After almost a decade of rather vigorous life, class arbitration in the United States came to what was widely assumed would be its end because of decisions by the US Supreme Court in 2010 and 2013. But US class arbitration is not dead, at least not yet.

The boom in US class arbitration was quite recent. It began in about 2003, prompted by the Supreme Court’s plurality decision in Green Tree Financial Corp. v Bazzle, 1holding that class-wide arbitration was not precluded when an arbitration clause did not expressly address that subject. Before the Green Tree decision, a significant number of business organizations that dealt with the public had decided to include arbitration clauses in their standard form customer or employment agreements. These clauses typically said nothing about possible class claims. After Green Tree, arbitrators seemingly were invited to interpret such clauses to permit arbitrations brought by an individual on behalf of a class of all similarly situated persons. Suddenly, companies faced the very real prospect that ‘silent’ clauses could be latent sources of class arbitrations. 2

This development prompted two leading arbitration organizations in the United States to publish special rules for class arbitrations, based in large part on US court rules for class actions, and their dockets of class cases increased rapidly. The American Arbitration Association ("AAA") issued Supplementary Rules for Class Arbitration ("Class Rules") 3in October 2003, and within six years 283 requests for class arbitration had been filed. JAMS thereafter also published Class Action Procedures, 4which are similar.

The AAA’s Class Rules envisage three stages to a class arbitration proceeding, with automatic stays after each of the first two steps to permit any party to seek court review of the arbitrator’s decision. The first step is ‘clause construction,’ in which the arbitrator determines whether the parties’ agreement permits the case to proceed on a class basis. 5A party then may seek confirmation or vacatur of the resulting interim award.

In 2009 the AAA submitted a brief as amicus curiae to the Supreme Court in the Stolt-Nielsen SA v AnimalFeeds International Corp. case, 6not in support of either party but to provide the Court with neutral data on use of class arbitration. The brief reported that by September of 2009, 135 of the 283 cases filed with the AAA as class arbitrations had resulted in Clause Construction Awards. Of those, 70% held that the clause permitted the arbitration to proceed on behalf of a class. In most cases the agreements in issue did not refer expressly to class arbitration, so that the arbitrators construed other contract language in reaching their decisions.

If the clause permits class arbitration, the next step is ‘class determination,’ in which the arbitrator decides whether a particular case is appropriate to certify for resolution on a class basis. 7This involves considering whether the proposed class members all have entered into agreements containing a similar arbitration clause, whether the proposed class representative and his or her counsel are appropriate to represent class interests and whether the alleged class satisfies requirements of numerosity, typicality and manageability. By 2009, the AAA cases had resulted in 48 Class Determination Awards, each of which was automatically stayed for a second time so that any party could go to court to ask for confirmation or vacatur. Exactly half of those awards granted class arbitration status. 8

Finally, if a class has been certified and no court vacates the Class Determination Award, the case may proceed either to a merits award or to a settlement. However, by 2009, no AAA class arbitration had yet resulted in a merits award. 9

When the Supreme Court reached its decision in the Stolt-Nielsen case in 2010, 10the result appeared to undermine the Green Tree holding. The Stolt-Nielsen court decided that a party cannot be compelled to arbitrate on a class basis unless there is a contractual agreement to do so and that an arbitration clause that is silent on the topic of class arbitration does not constitute an agreement to arbitrate class disputes. This significantly slowed but did not stop the trend toward class arbitration, at least in part because whether an agreement is truly ‘silent’ regarding the parties’ relevant intentions is not always clear.

To forestall the use of arbitration on a class basis, after 2003 many businesses began to add language to their standard clauses stating that customers or employees accepting them agreed to resolve any disputes in arbitration but were said to waive any right to bring a claim on a class basis. Some courts, most notably in California, 11declined to enforce those waivers because they were considered inconsistent with state contract law standards of unconscionability. Their validity thus remained in doubt for a number of years.

But the Supreme Court’s 2011 decision in AT&T Mobility LLC v Concepcion12largely rejected the contractual unconscionability argument, stating that "[r]equiring the availability of class-wide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the [Federal Arbitration Act]." 13The Court held that individual US state laws to the contrary are preempted by the federal statute and that class waivers, at least in principle, thus are valid.

