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Irasena v. Chalak M&M Ar1 LLC

United States District Court, E.D. Arkansas, Western Division

July 23, 2015

ANDREW IRASENA, individually and on behalf of all others similarly situated; KAYONA LANGSTON, individually and on behalf of all others similarly situated; CHAUNCEY DURHAM, individually and on behalf of all others similarly situated; JAMUSON SCOTT, individually and on behalf of all others similarly situated; BRITTANY GOODWIN, individually and on behalf of all others similarly situated; BARBARA BLACKFORD, individually and on behalf of all others similarly situated; JAMES MAYERS, individually and on behalf of all others similarly situated; JAMES FEAZELL, individually and on behalf of all others similarly situated; HALEY O'BRIEN, individually and on behalf of all others similarly situated; HEATHER MCKNIGHT, individually and on behalf of all others similarly situated; SHAQUILLE FIELDS, individually and on behalf of all others similarly situated; BRANDY MITCHELL, individually and on behalf of all others similarly situated; BRIA TUCKER, individually and on behalf of all others similarly situated; JARED BROWNER, individually and on behalf of all others similarly situated; BRANDUN BRADSHAW, individually and on behalf of all others similarly situated; and AMANDA KING, individually and on behalf of all others similarly situated, Plaintiffs,
v.
CHALAK M&M AR1 LLC; CHALAK M&M AR2 LLC; CHALAK M&M LLC; and DINO NITHIANANDAN, Defendants.

OPINION AND ORDER

J. LEON HOLMES, District Judge.

This is a collective action brought by former employees of the Genghis Grill restaurant in Little Rock, Arkansas, against their employer for violations of the Fair Labor Standards Act. The plaintiffs allege that Genghis Grill mandated an invalid tip-pooling arrangement and failed to pay minimum wage for time spent performing non-tip-producing duties. The defendants have filed motions to compel arbitration with plaintiffs Brandy Mitchell, Amanda King, and Chauncey Durham. For the reasons explained below, the motions are granted.

I.

In 2014, Genghis Grill instituted a new policy that required newly hired employees to complete their personnel paperwork online. That paperwork included an arbitration agreement. The arbitration agreement contained a paragraph that provides, in pertinent part:

6. Costs of Arbitration: Genghis Grill will pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court or agency), including the regular and customary arbitration fees and expenses.... Each party shall pay its own attorneys' fees and any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court or agency such as costs to subpoena witnesses and/or documents; take depositions and purchase deposition transcripts; copy documents; etc.). Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. The arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party to the same extent a court or agency would be entitled to do so, in accordance with applicable law.

Document #27-1 at 8. The arbitration agreement also contains a provision with the following language:

8. Modification: This Agreement may be modified or terminated only by a writing accepted by Employee and signed by a senior officer of Genghis Grill, or by Genghis Grill after 30 days' written notice to Employee. Any modification or termination of this Agreement shall be prospective only and shall not apply to any claims or disputes that are pending in arbitration or that have been initiated by either party pursuant to this Agreement prior to the expiration of the 30-day period.

Id. Finally, the agreement contains a forum selection clause, which states that any arbitration hearing will be held in Dallas, Texas. Id. at 7.

In March 2014, King began working for Genghis Grill. King was issued a unique user name and password to access Genghis Grill's electronic portal. On March 24, 2014, King logged on to the electronic portal, established her electronic signature, and consented to use the portal to review and execute documents. King then indicated her acceptance of the arbitration agreement by clicking check boxes next to each numbered paragraph and signing her electronic signature at the end of the document.[1]

In May 2014 Durham began working at Genghis Grill. Durham was issued a unique user name and password to the electronic portal. On May 23, 2014, Durham executed the arbitration agreement by means of the electronic portal in the same manner just described.[2]

Other current and former Genghis Grill employees brought suit against Genghis Grill for minimum wage violations under the Fair Labor Standards Act. See Swaney v. M&M Mongolian LLC, Case No. 4:14-CV-0110 JLH. By October 2014, all defendants in that action accepted Genghis Grill's offer of judgment. Shortly thereafter, Genghis Grill also required its then-current employees to complete the arbitration agreement within one week.

In November 2014, Mitchell, who began working at Genghis Grill in August 2011, was issued a unique user name and password. On November 4, 2014, she logged on to the electronic portal and executed the arbitration agreement.[3] On January 15, 2015, the plaintiffs brought this action.

II.

Genghis Grill seeks to compel the plaintiffs to arbitrate their claims as outlined in ...


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