Felix Shafir

Felix Shafir

BURBANK - Felix Shafir is an appellate lawyer who focuses on two areas at the cutting edge of California law: protected speech and the defense of class and representative actions. He has helped shape the law by winning appeals for clients and by filing amicus curiae briefs in cases that are critical to the development of labor and employment law.

For example, he filed an amicus brief on behalf of Washington Legal Foundation and Atlantic Legal Foundation in Viking River Cruises, Inc. v. Moriana, 20-1573 (U.S. Sup. Ct.). The closely watched case concerned a potential conflict between federal and state arbitration laws. The U.S. Supreme Court recently issued a ruling in favor of Viking that is seen as a significant victory for employers hoping to curb the flood of PAGA lawsuits.

Plaintiff brought a representative PAGA action against her employer, Viking River Cruises, for multiple labor violations. Viking moved to dismiss, arguing that the plaintiff had signed an arbitration agreement that had waived her right to bring representative actions. The trial court denied Viking’s motion based on the California Supreme Court’s precedent in Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348 (2014), which found that arbitration agreements that waive the right to bring representative actions are unenforceable.

“For many years as a result, since Iskanian effectively insulated PAGA from arbitration in California state courts… PAGA claims have been allowed to proceed, regardless of arbitration agreements. As a result, you see a very large spike in PAGA representative action,” Shafir said.

The Court of Appeal affirmed the lower court’s ruling, and Viking appealed to the U.S. Supreme Court. Viking asserted that Iskanian was overruled by the Supreme Court’s 2018 decision in EPIC Systems Corp. v. Lewis, which held that arbitration agreements requiring individual arbitration are enforceable under the Federal Arbitration Act (FAA). Shafir had filed the amicus brief urging the Supreme Court to hold that the FAA preempts the state rule.

In its highly anticipated decision, the Court agreed, and the ruling means an employer may compel arbitration of an employee’s individual PAGA claims. However, the Court left open the possibility that California could adjust PAGA to permit representative claims to be brought in court.

“The California courts have often been out of step with the U.S. Supreme Court’s arbitration precedent. That’s why the High Court has repeatedly had to step in to correct the California courts’ course over the last few decades. This is yet another example of that course correction,” Shafir wrote in an email about the decision.

--Jennifer Chung Klam