                                                     131 Nev., Advance Opinion 71
                           IN THE SUPREME COURT OF THE STATE OF NEVADA

                    DENNIS TALLMAN, INDIVIDUALLY                         No. 60673
                    AND ON BEHALF OF OTHERS
                    SIMILARLY SITUATED,
                    Petitioner,
                    vs.
                    THE EIGHTH JUDICIAL DISTRICT
                                                                                ALE
                    COURT OF THE STATE OF NEVADA,                               SEP 2k 2015
                    IN AND FOR THE COUNTY OF
                                                                                aAcra K. UNDEMAN
                                                                                             F.L.-QB
                    CLARK; AND THE HONORABLE
                    SUSAN JOHNSON, DISTRICT JUDGE,                         BY                (nERK

                    Respondents,
                    and
                    CPS SECURITY (USA), INC.; AND CPS
                    CONSTRUCTION SECURITY PLUS,
                    INC.,
                    Real Parties in Interest.

                    DONALD MIKA; AND BERYL HARTER,                       No. 61390
                    INDIVIDUALLY AND ON BEHALF OF
                    OTHERS SIMILARLY SITUATED,
                    Petitioners,
                    vs.
                    THE EIGHTH JUDICIAL DISTRICT
                    COURT OF THE STATE OF NEVADA,
                    IN AND FOR THE COUNTY OF
                    CLARK; AND THE HONORABLE
                    SUSAN JOHNSON, DISTRICT JUDGE,
                    Respondents,
                    and
                    CPS SECURITY (USA), INC.; AND CPS
                    CONSTRUCTION SECURITY PLUS,
                    INC.,
                    Real Parties in Interest.


                               Original petitions for writ of mandamus challenging district
                    court orders compelling arbitration in an employment action.

                               Petitions denied.
SUPREME COURT
        OF



                                                                                        n - Z &5 2_
     NEVADA


(0) 194Th    etn>
                 Leon Greenberg Professional Corporation and Leon M. Greenberg, Las
                 Vegas,
                 for Petitioners.

                 Kamer Zucker Abbott and Carol Davis Zucker and Timothy W. Roehrs,
                 Las Vegas,
                 for Real Parties in Interest.




                 BEFORE THE COURT EN BANC.

                                                  OPINION
                 By the Court, PICKERING, J.:
                             Petitioners Donald Mika, Beryl Harter, and Dennis Tallman
                 seek writs of mandamus directing the district court to vacate its orders
                 compelling arbitration of their claims against their former employer, real
                 party in interest CPS Security (USA), Inc., and certain of its agents and
                 associates (collectively, CPS). All three petitioners signed the same long-
                 form arbitration agreement, which includes a clause waiving the right to
                 initiate or participate in class actions. They urge this court to invalidate
                 the agreement, first, because it was not countersigned by CPS and, second,
                 because its class action waiver assertedly violates state and federal law.
                 Petitioner Tallman also maintains that CPS waived its right to compel
                 arbitration by litigating with him in state and federal court. The district
                 court acted properly in compelling individual arbitration of petitioners'
                 claims. We therefore deny writ relief.
                                                      I.
                                                      A.
                             CPS provides security services to construction companies in
                 Nevada and elsewhere. Petitioners worked 50 to 70 hours per week for
SUPREME COURT
        OF
     NEVADA
                                                      2
(0) 1947A    e
                   CPS as trailer guards. As a condition of their employment, CPS required
                   petitioners to sleep overnight in small trailers located at its work sites.
                   CPS did not pay petitioners for their sleep time except when they were
                   called out to respond to an alarm or other activity at the site. Petitioners
                   allege, and CPS denies, that they are owed at least the minimum wage for
                   the required on-site sleep time, whether called out during the night or not,
                   as well as overtime pay.
                               Petitioners signed both short- and long-form arbitration
                   agreements with CPS. The short-form agreement is entitled "Arbitration
                   Agreement (Outside CA)" and includes concise language assenting to
                   binding arbitration and providing that it can only be modified "by a
                   written instrument executed by EMPLOYEE and Chris Coffey, on behalf
                   of the COMPANY." The long-form agreement is entitled "Offer to
                   Participate in Arbitration of Disputes" and is much more detailed. It
                   specifies that arbitration shall be conducted pursuant to the JAMS
                   Employment Arbitration Rules at a location convenient to the employee
                   and provides for a written award, judicial review of the award, and for
                   CPS to bear the costs of arbitration, including the arbitrators' fees.
                               The long-form arbitration agreement includes a clause entitled
                   "Waiver of Right to Initiate or Participate in Collective or Class Actions."
                   This clause states that, "The Arbitrator shall not consolidate Claims of
                   different employees into one proceeding, nor shall the Arbitrator have the
                   power to hear arbitration as a class action." It continues:
                                     By entering into this Agreement, the
                               Company [(CPS)] and I are agreeing to waive
                               rights we might otherwise have including, but not
                               limited to, the rights (a) to initiate representative
                               actions, collective actions, and/or class actions; and


