Courthouse Steps: Epic Systems Corp. v. Lewis Decided

Labor & Employment Law Practice Group Teleforum

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On May 21, the Supreme Court decided Epic Systems v. Lewis; a consolidated case with Ernst & Young, LLP, et al. v. Morris, et al. and NLRB v. Murphy Oil USA, Inc., et al. affirming the enforceability of Class Action Waivers contained within arbitration agreements governed by the Federal Arbitration Act (“FAA”) against employees covered by the National Labor Relations Act (“NLRA”). These two federal statutes had been on a collision course for some time: the FAA mandates enforcement of arbitration agreements according to their terms, including terms that specify with whom parties choose to arbitrate their disputes; the NLRA protects non-supervisory employees’ rights to engage in certain concerted activities. Christopher Murray of Ogletree, Deakins joins us to discuss this important 5-4 decision.


Christopher C. Murray, Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.


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Event Transcript

Speaker 1:                           Welcome to the Federal Society's practice group podcast. The following podcast hosted by the Federal Society's Labor and Employment lawyer practice group was recorded on Tuesday, May 22, 2018 during a live courthouse steps (?) teleforum conference call held exclusively for Federal Society members.

Wesley Hodges:                Welcome to the Federal Society teleforum conference call. This afternoon, our conversation is on the Supreme Court decision on Epic Systems Corp. versus. Lewis. My name is Wesley Hodges, and I'm the associate director of practice groups at the Federal Society. As always, please note that all expressions of opinion are those of the expert on today's call. Today, we are very fortunate to have with us Chris C. Murray, who is a shareholder at Ogletree Deakins. After hearing from our speaker, we will have an audience Q&A, so as he speaks today, please keep in mind what questions you have for him, either to him directly or about the case in general. Thank you very much for speaking with us today Chris, the floor is yours.

Chris Murray:                     Thank you, and good afternoon. Well, yesterday on May 21st, the Supreme Court decided three consolidated cases, Epic Systems Corp versus. Lewis, Earnest and Young versus. Morris, and National Labor Relations Board versus. Murphy Oil. Collectively, I'll just refer to these cases as Epic Systems. The case involved the enforceability of class and collective action wavers in employment arbitration agreements. The fundamental questions in the case were whether the National Labor Relations Act or NLRA prohibits such wavers or whether the Federal Arbitration Act or FAA mandates that such wavers be enforced.

Chris Murray:                     These questions had caused considerable turmoil for the past six years. They first arose when on January 3rd, 2012, a two member panel of the National Labor Relations Board, or NLRB, held in a case called DR Horton, that employees covered by the NLRA have a substantive right under that statute to invoke class action collective action in other [inaudible 00:02:01] procedures when they litigate claims against their employers. The NLRB panel further reasoned that if an employer requires employees as a condition of employment to enter arbitration agreements that waive such procedures, the employer engages in an unfair labor practice under the NLRA and the arbitration agreements are are rendered unenforceable. The DR Horton panel concluded the FAA did not compel a different result.

Chris Murray:                     The NRLB's 2012 decision immediately caused significant disputes. In federal and state courts across the country, employees began citing that decision in opposing motions to compel individual arbitration. These employees typically had filed putative class or collective action complaints in court, in breach of an arbitration agreement and when the employer moved to compel arbitration the employee resisted and objected that the arbitration agreement was unenforceable because it violated the NLRA according to the board's decision. This motion practice thus required lower courts to begin evaluating the board's DR Horton reasoning immediately.

Chris Murray:                     The board's decision was given an overwhelmingly, hostile reception by lower courts with few exceptions. In most instances, courts deciding motions to compel arbitration refused to nullify those agreements pursuant to DR Horton, finding instead that the board's decision was contrary to the FAA. Court's relied in particular on the Supreme Court's instruction in Compu Credit of the Greenwood which was also from 2012, that if a federal statute is, quote, silent on whether claims under it can proceed in an arbitrary form the FAA requires the arbitration agreement to be enforced according to its terms, end quote.

