Tag Archives: “arbitration agreements”

Order Sending Former Mail Sorter to Arbitration Teaches Some Lessons About Who Is a Transportation Worker and Agreement Coverage

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

Once More Before the High Court – Henry Schein, Inc. v. Archer And White Sales, Inc. – But New Questions Emerge

Photo of John LewisBy John Lewis on Posted in Arbitration Agreements
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

Florida Decision Involving Workers Unable to Read English Illustrates the Basics for an Enforceable Arbitration Agreement

Photo of John LewisBy John Lewis on Posted in Arbitration Agreements
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

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

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

Digging In Its Heels: Disputing The DOJ’s Position, The NLRB Remains Defiant In Supreme Court Brief That Individual Arbitration Agreements Violate Employee Rights Under The NLRA

Photo of Dustin DowPhoto of John LewisBy Dustin Dow and John Lewis on Posted in Arbitration Agreements, National Labor Relations Act, NLRB
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

Independent Contractor Trucker Dodges FAA Arbitration and Keeps His Class Action Alive

Photo of John LewisBy John Lewis on Posted in Arbitration, Independent Contractors
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

California Enacts Laws Aimed at Choice of Law Provisions in Arbitration Agreements and the Conduct of Arbitral Proceedings

Photo of John LewisBy John Lewis on Posted in Arbitration
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

Reining In Individual Arbitration – Ninth Circuit Rules Class Waivers Unenforceable

Photo of John LewisPhoto of Carrie ValdezBy John Lewis and Carrie Valdez on Posted in Arbitration
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

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

Photo of John LewisBy John Lewis on Posted in Arbitration, Off-the-clock, Wage and Hour
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

Photo of Greg MersolBy Greg Mersol on Posted in Arbitration, FLSA, Retail
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

California State and Federal Courts Renew Their Attacks On Arbitration Agreements

Photo of Greg MersolBy Greg Mersol on Posted in Arbitration
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

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

Photo of Greg MersolBy Greg Mersol on Posted in Arbitration
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

Photo of Greg MersolBy Greg Mersol on Posted in Arbitration
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

Photo of John LewisBy John Lewis on Posted in Arbitration
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

Photo of Sabrina ShadiBy Sabrina Shadi on Posted in Arbitration
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

Pennsylvania Court Compels Arbitration of Both Class and Collective Action Claims

Photo of Greg MersolBy Greg Mersol on Posted in Arbitration, Class Certification, FLSA, Wage and Hour
Another court has weighed in in favor of enforcing an arbitration agreement containing a class action waiver in the wake of the United States Supreme Court’s decision in AT&T Mobility, LLC v. Concepcion, 131 S. Ct. 1740, 1746 (2011). In Brown v. TrueBlue, Inc.pdf., Case No. 1:10-CV-0514 (M.D. Pa. Nov. 22, 2011), the plaintiffs were … Continue Reading

California Court Finds Concepcion Does Not Apply to Arbitration of PAGA Claims

Photo of Greg MersolBy Greg Mersol on Posted in Arbitration
The battle between California courts and the U.S. Supreme Court over arbitration agreements wages on. Though California courts frequently make perfunctory statements about the strong public policy in favor of arbitration agreements, these statements are undercut by the many cases in which the courts appear to bend over backwards to find arbitration agreements unconscionable or … Continue Reading
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