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Posts tagged arbitration.
An Agreement to Arbitrate Employment Claims Must Also Allow for Access to Full Remedies Before the NLRB

In a separate post, we discussed several cases decided by the National Labor Relations Board (NLRB) in which the Board invalidated agreements requiring employees to arbitrate employment-related claims due to vague language that did not make it clear that employees retained the right to pursue claims under the National Labor Relations Act (NLRA) before the NLRB. The recent decision in Kelly Services, Inc.. 368 NLRB No. 130 (12/12/2019) illustrates that even explicitly permitting claims before the NLRB will not guarantee an arbitration agreement’s survival if substantial ...

Watch Your Language: An Agreement to Arbitrate Employment Claims Must Allow for NLRA Claims Before the NLRB

The U.S. Supreme Court settled the long-standing dispute regarding the viability of class arbitration waivers in employment contracts with its determination in Epic Systems Corp. v. Lewis, 584 U. S. ____ (2018) that they indeed are enforceable, contrary to the position taken by the National Labor Relations Board (NLRB). But that did not close the book on all questions regarding employment agreement arbitration clauses, nor did it mean that the NLRB would resolve remaining questions regarding the limits on their enforceability in favor of the employer. While class waivers and ...

A Split U.S. Supreme Court Upholds Class Waivers in Individual Employment Agreements, Highlighting the Role of Congress in the Class Waiver Fight

The viability of class waivers in employment agreements has been a closely watched battle in the courts since the National Labor Relations Board (NLRB) ruled in D. R. Horton, Inc. and Michael Cuda, Case 12–CA–25764, 357 NLRB No. 184 (2012) that class waivers in individual employment agreements violate the National Labor Relations Act (NLRA) by preventing employees from engaging in concerted action related to their employment. Faced with an Executive Branch that was “speaki[ng] from both sides of its mouth” on this issue and a Congress that recently overturned another ...

On May 24, 2016, the Consumer Financial Protection Bureau’s (CFPB) long-anticipated Proposed Rule prohibiting the use of class action waivers in consumer finance arbitration agreements was published in the Federal Register and opened for public comment. The Proposed Rule has been expected following the CFPB’s previous study and statements regarding the impact that arbitration agreement class action waivers have on consumers. The CFPB took 370+ pages to explain and justify its proposal, which boils down to consumers of financial products do not typically pursue redress ...

CFPB Singles Out Class Action Waivers for Elimination from Consumer Financial Arbitration Agreements

The Consumer Financial Protection Bureau (“CFPB”) made clear this week that, in its view, class action waivers should be on the chopping block in the agency’s upcoming rulemaking aimed at regulating the use of arbitration clauses in consumer financial agreements.  In an October 7, 2015 release, CFPB Director Cordray expressed the agency’s critical stance on companies’ use of arbitration agreements that prohibit consumers from participating in class actions, calling such clauses a “free pass to sidestep the courts and avoid accountability for wrongdoing,” while ...

Could Guaranteeing a Minimum Recovery for Consumers Abate CFPB Concerns Regarding Class Waivers in Arbitration Agreements?

With the recent release of the Consumer Financial Protection Bureau’s Arbitration Study: Report to Congress, pursuant to Dodd–Frank Wall Street Reform and Consumer Protection Act § 1028(a)”, it is widely anticipated that the agency will seek to impose restrictions on the use of class waivers in consumer finance agreement arbitration clauses. What form those restrictions will take, however, remains to be seen.  Some level of regulatory restriction on class waivers has been expected since the release of the CFPB’s December 2013 Preliminary Study, and the agency ...

Consumer Financial Protection Bureau’s Dodd-Frank Study Scrutinizes Arbitration Agreements & Class Action Waivers

On Tuesday, the Consumer Financial Protection Bureau ("CFPB") released its long-awaited "Arbitration Study: Report to Congress, pursuant to Dodd–Frank Wall Street Reform and Consumer Protection Act § 1028(a)", which presents the results of the agency’s study of the use of arbitration agreements in the context of consumer finance agreements for credit cards, checking accounts, payday and other small dollar loans, general purpose reloadable prepaid cards, private student loans, auto purchase loans, and mobile wireless agreements.  The 728-page study is extensive, to ...

