DMCAR Trend #3 – The Arbitration Defense Suffered Setbacks In 2022
By Gerald L. Maatman, Jr. and Jennifer A. Riley
Statistically, corporate defendants fared well in asserting the defense. Across various areas of class action litigation, the defense won approximately 68% of motions to compel arbitration (roughly 69 motions granted in 102 cases).
By almost any measure, the arbitration defense had a tumultuous year in 2022. In the courts, chinks in the armor of the defense began to grow. While the U.S. Supreme Court shut down state efforts to evade arbitration of wage and hour claims, as discussed above, it limited application of the FAA to workers who participate in interstate transportation. Perhaps more significantly, on the legislative front, Congress significantly limited the availability of arbitration for cases alleging sexual harassment or sexual assault when it passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. President Biden signed the Act into law on March 3, 2022.
The Act amends the FAA and provides a plaintiff the discretion to enforce pre-dispute arbitration provisions and class and collective action waivers in cases where he or she alleges “conduct constituting a sexual harassment dispute or a sexual assault dispute” or is “the named representative of a class or in a collective action alleging such conduct.” In other words, whereas the Act does not render such agreements invalid, it allows the party bringing sexual assault or sexual harassment claims to elect to enforce them or avoid them. The Act does not impact agreements entered into after a dispute arises.
The plaintiffs’ bar often alleges other claims along with claims for sexual assault or sexual harassment. Whereas the Act refers to a “case,” it remains to be seen whether courts will attempt to limit a plaintiff’s option to avoid pre-dispute arbitration to sexual assault or sexual harassment claims or will extend such option to all claims at issue in a case. The Act provides that “no pre-dispute arbitration agreement or pre-dispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.” To date, courts have not issued significant decisions interpreting such language.
Given the impact of the arbitration defense, in 2023, companies may face additional hurdles, on the judicial or the legislative front, as the plaintiffs’ bar continues to look for workarounds. In particular, we expect to see litigation over whether the Act’s use of the word “case” renders the statute applicable to all claims in the case, including claims other than sexual harassment and sexual assault and whether the statute, therefore, will allow for a broader shield to the arbitration defense.
When Contract Interpretation Principles Matter: Court Provides A Roadmap For Avoiding Ambiguous And Contradictory Interpretations Of Arbitration Clauses
By Eden E. Anderson and Rebecca Bjork
Duane Morris Takeaway: It is a truism that arbitration is a matter of consent, and consent is embodied in contract law principles. In a recent ruling entitled Querette v. Chromalloy Gas Turbine, LLC, Judge Philp Halpern of the U.S. District Court for the Southern District of New York brought those abstract principles into the light of day while forging an interpretation of a collective bargaining agreement containing an arbitration clause and harmonizing seemingly contradictory clauses. In finding in favor of a defendant seeking to arbitrate a dispute with its employees, the Court provided a roadmap of sort that is well worth a read for corporate counsel.
Requiring arbitration of workplace disputes unquestionably has become one of the most important legal tools for employers over the past several years. This is in large part due to developments in the law that encourage courts to enforce arbitration clauses that waive the right of employees to bring class actions. Because class action lawsuits are inevitably costly to defend and can out stretch over several years, employers – especially those with large headcounts – have come to rely on arbitration agreements containing class waivers to rein in litigation expenses.
For this reason, the careful drafting of arbitration agreements is very important. Agreements must be drafted in a way that avoids ambiguity and conflicting clauses. If an agreement is ambiguous, a court is more likely to construe it against the drafter, which often means denying motions to compel arbitration and allowing class claims to proceed in court. And if an agreement contains conflicting or contradictory clauses it is easier for a party to argue that it cannot be enforced. In such a case, the court must work to try and harmonize the conflicting clauses. Contract law assumes each clause was included for a reason, so courts attempt to avoid interpretations that would render a clause meaningless.