SUPREME COURT
        OF
     NEVADA
                                                          3
(0) 1947A ct:Sto
                            (b) to participate in representative actions,
                            collective actions, or class actions initiated by
                            others.
                The long-form agreement also includes an acknowledgment that CPS "is          •




                engaged in transactions involving interstate commerce [ and] that the
                employment relationship between us affects interstate commerce."
                            The long-form agreement has two signature pages. Each of
                the petitioners signed both pages of his or her long-form agreement. The
                first signature page of the long-form agreement• also includes a signature
                line for CPS, which CPS left blank and never signed. The second and final
                signature page is set up for only the employee to sign. It contains three
                paragraphs, all in capital letters, headed "VOLUNTARY AGREEMENT,"
                "RIGHT TO CONSULT COUNSEL," and "30 DAY PERIOD TO OPT-
                OUT." The paragraph headed "OPT-OUT" acknowledges "THAT I WAS
                ADVISED THAT CHOOSING TO SIGN THIS AGREEMENT IS NOT A
                CONDITION OF MY EMPLOYMENT," and that "I HAVE BEEN GIVEN
                A COPY OF MY SIGNED AGREEMENT AND HAVE A FULL THIRTY
                (30) DAY PERIOD TO OPT-OUT OF THE AGREEMENT IF I CHANGE
                MY MIND."
                                                    B.
                            Tallman sued CPS in state court, asserting minimum wage
                and overtime claims individually and on behalf of others similarly situated
                under Nevada law, NRS Chapter 608, and the federal Fair Labor
                Standards Act (FLSA), 29 U.S.C. §§ 201-219 (2014). CPS removed
                Tallman's complaint to federal court, which retained jurisdiction of the
                FLSA claims but declined to exercise supplemental jurisdiction over, and
                therefore remanded, the Nevada-law-based claims. Thereafter, Mika and
                Harter filed a second state court suit against CPS. Their complaint, also

SUPREME COURT
        OF
     NEVADA
                                                     4
(0) I947A
                     styled as a class action, reasserts Tallman's NRS Chapter 608 claims
                     against CPS but adds new defendants and civil racketeering claims under
                     NRS Chapter 207. The two suits were assigned to the same district court
                     judge who, after briefing and argument, entered orders compelling
                     individual arbitration of Tallman's, Mika's, and Harter's claims and
                     denying their motions for class certification. It is from these orders that
                     Tallman, Mika, and Harter seek extraordinary writ relief.


                                 Nevada has adopted the Uniform Arbitration Act of 2000
                     (UAA). NRS 38.206 to 38.248. Consistent with its policy favoring efficient
                     and expeditious enforcement of agreements to arbitrate, see NRS 38.219;
                     D.R. Horton, Inc. v. Green, 120 Nev. 549, 553, 96 P.3d 1159, 1162 (2004),
                     the Act authorizes interlocutory appeals from orders denying arbitration
                     but makes no provision for interlocutory appeals of orders compelling
                     arbitration. NRS 38.247(a)(1). We have said that the reason for not
                     allowing interlocutory appeals of orders compelling arbitration is
                     "obvious": "[If at the very threshold of the proceeding the defaulting party
                     could appeal and thereby indefinitely delay the matter of arbitration, the
                     object of the law [favoring arbitration] and the purpose of the written
                     agreement of the parties would be entirely defeated."        Clark Cnty. v.
                     Empire Elec., Inc., 96 Nev. 18, 20, 604 P.2d 352, 353 (1980) (internal
                     quotations omitted) (addressing an earlier version of the UAA).
                                 Since petitioners have no immediate right of direct appeal,
                     they ask this court to exercise original mandamus jurisdiction over the
                     district court's orders compelling arbitration. Mandamus affords
                     interlocutory appellate review in cases "where there is not a plain, speedy
                     and adequate remedy in the ordinary course of law." NRS 34.170. The

SUPREME COURT
       OF
     NEVADA
                                                          5
(0) 1947A 4.74B449
                   petitioners assume, and CPS accepts, that they have no "plain, speedy and
                   adequate remedy" besides mandamus because NRS 38.247(a)(1) does not
                   provide for direct, interlocutory appeals from compelling arbitration.   See
                   also Kindred v. Second Judicial Dist. Court, 116 Nev. 405, 409, 996 P.2d
                   903, 906 (2000) (reviewing an order compelling arbitration on a writ of
                   mandamus and "concludfing] that [petitioner] has no remedy available
                   other than that provided by a writ"). But error in ordering arbitration
                   may be reviewed on appeal from the final judgment or order confirming or
                   vacating the award, see NRS 38.247; Clark Cnty. v. Empire Elec., Inc., 96
                   Nev. at 20, 604 P.2d at 353, eventual appellate review that the Uniform
                   Arbitration Act deems adequate and appropriate.            See In re Gulf
                   Exploration, LLC, 289 S.W.3d 836, 841-43 (Tex. 2009) (discussing the
                   tension between mandamus review of orders compelling arbitration and
                   "the legislative preference for moving cases to arbitration quickly" evident
                   in the Uniform Arbitration Act's withholding a right of direct interlocutory
                   appeal of such orders). Thus, the party seeking extraordinary writ relief
                   from an order compelling arbitration still should show why an eventual
                   appeal does not afford "a plain, speedy and adequate remedy in the
                   ordinary course of law," NRS 34.170, 1 and that the matter meets the other


