Last week, David S. Reidy provided his analysis of the California Supreme Court’s recent decision invalidating an arbitration and class waiver provision in a credit card customer agreement.  We jumped at the chance to republish his McGuireWoods Legal Alert here.

On April 6, the California Supreme Court issued the latest in an ongoing series of cases resisting preemption of California state law under the Federal Arbitration Act (FAA) and again testing the limits of the U.S. Supreme Court’s jurisprudence under the FAA.

The decision purports to limit the enforceability in California of arbitration clauses that address injunctive relief, and will … Continue Reading

As recently reported by our colleague Brennan Bolt in one of our sister blogs, Labor Relations Today, the Supreme Court has answered a question I posed a few months ago by granting cert in not one, not two, but three cases involving the enforceability of class/collective action waivers in employment agreements.  These decisions pit the National Labor Relations Board’s position that class/collective action waivers are inconsistent with the rights granted by the National Labor Relations Act, and therefore unenforceable, against the Federal Arbitration Act’s strong and long-standing policy favoring arbitration.  We’ll be watching these cases closely as … Continue Reading

The long-running battle over collective action waivers in the arbitration clauses of employment agreements continues to rage in the Courts of Appeals.  Two recent decisions (and the cert petitions filed in their wake) may well lead the Supreme Court to consider once again the thorny relationship between the class/collective action mechanism and federal arbitration law.

Just weeks ago, a divided panel of the Ninth Circuit delivered its opinion in Morris v. Ernst & Young, LLP, vacating an order by the N.D. Cal. that would have compelled individual arbitration of claims that the defendant misclassified employees in order to deny … Continue Reading

 Houston law professor D. Theodore Rave’s new paper Settlement, ADR, & Class Action Superiority (forthcoming from the Journal of Tort Law) contains an interesting insight about class action practice: when you get right down to it, there is little functional difference between (1) a class action settlement, (2) an AT&T "gold-plated" arbitration clause, and (3) a customer service action like a voluntary recall.  Or, as Professor Rave puts it:

Functionally, what is happening with class settlements, voluntary compensation schemes, and mandatory arbitration clauses in form contracts is very similar. Private actors are effectively designing a system of

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2013 did not offer the blockbuster docket in front of the Supreme Court that 2011 did, but that didn’t stop the Court from issuing a number of opinions whose effects will be felt for some time to come. In addition, a number of other courts took bold steps to either support or constrain class action practice. The key trends coming out of 2013: watch out for predominance, and watch out for tricky settlement provisions. Also, pay attention to the complaint; key flaws can still lurk in there.

(1) Comcast Corp v. Behrend (Supreme Court).  This case was … Continue Reading

Both AT&T Mobility LLC v. Concepcion and American Express Co. v. Italian Colors Restaurants have been accused of bringing about the death of the class action.

Few would question that these opinions have made it more difficult to casually sue cell phone or credit card companies. But past that fairly obvious conclusion, it’s not clear that these cases have done much more than shift some of the terms of early motions practice.  Given the promises we have heard that Concepcion in particular spelled the coming demise of the class action, how could this be the case?

Law professors … Continue Reading

 At the end of last week, the Supreme Court decided American Express Co. v. Italian Colors Restaurant, which further refined the Court’s approach to arbitration of class actions. Most importantly, it eliminated the "vindication of rights" exception to enforcing arbitration clauses. (That was the doctrine that held that a court need not compel arbitration of a putative class action if it would practically prevent the plaintiff from vindicating her rights in a cost-effective manner.)

In Italian Colors, a group of merchants filed an antitrust class action against American Express, alleging that it had violated Sherman ActContinue Reading

Cardozo Law Professor Myriam Gilles made her name as a class action scholar when, years before Concepcion, she identified (and publicized) the defense tactic of requiring potential plaintiffs to arbitrate their claims instead of bringing class actions

Her latest paper, co-authored with Cardozo colleague Anthony Sebok is Crowd-Classing Individual Arbitrations in a Post-Class Action Era. It seeks to follow up on her previous prescience. Professors Gilles and Sebok predict that arbitrations will soon be subject to aggregation one way or another, since, in their view, that is the only way arbitration of consumer claims is economically viable.… Continue Reading