Arbitration Feed

Eighth Circuit Reminds: The First Principle of Arbitration Is Get Consent


By: Gabriel K. Gillett

6a01310fa9d1ee970c0240a482f2c4200dIn recent years, the Supreme Court has issued many decisions about arbitration, including the enforceability of arbitration agreements and employment agreements that bar classwide arbitration.  Last week, the Eighth Circuit issued a decision in a case involving those issues, holding that an employment agreement’s arbitration clause mandating individual arbitration was unenforceable.  Shockley v. PrimeLending, -- F.3d. --, 2019 WL 3070502 (8th Cir. 2019).  The arbitration clause provided that the employee and the company agree to “resolve the covered dispute exclusively through final and binding arbitration,” that both parties waive “the right to initiate a class, collective, representative or private attorney general action,” and that “[a]ll Covered Disputes will be settled by binding arbitration, on an individual basis.”  The court did not find that belt-and-suspenders language defective in any way.  Rather, the court reasoned that a valid agreement to arbitrate had not been formed because the employer had provided the employee with a link to the agreement, but there was no evidence the employee had clicked the link or otherwise assented to the agreement. 

The Eighth Circuit’s decision does not provide gloss on the Supreme Court’s arbitration jurisprudence—it does not even cite many of the Court’s recent cases.  The Eighth Circuit’s decision also does not discuss a novel legal theory or break new ground in the arbitration space.  Nor does it address one of the many open and often litigated issues related to arbitration.  Still, the holding is notable because it serves as an important reminder: even the best, clearest language in an arbitration clause (or any contract for that matter) is enforceable only if the parties actually agreed to it.  See, e.g., Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1415 (2019) (“‘[T]he first principle that underscores all of our arbitration decisions’ is that ‘[a]rbitration is strictly a matter of consent.’” (citations omitted)).

US Supreme Court Holds that Classwide Arbitration is Unavailable Unless the Parties Clearly Agree to It


By: Michael T. BrodyGabriel K. GillettHoward S. Suskin and Adam G. Unikowsky

Supreme Court Pillars - iStock_000017257808LargeOn April 24, 2019, the US Supreme Court issued its decision in Lamps Plus, Inc. v. Varela, No. 17-988, holding that classwide arbitration is not available unless clearly authorized by the parties.[1]  In a 5-4 decision authored by Chief Justice Roberts, the Court reasoned that when an arbitration agreement is ambiguous or silent about classwide arbitration, the parties have not actually agreed to it.[2]  As a result, the Federal Arbitration Act (FAA) does not allow a party to be forced into classwide arbitration based on an ambiguous agreement, even if state-law contract interpretation principles would construe ambiguity against the agreement’s drafter.[3]

Lamps Plus is just the latest in a long string of victories for arbitration advocates.  Building on prior decisions rejecting classwide arbitration in the consumer and employment contexts, the Court has now suggested that classwide arbitration is presumptively unavailable and that a clear expression of intent is required to overcome that presumption.  The practical result is that classwide arbitration may only be available against corporate defendants that specifically subject themselves to it.  And that may be a null (or very small) set, at least for companies that take the majority opinion’s view that classwide arbitration “‘sacrifices the principal ad­vantage of arbitration—its informality—and makes the process slow­er, more costly and more likely to generate procedural morass than final judgment.’”[4]

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Ambiguous Signature Line Potentially Voids Arbitration Clause

IStock_000014221107MediumBy Howard S. Suskin

An employment agreement contained an arbitration clause, and the employees signed it.   But the court sided with the employees’ argument, at least at the pleading stage, that they may not have agreed to arbitrate their claims, because their signatures were directly under a bolded sentence that read, “I certify, by my signature below, that I have received a copy of the Mortgage Sales Commission Plan, which has been provided to me.”  The employees argued that their signatures simply acknowledged receipt of the Mortgage Sales Commission Plan, not their intent to be bound by the terms of the arbitration clause contained in the document.  The court concluded that because the contract is susceptible to two logical constructions, the court could not find at the motion to dismiss stage that the employees had agreed to arbitration.   The court noted that because the employer had provided the employees with the agreement, any ambiguous language would be construed against the employer as the drafter of the contract.   Ranieri v. Banco Santander, No. 15-3740 (D. N.J. April 4, 2016). 

Court Rejects First Amendment Challenge To Consumer Arbitration Clause

By Howard S. Suskin

A district court in the Northern District of California rejected a claim by a putative class of wireless users that the First Amendment bars enforcement of their arbitration clause with their wireless provider. Roberts v. AT&T Mobility LLC, No. 15-cv-03418-EMC (N.D. Cal. Feb. 29, 2016). Plaintiffs did not dispute that their wireless service contracts contained an arbitration provision, but argued that the provision was unconstitutional on the theory that if the court were to compel arbitration, that would be state action violating their First Amendment rights to petition a court for redress of grievances. The court found no merit to plaintiffs’ assertion that the mere fact of judicial enforcement automatically establishes state action. In the decision on defendant’s motion to compel arbitration, District Judge Edward M. Chen noted that in many private contracts there are provisions that arguably affect access to the courts, such as choice of venue, choice of law, statutes of limitations, and limitations on damages provisions; although these provisions may be subject to restrictions imposed by statutory and/or common law, courts have not held that judicial enforcement of these provisions, particularly as found in contracts between private parties, amounts to state action or raises constitutional claims.

