Ten years from now there may well be no more Employee Retirement Income Security Act (ERISA) class actions. The law, like the rest of life, is not immune from disruptive innovations. In our own lifetime, we have seen disruptive innovations from chemical photography to digital photography, from personal computers to smart phones, and from snail mail to Instagram. Just as Brown v. Board of Education, 349 U.S. 483, 495 (1954) created a legal sea change by finding racial discrimination in public education unconstitutional, a series of recent U.S. Supreme Court decisions has established another legal sea change: class action lawsuits are no longer necessary. These new cases taken together indicate that ERISA plan sponsors can kill off all future ERISA class actions if they adopt mandatory arbitration provisions with class action waivers.
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