In his Outsourcing Justice blog, Professor Szalai comments on yet another decision from the Fifth Circuit on arbitration issues (Robinson v. J.K. Administrative Management Services, 5th Cir. Mar. 17, 2016).

The case involves the question of who decides whether class arbitration is permitted by an arbitration agreement. The agreement in question required arbitration of “claims for wages or other compensation,” “claims for a violation of any other federal, state, or governmental law, statute, regulation or ordinance,” and “claims challenging the validity or enforceability of this Agreement (in whole or in part) or challenging the applicability of the Agreement to a particular dispute or claim.”

The Fifth Circuit held that in light of the broad arbitration clause, the availability of class arbitration was a procedural question for the arbitrator to decide.

According to Professor Szalai:

The facts of Robinson appear to be unusual.  Typically, one sees employees file lawsuits in court, with the employee trying to avoid arbitration.   However, the employee in this case used an interesting strategy.  The employee, who was seeking overtime wages pursuant to the Fair Labor Standards Act, initiated a collective action in arbitration.  When the employer did not respond to the initiation of collective arbitration, the employee then filed suit in federal court, asking the court to compel arbitration and allow the arbitrator to determine whether class arbitration was permitted.    The district court agreed with the employee’s request to compel arbitration, with the arbitrator to decide the availability of class arbitration, and the Fifth Circuit affirmed.