Litigator of the Week: Ron Chapman Jr. of Ogletree Deakins

, The Litigation Daily

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The U.S. Supreme Court thoroughly endorsed class action waivers in AT&T Mobility LLC v. Concepcion, its blockbuster 2011 decision on the primacy of the Federal Arbitration Act. So it came as a surprise when the National Labor Relations Board ruled in January 2012 that such waivers violate the statutory right of employees to organize and bargain collectively. An army of industry lawyers has waged all-out war on the NRLB's decision, known as In re D.R. Horton, arguing that it contradicts Supreme Court precedent. On Tuesday, Ron Chapman Jr. of Ogletree Deakins delivered what may be the knockout blow.

In a 2-1 decision, the U.S. Court of Appeals for the Fifth Circuit ruled that the Fort Worth, Texas–based homebuilder D.R. Horton Inc. didn't violate the National Labor Relations Act by requiring employees to arbitrate their grievances individually rather than collectively. The Fifth Circuit chastised the NLRB for not giving "proper weight" to the FAA, which holds that arbitration agreements should generally be enforceable. Chapman, a shareholder in Ogletree's Dallas office, served as lead counsel for D.R. Horton and delivered the winning argument at a hearing in February 2013.

The ruling wasn't a huge surprise, given that three other federal appeals courts have disagreed with the NLRB's reasoning. The stakes were particularly high at the Fifth Circuit, however, since only that court had jurisdiction to directly overturn or uphold the D.R. Horton decision.

In an interview, Chapman praised the many members of the business community that filed amicus briefs. He also credited his colleague in Ogletree's Indianapolis office, Christopher Murray, with synthesizing the 13 briefs filed by organizations on both sides of the issue. "Taking those briefs into consideration was quite a task," Chapman said.

Chapman said he tried to simplify the case at oral argument. "You can't swing at every pitch. You have to pick and choose your best arguments," he told us. "I focused on two things. First, the absolute novelty of the NRLB's rationale—in other words, no court in the history of the U.S. court system had ever taken the position the NRLB had taken. And, second, I focused on Supreme Court precedent that was contradicted by the NLRB's rationale."

Those arguments carried the day, though the Fifth Circuit acknowledged that there's "force" to the NRLB's position that class action waivers violate the rights of employees to engage in concerted activities.

"Every one of our sister circuits to consider the issue has either suggested or expressly stated that they would not defer to the NLRB’s rationale, and held arbitration agreements containing class waivers enforceable," the court's two-judge majority wrote. "We are loath to create a circuit split."

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