D.R. Horton Inc. has added a new argument to its appeal of the divisive National Labor Relations Board holding that employers may not require employees to waive their rights to arbitrate their employment claims as a class action. In its appeal to the 5th Circuit, D.R. Horton had argued that the Board’s position on class arbitration waivers was substantively wrong and that the Board lacked a quorum to issue a decision in its case, as per the D.C. Circuit’s Noel Canning opinion.

D.R. Horton has now asked the 5th Circuit to consider the United State Supreme Court’s decision in American Express Co. v. Italian Colors Restaurant, an antitrust case in which the Supreme Court upheld a class arbitration waiver. There, the Supreme Court ruled that the Federal Arbitration Act does not permit courts to invalidate a class action waiver solely because the costs of individually arbitrating claims would exceed an individual’s potential recovery. Arguing that this decision squarely rejects the Board’s rationale for invalidating its arbitration agreement, D.R. Horton has told the 5th Circuit that American Express is dispositive of its appeal. A ruling in D.R. Horton’s favor – on any of the grounds of the company’s appeal – would be welcome news for employers wary of the NLRB’s controversial decision.