Overcoming the Presumption that Courts Must Decide Class Arbitrability

Three arbitration cases are on the U.S. Supreme Court’s docket in October. Each involves various aspects of the Federal Arbitration Act (FAA). In New Prime v. Oliveira, the court will decide whether the FAA applies to independent contractors of a transportation company. In Lamps Plus v. Varela, the court will address how parties can indicate their agreement to participate in class arbitration. Finally, the court will consider whether a court or arbitrator should determine the arbitrability of a claim for injunctive relief, when the claim is carved out from the arbitration agreement, in Henry Schein v. Archer White Sales. More arbitration cases may lie on the horizon. For example, the Supreme Court’s decision earlier this year in Epic Systems v. Lewis indicated further judicial acceptance of class action waivers in rejecting a challenge under the “concerted activity” provision of §7 of the National Labor Relations Act to agreements to arbitrate that include such waivers. In this article, partner Holly Weiss discusses a question of arbitrability that has taken on enhanced significance in the wake of the Epic Systems decision.