In American Express Co. v Italian Colors Restaurant, 14the Supreme Court in 2013 resolved the question of whether such waivers nevertheless might be invalid in practice because they effectively deprive claimants of rights to enforce federal statutes. Claimants’ argument in that case was that the recovery in an individual arbitral proceeding likely would be too small to justify asserting complex claims such as those brought under US antitrust laws. The Court rejected that proposition by a 5 to 4 vote, and class waivers thus survived the most significant challenge to their legitimacy.

Class arbitration suffered a second blow in another 2013 decision, Oxford Health Plans LLC v Sutter.15In that case, the Supreme Court upheld an interim class arbitration decision. It declined to vacate an AAA Clause Construction Award finding a class arbitration appropriate and concluded that the arbitrator had engaged in a legitimate construction of the contract. But the Court distinguished its Stolt-Nielsen opinion, in which arbitrators had ruled on class determination issues, and expressly noted that it had not yet decided whether a class determination was a ‘gateway’ issue normally to be decided in the first instance by a court or an issue to be decided by an arbitrator. 16The risk that the Court might decide in the future that clause construction should be removed from arbitral competence cast a further shadow on the prospects for class arbitration.

After Concepcion, Italian Colors and Oxford Health, commentators predicted that waivers of class arbitration rights would become almost universal in standard form contracts, that even ‘silent’ arbitration clauses without such waivers would not be construed (by an arbitrator or a court) to allow class proceedings and that class arbitration in the United States in short order would become extinct. 17

1. CONTINUING USE OF ARBITRATION A IN THE UNITED STATES

Yet, somewhat surprisingly, class arbitrations in the United States have gone forward, and new cases continue to be filed. The AAA, the largest US provider organization, publishes its class arbitration docket, 18including pleadings and awards, so that interested potential or actual class members may follow relevant proceedings. By September 2015, the cumulative class docket had grown to a total of 473 cases. This included 35 new cases filed in 2011, 28 cases filed in 2012, 27 cases filed in 2013, 39 cases filed in 2014 and 32 cases filed in 2015 (through September). 19

JAMS, which has a smaller arbitration docket, saw 17 cases filed as class arbitrations in 2013, 15 such cases filed in 2014 and another 14 cases commenced on a class basis in the first half of 2015. 20

There appear to be two principal reasons for the continued, if limited, life for new class arbitrations after what had been presumed to be their death. First, it seems that not all business organizations stampeded to add class arbitration waivers to their standard clauses after the Italian Colors decision, so that waiver language is not universal. Second, attempted class waiver language sometimes is not effective to defeat class claims.

In addition, disputes continue to arise and be resolved under older agreements dating from the time before class arbitration waivers came into widespread use. Decisions involving those cases may be of particular interest because some of the cases have reached advanced stages.

a) Arbitration Clauses Without Class Waivers

Older-style clauses without class waivers continue to be used in some consumer agreements. In March 2015 the Consumer Financial Protection Bureau (the "CFPB") released an Arbitration Study (the "CFPB Study"), 21prepared at the direction of the US Congress, on the use of arbitration in disputes involving consumer financial products or services. The CFPB Study focused on agreements involving credit cards, checking accounts, generalpurpose reloadable prepaid accounts, private student loans, payday loans and mobile wireless services, which are only a part of the universe of standard consumer financial transactions in which arbitration is used. In that data set, based on 2010-2012 information provided by the AAA, the use of arbitration clauses varied from almost universal to only about 16% of credit card issuers and only about 8% of banks offering checking accounts. (However, the arbitration users included the credit card issuers and banks with the largest volume of cards and bank deposits.)

The CFPB Study found that when an arbitration clause was present, in about 90% of the cases it included a class arbitration waiver.

While waivers therefore are quite widespread where arbitration is used, this still leaves a considerable universe of around 10% of consumer financial institutions with agreements containing arbitration clauses without class arbitration waivers. The proportion may be similar or larger in other industries in which arbitration clauses are widely used.

