Law Commons^™

Boba Fett, Bounty Hunters, And The Supreme Court’S Viking River Decision: A New Hope, Imre S. Szalai

Washington and Lee Law Review Online

The United States Supreme Court recently issued a fractured decision in Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (June 15, 2022), a classic David v. Goliath clash between a worker and employer. Can arbitration agreements be used to eliminate group or representative actions brought against employers, where the plaintiff worker is serving as a bounty hunter for the State? Although the majority clearly holds that a worker’s individual claims must be sent to arbitration pursuant to a predispute arbitration agreement, the splintered opinions leave some uncertainty regarding what happens to the representative claims of the other …

Arbitration And The Right To Have Your Day In Court: Meeting Again At The Turning Of The Tide, Lucas Clover Alcolea

Pepperdine Dispute Resolution Law Journal

This article aims to explore court decisions which have made arbitration less attractive to businesses—both those which have refused to enforce arbitration clauses and paradoxically and those which have enforced arbitration clauses—as well as to provide an overview of businesses' reactions to those decisions and make some predictions about the future direction of travel. To that end, this article will be divided into three main parts. The first will explore the decision of New Prime Inc. as well as the various federal appellate decisions that have applied it. The second will explore the challenges posed by mass arbitration, and the …

The Paga Saga, Tamar Meshel

Pepperdine Law Review

Employees routinely enter into employment contracts that contain arbitration ‎agreements and prohibit ‎them from bringing class and/or representative actions. These employees may therefore only bring claims against their ‎employers, ‎whether contractual or statutory, in arbitration on an individual basis. Such arbitration agreements and the class/representative action waivers that they contain are enforced nationwide pursuant to the Federal Arbitration Act (FAA). In California, however, a judge-made rule (the Iskanian rule) prohibits the enforcement of representative action waivers found in arbitration agreements with respect to employees’ claims of Labor Code violations under California’s Private Attorney General Act (PAGA). A judicial battle is …

But We Didn’T Agree To That!: Why Class Proceedings Should Not Be Implied From Silent Or Ambiguous Arbitration Clauses After Lamps Plus, Inc. V. Varela, Andrea Demelo Laprade

Catholic University Law Review

The application of class arbitrability when a contract is silent on the matter remains a mystery. The Supreme Court has not clarified its stance on class arbitrability and preemptive effects of the Federal Arbitration Act on state law when applied to determine if class arbitrability is available. The purpose of this Paper is to address how the Lamps Plus v. Varela decision created more confusion about the question of class arbitrability. It argues that the failure to address the particulars of the availability of class arbitration will perpetuate litigation on this issue. This Paper suggests that the FAA’s purpose supports …

Rittmann V. Amazon.Com, Inc.: Ninth Circuit Rules Amazon’S Drivers Fall Within The Federal Arbitration Act’S “Transportation Worker Exemption”, Isabella Borges

Golden Gate University Law Review

Amazon is among a large list of corporations that have long tried to enforce mandatory arbitration against delivery drivers who file suit in their respective jurisdictions. In recent years, delivery drivers have decided to fight back against private arbitration and to have their legal battles heard in court. In these cases, delivery drivers argue that they are exempt from arbitration under the Federal Arbitration Act (“FAA”) because they are engaged in interstate commerce. Section 1 of the FAA exempts from arbitration “contracts of employment of seaman, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” …

Realigning Federal Statutes: Contradictions Between The Federal Arbitration Act And The National Labor Relations Act, Denise Han

Brigham Young University Prelaw Review

Christopher Steele and Brendan Leveron were employees at a private

maintenance company named Pinnacle. Both Steele and Leveron

reported that Pinnacle allegedly forced them to work overtime without

just compensation—an allegation that, if proven valid, would

violate the Fair Labor Standards Act and California state law. They

also claimed that Pinnacle was guilty of unfair business practices,

retaliation and whistleblowing violations, and a failure to account.

Soon after Steele and Leveron filed these allegations, they discovered

that their predicament was not unique across the firm. In 2012,

they decided to represent their fellow employees in a class-action suit

which so …

Arbitration Agreements – What Is The Employee Actually Signing Up For?, Kennedy Poe

The Journal of Business, Entrepreneurship & the Law

This note will examine the various effects and implications the Supreme Court’s decision concerning the legality of class action waivers within employee-employer contracts will have on employers, employees, and the contracts made between them. Part I will identify class action waivers within an employment contract’s arbitration agreement and will further elaborate upon the legal implications of such waivers being present in the contract. Part II will then discuss the history of the NLRA and assess its present-day role in employee–employer contract formation, in order to provide clarity as to the dispute that has arisen between the NLRA and class action …

Recent Developments, Raelynn J. Hillhouse

Arkansas Law Review

No abstract provided.

