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 Circuit opinion in Forby v. One Technologies, L.P. (No. 20-10088, decided Sept. 14, 2021) (Forby II), arises from a class action asserting that One Technologies, L.P. (One Tech), deceived customers into signing up for purportedly “free” credit reports that weren’t. In the first Forby decision, reported at 909 F. 3d 780, 784 (5th Cir. 2018) (Forby I), the appellate court ruled that One Tech waived its ability to arbitrate plaintiffs’ state law claims when it filed a motion to dismiss rather than seeking arbitration. See our Dec. 4, 2018 blog article on the Forby I decision.

The Forby I panel declared, “One Tech was fully aware of its right to compel arbitration when it filed its 12(b)(6) motion to dismiss, it pursued and partially obtained a dismissal with prejudice, showing a desire to resolve the dispute in litigation rather than arbitration.”

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

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 now issued a split decision in which it has devised yet another means of trying to evade the FAA’s mandate.

Just two years ago, California enacted AB 51 to discourage the use of mandatory arbitration agreements in the employment setting, establishing both civil and even criminal penalties for doing so. These provisions were in obvious violation of the FAA, and a California district court swiftly enjoined them for that reason. We previously wrote about the district court’s lengthy and solid opinion and its grant of the injunction here.

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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 or began to enforce their preexisting agreements more effectively. Particularly in the realm of Fair Labor Standards Act litigation, these agreements became an important part of the defense, providing a counterbalance to courts’ frequent application of the reduced standards for “conditional certification” and the resulting undue economic pressure placed on defendants to settle.

The plaintiffs’ bar reacted immediately, and numerous efforts were made at the state and federal levels to limit Epic Systems’ reach. We have blogged about many of those efforts here:  August 11, 2021,  February 11, 2020,  October 11, 2019, March 28, 2019, and November 16, 2018. Employment arbitration again became an issue following the 2020 elections. With the change in control of Congress, various bills were introduced that would effectively make Epic Systems a nullity.

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Court Refuses to Certify Class for Allegedly Defective Flight Attendant Uniforms – Claims About Uniforms Not Themselves Uniform

The United States District Court for the Western District of Wisconsin has refused to grant certification in a two-year-old dispute over uniforms for airline personnel. In Gilbert v. Lands’ End, Inc., Case No. 19-cv-823-jdp (W.D. Wisc. Aug. 18, 2021), Delta Airlines contracted with the Lands’ End clothing company to provide uniforms for some of its employees. These included roughly 100 different kinds of clothing ranging from pants and skirts to jackets. Delta employees were provided an initial set of the uniforms by the employer, along with credits through which they could buy additional pieces from Lands’ End.

The contract to purchase the uniforms between Delta and Lands’ End contained several important provisions. The first of these related to compliance with certain minimum apparel manufacturing standards. The second was characterized as a guarantee of 100 percent satisfaction. Significantly, that guarantee was coupled by a set procedure by which current Delta employees could seek a replacement or refund for goods found to be unsatisfactory. Continue Reading

Sixth Circuit Limits Scope of Putative Nationwide FLSA Collective Actions on Personal Jurisdiction Grounds

Four years ago, in Bristol-Myers Squibb v. Superior Court, 137 S. Ct. 1773 (2017), the United States Supreme Court addressed an effort by plaintiffs to bring 600 product liability claims, mostly by non-Californians, in the form of a mass tort action in California state court. After analyzing the claims, the Supreme Court dismissed the non-California claimants for lack of subject matter jurisdiction. It held that due process concerns meant that a defendant could only be sued in the forum state if (1) it was subject to that state’s general jurisdiction, such as if the defendant were incorporated there or made that state its home, or (2) the claims arose out of the defendant’s contacts with the forum. We’ve touched on some of these issues in prior posts.

As a practical matter, the Court’s decision arguably limited certain types of mass litigation to claims arising within a single state. If a plaintiff wished to pursue nationwide claims, it would need to file the claim in the defendant’s home forum.

