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28 U.S.C § 1782(a) – Obtaining Information in Aid of International Private Arbitration from U.S. Federal Courts: The Debate Shifts

In a noteworthy endorsement of international arbitration March 30, 2020, the U.S. Court of Appeals for the Fourth Circuit issued what may be the second watershed decision within six months in the use of 28 U.S.C. § 1782, “Assistance to foreign and international tribunals and to litigants before such tribunals”. The Fourth Circuit panel reversed the district court to rule that section 1782(a) may be employed to obtain testimony and other evidence in aid of private arbitration held outside the United States.[i]

An Agreement to Arbitrate Employment Claims Must Also Allow for Access to Full Remedies Before the NLRB

In a separate post, we discussed several cases decided by the National Labor Relations Board (NLRB) in which the Board invalidated agreements requiring employees to arbitrate employment-related claims due to vague language that did not make it clear that employees retained the right to pursue claims under the National Labor Relations Act (NLRA) before the NLRB. The recent decision in Kelly Services, Inc.. 368 NLRB No. 130 (12/12/2019) illustrates that even explicitly permitting claims before the NLRB will not guarantee an arbitration agreement’s survival if substantial ...

Watch Your Language: An Agreement to Arbitrate Employment Claims Must Allow for NLRA Claims Before the NLRB

The U.S. Supreme Court settled the long-standing dispute regarding the viability of class arbitration waivers in employment contracts with its determination in Epic Systems Corp. v. Lewis, 584 U. S. ____ (2018) that they indeed are enforceable, contrary to the position taken by the National Labor Relations Board (NLRB). But that did not close the book on all questions regarding employment agreement arbitration clauses, nor did it mean that the NLRB would resolve remaining questions regarding the limits on their enforceability in favor of the employer. While class waivers and ...

U.S. Supreme Court Said “No” to Class Arbitration in Employment-Related Data Breach Dispute Because Arbitration Agreement Ambiguous on Class Procedures

The U.S. Supreme Court issued two 5-4 decisions in as many months regarding class procedures. Lamp Plus, Inc. v. Varela, 587 U. S. ____ (2019) was favorable to corporate defendants by limiting the availability of class arbitration when the arbitration agreement is ambiguous, while Home Depot U.S.A., Inc. v. Jackson, 587 U. S. ____ (2019) favored consumer plaintiffs by preventing third-party counterclaim defendants from removing class actions from state court to federal court under the Class Action Fairness Act (CAFA). Interestingly, Justice Thomas joined the conservative ...

A Split U.S. Supreme Court Upholds Class Waivers in Individual Employment Agreements, Highlighting the Role of Congress in the Class Waiver Fight

The viability of class waivers in employment agreements has been a closely watched battle in the courts since the National Labor Relations Board (NLRB) ruled in D. R. Horton, Inc. and Michael Cuda, Case 12–CA–25764, 357 NLRB No. 184 (2012) that class waivers in individual employment agreements violate the National Labor Relations Act (NLRA) by preventing employees from engaging in concerted action related to their employment. Faced with an Executive Branch that was “speaki[ng] from both sides of its mouth” on this issue and a Congress that recently overturned another ...

This year important questions regarding the viability of class action waivers in arbitration agreements have moved close to resolution. In July, the Consumer Financial Protection Bureau (CFPB) issued a long-awaited final rule that prohibited class waivers in arbitration agreements related to a broad range of financial products. And employees and the National Labor Relations Board (NLRB) have continued to push against the enforceability of class waivers in the context of individual employment agreements, driving the issue to the U.S. Supreme Court for review. On November 1 ...

U.S. businesses have the good fortune to be on the receiving end of a favorable U.S. Senate vote nullifying the hotly-contested Consumer Financial Protection Bureau (CFPB) rule banning class action waivers in certain consumer finance arbitration agreements. The rule, issued by the agency in July 2017, took several years to finalize and was criticized for being based on a flawed data, the result of the agency overreaching, and more beneficial to class action plaintiffs’ attorneys than the consumers it was supposed to protect. Our previous posts discuss in detail ...

