MCLE Self-Study: The Sound of Silence: Class Action Issues in Arbitration

By Hon. John M. True (Ret.)

Judge True retired from the Alameda County Superior Court bench in 2015 and currently provides mediation, arbitration, and other services as a neutral through ADR Services, Inc.

I. INTRODUCTION

The question whether an employer can draft an arbitration agreement containing a class-action waiver requiring its employees to arbitrate a dispute on a one-on-one basis only, and not as a group, is presently before the U.S. Supreme Court.¹ Guidance on the issue will come soon, and, should the Court give its imprimatur to the practice, the employer community may begin utilizing language prohibiting class arbitrations with some regularity. Such a development will, in turn, cause the metaphysical tectonic plates underlying employment law to shift appreciably. In the meantime—and perhaps thereafter—there is the "silence" challenge: discerning whether an agreement that says nothing about class actions should be interpreted to prohibit them or permit them.