Ogletree Deakins offices, Washington, D.C. (Photo: Diego M. Radzinschi/ALM) Ogletree Deakins offices, Washington, D.C. (Photo: Diego M. Radzinschi/ALM)

Law firms aren't known for preemptively building technology, but when a recent 5-4 U.S. Supreme Court decision confirming the lawfulness of arbitration agreements banning class or collective actions was announced on Monday, employment firm Ogletree Deakins was ready with an automated tool.

Attorneys at Ogletree Deakins had been watching the case closely for months. Shareholder Ron Chapman attended the Supreme Court oral argument, hoping to get a sense of how the justices might rule. The firm decided to make an educated guess on the outcome—that the high court would stand with companies looking to mandate class action waivers for employees—and take a gamble: The firm began development of an app that would automate the process for those companies last December.

The tool, called the Ogletree Deakins DIY Arbitration Agreements, launched finally on Monday, immediately following the high court ruling. “We went ahead full steam with our fingers crossed that the case would come out the way we thought it would,” Chapman said.

DIY Arbitration Agreements is an automated tool that walks users through a series of questions about the kind of arbitration agreement they'd like to implement and what kind of class action waivers they'd like to see in place. The tool then takes that information and compiles it into legal language.

“You answer eight or nine questions and press print, and that's it. This is not rocket science,” Chapman said.

The development process required both technologists and subject matter experts to contribute time. Devoting the resources is certainly not a cheap or easy prospect for firms with a revenue stream largely built on billable work, especially when there was no guarantee that the Supreme Court would uphold the legality of such agreements. “It's an investment. It was investment of time, it was an investment in money, for sure,” Chapman said.

Ogletree is banking on the idea that this decision will open the floodgates for companies to implement class action waivers in employee arbitration agreements. “That's going to result in a lot, if not most companies implementing arbitration agreements,” Chapman said of the decision.

The firm is also hoping that the tool will set the firm apart from its competitors in its ability to implement these newly allowed class action waivers cheaply. “To have that discussion with the client and tailor it to particular needs and come up with a form would cost several thousand dollars. This tool is designed to automate all that,” Chapman said. Clients can use Ogletree's tool for what Chapman called a “low flat fee,” designed to help clients bypass the billable pay structure that typically accompanies such work.

Class action waivers themselves have the subject of increasing scrutiny over the last year or so. The spike in sexual harassment claims empowered by the Me Too movement has also brought new heat to employment arbitration agreements that bar sexual assault victims from banding together to challenge workplace sexual harassment in court. A number of Big Law firms this year also ended their use of forced arbitration for associates in the wake of the movement.

Additionally, many consumers spoke out against mandatory arbitration clauses that require class action waivers in the wake of the Equifax breach, forcing the company to change its terms of service.

The Supreme Court decision itself drew an impassioned dissent from Justice Ruth Bader Ginsberg, who called the ruling “egregiously wrong.” Justice Neil Gorsuch, who authored the majority opinion, wrote in his decision, “The policy may be debatable but the law is clear: Congress has instructed that arbitration agreements like those before us must be enforced as written.”

Chapman noted that many of these hot-button topics, like workplace sexual harassment, can be exempted from class action waivers using the DIY tool, and users can opt to include a 30-minute consultation with a firm attorney. Chapman also noted that with or without the tool, “There's no one size fits all. That's a judgment call each client has to make.”