The Consumer Financial Protection Bureau (CFPB) recently announced the release of its final rule prohibiting the use of class action waivers in certain consumer finance arbitration agreements. The rule has been several years in the making, and has been widely followed and hotly contested. The final rule was announced on July 10, 2017 and published in the Federal Register on July 19, 2017. Accordingly, it is set to take effect on September 18, 2017 (60 days following publication) and to apply to contracts entered into on or after March 19, 2018 (180 days after the effective date ...

The Consumer Financial Protection Bureau (CFPB) recently announced the release of its final rule that prohibits the use of class action waivers in certain consumer finance arbitration agreements. This rule banning class waivers has been several years in the making, and has been widely followed and hotly contested. The CFPB reports that it received more than 110,000 comments on its proposed rule during the comment period, which raised concerns regarding “whether the effects of arbitration agreements are salient to consumers, whether arbitration has proved to be a fair and ...

In the years following the U.S. Supreme Court’s AT&T Mobility v. Concepcion decision, more and more courts enforced class waivers in arbitration agreements based on the commands of the Federal Arbitration Act (FAA). The National Labor Relations Board (NLRB) parted with the post-Concepcion trend to enforce class waivers in D. R. Horton, Inc. and Michael Cuda, Case 12–CA–25764, 357 NLRB No. 184 (Jan. 3, 2012), however, and held that such waivers in individual employment agreements violate the National Labor Relations Act (NLRA) by prohibiting employees from acting in ...

On May 24, 2016, the Consumer Financial Protection Bureau’s (CFPB) long-anticipated Proposed Rule prohibiting the use of class action waivers in consumer finance arbitration agreements was published in the Federal Register and opened for public comment. The Proposed Rule has been expected following the CFPB’s previous study and statements regarding the impact that arbitration agreement class action waivers have on consumers. The CFPB took 370+ pages to explain and justify its proposal, which boils down to consumers of financial products do not typically pursue redress ...

MLB Litigation Brief: Class Action Questions Open After Scalia’s Death, Arbitration Fees and American Rule & More


Our goal is to serve as a cutting-edge resource for companies operating in an increasingly globalized and regulated business environment. Moore & Van Allen’s MLB Litigation Brief is a complement to our Litigation Blog’s in-depth individual treatment of critical issues emerging in federal, North Carolina state, and international litigation, as well as in arbitration, regulatory enforcement, and related business practices. MLB Litigation Brief hits the highlights of recent developments, streamlining access to critical information for our readers. Subscribe to the MVA ...

CFPB Singles Out Class Action Waivers for Elimination from Consumer Financial Arbitration Agreements

The Consumer Financial Protection Bureau (“CFPB”) made clear this week that, in its view, class action waivers should be on the chopping block in the agency’s upcoming rulemaking aimed at regulating the use of arbitration clauses in consumer financial agreements.  In an October 7, 2015 release, CFPB Director Cordray expressed the agency’s critical stance on companies’ use of arbitration agreements that prohibit consumers from participating in class actions, calling such clauses a “free pass to sidestep the courts and avoid accountability for wrongdoing,” while ...

As it stands, the National Labor Relations Board (“NLRB”) has taken the position that class action waivers in individual employee/employer arbitration agreements are illegal and the agency continues to invalidate these agreements even though the Fifth Circuit Court of Appeals has held that they are enforceable.  In D.R. Horton (2012), the NLRB invalidated class action waivers in individual employment agreements on the grounds that such waivers interfere with an employee’s rights to collective action provided by the National Labor Relations Act (“NLRA”).  The Fifth ...

