You Don't Need A Weatherman . . .
On July 19, 2017, Amy Howe posted in SCOTUSBlog that the Supreme Court has consolidated three arbitration cases for oral hearing on October 2 at the beginning of the new term: National Labor Relations Board v. Murphy Oil USA, Epic Systems Corp. v. Lewis, and Ernst & Young v. Morris. As Howe explains, the issue is "whether agreements to forgo class actions or collective proceedings and instead resolve disputes between an employer and its employees through arbitration are enforceable under the Federal Arbitration Act." The Ninth Circuit said no in Ernst & Young v. Morris, the Fifth Circuit said yes in NLRB v. Murphy Oil, and the Seventh Circuit said no in Epic Systems Corp. v. Lewis.
The most unusual aspect of this review highlighted by Howe, though not so surprising in light of the change of administrations, is that the Office of the Solicitor General flipped its position, initially favoring the NLRB's pro-employee position, but later filing an amicus brief supporting the employers. As a result, the NLRB is likely to file its own brief.
I have blogged about these cases in several posts, and I also discussed the issue raised in Ernst & Young v. Morris in an article I wrote entitled, "The Politics of Arbitration." See my posts on August 23, 2016, October 11, 2016, November 3, 2016, January 17, 2017, and June 19 2017.
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