Workplace Prof Blog

Levinson on Labor Arbitration of Employment Claims

Ariana Levinson (Louisville) has just posted on SSRN her article (forthcoming U. Michigan J. Law Reform, 2013) What the Awards Tell Us About Labor Arbitration of Employment Discrimination Claims.  I'm fairly certain this is the first study of its kind.  Here's the abstract:

This article contributes to the debate over mandatory arbitration of employment discrimination claims in the unionized sector, which, in light of the proposed prohibition on union waivers in the Arbitration Fairness Act, has significant practical implications. Fundamentally, the article is about access to justice. The article examines 160 labor arbitration opinions and awards in employment discrimination cases. The author concludes that labor arbitration is a forum in which employment discrimination claims can be and, in some cases, are, successfully resolved. Based upon close examination of the opinions and awards, the article recommends legislative improvements targeting statutes of limitations, compulsory process, remedies, class actions and, in certain cases, discovery, the standard of review, and a union’s duty of fair representation.

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Live Blogging from Symposium on Concepcion

I'm live blogging from Penn State's symposium on U.S. Arbitration Law in the Wake of AT&T Mobility vs. Concepcion.  The Symposium is sponsored by the Penn State University Yearbook on Arbitration and Mediation.  Hiro Aragaki (Loyola), Jill Gross (Pace), Richard Reuben (Missouri), Ian Mitchell (NKU Chase 2L), and I all spoke on various aspects of Concepcion's antifederalism.  Sandra Partridge (AAA) is speaking now on the practical impact of Concepcion -- she just made the point that a sizeable minority of class-action cases that have been filed with AAA are employment cases.

The panels at today's conference will cover:

• The Impact of AT&T Mobility on Federalism Interests.
• The Consequences of AT&T Mobility on Procedure in Multi-Party Litigation.
• Procedural Fairness After AT&T Mobility.
• The Likely Legacy of AT&T Mobility.

Here's a description of the symposium:

The 2011 Supreme Court decision in AT&T Mobility vs. Concepcion last year has potentially changed the legal landscape in a number of areas including class actions and arbitration agreements between consumers and businesses. Renowned U.S. Legal Scholars will convene for the U.S. Arbitration Law in the Wake of AT&T Mobility vs. Concepcion.

Speakers this afternoon will include: Arthur W. Rovine (Fordham), Chris Drahozal (Kansas), Steve Bennett (Jones Day), Terry F. Moritz (Goldberg Kohn), & Michael Helfand (Pepperdine).

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Green on Racial Justice Through Arbitration

Michael Z. Green (Texas Wesleyan) has just posted on SSRN his article (forthcoming Indiana L.J. 2012) Reading Ricci and Pyett to Provide Racial Justice Through Union Arbitration.  Here's the abstract:

Despite a longstanding strategy employed by labor unions of staying out of the handling of statutory employment claims, this article suggests a framework and a rationale for unions to embrace arbitration of race discrimination disputes by analyzing the results from two key 2010 Supreme Court decisions, Ricci v. DiStefano and 14 Penn Plaza v. Pyett. In reviewing the statutory employment discrimination claims involved and comparing the actions of the union representing the firefighters in the Ricci case with the actions of the union representing the office security workers in Pyett, the article explains the difficulties faced by unions in taking the appropriate action to resolve these disputes while also identifying an arbitration process that will address the concerns of all the stakeholders. In applying interest-convergence analysis, the article proposes a unique approach of using arbitration to merge the interests of unions in fairly representing all employees without conflicts about choices related to the dispute resolution forum, the interests of employers in having a single efficient forum to resolve these disputes, and the interests of employees of color in having a fair forum with effective representation by their union to obtain a satisfactory resolution of their statutory discrimination claims.

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How Not to Plead Diversity Jurisdiction

Judge Easterbrook (7th Circuit) explains the difference between "residence" and "domicile" -- and bench-slaps Morgan Lewis Bockius for making a couple of rookie mistakes -- in Heinan v. Northrup Grumman (Feb. 7, 2012).  Though it is an employment/arbitration case, it doesn't break new legal ground on that count. 

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Kentucky Bill Would Nuke Arbitration Separability

Under the U.S. Supreme Court's separability doctrine, it's not enough to argue that a contract containing an arbitration clause is unconscionable or was procurred by fraud or duress.  To have the arbitration clause found unenforceable, the allegation of fraud or unconscionabilty must be directed specifically at the arbitration clause, not the "container agreement" as a whole.  This is misguided -- if someone gets me to sign a contract by putting a gun to my head, I shouldn't be bound by any part of the contract.