NLRB Judge Finds Employment Contract’s Arbitration Clause Invalid Although No Explicit “Waiver” of Class Actions

Last week, a National Labor Relations Board (“NLRB”) Administrative Law Judge reiterated the agency’s position that employers who require the arbitration of grievances by employees on an individual basis violate the National Labor Relations Act (“NLRA”) by precluding protected concerted activity of the class and collective action mechanisms.  We have seen the NLRB strike down explicit class action waivers in employment contracts in its decisions since D.R. Horton (2012) and Murphy Oil (2014), contrary to the U.S. Supreme Court’s Concepcion line of cases that ...

Could Guaranteeing a Minimum Recovery for Consumers Abate CFPB Concerns Regarding Class Waivers in Arbitration Agreements?

With the recent release of the Consumer Financial Protection Bureau’s Arbitration Study: Report to Congress, pursuant to Dodd–Frank Wall Street Reform and Consumer Protection Act § 1028(a)”, it is widely anticipated that the agency will seek to impose restrictions on the use of class waivers in consumer finance agreement arbitration clauses. What form those restrictions will take, however, remains to be seen.  Some level of regulatory restriction on class waivers has been expected since the release of the CFPB’s December 2013 Preliminary Study, and the agency ...

The practice of restricting plaintiff access to class procedures through binding arbitration agreements has garnered significant attention over the last five years on the heels of several U.S. Supreme Court decisions validating companies’ use of class waivers.  One of the open questions remains, “who has the authority to determine whether class arbitration is available when the arbitration clause is silent – courts or arbitrators?”  The U.S. Supreme Court has not addressed whether the availability of class arbitration is a substantive “gateway” issue for the ...

Consumer Financial Protection Bureau’s Dodd-Frank Study Scrutinizes Arbitration Agreements & Class Action Waivers

On Tuesday, the Consumer Financial Protection Bureau ("CFPB") released its long-awaited "Arbitration Study: Report to Congress, pursuant to Dodd–Frank Wall Street Reform and Consumer Protection Act § 1028(a)", which presents the results of the agency’s study of the use of arbitration agreements in the context of consumer finance agreements for credit cards, checking accounts, payday and other small dollar loans, general purpose reloadable prepaid cards, private student loans, auto purchase loans, and mobile wireless agreements.  The 728-page study is extensive, to ...

Who Determines if Class Arbitration is Available? Why it Matters and Will the Supreme Court Decide

In the wake of several favorable U.S. Supreme Court decisions, companies increasingly are using arbitration agreements to control their exposure to class action liability.  Although recent cases have reinforced the power of arbitration agreements, companies must tread carefully when crafting their arbitration contracts and related class waivers.  In conjunction with giving force to arbitration agreements, the Federal Arbitration Act (“FAA”) limits the federal courts’ ability to review and reverse arbitrator decisions construing those agreements.  The Supreme ...

Defining the power of arbitration agreements has been a hot topic at the federal and state levels for the past couple of years.  In a recent post, we discussed two North Carolina Court of Appeals decisions that validated the reach of the U.S. Supreme Court’s AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011) and Italian Colors v. American Express 133 S.Ct. 2304 (2013) decisions to enforce class arbitration waivers in the State.  In one of those cases, Torrence v. Nationwide Budget Finance, et. al., No. 05- CVS 447 (N.C. Ct. App. Feb. 4, 2014), a question also was raised regarding the ...

Redefining the Power of Arbitration in Unfair Labor Practice Cases: NLRB Solicited Briefs on the Issue

REDEFINING THE POWER OF ARBITRATION IN UNFAIR LABOR PRACTICE CASES: NLRB SOLICITED BRIEFS ON THE ISSUE - In line with recent efforts in the courts to define the scope of power of the arbitral forum, the National Labor Relations Board (NLRB) recently took on the issue of whether to modify the standard it applies to determine whether to defer to an arbitrator’s decision in a matter that presents unfair labor practice issues.  NLRB General Counsel requested that the Board modify the standard to require deferral, so long as it is not repugnant to the Act, if the party seeking deferral ...

