On June 13, 2017, the American Bar Association’s Section of Dispute Resolution published Alejandro Caffarelli’s article on class waivers in the ABA Just Resolutions Newsletter. In his article, Caffarelli argues that counsel for appellees in the upcoming Supreme Court case of Lewis v. Epic Systems Corp. should take great care to square the case with recent Supreme Court arbitration decisions such as Concepcion and Italian Colors. The e-newsletter can be found by clicking here.
“In the 2016 case of Lewis v. Epic Systems Corp., the Seventh Circuit Court of Appeals held that class action waivers in employee arbitration agreements violate the National Labor Relations Act (NLRA) in that they hinder an employee’s right to engage in protected, concerted activity. The Court reasoned that such agreements are not subject to mandatory arbitration under the Federal Arbitration Act (FAA)3 because they are subject to the FAA savings clause, which, among other things, voids “illegal” arbitration agreements. In the 2017-18 term, the United States Supreme Court will hear Epic Systems’ appeal, which was consolidated with Ernst & Young v. Morris4 and National Labor Relations Board v. Murphy Oil USA, Inc., 5 two other cases that also analyzed the interplay between the FAA and the NLRA. Among lawyers who represent employees, the outcome is highly anticipated. Not just because it will be the first FAA case decided by Justice Gorsuch, but also because it could be a turning point in employment law class action jurisprudence, significantly shifting the balance of power between labor and management.” — excerpt from Are Employment Class Actions Headed Toward an Epic Fail? by Alejandro Caffarelli