Tag Archives: FAA

Second Circuit Again Considers if Bakery Goods Drivers Are Excluded Under the FAA Because They Are “Transportation Workers”. The Saga Continues . . .

Photo of John LewisBy John Lewis on Posted in Arbitration
While the Supreme Court’s opinion in Southwest Airlines Co. v. Saxon, 142 S. Ct. 1783 (2022), brought needed clarity to the analysis of the class of workers excluded as “transportation workers” by the residual clause of the Federal Arbitration Act (FAA), many questions remain. We blogged about the Saxon decision on June 8, 2022.… Continue Reading

Supreme Court Resolves Whether an Airline Ramp Supervisor Falls Within the Transportation Worker Exemption of the FAA

Photo of John LewisBy John Lewis on Posted in Arbitration
For years courts have been struggling to determine the proper application of the Section 1 exemption of the Federal Arbitration Act (FAA). See 9 U.S.C. § 1. Now the U.S. Supreme Court has brought some clarity to the analysis. In Southwest Airlines Co. v. Saxon, Case No. 21-309 (June 6, 2022), the court unanimously concluded … 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 Vote is In, FAA Sections 9 And 10 Do Not Provide “Look-Through” Jurisdiction to Confirm or Modify Arbitral Awards

Photo of John LewisBy John Lewis on Posted in Arbitration
Our prior blog articles predicted that the outcome in Badgerow v. Walters, No. 20-1143, might turn on whether the plain text of the Federal Arbitration Act (FAA) or its purposes would prevail. See our June 16 and Nov. 9, 2021 blog articles on the Badgerow case and the employment dispute that fueled it.  As it … 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

Has the 11th Circuit Clarified the Transportation Worker Exemption of the FAA or Just Created a Circuit Split?

Photo of John LewisBy John Lewis on Posted in Arbitration
In a published June 22 opinion, the Eleventh Circuit laid out a clear test for the Federal Arbitration Act (FAA) Section 1 exemption. It answered the reoccurring question “Who is a transportation worker?” See Hamrick v. Partsfleet, LLC, No. 19-13339, 2021 WL2546405 (11th Cir. June 22, 2021). Hamrick involved final-mile delivery drivers who transported goods … Continue Reading

Food Delivery Driver Opinion Sheds More Light on the FAA Exemption and Use of CPR Arbitration Rules

Photo of John LewisBy John Lewis on Posted in Arbitration
Plaintiff Jacob McGrath filed a nationwide Fair Labor Standards Act (FLSA) action ultimately involving approximately 4,000 food delivery drivers for DoorDash Inc. alleging that the drivers, known as “Dashers,” were misclassified as independent contractors and not paid for all hours they worked. DoorDash responded by filing a motion to compel arbitration for those individuals who … 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

Who Is ‘Engaged in Commerce’ Under FAA Section 1? Not Food Delivery Drivers

Photo of John LewisBy John Lewis on Posted in Arbitration
Certain Grubhub Inc. delivery drivers brought two putative collective and class actions asserting that they were misclassified as independent contractors, resulting in both federal and state wage and hour violations. The drivers – who worked in Chicago, Portland and New York – had signed Delivery Service Provider Agreements that required arbitration but claimed their agreements … Continue Reading

California Enacts Anti-Arbitration Legislation, but Will the FAA Limit Its Potential Impact? Not Entirely.

Photo of John LewisPhoto of Joseph S. PersoffBy John Lewis and Joseph S. Persoff on Posted in Arbitration
On Oct. 10, California Governor Gavin Newsom signed into law an attempt by California’s Legislature to limit arbitration of claims under California’s Fair Employment and Housing Act (“FEHA”). FEHA prohibits harassment, discrimination and retaliation on the basis of various protected characteristics, such as gender, age, disability or national origin. Taking effect Jan. 1, 2020, AB 51 … Continue Reading

Third Circuit Opinion Involving Uber Only Adds More Questions to the Dispute Over the Scope of the FAA Section 1 Residual Clause

Photo of John LewisBy John Lewis on Posted in Arbitration
Recent decisions have cast doubt on the enforcement of arbitration clauses in the context of the interstate transportation of goods, but will those limitations extend to the transportation of passengers? And what if the movement does not cross state lines? In a Sept. 11, 2019, opinion, the Third Circuit found that the residual clause of … Continue Reading

Recent Decisions Don’t Provide Useful Guidance on Tests for the FAA Exemption of Transportation Workers

Photo of John LewisBy John Lewis on Posted in Arbitration, Arbitration Agreements
Sometimes being right is not a virtue, especially when it comes to the Federal Arbitration Act § 1 exemption. We predicted uncertainty after the New Prime v. Oliveira decision and got it. See our Jan. 17, 2019, blog post on the exemption. Indeed, if anything, recent decisions have raised more questions than answers. Part of the problem … 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

What’s Ahead at the Supreme Court?

