May 2011 By Steven M Schneider and Julianne M Scott

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					MS&K Labor & Employment Newsletter




                          May 2011


                        Is There An End In Sight to Wage/Hour and Other
                        Class Actions Against Employers?

                        By Steven M. Schneider and Julianne M. Scott

                        On April 27, 2011, the U.S. Supreme Court in AT&T Mobility v.
                        Concepcion held that the Federal Arbitration Act ("FAA") preempts
                        a California Supreme Court rule frequently used by California
                        courts to prohibit class action waivers in consumer arbitration
                        agreements. The AT&T Mobility decision has many far-reaching           Q: HOW SHOULD
                        implications, including providing legal support for upholding class    CALIFORNIA EMPLOYERS
                                                                                               REACT TO THE AT&T
                        action waivers in employee arbitration agreements -- which could
                                                                                               RULING?
                        put an end to wage/hour and other class actions against
                        employers who require such a waiver in employee arbitration            A: AS A RESULT OF THE AT&T
                        agreements.                                                            DECISION, EMPLOYERS WHO
                                                                                               HAVE EMPLOYEE
                        In AT&T Mobility, two California consumers, Vincent and Liza           ARBITRATION AGREEMENTS
                                                                                               SHOULD CONSIDER
                        Concepcion, entered into an agreement with AT&T Mobility
                                                                                               INSERTING EXPRESS CLASS
                        ("AT&T") for the sale and service of cell phones. AT&T advertised
                                                                                               ACTION WAIVERS OR
                        that it would provide free phones to purchasers of its cellular        REVISING EXISTING
                        service. While AT&T did not charge the Concepcions for their cell      LANGUAGE REGARDING
                        phones, it did charge them $30.22 in sales tax based on the            CLASS-WIDE CLAIMS.
                        phones' retail value.                                                  MOREOVER, EMPLOYERS
                                                                                               SHOULD CONSIDER ADDING
                        The cellular contract required customers to resolve their disputes     LANGUAGE MAKING CLEAR
                                                                                               THAT ITS ARBITRATION
                        with AT&T in individual arbitration and expressly prohibited class-
                                                                                               AGREEMENTS ARE GOVERNED
                        wide arbitration and litigation. Despite that arbitration agreement,
                                                                                               BY THE FAA. EMPLOYERS WHO
                        the Conceptions filed a federal lawsuit that was consolidated with     IN THE PAST DECIDED
                        a class action case alleging, among other things, that AT&T's offer    AGAINST EMPLOYEE
                        of a "free" phone was fraudulent because of the sales tax charge.      ARBITRATION AGREEMENTS
                                                                                               SHOULD RECONSIDER,
                        Under California law, courts may refuse to enforce any contract        ESPECIALLY IN LIGHT OF THE
                        found "to have been unconscionable at the time it was made" or         HIGH COST OF CLASS
                                                                                               ACTIONS IN ANY FORUM, THE
                        may "limit the application of any unconscionable clause." Cal. Civil
                                                                                               THREAT OF EXTREMELY
                        Code § 1670.5(a). A finding of unconscionability requires "a
                                                                                               BROAD CLASS ACTIONS
                        ‘procedural' and a ‘substantive' element, the former focusing on       UNLESS THE SUPREME
                        ‘oppression' or ‘surprise' due to unequal bargaining power, the        COURT LIMITS THEM IN ITS
                        latter on ‘overly harsh' or ‘one sided' results." Armendariz v.        REVIEW OF DUKES V.
                        Foundation Health Pyschcare Servs., Inc., 24 Cal. 4th 83, 114          WALMART, 605 F. 3D 571 (9TH
                        (2000).                                                                CIR. 2010), AND THE
                                                                                               CONTINUED PROLIFERATION
                                                                                               OF WAGE AND HOUR AND
                        AT&T moved to compel arbitration under the terms of its contract
                                                                                               OTHER CLASS ACTIONS
                        with the Concepcion. The federal district court denied AT&T's
                                                                                               AGAINST CALIFORNIA
                        motion, holding that AT&T's arbitration clause was                     EMPLOYERS.
                        unconscionable. The district court reached this conclusion in
                        reliance upon the California Supreme Court's decision in Discover      Q: IF AN EMPLOYER ADDS
                                                                                               A CLASS ACTION WAIVER
                        Bank v. Superior Court, 36 Cal. 4th 148 (2005), which held that a
                                                                                               TO ITS EMPLOYEE


