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Samuel Estreicher Samuel Estreicher

In Epic Systems v. Lewis, 138 S.Ct. 1612, 1624 (2018), the Supreme Court held that, absent “a clear and manifest congressional command to displace” the Federal Arbitration Act’s (FAA) requirement that arbitration agreements be enforced as written, class action waivers in employment agreements are generally enforceable. One effect of the ruling is to spur possible legislative change, as evidenced by proposed legislation in California and the House of Representatives’ passage, on Sept. 20, 2019, of the so-called Forced Arbitration Injustice Repeal (FAIR) Act), H.R. 1423, which would render unenforceable pre-dispute arbitration agreements for employment and consumer disputes. State laws are likely to fall on the shoals of FAA preemption; the House bill has no chance of becoming law until a change in the composition of the Senate occurs. Another effect has been the attempt by employee representatives, now presumably closed from a class or collective action, to metastasize their case into a welter of individual arbitrations in the hope that employers will see the wisdom of a class-wide resolution.

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