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RUTGERS LAW REVIEW COMMENTARIES AUGUST 30, 2011
THE SUPREME COURT TO CLASS ACTION
ARBITRATION:
DROP DEAD
By: ARNOLD SHEP COHEN*
In a series of decisions beginning in 1991, the United States
Supreme Court has continually enforced individual binding
arbitration agreements for employment disputes. Since 2010, the
Court has issued two decisions that have gone in the opposite
direction, when it restricted the use of class action arbitrations.
The juxtaposition of these two lines of cases could not present a
starker contrast, with the Court's strained, result-oriented
reasoning becoming evident. The upshot is that corporations can
force plaintiffs to submit to binding arbitration, avoiding a jury
trial, without the corresponding fear that they can be saddled with
a class action arbitration. As a result, an individual plaintiff will
easily forfeit access to both a jury trial and a class action
arbitration claim.
In 14 Penn Plaza LLC vs. Pyett, the Supreme Court considered
a clause in a union collective bargaining agreement that [a]ll such
[statutory] claims shall be subject to the grievance and arbitration
procedures . . . as the sole and exclusive remedy for violations.
Arbitrators shall apply appropriate law in rendering decisions
based upon claims of discrimination.1 The Court held that this
clause met the test in Wright v. Universal Maritime Services
Corp.,2 that the waiver of a court action for arbitration was clear
and unmistakable.3 It sent the plaintiffs statutory claim to
arbitration under the Age Discrimination in Employment Act
* Arnold Shep Cohen is a partner in Oxfeld Cohen, PC, where he represents unions,
employees, and Taft Hartley funds. He is the former chair of the Labor and
Employment Section of the New Jersey Bar Association and is a Fellow in the College
of Labor and Employment Lawyers. He is also an Adjunct Professor of Law at Rutgers
School of Law - Newark, where he teaches Labor Negotiations, Labor and
Employment Arbitration, and Alternative Dispute Resolution.
1. 129 S. Ct. 1456, 1461 (2009) (quoting the bargaining agreement between the
labor union and management).
2. 525 U.S. 70, 79-81 (1998).
3. 14 Penn Plaza, 129 S. Ct. at 1462.
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AUGUST 30, 2011](ViewImageLocal?handle=hein.journals/rgsusty2011&div=1&collection=&method=preview&ext=.png&size=3)
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