Chris Murray:                     Because the NLRA was silent on the issue of arbitration, courts fairly easily concluded that the FAA required enforcement of employment arbitration agreements, regardless, whether they waived class action procedures. At the time, our firm tracked federal and state court decisions addressing DR Horton and until we lost count sometime in 2017, identified scores of courts rejecting the board's reasoning and refusing to follow it in the context of motions to compel arbitration.

Chris Murray:                     Meanwhile, while this was proceeding in the context of motions to compel arbitration in the lower courts, DR Horton appealed the Board's 2012 decision to the Fifth Circuit Court of Appeals. On December 3rd, 2013, the Fifth Circuit likewise held that the NLRB's decision violated the FAA and the court refused to enforce that decision. With the ball back in the NLRB's court, the board issued a subsequent decision in Murphy Oil on October 28th, 2014, again in the context of adjudicating an unfair labor practice charge.

Chris Murray:                     The board, despite the Fifth circuits and other court's rejection of its DR Horton decision, stated that it adhered to that decision and the board also invoked it's policy of non-acquiescence to lower court decisions, reasoning that, quote, because only the Supreme Court is authorized to interpret the NLRA with binding effect through the whole country, the board was not obliged to accept the interpretation of any court of appeals. As DR Horton had done before it, Murphy Oil similarly appealed the board's decision to the Fifth Circuit.

Chris Murray:                     That Court of Appeals issued its own decision on October 26th, 2015, and unsurprisingly adhered to its own earlier decision, rejecting the board's view. This time, unlike in DR Horton, the board filed a petition [inaudible 00:05:49] with the Supreme Court. Meanwhile there were a couple of other significant developments. In May 2016, the 7th Circuit became the first US Court of Appeals to be persuaded by the NLRB's view of the law.

Chris Murray:                     That court also ruling in the context of a motion to compel individual arbitration held that class action waivers are illegal under the [inaudible 00:06:12] and thus unenforceable under the FAA. The Ninth Circuit followed suit when it issued it's decision in August 2016, in Morse versus Ernst, Ernst and Young. Thus by the fall of 2016 there was a circuit split with the Second, the Fifth, and the Eighth Circuits all rejecting the board's view and the 7th and the Ninth Circuits adopting it.

Chris Murray:                     The Supreme Court granted [inaudible 00:06:37] in January of 2017, in the three consolidated cases that were decided yesterday and heard arguments on October 2nd, 2017. The case was the first one to be argued of the current term. Before turning to the decision that was issued yesterday, I wanted to note one somewhat strange occurrence during the case. Although it was no surprise that numerous business and employer groups filed over a dozen amicus briefs supporting the employer's position in the cases, there was one surprising amicus brief and that was filed by the United States Solicitor General.

Chris Murray:                     This was unexpected because up to that time the Solicitor General had been counsel of record representing the NLRB opposing the employer's position in the cases. With his about face, the Solicitor General now agreed with the employers. The class action waivers and employment arbitration agreements are not rendered unlawful by the NLRA and that was, of Gorsuch, directly contrary to the NLRB's position in the court. Following the Solicitor General switching sides, the NLRB issued a press release noting that the Solicitor General had authorized the board, quote, to represent itself, end quote, in the Supreme Court and the NLRB's associate general counsel then appeared to defend the agency's position.

Chris Murray:                     Thus, by the end of the case the federal government ended up filing briefs on both sides of these cases with the Solicitor General opposing the NRLB's position. As noted, argument was heard on October 2nd. In recent years the court's decisions in this area have been sharply split with many 5/4 votes and the late Justice Scalia, who passed away in February 2016, had always been in the majority of those decisions.

