Having Your Arbitration Clause and Waiving It, Too

• Date: 01 July 2020
• Author: Kelso L. Anderson

Published in Litigation News Volume 45, Number 4, Summer 20 20. © 2020 by the Ameri can Bar Association. Re produced with per mission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

Published in Litigation News Volume 45, Number 4, Summer 20 20. © 2020 by the Ameri can Bar Association. Re produced with per mission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

HAVING YOUR

ARBITRATION

CLAUSE AND

WAIVING IT,

TOO

By Kelso L. Anderson ,

Litigation News Associate Editor

Employers in service industries m ight reconsider class action

waivers in arbitration ag reements, or consider tailoring suc h

agreements wit h employees or independent contractors to

avoid paying costly arbitration fe es, in light of the federal cour t

decision in Aber nathy et al. v. DoorDash. Wh ile employers have

generally had succe ss in limiting legal options for con sumers and

employees, according to A BA Section of Litigation leaders, t he

plaintiffs i n arbitration may have found another way to make dispute

resolution of class claim s an expensive proposition for employers.

Contractual Terms Matter

In Abernathy, the plainti ffs were 5,879 employees or independent

contractors who worked as cour iers for the defendant, DoorDash,

Photo Illustra tion by Elmarie Jara © G etty Images