January 17, 2021

Volume XI, Number 17


January 15, 2021

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January 14, 2021

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Federal Court Issues Preliminary Injunction to Stop California’s Controversial Anti-Arbitration Law

The California Legislature’s attempt to circumvent both the Federal Arbitration Act (“FAA”) and the Supreme Court’s landmark decision in Epic Systems by crafting a new law prohibiting California employers from requiring employees to enter into arbitration agreements is off to a rocky start in the courts, to say the least.

As discussed below, a federal court has issued a preliminary injunction enjoining enforcement of California’s controversial new anti-arbitration statute known as AB 51.  Barring some new development, it now appears clear that the statute cannot be enforced for the foreseeable future, and that its ultimate fate will be in the hands of the Ninth Circuit Court of Appeals and, perhaps, the United States Supreme Court.

As we recently wrote, in an action filed by a number of business groups challenging the statute as being preempted by the FAA, United States District Court Judge Kimberly J. Mueller issued a temporary restraining order (“TRO”) on December 29, 2019, to enjoin enforcement of AB 51, just days before it was to take effect.

The new law, which was set to go into effect on January 1, 2020, would outlaw mandatory arbitration agreements with employees. AB 51 would also prohibit arbitration agreements that would require individuals to take affirmative action to be excluded from arbitration, such as opting out.  The law would also appear to extend to jury waivers and class action waivers. And it would include criminal penalties.

In issuing the TRO, Judge Mueller concluded that it would be disruptive if the statute went into effect for a brief period of time, only to have it later determined to be preempted.

During the subsequent January 10, 2020, hearing, Judge Mueller extended the TRO while she considered supplemental briefing to be submitted later this month on jurisdiction and standing issues.

After further briefing, Judge Mueller has now issued a preliminary injunction to enjoin enforcement of the new law. Her minute order indicates that a fuller order explaining her reasoning will be forthcoming.

The next step for the fate of AB 51 certainly appears to be the Ninth Circuit Court of Appeals.  And as Judge Mueller herself originally stated, it may end up in the United States Supreme Court.

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume X, Number 34



About this Author

Michael S. Kun, epstein becker green, los angeles, labor, employment

Mr. Kun's practice includes:

  • Litigating more than six dozen class actions and collective actions in California, New York, Georgia and Maryland involving a variety of employment issues, including discrimination and wage-hour claims, and successfully defeating motions for class certification on such claims. The sizes of the putative classes have ranged from 75 to approximately 15,000 employees.

  • Litigating a wide variety of employment-related claims, including discrimination, harassment,...