b) Ambiguous Arbitration Clauses

Ambiguities are not unheard of in form contracts, and the drafters of some arbitration clauses have found them difficult to avoid. An example is the Macy’s department store credit card application accompanied by an amendment providing for a "Credit Protection Program," in use as recently as 2010. The broadly worded arbitration clause governing disputes did not refer expressly to class arbitration but provided for arbitration under AAA rules of "any dispute or controversy" and stated that "the claimant and we agree to consolidate all such disputes." A federal district court in New York held in June 2015 that this "any and all clause" was not a total "silence" as to possible class claims and that the language was sufficient to require that the issue of clause construction and potential class arbitration be referred to an arbitrator. 22

c) Cases Involving Older Clauses or Older-Style Clauses Still in Use

Older cases dating from pre-class waiver days have continued to work their way through the arbitral process, and they are not all zombies with no real life remaining. A significant arbitral decision in an older AAA case, Jock v Sterling Jewelers, 23dating from 2008, involved employment discrimination issues under federal statutes. In February 2015, after years of interruptions due to various judicial appeals, the arbitrator granted certification to a class estimated to include 44,000 current and former female employees at retail jewelry stores who challenged their employer’s pay and promotion practices as inconsistent with federal statutes. The claimants alleged that Sterling Jewelers’ work force data showed that women were paid less and promoted less frequently than men and that the disparity could not be attributed to legitimate, non-discriminatory factors. They sought class certification for claims of both disparate impact, based on an asserted company-wide policy, procedure or evaluation method that is discriminatory, and disparate treatment under an alleged gender-discriminatory corporate culture.

In a 118-page award, the arbitrator certified a class only on the disparate impact claims, based on identification of specific challenged policies and procedures. She declined to certify the disparate treatment claims, finding that they did not satisfy the commonality requirement of the AAA Class Rules. The arbitrator nevertheless left open the possibility that claimants might seek an ‘opt-in’ class for the disparate treatment claim, a remedy that had not been sought.

The case did not end there, however. In November 2015 the federal district court in New York confirmed the award in part but vacated the portion of the award that permitted members of the class to opt out of declaratory and injunctive relief. 24Further proceedings are possible.

In July 2015 the US Court of Appeals for the Fourth Circuit affirmed a lower court decision confirming a class arbitration award on the merits, Jones, et al. v Dancel, et al,25in favor of 487,066 consumers using ‘credit repair’ services. That case began as a court action seeking enforcement of a federal statute, among other claims. The matter was referred to AAA arbitration in 2006 and only recently has come to an end. The arbitrator certified a nation-wide class of consumers, a district court confirmed the Class Determination Award, and the court of appeals affirmed. Some of the defendants then entered into class-wide settlements, approved by the arbitrator, which resulted in an award of US$2.6 million in attorney fees to counsel for the claimants. The case proceeded to a merits hearing against the remaining defendants.

On the merits, the arbitrator found that the defendants had failed to make certain disclosures to consumers mandated by statute but declined to award actual damages. Instead, the arbitrator awarded punitive damages, as allowed under the statute, of about US$2 million. Rather than distribute a tiny portion of that amount to each consumer in the class, the arbitrator invoked the cy pres doctrine and distributed the damage award in equal portions to two consumer protection organizations: the National Consumer Law Center and the National Association of Consumer Advocates. The courts affirmed that outcome.

2. A NEW FRONTIER: CLASS ARBITRATION UNDER CORPORATE CHARTER OR BYLAW PROVISIONS?

Corporate governance disputes between shareholders or between a company and its officers, directors or shareholders are subject to arbitration agreements in various jurisdictions, but arbitration of these disputes historically has been disfavored by courts and regulatory authorities in the United States. 26That has changed in recent years with respect to closely held corporations and, to some extent, publicly traded corporations, although the Securities and Exchange Commission maintains an informal policy discouraging the registration of securities whose governing documents include a mandatory arbitration provision. 27There is thus only limited history in the United States of arbitration under corporate bylaw provisions requiring its use for shareholder disputes.

That may be changing, however. The bylaws of CommonWealth REIT, a publicly traded Maryland real estate investment trust that owned properties in 31 US states, include a provision stating (with emphasis added):

Any disputes, claims or controversies brought by or on behalf of any shareholder of the Trust… either on his, her or its own behalf, on behalf of the Trust or on behalf of any series or class of shares of the Trust or shareholders of the Trust against the Trust or any Trustee, officer, manager… agent or employee of the Trust, including disputes, claims or controversies relating to the meaning, interpretation, effect, validity, performance or enforcement of the Declaration of Trust or these Bylaws (all of which are referred to as ‘Disputes’) or relating in any way to such a Dispute or Disputes shall, on the demand of any party to such Dispute, be resolved through binding and final arbitration in accordance with the Commercial Arbitration Rules (the ‘Rules’) of the American Arbitration Association (‘AAA’) then in effect, except as those Rules may be modified in this Article XVI. For the avoidance of doubt, and not as a limitation, Disputes are intended to include derivative actions against Trustees, officers or managers of the Trust and class actions by shareholders against those individuals or entities and the Trust. For the avoidance of doubt, a Dispute shall include a Dispute made derivatively on behalf of one party against another party.28

