ERISA neither expressly nor impliedly prohibits mandatory arbitration of claims. Numerous courts that have analyzed the purpose of both ERISA and the Federal Arbitration Act (“FAA”) have held that ERISA claims are arbitrable. And while the Supreme Court has not spoken directly to the issue, the Court’s pro-arbitration jurisprudence under the FAA – culminating with several decisions approving the inclusion of class action waivers in arbitration agreements – strongly suggests that it would approve of the inclusion of ERISA claims in an arbitration agreement. Moreover, courts applying the recent Supreme Court decisions involving mandatory arbitration agreements have affirmed the use of class waivers in a variety of federal statutory contexts, including ERISA. As a result, more and more employers are implementing broad arbitration clauses with class action waivers.
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