Viking River Cruises, Inc. v. Moriana

P R E L I M I N A R Y P R I N T
Volume 596 U. S. Part 2
Pages 639–665
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 15, 2022
REBECCA A. WOMELDORF
reporter of decisions
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the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

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VIKING RIVER CRUISES, INC. v. MORIANA
certiorari
to the court of appeal of california,
second appellate district
No. 20–1573. Argued March 30, 2022—Decided June 15, 2022
The question for decision is whether the Federal Arbitration Act, 9 U. S. C.
§ 1 et seq., preempts a rule of California law that invalidates contractual
waivers of the right to assert representative claims under California's
Labor Code Private Attorneys General Act of 2004, Cal. Lab. Code
§ 2698 et seq. PAGA enlists employees as private attorneys general to
enforce California labor law. By its terms, PAGA authorizes any “ag-
grieved employee” to initiate an action against a former employer “on
behalf of himself or herself and other current or former employees” to
obtain civil penalties that previously could have been recovered only by
the State in an enforcement action brought by California's Labor and
Workforce Development Agency (LWDA). California precedent holds
that a PAGA suit is a “ `representative action' ” in which the employee
plaintiff sues as an “ `agent or proxy' ” of the State. Iskanian v. CLS
Transp. Los Angeles, LLC, 59 Cal. 4th 348, 380. California precedent
also interprets the statute to contain what is effectively a rule of claim
joinder—allowing a party to unite multiple claims against an opposing
party in a single action. An employee with PAGA standing may “seek
any civil penalties the state can, including penalties for violations involv-
ing employees other than the PAGA litigant herself.” ZB, N. A. v. Su-
perior Court, 8 Cal. 5th 175, 185.
Respondent Angie Moriana fled a PAGA action against her former
employer Viking River Cruises, alleging a California Labor Code viola-
tion. She also asserted a wide array of other violations allegedly sus-
tained by other Viking employees. Moriana's employment contract
with Viking contained a mandatory arbitration agreement. Important
here, that agreement contained both a “Class Action Waiver”—provid-
ing that the parties could not bring any dispute as a class, collective,
or representative action under PAGA—and a severability clause—spec-
ifying that if the waiver was found invalid, such a dispute would pre-
sumptively be litigated in court. Under the severability clause, any
“portion” of the waiver that remained valid would be “enforced in
arbitration.” Viking moved to compel arbitration of Moriana's individ-
ual PAGA claim and to dismiss her other PAGA claims. Applying Cali-
fornia's Iskanian precedent, the California courts denied that motion,
holding that categorical waivers of PAGA standing are contrary to Cali-

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fornia policy and that PAGA claims cannot be split into arbitrable “indi-
v
idual” claims and nonarbitrable “representative” claims. This Court
granted certiorari to decide whether the FAA preempts the California
rule.
Held: The FAA preempts the rule of Iskanian insofar as it precludes divi-
sion of PAGA actions into individual and non-individual claims through
an agreement to arbitrate. Pp. 649–663.
(a) Based on the principle that “[a]rbitration is strictly `a matter of
consent,' ” Granite Rock Co. v. Teamsters, 561 U. S. 287, 299, this Court
has held that “a party may not be compelled under the FAA to submit
to class arbitration unless there is a contractual basis for concluding that
the party agreed to do so,” Stolt-Nielsen S. A. v. AnimalFeeds Int'l
Corp., 559 U. S. 662, 684. Because class-action arbitration mandates
procedural changes that are inconsistent with the individualized and
informal mode of bilateral arbitration contemplated by the FAA, see
AT&T Mobility LLC v. Concepcion, 563 U. S. 333, 347, class procedures
cannot be imposed by state law without presenting unwilling parties
with an unacceptable choice between being compelled to arbitrate using
such procedures and forgoing arbitration all together.
Viking contends that the Court's FAA precedents require enforce-
ment of contractual provisions waiving the right to bring PAGA actions
because PAGA creates a form of class or collective proceeding. If this
is correct, Iskanian's prohibition on PAGA waivers presents parties
with an impermissible choice: Either arbitrate disputes using a form of
class procedures, or do not arbitrate at all. Moriana maintains that any
confict between Iskanian and the FAA is illusory because PAGA cre-
ates nothing more than a substantive cause of action.
This Court disagrees with both characterizations of the statute. Mo-
riana's premise that PAGA creates a unitary private cause of action is
irreconcilable with the structure of the statute and the ordinary legal
meaning of the word “claim.” A PAGA action asserting multiple viola-
tions under California's Labor Code affecting a range of different em-
ployees does not constitute “a single claim” in even the broadest possible
sense. Viking 's position, on the other hand, elides important structural
differences between PAGA actions and class actions. A class-action
plaintiff can raise a multitude of claims because he or she represents a
multitude of absent individuals; a PAGA plaintiff, by contrast, repre-
sents a single principal, the LWDA, that has a multitude of claims. As
a result, PAGA suits exhibit virtually none of the procedural character-
istics of class actions.
This Court's FAA precedents treat bilateral arbitration as the proto-
type of the individualized and informal form of arbitration protected

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from undue state interference by the FAA. See, e. g., Epic Systems
C
orp. v. Lewis, 584 U. S. –––, –––. Viking posits that a proceeding is
“bilateral” only if it involves two and only two parties and “is conducted
by and on behalf of the individual named parties only.” Wal-Mart
Stores, Inc. v. Dukes, 564 U. S. 338, 348. Thus, Iskanian's prohibition
on PAGA waivers is inconsistent with the FAA because PAGA creates
an intrinsically representational form of action and Iskanian requires
parties either to arbitrate in that format or forgo arbitration altogether.
This Court disagrees. Nothing in the FAA establishes a categorical
rule mandating enforcement of waivers of standing to assert claims on
behalf of absent principals. Non-class representative actions in which
a single agent litigates on behalf of a single principal necessarily deviate
from the strict ideal of bilateral dispute resolution posited by Viking,
but this Court has never held that the FAA imposes a duty on States
to render all forms of representative standing waivable by contract or
that such suits deviate from the norm of bilateral arbitration. Unlike
procedures distinctive to multiparty litigation, single-principal, single-
agent representative actions are “bilateral” in two registers: They in-
volve the rights of only the absent real party in interest and the defend-
ant, and litigation need only be conducted by the agent-plaintiff and the
defendant. Nothing in this Court's precedent suggests that in enacting
the FAA, Congress intended to require States to reshape their agency
law governing who can assert claims on behalf of whom to ensure that
parties will never have to arbitrate disputes in a proceeding that devi-
ates from bilateral arbitration in the strictest sense. Pp. 649–659.
