Editor's Note :

Editor's Note :

We are hosting an online symposium on Epic Systems v. Lewis, in which the court held 5-4 that arbitration clauses in employment contracts that require employees to forego class and collective actions are enforceable. Contributions are available at this link.

Williams v. Louisiana ended with both a bang and a whimper.  Flagged as a “petition of the day” back in April, Williams’ petition sought to have the U.S. Supreme Court review the Louisiana courts’ decision to leave in place his conviction for first-degree murder.

Williams claimed, among other things, that in obtaining his conviction, prosecutors had violated their obligations under Brady v. Maryland to disclose exculpatory evidence to the defense.  Although the prosecutors had provided the defense with summaries of the evidence (some of which were accurate, others not), they had not provided the evidence itself.  The state courts, in rejecting Williams’ Brady claim, maintained that the undisclosed evidence would not have affected the outcome of Williams’ trial.  The evidence included statements that Williams could not have committed the murder and that the state’s eyewitness probably did.  In determining that the evidence would not have affected the outcome of Williams’ trial, the state courts refused to factor into consideration evidence that Williams was severely intellectually disabled.  As his petition detailed, Williams, at the time of the crime, was an intellectually disabled 16-year-old child who “still sucked his thumb, urinated himself on an ordinary basis, and regularly ate dirt and paper” and “was hospitalized for extreme lead poisoning, institutionalized multiple times, and placed in special education.”  Williams’ intellectual disability was potentially relevant, he maintained, because it undermined the force of his confession, which he gave after being arrested and questioned by police officers.  After the confession, Williams told officers he was “ready to go home and lay down,” arguably underscoring a concern the Supreme Court itself had flagged almost a decade ago “that a person who is intellectually disabled carries a heightened risk of unwittingly confess[ing] to a crime that he did not commit.”

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Katherine V.W. Stone is Arjay and Frances Fearing Miller Distinguished Professor of Law at UCLA School of Law. She has written frequently about arbitration law, most recently in The Bold Ambition of Justice Scalia’s Arbitration Jurisprudence: Keeping Workers and Consumers Out of Court. She and other labor law professors joined an amicus brief in support of the employees in Epic Systems v. Lewis.

On May 21, in Epic Systems v. Lewis, the Supreme Court, by a 5-4-majority, held that an employer may lawfully require its employees to agree, as a condition of employment, to take all employment-related disputes to arbitration on an individual basis, and to waive their right to participate in a class action or class arbitration. In that case, the U.S. Court of Appeals for the 7th Circuit and the National Labor Relations Board had held, to the contrary, that to compel workers to forgo their right to litigate or arbitrate their statutory employment claims on a collective basis was unlawful because it contravened their right to engage in collective activity for mutual aid and protection under the National Labor Relations Act.

The decision was issued in three consolidated cases, all of which presented a similar fact pattern. In each one, a worker is presented with an arbitration clause that requires all employment disputes be submitted to arbitration on an individual basis. The worker is told that if he wants to continue in the job, he will be deemed to have assented to the clause. Subsequently the worker files a class action lawsuit on behalf of himself and other workers similarly situated, alleging that the employer has violated the federal minimum wage and hour law. The employer moves to dismiss the lawsuit on the ground that the worker is bound by the arbitration clause and therefore is precluded from bringing a class action in a judicial or arbitration tribunal.

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It is that time of year again. As we near the end of the Supreme Court term, we are experiencing another round of prognostications on whether Justice Anthony Kennedy will retire, leaving another vacancy for President Donald Trump to fill. (Last year’s take on the possibility of Kennedy’s retirement can be found here.) About this time last year, the headlines ranged from describing the conflicting retirement rumors to exploring the potential effects and dire consequences of such a vacancy. This year pundits on the left and right are forecasting along similar lines.

Kennedy, the second-oldest justice on the Supreme Court at 81 (after Justice Ruth Bader Ginsburg, who is 85), is at an age where retirement not only is reasonable but should be expected. This is not to say he will retire this year or anytime in the imminent future. Across the history of the Supreme Court the two oldest justices to leave the court — Justices Oliver Wendell Holmes and John Paul Stevens — did so at the age of 90. (Professor Lee Epstein’s Supreme Court Justices Dataset is a main resource used for justices’ age-related data.) Both retired from the bench. On the other end of the spectrum, Justice Benjamin Curtis was the youngest justice ever to retire at the age of 47, in 1857. Focusing on justices who joined the Supreme Court after the beginning of the 20th century, Justice Wiley Rutledge was the youngest justice to depart the court, as he died while still a member of the court in 1949 at the age of 55. Justice William Moody was the youngest to retire after the beginning of the 20th century, at the age of 56 in 1910.

