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June 12, 2017

June 2017 - Arbitration Committee

The Arbitration Committee is pleased to present the June 2017 issue of Just Resolutions. In this issue, we examine from all angles a thorny question currently before the U.S. Supreme Court: the enforceability of arbitration clause class action waivers in contracts governed by the National Labor Relations Act. One of our committee members, Adam Martin, shepherded the entire issue, editing the articles and working diligently with each of the authors. Our thanks to him, and to the ADR Committee of the Section of Labor and Employment Law, whose members contributed to this issue.

Since this is June, we’d also like to remind you of the 10th Annual Arbitration Training Institute, which will be held June 15-16 in Chicago. The Institute offers an unparalleled opportunity to learn from leading arbitrators and arbitration counsel, and to exchange experience with practitioners from all over the country. 

We hope you enjoy this June issue of Just Resolutions, and we look forward to getting to know you at the Arbitration Training Institute.

Louis Burke and Dana Welch

Arbitration Committee of the Dispute Resolution Section

The Continuing Struggle over Class Action Waivers in Employment Arbitration - The Circuits are Split.
By Robert Arrington

Section 7 of the National Labor Relations Act (“the NLRA”), 29 U.S.C.§ 157, provides, in pertinent part, that “[e]mployees shall have the right…to engage in…concerted activities for the purpose of collective bargaining or other mutual aid or protection.” (Emphasis supplied.) Interference with Section 7 rights is an unfair labor practice under Section 8 of the NLRA. 29 U.S.C. §158(a)(1). Read more

Are Employment Class Actions Headed Toward an Epic Fail?
By Alejandro Caffarelli, Caffarelli & Associates Ltd.

In the 2016 case of Lewis v. Epic Systems Corp., the Seventh Circuit Court of Appeals held that class action waivers in employee arbitration agreements violate the National Labor Relations Act (“NLRA”) in that they hinder an employee’s right to engage in protected, concerted activity. The Court reasoned that such agreements are not subject to mandatory arbitration under the Federal Arbitration Act (“FAA”) because they are subject to the FAA savings clause, which, among other things, voids “illegal” arbitration agreements. Read more

SCOTUS to Decide Future of Class Waiver Arbitration Clauses
By J. Kevin Hennessy

From Fortune 500s to regional warehouses, employers have long relied on arbitration clauses that prohibit class or collective action employment claims in order to minimize legal costs and financial exposure. However, the National Labor Relations Board (NLRB) and a patchwork of court decisions have put those clauses under increasing scrutiny, and in its next term, SCOTUS will finally decide if such waivers are enforceable. Read more

D.R. Horton and Murphy Oil in Their Statutory and Historical Context—How Did We Get Here and Where Are We Going?
By Wesley Kennedy

On January 13, 2017, the Supreme Court granted certiorari in three consolidated cases to resolve a Circuit conflict over the National Labor Relations Board’s D.R. Horton/Murphy Oil doctrine, which holds it unlawful to condition the employment of unrepresented employees on waiver of the right to engage in class litigation.  The cases will be heard in the Court’s 2017-2018 term. D.R. Horton and Murphy Oil are the culmination of developments under the Federal Arbitration Act (FAA) and the National Labor Relations Act (NLRA). Viewed in context, the NLRB’s decisions represent the straightforward application of the text and well-settled interpretation of the NLRA, and are consistent with the FAA. Read more

On a Collision Course
By Dana Welch

This Supreme Court term will resolve a cavernous split in the Circuits on an issue of significant import to arbitrators, government agencies, workers and management. Are class action waivers contained in arbitration clauses in agreements governed by the National Labor Relations Act (NLRA) enforceable? On one side are the Seventh and Ninth Circuits, which have upheld the National Labor Relation Board’s position that collective action is a substantive right created by the NLRA, specifically exempted by the savings clause of the Federal Arbitration Act. Read more

Our next quarterly call is June 26, 12PM EDT

Toll Free Dial-In Number (US and Canada): 866-646-6488
International Dial-In Number is: 707-287-9583
Conference Code: 875 003 7474

Presentation by Gary Benton, Founder and Chairman of the Silicon Valley Arbitration and Mediator Center

Startups and other emerging growth companies thrive on entrepreneurship, receive nourishment through tranches of private investment, and pride themselves on rapid growth and deal making. Most emerging growth companies don’t give much thought to courts and dispute resolution. Yet many of these companies struggle or fail due to disputes over IP rights, employee obligations, founder ownership, venture investment, or partnering, M&A/IPO exit issues. ADR is a perfect solution for the emerging growth sector given the cost and time savings and private, expert decision-making offered by ADR. Gary will address the unique problems arbitrators face with emerging growth companies.

