Ninth Circuit Affirms Denial Of Motion To Compel Arbitration Imposed After Class Certification

Duane Morris Takeaways: On January 28, 2026, in Avery, et al. v. TEKsystems, Inc., 2026 U.S. App. LEXIS 2091, Case No. 24-5810 (9th Cir. Jan 27, 2026), the Ninth Circuit issued an order affirming a district court's denial of an employer's motion to compel arbitration. TEK, an IT staffing company, appealed a decision by the district court that declined to enforce arbitration under an agreement it had rolled out after a class certification ruling by a group of recruiters alleging unpaid overtime. The Ninth Circuit found that TEK had issued misleading communications with the arbitration agreement, and had inverted the class opt-out proceedings by requiring putative class members to opt out of the agreement to remain in the litigation. The decision highlights the impact that the choice of language employers utilize in communicating about arbitration agreements has on future litigation and underscores the authority of district courts in procedural considerations when an