LITIGATION TRENDS 2024 | 25 T O C E M P A N T I I P C A P R O W C C O N T A C T I N T A P P P A T C C L S E C 24 | Weil, Gotshal & Manges LLP Court had granted review to decide whether a self-appointed “civil rights tester” has a legal right to file a lawsuit under the Americans with Disabilities Act. As Weil explained in an amicus brief, such lawsuits are “part of a much broader phenomenon affecting millions of businesses nationwide that face the prospect of similar lawsuits.” However, in a unanimous opinion, the Court declined to resolve the issue, holding that the case was no longer a live controversy after the plaintiff in the case dismissed her lawsuit in the lower court following revelations of misconduct by her attorney. Appeals and Strategic Counseling YEAR # OF OPINIONS 100 90 80 70 60 50 40 30 20 10 0 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 OPINIONS ISSUED BY THE U.S. SUPREME COURT, 2013–2022 David Singh Partner Silicon Valley david.singh@weil.com The Rise of Mass Arbitration Corporate defendants, seeking to limit costly class actions, could once take refuge in carefully drafted arbitration provisions. The Supreme Court condoned the use of such provisions in Epic Sys. Inc. v. Lewis, 138 S. Ct. 1612, 1632 (2018), and held that individual arbitration agreements requiring class action waivers are enforceable under the Federal Arbitration Act (“FAA”), despite a federally guaranteed right to collective action under the National Labor Relations Act (“NLRA”). Accordingly, arbitration agreements with class action waivers once allowed corporations to reduce the costs of settling claims while still providing claimants with a suitable forum to bring their claim. That is, until the rise of abusive mass arbitration – a strategy that uses the threat of crippling filing fees to force defendants to settle early, regardless of the claim’s merits. Specifically, mass arbitration refers to the procedure in which plaintiff attorneys file hundreds, if not thousands, of nearly identical arbitration claims against a single defendant. These attorneys typically advance their clients’ filing fees and seek repayment through the arbitration clause’s fee-shifting provision, where the defendant is required to reimburse some or all of a claimant’s filing fees. Mass arbitration seeks to pressure the defendant into Class Actions C A CROSS-PRACTICE FOCUS Source: Derived from data in The Supreme Court Database, Washington University Law, http://scdb.wustl.edu/, accessed March 5, 2024
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