice Liu came out hard and strong, so it appears Gentry's death will unequivocal. He swatted away Glen Danas's arguments and his attempt to fashion an alternative Gentry test fell completely flat. Gentry was not to be saved and it was for the plaintiff's lawyer's own good. If Gentry survived, it was a certainty that Iskaniain would be taken up. Even without a Gentry survival we don't know if SCOTUS will still seek to crush our hopes.
While the passion to kill Gentry should've dampened my spirits, the passion to save PAGA was equally so. Justice Liu at one point compared PAGA to a Qui Tam action, seemed convinced it was at its core a “law enforcement action.” Further, he argued that the employee had no ability to waive the states claim comparing it to the case of EEOC v. Waffle House. Even, the sometimes conservative Justice Corrigan attacked Andrew Pincus (attorney for amicus Chamber of Commerce) because of her perception that his line of reasoning “could insulate them [companies] from liability.” This could not be so. His response was just FAA trumps all. That was the theme of the day for defense, FAA is the trump card.
In fact the lawyer for CLS, Faustman, refused to answer Justice Liu's questions to the point that it seemed he was doing an Abbott & Costello routine.
(Paraphrased and abbreviated based on my notes)
Liu: FAA and NLRA are in conflict, how do you reconcile?
F: FAA trumps
F: Congress needs to say.
Liu: Reason? Text, order, specificity, How do you reconcile?
F: Reconciliation, NLRA says nothing about arbitration.
Liu: FAA says nothing about collective activity.
This went on for many a minute or more.
This brings up the DR Horton/NLRA arguments, and before I address that, let me say Michael Rubin was absolutely an amazing advocate. He was poised and unbelievably prepared to the point that answers to questions that would scare even the most seasoned advocate were at this fingertips. For example, Liu asked him when class actions began and he knew the modern class action was recognized in 1966 but that early century there was some other vehicle which I did not entirely follow. [Editor's Note: See Justice Werdegar's concurring opinion in Arias.] He advocated in a way that was smart on the issues and made you incredibly proud to be a plaintiff's lawyer. He advocated on behalf of employees everywhere in that if they have the right to picket and strike, then they should equally have the right to band together to fight to enforce the labor laws of this state.
Where the court comes down on the Horton question is hard to predict. I would think not based on the argument but based on Liu's wisdom that he may not take the bait. A Horton victory would undoubtedly bring the ire of SCOTUS. While it might feel great now, in 2015 the hangover might set in and everything will be gone. If Horton and Gentry die, and PAGA is saved, you would think SCOTUS would leave California alone.