While I'm sad to report it, I am not particularly surprised at this point. Today, in Johnmohammadi v. Bloomingdale’s, Inc. (9th Cir. June 23, 2014), the Ninth Circuit came rather close to joining other Circuits when it rejected a challenge to the enforcement of an arbitration clause that precludes collective enforcement of claims in any forum, whether judicial or arbitral. While they Court recognized that there was some support for the plaintiff's position, it also found on the facts that the protections called for by the plaintiff were unavailable. A key passage is as follows:
Johnmohammadi contends that filing this class action on behalf of her fellow employees is one of the “other concerted activities” protected by the Norris-LaGuardia Act and the NLRA. There is some judicial support for her position. See, e.g., Eastex, Inc. v. NLRB, 437 U.S. 556, 565–66 (1978); Brady v. Nat’l Football League, 644 F.3d 661, 673 (8th Cir. 2011); Mohave Elec. Coop, Inc. v. NLRB, 206 F.3d 1183, 1189 (D.C. Cir. 2000); Salt River Valley Water Users’ Ass’n v. NLRB, 206 F.2d 325, 328 (9th Cir. 1953). But we need not decide whether Johnmohammadi has correctly interpreted this statutory phrase. To prevail, she must still show that Bloomingdale’s interfered with, restrained, or coerced her in the exercise of her right to file a class action. In our view, Bloomingdale’s did none of these things.
Slip op., at 8.