Mass Arbitrations: Challenges, Benefits, and Proposals for Improvement

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of Practice Group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Greg Walsh:  Welcome to The Federalist Society's Teleforum Conference call. This afternoon's topic is titled, "Mass Arbitrations: Challenges, Benefits, and Proposals for Improvement." My name is Greg Walsh, and I am Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us Mr. Allen Waxman, President and CEO of the International Institute for Conflict Prevention and Resolution, CPR, Mr. David E. Gottlieb, Partner at Wigdor LLP, and moderating is Mr. Chris Murray, Shareholder at Ogletree, Deakins, Nash, Smoak & Stewart. After our speakers give their opening remarks, we will go to audience Q&A.

 

Thank you all for sharing with us today. Chris, the floor is yours.  

 

Christopher C. Murray:  Great. Thank you, and good afternoon everyone. Thank you for joining us.   

 

I wanted to jump in by giving some background for our topic today which is mass arbitrations before turning to David and Allen. So first, I wanted to talk -- before we get to the subject of arbitration, to point out briefly what some of the challenges are from the employer's perspective in litigating class actions in court.

 

Class actions and collective actions under the Fair Labor Standards Act in particular impose significant burdens on defendant employers. In a class action, the risk to the defendant, including the risk from an erroneous judgment, increases exponentially over an individual case, an individual, single plaintiff case. In a class action, defense costs increase, and discovery costs increase dramatically.

 

So as a practical matter, it's often far more difficult for an employer to litigate claims on their merits when they're presented as class or collective actions. And then those cases are typically settled without going to trial or resulting in a judgment on the merits.

 

These problems are particularly keenly felt by employers with respect to FLSA collective actions, which have -- there's been an explosion, I guess, of collective -- FLSA collective action cases over the last 20 years or so. This is because FLSA collective actions are certified under different standards than those used to certify Rule 23 class actions. FLSA collective actions use a two-step certification procedure at the first step, which may occur very early in a case, even before any discovery has been completed.

 

The court may conditionally certify a collective action. And upon conditional certification, the employer is typically obligated to produce two plaintiff's counsel, a list of all current and former employees who fall within the scope of the conditionally certified collective action, and these individuals then receive notice of the lawsuit, inviting them to join the lawsuit by opting in as members of the collective action.

 

This conditional certification can turn a single plaintiff FLSA case into a case involving hundreds or even thousands of punitive collective action members, often based, as I mentioned, on little to no discovery and often on fairly minimal evidence presented by the plaintiff. In some jurisdictions, it's possible to obtain conditional certification based on as little as an affidavit presented by the named plaintiff.

 

So in light of challenges such as these, employers have turned their attention increasingly to arbitration over the last 10 years or 15 years. One of the key potential benefits from the employer's perspectives, arbitration, is that employment arbitration agreements may include class and collective action waivers.

 

A study published in early 2018 found that already at that point, about 54 percent of non-union private sector employers had mandatory arbitration procedures. And among companies with 1,000 or more employees, that percentage increased to 65 percent. Later that year, in May of 2018, the Supreme Court decided Epic Systems v. Lewis. And in that case, the Court confirmed that class and collective action waivers in employment arbitration agreements are permissible under federal law.

 

Up to that point, there had been significant disagreement among courts of appeals, some finding that class and collective action waivers were barred by the National Labor Relations Act, others finding that they were permissible. Once that decision was issued in 2018, employers' interest in employment arbitration increased significantly even further. And over the past two years, even more employers have adopted arbitration agreements with class and collective action waivers.

 

So from the employer's perspective, the use of individual arbitration can be beneficial because in theory, at least, it would allow more claims to be litigated on their merits. Whereas class and collective actions are almost always settled, both based in large part due to cost and risk. Individually arbitrated cases, in theory, could result in more awards based on the actual merits.

 

In response, however, to the increasing use of class and collective action waivers, plaintiff's counsel and representatives of employees have responded by developing what have become known as mass arbitrations.

 

Mass arbitrations attempt in some ways to replace or replicate class actions. They involve multiple employees, often represented by the same counsel, filing identical or nearly identical claims in arbitration simultaneously. The mass arbitration filings can involve hundreds or in some cases even thousands of simultaneously filed claims that present -- and these present unique problems for employers, in some ways problems that are even more challenging than what they face in defending class actions in court.

