Amicus Curiae Brief — Epic Sys. Corp. v. Lewis, 138 S. Ct. 42 (2017) (No. 16-285)

RECORD Nos. 16-285, 16-300 and 16-307

AND “it_ED

IN THE

Supreme Court of the United ate" 16 2017

“HF THT OL TK

EPIC SYSTEMS CORPORATION,

Petitioner,

v.

JACOB LEWIS,

Respondent.

ERNST & YOUNG LLP, e al,

Petitioners,

v.

STEPHEN MORRIS, e¢ ai.,

Respondents.

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

MURPHY OIL USA, INC., et ai,

Respondents.

On Waits oF CERTIORARI TO THE UNITED States Courts or

APPEAL FOR THE SEVENTH, NINTH AND F irra Circu!rs

BRIEF AMICI CURIAE OF LAW PROFESSORS

IN SUPPORT OF PETITIONERS IN 16-285 & 16-300

AND IN SUPPORT OF RESPONDENTS IN 16-307

Tomas R. McCartuy

Counsel of Record

J. MICHAEL CONNOLLY

Consovoy McCartnry Park PLLC

ANTONIN ScaiA Law ScHoot SuPREME

Court CLINIC

3033 Wilson Boulevard, Suite 700

Arlington, VA 22201

(708) 243-9423

tom@consovoymecarthy.com

qo

i

TABLE OF CONTENTS

Page

TABLE OF CITED AUTHORITIES. ......................... ii

INTEREST OF AMICI CURIAE ............00.-.:s0seseeeeesees 1

INTRODUCTION AND SUMMARY OF THE

REY ea ee Pe aT ene 3

tices sinehthiniicitinedsniinininicscinpidiicinicianabenisntipaeneunndne 4

I. The FAA Requires Courts to Enforce

Agreements to Arbitrate Federal Statutory

Claims Unless the FAA's Mandate Has Been

Overridden by a Contrary Congressional

SII «tniicitcuilaiindecnpmididessmeiaeadariaemiiinadognnil 4

II. The Court’s Decisions Demonstrate that the

Standard for a Congressional Override of the

Re Oe Re NT GOD oaccccccccccccsccccccccnccsscnesees 9

IIIS cxninishsnseintceersioidniieinateemnssenivinnnneiqeisies 15

il

TABLE OF CITED AUTHORITIES

Page

CASES

14 Penn Plaza LLC v. Pyett,

Re Se Be I icccscvccnncsesnetnnesntnsenstaninnents passim

AT&T Mobility LLC v. Concepcion,

I nn uorinlaee 3,5

Blanchette v. Conn. Gen. Ins. Corps.,

ee a icveminsninrinidnactancicennenscncnttinicdiitenaiian 8

Circuit City Stores, Inc. v. Adams,

ee ee i riinreisncicsccitedssimansesininivaiesioienimpuate 3

CompuCredit Corp. v. Greenwood,

4 Be RO eee 1, 6, 18, 14

Cook Cty. v. United States ex rel. Chandler,

a s ciccicscniecdatcncsestmnnaitnatnigarinnwieeiaa 8

Dean Witter Reynolds, Inc. v. Byrd,

Fe Cy Be re cdenineccccctovesinessssintiemensennene 1, 6

Georgia v. Pennsylvania R. Co.,

ls Serre etic ecenseinnsevedscennsressapnnninetecnsaiiie 8

Gilmer v. Interstate/Johnson Lane Corp.,

is Me hancéstcncvecsocuniniecsctens 4,6, 10,11, 12

KPMG LLP v. Cocchi,

182 S. Ct. 23 (2011) (per Curiam) ...........ccccccccccceseses 5

Kremer v. Chemical Constr. Corp.,

He “REITs 8

iii

Cited Authorities

Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, Inc.,

a 5, 6, 10, 11

Morvant v. P_F. Chang’s China Bistro, Inc.,

870 F. Supp. 2d 831 (N.D. Cal. 2012)...................... 7

Morton v. Mancari,

ee 7-8

Moses H. Cone Mem’ Hosp. v. Mercury Constr. Corp.,

a ciususbcovetates 5

Pittsburgh & Lake Erie R.R. Co. v. Railway Labor

Executives’ Ass'n,

I ceeepe 8

Rodriguez de Quijas v. Shearson/Am. Exp., Inc.,

a Ee 5

Rodriguez v. United States,

Lc 8

Scherk v. Alberto-Culver Co.,

ae 4-5

Shearson/Am. Express, Inc. vu. McMahon,

i nenennians 6, 7

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

i. seeuisnsnooonsetons 3, 6

Town of Red Rock v. Henry,

a cssmaebornsnnsonts 8

United States v. Fausto,

sca enesoenasesencommacostoccesncoonts 8

tv

Cited Authorities

Volt Info. Scis., Inc. v. Bd. of Trustees of Leland

Stanford Junior Univ.,

