Docket No. 12-304-cv.

726 F.3d 290 (2013)

Stephanie SUTHERLAND, on behalf of herself and all others similarly situated, Plaintiff-Appellee, v. ERNST & YOUNG LLP, Defendant-Appellant.

United States Court of Appeals, Second Circuit.

Decided: August 9, 2013.

Attorney(s) appearing for the Case

Rex S. Heinke ( Gregory W. Knopp , Katharine J. Galston , Daniel L. Nash , on the brief), Akin Gump Strauss Hauer & Feld LLP, Los Angeles, CA and Washington, DC, for Defendant-Appellant Ernst & Young LLP.

Max Folkenflik ( H. Tim Hoffman , Arthur W. Lazear , Ross L. Libenson , Hoffman & Lazear, Oakland, CA, on the brief), Folkenflik & McGerity, New York, NY, for Plaintiff-Appellee Stephanie Sutherland.

P. David Lopez , Lorraine C. Davis , Daniel T. Vail , Paul D. Ramshaw , Equal Employment Opportunity Commission, Office of General Counsel, Washington, DC, for Amicus Curiae U.S. Equal Employment Opportunity Commission.

M. Patricia Smith , Steven J. Mandel , Paul L. Frieden , Edward D. Sieger , Dean A. Romhilt , United States Department of Labor, Office of the Solicitor, Washington, DC, for Amicus Curiae United States Department of Labor.

Dan C. Getman , Michael J.D. Sweeney , Lesley Tse , Getman & Sweeney PLLC, New Paltz, NY; Rebecca M. Hamburg , National Employment Lawyers Association, San Francisco, CA, for Amici Curiae National Employment Lawyers Association, the National Employment Law Project, The Employee Rights Advocacy Institute for Law & Policy.

Before: WINTER, CABRANES, and STRAUB, Circuit Judges.


The question presented in this appeal is whether an employee can invalidate a class-action waiver provision in an arbitration agreement when that waiver removes the financial incentive for her to pursue a claim under the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201, et seq. In light of the supervening decision of the Supreme Court in American Express Co. v. Italian Colors Restaurant, ___ U.S. ___, 133 S...

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