Class Action Arbitration Waivers Under Attack
Drafting and Defending Employment and Consumer Arbitration Waivers
Second and Third Circuits weigh in against waivers
Recording of a 90-minute CLE webinar with Q&A
This seminar will look at the recent trends against enforceability of class action waivers, discuss strategies for drafting arbitration provisions and class action waivers to maximize enforceability, provide best practices for defending waivers in litigation and discuss limited class action arbitration alternatives.
- Recent Court Rulings and Statutory Developments
- Homa v. American Express Company (3rd Cir. 2009)
- In re American Express Merchants Litigation (2nd Cir. 2009)
- Chalk v. T-Mobile USA, Inc. (9th Cir. 2009)
- Franco v. Athens Disposal Co., (Cal. App. 2009)
- Sanchez v. Western Pizza Enterprises, Inc. (Cal. App. 2009)
- Laster v. T-Mobile USA, Inc. (cert. den. Sup. Ct. 2008)
- Statutory developments
- Strategies for Drafting Class Action Arbitration Waivers
- Principle of bilaterality or fairness
- Cost of arbitration
- Location of arbitration
- Choice-of-law clause
- Right of prevailing consumer or employee to recover counsel fees
- Contractual fee-shifting clause
- Limited class action arbitration alternatives
- Stolt-Nielsen SA v. AnimalFeeds Int’l. Corp. (cert. granted Sup. Ct. 2009)
- Best Practices for Enforcing Class Action Waivers in Court
- Reliance on case law enforcing waivers
- Class actions are just procedural devices
- Fee-shifting statutes
- Determining unconscionability at time of contracting, not when lawsuit filed
- FAA preemption arguments
The panel will review these and other key questions:
- What are the lessons from In re American Express Merchant's Litig. (2nd Circuit) and Homa v. American Express Co. (3rd Circuit) for creating class action waiver clauses?
- What are the best practices for drafting arbitration clauses to maximize enforceability?
- What are the most effective defense strategies when a class action waiver agreement is challenged?
- When should companies consider limited class action arbitration?
- How can businesses act to preserve judicial involvement in class certification?
Bryan A. Fratkin
His practice focuses on business litigation, with an emphasis on consumer financial services, securities, and antitrust... | Read More
His practice focuses on business litigation, with an emphasis on consumer financial services, securities, and antitrust litigation. He represents clients involved in disputes that include allegations of fraud, conspiracy, civil RICO, and breach of contract. In several cases brought as purported class actions, he has prevailed on motions requiring arbitration on an individual, non-class, basis.Close
Archis A. Parasharami
Mr. Parasharami has experience litigating the enforceability of arbitration agreements, with a particular emphasis... | Read More
Mr. Parasharami has experience litigating the enforceability of arbitration agreements, with a particular emphasis on consumer contracts. He has advised businesses on drafting arbitration clauses in a wide variety of settings and has co-authored a number of articles on arbitration. He also handles employment matters, and has authored amicus briefs for the U.S. Chamber of Commerce and for a number of businesses.Close
Loeb & Loeb
He is a trial lawyer representing clients in major litigation in a wide variety of areas including entertainment,... | Read More
He is a trial lawyer representing clients in major litigation in a wide variety of areas including entertainment, unfair competition, business torts and intellectual property, as well as defending consumer protection cases brought by governmental agencies and class action and representative plaintiffs.Close
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