ERISA plan sponsors, and employers more broadly, have been anxiously awaiting two rulings from the U.S. Supreme Court that they hope would clarify the ability to enforce class action waivers in arbitration agreements. Yesterday, the Court issued the first of these decisions in Oxford Health Plans LLC v. Sutter, a case in which Sutter alleged on behalf of himself and a class of health care providers that Oxford and other insurers had breached their contract and committed various state law violations. The Supreme Court determined that an arbitrator had interpreted the arbitration provision at issue as allowing class actions and thus there was no basis to conclude that the arbitrator had exceeded his powers.

Although the decision does not expressly address the underlying issues that employers and ERISA plan sponsors had hoped it would, the Court’s decision may be most important for what was not said. In particular, the Court’s decision to leave intact an arbitrator’s ruling that allowed a class action to proceed in arbitration and not comment (or even suggest) that a prohibition on class action waivers would be inappropriate could be a signal that the Court would enforce an appropriately drafted arbitration agreement that requires the arbitration of all claims and, at the same time, precludes class action arbitrations. There remains hope that the Court will further address this issue in the second ruling expected by the end of the Court’s term this month. That case is American Express Co. v. Italian Colors Restaurant and there the Court is expected to address in an anti-trust action whether a class action waiver is enforceable even if plaintiffs could demonstrate that the practical effect of enforcement would be to preclude them from vindicating their federal statutory rights. Stay tuned . . . .

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Photo of Russell Hirschhorn Russell Hirschhorn

Russell L. Hirschhorn, co-head of the ERISA Litigation Group, represents plan fiduciaries, trustees, sponsors and service providers on the full range of ERISA and state law benefit and fiduciary issues. From single plaintiff litigation and arbitration to complex class action litigation, he provides…

Russell L. Hirschhorn, co-head of the ERISA Litigation Group, represents plan fiduciaries, trustees, sponsors and service providers on the full range of ERISA and state law benefit and fiduciary issues. From single plaintiff litigation and arbitration to complex class action litigation, he provides practical guidance, develops unique litigation defense strategies and, when appropriate, mediates successful resolutions.

Russell represents clients across a wide array of publicly-held, multi-national companies and privately owned companies across a multitude of industries including, banking, finance and investments, pharmaceuticals, retail products and construction, to name just a few. In addition, he also counsels benefit plan clients on a host of compliance and federal and state government agency enforcement matters, including complex and lengthy investigations and audits by the U.S. Departments of Justice and Labor.

Russell is management co-chair of the American Bar Association Employee Benefits Committee as well as management co-chair of the Trial Institutes Committee of the American Bar Association’s Labor and Employment Law. He also writes on cutting-edge ERISA litigation issues, serving as a contributing author and a past chapter editor to Employee Benefits Law (BNA Third Edition).

Deeply dedicated to pro bono work, Russell was a principal drafter of several amicus briefs for the Innocence Project, a legal non-profit committed to exonerating wrongly convicted people. Russell has been recognized on several occasions for his commitment to pro bono work including by President George W. Bush in receiving the U.S. President’s Volunteer Service Award.