The Ruling In Querette v. Chromalloy Gas Turbine, LLC
These basic principles of contract interpretation played out in interesting ways in a recent case decided by District Court Judge Philip M. Halpern of the Southern District of New York. In Querette v. Chromalloy Gas Turbine, LLC, No. 22 Civ. 00356 (S.D.N.Y. Jan. 10, 2023), the Court was asked to compel arbitration of a class action filed under New York Labor Law §191(1)(a) that requires employers to pay their employees on a weekly basis. Relying on contract law principles, the Court sided with the defendant and ordered the plaintiff’s claim to be arbitrated.
The agreement at issue was the product of collective bargaining. Article 14 of the collective bargaining agreement (“CBA”) sets forth a multi-step grievance procedure that members of the union who have a dispute with the employer must follow. That process culminates in arbitration before the American Arbitration Association (“AAA”) to resolve the dispute. Id. at 2.
Section 14.F. of the CBA states that “Any and all grievances and all issues arising from and relating thereto, including the interpretation and application of this section shall be governed by, construed in accordance with and processed pursuant to AAA’s then existing rules governing labor disputes, which rules are fully incorporated herein.” Id. Section 14.G. of the CBA then provides that the grievance process is the sole mechanism for resolving disputes between employees and the employer, with two exceptions. That section states, in relevant part, “Except for resort to the agencies and/or courts charged with the enforcement of the laws enumerated in Article I herein, and except with further resort to the National Labor Relations Board, it is the intention of the parties that employees will look exclusively to this Agreement for the resolution of all disputes under this Agreement.” Id. at 2-3. Article I identifies several federal and state discrimination and family leave laws, but does not include state or federal wage and hour laws.
Section 14.I contains the second carve-out, ensuring a “Right of Representation and/or Counsel for Parties Only,” which preserves the right of union members to be “individually represented by private counsel as to any alleged right, only that any such alleged right must be pursued in a forum other than under this Article.” Id. at 3. In other words, Section 14.I appears on its face to carve out from the arbitration requirement any case brought by an employee who has retained private counsel. Reading the clause that way contradicts the mandate that all disputes between an employee and the employer must be subject to the grievance process spelled out in the CBA.
The plaintiffs contended that Section 14.I applied to their claim because they had retained private counsel to pursue their class action wage claim, so it could not be compelled to arbitration under the express and unequivocal language in that clause. The Court did not agree, and reached its conclusion by way of the very basic principles of contract interpretation explained above; reading a contract in a way that avoids ambiguity and conflicting clauses.
Basis Of The Court’s Opinion
First, the Court was required to determine whether it or an AAA arbitrator had the authority to determine if the dispute was arbitrable in the first place. The AAA rules provide that arbitrability is for an arbitrator to decide. However, the Court noted correctly that the U.S. Supreme Court has held that courts must not assume that the parties agreed to assign arbitrability to an arbitrator unless there is “clear and unmistakable evidence” of the parties’ intent to delegate that issue to an arbitrator. The court applied Second Circuit case law precedent holding that incorporation of the AAA rules alone does not per se show an intent to delegate arbitrability; rather “context matters.” Id. at 6. The context that mattered to Judge Halpern was the fact that the CBA was not so broad as to claim to cover each and every dispute between an employee and the defendant. He reasoned that the carve out for discrimination and family leave claims, along with the private counsel carve out itself, created ambiguity as to the parties’ intent to delegate arbitrability decisions to an arbitrator. And ambiguity means there is not clear and unmistakable evidence of the intent to delegate. Thus, the Court concluded it must decide arbitrability.
Second, the Court found that the private counsel carve-out did not exempt the plaintiff’s claims from the CBA’s arbitration requirement. Id. at 8. Applying the rule that contract interpretation must not render clauses contradictory to one another, the Court read the agreement in a way that gave meaning to both the requirement to arbitrate disputes and the private counsel carve out. The Judge opined that if the plaintiffs could hire private counsel as a way to evade the CBA’s arbitration requirement in every type of case, not just the discrimination and family leave act claims enumerated in Article I of the CBA, that would render the grievance procedure culminating in arbitration meaningless.
