Baker McKenzie’s Mike Leggieri and Robin Samuel were recently interviewed on how best to avoid class arbitration in light of the US Supreme Court April 2019 Lamps Plus, Inc. v. Varela decision.

In Lamps Plus, the Supreme Court held that when an arbitration agreement is ambiguous on the availability of class arbitration, courts

Last Wednesday, the US Supreme Court issued yet another pro-employer arbitration decision.

In a 5-4 split, the Supreme Court held in Lamps Plus Inc. v. Varela that a party cannot be compelled to submit to a class arbitration (as opposed to the arbitration of individual claims) unless the arbitration agreement explicitly authorizes class proceedings in arbitration.

In doing so, the Supreme Court reiterated two key aspects of its Federal Arbitration Act jurisprudence:

  1. Arbitration is a matter of consent, not coercion; and
  2. Class arbitration is fundamentally different than the traditional individualized arbitration envisioned by the FAA.

Because, according to the majority opinion, class arbitration so fundamentally changes the nature of arbitration, a party can only be forced to litigate class claims in arbitration under the FAA if there is a contractual basis for concluding that the party agreed.


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Co-authored by Mike Leggieri (Employment & Compensation Partner, SF) and Steven Chasin (Litigation Associate, DC)

To paraphrase Pharaoh Ramses II, so it is written, so it shall be done.

In Schein, Inc. v. Archer and White Sales, Inc., 586 U.S. __ (January 8, 2019), the first opinion by Justice Kavanaugh, a unanimous Supreme Court reiterated this principle of the Federal Arbitration Act. Specifically, the Court confirmed that when an arbitration agreement delegates to an arbitrator the question of whether the agreement applies to a particular dispute, courts have no power to decide this question, even if a court considers the arbitrability argument to be “wholly groundless.”


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As we previously discussed here, the United States Supreme Court’s May 2018 decision in Epic Systems v. Lewis was a clear win for employers that seek to avoid the expense and disruption of class litigation by resolving disputes individually through binding arbitration. As explained by the Supreme Court in AT&T Mobility LLC v. Concepcion, “[i]n bilateral arbitration, parties forego the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes.”

For employers looking to take advantage of the benefits of individual arbitration, there are several drafting nuances to consider before rolling out or updating existing arbitration agreements.


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In August, the United States Court of Appeals for the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) upheld an arbitration agreement that required individual arbitration of claims under the federal Fair Labor Standards Act (FLSA). The Court’s decision is in line with the United States Supreme Court’s decision in Epic Systems Corp. v. Lewis.

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