                         1 We question Kindred to the extent it suggests that orders
                   compelling arbitration automatically satisfy NRS 34.170's requirement
                   that there not be "a plain, speedy and adequate remedy in the ordinary
                   course of law." While the unavailability of an immediate appeal from an
                   order compelling arbitration may present a situation in which an eventual
                   appeal from the order confirming the award or other final judgment in the
                   case will not be plain, speedy, or adequate, it is an overstatement to say
                   this holds true in all cases where arbitration has been compelled. See
                   generally In re Gulf Exploration, 289 S.W.3d at 841-42 (rejecting the
                   argument that the lack of an immediate appeal from an order compelling
                                                                    continued on next page. . .
SUPREME COURT
       OF
    NEVADA
                                                         6
(0) 1947A 94A94)
                 criteria for extraordinary writ relief, i.e., that mandamus is needed "to
                 compel the performance of an act that the law requires or to control a
                 manifest abuse of discretion" by the district court.   State ex rd. Masto v.
                 Second Judicial Dist. Court, 125 Nev. 37, 43-44, 199 P.3d 828, 832 (2009)
                 (also emphasizing that "the decision to entertain" a petition for mandamus
                 challenging an order compelling arbitration is not automatic, but a matter
                 "addressed solely to our discretion").
                              The parties do not meaningfully address the requirements for
                 extraordinary writ relief in their briefs. We nonetheless accept mandamus
                 review of the petitions before us for two reasons. First, our case law may
                 have invited the parties to assume that the lack of a right of interlocutory
                 direct appeal made mandamus readily available.           See supra note 1;
                 Kindred, 116 Nev. at 409, 996 P.2d at 906; cf. Pan v. Eighth Judicial Dist.
                 Court, 120 Nev. 222, 228, 88 P.3d 840, 843-44 (2004) (although concluding
                 that appeal, not mandamus, is the appropriate vehicle to review orders
                 dismissing actions on forum non conveniens grounds, "because we
                 previously indicated that the proper method of review in this type of case
                 is a petition for a writ of mandamus, we will exercise our original
                 jurisdiction and consider this petition"). Second, our decision to invalidate
                 class action waivers in consumer arbitration agreements, see Picardi v.
                 Eighth Judicial Dist, Court, 127 Nev. 106, 251 P.3d 723 (2011), conflicts
                 with the Supreme Court's more recent decision in AT&T Mobility LLC v.



                 • . . continued
                 arbitration under the Texas version of the UAA could or should satisfy the
                 requirement that the party seeking mandamus show no adequate remedy
                 at law).


SUPREME COURT
        OF
     NEVADA
                                                          7
(0) 1947A    e
                   Concepcion, 563 U.S.      , 131 S. Ct. 1740 (2011), and petitioners present a
                   nonfrivolous argument that, notwithstanding Concepcion, the National
                   Labor Relations Act, 29 U.S.C. §§ 157, 158 (2014), may invalidate class
                   and collective action waivers in employment arbitration agreements.      But
                   see D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013); Iskanian
                   v. CLS Transp. Los Angeles, LLC,     327 P.3d 129, 141-42 (Cal. 2014), cert.
                   denied,      U.S. 135 S. Ct. 1155 (2015). The conflict between our
                   decision in Picardi and the Supreme Court's decision in Concepcion, and
                   the injury the petitioners and the class members they sought to represent
                   would suffer if the district court's orders compelling individual arbitration
                   proved wrong, together persuade us to consider the petitions on the
                   merits.


                               Petitioners raise a threshold question whether the long-form
                   arbitration agreement, which contains the objected-to class action waiver,
                   constitutes a valid contract. They contend that CPS's failure to sign the
                   long-form agreement makes it unenforceable and that the short-form
                   agreement, which CPS did sign and which does not include a class action
                   waiver clause, therefore controls. Petitioners Mika and Harter separately
                   argue that the additional defendants they sued, certain individuals and
                   entities associated with CPS, were not party to and cannot enforce either
                   form of arbitration agreement.
                               NRS 38.219(1) expresses Nevada's fundamental policy
                   favoring the enforceability of arbitration agreements. Similar to § 2 of the
                   Federal Arbitration Act (FAA), 9 U.S.C. § 2 (2013), it provides that, "An
                   agreement contained in a record to submit to arbitration any existing or
                   subsequent controversy arising between the parties to the agreement is

SUPREME COURT
       OF
    NEVADA
                                                         8
(0) 1947A 4224.7
                valid, enforceable and irrevocable except. . . upon a ground that exists at
                law or in equity for the revocation of a contract." "Whether a dispute
                arising under a contract is arbitrable is a matter of contract
                interpretation, which is a question of law that we review de novo." State
                ex rel. Masto, 125 Nev. at 44, 199 P.3d at 832. "As a matter of public
                policy, Nevada courts encourage arbitration and liberally construe
                arbitration clauses in favor of granting arbitration." Id.
                            Petitioners' argument that CPS's failure to sign the long-form
                arbitration agreement invalidates the agreement fails. While NRS
                38.219(1) requires that the arbitration agreement be "contained in a
                record," it does not require that the written record of the agreement to
                arbitrate be signed. 1 Thomas H. Oehmke, Commercial Arbitration § 7:1,
                at 7-2 (3d ed. 2014) (noting that, while the UAA requires that "the terms
                of an arbitration agreement . . . be in a record," this only means that "the
                arbitration contract must be in writing [;I neither the FAA nor the UAA
                (2000) require that the arbitral contract be executed"); see also Campanelli
                v. Conservas Altamira, S.A., 86 Nev. 838, 842, 477 P.2d 870, 872 (1970)
                ("Although an agreement to arbitrate future controversies must be in
                writing, a signature is not required." (internal citations omitted)).
                            Petitioners dated and signed the short- and long-form
                agreements together; that CPS did not pre-sign the latter makes sense
                given the 30-day opt-out period the long-form agreement extended the
                signing employee. We agree with the district court, which held that the
                petitioners accepted the "offer" that was the long-form agreement when
                they signed it and did not thereafter timely opt out. The clause in the
                fully executed short-form agreement stating that "This Agreement can be
                modified only by a written instrument executed by EMPLOYEE and Chris

