Posted On: August 14, 2015 by Michael J. Hassen Email This Post

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Class Action Defense Cases: American Arbitration Association (AAA) Enforces Binding Individual Arbitration While JAMS Allows Plaintiff To Unilaterally Include Dozens Of Employees In Single Arbitration Proceeding (2015)

AAA Requires Separate Arbitration Petitions by Employees Subject to Arbitration Clause with Class Action Waiver but JAMS Permits Plaintiff to Unilaterally Join Dozens of Individual Employee Claims in Single Arbitration

JMBM recently litigated a labor law class action where the employees were bound by arbitration clauses with class action waivers. Some of those agreements require arbitration before AAA. Others required arbitration before JAMS.

JMBM obtained a court order requiring “binding individual arbitration” before JAMS. Plaintiff’s counsel responded by filing an arbitration petition on behalf of 20 individuals. Plaintiff’s counsel also filed another arbitration petition with AAA on behalf of 7 individuals. In other words, plaintiff’s counsel sought to proceed with a “group” arbitration rather than “individual.” We objected.

AAA promptly decided that, as a purely procedural matter, it would not compel our client to participate in a group arbitration over its objection. Because we were not willing to stipulate to such a proceeding, it required plaintiff’s counsel to file 7 separate petitions. It took AAA but a few days to make this decision.

JAMS, on the other hand, took more than a month to conclude that, purportedly as a procedural matter, it would compel our client to participate in a group arbitration over its objection. Even more disturbing than its decision was the process utilized by JAMS to resolve the issue and the reasoning behind it.

As a preliminary matter, it is well established that the scope of an arbitration clause is to resolved either by the court or by the arbitrator. Even plaintiff’s counsel admitted this to be the law. Our disagreement with plaintiff’s counsel centered on our belief that it was a decision for the trial court to resolve under the facts of this case, while they argued that it was a matter for the arbitrator to resolve.

Unable to resolve the procedural question without a legal opinion, JAMS unilaterally appointed one of its mediators to rule on the issue. In other words, rather than appoint an arbitrator to address the issue – a decision that would necessitate all of the required disclosures from the arbitrator and that would provide each side with their right to object to the particular arbitrator being appointed – JAMS put the matter in the hands of a panel mediator. No statute or case authority permits such an individual to rule on the scope of an arbitration clause, but nevertheless JAMS followed this procedure.

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Posted On: August 14, 2015 by Michael J. Hassen Email This Post

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Class Action Defense Cases – Williams v. Superior Court: California Appellate Court Affirms Trial Court Order Limiting Discovery re Putative Class Members To Store Location Where Plaintiff Worked

Plaintiff’s Pre-Class Certification Discovery Request for Contact Information of Putative Class Members Properly Limited to Employees who Worked in the Same Store Location as Plaintiff California Court of Appeal Holds

The decision of the California Court of Appeal in Williams v. Superior Court (Marshalls), No. B259967 (Cal. Ct. App. May 15, 2015) will have California employers breathing a sigh of relief, at least for representative actions involving multiple locations.

In Williams, the California Court of Appeals for the Second Appellate District (which includes Los Angeles County) upheld the decision of the trial court denying Plaintiff’s motion to compel the disclosure of the names and contact information for all putative class members in a representative wage and hour action brought under California’s Private Attorney General Act (“PAGA”).

Plaintiff Michael Williams alleged in his PAGA action that Marshalls failed to provide its employees with meal and rest breaks, accurate wage statements, reimbursement for business-related expenses, and earned wages as required by California law.

At the outset of the case and prior to Plaintiff sitting for his own deposition, Plaintiff served interrogatories seeking production of the names and contact information for all non-exempt employees of Marshalls. Defendant objected to the requests and Plaintiff moved to compel.

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