Chris Murray:                     His absence thus created the prospect of a 4/4 tie prior to Justice Gorsuch joining the court in April 2017. Following his confirmation all eyes were on Justice Gorsuch for clues as to his leanings, but during arguments in October, Justice Gorsuch didn't say a word. The decision yesterday, like many of the court's other recent FAA cases was decided on a 5/4 vote, this time with Justice Gorsuch in the majority and, in fact, writing the majority opinion.

Chris Murray:                     Justice Thomas, who fully joined the majority, also issued a brief concurrence and Justice Ginsburg issued a lengthy dissent joined by Justices Breyer, Kagan and Sotomayor. The majority opinion although written in a lively and informal style that Justice Gorsuch has become known for, is actually a rather, matter of fact, application of the law. The opinion is not especially long, clocking in at about 25 pages and it opens by posing a couple of important questions. Quote, should employees and employers be allowed to agree that any disputes between them will be resolved through one on one arbitration or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers, end quote.

Chris Murray:                     The majority responded that, as a matter of policy, these questions are surely debatable but, quote, as a matter of law the answer is clear. At the outset. The court noted the recent vintage of the notion that the NLRA conflicts with the FAA or provides employees the right to class actions despite the fact those statutes have been around for decades. It noted that the FAA had been enacted in 1925 and the NLRA in 1935. The majority also noted that the NLRB's 2012 DR Horton decision had received, to put it mildly, a, quote, cool reception in the court, close quote.

Chris Murray:                     The majority opinion then proceeded to identify and apply the court's FAA precedent which holds that arbitration agreements are to be enforced according to their terms, including enforcing the party's chosen arbitration procedures. The majority then expressed its view that this appeared to be a fairly easy case noting, on first blush, quote, these emphatic directions would seem to resolve any argument under the Arbitration Act. But the court noted that the employees in this case contended that the FAA's savings clause created an exception that applied here. By its terms, the FAA savings clause allows courts to refuse to enforce arbitration agreements, quote, upon such grounds as exist at law or in equity for the revocation of any contract.

Chris Murray:                     The majority noted the employees contended the NLRA made their individual arbitration agreements illegal and therefore under the FAA savings clause those agreements were not to be enforced. The majority rejected this argument on the ground that the savings clause recognizes only defenses that apply to, quote, any contract, close quote, but the court's decision in ATT Mobility versus Concepcion, made clear that the savings clause does not cover defenses that apply only to arbitration or that, quote, derive their meaning from the fact that an agreement to arbitrate is at issue, close quote.

Chris Murray:                     That was the problem here, according to the majority. The employees objected to their arbitration agreements precisely because they require individualized arbitration proceedings instead of class or collective ones and by collecting the individualized nature of arbitration proceedings the employee's argument seeks to interfere with one of arbitration's, quote, fundamental attributes. What are these fundamental attributes of arbitration according to the majority?

Chris Murray:                     Well, the court looked again to Concepcion and in that case the court evaluated a state law that deemed unconscionable class action waivers and consumer contracts. That state law applied both to class action waivers in litigation and in arbitration. But, nevertheless, the state law failed to fall within the scope of the FAA savings clause according to the court because the court found that it interfered with a fundamental attribute of arbitration, specifically, the state unconscionability law, effectively permitted any party in arbitration to demand class wide proceedings, despite the traditionally individualized and informal nature of arbitration.

Chris Murray:                     This was a fundamental change to the, quote, traditional arbitration process, which sacrificed the principal advantages of arbitration, it's informality and made arbitration slower, more costly and more likely to generate procedural morass than final judgment. The Concepcion court thus found that requiring class arbitration would eliminate, quote, the virtues Congress originally saw in arbitration, its speed and simplicity and inexpensiveness and arbitration would wind up looking like litigation which it was meant to displace.

