Despite its past losses in the U.S. Supreme Court, the plaintiffs’ bar’s crusade against individualized arbitration marches on. In the past year, powerful allies in federal agencies, such as the National Labor Relations Board and the Consumer Financial Protection Bureau, as well as friendly media outlets like the New York Times, have helped to advance the backward notion that arbitration is anti-consumer. Federal and state courts in California— trial lawyers’ favorite state—continue to be sympathetic to this anti-consumer argument, as evidenced by the decisions a trilogy of cases recently decided by the U.S. Court of Appeals for the Ninth Circuit: Sakkab v. Luxottica Retail North America, Inc., Hopkins v. BCI Coca-Cola Bottling Co., and Sierra v. Oakley Sales Corp. Continue reading
A December 10, 2015 WLF Legal Pulse post, Rebuffed Twice in Texas, the NLRB Takes its Crusade Against Arbitration to California, highlighted a pattern of National Labor Relations Board (NLRB) decisions holding that binding class-action arbitration agreements violate the National Labor Relations Act (NLRA), even though the U.S. Court of Appeals for the Fifth Circuit has twice overruled such a decision.
It seems as though the NLRB’s determination to march forward has not wavered. Just two weeks ago, in In re: Samsung Electronics America, Inc., the NLRB upheld a decision by an administrative law judge that Samsung violated the NLRA by requiring its employees to waive their rights to pursue collective claims and then attempting to enforce that agreement.
It is clear that the NLRB does not respect federal courts’ differing legal opinion as to the interpretation of the NLRA. Unfortunately, employers will now need to invest energy and resources to appeal individual NLRB decisions until the Board changes its current aggressive anti-arbitration stance.
Featured Expert Contributor – Civil Justice/Class Actions
Last week, in a 6-3 decision, the U.S. Supreme Court reversed and remanded a California Court of Appeal’s interpretation of and refusal to enforce an arbitration agreement. Justice Breyer delivered the Court’s well-reasoned opinion, which concluded that the California court’s arbitration-specific interpretation of contractual language was preempted by the Federal Arbitration Act (“FAA”). DirecTV Inc. v. Imburgia, et al.
Petitioner DirecTV entered into service agreements with certain customers. Although governed by the FAA, the agreement’s arbitration provision contained a class-action waiver which rendered the entire provision unenforceable if the waiver clause was deemed unenforceable under the law of the customer’s state. Seeking damages for early termination fees that allegedly violated California law, respondents Amy Imburgia and Kathy Greiner filed suit against DirecTV in California state court. Continue reading
After successive defeats at the hands of the U.S. Court of Appeals for the Fifth Circuit, the National Labor Relations Board (NLRB) has taken its crusade against class-action arbitration agreements to California. In a recent decision, Bristol Farms, the NLRB once again held that an arbitration agreement that would require individual arbitration violated the National Labor Relations Act (NLRA).
Over a strong dissent, the NLRB reasoned that an agreement requiring individual arbitration—even if the agreement was optional—prevents employees from engaging in protected activities (collective action) and thus is an unfair labor practice in violation of NLRA § 8(a)(1): “[A]n arbitration agreement that precludes collective action in all forums is unlawful even if entered into voluntarily, because it requires employees to prospectively waive their Section 7 right to engage in concerted activity.” Continue reading
by Kirk C. Jenkins, Sedgwick LLP*
On June 26, 2014, the California Supreme Court issued its long-awaited opinion in Iskanian v. CLS Transportation Los Angeles LLC. The decision was something of a mixed bag for the defense bar: two major steps forward in the California Supreme Court’s class action jurisprudence, but one step back of uncertain significance.
The plaintiff in Iskanian worked as a driver for the defendant in 2004 and 2005. Halfway through his employment, he signed an agreement providing that “any and all claims” arising out of his employment would be submitted to binding arbitration before a neutral arbitrator. The plaintiff agreed not to bring a representative action either in court or before the arbitrator.
