Andrew J. Pincus

Subscribe to Andrew J. Pincus's Posts

Andrew Pincus focuses his appellate practice on briefing and arguing cases in the Supreme Court of the United States and in federal and state appellate courts, as well as on developing legal arguments in trial courts.

Andy has argued 23 cases in the Supreme Court of the United States, four of them in the 2010 and 2011 Terms, including AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011). For his victory in Concepcion, Andy was named Litigator of the Week by the American Lawyer and Appellate Lawyer of the Week by The National Law Journal. Andy’s work in Concepcion and successful defense of Chicago Mayor Rahm Emanuel’s right to run for office were cited by the American Lawyer in its article naming Mayer Brown as one of the top six US litigation firms in the 2012 Litigation Department of the Year report.

Read Andy's full bio.

Contact:Read more about Andrew J. Pincus

As we previously discussed, the American Arbitration Association requested comments on proposed changes to its Consumer and Employment Arbitration Rules.

We submitted comprehensive comments on the proposed amendments on behalf of the U.S. Chamber of Commerce, the American Financial Services Association, and the Automotive Alliance for Innovation. The comments identify ways in which the proposed changes can be modified to ensure fairness for all parties while reducing the risks of potential abuse of the arbitration process. 

Notably, the comments focus heavily on the urgent need for action to curb abusive mass arbitrations. We have discussed the issue of mass…

Continue Reading Comments on proposed changes to American Arbitration Association consumer and employment arbitration rules

Abuse of the arbitration system by plaintiffs’ lawyers through the filing of mass arbitrations is by now well-documented, including in a paper we authored for the Chamber of Commerce’s Institute for Legal Reform. Companies have responded by revising arbitration agreements to address this abuse, and arbitral forums have adopted new default rules to govern mass arbitrations when the issue is not addressed in the arbitration agreement.

Not surprisingly, plaintiffs’ lawyers—hoping to retain the ability to coerce settlements through mass-arbitration filings—are challenging contract provisions and arbitral forum rules that address the issue.

A panel of the Ninth Circuit recently refused to enforce the arbitration agreement in Ticketmaster’s terms of service, rejecting the company’s attempt to address the problem of mass arbitration by incorporating the rules of a new arbitration provider (New Era). That decision—Heckman v. Live Nation Entertainment, Inc.—is flawed in several respects. But more important for most businesses, the decision is narrow and rests on the unique aspects of the New Era rules adopted in the Ticketmaster agreement. Plaintiffs’ lawyers are already arguing that Heckman sweeps more broadly, but that approach misreads the opinion and, in addition, contravenes Supreme Court precedent interpreting the Federal Arbitration Act (FAA).

A majority of the Heckman panel first concluded that the arbitration agreement’s use of New Era’s rules was unconscionable under California law. Second, the entire panel—both the majority and the concurring judge—held that New Era’s rules transformed mass arbitrations into a type of arbitration so unlike traditional individual arbitration that (in the panel’s view) the FAA no longer applies. And the panel went on to say that without the FAA, which (as the Supreme Court held in AT&T Mobility LLC v. Concepcion) preempts California’s Discover Bank rule against waivers of class arbitration, Ticketmaster’s arbitration agreement was invalid under Discover Bank.

This post first describes the relevant background and the Ninth Circuit decision. We then explain why that decision is limited to New Era’s unique approach to mass arbitration—and that any broader reading of the decision is barred by the Supreme Court’s holdings in Concepcion and subsequent cases.Continue Reading Ninth Circuit holds that arbitration agreement adopting New Era’s mass-arbitration rules is unconscionable—but the decision is narrow and limited to New Era’s unique rules

The plaintiffs’ bar has been trying to kill arbitration for more than a decade. But the courts have repeatedly rejected efforts to invalidate arbitration agreements. These lawyers have therefore switched to a different tactic: mass filing of arbitration demands.