Chris Murray:                     Here the majority apply Concepcion and found that the FAA savings clause would not cover a rule that bans the waiver of class procedures in arbitration agreements. Such a rule would equally exhibit hostility towards arbitration by interfering with its fundamental attributes and the court noted that Concepcion involve the state unconscionability defense, whereas the employees here relied on their interpretation of another federal statute, the NLRA, but the court said that distinction made no difference, for purposes of understanding the scope of the FAA savings clause. That clause simply does not cover defenses that, quote, impermissibly disfavor arbitration.

Chris Murray:                     After concluding, the FAA precedent required it to enforce the individual arbitration agreements, according to their terms, the majority turned its attention to the employees and the NLRB's interpretation of the NLRA. The court noted that the employees argued that the NLRA overrode the FAA and the majority found this argument unpersuasive. As an initial matter, the court expressed significant reluctance about finding a conflict between two federal statutes and explain the court should instead strive to interpret to congressional enactment in harmony rather than in conflict.

Chris Murray:                     And the court found, it could in fact interpret the FAA and the NLRA in harmony. At this point the majority also took the opportunity to express what it believed to be an important governing principle. The court explained, quote, respect for Congress as drafter counsels against too easily finding irreconcilable conflicts in it's work. More than that, respect for the separation of powers, councils restraint, allowing judges to pick and choose between statutes, risk transforming them from expounders of what the law is, into policy makers choosing what the law should be, end quote.

Chris Murray:                     The court then turned to the employees and NLRB, specific arguments based on the NLRA. The court noted that the employees relied on Section 7 of the NLRA which provides covered employees the right to self organization, to form, join and assist labor organizations, to bargain collectively through representatives of their own choosing and, quote, to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, end quote.

Chris Murray:                     The court rejected the employees in NLRB's claim that this provision granted employees a right to invoke class and collective action procedures in arbitrating claims against their employers. The court explained that the NLRA provision does not express approval or disapproval of arbitration. It does not mention class or collective action procedures and it does not even hint at a wish to displace the FAA. The court also noted that class and collective action procedures as they exist in modern courts, did not even exist when the NLRA was enacted in 1935.

Chris Murray:                     The court also noted that section 7 appears to address, not court procedures, but activities undertaken by employees themselves. That is, organizing, forming, joining in, assisting labor organizations in bargaining collectively However section 7 does not speak, quote, to the procedures judges and arbitrators must apply in disputes that leave the workplace and enter the courtroom or arbitral forum, close quote. And the majority noted that section 7 says absolutely nothing about what rules should govern the adjudication class in collective actions in court or arbitration and this was likely because, quote, Section 7 doesn't speak to class or collective action procedures in the first place, close quote.

Chris Murray:                     The court noted that the employees responded that section 7 may not protect class or collective actions, specifically, but contended instead that they simply granted employees the right to access whatever procedures might be available in a form at the time. The majority was again unpersuaded and noted that section 7 does not say that and in any event it's well settled that parties may agree to depart from available procedures, quote, in favor of individualized arbitration proceedings of their own design.

Chris Murray:                     The court also observed it was strange the employees who sought to litigate DFLSA claims collectively, did not invoke the DFLSA but rather the NLRA. The court noted that this was no doubt because it was well settled that under the DFLSA, its collective action procedures may be waived and here the majority remarked, quote, the employees are left to cast about elsewhere for help and so they have cast in this direction, suggesting that one statute the NLRA steps in to dictate the procedures for claims under a different statute, DFLSA and thereby overrides the commands of yet a third statute, the FAA.

Chris Murray:                     In colorful language, Justice Gorsuch noted, quote, it's a sort of interpretive triple bank shot and just stating the theory is enough to raise a judicial eyebrow. The court also concluded it was unlikely Congress intended the NLRA to override the FAA when it failed to include any expressed language to that effect and the court noted it had repeatedly rejected claims in prior cases that one federal statute implicitly conflicted with and overrode the FAA. The court noted given so much precedent pointing so strongly in one direction, we do not see how we might faithfully turn the other way here.

