The California Court of Appeal, Second Appellate District affirmed the trial court’s order denying the defendant’s motion to compel arbitration in Coffey v. Beverages & More, Inc. (“BevMo!”), a wage-and-hour class action on behalf of non-exempt, hourly employees. Case No. B243361 (2nd Dist. Div. 1 April 30, 2014) (unpublished) (slip op. available here). The panel found that substantial evidence supported the lower court’s determination that BevMo! had failed to prove that the plaintiff entered into an arbitration agreement with the employer based on her electronic signature acknowledging acceptance of the employee handbook (Ms. Coffey is represented by Capstone Law APC).

The suit was filed on January 18, 2012. In June 2012, BevMo! moved to compel arbitration, arguing that the electronic (PDF) version of the employee handbook—identical to those previously provided to employees in paper format—contained an arbitration clause and that by clicking a box next to an icon of the handbook, she had agreed to an arbitration provision located within the handbook. The trial court denied that motion, finding that, under the express terms of BevMo!’s documents, separate signatures were required for the handbook and for the arbitration agreement, and because the plaintiff was only able to provide an e-signature in one location, that lone signature was not consent to the arbitration clause.

The Court of Appeal affirmed, holding that because the arbitration agreement required a separate signature and because Ms. Coffey never signed that arbitration agreement, unlike other documents within the employment packet that she was able to e-sign individually, she could not be bound by the arbitration agreement. The Court of Appeal also found that the handbook contained an express disclaimer that it did not create any contractual rights or obligations, making it ambiguous as to whether the handbook could even create an enforceable agreement to arbitrate if it had been signed. Finally, there was no implicit agreement to arbitrate, as BevMo! argued, due to the plaintiff’s acceptance of employment with BevMo!; “[n]othing in the record indicates that [Plaintiff] was informed or believed that [BevMo’s!] offer of employment was conditioned on her agreement to arbitrate.” Slip op. at 6.

BevMo! was ultimately unable to show that the plaintiff had ever agreed to arbitrate her claims. The Court of Appeal thus affirmed the trial court’s order and declined to compel arbitration.

On April 24, 2014, Charles Schwab & Co., the financial services brokerage firm, agreed to pay $500,000 in fines and acknowledged a ruling by the Financial Industry Regulatory Authority (“FINRA”) Board of Governors, which concluded that Charles Schwab had violated FINRA rules by including a class action waiver clause in its customer agreement. See FINRA Decision, Department of Enforcement v. Charles Schwab & Co., Complaint No. 2011029760201 (April 24, 2014) (available here).

In 2012, FINRA brought an administrative enforcement action against Schwab for violating its rules after Schwab, in October 2011, added a class action waiver to its customer account agreements. Decision, at 1-2. FINRA Rule 2268(d)(3) of the Customer Code prohibits member firms from placing in predispute arbitration agreements “any condition that . . . limits the ability of a party to file any claim in court permitted to be filed in court under the rules of the forums in which a claim may be filed under the agreement.” Additionally, Rule 2268(d)(1) states, “[n]o predispute arbitration agreement shall include any condition that . . . limits or contradicts the rules of any self-regulatory organization”; the waiver limited and contradicted Rule 12204(d), which provides that a FINRA member may not enforce an arbitration agreement against a member of a certified or putative class action until: class certification is denied; the class is decertified; the class member is excluded from the class by the court; or the class member elects not to participate in or withdraws from the class.

Schwab’s attempt to ban customer class actions arose following a $235 million class action settlement that had alleged that it misled thousands of clients about its YieldPlus money-market fund. In February 2013, a FINRA Hearing Panel held that although Schwab had violated FINRA rules by banning class action lawsuits, the Federal Arbitration Act (“FAA”) preempted such rules. Id. at 2. The Hearing Panel had also found that Schwab had violated Rule 2268(d)(1) by preventing arbitrators from consolidating claims in arbitration (contradicting Rule 12312(b), which provides that they have such authority), and that the FAA did not preclude enforcement of those rules governing the powers of arbitrators and the procedures for FINRA arbitration. Id. at 3. For this violation, the Panel ordered Schwab to remove this language, notify all customers, and pay a fine of $500,000. Id.

FINRA appealed the Hearing Panel’s decision to the Board of Governors. The board considered two central questions:

The first is whether . . . FINRA rules preserve for customers the ability to bring or participate in judicial class actions and FINRA arbitrators the ability to consolidate more than one party’s claims in arbitration. The second is whether the . . . FAA[], which applies to arbitrations of commercial transactions, applies to NASD and FINRA arbitration rules and preempts enforcement of those rules.

Id. at 2. The Board affirmed the part of the Hearing Panel’s ruling concluding that Schwab had broken FINRA’s rules by inserting the class action waiver. Id. at 28. The Board reversed the Panel’s prior holding that the FINRA rule on this point was preempted, finding that the FAA does not dictate specific arbitration procedures and that FINRA’s procedures do not “act as an obstacle to the FAA’s goals”; thus, FINRA “may enforce” the rules against Schwab. Id.

As part of the settlement, Charles Schwab was required to notify all of its customers that the waiver has been withdrawn and is no longer in effect.

