AT&T Mobility LLC v Concepcion

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

 Professor Myriam Gilles holds the distinction of having called the arbitration issue earlier than almost any other academic.  So when she writes a follow-up, it’s well worth paying attention. That follow up is here, in her latest working paper, Killing Them with Kindness: Examining "Consumer-Friendly" Arbitration Clauses after AT&T Mobility vs. Concepcion. And her findings indicate that corporate defendants are issuing "consumer-friendly" arbitration clauses. (Though, as she points out, few are as generous as the AT&T clause that "won" in Concepcion.)

Professor Gilles is primarily concerned with the popular plaintiff argument that arbitration clauses should not be enforced … Continue Reading

 At the DePaul symposium a few weeks back, Professor Suja Thomas argued that the Supreme Court should not take on "oddball" cases, because the outlying facts make for decisions that are too sweeping. (She’s made this argument before about Iqbal and Twombly, so you don’t have to wait for the DePaul Law Review’s Symposium Issue to get the basics.)

As I’ve mentioned before, Professor Thomas is no fan of oddball cases. She argues that:

the Supreme Court and some scholars, including Professor Richard Epstein, have justified the new standard on the basis of the costs in Twombly,

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 This was a busy year for class-action jurisprudence. Clearly, most of the Supreme Court cases had some effect on class action practice. But the district and appellate courts also rendered a host of rulings this year that significantly affect class-action practice. Despite what a number of academics and plaintiffs’ lawyers have claimed, the class action is not dead.  That said, it’s probably true, to quote plaintiff’s lawyer Daniel Girard, that while the "death of the class action" is overstated, the "Golden Age of the private attorney-general" is over. There were so many interesting opinions in the past year, … Continue Reading

BNA’s Class Action Litigation Report has published an article by yours truly that adapts this post about arbitration post-Concepcion and tries to add a little more scholarly rigor.  

They’ve also graciously allowed me to make it available here, where you can find it suitable for downloading, printing, and stuffing in the stocking of your favorite class-action defense lawyer.  (It makes great kindling to go with the coal.)… Continue Reading

The Supreme Court decided AT&T Mobility LLC v. Concepcion back in April, a decision that many scholars (and lawyers) have bemoaned as killing the class action. The hyperbole about the death of class actions (or their rebirth as shambling undead corpses) isn’t new, and it’s likely not merited. At the very least, I don’t seem to be any less busy.

So, what does the state of the arbitration in class actions look like, six months on? With roughly 120 published opinions reviewing motions to compel arbitration, it’s possible to venture a few opinions.

Most of the immediate … Continue Reading

Today, the Supreme Court began to roll out its class-action opinions. And first up, it has decided AT&T Mobility LLC v. Concepcion. In a 5-4 opinion authored by Justice Scalia (Thomas concurring), the Court held that § 2 of the Federal Arbitration Act preempted California’s Discover Bank rule, which "classif[ied] most collective-arbitration waivers in consumer contracts as unconscionable."

A number of sources are painting this as the end of the class-action as we know it. So, time to shut down the blog? Hardly. There are many, many class actions, even consumer class actions, that will survive this … Continue Reading