Last month, I discussed a very notable decision in D’Antuono v. Service Road Corp. in which the federal court — relying in part on the Supreme Court’s decision in AT&T Mobility — ordered two exotic dancers to arbitrate their employment-related claims.

A few days ago, the same district court allowed the dancers to take an expedited appeal to the Second Circuit (known, in legalese, as an “interlocutory order”).  You can view the court’s ruling here. While the court said it was reluctant to do so, it concluded that the factors for granting such an extraordinary request had been met.

The item that raised my interest was the fact that the court suggested that there is now a “great deal of uncertainty” about federal common law of arbitration that employees have relied upon.  It’s something to keep in mind as employers consider arbitration agreements.

The court’s analysis is worth a read:

[T] he Court is persuaded that the order currently at issue involves several different controlling questions of law. … [T]he nature of the arbitration agreement at issue in the case – which combines several different potentially problematic features that the Second Circuit has previously had occasion to consider in isolation, but never all together – means that the controlling and purely legal question of whether that arbitration agreement is enforceable based on existing Second Circuit precedent is a novel one.

In addition, as the Court discussed at length in its Memorandum of Decision, after the United States Supreme Court’s recent decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), there is now a great deal of uncertainty surrounding the continuing validity of the federal common law of arbitrability doctrines on which Plaintiffs rely.   …

As the Court tried to emphasize in its Memorandum of Decision, the enforceability of arbitration agreements is a highly contentious and – currently – constantly evolving area of law. In light of that fact, the Court has no doubt at all that reasonable jurists might well disagree with this Court’s analysis of the controlling legal issues in its Memorandum of Decision and its ultimate legal conclusions regarding the enforceability of the arbitration agreement at issue in this case.

In doing so, we are now likely to get a decision from the Second Circuit on this issue than if the case had been allowed to proceed.

This is definitely a case to keep an eye on.