On April 15, 2014, U.S. District Judge Consuelo B. Marshall re-certified a class of non-exempt newspaper employees who had brought wage-and-hour claims, finding that the plaintiffs’ allegations satisfied the commonality and predominance requirements for certification under the more stringent standards articulated by the U.S. Supreme Court’s Wal-Mart Stores Inc. v. Dukes (131 S.Ct. 2541 (2011)). Wang v. Chinese Daily News, Inc., No. 2:04-cv-01498 (C.D. Cal. April 15, 2014) (slip opinion available here). Thus, the court held that plaintiffs satisfied rule 23(b)(3). Id.

In 2008, the plaintiffs had obtained a $5.1 million judgment on behalf of the same class of employees under the Fair Labor Standards Act and California state law for the failure to pay overtime and to provide meal and rest breaks, among other violations. The Ninth Circuit affirmed that judgment in 2010 (623 F.3d 743 (9th Cir. 2010)), but after Dukes, the U.S. Supreme Court granted certiorari, vacated the Ninth Circuit’s opinion, and remanded to the Ninth Circuit for it to reconsider applying Dukes. The Ninth Circuit subsequently reversed the district court’s certification from 2005 and ordered it to reconsider its analysis under Rules 23(a)(2) and 23(b)(3), in light of Dukes, Brinker Rest. Corp. v. Superior Court (273 P.3d 513 (Cal. 2012)), and other caselaw developments. Wang v. Chinese Daily News, Inc., No. 08-55483 (9th Cir. Sept. 3, 2013).

Upon remand, Judge Marshall reexamined whether there were common questions of law or fact, and found many. Citing Dukes on the standard of commonality, the court stated, “[w]hat matters to class certification . . . is not the raising of common ‘questions’—even in droves—but rather, the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Slip op. at 4 (internal citations omitted). One question, which the court focused on, was whether the defendant failed to pay overtime compensation to non-exempt employees who worked over 40 hours per week. Id. at 5-7. The court found the plaintiffs had proffered enough evidence to show that the employer had treated the class members consistently and that supervisors had little or no discretion to deviate from the uniform policy of not providing overtime pay and/or meal and rest breaks. Id. at 6, 10. Plaintiffs also informed the court that because there were currently no identifiable class members still employed by the newspaper, they were no longer seeking certification under Rule 23(b)(2), the injunctive relief standard, so Judge Marshall declared that issue moot. Id. at 8.

The district court’s re-certification of the class shows that class certification of wage-and-hour cases is still appropriate in a post-Dukes era, if the plaintiffs allege that the treatment of class members is consistent and not subject to the discretion of individual managers.

Uber Technologies Inc. (“Uber”), the popular rideshare company, is currently the subject of a putative class action brought by former drivers who allege that Uber did not pay the full amount of tips that customers believed drivers were receiving and failed to reimburse drivers for business expenses, among other claims. O’Connor v. Uber Technologies, Inc., No. 13-03826-EMC (N.D. Cal.).

In July 2013, Uber had inserted an arbitration clause, along with onerous opt-out requirements, into its new driver agreement, before the O’Connor plaintiffs filed their case. However, similar class actions had been filed in Massachusetts and Illinois. Lavitman et al. v. Uber Technologies, Inc., et al., Mass. Super. Ct. (Suffolk), C.A. No. 12-4490; Ehret v. Uber Technologies, Inc., C.A. No. 12CH36714 (Circuit Court of Cook County, IL). Plaintiffs in O’Connor filed an emergency motion to strike the arbitration provisions, and the court granted it in part on December 6, 2013. See Order Granting in Part Plaintiffs’ “Renewed Emergency Motion for Protective Order to Strike Arbitration Clauses,” O’Connor v. Uber Technologies, Inc., No. 13-03826-EMC (N.D. Cal. 2013) (available here). While declining to rule on the alleged unconscionability of the arbitration provision, the court found the new clause to be “potentially misleading, coercive, and threatens to interfere with the rights of class members” and ordered Uber to stop issuing the arbitration agreement until the company revised it to give past, current, and new drivers notice of the pending class action and a reasonable means to opt out of arbitration. Id. at 11-12.

In its motion for reconsideration, Uber argued that the court exceeded the scope of its authority under Rule 23 last December. Defendant asserted that the court failed to consider a material fact, “that since the filing of the [c]omplaint[,] Uber has issued the challenged arbitration agreement only to prospective users of its software application service, who are by definition not members of the putative class.” See Defendant’s Motion for Reconsideration, at 3 (available here). Uber contends that the issuance of the agreement to new drivers does not affect the current litigation because future drivers fall outside of the class definition: “drivers who have worked for Uber.” Id. at 6 (citing Plaintiffs’ Complaint). Plaintiffs vigorously disagreed and replied that, while no class has been certified yet, the putative class encompasses all drivers who have driven for Uber, under the conditions described in the complaint through the date of judgment or at least through the date of class certification. See Plaintiffs’ Opposition to Defendant’s Motion for Reconsideration, at 4 (available here). Plaintiffs maintained that defendants’ argument “is based upon a flawed understanding of English grammar,” explaining that the function of the present perfect tense “have” is to describe an action that began in the past but continues into the present. Id. Uber was also accused of violating the court’s orders by continuing to send the new arbitration agreement to its existing drivers.

The motion for reconsideration was heard on April 18, 2014. No opinion has yet been issued.