Tag Archives: “class action waivers”

Following Precedent: Second Circuit Reaffirms Position Upholding Arbitration Agreements With Class Action Waivers

Photo of John LewisBy John Lewis on Posted in Arbitration, NLRB
Amid contrary decisions by the Seventh and Ninth Circuits, the Second Circuit followed its earlier precedent in Patterson v. Raymours Furniture Co., No. 15-2820 (Sept. 2, 2016), enforcing an Employment Arbitration Program (EAP) that requires employees to submit their employment and compensation claims to individual arbitration. The EAP, however, permits employees to file charges and … 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

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

Photo of 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

High-Court Showdown Looming? NLRB Defends D.R. Horton Section 7 Decision with Full-Throated Rebuttal in Murphy Oil

Photo of Dustin DowBy Dustin Dow on Posted in Arbitration, NLRB
In the wake of federal circuit courts rejecting its position on the issue of class action waivers, the National Labor Relations Board is digging in its heels, perhaps preparing itself for a Supreme Court battle.  Employers must continue to beware that their employment arbitration agreements barring class claims may still be found unenforceable by the … Continue Reading

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

Photo of John LewisPhoto of Dustin 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

U.S. Supreme Court Refuses to Hear Petition that Proceeding as a Collective Action Under the FLSA is a Non-Waivable Substantive Right

Photo of Joel GriswoldBy Joel Griswold on Posted in Collective Action, FLSA
In the last week, we have seen several significant decisions from the U.S. Supreme Court.  On Monday, however, the Court made a noteworthy “non-decision” by declining a petition for certiorari that raised the question of whether a collective action under the Fair Labor Standards Act is a non-waivable, substantive right. In Walthour v. Chipio Windshield … Continue Reading

Tenth Circuit Criticizes District Court for Permitting “Death by Discovery” in Dispute over Arbitrability

Photo of Greg MersolBy Greg Mersol on Posted in Arbitration
The purpose of arbitration is to resolve disputes more quickly and inexpensively than litigation.  It’s getting less difficult to enforce such agreements, but apparently some courts and parties have yet to get the message as a recent Tenth Circuit reflects.  Howard v. Ferrellgas Partners, L.P, Case No. 12-3061 (10th Cir. Apr. 8, 2014).  It’s not … Continue Reading

Fifth Circuit Rejects NLRB’s D.R. Horton Decision – Too Soon For Champagne?

Photo of 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

LexisNexis v. Crockett — Sixth Circuit Performs A Gateway Analysis In Class Arbitration Controversy

Photo of John LewisBy John Lewis on Posted in Uncategorized
A Sixth Circuit panel has ruled that courts rather than arbitrators should determine whether class arbitration is authorized when the arbitration agreement “says nothing about classwide arbitration.”  Citing First Options of Chicago v. Kaplan, 514 U.S. 938, 945 (1995), the Court was clear that an arbitrator can only decide “class arbitrability” “if the parties have … Continue Reading

Class Action Waivers And Arbitration Agreements – Justices Divided On Validity Of Effective Vindication Of Rights Analysis In AMEX Oral Argument

Photo of John LewisBy John Lewis on Posted in Uncategorized
Co-Authored By: Ruth E. Hartman Introduction The U.S. Supreme Court heard the much anticipated oral argument in American Express Co. v. Italian Colors Restaurant on February 27, 2013.  The issue before the Court was whether an arbitration clause which prohibits class actions should be enforced if the claimant could establish that enforcement of the clause would … 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

In Re American Express Merchants’ Litigation

Photo of John LewisBy John Lewis on Posted in Uncategorized
The Third Time is Not a Charm as the Second Circuit Again Holds Class Action Waivers Unenforceable The Second Circuit considered the validity of class action waivers for the third time in an antitrust action brought against American Express (“AMEX”) based upon the company’s Card Acceptance Agreement.  And, despite intervening Supreme Court opinions, for the … Continue Reading

New York Court Rejects D.R. Horton; Orders Arbitration Despite Class Action Waiver

Photo of Greg MersolBy Greg Mersol on Posted in Arbitration, FLSA
A great deal of intellectual energy has been spent on the issue of whether various employment arbitration agreements are enforceable, but the debate pretty much comes down to two camps. Over 80 years ago, in response to judicial reluctance to enforce arbitration agreements, Congress passed the Federal Arbitration Act. Virtually every court on both sides … Continue Reading

NLRB Holds Class Action Waivers Violate the National Labor Relations Act

Photo of John LewisBy John Lewis on Posted in Arbitration, FLSA
In the much anticipated ruling in D.R. Horton, Inc. and Michael Cuda.pdf, released Friday, January 6, the National Labor Relations Board (“NLRB”) held that the Company violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by “requiring employees to waive their right to collectively pursue employment-related claims in all forums, arbitral and judicial.” The … Continue Reading
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