Ca. Litig. Rev. 2017

Class Actions

By Jessica Riggin

Will the Supreme Court "Waive" Goodbye to Class Actions?

Commercial parties have long used arbitration provisions in their contracts; however, following a spate of recent Supreme Court decisions,1 mandatory arbitration agreements-often including a class and collective action waiver-have become a commonplace experience, from the workplace to the checkout counter to the physician’s office. Indeed, a recent study from the Economic Policy Institute found that 53.9% of private sector, nonunion employers have instituted mandatory arbitration procedures, and 23.1% of private sector, nonunion employees-24.7 million Americans-work for employers who ban class and collective actions.2 On October 2, 2017, in its first oral argument of the new term, the United States Supreme Court heard a case that, given the ubiquity of class action waivers in arbitration, has not only been on the radar of class action attorneys across the country for months but may well affect more persons-both human and corporate-than any other case this term. This noteworthy case, National Labor Relations Board v. Murphy Oil USA, Inc. (consolidated with two other cases, Epic Systems Corp. v. Lewis and Ernst & Young LLP v. Morris) asks whether an employer-imposed arbitration agreement prohibiting employees "from pursuing work-related claims on a collective basis" violates the protection guaranteed by the National Labor Relations Act, 29 U.S.C. 157, to engage in concerted activity.


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