After over two decades of Supreme Court decisions dealing with the Federal Arbitration Act (FAA), 9 U.S.C. Section 1 et seq., it is clear that FAA-covered pre-dispute arbitration agreements dealing with statutory claims are enforceable “as written.” It is also clear that such agreements will not be enforced if they require waiver of a statutory claim or right. The Second Circuit’s recent (2-1) decision in Cedeno v. Sasson, No. 21-2891-cv (2d Cir., May 1, 2024), affirmed District Court Judge John G. Koeltl’s order refusing to enforce an arbitration agreement because its terms required a waiver of an ERISA plan beneficiary’s right to pursue a claim against the plan fiduciaries for plan-wide relief under ERISA Sections 502(a) and 409(a), 29 U.S.C. Sections 1109(a); 1132(a).

Section 409(a) provides in relevant part: “Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary.”