131 Nev., Advance Opinion 71
IN THE SUPREME COURT OF THE STATE OF NEVADA
DENNIS TALLMAN, INDIVIDUALLY No. 60673
AND ON BEHALF OF OTHERS
SIMILARLY SITUATED,
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT FLED
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
SEP 2 it 2015
CLARK; AND THE HONORABLE CLE
E K. LINDEMAN
SUP EME MLEa
SUSAN JOHNSON, DISTRICT JUDGE, BY
HIE 1CLERK
Respondents,
and
CPS SECURITY (USA), INC.; AND CPS
CONSTRUCTION SECURITY PLUS,
INC.,
Real Parties in Interest.
DONALD MIKA; AND BERYL HARTER, No. 61390
INDIVIDUALLY AND ON BEHALF OF
OTHERS SIMILARLY SITUATED,
Petitioners,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
SUSAN JOHNSON, DISTRICT JUDGE,
Respondents,
and
CPS SECURITY (USA), INC.; AND CPS
CONSTRUCTION SECURITY PLUS,
INC.,
Real Parties in Interest.
Original petitions for writ of mandamus challenging district
court orders compelling arbitration in an employment action.
Petitions denied.
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• Leon Greenberg Professional Corporation and Leon M. Greenberg, Las
Vegas,
for Petitioners.
Kamer Zucker Abbott and Carol Davis Zucker and Timothy W. Roehrs,
Las Vegas,
for Real Parties in Interest.
BEFORE THE COURT EN BANC.
OPINION
By the Court, PICKERING, J.:
Petitioners Donald Mika, Beryl Harter, and Dennis Tallman
seek writs of mandamus directing the district court to vacate its orders
compelling arbitration of their claims against their former employer, real
party in interest CPS Security (USA), Inc., and certain of its agents and
associates (collectively, CPS). All three petitioners signed the same long-
form arbitration agreement, which includes a clause waiving the right to
initiate or participate in class actions. They urge this court to invalidate
the agreement, first, because it was not countersigned by CPS and, second,
because its class action waiver assertedly violates state and federal law.
Petitioner Tallman also maintains that CPS waived its right to compel
arbitration by litigating with him in state and federal court. The district
court acted properly in compelling individual arbitration of petitioners'
claims. We therefore deny writ relief
I.
A.
CPS provides security services to construction companies in
Nevada and elsewhere. Petitioners worked 50 to 70 hours per week for
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CPS as trailer guards. As a condition of their employment, CPS required
petitioners to sleep overnight in small trailers located at its work sites.
CPS did not pay petitioners for their sleep time except when they were
called out to respond to an alarm or other activity at the site. Petitioners
allege, and CPS denies, that they are owed at least the minimum wage for
the required on-site sleep time, whether called out during the night or not,
as well as overtime pay.
Petitioners signed both short- and long-form arbitration
agreements with CPS. The short-form agreement is entitled "Arbitration
Agreement (Outside CA)" and includes concise language assenting to
binding arbitration and providing that it can only be modified "by a
written instrument executed by EMPLOYEE and Chris Coffey, on behalf
of the COMPANY." The long-form agreement is entitled "Offer to
Participate in Arbitration of Disputes" and is much more detailed. It
specifies that arbitration shall be conducted pursuant to the JAMS
Employment Arbitration Rules at a location convenient to the employee
and provides for a written award, judicial review of the award, and for
CPS to bear the costs of arbitration, including the arbitrators' fees.
The long-form arbitration agreement includes a clause entitled
"Waiver of Right to Initiate or Participate in Collective or Class Actions."
This clause states that, "The Arbitrator shall not consolidate Claims of
different employees into one proceeding, nor shall the Arbitrator have the
power to hear arbitration as a class action." It continues:
By entering into this Agreement, the
Company [(CPS)] and I are agreeing to waive
rights we might otherwise have including, but not
limited to, the rights (a) to initiate representative
actions, collective actions, anchor class actions; and
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(b) to participate in representative actions,
collective actions, or class actions initiated by
others.
The long-form agreement also includes an acknowledgment
that CPS "is
engaged in transactions involving interstate commerce[
and] that the
employment relationship between us affects interstate comm
erce."
The long-form agreement has two signature pages. Each
of
the petitioners signed both pages of his or her long-form agree
ment. The
first signature page of the long-form agreement also includes
a signature
line for CPS, which CPS left blank and never signed. The seco
nd and final
signature page is set up for only the employee to sign. It
contains three
paragraphs, all in capital letters, headed "VOLUNTARY AGR
EEMENT,"
"RIGHT TO CONSULT COUNSEL," and "30 DAY PER
IOD TO OPT-
OUT." The paragraph headed "OPT-OUT" acknowledges "THA
T I WAS
ADVISED THAT CHOOSING TO SIGN THIS AGREEMENT
IS NOT A
CONDITION OF MY EMPLOYMENT," and that "I HAVE
BEEN GIVEN
A COPY OF MY SIGNED AGREEMENT AND HAVE A FUL
L THIRTY
(30) DAY PERIOD TO OPT-OUT OF THE AGREEMENT
IF I CHANGE
MY MIND."
