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Epic Win, But Not for Lawyers?

23 May 2018
Law.com

The Supreme Court’s 5-4 decision in the three cases consolidated under the name Epic Systems Corp. v. Lewis was no surprise in the pro-arbitration, anti-class action climate the justices have built in recent years.

But the decision and its impact still hit hard on Monday, with business advocates breathing a sigh of relief and workers’ rights advocates praying that Congress will reset the balance in favor of employees. University of Virginia law professor Dan Ortiz, who represented workers in the argument last October said he hopes that “in the not-too-distant future, Congress will correct the court’s mistake.”

That’s not likely, though, says Mayer Brown partner Andrew Pincus (above), who wrote a brief in the cases for the U.S. Chamber of Commerce and won the 2011 AT&T Mobility v. Concepcion case that laid the groundwork for the Epic decision.

We caught up with Pincus for a brief interview about the ruling…

➤➤ SCB: Soon after the opinion came down, you issued a statement with an eye-catching first sentence: “Today’s decision is a victory for everyone but lawyers.” Why do you say that, and don’t lawyers usually find a way?

Pincus: Well, I think it’s bad for lawyers who are invested in the current system. I’ve always believed that arbitration for entrepreneurial lawyers provides a way to both make a good living and vindicate more claims for injured employees or consumers or whoever we’re talking about. I think to the extent you’re invested in the class action system as the way to focus your practice, that will have problems. It always has, but to me the problems are deserved.

➤➤ Arbitration agreements have been an issue in the #MeToo movement. Does the Epic decision have any impact on those companies and firms that are no longer requiring arbitration for harassment claims?

I know a lot of the criticisms are based on the assertion that arbitration prevents a claimant from talking publicly about her claim or would require the arbitrator’s decision to remain secret. Neither of those things are true. In terms of this ruling, most harassment claims are individualized, they’re not the kind of claims that can be brought in class actions. So, I don’t think this has much of an impact on the sexual harassment kind of claims. I’m sure that opponents of arbitration will say the opposite.

➤➤ Looking ahead, Justice Ginsburg in her dissent said it is up to Congress to counter this decision and legislate in favor of worker rights. Do you think that will happen?

As the majority says at the end of the opinion, the latest congressional action was to overturn the CFPB anti-arbitration rules. So I think there’s a lot of support in Congress for the idea that given the cause and complexity of the legal system, arbitration is a really useful and important alternative way to resolve disputes.

—> Here are some other comments about the marquee decision:

Fatima Goss Graves, president and CEO of National Women’s Law Center: “The Supreme Court has taken away a powerful tool for women to fight discrimination at work. Instead of banding together with coworkers to push back against sexual harassment, pay discrimination, pregnancy discrimination, racial discrimination, wage theft, and more, employees may now be forced behind closed doors into an individual, costly—and often secret—arbitration process. This will stack the deck in favor of the employer.”

Andrew Melzer, partner at Sanford Heisler Sharp: “The court’s decision is very disappointing and fails to recognize the basic realities of the modern workplace. Employers divert their employees’ claims to individual arbitration in order to deprive them of a remedy for employment claims. The idea that employees are legitimately agreeing to and choosing arbitration is a fallacy; the line of cases at issue is about mandatory arbitration agreements imposed as a condition of employment.”

Richard Samp, Washington Legal Foundation chief counsel: “Arbitration depends on informal procedures for its success. That informality is destroyed if the arbitration is transformed into a class action, as the NLRB demanded for all employment-related contracts. In rejecting the NLRB’s position, the Court properly understood that federal law requires courts to enforce arbitration agreements as written.”

 Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights: “Allowing companies to force workers to sign pre-dispute arbitration clauses that end their right to band together to take legal action against wrongdoing will sweep many discrimination and harassment claims under the rug. Private arbitration favors corporations over employees and provides no transparency so that other employees can learn about corporate misconduct.”

Reprinted with permission from the May 23, 2018 edition of Supreme Court Brief © 2018 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.”

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