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MS&K Labor & Employment Newsletter

                        class action waiver in a consumer arbitration agreement is
                                                                                                ARBITRATION
                        unconscionable if the contract is an adhesion (take it or leave it)
                                                                                                AGREEMENTS, HOW
                        contract, the disputes involve a small amount of money, and the         LIKELY IS IT THAT A
                        party with inferior bargaining power alleges a deliberate scheme to     CALIFORNIA COURT WILL
                        defraud. The U.S. Court of Appeals for the Ninth Circuit affirmed       ENFORCE THAT WAIVER
                        the finding of unconscionability.                                       GIVEN CALIFORNIA
                                                                                                PRECEDENT FINDING
                                                                                                CLASS ACTION WAIVERS
                        The U. S. Supreme Court overturned the Ninth Circuit in a 5-4
                                                                                                UNCONSCIONABLE?
                        decision authored by Justice Scalia and joined by Chief Justice
                        Roberts and Justices Alito, Kennedy, and Thomas. The Supreme            A: CALIFORNIA COURTS ARE
                        Court majority concluded that the Discover Bank rule conditioned        SUPPOSED TO FOLLOW THE
                        enforceability of certain arbitration agreements on the availability    AT&T DECISION, BUT AT LEAST
                        of class-wide arbitration and held that the FAA preempts such a         SOME CALIFORNIA COURTS
                                                                                                MIGHT ATTEMPT TO
                        rule because it "stands as an obstacle to the accomplishment and
                                                                                                DISTINGUISH AT&T WHEN
                        execution of the full purposes and objectives of Congress."
                                                                                                CONSIDERING CLASS ACTION
                                                                                                WAIVERS IN THE
                        The Supreme Court majority noted that California strikes down           EMPLOYMENT CONTEXT,
                        arbitration agreements more than other contracts and has                WHICH COULD LEAD TO
                        frequently used the Discover Bank rule to find arbitration              ANOTHER U.S. SUPREME
                        agreements unconscionable. Also, by effectively requiring class-        COURT DECISION. HOWEVER,
                        wide arbitration, the Discover Bank rule increases the complexity       IT SEEMS PRUDENT TO
                                                                                                INCLUDE A CLASS ACTION
                        of arbitration and discourages parties from entering into
                                                                                                WAIVER IN EMPLOYEE
                        agreements to arbitrate. That rule accordingly discriminates in
                                                                                                ARBITRATION AGREEMENTS
                        practice against arbitration, and so undermines the intent of the       NOW RATHER THAN WAITING
                        FAA, which is "to ensure the enforcement of arbitration                 FOR THE ISSUE TO PLAY OUT
                        agreements according to their terms so as to facilitate streamlined     IN THE COURTS, WHICH
                        proceedings. Requiring the availability of class-wide arbitration       COULD TAKE YEARS.
                        interferes with fundamental attributes of arbitration and thus          INCLUDING A CLASS ACTION
                        creates a scheme inconsistent with the FAA."                            WAIVER NOW AT A MINIMUM
                                                                                                SHOULD PROVIDE INCREASED
                                                                                                BARGAINING LEVERAGE IN
                        Justice Stephen Breyer dissented, joined by Justices Ginsburg,
                                                                                                SETTLEMENT DISCUSSIONS,
                        Sotomayor, and Kagan. Justice Breyer argued that the Discover           AND MANY LOWER COURTS
                        Bank rule is not preempted by the FAA because it is merely the          PRESUMABLY WILL UPHOLD
                        result of applying the principle of unconscionability, which also       SUCH WAIVERS IN
                        applies to contracts other than arbitration agreements, and             COMPLIANCE WITH THE AT&T
                        because it does not create a "blanket policy in California against      DECISION.
                        class action waivers in the consumer context" - only some, but not
                                                                                                MS&K'S LABOR AND
                        all, class action waivers in consumer contracts are unconscionable
                                                                                                EMPLOYMENT LAW GROUP IS
                        under the Discover Bank rule.
                                                                                                READY TO ASSIST
                                                                                                EMPLOYERS WHO WANT TO
                        The principles set forth in the AT&T ruling are generally applicable    INCLUDE CLASS ACTION
                        in the employment arbitration context. For example, the California      WAIVERS IN EMPLOYEE
                        Supreme Court in Gentry v. Circuit City relied on Discover Bank to      ARBITRATION AGREEMENTS.
                        find a class action waiver in an employment arbitration agreement
                        unconscionable. It is difficult to discern how the Gentry decision
                        can continue as precedent after the Supreme Court's decision in
                        AT&T.


