Dustin Dow

The Legality of Class Action Waivers in Arbitration Agreements – SCOTUS Finally Speaks in Epic Systems v. Lewis

By John Lewis and Dustin Dow on May 21, 2018 Posted in Class Action Litigation

The controversy surrounding the validity of employment arbitration agreements with class action waivers has been simmering since at least 2012. Now, with the Supreme Court’s decision in Epic Systems Corp. v. Lewis, we have an answer: They “must be enforced as written” despite any debatable policy within the National Labor Relations Act that suggests otherwise. … Continue Reading

Digging In Its Heels: Disputing The DOJ’s Position, The NLRB Remains Defiant In Supreme Court Brief That Individual Arbitration Agreements Violate Employee Rights Under The NLRA

By Dustin Dow and John Lewis on August 11, 2017 Posted in Arbitration Agreements, National Labor Relations Act, NLRB

On August 9 the National Labor Relations Board (NLRB or Board) filed its responsive brief in one of three cases before the Supreme Court that may determine the future validity of individual arbitration agreements in the employment sector. Since 2012, the Board’s position has been that arbitration agreements prohibiting collective or class litigation or arbitration … Continue Reading

Arbitrating PAGA Claims: The Ninth Circuit Compels It in the Valdez Case

By John Lewis and Dustin Dow on March 8, 2017 Posted in Arbitration

So much case law has come down in the past several years regarding California’s Private Attorneys General Act (PAGA) – and its ability to withstand class and representative action waivers – that observers might have overestimated PAGA’s arbitration-avoidance powers. The Ninth Circuit Court of Appeals offered a reminder on Tuesday that even though an arbitration … Continue Reading

Justices to Consider Arbitration Agreements With Class Waivers – The End of the Beginning?

By John Lewis and Dustin Dow on January 17, 2017 Posted in Arbitration

Apologies to Winston Churchill,[1] but the conflict over the enforcement of arbitration agreements with class waivers has become an ongoing legal and ideological struggle. Some view individual arbitration as a quicker and less costly means to resolve employment disputes, while others believe it is a means to deprive employees of their legal rights. Since 2012, … Continue Reading

Sixth Circuit Rejects Class Action Settlement With Key Documents Under Seal

By Dustin Dow on June 7, 2016 Posted in Collective Action

All’s not fair in secretive class-action settlements. If class actions are the exception (see Wal-Mart Stores, Inc. v. Dukes), then class-action settlements are a reflection of that exception. Specifically, the secrecy that might otherwise accompany dispute resolution is usually not permitted in class-action settlement, whether pursuant to Rule 23 or under the Fair Labor Standards … Continue Reading

Lewis v. Epic Systems Opinion – Seventh Circuit Swimming Against the Tide on Mandatory Individual Arbitration

By John Lewis and Dustin Dow on May 31, 2016 Posted in Arbitration

In a sweeping May 26 opinion, the U.S. Court of Appeals for the Seventh Circuit shook up the arbitral landscape and created a remarkable circuit split regarding the enforceability of arbitration agreements with class action waivers in the employment sector. In Lewis v. Epic Systems Corp., No. 15-2997, the Seventh Circuit held that an arbitration … Continue Reading

Standing Together to a Point: Spokeo Holding Reflects Broad Supreme Court Agreement on Standing Rules in Actions Raising Statutory Violations

By John Lewis and Dustin Dow on May 17, 2016 Posted in FCRA

Amid the meteoric rise of statutory damage class action filings, the Supreme Court laid out ground rules on Monday for when a case meets both components of the injury-in-fact requirements of Article III. In a 6-2 opinion in Spokeo, Inc. v. Robins, No. 13-1339, written by Justice Samuel Alito, the Court held that a named … Continue Reading

Tyson Foods, Inc. v. Bouaphakeo: The Supreme Court Produces a Narrow Holding Involving FLSA Precedent and Rule 23 Principles

By John Lewis and Dustin Dow on March 25, 2016 Posted in FLSA, Rule 23

Employees have been bringing wage-and-hour collective actions since long before class procedures were officially integrated into the Federal Rules of Civil Procedures in 1966. Section 16(b) of the Fair Labor Standards Act (FLSA) permitted collective actions when it was passed in 1938. In 1946, the Supreme Court in Anderson v. Mt. Clemens Pottery Co., 328 … Continue Reading

The Supreme Court’s denial of certiorari in Iskanian only hardens the federal-state divide over PAGA claims

By John Lewis and Dustin Dow on January 21, 2015 Posted in Arbitration, PAGA

The divide continues between California and federal law on whether an arbitration agreement can entirely waive an employee’s ability to seek classwide or multiparty representational relief. The Supreme Court on Tuesday denied certiorari in CLS Transp. Los Angeles LLC v. Iskanian, No. 14-341, leaving in place the California Supreme Court’s June 23 ruling that representative … Continue Reading

High-Court Showdown Looming? NLRB Defends D.R. Horton Section 7 Decision with Full-Throated Rebuttal in Murphy Oil

By Dustin Dow on November 4, 2014 Posted in Arbitration, NLRB

In the wake of federal circuit courts rejecting its position on the issue of class action waivers, the National Labor Relations Board is digging in its heels, perhaps preparing itself for a Supreme Court battle. Employers must continue to beware that their employment arbitration agreements barring class claims may still be found unenforceable by the … Continue Reading

The California Divide: Federal Courts Refuse to Follow State Supreme Court’s Iskanian Decision

By John Lewis and Dustin Dow on October 22, 2014 Posted in Arbitration, PAGA

One of the last barriers to full enforcement of arbitration agreements with class action waivers sustained another blow last week. A California federal district court disagreed with the California Supreme Court in holding that an employment arbitration agreement can waive an employee’s right to pursue a representative claim under the state’s Private Attorney General Act … Continue Reading

California Supreme Court Again Considers the Validity of Class and Representative Action Waivers

By John Lewis and Dustin Dow on June 23, 2014 Posted in PAGA

Today, in a highly-anticipated decision, the California Supreme Court in Iskanian v. CLS Transportation Los Angeles, Inc. (Case No. S204032), resolved several long-standing questions regarding the impact of class and representative action waivers under California law. The Court’s prior Discovery Bank v. Superior Court (2005),decision was invalidated by the U.S. Supreme Court in AT&T Mobility … Continue Reading