The past two decades have seen a proliferation of Employee Retirement Income Security Act class actions against plan sponsors and fiduciaries, some leading to significant trial victories or substantial settlements for plaintiffs. At the same time, the U.S. Supreme Court has reiterated and reinforced the breadth of the Federal Arbitration Act, enforcing agreements to arbitrate in a wide variety of contexts.
These two trends crossed paths in a recent pair of opinions in Dorman v. The Charles Schwab Corp. et al., in which the U.S. Court of Appeals for the Ninth Circuit reversed its precedent prohibiting arbitration in ERISA cases and upheld a plan provision requiring that claims be arbitrated on an individual, not classwide or planwide, basis. This article discusses the Ninth Circuit’s rulings and highlights issues that plan sponsors should keep in mind when considering whether to add arbitration clauses to their plans.
