Highlights

• As discussed in a previous Holland & Knight alert, courts take various approaches when considering the enforceability of mandatory class-action waivers and arbitration provisions contained in Employee Retirement Income Security Act of 1974 (ERISA) plans.
• Recent decisions show that courts remain split on key issues, including the interpretation of the U.S. Supreme Court's decision in LaRue v. DeWolff, Boberg & Assoc., who must/can consent to a plan amendment, and the applicability and application of the "effective vindication" doctrine.
• Recent court decisions in the Seventh Circuit, as well as Delaware, New York, and Florida district courts have reached different results, and for different reasons.

Courts around the country continue to approach the enforceability of class-action waivers and arbitration provisions in ERISA plan documents differently. This alert discusses recent decisions addressing these issues in ERISA litigation as district courts evaluate the enforceability of arbitration provisions and class-action waivers against plan participants

Finding a Mandatory Class-Action Waiver and Arbitration Provision Unenforceable

In Smith v. Brd. of Dirs. of Triad Mfg., Inc., 13 F.4th 613, 615 (7th Cir. 2021), the Seventh Circuit evaluated whether an arbitration and class-action waiver provision that provides "[a]ll Covered Claims must be brought solely in the Claimant's individual capacity and not in a representative capacity or on a class, collective,...

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