Search

Without doubt the U.S. Supreme Court in the twenty-first century has been obsessed with the problem of corporate attorneys' inclusion of class action waivers in arbitration agreements. This article traces the emergence of the class action waiver issue, which developed in tandem with the plaintiffs' embrace and proliferation of class action litigation at the end of the twentieth century. The discussion comments on plaintiffs' initial attempts to request and secure class arbitration where the arbitration clauses were silent, culminating in Supreme Court's opinion permitting arbitrators to determine this issue. With the Court opening the door to possible classwide arbitration, corporate lawyers regrouped to rethink the wording of their mandatory arbitration agreements, to specifically prohibit classwide arbitration. These corporate elforts and the successive redrafting of arbitration agreements prompted a series of class action waiver appeals to the Supreme Court, with the Court construing ever changing class action waiver formulations. Since 2010, the Court has decided eight class action appeals dealing with issues relating to class action waivers in arbitration agreements. The article analyzes the Court's series of decisions relating to class action waiver provisions, focusing on the Court's consistent repudiation of classwide arbitration as antithetical to the original concept of bilateral arbitration. The article observes that despite the Court's clear rejection of almost all class action waiver provisions, plaintiffs' attorneys regroup and repeatedly seek classwide arbitration by state legislative initiatives and construing arbitration agreements within the contours of the Court's evolving class waiver jurisprudence. The article concludes with observations about class arbitration in other countries, and the implications of class action waivers for European Union countries that have recently implemented class action and collective redress procedures. [ABSTRACT FROM AUTHOR]

I. INTRODUCTION Americans have distrusted ambulance-chasing plaintiffs' attorneys and money-hungry financial service providers for years. (1) The Consumer Financial Protection Bureau's ("CFPB" or "the Bureau") Final Rule on Arbitration Agreements [...]

INTRODUCTION Imagine you are a new employee at a large corporation. As part of your orientation, you are instructed to sign a number of different documents in order to formally [...]

I. INTRODUCTION For nearly a century, arbitration in the United States has been used and enforced as a mechanism to facilitate quick and inexpensive resolutions to disputes. Contracts with arbitration [...]

The National Labor Relations Act ("NRLA") was born out of the industrial strife of the Great Depression and provides for employee collective rights in order to prevent the potentially devastating economic consequences of an unstable working environment. The rights provided by the NLRA generally encompass the right to employee collective activity, including collective legal activity and unionizing, which seeks to better working conditions. These substantive rights cannot be waived through any employment agreement, but the Supreme Court has never decided the precise issue of whether pursuing a class action is a substantive right under the NLRA as a protected employee collective activity. The enforceability of class action waivers in employment arbitration agreements has become a hot topic over the past few years since the National Labor Relations Board ("Board"), which administers the NLRA, and the courts have largely split on whether the right to pursue a class action is a substantive right under the NLRA, as opposed to a mere procedural right that can be waived through agreement. This is an especially important issue to low-wage workers because if class action waivers are upheld in arbitration agreements, many low-wage workers, if not all, will be foreclosed from bringing claims regarding employer violations. This preclusion is primarily due to the fact that litigation costs often do not justify workers bringing these relatively low value claims on an individual basis. This Note examines how class actions comport with the substantive purpose of the NLRA and discusses the recent decisions of the Board and the courts regarding class action waivers in employment arbitration agreements. This Note will also offer a few potential resolutions. [ABSTRACT FROM AUTHOR]

Despite the prevalence of class action waivers in modern contracts, their enforceability is an under-investigated and controversial issue in Canadian law. The controversy arises from the battle of two important public interests: the interest in giving effect to contracts as agreed between the parties and the interest in organizing justice through class proceedings. This essay studies the position taken by Canadian courts in the limited jurisprudence around the issue, and it also explores the scope of the statutory and common law bases for the unenforceability of class action waivers. Based on the analysis, the essay argues that the procedural right to commence or participate in a class action is not sufficient to override the effect of a class action waiver. A waiver may be struck down only in appropriate circumstances where there is a statute, common law principle, or strong public policy that prevents its enforcement. Hence, the analysis highlights the primacy of the parties' freedom of contract in Canadian law, as well as the importance of careful drafting and reading of contractual terms in modern contracts. [ABSTRACT FROM AUTHOR]

I. Introduction A man may not barter away his life or his freedom, or his substantial rights.... In a civil case ... any citizen may no doubt waive the rights [...]