Recent Developments In Consumer and Employment Arbitration: Where We Are and How We Got There

Howard Miller Theane Evangelis Rex Heinke Judge William F. Highberger Cliff Palefsky
July 13, 2017


The idea of using arbitration to resolve disputes between businesses is centuries old, but the idea of using arbitration to resolve disputes between businesses and their customers and employees is relatively new. Thanks, in part, to the legal developments described below, this use of arbitration has become widespread, and businesses now routinely insert arbitration clauses in their agreements with consumers and employees. Consumer and employment arbitration has been justified on the grounds used to justify arbitration generally: arbitration is faster, simpler and cheaper than litigation, and is thus well suited to consumer and employment disputes, which particularly benefit from these attributes.


Theane Evangelis, Partner, Gibson Dunn & Crutcher LLP, Los Angeles, CA

Rex Heinke, Partner, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, CA

William Highberger, Judge, California Superior Court, Complex Civil Litigation Program, Los Angeles, CA

Howard Miller, Partner, Girardi Keese, Los Angeles, CA

Cliff Palefsky, Partner, Mcguinn, Hillsman & Palefsky, San Francisco, CA

Theane focuses on class actions and appellate litigation. She serves as Co-Chair of the firm's Class Actions Practice Group and Vice Chair of the California Appellate Practice Group. She has played a substantial role in a wide range of appellate, constitutional, and crisis management matters, as well as employment, consumer, and wage-and- hour class actions. Theane clerked for Justice Sandra Day O’Connor of the Supreme Court of the United States and the Honorable Alex Kozinski of the United States Court of Appeal for the Ninth Circuit after graduating summa cum laude from New York University School of Law. The Daily Journal has named her to its list of Top Women Lawyers in California, and Law360 has named her a Class Action MVP.

Rex is co-head of the firm's Supreme Court and appellate practice. He has argued almost a hundred and fifty appeals in federal and state courts throughout the country, involving, among other things, television camera access to courtrooms, alter ego, antitrust, attorneys’ fees, bankruptcy, billboards, class actions, complex business disputes, computer software, constitutional law, contracts, copyrights, criminal sentencing, defamation, docudramas, domestic and international arbitrations, drug testing, employment discrimination, environmental law, extraterritoriality of federal laws, false advertising, federal preemption, federal securities, foreign sovereign immunity, global warming, invasion of privacy, partition of real estate, personal jurisdiction/inconvenient forum, products liability, public records, reporters’ privilege, right of publicity, separation of powers, statutory interpretation, tax, telephone regulation, trademarks, trusts and estates, unfair competition, unsolicited faxes, wage and hour disputes, and wrongful termination. Recently, he has handled appeals or writs in the Second, Fifth, Seventh, Ninth, Tenth, and D.C. Circuits, the California Supreme Court, and the California Courts of Appeal, as well as cert. petitions in the U.S. Supreme Court. He is a fellow of the American and California Academies of Appellate Lawyers. Rex has lectured and written on appellate law for the University of Southern California, University of Houston, and University of California at Davis law schools. He has won numerous awards, including Best Lawyers in America’s L.A. Appellate Lawyer of the Year (2010), California Lawyer’s Lawyer of the Year (2009 and 2013), and Top 10 Southern California Super Lawyers (2014). He is a former member of the California Judicial Council and the California State Bar Board of Governors, and a past President of the Los Angeles County Bar Association.

Judge Highberger has been assigned to the Los Angeles Superior Court Complex Civil Litigation Program since March 2008. His docket primarily consists of class actions, complex civil cases, Judicial Council Coordinated Proceedings involving multiple tort claims from around the state and the nation, and other types of complex civil litigation. The substantial majority of his docket since 2013 has been wage-and- hour class actions. He and his colleagues in the Los Angeles Superior Court Complex Civil Litigation Program have one of the largest wage-and- hour class action dockets in the entire nation. He routinely deals with contested motions to compel arbitration in this context and frequently teaches other judges about this topic in CLE programs. He also routinely hears motions for approval of wage-and- hour class action settlements and other class-action settlements. While handling various mass-tort cases, he has held joint court sessions with the United States District Judge handling the counterpart MDL case involving In re Incretin Mimetics. He has also worked in cooperation with the Court of Common Pleas Judge in Philadelphia to facilitate the handling of overlapping mass-tort claims involving the prescription drug Risperdal®. He has been a judge since September 1998. He is a Fellow of the College Of Labor And Employment Lawyers, a Member of the American Law Institute and an Adviser to the ALI’s recently completed RESTATEMENT OF THE LAW, EMPLOYMENT LAW. He is also an Adviser to the ALI’s current project to draft a RESTATEMENT OF THE LAW, LIABILITY INSURANCE. Before his appointment to the court in September 1998, he was a partner in the labor and employment practice of Gibson, Dunn & Crutcher LLP in Los Angeles, CA and Washington, DC, where he handled both traditional labor-management disputes and individual and class litigation in state and federal court.

Howard heads the firm's International Dispute Resolution Practice, and practices intellectual property litigation, anti-trust, and general complex commercial litigation. He is a Fellow of The Chartered Institute of Arbitrators (FCIArb). Howard is also a former Professor of Law at USC Gould School of Law. He served as the 85th President of the State Bar of California during the 2009-2010 term.

Cliff has argued seven arbitration cases before the California Supreme Court including numerous landmark and precedent setting cases such as Armendariz v. Foundation Health Psychcare, Little v. Auto Stiegler, Gentry v. Circuit City and Sonic-Calabasas v. Moreno. He was also co-counsel in Circuit City v Adams, Duffield v Robertson Stevens and EEOC v Luce Forward and has been very involved in helping to draft legislation relating to arbitration at the state and federal levels. He was a founding board member of the National Employment Lawyers Association and served on its Executive Board for 10 years. He is the co-chair of NELA’s Mandatory Arbitration Task Force and was co-chair of the Privacy, ADR and Securities Industry Arbitration Committees. He also served on the Executive Board of the California Employment Lawyers Association for 12 years and is presently on the organization’s Advisory Board. Cliff was an advisor to the American Law Institute on the drafting of the Restatement of Employment Law and is a co-author of the CEB’s Wrongful Employment Termination Practice treatise. He is a Fellow in the College of Labor and Employment Lawyers and has authored numerous articles on employment law and mandatory arbitration. He is a frequent speaker nationally on subjects relating to employment law and the field of arbitration.

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