By 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.”
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.
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 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 
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).