A bill introduced in the Kentucky Senate would legislatively overrule the separability doctrine.  In theory, this should overturn (in Kentucky) the Supreme Court's separability doctrine, because the Federal Arbitration Act incorporates-by-reference state contract law regarding contract revocation.  But the Supreme Court has, more than once, ignored the plain language of the FAA in favor of its policy of broadly enforcing arbitration agreements.

Unfortunately, the current version of the bill exempts employment agreements.

Hat tip: Carol Furnish.

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Penn State Sympoisum: Arbitration After Concepcion

Penn State Law will host a symposium February 22, 2012 on U.S. Arbitration Law in the Wake of AT&T Mobility vs. Concepcion.  The Symposium, sponsored by the Penn State University Yearbook on Arbitration and Mediation, features an agenda with four panels speakers who will cover:

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• The Impact of AT&T Mobility on Federalism Interests.
• The Consequences of AT&T Mobility on Procedure in Multi-Party Litigation.
• Procedural Fairness After AT&T Mobility.
• The Likely Legacy of AT&T Mobility.

Here's a description of the symposium:

The 2011 Supreme Court decision in AT&T Mobility vs. Concepcion last year has potentially changed the legal landscape in a number of areas including class actions and arbitration agreements between consumers and businesses. Renowned U.S. Legal Scholars will convene for the U.S. Arbitration Law in the Wake of AT&T Mobility vs. Concepcion.

Speakers include: John D. Feerick, Arthur W. Rovine, Richard Bales, Richard Reuben, Chris Drahozal, Jill Gross,  Hiro Aragaki, Steve Bennett, Sandra Partridge, Terry F. Moritz, & Michael Helfand.

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SEC Publishes for Comment Proposal to Exempt Collective Employment Actions from FINRA Arbitration

By permission, I am cross-posting this from Jill Gross's post on ADR Prof Blog:

In a Federal Register notice issued last week, the SEC published for public comment a proposal to amend Rule 13201 of the FINRA Code of Arbitration Procedure for Industry Disputes to expressly preclude employees of FINRA members from arbitrating collective actions arising under the Fair Labor Standards Act, the Age Discrimination in Employment Act or the Equal Pay Act of 1963.   The impetus for the rule change was a November 2010 decision by a U.S. District Court for the Southern District of New York (Hugo Gomez et al. v. Brill Securities, Inc.,No. 10 Civ. 3503, 2010 U.S. Dist. LEXIS 118162(S.D.N.Y. Nov. 2, 2010)) holding that a collective action was not a “class action” within the meaning of Rule 13204 of the Industry Code.   In its ruling, the court ignored long-standing Interpretive Guidance from FINRA that it intended to include collective actions within the meaning of Rule 13204′s preclusion of class action arbitration.

 FINRA’s rule change proposal is a glimmer of good news for individuals seeking to vindicate through consolidated actions small dollar-value claims in the wake of the Supreme Court’s AT&T Mobility v. Concepcion decision precluding states from invalidating class action waivers in arbitration agreements on unconscionability grounds.

In other words, under the proposed FINRA rules, employees would be permitted to litigate the collective-action claims that are carved out of arbitration. 

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OSJDR Symposium on the Role of ADR Mechanisms in Public Sector Labor Disputes

The Ohio State Journal on Dispute Resolution will be hosting on February 17 a Symposium on the Role of ADR Mechanisms in Public Sector Labor Disputes: What Is at Stake, Where We Can Improve & How We Can Learn from the Private Sector.  Speakers include Charles Craver (Keynote Speaker), Richard Bales, Howard Bellman, Michael Carrell, Joel Cutcher-Gershenfeld, Michael Green, David Bruce Lipsky, Anne Lofaso, Martin Malin, Saul Rubinstein, Joseph Slater, Lamont Stallworth, and Floyd Weatherspoon.  Here;s a description of the program:

As a result of the economic downturn and government efforts to cut costs, public sector collective bargaining has come to the forefront of the political landscape. The Ohio State Journal on Dispute Resolution Symposium will bring together interdisciplinary scholars and dispute resolution professionals from around the country to examine the current role of ADR mechanisms in public sector collective bargaining and suggest ways to improve negotiations in the future.

The first panel of the Symposium features ADR experts who will provide an overview of the controversy of public sector collective bargaining with particular emphasis on recent legislative developments in Ohio, Wisconsin, and Michigan.