When a single law firm or group of firms files 20,000 or 50,000 or 100,000 demands, does it really intend to resolve those claims on the merits? Or is the goal to use the costs of instituting an arbitration—which are disproportionately borne by companies when consumers or employees initiate arbitration—to coerce a settlement without regard to the merits of the underlying claim? If, for example, a company would immediately have to pay more than $10 million in fees upon the filing of 5,000 arbitration demands, just to be able to contest the merits, and thousands more for each claim that actually goes to arbitration—then paying a hefty settlement can seem like the only realistic option.

The U.S. Chamber of Commerce Institute of Legal Reform just issued a 75-page in-depth analysis of the mass arbitration phenomenon—Mass Arbitration Shakedown: Coercing Unjustified Settlements—that we authored. It documents the rise of mass arbitrations, the abusive consequences of these filings, and the ethical problems they present. We also suggest solutions that preserve the key benefit of arbitration—speedy, less-costly merit-based decisions—while also ensuring access to fair resolution of claims for injured consumers and employees.

Below the fold is a summary of the white paper.Continue Reading US Chamber of Commerce Institute of Legal Reform releases report on mass arbitration, its abuses, and how to prevent them

Motions to dismiss federal-court actions based on a lack of Article III standing are succeeding more frequently—thanks to the Supreme Court’s 2021 decision in TransUnion LLC v. Ramirez.  That ruling reaffirmed and clarified that every plaintiff must plausibly allege a “concrete injury” that is “‘real,’ and not ‘abstract,’” even when the plaintiff claims a violation of federal statutory rights.

This past June, the U.S. Chamber of Commerce’s Institute for Legal Reform (ILR) issued TransUnion and Concrete Harm: One Year Later, a 68-page report that we authored for ILR. It explains the multiple arguments made available, or strengthened, by…

Continue Reading The Courts of Appeals’ Rigorous Application of TransUnion’s Standing Analysis Continues To Provide Defendants With Strong Arguments For Defeating Non-Injury Class Actions

Yesterday, the Supreme Court held in Viking River Cruises, Inc. v. Moriana (pdf) that the Federal Arbitration Act preempts a California rule invalidating arbitration agreements that provide for arbitration of an employee’s own claims under California’s Private Attorney General Act (PAGA), but waive the employee’s ability to assert PAGA claims affecting others.

The decision is enormously important to companies seeking to enforce workplace arbitration agreements in California. The decision also provides businesses with powerful arguments that California laws restricting arbitration in the consumer setting are preempted as well. (Disclosure: we filed an amicus brief (pdf) in support of the petition…

Continue Reading Supreme Court strikes down California rule barring individualized arbitration of California PAGA claims

Last Friday, the Supreme Court reversed the class-wide judgment in TransUnion LLC v. Ramirez (pdf), concluding that the lower courts had not properly applied the Court’s holding in Spokeo Inc. v. Robins and that the vast majority of the class members failed to satisfy the injury-in-fact requirement for Article III standing.  (Our firm, including the three of us, represented the petitioner in Spokeo, and we filed an amicus brief (pdf) in support of TransUnion.)

The Court’s holding has enormous practical significance for defendants facing class actions seeking statutory damages.  The Court reinforced Spokeo’s core holding that Congress’s creation…
Continue Reading Supreme Court adopts robust view of Article III standing limitations in TransUnion, reaffirming and fortifying Spokeo

The Supreme Court has resolved many important questions about personal jurisdiction.  But somewhat surprisingly, it has not decided a fundamental question that arises in class actions – to establish specific personal jurisdiction (meaning case-linked personal jurisdiction) over a defendant, must the plaintiff establish that the defendant has sufficient connections to the forum with respect to all plaintiffs’ claims, or only the named plaintiffs’ claims?  Not only has the Supreme Court not decided this question, but no court of appeals has yet decided it.  The D.C. Circuit will likely be the first, in a case now pending – Molock v. Whole …
Continue Reading What Must Plaintiffs Show To Establish Specific Personal Jurisdiction Over Corporations in Class Actions?

The anti-arbitration rule issued by the Consumer Financial Protection Bureau in July is now just one short step away from elimination.

The Senate tonight voted 51-50 (with Vice President Pence casting the deciding vote) to invalidate the CFPB’s rule under the Congressional Review Act (“CRA”). That vote follows the House of Representatives’ disapproval of the rule in July.