ee HI ircinccccprnasscncnesnsicartnentnnenemnanetni 6

Wait v. Alaska,

ee ei cccnsnstnnssicinictinciassioapensenitcsinnmatitia 8

STATUTORY PROVISIONS

es EE eaicenttnseniencntscciencninacenttnneammnernnesinaiiitl 9

SIE Ian cin cniecieenieterinininioeesiionibaiiimemnniiediapemntsinihiendds 5

I cieincnrintcaneinaceneumemnemsdtiiiinaistenningtenatiiesi 10

ID cerentosessprcssnissmmmcstsbiocamanineicemmsnateaiiie 9

ET Cttceintiisnscicnsinnsesiiacntnndaesiininniididelinteninateninsiisin 11

EB iincnicnciontenchsssccemesitatiipianiiteiséinsinaiaiin 9

es BT ihiticanicciidcnspimceonennininsenieiinnciiansaniinniats 9

I triientenonincsrinisinnniciienninsiniens satiate 11, 12

H.R. Rep. No. 96, 68th Cong., 1st Sess., 1 (1924) ...... 5

H.R. Rep. No. 102-40(1) (1991) ..............ccccseeeeeeeeeeeees 12

v

Cited Authorities

OTHER AUTHORITIES

Stephen J. Ware, Employment Arbitration and

Voluntary Consent,

26 Fiotetra L. Bev. BB (1G06)............ccccccccccccesceccesesees

1

INTEREST OF AMICI CURIAFE”

Amici curiae are or have been distinguished

professors of law from several leading law schools

across the country (“Amici Law Professors”). Amici

Law Professors have lectured and _ written

extensively on issues of contract law, arbitration, and

statutory interpretation. They support’ the

enforcement of arbitration clauses as written and

oppose any construction of the National Labor

Relations Act (“NLRA”) that purports to effectuate a

congressional! override of the Federal Arbitration Act

(“FAA”) and bar the enforcement of arbitration

agreements in employment contracts. Amici Law

Professors believe that such a construction of the

NLRA is foreclosed by the Court’s precedents, see,

e.g., CompuCredit Corp. v. Greenwood, 132 S. Ct. 665

(2012), and would run afoul of the FAA and its

mandate that “[courts] rigorously enforce agreements

to arbitrate,” Dean Witter Reynolds, Inc. v. Byrd, 470

U.S. 213, 221 (1985).

Amici Law Professors include:

Henry N. Butler, Dean and Professor of Law at

the Antonin Scalia Law School, George Mason

University.

* No counsel for any party authored this brief in whole

or in part, and no person or entity, other than amici and

their counsel, made a monetary contribution intended to

fund its preparation or submission. The parties have

consented to the filing of this brief.

2

M. Todd Henderson, Michael J. Marks Professor

of Law and Mark Claster Mamolen Research Scholar

at the University of Chicago Law School.

Justin (Gus) Hurwitz, Assistant Professor of Law

and Co-Director of Space, Cyber, and Telecom Law

Program, University of Nebraska College of Law.

Michael I. Krauss, Professor of Law at the

Antonin Scalia Law School, George Mason

University.

Geoffrey Manne, Executive Director,

International Center for Law & Economics, and

former assistant professor of law, Lewis & Clark Law

School.

Joshua D. Wright, University Professor of Law

and Executive Director of the Global Antitrust

Institute at the Antonin Scalia Law School, George

Mason University.

3

INTRODCUTION AND

SUMMARY OF THE ARGUMENT

The Court has recognized the many benefits of

arbitration: “lower costs, greater efficiency and

speed, and the ability to choose expert adjudicators

to resolve specialized disputes.” Stolt-Nielsen S.A. v.

AnimalFeeds Intl Corp., 559 U.S. 662, 685 (2010).

Moreover, the Court has underscored that, “for

parties to employment contracts,” these benefits are

“real.” Circuit City Stores, Inc. v. Adams, 532 U.S.

