In “Wells Fargo Deal Would Prolong FLSA Notice Issue in 3rd Circ.” (February 6, 2023, Law360), Law360 article discusses a potential settlement between Wells Fargo and home mortgage consultants in a case about whether workers covered by arbitration agreements are entitled to receive court-authorized notice of wage and hour collective actions. The case centers on a provision in the Fair Labor Standards Act that lets a plaintiff ask the court to order the defendant to provide names and contact information for other workers who may have experienced the same alleged violation. If the settlement goes through, courts and practitioners in the Third Circuit will have to continue without binding precedent on the notice question. The Third Circuit covers federal courts in Pennsylvania, New Jersey and Delaware.
Pollock Cohen partner Raphael Janove, who represents workers, noted that, “… a settlement in the Wells Fargo case would deny the Third Circuit an opportunity to make precedent applying the U.S. Supreme Court's May ruling in Morgan v. Sundance Inc. In that case, the justices acknowledged their holdings over the years that there is a national policy favoring arbitration and reiterated their long-standing position that courts should enforce arbitration agreements with the same gusto as other types of contracts — no more, no less.” And went on to say, “So many courts have this mistaken impression that arbitration is special …Yes, there's a general policy in favor of arbitration, but that policy is that arbitration is treated the same as anything else, any other contractual provision."