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Description
In light of the flood of fiduciary litigation in recent years, some plan sponsors have considered amending their plans to include provisions requiring mandatory arbitration of claims and waivers of class action or collective claims. All things being equal, arbitration is potentially more efficient and less costly than litigation, and plan sponsors hope that mandatory arbitration and class action waivers may save them time and money in the current litigious environment. In fact, however, under the current state of the law, arbitration provisions may lead to protracted litigation and additional costs, including the cost of litigating the enforceability of the arbitration provisions themselves.
Since 2021, five Circuit Courts in five different circuits have rendered decisions holding mandatory arbitration provisions unenforceable. Those decisions, however, are not consistent with earlier decisions in other Circuits. This article discusses those decisions.
The article begins by providing a brief overview of ERISA’s civil enforcement regime. It then provides a brief overview of the Federal Arbitration Act. It then provides an overview of the circuit courts’ approach to mandatory arbitration of ERISA claims and discusses the Circuit Courts’ recent decisions as well as earlier contrary precedent.
Publication Date
2023
Book Title
New York University Review of Employee Benefits and Executive Compensation
Publisher
LexisNexis Matthew Bender
City
New York
ISBN
9781663370518
Keywords
Federal Arbitration Act, mandatory arbitration, unenforceable
Disciplines
Dispute Resolution and Arbitration | Labor and Employment Law | Law
Recommended Citation
Moore, Kathryn L., "Arbitration of ERISA Statutory Claims" (2023). Law Faculty Books and Chapters. 44.
https://uknowledge.uky.edu/lawfac_book/44
Notes
Moore, Kathryn L. “Arbitration of ERISA Statutory Claims.” In New York University Review of Employee Benefits and Executive Compensation, edited by David Pratt, §6.01-6.06. New York: LexisNexis Matthew Bender, 2023.