September 23rd, 2009
Arbitrability, Unconscionability, United States Court of Appeals for the Ninth Circuit
I. Introduction
We have explained in prior posts the First Options/AT&T Technologies rule that arbitrators get to decide arbitrability when the parties clearly and unmistakably so agree. (See, e.g., here and here.) That’s all well and good, but what happens when: (a) two parties sign an arbitration agreement which says, among other things, that the arbitrators shall decide any claim, including any claim concerning the applicability, formation or enforceability of the arbitration agreement; and (b) despite that clear and unmistakable agreement to arbitrate arbitrability, one of the parties challenges the arbitration agreement in court on unconscionability grounds?
That is, for all practical purposes, what happened in Jackson v. Rent-A-Center West, Inc., ___ F.3d ___, slip op. (9th Cir. Sept. 9, 2009) (here). And the United States Court of Appeals for the Ninth Circuit ruled 2-1 that the court gets to decide the question. Continue Reading »
June 30th, 2009
Arbitrability, Authority of Arbitrators, United States District Court for the Eastern District of New York, United States Supreme Court
On April 4 we reported on 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (2009) (Thomas, J.), and published a follow-up post on April 7, 2009 (posts available here and here). The question before the Court was whether “a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate [Age Discrimination in Employment Act ("ADEA")] claims is enforceable as a matter of federal law.” The Court told us the answer was “yes.” 
That answer, of course, begs the question whether any particular collective bargaining agreement (“CBA”) “clearly and unmistakably” requires arbitration of statutory claims. The Court in Shipkevich v. Staten Island Univ. Hosp., No. 08-CV-1008 (FB)(JMA), 2009 WL 1706590 (E.D.N.Y. June 16, 2009) recently considered, among other things, whether the CBA before it clearly and unmistakably required arbitration of claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), New York State civil rights legislation, and New York City’s Human Rights Law, and said the answer was “no.” So let’s take a brief look at Shipkevich to get some perspective on what “clear and unmistakable” means. Continue Reading »
