Recent Developments For Litigation Risk Mitigation: The U.S. Supreme Court’s Prescription

Over the past three years, since mid-2010, the Supreme Court has handed down a series of related decisions that, taken together, constitute an instruction manual for American business on how to reduce litigation risk. As the world has "flattened" and trade has increasingly globalized and become borderless, it has been impossible to ignore that only in the U.S. economy is litigation such a prominent line item for business. This is particularly true with regard to class action litigation. No other country has the sort of class—or collective—action rules that the United States does. Perhaps in response to these facts, the Supreme Court has made it clear that through a combination of arbitration (as opposed to litigation) and class action waiver clauses properly used, businesses can contract out from under a great deal of litigation risk for the future and fundamentally change their litigation environment.