Category Archives: Arbitration Agreements

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Arbitration Agreement With PAGA Waiver And Opt Out Provision Deemed Unenforceable

Last month, a California Court of Appeal invalidated an arbitration agreement for including a representative action waiver combined with a non-severability clause. Background In Securitas Security Services USA, Inc. v. Superior Court (Edwards), 2015 Cal.App.LEXIS 190 (Cal. App. 4th Dist. Feb. 27, 2015), the employee, Edwards, signed an arbitration agreement from her employer, Securitas Security Services USA, … Continue Reading

UPDATE: SCOTUS Denies Petition For Cert In Iskanian

On June 24, 2014, the California Supreme Court issued a controversial decision in Iskanian v. CLS Transportation Los Angeles, LLC.  While the Court in Iskanian confirmed that an express class action waiver in an employment arbitration agreement is enforceable under California law, it also held that an arbitration agreement provision barring arbitration of a workers’ … Continue Reading

California Court of Appeal Enforces Contractor’s Agreement to Arbitrate Misclassification Claims Out of State

On Monday, July 21, 2014, the California Court of Appeal issued its opinion in Galen v. Redfin Corp., A138642.  This case is important for two reasons:  (1) the court upheld an arbitration agreement between a Seattle-based company and a California plaintiff challenging his status (and that of the putative class) as an independent contractor (v. … Continue Reading

California Supreme Court Issues Iskanian Decision, Ruling that Class Action Waivers in Arbitration Agreements Are Enforceable, But Still Allows PAGA Claims to Proceed on Representative Basis

On June 23, 2014, the California Supreme Court issued its decision in Iskanian v. CLS Transportation Los Angeles, LLC, confirming that an express class action waiver in an employment arbitration agreement is enforceable under California law.  In its decision, the Court held that its earlier decision in Gentry is no longer good law under the … Continue Reading

Fifth Circuit Upholds The Validity Of Class-Action Waivers In Arbitration Agreements

Earlier this week, on December 3, 2013, the Fifth Circuit Court of Appeals held that arbitration agreements lawfully can contain class-action waivers.  In its ruling in D.R. Horton, Inc. v. National Labor Relations Board, the Fifth Circuit overturned a National Labor Relations Board (the “Board”) administrative decision, finding that D.R. Horton, Inc. did not violate … Continue Reading

Sonic Calabasas Is A Tactical Retreat From Supreme Court FAA Precedent

On October 17, 2013, in Sonic-Calabasas A, Inc. v. Moreno, the California Supreme Court issued a 73-page decision (excluding concurrence and dissent) that attempted to construe the U.S. Supreme Court’s recent Federal Arbitration Act (“FAA”) decisions (Concepcion and American Express) as narrowly as possible so as to preserve the right of state courts to strike down arbitration agreements … Continue Reading

Second Circuit Holds That The Fair Labor Standards Act Does Not Bar The Enforcement of Class Action Waivers

Over the past week, the United States Court of Appeals for the Second Circuit (“Second Circuit”) has issued two decisions in which it affirmatively held that: (i) a plaintiff cannot use the “effective vindication doctrine” to invalidate a class action waiver of claims brought under the Fair Labor Standards Act (“FLSA”); and (ii) the FLSA … Continue Reading

Supreme Court Continues To Expand FAA Preemption

By Thomas Kaufman Do you hear that? . . . .  It is the wailing and moaning of plaintiff’s attorneys across the country. This morning, in a 5-3 decision (Sotomayor recused herself), the United States Supreme Court issued a pro-arbitration decision in American Express Co. v. Italian Colors.  The forceful opinion from Justice Scalia continues to … Continue Reading

Second Circuit Upholds Enforceability of Arbitration Agreements that Bar Title VII Class Actions, Finding that there is no Substantive Statutory Right to Pursue a Pattern-or-Practice Claim

On March 21, 2013, the Second Circuit issued its opinion in Parisi v. Goldman Sachs & Co., Case No. 11-5229, reversing a decision from the Southern District of New York, and holding that arbitration agreements which preclude Title VII class actions are enforceable. In reaching this decision, the Second Circuit affirmed the “liberal federal policy … Continue Reading

Eastern and Southern District Courts Compel Plaintiffs to Arbitrate their FLSA Collective Action Claims on an Individualized Basis

In February, two New York Federal District Court decisions joined other recent federal cases in enforcing arbitration agreements that preclude employees from bringing their Fair Labor Standards Act (“FLSA”) claims on a collective basis and required the employees to individually pursue their claims in arbitration. See Torres v. United Healthcare Servs., Inc., No. 12 Civ. … Continue Reading

Southern District of New York Compels Arbitration of FLSA Collective Action Claims on an Individualized Basis

