We previously wrote about Chamber of Commerce v. Bonta, 13 F.4th 766 (9th Cir. 2021), in which a split panel of the Ninth Circuit held that the Federal Arbitration Act does not preempt a California Labor Code provision prohibiting employers from requiring applicants or employees “to waive any right, forum, or procedure” for certain claims. The majority reasoned that the California law escaped preemption because it was not specific to arbitration and regulated “pre-agreement” behavior as opposed to the agreements themselves.
Shortly thereafter, appellees sought rehearing en banc. In February 2022, the same panel majority agreed to defer consideration of the petition pending disposition of Viking River Cruises v. Moriana, where the Supreme Court was poised to decide whether the FAA preempted a different California law.
In June, the Supreme Court decided Viking River Cruises v. Moriana, 142 S. Ct. 1906 (2022), holding that the FAA preempted a California rule to the extent that the rule precluded division of certain representative claims via an agreement to arbitrate because that indivisibility “effectively coerce[d] parties to opt for a judicial forum” – a result that the Court deemed “incompatible with the FAA.” By order dated August 22, 2022, a different majority of the Bonta panel voted sua sponte to grant panel rehearing, withdrawing the original Bonta opinion and denying as moot the petition for rehearing en banc. The order did not explain its reasons for granting rehearing or indicate how the panel now expects to decide the case.