Ninth Circuit Rejects Challenge To A.B. 5, And Holds That Disparate Treatment Of Gig Workers Is Justified By California’s Interest In Curbing Independent Contractor Misclassification

By Eden E. Anderson, Rebecca S. Bjork, and Gerald L. Maatman, Jr.

Duane Morris Takeaways:  On June 10, 2024, the Ninth Circuit issued its en banc opinion in Olson, et al. v. State of California, et al., Case No. 21-55757, 2024 WL 2887392 (9th Cir. June 10, 2024).  The en banc panel affirmed the dismissal of the Plaintiffs’ lawsuit challenging the constitutionality of A.B. 5, which mandates application of the “ABC test” for independent contractor classification to workers in certain industries.  The Ninth Circuit found no equal protection violation in applying the “ABC test” to certain gig workers, yet applying the easier-to-satisfy “Borello” test to other gig workers. 

California employers in industries subject to A.B. 5 and its more rigorous “ABC test” for independent contractor classification should take heed of the Olson ruling. 

Case Background

Postmates, an application-based goods delivery platform, Uber, and two individual workers for those companies sued the State of California and Attorney General of California seeking declaratory and injunctive relief based on the allegation that A.B. 5 violates the Equal Protection Clauses, the Due Process Clauses, and the Contract Clauses of the United States and California Constitutions.  They sought a preliminary injunction to prevent enforcement of A.B. 5.

Enacted in 2018, A.B. 5 codified and expanded upon the California Supreme Court’s holding in Dynamex Operations W., Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018), which held that the “ABC test” applies in determining the proper classification of workers as independent contractors or employees under California wage orders.  Under A.B. 5, subject to specified exemptions, the “ABC test” applies beyond the wage orders to other labor and employment legislation, including workers’ compensation, unemployment insurance, sick and family leave, and disability insurance.

The “ABC test” is, as its name suggests, is comprised of three parts, with the burden being on the hiring entity to show, A: the worker is free from the control and direction of the hirer, B: the worker performs work outside the usual course of the hiring entity’s business, and C: the worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed for the hiring entity.  This test is more challenging to meet that the traditional “Borello” test that was applied prior to A.B. 5’s enactment, which considers a larger number of factors, with the focus being the hiring entity’s right to control the manner and means of the work.

One statutory exemption from A.B. 5’s coverage applies to “referral agencies,” i.e., businesses that provide clients with referrals to service providers.  However, A.B. 2257, enacted in 2019, modified this exemption to carve-out referral agencies, like Uber and Postmates, that provide delivery, courier, or transportation services.  Consequently, categories of referral agencies are treated differently under the law, with referral agencies like Postmates and Uber subject to the “ABC test,” and referral agencies that provide other services, for example, Wag!, a dogwalking service, and TaskRabbit, which provides on-demand help with daily tasks, subject to the easier-to-meet “Borello” test.  It was that differential treatment that Plaintiffs alleged was unconstitutional.

The district court denied Plaintiffs’ motion for preliminary injunctive relief, concluding that A.B. 5 was rationally related to a legitimate state interest.  While Plaintiff’s’ appeal of that ruling was pending, California voters approved Proposition 22, a ballot initiative that classifies rideshare and deliver drivers as independent contractors, notwithstanding A.B. 5.  Thereafter, the district court dismissed the lawsuit, and Plaintiffs’ appealed that ruling too.

A three-judge panel of the Ninth Circuit reversed, in part, concluding that the district court erred by dismissing the Equal Protection claims.  However, the Ninth Circuit then granted rehearing en banc.

The Ninth Circuit’s En Banc Opinion

The Ninth Circuit first noted, as some readers may be wondering, that Proposition 22 did not moot the appeal because Postmates and Uber were still facing a number of claims for alleged violations of A.B. 5 that predated Proposition 22’s passage.

The Ninth Circuit then addressed the Equal Protection claim.  It explained that, even if it were true that the application-based business models of Postmates, Uber, Wag!, and TaskRabbit were similar, there were rational reasons for applying a different worker classification test to workers that provide delivery, courier, or transportation services.  Such disparate treatment was rational because Postmates and Uber were seemingly perceived by the legislature as “substantial contributors” to the ills that A.B. 5 sought to remedy, including worker misclassification and “erosion of the middle class,” and were pioneers in the on-demand-app-based industry whose business models others might try to replicate.  Id. at p. 21-22.  The Ninth Circuit further emphasized that, for a “referral agency” like Wag! or TaskRabbit to be exempt from A.B. 5, it needs to satisfy multiple requirements, so the availability of the referral agency exemption remains “limited.”  Id. at 23.

The Ninth Circuit further opined that, even though A.B. 5 contains many exemptions, it is entirely rational for the ABC test to apply in some contexts, and for the Borello test to apply in others, because the legislature supposedly wanted the ABC test to apply in industries where worker misclassification was historically problematic (and not because certain industries successfully pushed through legislative exemption).

Implications Of The Decision

We anticipate U.S. Supreme Court review will be sought.

The Olson opinion deals a blow to efforts to challenge A.B. 5’s enforcement.  California employers in industries subject to A.B. 5 must satisfy the more rigorous ABC test to establish they have properly classified workers as independent contractors, whereas employers in industries not subject to A.B. 5 bear a lesser burden under the Borello test.  That differential treatment is, in the Ninth Circuit’s view, constitutionally sound.

