Liz Kramer

Liz Kramer

Stinson Leonard Street

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Out On A Limb, 7th Circuit Creates Circuit Split Over Class Arbitration For Employees

Of all the federal circuit courts, I was not expecting the 7th Circuit to venture out on a limb to support the NLRB’s interpretation of the National Labor Relations Act (NLRA) as precluding class arbitration waivers. ...more

6/7/2016 - Arbitration Class Action Class Action Arbitration Waivers Federal Arbitration Act Mandatory Arbitration Clauses NLRA NLRB Pre-Employment Agreements Section 7

Hold Onto Your Hats: CFPB Proposed Rules Will Lead to Lots of Class Action Litigation

Yesterday, the Consumer Financial Protection Bureau proposed the rules that it previewed last fall, following up on its Arbitration Study. Those rules would essentially ban class action waivers from consumer financial...more

5/6/2016 - Arbitration Arbitration Agreements CFPB Class Action Class Action Arbitration Waivers Consumer Contracts Consumer Financial Products Dodd-Frank Financial Services Industry Service Contracts

Emerging Trends in Arbitration: Battle Brewing Between Executive and Judicial Branches

In recent years, arbitration has become a divisive issue. Exemplifying the increased public focus on arbitration, The New York Times ran a three-part series in 2015 that was very critical of the state of arbitration law. In...more

4/12/2016 - Arbitration Arbitration Agreements CFPB Class Action Class Action Arbitration Waivers Consumer Contracts Consumer Financial Products Dodd-Frank Federal Arbitration Act Financial Sector Financial Services Industry Mandatory Arbitration Clauses NLRB Putative Class Actions Service Contracts

Fourth Circuit Finds Availability Of Class Arbitration Is Question For Courts, Not Arbitrators

Joining the Sixth and Third Circuit Courts of Appeals, the Fourth Circuit this week held that “whether an arbitration clause permits class arbitration is a gateway question of arbitrability for the court.” Dell Web...more

3/31/2016 - Arbitration Agreements Class Action Class Arbitration Construction Defects Construction Industry Mandatory Arbitration Clauses Residential Real Estate Market

January Arbitration Update: Effective Vindication, Class Arbitration, and FAA Preemption

Lots of interesting arbitration law has been made already in 2016, so here is a roundup from the first four weeks of the year. As a teaser, courts have resuscitated the effective vindication doctrine, found arbitrators cannot...more

2/1/2016 - American Arbitration Association Arbitration Attorney's Fees Class Action Corporate Counsel Federal Arbitration Act

“Older Workers” Do Not Have To Arbitrate Statutory Employment Claim

Arbitration is having its 15 minutes of fame. Thanks to a series in the New York Times, my inbox is full of links to the articles, questions about the information, and fascinating commentary. [Next time I am in Oakland, I...more

11/2/2015 - ADEA Arbitration CFPB Class Action Class Action Arbitration Waivers Collective Actions Consumer Financial Products Federal Arbitration Act General Mills New York Times OWBPA

CFPB Likely To Require Access To Class Actions And Data On Individual Arbitrations

Richard Cordray, Director of the Consumer Financial Protection Bureau, has positioned himself as the Boogeyman that financial companies fear this Halloween season. Earlier this month, the CFPB outlined the proposals under...more

10/23/2015 - American Arbitration Association Arbitration Arbitration Agreements Banking Sector Banks CFPB Class Action Class Action Arbitration Waivers Consumer Financial Products Dodd-Frank Financial Institutions Financial Transactions FINRA

Arbitration Puzzler: Nevada’s Anti-Waiver Rule Preempted; California’s Anti-Waiver Rule Not Preempted

Two opinions came out recently in disputes over the arbitrability of putative class actions alleging that employees were not paid for overtime (and other labor violations). In one, the Nevada Supreme Court acknowledged that...more

10/8/2015 - Arbitration AT&T Mobility AT&T Mobility v Concepcion Class Action Class Action Arbitration Waivers Federal Arbitration Act Iskanian Iskanian v CLS Transportation NLRA NLRB NV Supreme Court Preemption Putative Class Actions SCOTUS Unconscionable Contracts Unpaid Overtime Wage and Hour

California Upholds Controversial Arbitration Clause Within Consumer Contract

California is changing its tune. Although previously known for decisions that flouted federal arbitration law, its decision yesterday in Sanchez shows the current California Supreme Court will abide by SCOTUS’s...more

8/5/2015 - Arbitration Arbitration Agreements AT&T Mobility v Concepcion CA Supreme Court Class Action Consumers Legal Remedies Act Federal Arbitration Act Mercedes-Benz SCOTUS Waivers

SCOTUS Will Hear Arbitration Case in October Term

Just as I was beginning to worry that arbitration had fallen out of favor at the nation’s highest court… today the Supreme Court announced that it will hear the case of DIRECTV, Inc. v. Imburgia during its October Term, an...more

3/23/2015 - Arbitration Class Action Class Action Arbitration Waivers DirectTV DirecTV v Imburgia False Advertising SCOTUS

Beyond the Headlines Part II: What The New CFPB Report Teaches Us About Arbitration v. Litigation

In my last post, I shared some of the highlights from the first half of the new CFPB Arbitration Study.  This post covers the second half of the report, with juicy information gleaned from CFPB’s analysis of almost...more

3/13/2015 - Arbitration CFPB Class Action Consumer Financial Products

Another Federal Appeals Court Finds Availability of Class Arbitration Is Question for Court

In a footnote in Sutter, SCOTUS hinted that the question of whether an arbitration agreement allowed for class arbitration may be one of the “gateway” questions of arbitrability that are presumptively for courts to decide....more

8/4/2014 - Arbitration Class Action Class Action Arbitration Waivers Class Certification SCOTUS