On December 4, 2012, Southern District of New York District Judge Barbara S. Jones, granted a motion to compel arbitration on an individual basis in a class and collective action brought pursuant to, among other things, the Fair Labor Standards Act (“FLSA”) in Cohen v. UBS Financial Services, Inc., Docket No. 12 Civ. 2147 (BSJ)(JLC).… Continue Reading

Appellate Panel Tries to Draft a Roadmap for the California Supreme Court to Save California’s Prohibition of Class Action Waivers from U.S. Supreme Court Precedent

By Thomas Kaufman Follow me on Twitter The battle for how the landmark arbitration decision Concepcion v. AT&T Mobility (“Concepcion”) should be construed in California continues with Monday’s issuance of Franco v. Arekelian Enterprises, Inc. (“Franco II”). Division One of the Second District Court of Appeal (in Los Angeles) has developed a troubling reputation among the class action … Continue Reading

In A 2-to-1 Split Decision, The California Court Of Appeal Parses The Language Of An Agreement And Denies Arbitration Of California Labor Code Claims

In Elijahjuan v. Superior Court, Case No. B234794 (2nd Dist, Div. 8, Oct. 17, 2012), the California Court of Appeal held that the specific language of an agreement did not require plaintiffs to arbitrate their claims for misclassification as independent contractors in a wage and hour putative class action, concluding that the arbitration language covered … Continue Reading

California Appellate Court Continues The Trend Of Accepting Concepcion Standards In California

By Thomas Kaufman On August 13, 2012, the California Court of Appeal for the Fourth District (San Diego), published its decision from a few days earlier in Truly Nolen of America v. Superior Court. The case is yet another example where an appellate court considered the impact of the landmark United States Supreme Court decision … Continue Reading

Everything an Employer Could Ask For in One Decision on Class Action Waivers

By Thomas Kaufman  (follow me on Twitter) On June 4, 2012, the California Court of Appeal, Second District, Division Two, issued Iskanian v. CLS Transportation Los Angeles, LLC ("Iskanian"), a sweeping pro-employer decision that endorses every defense-side argument on the proper interpretation of the 2011 U.S. Supreme Court decision in AT&T Mobility LLC v. Concepcion … Continue Reading

California Court of Appeal Holds Defendant Did Not Waive Its Right To Compel Arbitration By Waiting Until After Class Certification Where Other Class Members–But Not Plaintiff–Had Agreed To Arbitrate

By Thomas Kaufman and Travis Anderson In Sky Sports, Inc. v. Superior Court, (2nd Dist., Div. 3, Dec. 15, 2011) Case No. B233820, the California Court of Appeal held that a defendant does not waive its right to compel arbitration of a class action by waiting to file a motion to compel arbitration until the … Continue Reading

California Court Of Appeal Extends Armendariz To Cover Independent Contractors

In the seminal case Armendariz v. Foundation Health Psychcare, the Supreme Court of California established the standard for determining the enforceability of mandatory arbitration agreements for employees. Armendariz generally held that mandatory arbitration agreements were enforceable if they were mutual and did not "serve as a vehicle for the waiver of statutory rights." Armendariz set … Continue Reading

California Court Of Appeal Finds Arbitration Clause Enforceable

In Roman v. Superior Court, Case No. B209855, Gabriela Roman, a former employee in Flo-Kem’s accounts receivable department, brought suit against Flo-Kem for alleged violations of the Fair Employment and Housing Act, including disability discrimination, as well as a claim for wrongful termination in violation of public policy. Before beginning her employment, Roman had signed … Continue Reading

Parties May Elect Appellate Review For Arbitration Awards

Although the advantages and disadvantages of arbitration will continue to be debated, the California Supreme Court has now provided parties with an option that makes arbitration more attractive.  Previously, one of the chief disadvantages of arbitration was that there was only restricted appellate review of any factual or legal error the arbitrator may have made.  … Continue Reading

Apellate Court Rules That Simply Signing An Arbitration Agreement Does Not Make It Binding

On April 1, 2008, in Metters v. Ralphs Grocery Co., the California Appellate Court provided guidance on what constitutes an enforceable arbitration agreement.  Samuel Metters was an employee alleging racial discrimination and harassment against his employer, Ralphs Grocery.  He claimed that a resolution dispute form with a binding arbitration clause was not an enforceable contract, … Continue Reading

Case Reminds California Employers That Handbook Language Cannot Compensate For A Missing Signature On An Employment Arbitration Agreement

Every new hire faces a mountain of paperwork from Human Resources to sign on his/her first day of employment.  A frequent consequence of this "barrage of paperwork" is that one or two documents may be overlooked and not signed by the new hire.  If one of those documents happens to be an arbitration agreement, the California Court of … Continue Reading

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