Arbitration: Class Action, Waiver, FAA, Employment: Employment Contract Providing For Individualized Arbitration Provisions Not Invalidated By The Federal Arbitration Act’s Savings Clause, The Fair Labor Standards Act, Or National Labor Relations Act
FAA Collective Actions And Related State Law Class Actions Governed By Individualized Arbitration Proceedings Under Employment Contract.
On May 21, 2018, the United State Supreme Court issued its decision in Epic Systems Corp. v. Lewis, 584 U.S. __, No. 16-285. SCOTUS decided that the FAA instructed federal courts to enforce individualized arbitration proceedings under an employer-employee arbitration agreement such that nothing in the FAA’s savings clause, FLSA, or NLRA dictated a different result. This was a 5-4 decision along political lines, authored by Justice Gorsuch. The minority justices believed that the result in this case will gut the effectiveness of FLSA collective actions and state court class actions in the wage/hour area.
See my previous posts regarding this case, and the article I wrote entitled, “The Politics of Arbitration” wherein I discussed the same issue raised in Ernst & Young v. Morris. My previous posts were on August 23, 2016, October 11, 2016, November 3, 2016, January 17, 2017, July 24, 2017, September 28, 2017, and October 9, 2017. See also, my post on June 19, 2017.
Arbitration: Nonsignatories: 2/4 DCA Reverses Arbitration Award Against Nonsignatory Alter Ego Where Arbitrator Included Nonsignatory In Arbitration
Appellate Court Found That Trial Judge Must Make Determination To Add Alter Ego Nonsignatory, With JAMS Rule Not Dictating A Different Result.
Benaroya v. Willis, Case No. B281761 (2d Dist., Div. 4 May 17, 2018) (published) (Willhite, J., concurred in by Epstein, P.J. and Collins, J.) (yes, the matter did involve action star Bruce Willis) was a situation where an arbitrator made the decision to add an alleged nonsignatory alter ego respondent to an arbitration between claimant Willis/a lending company and a signatory respondent to which the added party was alleged to be an alter ego. Eventually, the arbitrator found that the nonsignatory was an alter ego and entered an award in excess of $5 million against both arbitration respondents. The trial judge granted Willis/lenders’ petition to confirm the award and denied respondents’ petition to vacate the award with respect to the arbitrator exercising jurisdiction over the nonsignatory.
The appellate court agreed with the arbitration respondents’ position on appeal, vacating the award against the nonsignatory alter ego and only confirming the award against the signatory arbitration respondent.
The reason for this overturn was that only the trial court (not the arbitrator) can decide whether an alleged nonsignatory alter ego could be compelled to arbitrate, with nothing in the JAMS arbitration rules changing that conclusion.
Fees, Section 1286.2 Vacatur: Recent 2/1 DCA Unpublished Opinion Is A Stark Reminder To Raise Fees And Costs Issue To An Arbitrator Before A Final Award Is Issued
Otherwise, Fees/Costs Recovery Could Be Forfeited; Best Is To Ask For An Interim Award On Merits And Reserve Other Issues For Later Interim Award.
The next case really is a stark reminder to litigators to make sure an arbitrator reserves fees and costs issues for decision in a subsequent interim award after an interim award on the merits. If you do not do so, you may face the unhappy conclusion in the next case.
The unhappy conclusion in Buckley v. El Dorado Enterprises, Inc., Case No. B282204 (2d Dist., Div. 1 May 16, 2018) (unpublished) was that a claimant recovering on a pregnancy discrimination and failure to accommodate claims (but not awarded damages based on a subsequent reinstatement) did not gain a substantial award of attorney’s fees and costs as the prevailing party. We describe how this came about.
The arbitrator entered a final award on the merits in favor of claimant, but claimant never requested any attorney’s fees. After that award, claimant moved for fees and costs, with the arbitrator in a second award deciding she was the prevailing party and awarding about $120,000 in fees, costs, AAA administrative fees, and arbitrator compensation/expenses. However, the trial judge vacated the award of fees and costs, prompting an appeal by claimant.
The 2/1 DCA decided that claimant had no basis to supplement the first award with the second award recovery given that there was no mathematical error or failure of the arbitrator to rule on a submitted issue. This was so under the California Arbitration Act and the AAA Rules. So, the moral of the story (so to speak), is to make sure that a merits award is interim and that the arbitrator is asked to reserve a ruling on fees/costs through a later interim award. If not, and a final award is issued instead, a claimant may be deprived of a recoupment of substantial fees and costs even though the arbitrator would have awarded them but for labeling the award a “final” one.
