Petition for Writ of Certiorari — Epic Sys. Corp. v. Lewis, 138 S. Ct. 42 (2017) (No. 16-285)

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FILED

16-285 | cus

No. 16-

IN THE

Supreme Court of the United States

Epic SYSTEMS CORPORATION,

Petitioner,

Vv.

JACOB LEWIS,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of

for the Seventh C t

PETITION FOR A WRIT OF CERTIORARI

NOAH A. FINKEL NEAL KUMAR KATYAL

ANDREW SCROGGINS Counsel of Record

SEYFARTH SHAW LLP MARY HELEN WIMBERLY

131 South Dearborn Street FREDERICK LIU

Chicago, IL 60603 DANIEL J.T. SCHUKER

HOGAN LOVELLS US LLP

555 Thirteenth Street, NW

Washington, DC 20004

(202) 637-5600

neal.katyal@hoganlovells.com

Counsel for Petitioner

QUESTION PRESENTED

Whether an agreement that requires an employer

and an employee to resolve employment-related

disputes through individual arbitration, and waive

class and collective proceedings, is enforceable under

the Federal Arbitration Act, notwithstanding the

provisions of the National Labor Relations Act.

(i)

PARTIES TO THE PROCEEDING

1. Epic Systems Corporation, petitioner on review,

was the defendant-appellant below.

2. Jacob Lewis, respondent on review, was the

plaintiff-appellee below.

iii

RULE 29.6 DISCLOSURE STATEMENT

Epic Systems Corporation has no parent corpora-

tion, and no publicly held company owns 10% or

more of Epic Systems Corporation’s stock.

uae ul to ee eee Se Se ee ee Pe

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ...0....c.ccsscccscsessesssesessecseeneees

PARTIES TO THE PROCEEDING. ............:cccs0s0000e00. ii

RULE 29.6 DISCLOSURE STATEMENT ............... iii

TABLE OF AUTHORITIES. ...........::se:seseessessseseeseees vii

Cs eadcainabins 1

TEE NR a se eR a 1

STATUTORY PROVISIONS INVOLVED ..............-.. 2

SR IS Ee NE Re 3

EERE cE ee ee ee ene a 4

REASONS FOR GRANTING THE PETITION ......... 7

I. THERE IS AN ACKNOWLEDGED

SPLIT OF AUTHORITY ON THE

QUESTION PRESENTED...............0.....000. cece 7

Il. THE DECISION BELOW CONFLICTS

WITH THIS COURT'S ARBITRATION

PRECEDENTS AND WAS

A. The FAA Controls The Enforceability

Of Arbitration Agreements Absent

Contrary Congressional Command................ 14

B. The Court of Appeals Failed To

Follow The Requisite CompuCredit

itis hetlcidndlbaihiiiintinabigditincimteseecscens 15

C. The Court Of Appeals’ Analysis Is

Not Salvageable Through the FAA’s

| ES AE 18

(v)

TABLE OF CONTENTS—Continued

Page

Ill. REVIEW IS NEEDED TO

ESTABLISH A NATIONWIDE RULE

ON AN IMPORTANT ISSUE FOR

BOTH EMPLOYERS AND

kd scesdpennnbensedecnneial 20

a cies dees ei nenadinianetned 26

APPENDICES

APPENDIX A—May 26, 2016 Court of

SEES ETT A a la

APPENDIX B—Sept. 10, 2016 District

SITE ES SS Ce 24a

APPENDIX C—Apr. 2, 2014 Mutual

Arbitration Agreement Regarding

Wages and Hours (C.A. App. 11-13)............ 30a

vil

TABLE OF AUTHORITIES

Page(s)

CASES:

Adkins v. Labor Ready, Inc.,

303 F.3d 496 (4th Cir. 2002)...................24. 11, 21

Adriana’s Ins. Servs., Inc.,

364 N.L.R.B. 17 (May 31, 2016)..........00....00..... 22

American Express Co. v. Italian Colors

Rest., 133 S. Ct. 2304 (2013)...........000...0... passim

Arise Virtual Sols., Inc.,

No. 12-CA-144223, 2016 WL 4362210

poke f | Re 22

AT&T Mobility LLC v. Concepcion,

a ee IED sicnccsiecsristibaniininsinaseenien passim

Bekele v. Lyft, Inc.,

No. 15-cv-11650, 2016 WL 4203412

(D. Mass. Aug. 9, 2016) .......cccccsccccsosseses 17, 18, 21

Bell v. Ryan Transp. Serv., Inc.,

No. 15-9857, 2016 WL 1298083

CEG. ees MENG BE: SIL ss oeccndsddsepsenansdunnasntcinnban 21

Briad Wenco, LLC,

No. 29-CA-165942, 2016 WL 3626602

CE Ba UE Gs SED eiannssessasssovnnekoneiessoniinbits 22

Bristol Farms,

364 N.L.R.B. 34 (July 6, 2016)............00...0..: 22

California Commerce Club, Inc.,

364 N.L.R.B. 31 (June 16, 2016).................0.... 22

Cellular Sales of Mo., LLC v. NLRB,

824 F.3d 772 (8th Cir. 2016)...................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Century Fast Foods, Inc.,

No. 31-CA-116102, 2015 WL 1885197

I I, I, BI cocccccensescocssccoseesessscors 21

Chesapeake Energy Corp. v. NLRB,

633 F. App’x 613 (5th Cir. 2016).................. 9, 23

Citi Trends, Inc. v. NLRB,

No. 15-60913, 2016 WL 4245458

ne 9, 23

CompuCredit Corp. v. Greenwood,

ee passim

D.R. Horton, Inc. v. NLRB,

737 F.3d 344 (5th Cir. 2013)........... 7, 8,9, 11, 23

D.R. Horton, Inc.,

SE EES, SED GEE ccccccccencccseccccescscecess 8, 21

Dean Witter Reynolds, Inc. v. Byrd,

a 15

DIRECTV, Inc. v. Imburgia,

a 15

Gilmer v. Interstate / Johnson Lane Corp.,

Ee 15

Grill Concepts Servs., Inc.,

364 N.L.R.B. 36 (June 30, 2016)...................... 22

Iskanian v. CLS Transp. L.A., LLC,

I snc ccs nnesencesccoesenees 11

Killion v. KeHE Distribs., LLC,

761 F.3d 574 (6th Cir. 2014)...................... 11, 21

Lincoln E. Mgmt. Corp.,

364 N.L.R.B. 16 (May 31, 2016)...............00...... 22

TABLE OF AUTHORITIES—Continued

Page(s)

Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, Inc., 473 U.S. 614 (1985)................ 15

Morris v. Ernst & Young, LLP,

No. 13-16599, 2016 WL 4433080

(9th Cir. Aug. 22, 2016)............. 12, 13, 15, 17, 19

Morvant v. P.F. Chang’s China Bistro, Inc.,

870 F. Supp. 2d 831 (N.D. Cal. 2012).............. 21

Moses H. Cone Mem’! Hosp. v. Mercury

Constr. Corp., 460 U.S. 1 (1983)........... 14, 15, 16

Murphy Oil USA, Inc. v. NLRB,

808 F.3d 1013 (5th Cir. 2015)................. 9, 22, 23

Owen v. Bristol Care, Inc.,

702 F.3d 1050 (8th Cir. 2013)........... 9, 10, 12, 23

PJ Cheese, Inc. v. NLRB,

No. 15-60610, 2016 WL 3457261

ey es I Gi BI ortcseccscncsccoussascensesoces 9, 23

Prima Paint Corp. v. Flood & Conklin Mfg.

ere 15

Raniere v. Citigroup Inc.,

533 F. App’x 11 (2d Cir. 2013) ......................0« 21

Rim Hosp.,

No. 21-CA-137250, 2016 WL 3345349

RR en 20

Scherzinger Corp.,

No. 09-CA-165460, 2016 WL 3383761

BR 22

Shearson/Am. Express Inc. v. McMahon,

tk, Sa 14, 15, 16

TABLE OF AUTHORITIES—Continued

Page(s)

SJK, Inc.,

364 N.L.R.B. 29 (June 16, 2016)...................... 22

Stolt-Nielsen S.A. v. AnimalFeeds Int'l

Corp., 559 U.S. 662 (2010) ................1...000 15, 25

Sutherland v. Ernst & Young LLP,

726 F.3d 290 (2d Cir. 2013)................... 10, 11, 12

Tallman v. Eighth Jud. Dist. Ct.,

359 P.3d 113 (Nev. 2015) ......................0000 11, 21

Walthour v. Chipio Windshield Repair,

LLC, 745 F.3d 1326 (11th Cir. 2014)......... 11, 21

STATUTES:

EET ROE ETT EOI passim

TT ne ae ae a ene Rene a 6

| a ee ae LENT 2

a esata 3, 6,17

aia seeean i iemaalaell 3, 6,18

5 RT aS Na 9, 22, 23

TIE ini ccs acerlatinsonscnentieiiaiigalaginsicesiiiiite 6

RULE:

ey Se I OF 6 Si iriccatscndapenticianiuniniiimeniesiinamniiiniogh 17

IN THE

Supreme Court of the Anited States

No. 16-_

EPIC SYSTEMS CORPORATION,

Petitioner,

Vv.

JACOB LEWIS,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of als

for the Seventh t

PETITION FOR A WRIT OF CERTIORARI

Epic Systems Corporation (Epic) respectfully peti-

tions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Seventh

Circuit in this case.

OPINIONS BELOW

The Seventh Circuit’s opinion is reported at 823

F.3d 1147. The District Court’s opinion denying

Epic’s motion to dismiss and compel individual

arbitration is not published in the Federal Supple-

ment, but it is available at 2015 WL 5330300.

JURISDICTION

The judgment of the Seventh Circuit was entered

on May 26, 2016. On July 29, 2016, Justice Kagan

extended the time within which to file a petition for a

writ of certiorari to and including September 23,

2016. See No. 16A93. This Court’s jurisdiction is

invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

This case involves the Federal Arbitration Act

(FAA) and the National Labor Relations Act (NLRA).

The FAA provision at issue states:

A written provision in any maritime trans-

action or a contract evidencing a transac-

tion involving commerce to settle by arbi-

tration a controversy thereafter arising out

of such contract or transaction, or the re-

fusal to perform the whole or any part

thereof, or an agreement in writing to

submit to arbitration an existing controver-

sy arising out of such a contract, transac-

tion, or refusal, shall be valid, irrevocable,

and enforceable, save upon such grounds as

exist at law or in equity for the revocation

of any contract. [9 U.S.C. § 2.]

Two provisions of the NLRA are at issue. The first,

Section 7 of the NLRA, provides:

Employees shall have the right to self-

organization, to form, join, or assist labor

organizations, to bargain collectively

through representatives of their own choos-

ing, and to engage in other concerted activ-

ities for the purpose of collective bargain-

ing or other mutual aid or protection, and

shall also have the right to refrain from

any or all of such activities except to the

extent that such right may be affected by

an agreement requiring membership in a

labor organization as a condition of em-

ployment as authorized in section 158(a)(3)

of this title. [29 U.S.C. § 157.]

The second, Section 8 of the NLRA, states:

It shall be an unfair labor practice for an

employer—

(1) to interfere with, restrain, or coerce

employees in the exercise of the rights

guaranteed in section 157 of this title * * *.

Id. § 158(a).]

INTRODUCTION

This case is about the enforceability of arbitration

agreements under the FAA. As a matter of federal

substantive law, the FAA establishes a presumption

in favor of enforcing arbitration agreements as

written. See 9 U.S.C. § 2. This presumption may be

overcome by another federal statute, but only—as

the Court has recently reaffirmed—if that statute

qualifies as a “congressional command” that is “con-

trary” to the FAA’s enforcement mandate. Compu-

Credit Corp. v. Greenwood, 132 S.Ct. 665, 669

(2012). The question presented here arises in the

context of employer-employee agreements that

require employment-related disputes to be resolved

through individual arbitration and not class or

collective arbitration. It asks whether Section 7 of

the NLRA, which gives employees the right to “en-

gage in *** concerted activities for the purpose of

collective bargaining or other mutual aid or protec-

tion,” 29 U.S.C. § 157, qualifies as a contrary con-

gressional command sufficient to overcome the FAA’s

presumption that these agreements should be en-

forced according to their terms.

The courts are squarely divided over this important

and recurring question. Three federal courts of

appeals (the Second, Fifth, and Eighth Circuits) and

two state courts of last resort (the California and

Nevada Supreme Courts) have concluded that the

answer is no: agreements to submit employment

disputes to individual arbitration are fully enforcea-

ble. Two other federal courts of appeals (the Seventh

and Ninth Circuits)—as well as the National Labor

Relations Board—have concluded that the answer is

yes: these agreements are unenforceable because

they bar class and collective proceedings. Thus the

outcome of a case deciding the question presented

will depend on whether the case is filed in one circuit

or another—and, in the Ninth Circuit, on whether

the case is litigated in state or federal court. This

divergence in authority renders the _ dispute-

resolution process in employer-employee relation-

ships unpredictable, to the detriment of employers

and employees alike.

