Archives: Arbitration

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Divided Ninth Circuit Reinstates Part of California’s Anti-Arbitration Law

Photo of Greg MersolPhoto of Joseph S. PersoffBy Greg Mersol and Joseph S. Persoff on Posted in Antitrust, Arbitration, California, Supreme Court, Uncategorized
For many years, state and federal courts in California have opposed arbitration and have manufactured frameworks under which they become unenforceable despite the clear directives of the Federal Arbitration Act (FAA) and countless Supreme Court cases. While a string of Supreme Court cases over the past decade gave employers some respite, the Ninth Circuit has … Continue Reading

Spending Bill Would Place Class Action Waivers in Jeopardy

Photo of Greg MersolBy Greg Mersol on Posted in Arbitration Agreements, Collective Action, FLSA, Supreme Court
Only three years ago, the Supreme Court reversed the holdings of a large number of lower courts and held that class action waivers in arbitration agreements were enforceable. Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018). We blogged about that decision here.  With the Supreme Court’s ruling, many employers either adopted such agreements … Continue Reading

Arbitration Agreement with Conflicting Provision in Two Languages Saved by FAA Default Rule

Photo of John LewisBy John Lewis on Posted in Arbitration Agreements
The California Court of Appeal for the Second Appellate District recently added clarity to a somewhat puzzling trial court decision that had sent an employment dispute to nonbinding arbitration. See Western Bagel Co. Inc. v. Superior Court of Los Angeles County and Jose Calderon, Case No. B305625 California Court of Appeal, Second Appellate Dist. (filed … Continue Reading

Has the 11th Circuit Clarified the Transportation Worker Exemption of the FAA or Just Created a Circuit Split?

Photo of John LewisBy John Lewis on Posted in Arbitration
In a published June 22 opinion, the Eleventh Circuit laid out a clear test for the Federal Arbitration Act (FAA) Section 1 exemption. It answered the reoccurring question “Who is a transportation worker?” See Hamrick v. Partsfleet, LLC, No. 19-13339, 2021 WL2546405 (11th Cir. June 22, 2021). Hamrick involved final-mile delivery drivers who transported goods … Continue Reading

Ohio District Court Rejects Multiple Challenges to Electronically Signed Arbitration Agreement

Photo of Greg MersolBy Greg Mersol on Posted in Arbitration Agreements
Following the United States Supreme Court’s decision three years ago in Epic Systems Corp. v. Lewis, courts have increasingly enforced arbitration agreements with class action waivers. We blogged about the Epic Systems decision here. While most courts and attorneys now accept the Epic Systems holdings, challenges are still being made but with generally little success, … Continue Reading

The Supreme Court Now To Determine the Boundaries of Federal Court Jurisdiction Over Federal Arbitration Act Proceedings

Photo of John LewisBy John Lewis on Posted in Arbitration
The U.S. Supreme Court has now granted certiorari to decide if federal courts have subject matter jurisdiction to confirm or vacate an arbitration award under the Federal Arbitration Act (FAA), Sections 9 and 10.  9 U.S.C. §§ 9 & 10.  See Badgerow v. Walters, No. 20-1143 (Cert. granted 5-17-21).  The question presented is “[w]hether federal … Continue Reading

Opinion of Wisconsin District Judge Again Illustrates that Arbitration Is a Creature of Contract

Photo of John LewisBy John Lewis on Posted in Arbitration
In deciding a reoccurring issue, Judge James D. Peterson of the Western District of Wisconsin found no valid arbitration agreement existed, because of a disclaimer in a 48-page employee handbook. See O’Bryan v. Pember Companies, Inc., Case No. 20-cv-664jdp, 2021 U.S. Dist. LEXIS 88300 (N.D. Wisc. May 10, 2021). In O’Bryan, an employee of Pember … Continue Reading

Can You Waive Appellate Review of an Arbitration Award? The Fourth Circuit Says Yes

Photo of John LewisBy John Lewis on Posted in Arbitration
Many arbitration agreements address the finality of any resulting award, with differing and sometimes vague language. A number of readers might assume that regardless of the agreement language, federal courts still retain jurisdiction to review awards under the Federal Arbitration Act, 9 U.S.C. § 10 (FAA). As a recent Fourth Circuit opinion reveals, the interpretation … Continue Reading

Order Sending Former Mail Sorter to Arbitration Teaches Some Lessons About Who Is a Transportation Worker and Agreement Coverage

Photo of John LewisBy John Lewis on Posted in Arbitration, Arbitration Agreements, California
Since 2019, we have been tracking the decisions struggling to interpret the scope of the Federal Arbitration Act (FAA) Section 1 exemption for transportation workers. In other words, we’ve looked at who qualifies as a transportation worker “actually engaged in the movement of goods in interstate commerce,” as Circuit City Stores Inc. v. Adams, 532 … Continue Reading

Implicit Waiver of The Right to Arbitrate by Litigation – A Massachusetts District Court Addresses The Factors

Photo of John LewisBy John Lewis on Posted in Arbitration
Complex cases can present difficult legal issues but may also illuminate how courts evaluate questions such as when a party has waived its right to arbitrate. This is true regardless of the type of claims presented because the analytical framework spans diverse areas of law. District Judge Allison D. Burroughs’ recent Memorandum and Order addresses … Continue Reading