The second panel features a discussion of current ADR practices in the private sector (Fortune 1000 companies) and how the successes or failures of those practices bear on the future of public sector bargaining, if at all. The third panel will focus on the many ways arbitration has played a part in collective bargaining disputes, including the use of mandatory arbitration clauses in collective bargaining agreements, the use of “final offer” arbitration during negotiations, and the emergence of interest arbitration statutes.

The Symposium will conclude with a panel discussion on how continued negotiation between public sector unions and management does in fact advance the public interest. The OSJDR Symposium is an opportunity to explore critically and comprehensively the intersection of alternative dispute resolution and public sector labor concerns.

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NLRB Rules Workplace Class-Action Bans Violate 8(a)(1)

The National Labor Relations Board ruled Friday in the D.R. Horton case that employers violate NLRA Section 8(a)(1) by requiring employees to sign arbitration agreements that prevent them from joining together to pursue employment-related legal claims in any forum, whether in arbitration or in court. From the Board's press release:

The decision examined one such agreement used by nationwide homebuilder , under which employees waived their right to a judicial forum and agreed to bring all claims to an arbitrator on an individual basis. The agreement prohibited the arbitrator from consolidating claims, fashioning a class or collective action, or awarding relief to a group or class of employees

The Board found that the agreement unlawfully barred employees from engaging in “concerted activity” protected by the National Labor Relations Act.  The Board emphasized that the ruling does not require class arbitration as long as the agreement leaves open a judicial forum for group claims.

I think this is huge and that it is exactly the right decision, for the same reasons I thought the Supreme Court got the consumer class-action ban issue wrong in AT&T Mobility v. Concepcion.  Unfortunately, I would assume this will not be the last we will see of this issue.

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NAA Releases Arbitration DVD

Barry Winograd & Dennis Nolan send word of this new new educational DVD available from the National Academy of Arbitrators.  The DVD includes case presentations and arbitrator decisions in a dismissal case.  The cost is $35; a flyer describes the fact pattern:

The DVD captures an instructive and entertaining session from the Academy’s annual meeting in San Diego in May 2011. The subject of the arbitration is the dismissal of a 20-year old soda delivery driver who finds $400 on his route, keeps the money for himself, but then turns it over when his supervisor asks about the missing money at the end of the day. The DVD includes direct and cross examination of a witness, and closing arguments, by skilled counsel. Decisions are then rendered by a panel of experienced arbitrators from the US and Canada, and by a system board of adjustment from the airline industry.

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Pivateau on the Arbitration of Statutory Claims

Griffin Toronjo Pivateau (Okla. St. Business) has just posted on SSRN his article Private Resolution of Public Disputes: Employment, Arbitration, and the Statutory Cause of Action (forthcoming Pace L. Rev.). Here's a summary:

I wrote this paper in response to the Supreme Court's decision in Rent-A-Center v. Jackson. The aspect of that decision that most struck me was the Court's continued insistence on viewing arbitration in employment through a contractual perspective ("the employee made a deal and should stick to it"). This struck me as disingenuous. There are numerous aspects of the employment relationship that are not subject to contract -- wages, hours, workplace safety, antidiscrimination laws. So why then, for arbitration, a slavish devotion to contract principles?

The "simple" answer to this question, of course, is Section 2 of the FAA, which provides that arbitration agreements are "...valid, irrevocable, and enforceable, save upon such grounds as exist ... for the revocation of any contract."  But that doesn't answer the question of why this statutory provision is interpreted as overriding subsequent statutory provisions which, for example, grant a jury-trial right to Title VII plaintiffs.

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NAA Research Grant RFP

Dennis Nolan sends us this notice:

The NAA’s Research and Education Foundation (REF) supports research and education relevant to labor and employment arbitration. The Foundation welcomes grant applications of up to $25,000 for any of the following purposes:

1. The study and understanding of grievance procedures, the arbitration process and other forms of labor and employment dispute resolution and the impact of law on these processes.
2. The education and training of persons engaged in the resolution of labor -management and employment disputes.  Included are the funding of lecture programs, symposiums, conferences and training seminars.
3. The preparation and publication of books, symposium materials, articles, and audio-visual materials (e.g. films; websites; CDs) designed to enhance the competence of persons engaged in the arbitration and mediation of labor-management and employment disputes.
4. Projects that foster the highest standards of integrity, competence, honor and character of persons engaged in arbitration and other forms of labor and employment dispute resolution.
5. The preparation of material designed to keep arbitrators and students of labor-management and employment relations abreast of current research into the arbitration process, and the development of procedures or techniques for the resolution of labor and employment disputes in this and in other countries.