 

This is because arbitration involves additional cost beyond our ordinary litigation. First, there's the cost of the arbitrator. Arbitrators fees are typically additional hourly fees. And second, many arbitration agreements use the services of arbitration administrators, administrators like CPR or the American Arbitration Association or JAMS. And these administrators ordinarily have filing fees to cover their administrative services.

 

Over the past 20 years or so, courts and arbitration administrators have generally required employers to bear these costs that are unique to arbitration, with some exceptions. This requirement is intended to ensure that employees are able to prosecute their claims in arbitration without any greater burdens than they would face if they were pursuing them in litigation.

 

So when employees file mass arbitrations as a practical matter, employers become immediately responsible for paying these additional arbitration related fees, which may include the administrator's fees or advances on the arbitrator's fees. That can be thousands of dollars per case.

 

Two cases over the last year or nine months or so have drawn attention to this issue in particular. First, there was a proposed class action in the Northern District of California filed against Door Dash which involved a group of employees, or individuals rather, plaintiffs alleging that they should've been treated as employees but had been classified as independent contractors. There were about 5,700 individual arbitrations filed simultaneously with the American Arbitration Association. And the filing fees for those cases amounted to $12 million upfront.

 

A similar group of cases was filed against Post Mates in the Northern District of Illinois and also in California. Also, several thousand cases resulting in about $11 million in administrative fees.

 

So as a practical matter, an employer facing the prospect of paying millions of dollars of fees upfront just to commence arbitration is obviously going to be put into a difficult situation, an untenable situation likely. So if this persists, if this strategy continues, I guess the question presented is will this be the end of employment arbitration? Or are there possible changes that could be made to salvage employment arbitration as an option to litigation?

 

And with that introduction, David, I'd like to turn to you. And you represent employees and are obviously aware of the challenges that employees face from arbitration and in prosecuting class actions. And it'd be great to hear what your experience has been with arbitration, employment arbitration, and how you see -- I guess, your experience with mass arbitrations. So thank you, David, and look forward to hearing your experiences.

 

David E. Gottlieb:  Great. Thanks, Chris. Thanks for that introduction. And, yes, I'm a plaintiff's lawyer. I do quite a bit of class and collective action work. And where I'd like to start, actually, is to maybe slightly reframe the issue. I think to discuss mass arbitrations, it needs to start with an understanding of how we got there from class actions initially. And I'd like to just slightly reframe the issue as viewed from a plaintiff's lawyer's perspective.

 

      While class actions certainly do present a lot of the challenges and costs you mentioned to employers, we view the issue not being really the employer's desire to want to have cases heard on the merits, and that can be better done through arbitration.

 

      The way we look at arbitration agreements is really an employer's attempt to reduce its exposure and reduce its potential liability. So class actions, as we see them—we, I'm referring to plaintiff's lawyers—we view them as benefits to employees. And that's particularly the case in wage and hour cases and FLSA cases, where in most of these cases, plaintiffs are low-wage earners. They can't afford an attorney without a contingency fee arrangement. And individual claims are rarely large enough for plaintiff's attorneys to pursue those claims on a contingency basis absent the class mechanism to aggregate the claims.

 

      So the class mechanism really provides an avenue for relief that otherwise would just be completely unavailable. And I fully recognize that employers view the class mechanism as providing, perhaps, too much incentives to plaintiffs and plaintiff's lawyers to file these cases and too much of a burden. But that's really the, I think, some of the push and pull, to give a little bit more of the plaintiff's perspective on that.

 

      As you mentioned, over the last decade or so, there's been a rise of arbitration agreements with these class action waivers that have been upheld several times, starting with the Concepcion case. That was several years ago, and then Epic Systems more definitively and more recently. And I remember when the Concepcion case was first decided and then Epic Systems, I felt, like many others, that this was really a death nail to these wage cases because absent the class mechanism, like I mentioned, they're really very difficult to pursue.

 

      And I thought every single employer is going to have an arbitration agreement. Every one of them is going to have a class waiver. And what's going to happen next? But the plaintiff's bar is a very resilient bar. And so the concept of mass arbitrations has been the logical response in retrospect. And I'm thankful to say I have never turned down a case. My firm has never turned down a case due to a class waiver. That's definitely not the case across the industry. There are many firms who I'm sure have.

 

      But when we take these cases, we just have been forced to take an alternative approach. And so with the class action, as you mentioned, Chris, when we file, we can have one plaintiff, we can have just a few plaintiffs, and then we can very quickly grow the case from there. But with mass arbitrations, we need to do a lot of work on the front end.