California Court Of Appeal Finds California Law Imposing Forfeiture Of Arbitration Rights For Late Payment Of Arbitration Fees Is Preempted By The FAA

By Eden E. Anderson, Rebecca S. Bjork, and Gerald L. Maatman, Jr.,

Duane Morris Takeaways:  On May 22, 2024, the California Court of Appeal held in Hernandez v. Sohnen Enterprises, Inc., 2024 WL 2313710 (Cal. App. May 22, 2024), that the Federal Arbitration Act (“FAA”) preempts the California Arbitration Act’s provisions that impose forfeiture of the right to arbitration for late payment of arbitration fees.  Although employers should continue to closely monitor and fully adhere to arbitration fee payment deadlines, the Hernandez decision recognizes that mistakes can occur and should not result in the overly harsh penalty of forfeiture of the arbitral forum.  The decision creates a split of authority within the California Courts of Appeal that may ultimately need to be resolved by the California Supreme Court.

Case Background

After Hernandez initially filed various claims against her employer in court, the parties stipulated to move the claims into arbitration and to stay the court case.  The applicable arbitration agreement provided that it was governed by the FAA and that the Federal Rules of Civil Procedure (“FRCP”) would apply in arbitration.  After Hernandez’s demand was filed in arbitration, JAMS requested payment from the employer of its share of the filing fees.  The employer paid those fees one week past the 30-day statutory deadline of Section 1281.97 of the California Code of Civil Procedure (“Section 1281.97”).  Hernandez then filed a motion to withdraw from arbitration and to lift the stay of the court case.

The trial court granted the motion. It concluded that the employer’s late payment of arbitration fees was a material breach of the arbitration agreement.  The court also imposed monetary sanctions against the employer.  The employer appealed on the basis that the arbitration agreement was governed by the FAA and that the FAA preempted Section 1281.97.

The Court Of Appeal’s Decision

The Court of Appeal reversed.  It held that, because the parties agreed that the FAA and FRCP would apply to the arbitration agreement and in arbitration, the procedures of the California Arbitration Act, including Section 1281.97’s 30-day arbitration fee payment deadline, did not apply.  Additionally, the Court of Appeal held that, even if Section 1281.97 applied, it was preempted by the FAA.

Under the FAA and its “equal treatment” principle, arbitration agreements must be treated the same as any other contract and can only be invalidated based on generally applicable contract defenses.  The Court of Appeal held that Section 1281.97 violated this equal treatment principle because it mandates a finding of material breach (and resulting waiver of the right to arbitration for late payment of arbitration fees) that would not apply generally to all contracts.  The Court of Appeal noted that, ordinarily, a party to a contract can argue substantial compliance, but Section 1281.97 precludes such an argument because it mandates strict adherence to fee payment deadlines.  Additionally, the Court of Appeal found that Section 1281.97 frustrates the FAA’s objective of cheaper, more efficient resolution of disputes by increasing the overall cost of litigation and wasting resources already invested in arbitration.

Implications Of The Decision

The Hernandez decision marks the first time the California Court of Appeal has held that Section 1281.97 is preempted by the FAA.  The decision creates a split in authority amongst the California Courts of Appeal.  Other appellate courts in California have concluded that Section 1281.97 promotes the goals of the FAA because, in requiring prompt payment of arbitration fees, arbitrations can proceed without delay.  Employers must continue to closely monitor arbitration fee payment deadlines to ensure timely payment.  However, if a mistake happens, the Hernandez case may, if followed by trial courts, provide relief so long as the applicable arbitration agreement makes clear that the FAA and federal law, and not the California Arbitration Act or California law, govern.

U.S. Supreme Court Holds That Judges, And Not Arbitrators, Must Decide Whether Contracting Parties Agreed To Delegate Arbitrability Issues To An Arbitrator

By Eden E. Anderson, Rebecca S. Bjork, and Gerald L. Maatman, Jr.

Duane Morris Takeaways:  On May 23, 2024, the U.S. Supreme Court issued its decision in Coinbase, Inc. v. Suski, Case No. 23-3 (2024).  The Supreme Court held that, where parties have agreed to two contracts — one sending arbitrability disputes to arbitration, and the other sending arbitrability disputes to the courts — a judge (and not an arbitrator) must decide which contract governs.  Thus, if a company rolls out successive contracts containing inconsistent terms regarding the forum for dispute resolution, a court will decide which of the two contracts applies.  Companies with arbitration programs should take heed of the decision, and make sure that the wording of later issued contracts do not impair previously existing contractual rights to compel disputes to arbitration.  

Case Background

Coinbase operates a cryptocurrency exchange platform where users can buy and sell cryptocurrency.  Coinbase offered a sweepstakes that users could enter for a chance to win cryptocurrency.  In connection with the sweepstakes, users filed a class action complaint alleging that the sweepstakes violated various California consumer protection statues.

Citing an arbitration clause in the User Agreement, Coinbase moved to compel arbitration and to dismiss the class claims based on a class action waiver contained therein.  The arbitration clause in the User Agreement included a delegation clause and, per that provision, an arbitrator was to decide whether a given dispute was arbitrable.  The users argued that the court, and not an arbitrator, should decide the arbitrability issue.

In support, the users cited a second contract — the Official Rules — they had agreed to in connection with the sweepstakes.  In contrast to the earlier executed User Agreement, the Official Rules contained a forum selection clause providing that all disputes related to the sweepstakes had to be decided in California courts.  The users also argued that the Official Rules superseded the User Agreement and its arbitration and class action waiver provision.  Coinbase responded that the delegation clause in the User Agreement was meant to govern all agreements moving forward and that the issue of arbitrability should be left in the hands of an arbitrator, and not the court.

The district court denied Coinbase’s motion to compel arbitration and the Ninth Circuit affirmed.  Both reasoned that deciding which contract governed was a question for the court, and not an arbitrator, to answer; that the User Agreement’s arbitration provision conflicted with the forum selection clause in the Official Rules; and that the Official Rules superseded the User Agreement.

The U.S. Supreme Court then granted review to answer the question of who — a judge or an arbitrator — should decide whether a subsequent contract supersedes an earlier arbitration agreement that contains a delegation clause.