(b) PAGA's built-in mechanism of claim joinder is in confict with the
FAA. Iskanian's prohibition on contractual division of PAGA actions
into constituent claims unduly circumscribes the freedom of parties to
determine “the issues subject to arbitration” and “the rules by which
they will arbitrate,” Lamps Plus, Inc. v. Varela, 587 U. S. –––, –––, and
does so in a way that violates the fundamental principle that “arbitra-
tion is a matter of consent,” Stolt-Nielsen, 559 U. S., at 684. For that
reason, state law cannot condition the enforceability of an agreement to
arbitrate on the availability of a procedural mechanism that would per-
mit a party to expand the scope of the anticipated arbitration by intro-
ducing claims that the parties did not jointly agree to arbitrate. A
state rule imposing an expansive rule of joinder in the arbitral context
would defeat the ability of parties to control which claims are subject
to arbitration by permitting parties to superadd new claims to the pro-
ceeding, regardless of whether the agreement committed those claims
to arbitration. When made compulsory by way of Iskanian, PAGA's
joinder rule functions in exactly this way. The effect is to coerce par-
ties into withholding PAGA claims from arbitration. Iskanian's indi-

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642 VIKING
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visibility rule effectively coerces parties to opt for a judicial forum
rather
than “forgo[ing] the procedural rigor and appellate review of the
courts to realize the benefts of private dispute resolution.” Stolt-
Nielsen, 559 U. S., at 685. Pp. 659–662.
(c) Under this Courts holding, Iskanian's prohibition on wholesale
waivers of PAGA claims is not preempted by the FAA. But Iskanian's
rule that PAGA actions cannot be divided into individual and non-
individual claims is preempted, so Viking was entitled to compel arbitra-
tion of Moriana's individual claim. PAGA provides no mechanism to
enable a court to adjudicate non-individual PAGA claims once an individ-
ual claim has been committed to a separate proceeding. And under
PAGA's standing requirement, a plaintiff has standing to maintain non-
individual PAGA claims in an action only by virtue of also maintaining
an individual claim in that action. As a result, Moriana would lack stat-
utory standing to maintain her non-individual claims in court, and the
correct course was to dismiss her remaining claims. Pp. 662–663.
Reversed and remanded.
Alito, J., delivered the opinion of the Court, in which Breyer, Soto-
mayor, Kagan, and Gorsuch, JJ., joined, in which Roberts, C. J., joined
as to Parts I and III, and in which Kavanaugh and Barrett, JJ., joined
as to Part III. Sotomayor, J., fled a concurring opinion, post, p. 663.
Barrett, J., fled an opinion concurring in part and concurring in the
judgment, in which Kavanaugh, J., joined, and in which Roberts, C. J.,
joined as to all but the footnote, post, p. 664. Thomas, J., fled a dissenting
opinion, post, p. 665.
Paul D. Clement argued the cause for petitioner. With
him on the briefs were George W. Hicks, Jr., and Michael
D. Lieberman.
Scott L. Nelson argued the cause for respondent. With
him on the brief were Kevin T. Barnes, Gregg Lander, and
Michael Rubin.*
*Briefs of amici curiae urging reversal were fled for the California
Business and Industrial Alliance by C. Boyden Gray and Jonathan Berry;
for the California New Car Dealers Association by Anna-Rose Mathieson
and Susan Yorke; for the Chamber of Commerce of the United States of
America et al. by Andrew J. Pincus, Archis A. Parasharami, Daniel E.
Jones, Daryl Joseffer, Paul Lettow, Karen R. Harned, and Elizabeth Mil-
ito; for the Civil Justice Association of California by Fred J. Hiestand; for
the Employers Group by Anton Metlitsky, Apalla Chopra, Adam Karr,
and Jason Zarrow; for the Restaurant Law Center by Todd B. Scherwin

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643
Opinion of the Court
Justice Alito delivered the opinion of the Court.†
W
e granted certiorari in this case to decide whether the
Federal Arbitration Act (FAA), 9 U. S. C. § 1 et seq., pre-
empts a rule of California law that invalidates contractual
waivers of the right to assert representative claims under
California's Labor Code Private Attorneys General Act of
2004. Cal. Lab. Code Ann. § 2698 et seq. (West 2022).
I
A
The California Legislature enacted the Labor Code Pri-
vate Attorneys General Act (PAGA) to address a perceived
defcit in the enforcement of the State's Labor Code. Cali-
and Angelo I. Amador; for the Retail Litigation Center, Inc., et al. by
Thomas C. Goldstein, Erica Oleszczuk Evans, and Deborah White; for
Uber Technologies, Inc., et al. by Theane Evangelis, Blaine H. Evanson,
and Bradley J. Hamburger; and for the Washington Legal Foundation
et al. by Peder K. Batalden, Felix Shafr, John F. Querio, Cory L. An-
drews, John M. Masslon II, and Lawrence S. Ebner.
Briefs of amici curiae urging affrmance were fled for the State of
California by Rob Bonta, Attorney General of California, Michael J. Mon-
gan, Solicitor General, Janill L. Richards, Principal Deputy Solicitor Gen-
eral, and Nicole Welindt, Associate Deputy Solicitor General; for the
American Association for Justice by Matthew W. H. Wessler; for the Amer-
ican Federation of Labor and Congress of Industrial Organizations by
Harold Craig Becker and Matthew J. Ginsburg; for the California Employ-
ment Lawyers' Association et al. by Monique Olivier and Catherine
Ruckelshaus; for California Rural Legal Assistance, Inc., et al. by Cynthia
L. Rice and Verónica Meléndez; for Public Justice by Ellen Noble, Karla
Gilbride, and Leslie A. Brueckner; for the Taxpayers Against Fraud Edu-
cation Fund by Colette G. Matzzie; for Tracy Chen by Mark F. Humenik;
and for Steve Chou by Chris Baker.
Briefs of amici curiae were fled for the California Employment Law
Council by Richard H. Rahm, Paul Grossman, and Paul W. Cane, Jr.; for
Civil Procedure and Arbitration Law Professors by Gary B. Friedman
and Myriam Gilles; for the National Academy of Arbitrators by Matthew
W. Finkin and Barry Winograd; and for Imre S. Szalai by Mr. Szalai, pro se.
†The Chief Justice joins Parts I and III of this opinion.

644 VIKING
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Opinion of the Court
fornia's Labor and Workforce Development Agency (LWDA)
had
the authority to bring enforcement actions to impose
civil penalties on employers for violations of many of the
code's provisions. But the legislature believed the LWDA
did not have suffcient resources to reach the appropriate
level of compliance, and budgetary constraints made it im-
possible to achieve an adequate level of fnancing. The legis-
lature thus decided to enlist employees as private attorneys
general to enforce California labor law, with the understand-
ing that labor-law enforcement agencies were to retain pri-
macy over private enforcement efforts.
By its terms, PAGA authorizes any “aggrieved employee”
to initiate an action against a former employer “on behalf of
himself or herself and other current or former employees” to
obtain civil penalties that previously could have been recov-
ered only by the State in an LWDA enforcement action.
Cal. Lab. Code Ann. § 2699(a). As the text of the statute
indicates, PAGA limits statutory standing to “aggrieved em-
ployees”—a term defned to include “any person who was
employed by the alleged violator and against whom one or
more of the alleged violations was committed.” § 2699(c).