Chris Murray:                     The court also gave a brief nod to the employees argument that courts were bound by the NLRB's decision under Chevron. The court was not convinced for at least two reasons. First the NLRB was not interpreting, just the NLRA the statute it is charged with administering but was also purporting to interpret another statute. The FAA, outside its experience and authority. In addition the court noted that the federal government itself had been unable to agree on an interpretation of the NLRA since the Solicitor General was at odds in the case with the NLRB and finally the court noted that Chevron only applied when a statute is ambiguous but here there was no ambiguity because the FAA and the NLRA could be interpreted using ordinary statutory interpretation canons to be in harmony and not in conflict.

Chris Murray:                     The final portion of the majority opinion focused on responding to arguments raised in the dissent before turning to that final section it might be better to consider briefly, the points made by the dissent. As noted earlier Justice Ginsburg authored the dissent and in large part her opinion echoed much of the decisions of the board in DR Horton and in Murphy Oil. The dissent focused in part on policy concerns contending that the absence of class or collective action procedures would eliminate the ability of claimants in employment cases to pursue small claims.

Chris Murray:                     First the dissent reviewed the history and original purpose of federal labor laws such as the NLRA and its predecessor the Norse Laguardia act or NLGA, according to the dissent these laws were designed to allow employees to band together to increase their bargaining power with their more powerful employers and to effect the terms and conditions of their employment. The North La Guardia Act also banned so-called Yellow Dog contracts under which employers at the dawn of the 20th century purported to require employees to agree not to join a union. That dissent like the NLRB in its own decisions, viewed class and collective action procedures as a type of group employee activity protected by the NLGA and the NLRA and viewed individual arbitration agreements as similar to Yellow Dog contracts.

Chris Murray:                     That is agreements with individual employees requiring them to waive their ability to engage in concerted employee activity. The dissent also took issue with the court's FAA precedent as it has been developed over the past several decades and questioned whether contracts of adhesion, such as individual arbitration agreements required as a condition of employment may truly be viewed as contracts for purposes of the FAA. Ultimately, the dissent worried that, quote, the inevitable result of today's decision will be the under enforcement of federal and state statutes designed to advance the well being of vulnerable workers, close quote.

Chris Murray:                     In responding to the dissent, the majority opinion noted that the dissents, quote, real complaint lies with the mountain of precedent itself. The dissent dispense page after page relitagating our Arbitration Act precedents, rehashing arguments this court has heard and rejected many times, in many cases and that no party has asked us to revisit. The majority opinion then ended much where it began explaining, quote, the policy may be debatable but the law is clear. Congress has instructed that arbitration agreements like those before us must be enforced as written.

Chris Murray:                     While Congress is of course, always free to amend this judgment, we see nothing suggesting it has done so in the NLRA much less that it has manifested a clear intention to displace the Arbitration Act, close quote. That is where the court leaves us now with clear direction that individual arbitration agreements are enforceable under the FAA, resolving the turmoil that has been caused by the NLRB's 2012 DR Horton decision, for the past six years. Thank you Wes and now if there are any questions, I'd be happy to talk about that.

Wesley Hodges:                Wonderful. Thank you Chris for those remarks. In a moment you'll hear a prompt indicating the floor mode has been turned on. That means the floor is open for audience questions. So, after that just [inaudible 00:24:13] the star key and then the pound key on your telephone. While we wait for some questions to come in to the queue, Chris I just want to ask right off. One interesting thing about this case is how long it's been since the oral argument. Why do you think this case is taking this long to be decided?

Chris Murray:                     Well, thanks Wes. That is a good question and it's a question that I think a lot of us have been asked by clients and observers. As I noted, this was the first case that was argued on the current term, way back in October, on October 2nd and at that time, a number of observers including us, were predicting that there could be a decision as early as late January or more likely in February and then when it didn't come, I think people began speculating and of course, we have no idea why it took so long.