The question presented has been fully ventilated

and the subject of both majority and dissenting

opinions by eminent jurists. This Court’s interven-

tion is needed now to resolve the acknowledged and

intractable split. The petition should be granted.

STATEMENT

1. Epic Systems Corporation is a Wisconsin-based

company that makes software for recording, organiz-

ing, and sharing healthcare data. Across the coun-

try, Epic’s software is used every day by hospitals,

academic medical facilities, retail clinics, safety-net

providers, and other healthcare organizations. Epic

relies on its own employees to develop, install, and

maintain its software.

In April 2014, Epic sent an email to many of its

employees. Pet. App. 2a. Contained within the

email was an arbitration agreement. Jd. The email

asked recipients to review and acknowledge the

agreement by responding in one of two ways: the

recipients could either confirm that they understood

and consented to the agreement, or they could re-

quest that someone contact them about it. Jd.; C.A.

App. 15.

One day after receiving the email, Jacob Lewis,

who was then a technical communications employee

of Epic, responded by acknowledging that he under-

stood and consented to the terms of the arbitration

agreement. Pet. App. 2a. In doing so, Lewis

“agree[d] to use binding arbitration, instead of going

to court, for any ‘covered claims’”—a category that

the agreement specifically defined as including any

“claimed violation of wage-and-hour practices or

procedures under local, state or federal statutory or

common law.” Jd. at 30a-31a.

The arbitration agreement also contained a “Waiv-

er of Class and Collective Claims.” Jd. at 3la. By

accepting that waiver, Lewis “agree(d] that covered

claims will be arbitrated only on an individual basis,”

and “waiveld| the right to participate in or receive

money or any other relief from any class, collective,

or representative proceeding.” Jd. The agreement

further provided that “if the Waiver of Class and

Collective Claims is found to be unenforceable, then

any claim brought on a class, collective, or repre-

sentative action basis must be filed in a court of

competent jurisdiction.” Jd. at 35a.

2. Lewis continued to work for Epic until Decem-

ber 2014. C.A. App. 9. Then, in February 2015,

Lewis sued Epic in federal court on behalf of a puta-

tive class and collective of technical communications

employees, claiming that they had been denied

overtime wages in violation of the Fair Labor Stand-

ards Act of 1938 (FLSA), 29 U.S.C. § 201 et seqg., and

Wisconsin law. Pet. App. 2a.

Epic moved to dismiss the complaint and compel

individual arbitration, citing the arbitration agree-

ment to which Lewis had consented. Jd. Although

Lewis acknowledged that his claims fell within the

scope of that agreement, the District Court denied

Epic’s motion. Jd. at 24a, 29a. According to the

District Court, the waiver of class and collective

proceedings was unenforceable because it violated

the right of employees to engage in “concerted activi-

ties” under Section 7 of the NLRA. Id. at 25a-28a

(quoting 29 U.S.C. § 157).

3. Epic appealed, see 9 U.S.C. § 16(a), and the Sev-

enth Circuit affirmed.

Turning first to the NLRA, the court concluded that

“lal collective, representative, or class legal proceed-

ing is *** a ‘concerted activitly]’” under NLRA

Section 7. Pet. App. 10a (brackets in original). And

because Section 8 of the NLRA prohibits an employer

from interfering with an employee’s right to engage

in concerted activity, 29 U.S.C. § 158(a)(1), the court

held that the NLRA renders the waiver of class and

collective proceedings “unenforceable.” Pet. App.

lla.

Only then did the court turn to the FAA, asking

whether that statute “resuscitates” the waiver. Id.

at 12a. The court concluded that it does not, because

of the FAA’s saving clause. Jd. at 15a. Under that

clause, an arbitration agreement may be rendered

unenforceable by “such grounds as exist at law or in

equity for the revocation of any contract.” Id. at 14a-

15a (quoting 9 U.S.C. §2). And according to the

court, “[iJllegality is one of those grounds.” Id. at

15a. The court thus held that the waiver was “unen-

forceable” even under the FAA. 7d. at 20a. In doing

so, the court acknowledged that the Fifth Circuit in

D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir.

2013), had come “to the opposite conclusion.” Pet.

App. 15a. The court nevertheless proceeded to

“create a conflict in the circuits.” Jd. at 15a n.f.

This petition followed.

REASONS FOR GRANTING THE PETITION

I. THERE IS AN ACKNOWLEDGED SPLIT

OF AUTHORITY ON THE QUESTION

PRESENTED.

The split of authority in this case is clear, acknow]l-

edged, and undisputed. The federal courts of appeals

and state courts of last resort are divided, five to two,

on whether the NLRA overcomes the FAA’s pre-

sumption that arbitration agreements are enforcea-

ble as written, when the agreement at issue submits

employment-related disputes to individual arbitra-

tion.

1. The Second, Fifth, and Eighth Circuits, as well

as the Supreme Courts of California and Nevada,

have each determined that provisions waiving class

and collective arbitration in the employment context

are enforceable under the FAA.

a. The Fifth Circuit has squarely and repeatedly

upheld class waivers in employment-related arbitra-

tion agreements. Starting with D.R. Horton, Inc. v.

NLRB, 737 F.3d 344, 362 (5th Cir. 2013), the court

rejected a decision by the National Labor Relations

Board (NLRB or Board), which had found the class

waiver at issue unenforceable under the FAA and

the NLRA. See D.R. Horton, Inc., 357 N.L.R.B. 2277

(2012). The Fifth Circuit considered and rejected the

Board’s determination that the FAA’s saving clause

was “a basis for invalidating” class waivers due to

their purported illegality under the NLRA. 737 F.3d

at 360. The Board’s analysis was flawed, the court

explained, because its finding of illegality had “the

effect of *** disfavor[ing] arbitration.” Jd. at 359

(citing AT&T Mobility LLC v. Concepcion, 563 U.S.

333, 346 (2011)). That type of illegality is not a

“ground|] *** for the revocation of any contract,” 9

U.S.C. §2 (emphasis added); it is a ground that

specifically targets arbitration, D.R. Horton, 737

F.3d at 360. The court therefore concluded that the

defense falls outside the saving clause. Id.

After dispensing with the Board’s reasoning, the

Fifth Circuit proceeded to the analysis required by

this Court’s precedent in cases where a party seeks

to avoid arbitration based on another federal statute

such as the NLRA. The court asked whether the

NLRA is “‘a contrary congressional command’” that

overcomes the FAA’s presumption favoring arbitra-

tion. Id. (quoting CompuCredit, 132 S. Ct. at 669).

The Fifth Circuit answered no: “there is no basis on

which to find that the text of the NLRA supports a

congressional command to override the FAA.” Id. In

so holding, the Fifth Circuit recognized that “[elvery

one of our sister circuits to consider the issue” has

“held arbitration agreements containing class waiv-

ers enforceable,” and the court was “loath to create a

circuit split.” /d. at 362. The proper resolution,

therefore, was straightforward: a class waiver “must

be enforced according to its terms.” Jd.

The Fifth Circuit has adhered to this view consist-

ently for the last three years. It has done so in the

face of serial challenges to its decisions from the

NLRB—challenges that are mounted whenever

aggrieved parties elect to file petitions to review

NLRB rulings in the Fifth Circuit. See Citi Trends,

Inc. v. NLRB, No. 15-60913, 2016 WL 4245458, at *1

(5th Cir. Aug. 10, 2016) (per curiam) (unpublished);

PJ Cheese, Inc. v. NLRB, No. 15-60610, 2016 WL

3457261, at *1 (5th Cir. June 16, 2016) (per curiam);

Chesapeake Energy Corp. v. NLRB, 633 F. App’x 613,

615 (5th Cir. 2016) (per curiam) (unpublished);

Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013, 1021

(5th Cir. 2015). See also infra pp. 22-24 (discussing

how the NLRA’s judicial review provision, 29 U.S.C.

§ 160(f, allows a party to petition for review of an

NLRB decision in one of several different courts of

appeals).

b. The Eighth Circuit also has concluded that em-

ployment arbitration agreements containing class

waivers are enforceable under the FAA, notwith-

standing federal labor laws or the NLRB’s interpre-

tation of those laws. See Cellular Sales of Mo., LLC

v. NLRB, 824 F.3d 772, 776 (8th Cir. 2016); Owen v.

Bristol Care, Inc., 702 F.3d 1050, 1052, 1054-1055

(8th Cir. 2013); see also NLRB C.A. Amicus Br. 23-24

(identifying the Eighth Circuit as aligned with the

Fifth Circuit). In Owen, the Eighth Circuit acknowl-

edged the NLRB’s determination that class waivers

in employment arbitration agreements are unen-

forceable, but the court specifically “reject[ed]” the

“invitation to follow the NLRB’s rationale.” 702 F.3d

at 1055. The court instead found the FAA’s pre-

sumption in favor of the enforcement of arbitration

agreements to be dispositive. See id. at 1052-1055.

Applying that presumption, the Eighth Circuit

followed this Court’s rule that “there must be a

‘contrary congressional command’ for another statute

to override the FAA’s mandate.” Jd. at 1052 (quoting

CompuCredit, 132 S. Ct. at 669). The two potential

contrary congressional commands alleged in Owen

were the FLSA and the NLRA. 7d. at 1053-1054.

The Eighth Circuit concluded that neither statute

sufficed to “override[{|] the mandate of the FAA in

favor of arbitration.” /d. at 1055. Because Congress

had reenacted the FAA in 1947, after passing both of

those statutes, the court reasoned, “Congress intend-

ed its arbitration protections to remain intact even in

light of the earlier passage of *** major labor rela-

tions statutes.” Id. at 1053.

The Eighth Circuit reaffirmed its Owen decision

just a few months ago, in Cellular Sales, 824 F.3d

772. That case came before the court of appeals on a

petition to review the NLRB’s ruling “ ‘that a manda-

tory agreement requiring individual arbitration of

work-related claims’ violates the NLRA.” /d. at 776.

The court granted the petition in relevant part,

explaining that the “holding in Owen is fatal” to the

NLRB’s position. Jd. Under Owen, an “arbitration

agreement that include([s}| a waiver of class or collec-

tive actions in all forums to resolve emr!oyment-

related disputes” is enforceable. Id.

c. The Second Circuit agrees with the Fifth and

Eighth Circuits. See Sutherland v. Ernst & Young

LLP, 726 F.3d 290, 297 & n.8 (2d Cir. 2013) (per

curiam). It too has held that a class waiver in an

employment arbitration agreement is enforceable

under the FAA. 7/d. at 292-293, 299 (citing American

Express Co. v. Italian Colors Rest., 133 S. Ct. 2304

(2013)). The court found that neither the FLSA nor

the NLRA was a “contrary congressional command”

that overrode the FAA. Id. at 296-297 & n.8. And

like the Eighth Circuit before it, the Second Circuit

reached this conclusion even though the NLRB had

decided otherwise; the court “decline[d] to follow” the

Board’s views. Id. at 297 n.8.'

d. The validity of class and collective waivers un-

der the FAA and the NLRA has reached state courts

of last resort as well. The Supreme Courts of Cali-

fornia and Nevada have both upheld class waivers in

employment arbitration agreements. See Iskanian v.

CLS Transp. L.A., LLC, 327 P.3d 129, 137-143 (Cal.

2014); Tallman v. Eighth Jud. Dist. Ct., 359 P.3d

113, 122-123 (Nev. 2015). The California Supreme

Court reached its decision by adopting the Fifth

Circuit’s D.R. Horton analysis. See Iskanian, 327

P.3d at 141-142. And the Nevada Supreme Court did

the same, citing Iskanian. See Tallman, 359 P.3d at

123.

2. On the other side of the split are the Seventh

and Ninth Circuits.

' Several other circuits have similarly held that the FAA

demands enforcement of class waivers in employment arbitra-

tion agreements, albeit without expressly discussing the NLRA

in their decisions. See Killion v. KeHE Distribs., LLC, 761 F.3d

574, 592 (6th Cir. 2014); Walthour v. Chipio Windshield Repair,

LLC, 745 F.3d 1326, 1334-1336 (11th Cir. 2014); Adkins v.