D'Alemberte Raven Award

The Section's D'Alemberte-Raven Award is the Section's highest honor and was created to recognize outstanding service in dispute resolution.
This award was approved by the American Bar Association Board of Governors and was created to recognize outstanding service in dispute resolution. The award is usually presented in conjunction with the ABA Section of Dispute Resolution Spring Conference.
The Section of Dispute Resolution honors Robert D. Raven and Talbot D'Alemberte by using their names in the award title. Both hold the unique position of being both ABA Presidents and Dispute Resolution Chairs. Both guided the Section to be a leader in the dispute resolution arena: D'Alemberte as the first chair (1976-79) of the then ABA Special Committee on Resolution of Minor Disputes and Raven as the first chair (1993-94) of the ABA Section of Dispute Resolution.


Lawyer as Problem Solver Award

The John W. Cooley Lawyer as Problem Solver Award recognizes individuals and organizations that use their problem-solving skills to forge creative solutions. The award is given to an individual member of the legal profession and/or institution who has exhibited extraordinary skill in either promoting the concept of the lawyer as problem-solver or resolving individual, institutional, community, state, national, or international problems.
Award recipients will be acknowledged for their use or promotion of collaboration, negotiation, mediation, counseling, decision-making, and problem-solving skills to help parties resolve a problem in a creative and novel way.


Award for Scholarly Work

The ABA Section of Dispute Resolution Award for Outstanding Scholarly Work honors individuals whose scholarship has significantly contributed to the dispute resolution field.

Nominations should address one or more of the following:

  • Nominee has authored a scholarly publication or a body of work exhibiting excellence in research, writing, and analysis.
  • Nominee has introduced new concepts in dispute resolution.
  • Nominee has embodied "scholarship in action" for a collective body of work that brings theory to practice in developing (for example) laws, uniform acts, codes of conduct, protocols, competitions, or new programs and services over a sustained period of time.


10th Annual Arbitration Training Institute
June 15-16, 2017
Chicago, IL

This two-day training will be presented by a panel of nationally recognized arbitrators and arbitration advocates. The experts will describe best practices, followed by small group discussion facilitated by leading arbitrators and advocates. This interactive program will provide you with a unique learning environment and valuable industry contacts.



Practice Development Institute
ABA Chicago Headquarters
July 14-15, 2017
Chicago, IL

This two-day workshop on July 14-15 in Chicago, led by Forrest "Woody" Mosten, provides a practical model for implementing client-centered peacemaking strategies in your profession, including unbundled legal services and innovative dispute resolution tools.

Participants will learn new ways to help clients while staying out of court, and explore the personal and ethical dimensions of collaborative problem solving. Interdisciplinary practitioners will benefit from this training, including lawyers, mediators, mental health professionals, paralegals and financial professionals.

15th Annual Advanced Mediation and Advocacy Skills Institute
Straus Institute at Pepperdine School of Law
October 19-20, 2017
Malibu, CA

This two-day interactive institute features rare opportunities to learn from some of the leading mediators and advocates in North America. Each plenary session panel features an expert mediator, in-house counsel, and a skilled outside attorney, discussing each phase of the mediation process. Small group discussions led by experts in the field follow the plenary session panels.

The opportunity for mediators and advocates to interact in small facilitated groups provides a unique environment to enhance your skill, knowledge and understanding of the mediation process.

LTC Arbitration Rule Change

The Department of Health and Human Services Centers for Medicare and Medicaid Services has issued a proposed rule that would revise the requirements that Long-Term Care

(LTC) facilities must meet to participate in the Medicare and Medicaid programs. The proposed rule would remove provisions prohibiting binding pre-dispute arbitration in Long-Term Care facilities.

For more information

New Section Intern

The Section of Dispute Resolution welcomes its new summer intern, Chad Henry. He will be assisting the staff with tasks such as the Mediation Competition, CLE programs, research, and more.

Chad was born and raised in Washington, D.C. and currently attends the University of Baltimore School of Law. He holds a Bachelor of Science in Political Science from the University of Maryland Baltimore County.

Prior to the ABA, Chad interned for Congressman Cleaver and Congressman Clyburn; was a research assistant at George Washington University Law School; and worked at the DC City Council.

In his spare time, Chad enjoys watching movies and playing basketball. 

The Staff and Leadership of the Section want to make sure that you, as a member of the ABA Dispute Resolution Section, receive access to as many discounted ABA CLE products as possible. That’s why we have decided to increase the number of programs co-sponsored by the Section of Dispute Resolution. When the Section is a co-sponsor for an ABA produced CLE program, you win because you get a significant savings to attend and this includes in-person programs, webinars, teleconferences, and on-demand (recorded) programs. To see which programs are co-sponsored by your Dispute Resolution Section go to the ABA CLE page or go directly to all programs related to dispute resolution.

If the ABA Section of Dispute Resolution is listed as a cosponsor, then your price for that program is discounted. The specific amount of the discount varies by each program.

The International Center for the Settlement of Investment Disputes recently released statistics on investment arbitrations it has administrated involving Member States of the European Union.

Read the report

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The materials contained herein represent the opinions of the authors and editors and should not be construed to be those of either the American Bar Association or Section of Dispute Resolution unless adopted pursuant to the bylaws of the Association. Nothing contained herein is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. These materials and any forms and agreements herein are intended for educational and informational purposes only.