Photo of John LewisBy John Lewis on Posted in Supreme Court
There are at least four cases now before the U.S. Supreme Court that may be of significant interest to employers. Three were argued in October 2018, and certiorari was granted in the last case on Dec. 10. The Three Cases Already Argued The three cases argued all involve arbitration. The first, New Prime Inc. v. … Continue Reading

Another bill aimed at employee arbitration agreements – this time to nullify Epic Systems

Photo of John LewisBy John Lewis on Posted in Arbitration, Epic Systems, NLRB
On Oct. 30, 2018, Rep. Jerrold Nadler, D-N.Y., and Rep. Bobby Scott, D-Va., together with 58 Democratic cosponsors, introduced the Restoring Justice for Workers Act, H.R. 7109. Unlike some earlier bills, this proposed legislation would prohibit all pre-dispute arbitration agreements covering employment claims, forbid retaliation against employees for refusing to arbitrate those disputes and amend … Continue Reading

Independent Contractor Trucker Class Action that Dodged FAA Arbitration Now Moves to the Supreme Court

Photo of John LewisBy John Lewis on Posted in Arbitration, Class Action Litigation
As we await the Supreme Court’s decision on the enforceability of class action waivers, the Court has accepted certiorari on another arbitration-related case, this one relating to the application of the Federal Arbitration Act (FAA) to the trucking industry. The U.S. Supreme Court on February 26 granted the certiorari petition of trucking company New Prime, … Continue Reading

Independent Contractor Trucker Dodges FAA Arbitration and Keeps His Class Action Alive

Photo of John LewisBy John Lewis on Posted in Arbitration, Independent Contractors
In Oliveira v. New Prime, Inc., No. 15-2364 (May 12, 2017), the U.S. Court of Appeals for the First Circuit confronted two arbitration-related questions of first impression in that Circuit.  In the case, Dominic Oliveira had signed an Independent Contractor Operating Agreement with New Prime, Inc., which contained an arbitration provision governed by the Commercial … Continue Reading

The Widening California Divide: The Rejection of Iskanian by Federal District Courts and Potential Resolution

Photo of John LewisBy John Lewis on Posted in PAGA
In an October 22, 2014, posting, we addressed the growing divide between California federal district courts and the California Supreme Court over whether an arbitration agreement can waive an employee’s right to pursue a representative claim under the state’s Private Attorney General Act (PAGA).  That divide has now widened as two more federal district courts … Continue Reading

Russell v. Citigroup Inc. – Language in Revised Arbitration Agreement Torpedoes its Application to Pending Class Action

Photo of John LewisBy John Lewis on Posted in Arbitration, Off-the-clock, Wage and Hour
A Sixth Circuit panel found the text of an updated arbitration agreement indicated it did not apply to a wage and hour class action already pending when the agreement was signed.  Russell v. Citigroup, Inc., Case No. 13-5994 (6th Cir. April 4, 2014). Keith Russell had worked at a Citicorp call center in Florence, Kentucky … Continue Reading

Massachusetts Supreme Court Enforces Class Action Arbitration Waiver

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in Arbitration
On Second Thought… Court Begrudgingly Reverses Its Own June 2013 Decision On Class Arbitration In Light of SCOTUS’s Amex Decision Eight days prior to the Supreme Court’s decision in American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013) (“AMEX”) (which we blogged here), the Massachusetts Judicial Court held that the Federal Arbitration Act … Continue Reading

U.S. Supreme Court Decides American Express Co. v. Italian Colors Restaurant – Worth the Wait

Photo of John LewisBy John Lewis on Posted in Arbitration
This blog post was co-authored by: Dustin Dow The U.S. Supreme Court rejected the contention that a class arbitration waiver was unenforceable under the Federal Arbitration Act (“FAA”) when the cost of arbitrating individually would be greater than any potential recovery.  Writing for a 5-3 majority of the Court, Justice Antonin Scalia ruled in American … Continue Reading

Court Rejects EEOC Class-Wide BFOQ Challenge To Mandatory Retirement Of Pilots

Photo of Greg MersolBy Greg Mersol on Posted in Uncategorized
Mandatory retirement ages have been largely eliminated for most employees, but still continue in a handful of areas.  For many years, the Federal Aviation Administration prohibited pilots over the age of 60 from flying for commercial airlines.  In 2007, that limit was raised to age 65 for domestic flights.  But what about private pilots working … Continue Reading
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