B.
Tallman sued CPS in state court, asserting minimum wag
e
and overtime claims individually and on behalf of others simil
arly situated
under Nevada law, NRS Chapter 608, and the federal
Fair Labor
Standards Act (FLSA), 29 U.S.C. §§ 201-219 (2014). CPS
removed
Tallman's complaint to federal court, which retained juris
diction of the
FLSA claims but declined to exercise supplemental jurisdicti
on over, and
therefore remanded, the Nevada-law-based claims. Thereafte
r, Mika and
Harter filed a second state court suit against CPS. Their com
plaint, also
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styled as a class action, reasserts Tallman's NRS Chapter 608 claims
against CPS but adds new defendants and civil racketeering claims under
NRS Chapter 207. The two suits were assigned to the same district court
judge who, after briefing and argument, entered orders compelling
individual arbitration of Tallman's, Mika's, and Harter's claims and
denying their motions for class certification. It is from these orders that
Tallman, Mika, and Harter seek extraordinary writ relief.
Nevada has adopted the Uniform Arbitration Act of 2000
(UAA). NRS 38.206 to 38.248. Consistent with its policy favoring efficient
and expeditious enforcement of agreements to arbitrate, see NRS 38.219;
D.R. Horton, Inc. v. Green, 120 Nev. 549, 553, 96 P.3d 1159, 1162 (2004),
the Act authorizes interlocutory appeals from orders denying arbitration
but makes no provision for interlocutory appeals of orders compelling
arbitration. NRS 38.247(a)(1). We have said that the reason for not
allowing interlocutory appeals of orders compelling arbitration is
"obvious": "[If at the very threshold of the proceeding the defaulting party
could appeal and thereby indefinitely delay the matter of arbitration, the
object of the law [favoring arbitration] and the purpose of the written
agreement of the parties would be entirely defeated." Clark Cnty. v.
Empire Elec., Inc., 96 Nev. 18, 20, 604 P.2d 352, 353 (1980) (internal
quotations omitted) (addressing an earlier version of the UAA).
Since petitioners have no immediate right of direct appeal,
they ask this court to exercise original mandamus jurisdiction over the
district court's orders compelling arbitration. Mandamus affords
interlocutory appellate review in cases "where there is not a plain, speedy
and adequate remedy in the ordinary course of law." NRS 34.170. The
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petitioners assume, and CPS accepts, that they have no "plain, speedy and
adequate remedy" besides mandamus because NRS 38.247(a)(1) does not
provide for direct, interlocutory appeals from compelling arbitration. See
also Kindred v. Second Judicial Dist. Court, 116 Nev. 405, 409, 996 P.2d
903, 906 (2000) (reviewing an order compelling arbitration on a writ of
mandamus and "conclud[ing] that [petitioner] has no remedy available
other than that provided by a writ"). But error in ordering arbitration
may be reviewed on appeal from the final judgment or order confirming or
vacating the award, see NRS 38.247; Clark Cnty. v. Empire Elec., Inc., 96
Nev. at 20, 604 P.2d at 353, eventual appellate review that the Uniform
Arbitration Act deems adequate and appropriate. See In re Gulf
Exploration, LLC, 289 S.W.3d 836, 841-43 (Tex. 2009) (discussing the
tension between mandamus review of orders compelling arbitration and
"the legislative preference for moving cases to arbitration quickly" evident
in the Uniform Arbitration Act's withholding a right of direct interlocutory
appeal of such orders). Thus, the party seeking extraordinary writ relief
from an order compelling arbitration still should show why an eventual
appeal does not afford "a plain, speedy and adequate remedy in the
ordinary course of law," NRS 34.170, 1 and that the matter meets the other
'We question Kindred to the extent it suggests that orders
compelling arbitration automatically satisfy NRS 34.170's requirement
that there not be "a plain, speedy and adequate remedy in the ordinary
course of law." While the unavailability of an immediate appeal from an
order compelling arbitration may present a situation in which an eventual
appeal from the order confirming the award or other final judgment in the
case will not be plain, speedy, or adequate, it is an overstatement to say
this holds true in all cases where arbitration has been compelled. See
generally In re Gulf Exploration, 289 S.W.3d at 841-42 (rejecting the
argument that the lack of an immediate appeal from an order compelling
,
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criteria for extraordinary writ relief, i.e., that mandamus is needed "to
compel the performance of an act that the law requires or to control a
manifest abuse of discretion" by the district court. State ex rel. Masto v.