105, 122 (2001); see also id. (rejecting the supposition

that “the advantages of the arbitration process

somehow disappear when transferred to the

employment context”). In light of these benefits,

businesses across the country and their employees

regularly enter into employment contracts that

provide for the arbitration of any disputes. See id. at

123; see also Brief for the Petitioners, Ernst & Young

LLP v. Morris, No. 16-300 (“E&Y Brief’) at 5-6 (citing

Stephen J. Ware, Employment Arbitration and

Voluntary Consent, 25 Hofstra L. Rev. 83, 84 (1996)).

And, as Petitioner Epic Systems and Respondent

Murphy Oil point out, these contracts “often include

waivers of class or collective proceedings,” Br. for

Pet. Epic Systems and Resp. Murphy Oil

(“Epic/Murphy Br.”) at 1, undoubtedly to ensure “the

principal advantage of arbitration—its informality,”

AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 348

(2011).

The question presented is whether—

notwithstanding the prevalence of arbitration

agreements in the employment context and the many

benefits thereof—the National Labor Relations Act

4

(“NLRA”) prohibits the enforcement under the

Federal Arbitration Act (“FAA”) of a_ contract

requiring an employee to arbitrate claims against an

employer on an individual basis.

Amici Law Professors agree with Petitioners in

Nos. 285 and 300 and Respondents in No. 307 that

the answer to this question is no. Because Congress

did not in the NLRA clearly express an intention to

override the FAA and preclude the enforcement of

arbitration agreements in employment contracts, the

FAA requires enforcement of the arbitration

agreements at issue. See E&Y Br. at 26-32;

Epic/Murphy Br. at 29-49. Amici Law Professors

write separately to emphasize that the standard for

demonstrating that another federal statute

constitutes a “clear congressional override” of the

FAA is an exacting one.

ARGUMENT

I. The FAA Requires Courts to Enforce

Agreements to Arbitrate Federal

Statutory Claims Unless the FAA’s

Mandate Has Been Overridden by a

Contrary Congressional Command.

Congress enacted the FAA in 1925 “to reverse the

longstanding judicial hostility to arbitration

agreements that had existed at English common law

and had been adopted by American courts.” Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 24

(1991). The statute “was designed to allow parties to

avoid ‘the costliness and delays of litigation,’ and to

place arbitration agreements ‘upon the same footing

as other contracts.” Scherk v. Alberto-Culver Co., 417

5

U.S. 506, 510-11 (1974) (quoting H.R. Rep. No. 96,

68th Cong., 1st Sess., 1, 2 (1924)).

The “centerpiece” of the FAA is Section 2.

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

Inc., 473 U.S. 614, 625 (1985). It provides:

A written provision in ... a contract

evidencing a _ transaction involving

commerce to settle by arbitration a

controversy thereafter arising out of such

contract or transac ‘ion ... 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. This provision declares “as a matter of

federal law,” Rodriguez de Quijas v. Shearson/Am.

Exp., Inc., 490 U.S. 477, 483 (1989), that “arbitration

agreements [are] ‘valid, irrevocable, and enforceable’

as written,” Concepcion, 563 U.S. at 344 (quoting 9

U.S.C. § 2).

The FAA and Section 2 thus embody an

“emphatic federal policy in favor of arbitral dispute

resolution,” KPMG LLP v. Cocchi, 565 U.S. 18, 21

(2011) (per curiam) (citation and quotations omitted),

and establish “a body of federal substantive law

establishing and regulating the duty to honor an

agreement to arbitrate,” Moses H. Cone Mem Hosp.

v. Mercury Constr. Corp., 460 U.S. 1, 25 n.32 (1983);

see also Mitsubishi Motors, 473 U.S. at 625

(explaining that the FAA and Section 2 outline “a

policy guaranteeing the enforcement of private

contractual arrangements”). This Court has

recognized as much, having stated “on numerous

6

occasions that the central or ‘primary’ purpose of the

FAA is to ensure that ‘private agreements to

arbitrate are enforced according to their terms.”

Stolt-Nielsen S.A., 559 U.S. at 682 (quoting Volt Info.

Scis., Inc. v. Bd. of Trustees of Leland Stanford

Junior Univ., 489 U.S. 468, 479 (1989) (other

citations omitted)). In short, “[t]he preeminent

concern of Congress in passing the [FAA] was to

enforce private agreements into which parties had

entered, and that concern requires that [courts]

rigorously enforce agreements to arbitrate.” Dean

Witter Reynolds, 470 U.S. at 221.

