Friday, October 2, 2015
I'm cross-posting here Imre Szalai's email out to the ADR Listserv:
Today, the Supreme Court granted cert in yet another FAA case. In this
new case, MHN Government Services v. Zaborowski, the Supreme Court will have to deal with the broad scope of FAA preemption as set forth in
Concepción is much more than a class action case. The preemption doctrine
from Concepción is changing how lower courts treat unconscionability
arguments in connection with individual, non-class disputes. Judicial
review of arbitration agreements for fundamental fairness is shrinking and
more circumscribed as a result of Concepción (and as a result of other
cases like American Express and Rent-A-Center), which I find troubling,
especially in the consumer and employee contexts.
I plan to file an amicus brief supporting the employees in this case. I
plan to criticize Concepción’s overly broad preemption doctrine, and I
also plan to critique the application of the FAA to the employment
setting. I have uncovered historical evidence that was unknown at the
time Circuit City was decided in 2001, when the Supreme Court held that
the FAA applies to employment disputes. This evidence confirms that the
FAA was never intended to apply in the employment setting, and I want to
bring this new historical research to the Court’s attention in the
If you are interested in the amicus brief, please contact [Imre].
The new historical evidence Imre refers to is hot -- a complete game-changer, if SCOTUS is willing to admit it got Gilmer and Southland wrong. Stay tuned!