To bring suit, however, an employee must also exhaust ad-
ministrative remedies. That entails providing notice to
the employer and the LWDA of the violations alleged and
the supporting facts and theories. § 2699.3(a)(1)(A). If the
LWDA fails to respond or initiate an investigation within a
specifed timeframe, the employee may bring suit. § 2699.3(a)
(2). In any successful PAGA action, the LWDA is entitled
to 75 percent of the award. § 2699(i). The remaining 25
percent is distributed among the employees affected by the
violations at issue. Ibid.
California law characterizes PAGA as creating a “type of
qui tam action,”
1
Iskanian v. CLS Transp. Los Angeles,
1
As we have explained, “qui tam” is the short form of the Latin phrase
“qui tam pro domino rege quam pro se ipso in hac parte sequitur”—
meaning “ `who pursues this action on our Lord the King 's behalf as well
as his own.' ” Vermont Agency of Natural Resources v. United States
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Opinion of the Court
LLC, 59 Cal. 4th 348, 382, 327 P. 3d 129, 148 (2014). Al-
though
the statute's language suggests that an “aggrieved
employee” sues “on behalf of himself or herself and other
current or former employees,” § 2699(a), California precedent
holds that a PAGA suit is a “ `representative action' ” in
which the employee plaintiff sues as an “ `agent or proxy' ”
of the State. Id., at 380, 327 P. 3d, at 147 (quoting Arias v.
Superior Court, 46 Cal. 4th 969, 986, 209 P. 3d 923, 933
(2009)).
As the California courts conceive of it, the State “is always
the real party in interest in the suit.” Iskanian, 59 Cal. 4th,
at 382, 327 P. 3d, at 148.
2
The primary function of PAGA is
ex rel. Stevens, 529 U. S. 765, 768, n. 1 (2000). Qui tam actions “appear
to have originated around the end of the 13th century, when private indi-
viduals who had suffered injury began bringing actions in the royal courts
on both their own and the Crown's behalf ” and became more of a rarity
as “royal courts began to extend jurisdiction to suits involving wholly
private wrongs.” Id., at 774–775.
2
The extent to which PAGA plaintiffs truly act as agents of the State
rather than complete assignees is disputed. See Magadia v. Wal-Mart
Assocs., Inc., 999 F. 3d 668, 677 (CA9 2021) (holding that PAGA “lacks the
procedural controls necessary to ensure that California” retains “substan-
tial authority over the case” (internal quotation marks omitted)). Agency
requires control. See Hollingsworth v. Perry, 570 U. S. 693, 713 (2013).
But apart from the exhaustion process, the statute does not feature any
explicit control mechanisms, such as provisions authorizing the State to
intervene or requiring its approval of settlements.
That said, California precedent strongly suggests that the State retains
inherent authority to manage PAGA actions. There is no other obvious
way to understand California precedent's description of the State as the
“real party in interest.” See generally 1A Cal. Jur. 3d Actions § 31 (real-
party-in-interest status is based on ownership and control over the cause
of action). And a theory of total assignment appears inconsistent with
the fact that employees have no assignable interest in a PAGA claim. See
Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court of
Los Angeles Cty., 46 Cal. 4th 993, 1002, 209 P. 3d 937, 943 (2009) (Amalga-
mated Transit); see also Turrieta v. Lyft, Inc., 69 Cal. App. 5th 955, 972,
284 Cal. Rptr. 3d 767, 780 (2021) (The employee's “ability to fle PAGA
claims on behalf of the state does not convert the state's interest into their
own or render them real parties in interest”). For purposes of this opin-
ion, we assume that PAGA plaintiffs are agents.
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646 VIKING
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Opinion of the Court
to delegate a power to employees to assert “the same legal
r
ight and interest as state law enforcement agencies,” Arias,
46 Cal. 4th, at 986, 209 P. 3d, at 933. In other words, the
statute gives employees a right to assert the State's claims
for civil penalties on a representative basis, but it does not
create any private rights or private claims for relief. Iskan-
ian, 59 Cal. 4th, at 381, 327 P. 3d, at 148; see also Amalga-
mated Transit, 46 Cal. 4th 993, 1002, 209 P. 3d 937, 943
(2009). The code provisions enforced through the statute
establish public duties that are owed to the State, not private
rights belonging to employees in their “individual capac-
ities.” Iskanian, 59 Cal. 4th, at 381, 327 P. 3d, at 147.
Other, distinct provisions of the code create individual
rights, and claims arising from violations of those rights are
actionable through separate private causes of action for com-
pensatory or statutory damages. Id., at 381–382, 327 P. 3d,
at 147–148; see also Kim v. Reins Int'l California, Inc., 9
Cal. 5th 73, 86, 459 P. 3d 1123, 1130 (2020) (“[C]ivil penalties
recovered on the state's behalf are intended to remediate
present violations and deter future ones, not to redress em-
ployees' injuries” (internal quotation marks omitted; empha-
sis deleted)). And because PAGA actions are understood to
involve the assertion of the government's claims on a deriva-
tive basis, the judgment issued in a PAGA action is binding
on anyone “who would be bound by a judgment in an action
brought by the government.” Arias, 46 Cal. 4th, at 986, 209
P. 3d, at 933.
California precedent also interprets the statute to contain
what is effectively a rule of claim joinder. Rules of claim
joinder allow a party to unite multiple claims against an
opposing party in a single action. See 6A C. Wright, H.
Miller, & E. Cooper, Federal Practice and Procedure § 1582
(3d ed. 2016) (Wright & Miller). PAGA standing has the
same function. An employee with statutory standing may
“seek any civil penalties the state can, including penalties for
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647
Opinion of the Court
herself.” ZB, N. A. v. Superior Court, 8 Cal. 5th 175, 185,
448
P. 3d 239, 243–244 (2019). An employee who alleges he
or she suffered a single violation is entitled to use that viola-
tion as a gateway to assert a potentially limitless number of
other violations as predicates for liability. This mechanism
radically expands the scope of PAGA actions. The default
penalties set by PAGA are $100 for each aggrieved employee
per pay period for the initial violation and $200 for each ag-
grieved employee per pay period for each subsequent viola-
tion. Cal. Lab. Code Ann. § 2699(f )(2). Individually, these
penalties are modest; but given PAGA's additive dimension,
low-value claims may easily be welded together into high-
value suits.
B
Petitioner Viking River Cruises, Inc. (Viking), is a com-
pany that offers ocean and river cruises around the world.
When respondent Angie Moriana was hired by Viking as a
sales representative, she executed an agreement to arbitrate
any dispute arising out of her employment. The agreement
contained a “Class Action Waiver” providing that in any ar-
bitral proceeding, the parties could not bring any dispute as
a class, collective, or representative PAGA action. It also
contained a severability clause specifying that if the waiver
was found invalid, any class, collective, representative, or
PAGA action would presumptively be litigated in court.