The Supreme Court’s Decision

The Supreme Court held that, where parties have agreed to two contracts — one sending arbitrability disputes to arbitration, and the other sending arbitrability disputes to the courts — a court must decide which contract governs.  By contrast, in cases where only one contract is at issue, and that contract contains an arbitration clause with a delegation provision, courts must send all arbitrability disputes to arbitration, absent a successful challenge to the delegation clause.

Thus, the Supreme Court determined that it was correct for the district court (and the Ninth Circuit) to have determined which contract governed the claims concerning the sweepstakes.  Although Coinbase sought to challenge the Ninth Circuit’s ruling that the Official Rules superseded the User Agreement, the Supreme Court declined to consider that issue.

Implications Of The Decision

The Suski decision serves as a cautionary reminder to companies that roll-out successive contracts that bear on the forum for dispute resolution.  A court’s task is to determine what the parties’ agreement was or if a contract was not formed.  If an earlier contract contains an arbitration clause with a delegation provision, but a later contract does not and refers disputes to the courts, it will be up to a judge to decide which contract governs.

Anytime a company issues successive contracts addressing topics such as the forum for disputes, it is important to ensure there is consistency in the forum selected or else the right to arbitration and dismissal of class claims (based on a class action waiver) may be lost.


U.S. Supreme Court Settles Circuit Split And Holds That District Courts Granting Motions To Compel Arbitration Do Not Have Discretion To Dismiss Underlying Lawsuits And Must Stay Them

By Eden E. Anderson, Rebecca Bjork, and Gerald L. Maatman, Jr.

Duane Morris Takeaways: On May 16, 2024, the U.S. Supreme Court issued a unanimous decision holding that when a district court determines that the claims in a lawsuit are arbitrable and a party has requested a stay of litigation, the district court does not have discretion to dismiss the lawsuit.  The decision resolves a split amongst the federal circuit courts over whether Section 3 of the Federal Arbitration Act (“FAA”) mandates a stay in such circumstances by use of the word “shall” in that provision.  The Supreme Court reasoned from established canons of statutory interpretation as well as the structure and purpose of the FAA compelled the result in the case. The decision will likely result in a situation where disputes between parties in an arbitral proceeding will more often be brought to the attention of the district court to resolve. 

Case Background

The case arrived at the Supreme Court via the Ninth Circuit which considered in Forrest v. Spizzirri, 62 F.4th 1201 (9th Cir. 2023), whether, under the FAA, a lawsuit should be dismissed or stayed after all the plaintiff’s claims are compelled to arbitration.

The plaintiffs were delivery drivers who sought to maintain wage-and-hour claims against their former employer for allegedly misclassifying them as independent contractors.  Although the plaintiffs agreed their claims were subject to arbitration, they disagreed that their lawsuit should be dismissed and asked the district court to instead stay the case pending arbitration.  According to the plaintiffs, the FAA mandates a stay to protect rights in the existing lawsuit and preserve judicial supervision while an arbitration is ongoing.  The district court disagreed. It dismissed the lawsuit without prejudice, and the Ninth Circuit affirmed.  Although Section 3 of FAA states that the court “shall” stay the trial of an action pending arbitration, the Ninth Circuit held that district courts have discretion to instead dismiss a lawsuit after all claims have been ordered to arbitration.

The U.S. Supreme Court’s Decision

The Supreme Court unanimously reversed the Ninth Circuit and embraced the position the plaintiff delivery drivers took in the district court – that their lawsuit should be stayed and not dismissed pending arbitration.  Justice Sotomayor wrote the opinion for the Supreme Court.

The Opinion is concise, tightly reasoned, and less than six pages long.  The Supreme Court begins its analysis – after describing the parties and how the case arrived on their docket – with a straightforward statement of the conclusion that “[i]n this statutory interpretation case, text, structure, and propose all point to the same conclusion,” which is that “a district court does not have discretion to dismiss a suit on the basis that all the claims are subject to arbitration.”  (Slip Op. at 3.)  Then, the Opinion explores each of those sources of interpretation and explains why they lead to the outcome reached.

The text of the FAA on this issue appears in Section 3, and it states that when any issue in a lawsuit is subject to arbitration, the district court “shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.”  (Slip Op. at 4.)  The Supreme Court concluded that “shall” is “plain statutory text [that] requires a court to stay the proceeding.”  (Id.)  The Supreme Court noted that the word “shall” also appears “in neighboring sections of the FAA” and it previously found those sections “created a mandatory obligation that left no place for the exercise of discretion by a district court.” (Id.)  The Supreme Court concluded that “The same is true here.”  (Id.)

Moreover, “just as ‘shall’ means ‘shall,’ ‘stay’ means ‘stay,” according to the Court.  (Id.)  Therefore, it rejected the argument of the employer that stopping the parallel in-court proceedings during the arbitration is what matters, and it is equally achieved by an order of dismissal without prejudice.  The Supreme Court noted that in 1910, when Congress passed the FAA, Black’s Law Dictionary defined a “stay” as a temporary suspension of legal proceedings, which is at odds with an outright dismissal.  (Id. at 4-5.)

As for the structure and purpose of the FAA, the Supreme Court found that they also supported interpreting Section 3 as mandating stays in this situation.  The fact that Congress chose to provide an automatic interlocutory appeal of a denial of a motion to compel arbitration in Section 16, but did not do so for grants of motions to compel arbitration supports the conclusion that Congress intended to move arbitrable disputes out of courts and into arbitration as quickly and easily as possible.  (Id. at 5-6.)  But a dismissal triggers the right to an immediate appeal, which Congress clearly sought to avoid in drafting Section 16 of the FAA.

Finally, the Supreme Court explained that stays are preferable to dismissal orders in arbitration cases because they will allow federal courts to maintain jurisdiction to resolve disputes between the parties that may arise more smoothly. (Id.)

