Whether the Federal Arbitration Act preempts California's interpretation of the Private Attorneys General Act that allows a plaintiff to maintain non-individual claims in court after their individual claim is compelled to arbitration

No question identified. : TO THE HONORABLE ELENA KAGAN, JUSTICE OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE NINTH CIRCUIT: Under this Court’s Rule 13.5, applicant Uber Technologies, Inc., respectfully requests a 60-day extension of time, to and including July 12, 2024, within which to file a petition for a writ of certiorari to review the judgment of the California Court of Appeal.” The California Supreme Court issued an opinion in this case on July 17, 2023, but remanded to the Court of Appeal for further proceedings. App., infra, 11a. On remand, the California Court of Appeal entered a final judgment on October 31, 2023. Id. at 40a. The California Supreme Court denied applicant’s timely petition for review on February 14, 2024. Id. at 48a. Unless extended, the time within which to file a petition for a writ of certiorari will expire on May 13, 2024. The jurisdiction of this Court would be invoked under 28 U.S.C. § 1257. Counsel for respondent Erik Adolph does not oppose this request. 1. This case presents an important question concerning the Federal Arbitration Act (FAA). In Viking River Cruises, Inc. v. Moriana, 596 U.S. 639 (2022), this Court held that the FAA preempts California law “insofar as it precludes division of” actions brought under the California Labor Code Private Attorneys General Act (PAGA) “into individual and non-individual claims through an agreement to arbitrate.” Id. at 662. This Court explained that the individual PAGA claim must be severed from the non-individual claims and “committed to a separate proceeding” for arbitration. Id. at 663. Here, however, the California Supreme Court held that PAGA * Under this Court’s Rule 29.6, applicant Uber Technologies, Inc. states that it is not publicly traded and has no parent corporation, and no publicly held corporation owns 10% or more of its stock. claims constitute “a single action” in which the individual PAGA claim compelled to arbitration remains in court for the purpose of allowing a plaintiff to establish statutory standing to pursue the non-individual claims. App., infra, 23a-24a; see also Johnson v. Lowe’s Home Centers, LLC, 93 F.4th 459, 465 (9th Cir. 2024) (rejecting same preemption defense and endorsing this narrow interpretation of Viking River). a. Applicant is a technology company that developed the smartphone application known as the “Eats App,” which connects local merchants, consumers, and independent delivery drivers to facilitate the purchase and delivery of food and drink. App., infra, 3a. Respondent is a driver who signed up to use the Eats App in March 2019 and agreed to an arbitration provision. Ibid. b. Despite agreeing to arbitrate disputes with applicant on an individualized basis, respondent brought (as relevant) a putative PAGA action that sought civil penalties on the theory that applicant allegedly misclassified drivers as independent contractors. App., infra, 3a-4a. Applicant moved to compel arbitration as to respondent’s alleged status as an “aggrieved employee” with standing to pursue a PAGA claim. Id. at 4a. The trial court denied that motion. Ibid. c. Affirming, the California Court of Appeal held that the PAGA claim was not subject to arbitration because “it was brought on behalf of the state, which [wal]s not a signatory to the” Agreement. App., infra, 4a-5a. The court also reasoned that a PAGA action “cannot be split into individual arbitrable and representative nonarbitrable components.” Id. at 6a. d. While applicant’s petition for review was pending in the California Supreme Court, this Court held in Viking River that the FAA preempts the Iskanian anti-severability rule for PAGA actions. 596 U.S. at 662. This Court explained that PAGA’s “built-in mechanism of claim joinder,” which “allows plaintiffs to unite a massive number of claims in a single package suit,” conflicted with the FAA to the extent it coerces parties to forgo arbitration or else relinquish their right under the FAA to decide “which claims are sub