Second Judicial Dist. Court, 125 Nev. 37, 43-44, 199 P.3d 828, 832 (2009)
(also emphasizing that "the decision to entertain" a petition for mandamus
challenging an order compelling arbitration is not automatic, but a matter
"addressed solely to our discretion").
The parties do not meaningfully address the requirements for
extraordinary writ relief in their briefs. We nonetheless accept mandamus
review of the petitions before us for two reasons. First, our case law may
have invited the parties to assume that the lack of a right of interlocutory
direct appeal made mandamus readily available. See supra note 1;
Kindred, 116 Nev. at 409, 996 P.2d at 906; cf. Pan v. Eighth Judicial Dist.
Court, 120 Nev. 222, 228, 88 P.3d 840, 843-44 (2004) (although concluding
that appeal, not mandamus, is the appropriate vehicle to review orders
dismissing actions on forum non conveniens grounds, "because we
previously indicated that the proper method of review in this type of case
is a petition for a writ of mandamus, we will exercise our original
jurisdiction and consider this petition"). Second, our decision to invalidate
class action waivers in consumer arbitration agreements, see Picardi v.
Eighth Judicial Dist. Court, 127 Nev. 106, 251 P.3d 723 (2011), conflicts
with the Supreme Court's more recent decision in AT&T Mobility LLC v.
• . . continued
arbitration under the Texas version of the UAA could or should satisfy the
requirement that the party seeking mandamus show no adequate remedy
at law).
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Concepcion, 563 U.S. , 131 S. Ct. 1740 (2011), and petitioners present a
nonfrivolous argument that, notwithstanding Concepcion, the National
Labor Relations Act, 29 U.S.C. §§ 157, 158 (2014), may invalidate class
and collective action waivers in employment arbitration agreements. But
see D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013); Iskanian
v. CLS Transp. Los Angeles, LLC, 327 P.3d 129, 141-42 (Cal. 2014), cert.
denied, U.S. 135 S. Ct. 1155 (2015). The conflict between our
decision in Picardi and the Supreme Court's decision in Concepcion, and
the injury the petitioners and the class members they sought to represent
would suffer if the district court's orders compelling individual arbitration
proved wrong, together persuade us to consider the petitions on the
merits.
Petitioners raise a threshold question whether the long-form
arbitration agreement, which contains the objected-to class action waiver,
constitutes a valid contract. They contend that CPS's failure to sign the
long-form agreement makes it unenforceable and that the short-form
agreement, which CPS did sign and which does not include a class action
waiver clause, therefore controls. Petitioners Mika and Harter separately
argue that the additional defendants they sued, certain individuals and
entities associated with CPS, were not party to and cannot enforce either
form of arbitration agreement.
NRS 38.219(1) expresses Nevada's fundamental policy
favoring the enforceability of arbitration agreements. Similar to § 2 of the
Federal Arbitration Act (FAA), 9 U.S.C. § 2 (2013), it provides that, "An
agreement contained in a record to submit to arbitration any existing or
subsequent controversy arising between the parties to the agreement is
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valid, enforceable and irrevocable except .. . upon a ground that exists at
law or in equity for the revocation of a contract." "Whether a dispute
arising under a contract is arbitrable is a matter of contract
interpretation, which is a question of law that we review de novo." State
ex rel. Masto, 125 Nev. at 44, 199 P.3d at 832. "As a matter of public
policy, Nevada courts encourage arbitration and liberally construe
arbitration clauses in favor of granting arbitration." Id.
Petitioners' argument that CPS's failure to sign the long-form
arbitration agreement invalidates the agreement fails. While NRS
38.219(1) requires that the arbitration agreement be "contained in a
record," it does not require that the written record of the agreement to
arbitrate be signed. 1 Thomas H. Oehmke, Commercial Arbitration § 7:1,
at 7-2 (3d ed. 2014) (noting that, while the UAA requires that "the terms
of an arbitration agreement. . . be in a record," this only means that "the
arbitration contract must be in writingt1 neither the FAA nor the UAA
(2000) require that the arbitral contract be executed"); see also Campanelli
v. Conservas Altamira, S.A., 86 Nev. 838, 842, 477 P.2d 870, 872 (1970)
("Although an agreement to arbitrate future controversies must be in
writing, a signature is not required." (internal citations omitted)).
Petitioners dated and signed the short- and long-form
agreements together; that CPS did not pre-sign the latter makes sense
given the 30-day opt-out period the long-form agreement extended the
signing employee. We agree with the district court, which held that the
petitioners accepted the "offer" that was the long-form agreement when
they signed it and did not thereafter timely opt out. The clause in the
fully executed short-form agreement stating that "This Agreement can be
modified only by a written instrument executed by EMPLOYEE and Chris
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Coffey, on behalf of the COMPANY," does not alter the analysis.
