Tag Archives: Arbitration

Smoother Sailing Ahead for PAGA Arbitrability Under Viking River Cruises Decision

Photo of Matthew KanePhoto of Sylvia KimPhoto of Amy E. BeverlinBy Matthew Kane, Sylvia Kim and Amy E. Beverlin on Posted in Arbitration, Arbitration Agreements
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

Supreme Court Holds Prejudice Not Required for Waiver of Right to Arbitrate – But Does Little Else

Photo of Greg MersolBy Greg Mersol on Posted in Arbitration
In a much-anticipated opinion, the Supreme Court unanimously held this morning that a party claiming waiver of the right to arbitrate need not show prejudice, in Morgan v. Sundance, Inc., Case No. 21-328 (May 23, 2022). While the holding on this point is clear, the Court very explicitly declined to address a series of related … Continue Reading

The Supreme Court Argument Only Underscored the Complexities of Federal Court Jurisdiction Over Arbitration Awards

Photo of John LewisBy John Lewis on Posted in Arbitration, Arbitration Agreements, Supreme Court
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

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

Photo of Greg MersolPhoto of Joseph S. PersoffBy Greg Mersol and Joseph S. Persoff on Posted in Antitrust, Arbitration, California, Supreme Court, Uncategorized
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

The Supreme Court Now To Determine the Boundaries of Federal Court Jurisdiction Over Federal Arbitration Act Proceedings

Photo of John LewisBy John Lewis on Posted in Arbitration
The U.S. Supreme Court has now granted certiorari to decide if federal courts have subject matter jurisdiction to confirm or vacate an arbitration award under the Federal Arbitration Act (FAA), Sections 9 and 10.  9 U.S.C. §§ 9 & 10.  See Badgerow v. Walters, No. 20-1143 (Cert. granted 5-17-21).  The question presented is “[w]hether federal … Continue Reading

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

Implicit Waiver of The Right to Arbitrate by Litigation – A Massachusetts District Court Addresses The Factors

Photo of John LewisBy John Lewis on Posted in Arbitration
Complex cases can present difficult legal issues but may also illuminate how courts evaluate questions such as when a party has waived its right to arbitrate. This is true regardless of the type of claims presented because the analytical framework spans diverse areas of law. District Judge Allison D. Burroughs’ recent Memorandum and Order addresses … 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

Ninth Circuit Doesn’t Require Uber to Litigate Driver’s Data Security Breach Putative Class Action

Photo of John LewisBy John Lewis on Posted in Arbitration
A Ninth Circuit panel denied a mandamus petition attempting to overturn a district court order requiring arbitration of a putative class action brought by an Uber driver. The action claimed that Uber failed to protect drivers’ and riders’ personal information and botched a data security breach by online hackers. The district court ultimately concluded that … Continue Reading

Arbitrator’s Joke Not Sufficient to Vacate Award in Putative Antitrust Class Action

Photo of John LewisBy John Lewis on Posted in Arbitration
A poor joke and unsubstantiated hero worship were insufficient to overturn an arbitrator’s award in favor of Travis Kalanick and Uber Technologies Inc., according to U.S. District Judge Jed S. Rakoff. In an Aug. 3 memorandum and order, Rakoff denied the plaintiff’s motion to vacate an arbitration award in the defendants’ favor arising from a … Continue Reading

The Third Circuit Demonstrates That Arbitration Rules Really Do Matter

Photo of John LewisBy John Lewis on Posted in Arbitration
Some may have wondered whether mentioning the rules of an administrative organization, such as the American Arbitration Association (AAA), in an arbitration agreement could have a legal impact.  It can. A number of decisions have considered how referencing specific arbitral rules can affect delegation of authority to an arbitrator or aggregate action issues. See our … Continue Reading

Another Court Rules on When Ride-Sharing Drivers Are Exempt From Arbitration

Photo of John LewisBy John Lewis on Posted in Arbitration
In this time of concern regarding the COVID-19 pandemic, there are other challenges still confronting companies. One involves the standard for enforcing arbitration agreements involving transportation workers. Or, stated differently, when drivers may be exempt from the Federal Arbitration Act (FAA). We have previously covered the courts’ struggles to deal with the fallout from New … 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

Supreme Court Decides First Arbitration Case on Its Docket – Henry Schein, Inc. v. Archer & White Sales, Inc.

Photo of John LewisBy John Lewis on Posted in Arbitration
As we noted in our Dec. 19, 2018, blog article, there were three arbitration cases involving the Federal Arbitration Act (FAA), all argued in October 2018, pending on the Court’s docket. Now, in a unanimous opinion written by Justice Brett Kavanaugh, Henry Schein, Inc. v. Archer & White Sales, Inc., No. 17-1272 (Jan. 8, 2019), … Continue Reading

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

Photo of 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

Photo of 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

Photo of 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

Photo of John LewisPhoto of Dustin 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?

Photo of 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
LexBlog