Adjunct Professor George Friedman wrote an article in Securities Arbitration Commentator about the Supreme Court’s ruling in Epic Systems Corp. v. Lewis.
In the Epic decision, the Supreme Court holds: “As a matter of policy these questions are surely debatable. But as a matter of law the answer is clear. In the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms – including terms providing for individualized proceedings.” What of the NLRA language protecting workers’ rights to collective action and the tension with PDAAs containing class action waivers? Say the majority, if in enacting the NLRA Congress intended to preclude these PDAAs it would have said so explicitly: “Congress has likewise shown that it knows how to override the Arbitration Act when it wishes…. What all these textual and contextual clues indicate, our precedents confirm…. Throughout, we have made clear that even a statute’s express provision for collective legal actions does not necessarily mean that it precludes “‘individual attempts at conciliation’” through arbitration…. And we’ve stressed that the absence of any specific statutory discussion of arbitration or class actions is an important and telling clue that Congress has not displaced the Arbitration Act” …