Importantly, “[t]his duty to enforce arbitration

agreements is not diminished when a party bound by

an agreement raises a claim founded on statutory

rights.” Shearson/Am. Express, Inc. v. McMahon,

482 U.S. 220, 226 (1987); see also Gilmer, 500 U.S. at

26 (“[S]tatutory claims may be the subject of an

arbitration agreement, enforceable pursuant to the

FAA.”). Any “concern for statutorily protected classes

provides no reason to color the lens through which

the arbitration clause is read. By 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, 473 U.S.

at 628. The FAA’s mandate is fully enforceable, then,

“even when the claims at issue are federal statutory

claims.” CompuCredit, 132 S. Ct. at 669. An

arbitration agreement, like any other contract, may

be vitiated by a showing of “fraud or excessive

economic power.” McMahon, 482 U.S. at 226. But

absent that, the FAA “provides no basis for

disfavoring agreements to arbitrate statutory claims

7

by skewing the otherwise hospitable inquiry into

arbitrability.” Jd.

To be sure, “like any statutory directive, the

[FAA]’s mandate may be overridden by a contrary

congressional command.” McMahon, 482 U.S. at 226.

But this is an exacting standard. The “contrary

congressional command” must be clearly expressed;

another federal statute may not override the FAA

unless the “qualification” is “found in its text.” 14

Penn Plaza LLC v. Pyett, 556 U.S. 247, 270 (2009).

Thus, if the other statute is “silent on whether claims

. can proceed in an arbitrable forum, the FAA

requires [an] arbitration agreement to be enforced

according to its terms.” Id. at 273; see also Morvant v.

P.F. Chang’s China Bistro, Inc., 870 F. Supp. 2d 831,

845 (N.D. Cal. 2012) (“[A]bsent a clear statement in a

federal statute showing Congressional intent to

override the use of arbitration, the FAA prevails.”).

The rule that a federal statute will not be

interpreted to forbid arbitration of claims within its

ambit unless it does so expressly follows from

ordinary principles of statutory construction. As

explained above, the right the FAA protects is

unambiguously outlined in the statutory text: the

right to judicial enforcement of arbitration

agreements as written. Courts are appropriately

reluctant to read another federal statute to defeat

that right. “The courts are not at liberty to pick and

choose among congressional enactments, and when

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.” Morton v. Mancari, 417 U.S. 535,

8

551 (1974); see also Pittsburgh & Lake Erie R.R. Co.

v. Railway Labor Executives’ Ass’n, 491 U.S. 490, 510

(1989) (“We should read federal statutes ‘to give

effect to each if we can do so while preserving their

sense and purpose.”) (quoting Watt v. Alaska, 451

U.S. 259, 267 (1981)).

A court’s duty to reconcile two laws “to give effect

to each,” Watt, 451 U.S. at 267, is especially

important when, as here, there is a claim that a more

recent statute has superseded an older one. Repeals

by implication are “strongly disfavored.” United

States v. Fausto, 484 U.S. 439, 452 (1988); see also

Cook Cty. v. United States ex rel. Chandler, 538 U.S.

119, 132 (2003). “A new statute will not be read as

wholly or even partially amending a prior one unless

there exists a positive repugnancy between the

provisions of the new and those of the old that cannot

be reconciled.” Blanchette v. Conn. Gen. Ins. Corps.,

419 U.S. 102, 134 (1974) (citations and quotations

omitted); Georgia v. Pennsylvania R. Co., 324 U.S.

439, 456-57 (1945) (“clear repugnancy”); Rodriguez v.

United States, 480 U.S. 522, 524 (1987)

(“irreconcilable conflict”) (quoting Kremer ov.

Chemical Constr. Corp., 456 U.S. 461, 468 (1982)).

Naturally, then, it is “strongly presumed that

Congress will specifically address language on the

statute books that it wishes to change.” Fausto, 484

U.S. at 453. Accordingly, for a new statute to

supersede an existing one, “the intention of the

legislature to repeal must be clear and manifest.”

Town of Red Rock v. Henry, 106 U.S. 596, 602 (1883).

Another federal statute may not override that body

of substantive law unless the “qualification” is “found

in its text.” Penn Plaza, 556 U.S. at 270.

9

Il. The Court’s Decisions Demonstrate that

the Standard for a Congressional

Override of the FAA is an Exacting One.

The “contrary congressional command” rule is

straightforward. If Congress enacts a statute that

expressly precludes or limits arbitration of certain

federal claims, the new law prevails over the FAA.

