In Tiffany Ryan v. JPMorgan Chase & Co., et al.
(Case No. 12 CV 4844 (VB)), Southern District Judge Vincent
Briccetti held, like many judges before him, that arbitration
agreements may preclude a FLSA collective action.
When Ryan was hired , she signed an arbitration agreement
containing the following language:
CLASS ACTION/COLLECTIVE ACTION WAIVER: All Covered Claims under
this Agreement must be submitted on an individual basis. No claims
may be arbitrated on a class or collective basis. Covered Parties
expressly waive any right with respect to any Covered Claims to
submit, initiate, or participate in a representative capacity or as
a plaintiff, claimant or member in a class action, collective
action, or other representative or joint action, regardless of
whether the action is filed in arbitration or in court.
Furthermore, if a court orders that a class, collective, or other
representative or joint action should proceed, in no event will
such action proceed in the arbitration forum. Claims may not be
joined or consolidated in arbitration with disputes brought by
other individual(s), unless agreed to in writing by all
Ryan filed a FLSA collective action and JPMorgan Chase moved to
dismiss the action, or in the alternative stay it, and to compel
arbitration of Ryan's claim on an individual basis. After
mentioning in a footnote that the Court of Appeals for the District
of Columbia Circuit recently vacated D.R. Horton, 357
N.L.R.B. No. 184, 2012 WL 36274 (holding that arbitration
agreements cannot prevent employees from filing class/collective
actions) because it was decided by an unconstitutionally
constituted panel of the NLRB, the court made the following
One, "collective action waivers are not per se
unenforceable due to the "FAA's 'overarching
purpose' of 'ensur[ing] the enforcement of arbitration
agreements according to their terms so as to facilitate streamlined
Two, although Ryan asserted the arbitration agreement
prevented her from vindicating her FLSA rights, the class action
waiver "is fair, permits plaintiff to vindicate her statutory
rights under the FLSA, does not hinder her ability to recover
attorney's fees or costs, and comports with public policy
favoring arbitration and honoring private contracts" (also,
Ryan could not prove that arbitration would be prohibitively
And three, "this Court joins numerous other courts in
finding the NLRA (in D.R. Horton) does not determine
whether a plaintiff has a right to bring a collective action under
Bottom line, a well-written arbitration agreement may preclude
class or collective actions (employers, however, most likely will
be responsible for paying the hourly rate of the chosen
arbitrator), and the D.R. Horton board decision is not
receiving much support from judges around the country.
This article is for general information and does not include
full legal analysis of the matters presented. It should not be
construed or relied upon as legal advice or legal opinion on any
specific facts or circumstances. The description of the results of
any specific case or transaction contained herein does not mean or
suggest that similar results can or could be obtained in any other
matter. Each legal matter should be considered to be unique and
subject to varying results. The invitation to contact the authors
or attorneys in our firm is not a solicitation to provide
professional services and should not be construed as a statement as
to any availability to perform legal services in any jurisdiction
in which such attorney is not permitted to practice.
Duane Morris LLP, a full-service law firm with more than 700
attorneys in 24 offices in the United States and internationally,
offers innovative solutions to the legal and business challenges
presented by today's evolving global markets. Duane Morris LLP,
a full-service law firm with more than 700 attorneys in 24 offices
in the United States and internationally, offers innovative
solutions to the legal and business challenges presented by
today's evolving global markets. The
Duane Morris Institute provides training workshops for HR
professionals, in-house counsel, benefits administrators and senior
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The First Department recently adjudicated an appeal in which one of the several issues considered was whether telephone and email communications to New York from an out-of-state party sufficed to find purposeful activity or contacts that conferred personal jurisdiction.
Preparing witnesses for direct examination at trial is a laborious process in which much time is consumed drafting and redrafting direct questions, preparing exhibits and demonstratives, and rehearsing with the witnesses.
New Jersey and other states are seeing an incredible increase in class action lawsuits over employers' compliance in performing background checks of applicants and current employees under the Fair Credit Reporting Act ("FCRA").