Comment   |   Volume 160, Issue 2

All Alone in Arbitration: AT&T Mobility v. Concepcion and the Substantive Impact of Class Action Waivers

Frank Blechschmidt

January 2012

On April 27, 2011, the Supreme Court announced its decision in AT&T Mobility LLC v. Concepcion, one of the most closely watched cases of the 2010 Term. In Concepcion, the Court considered whether states may condition the enforceability of arbitration agreements on the availability of class-wide arbitration proceedings. While the subject of class arbitration is rarely viewed as a headline-grabbing legal topic, Concepcion attracted the attention of many consumer advocates, corporate counsel, and procedural scholars because of its far-reaching implications for consumer and employment contracts and class action policy. Ultimately, the Court held that the Federal Arbitration Act (FAA) preempts states from invalidating class action waivers in arbitration agreements because these invalidations stand as an obstacle to the purposes behind the FAA.

Was this result surprising? Not in the least. Indeed, given the increasingly predictable road the Court had taken in previous FAA cases, a contrary ruling exhibiting deference to a state’s views on arbitration would have represented an abrupt tug on the FAA steering wheel. But leaving the Court’s track record aside, was the Court’s decision to limit the role of states in shaping class action policy a legally sound and principled conclusion? In this Comment, I argue that it was not. Because class actions are so intimately linked to the vindication of substantive rights, the Court should not have unilaterally made a policy decision as to when the use of class proceedings is appropriate.

Though class action policy discussions typically focus on the efficacy of class action litigation or the inner workings of Rule 23 of the Federal Rules of Civil Procedure, Concepcion did not directly involve either of these topics. Instead, Concepcion centered on the class action’s close cousin, class arbitration—proceedings involving similarly situated litigants that occur before an arbitrator, rather than before a judge or jury in court. While the development of class arbitration was still in its embryonic stages, several judges and businesses adopted the view that this method of dispute resolution was antithetical to the whole point of arbitrating in the first place, which is to provide a speedy and efficient alternative to litigation. Eventually, with the addition of more claimants and in light of the uncertainty surrounding this new form of aggregate procedure, class arbitration became what was described as “a lose-lose proposition” to which “no rational business [would] agree.” All Alone in Arbitration: <i>AT&T Mobility v. Concepcion</i> and the Substantive Impact of Class Action Waivers -