Supreme Court asked to weigh in on arbitration, again

When Supreme Court justices contemplate taking a case, they periodically ask federal agencies — including the Department of Labor — for their opinions, which are filed by the office of the solicitor general, which conducts all Supreme Court litigation on behalf of the federal government.

If asked, the DOL response most likely won’t be a surprise. In September 2022, It filed an amicus brief supporting Harrison with the Denver appeals court when it was reviewing the Argent/Envision case.

The arbitration provision was written in such a way that it “precludes plaintiff from obtaining the very relief that ERISA expressly allows him to seek,” the DOL wrote.

Because ERISA complaints can be class-action complaints, “defendants sought to force plaintiff to abandon those statutory remedies by moving to compel arbitration under an agreement that restricts him to obtaining only individualized relief,” the DOL wrote. “In contrast, provisions that do not limit a statutory remedy but merely affect the manner of arbitration will generally stand.”

Justices don’t have to follow federal agency comments, but these views carry a lot of weight.

“The court rarely goes in a different direction than the solicitor general,” said Nancy Ross, a Chicago-based partner in Mayer Brown LLP, who represents sponsors in ERISA cases. Ross and her firm filed an amicus brief on behalf of the U.S. Chamber of Commerce supporting Envision and Argent when the case was considered by the 10th Circuit Court of Appeals.

“I would be surprised” if the Supreme Court accepted the case, she said.

If clients ask about putting an arbitration clause in a retirement plan document, Ross said they should be careful about the terminology. For ERISA-covered retirement plans, restricting arbitration to an individual and preventing planwide relief “likely won’t be enforced” by courts in class-action complaints, she said.

When clients ask Joseph J. Torres about installing an arbitration provision in their retirement plan documents, he alerts them to the uncertainty, tells them to evaluate pros and cons, and advises them to be careful with the terms of the provisions. Torres, a Chicago-based partner at Jenner & Block who represents sponsors in ERISA cases, isn’t involved in the Argent case.

He noted that recent Supreme Court rulings have given strong support to permitting arbitration in non-ERISA litigation, but he isn’t sure if the court will take the Argent case. The justices might believe “it could be an issue on the language” rather than a legal dispute, he said. “Even if this is not the right vehicle, there are other cases” pending in different appeals courts that might come to the justices’ attention soon, he added.