Sometimes being right is not a virtue, especially when it comes to the Federal Arbitration Act § 1 exemption. We predicted uncertainty after the New Prime v. Oliveira decision and got it....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
As we indicated in a January 17, 2019 blog article, the New Prime v. Oliveira, 139 S. Ct. 532 (2019), opinion was likely to lead to uncertainty in the transportation industry. ...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
The U.S. Supreme Court’s decision in New Prime v. Oliveira, No. 17-340 (Jan. 15, 2019), has added uncertainty to arbitration agreements in the transportation industry by holding that the Federal Arbitration Act (FAA) § 1...more
1/17/2019
/ Appeals ,
Arbitration Agreements ,
Commercial Truck Drivers ,
Employment Contract ,
Exceptions ,
Federal Arbitration Act ,
Independent Contractors ,
Motion to Compel ,
New Prime v Oliveira ,
Question of Arbitrability ,
Reaffirmation ,
SCOTUS
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
There are at least four cases now before the U.S. Supreme Court that may be of significant interest to employers. Three were argued in October 2018, and certiorari was granted in the last case on Dec. 10....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
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
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
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
On August 9 the National Labor Relations Board (NLRB or Board) filed its responsive brief in one of three cases before the Supreme Court that may determine the future validity of individual arbitration agreements in the...more
Last Friday, the U.S. Department of Justice (DOJ), in a rare move, changed its position in a class waiver case pending before the U.S. Supreme Court. On Jan. 13, 2017, the Court granted certiorari in three consolidated cases...more
6/21/2017
/ Arbitration Agreements ,
Certiorari ,
Department of Justice (DOJ) ,
Epic Systems Corp v Lewis ,
Ernst & Young v Morris ,
Federal Arbitration Act ,
Murphy Oil v NLRB ,
NLRA ,
NLRB ,
SCOTUS ,
Section 7
In a strangely timed opinion, the Sixth Circuit has entered the fray over whether class and collective waivers in employee arbitration agreements violate the National Labor Relations Act (NLRA). Strangely timed because on...more
Some wondered why the U.S. Supreme Court granted certiorari in Kindred Nursing Centers L.P. v. Clark, No. 16-32, and after oral argument on February 22, 2017, many felt they knew the outcome. Indeed, Justice Stephen Breyer...more
The predicted demise of litigation over the availability of class arbitration has not taken place. And the new cases occur in many areas of the law. The most recent decision actually involves oil and gas leases rather than...more
In a March 8, 2017, article, we talked about how the Ninth Circuit Court of Appeals compelled the arbitration of a California Private Attorney General Act (PAGA) representative claim in Valdez v. Terminix International Co.,...more
Two new pieces of proposed legislation could, if passed, change the architecture and requirements of class actions and outlaw mandatory arbitration clauses in employment and consumer contracts. But neither is a sure thing....more