This (2-1) decision denies a writ of mandate to the defendant in a wage-and-hour dispute with its truck drivers who contend that they are employees to whom the FLSA applies and that their contracts are for employment in interstate commerce so that they are exempt from the FAA. In an earlier decision in the same case, the 9th Circuit held that the district court must determine whether the contracts are exempt from the FAA before ruling on the defendant’s motion to compel arbitration. After remand, the district court entered a scheduling order setting a discovery schedule and setting the FAA exemption issue for trial. The defendant sought a writ of mandate to overturn the scheduling order since it contended the FAA exemption issue should be decided as a matter of law and without evidence. This decision holds that the district court’s order was not clear error since there was no direct authority on the question of how the FAA exemption issue was to be decided. And, the decision holds, the defendant has an adequate remedy by appeal from any order denying its motion to compel arbitration.
Ninth Circuit Court of Appeals (per curiam; Hurwitz, J., concurring; Ikuta, J., dissenting); July 26, 2016; 2016 WL 4010054