Once More Before the High Court – Henry Schein, Inc. v. Archer And White Sales, Inc. – But New Questions Emerge

Photo of John LewisBy John Lewis on Posted in Arbitration Agreements
We know now under Epic Systems that arbitration agreements with class action waivers can be enforced, but questions continue to emerge from specific arbitral agreements and instances where they are silent on certain issues, such as who determines whether a dispute is arbitrable in the first place. In 2019, some may have thought that the … Continue Reading

Food Delivery Driver Opinion Sheds More Light on the FAA Exemption and Use of CPR Arbitration Rules

Photo of John LewisBy John Lewis on Posted in Arbitration
Plaintiff Jacob McGrath filed a nationwide Fair Labor Standards Act (FLSA) action ultimately involving approximately 4,000 food delivery drivers for DoorDash Inc. alleging that the drivers, known as “Dashers,” were misclassified as independent contractors and not paid for all hours they worked. DoorDash responded by filing a motion to compel arbitration for those individuals who … Continue Reading

Florida Decision Involving Workers Unable to Read English Illustrates the Basics for an Enforceable Arbitration Agreement

Photo of John LewisBy John Lewis on Posted in Arbitration Agreements
Sometimes, a decision can detail the requirements for an enforceable employee arbitration agreement better than a legal treatise. That is certainly true in Gustave v. SBE ENT Holdings, LLC, No. 1:19-cv-23961 (S.D. Fla. Sept. 30, 2020). In Gustave, 19 former food and beverage or kitchen workers at the Delano Hotel in Miami Beach, Florida, brought … Continue Reading

Ninth Circuit Doesn’t Require Uber to Litigate Driver’s Data Security Breach Putative Class Action

Photo of John LewisBy John Lewis on Posted in Arbitration
A Ninth Circuit panel denied a mandamus petition attempting to overturn a district court order requiring arbitration of a putative class action brought by an Uber driver. The action claimed that Uber failed to protect drivers’ and riders’ personal information and botched a data security breach by online hackers. The district court ultimately concluded that … Continue Reading

Who Is ‘Engaged in Commerce’ Under FAA Section 1? Not Food Delivery Drivers

Photo of John LewisBy John Lewis on Posted in Arbitration
Certain Grubhub Inc. delivery drivers brought two putative collective and class actions asserting that they were misclassified as independent contractors, resulting in both federal and state wage and hour violations. The drivers – who worked in Chicago, Portland and New York – had signed Delivery Service Provider Agreements that required arbitration but claimed their agreements … Continue Reading

Arbitrator’s Joke Not Sufficient to Vacate Award in Putative Antitrust Class Action

Photo of John LewisBy John Lewis on Posted in Arbitration
A poor joke and unsubstantiated hero worship were insufficient to overturn an arbitrator’s award in favor of Travis Kalanick and Uber Technologies Inc., according to U.S. District Judge Jed S. Rakoff. In an Aug. 3 memorandum and order, Rakoff denied the plaintiff’s motion to vacate an arbitration award in the defendants’ favor arising from a … Continue Reading

The Third Circuit Demonstrates That Arbitration Rules Really Do Matter

Photo of John LewisBy John Lewis on Posted in Arbitration
Some may have wondered whether mentioning the rules of an administrative organization, such as the American Arbitration Association (AAA), in an arbitration agreement could have a legal impact.  It can. A number of decisions have considered how referencing specific arbitral rules can affect delegation of authority to an arbitrator or aggregate action issues. See our … Continue Reading

Another Court Rules on When Ride-Sharing Drivers Are Exempt From Arbitration

Photo of John LewisBy John Lewis on Posted in Arbitration
In this time of concern regarding the COVID-19 pandemic, there are other challenges still confronting companies. One involves the standard for enforcing arbitration agreements involving transportation workers. Or, stated differently, when drivers may be exempt from the Federal Arbitration Act (FAA). We have previously covered the courts’ struggles to deal with the fallout from New … Continue Reading

California District Court Releases Opinion Invalidating AB 51

Photo of Greg MersolBy Greg Mersol on Posted in Arbitration
Two Centuries of Federal Precedent Given Effect We’ve blogged several times the ongoing saga involving AB 51, California’s attempt to prevent the mandatory arbitration of employment claims largely by sanctioning employers who use such agreements. (Oct. 11, Dec. 30 and Jan. 16) Much of that saga currently focuses on the case of Chamber of Commerce … Continue Reading

District Court Preliminarily Enjoins Enforcement of California’s A.B. 51 Anti-Arbitration Law

Photo of John LewisPhoto of Joseph S. PersoffBy John Lewis and Joseph S. Persoff on Posted in Arbitration
Since Oct. 11, 2019, we have been blogging about California’s new anti-arbitration law and the injunctive action filed before Chief District Judge Kimberly J. Mueller to enjoin it. Chamber of Commerce of the United States of America v. Bacerra, No. 2:19-cv-02456 (E.D. Cal.). See our blog articles of Oct. 11, 2019, Dec. 30, 2019 and … Continue Reading
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