SUPREME COURT
         OF
      NEVADA
                                                       9
(01 I 947A
                Coffey, on behalf of the COMPANY," does not alter the analysis.         Silver
                Dollar Club v. Cosgriff Neon Co., Inc., 80 Nev. 108, 111, 389 P.2d 923, 924
                (1964) ("Even where they include in the written contract an express
                provision that it can only be modified or discharged by a subsequent
                agreement in writing, nevertheless their later oral agreement to modify or
                discharge their written contract is both provable and effective to do so."
                (quoting Simpson on Contracts § 63, at 228)); see UAA of 2000, § 6, cmt. 1,
                7 U.L.A., part 1A 25 (2009) (noting that if an initial writing agreeing to
                arbitration exists, "a subsequent oral agreement about terms of an
                arbitration contract is valid"); Patterson v. Raymours Furniture Co.,        F.
                Supp.3d     , 2015 WL 1433219 *3-4 (S.D.N.Y. 2015) (enforcing revisions
                to an arbitration agreement as acknowledged in an employee handbook
                and noting that, while the FAA requires a writing, it need not be signed).
                            Also unavailing is the argument by petitioners Mika and
                Harter that the additional defendants they sued did not sign and so
                cannot enforce the CPS arbitration agreements. By its terms, the long-
                form arbitration agreement covers claims not only against CPS but also
                "against its officers, directors, managers, employees or agents." "When the
                non-signatory party is an employee of the signatory corporation and the
                underlying action in the dispute was undertaken in the course of the
                employee's employment, there is a uniform federal rule, founded on
                general state law principles of agency: [ifl 'a principal is bound under the
                terms of a valid arbitration clause, its agents, employees, and
                representatives are also covered under the terms of such agreements."
                1 Thomas H. Oehmke, supra, 7:3, at 88 (2015 Supp.) (quoting Pritzker v.
                Merrill Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110, 1121 (3d Cir.
                1993)). The wrong that Mika and Harter allege they suffered ties directly

SUPREME COURT
        OF
     NEVADA
                                                     10
(0) 1947A -
                to CPS's trailer guard compensation and arbitration policies, which they
                allege the additional defendants, as CPS's "managers, officers, directors
                and/or controlling agents" and "agent or alter ego," devised and carried
                out. Given this record, the district court correctly treated Mika's and
                Harter's asserted claims against the additional defendants named in their
                complaint as covered by the long-form arbitration agreement they signed
                with CPS.
                                                     IV.
                                                     A.
                            This brings us to the crux of the matter. Petitioners assert
                statutory overtime and minimum wage claims under NRS Chapter 608.
                Prosecuted individually, these are relatively small-dollar claims. If the
                long-form arbitration agreement stands, petitioners must proceed
                individually, and not by class action. Petitioners opposed CPS's motions to
                compel arbitration with an affidavit from their counsel, which estimates
                the size of their potential recoveries and the likely expense involved and
                concludes that, if the class action waiver is enforced, pursuing petitioners'
                statutory claims is economically infeasible. Citing Gentry v. Superior
                Court, 165 P.3d 556, 567-68 (Cal. 2007) abrogation recognized by Iskanian
                v. CLS Transp. Los Angeles, LLC,          327 P.3d 129, 135-36 (Cal. 2014),
                petitioners urge us to invalidate the class action waiver in the long-form
                arbitration agreement on the grounds it violates substantive state law by
                depriving them of the means to vindicate their statutory overtime and
                minimum wage claims.
                            This court addressed the validity of a class action waiver in an
                arbitration agreement in Picardi v. Eighth Judicial District Court, 127
                Nev. 106, 251 P.3d 723 (2011). In Picardi, "we consider[ed] whether an

SUPREME COURT
        OF
     NEVADA
                                                     11
(0) 1947A
                 arbitration agreement is unenforceable because it is unconscionable or
                 contrary to public policy when it requires consumers to waive their rights
                 to participate in any form of class action litigation to pursue common
                 claims that they may have concerning a retail installment sales contract."
                 127 Nev. at 108, 251 P.3d at 724. Because "Nevada public policy favors
                 allowing consumer class action proceedings when the class members
                 present common legal or factual questions but their individual claims may
                 be too small to be economically litigated on an individual basis," we held
                 "that a clause in a contract that prohibits a consumer from pursuing
                 claims through a class action, whether in court or through arbitration,
                 violates Nevada public policy." Id. Of note, the arbitration agreement in
                 Picardi specified that it "shall be governed by the Federal Arbitration
                 Act." Id. at 111, 251 P.3d at 726. Nonetheless, we concluded that "the
                 FAA does not require states to enforce arbitration agreements" that offend
                 substantive state policy. Id. at 112, 251 P.3d at 726. Because "the class
                 action waiver in the arbitration agreement violates [Nevada] public
                 policy," we deemed it unenforceable. Id. at 114, 251 P.3d at 728.
                             The United States Supreme Court handed down its decision in
                 Concepcion after we decided Picardi. At issue in Concepcion was whether
                 the FAA preempted California's Discover Bank rule; 2 the Supreme Court
                 held that it did. In Discover Bank, the California Supreme Court had
                 held, much as we held in Picardi, that class arbitration waivers in the
                 context of consumer contracts of adhesion are unconscionable and
                 unenforceable when the amounts involved are too small to be challenged



                       2Discover   Bank v. Superior Ct., 113 P.3d 1100 (Cal. 2005).