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While the Ninth Circuit Added Clarity in Its Recent Uber Opinion, Legislative Challenges to Mandatory Arbitration May Be Ahead

A U.S. Court of Appeals for the Ninth Circuit panel ruled that Uber Technologies drivers don’t fall within the Section 1 exemption of the Federal Arbitration Act (FAA) to mandatory arbitration because they are not a class of workers “engaged in foreign or interstate commerce.” Accordingly, the drivers were properly compelled by the district court to arbitrate their claims. Capriole v. Uber Technologies, Inc., Case No. 20-16030 (9th Cir. Aug. 2, 2021).

The plaintiffs were Massachusetts residents who, in September 2019, filed a putative class action in the District of Massachusetts seeking a preliminary injunction preventing Uber from classifying drivers in that state as independent contractors and for an order requiring Uber to reclassify its drivers as “employees” and to abide by Massachusetts wage laws. The drivers had signed Uber’s 2015 Technology Services Agreement (the Agreement), which contained both a mandatory arbitration agreement covered by the FAA and a class action waiver. 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 June 24, 2021, certified for publication July 16, 2021). In the case, Jose Calderon filed a putative class action against Western Bagel Company claiming that the company failed to give its employees proper meal and rest breaks. Western Bagel responded by seeking to compel binding arbitration based on an arbitration agreement Calderon signed.

Because Calderon was a Spanish-speaker with only a basic English vocabulary, he was provided with both original English and Spanish versions of the arbitration agreement. And therein lies the rub! While other clauses in the English and Spanish versions of the agreement provide for or “strongly support the conclusion” of binding arbitration, the severability clause in the Spanish version of the agreement stated otherwise. It provided: Continue Reading

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

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 and materials shipped from out-of-state to local warehouses and then to “their final destination” by the driver. Hamrick used his personal car to take car parts from Lakeland and Tampa, Florida warehouses to local Advance Auto Parts retailers.

While Hamrick signed an independent contractor agreement, he ultimately brought a Fair Labor Standards Act (FLSA) collective action seeking overtime compensation, liquidated damages, and declaratory and other relief, claiming he and other drivers were misclassified. Continue Reading

California Employers Must Pay Meal and Rest Period Premiums at the Regular Rate of Pay

When a California nonexempt employee is not provided a meal or rest period, Cal. Labor Code 226.7 requires an employer to pay a penalty to that employee in the amount of one hour of that employee’s “regular rate of compensation.”  It was an open question whether an employee’s “regular rate of compensation” meant the employee’s ordinary hourly rate of pay, or whether an employee’s “regular rate of compensation” has the same meaning as an employee’s “regular rate of pay” – which is the rate an employer must rely on when calculating overtime pay and includes all forms of compensation in addition to the employee’s hourly wage rate, such as non-discretionary bonuses.

In Ferra v. Loews Hollywood Hotel, LLC, Case No. S259172 (Cal. S. Ct., July 15, 2021), the plaintiff, a hotel bartender, brought a class action against the employer for allegedly underpaying penalties for missed meal or rest periods under California law. The core of her claim was that in calculating the hourly rate for the penalties, it only considered her hourly wage rate and did not consider other forms of compensation, such as incentive pay. Continue Reading

District Court Rejects Conditional Certification of FLSA Claims Inserted into Data Breach Class

Here’s a novel approach: What if you have an “off the clock” case where the court disfavors certification? Can you simply tack them onto claims in another pending class action lawsuit?

That was the tactic attempted by the plaintiffs in In Re Wawa, Inc. Data Security Litigation, Civil Action No. 19-6019 (E.D. Pa., May 24, 2021). In that case, the employer, which operated convenience stores, was the victim of a data breach. The resulting class actions arising from information stolen during the breach were divided into separate sets of claims for consumers, employees, and financial institutions. Continue Reading