Detailed information on how to apply for an REF grant can be found on the NAA website. Follow the link to the Research and Education Foundation.

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6th Circuit: Arbitration Clause in Employee Policy Not Enough

The Sixth Circuit issued an important arbitration opinion yesterday in Hergenreder v. Bickford Senior Living Group, LLC. The plaintiff in the case was a registered nurse, who shortly after being hired, had to take a leave of absence for cancer treatment, and was subsequently fired because of that leave. Hergenreder wanted to sue Bickford under the ADA, but Bickford asserted that she had to arbitrate her claim, and the district court agreed. The Sixth Circuit disagreed and so reversed and remanded the case to proceed.

The arbitration clause was contained in a dispute resolution policy. That policy was not itself contained in the employee handbook. Instead, in one brief sentence, the employee handbook stated that there was a dispute resolution policy and that employees should look at it for the details. Hergenreder signed a form stating that she had read and understood that handbook, but the Sixth Circuit ruled that there was not sufficient evidence that Hergenreder had been informed of the arbitration policy and actually agreed to be bound by it. The employee handbook itself never mentioned arbitration, and although the policy statement the handbook referred to had an explicit arbitration clause, and did state that agreeing to the arbitration clause was a condition of employment, there was no separate acknowledgement by Hergenreder that she had been notified of the contents of the dispute resolution policy. The oblique reference in the employee handbook was not enough to constitute an offer under state contract law.

It also seems to have helped that Bickford's employment handbook was carefully worded, as many are, to make clear to employees that the policies it contained were not binding on it. To drive that point home, the handbook stated "“[t]his handbook is intended as a summary only and is not a contract between Bickford Cottage and its employees." It further provided, in a separate section,

This handbook has been provided to you for the purpose of acquainting you with the personnel policies and procedures, responsibilities of Bickford Cottage. It does not constitute a contract of employment in whole or in part. Bickford Cottage may add to, change or delete any of the contents at any time with no notice.

This is an important lesson for employers, I think, on information management and clarity of communications. On the one hand employers don't want to be bound by most things that are put into employee handbooks, but use those as a way to let employees know what is expected of them to up front, which is a good business practice to create a sort of due process of the workplace. That kind of informal due process tends to make employees more comfortable, both because they feel like they know what to expect, and because they have at least an impression that the employer will act fairnly and consistently. Employers want to be able to be flexible, though, to address situations they hadn't envisioned or to change with changing circumstances.

On the other hand, employers do want employees to be bound to arbitration agreements. To be sure that they have created a contract for that, employers have to be careful about the amount of information they give employees at one time, and the manner in which that information is delivered. Having a separate arbitration policy made sense here, and this employer even had a form that employees were to sign, acknowledging knowledge of the policy (and presumably acceptance by accepting employment). The problem was that Bickford could not show that Hergenreder had actually received a copy of that policy or that she had signed any acknowledgement form. No actual knowledge here, no offer and acceptance, and no contract.

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Yelnosky on Federalizing the FAA

Michael Yelnosky (Roger Williams) has just posted on SSRN has article (which I had the pleasure of hearing him discuss at SEALS) Fully Federalizing the Federal Arbitration Act.  Here's the abstract:

There is a widely-shared belief that the Supreme Court’s interpretation of the Federal Arbitration Act has resulted in a doctrine that is far too solicitous of arbitration and not sufficiently solicitous of state lawmaking power. That may be so, but there is one provision of the FAA, the savings clause, that the Court has interpreted to permit the application of state law to invalidate agreements that would otherwise be enforceable under the FAA. This Article examines the savings clause.

The Court’s interpretation of the savings clause is dicta, and a better reading is that the savings clause authorizes federal courts to create federal common law to govern the enforcement of covered arbitration agreements. That alternative interpretation is consistent with the Court’s treatment of the rest of the statute, it is consistent with an analogous regulatory scheme, – federal common law regulation of the enforcement of collective bargaining agreements – and it reflects a division of lawmaking authority that would have been familiar to the Congress that passed the FAA in 1925. Moreover, while there are no doubt legitimate state interests in regulating arbitration agreements and guaranteeing parties a judicial forum for the assertion of certain rights, that alone is not a sufficient justification for requiring the application of state law to FAA-covered arbitration agreements. Like it or not, Congress has the authority to regulate the enforcement of arbitration agreements in interstate commerce, and a necessary consequence is the displacement of some overlapping state law.