But under that severability clause, if any “portion” of the
waiver remained valid, it would be “enforced in arbitration.”
After leaving her position with Viking, Moriana fled a
PAGA action against Viking in California court. Her com-
plaint contained a claim that Viking had failed to provide her
with her fnal wages within 72 hours, as required by §§ 101–
102 of the California Labor Code. But the complaint also
asserted a wide array of other code violations allegedly sus-
tained by other Viking employees, including violations of
provisions concerning the minimum wage, overtime, meal
periods, rest periods, timing of pay, and pay statements.
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Viking moved to compel arbitration of Moriana's “individual”
P
AGA claim—here meaning the claim that arose from the
vi olati on she suffered—and to dismiss her other PAGA
claims. The trial court denied that motion, and the Califor-
nia Court of Appeal affrmed, holding that categorical waiv-
ers of PAGA standing are contrary to state policy and that
PAGA claims cannot be split into arbitrable individual claims
and nonarbitrable “representative” claims.
Th is r u l i ng was dic t ated by the Ca l i for nia Supreme
Court's decision in Iskanian. In that case, the court held
that pre-dispute agreements to waive the right to bring “rep-
resentative” PAGA claims are invalid as a matter of public
policy. What, precisely, this holding means requires some
explanation. PAGA's unique features have prompted the
development of an entire vocabulary unique to the statute,
but the details, it seems, are still being worked out. An
unfortunate feature of this lexicon is that it tends to use the
word “representative” in two distinct ways, and each of
those uses of the term “representative” is connected with
one of Iskanian's rules governing contractual waiver of
PAGA claims.
In the frst sense, PAGA actions are “representative” in
that they are brought by employees acting as representa-
tives—that is, as agents or proxies—of the State. But
PAGA claims are also called “representative” when they are
predicated on code violations sustained by other employees.
In the frst sense, “ `every PAGA action is . . . representa-
tive' ” and “[t]here is no individual component to a PAGA
action,” Kim, 9 Cal. 5th, at 87, 459 P. 3d, at 1131 (quoting
Iskanian, 59 Cal. 4th, at 387, 327 P. 3d, at 151), because every
PAGA claim is asserted in a representative capacity. But
when the word “representative” is used in the second way,
it makes sense to distinguish “individual” PAGA claims,
which are premised on Labor Code violations actually sus-
tained by the plaintiff, from “representative” (or perhaps
quasi-representative) PAGA claims arising out of events in-
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649
Opinion of the Court
volving other employees. For purposes of this opinion, we
w
ill use “individual PAGA claim” to refer to claims based on
code violations suffered by the plaintiff. And we will en-
deavor to be clear about how we are usi ng the ter m
“representative.”
Iskanian's principal rule prohibits waivers of “representa-
tive” PAGA claims in the frst sense. That is, it prevents
parties from waiving representative standing to bring PAGA
claims in a judicial or arbitral forum. But Iskanian also
adopted a secondary rule that invalidates agreements to sep-
arately arbitrate or litigate “individual PAGA claims for
Labor Code violations that an employee suffered,” on the
theory that resolving victim-specifc claims in separate arbi-
trations does not serve the deterrent purpose of PAGA. 59
Cal. 4th, at 383, 327 P. 3d, at 149; see also Kim, 9 Cal. 5th,
at 88, 459 P. 3d, at 1132 (noting that based on Iskanian, Cali-
fornia courts have uniformly “rejected efforts to split PAGA
claims into individual and representative components”).
In this case, Iskanian's principal prohibition required the
lower courts to treat the representative-action waiver in the
agreement between Moriana and Viking as invalid insofar as
it was construed as a wholesale waiver of PAGA standing.
The agreement's severability clause, however, allowed en-
forcement of any “portion” of the waiver that remained valid,
so the agreement still would have permitted arbitration of
Moriana's individual PAGA claim even if wholesale enforce-
ment was impossible. But because California law prohibits
division of a PAGA action into constituent claims, the state
courts refused to compel arbitration of that claim as well.
We granted certiorari, 595 U. S. ––– (2021), and now reverse.
II
The FAA was enacted in response to judicial hostility to
arbitration. Section 2 of the statute makes arbitrati on
agreements “valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the revocation
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650 VIKING
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of any contract.” 9 U. S. C. § 2.
3
As
we have interpreted
it, this provision contains two clauses: An enforcement man-
date, which renders agreements to arbitrate enforceable as
a matter of federal law, and a saving clause, which permits
invalidation of arbitration clauses on grounds applicable to
“any contract.” See AT&T Mobility LLC v. Concepcion,
563 U. S. 333, 339–340 (2011); Epic Systems Corp. v. Lewis,
584 U. S. –––, ––– – ––– (2018). These clauses jointly estab-
lish “an equal-treatment principle: A court may invalidate an
arbitration agreement based on `generally applicable con-
tract defenses' like fraud or unconscionability, but not on
legal rules that `apply only to arbitration or that derive their
meaning from the fact that an agreement to arbitrate is at
issue.' ” Kindred Nursing Centers L. P. v. Clark, 581 U. S.
246, 251 (2017) (quoting Concepcion, 563 U. S., at 339).
Under that principle, the FAA “preempts any state rule dis-
criminating on its face against arbitration—for example, a
law `prohibit[ing] outright the arbitration of a particular type
of claim.' ” Kindred Nursing, 581 U. S., at 251 (quoting Con-
cepcion, 563 U. S., at 341).
But under our decisions, even rules that are generally ap-
plicable as a formal matter are not immune to preemption by
the FAA. See Lamps Plus, Inc. v. Varela, 587 U. S. –––, –––
(2019); Concepcion, 563 U. S., at 343. Section 2's mandate pro-
3
As we have noted, common-law hostility to arbitration “manifested it-
self in a great variety of devices and formulas.” AT&T Mobility LLC v.
Concepcion, 563 U. S. 333, 342 (2011) (internal quotation marks omitted).
Two important devices were the doctrines of ouster and revocability,
which, respectively, invalidated arbitration clauses as impermissible at-
tempts to “oust” courts of their jurisdiction and permitted parties to
revoke consent to arbitrate until the moment the arbitrator entered
an award. See, e. g., Kill v. Hollister, 1 Wils. K. B. 129, 95 Eng. Rep. 532
(K. B. 1746); Vynior's Case, 77 Co. Rep. 80a, 77 Eng. Rep. 597 (K. B. 1609).
Another was the rule barring specifc performance as a remedy for breach
of an arbitration clause. See 21 R. Lord, Williston on Contracts § 57:2
(4th ed. 2017). Section 2 abrogated these doctrines by making arbitration
agreements presumptively “valid,” “irrevocable,” and “enforceable.”
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tects a right to enforce arbitration agreements. That right
wou
ld not be a right to arbitrate in any meaningful sense if
generally applicable principles of state law could be used to
transform “traditiona[l] individualized . . . arbitration” into
the “litigation it was meant to displace” through the imposi-
tion of procedures at odds with arbitration's informal nature.