Congress knows how to override the FAA, having

done so on several occasions. In 2002, for example,

Congress provided that “whenever a motor vehicle

franchise contract provides for the use of arbitration

to resolve a controversy arising out of or relating to

such contract, arbitration may be used to settle such

controversy only if after such controversy arises all

parties to such controversy consent in writing to use

arbitration to settle such controversy.” 15 U.S.C.

§ 1226(a)(2).

More recently, as part of the Dodd-Frank Wall

Street Reform and Consumer Protection Act of 2010,

Congress amended several statutes to bar the

enforcement of predispute arbitration agreements as

to claims arising thereunder. See, e.g., 7 U.S.C. §

26(n)(2) (“No predispute arbitration agreement shall

be valid or enforceable, if the agreement requires

arbitration of a dispute arising under this section.”)

(Commodity Exchange Act); 12 U.S.C. § 5567(d)(2)

(same) (Consumer Financial Protection Act); 18

U.S.C. § 1514A(e)(2) (same) (Sarbanes-Oxley Act).

Also in 2010, Congress expressly conferred upon the

Consumer Financial Protection Bureau (“CFPB”)

certain “[{a]uthority to restrict mandatory pre-dispute

arbitration.” 12 U.S.C. § 5518 (section title); see also

12 U.S.C. § 5518(b) (authorizing the CFPB to

10

“Impose conditions or limitations on the use of an

agreement between a covered person and a consumer

for a consumer financial product or service providing

for arbitration of any future dispute between the

parties, if the Bureau finds that such a prohibition or

imposition of conditions or limitations is in the public

interest and for the protection of consumers”).

As these examples demonstrate, “Congress is

fully equipped ‘to identify any category of claims as

to which agreements to arbitrate will be held

unenforceable.” Penn Plaza, 556 U.S. at 270 (quoting

Mitsubishi Motors, 473 U.S. at 627). If Congress does

not expressly override the FAA, however, then the

federal statute cannot be construed to abrogate or

amend the parties’ arbitration agreement.

Importantly, the burden rests with the party

opposing arbitration “to show that Congress intended

to preclude a waiver of a judicial forum for [the

federal] claims [at issue].” Gilmer, 500 U.S. at 26; see

also id. (“Having made the bargain to arbitrate, the

party should be held to it unless Congress itself has

evinced an intention to preclude a waiver of judicial

remedies for the statutory rights at issue.”). And as

Petitioner Ernst & Young emphasizes, “this Court’s

decisions demonstrate [that] the burden of proving

that a federal statute displaces the Arbitration Act is

a heavy one.” E&Y Br. at 22.

Take, for example, Mitsubishi Motors. That case

involved a purported conflict between the FAA and a

provision of the Clayton Act, which states that “[a]ny

person who shall be injured in his business or

property by reason of anything forbidden in the

antitrust laws may sue therefor in any district court

11

of the United States ... and shall recover threefold

the damages by him sustained, and the cost of suit,

including a reasonable attorney’s fee.” 15 U.S.C. §

15(a). “Just as it is the congressional policy

manifested in the Federal Arbitration Act that

requires courts liberally to construe the scope of

arbitration agreements covered by that Act,” the

Court explained, “it is the congressional intention

expressed in some other statute on which the courts

must rely to identify any category of claims as to

which agreements to arbitrate will be held

unenforceable.” Mitsubishi Motors, 473 U.S. at 627.

Because the Clayton Act evinced no_ such

congressional intent, that was the end of the matter.

As the Court explained, any “concern for statutorily

protected classes provides no reason to color the lens

through which the arbitration clause is read.” Jd.

The Court’s FAA decisions relating to the Age

Discrimination in Employment Act (“ADEA”) track

the same path. Under the ADEA, “[a]ny person

aggrieved may bring a civil action in any court of

competent jurisdiction for such legal or equitable

relief as will effectuate the purposes of this chapter.”

29 U.S.C. § 626(c)(1). The Supreme Court twice has

held that this statutory text does not abrogate an

employment agreement—whether bargained for

collectively or individually—that requires individual

arbitration of ADEA claims. See Gilmer, 500 U.S. at

26-27; Penn Plaza, 556 U.S. at 258-260.

In Gilmer, the Supreme Court emphasized that

“lajlthough all statutory claims may not be

appropriate for arbitration, having made the bargain

to arbitrate, the party should be held to it unless

12

Congress itself has evinced an intention to preclude a

waiver of judicial remedies for the statutory rights at

issue.” 500 U.S. at 26. The Court concluded that the

ADEA did not override the FAA because “nothing in

the text of the ADEA or its legislative history

explicitly precludes arbitration.” Jd. at 26; see also id.

at 29 (“[I]}f Congress intended the substantive

protection afforded by the ADEA to include

protection against waiver of the right to a judicial

forum, that intention will be deducible from text or

legislative history.”).