SUPREME COURT
        OF
     NEVADA
                                                       12
(0) 1947A    e
                individually, such that enforcing a class waiver allows the stronger party
                to escape liability. 113 P.3d at 1109. The high court in Concepcion
                invalidated the rule in Discover Bank.        In its view, "Hequiring the
                availability of classwide arbitration interferes with fundamental
                attributes of arbitration and thus creates a scheme inconsistent with the
                FAA." 563 U.S. at , 131 S. Ct. at 1748. To require class arbitration, in
                the face of an agreement disallowing resort to class action procedures,
                "sacrifices •the principal advantage of arbitration—its informality—and
                makes the process slower, more costly, and more likely to generate
                procedural morass than final judgment."    Id. at , 131 S. Ct. at 1751.
                Thus, "because it stands as an obstacle to the accomplishment and
                execution of the full purposes and objectives of Congress, California's
                Discover Bank rule is preempted by the FAA." Id. at , 131 S. Ct. at
                1753 (internal quotation omitted).
                            Petitioners recognize that, although Concepcion does not
                mention Picardi by name, the high court's opinion abrogates Picardi as
                fully as it abrogates Discover Bank.       Nonetheless, they urge us to
                distinguish Concepcion on two bases. First, they insist that Concepcion is
                limited to the consumer arbitration context and does not affect cases like
                the underlying cases and Gentry, 165 P.3d at 567-68, in which the
                California Supreme Court invalidated a class arbitration waiver on the
                grounds that it made effective vindication of an employee's small-dollar
                wage and overtime claims impossible. Second, they argue that Concepcion
                only applies to cases litigated in federal, not state court. Neither
                argument has merit.
                            The argument that        Gentry    survived   Concepcion   was
                considered and rejected by the California Supreme Court in Iskanian v.

SUPREME COURT
        OF
     NEVADA
                                                     13
(0) I947A
                CLS Transportation Los Angeles, LLC, 327 P.3d 129 (Cal. 2014). The
                plaintiff in Iskanian was an employee who sought "to bring a class action
                lawsuit on behalf of himself and similarly situated employees for his
                employer's alleged failure to compensate its employees for, among other
                things, overtime and meal and rest periods." 327 P.3d at 133. Like
                petitioners here, Iskanian "had entered into an arbitration agreement that
                waived the right to class proceedings."       Id.   He acknowledged that
                Concepcion abrogated Discover Bank but tried to distinguish Gentry, as
                follows: "Unlike Discover Bank, which held consumer class action bans
                generally unconscionable, Gentry held only that when a statutory right is
                unwaivable because of its public importance, banning class actions would
                in some circumstances lead to a de facto waiver and would impermissibly
                interfere with employees' ability to vindicate unwaivable rights and to
                enforce the overtime laws." Id. at 135 (internal quotations omitted).
                            The California Supreme Court was not persuaded. In its view,
                "the fact that Gentry's rule against class waiver is stated more narrowly
                than Discover Bank's rule does not save it from FAA preemption under
                Concepcion." Id. at 135. On this basis, the California Supreme Court
                upheld the district court's order compelling individual arbitration of
                Iskanian's wage and hour claims and held that Concepcion effectively
                overruled Gentry, in addition to Discover Bank:
                            The high court in Concepcion made clear that even
                            if a state law rule against consumer class waivers
                            were limited to "class proceedings [that] are
                            necessary to prosecute small-dollar claims that
                            might otherwise slip through the legal system," it
                            would still be preempted because states cannot
                            require a procedure that interferes with
                            fundamental attributes of arbitration "even if it is
                            desirable for unrelated reasons." It is thus
SUPREME COURT
        OF
     NEVADA
                                                     14
(0) I947A
                            incorrect to say that the infirmity of Discover
                            Bank was that it did not require a case-specific
                            showing that the class waiver was exculpatory.
                            Concepcion holds that even if a class waiver is
                            exculpatory in a particular case, it is nonetheless
                            preempted by the FAA. Under the logic of
                            Concepcion, the FAA preempts Gentry's rule
                            against employment class waivers.
                Id. at 135-36 (alteration in original) (quoting Concepcion, 563 U.S. at
                131 S. Ct. at 1753). We agree with the California Supreme Court that,
                while Concepcion specifically addressed class waivers in consumer
                arbitration agreements, nothing in Concepcion suggests that the FAA
                preemption principles it articulates do not apply broadly in other contexts,
                including state-law-based wage and hour claims. We therefore reject
                petitioners' argument that Concepcion does not apply to require individual
                arbitration, as per the long-form arbitration agreements, of their NRS
                Chapter 608 and other state-law claims.
                            Nor are petitioners correct that the FAA only applies to cases
                litigated in federal court. By its terms, the Federal Arbitration Act
                governs the enforceability of "a written provision in . . . a contract
                evidencing a transaction involving commerce to settle by arbitration a
                controversy thereafter arising out of such contract or transaction." 9
                U.S.C. § 2 (2013). So long as "commerce" is involved, the FAA applies.
                "[T]hough state laws affecting arbitration can supplement the FAA in
                areas not addressed by federal law," 1 Thomas H. Oehmke, supra, § 3:16,
                at 41 (2015 Supp.), when the FAA applies, it preempts contrary state law
                whether the preemption issue arises in state or federal court.      Marmet
                Health Care Center, Inc. v. Brown, 565 U.S. „ 132 S. Ct. 1201, 1203
                (2012). The Supreme Court has made it unmistakably clear that state
                courts "must abide by the FAA, which is 'the supreme Law of the Land,'
SUPREME COURT
        OF
     NEVADA
                                                     15
(0) 1947A
                U.S. Const. art. VI, cl. 2, and by the opinions of [the Supreme] Court
                interpreting that law." Nitro-Lift Techs., LLC v. Howard,        568 U.S.
                   ,133 S. Ct. 500, 503 (2012).
                              Petitioners' employment by CPS involves commerce. Indeed,
                the long-form arbitration agreements so stipulate. Thus, the FAA applies.
                Concepcion teaches that the FAA protects class waivers in arbitration
                agreements, even when requiring individual arbitration hampers effective
                vindication of statutory claims. See also Am. Express Co. v. Italian Colors
                Rest., 570 U.S. „ 133 S. Ct. 2304, 2310 (2013) (upholding class
                arbitration waiver under the FAA against the argument that doing so will
                prevent vindication of small-dollar antitrust claims, thereby thwarting the
                policies of the federal antitrust laws and noting, "[t]he class-action waiver
                merely limits arbitration to the two contracting parties. It no more
                eliminates those parties' right to pursue their statutory remedy than did
                federal law before its adoption of the class action for legal relief in 1938."
                (internal citations omitted)).
                            NRS 608.018 and NRS 608.250 afford Nevada employees the
                right to overtime and minimum wage for work performed. So vital is the
                right to a minimum wage that it is secured by the Nevada Constitution.
                Nev. Const. art. 15, § 16. 3 But the importance of a right does not entitle a


