On August 22, 2016, in Morris et al. v. Ernst & Young, LLP,1 a panel of the U.S. Court of Appeals for the Ninth Circuit followed the lead of the National Labor Relations Board (“NLRB”) and the U.S Court of Appeals for the Seventh Circuit in finding that an arbitration agreement that required employees to bring claims in “separate proceedings”, thereby prohibiting class and collective actions, violated the employees’ right to engage in concerted activity under the National Labor Relations Act (NLRA). Previously, the only appellate court to adopt the NLRB’s position first announced in D.R. Horton2 was the Seventh Circuit in Lewis v. Epic-Systems Corp., while several other Circuits had decisively rejected it.3
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