On November 18, 2019, the United States Court of Appeals for the Second Circuit revived a potentially sweeping class action against Sterling Jewelers, Inc. (“Sterling”), holding that potentially tens of thousands of female employees could take part in an arbitration class involving claims of sex discrimination.  The Second Circuit’s holding is the latest in the case Jock v. Sterling Jewelers, Inc., an ongoing saga that has bounced between arbitration, the Southern District of New York, and the Second Circuit.

In 2008, a group of female Sterling employees brought claims alleging discrimination against female employees in pay and promotion opportunities.  Sterling successfully moved to compel arbitration, and in 2015, the arbitrator certified a class of approximately 44,000 employees, holding that the class would include all female employees of Sterling, and not just those who had asserted claims.  Sterling moved to vacate this determination, and in January 2018, District Court Judge Jed S. Rakoff held that the arbitrator exceed her powers by including in the class employees who had not affirmatively stated they wished to take part in it.

The Plaintiff class appealed, and on November 18, the Second Circuit reversed and remanded, holding that the arbitrator had the discretion to rule as she had.  Writing for the unanimous Panel, Circuit Judge Peter Hall stated that because all Sterling employees had signed arbitration agreements with the company (referred to as the “RESOLVE” Agreement), all employees had agreed to be bound by the arbitrator’s views of class membership.  The Court held “that the arbitrator’s determination that the [arbitration] agreement permits class arbitration binds the absent class members because, by signing the RESOLVE Agreement, they, no less than the parties, bargained for the arbitrator’s construction of that agreement with respect to class arbitrability.”

The Second Circuit followed the common doctrine requiring that arbitration decisions be reviewed under an extremely deferential standard.  As long as an arbitrator acts within the scope of her contractually delegated authority, her decision cannot be challenged, even if a court disagrees with it.  In other words, as the Second Circuit held, the District Court can only “decide that the arbitrator had the authority to reach such issues.”

In the case at hand, all Sterling employees, including absent class members, had authorized the arbitrator, by the terms of the RESOLVE Agreement, to determine whether claims could proceed on a class-wide basis, and if so, who would be included in the class.  The Agreement also stated that the arbitrator would determine all questions of arbitrability and procedural questions.  This determination was therefore a matter of contractual interpretation, and within the arbitrator’s discretion.

The case will now return to the District Court for a determination of whether the arbitrator acted within the scope of authority in certifying an opt-out rather than mandatory class, an issue that was not before the Second Circuit.  As this case has proceeded, the potential class of Sterling employees has grown as high as 70,000.  Accordingly, this recent decision will likely have strong implications for the parties’ next steps in this longstanding litigation.

Takeaway: Employers opting to permit class arbitration, and to defer questions of arbitrability to the arbitrator, should consider the consequences of that all-in approach.

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Photo of Jordan Glassberg Jordan Glassberg

Jordan Glassberg is an associate in the Labor & Employment Law Department. Jordan represents employers in a broad array of matters before federal and state courts, FINRA and other arbitration panels, and administrative agencies, including the Equal Employment Opportunity Commission.  Jordan’s practice includes…

Jordan Glassberg is an associate in the Labor & Employment Law Department. Jordan represents employers in a broad array of matters before federal and state courts, FINRA and other arbitration panels, and administrative agencies, including the Equal Employment Opportunity Commission.  Jordan’s practice includes a wide range of labor and employment matters, including employment discrimination, harassment, wage and hour claims, and wrongful termination.  Jordan has assisted in single-plaintiff lawsuits and class and collective actions.  Jordan also provides significant assistance on counseling matters on a wide array of issues.  Jordan has represented clients across many different industries, including financial services, sports, news and media, entertainment, real estate, and healthcare.  Jordan also maintains an active pro bono practice, focusing on assisting asylum seekers and disabled veterans.

Prior to joining Proskauer, Jordan clerked for the Honorable William H. Pauley III in the Southern District of New York.

Before clerking, Jordan graduated from Duke Law School, where he was managing editor of the Duke Journal of Constitutional Law & Public Policy and a member of Duke’s Moot Court and Mock Trial Boards. While at Duke, Jordan received the Labor and Employment Law Award for the Class of 2017, won the Hardt Cup 1L Moot Court Tournament and interned for the United States Attorney’s Office for the District of New Jersey.

Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.