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05/27/2018

In an article by Law360, Nichols Kaster, PLLP partner Michele Fisher discussed how plaintiff law firms will band together to continue to pursue workers’ rights even if it is on an individual by individual, rather than class action basis.

Last Monday, the U.S. Supreme Court ruled that workers could be barred from pursuing class claims if they were subject to an arbitration agreement with a class waiver.   While this was the case in many circuits before the ruling, the Supreme Court’s decision clarified the validity of these class waivers.

As stated in the article:

Attorneys on both sides of the bar have acknowledged that the hotly anticipated ruling will go down as a landmark decision in the annals of employment law and is likely to turbo-charge employers’ use of class waivers in arbitration agreements.

But even if class waivers become more ubiquitous, plaintiffs-side attorneys say they have already been dealing with the steadily expanding use of such waivers in recent years and have a number of tools at their disposal to work around such provisions.

Our strategy has been to file individual arbitrations in large numbers — the cost of which is typically paid for by the employer — rather than going to court, and we will continue to do so,” said Michele Fisher, a member of Nichols Kaster PLLP’s management committee whose practice primarily focuses on national wage-and-hour class and collective actions.

We will inevitably see more employers using arbitration agreements to avoid class actions, but once they start experiencing what an expensive pain it is for the employer to arbitrate and pay for each one separately with basically no right to appeal to a court, employers usually decide that arbitration isn’t as much fun as they thought,” she added.

Fisher also said that her firm “will carry on as usual” by continuing to band together with other firms “to help them arbitrate in large numbers and make employers realize class waivers in arbitration agreements are not their friend.