John Lewis on Class Action Arbitration Waivers

A Recent DoorDash Opinion Addresses Several Pivotal Arbitration Issues

Two DoorDash delivery drivers filed a class action against the company and two of its employees alleging violations of federal and state wage and hour laws. After removal of the case to the Southern District of New York, the...more

1/24/2023 / Arbitration , Arbitration Agreements , Class Action , Class Action Arbitration Waivers , DoorDash , Federal Arbitration Act , Independent Contractors , Motion to Compel , Service Contracts , Unenforceable Contract Terms

Another Court Rules on When Ride-Sharing Drivers Are Exempt From Arbitration

In this time of concern regarding the COVID-19 pandemic, there are other challenges still confronting companies. One involves the standard for enforcing arbitration agreements involving transportation workers. Or, stated...more

4/6/2020 / Arbitration , Automobile Passengers , Categorical Exemptions , Class Action Arbitration Waivers , Coronavirus/COVID-19 , Corporate Counsel , Delivery Drivers , Drivers , Federal Arbitration Act , GrubHub , Interstate Commerce , New Prime v Oliveira , Ridesharing , Small Business , Transportation Industry , Uber

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

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

[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

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

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

NLRB V. Alternative Entertainment, Inc. – Sixth Circuit Joins the Seventh and Ninth Circuits in Rejecting Class Waivers

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

6/2/2017 / Arbitration , Arbitration Agreements , Class Action Arbitration Waivers , Corporate Counsel , Federal Arbitration Act , NLRA , NLRB

Arbitrating PAGA Claims: The Ninth Circuit Compels It in the Valdez Case

So much case law has come down in the past several years regarding California’s Private Attorneys General Act (PAGA) – and its ability to withstand class and representative action waivers – that observers might have...more

3/9/2017 / Arbitration , Arbitration Agreements , Class Action Arbitration Waivers , Employer Liability Issues , Private Attorneys General Act (PAGA)

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

1/18/2017 / Arbitration , Arbitration Agreements , Class Action , Class Action Arbitration Waivers , Collective Actions , Ernst & Young , Federal Arbitration Act , Mandatory Arbitration Clauses , Murphy Oil USA , NLRA , NLRB , Section 7

California Enacts Laws Aimed at Choice of Law Provisions in Arbitration Agreements and the Conduct of Arbitral Proceedings

Given California’s past resistance to mandatory arbitration agreements with class action waivers, it should come as no surprise that the state has now enacted two laws primarily directed at arbitration. On Sept. 25,...more

9/30/2016 / Arbitration , Arbitration Agreements , Class Action , Class Action Arbitration Waivers , Corporate Counsel , Federal Arbitration Act

Following Precedent: Second Circuit Reaffirms Position Upholding Arbitration Agreements With Class Action Waivers

Amid contrary decisions by the Seventh and Ninth Circuits, the Second Circuit followed its earlier precedent in Patterson v. Raymours Furniture Co., No. 15-2820 (Sept. 2, 2016), enforcing an Employment Arbitration Program...more

9/7/2016 / Arbitration , Arbitration Agreements , Class Action Arbitration Waivers , Corporate Counsel , Fair Labor Standards Act (FLSA) , NLRA , NLRB

Reining In Individual Arbitration – Ninth Circuit Rules Class Waivers Unenforceable

In a 2-1 ruling, the Ninth Circuit became the second federal court of appeals to agree with the National Labor Relations Board’s (NLRB) position that the National Labor Relations Act (NLRA) prohibits class action waivers in...more

8/25/2016 / Arbitration , Arbitration Agreements , Class Action Arbitration Waivers , Federal Arbitration Act , NLRA , NLRB , Section 7

Eighth Circuit Stays the Course in the Cellular Sales of Missouri Opinion, Rejecting the NLRB’s Arguments Against Class Waivers

Following in the wake of an earlier opinion, the Eighth Circuit rebutted the National Labor Relations Board’s (“Board”) arguments that by requiring employees to enter into arbitration agreements with a class and collective...more

6/7/2016 / Arbitration Agreements , Class Action Arbitration Waivers , Collective Actions , NLRA , NLRB , Section 7

Lewis v. Epic Systems Opinion – Seventh Circuit Swimming Against the Tide on Mandatory Individual Arbitration

In a sweeping May 26 opinion, the U.S. Court of Appeals for the Seventh Circuit shook up the arbitral landscape and created a remarkable circuit split regarding the enforceability of arbitration agreements with class action...more

6/1/2016 / Arbitration Agreements , AT&T Mobility v Concepcion , Class Action , Class Action Arbitration Waivers , Corporate Counsel , Federal Arbitration Act , NLRA , NLRB

The Fifth Circuit Addresses an Issue That Refuses to Die: Who Determines Whether Class or Collective Arbitration Is Available?