 

      And what that means is speaking to as many people as possible right away and trying to find as many people who have similar claims right from the start. And that really requires a lot of work, and I'm not sure if people recognize how much work that takes. When we take a case or when we take any one of these cases, we will vet each and every potential plaintiff, and that requires email, that requires phone calls. If each of those calls make communications, adds up to -- even minutes, when you multiply them over dozens or hundreds of different people, you're talking about an amount of work that most firms, unless they have a lot of attorneys, just can't handle.

     

      Some colleagues at my firm know when we're starting one of these cases, we need to be extraordinarily organized in terms of how we schedule the communications, how we organize everything, how we aggregate the information that we're obtaining. So it really requires a lot of work and collaboration. It’s not something that can be done -- it's something you really need experience in doing and you need the manpower to do.

 

      And I've done this both with wage cases and also with discrimination cases. And what we do is once we have what we feel is the appropriately critical mass of people, then we'll move forward with filing. And what plays out then is, in some sense, a game of chicken because as you mentioned, Chris, the filing fees in these cases alone can be a fortune.

 

      I was just looking earlier today; AAA has filing fees and case management fees at the start of the case of $2,500 per case. So, I mean, just to keep the math simple, we just have 100 plaintiffs. And their claims could be worth hundreds or low thousands of dollars per case. The filing fees alone there would be $250,000. And, of course, that's just the start of things.

 

      The company will then have to pay legal fees to defend each case, arbitrator's fees throughout the case. And the result is really an untenable situation for the employer. They'll have luxury of paying huge sums of money for essentially the right to have a hearing to litigate whether they owe a much, much smaller amount than they've paid just to get there.

 

      So this entire formulation very often leads to settlements. And in many cases, they will lead to class settlements where the company will ultimately waive its arbitration agreement and class waiver obligations. And from my perspective, that's my goal. That's what I'm trying to accomplish in these cases, is to ultimately wind up in a situation where we have been able to put pressure on the employer to get back to the place that we want to be, which is the ability to pursue these cases effectively as a class action.

 

      But like I said, it's, to an extent, a game of chicken. And I've certainly been involved in cases where the employer will try to test our resolve as counsel. And one of my more memorable experiences with mass arbitration was actually a discrimination case, not a wage case. And it was not as large in terms of number of plaintiffs as some of the wage matters, but I think it was instructive.

 

      We had somewhere between 25 and 30 total cases in going in arbitration in addition to the fact that we had a class action court because the arbitration agreement only came into effect a few years prior and there was a statute of limitations period that went further back in the past. And so the employer had a big firm and clearly didn't mind spending what certainly must've been millions of dollars in attorney's fees to litigate the claims.

 

      And what it looked like is each case, we had very similar if not identical issues come up in discovery. We had a lot of arguments that felt like we had just done them. And whenever a decision came out from one arbitrator, whichever party liked the decision circulated it amongst all the other arbitrators and all the other cases.

 

      In terms of depositions, every one of our clients was sought to be deposed not only in his or her own case but also as witnesses in the other cases. And we sought to take the depositions of various defense witnesses in each and every one of these cases. So I hope I'm effectively conveying that what was really happening was everyone was trying to outwork the other side. And it turned into a process that felt a lot less about trying to back find and dispute resolve and more about really a litigation tactics.

 

      Now, eventually, these matters were resolved after -- between everything I just said, only one arbitration hearing was done and then all the claims were resolved. So that is usually the upshot and I think mass arbitrations, to an extent, get a bad name from the employer's perspective because of the cost associated with it  .

 

      The Door Dash case, I think, is the best example where the filing fees were more than $10 million. But I think it's important to, I guess, come back to where I started which is that mass arbitrations only exist because class actions have been done away with or in large part have been done away with.

 

And most plaintiff's firms simply cannot do this. It's a huge amount of work. Most plaintiff's firms are solo practitioners or have just a few employees and just simply do not have the manpower to be these sorts of mass arbitration tacticians. And even firms that do have the manpower, it really is a massive allocation of resources and it may not make sense for a lot of firms to pursue cases this way.

 

So again, I really -- mass arbitrations may be kind of perceived as maybe an unfair tactic or tool that plaintiff's lawyers use. But, again, I really view it as the opposite. It's a counterbalance to what we view as being unfair, which is the doing away with of class actions in court through arbitration agreements. And I think if you ask just about any plaintiff's lawyer, they will universally agree that we would prefer to have class actions in court than to have to litigate dozens, hundreds, or thousands of cases individually in arbitration.