Because the CBA was the product of extensive and careful negotiation, the Court concluded that could not be the intent of the parties. Limiting the private counsel carve out to only discrimination and family leave cases allowed both clauses to have meaning. Id. at 8-9. In this way, the Court harmonized seemingly contradictory clauses in the CBA, and ordered the plaintiff’s wage law claim to arbitration.
Implications For Employers
It is not clear from the decision whether the arbitration itself can proceed on a class-wide basis, as there is no discussion of whether any class waiver exists in the CBA. Nonetheless, the Court’s order represents a master class in how to properly apply contract interpretation principles and enforce all clauses in arbitration agreements.
Illinois District Court Rejects “Trio” Of BIPA Defenses in Denying Motion to Dismiss
By: Gerald L. Maatman, Jr., Jennifer A. Riley, and Tyler Z. Zmick
Duane Morris Takeaways: In Trio v. Turing Video, Inc., No. 21-CV-4409, 2022 WL 4466050 (N.D. Ill. Sept. 26, 2022), the Court issued yet another plaintiff-friendly decision under the Illinois Biometric Information Privacy Act (“BIPA”), putting businesses on notice that the statute can apply to technology used to screen individuals for purposes of preventing the spread of COVID-19. The Court denied the three arguments raised in the Defendant’s motion to dismiss, and held that: (1) personal jurisdiction existed because the Defendant sent “biometric” devices to multiple Illinois-based customers; (2) the Plaintiff’s claims were not preempted by the Labor Management Relations Act; and (3) Plaintiff adequately alleged claims under BIPA. The ruling in Trio ought to be required reading for corporate counsel dealing with privacy class action litigation.
Plaintiff alleged that Defendant Turing Video, Inc. sold “products integrated with artificial intelligence,” including the Turing Shield, a “kiosk that allows Turing’s customers to screen their employees for COVID-19.” See Mem. Op. & Order at 2. According to Plaintiff, the Turing Shield works by screening a user’s temperature through the device’s camera, thereby using its “artificial intelligence algorithm” to recognize the user based on his or her facial geometry, and detecting whether the user is wearing a protective mask. Plaintiff also alleged that data collected through the Turing Shield was transmitted to third parties who host that data.
Plaintiff previously worked in Illinois for New Albertson’s, Inc. d/b/a Jewel-Osco, where she used the Turing Shield at the start of each workday as part of the store’s COVID-19 screening process. Based on her use of the device, Plaintiff claimed that Turing violated the BIPA by: (i) failing to inform her that the Turing Shield would collect her biometric data, and (ii) disseminating her biometric data to third parties without her consent.
Turing moved to dismiss on three grounds, including: (1) that the Court lacked personal jurisdiction; (2) Plaintiff’s claims were preempted by the Labor Management Relations Act; and (3) Plaintiff failed to state a claim upon which relief could be granted.
The Court’s Decision
The Court denied Turing’s motion to dismiss on all three grounds.
Turing argued that the Court lacked specific personal jurisdiction because Turing was a non-forum (i.e., California) resident that sold the devices used by Plaintiff to a non-party, Jewel-Osco (also a non-forum resident), and Jewel-Osco brought the devices into Illinois without Turing’s involvement.
The Court held that the evidence – which showed Turing had over 30 Illinois-based customers and had shipped Turing Shields into Illinois – established that Turing had the requisite minimum contacts with Illinois to establish personal jurisdiction.
Labor Management Relations Act Preemption
The Court next addressed Turing’s argument that Plaintiff’s claims were preempted by Section 301 of the Labor Management Relations Act (the “LMRA”), which establishes federal jurisdiction over “suits for violations of contracts between an employer and a labor organization representing employees in an industry affecting commerce.” Courts typically interpret Section 301 as preempting state law claims that are “substantially dependent on analysis of a collective-bargaining agreement.” Id. at 18.
