Archives: Arbitration

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

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

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

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

Sixth Circuit Refuses to Uphold Collective Action Waiver Absent Arbitration

My working title for this blog was “collective action grab bag,” concerning the recent Sixth Circuit case in Killion v. KeHE Distributors, LLC, Case Nos. 12-3357/4340 (6th Cir. July 31, 2014).  I went with the title that seemed to be of interest to most practitioners, but the case actually touched on several issues, one of … Continue Reading

Third Circuit: Availability of Classwide Arbitration is an Issue for the Courts – Not Arbitrators – Unless the Parties Agreed Otherwise

Wednesday, the Third Circuit held that the determination of whether an agreement allows classwide arbitration is a question of arbitrability for the courts “unless the parties unmistakably provide otherwise.”  Opalinski v. Robert Half International Inc., Case No. 12-4444 (3d Cir. July 30, 2014). In Opalinski, former Robert Half International, Inc. (RHI) employees filed a putative … Continue Reading

Tenth Circuit Criticizes District Court for Permitting “Death by Discovery” in Dispute over Arbitrability

The purpose of arbitration is to resolve disputes more quickly and inexpensively than litigation.  It’s getting less difficult to enforce such agreements, but apparently some courts and parties have yet to get the message as a recent Tenth Circuit reflects.  Howard v. Ferrellgas Partners, L.P, Case No. 12-3061 (10th Cir. Apr. 8, 2014).  It’s not … Continue Reading

Russell v. Citigroup Inc. – Language in Revised Arbitration Agreement Torpedoes its Application to Pending Class Action

A Sixth Circuit panel found the text of an updated arbitration agreement indicated it did not apply to a wage and hour class action already pending when the agreement was signed.  Russell v. Citigroup, Inc., Case No. 13-5994 (6th Cir. April 4, 2014). Keith Russell had worked at a Citicorp call center in Florence, Kentucky … Continue Reading

Eleventh Circuit Refuses to Enforce Post-Suit Arbitration Agreements Based upon Employer Misconduct

The British have a phrase “too clever by half” to describe complex schemes that ultimately won’t work. We all know from cases such as Concepcion, Stolt-Nielsen, Italian Colors, and their progeny that arbitration agreements are far more likely to be enforced today than only a year or two ago, particularly in the class action context.  … Continue Reading

Sixth Circuit Holds That Duty To Arbitrate Survives Expiration of Employment Contract, Requires Individual Arbitration

With the Supreme Court having issued a series of decisions overruling many of the roadblocks to the enforcement of arbitration agreements in the class context, we are now seeing more courts fill in the gaps as to whether and when employers may rely on such agreements. The latest of these is the case of Huffman … Continue Reading

Does D.R. Horton Apply Arbitration Agreements Without A Class Action Waiver?

Our sister blog, Employment Law Spotlight, recently reported on the decision of an NLRB administrative law judge regarding the legality of an arbitration agreement under D.R. Horton, Inc., 357 NLRB No. 184 (2012).   We all know that D.R. Horton held that class action waivers in arbitration agreements might be unfair labor practices because of their … Continue Reading

Fifth Circuit Rejects NLRB’s D.R. Horton Decision – Too Soon For Champagne?

Co-Authored By: Todd A. Dawson Arbitration is quickly becoming a major vehicle to resolve individual employee disputes.  Now another obstacle to enforcing those arbitration agreements and class action waivers may have been removed. The Fifth Circuit issued a 2-1 decision on Tuesday in which the court largely denied enforcement of the National Labor Relations Board’s … Continue Reading

California State and Federal Courts Renew Their Attacks On Arbitration Agreements

In 1991, Sega introduced the video character Sonic the Hedgehog.  Sonic became insanely popular, spawning several generations of videogames that are still being designed and sold today, comic books, and even a short-lived television show.  Sonic is a blue hedgehog who must frequently fight to save a fictional world from the evil Dr. Ivo “Eggman” … Continue Reading

Massachusetts Supreme Court Enforces Class Action Arbitration Waiver

On Second Thought… Court Begrudgingly Reverses Its Own June 2013 Decision On Class Arbitration In Light of SCOTUS’s Amex Decision Eight days prior to the Supreme Court’s decision in American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013) (“AMEX”) (which we blogged here), the Massachusetts Judicial Court held that the Federal Arbitration Act … Continue Reading

