Foundation Files US Sup. Ct. Brief Supporting Employer Arbitration Rights


Friday, June 16, 2017 – Mamaroneck, New York – Atlantic Legal files its amicus curie brief today with the United States Supreme Court, in support of enforceability of written employment contracts that require mandatory arbitration of disputes, and which also include waivers of employee rights to demand individual and class action litigation of such disputes.

This brief follows Atlantic Legal’s successful June, 2016 brief supporting the Petition for a Writ of Certiorari, which the Supreme Court granted on Saturday, January 13, 2017.

Here, three companies, Epic Systems, Ernst and Young, and Murphy Oil USA, Inc., are defending their employment agreements before the Supreme Court, against employee lawsuits that are supported by the National Labor Relations Board (NLRB), and which challenge enforceability of the waivers in the employment contracts. The NLRB appeals the Fifth Circuit’s ruling of enforceability of Murphy Oil’s employment contract, and the included mandatory requirement to arbitrate, and the employee waiver of the right to litigate. Conflicting judgments of unenforceability from the Seventh and Ninth Circuits are also being appealed, responsive to Ernst & Young’s loss before the Ninth Circuit and Epic’s loss before the Seventh Circuit.

In this appeal, Atlantic Legal asks the Supreme Court to resolve a conflict between: (a) the minority opinion of NRLB and judgments of the Seventh and Ninth Circuit Courts of Appeal, and (b) the judgment of the Fifth Circuit, which follows the majority of the circuit courts of appeal. Specifically, Atlantic Legal asks the Court to affirm the Fifth Circuit and to reverse the Seventh and Ninth Circuits, and to rule that a mandatory arbitration requirement in an employment agreement, which requires employees to arbitrate claims on an individual basis and to waive the right to judicial litigation, is valid and enforceable under the FAA. Atlantic Legal’s brief also advocates against the positions of the NLRB and the Seventh and Ninth Circuits that the FAA is overridden by provisions the NLRA – the National Labor Relations Act of Title 29, United States Code (“U.S.C.”).

Section 2 of the FAA states that “[a] written provision in any * * * contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract * * * shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. §2.

In contrast, decisions of the NLRB and the Seventh and Ninth Circuits assert that waivers of the right to demand individual and class action litigation of claims, are unenforceable and violate section 7 of the NLRA, 29 U.S.C. §§151-169.

Atlantic Legal joins the Fifth Circuit and the majority of other circuits in advocating that the NLRB rulings, and the Seventh and Ninth Circuit judgments, are inconsistent with the purposes of FAA, and both the long-standing and recent teaching of the Supreme Court regarding arbitration. Such individual litigation and class action waivers are enforceable, and consistent with the intent and provisions of the FAA, enable real benefits to employees and employers in that arbitration agreements allow parties to avoid the delays and costs of individual and class action litigation.

For more detailed background and information, please download and review Atlantic Legal’s brief on the merits here: CLICK HERE TO DOWNLOAD BRIEF ON THE MERITS

CLICK HERE for our October, 2016 Brief Supporting the Petition for Certiorari