United States District Court, E.D. California
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, CALIFORNIA CHAMBER OF COMMERCE, NATIONAL RETAIL FEDERATION, CALIFORNIA RETAILERS ASSOCIATION, NATIONAL ASSOCIATION OF SECURITY COMPANIES, HOME CARE ASSOCIATION OF AMERICA, and CALIFORNIA ASSOCIATION FOR HEALTH SERVICES AT HOME, Plaintiffs,
XAVIER BECERRA, in his official capacity as the Attorney General of the State of California, LILIA GARCIA BROWER, in her official capacity as the Labor Commissioner of the State of California, JULIE A. SU, in her official capacity as the Secretary of the California Labor and Workforce Development Agency, and KEVIN KISH, in his official capacity as Director of the Department of Fair Employment and Housing of the State of California, Defendants.
ORDER GRANTING TEMPORARY RESTRAINING ORDER AND
SETTING EXPEDITED HEARING ON PRELIMINARY INJUNCTION
matter is before the court on plaintiffs' motion for
temporary restraining order, seeking to restrain the
California law passed as Assembly Bill (AB) 51 from taking
effect January 1, 2020. AB 51 prohibits employers from
requiring, as a condition of employment, employees'
waiver of any right, forum or procedure for a violation of
any provision of the California Fair Employment and Housing
Act or the Labor Code. See Cal. Lab. Code §
432.6. All parties were given notice and the court held a
telephonic hearing on December 23, 2019, at which counsel
Donald Falk, Archis Parasharami and Bruce Sarchet appeared
for plaintiffs, and counsel Chad Stegeman appeared for
defendants. Having considered plaintiffs' papers filed in
support of their motion for a temporary restraining order,
defendants' written opposition thereto, counsel's
arguments at the telephonic status and for good cause shown,
the court hereby enters the following order:
court finds that a temporary restraining order is warranted
as provided by Federal Rule of Civil Procedure 65 and Civil
Local Rule 231. While plaintiffs filed their motion with very
little time to spare and could have sought the court's
intervention somewhat earlier, the court nevertheless finds
plaintiffs have carried their burden, at this early stage on
a tightly compressed timeline, by raising serious questions
going to the merits and showing that the balance of hardship
tips decidedly in their favor. See All. for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir.
2011). Plaintiffs also have shown a likelihood of irreparable
injury and that a restraining order is in the public
interest. Id. at 1135 (all four prongs of test
articulated in Winter v. Natural Resources Defense
Council, 555 U.S. 7 (2008) must be met for
“serious questions” to support issuance of
preliminary injunctive relief). Specifically, plaintiffs have
raised serious questions regarding whether the challenged
statute is preempted by the Federal Arbitration Act as
construed by the United States Supreme Court. See Kindred
Nursing Centers Ltd. P'ship v. Clark, 137 S.Ct. 1421
(2017). Plaintiffs' argument that allowing the statute to
take effect even briefly, if it is preempted, will cause
disruption in the making of employment contracts also is
persuasive and supports the other three Winter
factors, particularly given the criminal penalties to which
violators of the law may be exposed. See Cal. Lab.
Code § 433 (“Any person violating this article is
guilty of a misdemeanor.”). The court finds that
plaintiffs have no other adequate legal remedy to preserve
the status quo for a short period of time until the court can
consider their motion for a preliminary injunction on a more
well-developed record, with full opposition briefing as well.
IT IS HEREBY ORDERED that plaintiffs' motion for a
temporary restraining order is GRANTED.
court orders as follows:
Defendant Xavier Becerra, in his official capacity as the
Attorney General of the State of California, Lilia Garcia
Brower, in her official capacity as the Labor Commissioner of
the State of California, Julia A. Su, in her official
capacity as the Secretary of the California Labor and
Workforce Development Agency, and Kevin Kish, in his official
capacity as Director of the California Department of Fair
Employment and Housing are temporarily enjoined from
enforcing AB 51, pending this court's resolution of
plaintiffs' motion for a preliminary injunction.
There is no realistic likelihood of harm to defendants from
temporarily enjoining enforcement of AB 51, so no security
bond is required.
Plaintiffs' motion for a preliminary injunction will be
heard on January 10, 2020 at 10:00 AM.
Defendants have filed their opposition to the motion for a
preliminary injunction. ...