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With Trump in Office and Gorsuch on the Bench, Don’t Hesitate to Arbitrate

With dramatic changes recently occurring in the U.S. executive, legislative, and judicial branches, corporate lawyers are growing accustomed to “wait and see” approaches. Amidst all the uncertainty, arbitration agreements may be the one thing to advance proactively. Jeremy Robb and Sandra Jezierski, attorneys with Minneapolis-based Nilan Johnson Lewis, say now is the time to move forward with employee arbitration agreements—documents in which organizations and their workers consent to resolve any disputes in private forums instead of court. “Many legal advisors had been awaiting the Supreme Court’s verdicts on some key cases about whether the Federal Arbitration Act preempts plaintiffs’ abilities to pursue collective lawsuits through the courts, and specifically whether mandatory class-action waivers in these arbitration agreements are enforceable,” said Robb. “But those cases almost certainly won’t be decided until 2018, and newly confirmed Supreme Court Justice Neil Gorsuch’s history with arbitration matters at the 10th Circuit Court of Appeals, while limited, seems strongly in unison with the trend on the Court to favor arbitration when that day comes.” Coupled with the fact these agreements are likely to be more enforceable under Trump, Jezierski agrees that employers should feel reassured to pivot to the more proactive use of arbitration agreements containing class-waivers. She also notes that the reasons organizations embrace arbitration remain as sound as ever. “It’s a more streamlined and affordable approach – and because of the private nature of arbitration, companies can address issues on their individual merits rather than making decisions influenced by reputational ramifications.” Robb and Jezierski both note they’ve received more inquiries from employers about rolling out arbitration plans in 2017, and say it’s crucial that businesses involve lawyers who are versed in the various arbitration agreement state laws at hand.



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