Arbitration and Class Actions

My post a month ago on AT&T Mobility LLC v. Concepcion, a case that my Mayer Brown LLP colleagues are working on, drew some interest. I therefore thought I’d also note that four amicus briefs have been filed supporting the cert petition, from CTIA–The Wireless Association (filed by former Solicitor General Paul Clement, known to many of our readers as one of the lawyers arguing the recent Second Amendment incorporation case), the Chamber of Commerce, the Pacific Legal Foundation, and DRI (a civil litigation defense attorney organization). I read the briefs and thought they were very good (though I’m naturally not an unbiased observer here).

The case, as you may recall, deals with this situation: A consumer signs an agreement which includes an arbitration provision, and which forecloses class action arbitration. The agreement doesn’t make arbitration prohibitively expensive. A state’s law precludes contractual waivers of the right to bring a class action claim; many states don’t do this, but some states do. Does the Federal Arbitration Act preempt the state law on this, and make the no-class-action arbitration provision effective?