California Maintains Some Restrictions On The Waivers Allowable In Employment Arbitration Agreements

This week the Supreme Court of California held that the FAA preempts California’s 2007 Gentry ruling, one that protected employees from nearly all class action waivers in arbitration agreements. Iskanian v. CLS Transp. Los...more

6/26/2014 - Arbitration Class Action Class Action Arbitration Waivers CLS Transportation Employer Liability Issues Employment Contract Federal Arbitration Act Iskanian Mandatory Arbitration Clauses PAGA Trucking Industry

SCOTUS Will Not Reconsider Fate Of Delaware’s Business Arbitrations; NLRB’s Class Action Arbitration Decision Loses Again

SCOTUS announced today that it would not review the Third Circuit’s decision in Strine v. Delaware Coalition for Open Government, Inc, holding that Delaware’s Chancery Court could not offer its judges’ services as neutral...more

3/24/2014 - Arbitrators Class Action Collective Actions Federal Arbitration Act FLSA NLRB SCOTUS

Fifth Circuit Overrules NLRB, Finds D.R. Horton May Preclude Class Arbitration

After three federal circuits had already refused to defer to the NLRB’s decision in D.R. Horton, it is not surprising that the Fifth Circuit yesterday overruled the NLRB’s critical holding: that precluding class arbitrations...more

12/5/2013 - Arbitration Class Action Class Action Arbitration Waivers D.R. Horton D.R. Horton v NLRB NLRA NLRB

Sixth Circuit Is First To Find Availability Of Class Arbitration Is Gateway Issue To Be Decided By Courts

Just four months ago, SCOTUS suggested (but did not hold) that the decision to allow class arbitrations might be a “gateway” issue of arbitrability that defaults to courts. This week, the Sixth Circuit was the first to take...more

11/11/2013 - Arbitration Arbitration Agreements Class Action Contract Drafting SCOTUS

Halloween Special: Scary Results If Employers Overreach In Arbitration Clauses

No haunted house can scare general counsel as much as an opinion invalidating their company’s arbitration clause and thereby allowing a class action to proceed. So, here is a Halloween tale for all to keep in mind....more

11/1/2013 - Arbitration Arbitration Agreements Class Action Contract Drafting Corporate Counsel Halloween Unconscionable Contracts

First State Court Decision Is Reversed Under SCOTUS’ Amex Ruling

Put this post in the “I called it” category - On June 12, the Massachusetts Supreme Judicial Court declared in Feeney that class arbitration waivers are invalid under Massachusetts law if plaintiffs cannot effectively...more

8/6/2013 - American Express American Express v Italian Colors Restaurant Arbitration Class Action Class Action Arbitration Waivers Federal Arbitration Act SCOTUS

Employment Class And Collective Action Insight: U.S. Supreme Court Holds That Arbitration Class-Action Waivers Are Valid, Even If...

On June 20, 2013, in American Express Co. v. Italian Colors Restaurant, the U.S. Supreme Court held that, under the Federal Arbitration Act, courts cannot invalidate a class arbitration waiver on the ground that the...more

6/26/2013 - American Express American Express v Italian Colors Restaurant Arbitration Arbitration Agreements Class Action Class Action Arbitration Waivers Federal Arbitration Act SCOTUS

SCOTUS Says “Tough Luck” To Plaintiffs Whose Claims Are Too Pricey To Prove In Individual Arbitrations

In American Express Co. v. Italian Colors Restaurant, a divided Supreme Court today reversed the Second Circuit and held that plaintiffs may not invalidate an arbitration agreement containing a class action waiver merely...more

6/21/2013 - American Express American Express v Italian Colors Restaurant Arbitration Arbitration Agreements Class Action Federal Arbitration Act Legal Costs SCOTUS Sherman Act The Clayton Act Waivers

Massachusetts Invalidates Arbitration Agreement Because Plaintiffs Could Not Effectively Pursue Small Value Claims

As we were waiting for SCOTUS’s decision in AmEx, we got a decision on vindicating statutory rights from a different high court: the Supreme Judicial Court of Massachusetts. ...more

6/14/2013 - Arbitration Arbitration Agreements Class Action Class Action Arbitration Waivers

Third Circuit Clarifies When Additional Discovery Must Be Allowed On Arbitrability

In an opinion that feels a bit like a report from the annual meeting of arbitration nerds, the Third Circuit last week clarified when district courts must allow discovery about arbitrability. ...more

6/3/2013 - Arbitration Class Action Discovery Motion to Compel Summary Judgment

Plaintiffs Must Arbitrate Individually, Even If It Means No “Pattern-Or-Practice” Claim

All the cool kids are talking about class arbitration lately. . . There are the two cases pending before SCOTUS, and now the Second Circuit confirms its place in the “in crowd” with a decision forcing a class of employees...more

3/28/2013 - Arbitration Arbitration Agreements Class Action Discrimination Gender Discrimination Goldman Sachs SCOTUS

SCOTUS Struggles With Standard Of Review For Arbitrator’s Decision To Allow Class Arbitration

While the oral argument before the United States Supreme Court in Sutter today was ostensibly about whether to affirm an arbitrator’s decision that the parties’ contract authorized class arbitration, the decision really turns...more

3/26/2013 - Arbitration Arbitration Agreements Class Action Class Certification Federal Arbitration Act SCOTUS Standard of Review

SCOTUS Hears AmEx III: Argument Highlights

The Supreme Court heard arguments in AmEx III today, the case that presents the question whether an arbitration agreement precluding class actions can be invalid if it makes it impossible for plaintiffs to vindicate federal...more

2/28/2013 - American Express American Express v Italian Colors Restaurant Arbitration Agreements AT&T Mobility v Concepcion Class Action Class Action Arbitration Waivers Federal Arbitration Act SCOTUS

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