                      3 Petitioners argue that class actions are a "remedy" protected by
                Article 15, Section 16B of the Nevada Constitution, which guarantees
                minimum wage and "all remedies available under the law or in equity
                appropriate to remedy any violation" of the minimum wage law, "including
                but not limited to back pay, damages, reinstatement or injunctive relief."
                As the list of remedies suggests, a class action is a procedural device, not a
                remedy. See D.R. Horton v. NLRB, 737 F.3d 344, 357 (5th Cir. 2013)
                (Thlhe use of class action procedures . . . is not a substantive right" or
                remedy; a class action is a procedural device). While a person's right to
                                                                    continued on next page . . .
SUPREME COURT
        OF
     NEVADA
                                                       16
(0) 1947A
                 litigant to arbitrate on a class basis when he has agreed to arbitrate his
                 statutory claims on an individual basis. Concepcion, 563 U.S. at , 131
                 S. Ct. at 1753 ("States cannot require a procedure that is inconsistent with
                 the FAA, even if it is desirable for unrelated reasons."). Concepcion does
                 not permit a state court to invalidate a class arbitration waiver in a
                 transaction involving commerce on the basis that individual arbitration
                 hampers effective vindication of an employee's state-law-based overtime
                 and minimum wage claims.
                                                      B.
                              Petitioners next contend that the National Labor Relations
                 Act (NLRA), 29 U.S.C. § 151 et seq. (2014), invalidates the class action
                 waiver in the long-form arbitration agreement and that, as the more
                 specific and more recent law, the NLRA overcomes the FAA and its pro-
                 arbitration provisions. Section 7 of the NLRA grants covered employees
                 certain substantive rights, including the right "to engage in other
                 concerted activities for the purpose of collective bargaining or other
                 mutual aid or protection." 29 U.S.C. § 157. Section 8(a)(1) of the NLRA
                 makes it illegal for an employer "to interfere with, restrain, or coerce
                 employees in the exercise of the rights guaranteed" by § 7. Id. § 158(a)(1).
                 Petitioners cite as support for their argument the decision of the National
                 Labor Relations Board (NLRB) in In re D.R. Horton, Inc., 357 N.L.R.B. No.
                 184, 2012 WL 36274, *1 (Jan. 3, 2012) (Horton I), enforcement denied in

                 . . • continued
                 minimum wage is unwaivable, Nev. Const. art. 15, § 16, he may validly
                 enter into an arbitration agreement that sets "not only the situs of suit but
                 also the procedure to be used in resolving" it. Scherk v. Alberto-Culver
                 Co., 417 U.S. 506, 519 (1974).


