MEMORANDUM OPINION
LAURA CARTER HIGLEY, Justice.
In appellate cause number 01-08-00282-CR, appellant, Jeremiah Boyee Moore, was charged with the third-degree felony offense of possession of a controlled substance, namely cocaine weighing one gram or more but less than four grams. In appellate cause number 01-08-00283-CR, appellant was charged with the offense of aggravated robbery. Appellant pleaded guilty without an agreed punishment recommendation from the State to each offense. After a presentence investigation report was prepared, the court held a sentencing hearing. At the end of the hearing, the court found appellant guilty of each offense. The court assessed punishment for the possession of a controlled substance offense at 4 years in prison and at 35 years in prison for the aggravated robbery offense, with the sentences to run concurrently. Appellant's appointed counsel has filed an Anders brief and a motion to withdraw in the aggravated-robbery appeal. Appellant raises one issue for review in the possession of a controlled substance appeal. Appellant contends that the trial court did not properly admonish him before he pleaded guilty to the offense of aggravated robbery. We affirm the judgment in each appellate cause. Background On May 3, 2005, appellant and his friend, Jamarktric Henderson, walked into a Missouri City video store shortly before it closed. Appellant pulled a 9-millimeter handgun from his clothing and pointed it at two store employees. He told them to give him the money from the cash register. Appellant also told the employees that he would kill them if the police came. The assailants also instructed the employees to open the safe. Because the safe had a timer system, the employees had to wait 10 minutes to open it. In the meantime, police were dispatched to the store. When they left the store, the two assailants were chased by the police. Appellant ran in front of, and was struck by, a police car. Appellant was arrested and taken to the hospital, after which he recovered. The employees from the store identified appellant as one of the assailants. At the time of his arrest, the police recovered Xanax, marihuana, and crack cocaine from appellant's clothing. Appellant was charged in two separate indictments with the offenses of aggravated robbery and possession of a controlled substance, namely cocaine weighing one gram or more but less than four grams. Appellant pleaded guilty to both offenses without an agreed sentencing recommendation. The trial court ordered a presentence investigation report to be prepared. After receiving the report, the trial court conducted a sentencing hearing, at the end of which the trial court found appellant guilty of each offense. The trial court sentenced appellant to 4 years in prison for the possession offense and to 35 years in prison for the aggravated robbery offense. Appellant appealed each judgment of conviction. The trial court appointed appellate counsel to represent appellant. Possession of Controlled Substance Offense (No. 01-08-00282-CR) In one issue, appellant challenges the judgment of conviction with respect to the aggravated robbery offense. Appellant asserts, "The trial court erred in accepting Appellants' plea of guilty without complying with the requisites of Article 26.13 of the Code of Criminal Procedure." Article 26.13 of the Code of Criminal Procedure requires that, before accepting a guilty plea, the trial court must admonish a defendant of (1) the range of punishment; (2) the fact that the State's punishment recommendation is not binding on the court; (3) the limited right to appeal; (4) the possibility of deportation if the defendant is not a United States citizen; and, where applicable, (5) the fact that he may be required to comply with registration requirements under Chapter 62 of the Code. See TEX. CODE CRIM. PROC. ANN. art 26.13(a) (Vernon Supp. 2006); Cardoza v. State, 238 S.W.3d 416, 419 (Tex. App.-Houston [1st Dist.] 2007, no pet.). A review of the record indicates that the trial court complied with each of the applicable requirements of article 26.13. We begin by clarifying that requirements two and three do not apply here because this was not a plea with an agreed punishment recommendation by the State. In addition, requirement five does not apply because possession of a controlled substance is not an offense for which appellant would be required to comply with the sex-offender registration requirements of Chapter 62. The record shows that the trial court complied with the first and fourth requirements. Appellant was charged with the offense of possession of a controlled substance, namely cocaine weighing one gram or more but less than four grams, which is a third-degree felony. See TEX. HEALTH SAFETY CODE ANN. § 481.102(3)(D), 481.115(a), (c) (Vernon 2010). The punishment range for a third-degree felony is confinement in prison for any term of not more than 10 years or less than 2 years and an optional fine not to exceed $10,000. See TEX. PENAL CODE ANN. § 12.34 (Vernon Supp. 2010). Appellant waived the right to have a court reporter record his plea, but the record reflects that the trial court admonished appellant in writing regarding the applicable punishment range. See TEX. CODE CRIM. PROC. ANN. art. 26.13(d) (providing admonitions may be oral or written). Appellant placed his initials next to the