 

So I'll leave it at that. I have some other comments, which I'll be glad to make on the improvements that can be done to the system. But I'll save those remarks for after Allen has a chance to speak.

 

Christopher C. Murray:  Great. Thanks a lot, David. And Allen, so you've heard the employer's perspective and employee's perspective, or representative's perspective. What are you seeing from the perspective of an arbitration administrator? And what types of things is CPR doing, I guess, in response to this phenomenon of mass arbitrations?

 

Allen Waxman:  Sure. Thanks, Chris, and thanks, David. And welcome to all of you and thanks for joining.

 

      I think what we're seeing are stalemates. Both of you very effectively raised the policy arguments in favor of your sides' positions. And indeed, I have great sympathy for each side's arguments in this regard. But from our observation, a lot of this was just leading to claims and claimants sitting around and nothing happening.

 

      There are being fights over fees. There are being fights over certification. There are being fights of all kinds and the threshold level, which as both of you, I'll note, mention do not allow anybody to even get into the merits of the underlying claim, as David mentioned, the fact, discovery, and so forth.

 

      And so really seeing that kind of stalemate, which I don't think serves anybody any good, we at CPR, where we have a long history of trying to innovate in response to issues like this, looked at this situation and thought there is an analog. And that's the mass torts framework whereby individual claims, which cannot afford -- do not get put into classes for various reasons and also face the same economic situations that David was talking about previously.

 

      There was a model there that we thought could be applied, adapted but applied, in the mass employment context. And so we went about consulting with various constituents, polling a what we think is an innovative procedure together that really has a bias towards resolution, and I think addresses the various policy concerns each side raises.

 

      And if I might just take a few moments to describe what that procedure offers. It basically says any time there are 30 or more nearly identical claims filed against an employer in or around the same time and the employer has included in their agreement a reference to CPR's arbitration rules and a reference to this procedure and also has put in place those due process protections that each of you talked about, the need for the employer to pick up the fee for the arbitration service and the arbitrator, the need for the locale of the arbitration to be proximate to the employee and other protections, so long as those things are in place, it triggers a procedure whereby each of the claims filed gets assigned a random number.

 

The first 10 become test cases. Each side has an opportunity to nominate an additional 5 cases a piece, which they believe maybe represented it. The remaining cases are stayed, and those initial 10 to 20 cases proceeds to arbitration on a short timeline, 120 days, for completion of the arbitrations.

 

Once the results of those 10 to 20 cases are returned by the arbitrator, they're anonymized and provided to a mediator who then convenes the parties and has 90 days to try to come up with a methodology to be able to offer a settlement informed by the results of those initial cases to each of the remaining claimants, be that 15 other claimants or 150 other claimants, to attempt to settle their claims.

 

Each claimant is presented with that offer. They can take the offer and settle their claim, or if they don't want to take the offer, they can proceed in arbitration. Alternatively, if after the 90 days, the parties aren't able to come up with a matrix and methodology for settling the cases, then this procedure allows everybody to opt out. They can go back to court and proceed and argue for a class action as David was talking about or for some other procedural mechanism, or they can proceed in arbitration.

 

So basically, the idea behind it is to hopefully allow there to be some quick review of the merits which can lead to a mediated resolution. And if not, if that's not what the parties are able to do, then take everybody out of the arbitration system who wants to be out of it and return to court.

 

So we think this provides an alternative mechanism to address some of the issues that have been raised by each of you. It's by no means perfect. There are aspects that I think each side of the aisle challenges from the perspective of this protocol, but it does offer something new and different to try to break the log jam and the stale mate and hopefully foster resolution.

 

Christopher C. Murray:  That's great. Thanks very much, Allen, for describing that. And I apologize if I missed it. Under the protocol because as I mentioned, the payment of the fees of such an important issue from the employer's perspective, what happens if the arbitration that's subject to the protocol, if there are 5,000 arbitrations involved, what would happen to the employer's obligation to pay those fees upfront?

 

Allen Waxman:  So it's not all upfront as it may be with some of our sister organizations. There is an initiation fee that needs to be paid, and there's various aspects along the way of fees that need to be paid when the mediation process starts or when there's a presentation of arbitrators to be selected. But the basic aspect here is that as each arbitration occurs, the remainder of the fees would be paid. So it's not all upfront. It's kind of as it unfolds, the remaining arbitration fees are paid.