U.S. Supreme Court Decides American Express Co. v. Italian Colors Restaurant – Worth the Wait

This blog post was co-authored by: Dustin Dow The U.S. Supreme Court rejected the contention that a class arbitration waiver was unenforceable under the Federal Arbitration Act (“FAA”) when the cost of arbitrating individually would be greater than any potential recovery.  Writing for a 5-3 majority of the Court, Justice Antonin Scalia ruled in American … Continue Reading

Oxford Health Plans v. Sutter – The Perils of Choosing an Arbitrator to Resolve Potential “Gateway Matters”

Co-Authored by: Dustin Dow A unanimous Supreme Court held on Monday that when a party agrees that an arbitrator should decide if an agreement authorizes class arbitration, that party cannot later seek judicial intervention if it disagrees with the resulting award.  Because even if the arbitrator makes a “grave error” in interpreting a contract to … Continue Reading

California Appellate Court Orders Arbitration and Rules that Claims May Not Proceed On Behalf of a Class: Plaintiff in Macy’s OT Action Gets What She Bargained For

Authored by: Dawn Kennedy A recent decision from a California court of appeals reflects a growing, if at times reluctant, acceptance by California courts of employment arbitration.  In Outland v. Macy’s Department Stores, Inc., Case No. A133589 (Ct. Cal. App. Jan. 16, 2013) a former group sales manager for defendant Macy’s Department Stores filed a … Continue Reading

The Debate Continues: Recent Eighth Circuit Decision Adds to the Growing Tension between Federal Courts and the NLRB Regarding the Enforceability of Class Action Waivers in Arbitration Agreements

Authored by: Ericka Spears Much like a war where each side steadily amasses victories and defeats, the federal courts and the National Labor Relations Board (NLRB) continue to have diverging opinions on the enforceability of class action waivers in arbitration agreements. Federal courts have won the most recent battle in the war. In Owen v. … Continue Reading

Courts Continue to Wrestle With Arbitration Issues

Decades ago, Congress passed the Federal Arbitration Act to combat the hostility courts showed towards arbitration agreements.  Since that time, the Supreme Court has repeatedly pronounced the public policy in favor of the enforcement of such agreements, but lower courts have resisted enforcing them based upon a string of technicalities often created on a case-by-case … Continue Reading

NLRB Judge Follows D.R. Horton Despite Differences In Company’s Arbitration Procedure

A National Labor Relations Board (“NLRB”) Administrative Law Judge (“ALJ”) found a company’s mandatory arbitration agreement violated the National Labor Relations Act (“NLRA”) despite the fact that its arbitration procedure permitted employees to act concertedly to challenge the terms of the agreement and provided the parties could jointly agree to class claims. On July 2, … Continue Reading

Concepcion Breathes New Life into Class Action Waiver in Arbitration Agreement: California Court of Appeal Affirms Order Compelling Arbitration of Claims on Individual Basis

After the California Supreme Court decided Gentry v. Superior Court (2007) 42 Cal.4th 443, class action waivers in arbitration agreements were on life support, with their supporters holding fast to the hope that some modern miracle would come along to resuscitate them.  Then along came AT&T Mobility LLC v. Concepcion (2011) 113 S.Ct. 1740, and … Continue Reading

Second Circuit Declines En Banc Review in AMEX Arbitration Agreement Case: A Donnybrook Over Class Action Waivers and Vindication of Federal Statutory Rights

On February 1, 2012, a two-judge panel of the Second Circuit reaffirmed its holding in an antitrust action brought against American Express (“AMEX”) that class action waivers involving federal statutory rights were unenforceable.  Largely based on an expert’s affidavit, the panel concluded that “the only economically feasible means for Plaintiffs enforcing their statutory rights is … Continue Reading

Court Rejects NLRB’s Restrictive View of Class Action Waivers in Arbitration

NLRB’s D.R. Horton Decision and Public Policy Cannot Undermine Concepcion – Morvant v. P.F. Chang’s China Bistro, Inc. A Northern District of California judge has held that neither the National Labor Relations Board’s (“NLRB”) decision in  D.R. Horton, Inc., 357 N.L.R.B. No. 184 (January 3, 2012), nor the Norris-LaGuardia Act, 29 U.S.C. §§ 101 et … Continue Reading
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