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Tag Archives: AT&T Mobility LLC v. Concepcion

Getting to “yes”: Ninth Circuit provides guidance on formation of “browsewrap” arbitration agreements

Posted in Arbitration

In the three years since AT&T Mobility LLC v. Concepcion, courts have largely been rejecting substantive attacks on arbitration agreements that waive class actions.  By contrast, in some cases plaintiffs have succeeded in avoiding arbitration by arguing that they never agreed to it in the first place. The latest case to address such questions of… Continue Reading

Another California Court Does Backflips to Thwart Arbitration and Elevate The Class-Action Device

Posted in Arbitration

The hostility of some California courts to arbitration—and their resistance to preemption under the Federal Arbitration Act (FAA)—has produced nearly three decades of U.S. Supreme Court reversals. The most recent is AT&T Mobility LLC v. Concepcion, which held that the FAA preempted the Discover Bank rule, under which the California Supreme Court had blocked enforcement… Continue Reading

Will California Strike Again? The Latest Word From the California Supreme Court On Enforcing Arbitration Agreements

Posted in Arbitration

The California Supreme Court has a long history of inventing new rules—either from common law or as “glosses” on statutes—to invalidate arbitration agreements entered into by consumers and employees. For example, in 2005, that court announced a new unconscionability rule—the“Discover Bank” doctrine, which was named after one of the parties to the case—that effectively blocked… Continue Reading

Supreme Court Rejects Challenge to Arbitration Agreements

Posted in Arbitration, U.S. Supreme Court

The Supreme Court’s decision today in American Express Co. v. Italian Colors Restaurant (pdf), No. 12-133, eliminated the last significant obstacle to adoption of fair, efficient arbitration systems that increase access to justice for consumers while reducing transaction costs for everyone, particularly the huge legal fees of both plaintiffs’ lawyers and defense lawyers. In AT&T Mobility… Continue Reading

U.S. Chamber of Commerce Files Amicus Brief On Arbitration Issues In Key California Supreme Court Case

Posted in Arbitration

In the wake of AT&T Mobility LLC v. Concepcion, the California Supreme Court granted review in three cases involving significant arbitration issues, including key questions about whether the Federal Arbitration Act preempts California law concerning the enforceability of arbitration agreements. My colleagues and I have filed amicus briefs on behalf of the Chamber of Commerce… Continue Reading

Webinar on Arbitration And Class Actions Two Years After Concepcion

Posted in Arbitration, U.S. Supreme Court

Last Saturday marked the two-year anniversary of the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, a decision that has had an enormous impact on the world of class-action litigation.  To date, Concepcion has been cited in over 650 decisions, and (for the most part) has been applied broadly to enforce agreements to arbitrate… Continue Reading

Ninth Circuit Narrows California Exception To Arbitration Agreements, But Puts Off Deciding Whether FAA Preempts The Exception Altogether

Posted in Arbitration

Earlier today, the Ninth Circuit issued its en banc opinion in Kilgore v. KeyBank, N.A. The court had granted en banc review to decide whether the Federal Arbitration Act preempts California’s so-called “Broughton/Cruz” rule, which declares that claims for “public” injunctive relief under California consumer protection statutes are unsuitable for, and exempt from, arbitration. As… Continue Reading

Supreme Court Hears Argument In Class Arbitration Case, Oxford Health Plans v. Sutter

Posted in Arbitration, U.S. Supreme Court

The Supreme Court heard oral argument earlier today in Oxford Health Plans LLC v. Sutter, No. 12-135, on whether the Federal Arbitration Act (“FAA”) allows an arbitrator to interpret an arbitration agreement that does not affirmatively authorize class arbitration to permit use of that procedure. For some background on Oxford, please see our prior blog… Continue Reading

Second Circuit Reverses Denial Of Individual Arbitration In Title VII Class Action

Posted in Arbitration, Employment

Since Concepcion, the plaintiffs’ bar has been exhorting courts to recognize exceptions to its holding that courts may not refuse to enforce an arbitration agreement on the ground that it precludes class actions.  In the employment context, the plaintiffs’ bar thought that it had a winner with Chen-Oster v. Goldman Sachs,  in which a magistrate… Continue Reading

Supreme Court Appears Poised To Reject Second Circuit’s Articulation of “Effective Vindication Of Federal Statutory Rights” Defense For Avoiding Class Arbitration Waivers

Posted in Arbitration, U.S. Supreme Court

Yesterday, my colleagues and I attended oral arguments before the Supreme Court in American Express Co. v. Italian Colors Restaurant, No. 12-133, in which we submitted an amicus brief on behalf of business groups.   As readers of the blog know, the issue in American Express is whether plaintiffs may avoid their agreements to arbitrate… Continue Reading

What’s Next for the Class Action Plaintiffs’ Bar? Getting Deputized by State Attorneys General

Posted in CAFA, Class Action Trends

Some academics and commentators have been reading the tea leaves in Wal-Mart Stores, Inc. v. Dukes (pdf) and AT&T Mobility LLC v. Concepcion (pdf) as spelling doom for consumer and employment class actions. That’s overwrought; Dukes rejected an extremely adventuresome application of the class action rules by the Ninth Circuit, and Concepcion merely reminded courts… Continue Reading

Class Action Plaintiffs Can’t Have It Both Ways When Opposing Motions to Compel Arbitration

Posted in Arbitration, Class Certification, Motions Practice, Numerosity, Predominance, Typicality

