Whitworth v. SolarCity Corp.

Filing 25

ORDER RE: MOTION TO COMPEL ARBITRATION. Signed by Magistrate Judge Jacqueline Scott Corley on 6/20/2016. (ahm, COURT STAFF) (Filed on 6/20/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RAVI WHITWORTH,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-01540-JSC
ORDER RE: MOTION TO COMPEL
ARBITRATION

v.
SOLARCITY CORP.,

Re: Dkt. No. 15

Defendant.

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Defendant SolarCity Corp. has filed a motion to compel arbitration which is set for hearing

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on June 30, 2016. (Dkt. No. 15.) The Court VACATES the hearing and ORDERS the parties to

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submit supplemental briefing regarding why the Court should not stay the matter pending the

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Ninth Circuit Court of Appeal’s disposition of Morris v. Ernst & Young, LLP, No. 13-16599,

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which was argued and submitted in November 2015.

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In opposing SolarCity’s motion to compel arbitration, Plaintiff contends that the

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representative/class action waiver in the arbitration agreement here is unenforceable because it

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runs afoul of the prohibition in the National Labor Relations Act of 1935 (“NLRA”) on

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restrictions on employee’s right to “concerted activity.” See 29 U.S.C. § 157. As the parties note,

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there is a circuit split on this issue with the Second, Fifth, and Eighth Circuit concluding that class

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action waivers do not violate the NLRA, and the Seventh Circuit taking the contrary position.

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Compare Sutherland v. Ernst & Young, LLP, 726 F.3d 290, 297 n.8 (2d Cir. 2013); D.R. Horton,

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Inc. v. N.L.R.B., 737 F.3d 344, 357 (5th Cir. 2013); Owen v. Bristol Care, Inc., 702 F.3d 1050,

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1055 (8th Cir. 2013); with Lewis v. Epic Sys. Corp., No. 15-2997, 2016 WL 3029464, at *10 (7th

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Cir. May 26, 2016). The Ninth Circuit has yet to resolve this issue, but is poised to do so in

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Morris v. Ernst & Young, LLP, No. 13-16599.

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Accordingly, the parties shall meet and confer on whether they agree the case should be

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stayed pending the Ninth Circuit’s decision. If so, they shall file a stipulation. If they do not

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agree to a stay, they shall simultaneously submit supplemental briefs not to exceed three pages

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addressing why the Court should not stay this matter while the appeal in Morris is pending. The

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briefs are due by July 1, 2016.

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IT IS SO ORDERED.

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Dated: June 20, 2016

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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United States District Court
Northern District of California

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