There may be another way: "non-mutual offensive collateral estoppel." The concept of "non-mutual offensive collateral estoppel" is fairly established in the law, but it has not been used much. And judges and arbitrators have broad discretion whether to apply it in any given case.
In the wake of the U.S. Supreme Court’s decision against class actions by employees, plaintiffs lawyers are pondering potential next steps. In the words of one: “There’s got to be a way around this.”
Plaintiffs lawyers have no hope that Congress will embrace Justice Ruth Bader Ginsburg’s call, in her dissent this week, for “urgent” action to reverse the 5-4 ruling in Epic Systems v. Lewis.
But there may be another way: “non-mutual offensive collateral estoppel.”
“It’s a mouthful,” said Joseph Sellers of the plaintiffs firm Cohen Milstein Sellers & Toll. “I’ve spoken with a number of plaintiffs’ lawyers who expressed interest in it. We’re still at the early stage of thinking about it.”
Collateral estoppel limits the relitigation of issues that have been decided by a court. In the workplace arbitration context, “non-mutual offensive collateral estoppel” would work this way, as Sellers put it:
“If we had to litigate cases that would otherwise be a class action, and in the first case we prevail, the ordinary thing to do in the second case with the same issue would be to ask the arbitrator, who is not bound, to find the respondent precluded from relitigating the lawfulness of its defense when it was previously rejected as unlawful. That basically decides the second, third and fourth claims. But if the first claimant loses, the second claimant—who was not a party to that case in the way the employer was—is not bound by the decision.”
Management-side attorneys and their company clients won’t like this approach, Sellers said. “The employer could lose the right to assert the same defense in many individual cases thereafter,” he said.
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