Implications Of The Decision

This decision by the U.S. Supreme Court precluding district courts from dismissing suits without prejudice after granting motions to compel arbitration will have the benefit of providing a uniform national standard in this ever important area of the law.  It also may well have the effect the Court seems to desire, e.g., ensuring that arbitrations are able to proceed quickly and smoothly by ensuring the district judge remains in the background to resolve disputes as they arise.  But that same virtue could amount to a vice, in that it may create an incentive for participants in arbitration to attempt to avoid the arbitrator by going to the court.  The following months should provide a hint of whether the Court’s predictions come true.

U.S. Supreme Court Holds That Application Of The FAA’s Transportation Worker Exemption Turns Upon The Work Performed And Not The Employer’s Industry

By Eden E. Anderson, Rebecca S. Bjork, and Gerald L. Maatman, Jr.

Duane Morris Takeaways:  On April 12, 2024, the U.S. Supreme Court issued its decision in Bissonnette v. LePage Bakeries Park St., LLC, Case No. 23-51 (U.S. Apr. 12, 2024), holding that application of the transportation worker exemption in the Federal Arbitration Act (“FAA”) turns upon the work performed by the plaintiff and not the employer’s industry.  The Supreme Court made clear, however, that this work-focused test should not bring within the exemption large swaths of workers who in some manner engage with products in the flow of commerce.  The Supreme Court opined that the worker at issue must play a “direct” and “necessary” role in the free flow of goods across borders.  Id. at 9. For employers with workplace arbitration agreements, the Supreme Court’s ruling is a required read.

Case Background

The defendant in Bissonnette produced and marketed baked goods, with its products made in 19 states and distributed across the country.  The plaintiffs were franchisees who contracted with the defendant to distribute the products in local markets.  The plaintiffs also advertised the products, identified retail buyers, and performed services for those retailers, including stocking and inventory.  When the plaintiffs filed a putative wage and hour class action, the defendant sought to compel arbitration and to dismiss the class claims, citing a contractual arbitration provision with a class action waiver.

The district court granted the motion and the Second Circuit affirmed.  The Second Circuit reasoned that, because the plaintiffs’ work was performed in the baking industry and not the transportation industry, the FAA’s transportation worker exemption did not apply.  The transportation worker exemption provides that the FAA “shall not apply to contracts of employment of seamen, railroad employees, or any other class of worker engaged in interstate commerce.”  9 U.S.C. § 1.

Immediately after that decision, the U.S. Supreme Court issued its decision in Southwest Airlines Co. v. Saxon, 596 U.S. 450 (2022), wherein it held that the test to be employed in assessing application of the transportation worker exemption is based on the work performed by the plaintiff and not the employer’s industry.  Nonetheless, on panel re-hearing, the Second Circuit adhered to its prior decision on the grounds that the transportation worker exemption still did not apply because the defendant’s business was to distribute baked goods into commerce and not transportation services.

The U.S. Supreme Court then granted review.

The Supreme Court’s Decision

As it did in Saxon, the Supreme Court emphasized in Bissonnette that the test for application of the transportation worker exemption focuses on the work performed by the plaintiff and not the employer’s industry.  Addressing the employer’s argument that such a test would make virtually all workers who load or unload goods, such as pet shop employees and grocery store clerks, exempt transportation workers, the Supreme Court disagreed. It determined that the exemption has never been interpreted to apply in such a limitless basis.  The Supreme Court emphasized that, for the exemption to apply, the worker “must at least play a direct and necessary role in the free flow of goods across borders.”  Bissonnette, at 9.  The Supreme Court thus vacated the order compelling arbitration and remanded for further proceedings.

Implications Of The Decision

Seemingly feeling its decision in Saxon was being misapplied, the Supreme Court’s ruling in Bissonnette confirms that the FAA’s transportation worker exemption turns upon the work the plaintiff performs and not on the employer’s industry.  Thus, an employer cannot seek to compel arbitration and avoid application of the transportation worker exemption by arguing that it is not in the transportation industry.  Rather, an employer’s arguments against application of the exemption must focus on the work the plaintiff performs.

New York Federal Court Grants Motion To Compel Arbitration Of Putative Class Action Unpaid Overtime Claims Based On Employee Handbook

By Gerald L. Maatman, Jr., Maria Caceres-Boneau, and Gregory S. Slotnick

Duane Morris Takeaways: On March 6, 2024, Judge Joanna Seybert of the U.S. District Court for the Eastern District of New York in Hernandez v. RNC Industries, LLC, et al., Case No. 2:21-CV-04518 (E.D.N.Y. March 6, 2024), issued an order granting a motion to compel arbitration and held that a plaintiff’s putative class action claims for unpaid overtime wages and other wage-related violations were subject to an enforceable arbitration agreement compelling arbitration of such claims on an individual basis.  The decision comprehensively summarizes the current state of the law concerning motions to compel arbitration in the Second Circuit.  It also provides a timely example of the importance for employers to maintain well-drafted arbitration provisions and related language in employee handbooks and other company policy acknowledgment forms (in both English and workers’ native languages) to effectively limit filed putative class actions down to individual claims. 

Case Background

As summarized in Judge Seybert’s opinion, the Plaintiff brought a putative class action in federal court in New York against his former employer, seeking allegedly unpaid overtime wages under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”), as well as related NYLL claims for failure to provide required wage notices and wage statements.  Id. at 1-2.  On February 4, 2022, Defendants moved to compel arbitration and stay or dismiss the complaint.  Id. at 2.

As to the relevant background facts, the Court stated that the parties dispute when Plaintiff began working for Defendant – Plaintiff claims the time period was approximately March 2018 through September 2020, while Defendants contend that Plaintiff began working for them in May 2019 based on Plaintiff’s signature on I-9 and pay rate notice forms on May 22, 2019.  Id. at 2.  Plaintiff also executed a “Receipt of Employee Handbook Form” on May 22, 2019, which stated (in both English and Spanish), in relevant part: “I also understand that this handbook contains a mandatory arbitration provision with a class action waiver and that by accepting and/or continuing my at-will employment I agree to the binding arbitration provisions set forth in this handbook.”  Id. at 2-3.  Plaintiff signed and dated his assent to the contract’s terms.  Id. at 3.