D.R. Horton Still Alive: NLRB Judge Says Employer’s Intent to Compel Employees to Waive Class Claims Renders Arbitration Clause Unenforceable Even When there is No Explicit Waiver

Although the Circuit Courts of Appeals that have addressed the issue currently stand united in the view that class arbitration waivers in individual employment contracts do not violate the National Labor Relations Act (“NLRA”), the National Labor Relations Board (“NLRB”) ruling to the contrary in D. R. Horton, Inc. and Michael Cuda, Case 12–CA–25764, 357 NLRB No. 184 (Jan. 3, 2012) continues to drive the invalidation of arbitration agreements in employment agreements.  On January 17, 2014, an NLRB Administrative Law Judge relied on the NLRB’s decision in D.R ...

Beyond the Class Arbitration Waiver: The 9th Circuit View of Concepcion as Broadly Outlawing State Discrimination Against Arbitration

            The U.S. Supreme Court’s decision in AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011) has been the cornerstone of recent jurisprudence validating the use of class arbitration waivers in arbitration agreements to insulate companies from exposure to class action litigation.  Concepcion also has served to bolster the overall strength of arbitration agreements and to illuminate the scope of the preemptive power of the Federal Arbitration Act (“FAA”).  The recent decision by the Ninth Circuit Court of Appeals in Mortensen v. Bresnan Comm’n, LLC, No. 11-35823, 2013 U.S. App ...

The U.S. Supreme Court Ended the Term with an Exclamation Mark at the End of Its Statement on Class Actions and Arbitration: The Amex and Oxford Health Decisions

            The Supreme Court’s October 2012 Term could rightly be named “The Year of the Class Action.”  The High Court received many petitions for review and ultimately issued more than five decisions that tackled issues impacting the landscape of class action practice from questions regarding federal jurisdiction under the Class Action Fairness Act of 2005 to class certification requirements in fraud-on-the-market securities class actions.  Two of the Court’s final class action decisions addressed the impact of arbitration agreements on class actions and class arbitration ...

Save the Last Dance for the Public Injunction: The 9th Circuit’s En Banc Decision in Kilgore v. KeyBank Dances Around Whether AT&T Mobility v. Concepcion Reaches Public Injunction Cases

            In our November, 2012 series, “Once Around the Dance Floor With a Public Injunction, the Vindication of State Rights and AT&T Mobility v. Concepcion,we discussed the potential impact of the impending Ninth Circuit Court of Appeals en banc review of Kilgore v. Keybank Nat’l Ass’n, No. 3:08-CV-02958-THE (N.D.Cal.). (See posts here, here, and here). In the initial appellate review of Kilgore, a Ninth Circuit three-judge panel held that California’s Broughton-Cruz rule that prohibits the arbitration of public injunction claims was preempted by the Federal Arbitration ...

The Fourth Circuit’s View on Class Arbitration Waivers and the Vindication of Statutory Rights: Muriithi v. Shuttle Express, Inc.

            The Fourth Circuit Court of Appeals recently issued a decision placing the AT&T Mobility, LLC v. Concepcion, 131 S.Ct. 1740 (2011) stamp of approval on class arbitration waivers in this Circuit.  In Muriithi v. Shuttle Express, Inc., No. 11-1445, 2013 U.S. App. LEXIS 6464 (4th Cir. Apr. 1, 2013), the Fourth Circuit took on several issues surrounding class arbitration waivers that have been the source of disagreement among lower courts since Concepcion.  The Shuttle Express plaintiff was a shuttle driver for defendant Shuttle Express, a company that provides transportation for ...

The Class Arbitration Waiver is Back at the U.S. Supreme Court: Insights from Arguments in the Amex Federal Antitrust Case

            The line-up of class action cases to be reviewed and ruled upon by the U.S. Supreme Court this year is stacked with heavy hitters.  On the same day that the Court issued its opinion in the Amgen securities fraud class action case (covered in last week's post), the Court heard oral arguments in American Express Co., et al. v. Italian Colors Restaurant, et al., (S.Ct. No. 12-133).  Amex is the first Supreme Court class arbitration waiver case that explores the impact of AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) on federal claims.  The putative class plaintiffs are corporations and a ...