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Wednesday round-up

By on May 23, 2018 at 7:18 am

Epic Systems v. Lewis, in which the court held on Monday that arbitration clauses in employment contracts that require employees to forgo class and collective actions are enforceable, continues to attract attention from court-watchers. Scott Bomboy reports on the decision for Constitution Daily. At the Cato Institute’s Cato at Liberty blog, Walter Olson maintains that decision “was neither surprising nor novel as a legal matter,” “[n]or – notwithstanding the variously breathless, furious, and apocalyptic reactions it has drawn from stage Left – is it objectionable as a matter of policy, or ‘anti-worker.’” At The American Prospect, Simon Lazarus disagrees, asserting that “what stands out is that [Justice Neil] Gorsuch went out of his way to trivialize—evidently seeking to gut—the provisions of federal labor law that Justice Stephen Breyer had called, during the oral argument, ‘the entire heart of the New Deal.’” Additional commentary comes from Ernie Haffner at his eponymous blog, the editorial board of The Wall Street Journal, and Garrett Epps at The Atlantic, who notes that the dissent “closed with a foretaste of the next battle in the majority’s arbitration offensive: … Title VII of the Civil Rights Act of 1964[, ] which covers sex discrimination on the job.”

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Petition of the day

By on May 22, 2018 at 10:49 pm

The petition of the day is:

17-1498

Issues: (1) Whether a common-law claim for restoration seeking cleanup remedies that conflict with remedies the Environmental Protection Agency ordered is a jurisdictionally-barred “challenge” to the EPA’s cleanup under 42 U.S.C. § 9613 of the Comprehensive Environmental Response, Compensation and Liability Act; (2) whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA approval under 42 U.S.C. § 9622(e)(6) of CERCLA before engaging in remedial action, even if the EPA has never ordered the landowner to pay for a cleanup; and (3) whether CERCLA pre-empts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.

Richard Samp is chief counsel of the Washington Legal Foundation, which filed an amicus brief in support of the employers in Epic Systems Corp. v. Lewis.

The majority and dissenting opinions in Epic Systems Corp. v. Lewis adopted starkly competing visions of two federal statutes, both nearly a century old. The majority held that the Federal Arbitration Act’s policy favoring enforcement of arbitration agreements trumps Section 7 of the National Labor Relations Act, which confers on employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” In contrast, Justice Ruth Bader Ginsburg’s dissent argued that the rights conferred by Section 7 take precedence over the FAA and prohibit enforcement of agreements calling for one-on-one arbitration of employment disputes.

But a major flaw in Ginsburg’s statutory analysis was her reliance on class-action rights created by Rule 23 of the Federal Rules of Civil Procedure, a rule not adopted in its modern form until many decades after passage of both the FAA and the NLRA. The linchpin of her dissent was her contention that filing wage-and-hour claims on a class or collective basis is among the employee “concerted activities” protected by Section 7 of the NLRA. That contention is not plausible, given that collective actions of that sort were unknown when the NLRA was adopted. This is not to say that the definition of protected “concerted activities” is incapable of expansion over time. But the adoption of federal procedural rules is not one of the permissible means of carrying out an expansion of substantive rights.

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On Monday morning Justice Elena Kagan joined Justice Ruth Bader Ginsburg’s dissent from the Supreme Court’s majority opinion in Epic Systems Corp. v. Lewis, which held that arbitration clauses in employment contracts that require employees to forgo class and collective actions are enforceable. On Monday evening Kagan spoke at the American Law Institute’s 95th annual meeting with a fellow former solicitor general, Paul Clement – the attorney who argued for the winning side in that case.

As Justice Antonin Scalia – Kagan’s former colleague and Clement’s former boss – famously said to those who disagreed with the Supreme Court’s decision in Bush v. Gore, “Get over it.”

