Tag Archives: Arbitration

Who Decides the Availability of Class Arbitration? Second Circuit’s Analysis Is a Bit Murky in Wells Fargo Advisors Cases

John LewisBy John Lewis on Posted in Arbitration
For years, courts have struggled with who decides the availability of class arbitration and the applicable standards. We most recently addressed the thorny issues in a March 23, 2016, blog post. Unfortunately, a recent Second Circuit opinion in two consolidated appeals does little to establish clear standards or instill confidence in allowing arbitrators to decide … Continue Reading

NLRB V. Alternative Entertainment, Inc. – Sixth Circuit Joins the Seventh and Ninth Circuits in Rejecting Class Waivers

John LewisBy John Lewis on Posted in Arbitration
In a strangely timed opinion, the Sixth Circuit has entered the fray over whether class and collective waivers in employee arbitration agreements violate the National Labor Relations Act (NLRA). Strangely timed because on January 13, 2017, the U.S. Supreme Court granted certiorari in three consolidated cases that will resolve if arbitration agreements with class and … Continue Reading

Arbitration of PAGA Claims: Another California Divide Emerges

John LewisBy John Lewis on Posted in Arbitration
In a March 8, 2017, article, we talked about how the Ninth Circuit Court of Appeals compelled the arbitration of a California Private Attorney General Act (PAGA) representative claim in Valdez v. Terminix International Co., L.P., No. 15-56736 (9th Cir. Mar. 3, 2017). And, while we mentioned potential difficulties in arbitrating such cases, we didn’t … Continue Reading

Lewis v. Epic Systems Opinion – Seventh Circuit Swimming Against the Tide on Mandatory Individual Arbitration

John LewisDustin DowBy John Lewis and Dustin Dow on Posted in Arbitration
In a sweeping May 26 opinion, the U.S. Court of Appeals for the Seventh Circuit shook up the arbitral landscape and created a remarkable circuit split regarding the enforceability of arbitration agreements with class action waivers in the employment sector. In Lewis v. Epic Systems Corp., No. 15-2997, the Seventh Circuit held that an arbitration … Continue Reading

The Fifth Circuit Addresses an Issue That Refuses to Die: Who Determines Whether Class or Collective Arbitration Is Available?

John LewisBy John Lewis on Posted in Arbitration, FLSA
  We opined on several occasions that cases dealing with a party’s entitlement to class or collective arbitration were a dying breed because of the increased use of class action waivers. And we have been proven wrong by several subsequent decisions. (See our November 11, 2013, March 12, 2015 and September 9, 2015 blog articles … Continue Reading

The Board vs. the Courts: Will 2016 mark the final showdown for class action waivers in arbitration agreements?

Kelline R. LintonBy Kelline R. Linton on Posted in Arbitration, National Labor Relations Act, NLRB
Arbitration agreements are practical tools that help employers protect confidential information and avoid the costs associated with traditional litigation. They can also be an extremely effective mechanism for employers to reduce exposure to risky employment litigation and potentially abusive collective action claims under the Fair Labor Standards Act (“FLSA”). We’ve written extensively on the courts’ … Continue Reading

Justices Take On Another California Rule – When an Arbitration Agreement Is Too Flawed to Enforce

John LewisBy John Lewis on Posted in Arbitration, Independent Contractors
The U.S. Supreme Court has agreed to review whether the Federal Arbitration Act (FAA) preempts a California state court rule on unconscionable provisions that is purportedly applied more stringently to arbitration agreements than to other contracts. Under the California rule, arbitration agreements with more than one unconscionable provision may not be enforced despite an express … Continue Reading

Following the Sixth Circuit’s Lead, Ohio Appellate Courts Find Whether an Agreement Allows Class Arbitration Is a “Gateway Issue”

John LewisBy John Lewis on Posted in Arbitration
As we stated previously, the potential impact of whether entitlement to class arbitration is a “gateway issue” will likely diminish with each passing year. (See our March 12, 2015, blog article on the denial of certiorari in Opalinski v. Robert Half International, Inc.) This is because of the increasing number of class action waivers now … Continue Reading

Opalinski v. Robert Half International, Inc. — A Footnote in a Prior Opinion Doesn’t Signal the Supreme Court’s Willingness to Resolve Who Decides the Availability of Class Arbitration

John LewisBy John Lewis on Posted in Arbitration, FLSA
After reading the Supreme Court’s opinion in Oxford Health Plans, LLC v. Sutter, 133 S. Ct. 2064 (2013), some might have concluded that the Court was ready to resolve who determines the availability of class arbitration court or arbitrator — in the right case. See 133 S. Ct. at 2068 n.2. But on March 9, … Continue Reading

The California Divide: Federal Courts Refuse to Follow State Supreme Court’s Iskanian Decision

John LewisDustin DowBy John Lewis and Dustin Dow on Posted in Arbitration, PAGA
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

Greg MersolBy Greg Mersol on Posted in Arbitration, Collective Action, Retail
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

By Joel Griswold on Posted in Arbitration, Collective Action, FLSA
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

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

Greg MersolBy Greg Mersol on Posted in Arbitration, NLRB
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?

John LewisBy John Lewis on Posted in Arbitration, NLRB
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 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

Greg MersolBy Greg Mersol on Posted in Arbitration, Retail
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

Pattern-or-Practice Claim Doesn’t Trump Arbitration Agreement – Karp v. CIGNA Healthcare Inc.

John LewisBy John Lewis on Posted in Arbitration, Discrimination
Once again a court has been required to consider whether a federal statutory claim might limit the reach of the Federal Arbitration Act, 9 U.S.C. § 1 et. seq. (“FAA”), and prevent arbitration of an individual discrimination claim.  This twenty-two-page decision reflects the on-going struggle by plaintiffs to discover potential exceptions to the U.S. Supreme … Continue Reading

Eighth Circuit Affirms Enforcement of Class Action Waivers and Explores Case Disposition Issues

John LewisBy John Lewis on Posted in Arbitration, Class Certification, FLSA
In a terse but well-reasoned decision, the Eighth Circuit recently affirmed the grant of a motion to compel arbitration and enforced a class action waiver despite arguments that it was unenforceable under Minnesota law. The Appellate panel also considered whether cases sent to arbitration should be stayed rather than dismissed. In Green v. SuperShuttle International, … Continue Reading

21 Club “Gets Served” On Overtime Class Claims

By Todd Dawson on Posted in Arbitration, Class Certification, FLSA, Overtime Claims, Tip-Pooling, Wage and Hour
“……and Please Remember to Tip Your Bartender And Waitress.” The famous 21 Club in New York was on the Curly end of a Larry-esque double-slap from the Southern District of New York last week. Alderman v. 21 Club.pdf Case No. 1:09-cv-2418 (Aug. 20, 2010). By way of background, the plaintiff employees in Alderman are seeking to … Continue Reading
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