admonishment, indicating that he understood the punishment range for the offense. The trial court also informed appellant that if he was not a citizen of the United States his guilty plea might "result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law." Appellant placed his initials next to the admonition indicating that he understood it. Appellant signed his full name at the end of the plea papers, which included the written admonitions. Appellant also signed a written stipulation and judicial confession in which he acknowledged that he was mentally competent, he understood all of the admonitions and the consequences of his plea, and he had entered his plea voluntarily. In addition, he also indicated that he had consulted fully with his attorney before entering the plea. Appellant's counsel also signed a document stating that appellant understood the trial court's admonitions and the consequences of his guilty plea. Based on our review of the record, we conclude that the trial court admonished appellant in accordance with the applicable requirements of article 26.13. We overrule appellant's sole issue in appellate cause number 01-08-00282-CR. Aggravated Robbery Offense (No. 01-08-00283-CR) In the aggravated-robbery appeal, appellant's court-appointed counsel has filed an Anders brief in which he states that, after a thorough review of the record, the appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Counsel has also filed a motion to withdraw. A. Anders Procedure When we receive an Anders brief from a defendant's court-appointed attorney, who asserts that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. See id. (emphasizing that reviewing court — and not counsel — determines, after full examination of proceedings, whether case is "wholly frivolous"); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). If we determine that arguable grounds for appeal exist, we must grant counsel's motion to withdraw, abate the appeal, and remand the case to the trial court to appoint new counsel to brief the issues. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005); Stafford, 813 S.W.2d at 511. We do not rule on the ultimate merits of the issues raised by appellant in his pro se response. See Bledsoe, 178 S.W.3d at 827. If we determine that there are arguable grounds for appeal, an appellant is entitled to have new counsel address the merits of the issues raised. See id. "Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised." Id. If, on the other hand, we determine, from our independent review of the entire record, that an appeal is wholly frivolous, we may issue an opinion in which we explain that we have reviewed the record and have found no reversible error. See id. at 826-27. While this Court may issue an opinion explaining why the appeal lacks arguable merit, we are not required to do so. See Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009). An appellant may challenge a holding that there are no arguable grounds for appeal by filing a petition for discretionary review in the Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 n. 6. B. Analysis In this appeal, the brief filed by appellant's counsel meets the minimum Anders requirements by presenting a professional evaluation of the record and discussing why there are no arguable grounds for reversal on appeal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). In his Anders brief, counsel states that he has thoroughly and conscientiously reviewed the record. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Counsel also acknowledges his duty to advance arguable grounds of error if any exist. See id. Based on his review of the record, counsel indicates that he could find no errors which would warrant a reversal of appellant's conviction. See id.; Mitchell v. State, 193 S.W.3d 153, 154 (Tex. App.-Houston [1st Dist.] 2006, no pet.). In this brief, counsel discusses the adequacy of the plea proceedings, supplies us with references to the record, and provides us with citation to legal authorities. See Stafford v. State, 813 S.W.2d at 510 n. 3; cf. High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. 1978). Counsel's brief reflects that he delivered a copy of the brief to appellant and informed him of his right to examine the appellate record and to file a response. See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008). More than 30 days have passed, and appellant has not filed a pro se brief. See id. at 409 n. 23. We have reviewed counsel's brief and conducted an independent examination of the complete record. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Bledsoe, 178 S.W.2d 826-27; Mitchell, 193 S.W.3d at 155. We conclude that no reversible error exists in the record, there are no arguable grounds for review, and that the appeal is wholly frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Garner, 300 S.W.3d at 767; Bledsoe, 178 S.W.3d at 826-27; Mitchell, 193 S.W.3d at 155. In addition, we grant counsel's motion to withdraw. See Schulman, 252 S.W.3d at 408-09 (discussing requirements to be met before appellate court grants motion to withdraw in Anders appeal). Attorney J. Sidney Crowley must immediately send the notice required by Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c). Conclusion We affirm the judgments of the trial court in appellate cause numbers 01-08-00282-CR and 01-08-00283-CR.