In Penn Plaza, the Supreme Court reaffirmed this

construction of the ADEA and then took it one step

further. After Gilmer, Congress had amended the

ADEA to provide that “[a]n individual may not waive

any right or claim under [the ADEA] unless the

waiver is knowing and voluntary.” 29 U.S.C. §

626(f(1). On top of that, the legislative history

included a statement that “any agreement to submit

disputed issues to arbitration ... in the context of a

collective bargaining agreement ... does not preclude

the affected person from seeking relief under the

enforcement provisions of Title VII.” H.R. Rep. No.

102-40(1), at 97 (1991). The Court held that the

amended ADEA still did not amount to a contrary

congressional command. Even assuming that the

amendment’s legislative history expressed a

congressional desire to curtail arbitration in the

collective-bargaining setting, the Court refused to

find a contrary congressional command to override

the FAA in the absence of textual proof. See Penn

Plaza, 556 U.S. at 259 n.6.

13

The Court’s most recent decision in this area—

CompuCredit v. Greenwood—is perhaps the best

illustration of the high bar that a party challenging

an arbitration agreement must meet to prove that

Congress intended to override the FAA. In

CompuCredit, credit-card holders who sued their

card providers under the Credit Repair

Organizations Act (CROA) argued that the CROA

overrode the FAA and precluded enforcement of their

otherwise-binding arbitration agreements. The

cardholders argued that the CROA’s provision

requiring disclosure of the cardholder’s right to sue

together with a substantive non-waiver provision

created a non-waivable right to bring class claims in

a judicial forum. See CompuCredit, 132 S. Ct. at 670.

But the Court rejected this argument, explaining

that even this express language could not “do the

heavy lifting” needed to override the FAA and confer

not only a substantive right to a cause of action, but

also a non-waivable right to a judicial forum. Jd. “It

is utterly commonplace for statutes that create civil

causes of action to describe the details of those

causes of action, including the relief available, in the

context of a court suit,” the Court further explained.

Id. “If the mere formulation of the cause of action in

this standard fashion were sufficient to establish the

‘contrary congressional command’ overriding the

FAA, valid arbitration agreements covering federal

causes of action would be rare indeed. But that is not

the law.” Id. (citation omitted). Put simply, “[hjad

Congress meant to prohibit these very common

provisions in the CROA, it would have done so in a

manner less obtuse than what respondents suggest.

When it has restricted the use of arbitration in other

contexts, it has done so with a clarity that far

14

exceeds the claimed indications in the CROA.” /d. at

672.

Justice Sotomayor’s separate concurring opinion

in CompuCredit (joined by Justice Kagan) further

highlights the exacting standard for demonstrating a

congressional override. In their view, the override

question was a close one; the concurrence

characterized the cardholder’s position as “plausible.”

Id. at 675. But, of course, plausibility is not

sufficient. Nor was it enough that Justice Sotomayor

concluded that “the parties’ arguments [were] in

equipoise.” The standard for an override “require[s]

that petitioners prevail in this circumstance.” /d.

. * *

As the Court’s precedents make clear, the

standard for a congressional override of the FAA is

an exacting one. For the reasons outlined by

Petitioners in Nos. 285 and 300 and Respondents in

No. 307, the NLRA does not come close to meeting

this standard. See E&Y Br. at 32 (“Neither the text,

legislative history, nor the underlying purposes of

the NLRA reveal anything even approaching a clear

congressional command precluding agreements to

arbitrate generally or agreements to arbitrate on an

individual basis specifically.”).

Simply put, there is no “qualification ... found in

[the] text” of the NLRA capable of overriding the

FAA. Penn Plaza, 556 U.S. at 270.

15

CONCLUSION

The judgments of the Fifth Circuit in Murphy Oil

should be affirmed, and the judgments of the

Seventh Circuit in Epic Systems and the Ninth

Circuit in Ernst & Young should be reversed.

Respectfully submitted,

‘si Thomas R. McCarthy _

Thomas R. McCarthy

J. Michael Connolly

CONSOVOY MCCARTHY

PARK PLLC

ANTONIN SCALIA LAW

SCHOOL SUPREME COURT

CLINIC

3033 Wilson Bivd.,

Suite 700

Arlington, VA 22201

(703) 243-9423

Counsel for Amici Curiae

June 16, 2017