The #MeToo Movement and Arbitration Clauses

Unless you have been living under a rock, you know that the #MeToo movement has seized the cultural zeitgeist. Thousands of women have come forward to tell their stories and many powerful people have lost their positions on the heels of serious accusations. The entertainment industry, the political sphere, corporate boardrooms, and the judiciary have all been affected. 
One corporation that has felt the heat is the ridesharing company Uber. After employee Susan Fowler sparked an uproar with allegations of sexual harassment and gender discrimination, an internal investigation led to more than 200 employee complaints and 20 terminations. Fowler will presumably sue Uber, but it remains to be seen whether she will join forces with others in doing so because, like many employers, Uber requires employees to sign a contract that commits them to resolving disputes through private, individual arbitration.

In a trio of consolidated cases----   Epic Systems Corp. v. Lewis, No. 16-285; Ernst & Young LLP v. Morris, No. 16-300; and NLRB v. Murphy Oil USA, Inc., No. 16-307----   the U.S. Supreme Court is poised to address whether provisions like the one in Fowler's employment contract will be given effect. The decision may have a greater impact on businesses and their employees than any other decision this term.
In recent years, the Supreme Court has largely upheld mandatory-arbitration provisions prohibiting collective action. Seee.g.DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463, 468-71 (2015); Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2309-12 (2013); AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339-52 (2011). In doing so, the Court has principally relied on the Federal Arbitration Act's directive that arbitration clauses are "valid, irrevocable, and enforceable." 9 U.S.C. § 2. As the Court has put it, the Arbitration Act requires courts to enforce arbitration agreements except when "a contrary congressional command" directs otherwise. CompuCredit Corp. v. Greenwood, 132 S. Ct. 665, 669 (2012) (quoting Shearson/Am. Express Inc. v. McMahon, 482 U.S. 220, 226 (1987)). And thus far, at least in the consumer context, the Court has found competing statutory protections to be lacking.

In the employment context, however, the N ational Labor Relations Act may serve as a potential counterweight. The NLRA, which addresses private-sector employment practices, gives  "[e]mployees . . . the right to . . . engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157. An employer who restrains the exercise of that right engages in an "unfair labor practice." 29 U.S.C. § 158. The National Labor Relations Board has concluded that these provisions preclude employers from requiring employees to forgo collective action for work-related disputes.  See, e.g., D.R. Horton, Inc. , 357 N.L.R.B. 2277, 2278-83 (2012), enforcement denied in relevant part, 737 F.3d 344 (5th Cir. 2013).
The federal courts of appeals, however, have reached conflicting results on the question. The Second and Fifth Circuits have held that the NLRA does not contain a "contrary congressional command" that overrides the Arbitration Act's mandate to give effect to arbitration agreements. See D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 358, 360-61 (5th Cir. 2013); Sutherland v. Ernst & Young, LLP, 726 F.3d 290, 297 n.8, 298-99 (2d Cir. 2013) (per curiam). Indeed, the Fifth Circuit observed, the collective-bargaining provisions of the NLRA don't "even mention arbitration." D.R. Horton, 737 F.3d at 360. The Eighth Circuit reached the same result using a slightly different analysis. It reasoned that Congress must have intended the Arbitration Act to apply in the labor-relations setting because it reenacted the Act after the NLRA was passed. See, e.g., Owen v. Bristol Care, Inc., 702 F.3d 1050, 1053 (8th Cir. 2013).
Rather than focusing on whether the NLRA contains a "contrary congressional command," courts rejecting the enforceability of collective-action waivers have emphasized the Arbitration Act's saving clause, which provides that mandatory-arbitration clauses are "enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. The Seventh Circuit has held that the NLRA serves as one such ground, because the statute makes collective-action waivers illegal. Lewis v. Epic Sys. Corp., 823 F.3d 1147, 1157 (7th Cir. 2016). In light of that result, the Seventh Circuit reasoned, the NLRA and the Arbitration Act are not in conflict, so it is irrelevant whether the NLRA includes a specific "contrary congressional command" regarding arbitration. Id. at 1156. The Ninth Circuit reached a similar result in Morris v. Ernst & Young, LLP, 834 F.3d 975, 986-87 (9th Cir. 2016).
In the Supreme Court, the employers reiterated the arguments accepted by the Second, Fifth, and Eighth Circuits, while their opponents rehashed the arguments that the Seventh and Ninth Circuits found persuasive. The United States, meanwhile, did both: at the certiorari stage, the Obama administration's Department of Justice sided with the NLRB; but when it came time to brief the merits, the Trump administration submitted a brief siding with employers. The Justice Department is now at odds with the NLRB (which filed its own brief), creating the unusual circumstance of two arms of the federal government appearing on opposite sides of a case.
If that weren't enough, more than two dozen amici curiae have weighed in. The amicus line-up pits the corporate world and the defense bar against unions, trial lawyers, and civil-rights organizations----   making it clear that the case involves much more than fine points of statutory construction. The stakes for an employer rise dramatically when hundreds or thousands of employees sue together; potential damages can jump from hundreds of thousands of dollars to hundreds of millions. Those multi-million-dollar awards, in turn, are a big draw for class-action lawyers. Indeed, many aggrieved employees will be unable to find representation when only individual damages are at stake. T hat, my friends, is what the case is reallyabout.

