On June 15, the U.S. Supreme Court finally brought closure to the long-running, unsettled issue of whether California’s prohibition against arbitration agreement waivers of the right to bring representative actions under the California Labor Code Private Attorneys General Act (PAGA) is preempted by the Federal Arbitration Act (FAA). California’s appellate courts and the Ninth Circuit … Continue Reading
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
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
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 … Continue Reading
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
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
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
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
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
As we have noted throughout the years, interpreting the California Private Attorneys General Act (PAGA) can be a difficult task. See our blog articles of July 14, 2017, Aug. 4, 2017, Nov. 29, 2017 and Sept. 12, 2019. California adopted PAGA to support the state Labor and Workforce Development Agency’s enforcement burden by empowering workers … Continue Reading
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
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
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
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
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
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
In Oliveira v. New Prime, Inc., No. 15-2364 (May 12, 2017), the U.S. Court of Appeals for the First Circuit confronted two arbitration-related questions of first impression in that Circuit. In the case, Dominic Oliveira had signed an Independent Contractor Operating Agreement with New Prime, Inc., which contained an arbitration provision governed by the Commercial … Continue Reading
Some wondered why the U.S. Supreme Court granted certiorari in Kindred Nursing Centers L.P. v. Clark, No. 16-32, and after oral argument on February 22, 2017, many felt they knew the outcome. Indeed, Justice Stephen Breyer commented during that argument: “. . . Of course I’m highly suspicious as you can tell from my tone … Continue Reading
Given California’s past resistance to mandatory arbitration agreements with class action waivers, it should come as no surprise that the state has now enacted two laws primarily directed at arbitration. On Sept. 25, Governor Jerry Brown signed a bill (Senate Bill 1241) that amended the state’s Labor Code to prohibit an employer from requiring as … Continue Reading
In a 2-1 ruling, the Ninth Circuit became the second federal court of appeals to agree with the National Labor Relations Board’s (NLRB) position that the National Labor Relations Act (NLRA) prohibits class action waivers in employees’ arbitration agreements. Writing for the majority in Morris v. Ernst & Young, Chief Judge Sidney Thomas held that … Continue Reading
Alright, we all know in the wake of Italian Colors, Concepcion, and now many other cases that the presumption of arbitrability isn’t just a doctrine to recite in the manner of saying grace before invalidating an agreement, but is actually meant to be followed, even when it might ultimately thwart a class action. But can … Continue Reading
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
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
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