Theabove issue is still hotly contested before the Supreme Court as the NationalLabor Relations Board banned class-action waivers in employment agreements,causing a rift amongst Circuit Courts on, whether arbitration clauses in the employment or independent contractorcontext result in enforceable waivers of a worker’s right to bring orparticipate in a class action.1 Theabove issue is pending before the Supreme Court but looking at thePro-arbitration stance and a divided bench, it is likely that the court willhold that waiver of class-actions valid. Despite the legal landscape tiltingradically towards the powerful, some bright spots for consumers remain. Evenwith the Supreme Court’s Concepcion and Italian Colors decisions, courtsrecognize that not all arbitration clauses are enforceable. Growing publicawareness about this usurping of rights has forced some corporations to backaway from efforts to unilaterally impose arbitration.
But without a legislative overrideof the Supreme Court’s decisions by amending the FAA to exempt “take it orleave it” contracts or passing the Arbitration Fairness Act to prohibitthe inclusion of mandatory arbitration clauses in consumer or employmentcontracts, corporations will grow ever more powerful, unpunished for andundeterred in their wrongdoing, and the Seventh Amendment’s promise of accessto the courthouse will exist as nothing more than a façade for most Americans.1 Epic Systems Corp. v. Lewis, Ernst& Young LLP v. Morris, and NLRB v.
Murphy Oil USA, Inc.