The NC Court of Appeals Finds an “Agreement to Agree” on an Arbitration Panel and Procedures Definite Enough to Form a Binding Contract to Arbitrate under the FAA

            Arbitration under the Federal Arbitration Act (“FAA”) has been the hot topic of many cases in the past few years, with the U.S. Supreme Court having reaffirmed the federal policy favoring arbitration and the preemptive power of the FAA over state laws governing arbitration.  The North Carolina courts are among those that have been petitioned to resolve conflicts regarding the enforceability of arbitration agreements, and the North Carolina Court of Appeals recently issued another arbitration decision that should be of interest to businesses facing disputes in this state.  The ...

NC Court of Appeals Finds That The AAA’s Policy Against Arbitrating Certain Healthcare Disputes Prevents Enforcement of Arbitration Agreement in Wrongful Death Case

            The U.S. Supreme Court recently has reinforced in Marmet Health Care Center, Inc. v. Brown, 132 S. Ct. 1201 (2012) and AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) that the Federal Arbitration Act (“FAA”) prohibits states from categorically excluding certain types of claims from arbitration.  However, companies still may have to contend with the policies of private organizations like the American Arbitration Association (“AAA”) that administer arbitrations and place categorical restrictions on the types of cases they will administer.  In Concepcion, the ...

            The U.S. Supreme Court has issued several decisions over the past few years which have reinforced the federal policy favoring arbitration and have prevented class actions from proceeding against corporate defendants.  Among those decisions was Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S.Ct. 1758 (2010), in which the Supreme Court took steps to preclude class arbitrations by prohibiting arbitrators from ordering the class arbitration of federal antitrust claims where (1) the arbitration agreement was silent on the class issue and (2) the parties stipulated that ...

A Year in the Life of Arbitration and Class Action Litigation: An Update on Significant Developments in 2012

This year we have followed significant developments affecting class action litigation and the force of arbitration agreements.  Many of these developments can be traced to the U.S. Supreme Court’s April 2011 decision regarding class arbitration waivers in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011), while others stem from broader issues related to requirements for certification of class actions, federal/state law preemption, and the viability of arbitration as an alternative forum for dispute resolution.  We have explored the enforceability of class arbitration ...

Once Around the Dance Floor with a Public Injunction, the Vindication of State Rights, and AT&T Mobility v. Concepcion (Concluded)

           Kilgore v. Keybank Nat'l Ass'n, No. 3:08-CV-02958-THE (N.D.Cal.) probes many questions as we already have discussed in our first and second posts, which you can read here and here.  In concluding our discussion, let us consider whether California’s Broughton-Cruz rule should be treated differently from other rules which categorically prohibit the arbitration of claims because the interests at stake in a case seeking public injunctive relief exceed the private interests of the parties to the arbitration agreement?  The California courts took the position that claims seeking ...

Once Around the Dance Floor with a Public Injunction, the Vindication of State Rights, and AT&T Mobility v. Concepcion (Continued)

            In this post, we will continue our discussion regarding Kilgore v. Keybank Nat'l Ass'n, No. 3:08-CV-02958-THE (N.D.Cal.), which soon will be reheard by the Ninth Circuit Court of Appeals en bancKilgore explores the impact of the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) on the validity of arbitration agreements in cases seeking public injunctive relief when there is a state rule that prohibits the arbitration of such claims.  You can read the first part of our discussion here.   

            The Kilgore plaintiff argues in many respects that ...

Once Around the Dance Floor with a Public Injunction, the Vindication of State Rights, and AT&T Mobility v. Concepcion

            “[T]he sometimes delicate and precarious dance between state law and federal law” once again will be performed by the Ninth Circuit Court of Appeals in its en banc review of Kilgore v. Keybank Nat'l Ass'n, No. 3:08-CV-02958-THE (N.D.Cal.).  Kilgore presents another opportunity to define the reach and limitations of the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011), challenging long-standing state and federal policies regarding arbitration and probing the breadth of the preemptive power inherent in the Federal Arbitration Act ...

