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In re JPMorgan Chase & Co.

United States Court of Appeals for the Fifth Circuit

February 21, 2019, Filed

No. 18-20825


 [*497]  JERRY E. SMITH, Circuit Judge:

JPMorgan Chase Bank N.A. ("Chase")1 petitions for a writ of mandamus2 after the district court conditionally certified a Fair Labor Standards Act ("FLSA") collective action and directed that approximately 42,000 current and former Chase employees receive notice of the litigation. Chase contends that about 35,000 (or 85%) of those individuals signed arbitration agreements waiving their right to proceed collectively against Chase and that those agreements should be enforced per their terms.

We have reviewed the petition, the response in opposition, petitioner's reply [**2]  in support, the respondent's surreply, the exhibits attached to those submissions, and the applicable law. We also heard full oral argument and commend the attorneys for their excellent briefing and advocacy on a contracted briefing schedule.

Chase has shown that the issue presented is irremediable on ordinary appeal and that the writ of mandamus is appropriate under the circumstances, but Chase  [*498]  has not shown a clear and indisputable right to the writ. We thus deny the petition. We hold, however, that the district court appears to have erred by ordering that notice be sent to employees who signed arbitration agreements (the "Arbitration Employees") and by requiring Chase to provide personal contact information for the Arbitration Employees. We continue the stay of the district court's December 10, 2018, order for thirty days to give the court full opportunity to reconsider that order.

] The FLSA permits collective actions in which "any one or more employees" may bring an action against their employer "for and on behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b) (2012). This petition arises from an FLSA action that began when Shannon Rivenbark sued Chase, alleging [**3]  that it had violated the FLSA by failing to compensate her and other employees at Chase's call centers for tasks they completed "off-the-clock."

Plaintiffs moved to certify conditionally a collective action that would include about 42,000 current and former call-center employees, and plaintiffs asked the district court to send notice of the action to all putative collective members. Chase responded that approximately 35,000 (or 85%) of the putative collective members had waived their right to proceed collectively by signing binding arbitration agreements.3 Chase averred that including those Arbitration Employees in the collective action and giving them notice of it "would be inconsistent" with the agreements and the Federal Arbitration Act ("FAA"). Plaintiffs did not contest that at least some employees had signed arbitration agreements containing waivers of class and collective action; moreover, plaintiffs represented that they did not intend to contest the validity or enforceability of those agreements. Instead, they maintained that employees who had valid arbitration agreements would arbitrate, and those who did not would proceed in court.

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916 F.3d 494 *; 2019 U.S. App. LEXIS 5155 **; 169 Lab. Cas. (CCH) P36,689

In re: JPMORGAN CHASE & COMPANY, Petitioner.

Prior History:  [**1] Petition for Writ of Mandamus to the United States District Court for the Southern District of Texas.

Rivenbark v. JPMorgan Chase & Co., 340 F. Supp. 3d 619, 2018 U.S. Dist. LEXIS 207695 (S.D. Tex., Dec. 10, 2018)


district court, notice, employees, Arbitration, collective action, arbitration agreement, mandamus, ordering, indisputable, certify, potential plaintiff, similarly situated, circumstances, conditionally, endorsement, appearance

Labor & Employment Law, Wage & Hour Laws, Remedies, Class Actions, Civil Procedure, Writs, Common Law Writs, Mandamus