Chris Murray:                     One thing that I noted in reviewing the opinion is that there does appear to be quite a bit of back and forth between the dissent and the majority opinion, so, perhaps that led to additional time being required to finalize the opinions.

Wesley Hodges:                Thank you Chris. It looks like we have one question in the queue, if you would like to ask a question today just enter the starkey and the pound key. Let's go ahead and move to our first question.

Matt Hank:                         Hi, this is Matt Hank from Littler. My question is this, is there anything in the opinion that suggests that employers who do not currently have an arbitration agreement but do have a pending class action, could introduce an arbitration program to extinguish participation or limit participation in that class action?

Chris Murray:                     That's a great question and I'm sure one a lot of employers who are in that situation are probably wondering but I did not see anything in the opinion touching on that issue. I don't believe it was raised by any of the three cases. So, no, I didn't see anything in there that would address that situation.

Wesley Hodges:                Thank you caller. The queue is now open so if anyone has a question for the topic today, just enter the starkey and the pound key to join the queue. Now Chris, we were talking before the call and just talking about the implications of the decision, the way this case has moved. What do you see moving forward from this case?

Chris Murray:                     Well, I think, a couple of things. First, I think a lot of employers who don't have arbitration agreements currently or have arbitration agreements but have never implemented a class action waiver are now going to be giving serious consideration to adopting an individual arbitration program. So, I think that will be the most immediate impact and then I think on the other side, there has already been some legislative activity and this grew out of, I think, the me too movement's concerns back in late 2017 but in December of 2017 there was a proposal to amend the FAA at that time so that it would no longer cover sexual harassment or sex discrimination claims.

Chris Murray:                     I don't know that there has been much movement on that proposal in the last couple of months but no doubt with this decision there's going to be a lot of media coverage and attention given to employment arbitration so it's possible that opponents of arbitration or opponents, critics of class action waivers may start directing their efforts in that direction to revive interest in that proposal.

Wesley Hodges:                Thank you. It looks like we have another question in the queue. Anyone else that would like to join just remember, enter the starkey and the pound key and move to our second caller.

Bob Kurtz:                           Hi, Bob [Kurtz 00:28:05] in DC. I have two questions, probably have about 200. It's just loaded with material but anyways, I'll limit myself to two questions. One, his analysis of using rules of statutory construction. His analysis of concerted activity would seem to pretty significantly limit and maybe overturn a lot of board law on what constitutes concerted activity. I'd be interested in your take on that and then second, there are a series of issues that at some point in the opinion, he says, "We're not going to address these, the federal state issue."

Bob Kurtz:                           The one that really captured my attention was his focus on the word revocation in the savings clause of the FAA and I haven't gone to look but what I thought I read between the lines is maybe some states say a contract is unenforceable but that doesn't mean it is revocable and therefore the FAA savings clause doesn't apply. I assume some of the briefs address that issue. Be interested in what that issue is.

Chris Murray:                     Yeah. Great, well thanks for those questions Bob. On the first one, on that use of that interpretation, the statutory canons interpreting Section 7. The first time I read that I had the same reaction you did and I wondered. Is he really dramatically narrowing or is the majority dramatically narrowing the scope of Section 7 and saying, "You know, this really only covers activities that are related to union activity and organizing activity." But, as I've gone back and re-read it a couple of times, I wonder if that's not what he's saying and what he's actually alluding to is an argument that was made in another case.

Chris Murray:                     It was in the dissent written by Judge, I think, it was Judge Sutton in the Sixth Circuit in the alternative entertainment case and in the dissent in that case and just as a reminder in that case the Sixth Circuit joined the Seventh and the Ninth Circuit's and followed the NLRB but there was a dissent and in the dissent the judge pointed out the NLRA covers things that employees do themselves.

Chris Murray:                     You know whether it's maybe petitioning or acting together, hiring the same council. coordinating funds the things that employees do themselves but when you look at when you're talking about class and arbitration procedures those aren't things the employees do. Those are things that judges and arbitrator's do and they do it at their own discretion and they do it according to rules that have nothing to do with concerted activity, has to do with efficiency and protecting due process, et cetera.