See Tex. Health Safety Code Ann. § 481.102(3)(D) (Vernon 2010); Tex. Health Safety Code Ann. § 481.115(a), (c) (Vernon 2010).
See Tex. Penal Code Ann. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2003).
See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967).
Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
um.
See Gilmer, 500 U.S. at 27-28. Accordingly, Courts have invalidated class action waivers where plaintiffs demonstrated that their inability to pursue arbitration on a class basis would be tantamount to an inability to assert their claims at all.
In Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., ___ U.S. ___, ___, 130 S. Ct. 1758, 1775 (2010), the Supreme Court held in the commercial arbitration context that "a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party [affirmatively] agreed to do so.") (emphasis in original). See also Marc D. Greenbaum and Linda D. Mc Gill, 2 Labor And Employment Arbitration § 45.04[7] ("While it is dangerous to predict the future, Stott Nielsen suggests that an agreement's silence on the availability of class wide arbitration is effectively tantamount to a prohibition.").
For example, in Dale, the Eleventh Circuit invalidated a class arbitration waiver as unconscionable under Georgia law where (a) the plaintiffs could not recover attorney's fees except upon a showing of bad faith or similar misconduct, and the Georgia law allowing such recovery did not "provide the same incentive for an attorney to represent an individual plaintiff as the automatic, or likely, award of fees and costs available to a prevailing plaintiff for the claims asserted in Caley, Jenkins, and Randolph," and (b) as a result, the minimal potential damages recovery effectively deterred consumers from pursuing their claims individually. 498 F.3d at 1222, 1224. Absent adequate incentives to litigate the claims on an individual basis, the Court concluded that the class action waiver would effectively "allow [defendant] to engage in unchecked market behavior that may be unlawful." Id. at 1224.
Dale established that relevant circumstances in determining whether class action waivers are enforceable include "the fairness of the provisions, the cost to an individual plaintiff of vindicating the claim when compared to the plaintiff's potential recovery, the ability to recover attorneys' fees and other costs and thus obtain legal representation to prosecute the underlying claim, the practical [e]ffect the waiver will have on a company's ability to engage in unchecked market behavior, and related public policy concerns." Id.
Similarly, in Kristian v. Comcast Corp., 446 F.3d 25 (1st Cir. 2006), relying on unopposed expert evidence regarding the extraordinary complexity and high cost of prosecuting consumer antitrust cases generally and against the defendant in that case specifically, the First Circuit concluded that, absent some form of class mechanism, a consumer antitrust plaintiff would not pursue a claim at all. 446 F.3d at 58. Accordingly, the court invalidated the class arbitration waiver at issue, concluding that the defendant would otherwise be shielded from private consumer antitrust enforcement liability, plaintiffs would be unable to vindicate their statutory rights, and the social goals of federal and state antitrust laws would be frustrated. Id. at 61.
Here, Plaintiff's FLSA claims appear to be fairly straightforward and Plaintiffs do not argue that their claims will require the kind of extensive expert analysis that was required in Kristian or other extraordinary, unrecoverable costs. Moreover, the DRP expressly permits the arbitrator to award fees and costs in accordance with applicable law. The FLSA automatically entitles prevailing plaintiffs to attorney's fees and litigation costs, see 29 U.S.C. § 216(b), and these substantive rights apply in arbitration. See Gilmer, 500 U.S. at 26 (litigants retain all substantive statutory rights in the arbitral forum). Given the availability of fees and costs to a prevailing plaintiff under the FLSA, Plaintiffs have not shown that the disparity between their small potential recoveries and their potential costs is so great that their claims could not be effectively prosecuted on an individual basis.
