FLED 

SEP 2 it 2015 

E K. LINDEMAN 

SUP EME E MLa 

1CLERK 

CLE 

BY 

HIE 

131 Nev., Advance Opinion 71 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

DENNIS TALLMAN, INDIVIDUALLY 

AND ON BEHALF OF OTHERS 

SIMILARLY SITUATED, 

Petitioner, 

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. 

DONALD MIKA; AND BERYL HARTER, 

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. 

No. 60673 

No. 61390 

Original petitions for writ of mandamus challenging district 

court orders compelling arbitration in an employment action. 

Petitions denied. 

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• 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 longform 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 commerce." 

The long-form agreement has two signature pages. Each of 

the petitioners signed both pages of his or her long-form agreement. The 

first signature page of the long-form agreement also includes a signature 

line for CPS, which CPS left blank and never signed. The second and final 

signature page is set up for only the employee to sign. It contains three 

paragraphs, all in capital letters, headed "VOLUNTARY AGREEMENT," 

"RIGHT TO CONSULT COUNSEL," and "30 DAY PERIOD TO OPTOUT." The paragraph headed "OPT-OUT" acknowledges "THAT 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 FULL THIRTY 

(30) DAY PERIOD TO OPT-OUT OF THE AGREEMENT IF I CHANGE 

MY MIND." 

B. 

Tallman sued CPS in state court, asserting minimum wage 

and overtime claims individually and on behalf of others similarly 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 jurisdiction of the 

FLSA claims but declined to exercise supplemental jurisdiction over, and 

therefore remanded, the Nevada-law-based claims. Thereafter, Mika and 

Harter filed a second state court suit against CPS. Their complaint, 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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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, 1and 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 

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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 express 

provision that it can only be modified or discharged by a subsequent 

agreement in writing, nevertheless their later oral agreement to modify 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 agreeing to 

arbitration exists, "a subsequent oral agreement about terms 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 handbook 

and noting that, while the FAA requires a writing, it need not be signed). 

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 longform arbitration agreement covers claims not only against CPS but also 

"against its officers, directors, managers, employees or agents." "When 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, founded 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 agreements.'" 

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 directly 

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to CPS's trailer guard compensation and arbitration policies, which they 

allege the additional defendants, as CPS's "managers, officers, directors 

and/or controlling agents" and "agent or alter ego," devised and carried 

out. Given this record, the district court correctly treated Mika's and 

Harter's asserted claims against the additional defendants named in their 

complaint as covered by the long-form arbitration agreement they signed 

with CPS. 

IV. 

A. 

This brings us to the crux of the matter. Petitioners assert 

statutory overtime and minimum wage claims under NIBS 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 expense involved and 

concludes that, if the class action waiver is enforced, pursuing petitioners' 

statutory claims is economically infeasible. Citing Gentry v. Superior 

Court, 165 P.3d 556, 567-68 (Cal. 2007) abrogation recognized 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 substantive 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 District Court, 127 

Nev. 106, 251 P.3d 723 (2011). In Picardi, "we consider[ed] whether an 

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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;2the 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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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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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. 3But the importance of a right does not entitle a 

3Petitioners 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 

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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 proarbitration 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), holding 

that it is unlawful under § 8 of the NLR.A for employers to require 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 conflict 

with the FAA because the FAA does not require enforcement of illegal 

contracts and because § 7 of the NLRA amounts to a "contrary 

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 review, 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 effectively 

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 statelaw 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 inconsistency in 

pursuing collective FLSA claims and class state-law claims in the same 

federal district court suit. See Mikel J. Sporer, In and Out: Reconciling 

'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 arbitrable 

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 record 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 unnamed 

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DC) U-Ct Av•"" 

Douglas. 

4

la ji or. 

Saitta Gibbons 

, J. 

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: 

Hardesty 

, C.J. 

Parraguirre -lajtar 

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