Ninth Circuit Issues an Amended Opinion in Richards v. Ernst & Young, LLP | Practical Law

Ninth Circuit Issues an Amended Opinion in Richards v. Ernst & Young, LLP | Practical Law

On December 9, 2013, the US Court of Appeals for the Ninth Circuit issued an amended opinion in Richards v. Ernst & Young, LLP, clarifying that it was not deciding the issue of plaintiff's argument relying on the National Labor Relations Board's (NLRB) decision in D.R. Horton, but merely noting that the majority of courts have not deferred to its holding.

Ninth Circuit Issues an Amended Opinion in Richards v. Ernst & Young, LLP

Practical Law Legal Update 8-551-5405 (Approx. 4 pages)

Ninth Circuit Issues an Amended Opinion in Richards v. Ernst & Young, LLP

by Practical Law Labor & Employment
Published on 11 Dec 2013 • USA (National/Federal)
On December 9, 2013, the US Court of Appeals for the Ninth Circuit issued an amended opinion in Richards v. Ernst & Young, LLP, clarifying that it was not deciding the issue of plaintiff's argument relying on the National Labor Relations Board's (NLRB) decision in D.R. Horton, but merely noting that the majority of courts have not deferred to its holding.
On December 9, 2013, the US Court of Appeals for the Ninth Circuit issued an amended opinion in Richards v. Ernst & Young, LLP, originally decided on August 21, 2013 (No. 11-17530 (9th Cir. Dec. 9, 2013)).
In its August 21, 2013 opinion (No. 11-17530, (9th Cir. Aug. 21, 2013), the Ninth Circuit declined to entertain the plaintiff's D.R. Horton argument, that arbitration agreements with class action waivers create an unfair labor practice under the NLRA, for three reasons:
  • Plaintiff raised this argument for the first time on appeal.
  • The NLRB's decision in D.R. Horton is inconsistent with Supreme Court precedent obligating courts to enforce arbitration agreements.
  • A majority of courts to decide the issue have not deferred to the NLRB.
For more information on the Ninth Circuit's August 21, 2013 decision, see Legal Update: Ninth Circuit Enforces Class Action Waiver in Arbitration Agreement.
In its December 9, 2013 opinion, the Ninth Circuit restated that it would not entertain the plaintiff's D.R. Horton argument because she failed to raise the argument before the district court. However, the Ninth Circuit omitted its earlier observation that courts are obligated by Supreme Court precedent to "rigorously enforce" arbitration agreements absent an express statement by Congress that the NLRA overrides any provision of the Federal Arbitration Act. Instead, the court clarified that "[w]ithout deciding the issue" it merely noted that the majority of courts have not deferred to the NLRB decision.