Query: Whether a Class Arbitration Waiver Can Stand in the Face of Federal Claims and Whether the Vindication of Rights Doctrine Applies to State Law Claims?

The critical inquiry into the breadth and depth of the U.S. Supreme Court’s ruling in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) continues with two Petitions for Writ of Certiorari recently filed in the high court: Buffington et ux. v. SunTrust Banks Inc., S.Ct. case number 12-146, and American Express Co. et al. v. Italian Colors Restaurant et al., S.Ct. case number 12-133.  The decisions of the Second Circuit in Amex and the Eleventh Circuit in Buffington stand juxtaposed, with the Second Circuit having found a class arbitration waiver unenforceable because it was not ...

Will the Supreme Court Answer the Call to Revisit the “Class Arbitration Waiver”?

Discussion regarding the impact of the U.S. Supreme Court’s ruling in AT&T Mobility LLC v. Concepcion has included recognition of the likelihood that Concepcion would not serve as a stamp of approval on all class arbitration waivers – under some circumstances Concepcion likely would not preclude class actions or class arbitrations.  Over the last year, we have watched lower courts and regulatory bodies analyze Concepcion and the validity of class arbitration waivers in a variety of contexts:  state claims vs. federal claims, employment claims vs. consumer claims, antitrust ...

Will Your Arbitration Agreement Survive Bankruptcy?

Several recent U.S. Supreme Court cases have emphasized that there is a strong federal policy in favor of arbitration.  Yet, an arbitration agreement is not impenetrable or always enforceable.  It is beneficial for businesses to understand the areas in which the interest in enforcing arbitration agreements may not be as strong as other interests at issue.  The enforceability of arbitration agreements in the bankruptcy context is one such area, which the U.S. Supreme Court has recently been asked to address.  As it now stands in the Fourth Circuit and several others, an arbitration ...

Lower Courts Probe the Line Drawn by Concepcion: Class Arbitration Waivers and Vindication of Rights

Hypothetical Question: a contract contains an arbitration clause that requires the arbitration of all disputes and also prohibits the parties from arbitrating any claims as part of a class or representative action.  Is the class/representative arbitration waiver enforceable under AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011)?

We discussed that there is a significant possibility that Concepcion will not preclude all class actions.  See here.  Lower courts, both federal and state, are in the process of testing exactly where the line will be drawn.  Several lower courts have ...

From Class Action Waivers to State Administrative Hearing Waivers: How Far is the Reach of Concepcion?

Most are aware of the noteworthy U.S. Supreme Court decision in AT&T Mobility v. Concepcion, 131 S.Ct. 1740, issued on April 27, 2011.  I addressed the implications of Concepcion in a previous blog. Concepcion has generated a lot of discussion and has been feared by some to be the “death knell” of the consumer class action.  But can the reach of Concepcion actually be much farther?  Will Concepcion be labeled the “death knell” of preliminary state administrative hearings as well?  The U.S. Supreme Court’s recent summary disposition of a Petition for Writ of Certiorari in the ...

The U.S. Supreme Court Upholds Class Arbitration Waivers and Arbitration Agreements

Over the last three years, the Supreme Court has issued a number of opinions that have given strength to arbitration agreements. The Court has reiterated that the Federal Arbitration Act (“FAA”) places arbitration agreements on equal footing with other contracts. As a result, corporations will be better able to use arbitration to safeguard against costly and lengthy individual and class actions. On August 5, 2011, I addressed these developments and their impact on corporate clients in the “Class Action Update” presented at the Network of Trial Law Firms “Litigation ...

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Companies are operating in an increasingly globalized and regulated business environment, facing ever-changing and complicated litigation and regulatory challenges. We provide cutting-edge information regarding developments in federal, North Carolina State, and international litigation, as well as in arbitration, regulatory enforcement, and related business practices.

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