On July 19, 2017, the Supreme Court of the United States released the October 2017 term’s calendar for oral arguments, including the date it will hear oral argument in the three consolidated class action waiver cases that are currently before the Court. The term will start on October 2, 2017, with the justices hearing a total of one hour of oral argument in National Labor Relations Board v. Murphy Oil USA, Inc., Epic Systems Corp. v. Lewis, and Ernst & Young LLP v. Morris.
Of course, the date that the justices will issue the Court’s decision(s) is still undetermined. A 2015 Duke Law Journal article estimated the timing of Supreme Court decisions based on the date of oral arguments. According to the article, in a sample of 7,219 cases, the mean time from oral argument to when the Court issued a decision was 83.6 days. Based on this estimate, a decision in the class action waiver cases could come in later December. However, taking into account the Court’s breaks for holidays—and the fact that this issue is extremely likely to result in at least one dissent—we expect the Court to issue its decision(s), which will affect virtually every employer in the United States, in January of 2018.
As background, on January 13, 2017, the Court consolidated the cases and agreed to decide whether employment arbitration agreements that bar class actions are prohibited as an unfair labor practice and are therefore unenforceable. On June 16, 2017, numerous business and employer groups (including several represented by Ogletree Deakins) filed amicus briefs supporting the employers in the consolidated cases. In addition, the United States Solicitor General filed a brief supporting the employers (even though, up to that time, the Solicitor General had been counsel of record representing the National Labor Relations Board opposing the employers’ position).