We opined on several occasions that cases dealing with a party’s entitlement to class or collective arbitration were a dying breed because of the increased use of class action waivers. And we have been proven wrong by several...more

3/24/2016 / Arbitration , Arbitration Agreements , Class Action , Class Action Arbitration Waivers , Corporate Counsel

The Next Chapter – Uber Responds to District Court Order With a New Arbitration Agreement

Not only did Uber respond to the district court’s December 9, 2015, ruling (discussed in our December 11 blog) with an immediate notice of appeal, but on December 11 it rolled out a new arbitration agreement for its drivers....more

12/16/2015 / Arbitration Agreements , Class Action Arbitration Waivers , Private Attorneys General Act (PAGA) , Sharing Economy , Uber

District Judge Rules Uber’s Arbitration Agreements Unenforceable on Public Policy Grounds

On September 2, we addressed the much-publicized O’Connor v. Uber Technologies, Inc. case (No. 13-cv-03826-EMC) pending before the U.S. District Court for the Northern District of California. In O’Connor, a group of 160,000...more

12/14/2015 / Class Action Arbitration Waivers , Class Certification , Independent Contractors , Misclassification , Uber , Wage and Hour

PAGA In The News – Ninth Circuit Sides with California Supreme Court On Enforcement of PAGA Waivers and California Amends The...

The Ninth Circuit Decision - Delivering a perhaps unexpected blow to employers, the Ninth Circuit sided with the California Supreme Court earlier this week in upholding the state-court-fashioned Iskanian rule, which...more

10/9/2015 / Arbitration , Arbitration Agreements , AT&T Mobility , AT&T Mobility v Concepcion , CA Supreme Court , Class Action Arbitration Waivers , Coca Cola , Federal Arbitration Act , Iskanian , Iskanian v CLS Transportation , Preemption , Private Attorneys General Act (PAGA) , Unpaid Overtime , Wage and Hour

Following the Sixth Circuit’s Lead, Ohio Appellate Courts Find Whether an Agreement Allows Class Arbitration Is a “Gateway Issue”

As we stated previously, the potential impact of whether entitlement to class arbitration is a “gateway issue” will likely diminish with each passing year. (See our March 12, 2015, blog article on the denial of certiorari in...more

9/10/2015 / American Arbitration Association , Arbitration , Arbitration Agreements , Class Action Arbitration Waivers , Class Arbitration , Franchise Agreements , SCOTUS , Wage and Hour

Justices Pass on Second Opportunity to Resolve the California PAGA Divide in the Bridgestone Case

For a second time the U.S. Supreme Court declined to hear a case challenging a California Supreme Court holding that the state’s Private Attorneys General Act (PAGA) could not be waived in a mandatory arbitration agreement....more

6/4/2015 / Arbitration , Arbitration Agreements , Bridgestone , CA Supreme Court , Class Action , Class Action Arbitration Waivers , Federal Arbitration Act , Iskanian v CLS Transportation , Preemption , Private Attorneys General Act (PAGA) , SCOTUS , Wage and Hour

Opalinski v. Robert Half International, Inc. — A Footnote in a Prior Opinion Doesn’t Signal the Supreme Court’s Willingness to...

After reading the Supreme Court’s opinion in Oxford Health Plans, LLC v. Sutter, 133 S. Ct. 2064 (2013), some might have concluded that the Court was ready to resolve who determines the availability of class arbitration court...more

3/13/2015 / Arbitration , Class Action , Class Action Arbitration Waivers , Employer Liability Issues , Robert Half , SCOTUS

The Supreme Court’s denial of certiorari in Iskanian only hardens the federal-state divide over PAGA claims

The divide continues between California and federal law on whether an arbitration agreement can entirely waive an employee’s ability to seek classwide or multiparty representational relief. The Supreme Court on Tuesday denied...more

1/22/2015 / Arbitration , Class Action , Class Action Arbitration Waivers , CLS Transportation , Employer Liability Issues , Employment Contract , Federal Arbitration Act , Iskanian , Mandatory Arbitration Clauses , Private Attorneys General Act (PAGA) , SCOTUS , Trucking Industry

John Lewis

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