Such a clause reflects the fact that a corporation might consider it advisable to resolve derivative or shareholder claims on a class basis rather than be subjected to multiple disputes over the same events. These sorts of claims could be particularly amenable to class treatment because of their common origin in discrete corporate events with similar impact on all shareholders, and prospective respondents could want them resolved in arbitration rather than litigation.

Two investment funds that had purchased 9.8% of CommonWealth REIT’s shares commenced litigation in a Maryland court in 2013 seeking declaratory and injunctive relief to prevent certain alleged ‘value-destroying’ and self-interested conduct by CommonWealth, its trustees and REIT management. In response, the defendants initiated arbitration under the bylaw provision, and a Maryland state court confirmed the bylaw’s enforceability. The court reasoned that the funds had constructive knowledge of the bylaw provision and consented to arbitration because each CommonWealth share certificate included a legend stating, inter alia, that "the holder of this Certificate … agrees to be bound by all of the provisions of the … Bylaws…"29The Maryland court, echoing the US Supreme Court’s Italian Colors decision, did not see an obstacle in the fact that a claimant in arbitration might not be able to recover attorney fees in as large an amount as it could in a derivative claim in court, nor did the court consider such a result to be certain.

In a second case involving the same CommonWealth REIT bylaw provision, in 2014 a federal district court in Massachusetts followed the Maryland decision enforcing the arbitration obligation. 30It did so both because the court found that the Maryland decision constituted a res judicata ruling on the subject and also because, even in the absence of such preclusion, the Massachusetts judge would have found the bylaw arbitration provision to be enforceable. Accordingly, disputes under that particular bylaw involving derivative or class claims are arbitrable.

Mandatory arbitration under corporate governance provisions also has featured in US litigation in another context. In July 2015 a US court gave effect to a requirement that shareholder claims be arbitrated under the law of Brazil. Holders of Petrobras American Depository Shares brought class action securities litigation in New York arising from a Petrobras bribery scandal. In addition to US securities law claims, the plaintiffs asserted causes of action under Brazilian law on behalf of Brazilian purchasers of Petrobras securities either on the New York Stock Exchange or the Sao Paulo stock exchange, BM&F Bovespa. The defendants contended that the Brazilian law claims were subject to mandatory arbitration pursuant to Petrobras’ bylaws in accordance with the rules of BM&F Bovespa’s Market Arbitration Chamber ("CAM"), which specializes in disputes involving corporate and securities laws. CAM’s Arbitration Rules make no express reference to class arbitration, but they provide for joinder of parties and consolidation of proceedings. 31

The US district court in New York considered expert testimony concerning 2001 amendments to the Brazilian Corporate Law pursuant to which companies such as Petrobras included mandatory arbitration clauses in their bylaws and noted that "over 160 Brazilian companies have adopted bylaws mandating arbitration of shareholder disputes." The court did not order arbitration of the claims under US securities laws, but it dismissed the Brazilian law claims on behalf of purchasers of Petrobras securities in Brazil on the basis of the company’s bylaw arbitration provision. 32The decision appears to indicate additional recognition by a US court that mandatory arbitration under corporate bylaws, where provided for under governing law, is not inherently inconsistent with US public policy.

The line of authority supporting arbitration of class claims under corporate charters and bylaws in the United States has been questioned, primarily on the basis that corporate governance documents do not constitute agreements of the type regulated by ordinary contract law. 33Nevertheless, recent cases suggest that class arbitrations in the United States may continue in the corporate setting in at least some contexts.

3. THE CFPB 2015 ARBITRATION REGULATORY PROPOSALS

In October 2015 the CFPB issued proposals, on the basis of its earlier CFPB Study, for rules to regulate use of arbitration in consumer financial transactions. 34If put into effect, the proposals could have sweeping consequences for future class arbitrations.

