Offensive, Non-Mutual Collateral Estoppel in Arbitration

The Supreme Court has held, in case after case, that Congress envisioned a regime of bilateral arbitration when it enacted the Federal Arbitration Act (FAA) in 1927, and that arbitration’s principal attributes—speed, flexibility, and economy—are not realized in class or collective proceedings, even where the underlying statutory rights are commonly enforced in court through multi-party litigation. The Court’s decision in Epic Systems Corp. v. Lewis, holding that class action waivers in employment agreements are valid and enforceable, will undoubtedly send claimants with similar, if not identical, claims to individual arbitration proceedings, absent specific agreement by the parties to employ class or collective procedures in arbitration. The result—repetitive arbitration of a multitude of similar claims before different arbitrators—raises a host of practical and legal questions, not least of which is whether a defendant should be legally bound by the result of a prior arbitration case involving the same issues brought by a different claimant.