See also 14 Penn Plaza LLC v. Pyett, ___ U.S. ___, 129 S. Ct. 1456, 1469 (2009) (an agreement to arbitrate "does not waive the statutory right . . . it waives only the right to seek relief from a court in the first instance."); see also Adkins, 303 F.3d at 502 n. 1; Carter, 362 F.3d at 299 n. 1.
Hinefelt and Goodson contend that arbitrating their claims on an individual basis is prohibitively expensive because of the likely amount of the one cost that has no equivalent in individual lawsuits — the fees of the arbitrator. An agreement to arbitrate is unenforceable if the cost of arbitration effectively precludes a claimant from vindicating his federal statutory rights in the arbitral forum. See Green Tree Fin. Corp. — Alabama v. Randolph, 531 U.S. 79, 90 (2000). However, the party seeking to invalidate an arbitration agreement on the ground of prohibitive arbitration costs bears the burden of demonstrating that he is likely to incur such costs. Musnick v. King Motor Co. of Ft. Lauderdale, 325 F.3d 1255, 1258 (11th Cir. 2003). A showing of the possibility of incurring prohibitive costs is not sufficient. Id. The arbitration agreement's silence on the subject of costs is insufficient to render it unenforceable. Green Tree, 531 U.S. at 82, 92. Moreover, citing arbitration fees incurred in other cases does not necessarily show that a claimant will incur prohibitive costs. See id. at 91 n. 6 (brief listing "fees incurred in cases involving other arbitrations as reflected in opinions of other Courts of Appeals" did not afford "a sufficient basis for concluding that [the plaintiff herself] would in fact have incurred substantial costs in the event her claim went to arbitration").
See Morrison, 317 F.3d at 664 (noting that many litigants in employment cases face minimal costs in litigation because their attorney will cover most of the fees of litigation and advance the expenses incurred in discovery, so that in many employment cases "there is little or no difference between the expenses of the judicial and arbitral fora-with one important exception. In the arbitral forum, the litigant faces an additional expense-the arbitrator's fee and costs-which are never incurred in the judicial forum.").
In Paladino, which preceded Green Tree, the Eleventh Circuit concluded that the arbitration agreement at issue was unenforceable in part because it did not require the employer to advance a $2,000 filing fee. 134 F.3d at 1062. However, as the Eleventh Circuit has noted, Green Tree "held the opposite; the absence of a provision specifying which party must advance the arbitration fees and costs does not render the agreement unenforceable." Perez v. Globe Airport Sec. Servs., Inc., 253 F.3d 1280, 1287 (11th Cir. 2001) (emphasis added), vacated following settlement, 294 F.3d 1275 (11th Cir. 2002).
In Green Tree, the Supreme Court declined to explain how detailed the showing of prohibitive cost needs be before the burden shifts to the proponent of arbitration to come forward with contrary evidence. 531 U.S. at 92. The Eleventh Circuit has adopted the case-by case approach adopted by the Fourth Circuit in Bradford v. Rockwell Semiconductor Systems, Inc., 238 F.3d 549 (4th Cir. 2001). See Musnick, 325 F.3d at 1259. Pursuant to this approach, the court conducts a case-by-case analysis focusing on (1) the plaintiff's ability to pay the arbitration fees and costs, (2) the difference between the expected cost of arbitration and the expected cost of litigation in court to determine "whether the cost differential is so substantial as to deter the bringing of claims." Bradford, 238 F.3d at 556. The party seeking to avoid arbitration must offer evidence of (a) the amount of costs he is likely to incur and (b) his inability to pay those costs. Musnick, 325 F.3d at 1260.
Here, Hinefelt and Goodson have not demonstrated that they are likely to incur prohibitive arbitration costs. First, they do not provide an adequate basis for estimating the arbitration costs they are likely to incur. Plaintiffs cite several cases and not particularly relevant opinion evidence estimating arbitrators' fees. However, Plaintiffs present no evidence of fees charged for arbitrating similar employment disputes in central Florida or fees charged by the arbitrator that plaintiffs would propose or request the court to appoint. While the parties have not yet chosen an arbitrator and providing a non-speculative estimate of expected arbitration costs may be difficult, the same was true in Green Tree, in which the Supreme Court concluded that an article citing average fees for arbitrators and the respondent's citations to fees referenced in other court decisions were insufficient. Id. at 91 n. 6.