Epic Systems, 584 U. S., at –––. See also Concepcion, 563
U. S., at 351. And that right would not be a right to arbi-
trate based on an agreement if generally applicable law could
be used to coercively impose arbitration in contravention of
the “frst principle” of our FAA jurisprudence: that “[a]rbi-
tration is strictly `a matter of consent.' ” Granite Rock Co.
v. Teamsters, 561 U. S. 287, 299 (2010) (quoting Volt Informa-
tion Sciences, Inc. v. Board of Trustees of Leland Stanford
Junior Univ., 489 U. S. 468, 479 (1989)); see also Lamps Plus,
587 U. S., at –––; Stolt-Nielsen S. A. v. AnimalFeeds Int'l
Corp., 559 U. S. 662, 685 (2010).
Based on these principles, we have held that “a party may
not be compelled under the FAA to submit to class arbitra-
tion unless there is a contractual basis for concluding that
the party agreed to do so.” Id., at 684. See also Lamps
Plus, 587 U. S., at –––; Epic Systems, 584 U. S., at ––– – –––;
Concepcion, 563 U. S., at 347–348. The “ `shift from bilat-
eral arbitration to class-action arbitration' ” mandates proce-
dural changes that are inconsistent with the individualized
and informal mode of arbitration contemplated by the FAA.
Id., at 347 (quoting Stolt-Nielsen, 559 U. S., at 686). As a
result, class procedures cannot be imposed by state law with-
out presenting unwilling parties with an unacceptable choice
between being compelled to arbitrate using procedures at
odds with arbitration's traditional form and forgoing arbitra-
tion altogether. Putting parties to that choice is inconsist-
ent with the FAA.
Viking contends that these decisions require enforcement
of contractual provisions waiving the right to bring PAGA
actions because PAGA creates a form of class or collective
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proceeding. If this is correct, Iskanian's prohibition on
P
AGA waivers presents parties with the same impermissible
choice as the rules we have invalidated in our decisions con-
cerning class- and collective-action waivers: Either arbitrate
disputes using a form of class procedure, or do not arbitrate
at all.
Moriana offers a very different characterization of the
statute. As she sees it, any confict between Iskanian and
the FAA is illusory because PAGA creates nothing more
than a substantive cause of action. The only thing that is
distinctive about PAGA, she supposes, is that it allows em-
ployee plaintiffs to increase the available penalties that may
be awarded in an action by proving additional predicate vio-
lations of the Labor Code. But that does not make a PAGA
action a class action, because those violations are not distinct
claims belonging to distinct individuals. Instead, they are
predicates for expanded liability under a single cause of ac-
tion. In Moriana's view, that means Iskanian invalidates
waivers of substantive rights, and does not purport to invali-
date anything that can meaningfully be described as an “ar-
bitration agreement.”
4
4
Moriana declines to defend one of the Iskanian court's own bases for
holding that the FAA does not mandate enforcement of PAGA waivers.
The Iskanian court reasoned that a PAGA action lies outside the FAA's
coverage entirely because § 2 is limited to controversies “arising out of ”
the contract between the parties, 9 U. S. C. § 2 (emphasis added), and a
PAGA action “is not a dispute between an employer and an employee
arising out of their contractual relationship,” but “a dispute between an
employer and the state.” Iskanian v. CLS Transp. Los Angeles, LLC, 59
Cal. 4th 348, 387, 327 P. 3d 129, 151 (2014). We reject this argument.
Although the terms of § 2 limit the FAA's enforcement mandate to agree-
ments to arbitrate controversies that “arise out of ” the parties' contractual
relationship, disputes resolved in PAGA actions satisfy this requirement.
The contractual relationship between the parties is a but-for cause of any
justiciable legal controversy between the parties under PAGA, and “aris-
ing out of ” language normally refers to a causal relationship. See, e. g.,
Ford Motor Co. v. Montana Eighth Judicial Dist. Court, 592 U. S. –––, –––
(2021). And regardless of whether a PAGA action is in some sense also a
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We disagree with both characterizations of the statute.
Mor
iana is correct that the FAA does not require courts to
enforce contractual waivers of substantive rights and reme-
dies. The FAA's mandate is to enforce “arbitration agree-
ments.” Concepcion, 563 U. S., at 344 (emphasis added).
And as we have described it, an arbitration agreement is “a
specialized kind of forum-selection clause that posits not only
the situs of suit but also the procedure to be used in resolv-
ing the dispute.” Scherk v. Alberto-Culver Co., 417 U. S.
506, 519 (1974); Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, Inc., 473 U. S. 614, 633 (1985). An arbitration
agreement thus does not alter or abridge substantive rights;
it merely changes how those rights will be processed. And
so we have said that “ `[b]y agreeing to arbitrate a statutory
claim, a party does not forgo the substantive rights afforded
by the statute; it only submits to their resolution in an arbi-
tral . . . forum.' ” Preston v. Ferrer, 552 U. S. 346, 359 (2008)
(quoting Mitsubishi Motors Corp., 473 U. S., at 628).
5
But Moriana's premise that PAGA creates a unitary pri-
vate cause of action is irreconcilable with the structure of the
statute and the ordinary legal meaning of the word “claim.”
California courts interpret PAGA to provide employees with
delegated authority to assert the State's claims on a repre-
sentative basis, not an individual cause of action. See, e. g.,
Amalgamated Transit, 46 Cal. 4th, at 1003, 209 P. 3d, at 943
dispute between an employer and the State, nothing in the FAA categori-
cally exempts claims belonging to sovereigns from the scope of § 2.
5
In briefng before this Court, Viking argued that the principle that
the FAA does not mandate enforcement of provisions waiving substantive
rights is limited to federal statutes. This argument is erroneous. The
basis of this principle is not anything unique about federal statutes. It is
that the FAA requires only the enforcement of “provision[s]” to settle a
controversy “by arbitration,” § 2, and not any provision that happens to
appear in a contract that features an arbitration clause. That is why we
mentioned this principle in Preston, which concerned claims arising under
state law. See 552 U. S., at 360 (noting that under the agreement, a party
“relinquishe[d] no substantive rights . . . California law may accord him”).
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(PAGA “is simply a procedural statute” that “does not create
proper
ty rights or any other substantive rights”). And a
PAGA action asserting multiple code violations affecting a
range of different employees does not constitute “a sin-
gle claim” in even the broadest possible sense, because the
violations asserted need not even arise from a common
“transaction” or “nucleus of operative facts.” Lucky Brand
Dungarees, Inc. v. Marcel Fashions Group, Inc., 590 U. S.
–––, ––– (2020) (internal quotation marks omitted).
6
Viking 's position, on the other hand, elides important
structural differences between PAGA actions and class ac-
tions that preclude any straightforward application of our
precedents invalidating prohibitions on class-action waivers.