Silver
Dollar Club v. Cosgriff Neon Co., Inc., 80 Nev. 108, 111, 389 P.2d
923, 924
(1964) ("Even where they include in the written contract an expre
ss
provision that it can only be modified or discharged by a subse
quent
agreement in writing, nevertheless their later oral agreement to modi
fy or
discharge their written contract is both provable and effective to
do so."
(quoting Simpson on Contracts § 63, at 228)); see UAA of 2000, § 6,
cmt. 1,
7 U.L.A., part 1A 25 (2009) (noting that if an initial writing agree
ing to
arbitration exists, "a subsequent oral agreement about term
s of an
arbitration contract is valid"); Patterson v. Raymours Furniture
Co., F.
Supp.3d , 2015 WL 1433219 *34 (S.D.N.Y. 2015) (enforcing revisions
to an arbitration agreement as acknowledged in an employee hand
book
and noting that, while the FAA requires a writing, it need not be signe
d).
Also unavailing is the argument by petitioners Mika and
Harter that the additional defendants they sued did not sign
and so
cannot enforce the CPS arbitration agreements. By its terms, the
long-
form arbitration agreement covers claims not only against CPS but
also
"against its officers, directors, managers, employees or agents." "Whe
n the
non-signatory party is an employee of the signatory corporation and
the
underlying action in the dispute was undertaken in the course
of the
employee's employment, there is a uniform federal rule, foun
ded on
general state law principles of agency: [if] 'a principal is bound under
the
terms of a valid arbitration clause, its agents, employees,
and
representatives are also covered under the terms of such agreement
s.'"
1 Thomas H. Oehmke, supra, 7:3, at 88 (2015 Supp.) (quoting
Pritzker v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110, 1121
(3d Cir.
1993)). The wrong that Mika and Harter allege they suffered ties direc
tly
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to CPS's trailer guard compensation and arbitration polic
ies, which they
allege the additional defendants, as CPS's "managers, offic
ers, directors
and/or controlling agents" and "agent or alter ego," devi
sed and carried
out. Given this record, the district court correctly treat
ed Mika's and
Harter's asserted claims against the additional defendan
ts named in their
complaint as covered by the long-form arbitration agreeme
nt they signed
with CPS.
IV.
A.
This brings us to the crux of the matter. Petitioners asse
rt
statutory overtime and minimum wage claims under NIB
S Chapter 608.
Prosecuted individually, these are relatively small-dollar
claims. If the
long-form arbitration agreement stands, petitioners
must proceed
individually, and not by class action. Petitioners opposed
CPS's motions to
compel arbitration with an affidavit from their counsel,
which estimates
the size of their potential recoveries and the likely expe
nse involved and
concludes that, if the class action waiver is enforced, purs
uing petitioners'
statutory claims is economically infeasible. Citing Gen
try v. Superior
Court, 165 P.3d 556, 567-68 (Cal. 2007) abrogation reco
gnized by Iskanian
v. CLS Transp. Los Angeles, LLC, 327 P.3d 129, 135-
36 (Cal. 2014),
petitioners urge us to invalidate the class action waiver
in the long-form
arbitration agreement on the grounds it violates substanti
ve state law by
depriving them of the means to vindicate their statutory
overtime and
minimum wage claims.
This court addressed the validity of a class action waiver
in an
arbitration agreement in Picardi v. Eighth Judicial Dist
rict Court, 127
Nev. 106, 251 P.3d 723 (2011). In Picardi, "we consider[
ed] whether an
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arbitration agreement is unenforceable because it is unconscionable or
contrary to public policy when it requires consumers to waive their rights
to participate in any form of class action litigation to pursue common
claims that they may have concerning a retail installment sales contract."
127 Nev. at 108, 251 P.3d at 724. Because "Nevada public policy favors
allowing consumer class action proceedings when the class• members
present common legal or factual questions but their individual claims may
be too small to be economically litigated on an individual basis," we held
"that a clause in a contract that prohibits a consumer from pursuing
claims through a class action, whether in court or through arbitration,
violates Nevada public policy." Id. Of note, the arbitration agreement in
Picardi specified that it "shall be governed by the Federal Arbitration
Act." Id. at 111, 251 P.3d at 726. Nonetheless, we concluded that "the
FAA does not require states to enforce arbitration agreements" that offend
substantive state policy. Id. at 112, 251 P.3d at 726. Because "the class
action waiver in the arbitration agreement violates [Nevada] public
policy," we deemed it unenforceable. Id. at 114, 251 P.3d at 728.