Plaintiffs cite (1) Parada v. Superior Court, 98 Cal. Rptr. 3d 743, 765 (Cal. App. 4th Dist. 2009), in which fee schedules for 11 attorney arbitrators and retired judges associated with JAMS showed they charged between $400 and $600 per hour and between $5,500 and $7,000 per day; (2) Haro v. NCR Corp., No. 3-:04-CV-328, 2006 WL 2990386, at *3 (S.D. Ohio Oct. 18, 2006), which cites another case that relies on a third which cites a 1995 study estimating arbitrators' fees of $3,750 to $14,000 for a dispute requiring 15-40 hours of arbitrators' time based on an hourly rate of $250-$350; (3) Alexander v. Anthony Int'l, L.P., 341 F.3d 256, 261-62 (3d Cir. 2003), in which plaintiffs submitted evidence that one prospective arbitrator charged $175.00 per hour or between $800.00 and $1000.00 per day, another arbitrator charge $275.00 per hour, and a third $175.00 per hour or $1000.00 per day; (4) a pre-hearing order in Da Sila v. Cleannet USA, Inc., AAA Case No. 11-1114-001777-08, directing further submissions on the question whether the allocation of fees under the AAA Commercial Rules would interfere with claimants' ability to vindicate their rights in arbitration and directing the parties to assume, for purposes of developing the issue, that the arbitrator's fee "may well exceed $50,000 to address the fees issue, clause construction, and class certification"; and (5) an Oct. 20, 2006 opinion of Miami-based franchise law specialist Robert Zarco submitted in another matter stating that in his experience, the arbitrator's fee "usually exceeds $275 per hour" and reporting his recollection of fees ranging from $100,000 to $400,000 in AAA arbitration proceedings in which Zarco's firm participated on behalf of franchisees against franchisors.
The DRP states that "[t]he location of the arbitration proceeding shall be in the general geographical vicinity of the place where the employee last worked for the company, unless each party to the arbitration agrees in writing otherwise." (Dkt. 8-1 at 1).
The DRP provides for the selection of an arbitrator "by mutual agreement of the parties" or, in the event they cannot agree and upon application by either party, by a court of competent jurisdiction. Id.
See also Bess v. Check Express, 294 F.3d 1298, 1303-1304 (11th Cir. 2002) (plaintiff failed to demonstrate prohibitive costs where the arbitration agreement did not specify the manner in which arbitration was to be commenced or the manner in which the arbitrator was to be chosen and was silent on the issue of arbitration costs, and the district court's finding that the arbitrator's fee would be at least $150 and would require at least four hours of arbitration time was unsupported by the record. Discussion of potential costs under the American Arbitration Association rules was necessarily speculative because the agreement was ambiguous as whether those rules would apply).
Second, and more important, the arbitration agreement's provision that arbitrator and arbitration fees "will be apportioned between the parties by the Arbitrator in accordance with . . . applicable law" (Dkt. 8-2 at 2) is not informative as to the likely allocation of arbitration fees. Plaintiffs plausibly argue that this language is intentionally vague and that it means in effect that Plaintiffs must pay their share of the arbitration fees upfront, even though the arbitrator may ultimately apportion costs unequally or tax them all against Defendants. The DRP's virtual silence as to the ultimate cost allocation renders Plaintiffs' estimate of likely costs too speculative to sustain their burden under Green Tree.
In Musnick, the Eleventh Circuit held that the risk that plaintiff would incur prohibitive costs under a "loser-pays" attorneys' fees provision was necessarily speculative in a pre-arbitration judicial proceeding because whether the plaintiff would actually incur attorneys' fees "depend[ed] entirely on whether he prevails in arbitration. If he does, he will incur no fees at all. . . . In this event, obviously, he will not have been deprived of any statutory right or remedy by the mandatory arbitration." Musnick, 325 F.3d at 1261. Similarly, Plaintiffs may incur no arbitration costs if they prevail and the award includes the arbitrator's fees. Although this approach, which favors post hoc judicial review of arbitration costs, has been criticized as insufficiently protective of federal statutory rights, this Court is not free to ignore the Eleventh Circuit's guidance in Musnick.
