August 13, 2018

Workers’ lawyers are uniting around arbitration as the new reality, following a recent Supreme Court decision that upended the business model for suing employers.

The justices ruled in May that companies may require workers to sign arbitration agreements waiving their rights to file a class or collective action. The decision, in Epic Systems Corp. v. Lewis, is widely recognized as a major victory for employers. They now have the high court’s blessing to shield themselves from costly and sometimes embarrassing class actions.

Several big plaintiffs’ firms are fighting back by filing hundreds of solo arbitration claims against individual companies. Businesses generally pick up the tab for arbitration, which can run into the millions with mass filings.

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Most plaintiffs’ lawyers don’t have the resources to deploy the mass filing strategy. It usually takes a heavyweight such as Outten & Golden, Cohen Milstein, or Nichols Kaster to pull it off. That realization has prompted the discussions about banding together.

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Leaders Know What They’re Up Against

Plaintiff attorney leaders are careful to avoid an overly optimistic assessment of what Epic Systems has done to their practices. They once thrived on the efficiency of one client suing on behalf of thousands of similarly situated colleagues. Now they’re preparing for hordes of companies to start inserting class action waivers into arbitration agreements.

Collaboration with outside firms might help make arbitration justice a reality for employees, but it’s not enough to mount a full comeback, said Joseph Sellers, a partner with Cohen Milstein Sellers & Toll in Washington.

“If we’re going to face class waivers, we’re going to do everything possible to organize so that workers with the same claims can be pursuing them, even if they have to pursue them individually and even if we have to recruit other lawyers to be able to assist them,” Sellers told Bloomberg Law. “We’re not done, but make no mistake, the Epic Systems case is a huge roadblock to the private enforcement of workplace rights.”

The complete article can be accessed here.