Who Determines if Class Arbitration is Available? Why it Matters and Will the Supreme Court Decide

In the wake of several favorable U.S. Supreme Court decisions, companies increasingly are using arbitration agreements to control their exposure to class action liability.  Although recent cases have reinforced the power of arbitration agreements, companies must tread carefully when crafting their arbitration contracts and related class waivers.  In conjunction with giving force to arbitration agreements, the Federal Arbitration Act (“FAA”) limits the federal courts’ ability to review and reverse arbitrator decisions construing those agreements.  The Supreme ...

Defining the power of arbitration agreements has been a hot topic at the federal and state levels for the past couple of years.  In a recent post, we discussed two North Carolina Court of Appeals decisions that validated the reach of the U.S. Supreme Court’s AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011) and Italian Colors v. American Express 133 S.Ct. 2304 (2013) decisions to enforce class arbitration waivers in the State.  In one of those cases, Torrence v. Nationwide Budget Finance, et. al., No. 05- CVS 447 (N.C. Ct. App. Feb. 4, 2014), a question also was raised regarding the ...

Redefining the Power of Arbitration in Unfair Labor Practice Cases: NLRB Solicited Briefs on the Issue

REDEFINING THE POWER OF ARBITRATION IN UNFAIR LABOR PRACTICE CASES: NLRB SOLICITED BRIEFS ON THE ISSUE - In line with recent efforts in the courts to define the scope of power of the arbitral forum, the National Labor Relations Board (NLRB) recently took on the issue of whether to modify the standard it applies to determine whether to defer to an arbitrator’s decision in a matter that presents unfair labor practice issues.  NLRB General Counsel requested that the Board modify the standard to require deferral, so long as it is not repugnant to the Act, if the party seeking deferral ...

Save the Last Dance for the Public Injunction: The 9th Circuit’s En Banc Decision in Kilgore v. KeyBank Dances Around Whether AT&T Mobility v. Concepcion Reaches Public Injunction Cases

            In our November, 2012 series, “Once Around the Dance Floor With a Public Injunction, the Vindication of State Rights and AT&T Mobility v. Concepcion,we discussed the potential impact of the impending Ninth Circuit Court of Appeals en banc review of Kilgore v. Keybank Nat’l Ass’n, No. 3:08-CV-02958-THE (N.D.Cal.). (See posts here, here, and here). In the initial appellate review of Kilgore, a Ninth Circuit three-judge panel held that California’s Broughton-Cruz rule that prohibits the arbitration of public injunction claims was preempted by the Federal Arbitration ...

The Fourth Circuit’s View on Class Arbitration Waivers and the Vindication of Statutory Rights: Muriithi v. Shuttle Express, Inc.

            The Fourth Circuit Court of Appeals recently issued a decision placing the AT&T Mobility, LLC v. Concepcion, 131 S.Ct. 1740 (2011) stamp of approval on class arbitration waivers in this Circuit.  In Muriithi v. Shuttle Express, Inc., No. 11-1445, 2013 U.S. App. LEXIS 6464 (4th Cir. Apr. 1, 2013), the Fourth Circuit took on several issues surrounding class arbitration waivers that have been the source of disagreement among lower courts since Concepcion.  The Shuttle Express plaintiff was a shuttle driver for defendant Shuttle Express, a company that provides transportation for ...

The NC Court of Appeals Finds an “Agreement to Agree” on an Arbitration Panel and Procedures Definite Enough to Form a Binding Contract to Arbitrate under the FAA

            Arbitration under the Federal Arbitration Act (“FAA”) has been the hot topic of many cases in the past few years, with the U.S. Supreme Court having reaffirmed the federal policy favoring arbitration and the preemptive power of the FAA over state laws governing arbitration.  The North Carolina courts are among those that have been petitioned to resolve conflicts regarding the enforceability of arbitration agreements, and the North Carolina Court of Appeals recently issued another arbitration decision that should be of interest to businesses facing disputes in this state.  The ...

NC Court of Appeals Finds That The AAA’s Policy Against Arbitrating Certain Healthcare Disputes Prevents Enforcement of Arbitration Agreement in Wrongful Death Case

            The U.S. Supreme Court recently has reinforced in Marmet Health Care Center, Inc. v. Brown, 132 S. Ct. 1201 (2012) and AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) that the Federal Arbitration Act (“FAA”) prohibits states from categorically excluding certain types of claims from arbitration.  However, companies still may have to contend with the policies of private organizations like the American Arbitration Association (“AAA”) that administer arbitrations and place categorical restrictions on the types of cases they will administer.  In Concepcion, the ...

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