Chris Murray:                     When I went back and read Justice Gorsuch's comment along those lines yesterday in interpreting Section 7, I noted he did point out, he said, "You know, Section 7 appears to cover things employees," and I think he used the phrase, "things employees, quote, just do." or something along those lines so I'm thinking that what he meant there is that Section 7, similar to what the dissent in the alternative entertainment argued that it covers thing that employees do, not things that arbitrators or judges do when they're applying procedures. That's the interpretation I've come around to, at the moment, but I'll be curious to see how that plays out in future cases.

Chris Murray:                     On the second question you raised there, about the revocation. I was a little curious about that as well and I wonder if that might have been an illusion in the majority opinion to Justice Thomas' theory that he set out, his brief concurrence where he set out the very theory that you just mentioned. That the revocation is something different from the other ground under state law for. Rendering an agreement unenforceable. That's just my, I guess, my off the cuff interpretation but I'm thinking that was an allusion to justice Gore Justice Thomas' opinion in this concurrence or theory in this concurrence.

Bob Kurtz:                           Thanks a lot and thanks for your presentation. It was terrific. [inaudible 00:33:14]

Chris Murray:                     Thanks Bob.

Wesley Hodges:                Thank you caller. The queue is again open so if anyone has a question please enter the starkey and the pound key to join the conversation. Seeing that there are no more questions coming in and you still have a several minutes, if you want to chime one in just hit starkey and the pound key. Chris is that you'd like to address in further detail or an idea that's come up since your remarks?

Chris Murray:                     Well no, I think, as I mentioned earlier, I think what will be really interesting is to see over the next couple of months how those who are critics of arbitration, respond to the decision yesterday I think employers and a lot of attorneys on both sides, view this decision yesterday as potentially a game changer for how employment litigation is conducted if many employers begin moving to individual arbitration agreements. That's obviously going to change a lot for employers, employees and attorneys on both sides of the issue.

Chris Murray:                     There are those on the employee or other side of who are strongly opposed to arbitration and since last fall with the, I guess growth of the Me to movement there, have been some efforts to link arbitration with the concerns of the ME to movement. I think my view is that those have not been substantiated but there has been some significant media coverage linking or attempting to link arbitration to those concerns and I would not be surprised if those efforts are revived in the wake of the decision as opponents of arbitration try to find some way to respond to this decision yesterday.

Wesley Hodges:                Chris, just looking back at the opinion for this case. Would you say that attorneys on both sides of the case are happier just with less ambiguity when it comes to this matter?

Chris Murray:                     Well, I think employers definitely, it was a very good decision for employers. They've really been caught between, it's been extremely difficult for the last six years. On one hand, employers have been told by courts, almost universally, up until 2016. Told that individual arbitration agreements are permissible and enforceable, so, they have adopted these agreements and used them and sought to enforce them and then on the other side, they have a federal agency, the National Labor Relations Board telling them the exact opposite.

Chris Murray:                     That they're not enforceable and they're defending unfair labor practice charges and I think by the time the court received a full briefing in this case, decided yesterday, I think by that point the NLRB had issued something like 70 decisions, finding individual and agreements to be unfair labor practices. So, now that this is finally resolved and employers can have a clear path forward knowing what the law is. I think that will be a benefit clearly.

Wesley Hodges:                Thank you Chris. Looks like there are no questions remaining in the queue. Do you have any closing remarks for us today?

Chris Murray:                     Well, no, thanks a lot for the invitation to be here and I really appreciate it.

Wesley Hodges:                All right, well, we're very appreciative of you Chris. On behalf of the Federal Society I'd like to thank you for the benefit of your valuable time and expertise today. We welcome all listener feedback by e-mail at Thank you all for joining us, this call is now adjourned.

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