Over at Indisputably (a blog linking dispute resolution scholarship, education, and practice) Professor Jill Gross (Pace School of Law), provides an interesting take on the recent US Supreme Court decision in Epic Systems.
In a post titled, An Epic (And Compounded) Mistake in Epic Systems, Prof. Gross argues that Justice Gorshuch’s majority decision “compounded Justice Scalia’s mistake [in American Express v. Italian Colors] by repeating it. He justifies enforcing a collective action waiver for employees on the ground, in part, that the Court did this before in Gilmer, and cites Italian Colors, which, in turn, cited Gilmer.”
Prof. Gross explains: “Now the Supreme Court TWICE has written that Gilmer involved enforcement of a class action waiver in a securities case when, in fact, no class action waiver existed and the employees retained the right to bring their class claims in court. Indeed, to this day, the Securities and Exchange Commission (through its power to regulate securities industry arbitration) maintains that policy of not permitting class arbitration in the FINRA forum and preserving the right of customers of broker-dealers as well as associated persons of those firms to bring their class and collective claims to court.”