September 11, 2018 article

Epic Systems Corp. v. Lewis: The Reach of the FAA Remains Unchanged

By Sheila J. Carpenter

Epic Systems Corp. v. Lewis is the Supreme Court’s most recent exposition of the reach of the Federal Arbitration Act (FAA), 9 U.S.C. §1 et. seq. Authored by the Court’s newest justice, the opinion sounds an old theme—arbitration agreements must be enforced if the objection to arbitration is due to the nature of the arbitration rather than the traditional grounds for revocation of any contract.

Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), took up the question of whether the right of employees under the National Labor Relations Act (NLRA) to bargain and act collectively made employment agreements specifying that only individual arbitrations might be brought an unfair labor practice. In an opinion authored by Justice Gorsuch, the Court held 5–4 that the NLRA should not be held to override section 2 of the FAA, which provides that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Justices Kennedy, Thomas, and Alito and Chief Justice Roberts joined in the majority opinion; Justice Thomas wrote a brief concurrence. Justice Ginsburg wrote a lengthy dissent, joined by Justices Breyer, Sotomayor, and Kagan.

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