In Part 2 of “Using Mandatory Arbitration to Avoid ERISA Class Actions,” published in Bloomberg Law, Carol Buckmann continues to explore if, when and how mandatory arbitration clauses can be used to rein in the significant increase in fiduciary breach class actions. The complexities of ERISA make these questions difficult for lower federal courts to decide under recent U.S. Supreme Court decisions upholding arbitration in the employment context. and there have been inconsistent decisions across the country. In Part 2, Carol identifies important open issues including:
Who decides whether arbitration applies?
Can general employment agreement or handbook provisions cover ERISA claims?
Must there be considerations?
Who must consent to mandatory arbitration?
Can an arbitrator award plan-wide relief?
While Parts 1 and 2 of this series discussed the statutory basis and legal decisions affecting whether ERISA fiduciary breach claims may be made subject to mandatory individual arbitration, Part 3 will address the practical considerations that should be weighed by plan sponsors considering implementing mandatory arbitration and the outlook for future clarification of the law.