The United States Supreme Court handed down its decision in
Concepcion after we decided Picardi. At issue in Concepcion was whether
the FAA preempted California's Discover Bank rule;2 the Supreme Court
held that it did. In Discover Bank, the California Supreme Court had
held, much as we held in Picardi, that class arbitration waivers in the
context of consumer contracts of adhesion are unconscionable and
unenforceable when the amounts involved are too small to be challenged
2Discover Bank v. Superior Ct., 113 P.3d 1100 (Cal. 2005).
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individually, such that enforcing a class waiver allows the stronger party
to escape liability. 113 P.3d at 1109. The high court in Concepcion
invalidated the rule in Discover Bank. In its view, "[r] equiring the
availability of classwide arbitration interferes with fundamental
attributes of arbitration and thus creates a scheme inconsistent with the
FAA." 563 U.S. at , 131 S. Ct. at 1748. To require class arbitration, in
the face of an agreement disallowing resort to class action procedures,
"sacrifices the principal advantage of arbitration—its informality—and
makes the process slower, more costly, and more likely to generate
procedural morass than final judgment." Id. at , 131 S. Ct. at 1751.
Thus, "because it stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress, California's
Discover Bank rule is preempted by the FAA." Id. at , 131 S. Ct. at
1753 (internal quotation omitted).
Petitioners recognize that, although Concepcion does not
mention Picardi by name, the high court's opinion abrogates Picardi as
fully as it abrogates Discover Bank. Nonetheless, they urge us to
distinguish Concepcion on two bases. First, they insist that Concepcion is
limited to the consumer arbitration context and does not affect cases like
the underlying cases and Gentry, 165 P.3d at 567-68, in which the
California Supreme Court invalidated a class arbitration waiver on the
grounds that it made effective vindication of an employee's small-dollar
wage and overtime claims impossible. Second, they argue that Concepcion
only applies to cases litigated in federal, not state court. Neither
argument has merit.
The argument that Gentry survived Concepcion was
considered and rejected by the California Supreme Court in Iskanian v.
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CLS Transportation Los Angeles, LLC, 327 P.3d 129 (Cal. 2014). The
plaintiff in Iskanian was an employee who sought "to bring a class action
lawsuit on behalf of himself and similarly situated employees for his
employer's alleged failure to compensate its employees for, among other
things, overtime and meal and rest periods." 327 P.3d at 133. Like
petitioners here, Iskanian "had entered into an arbitration agreement that
waived the right to class proceedings." Id. He acknowledged that
Concepcion abrogated Discover Bank but tried to distinguish Gentry, as
follows: "Unlike Discover Bank, which held consumer class action bans
generally unconscionable, Gentry held only that when a statutory right is
unwaivable because of its public importance, banning class actions would
in some circumstances lead to a de facto waiver and would impermissibly
interfere with employees' ability to vindicate unwaivable rights and to
enforce the overtime laws." Id. at 135 (internal quotations omitted).
The California Supreme Court was not persuaded. In its view,
"the fact that Gentry's rule against class waiver is stated more narrowly
than Discover Bank's rule does not save it from FAA preemption under
Concepcion." Id. at 135. On this basis, the California Supreme Court
upheld the district court's order compelling individual arbitration of
Iskanian's wage and hour claims and held that Concepcion effectively
overruled Gentry, in addition to Discover Bank:
The high court in Concepcion made clear that even
if a state law rule against consumer class waivers
were limited to "class proceedings [that] are
necessary to prosecute small-dollar claims that
might otherwise slip through the legal system," it
would still be preempted because states cannot
require a procedure that interferes with
fundamental attributes of arbitration "even if it is
desirable for unrelated reasons." It is thus
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incorrect to say that the infirmity of Discover
Bank was that it did not require a case-specific
showing that the class waiver was exculpatory.
Concepcion holds that even if a class waiver is
exculpatory in a particular case, it is nonetheless
preempted by the FAA. Under the logic of
Concepcion, the FAA preempts Gentry's rule
against employment class waivers.
Id. at 135-36 (alteration in original) (quoting Concepcion, 563 U.S. at
131 S. Ct. at 1753). We agree with the California Supreme Court that,
while Concepcion specifically addressed class waivers in consumer
arbitration agreements, nothing in Concepcion suggests that the FAA
preemption principles it articulates do not apply broadly in other contexts,
including state-law-based wage and hour claims. We therefore reject
petitioners' argument that Concepcion does not apply to require individual
arbitration, as per the long-form arbitration agreements, of their NRS
Chapter 608 and other state-law claims.