Class-action procedure allows courts to use a representative
plaintiff's individual claims as a basis to “adjudicate claims of
multiple parties at once, instead of in separate suits,” Shady
Grove Orthopedic Associates, P. A. v. Allstate Ins. Co., 559
U. S. 393, 408 (2010). This, of course, requires the certifca-
tion of a class. And because class judgments bind absentees
with respect to their individual claims for relief and are pre-
clusive as to all claims the class could have brought, Cooper
v. Federal Reserve Bank of Richmond, 467 U. S. 867, 874
(1984), “class representatives must at all times adequately
represent absent class members, and absent [class] members
must be afforded notice, an opportunity to be heard, and a
right to opt out of the class.” Concepcion, 563 U. S., at 349.
And to “ensur[e] that the named plaintiffs are appropriate
representatives of the class whose claims they wish to liti-
6
California courts sometimes speak as though a PAGA action involves
the assertion of “a single representative PAGA claim,” Williams v. Supe-
rior Court, 237 Cal. App. 4th 642, 649, 188 Cal. Rptr. 3d 83, 87 (2015). But
we are not required to take the labels affxed by state courts at face value
in determining whether state law creates a scheme at odds with federal
law. See, e. g., Carpenter v. Shaw, 280 U. S. 363, 367–368 (1930). And
in our view, this manner of speaking is another refection of the still-
embryonic character of the language that has grown up around PAGA.
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gate,” the adjudicator must decide questions of numerosity,
c
ommonality, typicality, and adequacy of representation.
Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338, 349 (2011).
PAGA actions also permit the adjudication of multiple
claims in a single suit, but their structure is entirely differ-
ent. A class-action plaintiff can raise a multitude of claims
because he or she represents a multitude of absent individu-
als; a PAGA plaintiff, by contrast, represents a single princi-
pal, the LWDA, that has a multitude of claims. As a result
of this structural difference, PAGA suits exhibit virtually
none of the procedural characteristics of class actions. The
plaintiff does not represent a class of injured individuals, so
there is no need for certifcation. PAGA judgments are
binding only with respect to the State's claims, and are not
binding on nonparty employees as to any individually held
claims. Arias, 46 Cal. 4th, at 986, 209 P. 3d, at 933–934.
This obviates the need to consider adequacy of representa-
tion, numerosity, commonality, or typicality. And although
the statute gives other affected employees a future interest
in the penalties awarded in an action, that interest does not
make those employees “parties” in any of the senses in which
absent class members are, see Devlin v. Scardelletti, 536
U. S. 1 (2002), or give those employees anything more than
an inchoate interest in litigation proceeds. See Vermont
Agency of Natural Resources v. United States ex rel. Ste-
vens, 529 U. S. 765, 773 (2000) (The “ `right' ” to a share of
the proceeds of a qui tam action “does not even fully mate-
r ia lize unti l the litigati on is completed and the relator
prevails”).
Because PAGA actions do not adjudicate the individual
claims of multiple absent third parties, they do not present
the problems of notice, due process, and adequacy of repre-
sentation that render class arbitration inconsistent with arbi-
tration's traditionally individualized form. See Concepcion,
563 U. S., at 347–348. Of course, as a practical matter,
PAGA actions do have something important in common with
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class actions. Because PAGA plaintiffs represent a princi-
pa
l with a potentially vast number of claims at its disposal,
PAGA suits “greatly increas[e] risks to defendants.” Id., at
350. But our precedents do not hold that the FAA allows
parties to contract out of anything that might amplify de-
fense risks. Instead, our cases hold that States cannot co-
erce individuals into forgoing arbitration by taking the
individualized and informal procedures characteristic of tra-
ditional arbitration off the table. Litigation risks are rele-
vant to that inquiry because one way in which state law may
coerce parties into forgoing their right to arbitrate is by con-
ditioning that right on the use of a procedural format that
makes arbitration artifcially unattractive. The question,
then, is whether PAGA contains any procedural mechanism
at odds with arbitration's basic form.
Viking suggests an answer. Our FAA precedents treat
bilateral arbitration as the prototype of the individualized
and informal form of arbitration protected from undue state
interference by the FAA. See Epic Systems, 584 U. S.,
at ––– – –––; see also American Express Co. v. Italian Colors
Restaurant, 570 U. S. 228, 238 (2013); Concepcion, 563 U. S.,
at 347–349; Stolt-Nielsen, 559 U. S., at 685–686. Viking pos-
its that a proceeding is “bilateral” in the relevant sense if—
but only if—it involves two and only two parties and the
arbitration “ `is conducted by and on behalf of the individual
named parties only.' ” Wal-Mart, 564 U. S., at 348 (quot-
ing Califano v. Yamasaki, 442 U. S. 682, 700–701 (1979)).
PAGA actions necessarily deviate from this ideal because
they involve litigation or arbitration on behalf of an absent
principal. Viking thus suggests that Iskanian's prohibition
on PAGA waivers is inconsistent with the FAA because
PAGA creates an intrinsically representational form of ac-
tion and Iskanian requires parties either to arbitrate in that
format or forgo arbitration altogether.
We disagree. Nothing in the FAA establishes a categori-
cal rule mandating enforcement of waivers of standing to
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assert claims on behalf of absent principals. Non-class rep-
resent
ative actions in which a single agent litigates on behalf
of a si ng le pr i ncipa l are par t of the basic arch itec ture
of much of substantive law. Familiar examples include
shareholder-derivative suits, wrongful-death actions, trustee
actions, and suits on behalf of infants or incompetent per-
sons. Single-agent, single-principal suits of this kind neces-
sarily deviate from the strict ideal of bilateral dispute resolu-
tion posited by Viking. But we have never held that the
FAA imposes a duty on States to render all forms of rep-
resentative standing waivable by contract. Nor have we
suggested that single-agent, single-principal representative
suits are inconsistent the norm of bilateral arbitration as our
precedents conceive of it. Instead, we have held that “the
`changes brought about by the shift from bilateral arbitration
to class-action arbitration' ” are too fundamental to be im-
posed on parties without their consent. Concepcion, 563
U. S., at 347–348 (quoting Stolt-Nielsen, 559 U. S., at 686; em-
phasis added). And we have held that § 2's saving clause
does not preserve defenses that would allow a party to de-
clare “that a contract is unenforceable just because it re-
quires bila teral arb i tra tion. ” Epic Systems, 584 U. S.,
at –––.
These principles do not mandate the enforcement of waiv-
ers of representative capacity as a categorical rule. Re-
quiring parties to decide whether to arbitrate or litigate a
single-agent, single-principal action does not produce a shift
from a situation in which the arbitrator must “resolv[e] a
single dispute between the parties to a single agreement”
to one in which he or she must “resolv[e] many disputes
between hundreds or perhaps even thousands of parties.”
Stolt-Nielsen, 559 U. S., at 686. And a proceeding in which
two and only two parties arbitrate exclusively in their indi-
vidual capacities is not the only thing one might mean by
“bilateral arbitration.” As we have said, “[t]he label `party'
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658 VIKING
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clusion about the applicability of various procedural rules
that
may differ based on context.” Devlin, 536 U. S., at 10.
