John Lewis on Arbitration

District Court Temporarily Enjoins Enforcement of California’s AB 51 Anti-Arbitration Provision

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

12/31/2019 / Arbitration , Arbitration Agreements , Federal Arbitration Act , FEHA , Mandatory Arbitration Clauses

California Enacts Anti-Arbitration Legislation, but Will the FAA Limit Its Potential Impact? Not Entirely.

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

10/14/2019 / Arbitration , Arbitration Agreements , Federal Arbitration Act , FEHA , Labor Code , Preemption

Third Circuit Opinion Involving Uber Only Adds More Questions to the Dispute Over the Scope of the FAA Section 1 Residual Clause

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

9/16/2019 / Arbitration , Federal Arbitration Act , Residual Clause , Uber

Ohio Supreme Court Addresses Waiver of the Right to Arbitrate in the Putative Class Action Context

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

8/20/2019 / Arbitration , Arbitration Agreements , Class Action , Class Certification , FRCP 23

The Fifth Circuit Agrees With Its Sister Circuits That Class Arbitrability Is a Gateway Issue for Courts, Not Arbitrators

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

7/24/2019 / Arbitration , Arbitration Agreements , Class Action Arbitration Waivers , Class Arbitration , Employment Litigation , NLRA

NY Law Doesn’t Prevent Arbitration of Sexual Harassment Claims

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

7/2/2019 / Arbitration , Arbitration Agreements , Employer Liability Issues , Federal Arbitration Act , Preemption , Sexual Harassment , State Labor Laws

SCOTUS Reverses Ninth Circuit on Proper Bases for Class Arbitrations

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

Kentucky Rejoins the Majority – New Law Permits Mandatory Arbitration Agreements

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

3/29/2019 / Arbitration , Arbitration Agreements , Employment Litigation , Federal Arbitration Act , Mandatory Arbitration Clauses

Fifth Circuit Addresses Notices of Collective Action for Those Who Signed Arbitration Agreements Requiring Only Individual Claims

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

2/26/2019 / Arbitration , Arbitration Agreements , Class Action , Fair Labor Standards Act (FLSA)

Supreme Court Decides First Arbitration Case on Its Docket – Henry Schein, Inc. v. Archer & White Sales, Inc.

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

Fifth Circuit Holds That the Company in Class Action Waived Its Right to Arbitrate Because of Litigation Conduct

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

12/5/2018 / Arbitration , Class Action , Consumer Fraud , Corporate Counsel , Credit Monitoring , Motion to Compel , Motion to Dismiss , Unjust Enrichment

Another Bill Aimed at Employee Arbitration Agreements – This Time to Nullify Epic Systems

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

11/6/2018 / Arbitration , Arbitration Agreements , Class Action Arbitration Waivers , Epic Systems Corp v Lewis , Federal Arbitration Act , NLRA

Yet Another Opinion Addresses the Availability of Class or Collective Arbitration and Whether It Is a ‘Gateway Issue’ for the...

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

10/25/2018 / Arbitration , Arbitration Agreements , Class Arbitration , Employment Litigation , Wage and Hour

O’Connor v. Uber: The Ninth Circuit Unravels the Class Certification Orders in Appeals From Four Related Actions

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

9/27/2018 / Arbitration , Class Action , Class Certification , FRCP 23 , Independent Contractors , Misclassification , Motion to Compel , Popular , Uber

[Gasp!] Epic Systems Decision Applies to FLSA Claims

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

8/20/2018 / Arbitration , Arbitration Agreements , Epic Systems Corp v Lewis , Fair Labor Standards Act (FLSA) , NLRA

[Webinar] Arbitration Agreements With Class Action Waivers: Key Takeaways From the Supreme Court Decision in Epic Systems Corp. v....

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

6/28/2018 / Arbitration , Arbitration Agreements , Class Action Arbitration Waivers , Continuing Legal Education , Epic Systems Corp v Lewis , Private Attorneys General Act (PAGA) , SCOTUS , Webinars

The Legality of Class Action Waivers in Arbitration Agreements – SCOTUS Finally Speaks

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

5/22/2018 / Arbitration , Arbitration Agreements , Class Action Arbitration Waivers , Collective Actions , Epic Systems Corp v Lewis , Federal Arbitration Act , NLRA , NLRB , SCOTUS

Supreme Court Upholds Legality of Class Action Waivers in Arbitration Agreements in the Employment Context

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

5/22/2018 / Arbitration , Arbitration Agreements , Class Action Arbitration Waivers , Epic Systems Corp v Lewis , Federal Arbitration Act , NLRA , NLRB , Section 7

Gutierrez v. Wells-Fargo Bank – Eleventh Circuit Sheds More Light on Waiver of Arbitration Rights in Putative Class Setting

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

5/15/2018 / Arbitration , Motion to Compel , Putative Class Actions , Wells Fargo

Will SCOTUS Finally Decide What Language Authorizes Class Arbitration? Lamps Plus, Inc. v. Varela Might Just Do It.

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

5/2/2018 / Arbitration , Arbitration Agreements , Certiorari , Class Action Arbitration Waivers , Federal Arbitration Act , Federal v State Law Application , Lamps Plus Inc v Varela , SCOTUS

Who Decides the Availability of Class Arbitration? Second Circuit’s Analysis Is a Bit Murky in Wells Fargo Advisors Cases

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

3/12/2018 / Arbitration , Class Arbitration , Fair Labor Standards Act (FLSA) , Financial Adviser , Wells Fargo

Independent Contractor Trucker Class Action that Dodged FAA Arbitration Now Moves to the Supreme Court

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

3/1/2018 / Arbitration , Class Action , Employer Liability Issues , Federal Arbitration Act , Independent Contractors , Trucking Industry

New Bill Would Outlaw Mandatory Arbitration Agreements For Sex Discrimination Disputes – Is A Poorly Constructed Bill The Right...

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

12/11/2017 / Arbitration , Arbitration Agreements , Employer Liability Issues , Employment Contract , Employment Litigation , Federal Arbitration Act , Mandatory Arbitration Clauses , Sex Discrimination , Sexual Harassment

The Ninth Circuit Rules That both an Arbitrator and a Trial Court May Have a Role in a Case with Individual and PAGA Claims

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

11/30/2017 / Arbitration , Arbitration Agreements , Employer Liability Issues , Popular , Private Attorneys General Act (PAGA)

Convergys Corporation and LogistiCare Solutions, Incorporated v. NLRB – The Fifth Circuit Considers Class and Collective Action...

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

8/16/2017 / Arbitration , Arbitration Agreements , Class Action , Class Action Arbitration Waivers , Collective Actions , Federal Arbitration Act , Murphy Oil USA , NLRA , NLRB , Section 7

John Lewis

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