See Musnick, 325 F.3d at 1261; Summers v. Dillard's, Inc., 351 F.3d 1100, 1101 (11th Cir. 2003).
See Morrison, 317 F.3d at 660-63; cf. James v. McDonald's Corp., 417 F.3d 672, 680 n. 4 (7th Cir. 2005) ("[Plaintiff] maintains that she cannot afford to pursue arbitration in the first instance. A review of the allocation of costs conducted after the arbitration would be of little help to her.").
Third, as for Goodson, Plaintiffs have not demonstrated his inability to pay. Plaintiffs provide no evidence whatever as to Goodson's financial circumstances. As for Hinefelt, he states that (a) he now earns an annual salary of about $36,000, (b) he, his four young children, and his wife, who is a "stay-at-home mom," live with his wife's parents, and (c) he has no savings, no money in the bank, and cannot afford to pay arbitration fees. Dkt. 21-1 ¶¶ 8-9. Although incomplete as a statement of household assets, income, and expenses, and not as detailed as the evidence the Eleventh Circuit suggested could suffice in Anders v. Hometown Mortg. Services, Inc., 346 F.3d 1024 (11th Cir. 2003), this evidence would likely be sufficient in determining whether Hinefelt could pay substantial arbitration fees. Notwithstanding, what the arbitration fees will be and, more importantly, the likelihood of Hinefelt's incurring them, remain too speculative to render the DRP unenforceable as to Hinefelt.
The amount exceeds the poverty guideline for a family of six. See Dep `t of Health and Human Servs., Update of the HHS Poverty Guidelines for the Remainder of 2010, 75 Fed.l Reg. 45628-02 (Aug. 3, 2010) ($29,530).
See Mora v. American Equity Mortg., Inc., No. 6:09-cv-637-Orl-31KRS, 2009 WL 1607747, at *2 (M.D. Fla. June 9, 2009) (evidence of the plaintiff's present employment status, hourly rate of compensation, and total net worth did not permit a reasonable estimate of plaintiff's ability to pay arbitration costs where there was "no evidence of Plaintiff's other possible sources of income, assets, total cash on hand in bank or investment accounts, monies received within the last twelve (12) months, or the amounts of Plaintiff's monthly obligations (e.g., mortgage, rental or automobile loan payments, credit card payments, etc.")
In Anders, the plaintiff attempted to satisfy his burden of proving prohibitive arbitration costs with an affidavit stating that he could not to pay the $3,500.00 to $6,000.00 that he had determined would be required to arbitrate his claims, and substantiating his inability "by detailing his assets, debts, income, and expenses" and even attaching a copy of his credit report. 346 F.3d at 1028. This evidence was held insufficient in view of the facts that (a) the applicable arbitration rules provided for a deferral or reduction of administrative fees in cases of extreme hardship, and provided that all fees, including those of the arbitrator, while ordinarily borne equally by the parties, could be assessed by the arbitrator against any party and (b) the defendant agreed to bear the costs of arbitration that the plaintiff could not afford (as determined by the arbitrator). Id. at 1029.
Plaintiffs' contention that the arbitration provision is unenforceable under Florida law requires no extended discussion. Plaintiffs do not appear to contend that the class action waiver is unconscionable under Florida law. To the extent they do, their argument is rejected. To support a finding of unconscionability, Florida law requires showing of both procedural and substantive unconscionability. See Pendergast v. Sprint Nextel Corp., 592 F.3d 1119, 1134 (11th Cir. 2010) (citing cases). Plaintiffs make no attempt to demonstrate that the DRP is procedurally unconscionable as to Hinefelt and Goodson.
