Class Action Arbitrability under JAMS Employment Rules

 JAMS Employment Rules clearly and unmistakably provide that an arbitrator decides questions of class arbitrability.  Joseph Work v Intertek Resource Solutions,

Incorporated, United States District Court Southern District of Texas, USDC No. 4:22-CV-2960 (May 28, 2024).

Joseph Work filed an action against his former employer Intertek for overtime including class action relief.  The Agreement between the parties provides in relevant part:

Any arbitration required hereunder shall be governed by the Federal Arbitration Act and administered by JAMS pursuant to its Employment Arbitration Rules & Procedures and subject to JAMS policy on Employment Arbitration Minimum Standards of Procedural Fairness.

JAMS Employment Rule 11(b) provides in relevant part:

… [j]urisdictional and arbitrability disputes, including disputes over the ... interpretation or scope of the agreement under which Arbitration is sought, and who are proper parties to the Arbitration, shall be submitted to and ruled on by the Arbitrator.

Work argued that because the Arbitration Agreement incorporated the JAMS rules, there was a "clear and unmistakable" intent, by both parties, to delegate the question of class arbitrability to the arbitrator.

Intertek argued there was no consent to class arbitration in the Agreement and therefore questions of arbitrability should not be delegated to the arbitrator.  Intertek also argued the "pursuant to" language in the Arbitration Agreement is not clear and the circumstances here do not indicate intent to incorporate by reference.

A panel of the United States Court of Appeals for the Fifth Circuit ruled the language is "clear and unmistakable" and unequivocally delegates the question of class arbitrability to the arbitrator, not the court.

The Court noted it has already come to the same conclusion regarding language in 11(b) of JAMS Comprehensive Arbitration Rules & Procedures which is substantively identical to JAMS Employment Rule 11(b) in Cooper v WestEnd  Cap. Mgmt., L.L.C., 832 F3d 534 (5th Cir. 2016).

Note I have previously posted that the Texas Supreme Court has found that parties clearly and unmistakably delegated arbitrability issues to the arbitrator by agreeing to arbitrate their controversies in accord with the AAA Commercial Rules.  TotalEnergies E&P USA, Inc., v MP Gulf of Mexico, LOLC, No. 21-0028 (Tex. April 15, 2023).