Our precedents use the phrase “bilateral arbitration” in op-
position to “class or collective” arbitration, and the problems
we have identifed in mandatory class arbitration arise from
procedures characteristic of multiparty representative ac-
tions. Epic Systems, 584 U. S., at –––; see also Italian Col-
ors, 570 U. S., at 238; Concepcion, 563 U. S., at 347–349; Stolt-
Nielsen, 559 U. S., at 685–686. Unlike these kinds of
actions, single-principal, single-agent representative actions
are “bilateral” in two registers: They involve the rights of
only the absent real party in interest and the defendant,
and litigation need only be conducted by the agent-plaintiff
and the defendant. This degree of deviation from bilateral
norms is not alien to traditional arbitral practice,
7
and our
precedents have never suggested otherwise. See, e. g.,
Marmet Health Care Center, Inc. v. Brown, 565 U. S. 530
(2012) (per curiam) (invalidating rule categorically barring
arbitration of wrongful-death actions).
Nor does a rule prohibiting waiver of representative
standing declare “that a contract is unenforceable just be-
cause it requires bilateral arbitration.” Epic Systems, 584
U. S., at –––. Indeed, if the term “bilateral arbitration” is
used to mean “arbitration in an individual capacity between
precisely two parties,” a rule prohibiting representative-
capacity waivers cannot invalidate agreements to arbitrate
on a “bilateral” basis. An agreement that explicitly pro-
vided for “arbitration on a strictly bilateral basis” would,
under that defnition of the term “bilateral,” categorically
exclude representative-capacity claims from its coverage.
Such claims, after all, necessarily involve the representation
of an absent principal, and thus cannot be arbitrated in a
7
For example, close corporations have included arbitration clauses in
negotiated shareholder agreements for many decades. See, e. g., In re
Carl, 263 App. Div. 887, 32 N. Y. S. 2d 410 (1942); Lumsden v. Lumsden
Bros. & Taylor Inc., 242 App. Div. 852, 257 N. Y. S. 221 (1934).
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strictly bilateral proceeding. A rule prohibiting waivers of
represent
ative standing would not invalidate any agree-
ments that contracted for “bilateral arbitration” in Viking 's
sense—it would simply require parties to choose whether to
litigate those claims or arbitrate them in a proceeding that
is not bilateral in every conceivable sense. And while this
consequence only follows because it is impossible to decide
representative claims in an arbitration that is “bilateral” in
every dimension, nothing in our precedent suggests that in
enacting the FAA, Congress intended to require States to
reshape their agency law to ensure that parties will never
have to arbitrate in a proceeding that deviates from “bilat-
eral arbitration” in the strictest sense. If there is a confict
between California's prohibition on PAGA waivers and the
FAA, it must derive from a different source.
III
We think that such a confict between PAGA's procedural
structure and the FAA does exist, and that it derives from
the statute's built-in mechanism of claim joinder. As we
noted at the outset, that mechanism permits “aggrieved em-
ployees” to use the Labor Code violations they personally
suffered as a basis to join to the action any claims that could
have been raised by the State in an enforcement proceeding.
Iskanian's secondary rule prohibits parties from contracting
around this joinder device because it invalidates agreements
to arbitrate only “individual PAGA claims for Labor Code
violations that an employee suffered,” 59 Cal. 4th, at 383, 327
P. 3d, at 149.
This prohibition on contractual division of PAGA actions
into constituent claims unduly circumscribes the freedom of
parties to determine “the issues subject to arbitration” and
“the rules by which they will arbitrate,” Lamps Plus, 587
U. S., at –––, and does so in a way that violates the funda-
mental principle that “arbitration is a matter of consent,”
Stolt-Nielsen, 559 U. S., at 684. The most basic corollary of
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the principle that arbitration is a matter of consent is that
“a
party can be forced to arbitrate only those issues it spe-
cifcally has agreed to submit to arbitration,” First Options
of Chicago, Inc. v. Kaplan, 514 U. S. 938, 945 (1995). This
means that parties cannot be coerced into arbitrating a claim,
issue, or dispute “absent an affrmative `contractual basis for
concluding that the party agreed to do so.' ” Lamps Plus,
587 U. S., at ––– (quoting Stolt-Nielsen, 559 U. S., at 684); see
also Concepcion, 563 U. S., at 347–348.
For that reason, state law cannot condition the enforceabil-
ity of an arbitration agreement on the availability of a proce-
dural mechanism that would permit a party to expand the
scope of the arbitration by introducing claims that the par-
ties did not jointly agree to arbitrate. Rules of claim joinder
can function in precisely that way. Modern civil procedure
dispenses with the formalities of the common-law approach
to claim joinder i n favor of a lmost-unqua li fied joinder.
Wright & Miller § 1581. Federal Rule of Civil Procedure
18(a), which permits a party to “join, as independent or alter-
native claims, as many claims as it has against an opposing
party,” is typical of the modern approach. But the FAA li-
censes contracting parties to depart from standard rules “in
favor of individualized arbitration procedures of their own
design,” so parties to an arbitration agreement are not re-
quired to follow the same approach. Epic Systems, 584
U. S., at –––. And that is true even if bifurcated proceed-
ings are an inevitable result. See, e. g., Dean Witter Rey-
nolds Inc. v. Byrd, 470 U. S. 213, 220–221 (1985); Moses H.
Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S.
1, 103 (1983).
A state rule imposing an expansive rule of joinder in the
arbitral context would defeat the ability of parties to control
which claims are subject to arbitration. Such a rule would
permit parties to superadd new claims to the proceeding,
regardless of whether the agreement between them com-
mitted those claims to arbitration. Requiring arbitration
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procedures to include a joinder rule of that kind compels par-
ties
to either go along with an arbitration in which the range
of issues under consideration is determined by coercion
rather than consent, or else forgo arbitration altogether.
Either way, the par ties are coerced i nto g iv i ng up a
right they enjoy under the FAA. See Lamps Plus, 587
U. S., at ––– – –––; Epic Systems, 584 U. S., at ––– – –––; Con-
cepcion, 563 U. S., at 347–351; Stolt-Nielsen, 559 U. S., at
684–687.
When made compulsory by way of Iskanian, the joinder
rule internal to PAGA functions in exactly this way. Under
that rule, parties cannot agree to restrict the scope of an
arbitration to disputes arising out of a particular “ ` “transac-
tion” ' ” or “ `common nucleus of operative facts.' ” Lucky
Brand, 590 U. S., at –––. If the parties agree to arbitrate
“individual” PAGA claims based on personally sustained vio-
lations, Iskanian allows the aggrieved employee to abrogate
that agreement after the fact and demand either judicial pro-
ceedings or an arbitral proceeding that exceeds the scope
jointly intended by the parties. The only way for parties to
agree to arbitrate one of an employee's PAGA claims is to
also “agree” to arbitrate all other PAGA claims in the same
arbitral proceeding.