The arbitration provision in the Employee Handbook explicitly stated that “[a]ll claims from potential, current or former employees of [Defendant] accruing at any time pursuant to…any claims for monies that may have been owed for back wages, vacation, overtime, prevailing wage or minimum wage claims, including claims under the Fair Labor Standards Act, the New York State Labor Law or similar law… (collectively “Covered Claims”) must be submitted to binding arbitration before the American Arbitration Association”.  Id. at 3-4.  The arbitration provision continued: “No party shall have the right to bring or participate in a class, collective or other representative proceeding concerning any Covered Claim in any forum including any court of law or arbitration.  To be clear all Covered Claims submitted to arbitration must be handled on a singular individual basis.”  Id. at 4.

Plaintiff claimed he was never provided with Defendant’s Employee Handbook and did not know it existed – instead he only recalled signing three documents in May 2019 that Defendant told him were “registration-related OSHA documents.”  Id.  Plaintiff further alleged that no one told him that by signing any of the documents, he would not be able to bring a future lawsuit against Defendant, and that he was unable to understand the documents he signed because he could not speak, read, or write in English.  Id.

The Court’s Decision

The Court began by citing to the Federal Arbitration Act’s standards and mandate that courts “direct the parties to proceed to arbitration on issues to which an arbitration agreement has been signed.”  Id. at 5 (citing Daly v. Citigroup, Inc., 939 F.3d 415, 421 (2d Cir. 2019)).  The Court noted that in order to determine whether to compel arbitration upon the filing of a motion to compel, it must determine: (i) whether the parties agreed to arbitrate; (ii) the scope of the agreement; and (iii) if federal statutory claims are asserted, whether Congress intended those claims to be non-arbitrable.  Id. at 5-6.  The Court further reasoned that as part of its determination, it must draw all inferences in favor of the non-moving party and if there is a disputed issue of material fact, such as the making of an arbitration agreement, the Court shall proceed summarily to the trial thereof.  Id. at 6 (internal citations omitted).  Where a party “categorically and specifically” denies signing an arbitration agreement, that evidence creates an issue of triable fact whether the agreement is enforceable; however, where a party merely states they cannot recall signing the agreement or makes assertions based on speculation or that are conclusory, no genuine issue of material fact exists.  Id. at 6-7 (internal citations omitted).

The Court’s analysis first concluded that the arbitration agreement at-issue in the case was valid.  In response to Plaintiff’s arguments, Defendants asserted that Plaintiff’s signed acknowledgement that he received the Employee Handbook containing a binding arbitration provision was conclusive evidence that he knew the handbook’s contents and assented to them; the arbitration agreement was explicit and contained no temporal limits; and Plaintiff’s claims he was not aware of the agreement’s contents or was misled regarding same had no merit since he received the Receipt of Employee Handbook Form in his native language (Spanish).  Id. at 7-8.

The Court found that Plaintiff did not create a question of material fact as to whether the arbitration agreement was enforceable.  Id. at 8.  In support of its conclusion, the Court cited to the fact that Plaintiff did not deny signing the Receipt of Employee Handbook, which stated (in Spanish): “I also understand that this handbook contains a mandatory arbitration provision with a class action waiver and that by accepting and/or continuing my at-will employment, I agree to the binding arbitration provisions set forth in this handbook”.  Id.  Moreover, the Court noted that none of the “registration documents” Plaintiff signed, and claims he was misled into signing, fit the description of the Receipt of Employee Handbook Form.  Id.

The opinion cited Second Circuit case law holding that where a Plaintiff merely states he cannot recall signing an agreement as opposed to denying he has done so, such declaration generally fails to create a triable issue of fact regarding the enforceability of an arbitration agreement.  Id. at 9 (internal citations omitted).  Here, Plaintiff’s statement that “to his knowledge” he did not sign documents concerning not being able to bring a future lawsuit against Defendants was not an “unequivocal denial” that such a contract was made.  Id.  Moreover, under New York contract law, Plaintiff was deemed to have accepted the arbitration policy by continuing to work after being advised it was his responsibility to read and understand all company policies, including the arbitration policy.  Id. at 10.  According to the opinion, Plaintiff agreed by signing (and not disputing his signature of) the Receipt of Employee Handbook Form that he received and read a copy of the Employee Handbook and also that it is his responsibility to keep himself appraised of any changes to the policy.  Id.  As such, the Court rejected Plaintiff’s argument that his non-receipt of the Employee Handbook somehow invalidates his agreement to arbitrate.

The Court also ruled that under New York law, a party is not excused from failure to read and understand the contents of a document signed by the party, and that the Second Circuit rejects the notion that a language barrier could prevent the enforcement of contractual obligations.  Id. at 11-12 (internal citation omitted).  Moreover, after finding that the parties agreed to arbitrate, the Court confirmed that the arbitration provision covered Plaintiff’s claims under the FLSA and NYLL, all of which are arbitrable.  Id. at 12-13.  The Court granted Defendants’ motion to compel arbitration and stayed the litigation pending the outcome of arbitration.  Id. at 15.

Implications For Businesses

Hernandez serves as timely reminder of just how important a sound arbitration agreement and related company policies and acknowledgement forms can be in the event of a filed class action litigation in court.  Here, the Court pointed to Defendants’ clear and articulable policies in granting a motion to compel arbitration of Plaintiff’s claims on an individual basis and cut down the potential class exposure in its entirety at the outset.  Not only did Defendants maintain an enforceable arbitration agreement, but also it further locked Plaintiff into the agreement by citing to the agreement to arbitrate with language in its Receipt of Employee Handbook Form.  Critically, the Receipt of Employee Handbook Form was provided to the Plaintiff in both English and his native language (Spanish), and he signed and dated it.  In light of these additional defenses, Plaintiff’s failure to recall signing the documents and other claims that no one informed him he would be barred from suing Defendants in the future by signing failed to defeat Defendants’ motion to compel.  Employers in the Second Circuit should use this decision as a roadmap for arbitration agreement and policy best practices.

