absent a showing that intended to Supreme Court rule in favor of the “Congress preclude a waiver of the judicial forum.” Acting Solicitor General Jeffrey employers. Defendants then argue that nothing exists in Wall stated that, despite his office’s original the plain text, legislative history, or statutory position, in the wake of the change in purpose of the NLRA indicating administrations, his office had “reconsidered Congressional intent to preclude either (i) the issue and reached the opposite mandates that arbitration be used as a forum conclusion.” for litigating employment-related claims; or (ii) more specifically to this case, bans on collective/class action as a means to resolve disputes in accordance with arbitration agreements. The Supreme Court’s decision will have important implications for employers and employees alike. The sheer number of briefs 17 supporting amicus curiae – Claimants and 11 supporting Defendants – highlights the stakes. The transcript of the October 2 oral argument indicates a relatively even divide among the Justices. Some focused on protecting the rights of employees pitted against the resources of large companies, while others concentrated on both freedom of contract and judicial efficiency. Complicating predictions is the inclusion of newly appointed Justice Neil M. Gorsuch, who, along with Justice Clarence A ruling in favor of Claimants could Thomas, was silent during oral argument, jeopardize millions of arbitration offering no hints as to where he stands on agreements, while a ruling for Defendants the issue. would cement the right to contract with employees to litigate in a certain manner. Another complicating factor is the rather Either way, parties currently bound by class contradictory circumstances surrounding the action waivers need to pay close attention to appeal of the Murphy Oil case. When the the Supreme Court’s impending decision, NLRB filed its petition for certiorari with which will likely be announced in early the Supreme Court in September 2016, it 2018. was represented by the United States Solicitor General’s Office, which argued Gregory T. Laudadio’s Pennsylvania Bar that the Supreme Court should overrule the Admission is expected in December 2017. He Fifth Circuit’s decision to outlaw class may be reached at 610-408-2052, or at glaudadio@rubinfortunato.com. action waivers. Yet, this past summer, after the Supreme Court had agreed to hear the petition, the Solicitor General’s Office filed an brief requesting that the amicus curiae
absent a showing that “Congress intended to preclude a waiver of the judicial forum.” Defendants then argue that nothing exists in the plain text, legislative history, or statutory purpose of the NLRA indicating Congressional intent to preclude either (i) mandates that arbitration be used as a forum for litigating employment-related claims; or (ii) more specifically to this case, bans on collective/class action as a means to resolve disputes in accordance with arbitration agreements. The Supreme Court’s decision will have important implications for employers and employees alike. The sheer number of amicus curiae briefs – 17 supporting Claimants and 11 supporting Defendants – highlights the stakes. The transcript of the October 2 oral argument indicates a relatively even divide among the Justices. Some focused on protecting the rights of employees pitted against the resources of large companies, while others concentrated on both freedom of contract and judicial efficiency. Complicating predictions is the inclusion of newly appointed Justice Neil M. Gorsuch, who, along with Justice Clarence Thomas, was silent during oral argument, offering no hints as to where he stands on the issue. Another complicating factor is the rather contradictory circumstances surrounding the appeal of the Murphy Oil case. When the NLRB filed its petition for certiorari with the Supreme Court in September 2016, it was represented by the United States Solicitor General’s Office, which argued that the Supreme Court should overrule the Fifth Circuit’s decision to outlaw class action waivers. Yet, this past summer, after the Supreme Court had agreed to hear the petition, the Solicitor General’s Office filed an amicus curiae brief requesting that the Supreme Court rule in favor of the employers. Acting Solicitor General Jeffrey Wall stated that, despite his office’s original position, in the wake of the change in administrations, his office had “reconsidered the issue and reached the opposite conclusion.” A ruling in favor of Claimants could jeopardize millions of arbitration agreements, while a ruling for Defendants would cement the right to contract with employees to litigate in a certain manner. Either way, parties currently bound by class action waivers need to pay close attention to the Supreme Court’s impending decision, which will likely be announced in early 2018. Gregory T. Laudadio’s Pennsylvania Bar Admission is expected in December 2017. He may be reached at 610-408-2052, or at glaudadio@rubinfortunato.com.
Client-Alert.-Supreme-Court-to-Address-Mandatory-Arb-Agreements-01078001-9x7B017.docx