Surprise! An undisclosed third party may be able to compel arbitration if the issues in dispute are intertwined with the arbitration agreement.

Network_iStock_000005265503LargeBy Kate T. Spelman

A California federal district court recently granted defendant Turn, Inc.’s motion to compel arbitration of a dispute with a putative class of New York Verizon subscribers.  Henson, et al. v. Turn, Inc., No. C 15-01497 JSW (N.D. Cal. Mar. 14, 2016).  Turn, an online marketing platform, partners with Verizon to utilize subscriber information to connect advertisers with their target audience.  Verizon subscribers sued Turn to prevent the company from allegedly surreptitiously monitoring their web browsing activities.  Turn moved to dismiss or stay the action on the basis of an arbitration clause contained in the service agreements between the subscriber plaintiffs and Verizon.  Turn was not a signatory to the service agreements.

The court held that under both New York and California law, a non-signatory to an arbitration agreement may compel arbitration when the claims at issues are “intertwined with the agreement.”  In this case, because the parties’ dispute hinged on a provision in the plaintiffs’ subscriber agreements with Verizon, and because the defense of the lawsuit would necessarily require introduction of those agreements, the issues were found to be “intertwined with the agreement” such that Turn could invoke the arbitration provision contained therein.  

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Arbitration Is Compelled Even Though The Designated Forum Is Non-Existent

New-Development-IconBy Howard S. Suskin

A district court granted defendant’s motion to compel arbitration even though the arbitration forum specified in the parties’ arbitration agreement does not exist.  PR Group, LLC Windmill International LTD., No. 14-0401-CV-W-BP (W.D. Mo. Feb. 1, 2016).   The court concluded that the failure to properly specify an arbitration forum does not render the agreement to arbitrate ineffective.  Section 5 of the Federal Arbitration Act, which permits the court to designate an arbitrator when there is a lapse in the parties’ agreement for naming an arbitrator, applies when the arbitration forum ceases to exist as well as when one has not been designated.  Accordingly, the court exercised its power to direct that arbitration be conducted by the American Arbitration Association.    

Another Supreme Court Rebuff To California Arbitration Rule

PillarsBy Michael A. Scodro

Issued on December 14, 2015, DirectTV v. Imburgia represents the newest in a line of Supreme Court decisions applying the Federal Arbitration Act (FAA) to enforce contractual arbitration provisions.  Here, a service agreement between DirectTV and its customers requires arbitration of any future disputes and expressly waives either party’s right to initiate arbitration on a class-wide basis, with the exception that, if the “law of your state” prohibits the waiver of class arbitration, then the arbitration provision as a whole “is unenforceable.”  Two customers sued DirectTV, seeking to proceed in court rather than arbitration on the theory that the “law of” their “state,” California, does indeed prohibit class-action waivers in arbitration.  It was this theory—requiring application of the term “law of your state” to California—that divided lower courts and attracted Supreme Court review. 

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Contract That Prohibits Challenge To Arbitration Award Is Unenforceable

By Howard S. Suskin Ripped-contract

A contract provision stating that the parties expressly agreed not to challenge the validity of their arbitration or an arbitration award was held to be contrary to public policy and void and unenforceable.  Atlanta Flooring Design Centers, Inc. v. R.G. Williams Construction, Inc., A15A0664 (Ga. Ct. App., 2d Div., July 16, 2015).  The contract stated: “The award rendered by the arbitrator(s) shall be final and binding on the parties and judgment upon the award may be entered in any court of competent jurisdiction.  Contractor and Subcontractor hereby expressly agree not to challenge the validity of the arbitration or the award.”  Applying Georgia law, and relying on cases decided under the Federal Arbitration Act, the court concluded that the statutory grounds for vacating an arbitration award may not be waived or eliminated by contract.  The court reasoned that the statutory grounds for a court to review and vacate an award demonstrate Congressional intent to provide a minimum level of due process for parties to an arbitration.



Court Finds Uber’s Arbitration Clauses With Its Drivers Unenforceable

By Howard S. Suskin

TrafficA California federal district court denied Uber’s motion to compel arbitration of its driver’s disputes concerning background checks, holding that the arbitration provisions in the drivers’ contracts were procedurally and substantively unconscionable. Mohamed v. Uber Technologies, No. C-14-5200 EMC (N.D. Cal. June 9, 2015).  As an initial matter, the court found that delegation clauses contained in the drivers’ contracts, which purported to reserve the adjudication of the validity and enforceability of the contracts’ arbitration provisions to an arbitrator, were unenforceable because they were not clear and unmistakable and conflicted with other language in the contracts.   The court also found that the delegation clauses were  unconscionable, as they were buried in the lengthy contract, had an onerous opt-out provision, and imposed substantial arbitration costs and fees on the driver.  The court then concluded, on similar grounds, that the arbitration provisions in the Uber contracts were procedurally and substantively unconscionable and therefore unenforceable under California law.  The court further found that contractual provisions purporting to waive private attorney general claims were void as a matter of California law.