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California Supreme Court Denies Sequenced Discovery in Representative PAGA Action

On July 13, 2017, the California Supreme Court rejected lower court holdings that limited an employee’s ability to secure statewide employee contact and employment information in a representative PAGA action, when the...more

DOJ Changes Position in a Class Waiver Case Pending Before the Supreme Court

Last Friday, the U.S. Department of Justice (DOJ), in a rare move, changed its position in a class waiver case pending before the U.S. Supreme Court. On Jan. 13, 2017, the Court granted certiorari in three consolidated cases...more

NLRB V. Alternative Entertainment, Inc. – Sixth Circuit Joins the Seventh and Ninth Circuits in Rejecting Class Waivers

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...more

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

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...more

Supreme Court Rejects State Rule That Subjects Arbitration Agreements to Higher Standards

Some wondered why the U.S. Supreme Court granted certiorari in Kindred Nursing Centers L.P. v. Clark, No. 16-32, and after oral argument on February 22, 2017, many felt they knew the outcome. Indeed, Justice Stephen Breyer...more

Arguments for Class Arbitration with an Agreement That Doesn’t Mention It, Again Fail

The predicted demise of litigation over the availability of class arbitration has not taken place. And the new cases occur in many areas of the law. The most recent decision actually involves oil and gas leases rather than...more

Arbitration of PAGA Claims: Another California Divide Emerges

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.,...more

Proposed Legislation That Could Impact Class Action Litigation and Arbitration – The Fairness in Class Action Litigation Act of...

Two new pieces of proposed legislation could, if passed, change the architecture and requirements of class actions and outlaw mandatory arbitration clauses in employment and consumer contracts. But neither is a sure thing....more

Arbitrating PAGA Claims: The Ninth Circuit Compels It in the Valdez Case

So much case law has come down in the past several years regarding California’s Private Attorneys General Act (PAGA) – and its ability to withstand class and representative action waivers – that observers might have...more

Justices to Consider Arbitration Agreements With Class Waivers – The End of the Beginning?

Apologies to Winston Churchill, but the conflict over the enforcement of arbitration agreements with class waivers has become an ongoing legal and ideological struggle. Some view individual arbitration as a quicker and less...more

California Enacts Laws Aimed at Choice of Law Provisions in Arbitration Agreements and the Conduct of Arbitral Proceedings

Given California’s past resistance to mandatory arbitration agreements with class action waivers, it should come as no surprise that the state has now enacted two laws primarily directed at arbitration. On Sept. 25,...more

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

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...more

Reining In Individual Arbitration – Ninth Circuit Rules Class Waivers Unenforceable

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...more

Eighth Circuit Stays the Course in the Cellular Sales of Missouri Opinion, Rejecting the NLRB’s Arguments Against Class Waivers

Following in the wake of an earlier opinion, the Eighth Circuit rebutted the National Labor Relations Board’s (“Board”) arguments that by requiring employees to enter into arbitration agreements with a class and collective...more

Lewis v. Epic Systems Opinion – Seventh Circuit Swimming Against the Tide on Mandatory Individual 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...more

Standing Together to a Point: Spokeo Holding Reflects Broad Supreme Court Agreement on Standing Rules in Actions Raising Statutory...

Amid the meteoric rise of statutory damage class action filings, the Supreme Court laid out ground rules on Monday for when a case meets both components of the injury-in-fact requirements of Article III. In a 6-2 opinion...more

Collado v. J & G Transport, Inc. – When a Waived Right to Arbitrate is Revived

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...more

The Fifth Circuit Addresses an Issue That Refuses to Die: Who Determines Whether Class or Collective Arbitration Is Available?

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...more

The Next Chapter – Uber Responds to District Court Order With a New Arbitration Agreement

Not only did Uber respond to the district court’s December 9, 2015, ruling (discussed in our December 11 blog) with an immediate notice of appeal, but on December 11 it rolled out a new arbitration agreement for its drivers....more

District Judge Rules Uber’s Arbitration Agreements Unenforceable on Public Policy Grounds

On September 2, we addressed the much-publicized O’Connor v. Uber Technologies, Inc. case (No. 13-cv-03826-EMC) pending before the U.S. District Court for the Northern District of California. In O’Connor, a group of 160,000...more

Justices Take On Another California Rule – When an Arbitration Agreement Is Too Flawed to Enforce

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...more

PAGA In The News – Ninth Circuit Sides with California Supreme Court On Enforcement of PAGA Waivers and California Amends The...

The Ninth Circuit Decision - Delivering a perhaps unexpected blow to employers, the Ninth Circuit sided with the California Supreme Court earlier this week in upholding the state-court-fashioned Iskanian rule, which...more

Following the Sixth Circuit’s Lead, Ohio Appellate Courts Find Whether an Agreement Allows Class Arbitration Is a “Gateway Issue”

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...more

“Ain’t Wastin’ Time No More”* — Doctors, Vets, and Lawyers in the Antitrust Crosshairs

Supreme Court Decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission Prompts Legal Challenges to State Professional Boards - Earlier this month a Texas federal district court judge granted a...more

Justices Pass on Second Opportunity to Resolve the California PAGA Divide in the Bridgestone Case

For a second time the U.S. Supreme Court declined to hear a case challenging a California Supreme Court holding that the state’s Private Attorneys General Act (PAGA) could not be waived in a mandatory arbitration agreement....more

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