 

Christopher C. Murray:  Gotcha. Thank you. And, David, from your perspective, what, I guess, I don't know that you want to necessarily comment specifically on this protocol but what types of things from the plaintiff's perspective might be acceptable to -- as alternatives to the current situation or what other suggestions might you have to some of these challenges with the mass arbitrations as they're currently occurring?

 

David E. Gottlieb:  Yeah, well. I mean, the -- so as a plaintiff's lawyer, I look very skeptically at any proposed changes to a system that an employer is taking issue with. So the push to reform the kind of mass arbitration system that we have, I really view that as an attempt by employers to, again, potentially reduce their exposure, reduce their liability. I generally recognize there's other ways to look at it.

 

      But I would view any reform mechanism with skepticism. I have had disputes with many arbitration providers and whether they be AAA or JAMS or others, and my perception is that any new rules that are being created to reform this tactic that plaintiff's lawyers are using is really going to be used to benefit the employer, to lower their costs, to lower their filing fees, lower their potential attorney's fees, and those are all things that we as plaintiff's lawyers are able to use to put pressure on employers that require employees to arbitrate claims.

 

      So I guess my -- I don't necessarily have -- maybe I misspoke earlier when I said have a few suggestions. I don't necessarily have suggestions for how to employ these mass arbitrations because I think employers need to have a choice, and they need to go in with their eyes open. Do we want to compel our employees to arbitrate their claims with a class action waiver knowing that we may find ourselves in a mass arbitration situation like Door Dash did?

 

      And my hope is that the concern for that, that they might find themselves the next Door Dash, will lead to them even not having arbitrations at all, arbitration agreements at all, or by permitting class arbitrations. And so I haven't reviewed the CPR protocol so perhaps there are some things I would agree with, but my overarching approach would be, just to be frank, would be one of skepticism.

 

Christopher C. Murray:  Right. I guess it would be fair to say that the -- at least in light of the existence of class and collection action waivers, the current system with mass arbitrations appears to be working for plaintiff's side or employees so I guess it would be fair to say if it's not broke, why fix it? At least in the absence of --

 

David E. Gottlieb:  Well, yeah. Let me say this again. I wouldn't say it's a working system. Like I said, I think one of the biggest problems with the current state of the law is that I think there are a lot fewer lawyers who are able to handle these cases. And perhaps, that could be a benefit of some reform to the mass arbitration process that Allen was describing, that maybe there is a process that allows more lawyers to be available to the public to handle these cases because I think it's so critical that employees, particularly low-wage earners, have access to counsel.

 

      And so is the system broken? I'm going to approach that question from the perspective of it wasn't broken when we had class actions. And perhaps, these class action waivers are what broke the system. So fixing it would be giving everybody Rule 23 back, but perhaps a way to modify the system would be to allow for more plaintiff's firms that maybe don't have the manpower to be involved in these cases through mass arbitration. That's something I would certainly want to be looking at if I were to be assessing some sort of protocol.

 

Christopher C. Murray:  Okay. Great. Well, unless either of you have any concluding remarks you'd like to make, Greg, we may be able to move to the question and answer period if you'd like.

 

Allen Waxman:  Can I just, Chris, jump in for a sec?

 

Christopher C. Murray:  Absolutely. Please do, Allen. Thank you.

 

Allen Waxman:  Yeah. Yeah, no. Thanks. And thank you, David, for his comments. And look, I -- I mean, it's great to have this kind of a discussion. And in many ways, I appreciate the economic model that David is talking about. Albeit, the fact that AAA or JAMS may charge fees upfront, CPR has a long history of not charging fees upfront. There's nothing in the law that mandates how arbitral institutions charge their fees.

 

      And in many ways, I think in a self-interested way, would I rather get $12 million up front than have it paid -- because it's being paid to us, the arbitral institution, yes. It's just seeing that stalemate, and I thought the ultimate option of yes, that there may be a stay, although I would actually argue things would move faster under our procedure than under the status quo.

 

      But where you can get back to court and pursue that class action that David is talking about, I think it does recognize something has been taken away in class actions here from the plaintiff's bar. Let's give it a shot to reach resolution under the existing system. But if it doesn't work, you know, then there is that back end opt out, which I must say, I appreciate the skepticism David's bringing.