The effect of Iskanian's rule mandating this mechanism is
to coerce parties into withholding PAGA claims from arbitra-
tion. Liberal rules of claim joinder presuppose a backdrop
in which litigants assert their own claims and those of a lim-
ited class of other parties who are usually connected with
the plaintiff by virtue of a distinctive legal relationship—
such as that between shareholders and a corporation or be-
tween a parent and a minor child. PAGA departs from that
norm by granting the power to enforce a subset of California
public law to every employee in the State. This combination
of standing to act on behalf of a sovereign and mandatory
freeform joinder allows plaintiffs to unite a massive number
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662 VIKING
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“ [a]rbitrati on is poor ly suited to the h igher st akes” of
massive-sca
le disputes of this kind. Concepcion, 563 U. S.,
at 350. The absence of “multilayered review” in arbitral
proceedings “makes it more likely that errors will go uncor-
rected.” Ibid. And suits featuring a vast number of claims
entail the same “risk of `in terrorem' settlements that class
actions entail.” Ibid. As a result, Iskanian's indivisibility
rule effectively coerces parties to opt for a judicial forum
rather than “forgo[ing] the procedural rigor and appellate
review of the courts in order to realize the benefts of private
dispute resolution.” Stolt-Nielsen, 559 U. S., at 685; see
also Concepcion, 563 U. S., at 350–351. This result is incom-
patible with the FAA.
IV
We hold that the FAA preempts the rule of Iskanian inso-
far as it precludes division of PAGA actions into individual
and non-individual claims through an agreement to arbitrate.
This holding compels reversal in this case. The agreement
between Viking and Moriana purported to waive “repre-
sentative” PAGA claims. Under Iskanian, this provision
was invalid if construed as a wholesale waiver of PAGA
claims. And under our holding, that aspect of Iskanian is
not preempted by the FAA, so the agreement remains in-
valid insofar as it is interpreted in that manner. But the
severability clause in the agreement provides that if the
waiver provision is invalid in some respect, any “portion”
of the waiver that remains valid must still be “enforced in
arbitration.” Based on this clause, Viking was entitled to
enforce the agreement insofar as it mandated arbitration of
Moriana's individual PAGA claim. The lower courts refused
to do so based on the rule that PAGA actions cannot be di-
vided into individual and non-individual claims. Under our
holding, that rule is preempted, so Viking is entitled to com-
pel arbitration of Moriana's individual claim.
The remaining question is what the lower courts should
have done with Moriana's non-individual claims. Under our
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Sotomayor, J., concurring
holding in this case, those claims may not be dismissed sim-
ply
because they are “representative.” Iskanian's rule re-
mains valid to that extent. But as we see it, PAGA provides
no mechanism to enable a court to adjudicate non-individual
PAGA claims once an individual claim has been committed
to a separate proceeding. Under PAGA's standing require-
ment, a plaintiff can maintain non-individual PAGA claims in
an action only by virtue of also maintaining an individual
claim in that action. See Cal. Lab. Code Ann. §§ 2699(a), (c).
When an employee's own dispute is pared away from a PAGA
action, the employee is no different from a member of the
general public, and PAGA does not allow such persons to
maintain suit. See Kim, 9 Cal. 5th, at 90, 459 P. 3d, at 1133
(“PAGA's standing requirement was meant to be a departure
from the `general public' . . . standing originally allowed”
under other California statutes). As a result, Moriana lacks
statutory standing to continue to maintain her non-individual
claims in court, and the correct course is to dismiss her re-
maining claims.
For these reasons, the judgment of the California Court
of Appeal is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.
It is so ordered.
Justice Sotomayor, concurring.
I join the Court's opinion in full. The Court faithfully ap-
plies precedent to hold that California's anti-waiver rule for
claims under the State's Labor Code Private Attorneys Gen-
eral Act of 2004 (PAGA) is pre-empted only “insofar as it
precludes division of PAGA actions into individual and non-
individual claims through an agreement to arbitrate.” Ante,
at 662. In its analysis of the parties' contentions, the Court
also details several important limitations on the pre-emptive
effect of the Federal Arbitration Act (FAA). See ante, at
653–659. As a whole, the Court's opinion makes clear that
California is not powerless to address its sovereign concern
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664 VIKING
RIVER CRUISES, INC. v. MORIANA
Opinion of Barrett, J.
that it cannot adequately enforce its Labor Code without as-
sist
ance from private attorneys general.
The Court concludes that the FAA poses no bar to the
adjudication of respondent Angie Moriana's “non-individual”
PAGA claims, but that PAGA itself “provides no mechanism
to enable a court to adjudicate non-individual PAGA claims
once an individual claim has been committed to a separate
proceeding.” Ante, at 663. Thus, the Court reasons, based
on available guidance from California courts, that Moriana
lacks “statutory standing ” under PAGA to litigate her “non-
individua l” claims separately in state court. Ib i d. Of
course, if this Court's understanding of state law is wrong,
California courts, in an appropriate case, will have the last
word. Alternatively, if this Court's understanding is right,
the California Legislature is free to modify the scope of stat-
utory standing under PAGA within state and federal consti-
tutional limits. With this understanding, I join the Court's
opinion.
Justice Barrett, with whom Justice Kavanaugh joins,
and with whom The Chief Justice joins except as to the
footnote, concurring in part and concurring in the judgment.
I joi n Par t III of the Cour t's opi ni on. I agree that
reversal is required under our precedent because PAGA's
procedure is akin to other aggregation devices that cannot
be imposed on a party to an arbitration agreement. See,
e. g., Stolt-Nielsen S. A. v. AnimalFeeds Int'l Corp., 559 U. S.
662 (2010); AT&T Mobility LLC v. Concepcion, 563 U. S. 333
(2011); Epic Systems Corp. v. Lewis, 584 U. S. ––– (2018);
Lamps Plus, Inc. v. Varela, 587 U. S. ––– (2019). I would
say nothing more than that. The discussion in Parts II and
IV of the Court's opinion is unnecessary to the result, and
much of it addresses disputed state-law questions as well as
arguments not pressed or passed upon in this case.*
*The same is true of Part I.
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Cite
as: 596 U. S. 639 (2022)
665
Thomas, J., dissenting
Justice Thomas, dissenting.
I
continue to adhere to the view that the Federal Arbitra-
tion Act (FAA), 9 U. S. C. § 1 et seq., does not apply to pro-
ceedings in state courts. See Allied-Bruce Terminix Cos.
v. Dobson, 513 U. S. 265, 285–297 (1995) (Thomas, J., dissent-
ing); see also Kindred Nursing Centers L. P. v. Clark, 581
U. S. 246, 257 (2017) (Thomas, J., dissenting) (collecting
cases). Accordingly, the FAA does not require California's
courts to enforce an arbitration agreement that forbids an
employee to invoke the State's Private Attorneys General
Act. On that basis, I would affrm the judgment of the Cali-
fornia Court of Appeal.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 661, line 14: “operative” is inserted before “facts”