Labor Ready, Inc., 303 F.3d 496, 503 (4th Cir. 2002).

a. The Seventh Circuit broke from its sister cir-

cuits in the decision below, expressly recognizing

that its opinion “would create a conflict in the cir-

cuits.” Pet. App. 15a n.f. Unlike the Second, Fifth,

and Eighth Circuits, the Seventh Circuit held that

agreements to submit employment disputes to indi-

vidual arbitration are not enforceable under the

NLRA and the FAA. The panel concluded that class

waivers in employment arbitration agreements are

“illegal” under the NLRA because they interfere with

employees’ right to engage in concerted activities.

Id. at 10a-lla. And it determined that such waivers

are unenforceable under the FAA’s saving clause

because illegality is a “‘ground[] *** for the revoca-

tion of any contract.’” Jd. at 14a-15a (quoting 9

U.S.C. § 2); see id. at 20a.

The court acknowledged that the Fifth Circuit had

reached “the opposite conclusion.” /d. at 15a. But

the Seventh Circuit minimized the Fifth Circuit’s

reasoning as relying on mere “dicta” from this

Court’s decisions in Concepcion and Italian Colors.

Id. As for the Second and Eighth Circuits, the panel

did not dispute that these “two circuits agree with

the Fifth,” but it deemed the analysis from those

circuits to be “substantively” insufficient. Jd. at 19a

(citire Sutherland and Owen).

b. The Ninth Circuit has now joined the Seventh.

In Morris v. Ernst & Young, LLP, No. 13-16599, 2016

WL 4433080 (9th Cir. Aug. 22, 2016), a divided panel

held that a waiver provision requiring employees to

bring legal claims through individual arbitration

violates the NLRA and therefore is unenforceable.

Id. at *1, *5. Echoing the Seventh Circuit’s decision,

the majority concluded that the FAA’s saving clause

“causles|] the FAA’s enforcement mandate to yield” to

the NLRA. /d. at *7. In so holding, the majority

acknowledged that it was widening a circuit split:

Although it “agree|d] with the Seventh Circuit,” the

majority “recognize(d| that [its] sister Circuits are

divided on this question.” Jd. at *10 n.16.

Judge Ikuta dissented. She described the majori-

ty’s decision as “breathtaking in its scope and in its

error.” Id. at *11. In her view, the NLRA was not a

contrary congressional command that overrode the

FAA’s enforcement mandate. Jd. at *12-*14. Judge

Ikuta stressed that the majority's decision otherwise

was “directly contrary to Supreme Court precedent

and join[ed] the wrong side of a circuit split.” Jd. at

*11.

3. This split of authority is now fully developed,

acknowledged, and ripe for resolution by this Court.

The competing pronouncements from the courts of

appeals and state courts of last resort have vetted

the arguments on both sides. Five of these courts

have upheld class and collective waivers under the

FAA and the NLRA; two others have invalidated

them. As more courts take a side in this dispute, the

split becomes less likely to resolve itself. And be-

cause the issue is a discrete question of statutory

interpretation, it is unlikely to benefit from further

percolation. This Court should intervene now to

resolve it.

Il. THE DECISION BELOW CONFLICTS WITH

THIS COURT’S ARBITRATION

PRECEDENTS AND WAS INCORRECT.

This Court’s intervention is also needed because

the Seventh Circuit’s decision was mistaken on the

a. The Seventh Circuit broke from its sister cir-

cuits in the decision below, expressly recognizing

that its opinion “would create a conflict in the cir-

cuits.” Pet. App. 15a n.*. Unlike the Second, Fifth,

and Eighth Circuits, the Seventh Circuit held that

agreements to submit employment disputes to indi-

vidual arbitration are not enforceable under the

NLRA and the FAA. The panel concluded that class

waivers in employment arbitration agreements are

“illegal” under the NLRA because they interfere with

employees’ right to engage in concerted activities.

Id. at 10a-lla. And it determined that such waivers

are unenforceable under the FAA’s saving clause

because illegality is a “‘ground[] * * * for the revoca-

tion of any contract.’” Jd. at 14a-15a (quoting 9

U S.C. § 2); see id. at 20a.

The court acknowledged that the Fifth Circuit had

reached “the opposite conclusion.” /d. at 15a. But

the Seventh Circuit minimized the Fifth Circuit's

reasoning as relying on mere “dicta” from this

Court’s decisions in Concepcion and Italian Colors.

Id. As for the Second and Eighth Circuits, the panel

did not dispute that these “two circuits agree with

the Fifth,” but it deemed the analysis from those

circuits to be “substantively” insufficient. Jd. at 19a

(citing Sutherland and Owen).

b. The Ninth Circuit has now joined the Seventh.

In Morris v. Ernst & Young, LLP, No. 13-16599, 2016

WL 4433080 (9th Cir. Aug. 22, 2016), a divided panel

held that a waiver provision requiring employees to

bring legal claims through individual arbitration

violates the NLRA and therefore is unenforceable.

Id. at *1, *5. Echoing the Seventh Circuit’s decision,

the majority concluded that the FAA’s saving clause

“causles] the FAA’s enforcement mandate to yield” to

the NLRA. dd. at *7. In so holding, the majority

acknowledged that it was widening a circuit split:

Although it “agree[d] with the Seventh Circuit,” the

majority “recognize|ld] that [its] sister Circuits are

divided on this question.” Jd. at *10 n.16.

Judge Ikuta dissented. She described the majori-

ty’s decision as “breathtaking in its scope and in its

error.” Id. at *11. In her view, the NLRA was not a

contrary congressional command that overrode the

FAA’s enforcement mandate. /d. at *12-*14. Judge

Ikuta stressed that the majority’s decision otherwise

was “directly contrary to Supreme Court precedent

and joinfed] the wrong side of a circuit split.” Jd. at

*11.

3. This split of authority is now fully developed,

acknowledged, and ripe for resolution by this Court.

The competing pronouncements from the courts of

appeals and state courts of last resort have vetted

the arguments on both sides. Five of these courts

have upheld class and collective waivers under the

FAA and the NLRA; two others have invalidated

them. As more courts take a side in this dispute, the

split becomes less likely to resolve itself. And be-

cause the issue is a discrete question of statutory

interpretation, it is unlikely to benefit from further

percolation. This Court should intervene now to

resolve it.

Il. THE DECISION BELOW CONFLICTS WITH

THIS COURT’S ARBITRATION

PRECEDENTS AND WAS INCORRECT.

This Court’s intervention is also needed because

the Seventh Circuit’s decision was mistaken on the

merits of the important question presented. The

court claimed that it was “harmoniz[ing]” the FAA

with the NLRA. Pet. App. 16a. Instead, it was

disregarding this Court’s instructions about how to

interpret arbitration agreements under the FAA and

misreading the NLRA to boot.

A. The FAA Controls The Enforceability

Of Arbitration Agreements Absent

Contrary Congressional Command.

Federal statutes are not all on equal footing when

it comes to arbitration agreements. The FAA is

“(t]he background law governing” questions relating

to the enforcement of an arbitration provision, even

when other federal statutes are at issue. Compu-

Credit, 132 S. Ct. at 668. It “establishes ‘a liberal

federal policy favoring arbitration agreements.’” Id.

at 669 (quoting Moses H. Cone Mem'l Hosp. v. Mer-

cury Constr. Corp., 460 U.S. 1, 24 (1983)). More

particularly, the type of arbitration “envisioned by

the FAA” is “bilateral” (individual) arbitration, not

class arbitration. Concepcion, 563 U.S. at 348, 351.

Under the FAA, the default rule is enforceability:

“A written provision *** to settle by arbitration a

controversy *** shall be valid, irrevocable, and

enforceable, save upon such grounds as exist at law

or in equity for the revocation of any contract.” 9

U.S.C. § 2. Accordingly, “[t]he burden is on the party

opposing arbitration *** to show that Congress

intended to preclude a waiver of judicial remedies for

the statutory rights at issue.” Shearson/Am. Ex-

press Inc. v. McMahon, 482 U.S. 220, 227 (1987); see

also Moses H. Cone, 460 U.S. at 24-25 (explaining

that the FAA “establishes that, as a matter of federal

law, any doubts concerning the scope of arbitrable

issues should be resolved in favor of arbitration”).

That is why, for decades, this Court has consistently

upheld the FAA’s policy favoring enforcement of

arbitration agreements as written. See, e.g.,

DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463 (2015);

Italian Colors, 133 S. Ct. 2304; CompuCredit, 132

S. Ct. 665; Concepcion, 563 U.S. 333; Stolt-Nielsen

S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662 (2010);

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.

20 (1991); McMahon, 482 U.S. 220; Mitsubishi Mo-

tors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S.

614 (1985); Dean Witter Reynolds, Inc. v. Byrd, 470

U.S. 213 (1985); Moses H. Cone, 460 U.S. 1; Prima

Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S.

395 (1967).

Consistent with the strong federal policy favoring

arbitration, the FAA “requires courts to enforce

agreements to arbitrate according to their terms|(,|

*** even when the claims at issue are federal statu-

tory claims, unless the FAA’s mandate has been

‘overridden by a contrary congressional command.’”

CompuCredit, 132 S. Ct. at 669 (quoting McMahon,

482 U.S. at 226); see Morris, 2016 WL 4433080, at

*12-*14 (Ikuta, J., dissenting). This contrary con-

gressional command cannot be “obtuse,” but rather

must indicate Congress’s contrary intent with some

“clarity.” CompuCredit, 132 S. Ct. at 672. And, as

stated, the directive must be “congressional,” id. at

669—not administrative or judicial.

B. The Court of Appeals Failed To Follow

The Requisite CompuCredit Analysis.

1. The court of appeals below erred when it ex-

pressly declined to evaluate whether the NLRA is a

“contrary congressional command,” as CompuCredit

requires. See Pet. App. 13a. It concluded that the

CompuCredit analysis would “put[] the cart before

the horse.” Jd. The court perceived a preceding, and

ultimately superseding, obligation “to see if the two

statutes conflict.” Jd. Above all else, the court said,

it was required to “harmonize” the FAA with the

NLRA. 7d. at 14a, 16a. In this way, the court of

appeals started in the wrong place and conducted the

wrong analysis—and the result of its backward

methodology was to nullify, not harmonize.

The court of appeals should have begun the analy-

sis with the FAA—specifically, the Act’s presumption

that arbitration agreements are enforceable as

written. See 9 U.S.C. § 2; CompuCredit, 132 S. Ct. at

668-669; Moses H. Cone, 460 U.S. at 24-25. It should

have imposed the burden on the party opposing

arbitration (Lewis) to show that the agreement was

unenforceable, resolving all doubts in favor of arbi-

tration. McMahon, 482 U.S. at 227. And it should

have asked whether the NLRA was a congressional

command “contrary” to the FAA. CompuCredit, 132

S. Ct. at 669.

Instead, the court began with the NLRA and im-

posed the “burden” “to show that the FAA clashes

with the NLRA” on the party seeking to enforce

arbitration (Epic). Pet. App. 14a. The court also

asked the wrong question: whether the NLRA’s

protection of employees’ right to engage in “concerted

activities” could be read to cover class and collective

proceedings. Jd. at 3a-9a. And only after the court

answered the wrong question affirmatively did it

consider, as a secondary inquiry, whether the FAA

“resuscitates” the class waiver. Jd. at 12a. The

court’s analysis thus was flawed from start to finish.

2. Under the standards this Court has laid down,

the NLRA is not a “contrary congressional command”

that bars class waivers in arbitration agreements.

CompuCredit, 132 S. Ct. at 669; see Morris, 2016 WL

4433080, at *14-*16 (Ikuta, J., dissenting). Section 7

of the NLRA does not expressly prohibit class waiv-

ers; it grants employees the right “to engage in * * *

concerted activities for the purpose of collective

bargaining or other mutual aid or protection.” 29

U.S.C. § 157. To qualify as a contrary congressional

command, therefore, Section 7 would have to actual-

ly give employees the right to arbitrate or litigate a

dispute as a class or collective action. But that

interpretation is not compelled by the statutory

language, and it makes little sense.

If the NLRA were indeed the source of employees’

putative right to proceed as a class or collective

action in litigation or arbitration, employees could

commence such proceedings directly under the

NLRA. See Bekele v. Lyft, Inc., No. 15-cv-11650,

2016 WL 4203412, at *20 (D. Mass. Aug. 9, 2016)

(criticizing the decision below, including on this

ground), appeal docketed, No. 16-2109 (1st Cir. Aug.

30, 2016). They presumably could have done so even

before the federal rules were revised to provide for

class litigation of legal claims. See generally Italian

Colors, 133 S. Ct. at 2311 (describing the advent of

Federal Rule of Civil Procedure 23). Yet there was

no rush to the courthouse by employees seeking a

class or collective remedy under the NLRA, then or

now, because no such right exists.

Moreover, if NLRA Section 7 gives employees the

right to proceed in a class or collective action, NLRA

Section 8 makes it an unfair labor practice for an

employer “to interfere with” that “right[].” 29 U.S.C.