SUPREME COURT
        OF
     NEVADA
                                                      17
(0) [947A    e
                    part by DR. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013), holding
                    that it is unlawful under § 8 of the NLRA for employers to require that
                    employees agree to arbitrate all employment-related claims on an
                    individual basis, thereby giving up their right under § 7 to access class or
                    collective procedures in judicial or arbitral forums for their "mutual aid or
                    protection." Accord Murphy Oil USA, Inc., 361 N.L.R.B. No. 72, 2014 WL
                    5465454 (Oct. 28, 2014). In the NLRB's view, this rule does not conflict
                    with the FAA because the FAA does not require enforcement of illegal
                    contracts and because § 7 of the NLRA amounts to a "contrary
                    congressional command" overriding the FAA.             Id. at *12 (quoting
                    CompuCredit Corp. v. Greenwood, 565 U.S. , 132 S. Ct. 665, 668-69
                    (2012)). 4
                                 D.R. Horton filed a petition for review of the NLRB's decision,
                    and the Board cross-applied for enforcement of its order. On review, the
                    United States Court of Appeals for the Fifth Circuit disagreed with the
                    NLRB and overruled Horton I to the extent it invalidated the class
                    arbitration waiver as illegal. D.R. Horton, Inc. v. NLRB, 737 F.3d 344,
                    359-61 (5th Cir. 2013) (Horton II).        Relying on Concepcion, the Fifth
                    Circuit concluded that the Board's decision in Horton I effectively
                    prohibits class action waivers, whether in an arbitral or judicial forum,
                    and therefore constitutes "an actual impediment to arbitration [that]


                           4Petitioners filed charges against CPS before the NLRB and
                    submitted to this court as a supplemental authority a copy of an
                    administrative law judge's decision that, under Horton I, the class action
                    waiver in the long-form arbitration agreement is illegal. CPS filed
                    exceptions to the administrative law judge's decision. The NLRB has yet
                    to resolve the exceptions or seek enforcement of the AL's decision.


SUPREME COUFFF
        OF
     NEVADA
                                                          18
(0) 1947A    40).
                   violates the FAA." Horton II, 737 F.3d at 359-60. The Fifth Circuit then
                   considered whether "the FAA's mandate" to enforce arbitration
                   agreements as written "has been 'overridden by a contrary congressional
                   command," id. (quoting CompuCredit, 565 U.S. , 132 S. Ct. at 669), and
                   concluded that In] either the NLRA's statutory text nor its legislative
                   history contains a congressional command against application of the FAA,"
                   Id. at 361. Finally, the Fifth Circuit concluded that there is no inherent
                   conflict between the FAA and the NLRA and that, indeed, the "courts
                   repeatedly have understood the NLRA to permit and require arbitration."
                   Id.
                                 Iskanian considered Horton I and Horton II in detail and
                   concluded, as we do, that Horton I's invalidation of class arbitration
                   waivers cannot be reconciled with the FAA as authoritatively interpreted
                   by the Supreme Court in Concepcion and Italian Colors. Iskanian, 327
                   P.3d at 141-42. In light of the FAA's "liberal federal policy favoring
                   arbitration," Concepcion, 563 U.S. at , 131 S. Ct. at 1745, §§ 7 and 8 of
                   the NLRA cannot fairly be taken as a "contrary congressional command"
                   sufficient under CompuCredit, 565 U.S. at , 132 S. Ct. at 669, to
                   override the FAA. Our conclusion in this regard is consistent with Horton
                         Iskanian, and with "the judgment of all the federal circuit courts and
                   most of the federal district courts that have considered the issue."
                   Iskanian, 327 P.3d at 142 (citing Sutherland v. Ernst & Young, LLP, 726
                   F.3d 290, 297 n.8 (2d Cir. 2013), Owen v. Bristol Care, Inc., 702 F.3d 1050,
                   1053-55 (8th Cir. 2013), and Delock v. Securitas Sec. Servs. USA, Inc., 883
                   F. Supp. 2d 784, 789-90 (E.D. Ark. 2012)); see also Richards v. Ernst &
                   Young, LLP, 744 F.3d 1072, 1075 n.3 (9th Cir. 2013) (similarly collecting
                   cases that "have determined that they should not defer to the NLRB's

