Dipanwita Deb Amar

Amar regularly defends employers in federal and state court in cases involving discrimination, harassment, wrongful termination and whistleblower claims.

"Since I started practice 24 years ago, arbitration has been the biggest employment law issue of our generation," she said. That became clear when Steptoe & Johnson LLP retained her to defend a potential Fair Labor Standards Act class action by all female associates and contract attorneys. They alleged pay discrimination. Houck v. Steptoe & Johnson LLP, 17-CV04595 (C.D. Cal., filed June 22, 2017).

Amar knew this was the first class action against a major firm involving its associates and was bound to attract major media attention. Could she get the claims out of the spotlight and into arbitration by enforcing the class action waivers the plaintiffs had signed as part of their employment contracts?

She also knew the U.S. Supreme Court was considering the enforceability of arbitration agreements and class action waivers in employment contracts, potentially undoing a 9th U.S. Circuit Court of Appeals precedent that held such waivers unenforceable. She wanted to ask the Central District to stay the case until the high court ruled, but that outcome was uncertain. So she found another argument to bolster her defense. The plaintiffs were lawyers who had secretaries and junior associates under their control.

"That made them supervisors, in our view, and the NRLA does not cover supervisors," Amar said. "That was the creative part of our argument, that this practicing attorney plaintiff should not get the benefit of [the 9th Circuit ruling]."

U.S. District Judge Otis D. Wright of Los Angeles agreed to wait for the high court to rule.

Soon after, the justices held in Epic Systems Corp. v. Lewis that class action waivers are enforceable. And not long after that, Amar was able to persuade plaintiffs' counsel to dismiss all class claims, effectively gutting the case. The matter then settled on terms favorable to the defense, Amar said. And she isn't done with the arbitration issue. Still on the books is California's Iskanian ruling, which contains an exception to class action waivers for representative claims brought under the state's Private Attorneys General Act.

"I do have some PAGA cases not yet filed, so we will have that issue coming along," she said. "In my mind, it's just a matter of time until the federal courts tell California that Iskanian is no longer good law."

-- John Roemer