The National Law Journal quoted Cohen Milstein Sellers & Toll’s Joseph Sellers as saying it’s a concept that’s gaining interest, but it’s still early.
“If we had to litigate cases that would otherwise be a class action, and in the first case we prevail, the ordinary thing to do in the second case with the same issue would be to ask the arbitrator, who is not bound, to find the respondent precluded from relitigating the lawfulness of its defense when it was previously rejected as unlawful. That basically decides the second, third and fourth claims. But if the first claimant loses, the second claimant—who was not a party to that case in the way the employer was—is not bound by the decision.”
“If we had to litigate cases that would otherwise be a class action, and in the first case we prevail, the ordinary thing to do in the second case with the same issue would be to ask the arbitrator, who is not bound, to find the respondent precluded from relitigating the lawfulness of its defense when it was previously rejected as unlawful. That basically decides the second, third and fourth claims. But if the first claimant loses, the second claimant—who was not a party to that case in the way the employer was—is not bound by the decision.”