Felix Shafir

In the big U.S. Supreme Court showdown last year over the legitimacy of class action waivers in employment contract arbitration clauses, Shafir urged the justices to find the waivers valid.

Retained to draft a friend of the court brief, Shafir's view prevailed as the court voted 5-4 to give class action waivers the green light. Epic Systems Corp. v. Lewis, 16-285 (U.S. Sup. Ct., filed May 21, 2018).

That led Shafir directly to the appellate topic now preoccupying the labor and employment bar as Iskanian, the California case permitting a form of worker collective action, comes under fire.

"Has Epic abrogated Iskanian? I think the answer should be yes," Shafir said. "Whether California courts will agree is another question."

It's hardly academic. Shafir was able to immediately wield Epic Systems as he continued his defense of Ecolab Inc. in a potential class action over wage and hour claims by employees objecting to the company's overtime pay policies.

Ecolab lost at the trial level, where U.S. District Judge Fernando M. Olguin of Los Angeles denied its motion to compel arbitration, rejecting the class action waiver in view of guidance from the 9th U.S. Circuit Court of Appeals in its 2016 Morris v. Ernst & Young LLP decision. But Morris was one of the cases consolidated with Epic Systems at the Supreme Court. So Shafir could successfully argue that in light of Epic Systems, the lower court's decision in Ecolab must be reversed. Miner v. Ecolab Inc., 17-56183 (9th Cir., opinion filed Nov. 30, 2018).

So far, Iskanian itself has not reached the high court. Shafir believes it's only a matter of time. "It hasn't percolated up yet," he said. "But I think we'll be seeing that question as the subject of a cert petition soon."

Indeed, Shafir has a possible candidate in a case where he represents appellant Lyft Inc. in a potential wage and hour class action under state law alleging that the ride share company misclassified drivers as independent contractors. A trial judge's ruling in part against arbitration based on Iskanian allowed the drivers' representative action to proceed. That outcome puts squarely before a state appellate panel the question of whether Epic Systems preempts Iskanian. Chester v. Lyft Inc., B295288 (2d DCA, filed Jan. 30, 2019).

-- John Roemer