Archives: Arbitration

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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

Update on the TRO Issued in the Case Involving California’s AB 51 Anti-Arbitration Law

Photo of John LewisPhoto of Joseph S. PersoffBy John Lewis and Joseph S. Persoff on Posted in Arbitration
On Jan. 10, 2020 Chief District Judge Kimberly J. Mueller further defined the scope, issues and duration of the Temporary Restraining Order (TRO) she initially issued on Dec. 30, 2019. We blogged about the new California legislation and the TRO issued in Chamber of Commerce of the United States of America v. Bacerra, No. 2:19-cv-02456 … Continue Reading

District Court Temporarily Enjoins Enforcement of California’s AB 51 Anti-Arbitration Provision

Photo of Joseph S. PersoffPhoto of John LewisPhoto of Greg MersolBy Joseph S. Persoff, John Lewis and Greg Mersol on Posted in Arbitration
A federal judge has issued a temporary restraining order halting the enforcement of Assembly Bill 51, California’s latest attempt to prevent arbitration of claims brought under the California Fair Employment and Housing Act. We initially wrote about this statute, which sought to criminalize the use of arbitration agreements, on Oct. 11, 2019. AB 51, slated … Continue Reading

California Enacts Anti-Arbitration Legislation, but Will the FAA Limit Its Potential Impact? Not Entirely.

Photo of John LewisPhoto of Joseph S. PersoffBy John Lewis and Joseph S. Persoff on Posted in Arbitration
On Oct. 10, California Governor Gavin Newsom signed into law an attempt by California’s Legislature to limit arbitration of claims under California’s Fair Employment and Housing Act (“FEHA”). FEHA prohibits harassment, discrimination and retaliation on the basis of various protected characteristics, such as gender, age, disability or national origin. Taking effect Jan. 1, 2020, AB 51 … Continue Reading

Third Circuit Opinion Involving Uber Only Adds More Questions to the Dispute Over the Scope of the FAA Section 1 Residual Clause

Photo of John LewisBy John Lewis on Posted in Arbitration
Recent decisions have cast doubt on the enforcement of arbitration clauses in the context of the interstate transportation of goods, but will those limitations extend to the transportation of passengers? And what if the movement does not cross state lines? In a Sept. 11, 2019, opinion, the Third Circuit found that the residual clause of … Continue Reading

Ohio Supreme Court Addresses Waiver of the Right to Arbitrate in the Putative Class Action Context

Photo of John LewisBy John Lewis on Posted in Arbitration
In Gembarski v. PartsSource, Inc. (Slip Opinion No. 2019-Ohio-3231, decided Aug. 14, 2019), the Supreme Court of Ohio clarified the standards for waiver of the right to arbitrate in the class action context where only unnamed putative class members but not the single named plaintiff had agreed to arbitration. The court ultimately concluded that the … Continue Reading

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

Photo of John LewisBy John Lewis on Posted in Arbitration, Arbitration Agreements, Class Action Litigation
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

Can Delivery Drivers Be Compelled to Arbitrate After New Prime? New Jersey Appellate Courts Seem to Take Conflicting Positions

Photo of John LewisBy John Lewis on Posted in Arbitration
After New Prime v. Oliveira, 139 S. Ct. 532 (2019), many wondered if state arbitration law could be applied when transportation workers were found to be exempt from the Federal Arbitration Act (FAA) based on § 1. See our January 17, 2019, March 12, 2019 and April 29, 2019 blog posts on the issues raised … Continue Reading

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

Photo of John LewisBy John Lewis on Posted in Arbitration, Arbitration Agreements
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

Photo of John LewisBy John Lewis on Posted in Arbitration, Arbitration Agreements
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

Photo of Greg MersolBy Greg Mersol on Posted in Arbitration Agreements
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

Photo of John LewisBy John Lewis on Posted in Arbitration, 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

Photo of John LewisBy John Lewis on Posted in Arbitration, Arbitration Agreements
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

Photo of John LewisBy John Lewis on Posted in Arbitration Agreements, FLSA
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

New Prime Decision Adds Uncertainty to Arbitration in the Transportation Industry

Photo of John LewisBy John Lewis on Posted in Arbitration, Independent Contractors
The U.S. Supreme Court’s decision in New Prime v. Oliveira, No. 17-340 (Jan. 15, 2019), has added uncertainty to arbitration agreements in the transportation industry by holding that the Federal Arbitration Act (FAA) § 1 exception covers both employees and independent contractors of a trucking company. In a unanimous opinion written by Justice Neil Gorsuch, … Continue Reading
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