A decision is expected by the end of June 2018.


Brief-Wr iting Essentials

I recently gave an "Essentials of Brief-Writing" talk at a Maryland State Bar Association conference and I thought it might be helpful to summarize the talk here. The presentation was akin to a Top 10 List, though it contained 14 items. Here's the list:

Level with the Court. Don't misrepresent the facts, the record, or the law. Don't ignore unfavorable facts; place them in context. Don't ignore your most difficult precedent; acknowledge it and explain why you should prevail anyway.

Provide a road map for your reader. Start each paragraph with a topic sentence. Use headings and sub-headings to break up the document and signpost your arguments. For major documents (appellate briefs, dispositive-motion memoranda, etc.), include a Table of Contents and a Table of Authorities even if it's not required by the rules.
Make headings and subheadings work for you.  They should be argumentative, not topical; and they should be statements, not questions. "The Admissibility of Plaintiff's Expert Testimony" is a waste of words. "Did the trial court err in admitting the plaintiff's expert?" tells the reader nothing about your position. This is better: "The district court properly applied Daubert and its progeny in excluding Schmoe's testimony as scientifically unreliable."

Communicate, don't pontificate.  The point is to persuade; not to make the judges or your client think you're smart. Don't use a $5 word when a 50¢ one will do. Stop speaking in Latin and legalese.
Don't holler.  Use bold, underlining, or italics----   not all caps----   for emphasis, and even then, do so sparingly. Avoid intensifying adverbs like extremely, obviously, indisputably, very, truly, clearly, and the like. Words like that not only diminish your credibility and make you sound like a blowhard, they also set the bar higher than necessary. You only need to convince the court that your argument is correct; not that it is "obviously" so.
Mind your grammar.  Avoid passive formulations. Learn the difference between "which" and "that." The word "however" should rarely begin a sentence; rewrite to put it mid-sentence.  Learn the rules about hyphenating compound adjectives.
Avoid block quotations.  A reader's eye naturally jumps over them. When you have no choice but to quote at length, summarize the substance of the quotation in the sentence immediately preceding it.
Avoid footnotes.  They may not be read. They are most certainly not the place to deal with the other side's strongest point or the case most harmful to your position. That will just broadcast that you don't have a strong response. And do not put your citations in footnotes, even if accomplished legal writers insist that it will make your prose more readable.

Avoid acronyms.  If you need to shorten the name of a party or statute, use words rather than letters. Make an exception for acronyms the reader likely already knew, such as "BMW" and "NLRA."

Use the parties' names. Unless court rules require otherwise, refer to parties by name rather than by their status in the litigation. Referring to a party as "plaintiff," "defendant," "appellant," or "appellee" simply forces the reader to stop and consult the caption.

Fret about font.  Everyone defaults to Times New Roman, but other fonts 
( like Book Antiqua, Bookman Old Style, and Century Schoolbook) are  more readable. If you're like me, you may appreciate the simplicity of sans-serif fonts (that's why I use Calibri for this Newsletter!), but studies show that they are more difficult to read than serif fonts and that judges don't like them.
The shorter, the better. Keep only what's necessary, whether it's arguments or words. As Stephen King advises, "Kill your darlings, even when it breaks your egocentric little scribbler's heart." "In order to" should become "to." Keep paragraphs and sentences short, too, with at least 2-3 paragraphs on a typed page and sentences running no more than 3-or-so typed lines each.
Make your brief flawless in form.  Everyone makes errors, but do your best to get rid of typos, correct formatting errors, and ensure that your citations are proper. A judge will think, rightly or wrongly, that a lawyer who is careless about such things will be careless about substance as well.

Finally, if you don't enjoy writing, partner with someone who does (like me)!


Formerly a Deputy Chief in the Appellate Section of the Civil Rights Division at the U.S. Department of Justice, Ayesha has represented a party or a friend-of-the-court in dozens of U.S. Supreme Court cases, over one hundred federal and state appeals, and scores of trial-level cases. She also has extensive management and supervisory experience in the nonprofit-advocacy sphere. She is admitted in MD and DC, every federal circuit, and the U.S. Supreme Court. In addition to handling appeals and briefing and arguing critical motions  at the trial level, she provides litigation-consulting services to nonprofit organizations.