The Roberts Court vs. the Regulators: Surveying the Next Arbitration Battleground

Abstract

This short essay examines the issues raised by two recent regulatory decisions involving arbitration agreements. The NLRB and FINRA have issued rulings proscribing class waivers in arbitration agreements covering claims under the labor laws and the securities laws, respectively. As these rulings are challenged in court, they will place the agencies in opposition to recent case law from the Supreme Court validating arbitral class waivers. The courts will thus face a conflict between the "federal policy favoring arbitration" that the Supreme Court has gleaned from the Federal Arbitration Act and the principle of deference to agency rulemaking enshrined in Chevron v. NRDC. Yet another case raising similar issues stemming from FTC limits on the arbitration of warranty claims under the Magnuson-Moss Warranty Act may reach the Supreme Court first. The essay contemplates the interplay between the FAA and Chevron deference in these contexts.

Keywords: arbitration, chevron, deference, agency, class action