The CFPB considered three possible approaches to arbitration clauses in US consumer financial transactions: that they be banned, that they be freely allowed, or that some middle ground be found. The CFPB propounded a complicated compromise solution: that such clauses be required to state that they do not compel the consumer to give up the right to participate in a claim for relief on a class basis, which at the consumer’s election could be either in a court or in a class arbitration. Arbitration clauses could continue to require that any individual claim be brought in arbitration, but the CFPB proposed that such a clause could not be invoked as a defense to a class claim in court unless and until class certification is denied or the class claims are dismissed by the court.

In addition, the CFPB proposed that regulated financial services entities within its jurisdiction be required to submit copies of all initial arbitration claim filings and written awards in consumer finance arbitration proceedings, whether individual or on a class basis, to the CFPB for analysis and possible publication. The CFPB’s proposals are now subject to a period of comment and review, after which they might be enacted in the proposed or a different form.

The CFPB assumed in making its proposals that most businesses would prefer that any class claim against them be brought in court rather than in arbitration and that they therefore might restrict their use of arbitration altogether rather than risk class arbitrations; but that hypothesis remains to be tested if the proposals become a formal set of rules. The proposal that all consumer financial arbitration demands and arbitral decisions be published, if put into effect, also could result in broad changes in the transparency of such proceedings.

The CFPB Study found, and its rule proposals assume, that final judgments on the merits in class litigation are extremely rare and that class actions in court are essentially engines for settlement. Class arbitrations also have led to settlements, and businesses subject to CFPB jurisdiction may find it necessary to choose whether they prefer to face settlements in class claims in courts or before arbitrators.

4. WHAT HAVE WE LEARNED?

The Supreme Court discussed the benefits and drawback of class arbitration, albeit briefly, in the majority and dissenting opinions in the Concepcion case. Writing for the majority, Justice Scalia stated that class arbitration is inconsistent with basic goals of the Federal Arbitration Act because in his view it is slower than standard, individual party arbitration, more costly, "more likely to generate procedural morass than final judgment" and more formal. He also wrote that class arbitration increases the risk to defendants of large, potentially devastating losses because of the absence of multilayered judicial review, which occurs in arbitration only under deferential standards, is "unlikely to have much effect" and "makes it more likely that errors will go uncorrected." 35The result was said to be "in terrorem" settlements.

In dissent, Justice Breyer compared data available for class arbitrations and class actions in litigation, writing that arbitration at least appears to be the quicker of the two mechanisms and that businesses have been shown willing to use arbitration for disputes with large financial stakes (although the examples cited did not involve class arbitration). 36

With the benefit of additional experience with class arbitration, is it accurate to conclude that this mechanism fits poorly within the FAA scheme because its high stakes make procedural informality and lack of appellate review particularly risky? Can it properly be said, as the Chamber of Commerce of the United States has asserted, that "Class arbitration is a worst-of-all-worlds Frankenstein’s monster" because "It combines the enormous stakes, formality and expense of litigation … with exceedingly limited judicial review of the arbitrators’ decisions"? 37

We do know from recent examples that class arbitrations can lead to sophisticated determinations, orderly settlements and merits awards that courts review with care. There has been no detailed analysis of those results, outside of the limited data on consumer financial disputes studied by the CFPB, and most of the judicial energy devoted to class arbitration thus far has been spent on issues preliminary to a final award. Since class arbitration is continuing, it may be possible in due course to compare actual results with the two Supreme Court opinions in Concepcion to evaluate the accuracy of their views on class arbitration and the role judicial review will play.

1
U.S. 444 (2003).

2
See William H. Baker, "Class Action Arbitration", In International Commerical Arbitration in New York (James H. Carter and John Fellas, eds.) 319, 336-340 (2010).

3
Available at https://www.adr.org/aaa/faces/rules/searchrules/rulesdetail.

4
Available at http://jamsadr.com/rules-class-action-procedures.

5
AAA Class Rule 3.

6
Brief of American Arbitration Association as Amicus Curiae in Support of Neither Party, Case No. 08-1198 (Sept. 4, 2009). The data in the AAA’s brief were not cited in the Stolt-Nielsen opinions but were referred to by both the majority and the dissenting justices in AT&T Mobility LLC v Concepcion, 131 S.Ct. 1740, 1751, 1759 (2011).