SUPREME COURT
         OF
      NEVADA
                                                         19
(()I 1947A    ea
                 decision in D.R. Horton on the ground that it conflicts with the explicit
                 pronouncements of the Supreme Court concerning the policies
                 undergirding the Federal Arbitration Act").
                                                       V.
                             As to Tallman, a final issue of waiver remains. Petitioner
                 Tallman sued separately from petitioners Mika and Harter and included
                 in his complaint both class claims under NRS Chapter 608 and collective
                 claims under the FLSA, 29 U.S.C. § 216(b) (2014). CPS removed
                 Tallman's action to federal court based on the FLSA claims. The federal
                 court thereafter severed the FLSA from the state-law claims and
                 remanded the latter to state court. In its answer and in its exchanges
                 with Tallman, CPS demanded individual arbitration of Tallman's state-
                 law claims. But it did not formally move to compel arbitration of them
                 until those claims were remanded to state court. Tallman argues that
                 CPS waived its right to compel arbitration by removing the action and
                 thereafter litigating Tallman's collective FLSA claims in federal court. Of
                 note, both Tallman and CPS assume that waiver was for the court, not the
                 arbitrator to decide.
                             Waiver of a contractual right to arbitration is not "lightly
                 inferred." Clark Cnty. v. Blanchard Const. Co., 98 Nev. 488, 491, 653 P.2d
                 1217, 1219 (1982). The party opposing arbitration must demonstrate that
                 "the party seeking to arbitrate (1) knew of his right to arbitrate, (2) acted
                 inconsistently with that right, and (3) prejudiced the other party by his
                 inconsistent acts." Nevada Gold & Casinos, Inc. v. Am. Heritage, Inc., 121
                 Nev. 84, 90, 110 P.3d 481, 485 (2005). Prejudice to the party opposing
                 arbitration is the "primary focus in determining whether arbitration has
                 been waived." Id.       "Prejudice may be shown (1) when the parties use
                 discovery not available in arbitration, (2) when they litigate substantial
SUPREME COUFtT
        OF
     NEVADA
                                                       20
(0) 1947A    e
                   issues on the merits, or (3) when compelling arbitration would require a
                   duplication of efforts." Id. at 90-91, 110 P.3d at 485.
                               The district court rejected Tallman's waiver argument. While
                   CPS knew of its right to arbitrate, the district court found that it did not
                   act inconsistently with that right by removing the case to federal court, or
                   prejudice Tallman by its activities in federal court. "Waiver is generally a
                   question of fact[, Nut when the determination rests on the legal
                   implications of essentially uncontested facts, then it may be determined as
                   a matter of law." Id. at 89, 110 P.3d at 484 (internal citation omitted).
                               The record does not permit us to rule as a matter of law that
                   CPS waived its right to compel arbitration of Tallman's state-law claims,
                   much less to say that the district court acted arbitrarily or capriciously in
                   rejecting the waiver claim. The federal district court's order declining
                   supplemental jurisdiction and remanding Tallman's state-law claims to
                   state court authoritatively recites the history of proceedings in federal
                   court. It emphasizes, as the state district court did in finding no waiver,
                   that discovery had been stayed for a period of time to enable the parties to
                   pursue mediation. Cf. Dickinson v. Heinold Sec., Inc., 661 F.2d 638, 641
                   (7th Cir. 1981) (rejecting the argument that pursing settlement waives
                   arbitration in dispute involving both arbitrable and nonarbitrable claims).
                   In holding that Tallman's state-law claims substantially predominate over
                   their FLSA claims, justifying rejection of supplemental jurisdiction over
                   them, severance, and remand, the federal district court gave no indication
                   that it considered or addressed the state claims or class certification on
                   the merits. Indeed, the parties stipulated not to conduct discovery on
                   potential class members' damages until class certification was resolved.
                   This does not appear to be a case in which the party seeking arbitration

SUPREME COURT
        OF
     NEVADA
                                                         21
(0) 1947A    el>
                    "lest[ed] the judicial waters" before moving to compel arbitration. Id. at
                    91, 110 P.3d at 485 (quoting Uwaydah v. Van Wert Cnty. Hosp., 246 F.
                    Supp. 24808, 814 (N.D. Ohio 2002)).
                                Both sides appear to have assumed that the collective action
                    waiver in the long-form arbitration agreement could not be enforced as to
                    Tallman's FLSA claims and/or that there is an inherent inconsistency in
                    pursuing collective FLSA claims and class state-law claims in the same
                    federal district court suit. See Mikel J. Sporer, In and Out: Reconciling
                    'Inherently Incompatible' Group Action Procedures Under FLSA and Rule
                    23, 28 ABA J. Lab. & Emp. L. 367 (2013). Recent cases cast doubt on both
                    assumptions. See Cohen v. UBS Fin. Servs., Inc.,           F.3d „ 2015
                    WL 3953348 (2d Cir. 2015); Ervin v. OS Restaurant Servs., Inc., 632 F.3d
                    971, 973-74 (7th Cir. 2011). But given the state of flux in the law on these
                    issues, it is fair to credit the parties' assumptions that the collective action
                    waiver could not be enforced as to Tallman's FLSA claims, and that those
                    claims could not be litigated simultaneously with his state-law-based class
                    action claims in federal court.
                                A defendant does not automatically waive his right to compel
                    arbitration by removing an action from state to federal court, Halim v.
                    Great Gatsby's Auction Gallery, Inc., 516 F.3d 557, 562 (7th Cir. 2008),
                    and "[w]here issues in litigation are separate and distinct from arbitrable
                    controversies, no waiver. . . occurs." 3 Thomas H. Oehmke, supra, §
                    50:35, at 50-58; see Sweater Bee by Banff, Ltd. v. Manhattan Indus., Inc.,
                    754 F.2d 457, 463 (2d Cir. 1985). From the limited excerpts of record we
                    have, it appears that the federal court proceedings did not prejudice but
                    may actually have facilitated eventual arbitration of Tallman's state-law
                    claims. His argument that denial of class arbitration prejudices unnamed

SUPREME COURT
        OF
     NEVADA
                                                           22
(0) 1947A    erl,
                 potential class members may be true but follows from Concepcion, not
                 CPS's delay in moving to compel arbitration.     See also Iskanian, 327 P.3d
                 at 143-44 (refusing to find waiver of the right to compel individual
                 arbitration where, as here, the motion to compel arbitration was filed
                 shortly after Concepcion abrogated Discover Bank and, by extension,
                 Gentry).
                              For these reasons, we conclude that writ relief is inappropriate
                 and therefore deny the petitions for extraordinary writ relief in these
                 cases.


                                                                                           J.
                                                            Pickering


                 We concur:



                                            , C.J.
                                                            -CLICiesatn
                 Hardesty                                   Parraguirre


                          1,,t 14-2
                 Douglas.



                 Saitta                                     Gibbons




SUPREME COURT
      OF
    NEVADA
                                                       23
(0) 1947k cer.
