Arbitration and Class Actions

My colleagues at Mayer Brown have an interesting new cert petition on arbitration and class actions, in AT&T Mobility v. Concepcion (seeking review of this Ninth Circuit opinion).

The question comes up in lots of situations: A consumer signs an agreement (here, with AT&T Mobility) which includes an arbitration provision, and which forecloses class action arbitration. The agreement doesn’t make arbitration prohibitively expensive (and thus doesn’t implicate the issue in American Express Co. v. Italian Colors Restaurant, decided a year ago by the Second Circuit). A state’s law (here, California 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? Whichever answer one gives — courts are split on this — it’s a major consumer law and arbitration law issue; if you’re interested in either of those topics, check out the petition and the opinion.