Class Action Waiver Agreements
To the extent that courts outside of Florida have reviewed stand-alone class action waiver statements, most have come to Killion`s conclusion to the contrary and have found that class actions outside of arbitration agreements do not require waiver of substantive rights and are enforceable.49 with respect to the increasing number of cases where it is decided that stand-alone class action waiver statements can be imposed, Florida employers indicate that Florida employers may be able to compel their employees to waive the right of class action without including such a waiver in an arbitration agreement. The abandonment of class actions is usually a provision in an arbitration agreement that states that the worker agrees to settle labour disputes on an individual basis and agrees not to pursue or join class or class actions in relation to his or her co-workers. By waiving class actions, companies can avoid lengthy and costly class actions, often involving hundreds or even thousands of current and/or former employees across the country. In addition, it is unlikely that lawyers representing employees will receive millions of attorneys` fees that can be granted as class lawyers if they are forced to represent employees on an individual basis. Such an attack seemed to have been successful. The Second Circuit Court of Appeals found that an arbitration clause that does not provide for class actions in American Express` standard commercial agreement cannot be enforced against the rights of federal agreements. In re Am. Express Merchants` Litig., 667 F.3d 204 (2d Cir. 2012). The Second Circuit found that the cost of proving antitrust claims significantly exceeded the potential recovery of each trader, making the cost of the complaint prohibitive. She therefore argued that between competing federal laws, the FAA should yield to the Sherman and Clayton laws, excluding the “effective justification” of those antitrust laws. The Ninth Circle also relied on Concepcion to allow arbitration in a recent decision on class actions that assert infringements of unfair competition and consumer protection law. See Ferguson v.
Corinthian Colleges, Inc., 733 F.3d 928 (9th Cir. 2013). The Ferguson case overturned the lower court`s rejection of a request for arbitration and said the FAA anticipated California`s “Broughton Cruz” rule, which requires that injunctions sought for the public good cannot be subject to mandatory arbitration. If you have signed a class action waiver, you may still be in a class action. This is because the courts often find that class action waiver statements are not valid. Epic Systems has included the class action waiver3 in an arbitration agreement, but the statement of reasons for the decision indicates that section 7 does not protect class-level proceedings at all, whether or not it is an arbitration agreement. For employers, this decision raises the question of whether, contrary to what is known, an arbitration agreement is necessary to force the abandonment of class actions. While many employers are well advised to consider introducing class action waiver statements, arbitration is not a one-size-fits-all solution and not all employers want to resolve labour disputes through arbitration. The law will certainly evolve in this area, as different interests attempt to consolidate or weaken the applicability of arbitration clauses.
In the meantime, arbitration clauses in contracts should still be considered as an alternative to legal proceedings, especially for companies threatened by class actions. While courts are generally in favour of the application of these provisions, they must be properly formulated and excessive and repressive conditions should be avoided. The Killion Court recognized that its decision to waive procedural rights of class action ran counter to the growing consensus among other circles.46 As expressly stated by the Killion Court, the 11th Circle concluded that there was no non-viable substantive right to a Class-wide proceeding.47 that “the validity of a class action waiver has nothing to do with the benefits of arbitration. or some kind of compromise….