Seventh Circuit Affirms Minors Are Not Parties Bound To Arbitrate Claims In GIPA Class Action

By Gerald L. Maatman, Jr., Derek S. Franklin, and George J. Schaller

Duane Morris Takeaways: In Coatney, et al. v. DNA, LLC, No. 22-2813, 2024 U.S. App. LEXIS 3584 (7th Cir. Feb. 15, 2024), the Seventh Circuit affirmed the district court’s denial of Ancestry’s motion to compel arbitration on the grounds that minors were not parties to arbitration agreements entered by their guardians and the Defendant.  Circuit Judge Michael B. Brennan wrote the opinion of the Seventh Circuit panel.

For companies facing class actions under the Illinois Genetic Information Privacy Act (“GIPA”) involving alleged disclosure of confidential genetic information, this ruling is instructive on dispute resolution provisions and how drafting those provisions can dictate who is bound to arbitrate claims.

Case Background

Defendant, DNA, LLC (“Ancestry”) is a genealogy and consumer genomics company that allows users to create accounts to purchase DNA test kits, which Ancestry collects consumer saliva samples.  Id. at 2.  Ancestry takes these samples, analyzes the genetic information, and then returns genealogical and health information to the purchaser through its website.  Id.  In 2020, Blackstone, Inc. acquired Ancestry.

Only adults may purchase or activate a DNA test kit, and purchasers must agree to Ancestry’s terms and conditions before purchasing and activating a test kit.  Id.  However, minors thirteen to eighteen years old may still use Ancestry’s DNA service as long as a parent or legal guardian purchases and activates the test kit, and sends in the minor’s saliva sample using an account managed by the child’s parent or guardian.  Id.

Between 2016 and 2019, guardians purchased and activated test kits on behalf of the Plaintiffs, who were all minors at the time.  Id. at 2-3.  Each guardian agreed to consent terms (“Terms”) concerning the use of each minor’s DNA test kit.  Id. at 3.  The terms contained a dispute resolution provision binding the parties to arbitration and waiving any class actions.  Id.  However, the Terms did not require Plaintiffs to read themPlaintiffs alleged that they did not, and that they also did not create the Ancestry accounts.  Id. at 4.

Plaintiffs, on behalf of themselves and a putative class of similar members, filed suit against Ancestry in Illinois federal court alleging violations of the Illinois GIPA.  Id.  Plaintiffs alleged that, as part of Blackstone’s 2020 acquisition of Ancestry, Ancestry disclosed genetic test results and personal identifying information to Blackstone without obtaining written authorization.  Id. 

Ancestry responded by moving to compel arbitration under the Terms dispute resolution provisions.  Id. at 5.  The district court denied Ancestry’s motion.  First, the district court found that Plaintiffs did not assent to Ancestry’s Terms through their guardians’ accounts or their guardians’ execution of consent forms on Plaintiffs’ behalf.  Id.  Second, the district court determined equitable principles such as the theory of direct benefits estoppel did not bind Plaintiffs, as there were no allegations that Plaintiffs accessed their guardians’ Ancestry accounts or their DNA test results.  Id. 

As a result, Ancestry filed an interlocutory appeal with the Seventh Circuit for review of the district court’s decision.  Id.

The Seventh Circuit’s Decision

The Seventh Circuit affirmed the district court’s decision.  On appeal, Ancestry urged the Seventh Circuit to reverse the district court’s denial of its motion to compel on three grounds, including: (1) Plaintiffs’ guardians assented to the Terms on their behalf; (2) Plaintiffs were “closely related” parties to their guardians (or even third-party beneficiaries), foreseeably bound by the Terms; or (3) as direct beneficiaries of the Terms, Plaintiffs were estopped from avoiding them.  Id. at 6.

At the outset, the Seventh Circuit reasoned that it is a “bedrock principle” that “an arbitration agreement generally cannot bind a non-signatory.”  Id. at 6-7.  The Seventh Circuit also explained that “whether an arbitration agreement is enforceable against a non-party is a question governed by ‘traditional principles of state law.’”  Id. at 7.

First, on Ancestry’s argument that Plaintiffs’ guardians assented to the Terms on Plaintiffs’ behalf, the Seventh Circuit determined that the Terms’ plain and ordinary meaning was unambiguous and found that the only parties to the agreement are the signatory and Ancestry.  Id.  Further, the Seventh Circuit noted that Terms stated they “are personal” to the signatory, who “may not … assign or transfer any … rights and obligations,” established by them.  Id.  The Seventh Circuit also found that the Terms contained no language that the guardians “agreed to them ‘on behalf of their children.”  Id. at 9.

Second, the Seventh Circuit rejected Ancestry’s argument that Plaintiffs may be contractually bound to the Terms “either as closely related parties or third-party beneficiaries.”  Id. at 11.  The Seventh Circuit opined that “[t]he company mounts these arguments from shaky legal ground, as Illinois ‘recognize[s] a strong presumption against conferring contractual benefits on non-contracting third parties.’”  Id.  With respect to Ancestry’s argument that Plaintiffs were bound by the Terms as “closely related” parties to their guardians who signed them, the Seventh Circuit determined that a special relationship in fact and in law between the Plaintiffs and their guardians as that relationship “does not join their identities, as can be the case with parent and subsidiary corporations.”  Id. at 12-14.  The Seventh Circuit similarly concluded that the Terms did not cover Plaintiffs as third-party beneficiaries since the express provisions of Ancestry’s Terms excluded third-party beneficiaries.  Id. at 12.  While the Seventh Circuit found that the Terms that contemplated consent to Ancestry’s processing and analysis of a child’s DNA, no aspect of that consent established that the Terms were for “plaintiffs direct benefit.”  Id. at 16.  In addition, the Terms’ arbitration provision did “not contain language capturing the plaintiffs.”  Id. at 17.  Instead, the provisions’ language indicated that the “signatories intended to bind themselves, but not others to arbitration.”  Id.

