Archives: Arbitration

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Smoother Sailing Ahead for PAGA Arbitrability Under Viking River Cruises Decision

Photo of Matthew KanePhoto of Sylvia KimPhoto of Amy E. BeverlinBy Matthew Kane, Sylvia Kim and Amy E. Beverlin on Posted in Arbitration, Arbitration Agreements
On June 15, the U.S. Supreme Court finally brought closure to the long-running, unsettled issue of whether California’s prohibition against arbitration agreement waivers of the right to bring representative actions under the California Labor Code Private Attorneys General Act (PAGA) is preempted by the Federal Arbitration Act (FAA). California’s appellate courts and the Ninth Circuit … Continue Reading

Supreme Court Resolves Whether an Airline Ramp Supervisor Falls Within the Transportation Worker Exemption of the FAA

Photo of John LewisBy John Lewis on Posted in Arbitration
For years courts have been struggling to determine the proper application of the Section 1 exemption of the Federal Arbitration Act (FAA). See 9 U.S.C. § 1. Now the U.S. Supreme Court has brought some clarity to the analysis. In Southwest Airlines Co. v. Saxon, Case No. 21-309 (June 6, 2022), the court unanimously concluded … Continue Reading

Supreme Court Holds Prejudice Not Required for Waiver of Right to Arbitrate – But Does Little Else

Photo of Greg MersolBy Greg Mersol on Posted in Arbitration
In a much-anticipated opinion, the Supreme Court unanimously held this morning that a party claiming waiver of the right to arbitrate need not show prejudice, in Morgan v. Sundance, Inc., Case No. 21-328 (May 23, 2022). While the holding on this point is clear, the Court very explicitly declined to address a series of related … Continue Reading

The Vote is In, FAA Sections 9 And 10 Do Not Provide “Look-Through” Jurisdiction to Confirm or Modify Arbitral Awards

Photo of John LewisBy John Lewis on Posted in Arbitration
Our prior blog articles predicted that the outcome in Badgerow v. Walters, No. 20-1143, might turn on whether the plain text of the Federal Arbitration Act (FAA) or its purposes would prevail. See our June 16 and Nov. 9, 2021 blog articles on the Badgerow case and the employment dispute that fueled it.  As it … Continue Reading

The Supreme Court Argument Only Underscored the Complexities of Federal Court Jurisdiction Over Arbitration Awards

Photo of John LewisBy John Lewis on Posted in Arbitration, Arbitration Agreements, Supreme Court
By John B. Lewis One might expect that the plain text of a statutory provision would be in line with the overall goal of the law. But when that statute is the Federal Arbitration Act (FAA), it’s not necessarily the case. And many people even differ on what the original intent of the FAA was … Continue Reading

The Fifth Circuit Again Considers the ‘Forby’ Case and When the Right To Arbitrate Is Waived Based on an Amended Complaint

Photo of John LewisBy John Lewis on Posted in Arbitration, Arbitration Agreements, FLSA
By John B. Lewis As we have said in the past, determining when a party waives its right to arbitrate is never easy and the nuanced standards vary among the circuits. Now a case that has come to the U.S. Court of Appeals for the Fifth Circuit a second time confirms our belief. The Fifth … Continue Reading

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
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