Unconscionability: Second District, Division 4 California Court Of Appeal Agrees In Unpublished Opinion That Former Employer’s Arbitration Provision Was Unconscionable And Unenforceable In Subsequent Wage/Hour Class Action
Failure To Highlight Provision In Multi-Page Employment Handbook And To Notify Employees That Signing The Handbook With The Provision Could Forfeit Their Ability To Participate In The Existing Class Action Cemented The Unconscionability Conclusion.
In law school, many of us got introduced to the notion of contractual unconscionability through the interesting decision in Campbell Soup Co. v. Wentz, 172 F.2d 80 (3d Cir. 1948). There, an onerous carrot approval clause by a well-known soup company was partially invalidated by the appellate court under the equitable unconscionability doctrine—in the process indicating that one of the provisions was akin to “carrying a good joke too far” and that “equity does not enforce unconscionable bargains is too well established to require elaborate citation.” (Id. at 83-84.) [This case brings back memories for my colleague and calattorneysfees.com co-contributor Mike, who attended Rutgers-Camden School of Law and who remembers being able to smell the soup being brewed in the Campbell Camden plant when walking from the subway station to the law school. It has significance for me, Marc, because my wife is Cathy Campbell.]
Unconscionability was the doctrine which invalidated an employment arbitration clause in relation to an employee wage/hour class action in the recent unpublished decision in Nguyen v. Inter-Coast Int’l Training, Inc., Case No. B270305 (2d Dist., Div. 4 Apr. 20, 2018) (unpublished) (Collins, J., concurred in by Epstein, P.J. and Manella, J.).
What happened here was that the employer modified its employee handbook, which had an arbitration provision and which many employees signed, over a year after a putative wage/hour class action had been filed. Sixty-two putative class members signed the arbitration provision in the modified employee handbook after the filing of the class action. Employer moved to compel arbitration, but the trial judge denied it on both procedural and substantive unconscionability grounds.
The 2/4 DCA affirmed. Like the trial judge, it found the arbitration provision was procedurally unconscionable because it was part of an 11-page employee handbook with no stylistic features which differentiated the arbitration provision from the other non-related section of the handbook. (The hidden or surprise elements of the unconscionability doctrine.) With respect to substantive unconscionability, that was present also because nothing in the handbook or the employer communications to employees flagged that employees were giving up rights to participate in the earlier-filed class action by signing the handbook with the arbitration provision. (The language in the arbitration provision did not clarify that the provision was both forward- and backward-looking in nature, with the employer not communicating the impairment of an employee’s ability to participate in the class action.)
BLAWG UPDATE: The winning employees requested publication of that decision, but on May 15, 2018, the 2/4 DCA denied this request and sent a letter to the California Supreme Court (the ultimate decision-maker on the request) to see if it agreed or disagreed.
Arbitration, Class Action Waiver: SCOTUS Grants Certiorari To Review Whether Generalized Language In Arbitration Agreements Forecloses A State Law Interpretation Authorizing Class Arbitration Under The FAA
Issue Deals With Whether Generalized Language Was Akin To Silence Under Stolt-Nielsen.
In Stolt-Nielsen v. AnimalFeeds International Corp., 55 U.S. 662, 684, 687 (2010), the U.S. Supreme Court (SCOTUS) held that the differences between bilateral and class-action arbitration are too great to presume the parties’ mere silence on the issue of class-action arbitration constitutes a consent to class-action arbitration.
On April 30, 2018, SCOTUS granted certiorari to an unpublished Ninth Circuit opinion, Varela v. Lamps Plus, Inc., No. 16-56085 (9th Cir. Aug. 3, 2017; now No. 17-988 (U.S. Sup.), which will confront this issue: “Whether the Federal Arbitration (FAA) forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements.”