Nor are petitioners correct that the FAA only applies to cases
litigated in federal court. By its terms, the Federal Arbitration Act
governs the enforceability of "a written provision in. . . a contract
evidencing a transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract or transaction." 9
U.S.C. § 2 (2013). So long as "commerce" is involved, the FAA applies.
"[Though state laws affecting arbitration can supplement the FAA in
areas not addressed by federal law," 1 Thomas H. Oehmke, supra, § 3:16,
at 41 (2015 Supp.), when the FAA applies, it preempts contrary state law
whether the preemption issue arises in state or federal court. Marmet
Health Care Center, Inc. v. Brown, 565 U.S. „ 132 S. Ct. 1201, 1203
(2012). The Supreme Court has made it unmistakably clear that state
courts "must abide by the FAA, which is `the supreme Law of the Land,'
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U.S. Const. art. VI, cl. 2, and by the opinions of [the Supreme] Court
interpreting that law." Nitro-Lift Techs., LLC v. Howard, 568 U.S. ,
133 S. Ct. 500, 503 (2012).
Petitioners' employment by CPS involves commerce. Indeed,
the long-form arbitration agreements so stipulate. Thus, the FAA applies.
Concepcion teaches that the FAA protects class waivers in arbitration
agreements, even when requiring individual arbitration hampers effective
vindication of statutory claims. See also Am. Express Co. v. Italian Colors
Rest., 570 U.S. „ 133 S. Ct. 2304, 2310 (2013) (upholding class
arbitration waiver under the FAA against the argument that doing so will
prevent vindication of small-dollar antitrust claims, thereby thwarting the
policies of the federal antitrust laws and noting, "[t]he class-action waiver
merely limits arbitration to the two contracting parties. It no more
eliminates those parties' right to pursue their statutory remedy than did
federal law before its adoption of the class action for legal relief in 1938."
(internal citations omitted)).
NRS 608.018 and NRS 608.250 afford Nevada employees the
right to overtime and minimum wage for work performed. So vital is the
right to a minimum wage that it is secured by the Nevada Constitution.
Nev. Const. art. 15, § 16. 3 But the importance of a right does not entitle a
3 Petitioners argue that class actions are a "remedy" protected by
Article 15, Section 16B of the Nevada Constitution, which guarantees
minimum wage and "all remedies available under the law or in equity
appropriate to remedy any violation" of the minimum wage law, "including
but not limited to back pay, damages, reinstatement or injunctive relief."
As the list of remedies suggests, a class action is a procedural device, not a
remedy. See D.R. Horton v. NLRB, 737 F.3d 344, 357 (5th Cir. 2013)
("Wile use of class action procedures . . . is not a substantive right" or
remedy; a class action is a procedural device). While a person's right to
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litigant to arbitrate on a class basis when he has agreed to arbitrate his
statutory claims on an individual basis. Concepcion, 563 U.S. at , 131
S. Ct. at 1753 ("States cannot require a procedure that is inconsistent with
the FAA, even if it is desirable for unrelated reasons."). Concepcion does
not permit a state court to invalidate a class arbitration waiver in a
transaction involving commerce on the basis that individual arbitration
hampers effective vindication of an employee's state-law-based overtime
and minimum wage claims.
B.
Petitioners next contend that the National Labor Relations
Act (NLRA), 29 U.S.C. § 151 et seq. (2014), invalidates the class action
waiver in the long-form arbitration agreement and that, as the more
specific and more recent law, the NLRA overcomes the FAA and its pro-
arbitration provisions. Section 7 of the NLRA grants covered employees
certain substantive rights, including the right "to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection." 29 U.S.C. § 157. Section 8(a)(1) of the NLRA
makes it illegal for an employer "to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed" by § 7. Id. § 158(a)(1).
Petitioners cite as support for their argument the decision of the National
Labor Relations Board (NLRB) in In re D.R. Horton, Inc., 357 N.L.R.B. No.
184, 2012 WL 36274, *1 (Jan. 3, 2012) (Horton I), enforcement denied in
. . • continued
minimum wage is unwaivable, Nev. Const. art. 15, § 16, he may validly
enter into an arbitration agreement that sets "not only the situs of suit but
also the procedure to be used in resolving" it. Scherk v. Alberto-Culver
Co., 417 U.S. 506, 519 (1974).
