Class Action Waivers in Arbitration Agreements: Lessons From Case Law and New CFPB Regulatory Action

Avoiding or Defeating Challenges to Scope or Enforceability of Arbitration Agreements

A live 90-minute CLE webinar with interactive Q&A


Thursday, August 24, 2017 (in 3 days)
1:00pm-2:30pm EDT, 10:00am-11:30am PDT


This CLE webinar will discuss the continuing issues surrounding the enforceability of arbitration agreements prohibiting class or representative arbitration. The panel will discuss key takeaways from recent Supreme Court and appellate court decisions, as well as the final rule just issued by the Consumer Financial Protection Bureau (CFPB) banning companies from using arbitration clauses to bar consumers from filing class action lawsuits. The panel will also discuss the position taken by the National Labor Relations Board (NLRB) and the Supreme Court’s decision to review NLRB’s anti-arbitration rule.

Description

Enforcement of class action waivers in arbitration agreements has been hotly contested since the Supreme Court’s blockbuster AT&T Mobility LLC v. Concepcion ruling, which the Court again addressed in American Express Co. v. Italian Colors Restaurant and DIRECTV v. Imburgia. Since Concepcion, the plaintiffs’ bar has developed a number of strategies for resisting the enforceability of arbitration agreements.

The CFPB issued a final rule on July 10, 2017, banning companies from using arbitration clauses to bar consumers from filing class action lawsuits (effective for new agreements in early 2018). This removes a critical tool of defendants to limit class action litigation over consumer financial products and practices and expands the rights of class action plaintiffs.

The NLRB has consistently challenged the Court’s ruling that the NLRA’s protection of employee rights to engage in “concerted activities” supersedes the Supreme Court’s Concepcion interpretation of the Federal Arbitration Act (FAA). The Supreme Court will take up this issue in the Fall Term 2017.

It remains to be seen whether Congress will overturn the CFPB rule under the Congressional Review Act or whether the courts will rule that the rule violates the FAA. Class action counsel must understand the implications of these significant recent developments when drafting and enforcing arbitration agreements.

Listen as our authoritative panel explains the current legal environment for the enforceability of arbitration agreements that prohibit class or representative litigation. The panel will discuss the CFPB’s new rule banning companies from using arbitration clauses to bar consumers from filing class action lawsuits, the anti-arbitration position taken by the NLRB, and the Supreme Court’s decision to review this position.

Outline

  1. Review of recent appellate decisions addressing agreements to arbitrate disputes on an individual basis
  2. Review of recent regulatory actions
    1. Consumer Financial Protection Bureau
    2. National Labor Relations Board
  3. Considerations for drafting enforceable arbitration agreements

Benefits

The panel will review these and other key issues:

  • What are the key takeaways for class action and contracts counsel from recent appellate decisions upholding or invalidating arbitration agreements?
  • What impact has the CFPB and the NLRB had on arbitration agreements banning class actions?
  • What contractual language in arbitration provisions will increase the likelihood that they will be enforced?
  • What strategies should counsel employ when seeking to compel arbitration in a class action case?

Faculty

Rafael G. Nendel-Flores, Shareholder
Ogletree Deakins Nash Smoak & Stewart, Costa Mesa, Calif.

Mr. Nendel-Flores represents employers in complex litigation matters including wage-hour class actions, appellate litigation and employment tax controversies. His practice also includes defending employers in discrimination, wrongful termination, unlawful harassment and retaliation lawsuits. He has significant experience representing professional employer organizations, staffing companies and transportation companies. He has particular expertise regarding wage-hour compliance, independent contractor misclassification issues, implementation and enforcement of arbitration agreements, and compliance with the Federal-WARN Act and the California-WARN Act.

Daniel L. Delnero
Ballard Spahr, Atlanta

Mr. Delnero focuses his practice on litigation, consumer financial services, and mortgage banking. He represents a range of companies and individuals in consumer financial services litigation. He advises clients in large, complex matters involving banking and finance, constitutional due process challenges, corporate fraud, and state law tort actions. 


Live Webinar

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This webinar is eligible for at least 1.5 general CLE credits.

CLE credits are not available for PR.

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Customer Reviews

The subject matter was covered in a very understandable way.

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CarVal Investors

The seminar covered an important subject with major policy implications and the speakers addressed it completely with professionalism and thorough knowledge.

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Class Action Law Advisory Board

Thomas Allen

Partner

Reed Smith

Steve Berman

Partner

Hagens Berman Sobol Shapiro

Brian Boyle

Partner

O'Melveny & Myers

H. Douglas Hinson

Partner

Alston & Bird

Daniel R. Karon

Founder

Karon LLC

Robert S. Kitchenoff

Partner

Weinstein Kitchenoff & Asher

Neal R. Marder

Partner

Akin Gump Strauss Hauer & Feld

Michael McCluggage

Partner

Eimer Stahl

W. Ray Persons

Partner

King & Spalding

William B. Rubenstein

Professor

Harvard Law School

or call 1-800-926-7926

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