 

I've heard from many employers high skepticism for allowing the back end opt out. So in some ways, I think if we have skepticism from both sides, we're probably where we need to be. But I just think it's worth considering a different approach that doesn't have to be mandated by the fee structure.

 

Christopher C. Murray:  Great. Yeah. Well, thank you, Allen. Thank you--

 

Greg Walsh:  Perfect, Allen.

 

 Christopher C. Murray:  Go ahead, Greg. Sorry to talk over you there.

 

 Greg Walsh:  No worries. First, we don't have any questions in the queue out the gate. Do you want to direct the debate in one direction or another? 

 

Christopher C. Murray:  Sure. I guess one -- and this might be more an observation but maybe also a question for David. One of the arguments that has always been made for class actions was that and is that it's so difficult for individuals to even know that they have a claim without the class action procedure and the notice procedure. Does the fact that plaintiff's counsel have figured out a way to do these mass arbitrations, does that undercut that argument now in favor of class actions?

 

David E. Gottlieb:  Yeah. I don't think they do. And the reason is -- I mean, Door Dash and there are few notable similar situations where plaintiff's firms have been able to aggregate thousands and thousands of people. But that's, I mean, those are real exceptions to the rule.

 

      If there's a company that has potentially a few hundred people in a particular job title or classification, that would typically be the type of thing that could be pursued as a class action. But it's not going to be done -- you're not going to be able to find the plaintiffs the way they've done some of these other cases where they create websites and make them and really advertise to find the plaintiffs.

 

      And so in these cases, we can speak to the people who have reached out to us and they can network amongst the people they know. And, yeah, we can end up speaking to, in a lot of these situations, it can be dozens of people, right. It's not always thousands. But that's a far cry from the whole class. It's very, very hard to put together that sort of volume.

 

      And when we start a class action in the wage cases under the FLSA, as you note at the start, Chris, we can move for conditional certification really right away before there's any discovery. We get the full list of employees in the class and we send notice out right away. So that is -- there's really no replacement for being able to notify people in that way.

 

Christopher C. Murray:  Gotcha.

 

Greg Walsh:  Well, Chris, we still don't have any callers in the queue. Does anybody want to -- does anybody have any concluding thoughts?

 

 Christopher C. Murray:  Well, Allen, maybe we can start with you? First of all, thank you again for joining our panel today. It's really interesting to hear what CPR is doing in this area. And, as you noted, I think that's very, at least from the experiences I've had, that seems like a very unique approach. I haven't seen anything like it presented by anyone else. So I'd be curious to hear, I guess, where you're going next with the protocol? What do you expect to see down the line?

 

Allen Waxman:  Yeah, no. Thank you, both of you. I think it's a discussion worth having. And for there to continue to be efforts to innovate in how to bring resolution that really addresses the problems individuals may have and allows for some sort of a fair process and an efficient process to bring about resolution because otherwise, we just end up in frustration, stalemate, and we certainly have enough of that.

 

      So I think discussions like these are very helpful. It's great to hear both of your perspectives, and we'll want to continue to hear others. And we're going to continue to try to innovate and refine our procedures in the area in ways that are workable and acceptable. And of course, we’ve got a big event coming up here at the end of the year. The “we” here is more the country than it is CPR, and Congress may end up having a say in the whole employment arbitration area as well. So we'll have to see what comes out of those debates and discussions too.

 

      Thanks very much for including us here.

 

Christopher C. Murray:  And, David, thank you also very much for participating today. It's been very interesting and valuable to hear your perspective from the plaintiff's class action attorney and the advocate for employees.

 

      Is there anything more that you're able and willing to disclose? What are plaintiff's attorneys thinking there of -- are there further things or further surprises you may have in store for us on the employer side?

 

David E. Gottlieb:  Well, I think Allen raised an interesting point a moment ago that there has been a legislative push, certainly from the left, to try to make it unlawful to require employees to arbitrate their claims, and, of course, that would include class waivers as well. So a lot of this could change based on politics and based on who controls the various branches of the government. So I think that's something that everybody in this area is going to be following very closely.

 

      And then lastly, I just -- it gives me comfort, Allen, to know that there's skepticism being met on both sides to the protocol that you're proposing. And it'll be interesting to see how these things play out, so thank you.

 

Christopher C. Murray:  Thanks. And thank you to The Federalist Society for hosting us today. And thank you for those who joined in the audience. We've been grateful for the chance to be with you today, so thank you very much.

 

Greg Walsh:  On behalf of The Federalist society, I want to thank our speakers for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.