Archives: Arbitration

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Eleventh Circuit Outlines the Key to an Individual Arbitration Agreement

The Eleventh Circuit recently upheld an arbitration agreement in a consumer class action involving checking overdraft fees. In Johnson v. KeyBank N.A., 11th Cir. No. 15-10779 (Sept. 26, 2017), the plaintiffs brought a putative class action lawsuit claiming defendant KeyBank had improperly sequenced debit card transactions. KeyBank moved to compel arbitration on an individual basis … Continue Reading

Revisiting the Enforceability of Class Action Waivers in Consumer Financial Contracts

The Consumer Financial Protection Bureau (CFPB) has published the final Arbitration Agreements Rule, which impacts the way claims involving consumer financial products and services are handled in the future, including a prohibition against providers of such products and services from relying on a predispute arbitration agreement that includes an arbitration clause barring a consumer from … Continue Reading

Seventh Circuit Throws Out TransUnion’s Clickwrap Agreement and Incorporated Class Waiver

In recent years, and in particular since decisions like AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), a powerful defense to consumer class actions has been arbitration agreements that include class waivers. The Supreme Court’s recent decision in DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463 (2015) reinforces that defense, and assures that the … Continue Reading

U.S. Supreme Court Decides American Express Co. v. Italian Colors Restaurant – Worth The Wait

Co-author: Dustin Dow Editors’ Note: This post was originally published on Baker’s Employment Class Action blog, www.employmentclassactionreport.com, and is reprinted with permission. The U.S. Supreme Court rejected the contention that a class arbitration waiver was unenforceable under the Federal Arbitration Act (“FAA”) when the cost of arbitrating individually would be greater than any potential recovery.  … Continue Reading

New Life for Class Arbitration, or Strategic Mistake in an Isolated Case?

Editors’ Note:  This post originally appeared in Paul’s blog, www.classactionblawg.com, and is reprinted with permission.  For additional insights into the Oxford Health Decision, please see John Lewis’s commentary at the BakerHosetler Employment Class Action Blog. The Supreme Court issued its decision today in the first of two arbitration-related class action cases on the 2012-13 docket.  Today’s decision bucks what had been a … Continue Reading

Supreme Court Hears AMEX Class Arbitration Case

Editors’ Note: This post was originally published at rennerclassactions.com, and is reprinted with permission. The Supreme Court recently heard argument in American Express Co. v. Italian Colors Restaurant, No. 12-133.  The case stems from the Second Circuit’s February 1, 2012 decision that American Express (“AMEX”) could not compel a putative class of merchants to arbitrate their … Continue Reading

Eighth Circuit: FLSA Does Not Preclude Enforcement of Class Action Waiver

In a significant victory for employers, the Eighth Circuit, in Owen v. Bristol Care Inc., No. 12-1719, overturned a Missouri district court ruling that class action waivers were unenforceable in FLSA cases.  In September 2011, Sharon Owen brought an action on behalf of herself and other current and former employees similarly situated, against her employer, … Continue Reading

U.S. Supreme Court Considers Arbitration Clauses and Class Actions Next Year

Co-authored by: Ruth E. Hartman Editor’s Note: This Executive Alert was published by members of BakerHostetler’s Class Action Defense Team. The Supreme Court recently granted certiorari to consider Oxford Health Plans’ appeal of a ruling compelling class arbitration with its providers over the insurer’s payment practices. In Oxford Health Plans LLC v. Sutter, a key … Continue Reading

Class Arbitration Waivers: Supreme Court to Hear AMEX Case

On November 9, 2012, the Supreme Court granted certiorari in American Express Co. v. Italian Colors Restaurant, No. 12-133, on the following question:  “Whether the Federal Arbitration Act permits courts, invoking the ‘federal sustantive law of arbitrability,’ to invalidate arbitration agreements on the ground that they do not permit class arbitration of a federal-law claim.”  … Continue Reading

AMEX Seeks Supreme Court Review of Class Arbitration Waiver Decision

American Express Co. (“AMEX”) filed a petition for certiorari on July 30, 2012 after a Second Circuit panel ruled for the third time that the company could not enforce an arbitration agreement containing a class action waiver against a putative class of merchants who pursued antitrust claims.  American Express Co. v. Italian Colors Restaurant, No. … Continue Reading

Second Circuit Declines En Banc Review in AMEX Arbitration Agreement Case: A Donnybrook Over Class Action Waivers and Vindication of Federal Statutory Rights

Editors’ Note:  This post is a joint submission to Baker’s Class Action Lawsuit Defense and Employment Class Action blogs. On February 1, 2012, a two-judge panel of the Second Circuit reaffirmed its holding in an antitrust action brought against American Express (“AMEX”) that class action waivers involving federal statutory rights were unenforceable.  Largely based on … Continue Reading

Third Circuit Distinguishes Stolt-Nielsen and Allows Class Arbitration

Despite all the predictions that class arbitration would be a thing of the past in the aftermath of the Supreme Court’s decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 130 S. Ct. 1758 (2010), courts continue to distinguish Stolt-Nielsen and allow class arbitration.  In Sutter v. Oxford Health Plans LLC, 2012 WL 1088887 (3d Cir. … Continue Reading

Supreme Court Allows Arbitration Despite Non-Disclosure of a Customer’s Right to Sue

The Supreme Court’s recent decision in CompuCredit Corp. v. Greenwood, 565 U.S. __, 132 S.Ct. 665, 181 L.Ed.2d 586 (2012), found that despite an act requiring a disclosure of a consumer’s “right to sue,” claims under the act would still be arbitrable absent clear congressional intent to the contrary. Plaintiffs held credit cards marketed and … Continue Reading

Class Arbitration: Second Circuit Declines to Enforce Class Arbitration Waiver

Recent Supreme Court holdings appeared to have established that class action waivers in arbitration clauses were enforceable.  However, the Second Circuit, finding that recent jurisprudence inapplicable, held otherwise. On February 1, 2012, the Second Circuit yet again reaffirmed its decision that American Express could not compel a putative class of merchants to arbitrate their antitrust … Continue Reading

Class Arbitration May Not Be Imposed

The Supreme Court’s decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 130 S. Ct. 1758 (2010) significantly narrows the circumstances in which plaintiffs may proceed in arbitration as a class, holding that courts may not impose class arbitration on parties whose arbitration clauses are silent on the issue.  The impact of the Supreme Court’s decision … Continue Reading

Class Arbitration: Supreme Court Holds That FAA Pre-Empts California Law on Unconsciounability of Arbitration Provisions

In determining that the Federal Arbitration Act (“FAA”) preempted a California rule that rendered most class action waiver provisions in consumer arbitration agreements unconscionable, the Supreme Court in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) shed doubt on the continued viability of the class action device in the arbitration context.  Reasoning that … Continue Reading
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