§ 158(a)(1). The logical consequence is that any

employer opposition to employees’ efforts to certify a

class or collective action or arbitration “interfere(s]

with” the employees’ “right[].” See id. That would

make certification of class or collective actions auto-

matic when they are brought by employees against

their employer. See Bekele, 2016 WL 4203412, at *20

(making a similar observation). Nothing in the

NLRA suggests that was Congress’s intended result,

however. Accordingly, the NLRA does not give

employees a right to proceed in class arbitration, and

certainly not a right that trumps the FAA’s pre-

sumption that arbitration agreements are enforcea-

ble as written.

C. The Court Of Appeals’ Analysis Is Not

Salvageable Through the FAA’s Saving

Clause.

1. The court of appeals said it found support for its

decision in the FAA’s saving clause, which provides

that an arbitration agreement is enforceable “‘save

upon such grounds as exist at law or in equity for the

revocation of any contract.’” Pet. App. 14a-l5a

(quoting 9 U.S.C. § 2). The court reasoned as follows:

the class waiver here is “illegal” under Section 7 of

the NLRA; “illegality” is a defense allowing for the

revocation of a contract; therefore, the case falls

within the FAA’s saving clause, and there is no

conflict between the NLRA and the FAA. Zd. at 15a.

In this way, the court of appeals used the saving

clause as a means to sidestep the analysis required

by CompuCredit. Under its reasoning, there is never

any need to determine whether another federal

statute qualifies as a contrary congressional com-

mand because the saving clause allows courts to

decide simply whether the other federal law could be

interpreted to disfavor arbitration. That rule would

eviscerate the presumption of enforceability created

by the FAA, however, converting enforcement into

the exception rather than the rule. See Morris, 2016

WL 4433080, at *16-*17 (Ikuta, J., dissenting).

2. The court of appeals’ analysis is also wrong.

The saving clause allows courts to decline to enforce

arbitration agreements based on generally applicable

contract defenses; that is, those that provide “for the

revocation of any contract.” 9 U.S.C. § 2 (emphasis

added). A defense that exists only because of the

presence of a particular arbitration provision in a

contract is not generally applicable. As Concepcion

explained, “when a doctrine normally thought to be

generally applicable, such as duress or *** uncon-

scionability, is *** applied in a fashion that disfa-

vors arbitration,” it falls outside the saving clause.

563 U.S. at 341. Likewise, a defense that precludes

the waiver of class or collective arbitration is not

truly generally applicable: “Requiring the availabil-

ity of classwide arbitration interferes with funda-

mental attributes of arbitration and thus creates a

scheme inconsistent with the FAA.” Id. at 344; cf.

Italian Colors, 133 S. Ct. at 2310, 2312 & n.5 (relying

on Concepcion’s general analysis in a case where the

law competing with the FAA was federal, and reject-

ing the dissent’s “dismiss[al]” of Concepcion as “a

case involving pre-emption”). But see Morris, 2016

WL 4433080, at *17 (Ikuta, J., dissenting) (stating

that this Court “does not apply the saving[] clause to

federal statutes”).

The court of appeals in this case interpreted the

NLRA to render class or collective waivers in em-

ployment arbitration agreements illegal. But that

illegality-based defense—which arises only in some

contracts, not “any contract,” 9 U.S.C. § 2 (emphasis

added)—can hardly be likened to classic universal

defenses such as fraud and mistake. Instead, it has

the effect of “conditioning enforcement of arbitration

on the availability of class procedure.” Italian Col-

ors, 1383 S.Ct. at 2312. Under Concepcion, that

means the defense disfavors arbitration and is not

generally applicable. See 563 U.S. at 341, 344.

Accordingly, the saving clause does not apply, and

the Seventh Circuit’s decision is wrong on the merits.

Ill. REVIEW IS NEEDED TO ESTABLISH A

NATIONWIDE RULE ON AN IMPORTANT

ISSUE FOR BOTH EMPLOYERS AND

EMPLOYEES.

The question presented in this case holds critical

importance to employers and employees around the

country. Arbitration agreements with class and

collective waivers are commonly used in the em-

ployment context, but the split of authority over the

enforceability of those waivers creates tremendous

uncertainty for employers and employees alike. And

the problem is particularly acute for entities whose

operations span multiple circuits.

1. The viability of class and collective arbitration

waivers affects a broad spectrum of industries across

the country. Consider the range of companies whose

cases are part of the split of authorities: Epic

(healthcare software), D.R. Horton (home construc-

tion), Murphy (convenience stores), Bristol Care

(residential care services), Cellular Sales of Missouri

(telecommunications retail), Ernst & Young (profes-

sional services), Bloomingdale’s (department stores),

CLS Transportation (trucking), and CPS Security

(security services; in Tallman, the Nevada Supreme

Court case). Beyond those cases, class and collective

arbitration waivers are used in a wide variety of

employment contexts. See, e.g., Killion v. KeHE

Distribs., LLC, 761 F.3d 574 (6th Cir. 2014) (foodser-

vice); Walthour v. Chipio Windshield Repair, LLC,

745 F.3d 1326 (11th Cir. 2014) (automobile repair);

Raniere v. Citigroup Inc., 533 F. App’x 11 (2d Cir.

2013) (unpublished) (financial services); Adkins v.

Labor Ready, Inc., 303 F.3d 496 (4th Cir. 2002)

(temporary staffing); Bekele, 2016 WL 4203412 (ride-

hailing); Bell v. Ryan Transp. Serv., Inc., No. 15-

9857, 2016 WL 1298083 (D. Kan. Mar. 31, 2016)

(third-party logistics); Morvant v. P.F. Chang’s

China Bistro, Inc., 870 F. Supp. 2d 831 (N.D. Cal.

2012) (restaurants).

Unsurprisingly, then, the enforceability of class

waivers in employment arbitration agreements is an

issue that arises frequently. Since the NLRB’s 2012

D.R. Horton decision—which declared class and

collective waivers in employment arbitration agree-

ments invalid under the NLRA—the Board has

handled “a steady stream of cases, by now numer-

ous,” on the same issue. Century Fast Foods, Inc.,

No. 31-CA-116102, 2015 WL 1885197 (N.L.R.B. Apr.

24, 2015). In just the short time since the Seventh

Circuit’s decision below, the Board has issued at

least ten new administrative decisions applying the

same view of the FAA and the NLRA that it has

advanced since 2012.2, The NLRB’s approach, com-

bined with the continued flow of private suits, en-

sures that this issue will recur frequently in the

federal courts.

2. The divide among the authorities on this fre-

quently recurring question is particularly problemat-

ic because of the NLRA’s judicial-review provision,

29 U.S.C. § 160(f). That provision broadly allows

those aggrieved by NLRB decisions to seek review in

(1) the circuit “wherein the unfair labor practice in

question was alleged to have been engaged,” (2) the

circuit “wherein such person resides or transacts

business,” or (3) the D.C. Circuit. Jd. Because “[t]he

Board may well not know which circuit’s law will be

applied on a petition for review,” Murphy Oil, 808

F.3d at 1018, the Board has held firm to its view that

class waivers in employment arbitration agreements

are unenforceable, even after its decisions have been

overturned again and again by certain courts of

2 See, e.g., Arise Virtual Sols., Inc., No. 12-CA-144223, 2016 WL

4362210 (N.L.R.B. Aug. 12, 2016) (applying the Boare’s position

and noting that “the courts of appeals are now split”); Briad

Wenco, LLC, No. 29-CA-165942, 2016 WL 3626602 (N.L.R.B.

July 6, 2016); Grill Concepts Servs., Inc., 364 N.L.R.B. 36 (June

30, 2016); Bristol Farms, 364 N.L.R.B. 34 (July 6, 2016);

Scherzinger Corp., No. 09-CA-165460, 2016 WL 3383761

(N.L.R.B. June 17, 2016) (adhering to the same position and

stating that the Seventh Circuit’s opinion opened “a circuit split

that will likely have to be resolved by the Supreme Court”

(footnote omitted)); California Commerce Club, Inc., 364

N.L.R.B. 31 (June 16, 2016); SJK, Inc., 364 N.L.R.B. 29 (June

16, 2016); Rim Hosp., No. 21-CA-137250, 2016 WL 3345349

(N.L.R.B. June 15, 2016); Adriana’s Ins. Servs., Inc., 364

N.L.R.B. 17 (May 31, 2016); Lincoln E. Mgmt. Corp., 364

N.L.R.B. 16 (May 31, 2016).

appeals. Thus, employers located in the Second,

Fifth, and Eighth Circuits will continue to be sub-

jected to NLRB enforcement actions against their

use of class waivers. And when the NLRB inevitably

finds that the waivers are unenforceable, the em-

ployers must go through the hassle of filing a peti-

tion for review, even though the issue has been

decided squarely in their favor in those circuits.

The Fifth and Eighth Circuits have already con-

fronted this problem. The Fifth Circuit has rejected

the Board’s position in four additional cases since

D.R. Horton. Citi Trends, 2016 WL 4245458, at *1

(“The Board concedes, as it must, that its order

contravenes our published decisions * * * , [but] this

Court is bound by its prior published decisions.”); PJ

Cheese, 2016 WL 3457261, at *1 (granting the em-

ployer’s motion for summary disposition); Chesa-

peake Energy, 633 F. App’x at 615 (“(Nlo intervening

change in the law permits reconsideration of our

precedent.”); Murphy Oil, 808 F.3d at 1018, 1021

(neither “celebratiing]” nor “condemniing]” the

Board’s “nonacquiescence” to the Fifth Circuit’s D.R.

Horton decision, but rebuking the Board for

“hold[ing] that an employer who followed the reason-

ing of [the] D.R. Horton decision had no basis in fact

or law *** in doing so”). The Eighth Circuit has

likewise rebuffed the Board in another opinion

published after Owen. Cellular Sales, 824 F.3d at

776 (m ting that the Eighth Circuit had rejected the

Board’s request to reconsider Owen, a precedent that

the Board recognized was “fatal” to its contentions).

Absent action by this Court, courts will continue to

face repeat litigation on this question. In the mean-

time, Section 160(f)’s review procedures will leave

enforcement of employment arbitration agreements

with class waivers uncertain for both employers and

employees.

3. The proper resolution of this issue thus carries

significant implications for the employer-employee

relationship. Employers need to know whether class

waivers in arbitration provisions will actually be

enforced. Employees need to know whether they are

actually bound by these provisions. Without a deci-

sion by this Court establishing a uniform rule, the

law governing a given dispute will remain unclear

until the case is litigated—-and the place of filing

dictates the rule that applies.

The split of authority is especially troublesome for

companies with employees in workplaces across the

United States. So long as this split persists, large

employers will need to have one set of employment

policies for employees in the Seventh and Ninth

Circuits, and another set of policies for employees

elsewhere. And even then, employers operating in

California or Nevada cannot know which law will

govern, because the answer will depend on whether

litigation is brought in state or federal court.

In effect, the decision below “condition|s] enforce-

ment of arbitration on the availability of class proce-

dure,” Italian Colors, 133 S. Ct. at 2312, despite this

Court’s admonition that “[rjequiring the availability

of classwide arbitration * * * creates a scheme incon-

sistent with the FAA,” Concepcion, 563 U.S. at 344.

And yet this is the choice now faced by employers in

the Seventh and Ninth Circuits: if they want to

resolve employment disputes through arbitration,

class arbitration must be kept available. The result

is a regime that—at least in those two circuits—

disfavors arbitration and the “‘lower costs, greater

efficiency and speed’” that attend individual arbitra-

tion, contrary to the purpose of the FAA. /d. at 348

(quoting Stolt-Nielsen, 559 U.S. at 685).

This Court’s review is therefore needed, now. Only

this Court can rectify the myriad problems caused by

competing standards for employment arbitration

agreements. Only this Court can establish a uniform

standard for employers and employees nationwide.

And only this Court can bring predictability and

stability back to the dispute-resolution process in

employer-employee relationships.

4. Finally, this case is an excellent vehicle to de-

cide the question presented. The question was

pressed below, fully briefed by the parties and amici

(including the NLRB), and passed on by the court of

appeals. The question was the single issue on ap-

peal, and the court of appeals’ resolution of the issue

was the sole basis for its decision. And in that deci-

sion, the court acknowledged that it was departing

from the holdings of other courts of appeals.

Moreover, the parties to this case—an employer

and an employee—are best situated to represent the

two opposing viewpoints on the issue. They are the

real parties in interest subject to both the FAA and

the NLRA: their arbitration agreement is governed

by the FAA, and their employer-employee relation-

ship is governed by the NLRA. They have the most

direct stake in courts’ interpretations of these stat-

utes and therefore are the parties most acutely

interested in the question presented.

