
A key question is whether a ninth justice will be confirmed by the time
this consolidated appeal is considered by the Supreme Court. If not, it will be
interesting to see how the court handles the appeal administratively. For
example, might a court action to hold over a decision until next term indicate
that it does not believe it can decide the issue without a 4/4 split?
Briefing by the parties should be complete by mid-April 2017, unless
extensions are granted. Most likely, and under normal circumstances, the case
will be held over until October 2017 for oral argument, which is the start of
the court’s next term. It certainly is possible that a ninth justice will be
confirmed by that time but this is by no means assured. A Trump appointee might
tip the scales in favor of upholding class-action waivers in private employment
agreements. Given that the cost of defense of a significant employment class action
can be steep—and that is without yet considering any settlement payment to the
plaintiff class and a payment of attorney fees to its counsel—curbing the
prevalence of class-action employment litigation may have a meaningful
financial impact on American businesses. We will keep you posted.
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