                        The U.S. Supreme Court has now issued decisions in two
                        successive years that indicate it is likely to interpret the FAA in
                        favor of bilateral arbitration per the express provisions of the
                        parties' arbitration agreement, and disfavor class-wide arbitration.
                        In its earlier decision in Stolt-Nielson v. Animalfeeds International
                        Corp., 130 S. Ct. 1758 (2010), the Supreme Court held that under



http://designs.inherent.com/msk/labor_alerts/MSK_Labor_May_11.htm[5/4/2011 3:10:31 PM]
MS&K Labor & Employment Newsletter

                        the FAA an arbitrator cannot impose class-wide arbitration when
                        the arbitration agreement is silent on that issue.



                                   Labor and Employment Department

                         Anthony J. Amendola       Samantha C. Grant           Julianne M. Scott
                         (310) 312 -3226           (310) 312 -3283             (310) 312 -3277
                         aja@msk.com               scg@msk.com                 jms@msk.com

                         Taylor S. Ball            Jolene Konnersman           Suzanne M. Steinke
                         (310) 312 -3249           (310) 312 -3188             (310) 312 -3286
                         tsb@msk.com               jrk@msk.com                 s1s@msk.com

                         Robyn Cohen               Adam Levin                  Brett Thomas
                         (310) 312 -3201           (310) 312 -3116             (310) 312 -3123
                         rmc@msk.com               axl@msk.com                 bxt@msk.com

                         William L. Cole           Emma Luevano                Veronica von Grabow
                         (310) 312 -3140           (310) 312 -3189             (310) 312 -3208
                         wlc@msk.com               eyl@msk.com                 vtv@msk.com

                         Tracy E. Cox              Lawrence A. Michaels        Mark A. Wasserman
                         (310) 312 -326            (310) 312 -3766             (310) 312 -3174
                         tec@msk.com               lam@msk.com                 maw@msk.com

                         Larry C. Drapkin          Ivan Perkins                Sarah Wirtz
                         (310) 312 -3135           (310) 312 -3295             (310) 312 -3124
                         lcd@msk.com               ibp@msk.com                 stw@msk.com

                         Gayle Goldman             Steven M. Schneider         Jennifer A. Zimbroff
                         (310) 312 -3279           (310) 312 -3128             [(310) 312 -3267
                         gag@msk.com               sms@msk.com                 jaz@msk.com

                         Larry A. Ginsberg
                         (310) 312 -3163
                         lag@msk.com




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                        William L. Cole         Larry C. Drapkin         Anthony J. Amendola
                        Department Head         Practice Chair           Editor
                        Labor &                 Labor &                  Labor & Employment
                        Employment              Employment               Alerts
                        (310) 312 -3140         (310) 312 -3135          (310) 312 -3226
                        wlc@msk.com             lcd@msk.com              aja@msk.com




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                                          New York, NY, 10017                                                 construed as legal advice.

                                                     www.msk.com




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