Tenneco, Inc., et al. v. Tanika Parker, et al.

The court below applied the judge-made “effective vindication” exception to the Federal Arbitration Act (“FAA”) to invalidate an individual arbitration procedure contained in a defined contribution plan governed by the Employee Retirement Income Security Act (“ERISA”). The Court has never applied this judge-made exception to invalidate any arbitration agreement, much less one in an ERISA plan. Moreover, several Justices have questioned the viability of the “effective vindication” exception. The first question presented is whether the judgemade “effective vindication” exception to the FAA, which the Court has consistently refused to apply, may be used to circumvent the statutory mandates of the FAA and invalidate an individual arbitration procedure contained in an ERISA-governed plan.

To the extent the “effective vindication” exception to the FAA is viable, the lower courts are split about its effect on individual arbitration provisions contained in ERISA-governed plans. The split is based on (a) varying interpretations of the Court’s decision in LaRue v. DeWolff, Boberg, & Assocs., 552 U.S. 248 (2008), (b) the scope of the cause of action authorized by ERISA § 502(a)(2), 29 U.S.C. § 1132(a)(2), and (c) the impact of Thole v. U.S Bank N.A., 590 U.S. 538 (2020), and Viking River Cruises, Inc. v. Moriana, 596 U.S. 639 (2022). The court below misconstrued LaRue and ignored the import of Thole and Viking River to find that ERISA guarantees a single plan participant an unwaivable statutory right to seek monetary relief, in a representative capacity, on behalf of all absent