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
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
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
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
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
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
But Can The Good Guys Avoid A Last Second Goal In This Case? The Ninth Circuit’s decision in Johnmohammadi v. Bloomingdales, Inc., Case No. 12-55578 (9th Cir. June 23, 2014), should have employers feeling as good as the U.S. Men’s Soccer team up through the fourth minute of added time in the second half of … Continue Reading
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
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
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
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
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
“……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
The Supreme Court has issued a set of decisions that may seriously affect the utility of arbitration in the employment context and may make arbitration an effective defense against employment class actions. On April 27, 2010, the Supreme Court decided the case of Stolt-Nielsen v. AnimalFeeds Int’l Corp.pdf 2010 U.S. LEXIS 3672 (Apr. 27, 2010). The … Continue Reading