The arbitration case at issue in Varela was an arbitration clause which did not mention class arbitration. A divided Ninth Circuit, over a dissent by Circuit Judge Fernandez, inferred mutual assent to class arbitration from such standard language as the parties’ agreement that “arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings.” “arbitrable claims are those that would have been available to the parties by law,” and “[the arbitrator was authorized to] award any remedy allowed by applicable law.” The Ninth Circuit majority used inferential logic to find class arbitration was permitted, placing special emphasis on the “in lieu of” and “claims” language. (interestingly enough, plaintiffs themselves argued for class arbitration after filing a federal class action and after employer Lamps Plus moved to compel arbitration.) In contrast, Circuit Judge Fernandez found that “[w]e should not allow Varela to enlist us in this palpable evasion of Stolt-Nielsen . . . .”
This case is set for argument in the October 2018 term. At least one commentator believes that the Ninth Circuit engaged in undue “hair-splitting” in light of Stolt-Nielsen’s reasoning.
BLOG OBSERVATION—Mike Hensley, co-contributor on the calattorneysfees.com blog, at Marc’s invitation, will be posting from time to time to Marc’s California mediation/arbitration blog.
Arbitration/Fees/Enforceability: Party Who Has Engaged In Arbitration In Good Faith And Becomes Unable To Pay Arbitrator’s Fees May Be Entitled To Day In Court
The Options: The Other Side Can Pay Arbitration Fees, Or The Matter Can Move To Court.
"In its majestic equality," wrote Anatole France, "the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread." So does this principle of equality mean that the law forbids a party, who engages in good faith in arbitration, and loses the ability to pay the arbitrator, from turning to a judicial forum for relief? As one of my law professors would have put it, do the stringent TS rules of common law contracts apply to bind the party who is unable to pay to the deal it made?
In Weiler v. Marcus & Millichap Real Estate Investment Services, Inc., et al. G053953 (4/3 4/30/18) (Thompson, Bedsworth, Moore), the Court of Appeal holds in a published opinion, "as we did in Roldan [219 Cal.App.4th 87 (2013)], when a party who has engaged in arbitration in good faith is unable to afford to continue in such a forum, that party may seek relief from the superior court." In Roldan, the subject of my August 28, 2013 post, the Fourth District, Division Three, concluded that plaintiffs, "each of whom were subsequently granted permission to proceed in forma pauperis in the trial court, could likewise be excused from the obligation to pay fees associated with arbitration."
The Court of Appeal faulted the trial judge for applying an unconscionability analysis to the enforceability of the arbitration provision in Weiler. Unconscionability is analyzed at the time the agreement to arbitrate is entered into, and at that time, the Weilers were relatively well-to-do, before losing $2M in the ill-fated 1031 exchange in which they were represented by Marcus & Millichap. It would be hard, under those facts, to say that there was overreaching at the time of contract formation. Here, however, the issue was entirely different. The circumstances had changed over time such that the Weilers, an elderly couple ground down by the arbitration, lost the ability to pay, as a result of which they confronted the possibility of not being able to proceed in any forum, unless Marcus & Millichap paid the arbitration fees, or the parties proceeded to court. Perhaps too the Court's view was colored by the hardball tactics of the defendant, who, for example, insisted on the use of three arbitrators at an hourly rate of $1,450.
Arguably the Federal Arbitration Act applied, because the 1031 exchange involved properties in different states, Nevada and Texas. And so the Court also determined that the outcome would be the same under the Federal Arbitration Act and under the California Arbitration. In reaching this conclusion, the Court relied on the federal case, Tillman v. Tillman, 825 F.3d 1069 (9th Cir. 2016), the subject of my June 15, 2016 post. Tillman relied on the provision in the Federal Arbitration Act, 9 U.S.C. section 3, that a party can apply to stay trial of the action "until such arbitration has been had in term of the agreement . . . " In Tillman, the party followed the procedure required by the AAA, participated in good faith in the arbitration process, and simply ran out of money to pay the arbitrator. The Court held in Tillman that the arbitration "had been had" and the party could now seek a judicial forum. The California Court of Appeal found the analysis in Tillman to be persuasive.
COMMENT: Tillman is a Ninth Circuit case. Query whether the US Supreme Court, as currently constituted, would show solicitude to the impecunious plaintiff, or more inclined to apply the TS rules of common law contracts.
PRACTICE TIP: One in the position of the Weilers will need to make a compelling showing of inability to pay. This matter is being remanded, and the trial court will need to find if the "party's financial status is not a result of the party's intentional attempt to avoid arbitration." If there is no intentional attempt to finagle finances, then the trial court can order the arbitration to continue if the defendant agrees to pay (or order it to pay!), or deem the arbitration to be "had", allowing the case to proceed in court.