Lots of folks are writing about the long-term impact of SCOTUS’s recent decision in Epic Systems, but it is also important to note that there has been immediate, short-term impact.
For example, a lead plaintiff agreed to take her sex discrimination case against a law firm to individual arbitration, abandoning her putative class action, after the Epic decision was released. A federal judge is ready to dismiss a separate class action against Epic Systems (regarding overtime pay) as a result of the new decision. And a class action against Chipotle may get sliced and diced up, with about 30% of employees being sent to individual arbitration, while 70% of the class can proceed in court (because they started working for the chain before it instituted the arbitration program). There must be dozens (hundreds?) of similar employment class actions around the country.
Speaking of the trickle down effects of SCOTUS’s arbitration cases, last year’s Kindred decision is certainly a relevant headwater for the Supreme Court of West Virginia’s recent opinion upholding the arbitration agreement in nursing home admission documents. Although West Virginia used to be reliably anti-arbitration, its recent decisions are pro-arbitration. So, it’s not too surprising that in AMFM LLC v. Shanklin, 2018 WL 2467770 (W. Va. May 30, 2018), that court reversed a trial court’s ruling that the arbitration agreement signed by the resident’s daughter was not enforceable. Careful not to interpret its statutes and common law regarding power of attorney in a way that stands as an obstacle to the FAA, West Virginia’s high court found that the daughter’s role as understudy in the POA document (fine, it says “successor” or “alternate”) was sufficient to bind her mother to the arbitration agreement. The position drew a spirited dissent from one lone justice.