Chamber of Commerce of the USA v. Becerra ( 2019 )

1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 CHAMBER OF COMMERCE OF THE 11 UNITED STATES OF AMERICA, CALIFORNIA CHAMBER OF COMMERCE, 12 NATIONAL RETAIL FEDERATION, CALIFORNIA RETAILERS ASSOCIATION, Case No. 2:19-cv-02456-KJM-DB 13 NATIONAL ASSOCIATION OF SECURITY COMPANIES, HOME CARE ASSOCIATION ORDER GRANTING TEMPORARY 14 OF AMERICA, and CALIFORNIA RESTRAINING ORDER AND SETTING ASSOCIATION FOR HEALTH SERVICES EXPEDITED HEARING ON 15 AT HOME, PRELIMINARY INJUNCTION 16 Plaintiffs, 17 v. 18 XAVIER BECERRA, in his official capacity as 19 the Attorney General of the State of California, LILIA GARCIA BROWER, 20 in her official capacity as the Labor Commissioner of the State of California, JULIE 21 A. SU, in her official capacity as the Secretary of the California Labor and Workforce 22 Development Agency, and KEVIN KISH, in his 23 official capacity as Director of the Department of Fair Employment and Housing of 24 the State of California, 25 Defendants. 26 27 28 2 seeking to restrain the California law passed as Assembly Bill (AB) 51 from taking effect January 3 1, 2020. AB 51 prohibits employers from requiring, as a condition of employment, employees’ 4 waiver of any right, forum or procedure for a violation of any provision of the California Fair 5 Employment and Housing Act or the Labor Code. See Cal. Lab. Code § 432.6. All parties were 6 7 given notice and the court held a telephonic hearing on December 23, 2019, at which counsel 8 Donald Falk, Archis Parasharami and Bruce Sarchet appeared for plaintiffs, and counsel Chad 9 Stegeman appeared for defendants. Having considered plaintiffs’ papers filed in support of their 10 motion for a temporary restraining order, defendants’ written opposition thereto, counsel’s 11 arguments at the telephonic status and for good cause shown, the court hereby enters the following 12 order: 13 The court finds that a temporary restraining order is warranted as provided by Federal Rule 14 15 of Civil Procedure 65 and Civil Local Rule 231. While plaintiffs filed their motion with very little 16 time to spare and could have sought the court’s intervention somewhat earlier, the court 17 nevertheless finds plaintiffs have carried their burden, at this early stage on a tightly compressed 18 timeline, by raising serious questions going to the merits and showing that the balance of hardship 19 tips decidedly in their favor. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th 20 Cir. 2011). Plaintiffs also have shown a likelihood of irreparable injury and that a restraining order 21 22 is in the public interest. Id. at 1135 (all four prongs of test articulated in Winter v. Natural 23 Resources Defense Council, 555 U.S. 7 (2008) must be met for “serious questions” to support 24 issuance of preliminary injunctive relief). Specifically, plaintiffs have raised serious questions 25 regarding whether the challenged statute is preempted by the Federal Arbitration Act as construed 26 by the United States Supreme Court. See Kindred Nursing Centers Ltd. P’ship v. Clark, 137 S. 27 Ct. 1421 (2017). Plaintiffs’ argument that allowing the statute to take effect even briefly, if it is 28 2 supports the other three Winter factors, particularly given the criminal penalties to which violators 3 of the law may be exposed. See Cal. Lab. Code § 433 (“Any person violating this article is guilty 4 of a misdemeanor.”). The court finds that plaintiffs have no other adequate legal remedy to 5 preserve the status quo for a short period of time until the court can consider their motion for a 6 7 preliminary injunction on a more well-developed record, with full opposition briefing as well. 8 Accordingly, IT IS HEREBY ORDERED that plaintiffs’ motion for a temporary 9 restraining order is GRANTED. 10 The court orders as follows: 11 1. Defendant Xavier Becerra, in his official capacity as the Attorney General of the State 12 of California, Lilia Garcia Brower, in her official capacity as the Labor Commissioner of the State 13 of California, Julia A. Su, in her official capacity as the Secretary of the California Labor and 14 15 Workforce Development Agency, and Kevin Kish, in his official capacity as Director of the 16 California Department of Fair Employment and Housing are temporarily enjoined from enforcing 17 AB 51, pending this court’s resolution of plaintiffs’ motion for a preliminary injunction. 18 2. There is no realistic likelihood of harm to defendants from temporarily enjoining 19 enforcement of AB 51, so no security bond is required. 20 3. Plaintiffs’ motion for a preliminary injunction will be heard on January 10, 2020 at 21 22 10:00 AM. Defendants have filed their opposition to the motion for a preliminary injunction. 23 Plaintiffs may file any written reply by January 3, 2020. 24 IT IS SO ORDERED. 25 DATED: December 29, 2019. 26 27 28