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
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 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
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
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
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
Few decisions have considered when a plaintiff waives his right to arbitrate through litigation conduct, but the Fifth Circuit has now done so for the second time. In Sabatelli v. Baylor Scott & White Health, Case No. 19-50047 (5th Cir. Oct. 21, 2020), a radiologist was forced to resign and filed a lawsuit raising age … Continue Reading
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
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
As we noted in our June 10, 2019 blog post, many have questioned whether state arbitration laws could be applied when some transportation workers are held to be exempt from the Federal Arbitration Act (FAA) based on Section 1 of that act. This quandary was fueled by New Prime, Inc. v. Oliveira, 139 S. Ct. … Continue Reading
Once again, a court has considered the criteria for the transportation worker exemption from the Federal Arbitration Act (FAA), 9 U.S.C. § 1. This time an account manager for ISS Facility Services Inc., Heidi Eastus, who oversaw ticketing and gate agents at George Bush Intercontinental Airport in Houston, Texas, maintained that she was exempt from … Continue Reading
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
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
Recent New York legislation in reaction to the #MeToo movement has sought to limit or foreclose arbitration of employment-related disputes. See N.Y. C.P.L.R. § 7515 (“§ 7515”) and its June 19, 2019, amendment, bill S6577/A842. The bill, initially signed into law in April 2018, was to “deal[] with the scourge of sexual harassment.” See N.Y. … 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
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
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
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
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
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
Some may have thought that once waived, the right to arbitrate is gone forever. No so! The Eleventh Circuit decision in Collado v. J & G Transport, Inc., No. 15-14635 (11th Cir. April 21, 2016) is but the latest example. In that case, Enrique Callado initially filed a collective action under the Fair Labor Standards … Continue Reading
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
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
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