A federalized savings clause would result in the creation of a uniform body of arbitration law, and that body of law could prove to be at least as effective, and perhaps even more effective, in addressing the major arbitration issue of our time – the imposition on relatively weak parties, like consumers and employees, of agreements that effectively deprive those parties of the right to assert their federal or state law rights. This existing but undeveloped body of federal law helps shed light on the Supreme Court’s recent decision in AT& T v. Concepcion and helps chart a post-Concepcion approach to the issue of “lopsided” arbitration agreements.

The article makes a persuasive case that this is a plausible interpretation of the FAA.  The effect of this interpretation would certainly be to federalize and standardize interpretation of the statute.  But given the current Supreme Court's love-affair with arbitration, the effect also would be to hand the Court a tool which it then likely would use to eviscerate the few protections that state law has until now provided to weak parties such as consumers and employees.

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The Conflation of Labor & Employment Arbitration

Lise Gelernter (Buffalo) has just posted on SSRN her article How Much Power Does a Labor Arbitrator Have? What the Latest Court Decisions Mean for Arbitrators, Employers, Unions and National Labor Policy?.  Here's the abstract:

In 2009, in 14 Penn Plaza L.L.C. v. Pyett, the Supreme Court threw a curve at the collective bargaining world by holding (5-4) that unions could waive the rights of individual bargaining unit members to go to court to resolve employment-related statutory disputes and, instead, could require that such disputes be arbitrated. Pyett raised the specter of the Court taking the final step in merging the legal treatment of arbitration in the collective bargaining world with the treatment of non-labor arbitration, despite the clear points of tension between the basic public policy goal behind labor arbitration, which is to promote industrial peace, and the basic public policy goal behind all other kinds of contractual arbitration, which is to support and encourage private parties' freedom to contract for alternative ways in which to resolve contractual disputes.

This paper clarifies what the legal trends really are and what they mean for the 'big picture' in arbitration as well as for labor arbitrators and the parties who appear before them. After reviewing the history of labor and non-labor arbitration and outlining and comparing the core principles of each type of arbitration, I trace how recent arbitration jurisprudence has crossed the historical divide between labor and commercial arbitration and explore the problems that this creates for labor arbitration as an institution. The trend towards the convergence of labor and non-labor arbitration is not unstoppable, however, and I highlight the ways in which the courts have continued to view arbitration under collective bargaining agreements and non-labor contracts as dichotomous systems with different rules. I also discuss how to deal with the reality of the new hybrid commercial/labor arbitrator that Pyett appears to contemplate and address the ways in which employers, employees and unions can help to retain the procedural and collective bargaining benefits of labor arbitration.

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Eigen & Litwin on Impact of Workplace Dispute-Resolution Systems

Zev Eigen (Northwestern) and Adam Litwin (Johns Hopkins) have just posted on SSRN their article Ducks and Decoys: Revisiting the Exit-Voice-Loyalty Framework in Assessing the Impact of a Workplace Dispute Resolution System.  Here's the abstract:

Until now, empirical research has been unable to reliably identify the impact of organizational dispute resolution systems (DRSs) on the workforce at large, in part because of the dearth of data tracking employee perceptions pre- and post- implementation. This study begins to fill this major gap by exploiting survey data from a single, geographically-expansive, US firm with well over 100,000 employees in over a thousand locations. The research design allows us to examine employment relations and human resource (HR) measures, namely, perceptions of justice, organizational commitment, and perceived legal compliance, in the same locations before and after the implementation of a typical, multistep DRS that begins with informal reporting to local managers and culminates with mandatory arbitration. Even after holding all time-constant, location-level variables in place, we find that introduction of the DRS is associated with elevated perceptions of informal procedural justice and interactive justice, but diminished perceptions of formal procedural justice. We also find no discernible effect on organizational commitment, but a significant boost to perceived legal compliance by the company, raising important questions about the tradeoff between voice and exit and formal versus informal aspects of dispute resolution mechanisms.

