On November 8, 2013, Administrative Law Judge Bruce D. Rosenstein upheld a class action waiver in a mandatory employment arbitration agreement notwithstanding the NLRB’s controversial ruling in D.R. Horton banning such class action waivers because they purportedly chill employees’ rights to engage in concerted protected activity under Section 7 of the NLRA.
In American Express Company v. Italian Colors Restaurant, the Supreme Court recently furthered its holding in AT&T Mobility LLC v. Concepcion by making it clear that the Federal Arbitration Act (“FAA”) does not permit courts to invalidate contractual waivers of class arbitration on the ground that the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery.
Much has been written following the Supreme Court’s decisions in AT&T Mobility LLC v. Concepcion, 563 U.S. ____, 131 S. Ct. 1740 (2011); Oxford Health Plans, LLC v. Sutter, 569 U.S. ____, 133 S. Ct. 2064 (2013); and American Express Co. v. Italian Colors Restaurant, 570 U. S. ____, 133 S. Ct. 2304 (2013).
Eight days prior to the release of the U.S. Supreme Court’s June 20, 2013 decision in American Express Co. v. Italian Colors Restaurant (“Amex”), the Massachusetts Supreme Judicial Court (“SJC”), in Feeney v. Dell, Inc., invalidated an arbitration agreement containing a class action waiver.