                                                    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                               FLED
                 COURT OF THE STATE OF NEVADA,
                 IN AND FOR THE COUNTY OF
                                                                              SEP 2 it 2015
                 CLARK; AND THE HONORABLE                               CLE
                                                                                    E K. LINDEMAN
                                                                                     SUP EME   MLEa

                 SUSAN JOHNSON, DISTRICT JUDGE,                        BY
                                                                              HIE        1CLERK
                 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.
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                                                                                     \5-2(c36-34
                •   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
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                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, anchor class actions; and

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                             (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 comm
                                                                           erce."
                          The long-form agreement has two signature pages. Each
                                                                                  of
                 the petitioners signed both pages of his or her long-form agree
                                                                                  ment. The
                 first signature page of the long-form agreement also includes
                                                                                 a signature
                 line for CPS, which CPS left blank and never signed. The seco
                                                                                nd and final
                 signature page is set up for only the employee to sign. It
                                                                            contains three
                paragraphs, all in capital letters, headed "VOLUNTARY AGR
                                                                               EEMENT,"
                "RIGHT TO CONSULT COUNSEL," and "30 DAY PER
                                                                            IOD TO OPT-
                OUT." The paragraph headed "OPT-OUT" acknowledges "THA
                                                                                   T 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 FUL
                                                                                 L THIRTY
                (30) DAY PERIOD TO OPT-OUT OF THE AGREEMENT
                                                                            IF I CHANGE
                MY MIND."

                                                    B.
                            Tallman sued CPS in state court, asserting minimum wag
                                                                                             e
                and overtime claims individually and on behalf of others simil
                                                                                 arly 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 juris
                                                                            diction of the
                FLSA claims but declined to exercise supplemental jurisdicti
                                                                             on over, and
                therefore remanded, the Nevada-law-based claims. Thereafte
                                                                              r, Mika and
                Harter filed a second state court suit against CPS. Their com
                                                                              plaint, also
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                  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

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            Aro
                                                       5
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                  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 "conclud[ing] 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


                        '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 . . .
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                                        M: DM 5E 23
                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 rel. 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).


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                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

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                 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 writingt1 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

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                 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 expre
                                                                                           ss
                  provision that it can only be modified or discharged by a subse
                                                                                        quent
                  agreement in writing, nevertheless their later oral agreement to modi
                                                                                        fy 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 agree
                                                                                      ing to
                 arbitration exists, "a subsequent oral agreement about term
                                                                                    s of an
                 arbitration contract is valid"); Patterson v. Raymours Furniture
                                                                                   Co.,     F.
                 Supp.3d      , 2015 WL 1433219 *34 (S.D.N.Y. 2015) (enforcing revisions
                 to an arbitration agreement as acknowledged in an employee hand
                                                                                        book
                 and noting that, while the FAA requires a writing, it need not be signe
                                                                                         d).
                              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." "Whe
                                                                                        n 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, foun
                                                                                     ded on
                general state law principles of agency: [if] '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 agreement
                                                                                          s.'"
                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 direc
                                                                                          tly
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                      to CPS's trailer guard compensation and arbitration polic
                                                                                   ies, which they
                      allege the additional defendants, as CPS's "managers, offic
                                                                                     ers, directors
                      and/or controlling agents" and "agent or alter ego," devi
                                                                                   sed and carried
                      out. Given this record, the district court correctly treat
                                                                                  ed Mika's and
                      Harter's asserted claims against the additional defendan
                                                                               ts named in their
                      complaint as covered by the long-form arbitration agreeme
                                                                                   nt they signed
                      with CPS.

                                                           IV.
                                                            A.
                                  This brings us to the crux of the matter. Petitioners asse
                                                                                                 rt
                      statutory overtime and minimum wage claims under NIB
                                                                                   S 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 expe
                                                                                nse involved and
                     concludes that, if the class action waiver is enforced, purs
                                                                                  uing petitioners'
                     statutory claims is economically infeasible. Citing Gen
                                                                                   try v. Superior
                     Court, 165 P.3d 556, 567-68 (Cal. 2007) abrogation reco
                                                                               gnized 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 substanti
                                                                                  ve 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 Dist
                                                                              rict Court, 127
                     Nev. 106, 251 P.3d 723 (2011). In Picardi, "we consider[
                                                                              ed] whether an

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                                     nUn
                                      ..T ME
                   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).

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                                      MESZEMEIZEMISSENE2
                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, "[r] equiring 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.

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31190/A ceo
                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
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                            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.
                "[Though 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,'
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                 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)
                ("Wile 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 . . .
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                    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).


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                 part by D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013), holdi
                                                                                        ng
                 that it is unlawful under § 8 of the NLR.A for employers to requi
                                                                                       re 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 confl
                                                                                            ict
                with the FAA because the FAA does not require enforcement of
                                                                                      illegal
                contracts and because § 7 of the NLRA amounts to a "con
                                                                                        trary
                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 revie
                                                                                       w, 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 effect
                                                                                      ively
                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.


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                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 Ts 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

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                     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
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                 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[, brut 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

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                   "`test[ed] the judicial waters' before moving to compel arbitration
                                                                                          . Id. at
                   91, 110 P.3d at 485 (quoting Uwaydah v. Van Wert Cnty. Hasp.,
                                                                                 246 F.
                   Supp. 2d 808, 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 inconsisten
                                                                                            cy in
                   pursuing collective FLSA claims and class state-law claims in the
                                                                                             same
                   federal district court suit. See Mikel J. Sporer, In and Out: Reco
                                                                                      nciling
                   '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 arbitr
                                                                                            able
                  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 recor
                                                                                        d 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 unna
                                                                                        med
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                                                        22
                       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.
                       Hardesty                                   -lajta
                                                                  Parraguirrer


                        DC) U-Ct Av•""
                       Douglas.
                                                 , J.

                              la
                         4ji or.
                       Saitta                                     Gibbons




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             77