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part by D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013), holdi
ng
that it is unlawful under § 8 of the NLR.A for employers to requi
re that
employees agree to arbitrate all employment-related claims
on an
individual basis, thereby giving up their right under § 7 to access class
or
collective procedures in judicial or arbitral forums for their "mutual
aid or
protection." Accord Murphy Oil USA, Inc., 361 N.L.R.B. No. 72,
2014 WL
5465454 (Oct. 28, 2014). In the NLRB's view, this rule does not confl
ict
with the FAA because the FAA does not require enforcement of
illegal
contracts and because § 7 of the NLRA amounts to a "con
trary
congressional command" overriding the FAA. Id. at *12 (quoting
CompuCredit Corp. v. Greenwood, 565 U.S. , 132 S. Ct. 665, 668-
69
(2012)). 4
D.R. Horton filed a petition for review of the NLRB's decision,
and the Board cross-applied for enforcement of its order. On revie
w, the
United States Court of Appeals for the Fifth Circuit disagreed with
the
NLRB and overruled Horton I to the extent it invalidated
the class
arbitration waiver as illegal. D.R. Horton, Inc. v. NLRB, 737
F.3d 344,
359-61 (5th Cir. 2013) (Horton II). Relying on Concepcion
, the Fifth
Circuit concluded that the Board's decision in Horton I effect
ively
prohibits class action waivers, whether in an arbitral or judicial
forum,
and therefore constitutes "an actual impediment to arbitration
[that]
4Petitioners filed charges against CPS before the NLRB and
submitted to this court as a supplemental authority a copy
of an
administrative law judge's decision that, under Horton I, the
class action
waiver in the long-form arbitration agreement is illegal. CPS
filed
exceptions to the administrative law judge's decision. The NLRB
has yet
to resolve the exceptions or seek enforcement of the AL's decision.
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violates the FAA." Horton II, 737 F.3d at 359-60. The Fifth Circuit then
considered whether "the FAA's mandate" to enforce arbitration
agreements as written "has been 'overridden by a contrary congressional
command,'" id. (quoting CompuCredit, 565 U.S. , 132 S. Ct. at 669), and
concluded that In] either the NLRA's statutory text nor its legislative
history contains a congressional command against application of the FAA,"
id. at 361. Finally, the Fifth Circuit concluded that there is no inherent
conflict between the FAA and the NLRA and that, indeed, the "courts
repeatedly have understood the NLRA to permit and require arbitration."
Id.
Iskanian considered Horton I and Horton II in detail and
concluded, as we do, that Horton Ts invalidation of class arbitration
waivers cannot be reconciled with the FAA as authoritatively interpreted
by the Supreme Court in Concepcion and Italian Colors. Iskanian, 327
P.3d at 141-42. In light of the FAA's "liberal federal policy favoring
arbitration$ Concepcion, 563 U.S. at , 131 S. Ct. at 1745, §§ 7 and 8 of
the NLRA cannot fairly be taken as a "contrary congressional command"
sufficient under CompuCredit, 565 U.S. at , 132 S. Ct. at 669, to
override the FAA. Our conclusion in this regard is consistent with Horton
Iskanian, and with "the judgment of all the federal circuit courts and
most of the federal district courts that have considered the issue."
Iskanian, 327 P.3d at 142 (citing Sutherland v. Ernst & Young, LLP, 726
F.3d 290, 297 n.8 (2d Cir. 2013), Owen v. Bristol Care, Inc., 702 F.3d 1050,
1053-55 (8th Cir. 2013), and Delock v. Securitas Sec. Servs. USA, Inc., 883
F. Supp. 2d 784, 789-90 (E.D. Ark. 2012)); see also Richards v. Ernst &
Young, LLP, 744 F.3d 1072, 1075 n.3 (9th Cir. 2013) (similarly collecting
cases that "have determined that they should not defer to the NLRB's
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decision in D.R. Horton on the ground that it conflicts with the explicit
pronouncements of the Supreme Court concerning the policies
undergirding the Federal Arbitration Act").
V.
As to Tallman, a final issue of waiver remains. Petitioner
Tallman sued separately from petitioners Mika and Harter and included
in his complaint both class claims under NRS Chapter 608 and collective
claims under the FLSA, 29 U.S.C. § 216(b) (2014). CPS removed
Tallman's action to federal court based on the FLSA claims. The federal
court thereafter severed the FLSA from the state-law claims and
remanded the latter to state court. In its answer and in its exchanges
with Tallman, CPS demanded individual arbitration of Tallman's state-
law claims. But it did not formally move to compel arbitration of them
until those claims were remanded to state court. Tallman argues that
CPS waived its right to compel arbitration by removing the action• and
thereafter litigating Tallman's collective FLSA claims in federal court. Of
note, both Tallman and CPS assume that waiver was for the court, not the
arbitrator to decide.