Kagan and Clement both spoke fondly of the former justice. “I loved my repartee with Justice Scalia,” Kagan recalled. “He was sometimes aggressive but always totally straightforward and honest.”

Credit: Risdon Photography

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Archis Parasharami is a partner and Dan Jones is an associate at Mayer Brown. Parasharami contributed to an amicus brief for the Chamber of Commerce in support of the employers in Epic Systems Corp. v. Lewis.

One year after the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, the National Labor Relations Board advanced a novel interpretation of Section 7 of the National Labor Relations Act, which gives employees the right to organize, bargain collectively and “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The board held that Section 7 encompasses the right to bring a class or collective action. The board went on to say that an employment agreement that requires employees to resolve their disputes by arbitration on an individual basis is an unfair labor practice under Section 8 of the NLRA. The NLRB had never asserted that view before in the 77 years since the adoption of the NLRA. And the NLRB’s general counsel stated as recently as 2010 that the NLRA has no impact on the validity of such arbitration agreements.

Yesterday, the Supreme Court, in an opinion by Justice Neil Gorsuch, rejected that approach to the interaction of federal labor and arbitration law. The court’s decision in Epic Systems correctly holds that the Federal Arbitration Act precludes the NLRB’s novel attempt to declare arbitration agreements requiring “one-on-one” arbitration unenforceable. Plaintiffs’ class-action lawyers and other critics of employment and consumer arbitration will inevitably attack this decision, but it is both legally correct and right as a matter of policy — although the opinion itself was careful not to make policy judgments.

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Nicole G. Berner is general counsel and Claire Prestel is associate general counsel of the Service Employees International Union. SEIU joined an amicus brief in support of the employees in Epic Systems Corp. v. Lewis.

In recent years it has become increasingly common to hear chatter — even among progressives – that labor unions and worker organizing are obsolete relics of past glories.

Yet anti-worker corporate interests have never lost sight of the fact that workers can wield enormous power when they join together to protect workplace rights. The “Fight for $15 & a Union” campaign, supported by the Service Employees International Union, and the recent wave of teacher activism are only the most recent examples of what workers can accomplish when they act in concert. It is precisely to undermine this power that corporate interests and billionaire-funded extremists rush to pass “right to work” legislation wherever they can and why they have funded an extended battle in the courts to attack unions and divide workers.

The Supreme Court yesterday, in a 5-4 decision, gave another victory to these anti-worker extremists. Under yesterday’s Epic Systems opinion, the Supreme Court majority gave employers the green light to force their employees, as a mandatory condition of employment, to forfeit their decades-old right to join together with co-workers in class or collective actions, or even with just a single co-worker, to pursue claims for stolen wages, sex, race, age, or other discrimination and other workplace claims.

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Tuesday round-up

By on May 22, 2018 at 7:31 am

The Supreme Court decided two cases yesterday. In a major employment case that was argued on the first day of the term, Epic Systems v. Lewis, the court held 5-4 that arbitration clauses in employment contracts that require employees to forgo class and collective actions are enforceable. Amy Howe has this blog’s opinion analysis, which first appeared at Howe on the Court. Subscript has a graphic explainer for the decision. For USA Today, Richard Wolf reports that “[m]illions of workers routinely sign such arbitration agreements unknowingly, only to find out later that they are barred from collective action.” Additional coverage comes from Jess Bravin for The Wall Street Journal, Marcia Coyle and Tony Mauro at The National Law Journal (subscription or registration required), Adam Liptak for The New York Times, Ariane de Vogue at CNN, Robert Barnes for The Washington Post, Lawrence Hurley at Reuters, Kevin Daley at The Daily Caller, Andrew Hanna and Josh Gerstein at Politico, Lydia Wheeler at The Hill, Elizabeth Lowman at Jurist, David Savage for the Los Angeles Times, Dave Jamieson at HuffPost, Greg Stohr at Bloomberg, and Nina Totenberg at NPR, who reports that the dissent warned of “huge underenforcement of federal and state statutes designed to advance the well-being of workers.” According to Joan Biskupic at CNN, the “forceful tone” of the dissent, parts of which Justice Ruth Bader Ginsburg read from the bench, suggests that “Ginsburg and the three other liberals may increasingly be in the minority as the court nears the end of its annual session in late June — and more likely to speak out.”

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