As expected, the NLRB’s decision in D.A. Horton limiting arbitral class waivers in employment agreements has been appealed to the Fifth Circuit. As I suggested in this post, the case pits the Supreme Court’s interpretation of the FAA against the NLRB’s interpretation of “concerted action” in the labor laws, raising questions about Supreme Court deference to agency action in the arbitration context.

I’ll have an essay on Chevron deference as applied to recent arbitration decisions by the NLRB, FINRA, and the FTC in the upcoming issue of the Mayhew-Hite Report, Ohio State’s online dispute resolution journal. The essay is available at SSRN now.