Employment Law This Week®: Sexual Orientation Bias, Religious Discrimination, At-Will Employment Provision, Class Arbitration
In its restraint, SCOTUS has shown us the mischief that arbitrators may do if parties are lax in setting boundaries in their agreement to arbitrate. By declining to grant certiorari regarding the Second Circuit’s most recent...more
Takeaway: The concept of class arbitration has endured stiff headwinds. In Lamps Plus, Inc. v. Varella, 139 S. Ct. 1407 (2019), the Supreme Court ruled that a party cannot be required to participate in a class arbitration...more
The Fifth Circuit has suggested that the question of class arbitrability was for the arbitrator, not the court, based on the language of the arbitration clause at issue. The court ultimately concluded, however, that it did...more
The United States Supreme Court established that questions of arbitrability are presumptively for a court unless the parties clearly and unmistakability manifest their intention (i.e, agreement) that such issues should be...more
If we needed a reminder of why the “delegation” question – i.e., whether parties have agreed that gateway arbitrability issues should be adjudicated in the first instance by an arbitrator rather than by a court – is...more
“Class arbitration” signifies the utilization of the Fed.R.Civ.P. 23 protocol in an arbitration proceeding. A fundamental question among many concerning the legal viability of “class arbitration” is whether an arbitrator can...more
As this blog has previously discussed, the availability of class arbitration has been significantly restricted after a series of U.S. Supreme Court decisions. However, we have also noted that express preclusion of class...more
Oracle America Inc. appealed the trial court’s order compelling class arbitration in an employment dispute in which there were two agreements at issue, one with, and one without, a class action waiver. The Ninth Circuit...more
The Hong Kong International Arbitration Centre (“HKIAC”) has promulgated a new set of Administered Arbitration Rules (“AAR”), effective November 1, 2018. Among those rules are Articles 27-30 concerning the HKIAC’s powers to...more
The U.S. Supreme Court has pointed out consistently in recent years that the relatively new construct of “class arbitration” is very different from your uncle’s classic bilateral arbitration. (“Class arbitration” signifies...more
As the U.S. Supreme Court observed memorably in First Options of Chicago, Inc. v. Kaplan, arbitration disputes often raise “three types of disagreement” relevant to resolution of the dispute: (1) a disagreement as to the...more
Arbitration is often promoted as faster, cheaper, more predictable, and more controllable than litigation. But to many, arbitration’s promise comes up short on delivery. Why? A prime reason is that many parties do not make...more
In a series of articles over the past several months, we asked whether “class arbitration” — meaning the utilization of the Fed.R.Civ.P. 23 class action protocol in an arbitration proceeding — is ultimately viable in U.S....more
In a recent series of articles, we asked whether “class arbitration” — meaning the utilization of a Fed. R. Civ. P. 23 class action protocol in an arbitration proceeding — is ultimately viable. Given the nature of...more
We recently began a series of articles in which we ask whether “class arbitration” — meaning the utilization of a Federal Rule of Civil Procedure 23 class action protocol in an arbitration proceeding — is ultimately viable,...more
A decision allowing class-wide arbitration can transform a routine dispute into a “bet the company” problem. Who makes that decision: an arbitrator or a court? The Fourth Circuit Court of Appeals answered that question...more
Action Item: In a precedential opinion, the U.S. Court of Appeals for the Third Circuit outlined what is required for parties to allow arbitrators—rather than courts—to decide whether a matter could be arbitrated as a class....more
A federal court in New York has held that arbitrators, not courts, should decide whether class arbitration is available under an arbitration agreement entered into between private parties. The court had previously compelled...more