A year after leaving his employment, the plaintiff filed a putative class action complaint, alleging failure to pay overtime, provide meal and rest breaks, reimburse business expenses and various other violations of the Labor Code. The defendant moved to compel arbitration and the trial court granted the motion. But while the matter was pending before the Court of Appeal, the California Supreme Court decided Gentry v. Superior Court, holding that most class action waivers were unenforceable in employment cases. The defendant dropped its motion to compel. Continue reading
The Supreme Court on Wednesday issued a divided opinion in a case that raised an important issue of arbitration law: should an arbitrator or a judge decide whether an international treaty requires a private party to bring a commercial dispute before a judge prior to attempting arbitration? In BG Group PLC v. Republic of Argentina, the Court ruled 7-2 against Argentina, concluding that arbitrators acted within their power when they concluded that a British firm was not required to file suit in Argentina’s courts before seeking arbitration. Chief Justice Roberts, joined by Justice Kennedy, dissented; they argued that in signing the bilateral UK-Argentina investment treaty, Argentina agreed to arbitration only on condition that investors bring their disputes to an Argentine court first. But there was one point on which the justices agreed unanimously: Argentina has a sorry history of living up to its contractual commitments to investors. That point of agreement does not bode well for Argentina, which in two pending Supreme Court cases is asking the Court to permit it to invoke sovereign immunity as the basis for resisting repayment of sovereign debt.
The case involved claims by a British firm, BG Group plc, that Argentina breached a natural gas distribution contract. Washington, D.C.-based arbitrators awarded BG Group $185 million in damages, and Argentina turned to American courts to overturn the award. It cited the terms of the UK-Argentina treaty as the basis for its claim that the arbitrators lacked jurisdiction to hear the case. The treaty provides that an investor asserting a claim under the treaty may not initiate arbitration until 18 months after filing a claim against Argentina in an Argentine court.
The arbitrators held that BG Group should be excused from complying with the 18-month litigation requirement. They noted that Argentina, after taking steps that essentially expropriated BG Group’s property, adopted a series of laws designed to block any BG Group lawsuit. They held that these laws, “while not making litigation in Argentina’s courts literally impossible, nonetheless hindered recourse to the domestic judiciary to the point where the Treaty implicitly excused compliance with the local litigation requirement.” Continue reading
Last week the U.S. Court of Appeals for the Fifth Circuit delivered welcome news to employers and practitioners of labor and employment law. After years of heated debate regarding whether employers are permitted to use bilateral arbitration to resolve employment disputes, the Fifth Circuit answered with a resounding “yes.” In D.R. Horton, Inc. v. NLRB, No. 12-60031 (5th Cir. Dec. 3, 2013), the Fifth Circuit reversed the National Labor Relations Board’s (“NLRB”) 2012 ruling and held that employers and employees are permitted to resolve disputes through individual rather than class or collective arbitration.
Laying The Groundwork – The NLRB’s Decision
As we wrote about here last year for Washington Legal Foundation, in this case, a former employee of D.R. Horton filed an unfair labor practice charge with the NLRB, alleging that a class action waiver contained in his arbitration agreement with D.R. Horton violates the NLRA. Based on the employee charge, the NLRB’s General Counsel issued a complaint alleging that D.R Horton’s arbitration agreement violated Section 8(a)(1) of the NLRA by infringing the right of D.R. Horton’s employees to exercise their rights under Section 7 of the NLRA, which provides that employees may “engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
In a two-member majority of the three-member Board, the NLRB held that because the arbitration agreement directly infringes on the substantive Section 7 rights of D.R. Horton’s employees, it necessarily fails. The Board rejected the suggestion that Section 7 rights are procedural and not substantive. The Board drew a critical distinction between the process of certifying a class of employees (which it conceded is procedural in nature) and the “collective action inherent in seeking class certification,” which it held is a substantive right under Section 7. Continue reading