DOJ Flips The Switch On Class Waivers In Arbitration Agreements, Signaling Possible Changes To Come

Authored by Tim Long and Alexandra Stathopoulos

On Friday, June 16, 2017, the United States Department of Justice (DOJ) filed an amicus brief reflecting a change of heart when it comes to the enforceability of class waivers in arbitration agreements. In an unprecedented move, President Trump's acting solicitor general, Jeffrey B. Wall, said his office had "reconsidered the issue and has reached the opposite conclusion" as the Obama administration in a set of consolidated cases currently before the U.S. Supreme Court, NLRB v. Murphy Oil USA Inc. (Docket Nos. 16-285, 16-300, and 16-307).

In the last months of the Obama administration, the National Labor Relations Board (NLRB)—then represented by the Obama administration's Solicitor General—appealed a Fifth Circuit decision in Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015) in which the circuit court mostly reversed the NLRB's ruling that Murphy Oil's arbitration agreements were unlawful, instead