See Dkt. 12 at 13 n. 6. Plaintiffs state: "Should the Court find it necessary to determine examine [sic] the procedural unconscionability of the [arbitration] agreement, the Plaintiffs would request the opportunity to further develop such evidence." However, Plaintiffs do not identify even generally the evidence they wish to develop.
Instead, Plaintiffs appear to argue that the class action waiver is void under Florida law because it frustrates the remedial purposes of the FLSA. See Fonte v. AT T Wireless Servs., Inc., 903 So. 2d 1019, 1023 (Fla. 4th DCA 2005) (indicating there are two distinct frameworks under Florida law for determining whether an arbitration clause is unenforceable: "(1) whether the arbitration clause is void as a matter of law because it defeats the remedial purpose of the applicable statute, or (2) whether the arbitration clause is unconscionable").
This argument is likewise rejected. Although it is relevant to a state-law unconscionability analysis, see Kristian, 446 F.3d at 60 n. 22, whether a class arbitration waiver frustrates the purpose of a federal statute is a question of federal law, and, as discussed, Plaintiffs have not shown that enforcing the class arbitration waiver would frustrate the purposes of the FLSA.
Finally, Plaintiffs contend that the DRP's confidentiality provision renders the DRP unenforceable because (a) although facially bilateral, it provides an unfair informational advantage to MasTec by enabling MasTec, as a repeat player in arbitration, to accumulate information about how prior arbitrations against them have fared, the preferences of particular arbitrators, and the force of particular arguments, all of which is unavailable to employee-claimants, and (b) it prevents employees from notifying co-employees of their FLSA rights and allows MasTec to conceal its FLSA violations.
See, e.g., Ting v. AT T, 319 F.3d 1126, 1151-52 (9th Cir. 2003).
As to the former contention, the Eleventh Circuit has rejected it in a case involving the FLSA. Noting that, "[i]n many employment claims, both sides might well prefer confidentiality," Caley, 428 F.3d at 1378 (citations omitted), the Court held that, although the confidentiality agreement at issue (which precluded the parties from disclosing transcripts from the arbitration or the arbitrator's award) "might be more favorable to employers (as `repeat players') than to individual employees, it [was] not so offensive as to be invalid," id. (citing Iberia Credit Bureau, Inc. v. Cingular Wireless LLC, 379 F.3d 159, 175 (5th Cir. 2004) (confidentiality provision in arbitration agreement was not unconscionable under Louisiana law). Although the DRP's confidentiality provision apparently goes further than the confidentiality provision in Caley, by forbidding disclosure of the existence of the arbitration proceeding, this does not appear to exacerbate the "repeat player" effect that was insufficient to invalidate the confidentiality provision in Caley. Further, that effect appears to be mitigated somewhat by (a) the provision in the DRP allowing for disclosure where permitted by law and (b) other provisions of the DRP contemplating entry of judgment on the arbitration award by a court and allowing civil discovery and motion practice as provided by the forum state's procedural rules. See Dkt. 8-1 at 1-2.
The latter argument has considerable force. Some courts have noted that confidentiality agreements in FLSA settlement agreements threaten to frustrate implementation of the "private-public" rights conferred by the FLSA and thwart Congress's intent to promote widespread compliance with the statute. See Dees v. Hydradry, Inc., 706 F. Supp. 2d 1227, 1242 (M.D. Fla. 2010). Arguably, agreements forbidding disclosure of the existence of an FLSA arbitration proceeding threaten similar consequences. However, it is unnecessary to address this point since the Court is not being asked to enforce the confidentiality provision at this time. For present purposes, the Court finds that the provision does not prevent Plaintiffs from vindicating their FLSA rights in arbitration.
Conclusion
For the foregoing reasons, Defendants' Motion to Compel Arbitration and Stay Proceedings (Dkt. 8) is GRANTED in part. Pursuant to 9 U.S.C. § 3, this action is STAYED as to Tim Hinefelt and Mitchell Goodson pending arbitration of their claims. Defendants' request to stay this case as to the other named Plaintiffs is denied.
DONE AND ORDERED in chambers this 15th day of November, 2010.