Paga Saves The Day Against Forced Arbitration, Letty Chavez

GGU Law Review Blog

Arbitration agreements are becoming increasingly common in the employment setting, with over 60 million Americans being bound by one. In the private sector, 56.2 percent of nonunion employees are bound by mandatory arbitration agreements. In California, 67.4 percent of workplaces are subject to mandatory arbitration. Employees are less likely to win their cases in arbitration than in court. The increase in PAGA lawsuits in recent years is likely associated to the increase in mandatory arbitration agreements. As more employees find themselves without access to the courts, PAGA claims offer the only remaining recourse for employees to have their day in …

The Best Of Times And The Worst Of Times: The Current Landscape Of Mandatory Arbitration Clause Enforcement In Domestic Arbitration, Virginia Neisler

Law Librarian Scholarship

There is nothing new about arbi­tration, a method of alternative dispute resolution designed to settle disputes more efficiently, cheaper, and faster than litigation. Today, mandatory arbitration clauses are ubiquitous in commercial contracts, social media terms and conditions, employment contracts, and more. These contracts, where one party in the weaker position (often a consumer or an employee) must either accept or reject the terms as written with no power to negotiate, are known as contracts of adhesion. The widespread use of arbitration clauses—specifically, pre­dispute, forced arbitration agreements, often including class­action waiv ers found in adhesion contracts—has come under pressure.

Sign Or Else: Employment Arbitration In The Wake Of An Epic Decision, Brendan Williams

Marquette Benefits and Social Welfare Law Review

No abstract provided.

The Future Of Class Action Waivers In Employment Agreements: Lewis Creates A Framework For The United States Supreme Court, Meghan Gonyea

Arbitration Law Review

No abstract provided.

Trumping The Ninth Circuit: How The 45th President’S Supreme Court Appointments Will Strengthen The Already Strong Federal Policy Favoring Arbitration, Eric Schleich

Arbitration Law Review

No abstract provided.

Whistling In Silence: The Implications Of Arbitration On Qui Tam Claims Under The False Claims Act, Mathew Andrews

Pepperdine Dispute Resolution Law Journal

For nearly twenty years, corporate defendants have sought unsuccessfully to use arbitration to roll back protections for whistleblowers suing under federal law. The state and federal judiciaries have long stymied these efforts, on the grounds that defendants cannot force the Government's claims into the secretive forum of arbitration. In January 2013, this protection came to an end. A federal court ruled for the first time that a whistleblower suing on behalf of the United States must pursue its action in arbitration. Five months later, this trend continued as federal courts have compelled arbitration of state law qui tam actions. This …

The Evolution And Decline Of The Effective-Vindication Doctrine In U.S. Arbitration Law, Okezie Chukwumerije

OKEZIE CHUKWUMERIJE

This article offers information on the history, significance and role of the effective-vindication doctrine in U.S. arbitration law in promoting access to justice. It analyzes the significance of broad policy implications regarding the interpretation of the Federal Arbitration Act (FAA) by the Court facilitating the arbitration of commercial disputes and protecting the statutory rights of consumers in the context of the U.S. Supreme Court's decision in Green Tree Financial Corp. v. Randolph.

Assessing The Case For Employment Arbitration: A New Path For Empirical Research, David Sherwyn, Samuel Estreicher, Michael Heise

Michael Heise

No abstract provided.

Class-Based Adjudication Of Title Vii Claims In The Age Of The Roberts Court, Michael C. Harper

Faculty Scholarship

This article considers two barriers to class-based adjudication of Title VII claims erected by the Roberts Court: (1) the Court's interpretation of Rule 23, primarily in Wal-Mart v. Dukes; and (2) the Court's interpretation of the Federal Arbitration Act (FAA) in a series of decisions, both employment-related and not. The article contends that it is the latter group of decisions that are the more significant for Title VII private aggregate litigation as well as for other types of private litigation. The Wal-Mart Court predictably did not expand an employer's obligations to avert discrimination by its agents, and its predictable interpretations …

Disarming Employees: How American Employers Are Using Mandatory Arbitration To Deprive Workers Of Legal Protection, Jean R. Sternlight

Scholarly Works

Employers’ imposition of mandatory arbitration constricts employees’ access to justice. The twenty percent of the American workforce covered by mandatory arbitration clauses file just 2,000 arbitration claims annually, a minuscule number even compared to the small number of employees who litigate claims individually or as part of a class action. Exploring how mandatory arbitration prevents employees from enforcing their rights the Article shows employees covered by mandatory arbitration clauses (1) win far less frequently and far less money than employees who litigate; (2) have a harder time obtaining legal representation; (3) are often precluded from participating in class, collective or …

The Evolution And Decline Of The Effective-Vindication Doctrine In U.S. Arbitration Law, Okezie Chukwumerije

Pepperdine Dispute Resolution Law Journal

This article offers information on the history, significance and role of the effective-vindication doctrine in U.S. arbitration law in promoting access to justice. It analyzes the significance of broad policy implications regarding the interpretation of the Federal Arbitration Act (FAA) by the Court facilitating the arbitration of commercial disputes and protecting the statutory rights of consumers in the context of the U.S. Supreme Court's decision in Green Tree Financial Corp. v. Randolph.

