FILED
NOT FOR PUBLICATION
FEB 19 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL HOPKINS, an individual , on No. 13-56126
behalf of himself, and on behalf of all
persons similarly situated, D.C. No. 8:13-cv-00103-AG-RNB
Plaintiff - Appellant,
MEMORANDUM*
v.
BCI COCA-COLA BOTTLING
COMPANY, OF LOS ANGELES, a
Delaware Corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted June 3, 2015
Pasadena, California
Before: M. SMITH and N.R. SMITH, Circuit Judges and LEFKOW,** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Joan Lefkow, Senior District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
Michael Hopkins appeals the district court’s Order dismissing his California
Private Attorney General Act (PAGA) claim and granting a Motion to Compel
Arbitration. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and
remand to the district court for further proceedings.
The central issue in this appeal turns on whether the Federal Arbitration Act
(FAA) preempts the California rule that “an employee’s right to bring a PAGA
action is unwaivable.” Iskanian v. CLS Transp. L.A., LLC, 327 P.3d 129, 148 (Cal.
2014). Although this issue has engendered considerable debate and divergence
among district courts, our recent decision in Sakkab v. Luxottica Retail North
America, Inc. held that “the FAA does not preempt the Iskanian rule.” 803 F.3d
425, 429 (9th Cir. 2015). Therefore, the Iskanian rule applies to the arbitration
agreement between Hopkins and BCI Coca-Cola Bottling Company of Los
Angeles (BCI) and Hopkins’s waiver of his right to bring a representative PAGA
action is unenforceable.
BCI’s contention that the FAA requires enforcement of Hopkins’s waiver in
the arbitration agreement is foreclosed in light of our decision in Sakkab.
Although courts must generally enforce arbitration agreements according to their
terms, Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S.
468, 478 (1989), the FAA permits arbitration agreements to be declared
2
unenforceable “upon such grounds as exist at law or in equity for the revocation of
any contract,” 9 U.S.C. § 2. “[T]he Iskanian rule is a ‘generally applicable’
contract defense that may be preserved by § 2’s saving clause, provided it does not
conflict with the FAA’s purposes.” Sakkab, 803 F.3d at 433. The Iskanian rule
“does not conflict” with the objectives of the FAA and is not preempted. Id.
An arbitration agreement is not per se unconscionable, and, in this
arbitration agreement, the offending clause waiving representative claims may be
severed from the rest of the agreement. The arbitration agreement states that “[t]he
invalidity or unenforceability of any provision shall not affect the application of
any other provision.” It is unclear whether Hopkins argued that this arbitration
agreement itself is unconscionable. In any case, he has not demonstrated such
unconscionability as it relates to the agreement as a whole.
After severing the clause in the arbitration agreement that waives the right to
participate in representative actions, it is unclear whether the parties have agreed to
arbitrate such surviving claims or whether they must be litigated instead.1
Accordingly, we reverse the district court’s order dismissing Hopkins’s First
1
We note that the arbitration agreement states that “Since this Agreement is
intended to provide for the individualized resolution of claims, no provision of this
Agreement is to be construed to grant the arbitrator the authority to order
collective, representative or class arbitration.”
3
Amended Complaint and remand to the district court to decide where Hopkins’s
representative PAGA claims should be resolved. See id. at 440 (remanding to the
district court to determine whether representative PAGA claims should be
arbitrated or litigated).
REVERSED and REMANDED.
4