Here, Plaintiff was represented by a union and subject to a collective bargaining agreement (“CBA”) while employed at Jewel-Osco. Based on those facts, Turing claimed that resolving Plaintiff’s BIPA claims for alleged privacy invasions sustained through her work required the Court to interpret the CBA. The Court disagreed. It held that Plaintiff’s claims were not preempted because the Court could resolve the claims without interpreting the CBA.
The Court recognized that the Seventh Circuit has held that federal law preempts BIPA claims brought by certain union-represented employees against their employers. See Miller v. Southwest Airlines Co., 926 F.3d 898, 903 (7th Cir. 2019); Fernandez v. Kerry, Inc., 14 F.4th 644, 646-47 (7th Cir. 2021). The Court distinguished those cases because Turing was not a party to the CBA, and “Turing’s obligations under BIPA stand wholly independent of whether Plaintiff’s union may have consented to Jewel-Osco . . . collecting and disseminating her biometric data. In other words, resolution of the state law BIPA claims would not require this Court to interpret any [CBA], and instead depend upon the entirely unrelated question of whether Turing provided Plaintiff with the necessary disclosures and obtained from her the required written release before it collected and disseminated her biometric information.” Mem. Op. & Order at 20-21.
Extraterritoriality & PREP Act Immunity
Finally, the Court rejected Turing’s arguments that: (i) Plaintiff failed to allege that Turing’s relevant conduct occurred in Illinois, and (ii) the Public Readiness and Emergency Preparedness Act (the “PREP Act”) immunized Turing from BIPA liability. Regarding extraterritoriality, the Court held that Plaintiff sufficiently alleged that Turing’s conduct occurred “primarily and substantially” in Illinois, thereby satisfying the “extraterritoriality doctrine.” Id. at 25. Regarding PREP Act immunity, the Court noted that the PREP Act provides immunity from liability relating to the “use of a covered countermeasure” upon the declaration of a public health emergency by the Secretary of the Department of Health and Human Services. The Court held that PREP Act immunity did not apply because the Food and Drug Administration had not approved the Turing Shield, meaning the device did not satisfy the definition of a “covered countermeasure.” Id. at 28.
Trio can be added to the list of recent plaintiff-friendly BIPA decisions, as it reinforces the growing consensus that multiple private entities can be subject to liability under the statute for what may seem like a single “violation.”
The case also raises a potential hurdle to asserting jurisdictional defenses to BIPA claims based on its holding that personal jurisdiction can exist even where the defendant does not send into Illinois the specific device used to collect a plaintiff’s “biometric” data. Other courts, however, appear more willing to dismiss BIPA claims on personal jurisdiction grounds. See, e.g., Gutierrez v. Wemagine.AI LLP, Case No. 21-CV-5702, ECF No. 32, Mem. Op. & Order at 1 (N.D. Ill. Oct. 7, 2022) (available here) (dismissing BIPA case for lack of personal jurisdiction despite plaintiffs’ allegation that defendant’s app “derives substantial revenue from nearly 5,000 Illinois-based users”).
California Dreaming For Employers: U.S. Supreme Court Orders California State Court of Appeal To Reconsider Denial Of Arbitration In PAGA Case
By: Gerald L. Maatman, Jr., Jennifer A. Riley, and Rebecca S. Bjork
Duane Morris Takeaways: On October 3, 2022, the Supreme Court of the United States granted certiorari, reversed, and remanded a case seeking review of a motion to compel arbitration in a California Private Attorney General Act (“PAGA”) labor law case entitled Dolgen California, LLC v. Galarsa, No. 21-1444 (U.S. Order List, Oct. 3, 2022). Granting Dollar General’s specific request, the Supreme Court ordered the California Court of Appeal to reconsider its decision affirming a trial court’s denial of the company’s motion to compel arbitration. That court held that the waiver of representative actions in the plaintiff’s arbitration agreement was unenforceable under California law. This is only one of several cases pending in California courts involving arbitration agreements that waive an employee’s right to bring a representative action under the PAGA that are being revisited in light of the U.S. Supreme Court’s ruling in Viking River Cruises, Inc. v Moriana (No. 20-1573, June 15, 2022). As a result, employers will soon have a better understanding of how PAGA representative action waivers will be interpreted in California within the now-controlling framework of the Federal Arbitration Act.
