Class Actions Brief Blog

A recent Fourth Circuit decision extends the trend of cases refusing to use federal statutes to invalidate arbitration agreements waiving the right to bring class claims in federal court.

The statute at issue in Espin v. Citibank N.A., 126 F.4th 1010 (4th Cir. 2025)—the Servicemembers Civil Relief Act (“SCRA”)—provides special legal protections to active-duty members of the military, including a cap on the interest rate they may be charged on credit cards. The plaintiffs were former servicemembers who alleged that Citibank violated SCRA by charging them market-rate ...

It is no secret that many businesses minimize risk by requiring arbitration of disputes on an individual basis. The exposure created by a single claim pales next to that presented by a class claim, asserted under Rule 23, on behalf of numerous individuals. To implement this mitigation strategy, businesses typically include in their agreements an arbitration provision, coupled with a waiver of the right to bring a class or collective action.

The United States Supreme Court has generally validated this approach. Even when the cost of asserting an individual statutory claim far ...

Last month, the United States House of Representatives passed the Forced Arbitration Injustice Repeal Act, or the “FAIR Act.” The FAIR Act, should it be passed by the Senate and signed into law, would prohibit class action waivers and mandatory pre-dispute arbitration agreements in a wide range of disputes:

• Employment disputes that arise out of or relate to the work relationship or prospective work relationship, including disputes regarding discipline and/or termination of employment and terms of payment for advertising, recruiting, referrals and arrangements.
• Consumer ...

This post concerns a recurring topic in class-action practice: how a party—through its own litigation conduct—can waive its right to arbitrate.

The topic warrants attention, or at least came to our attention, because of a recent decision from a federal appellate court. The case, called Morgan v. Sundance, Inc., is a putative nationwide collective action filed under the Fair Labor Standards Act.

The defendant (Sundance) owns Taco Bell franchises in multiple states. The plaintiff (Robyn Morgan) worked at a Sundance restaurant in Iowa. She has accused Sundance of not paying her ...

Last Wednesday, the Supreme Court held in Lamps Plus, Inc. v. Varela, No. 17-988 (April 24, 2019) that an ambiguous agreement cannot authorize class arbitration. The 5-4 decision split along ideological lines, with Chief Justice Roberts writing for the Court’s conservative majority. Per Roberts’ opinion, the Federal Arbitration Act (FAA) requires both parties to an arbitration agreement to give their full consent to authorize class arbitration, a “markedly different” process than traditional individualized arbitration. In its 2010 decision in Stolt-Nielsen v ...

Brumfield v. Kindred Healthcare, Inc. is a putative collective action brought under the Fair Labor Standards Act by home health licensed nurses and physical therapist assistants alleging defendants failed to pay them overtime for required work activities beyond the “in-home” visits, including travel time, time spent transporting samples to labs, and time spent delivering medical supplies to patients. Four additional people elected to “opt-in” to the case and join the collective action, including Andrew Tyler, who worked in South Carolina.

Defendant Kindred ...

Yesterday, the United States Supreme Court, in a 5-4 opinion, held that an employer and its employees may agree to arbitrate claims on an individual, not a class-wide basis. Epic Systems Corp. v Lewis, No. 16-285 (U.S. May 21, 2018). Writing for the majority, Justice Gorsuch rejects the National Labor Relations Board’s view – in opposition to “77 years of precedent” – that the National Labor Relations Act “effectively nullifies the Arbitration Act.” The majority rendered its opinion against the backdrop of “battling briefs about the law’s meaning” from the ...

Last week, we observed that the Supreme Court appeared to be waiting for a ninth justice to decide in an important case involving appealability of class action certification decisions. A news report today* indicates that the Supreme Court has also pushed out arguments concerning the enforceability of class action waivers. As we recently reported in this space, the Court had agreed in three cases to decide whether the NLRA prohibits employers from requiring non-management employees covered by the NLRA to arbitrate their work-related claims individually. For employers ...

On Friday, the United States Supreme Court granted three petitions for certiorari to determine a quickly developing circuit split. The question before the Court is whether the National Labor Relations Board is correct in its interpretation that class action waiver provisions in certain employment arbitration agreements are illegal under federal labor law. Since 2011, when the U.S. Supreme Court permitted such waivers in AT&T Mobility LLC v. Concepcion, employers have relied upon them to require that disputes be resolved through individual arbitration. The NLRB over the past ...

Characterizing an unpublished 2007 decision to the contrary as a “thin reed” displaced by later Supreme Court guidance, the Fourth Circuit held that the question of whether an arbitration agreement permits class proceedings is a “gateway” issue for the court, and not a procedural question left to the arbitrator to decide. Del Webb Communities Inc. v. Carlson, No. 15-1385 (4th Cir. March 28, 2016). The case was filed after a builder – facing numerous construction defect claims and an arbitrator’s decision whether to certify those claims as a class proceeding – filed a ...

It is one thing for a federal trial court to decide, based on precedent and Rule 23, whether a class of individuals can be allowed – consistent with the principles of due process – to assert claims against a defendant.  But it is another – entirely – to contemplate an arbitrator making those decisions:  “class arbitration” can send chills down the spine of even the most seasoned defense lawyer. In NCR Corp. v. Jones, No. 3:15-cv-444 (Jan. 5, 2016), Judge Cogburn had to decide whether the parties’ arbitration agreement – which was silent on the subject – permitted class ...

On Monday, the Supreme Court held in DIRECTV, Inc. v. Imburgia that a California appellate court erred by declining to enforce an arbitration agreement that prohibits arbitration on a class-wide basis. The decision is the latest in a steady line from the Supreme Court chastising lower courts for failing to give effect to arbitration agreements. Perhaps most interesting, the opinion is written by Justice Breyer, who recently authored a dissent arguing that the Supreme Court has expanded the Federal Arbitration Act (FAA) too far. In the Imburgia opinion, Justice Breyer acknowledges ...

The Supreme Court began its new Term on October 5, and already the Court is slated to hear several cases that could have major impacts on class-action litigation. Among the issues facing the Court are:

▪ whether a defendant can render a putative class action moot by offering the named plaintiff all the relief the plaintiff could recover individually if the plaintiff were to prevail, even if the plaintiff rejects the offer (Campbell-Ewald Company v. Gomez);

▪ whether a plaintiff has standing to bring a claim (including a class claim) where the plaintiff’s statutory rights were ...

In recent companion decisions, the North Carolina Court of Appeals had to decide whether a governing North Carolina Supreme Court decision concerning class actions had to yield to a decision of the United States Supreme Court.

A contract is generally governed by state law, but when that contract includes an arbitration clause, the provisions of the Federal Arbitration Act come into play. The United States Supreme Court has wrestled with the intersection of the arbitration-friendly FAA and state law contractual defenses against contractual enforcement – like ...