Dodd-Frank Only Precludes Arbitration of Whistleblower Actions
May 19, 2014

The Fourth Circuit found this week that the Dodd-Frank Act did not override all arbitration agreements between publicly-traded employers and their employees. Santoro v. Accenture Federal Servs., LLC, 2014 WL 1759072 (4th Cir. May 5, 2014).  Instead, “where the plaintiff is not pursuing Dodd-Frank whistleblower claims, neither [section of the Dodd-Frank Act] overrides the FAA’s mandate that arbitration agreements are enforceable.” This case involved the termination of a 66-year-old Accenture...

State Not Federal Law Controls Non-Signatory Question in Fifth Circuit
April 23, 2014

Affirming the District Court's judgment compelling arbitration, the Fifth Circuit overrules prior precedent regarding non-signatories and the enforcement of arbitration agreements under the Federal Arbitration Act.  Whereas previous Circuit precedent had applied Federal common law to resolve issues involving non-signatories under the FAA, this opinion holds that state law should instead control analysis of such issues.  The Court's opinion recognizes that its prior decisions applying Federal...

Employer’s Attempt To Avoid Ongoing Collective Action By Forcing Potential Plaintiffs To Sign Arbitration Agreements Fails
April 17, 2014

In the past year, if I wrote about “FLSA” and “arbitration” in the same post, it likely meant that another federal court had found employers can include class action waivers in their employment contracts without violating the Fair Labor Standards Act.  Today, however, is different.  The Eleventh Circuit last week found that it was the FLSA that gave the district court sufficient “managerial responsibility” over workers’ collective actions to override an employer’s coercive,...

D.R. Horton and the Arbitration Hotchpotch: Emerging “Rules” and the Future of Compelled Arbitration in California
March 13, 2014

Horton Hears an Employer Victory Last December, the Fifth Circuit issued its long-awaited decision in D.R. Horton, Inc....

Other Structural Aspects of Pre-Dispute Arbitration Agreements—What am I Agreeing to Arbitrate?
March 6, 2014

In the last installment of our B-2-B Arbitration series we focused on one of the most important structural aspects of pre-dispute arbitration agreements: the mutual promise to submit disputes to arbitration, what it means and how its performance by the parties through their post-dispute submission defines and delimits the scope of authority parties actually delegate—as opposed topromise to delegate—to arbitrators to resolve particular disputes. But there are other important structural aspects...

Which Arbitration Agreement Clauses Will Texas Courts Find Unconscionable?
February 27, 2014

In recent years, courts have consistently supported employers’ use of arbitration agreements in employment settings. During the last few terms, the Supreme Court of the United States has issued several decisions, such as American Express Company v. Italian Colors Restaurant (2013) and AT&T Mobility, LLC v. Concepion (2011), upholding the use of arbitration agreements. Texas courts have also issued decisions, such as In re Halliburton Co. (2002), upholding the use of such agreements. While...

Other Structural Aspects of Pre-Dispute Arbitration Agreements—Will the Arbitration be Administered or Ad Hoc?
February 7, 2014

The last two segments of this Small Business B-2-B Arbitration series have focused on certain key structural aspects of pre-dispute arbitration agreements. Perhaps some might think that an examination of even the most basic structural components of arbitration agreements is too much information for a business person, but most successful business people know about all relevant aspects of the contracts they negotiate, not just the basic structural components of those contracts (e.g., price and performance...

Ninth Circuit Says Arbitration Agreements Cannot Restrict Grounds for Vacating Award
January 6, 2014

In the Hall Street decision in 2008, SCOTUS held that parties could not contractuallyenlarge Section 10 of the Federal Arbitration Act by agreeing that a court could vacate the arbitration award for reasons not found in that section.  This week, the Ninth Circuit held that parties also cannot contractually restrict Section 10 by providing for “binding, non-appealable arbitration.”  In re Wal-Mart Wage and Hour Employment Practices Litig., __ F.3d __, 2013 WL 6605350 (9th Cir. Dec....

West Virginia Has A Change Of Heart About Arbitration
December 13, 2013

A few months ago, you would have reasonably thought that West Virginia was one of the most anti-arbitration states in the country. ...

Consumer Agency Finds Arbitration Agreements Unpopular, Confusing
December 12, 2013

The Consumer Financial Protection Bureau today released a report looking at the use of arbitration agreements in consumer...