Waiver of a contractual right to arbitration is not "lightly
inferred." Clark Cnty. v. Blanchard Const. Co., 98 Nev. 488, 491, 653 P.2d
1217, 1219 (1982). The party opposing arbitration must demonstrate that
"the party seeking to arbitrate (1) knew of his right to arbitrate, (2) acted
inconsistently with that right, and (3) prejudiced the other party by his
inconsistent acts." Nevada Gold & Casinos, Inc. v. Am. Heritage, Inc., 121
Nev. 84, 90, 110 P.3d 481, 485 (2005). Prejudice to the party opposing
arbitration is the "primary focus in determining whether arbitration has
been waived." Id. "Prejudice may be shown (1) when the parties use
discovery not available in arbitration, (2) when they litigate substantial
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issues on the merits, or (3) when compelling arbitration would require a
duplication of efforts." Id. at 90-91, 110 P.3d at 485.
The district court rejected Tallman's waiver argument. While
CPS knew of its right to arbitrate, the district court found that it did not
act inconsistently with that right by removing the case to federal court, or
prejudice Tallman by its activities in federal court. "Waiver is generally a
question of fact[, brut when the determination rests on the legal
implications of essentially uncontested facts, then it may be determined as
a matter of law." Id. at 89, 110 P.3d at 484 (internal citation omitted).
The record does not permit us to rule as a matter of law that
CPS waived its right to compel arbitration of Tallman's state-law claims,
much less to say that the district court acted arbitrarily or capriciously in
rejecting the waiver claim. The federal district court's order declining
supplemental jurisdiction and remanding Tallman's state-law claims to
state court authoritatively recites the history of proceedings in federal
court. It emphasizes, as the state district court did in finding no waiver,
that discovery had been stayed for a period of time to enable the parties to
pursue mediation. Cf. Dickinson v. Heinold Sec., Inc., 661 F.2d 638, 641
(7th Cir. 1981) (rejecting the argument that pursing settlement waives
arbitration in dispute involving both arbitrable and nonarbitrable claims).
In holding that Tallman's state-law claims substantially predominate over
their FLSA claims, justifying rejection of supplemental jurisdiction over
them, severance, and remand, the federal district court gave no indication
that it considered or addressed the state claims or class certification on
the merits. Indeed, the parties stipulated not to conduct discovery on
potential class members' damages until class certification was resolved.
This does not appear to be a case in which the party seeking arbitration
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"`test[ed] the judicial waters' before moving to compel arbitration
. Id. at
91, 110 P.3d at 485 (quoting Uwaydah v. Van Wert Cnty. Hasp.,
246 F.
Supp. 2d 808, 814 (N.D. Ohio 2002)).
Both sides appear to have assumed that the collective action
waiver in the long-form arbitration agreement could not be enforced
as to
Tallman's FLSA claims and/or that there is an inherent inconsisten
cy in
pursuing collective FLSA claims and class state-law claims in the
same
federal district court suit. See Mikel J. Sporer, In and Out: Reco
nciling
'Inherently Incompatible' Group Action Procedures Under FLSA
and Rule
23, 28 ABA J. Lab. & Emp. L. 367 (2013). Recent cases cast
doubt on both
assumptions. See Cohen v. UBS Fin. Servs., Inc., F.3d „ 2015
WL 3953348 (2d Cir. 2015); Ervin v. OS Restaurant Servs., Inc., 632
F.3d
971, 973-74 (7th Cir. 2011). But given the state of flux in the law on
these
issues, it is fair to credit the parties' assumptions that the collective
action
waiver could not be enforced as to Tallman's FLSA claims, and that
those
claims could not be litigated simultaneously with his state-law-based
class
action claims in federal court.
A defendant does not automatically waive his right to compel
arbitration by removing an action from state to federal court, Halim
v.
Great Gatsby's Auction Gallery, Inc., 516 F.3d 557, 562 (7th
Cir. 2008),
and "[w]here issues in litigation are separate and distinct from arbitr
able
controversies, no waiver. . . occurs." 3 Thomas H. Oehmke,
supra, §
50:35, at 50-58; see Sweater Bee by Banff, Ltd. v. Manhattan Indus
., Inc.,
754 F.2d 457, 463 (2d Cir. 1985). From the limited excerpts of recor
d we
have, it appears that the federal court proceedings did not prejudice
but
may actually have facilitated eventual arbitration of Tallman's state-
law
claims. His argument that denial of class arbitration prejudices unna
med
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potential class members may be true but follows from Concepcion, not
CPS's delay in moving to compel arbitration. See also Iskanian, 327 P.3d
at 143-44 (refusing to find waiver of the right to compel individual
arbitration where, as here, the motion to compel arbitration was filed
shortly after Concepcion abrogated Discover Bank and, by extension,
Gentry).
For these reasons, we conclude that writ relief is inappropriate
and therefore deny the petitions for extraordinary writ relief in these
cases.
) J.
Pickering
We concur:
, C.J.
Hardesty -lajta
Parraguirrer
DC) U-Ct Av•""
Douglas.
, J.
la
4ji or.
Saitta Gibbons
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(01 1947A ,24}0.
77