7
AAA Class Rule 5.

8
AAA Brief, supra n 6 at 22.

9
Id. at 23.

10
U.S. 662 (2010).

11
E.g., Discover Bank v Superior Court, 36 Cal. 4th 148, 30 Cal. Rptr.3d 76, 113 P.3d 1100 (2005).

12
U.S. 333, 131 S.Ct. 1740 (2011). Four years later the Supreme Court again rejected an attack on class waivers, which was based on the argument that a reference in the clause to "the law of your state" referred to pre-Concepcion California law permitting an unconscionability analysis. DirectTV, Inc. v Imburgia, 577 U.S. ___ (2015).

13
S.Ct. at 1748.

14
S.Ct. 2310 (2013).

15
S.Ct. 2064 (2013).

16
S.Ct. at 2068 n 2.

17
E.g., John M. Townsend, "The Rise and Fall of Class Arbitration", 2011 American Yearbook on Arbitration and Law 395 (2011).

18
Available at https://www.adr.org/aaa/faces/services/disputeresolutionservices/casedocket?_afrLo.

19
Information on file with the author. In the cases filed in 2014, clause construction resulted in three class claims contested but approved, four classes stipulated and 10 denied. In the cases filed in 2015, the results to date are one class claim approved, one class stipulated and two denied.

20
Information on file with the author.

21
Consumer Financial Protection Bureau, Arbitration Study: Report to Congress, Pursuant to Dodd-Frank Wall Street Reform and Consumer Protection Act Sec. 1028(a), available at http://www.consumerfinance.gov/reports/artbitrationstudy-report-to-congress-2015.

22
Edwards v Macy’s, Inc., 2015 U.S. Dist. LEXIS 86816 (S.D.N.Y. June 30, 2015). Following the decision, the defendants agreed to waive their right to arbitration and proceed with the case before the court. Edward M. Spiro and Judith L. Mogul, "Class Arbitration—Dying but Not Dead", New York Law Journal Aug. 18, 2015, n 16.

23
AAA Case No. 11-20-0800-6655. See Samuel Estreicher and Kristina A. Yost, "'Jock': Employment Class Arbitration Allows Disparate Impact Claims", New York Law Journal April 10, 2015.

24
U.S.Dist. LEXIS 154209 (S.D.N.Y. 2015).

25
F.3d 395 (4th Cir. 2015).

26
Gary B. Born, International Commerical Arbitration §6.04[K] (2d ed. 2014).

27
See Carl W. Schneider, "Arbitration in Corporate Governance Documents: An Idea the SEC Refuses to Accelerate", 4(5) Insights 21 (May 1990).

28
Corvex Management LP v CommonWealth REIT, 2013 Md. Cir. Ct. LEXIS 3, 6 (2013); a subsequent related case is Katz v CommonWealth REIT, No. 24-C-13-001299 (Cir. Ct. Balt. Feb. 19, 2014).

29
Md. Cir. Ct. LEXIS at 27-30.

30
Del. County Employees Ret. Fund v Portnoy, 2014 U.S. Dist. LEXIS 40107 (D. Mass. 2014).

31
Available at http://www.bmfbovespa.com.br.

32
In re: Petrobras Securities Litigation, 2015 U.S. Dist. LEXIS 99322 (S.D.N.Y. July 30, 2015).

33
E.g., Ann M. Lipton, "Manufactured Consent: The Problem of Arbitration Clauses in Corporate Charters and Bylaws", 104 Georgetown Law Journal ___ (2015) (forthcoming), available at http://papers.ssrn.com/sol3/papers.cfm?; Christos Ravanides, "Arbitration Clauses in Public Company Charters: an Expansion of the ADR Elysian Fields or A Descent Into Hades?", 18 American Review of International Arbitration 371 (2009).

34
Consumer Financial Protection Bureau, Small Business Advisory Review Panel for Potential Rulemaking on Arbitration Agreements: Outline of Proposals Under Consideration and Alternatives Considered (Oct. 7, 2015), available at http:// www.consumerfinance.gov/f/201510_cfpb_small-business-review-panelpacket-explaining-the-proposal-under-consideration.pdf. Separately, the National Labor Relations Board maintains that class action arbitration waivers in employment contracts violate the National Labor Relations Act and will not be enforced; but several courts have rejected that interpretation.

35
S.Ct. at 1751-52.

36
S.Ct. at 1760.

37
Brief for Chamber of Commerce of the United States of America as Amicus Curiae in Support of Plaintiff-Appellants, Marriott Ownership Resorts, Inc. v Sterman, No. 15-10627 at 9 (11th Cir. Apr. 1, 2015).