The last remaining step is the President’s signature on the legislation, which seems highly likely given the Administration’s statement today (pdf) urging the Senate to invalidate the rule.

The President’s approval will trigger two provisions of the CRA.

First, the rule…
Continue Reading Congress votes to invalidate CFPB’s anti-arbitration rule

The Supreme Court kicked off its October 2017 Term yesterday with a spirited oral argument in the three cases involving the enforceability of arbitration agreements in employment contracts.

As we have explained, these cases—Epic Systems v. Lewis, Ernst & Young LLP v. Morris, and NLRB v. Murphy Oil USA—present the question whether an arbitration agreement in an employment contract that requires bilateral arbitration, and prohibits class procedures, is invalidated by Section 7 of the National Labor Relations Act (NLRA), which gives employees the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” According to the National Labor Relations Board, Section 7 protects employees’ right to seek relief on a class-wide basis, and therefore renders unenforceable arbitration agreements that bar class procedures—even though the Supreme Court has twice held that the Federal Arbitration Act (FAA) protects the enforceability of such agreements, in AT&T Mobility LLC v. Concepcion (2011) and American Express Co. v. Italian Colors Restaurant (2013).

The four Justices who dissented in either Concepcion or Italian Colors (or both) aggressively defended the NLRB’s determination. When the dust settled, however, it was not at all clear that they will be able to attract a fifth Justice to their position.Continue Reading Supreme Court Considers Class Waivers in Employment Arbitration Agreements

As many of our readers know, the Supreme Court will hear arguments next term in a trio of cases examining whether class waivers in employment arbitration agreements are enforceable under the Federal Arbitration Act. Many observers—including the two of us—believed that the issue had been settled by the Supreme Court’s decisions in AT&T Mobility LLC v. Concepcion (2011) and American Express Co. v. Italian Colors Restaurant (2013). But—as detailed on our blog—in 2012 the National Labor Relations Board concluded in the D.R. Horton case that Section 7 of the National Labor Relations Act (NLRA), which protects the ability of employees to engage in “concerted activities” (for example, union organizing), supersedes Concepcion (and by extension, American Express) and requires that employees be allowed to bring class actions (either in court or in arbitration).

Over the past several years, a circuit split has developed over whether the Board’s approach in D.R. Horton rests on correct interpretations of the FAA and NLRA, with the majority of courts rejecting the Board’s position. In January, the Supreme Court granted review in three cases—NLRB v. Murphy Oil USA, Inc., Epic Systems Corp. v. Lewis, and Ernst & Young LLP v. Morris—to resolve the split. Briefing on the merits is now underway. We filed our amicus brief on behalf of the U.S. Chamber last Friday, and—while we believe our brief makes compelling arguments (which we discuss below)—the big development in these cases was the amicus brief that the United States filed on Friday.

Significantly, the United States has changed its position since last October, when the DOJ represented the NLRB in filing the petition for certiorari in Murphy Oil. That petition was a full-throated defense of the D.R. Horton rule, consistent with efforts by a number of federal agencies during the Obama Administration to circumvent Concepcion by banning class waivers or banning predispute arbitration entirely. Last Friday, however, the United States broke with the Board’s position, filing an amicus brief in support of Murphy Oil and the other two companies.

As the government explained in its brief on Friday, the Solicitor General’s office has concluded that its earlier briefs got the issue wrong:

In Murphy Oil, this Office previously filed a petition for a writ of certiorari on behalf of the NLRB, defending the Board’s view that agreements of the sort at issue here are unenforceable. After the change in administration, the Office reconsidered the issue and has reached the opposite conclusion. Although the Board’s interpretation of ambiguous NLRA language is ordinarily entitled to judicial deference, courts do not defer to the Board’s conclusion as to the interplay between the NLRA and other federal statutes. We do not believe that the Board in its prior unfair-labor-practice proceedings, or the government’s certiorari petition in Murphy Oil, gave adequate weight to the congressional policy favoring enforcement of arbitration agreements that is reflected in the FAA.

Continue Reading Solicitor General weighs in against NLRB’s anti-arbitration rule