disputes between them will be resolved individual arbitration, finding for enforcement of the
collective action waivers. Id. at 1627 (“. .. we have made clear that even a statute’s express
provision for collective legal actions does not necessarily mean that it precludes ‘individual
attempts at conciliation’ through arbitration.”) (citing Gilmer v. Interstate/Johnson Lane Corp.,
500 U.S. 20, 32 (1991)). Thus, the Court is precluded from finding that individual arbitration
can never provide effective redress for employees alleging FLSA violations.

Importantly, in the instant action, Plaintiffs do not demonstrate a great financial burden in
an individual pursuit of their claims. Killion v. KeHE Distribs., 885 F.Supp. 2d 874, 882 (N.D.
Ohio 2012) (finding collective action waivers in arbitration agreements enforceable reasoning,
“[a]dditionally, Plaintiffs have done nothing to demonstrate financial burden in an individual
pursuit of their claims and, aside from bare assertions, made no showing individual actions will
impede enforcement of the FLSA.”) Here, Plaintiffs concede that Defendants bear the burden of
the arbitration expenses. (See Pls.’ Supp. Mot. at 3 (“. . . it would be exponentially more
expensive for Defendants to deal with individual arbitrations that resolving the collective claims
on a class-wide basis.”).)

If Plaintiffs faced bearing a great financial burden in pursuing their individual claims,
multi-party arbitration could be the only effective option for the parties. Here, however,
Defendants bear the cost burden and Plaintiffs have not shown other enhanced burden in
arbitrating individually. Accordingly, the Court agrees with Defendants that Plaintiffs are bound
by the arbitration agreement to arbitrate their claims on an individual basis.

IT IS SO ORDERED.

Q-IS- 018 Vaid

DATED EDM A,/SARGUS, JR.
UNITED STATES DISTRICT JUDGE



UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION agig AUG 15 PH S?45

ELGIN PINER, et al., 7

Plaintiffs,
Case No. 2:17-cv-902
v. CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kimberly A. Jolson
FREEDOMROADS, LLC,
etal,
Defendants.
OPINION AND ORDER

At this juncture, the parties agree that the Court must determine whether Plaintiffs’ meet
an exception to the parties’ arbitration agreement, allowing Plaintiffs’ to proceed in arbitration as
acollective action. The Court reviews Plaintiffs’ Motion for Conditional Certification (ECF No.
10), Defendants’ Memorandum in Opposition (ECF No. 14), Plaintiffs’ Reply in Support (ECF
No. 17), as well as supplemental briefing submitted by both parties. (ECF Nos. 22, 30, 31.)

Plaintiffs, Elgin Piner (“Piner”) and Jerry Dingus (“Dingus” collectively, “Plaintiffs”),
allege that they were jointly employed by Defendants as RV service technicians. Plaintiffs
further assert that they and other similarly situated service technicians worked in excess of forty
hours in a workweek but were not compensated properly or even for all hours worked.

Both Plaintiffs executed arbitration agreements containing the following mandatory
arbitration provisions in relevant part:

1. Associate and the Company mutually agree that any and all claims or disputes

described in paragraph 2 that Associate may have now or in the future with or

against the Company, any parent or subsidiary of, or any entity affiliated with the
Company...may be heard by a mediator mutually selected by the Company and the


Associate; and that if mediation of a dispute by Associate or the Company is
unsuccessful, the claim or dispute shall be submitted to arbitration and heard and
decided by a neutral arbitrator... .

2. The disputes and claims covered by this Agreement include all claims or
controversies, whether or not arising out of employment or termination of
employment, that would constitute a cause of action in a court, including but not
limited to claims for wages or other compensation due . . . and claims for violation
of any federal, state, local or other governmental law, statute, regulation, or
ordinance... .

3. The arbitrator’s decision shall be final and binding on Associate and the
Company. Associate and the Company acknowledge that arbitration is a substitute
for traditional litigation and hereby waive their respective rights to file a private
lawsuit and have that suit heard in court by a judge or a jury.

4. Associate’s waiver of his/her right to trial by jury and his/her agreement to submit

all disputes . . . to final and binding arbitration is done voluntarily and knowingly.

Associate fully understands that this Agreement precludes Associate from seeking

redress in court for a dispute with or against the Company. Class action claims

and/or claims of multiple associates may be heard together only by written
agreement of both the Company and the complaining associate(s) unless the party

or parties seeking to have class or multiple claims heard together can demonstrate

to a court or arbitrator that class or multi-party claims are the only effective way to

halt and redress the alleged violations about which the party or parties complain.

Plaintiff Elgin Piner filed a Collective Action Complaint on October 17, 2017.

(Exhibit 1, ECF No. 8-1); (Exhibit 2, ECF No. 8-1.)

The arbitration agreement provides that outside of the employee’s limited share of the
filing fee, the company is responsible for its share of the filing fee, the case management fee, the
arbitrator’s compensation and expenses, and the hearing room rental fees. (ECF No. 31-1.)

On January 18, 2018, Plaintiffs Piner and Dingus filed their First Amended Collective
and Class Action Complaint. (ECF No. 2.) On February 15, 2018, Defendants filed their
Answer (ECF No. 7) and a Motion to Stay the proceedings pending the United States Supreme
Court’s decision in Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018), which ultimately found

class and collective action waivers within arbitration agreements enforceable. (ECF No. 8.)


Thereafter, the parties briefed motions regarding conditional class certification (ECF Nos. 10, 14,
17, 22, 30, 31) and the Court stayed the proceeding pending Epic Systems. (ECF No. 21.)

“Because arbitration agreements are fundamentally contracts,” courts review the
agreement according to the applicable state law of contract formation. Seawright v. Am. Gen.
Fin., Inc., 507 F.3d 967, 972 (6th Cir. 2007) (citing First Options of Chicago, Inc. v. Kaplan, 514
USS. 938, 943-44 (1995)). The parties do not dispute that they are bound by the arbitration
agreement and, thus, will ultimately resolve this case via arbitration. Nor do the parties dispute
that the arbitration agreement prohibits multiparty claims. Rather, the parties dispute whether
Plaintiffs have met their burden in establishing that an explicit exception within the arbitration
agreement, circumventing the requirement that plaintiffs proceed on an individualized basis,
applies here. The parties focus in on the language of the agreement which provides,

Class action claims and/or claims of multiple associates may be heard together only

by written agreement of both the Company and the complaining associate(s) unless

the party or parties seeking to have class or multiple claims heard together can

demonstrate to a court or arbitrator that class or multi-party claims are the only

effective way to halt and redress the alleged violations about which the party or
parties complain.
(Exhibit 1, ECF No. 8-1); (Exhibit 2, ECF No. 8-1.)

Plaintiffs assert that proceeding to arbitration as a collective action is the only way to
effectively address the collective claims of putative class members. (Pls.’ Suppl. Mot. at 3, ECF
No. 31.) Under Plaintiff's argument, individual suits for FLSA claims would never provide
effective redress to the alleged violations. Plaintiffs, however, do not demonstrate how the
putative class members will be prevented from pursuing their own individual arbitration.
Plaintiffs have, thus, made no showing that individual actions will impede enforcement of the

FLSA. Indeed, in Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1619 (2018), the United States

Supreme Court addressed the question whether plaintiffs can be allowed to agree that any