As the new year begins, this is a good time to recap two of the major Supreme Court decisions from the past year impacting class action law, and to look ahead to a couple big decisions on the horizon.

Looking Back

Arbitration and Class Actions

First, in Epic Systems Corporation v. Lewis, the Court confirmed that class action waivers in arbitration agreements are enforceable in employment contracts, even where the employee is covered by the National Labor Relations Act (NLRA).  Within a year after the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, which held that the … Continue Reading

In a published decision issued yesterday, the U.S. Court of Appeals for the Ninth Circuit held that collective claims for alleged breaches of fiduciary duty under ERISA were not subject to the arbitration agreements in plaintiff employees’ employment contracts. Instead, since those claims were brought for the benefit of the ERISA plans in which the plaintiffs participated as a whole, they were outside the scope of the employees’ individual arbitration agreements, and could be litigated in court on a collective basis.

Qui Tam Claims Guided the Court’s Analysis, and May Guide Plaintiffs’ Counsel Going Forward

The Ninth Circuit’s decision may … Continue Reading

We’ve been monitoring the appellate battles over the enforceability of class- and collective-action waivers in the employment context since September 2016, when we pondered whether circuit splits would land the issue in the Supreme Court.  Since then, our colleagues in the Labor and Employment practice at McGuireWoods have supplied interim reports on the Supreme Court’s grant of certiorari in not one, not two, but three such cases, and on oral argument in those cases last fall.  Click here to read our colleagues’ succinct analysis of last week’s 5-4 decision upholding employee class- and collective-action waivers under the Federal Arbitration … Continue Reading

Los Angeles labor and employment litigators Michael Mandel and Amy Beverlin bring us perspective on three class-action waiver cases currently awaiting decision by the Supreme Court, as well as a potential path forward for class-action waivers in employment contracts.

Everyone is talking about the future of class-action waivers in employment arbitration agreements after the Supreme Court launched its new term this month with oral argument in three closely-watched cases—National Labor Relations Board v. Murphy Oil USA, Inc. (5th Circuit), Epic Systems Corp. v. Lewis (7th Circuit), and Ernst & Young LLP v. Morris (9th Circuit).  In its impending decision, … Continue Reading

Last week, David S. Reidy provided his analysis of the California Supreme Court’s recent decision invalidating an arbitration and class waiver provision in a credit card customer agreement.  We jumped at the chance to republish his McGuireWoods Legal Alert here.

On April 6, the California Supreme Court issued the latest in an ongoing series of cases resisting preemption of California state law under the Federal Arbitration Act (FAA) and again testing the limits of the U.S. Supreme Court’s jurisprudence under the FAA.

The decision purports to limit the enforceability in California of arbitration clauses that address injunctive relief, and will … Continue Reading

As recently reported by our colleague Brennan Bolt in one of our sister blogs, Labor Relations Today, the Supreme Court has answered a question I posed a few months ago by granting cert in not one, not two, but three cases involving the enforceability of class/collective action waivers in employment agreements.  These decisions pit the National Labor Relations Board’s position that class/collective action waivers are inconsistent with the rights granted by the National Labor Relations Act, and therefore unenforceable, against the Federal Arbitration Act’s strong and long-standing policy favoring arbitration.  We’ll be watching these cases closely as … Continue Reading

The long-running battle over collective action waivers in the arbitration clauses of employment agreements continues to rage in the Courts of Appeals.  Two recent decisions (and the cert petitions filed in their wake) may well lead the Supreme Court to consider once again the thorny relationship between the class/collective action mechanism and federal arbitration law.

Just weeks ago, a divided panel of the Ninth Circuit delivered its opinion in Morris v. Ernst & Young, LLP, vacating an order by the N.D. Cal. that would have compelled individual arbitration of claims that the defendant misclassified employees in order to deny … Continue Reading

 Houston law professor D. Theodore Rave’s new paper Settlement, ADR, & Class Action Superiority (forthcoming from the Journal of Tort Law) contains an interesting insight about class action practice: when you get right down to it, there is little functional difference between (1) a class action settlement, (2) an AT&T "gold-plated" arbitration clause, and (3) a customer service action like a voluntary recall.  Or, as Professor Rave puts it:

Functionally, what is happening with class settlements, voluntary compensation schemes, and mandatory arbitration clauses in form contracts is very similar. Private actors are effectively designing a system of

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