CONCLUSION

The petition for a writ of certiorari should be

granted.

NOAH A. FINKEL

ANDREW SCROGGINS

SEYFARTH SHAW LLP

131 South Dearborn Street

Chicago, IL 60603

SEPTEMBER 2016

Respectfully submitted,

NEAL KUMAR KATYAL

Counsel of Record

MARY HELEN WIMBERLY

FREDERICK LIU

DANIEL J.T. SCHUKER

HOGAN LOVELLS US LLP

555 Thirteenth Street, NW

Washington, DC 20004

(202) 637-5600

neal. katyal@hoganlovells.com

Counsel for Petitioner

APPENDICES

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 15-2997

JACOB LEWIS,

Plaintiff - Appellee,

EPIC SYSTEMS CORPORATION,

Defendant - Appellant.

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 15-cv-82-bbe — Barbara B. Crabb, Judge.

ARGUED FEBRUARY 12, 2016 — DECIDED MAy 26, 2016

Before WOOD, Chief Judge, ROVNER, Circuit

Judge, and BLAKEY, District Judge.*

WOOD, Chief Judge. Epic Systems, a health care

software company, required certain groups of

employees to agree to bring any wage-and-hour

claims against the company only through individual

arbitration. The agreement did not permit collective

arbitration or collective action in any other forum.

We conclude that this agreement violates the

National Labor Relations Act (NLRA), 29 U.S.C.

$§ 151, et seg., and is also unenforceable under the

*Of the Northern District of Illinois, sitting by designation.

Lien,’

Federal Arbitration Act (FAA), 9 U.S.C. §§ 1, et seq.

We therefore affirm the district court’s denial of

Epic’s motion to compel arbitration.

On April 2, 2014, Epic Systems sent an email to

some of its employees. The email contained an

arbitration agreement mandating that wage-and-

hour claims could be brought only through individual

arbitration and that the employees waived “the right

to participate in or receive money or any other relief

from any class, collective, or representative

proceeding.” The agreement included a clause

stating that if the “Waiver of Class and Collective

Claims” was unenforceable, “any claim brought on a

class, collective, or representative action basis must

be filed in a court of competent jurisdiction.” It also

said that employees were “deemed to have accepted

this Agreement” if they “continue[d] to work at Epic.”

Epic gave employees no option to decline if they

wanted to keep their jobs. The email requested that

recipients review the agreement and acknowledge

their agreement by clicking two buttons. The

following day, Jacob Lewis, then a “technical writer”

at Epic, followed those instructions for registering

his agreement.

Later, however, Lewis had a dispute with Epic, and

he did not proceed under the arbitration clause.

Instead, he sued Epic in federal court, contending

that it had violated the Fair Labor Standards Act

(FLSA), 29 U.S.C. §§ 201, et seg. and Wisconsin law

by misclassifying him and his fellow technical

writers and thereby unlawfully depriving them of

overtime pay. Epic moved to dismiss Lewis’s claim

and compel individual arbitration. Lewis responded

that the arbitration clause violated the NLRA

because it interfered with employees’ right to engage

in concerted activities for mutual aid and protection

and was therefore unenforceable. The district court

agreed and denied Epic’s motion. Epic appeals,

arguing that the district court erred in declining to

enforce the agreement under the FAA. We review de

novo a district court’s decision to deny a motion to

compel arbitration. Gore v. Alltel Commc’ns, LLC,

666 F.3d 1027, 1033 (7th Cir. 2012).

Section 7 of the NLRA provides that “[e])mployees

shall have the right to self-organization, to form,

join, or assist labor organizations, to bargain

collectively through representatives of their own

choosing, and to engage in other concerted activities

for the purpose of collective bargaining or other

mutual aid or protection.” 29 U.S.C. § 157. Section 8

enforces Section 7 unconditionally by deeming that it

“shall be an unfair labor practice for an employer ...

to interfere with, restrain, or coerce employees in the

exercise of the rights guaranteed in [Section 7].” Id.

§ 158(aX1). The National Labor Relations Board is

“empowered ... to prevent any person from engaging

in any unfair labor practice ... affecting commerce.”

Id. § 160(a).

Contracts “stipulatling] ... the renunciation by the

employees of rights guaranteed by the [NLRA|” are

unlawful and may be declared to be unenforceable by

the Board. Nat? Licorice Co. v. NLRB, 309 U.S. 350,

365 (1940) (“[I]t will not be open to any tribunal to

compel the employer to perform the acts, which, even

though he has bound himself by contract to do them,

would violate the Board’s order ur be inconsistent

with any part of it[.]”); JJ. Case Co. v. NLRB,

321U.S. 332, 337 (1944) (“Wherever private

contracts conflict with [the Board’s] functions, they

obviously must yield or the [NLRA] would be reduced

to a futility.”). In accordance with this longstanding

doctrine, the Board has, “from its earliest days,” held

that “employer-imposed, individual agreements that

purport to _ restrict Section 7 rights” are

unenforceable. D.R. Horton, Inc., 357 N.L.R.B.

No. 184 at *5 (2012) (collecting cases as early as

1939), enfd in part and granted in part, D.R. Horton,

Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013). It has

done so with “uniform judicial approval.” Jd. (citing

as examples NLRB ov. Vincennes Steel Corp.,

117 F.2d 169, 172 (7th Cir. 1941), NLRB v. Jahn &

Ollier Engraving Co., 123 F.2d 589, 593 (7th Cir.

1941), and NLRB v. Adel Clay Products Co., 134 F.2d

342 (8th Cir. 1943)).

Section 7’s “other concerted activities” have long

been held to include “resort to administrative and

judicial forums.” Eastex, Inc. v. NLRB, 437 U.S. 556,

566 (1978) (collecting cases). Similarly, both courts

and the Board have held that filing a collective or

class action suit constitutes “concerted activitly]”

under Section 7. See Brady v. Nat'l Football League,

644 F.3d 661, 673 (8th Cir. 2011) (“[A] lawsuit filed

in good faith by a group of employees to achieve more

favorable terms or conditions of employment is

‘concerted activity’ under § 7 of the National Labor

Relations Act.”); Altex Ready Mixed Concrete Corp. v.

NLRB, 542 F.2d 295, 297 (5th Cir. 1976) (same);

Leviton Mfg. Co. v. NLRB, 486 F.2d 686, 689 (1st Cir.

1973) (same); Mohave Elec. Co-op., Inc. v. NLRB, 206

F.3d 1183, 1189 (D.C. Cir. 2000) (single employee’s

filing of a judicial petition constituted “concerted

action” under NLRA where “supported by fellow

employees”); D.R. Horton, 357 N.L.R.B. No. 184, at

*2 n.4 (collecting cases). This precedent is in line

with the Supreme Court’s rule recognizing that even

when an employee acts alone, she may “engage in

concerted activities” where she “intends to induce

group activity” or “acts as a representative of at least

one other employee.” NLRB v. City Disposal

Systems, Inc., 465 U.S. 822, 831 (1984).

Section 7’s text, history, and purpose support this

rule. In evaluating statutory language, a court asks

first “whether the language at issue has a plain and

unambiguous meaning with regard to the particular

dispute in the case.” Exelon Generation Co., LLC v.

Local 15, Int'l Bhd. of Elec. Workers, AFL-CIO,

676 F.3d 566, 570 (7th Cir. 2012). In doing so, it

“givies| the words used their ordinary meaning.”

Lawson v. FMR LLC, 134 S. Ct. 1158, 1165 (2014)

(internal citation omitted). “Absent a clearly

expressed legislative intention to the contrary, that

language must ordinarily be regarded as conclusive.”

Consumer Prod. Safety Comm’n v. GTE Sylvania,

Inc., 447 U.S. 102, 108 (1980).

The NLRA does not define “concerted activities.”

The ordinary meaning of the word “concerted” is:

“jointly arranged, planned, or carried out;

coordinated.” Concerted, NEW OXFORD AMERICAN

DICTIONARY 359 (3d ed. 2010). Activities are

“thing[s] that a person or group does or has done” or

“actions taken by a group in order to achieve their

aims.” Id. at 16. Collective or class legal proceedings

fit well within the ordinary understanding of

“concerted activities.”

The NLRA’s history and purpose confirm that the

phrase “concerted activities” in Section 7 should be

read broadly to include resort to representative,

joint, collective, or class legal remedies. (There is no

hint that it is limited to actions taken by a formally

recognized union.) Congress recognized that, before

the NLRA, ‘a single employee was helpless in

dealing with an employer,” and “that union was

essential to give laborers opportunity to deal on an

equality with their employer.” NLRB v. Jones &

Laughlin Steel Corp., 301 U.S. 1, 33 (1937). In

enacting the NLRA, Congress’s purpose was to “to

equalize the bargaining power of the employee with

that of his employer by allowing employees to band

together in confronting an employer regarding the

terms and conditions of their employment.” City

Disposal Systems, 465 U.S. at 835. Congress gave

“no indication that [it] intended to limit this

protection to situations in which an employee’s

activity and that of his fellow employees combine

with one another in any particular way.” /d.

Collective, representative, and class legal remedies

allow employees to band together and thereby

equalize bargaining power. See Phillips Petrol. Co.

v. Shutis, 472 U.S. 797, 809 (1985) (noting that the

class action procedure allows plaintiffs who would

otherwise “have no realistic day in court” to enforce

their rights); Harry Kalven, Jr. & Maurice

Rosenfield, The Contemporary Function of the Class

Suit, 8 U. Cui. L. REV. 684, 686 (1941) (noting that

class suits allow those “individually in a poor

position to seek legal redress” to do so, and that “an

effective and inclusive group remedy” is necessary to

ensure proper enforcement of rights). Given Section

7’s intentionally broad sweep, there is no reason to

think that Congress meant to exclude collective

remedies from its compass.

Straining to read the term through our most Epic-

tinted glasses, “concerted activity” might, at the

most, be read as ambiguous as applied to collective

lawsuits. But even if Section 7 were ambiguous—

and it is not—the Board, in accordance with the

reasoning above, has interpreted Sections 7 and 8 to

prohibit employers from making agreements with

individual employees barring access to class or

collective remedies. See D.R. Horton, 357 N.L.R.B.

No. 184, at *5. The Board’s interpretations of

ambiguous provisions of the NLRA are “entitled to

judicial deference.” Lechmere, Inc. v. NLRB, 502

U.S. 527, 536 (1992). This Court has held that the

Board’s views are entitled to Chevron deference, see

Int'l Ass’n of Machinists & Aerospace Workers v.

NLRB, 133 F.3d 1012, 1015 (7th Cir. 1998), and the

Supreme Court has repeatedly cited Chevron in de-

scribing its deference to the NLRB’s interpretation of

the NLRA, see, e.g., Lechmere, 502 U.S. at 536;

NLRB v. United Food & Commercial Workers Union,

Local 23, AFL-CIO, 484 U.S. 112, 123 (1987). The

Board’s interpretation is, at a minimum, a sensible

way to understand the statutory language, and thus

we must follow it.

Epic argues that because the Rule 23 class action

procedure did not exist in 1935, when the NLRA was

passed, the Act could not have been meant to protect

employees’ rights to class remedies. See

FED. R. Civ. P. 23 (Committee Notes describing the

initial 1937 version of the rule and later

amendments). We are not persuaded. First, by

protecting not only employees’ “right to self-

organization, to form, join, or assist labor

organizations, {and| to bargain collectively through

representatives of their own choosing” but also “other

concerted activities for the purpose of ... other

mutual aid or protection,” Section 7’s text signals

that the activities protected are to be construed

broadly. 29 U.S.C. § 157 (emphasis added); see City

Disposal Systems, 465 U.S. at 835. There is no

reason to think that Congress intended the NLRA to

protect only “concerted activities” that were available

at the time of the NLRA’s enactment.

Second, the contract here purports to address ail

collective or representative procedures and remedies,

not just class actions. Rule 23 may have been yet to

come at the time of the NLRA’s passage, but it was

not written on a clean slate. Other class and

collective procedures had existed for a long time on

the equity side of the court: permissive joinder of

parties, for instance, had long been part of Anglo-

American civil procedure and was encouraged in

19th-century federal courts. CHARLES ALAN WRIGHT

& ARTHUR R. MILLER, 7 FEDERAL PRACTICE AND

PROCEDURE § 1651 (3d ed. 2015) (noting that federal

equity courts encouraged permissive joinder of

parties as early as 1872). As early as 1853, it was

“well established” that representative suits were

appropriate “where the parties interested are

numerous, and the suit is for an object common to

them all.” Smith v. Swormstedt, 57 U.S. 288, 302

(1853) (allowing representative suit on behalf of

more than 1,500 Methodist preachers). In fact,

representative and collective legal procedures have

been employed since the medieval period. See

STEPHEN C. YEAZELL, FROM MEDIEVAL GROUP

LITIGATION TO THE MODERN CLASS ACTION 38 (1987)

(discussing group litigation in England occurring as

early as 1199 C.E.). The FLSA itself provided for

collective and representative actions when it was

passed in 1938. See, e.g., Williams v. Jacksonville

Terminal Co., 315 U.S. 386, 390 n.3 (1942) (allowing

suits by employees on behalf of “him or themselves

and other employees similarly situated” (quoting

FLSA, 29 U.S.C. § 216(b))).

