Mandatory Arbitration Clauses

News & Analysis as of

Supreme Court to Decide Legality of Class Action and Collective Action Waivers

On January 13, 2017, the Supreme Court agreed to consider whether employee arbitration agreements containing class/collective action waivers are unlawful and unenforceable. The Court’s decision to consider this issue portends...more

Supreme Court Will Review NLRB’s Anti-Arbitration D.R. Horton Rule

As we’ve noted in this space before, one of the most persistent efforts to undermine the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion—which held that the Federal Arbitration Act (FAA) generally requires...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

Supreme Court Will Hear Class Action Waiver Cases

Last week, the Supreme Court consolidated and agreed to hear three appeals of Circuit Court decisions concerning whether class action waivers contained in employment arbitration agreements infringe on employees’ rights under...more

Supreme Court Agrees to Hear Cases Attacking Arbitration Agreements With Class Action Waivers

On Friday, January 13, 2017, the Supreme Court agreed to consider arguments over whether employer arbitration policies that prohibit employees from filing class or collective actions are violative of the National Labor...more

When An Arbitration Clause Sounds Permissive But Is Not — Does “May” Really Mean “Must”?

Is an arbitration clause mandatory or permissive when it provides that either party to the contract may elect to submit a dispute to binding arbitration? What if the contract also provides that the right to arbitrate is not...more

Court Refuses To Enforce Arbitration Clause Due To Lack Of Mental Capacity

In Oak Crest Manor Nursing Home, LLC v. Barba, a plaintiff sued a nursing home for negligently allowing a patient with mental disorders to leave the facility and jump from a bridge in an attempt to commit suicide. No....more

NAIC Draws Line In CFPB Sand Box

The National Association of Insurance Commissioners has taken a firm stance on the Consumer Financial Protection Bureau’s proposed ban of “mandatory arbitration” clauses that make financial product consumers waive their right...more

Federal Contractors Might Be in for a Wild Ride in 2017

President Obama has signed multiple executive orders impacting federal contractors throughout his administration, and 2016 has been a particularly active year for the Office of Federal Contract Compliance Programs (OFCCP). In...more

Proposed New Jersey Law Takes Aim at Mandatory Arbitration

Assembly Bill A-3064, which the New Jersey Assembly passed on October 20, 2016, will come up for consideration in the Senate this year. If the Senate passes and the Governor signs A-3064, no company that wants to do business...more

CFPB Announces Shift in Fair Lending Focus for 2017

On December 16, 2016, the fair lending team at the Consumer Financial Protection Bureau (CFPB) announced the markets that it would closely monitor in 2017. These new monitoring priorities are part of the general priority...more

2016 in Arbitration Law: Fleeting Victories for Consumer Advocates?

If I had drafted this annual summary post on November 7, 2016, it would have looked different. At that point, the year had produced numerous (final or proposed) federal regulations that significantly restricted the use of...more

Ninth Circuit Denies Rehearing En Banc, Requires Ex-Uber Drivers to Arbitrate Claims Individually

The Ninth Circuit denied rehearing en banc of its September order holding that the district court erred in deciding whether two drivers who sued Uber Technologies, Inc. (“Uber”) on behalf of themselves and a putative class...more

NAIC Draws Line in CFPB Sandbox

The National Association of Insurance Commissioners has taken a firm stance on the Consumer Financial Protection Bureau’s proposed ban on "mandatory arbitration" clauses that make financial product consumers waive their right...more

Fifth Circuit Reaffirms Enforceability of Class Action Waivers in Employment Arbitration Agreements, But Their Fate Remains...

Employers commonly use arbitration agreements to minimize the expense and exposure of employment-related claims. By mandating arbitration of employment disputes, they hope to ensure that these matters are resolved in a...more

Party Cannot Appeal Decision That District Court Did Not Make Regarding Motion To Vacate Arbitration Award

The Sixth Circuit has declined to rule on a motion to vacate an arbitration award, which was brought at the same time as a successful motion to dismiss the action for forum non conveniens, when the district court had not...more

California Employer Compliance 2017

There have been significant changes to state and federal laws in 2016 affecting employers of all sizes and in many industries. We'd like to help our clients stay apprised of some of the more critical changes by reminding all...more

Tenth Circuit Affirms Refusal To Compel Arbitration Where Agreements Contained Conflicting Arbitration Provisions

Mr. Ragab sued two financial companies and a corporate officer for misrepresentation and for violating several consumer credit repair statutes. There were six agreements between the parties, including, for example, a...more

What Can We Expect From California's Upcoming 2017-2018 Legislative Session?

With the dust still settling from last month's unprecedented presidential election, California’s politicians have not stood still. In partisan terms, the election results in California could not be more different from that...more

CFPB Releases Status Update Regarding Fall 2016 Rulemaking Agenda

On December 2, 2016, the Consumer Financial Protection Bureau (CFPB) released a status update regarding various initiatives that were proposed in its fall 2016 rulemaking agenda. The update provides readers with an overview...more

Brazil’s top court strikes down validity of arbitration clause in franchise agreement

In a recent and potentially far-reaching decision, the Superior Tribunal of Justice – the highest court of Brazil for non-constitutional matters with responsibility for harmonizing interpretation of federal laws by the state...more

November 2016 Independent Contractor Misclassification and Compliance News Update

Our news update for last month highlights the fact that IC misclassification lawsuits are happening across the country and in virtually every industry, both in the on-demand economy and in more traditional business sectors....more

Arbitration Clause In Body Of Reinsurance Agreement Governs Over Provision In Endorsement

In a dispute between First Mutual, a ceding company, and its reinsurer, Infrassure, over which of two competing arbitration clauses in a reinsurance contract governed, the Second Circuit affirmed a lower court decision in...more

Third Circuit Reverses Order Denying Arbitration, Ruling That State Law Prohibiting Arbitration Of Insurance Matters Challenged...

Applied Underwriters Captive Risk Assurance Company appealed from the denial of its motion to compel arbitration in a dispute related to a reinsurance participation contract with South Jersey Sanitation Company. The trial...more

SDNY Confirms Arbitration Award Following Respondent’s Default

On an unopposed petition to confirm an arbitration award, a New York federal court treated the petition and accompanying record as a motion for summary judgment. “Thus, like unopposed summary judgment motions, unopposed...more

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