Tag

arbitration

An Ominous Denial of Certiorari

An Ominous Denial of Certiorari

Last week the Supreme Court passed up an opportunity to resolve a hotly disputed aspect of employment arbitration law: Whether judges or arbitrators should decide whether class (or collective) arbitration is available when an arbitration agreement is silent on the subject.  The Court’s denial of certiorari in Opalinski v. Robert Half International, Inc., 583 U.S. — (No. 16-1456) (Order List of October 30, 2017, p. 10) thus put a precipitous and somewhat unexpected end to a bit of suspense about this case over the last few months.  While the arbitration spotlight is currently focused on the Court’s consideration of whether enforcement of class arbitration waivers violate the National Labor Relations Act, see, Epic Systems Corp. v Lewis, No. 16-285 (argued in tandem with Ernst & Young LLP v. Morris, No. 16-300 and N.L.R.B. v. Murphy Oil USA, No. 16-307 on October 2, 2017), lurking in the shadows is a corollary issue presented in Opalinski:  What happens when an employment agreement specifying arbitration does not contain such a class action waiver?  That is, if an agreement says nothing about class arbitration one way or the other, who decides whether class treatment is permissible?  More precisely, is class treatment a procedural question for an arbitrator or is it a gateway arbitrability question for a judge to decide?

At the Epic Systems Oral Argument, Chief Justice Roberts’ Hypothetical Didn’t Save the Day for the Employers

At the Epic Systems Oral Argument, Chief Justice Roberts’ Hypothetical Didn’t Save the Day for the Employers

The day after the Epic Systems oral argument, the National Labor Relations Board’s General Counsel, Richard Griffin, sent an unusual letter to the Court.  He disavowed his own answers to a line of questions by Chief Justice Roberts, and instead, he said that the...