In What’s Next for the Saga of D.R. Horton and Class Action Waivers? (Labor Law Journal, Vol. 67, Issue 4, pp. 515-519, 2016) Arbitrator Barry Winograd (Past NAA Vice-president) comments on the prospects of the ongoing litigation regarding the interplay between class action arbitration waivers, the National Labor Relations Act and the Norris-La Guardia Act.
After a brief summary of the pending litigation, Winograd discusses three issues which he identifies as being up for consideration: (1) Whether the U.S. Supreme Court will grant certiorari to review the waiver issue?; (2) In light of the uncertainty at the Supreme Court level, what actions might employers take in the meantime with respect to arbitration clauses?; and, (3) “Whether the D.R. Horton appellate conflict, and the prospect of one or more Supreme Court nominations during the Trump presidency, will affect judicial and administrative filings by promoting new litigation and forum-selection preferences?”
Editor’s comment: After the article went to press, a fifth petition for certiorari was filed, by the NLRB, in 24 Hour Fitness USA, 363 NLRB No. 84 (2015), rev. NLRB v. 24 Hour Fitness USA, 2016 WL 3668038 (5th Cir. 2016). The appellate ruling is an unpublished, per curiam decision. The Supreme Court petition, No. 16-189, was filed November 23, 2016. The 24 Hour Fitness case addresses the “opt out” issue mentioned in the article, but which was not directly at issue in the cases giving rise to the four other petitions.
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