Last year, Hogan Lovells' Neal Katyal had to solve what he calls "a classic law school problem." In Epic Systems Corp. v. Lewis, Katyal's team had to make sense of two seemingly conflicting federal statutes in front of the U.S. Supreme Court. Impacting an estimated 25 million employee contracts, the case was one of two litigations from the firm's Washington, D.C., outfit that would fortify the future of arbitration agreements.

On one hand, the Federal Arbitration Act mandates that arbitration agreements are valid and enforceable. The National Labor Relations Act, on the other hand, protects workers' rights to collectively organize for their mutual aid and protection. So when Epic Systems Corp.'s workers wanted to assemble into a class action despite individual arbitration agreements, the court had to decide which law applied.

But this wasn't any ordinary court. At the time Katyal petitioned for certiorari, the Supreme Court was down a justice after Antonin Scalia died in February 2016. Katyal says he spent a lot of time thinking about whether the case could still win over an eight-member court. "We briefed the petition to not only appeal to a conservative view of the law but to more jurisprudential arguments," he said. "We focused on institutional questions, things that some of the more liberal members of the court would've thought about."

After the court accepted the case, Katyal spent the next several months putting together a diverse set of thinkers, getting plain textualists and litigators who focus on context in a room together. "We really do try to be in situations where opposites are part of the same case, jurisprudentially, politically, gender, orientation and race. These things can matter in ways you don't think they will, but they do," he said.

The resulting winning argument, which newly appointed Justice Neil Gorsuch supported in his opinion, was one of the best Katyal has crafted in his career, he said. "Ultimately," Katyal said, "it means these arbitration agreements are enforceable, and that streamlines an incoherent set of litigations into something that can deliver swifter results."

Another group of Hogan Lovells litigators similarly strengthened consumer arbitration agreements while representing Uber Technologies Inc. in a 2016 data breach case. After building up a cybersecurity practice for the last decade, Michelle Kisloff successfully argued that the plaintiffs did not have a shared harm and compelled most cases to individual arbitration.

Kisloff says that filing motions in each plaintiff's home court before they got transferred into the class helped make this argument. "The instinct is to duck and cover and wait until you get in front of an MDL judge so you're not facing a ton of discovery," she said. "We had a really powerful way to stop the class action by trying to engage right away and not waiting for a judge to appoint lead counsel."

Firm Facts:

Keys to Success:

"Listen really hard, analyze a lot, debate internally, and come to a conclusion that tells a single story. When we have the luxury of time, we like to get a diverse set of law clerks to come at a case from a lot of different jurisprudential perspectives. At the Supreme Court, you're dealing with nine personalities who have different things that they care about, so you want to try to build a team that can mirror that." — Neal Katyal

Alaina Lancaster is a litigation editor for ALM Media. Contact her at [email protected].