Finally, the Seventh Circuit rejected Ancestry’s argument that “[a]s direct beneficiaries of their guardians’ agreement to the Terms, Plaintiffs are estopped from avoid its arbitration provision.”  Id. at 18.  Noting the absence of legal authority supporting Ancestry’s argument, the Seventh Circuit concluded “that Illinois would not embrace direct benefits estoppel to bind plaintiffs here.”  Id. at 19.  The Seventh Circuit also based its conclusion on the absence of any record allegation that “plaintiffs have accessed or used the analyses completed by Ancestry as contemplated by the Terms” coupled with Illinois’ law “disfavoring the binding of non-signatories to arbitration.”  Id. at 25.

Implications For Companies

Companies that are confronted with GIPA class action litigation involving dispute resolution provisions should note the Seventh Circuit’s emphasis in Coatney on the lack of allegations that Plaintiffs read the contractual terms at issue, along with the absence of contractual language capturing or identifying Plaintiffs.

Further, from a practical standpoint, companies should carefully evaluate the language expressed in terms and conditions agreements, including those drafted in dispute resolution provisions, as courts are not inclined to assume non-signatories are bound to agreements when not expressly included.

Illinois Federal Court Orders Samsung To Defend 806 Individual BIPA Claims In Arbitration And Pay $311,000 In Arbitration Filing Fees

By Eden E. Anderson, Rebecca Bjork, and Gerald L. Maatman, Jr.

Duane Morris Takeaways: On February 15, 2024, the Judge Harry Leinenweber of the U.S. District Court for the Northern District of Illinois granted a motion to compel arbitration in Hoeg et al. v. Samsung Electronics of America, Inc., Case No. 23-CV-1951 (N.D. Ill. Feb. 15, 2024),  and sent 806 individual privacy claims to arbitration and ordered Samsung to pay $311,000 to cover its share of arbitration filing fees in those matters.  The decision highlights the potential downsides of class action waivers in arbitration agreements, as well as the importance of coupling a class action waiver with a well-crafted mass arbitration provision designed to streamline arbitration proceedings and, hopefully, limit exposure and litigation costs. 

Case Background

Samsung required customers to execute agreements to binding arbitration and those agreements waive the right to pursue class claims.  The arbitration agreements provided that electronic acceptance, opening product packaging, product usage, or product retention amounted to acceptance of the arbitration agreement.

In 2022, 806 customers, all of whom alleged they had purchased and used Samsung products, filed individual arbitration actions against Samsung alleging violations of the Illinois Biometric Privacy Act (“BIPA”).  After Samsung failed to pay $311,000 in arbitration filing fees due in the matters, AAA administratively closed the cases in January 2023.  The plaintiffs then moved to compel arbitration.

The Court’s Decision

The Court granted the motion to compel arbitration and, in doing so, was highly critical of Samsung’s tactics in seeking to stall the prosecution of the claims.  The Court found that the plaintiffs alleged they purchased and used Samsung products, and thereby assented to arbitration.  While Samsung argued those allegations were conclusory and did not show the existence of agreements to arbitrate, the Court noted that Samsung’s approach “flips the evidentiary burden on its head” because, as the party opposing arbitration, it was Samsung’s burden to dispute the existence of an agreement to arbitrate. Id. at 9.

As to its failure to pay the arbitration filing fees, the Court expressed great displeasure with Samsung, noting that its “repeated failure to pay after multiple deadlines, without any showing of hardship, is a classic refusal to pay scheme in violation of Section 4” of the Federal Arbitration Act.  Id. at 15. The Court also highlighted that Samsung’s tactics had delayed plaintiffs’ prosecution of their claims for two years.  The Court further denied Samsung’s request that the matters be stayed so that it could pursue an appeal and ordered Samsung to pay the outstanding arbitration fees.

Implications Of The Decision

The Hoeg decision highlights the potential downsides of class action waivers, which have spurred the plaintiffs’ bar to pursue hundreds or even thousands of individual arbitrations all at once.  The decision also underscores the importance of adding a mass arbitration provision to an arbitration agreement.  Such a provision, if well-crafted, may serve to streamline those proceedings, facilitate resolution, and limit exposure.  Some jurisdictions have enacted laws aimed at punishing a retailer’s or employer’s failure to pay arbitration fees.  For example, in California, if arbitration fees are not timely paid, it results in a material breach of the arbitration agreement and could lead to the imposition of sanctions including “the reasonable expenses, including attorney’s fees and costs, incurred by the employee or consumer as a result of the material breach.”  (Cal. Civil Code § 1281.99.)

Ninth Circuit Holds That Federal Courts Must Apply Adolph In PAGA Cases, With A Concurring Opinion Addressing Whether Individual Arbitration Will Have Preclusive Effect

By Eden E. Anderson, Gerald L. Maatman, Jr., and Jennifer A. Riley


Duane Morris Takeaways: On February 12, 2024, the Ninth Circuit issued its opinion in Johnson v. Lowe’s Home Centers, LLC, No. 22-16486 (9th Cir. Feb. 12, 2024).  It held that federal courts must follow the statutory standing analysis of the California Supreme Court in Adolph v. Uber Technologies, Inc., and not the U.S. Supreme Court’s different interpretation in Viking River Cruises, Inc. v. Moriana.  Additionally, in his concurrence, Judge Kenneth Lee opined that issues decided in individual arbitration of a PAGA claim should not have preclusive effect on the bigger non-individual PAGA claim. 