In litigation—as in war—it is natural to focus on winning today’s skirmish and to defer planning for battles that might not happen for weeks or months.  But that shortsightedness can lead to strategic blunders—as one class action plaintiff suing Capital One Bank and credit counseling agency InCharge Debt Solutions recently learned the hard way. In King… Continue Reading

Supreme Court Grants Review in Class Arbitration Case, Oxford Health Plans LLC v. Sutter

Posted in Arbitration, U.S. Supreme Court

Two years ago, the Supreme Court held “that a party may not be compelled under the [Federal Arbitration Act] to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Stolt-Nielsen v. AnimalFeeds International Corp., 130 S. Ct. 1758, 1775 (2010) (emphasis in original). But the… Continue Reading

California Court Of Appeal Strikes Down Arbitration Agreement In Wage-And-Hour Class Action Despite Concepcion

Posted in Arbitration, Employment

A California appellate court weighed in last week with another effort to circumvent the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion. In Franco v. Arakelian Enterprises, Inc. (pdf), a panel of the Court of Appeal in Los Angeles affirmed an order refusing to enforce an employee’s agreement to arbitrate disputes with his… Continue Reading

Supreme Court Grants Certiorari in American Express Arbitration Case

Posted in Arbitration, U.S. Supreme Court

The Supreme Court has just granted certiorari in American Express Co. v. Italian Colors Restaurant, No. 12-133.   Earlier today, my colleague Andy Pincus previewed the issue presented to the Court, which is (in a nutshell) whether plaintiffs may avoid their agreements to arbitrate on an individual rather than class-wide basis by contending that they cannot… Continue Reading

Supreme Court Poised To Decide Whether To Grant Certiorari In Major Arbitration Case (In re American Express)

Posted in Arbitration, U.S. Supreme Court

When the Supreme Court convenes for its private conference today, the Justices will consider whether to grant certiorari in a case presenting one of the most significant questions regarding the meaning of the Court’s ruling in AT&T Mobility v. Concepcion that remains unresolved in the lower courts. Following the Concepcion decision, opponents of arbitration tried… Continue Reading

Chamber of Commerce Files Amicus Brief In Critical Ninth Circuit Case Explaining Why Plaintiffs Should Not Be Permitted To Use “Public Injunction” Claims As An End-Run Around Their Arbitration Agreements

Posted in Arbitration

As we previously reported, the Ninth Circuit granted rehearing en banc in Kilgore v. KeyBank, NA, to determine whether the Federal Arbitration Act preempts a California public-policy rule that declares claims for so-called “public injunctive relief” off-limits to arbitration. On October 26, 2012, my colleagues and I, working with the National Chamber Litigation Center, filed… Continue Reading

Ninth Circuit Grants Rehearing En Banc In Kilgore v. KeyBank To Determine Whether California May Exempt Claims For “Public” Injunctions From Arbitration

Posted in Arbitration

In an effort to avoid the enforcement of arbitration agreements after AT&T Mobility v. Concepcion, the plaintiffs’ bar has sought to invoke provisions of California’s Unfair Competition Law and Consumers Legal Remedies Act that allow for consumers to pursue claims for injunctive relief on behalf of the “general public.” They point to two pre-Concepcion decisions… Continue Reading

California Supreme Court Grants Review In Iskanian v. CLS Transportation; Will Address Enforceability of Employee Arbitration Agreements After Concepcion

Posted in Arbitration

For years, the California Supreme Court was one of the strongest forces against arbitration in the country. A disproportionate number of the U.S. Supreme Court’s decisions addressing preemption under the Federal Arbitration Act have reversed decisions of the California state courts or of federal courts applying California law. A recent pro-arbitration decision (Pinnacle Museum Tower… Continue Reading

Can Plaintiffs Dodge Concepcion By Arguing That They Need Class Actions To Vindicate Federal Statutory Claims?

Posted in Arbitration, U.S. Supreme Court

Since Concepcion, the plaintiffs’ bar has been searching for ways to avoid agreements to arbitrate on an individual basis. Because their efforts have largely failed so far, the new frontrunner is the argument that class procedures are necessary to permit “vindication of federal statutory rights.” Most courts to consider the argument have rejected it, but… Continue Reading

Schnuerle v. Insight Communications: Kentucky Supreme Court Rejects “Vindication of Statutory Rights” Challenge To Agreements To Arbitrate On An Individual Basis

Posted in Arbitration

In Schnuerle v. Insight Communications (pdf), the Kentucky Supreme Court joins a number of other courts in rejecting a key argument that the plaintiffs’ bar has been making in the wake of AT&T Mobility LLC v. Concepcion (pdf)—that arbitration agreements with class waivers should not be enforced whenever the plaintiff is able to persuade a court that… Continue Reading

Pendergast v. Sprint: Eleventh Circuit Holds That Federal Arbitration Act Preempts State-Law Attacks On Class-Action Waiver In Sprint’s Arbitration Agreement

Posted in Arbitration

Since the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, the Eleventh Circuit has consistently enforced agreements to arbitrate with class waivers. Earlier this week, it did so again in a case involving Sprint’s arbitration agreement in its service contracts. See Pendergast v. Sprint Nextel Corp. (pdf), No. 09-10612 (11th Cir. Aug. 20,… Continue Reading

Federal District Court: Attorneys Get Paid Even Though No Class Members Submitted Claims

Posted in Arbitration, Class Action Settlements

One of the keys to our victory in AT&T Mobility v. Concepcion (the Supreme Court case holding that courts can’t refuse to enforce arbitration provisions on the ground that they preclude class actions) was our ability to pull back the curtain on the consumer class action racket and show that often the only ones who… Continue Reading