Federal Arbitration Act Preemption

The Federal Arbitration Act is a United States federal statute enacted in 1925 that governs arbitration in contracts implicating interstate commerce. The Act applies in both federal and state courts. 
News & Analysis as of

Retail and Consumer Products Law Roundup - November 2015

We are pleased to share with you the first issue of Manatt's Retail and Consumer Products Law Roundup. The newsletter will be published on a monthly basis and will survey topics of critical importance to the retail,...more

Fifth Circuit Stands Pat, Again Rejects NLRB Attempt To Void Class And Collective Action Waiver

As expected, the Fifth Circuit once again has rejected the NLRB’s highly controversial position that the National Labor Relations Act (“NLRA”) prohibits employers from requiring mandatory arbitration agreements that preclude...more

Ninth Circuit Affirms Iskanian Ruling Rendering PAGA Waivers Illegal

In Sakkab v. Luxottica Retail North America, Inc., the Ninth Circuit affirmed the California Supreme Court’s Iskanian v. CLS Transportation Los Angeles, LLC decision (originally summarized in our June 2012 issue), which held...more

Fenwick Employment Brief

Legislative Update - Governor Brown recently signed into state law the following employment law bills (among others): SB 358—Referred to as the California Fair Pay Act, this law is directed at closing the pay...more

The Supreme Court Preview, Part II: Tuning Up Arbitration Clauses

This is the second post in our series “The Supreme Court Preview,” - California state and federal courts have a rocky history with the U.S. Supreme Court, as the highest court in the land has repeatedly reversed the...more

Governor’s Pen Sends Anti-Employment Arbitration Bill to the Grave

On October 11—his very last day to sign or veto bills—Governor Brown vetoed the much-feared Assembly Bill 465. AB 465 would have banned mandatory agreements to arbitrate Labor Code claims as a condition of employment. At...more

CFPB Announces Intent to Commence Arbitration Rulemaking

On October 7, the Consumer Financial Protection Bureau (CFPB) announced that it is considering two rulemaking proposals that would severely limit the use of pre-dispute arbitration clauses in consumer financial service...more

The Consumer Financial Protection Bureau Takes Aim at Class Action Waivers in Arbitration Clauses

The Consumer Financial Protection Bureau (CFPB) last week announced its intent to launch a rulemaking process that would prohibit companies from using arbitration clauses that waive class action lawsuits. The CFPB's proposal...more

McCarran-Ferguson Lands a Jab on the FAA

As we reported in this space late last year, the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740, 1745 (2011), tilted the scales toward federal power in the field of arbitration, preempting...more

Struggle At The Supreme Court Over Arbitration Clauses

The U.S. Supreme Court returned to familiar territory last week in DirecTV Inc. v. Imburgia (argued Oct. 6, 2015): the enforceability of an arbitration clause in a consumer contract containing a class action waiver. But...more

U.S. Supreme Court’s October 2015 Term Promises Slew of Significant Labor and Employment Cases

Each year, the U.S. Supreme Court begins its term on the first Monday in October. Although known as the “October Term,” the term in fact continues, alternating between two-week “sittings” and “recesses,” until late June or...more

Governor Brown Vetoes Blanket Ban on Arbitration Agreements, But Signals Potential Support of More Tailored Legislation

Governor Brown got it right when he vetoed Assembly Bill 465, which would have restricted the enforcement of arbitration agreements requiring the arbitration of claims brought against employers for violations under the...more

Supreme Court Agrees to Review California Rule Invalidating Contractor Arbitration Agreements

On October 1, the U.S. Supreme Court agreed to hear the appeal of a company whose mandatory arbitration agreements with its contractors were deemed invalid by California state courts. Once again, the Court will determine...more

Ninth Circuit Holds That State Decision Barring Waiver Of Representative Claims Does Not Conflict With Federal Arbitration Act

On June 25, 2012 and July 7, 2014, we reported on the issue of waiver of representative claims under California’s Private Attorneys General Act of 2004 (“PAGA”). In Iskanian v. CLS Transportation of Los Angeles, LLC, the...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

Tennessee Supreme Court Holds That State Unconscionability Law Does Not Implicate Concepcion And Is Not Preempted By FAA

The Supreme Court of Tennessee reversed the lower courts’ rulings that a non-mutual arbitration provision in an installment contract on the sale of a manufactured home was unconscionable and unenforceable. In doing so,...more

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

Down The Arbitration Rabbit Hole: Ninth Circuit Refuses To Enforce Employee’s Waiver Of PAGA Claims

On September 28, 2015, the Ninth Circuit held in Shukri Sakkab v. Luxottica Retail North America, Inc. that the FAA does not preempt the rule that the California Supreme Court enunciated in Iskanian v. CLS Transportation that...more

Ninth Circuit Steals a PAGe from California Courts’ Playbook

Since the California Supreme Court’s 2014 ruling in Iskanian v. CLS Transportation that claims under the Private Attorneys General Act (“PAGA”) are not subject to arbitration, California federal district courts have rejected...more

Ninth Circuit’s Pro-PAGA Decision Is Not the Death Knell for Class Waivers in Arbitration Agreements

This week, in Sakkab, et al v. Luxottica Retail North America, Inc., the Ninth Circuit ruled that an employee cannot waive the right to bring a representative action under the Private Attorneys General Act (“PAGA”) through an...more

Ninth Circuit Blesses Iskanian

On September 28, 2015, the Ninth Circuit Court of Appeals issued a 2-1 decision in the long-awaited case of Sakkab v. Luxottica Retail North America, Inc. (No. 13-55184, D.C. No. 3:12-cv-00436-GPC-KSC) (“Sakkab”). The Court...more

California Employment Law and Arbitration: The Battle Intensifies

Yesterday, by a two-to-one vote, the Ninth Circuit joined the California Supreme Court in holding that Private Attorneys General Act (PAGA) claims are an exception to the Federal Arbitration Act. In Sakkab v. Luxottica Retail...more

Kentucky Supreme Court Compares Giving Up Jury Trial To Giving Up Parental Rights; Refuses To Enforce Arbitration

Nursing home arbitration agreements are among the most unpopular arbitration agreements around.  Last week, Kentucky’s Supreme Court issued a lengthy, but fractured, opinion, finding three arbitration agreements were never...more

California Legislature Acts to Outlaw Pre-Employment Mandatory Agreements to Arbitrate Labor Code Claims

In late August, the California Senate and Assembly passed AB 465, which, if signed by Governor Jerry Brown, will make pre-employment mandatory agreements to arbitrate Labor Code violations against California public policy...more

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