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Jury Rules in Favor of KBR in Jones Sexual Harassment Suit

We've talked before several times about the sexual harassment case of Jamie Leigh Jones against KBR, the federal contractor, in the context of arbitration--KBR tried to enforce an arbitration clause in its employment contract unsuccessfully. Jones alleged that she was sexually assaulted by a coworker and that the company locked her in a container when she reported the assault.The Houston Chronicle is reporting (and so is the Wall Street Journal) that the jury came back this afternoon finding that KBR was not liable for sexual harassment. KBR had argued that the sexual contact at issue was consensual, and that therefore it was not liable for harassment. From the WSJ,

Todd Kelly, a lawyer for Ms. Jones, said: "We respect the jury's decision based upon the evidence they were allowed to see." Mr. Kelly said it was too early to say whether he would appeal the verdict.

The case was particularly high profile as Ms. Jones's testimony before Congress over the alleged incident led to a change in federal law in 2009 that bars companies that require arbitration to resolve a range of complaints, including sexual assault and harassment complaints by their employees, from receiving government contracts.

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Concepcion Applied to Students' Claims Against College

The Chronicle of Higher Education (subscription required), via Mark Giagrande (DePaul) at Law Librarian Blog, describes a very recent application of the Concepcion case.

Students in Colorado sued Westwood College for misrepresenting its tuition costs, accreditation status, and job prospects for graduates.  The school, however, had placed an arbitration clause in its enrollment documents.  The school moved to dismiss the case and compel arbitration.  The court granted the motion, saying:

There is no doubt that Concepcion was a serious blow to consumer class actions and likely foreclosed the possibility of any recovery for many wronged individuals. The dissent in Concepcion recognized the impact of the majority's decision and argued that it would effectively end the ability to prosecute small-dollar claims and that those claims would slip through the legal system. Id. at 1761. Countering this argument, the majority wrote: “States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.” Id. at 1753. Thus, the Supreme Court considered the fact that the Concepcions and other class plaintiffs would be denied any recovery by its ruling, and ruled against the class plaintiffs nonetheless. The Court is bound by this ruling and, therefore, cannot be persuaded in this case by the fact that ordering the parties to arbitration may impact Plaintiffs' ability to recover.

Ultimately, there is no dispute that the agreement to arbitrate was prominently written in the enrollment documents, including an entirely separate document entitled “Agreement to Binding Arbitration and Waiver of Jury Trial”. (ECF No. 15–2.) There is also no evidence that Plaintiffs were subject to significant external pressure driving them to sign the documents without taking time to review them and/or have someone else review them. The Arbitration Agreements here appear to contain relatively standard terms, which would suggest that they are substantively fair. Plaintiffs had to ability to cancel the contracts and receive a substantial refund. Finally, there is a competitive market for education programs such as those offered by Defendants and Plaintiffs could have chosen to pursue their education elsewhere. All of these factors weigh against a finding of unconscionability. (footnotes omitted)

Will law schools, some of which also have been criticized for misrepresenting tuition costs and jplacement statistics, add arbitration and no-class-action clauses to their enrollment documents?

The case is Bernal v. Burnett (D. Colo., June 06, 2011) 2011 WL 2182903.

Here's an interesting addition.  The very first page of the Westwood College webiste contains the following "employment pledge":

We’re so confident that you’ll receive the right skills to launch your career and get your first job that if you haven’t found employment within six months of graduation, we’ll help pay your bills. Simple as that.

Mm-hm.

Hat tip: Carol Furnish.

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NLRB Solicits Amicus Briefs on Class-Action Waivers

The National Labor Relations Board is soliciting amicus briefs on the following issue:

Did the respondent violate Section 8(a)(1) of the Act by maintaining and enforcing its Mutual Arbitration Agreement, under which employees are required, as a condition of employment, to agree to submit all employment disputes to individual arbitration, waiving all rights to a judicial forum, where the arbitration agreement further provides that arbitrators will have no authority to consolidate claims or to fashion a proceeding as a class or collective action?

The deadline to file briefs with the Board is July 20, 2011.

Case information and documents, and more information on the solicitation, are available here.

Hat tip: Nick Ohanesian.

I love it.

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AFA Re-Introduced

Senator Al Franken has re-introduced the Arbitration Fairness Act, this time with provisions that specifically would overturn Concepcion.  Whether the bill will gain traction this time around depends on whether supporters can rally behind the Supreme Court's awful Concepcion decision.  I think it's too early.  What will galvanize attention is for a court applying Concepcion to nuke judicial access in a case involving a lot of very sympathetic plaintiffs.  Supporters of the AFA will then be able to point to that case to demonstrate the merits of some version of the AFA.

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