Congress was aware of class, representative, and

collective legal proceedings when it enacted the

NLRA. The plain language of Section 7 encompasses

them, and there is no evidence that Congress

intended them to be excluded. Section 7’s plain

language controls, GTE Sylvania, 447 U.S. at 108,

and protects collective legal processes. Along with

Section 8, it renders unenforceable any contract

provision purporting to waive employees’ access to

such remedies.

The question thus becomes whether Epic’s

arbitration provision impinges on “Section 7 rights.”

The answer is yes.

In relevant part, the contract states “that covered

claims will be arbitrated only on an individual basis,”

and that employees “waive the right to participate in

or receive money or any other relief from any class,

collective, or representative proceeding.” It

stipulates that “[njo party may bring a claim on

behalf of other individuals, and any arbitrator

hearing [a] claim may not: (i) combine more than one

individual’s claim or claims into a single case;

(ii) participate in or facilitate notification of others of

potential claims; or (iii) arbitrate any form of a class,

collective or representative proceeding.” It notes

that “covered claims” include any “claimed violation

10a

of wage-and-hour practices or procedures under

local, state, or federal statutory or common law.” It

thus combines two distinct rules: first, any wage-

and-hour dispute must be submitted to arbitration

rather than pursued in court; and second, no matter

where the claim is brought, the plaintiff may not

take advantage of any collective procedures available

in the tribunal.

Insofar as the second aspect of its provision is

concerned, Epic’s clause runs straight into the teeth

of Section 7. The provision prohibits any collective,

representative, or class legal proceeding. Section 7

provides that “[e]mployees shall have the right to...

engage in ... concerted activities for the purpose of

collective bargaining or other mutual aid or

protection.” 29 U.S.C. §157. A collective,

representative, or class legal proceeding is just such

a “concerted activitly].” See Eastex, 437 U.S. at 566;

Brady, 644 F.3d at 673; D.R. Horton, 357 N.L.R.B.

No. 184, at *2-3. Under Section 8, any employer

action that “interfere[s] with, restrain|[s], or coerce[s]

employees in the exercise of the rights guaranteed in

[Section 7]” constitutes an “unfair labor practice.”

29 U.S.C. § 158(a)(1). Contracts that stipulate away

employees’ Section 7 righ.ts or otherwise require

actions unlawful under the NRLA are unenforceable.

See Nat’ Licorice Co., 309 U.S. at 361; D.R. Horton,

357 N.L.R.B. No. 184, at *5.

We are aware that the circuits have some

differences of opinion in this area, although those

differences do not affect our analysis here. The

Ninth Circuit has held that an arbitration agreement

mandating individual arbitration may be enforceable

where the employee had the right to opt out of the

agreement without penalty, reasoning that the

lla

employer therefore did not “interfere with, restrain,

or coerce” her in_ violation of Section 8.

Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d

1072, 1077 (9th Cir. 2014). The Ninth Circuit’s deci-

sion in Johnmohammadi conflicts with a much

earlier decision from this court, which held that

contracts between employers and _ individual

employees that stipulate away Section 7 rights

necessarily interfere with employees’ exercise of

those rights in violation of Section 8. See NLRB uv.

Stone, 125 F.2d 752, 756 (7th Cir. 1942). Stone,

which has never been undermined, held that where

the “employee was obligated to bargain individually,”

an arbitration agreement limiting Section 7 rights

was a per se violation of the NLRA and could not “be

legalized by showing the contract was entered into

without coercion.” Jd. (“This is the very antithesis of

collective bargaining.” (citing NLRB v. Superior

Tanning Co., 117 F.2d 881, 890 (7th Cir. 1940))).

The Board has long held the same. See D.R. Horton,

357 N.L.R.B. No. 184, at *5-7 (citing J.H. Stone &

Sons, 33 N.L.R.B. 1014 (1941) and Superior Tanning

Co., 14 N.L.R.B. 942 (1939)). (In Johnmohammadi,

the Ninth Circuit, without explanation, did not defer

to the Board.) We have no need to resolve these

differences today, however, because in our case, it is

undisputed that assent to Epics arbitration

provision was a condition of continued employment.

A contract that limits Section 7 rights that is agreed

to as a condition of continued employment qualifies

as “interfer[ing] with” or “restrain[ing] ... employees

in the exercise” of those rights in violation of Section

8(a)(1). 29 U.S.C. § 157(a)(1).

In short, Sections 7 and 8 of the NLRA render

Epic’s arbitration provision unenforceable. Even if

12a

this were not the case, the Board has found that

substantively identical arbitration agreements,

agreed to under similar conditions, violate Sections 7

and 8. See D.R. Horton, 357 N.L.R.B. No. 184;

Murphy Oil USA, Inc., 361 N.L.R.B. No. 72 (2014),

enfd in part and granted in part, Murphy Oil USA,

Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015). We

conclude that, insofar as it prohibits collective action,

Epic’s arbitration provision violates Sections 7 and 8

of the NLRA.

That would be all that needs to be said, were it not

for the Federal Arbitration Act. Epic argues that the

FAA overrides the labor law doctrines we have been

discussing and entitles it to enforce its arbitration

clause in full. Looking at the arbitration agreement,

it is not clear to us that the FAA has anything to do

with this case. The contract imposes two rules:

(1) no collective action, and (2) proceed in arbitration.

But it does not stop there. It also states that if the

collective-action waiver is unenforceable, then any

collective claim must proceed in court, not

arbitration. Since we have concluded in Part II of

this opinion that the collective-action waiver is

incompatible with the NLRA, we could probably stop

here: the contract itself demands that Lewis’s claim

be brought in a court. Epic, however, contends that

we should ignore the contract’s saving clause because

the FAA trumps the NLRA. In essence, Epic says

that even if the NLRA killed off the collective-action

waiver, the FAA resuscitates it, and along with it,

the rest of the arbitration apparatus. We reject this

reading of the two laws.

13a

In relevant part, the FAA provides that any written

contract “evidencing a_ transaction § involving

commerce to settle by arbitration a controversy

thereafter arising out of such contract or transaction

... Shall be valid, irrevocable, and enforceable, save

upon such grounds as exist at law or in equity for the

revocation of any contract.” 9 U.S.C. § 2. Enacted in

“response to judicial hostility to arbitration,”

CompuCredit Corp. v. Greenwood, 132 S. Ct. 665, 668

(2012), its purpose was “to make arbitration

agreements as enforceable as other contracts, but not

more so.” Prima Paint Corp. v. Flood & Conklin

Mfg. Co., 388 U.S. 395, 404 n.12 (1967). Federal

statutory claims are just as arbitrable as anything

else, unless the FAA’s mandate has been ‘overridden

by a contrary congressional command.”

CompuCredit, 1325. Ct. at 669 (quoting

Shearson/American Express Inc. v. McMahon, 482

U.S. 220, 226 (1987)). The FAA’s “saving clause

permits agreements to arbitrate to be invalidated by

‘generally applicable contract defenses,’ ... but not

by defenses that apply only to arbitration or that

derive their meaning from the fact that an

agreement to arbitrate is at issue.” AT&T Mobility

LLC v. Concepcion, 563 U.S. 333, 339 (2011) (quoting

Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681,

687 (1996)).

Epic argues that the NLRA contains no “contrary

congressional command” against arbitration, and

that the FAA therefore trumps the NLRA. But this

argument puts the cart before the horse. Before we

rush to decide whether one statute eclipses another,

we must stop to see if the two statutes conflict at all.

See Vimar Seguros y Reaseguros, S.A. v. M/V Sky

Reefer, 515 U.S. 528, 533 (1995). In order for there

l4a

to be a conflict between the NLRA as we have

interpreted it and the FAA, the FAA would have to

mandate the enforcement of Epic’s arbitration

clause. As we now explain, it does not.

Epic must overcome a heavy presumption to show

that the FAA clashes with the NLRA. “[Wjhen two

statutes are capable of co-existence ... it is the duty

of the courts, absent a clearly expressed

congressional intention to the contrary, to regard

each as effective.” Vimar Seguros, 515 U.S. at 533

(applying canon to find FAA compatible with other

statute) (quoting Morton v. Mancari, 417 U.S. 535,

551 (1974)). Moreover, “[wlhen two statutes

complement each other”—that is, “each has its own

scope and purpose” and imposes “different

requirements and protections’—finding that one

precludes the other would flout the congressional

design. POM Wonderful LLC v. Coca-Cola Co., 134

S. Ct. 2228, 2238 (2014) (internal citations omitted).

Courts will harmonize overlapping statutes “so long

as each reaches some distinct cases.” J.E.M. Ag

Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S.

124, 144 (2001). Implied repeal should be found only

when there is an “irreconcilable conflict’ between the

two federal statutes at issue.” Matsushita Elec.

Indus. Co. v. Epstein, 516 U.S. 367, 381 (1996)

(quoting Kremer v. Chem. Const. Corp., 456 U.S. 461,

468 (1982)).

Epic has not carried that burden, because there is

no conflict between the NLRA and the FAA, let alone

an irreconcilable one. As a general matter, there is

“no doubt that illegal promises will not be enforced in

cases controlled by the federal law.” Kaiser Steel

15a

Corp. v. Mullins, 455 U.S. 72, 77 (1982). The FAA

incorporates that principle through its saving clause:

it confirms that agreements to arbitrate “shall be

valid, irrevocable, and enforceable, save upon such

grounds as exist at law or in equity for the revocation

of any contract.” 9U.S.C. § 2. [legality is one of

those grounds. See Buckeye Check Cashing, Inc. v.

Cardegna, 546 U.S. 440, 444 (2006) (noting that

illegality is a ground preventing enforcement under

§2). The NLRA prohibits the enforcement of

contract provisions like Epic’s, which strip away

employees’ rights to engage in “concerted activities.”

Because the provision at issue is unlawful under

Section 7 of the NLRA, it is illegal, and meets the

criteria of the FAA’s. saving clause for

nonenforcement. Here, the NLRA and FAA work

hand in glove.

In D.R. Horton, Inc. v. NLRB, the Fifth Circuit

came to the opposite conclusion.’ 737 F.3d at 357.

Drawing from dicta that first appeared in

Concepcion, 563 U.S. at 348, and was then repeated

in American Express Co. ov. Italian Colors

Restaurant, 133 S. Ct. 2304, 2310 (2013), the Fifth

Circuit reasoned that because class arbitration

sacrifices arbitration’s “principal advantage” of

informality, “makes the process slower, more costly,

and more likely to generate procedural morass than

final judgment,” “greatly increases risks to

defendants,” and “is poorly suited to the higher

stakes of class litigation,” the “effect of requiring

‘Because this opinion would create a conflict in the circuits,

we have circulated it to all judges in active service under

Circuit Rule 40(e). No judge wished to hear the case en banc.

16a

class arbitration procedures is to disfavor arbitra-

tion.” D.R. Horton, 737 F.3d at 359 (quoting

Concepcion, 563 U.S. at 348-52); see also Italian

Colors, 133 S. Ct. at 2312. The Fifth Circuit

suggested that because the FAA “embodlies] a

national policy favoring arbitration and a liberal

federal policy favoring arbitration agreements,”

Concepcion, 563 U.S. at 346 (internal quotation

marks and citations omitted), any law that even

incidentally burdens arbitration—here, Section 7 of

the NLRA—necessarily conflicts with the FAA. See

D.R. Horton, 737 F.3d at 360 (“Requiring a class

mechanism is an actual impediment to arbitration

and violates the FAA. The saving clause is not a

basis for invalidating the waiver of class procedures

in the arbitration agreement.”).

There are several problems with this logic. First, it

makes no effort to harmonize the FAA and NLRA.

When addressing the interactions of federal statutes,

courts are not supposed to go out looking for trouble:

they may not “pick and choose among congressional

enactments.” Morton, 417 U.S. at 551. Rather, they

must employ a strong presumption that the statutes

may both be given effect. See id. The savings clause

of the FAA ensures that, at least on these facts, there

is no irreconcilable conflict between the NLRA and

the FAA.

