In this long-lived appeal, involving an antitrust tying claim against the American Express Company, the Second Circuit reaffirms its prior holding that an arbitration clause preventing class-action litigation of a medium-dollar claim may be unenforceable if its practical effect is to prevent the plaintiffs from vindicating their statutory rights.
In a recent arbitration decision, a panel of FINRA arbitrators awarded $3.25 million in damages, interest, and costs to a broker who had alleged defamation and other claims against his former employer. The decision (known as an "award") concluded the arbitration proceedings in the case of Gorter v. Questar Capital Corp, FINRA Case No. 08-03514 (award signed Jan. 13, 2012).
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).
Employers like mandatory arbitration policies, and avoidance of judicial review - until they don't. Here's a case from the Second Circuit (decided 2-1) that affirms an arbitrator's interlocutory decision to allow a putative Title VII pay and promotion class action, over the employer's objection that it did not consent to such a procedure.
A Title VII national-origin, race and retaliation opinion, amended and re-published today by the Tenth Circuit, creates a split with the Second Circuit, holding that an labor arbitration award - though admissible to prove or disprove a Title VII or § 1981 claim - does not entitle the award winner to a presumption in its favor in litigation.