A federal judge has issued a temporary restraining order halting the enforcement of Assembly Bill 51, California’s latest attempt to prevent arbitration of claims brought under the California Fair Employment and Housing Act....more
On Oct. 10, California Governor Gavin Newsom signed into law an attempt by California’s Legislature to limit arbitration of claims under California’s Fair Employment and Housing Act (“FEHA”). ...more
Recent decisions have cast doubt on the enforcement of arbitration clauses in the context of the interstate transportation of goods, but will those limitations extend to the transportation of passengers? ...more
In Gembarski v. PartsSource, Inc. (Slip Opinion No. 2019-Ohio-3231, decided Aug. 14, 2019), the Supreme Court of Ohio clarified the standards for waiver of the right to arbitrate in the class action context where only unnamed...more
In a predictable decision, the Fifth Circuit has held that the availability of class arbitration is a gateway issue for the courts to decide, absent “clear and unmistakable” language in the arbitration agreement to the...more
Recent New York legislation in reaction to the #MeToo movement has sought to limit or foreclose arbitration of employment-related disputes. See N.Y. C.P.L.R. § 7515 (“§ 7515”) and its June 19, 2019, amendment, bill...more
The U.S. Supreme Court, in a 5-4 decision, ruled that arbitration agreements must provide a “contractual basis for concluding that the part[ies] agreed to [class arbitration].” ...more
4/25/2019
/ Ambiguous ,
Appeals ,
Arbitration ,
Arbitration Agreements ,
Class Arbitration ,
Consent ,
Federal Arbitration Act ,
Federal v State Law Application ,
Jurisdiction ,
Lamps Plus Inc v Varela ,
Motion to Compel ,
Preemption ,
Reversal ,
SCOTUS
A Sept. 27, 2018, Kentucky Supreme Court ruling found that mandatory arbitration agreements conditioned on employment were not enforceable. See Northern Kentucky Area Development District v. Snyder, No. 2017-SC-000277-DG. ...more
The intersection of Fair Labor Standards Act (FLSA) collective action procedures and employee arbitration agreements waiving aggregate actions has led to differing approaches among the district courts. ...more
As we noted in our Dec. 19, 2018, blog article, there were three arbitration cases involving the Federal Arbitration Act (FAA), all argued in October 2018, pending on the Court’s docket. Now, in a unanimous opinion written by...more
1/16/2019
/ Appeals ,
Arbitration ,
Arbitration Agreements ,
Arbitrators ,
Contract Terms ,
Exceptions ,
Federal Arbitration Act ,
Henry Schein Inc v Archer and White Sales Inc ,
Judicial Review ,
Motion to Compel ,
Question of Arbitrability ,
Remand ,
SCOTUS ,
Vacated ,
Wholly Groundless Doctrine
The standards for determining when a party waives its right to arbitrate through participation in litigation have never been uniform among the circuits or easily applied. The recent Fifth Circuit opinion in Forby v. One...more
On Oct. 30, 2018, Rep. Jerrold Nadler, D-N.Y., and Rep. Bobby Scott, D-Va., together with 58 Democratic cosponsors, introduced the Restoring Justice for Workers Act, H.R. 7109 H.R. 7109. ...more
We didn’t expect to be discussing class or collective arbitration issues so soon, but we have repeatedly underestimated the resilience of these aggregate arbitration questions. Hopefully, the upcoming Lamps Plus, Inc. opinion...more
In O’Connor v. Uber Technologies, Inc., a Ninth Circuit panel, in four related appeals from District Judge Edward Chen’s rulings, reversed the denial of Uber Technologies Inc.’s motions to compel arbitration, also reversed...more
No shocking outcome here. In Gaffers v. Kelly Services, Inc., Case No. 16-2210 (6th Cir. Aug. 15, 2016), the Sixth Circuit held that the Supreme Court’s decision in Epic Systems v. Lewis, 138 S. Ct. 1632 (2018) applies to...more
In May, the Supreme Court determined that employers may continue to rely on the enforceability of arbitration agreements with class and collective action waivers. In 2018 and beyond, lower courts will begin interpretation of...more
The controversy surrounding the validity of employment arbitration agreements with class action waivers has been simmering since at least 2012. Now, with the Supreme Court’s decision in Epic Systems Corp. v. Lewis, we have an...more
The controversy surrounding the validity of employment arbitration agreements with class action waivers has been simmering at least since 2012. Now, with the Supreme Court’s decision in Epic Systems Corp. v. Lewis, we have an...more
Whether a defendant has waived its right to arbitrate as to unnamed class plaintiffs has been a troubling issue. Some courts base their analysis on their lack of jurisdiction over unnamed putative class members. ...more
As we noted in prior blog articles, questions regarding what authorizes class arbitration continue to arise despite class action waivers in many arbitration agreements. (See our Nov. 11, 2013, March 12, 2015, Sept. 9, 2015,...more
For years, courts have struggled with who decides the availability of class arbitration and the applicable standards. We most recently addressed the thorny issues in a March 23, 2016, blog post. Unfortunately, a recent Second...more
As we await the Supreme Court’s decision on the enforceability of class action waivers, the Court has accepted certiorari on another arbitration-related case, this one relating to the application of the Federal Arbitration...more
Prior bills have attempted, unsuccessfully, to eliminate individual arbitration as a means to resolve employment disputes. Senator Al Franken introduced several bills, starting in 2009, to forbid pre-dispute mandatory...more
Employers, plaintiffs, and courts continue to grapple with the difficult issue of the interplay between the California Private Attorneys General Act (“PAGA”) and arbitration agreements. We’ve addressed these issues several...more
The U.S. Court of Appeals for the Fifth Circuit decided two cases considering the impact of the National Labor Relations Act (NLRA) on class or collective action waivers required by companies for their applicants and...more