Indeed, finding the NLRA in conflict with the FAA

would be ironic considering that the NLRA is in fact

pro-arbitration: it expressly allows unions and

employers to arbitrate disputes between each other,

see 29 U.S.C. §171(b), and to negotiate collective

bargaining agreements that require employees to

arbitrate individual employment disputes. See

14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 257-58

17a

(2009); City Disposal Systems, 465 U.S. at 836-37.

The NLRA does not disfavor arbitration; in fact, it is

entirely possible that the NLRA would not bar Epic’s

provision if it were included in a _ collective

bargaining agreement. See City Disposal Systems,

465 U.S. at 837. (“[I]/f an employer does not wish to

tolerate certain methods by which employees invoke

their collectively bargained rights, [it] is free to

negotiate a provision in [its] collective-bargaining

agreement that limits the availability of such

methods.”). If Epic’s provision had permitted

collective arbitration, it would not have run afoul of

Section 7 either. But it did not, and so it ran up

against the substantive right to act collectively that

the NLRA gives to employees.

Neither Concepcion nor Italian Colors goes so far

as to say that anything that conceivably makes

arbitration less attractive automatically conflicts

with the FAA, nor does either case hold that an

arbitration clause automatically precludes collective

action even if if is silent on that point. In

Concepcion, the Supreme Court found incompatible

with the FAA a state law that declared arbitration

clauses to be unconscionable for low-value consumer

claims. See Concepcion, 563 U.S. at 340. The law

was directed toward arbitration, and it was hostile to

the process. Here, we have nothing of the sort.

Instead, we are reconciling two federal statutes,

which must be treated on equal footing. The

protection for collective action found in the NLRA,

moreover, extends far beyond collective litigation or

arbitration; it is a general principle that affects

countless aspects of the employer/employee

relationship.

18a

This case is actually the inverse of Italian Colors.

There the plaintiffs argued that requiring them to

litigate individually “contravene(d] the policies of the

antitrust laws.” 133 S. Ct. at 2309. The Court

rejected this argument, noting that “the antitrust

laws do not guarantee an affordable procedural path

to the vindication of every claim.” With regard to the

enforcement of the antitrust laws, the Court

commented that “no legislation pursues its purposes

at all costs.” Jd. (quoting Rodriguez v. United States,

480 U.S. 522, 525-526 (1987) (per curiam)). In this

case, the shoe is on the other foot. The FAA does not

“pursue its purposes at all costs”’—that is why it

contains a saving clause. /d. If these statutes are to

be harmonized—and according to all the traditional

rules of statutory construction, they must be—it is

through the FAA’s saving clause, which provides for

the very situation at hand. Because the NLRA

renders Epic’s arbitration provision illegal, the FAA

does not mandate its enforcement.

We add that even if the dicta from Concepcion and

Italian Colors lent itself to the Fifth Circuit’s

interpretation, it would not apply here: Sections 7

and 8 do not mandate class arbitration. Indeed, they

say nothing about class arbitration, or even

arbitration generally. Instead, they broadly restrain

employers from interfering with employees’ engaging

in concerted activities. See 29 U.S.C. §§ 157, 158.

Sections 7 and 8 stay Epic’s hand. (This is why, in

addition to its being waived, Epic’s argument that

Lewis relinquished his Section 7 rights fails.) Epic

acted unlawfully in attempting to contract with

Lewis to waive his Section 7 rights, regardless of

whether Lewis agreed to that contract. The very

formation of the contract was illegal. See /talian

19a

Colors, 133 S. Ct. at 2312 (Thomas, J., concurring)

(noting, in adopting the narrowest characterization

of the FAA’s saving clause of any Justice, that

defenses to contract formation block an order

compelling arbitration under FAA).

Finally, finding the NLRA in conflict with the FAA

would render the FAA’s saving clause a nullity. See

TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (noting

the “cardinal principle of statutory construction that

a statute ought, upon the whole, to be so construed

that, if it can be prevented, no clause, sentence, or

word shall be superfluous, void, or insignificant”).

Illegality is a standard contract defense

contemplated by the FAA’s saving clause. See

Buckeye Check Cashing, 546 U.S. at 444. If the

NLRA does not render an arbitration provision

sufficiently illegal to trigger the saving clause, the

saving clause does not mean what it says.

Epic warns us against creating a circuit split,

noting that at least two circuits agree with the Fifth.

See Owen v. Bristol Care, Inc., 702 F.3d 1050, 1052

(8th Cir. 2013) (rejecting argument that there is

inherent conflict between NLRA/Norris LaGuardia

Act and FAA); Sutherland v. Ernst & Young LLP,

726 F.3d 290, 297 n.8 (2d Cir. 2013) (rejecting NLRA-

based argument without analysis); Richards v. Ernst

& Young, LLP, 744 F.3d 1072, 1075 n.3 (9th Cir.

2013) (noting “|wlithout deciding the issue” that a

number of courts have “determined that they should

not defer to the NLRB’s decision in D.R. Horton”). Of

these courts, however, none has engaged

substantively with the relevant arguments.

The FAA contains a general policy “favoring

arbitration and a liberal federal policy favoring

20a

arbitration agreements.” Concepcion, 563 U.S. at

346 (internal quotation marks and citations omitted).

Its “substantive command” is “that arbitration

agreements be treated like all other contracts.” See

Buckeye Check Cashing, 546 U.S. at 447. Its purpose

is “to make arbitration agreements as enforceable as

other contracts, but not more so.” Prima Paint,

388 U.S. at 404 n.12 (holding that FAA’s saving

clause prevents enforcement of both void and

voidable arbitration contracts). “To immunize an

arbitration agreement from judicial challenge on” a

traditional ground such as illegality “would be to

elevate it over other forms of contract—a situation

inconsistent with the ‘saving clause.” Jd. (applying

same principle to fraud in the inducement). The

FAA therefore renders Epic’s arbitration provision

unenforceable.

Last, Epic contends that even if the NLRA does

protect a right to class or collective action, any such

right is procedural only, not substantive, and thus

the FAA demands enforcement. The right to

collective action in section 7 of the NLRA is not,

however, merely a procedural one. It instead lies at

the heart of the restructuring of employer/employee

relationships that Congress meant to achieve in the

statute. See Allen-Bradley Local No. 1111, United

Elec., Radio & Mach. Workers of Am. v. Wis.

Employ’t Relations Bd., 315 U.S. 740, 750 (1942)

(“[Section 7] guarantees labor its ‘fundamental right’

to self-organization and collective bargaining.”

(quoting Jones & Laughlin Steel, 301 U.S. 1, 33));

D.R. Horton, 357 N.L.R.B. No. 184, at *12 (noting

that the Section 7 right to concerted action “is the

core substantive right protected by the NLRA and is

2la

the foundation on which the Act and Federal labor

policy rest”). That Section 7’s_ rights are

“substantive” is plain from the structure of the

NLRA: Section 7 is the NLRA’s only substantive

provision. Every other provision of the statute

serves to enforce the rights Section 7 protects.

Compare 29 U.S.C. § 157 with id. §§ 151-169. One of

those rights is “to engage in ... concerted activities

for the purpose of collective bargaining or other

mutual aid or protection,” id. §157; “concerted

activities” include collective, representative, and

class legal proceedings. See Eastex, 437 U.S. at 566;

Brady, 644 F.3d at 673; D.R. Horton, 357 N.L.R.B.

No. 184, at *2-3.

The Supreme Court has held that “(bly agreeing to

arbitrate a statutory claim, a party does not forgo the

substantive rights afforded by the statute; it only

submits to their resolution in an arbitral, rather

than a judicial, forum.” Mitsubishi Motors Corp. v.

Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628

(1985). (Contrary to the Fifth Circuit’s assertion in

D.R. Horton, the Supreme Court has never held that

arbitration does not “deny a party any statutory

right.” 737 F.3d at 357.)

Arbitration agreements that act as a “prospective

waiver of a partys right to pursue statutory

remedies” —that is, of a substantive right—are not

enforceable. Italian Colors, 133 S. Ct. at 2310

(quoting Mitsubishi Motors, 473 U.S. at 637 n.19).

Courts routinely invalidate arbitration provisions

that interfere with substantive statutory rights. See,

e.g., McCaskill v. SCI Mgmt. Corp., 285 F.3d 623,

626 (7th Cir. 2002) (holding unenforceable

arbitration agreement that did not provide for award

of attorney fees in accordance with right guaranteed

22a

by Title VII); Kristian v. Comcast Corp., 446 F.3d 25,

48 (1st Cir. 2006) (holding unenforceable arbitration

provision precluding treble damages available under

federal antitrust law); Booker v. Robert Half Int'l,

Inc., 413 F.3d 77, 83 (D.C. Cir. 2005) (holding

unenforceable and severing clause in arbitration

agreement proscribing exemplary and punitive

damages available under Title VII); Hadnot v. Bay,

Ltd., 344 F.3d 474, 478 (5th Cir. 2003) (same);

Morrison v. Circuit City Stores, Inc., 317 F.3d 646,

670 (6th Cir. 2003) tholding unenforceable

arbitration agreement that limited remedies under

Title VII); Paladino v. Avnet Computer Techs., Inc.,

134 F.3d 1054, 1062 (11th Cir. 1998) (same).

Epic pushes back with three arguments, but none

changes the result. It points out the Federal Rule of

Civil Procedure 23 simply creates a_ procedural]

device. We have no quarrel with that, but Epic

forgets that its clause also prohibits the employees

from using any collective device, whether in

arbitration, outside of any tribunal, or litigation.

Rule 23 is not the source of the collective right here;

Section 7 of the NLRA is. Epic also notes that courts

have held that other employment statutes that

provide for Rule 23 class actions do not provide a

substantive right to a class action. See, e.g., Gilmer

v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26

(1991) {Age Discrimination in Employment Act

(ADEA)); D.R. Horton, 737 F.3d at 357 (citing court

of appeals cases for FLSA). It bears repeating: just

as the NLRA is not Rule 23, it is not the ADEA or

the FLSA. While the FLSA and ADEA allow class or

collective actions, they do not guarantee collective

process. See 29 U.S.C. §§ 216(b), 626. The NLRA

does. See id. § 157. Epic’s third argument is that

23a

because Section 7 deals with how workers pursue

their grievances—through concerted action—it must

be procedural. But just because the Section 7 right is

associational does not mean that it is not

substantive. It would be odd indeed to consider

associational rights, such as the one guaranteed by

the First Amendment to the U.S. Constitution, non-

substantive. Moreover, if Congress had meant for

Section 7 to cover only “concerted activities” related

to collective bargaining, there would have been no

need for it to protect employees’ “right to ... engage

in other concerted activities for the purpose of

collective bargaining or other mutual aid or

protection.” 29 U.S.C. § 157 (emphasis added).

Because it precludes employees from seeking any

class, collective, or representative remedies to wage-

and-hour disputes, Epics arbitration provision

violates Sections 7 and 8 of the NLRA. Nothing in

the FAA saves the ban on collective action. The

judgment of the district court is therefore AFFIRMED.

24a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

No. 15-cv-82-bbe

LEWIS, J.,

individually and on behalf of

all others simi:arly situated,

Plaintiff,

EPIC SYSTEMS CORPORATION,

Defendant.

— ee

OPINION AND ORDER

Plaintiff J. Lewis was a technical writer for

defendant Epic Systems Corporation. In this

proposed collective action, plaintiff contends that

defendant misclassified his position as exempt from

the requirement to pay overtime wages under the

Fair Labor Standards Act. Defendant has filed a

iaotion to dismiss the case on the ground that

plaintiffs claims are subject to an arbitration

agreement. Dkt. #19. Plaintiff concedes that his

claims fall within the scope of the arbitration

agreement, but he argues that the agreement is

invalid because it is unconscionable. Alternatively,

he says that the court should invalidate the provision

in the agreement called “Waiver of Class and

Collective Claims,” which requires employees to

arbitrate claims “only on an individual basis.”

25a

In this case, it makes sense to consider the second

argument first because it may be dispositive. As

plaintiff points out, the arbitration agreement

includes the following “savings clause”: “([I|f the

Waiver of Class and Collective Claims is found to be

unenforceable, then any claim brought on a class,

collective or representative action basis must be filed

in a court of competent jurisdiction, and such court

shall be the exclusive forum for such claims.” Dkt.

#22-1 at 3. Thus, if I conclude that the waiver is

invalid, plaintiffs challenge to the rest of the

arbitration agreement is moot.

As the parties acknowledge, I considered a similar

waiver in an arbitration agreement in Herrington vy.

Waterstone Mortgage Corp., No. 11-cv-779-bbe (W.D.

