Employment Law This Week®: Sexual Orientation Bias, Religious Discrimination, At-Will Employment Provision, Class Arbitration
In Pounds, et al. v. Portfolio Recovery Associates, LLC, the North Carolina Court of Appeals recently issued an opinion that may have a significant impact on collections law and arbitrability. Defendant is an entity that...more
The Supreme Court’s 2018 decision in Epic Systems Corporation v. Lewis, 138 S. Ct. 1612 (2018), validated the use of class action waivers, providing employers with a valuable tool to preserve bilateral employment arbitrations...more
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
Takeaway: We have written a number of articles about class arbitration. See, e.g., Fifth Circuit: arbitrator’s decision to conduct class arbitration cannot be vacated (May 11, 2020). A key issue is whether the parties’...more
Arbitration provides a lower-cost alternative to litigation. Yet, a growing predicament continues to penetrate the conversation surrounding arbitration: mass arbitration. On the one hand, no rational customer or employee...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
On April 16, 2020, the Fifth Circuit held that an employee is entitled to arbitrate his federal labor law claims as a collective action on behalf of his coworkers against their employer, Sun Coast Resources, Inc. (“Sun...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
Under the Federal Arbitration Act (“FAA”), “a party may not be compelled . . . to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Stolt-Nielsen S.A. v....more
The United States Court of Appeals for the Seventh Circuit recently articulated a new statutory framework for determining whether notice to a putative plaintiff should be issued under the Fair Labor Standards Act (FLSA). At...more
The Eighth Circuit recently concluded that there was no contractual basis to conclude that a pharmacy benefit manager agreed to class arbitration with four pharmacies because the agreement did not use the word “class” or...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
Takeaway: The concept of class arbitration has recently faced 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...more
In reversing a New York federal court, the Second Circuit found the arbitration was within the arbitrator’s authority in binding absent class members to class proceedings because, by signing the operative arbitration...more
In 2004, the Supreme Court of Texas first addressed the issue of whether an arbitrator or a judge decides if an arbitration agreement permits (or prohibits) class arbitration....more
For most small to medium-sized businesses, the threat of a class action is not usually front-of-mind. However, as a business grows, the threat can increase depending on the number of employees and the nature of the work being...more
The U.S. Supreme Court’s 2018 term was a busy one for arbitration, with the Court issuing rulings in three cases addressing questions of the reach and interpretation of the Federal Arbitration Act (FAA). The Court has already...more
The United States Court of Appeals for the Fifth Circuit recently joined other federal appellate courts finding that class arbitration is a “gateway” issue for judicial determination, not the arbitrator. See 20/20...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
The Fifth Circuit has joined a number of other circuits and concluded that whether class arbitration is appropriate under the terms of a particular arbitration agreement is a “gateway” issue to be decided by courts, not an...more
Add the Fifth Circuit to the growing list of Federal Circuit Courts that have decided that “class arbitrability” is a gateway question for a court, rather than an arbitrator, to decide in the first instance, absent the...more
Seyfarth Synopsis: In 20/20 Communications, Inc. v. Crawford, the Fifth Circuit joined eight other circuits in holding that the availability of class arbitration is a “gateway” issue for courts, not arbitrators, to...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