Case Background

The plaintiff in Johnson alleged PAGA claims against her former employer based on the employer’s alleged violations of the California Labor Code.  Applying all aspects of the U.S. Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana, the district court compelled Johnson’s individual PAGA claims to arbitration and dismissed her non-individual PAGA claims for lack of statutory standing.  While the case was on appeal, the California Supreme Court issued its decision in Adolph v. Uber Technologies, Inc., which held that a PAGA plaintiff retains standing to maintain non-individual PAGA claims even after their individual PAGA claims are compelled to arbitration.

At issue on appeal in Johnson v. Lowe’s Home Centers, LLC was whether the non-individual PAGA claims should have been dismissed.

The Ninth Circuit’s Decision

The Ninth Circuit held that federal courts must follow the statutory standing analysis of the California Supreme Court in Adolph, and not the U.S. Supreme Court’s different interpretation in Viking River.  It thus vacated the ruling dismissing the non-individual PAGA claims and remanded the case to the district court to apply Adolph.

The Johnson decision is of further interest because of the concurring opinion of Judge Kenneth Lee.  His concurrence addressed the next big question in PAGA cases, i.e., the extent to which issues decided by the arbitrator in resolving individual PAGA claims will be binding in court in the litigation of the non-individual PAGA claims.  Judge Lee noted that individual arbitration is often “low-stakes” for companies, who sometimes even send non-lawyers, such as paralegals, to arbitration proceedings because the amount at issue is not worth a lawyer’s higher hourly rates.  However, as Judge Lee noted, if legal conclusions or factual findings in individual arbitration are binding, then companies would have little choice but to bring in the “legal cavalry” and devote substantial resources in individual arbitration, which would undermineg the efficiency of those proceedings, which is the whole “point” of enforcing arbitration agreements according to their terms.  Judge Lee reasoned that there is thus a “lurking tension” between the FAA and the suggestion in Adolph that issue preclusion can apply to the outcome of arbitration of an individual PAGA action.  Judge Lee expressed his view that application of issue preclusion in this context would contravene the FAA.

Implications For Employers

Whether in state or federal court in a PAGA action, the Ninth Circuit made clear that Adolph must be applied.  The concurring opinion in Johnson provides employers facing adverse rulings in individual arbitration with good arguments against the application of issue preclusion in the non-individual PAGA claim proceedings.

Permanent Injunction Issued Precluding Enforcement Of California’s Ban On Mandatory Arbitration Agreements

By  Eden Anderson, Rebecca Bjork, and Gerald Maatman, Jr. 

Duane Morris Takeaways: Last year, the Ninth Circuit held in Chamber of Commerce of the United States v. Bonta, 62 F.4th 473 (9th Cir. 2023), that California Assembly Bill (AB) 51 — a statute that attempted to criminalize employers’ use of mandatory arbitration agreements — was preempted by the Federal Arbitration Act.  In Bonta, the Ninth Circuit affirmed a preliminary injunction prohibiting the State of California from enforcing AB 51.  On January 1, 2024, following remand in the case, the district court entered a permanent injunction that enjoins the State from enforcing the Labor and Government Code sections enacted as part of AB 51, and awarding the plaintiffs, as prevailing parties, $822,496.  The district court’s order brings finality, judgment, and ultimate success to a strong coalition of employer interests who banded together to challenge California’s attempt to criminalize the use of mandatory arbitration agreements. 

Case Background

AB 51, effective January 1, 2020, added Section 432.6 to the California Labor Code and Section 12953 to the California Government Code.  Labor Code Section 432.6 makes it a misdemeanor for employers to require employees or applicants to waive “any right, forum, or procedure for violation of any provision of the California Fair Employment and Housing Act” or the California Labor Code.  Government Code Section 12953 makes it an unlawful employment practice to violate Labor Code Section 432.6.

In December 2019, the U.S. Chamber of Commerce, California Chamber of Commerce, National Retail Federation, California Retailers Association, National Association of Security Companies, Home Care Association of America, and the California Association for Health Services at Home (“Plaintiffs”) filed a complaint against the State of California challenging AB 51 as preempted by the Federal Arbitration Act (FAA).

The district court granted the Plaintiffs’ motion for a preliminary injunction, finding that Plaintiffs were likely to succeed on the merits.  California appealed, and challenged only the district court’s holding that AB 51 was likely to be preempted by the FAA.  A divided panel of the Ninth Circuit initially reversed the district court in a September 2021 opinion but, after a rehearing petition was filed, the Ninth Circuit withdrew its opinion and issued a new opinion, which affirmed the district court’s preliminary injunction order and held that the FAA preempts AB 51.

The District Court’s Issuance Of A Permanent Injunction

After the decision, the case was remanded to the district court and, on January 1, 2024, the district court issued an order permanently enjoining the State of California from enforcing Labor Code Section 432.6 and Government Code Section 12953.  Additionally, the district court awarded the Plaintiffs, as prevailing parties, $822,496 in attorneys’ fees.  The order was obtained via stipulation of the parties whereby they agreed that the Ninth Circuit’s decision in Bonta was dispositive of the legal issues in the case and further agreed to the amount of attorneys’ fees to be paid by the State.

Implications For Employers

The district court’s order brings finality, judgment, and ultimate success to a strong coalition of employer interests who banded together to challenge AB 51.  Employers in California may permissibly use mandatory arbitration agreements.  However, the use of mandatory arbitration agreements potentially can be problematic when it comes to enforcing the agreement.  When an applicant or employee must sign an arbitration agreement as a condition of employment, the agreement is a contract of adhesion that will likely be found to be procedurally unconscionable.  Thus, a court may refuse to enforce a mandatory arbitration agreement if there are also terms in the agreement that are substantively unconscionable and non-severable.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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