We previously wrote about the rising trend of mass arbitration and how companies and arbitration providers have responded to it thus far, including by adopting new rules and contract terms specifically geared towards coordinated proceedings. It may be tempting to impose strict controls on how mass arbitrations can proceed. But in considering their options, companies
Third Circuit Confirms Invalidly Assigned Arbitration Agreements May Still Be Enforceable
A recent decision by the Third Circuit examined the circumstances under which an arbitrator must decide gateway questions of arbitrability in cases involving challenged loan assignments. In Zirpoli v. Midland Funding, LLC, the plaintiff took a loan pursuant to a contract that contained an arbitration agreement with a delegation clause. The lender then assigned
Ninth Circuit Panel To Reconsider Whether FAA Preempts California Labor Law
We previously wrote about Chamber of Commerce v. Bonta, 13 F.4th 766 (9th Cir. 2021), in which a split panel of the Ninth Circuit held that the Federal Arbitration Act does not preempt a California Labor Code provision prohibiting employers from requiring applicants or employees “to waive any right, forum, or procedure” for
Emerging Trends: Renewed Wave of Video Privacy Class Actions
Recent months have seen a growing trend of data privacy class actions asserting claims for alleged violations of federal and state video privacy laws. In this year alone, plaintiffs have filed dozens of new class actions in courts across the country asserting claims under the federal Video Privacy Protection Act (“VPPA”), Michigan’s Preservation of Personal
Heartbreakers Gentlemen’s Club Gets Lucky with Arbitration Win in Fifth Circuit
A recent Fifth Circuit decision continues the trend of courts rejecting putative class and collective actions where absent class members are subject to arbitration agreements.
Exotic dancers sued A&D Interests, Inc. (doing business as the “Heartbreakers Gentlemen’s Club”) in a putative Fair Labor Standards Act collective action for allegedly misclassifying the club’s dancers as independent
California District Court Dissects Data Breach Claims, Allowing Some To Proceed
Courts across the country continue to grapple with thorny questions surrounding the legal implications of cyber-attacks. Recently, a federal court in California considered whether a plaintiff could assert a claim against a company when a cyber-criminal acquired his personal information from the company and then used that information to steal his cryptocurrency. The district court
Ninth Circuit Clarifies When Online Arbitration Agreements are Unenforceable for Lack of Consent.
Companies that include arbitration agreements in online terms and conditions may want to take note of a recent Ninth Circuit opinion that refused to enforce an arbitration agreement on lack-of-consent grounds even though the arbitration agreement contained an opt-out provision.
In Berman v. Freedom Financial Network, LLC, the Ninth Circuit affirmed the district court’s
A Closer Look: Avoiding a “Mass”-ive Arbitration Problem
Arbitration agreements have become a fixture of American contracts, and companies have turned to them as a strategy for reducing class action exposure. In recent years, plaintiffs have responded by initiating “mass arbitrations” – individual arbitrations filed on behalf of hundreds or thousands of customers or employees, which may immediately threaten companies with millions of dollars in arbitration-initiating fees alone. Many companies, however, have been slow to react to the risks posed by mass arbitration. This post discusses some of those risks, the difficulties companies have encountered in trying to address this issue, and potential strategies for mitigating the threat posed by mass arbitration.
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A Closer Look: Standing at Class Certification After TransUnion v. Ramirez
Last year, in TransUnion LLC v. Ramirez, 141 S.Ct. 2190 (2021), the Supreme Court confirmed that every class member must have Article III standing to recover damages in a class action. As we have previously written, the Court’s decision – summed up as “[n]o concrete harm, no standing” – presents major obstacles to plaintiffs asserting class claims based on “bare procedural violation[s]” of statutes. But Ramirez left unanswered some important questions about class action standing, and we offer some thoughts here on what the answers are likely to be.
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