In a recent decision, Judge Wood distinguishes Supreme Court precedent to find an arbitration agreement that did not provide for class arbitration invalid under Second Circuit precedent because it foreclosed the exercise of statutory rights. Reaffirming her initial decision, Judge Wood determined defendant's reliance on the intervening decision of AT&T Mobility LLC v. Concepcion ("Concepcion") in seeking reconsideration was misplaced.
The SEC recently published a notice that the Financial Industry Regulatory Authority, Inc. ("FINRA") has proposed a rule change to its Code of Arbitration Procedure for Industry Disputes. The proposal would be a welcome change - the new rule would make collective actions ineligible for FINRA arbitration, just as class actions already are. With the rule change, employees who are registered with FINRA (e.g., stockbrokers, traders, and other employees working in securities businesses) will be able to file and participate in FLSA, ADEA, and EPA collective actions without the threat of being compelled to arbitrate their claims in FINRA's forum.
UPDATE - 1/21/2012 - D.R. Horton filed a notice of appeal of the NLRB order in the U.S. Court of Appeals for the Fifth Circuit.
A recent case out of the U.S. District Court of the Southern District of New York, Raniere v. Citigroup Inc., No. 11 Civ. 2448, 2011 WL 5881926 (S.D.N.Y. Nov. 22, 2011), holds that FLSA collective action waivers are unenforceable--as a matter of law. This a groundbreaking decision that offers a roadmap for defeating collective action waivers in the wake of AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011).