With the significant increase in fiduciary breach class actions, plan fiduciaries have added provisions, including mandatory arbitrations, to their contracts, in an effort to gain control of and rein in litigation. The burning question, however, is where do the courts stand on forcing ERISA plan participants to engage in arbitration.
Carol Buckmann, cofounding partner of Cohen & Buckmann and a foremost authority in ERISA and pension law, explores this in her three-part series, “Using Mandatory Arbitration to Avoid ERISA Class Actions,” published in Bloomberg Law. Carol examines the statutory framework of ERISA, presents unanswered questions with which the courts have been grappling, explores prior case law, and discusses U.S. Supreme Court decisions and how federal courts are struggling again as a result of them.
Parts 1 and 2 of this series discuss the statutory basis and legal decisions affecting whether ERISA fiduciary breach claims may be made subject to mandatory individual arbitration and part 3 addresses practical considerations that should be weighed by plan sponsors considering implementing mandatory arbitration and the outlook for future clarification of the law.