The Holding In Viking River Cruises, Inc. v. Moriana
Earlier this year, on June 15, 2022, the U.S. Supreme Court issued its long-awaited ruling in Viking River Cruises, Inc. v. Moriana. Companies with California-based workforces watched the case closely because it represented an opportunity to clarify the extent to which a court-made rule established by the California Supreme Court back in 2014 could co-exist with the Federal Arbitration Act (“FAA”). The FAA has long been found to favor the enforcement of arbitration agreements, including waivers of class and other representative claims. But the California Supreme Court’s decision made it impossible for class waivers to be enforceable under state law as a result of its decision in Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348, 387-88 (2014) (holding that a “PAGA claim lies outside the [FAA]’s coverage because it is not a dispute between an employer and an employee arising out of their contractual relationship,” but is instead “a dispute between an employer and the state”).
In a complex and lengthy opinion, the Supreme Court held in Viking River that “the FAA preempts the rule of Iskanian insofar as it precludes division of PAGA actions into individual and non-individual claims through an agreement to arbitrate.” (Slip Op. at 20.) “This prohibition on contractual division of PAGA actions into constituent claims unduly circumscribes the freedom of parties to determine ‘the issues subject to arbitration’ and ‘the rules by which they will arbitrate,’ and does so in a way that violates the fundamental principle that ‘arbitration is a matter of consent[.]’” (Id. at 18 (citations omitted).) In short, representative PAGA claims can now be subject to waiver in an arbitration agreement because “state law cannot condition the enforceability of an arbitration agreement on the availability of a procedural mechanism that would permit a party to expand the scope of the arbitration by introducing claims that the parties did not jointly agree to arbitrate.” (Id.)
Dollar General’s Petition For Certiorari
Dollar General filed a petition for certiorari while Viking River was pending, expressly asking the Supreme Court to hold the petition pending a decision in that case. It requested that once Viking River was decided, the Supreme Court should at that time grant Dollar General’s petition, vacate the California Court of Appeal decision below, and remand the case to that court for reconsideration in light of Viking River (known to Supreme Court practitioners as a “GVR” order). The facts in the Dollar General case are strikingly similar to those at issue in Viking River, and the company’s petition described the question presented as “Does the FAA require enforcement of a bilateral arbitration agreement providing that an employee cannot assert representative claims, including under PAGA?”
The U.S. Supreme Court’s GVR Order
On October 3, 2022, the Supreme Court did what Dollar General expressly asked it to do. (See Order List, Oct. 3, 2022.)
As is typical with GVR orders, there is no explanation of the reasoning behind the order, except that the California Court of Appeal is instructed to apply the reasoning of Viking River on remand. The California Court of Appeal now will soon reconsider its affirmation of the trial court’s denial of Dollar General’s motion to compel the plaintiff’s claim to an individual, non-representative arbitration proceeding.
Implications For Employers
Employers have long known that if they have operations in California, special attention must be paid to state law provisions that impose restrictions on employment practices unlike those in any other state. Now that the U.S. Supreme Court has ruled that the FAA preempts the court-made rule of Iskanian that precluded splitting representative PAGA claims from individual claims, it is likely that California courts will modify their enforcement of representative action waivers in arbitration agreements. But because this is California, wary employers would be wise to stay tuned for further developments in this rapidly changing area of the law.