Archives: Arbitration Agreements

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

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

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

Spending Bill Would Place Class Action Waivers in Jeopardy

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

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

Ohio District Court Rejects Multiple Challenges to Electronically Signed Arbitration Agreement

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

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

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

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

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

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

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

The Fifth Circuit Agrees With Its Sister Circuits That Class Arbitrability Is a Gateway Issue for Courts, Not Arbitrators

In a predictable decision, the Fifth Circuit has held that the availability of class arbitration is a gateway issue for the courts to decide, absent “clear and unmistakable” language in the arbitration agreement to the contrary. The appellate court didn’t find such language in 20/20 Commc’ns v. Crawford, Case No. 18-10260 (5th Cir. July 22, … Continue Reading

Recent Decisions Don’t Provide Useful Guidance on Tests for the FAA Exemption of Transportation Workers

Sometimes being right is not a virtue, especially when it comes to the Federal Arbitration Act § 1 exemption. We predicted uncertainty after the New Prime v. Oliveira decision and got it. See our Jan. 17, 2019, blog post on the exemption. Indeed, if anything, recent decisions have raised more questions than answers. Part of the problem … Continue Reading

SCOTUS Reverses Ninth Circuit on Proper Bases for Class Arbitrations

The U.S. Supreme Court, in a 5-4 decision, ruled that arbitration agreements must provide a “contractual basis for concluding that the part[ies] agreed to [class arbitration].” Reversing the Ninth Circuit, Chief Justice John Roberts found not only that the Court had jurisdiction over the case but also that the state law contract construction rule dealing … Continue Reading

Illinois District Court Stays Conditional Certification Order Pending Appeal on Arbitrability Issues

More games of cat and mouse Following the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1632 (2018), plaintiffs have tried to come up with strategies to address the impact of arbitration agreements in class and collective cases. (We blogged the Epic Systems decision here). Defendants, in turn, have had to address courts … Continue Reading

Kentucky Rejoins the Majority – New Law Permits Mandatory Arbitration Agreements

A Sept. 27, 2018, Kentucky Supreme Court ruling found that mandatory arbitration agreements conditioned on employment were not enforceable. See Northern Kentucky Area Development District v. Snyder, No. 2017-SC-000277-DG. The opinion not only isolated Kentucky regarding its enforcement of arbitration agreements but also raised issues regarding the potential impact of Federal Arbitration Act (FAA) pre-emption. … Continue Reading

Arbitration for Transportation Workers? The Anticipated Push To Expand the FAA Exemption

As we indicated in a January 17, 2019 blog article, the New Prime v. Oliveira, 139 S. Ct. 532 (2019), opinion was likely to lead to uncertainty in the transportation industry.  Some imaginative commentators even forecast that the Federal Arbitration Act (FAA) Section 1 exemption could be a tool to unravel arbitration agreements with class … Continue Reading

Fifth Circuit Addresses Notices of Collective Action for Those Who Signed Arbitration Agreements Requiring Only Individual Claims

The intersection of Fair Labor Standards Act (FLSA) collective action procedures and employee arbitration agreements waiving aggregate actions has led to differing approaches among the district courts. In JPMorgan Chase & Co. (Case No. 18-20825, decided Feb. 21, 2019), the Fifth Circuit found that a district court does not have “discretion to send or require … Continue Reading

Tenth Circuit Refers Au Pairs’ Class Claims to Arbitration

“Well, They Gave Me the Agreement in My Own Language, but I Still Didn’t Understand the English Version” doesn’t work. The Federal Arbitration Act will turn 100 in the next few years, but despite more than nine decades of litigation, some opinions can be explained only by the “judicial hostility” to arbitration that caused the … Continue Reading

Convergys Corporation and LogistiCare Solutions, Incorporated v. NLRB – The Fifth Circuit Considers Class and Collective Action Waivers Without Arbitration Agreements

The U.S. Court of Appeals for the Fifth Circuit decided two cases considering the impact of the National Labor Relations Act (NLRA) on class or collective action waivers required by companies for their applicants and employees. Convergys Corporation The first decision, in Convergys Corporation v. NLRB, No. 15-60860 (5th Cir. Aug. 7, 2017), addressed whether … 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

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
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