The Ninth Circuit has warned employers that introducing a mandatory arbitration agreement during active class litigation, particularly when done through poor or misleading communication, can invalidate the agreement entirely. In Avery v. TEKsystems, decided January 28, 2026, the court affirmed a district court order refusing to enforce an arbitration policy introduced late in the lawsuit. The court found that the communications used to roll it out were misleading, one-sided, and fundamentally subverted the class action process.

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