Felix Shafir

Shafir has been a Horvitz & Levy partner since 2006, writing and arguing employment and other cases at the state appellate level, at the 9th U.S. Circuit Court of Appeals and in briefing before the U.S. Supreme Court.

In 2020 Associate Justice Brett M. Kavanaugh quoted from Shafir’s amicus brief during oral argument over the Constitution’s religion clauses and whether the ministerial exception should be applied to religious teachers—even if they don’t have a formal religious title or an extensive religious background. Shafir represented the schools’ position. Our Lady of Guadalupe School v. Morrissey-Berru, 19-267 (S. Ct., op. filed July 8, 2020).

The justices held 7-2 that the ministerial exception forecloses employment discrimination claims by Catholic school teachers in the cases at issue. The ruling reversed a 9th Circuit holding.

Shafir was listening to the argument. “It was great to hear that Justice Kavanaugh had taken a close look at that brief,” he said.

For client Lyft Inc., Shafir appealed a trial court’s ruling against compelled arbitration of drivers’ claim they had been misclassified as independent contractors.

The appeal sought to resolve the important issue of whether, under U.S. Supreme Court precedent, the Federal Arbitration Act preempts the state Supreme Court’s Iskanian ruling prohibiting the enforcement of an arbitration agreement’s PAGA representative-action waiver.

In June, a state appellate panel ruled against the arbitration agreement, affirming Iskanian and rejecting Shafir’s position. Seifu v. Lyft Inc., B301774 (2d DCA, op. filed June 1, 2021).

But that’s not the end of the story, because just days later Shafir filed a brief at the U.S. Supreme Court urging review of Iskanian in another effort to bring California law in line with the Federal Arbitration Act. Viking River Cruises Inc. v. Moriana, 20-1573 (S.Ct., pet. for cert. filed May 10, 2021).

“California businesses have long hoped the United States Supreme Court would take up the preemption challenge to Iskanian because they’ve thought from the get-go that Iskanian is out of step with Supreme Court precedent,” Shafir said.

“If anything, Iskanian has sharply undercut the high court’s insistence that the FAA requires all courts must enforce representative-action waivers in arbitration agreements, as plaintiffs in wage-and-hour cases have increasingly brought PAGA representative actions in lieu of (or together with) class actions in the hopes of circumventing Supreme Court precedent based on California courts’ determination that PAGA claims fall wholly outside the FAA.”

Shafir’s filing in the Viking River Cruises case is an amicus brief on behalf of Washington Legal Foundation, a pro-business nonprofit. “California courts’ defense of the Iskanian rule has exposed other tensions in the case law, cementing the need for review,” he wrote.

Arbitration fights regarding PAGA cases “are the main battlefield right now” in employment law, he added.

— John Roemer