Employment Arbitration Reform: Preserving The Right To Class Proceedings In Workplace Disputes, Javier J. Castro

University of Michigan Journal of Law Reform

The recent judicial enforcement of class waivers in arbitration agreements has generated ample debate over the exact reach of these decisions and their effects on the future of collective action for consumers and employees. In AT&T Mobility v. Concepcion, a 5-4 majority of the Supreme Court majority held that the Federal Arbitration Act (FAA) preempted state laws prohibiting companies from incorporating class action waivers into arbitration agreements. The Court upheld such waivers on the grounds that they are consistent with the language and underlying purpose of the FAA. Most courts across the country have since reinforced the strong federal policy …

Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer

Indiana Journal of Law and Social Equality

No abstract provided.

Discrimination Cases In The 2000 Term, Eileen Kaufman

Eileen Kaufman

No abstract provided.

Mandatory Employment Arbitration: Keeping It Fair, Keeping It Lawful, Theodore J. St. Antoine

Articles

President Obama's election and the Democrats' takeover of Congress, including what was their theoretically filibuster-proof majority in the Senate, have encouraged organized labor and other traditional Democratic supporters to make a vigorous move for some long-desired legislation. Most attention has focused on the Employee Free Choice Act (EFCA). As initially proposed, the EFCA would enable unions to get bargaining rights through signed authorization cards rather than a secret-ballot election, and would provide for the arbitration of first-contract terms if negotiations fail to produce an agreement after four months. The EFCA would apply to the potentially organizable private-sector working population; at …

Is It The "Real Thing"? How Coke's One-Way Binding Arbitration May Bridge The Divide Between Litigation And Arbitration, Suzette M. Malveaux

Publications

Although the scholarly literature is replete with discussion of the pros and cons of mandatory arbitration and civil litigation, relative to one another, there has been no examination of one-way binding arbitration as a potential bridge between these procedural poles. The goal of this article is to fill that void. One-way binding arbitration requires an employee to use arbitration to resolve workplace disputes, but also gives the employee, but not the employer, the option of rejecting the arbitrator’s decision. In the event the employee is not satisfied with the outcome of arbitration, she can still pursue her claim in court. …

Assessing The Case For Employment Arbitration: A New Path For Empirical Research, David Sherwyn, Samuel Estreicher, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Better To Have Tried And Failed Than Never To Have Tried Mediation At All: Implications Of Mandatory Mediation In Fisher V. Ge Medical Systems, Adam Epstein

Adam Epstein

A discussion of the 2003 case, Fisher v. GE Medical Systems that helped to shape the issue of whether or not mandatory mediation clauses in employment handbooks constitute “arbitration” under the Federal Arbitration Act (FAA). Several courts in different jurisdictions have interpreted arbitration and mediation as the same, especially in circumstances involving the Fair Labor Standards Act (FLSA).

Employer's Exclusive Control Over Selection Of Arbitrators Held Invalid, Adam Epstein

Adam Epstein

Discussion of the 2003 Sixth Circuit Court of Appeals case McMullen v. Meijer, Inc. While alternative forms of dispute resolution such as arbitration and mediation are now commonplace and are effectively utilized to avoid litigation and resolve disputes between employers and employees, the procedure in the arbitration process must be fair. Upon the hire, employers often provide their employees with an employment handbook that specifically discusses procedures involving termination. Often the employee handbook, if one exists, is viewed as a contract and is often a first step in determining the proper method of dispute resolution and procedure. In this case, …

Dispute Resolution In The Boundaryless Workplace, Katherine V.W. Stone

Cornell Law Faculty Publications

Since the Supreme Court's decision Gilmer v. Interstate/Johnson Lane Corp. which compelled an employee to submit his age discrimination claim to arbitration under the Federal Arbitration Act (FAA), there has been a dramatic increase in the number of nonunion firms adopting arbitration systems. At the same time, there has been a flood of lawsuits challenging these employment systems, and a corresponding avalanche of judicial opinions addressing the legal issues left open in Gilmer – issues such as the problematic nature of consent in employment arbitration, the deficiencies in due process, and the applicability of the FAA to employment contracts. These …

Discrimination Cases In The 2000 Term, Eileen Kaufman

Scholarly Works

No abstract provided.

Rustic Justice: Community And Coercion Under The Federal Arbitration Act, Katherine V.W. Stone

Cornell Law Faculty Publications

Arbitration clauses are appearing in a wide variety of consumer transactions, including routine product purchase forms, residential leases, housing association charters, medical consent forms, banking and credit card applications, and employment handbooks. In the past fifteen years, the Supreme Court has reinterpreted the Federal Arbitration Act (FAA) so as to grant tremendous deference to private arbitral tribunals. By doing so, it has altered the landscape of civil litigation, taking many consumer claims out of the legal system and relegating them to private tribunals. In this Article, Professor Stone assesses the recent trend toward the privatization of civil justice in light …