Lawyers Will Fight Mandatory Arbitration on Other Grounds

Yesterday’s ProfLERoy post on mandatory arbitration received 400% more than the usual clicks. So here is a brief follow-up.

Lawyers who represent the “little guy” are not done attacking this unfair method of dealing with employees.

Michael Rubin of Altshuler Berzon in San Francisco, who represents plaintiffs, said yesterday: “Today's decision is not the end of legal challenges to unfair, one-sided arbitration agreements by any stretch.”

One line of attack? Some employers have run into legal trouble because of the way they rolled out new arbitration agreements. Most agreements are signed electronically, and companies must be able to prove that a particular employee actually reviewed and signed an agreement.

Also, arbitration agreements that are complicated, technical, and filled with jargon are being successfully attacked. Why? Because a waiver—a term that means giving up a legal right or entitlement— must be “knowing and voluntary.” Lawyers have lost the voluntary part due to five justices who are biased in favor of corporations (I admit to being biased in favor of regular individuals when it comes to their constitutional right to a jury trial in civil matters); but lawyers are now going after the “knowing” part.

Plus this: If there is a Blue Wave in 2018, look for Congress to pass a law that repeals the various Supreme Court decisions affirming the use of mandatory arbitration agreements (yes, President Trump could veto it). The point is that these rulings are not set in stone. So long as we have checks and balances, change is possible.