Wis.). In that case, the agreement stated that

“(such arbitration may not be joined with or join or

include any claims by any persons not party to this

Agreement.” In an order dated March 16, 2012, I

concluded that the waiver was inconsistent with In

re D.R. Horton, Inc., 357 NLRB No. 184 (2012),

available at 2012 WL 36274, in which the National

Labor Relations Board held that an employer

violates the National Labor Relations Act by

entering into individual arbitration agreements that

include a prohibition on collective actions by

employees.

The board’s reasoning was straightforward. Under

the NLRA, “lelmployees shall have the right to ...

engage in ... concerted activities for the purpose of

... mutual! aid or protection.” 29 U.S.C. § 157. Both

courts and the board have found consistently that

lawsuits for unpaid wages brought by multiple

plaintiffs may be one type of “concerted activity”

protected by §§ 157 and 158(a)(1). Brady v. National

26a

Football League, 644 F.3d 661, 673 (8th Cir. 2011)

(“[A] lawsuit filed in good faith by a group of

employees to achieve more favorable terms or

conditions of employment is ‘concerted activity

under §7 of the National Labor Relations Act.”);

Leviton Manufacuring Co., Inc. v, NLRB, 486 F.2d

686, 689 (1st Cir. 1973) (“[Tlhe filing of a labor

related civil action by a group of employees is

ordinarily a concerted activity protected by § 7,

unless the employees acted in bad faith.”); Saigon

Gourmet Restaurant, 353 NLRB No. 110 (2009) (“[A)

wage and hour lawsuit [is| clearly protected

concerted activity.”); In re 127 Restaurant Corp.,

331 NLRB 269, 269 (2000) (lawsuit filed on behalf of

17 employees regarding wages was protected

activity); 52nd Street Hotel Associates, 321 NLRB

624, 624 (1996) (collective action brought under

FLSA was protected activity), abrogated on other

grounds by Stericycle, Inc., 357 NLRB No. 61 (2011);

Host International, 290 NLRB 442, 443 (1988)

(multiple-plaintiff lawsuit ‘concerning working

conditions” was protected activity); United Parcel

Service, Inc,, 252 NLRB 1015, 1016 (1980) (class

action lawsuit regarding lunch breaks is protected

activity), enforced, 677 F.2d 421, 422 (6th Cir.1982);

Trinity Trucking & Materials Corp,, 221 NLRB 364,

364 (1975) (filing of lawsuit by group of employees

for failure to pay wages in accordance with contract

was protected activity), enforced, 567 F.2d 391 (7th

Cir.1977).

Further, under 29 U.S.C. § 158(a)(1), employers

may not “interfere with, restrain, or coerce

employees in the exercise of’ an employee’s rights

under § 157. Citing J.I. Case Co. v. NLRB, 321 U.S.

332 (1944), and NLRB v. Stone, 125 F.2d 752, 756

27a

(7th Cir.1942), the board concluded in Horton, 2012

WL 36274, at *7, that an employer interferes with an

employee's right to engage in concerted activities by

requiring her to sign an agreement that includes a

prohibition on collective actions by employees. See

also Eastex, Inc, v. NLRB, 437 U.S. 556, 565-66

(1978) (“(Tlhe ‘mutual aid or protection’ clause

protects employees from retaliation by their

employers when they seek to improve working

conditions through resort to administrative and

judicial forums.”). Finally, the board concluded that

there is no conflict between the Federal Arbitration

Act and the NLRA because the Federal Arbitration

Act does not require the enforcement of arbitration

agreements that conflict with substantive provisions

of federal law.

Noting that “courts must give considerable

deference to the Board’s interpretations of the

NLRA,” ABF Freight System. Inc. v. NLRB, 510 U.S.

317, 324 (1994), I concluded that the board’s decision

was “reasonably defensible” and _ therefore

controlling. Sure-Tan, Inc, v. NLRB, 467 U.S. 883,

891 (1984). Accordingly, I invalidated the waiver on

collective action in the arbitration agreement and |

determined that the plaintiff must be allowed to join

other employees to her case. Herrington _v.

Waterstone Mortgage Corp,, No. 11-cv-779-bbc,

2012 WL 1242318, at **6-7 (W.D. Wis. Mar. 16,

2012).

Two years later (while the case was pending before

the arbitrator), the employer sought reconsideration

of the decision on the ground that new case law

supported a view that employees cannot rely on the

NLRA to invalidate arbitration provisions that

prohibit joint litigation. The employer relied

28a

primarily on D.R. Horton, Inc. v. NLRB, 737 F.3d

344 (5th Cir. 2013), a split decision in which the

Court of Appeals for the Fifth Circuit declined to

enforce the board’s order invalidating the waiver on

collective action. Although I denied the employer’s

motion on procedural grounds, I also analyzed the

appellate court’s decision in detail. I chose to adhere

to the board’s decision because “the majority never

persuasively rebutted the board’s conclusion that a

collective litigation waiver violates the NLRA and

never explained why, if there is tension between the

NLRA and the FAA, it is the FAA that should trump

the NLRA, rather than the reverse.” Herrington vy.

Waterstone Mortgage Corp., 993 F. Supp. 2d 940,

943-46 (W.D. Wis. 2014). Further, the other cases

cited by the employer did not include additional

reasoning.

In this case, defendant does not identify any way to

distinguish its collective action waiver from the

waiver considered in Herrington. Although

defendant asks the court to ‘reconsider its prior

deference” to the board’s decision, Dft.’s Br., dkt. #20,

at 10, defendant does not challenge the reasoning in

Herrington or otherwise develop an argument in

favor of a different result. It simply cites the cases in

which courts have declined to follow the board.

As I did in Herrington, 993 F. Supp. 2d at 941, “I

acknowledge that the weight of authority ... favors

defendant’s view.... It may be that ultimately the

Supreme Court or the Court of Appeals for the

Seventh Circuit will agree with defendant, but until

that time, I will adhere to the decision of the board.”

Accordingly, I am denying defendant’s motion to

dismiss.

29a

ORDER

IT IS ORDERED that defendant Epic Systems

Corporation’s motion to dismiss, dkt. #19, is

DENIED.

Entered this 10th day of September, 2015.

BY THE COURT:

/s/

BARBARA B. CRABB

District Judge

30a

APPENDIX C

EXHIBIT A TO DECLARATION OF TINA

PERKINS FILED BY EPIC SYSTEMS

CORPORATION

United States District Court

Western District of Wisconsin

No. 3:15-cv-00082

Filed: 04/15/15

ECF No. 22-1

MUTUAL ARBITRATION AGREEMENT

REGARDING WAGES AND HOURS

April 2, 2014

Agreement to Arbitrate. Epic Systems Corporation

(“Epic”) and I agree to use binding arbitration,

instead of going to court, for any “covered claims”

that arise or have arisen between me and Epic, its

related and affiliated companies, and/or any current

or former employee of Epic or a related or affiliated

company. I understand that if I continue to work at

Epic, I will be deemed to have accepted this

Agreement.

“Covered claims” are any statutory or common

law legal claims, asserted or unasserted, alleging

the underpayment or overpayment of wages,

expenses, loans, reimbursements, bonuses,

commissions, advances, or any element of

compensation, based on claims of eligibility for

overtime, on-the-clock, off-the-clock or other

uncompensated hours worked claims, timing or

amount of pay at separation, improper deductions

3la

of pay or paid-time-off, fee disputes, travel time

claims, meal or rest period claims, overpayment

claims, claims of failure to reimburse or repay

loans or advances, claims over improper or

inaccurate pay statements, or any other claimed

violation of §wage-and-hour practices or

procedures under local, state or federal statutory

or common law.

I understand and agree that arbitration is the

only litigation forum for resolving covered

claims, and that both Epic and I are waiving

the right to a trial before a judge or jury in

federal or state court in favor of arbitration.

The Arbitrator shall have the authority to award

the same damages and other relief that would have

been available in court pursuant to applicable law.

The arbitrator shall! follow the rules of law of the

state which is the employee’s principal place of work,

any applicable Federa} law, and the rules as stated

in this Agreement. The arbitrator shall have the

authority to grant any remedy or relief that the

arbitrator deems just and equitable and which is

authorized by and consistent with applicable law,

including applicable statutory or other limitations on

damages.

Waiver of Class and Collective Claims. I also agree

that covered claims will be arbitrated only on an

individual basis, and that both Epic and I waive the

right to participate in or receive money or any other

relief from any class, collective, or representative

proceeding. No party may bring a claim on behalf of

other individuals, and.any arbitrator hearing my

claim may not: (i) combine more than one

individual’s claim or claims into a single case;

32a

(ii) participate in or facilitate notification of others of

potential claims; or (iii) arbitrate any form of a class,

collective, or representative proceeding.

] en d

Agreement. Nothing in this agreement changes or in

any manner modifies my relationship with Epic of

employment-at-will.

Claims not Covered by thig Agreement. Covered

claims under this agreement do not include claims

alleging discrimination, harassment, or retaliation.

Also excluded from this agreement are any claims

that cannot be required to be arbitrated as a matter

of law. I also understand that I am not barred from

filing a claim or charge with a governmental

administrative agency, such as the National Labor

Relations Board or Equal Employment Opportunity

Commission, or from filing a workers’ compensation

or unemployment compensation claim with respect to

covered claims, though I am giving up the

opportunity to recover monetary amounts from any

such governmental agency related claim (e.g., NLRB

or EEOC) and would instead be able to pursue a

claim for monetary amounts through arbitration. I

also understand that if a third party seeks to have

Epic garnish my wages, I may be subject to third-

party garnishment proceedings in court, even though

such a dispute concerns my wages.

Right to Representation. Both Epic and I shall

have the right to be represented by an attorney in

arbitration. Neither side is entitled to its attorneys’

fees except as provided for by applicable law.

How to File for Arbitration. To file a demand for

arbitration:

33a

1. The party desiring to pursue a legal dispute

must prepare a written demand setting forth

the claim(s). Epic will pay its own filing fees. If

I initiate the arbitration, I will pay the lesser of

the American Arbitration Association’s then-

current filing fee (as of this date, $200), or the

then-current filing fee applicable in state court.

2. The employment dispute resolution rules of the

American Arbitration Association (“AAA”)

effective at the time of my filing will apply. The

current version of the rules can be found on

pages 15-31 here: https://www.adr.org/aaa/

Show ? Id=

&revision=latestreleased. These rules are

modified by the terms of this Agreement,

including the following:

a. Epic will pay the arbitrator's fees and the

arbitration filing and administrative fees,

less my initial payment for the applicable

filing fee;

b. Epic and I will each have the opportunity to

“rank” our preference for the appointed

arbitrator from a list of nine proposed

arbitrators and the AAA will then appoint

the arbitrator;

c. The arbitrator shall have the authority to

issue an award or partial award without

conducting a hearing on the grounds that

there is no claim on which relief can be

granted or that there is no genuine issue of

material fact to resolve at a hearing,

consistent with Rules 12 and 56 of the

Federal Rules of Civil Procedure (“FRCP”);

34a

d. Each party shall be entitled to only one

interrogatory limited to the identification of

potential witnesses, in a form consistent

with Rule 33 of the FRCP;

e. Each party shall be entitled to only 25

requests for production of documents, in a

form consistent with Rule 34 of the FRCP;

f. Each party shall be entitled a maximum of

two (2) eight-hour days of depositions of

witnesses in a form consistent with Rule 30

of the FRCP;

g. The arbitrator shall decide all disputes

related to discovery and to the agreed limits

on discovery and may allow additional

discovery upon a showing of substantial need

by either party or upon a showing of an

inability to pursue or defend certain claims

without such additional discovery;

h. The arbitrator must issue a decision in

writing, setting forth in summary form the

reasons for the arbitrator’s determination

and the legal basis therefor; and

i. The arbitrator’s authority shall be limited to

deciding the case submitted by the parties to

the arbitration. Therefore, no decision by

any arbitrator shall serve as precedent in

other arbitrations except in a _ dispute

between the same parties, in which case it

could be used to preclude the same claim

from being re-arbitrated.

Settlement. I may settle any dispute with the

company at any time without involvement of the

arbitrator.

35a

Modifications and Amendments. [ understand and

agree that Epic may change or terminate this

agreement after giving me 90 days written or

electronic notice. Any change or termination will not

apply to a pending claim.

Savings Clause & Conformity Clause. If any

provision of this agreement is determined to be

unenforceable or in conflict with a mandatory

provision of applicable law, it shall be construed to

incorporate any mandatory provision, and/or the

unenforceable or conflicting provision shall be

automatically severed and the remainder of the

agreement shall not be affected. Provided, however,

that if the Waiver of Class and Collective Claims is

found to be unenforceable, then any claim brought on

a class, collective, or representative action basis

must be filed in a court of competent jurisdiction,

and such court shall be the exclusive forum for such

claims.

Controlling Law. I agree that this agreement is

made pursuant to and shall be governed under the

Federal Arbitration Act.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.